Gun Owners Can Sue Munis Without Giving Tort Claim Notice

The Indiana Court of Appeals recently held in City of Evansville v. Magenheimer that the Indiana Tort Claims Act (“ITCA”) does not govern a claim under Indiana Code chapter 35-47-11.1, which prohibits political subdivisions from regulating firearms (“Indiana Firearms Preemption Act” or “IFP Act”).

In September of 2011, Benjamin Magenheimer and his family visited a city park in Evansville, Indiana. While at the park, Magenheimer openly carried a firearm, which he was licensed to do. The police were called and asked Magenheimer to leave the park pursuant to an Evansville municipal code prohibiting firearms in city parks. Magenheimer filed a complaint alleging that Evansville had violated the Indiana Firearms Preemption Act, which provides that “political subdivision[s] may not regulate . . . firearms . . . [their] possession [or] carrying.” The Act also creates a private right of action, which Magenheimer brought suit pursuant to. Evansville argued that it committed a tort by enforcing the ordinance and therefore, Magenheimer’s claim was essentially a tort and barred for failure to comply with the notice requirements of the ITCA.

The court also noted that the IFP Act was passed to serve the public interest “by denying local governments the power to regulate firearms.” The statute allows parties who are “adversely affected” to enforce its provisions via private right of action. A party is “adversely affected” if they are: (1) a legal resident of the United States; (2) legally allowed to possess a firearm in Indiana; and (3) subject to the “ordinance, measure, enactment, rule or policy” of the local government that regulates firearms. The IFP Act was meant to prevent the adoption of new ordinances and the enforcement of existing ordinances.

On appeal, the court analyzed the intent of the legislature in passing the ITCA and the IFP Act and the purpose of each statute in light of Evansville’s argument. The court first noted that Evansville waived the issue of notice non-compliance with the ITCA when it failed to raise the issue in a responsive pleading. The court, however, went on to address the merits finding that the ITCA did not govern the claim.

The court found that within the context of the ITCA a “tort” is a loss that causes “injury to or death of a person or damage to property.” Further, the court noted that “the ITCA only applies to claims in which a plaintiff seeks monetary damages from the State to compensate for a loss. In other words, the ITCA does not apply to all claims in which a plaintiff alleges that the State has infringed his rights.”

Next the court analyzed the purpose of the IFP Act. The Court opined that the purpose of the Act’s private right of action is to encourage individuals to bring suit to enforce the statute and to recover the costs of enforcing such rights.

Evansville also argued that, regardless of the statute’s purpose, some claims under the IFP Act could be torts and individuals should not be permitted to “plead around the ITCA” by characterizing their claims as something other than a tort. The court, however, found that Magenheimer had a “valid, non-tort claim.” The court went on to note that even if Magenheimer had a potential tort claim, he would not be required to bring it as such because that would require him “to prove more than he is alleging.” Rather, the court determined that it must look at a claim’s underlying substance to determine whether it is governed by the ITCA. In this case, the court held that the claim was not a tort “in form [or] substance” and Plaintiff’s suit was not barred by the notice requirements of the Indiana Tort Claims Act.

James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.

The statements contained here are matters of opinion for general information purposes only and should not be considered by anyone as forming an attorney client relationship or advice for any particular legal matter of the reader. All readers should obtain legal advice for any specific legal matters.

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