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Open carrier sues Evansville, IN for removal from zoo

ICBM

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Jun 14, 2014
Messages
76
Location
McCordsville, IN
So, they are trying bring it to the state supreme court... Do they not realize they are fighting a loosing battle?

From what I read, their only objection to the case they have so far is that "Evansville maintains that Magenheimer is effectively bringing a tort claim and that, therefore, his claim is barred for failure to comply with the Indiana Tort Claims Act (ITCA). ... the ITCA does not govern Magenheimer’s claim..."

So, buy trying to stall, they only pay more money in an eventual loss. 3X COURT COSTS! as stipulated by state statute.

They know they will lose on appeal, (hopefully) but they don't care! They have huge piles of taxpayers monies to urinate out the window to assert their "control" on the little people. You know what? Often, they are successful! Many people cannot afford to take these BS cases against them to trial. And this is exactly what these unjust LEA's / city's hope for.
Many attorney's will see this as an easy buck and knowing they can only stall, raising their court costs, will just take it on contingency. That is, if it's a straight forward case.

Maybe the people of Evansville should be punished for not training/educating their officers regarding state law, especially those concerning firearms. If they only want to do the bare minimum training required by state law (which they do, as seen on their own site), then they can expect their collective funds they work so hard to provide, to be taken in lawsuits against the city when their under trained officers violate people rights. It is the people who must insure their government is doing what they need to do. Under state law, they only need "Search & Seizure" training in their pre-basic course (state mandated training before they can enforce the law), not any refresher courses like other things, like firearm safety training. Even the state law on training says how "It is the intent of this chapter to encourage all law enforcement officers, departments, and agencies within this state to adopt standards which are higher than the minimum standards implemented under this chapter and such minimum standards shall in no way be deemed sufficient" which should include FIREARM RIGHTS, which change from time to time. If the people don't pressure their politicians for proper conduct, and elect those who will do a better job than those before them, then they will just have to reap the consequences.
 

Grapeshot

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The State Supreme Court denied hearing the case. Looks like the city of Evansville is screwed. View attachment 12888

CITY OF EVANSVILLE,
Appellant(s),
v.
Benjamin A. MAGENHEIMER,
Appellee(s).

Court of Appeals Case No.
82A01-1409-PL-00398
Trial Court Case No.
82C01-1109-PL-476
Order
This matter has come before the Indiana Supreme Court on a petition to transfer
jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a
decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals,
and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed
in connection with the request to transfer jurisdiction have been made available to the Court for
review. Each participating member has had the opportunity to voice that Justice’s views on the
case in conference with the other Justices, and each participating member of the Court has voted
on the petition.
Being duly advised, the Court DENIES the petition to transfer jurisdiction.
Done at Indianapolis, Indiana, on __12/11/2015________.
 
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BB62

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Cincinnati, Ohio, USA
...Being duly advised, the Court DENIES the petition to transfer jurisdiction...
So a request to have a case heard by a higher court it called a "transfer of jurisdiction"?

I wouldn't think that would be the term used, and instead would have thought that a "transfer of jurisdiction" involves having a case heard elsewhere, a la "change of venue".

Interesting.
 

Grapeshot

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Originally Posted by Grapeshot
...Being duly advised, the Court DENIES the petition to transfer jurisdiction...
So a request to have a case heard by a higher court it called a "transfer of jurisdiction"?

I wouldn't think that would be the term used, and instead would have thought that a "transfer of jurisdiction" involves having a case heard elsewhere, a la "change of venue".

Interesting.
Not change of venue issue.

The higher court in denying the petition to transfer the case is refusing to accept/hear it = letting stand the lower court ruling/decision..

Jurisdiction: The authority or power the court has to act or hear a case and make a decision.
http://www.in.gov/judiciary/2658.htm#t

Rule 58. Effect Of Supreme Court Ruling On Petition To Transfer
A. Effect of Grant of Transfer. The opinion or not-for-publication memorandum decision of the Court of Appeals shall be final except where a Petition to Transfer has been granted by the Supreme Court. If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated except for:
(1) those opinions or portions thereof which are expressly adopted and incorporated by reference by the Supreme Court; or
(2) those opinions or portions thereof that are summarily affirmed by the Supreme Court, which shall be considered as Court of Appeals' authority.
Upon the grant of transfer, the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court.
B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court. No Petition for Rehearing may be filed from an order denying a Petition to Transfer.
C. Supreme Court Evenly Divided. When the Supreme Court is evenly divided upon the question of accepting or denying transfer, transfer shall be deemed denied. When the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.

