Statute Restricting Local Regulation of Firearms is not subject to Indiana Tort Claims Act

On June 24, 2015, the Indiana Court of Appeals decided the case of City of Evansville v. Magenheimer. At issue was the interplay between a relatively new statute, IC 35-47-11.1 restricting the ability of local government to regulate possession of firearms on public property and an older statute, IC 34-13-3, the Indiana Tort Claims Act, which imposes certain procedural requirements on individuals seeking to bring tort claims against units of government.

The prohibition on local regulation of firearms went into effect in 2011. The Indiana Court of Appeals had decided in an earlier case that a unit of local government does not run afoul of the statute by merely having an old ordinance on the books but, rather, gets into trouble if it adopts a new ordinance or attempts to enforce an ordinance. However, the City of Evansville apparently did try to enforce its existing ordinance about three months after the new statute went into effect.

From the opinion:

On September 10, 2011, Magenheimer visited the Mesker Park Zoo and Botanical Garden, a city park, with his wife and son. While at the park, Magenheimer was openly carrying a firearm. Magenheimer was licensed to carry this firearm and had a copy of the license in his possession. At the time, the Evansville municipal code contained a provision prohibiting firearms in city parks. An employee of the park spotted Magenheimer carrying the firearm and called the police. The police arrived and ordered Magenheimer to leave the park.

Shortly thereafter, the plaintiff sued the city under IC 35-47-11.1-6 and 7 which allow a private citizen adversely affected by local attempts to regulate possession of firearms on public property to bring a civil action against the unit of local government. If the individual prevails he or she is entitled to the greater of either his or her actual damages or a statutory damage award in an amount equal to three times the individual’s attorney fees. (That’s on top of an award of attorney fees so that, as a practical matter, the local unit of government is likely to have to pay quadruple the amount of the attorney’s fees if it violates the statute.)

The Court of Appeals was addressing an interlocutory appeal from the trial court. An interlocutory appeal is one that takes place in the middle of the case – before a final judgment has been issued at the trial level. This requires both the trial court and the Court of Appeals to agree that such an appeal should take place. In particular, the Court of Appeals agreed to take a look at whether the Indiana Tort Claims Act (ITCA) applied to this cause of action. Generally speaking, a person who wishes to pursue a tort claim against a unit of local government has to file notice of the person’s intent to do so within 180 days of the loss. The notice can’t be in the form of a lawsuit. The notice has to be filed with the governing body of the political subdivision. If they fail to file the notice, they cannot bring the lawsuit and, if they try, the lawsuit has to be dismissed. The City in this case claimed that the suit could not move forward because no notice of tort claim had been filed. The Court of Appeals agreed with the trial court that ITCA was not a bar to this lawsuit, reasoning that: a) the Defendants had waived the issue; and b) a suit to enforce IC 35-47-11.1 was not a tort claim.

Because notice under ITCA is an affirmative defense, waiver was based on the City not raising the issue in its answer to the plaintiff’s complaint which – because the plaintiff had filed suit quickly after the incident – would have given the plaintiff time to correct the error. More interesting was the discussion about whether a civil suit under IC 35-47-11.1 amounts to a tort claim. The Court of Appeals reasoned that this was not a tort claim or a contract claim but rather a statutorily created “favored action.” Such actions are not meant to compensate a loss, which is the purpose of tort claims within the meaning of ITCA:

Rather, the private right of action in Indiana Code chapter 35-47-11.1 serves a different purpose. Indiana has several statutes with similar provisions, authorizing private citizens to bring suit to “redress wrongs that involve the public interest, and to recover attorney fees if they prevail.” Town of St. John, 751 N.E.2d at 661. These provisions are meant to “encourage[e] the private prosecution of certain favored actions, by requiring defendants who have violated plaintiffs’ rights to compensate plaintiffs for the costs they incurred to enforce those rights.” Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560, 562-63 (7th Cir. 1994). In recent years, our legislature has seen fit to create, and to encourage the private prosecution of, several such favored actions relating to firearms.

Because the action was not barred by ITCA, the Court of Appeals remanded the case to the trial court, and the Plaintiff is allowed to proceed. Because the statutory damages are based on a multiplier of attorney’s fees, this trip up to the Court of Appeals might end up being particularly expensive for Evansville (assuming the alleged facts are accurate).