Read rules 54-59:
http://www.in.gov/judiciary/rules/appellate/#_Toc410036725
 

ICBM

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Joined
Jun 14, 2014
Messages
76
Location
McCordsville, IN
So a request to have a case heard by a higher court it called a "transfer of jurisdiction"?

I wouldn't think that would be the term used, and instead would have thought that a "transfer of jurisdiction" involves having a case heard elsewhere, a la "change of venue".

Interesting.
Yes, like each county in Indiana has it's own circuit, each appeals court has different districts in the state, as seen in this picture.

There are 5 Districts; 1st is southern Indiana, 2nd is from the capitol to the top quarter of the state, and a 3rd for the top quarter.
There is a 4th and 5th district that has judges that can "stand for retention statewide." I don't understand that last part really really. Maybe they fill in for absent judges in other courts and hear specialized cases like tax cases, or disputes between counties, etc.

But the Supreme Court has jurisdiction in the entire state. So they were trying to transfer the case from the 1st appeals court (southern Indiana) to a court with state-wide authority, hence the "transfer of jurisdiction."
 

cce1302

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Aug 8, 2008
Messages
270
Location
South Bend, Indiana, USA
The Indiana Supreme Court has denied a petition asking it to look at whether a local gun owner's lawsuit against the city of Evansville was properly filed.

The court issued its order denying transfer of the case on Thursday, according to the Clerk of the Appellate Courts' office.

Transfer of the case to the Indiana Supreme Court was the city's last option to have it dismissed before going to jury trial. A trial date will now be set for sometime next year, said Robert Burkart, the attorney representing the city.

Benjamin Magenheimer was removed from Mesker Park Zoo while openly wearing a handgun in September 2011. He filed a lawsuit against the city the same month claiming his removal violated what was then a new state law barring local governments from regulating guns.

Magenheimer's lawsuit was filed in September 2011 under Indiana's Firearms Preemption Act barring local governments from regulating guns, which had only been in effect a few months at the time. He contends the city violated that law when he was removed from the zoo.

The Indiana Court of Appeals ruled in favor of Magenheimer on the issue in June.

City attorneys had argued Magenheimer should have filed the lawsuit as a tort claim — the legal means by which citizens can sue government agencies or their employees — which would have made it invalid because he did not serve proper notice under that law.


Full article:
http://www.courierpress.com/news/local/trial-date-to-be-set-for-gun-owners-lawsuit-against-city-of-evansville-26a2fccd-74d9-31b7-e053-01000-361594541.html
 

BB62

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Cincinnati, Ohio, USA
Nah, the county is just stalling. It's the wheels of bureaucracy that aren't turning.

If Evansville had admitted they were wrong in the first place and offered a settlement, this would probably have ended years ago.
The "wheels of bureaucracy" (actually "politics") are turning just fine; they felt they had 1) a defensible position, or 2) one which would satisfy their biases/their constituents, or 3) one which would wear down their opponent - and have run with it.

The "wheels of justice" have taken four years to tell the politicians they should go pound sand.

In different circumstances, with a different aggrieved party, things may have been different - but "doing the right thing" is not what politicians are known for.
 
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Grapeshot

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Valhalla
The "wheels of bureaucracy" (actually "politics") are turning just fine; they felt they had 1) a defensible position, or 2) one which would satisfy their biases/their constituents, or 3) one which would wear down their opponent - and have run with it.

The "wheels of justice" have taken four years to tell the politicians they should go pound sand.

In different circumstances, with a different aggrieved party, things may have been different - but "doing the right thing" is not what politicians are known for.
Now five (5) years in the "system".

Lady Justice is NOT swift. Her legs are broken and she needs a set of crutches to be followed by some serious rehabilitation.
 
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Grapeshot

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"A judge has denied Evansville's latest motion to dismiss a local gunowner's lawsuit accusing the city of violating a state law barring local governments from regulating guns."

"Vanderburgh County Senior Judge Carl Heldt issued an order denying the city's motion for summary judgement Wednesday afternoon. It is the third time the city has lost a bid to dismiss the lawsuit."
 

ICBM

Member
Joined
Jun 14, 2014
Messages
76
Location
McCordsville, IN
××× UPDATE ×××

03/10/2017 - Brief from city submitted.

Seems like they are trying very hard to make it look like Magenheimer was kicked out because we was being disorderly, not because he had a handgun.

But it's almost funny how they try to skip over key points;

"The EPD Officers located Claimant in the children’s petting zoo area and asked for Claimant’s license to carry a firearm, and he produced it although his behavior was standoffish. (App., p. 41, 81, 105). Officer Green proceeded to run Claimant’s license to carry to determine its validity. (App., p. 81-82). Ultimately and as a result of the encounter, Claimant was removed from the Zoo. (App., p. 82). The Zoo employees did not request anything of the EPD Officers relative to Claimant, and they understood Claimant was being removed from the Zoo because he was being unruly and not cooperative."
...sounds like a Seinfeld skit, where they try to 'yada-yada-yada' past the important details.

"Officer Green’s report noted that Claimant had been removed from the Zoo for being disorderly and frightening patrons."
They never really mention how he was being disorderly. Nor why he was frightening patrons. What if someone was really horrifyingly ugly? Like Rocky Dennis from Mask, kinda ugly? Point is, you can't remove someone for being "frightening" without reasonable cause.

But they were unable to cover-up all the evidence that shows they kicked him out because of the gun, not his actions;

04/11/2017 - Brief from Magenheimer.


DISPATCHER: 911.

PAUL BOUSEMAN: Hello. This is Paul Bouseman calling from Mesker Park Zoo.

DISPATCHER: Uh-huh.

PAUL BOUSEMAN: I am not calling on an immediate emergency, but I do have a patron that is carrying a sidearm, a handgun, in a holster, and he -- he approached our gate, and one of our visitor services person asked him to not come in with the weapon, and he said that -- that the -- something had been overturned and that he had a right to bear arms. And, anyway, but we have a man on grounds who has a weapon in a holster on his belt, and I was wondering what the current –

DISPATCHER: If you ask him to leave, he is supposed to leave. I mean, it's your – your prerogative to not have someone in that situation in there, I believe.

PAUL BOUSEMAN: Okay.

DISPATCHER: What entrance do they need to come into?

PAUL BOUSEMAN: He came into our main entrance.

DISPATCHER: Okay. Can somebody meet us at an entrance and -- and help us find him?

PAUL BOUSEMAN: Absolutely. I will meet you there.

DISPATCHER: Okay. Which one –

PAUL BOUSEMAN: Thank you very much.

DISPATCHER: Which -- which gate, the Bement side or the Amazonia?

PAUL BOUSEMAN: Mesker Park Drive.

DISPATCHER: Okay. I will get them out there.

PAUL BOUSEMAN: Thank you very much.

DISPATCHER: Uh-huh. Bye-bye.



Consistent with the above conversation, a “run card” was then generated by EPD
Central Dispatch to direct officers to the Park in order to remove Claimant. The run card
also establishes the fact that EPD was tasked from the beginning to remove Claimant from
the Park.

In the “Notes” section of the run card:

Notes: MEET ZOO REP[.] THEY HAD A PATRON WITH A GUN IN HOLSTER VISIBLE[.]
THEY ASKED HE NOT BRING THE WEAPON ON THE PROPERTY AND HE CAME IN ANYWAYS[.]
THEY WOULD LIKE TO ASK HIM TO LEAVE W/OFFICER PRESENT.
Also, is a statement from Officer Tooley;

We found the subject, later ID as Benjamin Magenheimer his wife and infant child. We approached Magenheimer and I asked for
his gun permit and asked him why he just didn’t cover up the gun with his shirt. He replied that he didn’t have to. His attitude and demeanor within the short initial contact gave me the impression that whatever we asked him or said to him was going to be of little value. I told him that the staff had called us and were concerned with him having a firearm at the Zoo. I tried to point out to him that using a small amount of common sense about covering up the gun would have been a better choice and we probably wouldn’t have even been called. This had no effect on him just that he could carry his gun. I then decided the best course of action was to escort him from the property and told him so, he then said I wouldn’t do that if I were you and also that there would be repercussions. We were not going to resolve the issue in the petting Zoo so I again told him his [sic] was leaving. He had to be told several times before he started walking.

* * * I felt that since we don’t allow people to carry weapons at other public events, that since the Zoo is a city park and the high number of children around, that the best course of action was to have him leave the area since he was adamant about wearing his gun open and expose[d]
The court of appeals rejected the city's arguments, and the city is now trying to Petition for Rehearing.
 
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