After Six Years, A Settlement in Evansville, IN Open Carry at the Zoo case

Evansville indiana lawsuit open carry zoo settlement

courtesy wikipedia.org

The city of Evansville, Indiana has finally settled an ongoing lawsuit stemming from the wrongful ejection of a man from the city’s zoo for openly carrying a firearm. The initial incident occurred on September 10, 2011.

From a 2011 press release from the Law Offices of Guy A. Relford announcing the lawsuit captured at opencarry.org:

On September 10, 2011, Mr. Magenheimer, his wife and four-month old child were enjoying an afternoon in the petting zoo ot the Mesker Park Zoo & Botanical Garden, owned and operated by the Evansville Department of Parks & Recreation. Mr. Magenheimer was lawfully carrying a handgun at the time, with his Indiana License to Carry Handgun in his possession. After a zoo employee apparently called police, Mr. Magenheimer was approached by four members of the Evansville Police Department, who first ordered him to conceal his firearm (which he had no legal obligation to do), then ordered him to leave the zoo property. When Mr. Magenheimer attempted to explain to the officers that their actions were illegal, the officers forcibly removed him from the property.

The actions of the EPD and zoo personnel clearly violate Indiana law, by enforcing an illegal policy regulating “firearms” and/or the “carrying . . . of firearms” by a unit of local government. As such, both the City and the DP&R are liable to Mr. Magenheimer for damages, attorney’s fees, declaratory relief and injunctive relief.

The suit was filed with the Clerk of the Circuit and Superior Courts of Vanderburgh County in Evansville, Indiana.

The city has been fighting, delaying and losing ever since. In June of 2015, the City of Evansville lost at the appeals court level. They then appealed the case to the Indiana Supreme Court. The Supreme Court ruled against them in December of 2015.

They tried yet again, arguing on a technicality, and lost at the appeals court level in June of 2017. They lost one more time (the case was denied) at the Supreme Court in December of 2017.

On December 5th, 2017, an Evansville Courier & Press columnist wrote about the city’s delay tactics. Every move cost the city more, because Indiana law requires the city to pay the legal fees of the open carrier.

From courierpress.com:

Yet here the city is, after more than half-a-decade, offering the same legal arguments multiple courts have already hurled aside. Lawyers have tried several times to win on a technicality. They say Magenheimer should have filed his suit as a tort claim – the way citizens usually sue governments. And since he didn’t, it should be thrown out.

No one’s buying that. The Indiana Court of Appeals denied Evansville’s motion to dismiss the case over the summer. And after a ruling last week, the state Supreme Court has now twice refused to hear it.

With all other options exhausted, the case will either go to trial or mediation, Guy Relford, Magenheimer’s attorney, told the Courier & Press Monday.

And it’s about time. This thing is older than both of my children. It’s been going on so long I forgot I’ve already written about it.

In February of 2018, there was a hearing journal entry as stated in opencarry.com:

“Parties appear telephonically and advise the court that mediation is scheduled to commence on 2/19/18 with Timothy Born. Once the court is notified of the mediation results, appropriate proceedings will be scheduled.”

I contacted Magenheimer’s attorney, Guy A. Relford. He confirmed that the case has been settled, but couldn’t tell me anything more about the details. His unwillingness to provide more information shows there’s a non-disclosure agreement in place. It has been reported plantiff Magenheimer has a new truck.

We may never know how exactly how much the city or its insurance carrier paid Mr. Magenheimer. And Evansville’s taxpayers will foot the bill — either in the settlement amount or higher insurance premiums or both — for the city’s anti-Second Amendment ideology and stubbornness.

 

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

comments

  1. avatar Supermike says:

    Evansville…. Indiana… not Evanston, which is in Illinois. 😉

    1. avatar tsbhoa.p.jr says:

      there is no longer an evanston. south of dempster st. is now “north rogers park” and to the north is “south wilmette.”

  2. avatar Michael says:

    Hurt them where they live…in the cash drawer. Best story, best ending, I’ve read in a long time.

    1. avatar No one of consequence says:

      Yeah … problem is, that cost is distributed across the local citizenry in the form of property and sales taxes, not charged exclusively to the city officials who made the law, enforced the law, and pressed the legal proceedings.

      1. avatar JasonR says:

        Money should come out of the pocketbooks of the city executives and lawyers who are determining the course of action that the city is taking. If they had their personal finances at risk, suddenly they’d be less willing to waste time in court.

        1. avatar Ed Schrade says:

          JasonR…. The city police officers, police chief and mayor including city council should be fired and tried on civil rights violations in federal court.

        2. avatar LarryinTX says:

          And there should be no gag orders (NDA), or they should cost an extra 100K, so that the people can SEE how poorly their money is being spent!

      2. avatar Crumudgeon says:

        It has been 7 years and many elections. If the citizens of Evansville, Indiana aren’t smart enough to vote these morons out of office and vote smarter people in office then yes the whole idiot town deserves to pay.

  3. avatar Sam I Am says:

    “The Ride” is the punishment. Evansville officials paid nothing. So, after six years and all the frustration, who won? They guy who was paid-off, or the city officials who are immune from adverse action?

    Being “right” (correct) about something is not a shield against government action

    1. avatar Kendahl says:

      About the only recourse for the taxpayers who have been stuck with the bill for this nonsense is to pound on the politicians responsible during the next election campaign. “Mr. Mayor, how can you claim to be a good steward of the city’s finances when you wasted tens of thousands of dollars fighting a court case you had no chance of winning?”

      1. avatar CJ Minnesota says:

        Even with an NDA, wouldn’t the settlement be available through the freedom of information act? It most certainly should be, since it is the taxpayers right to know.

      2. avatar LutherTheFiend says:

        Tens of thousands?? Not even. The original statute had the city on the hook for treble attorneys fees! Suffice it to say that whatever the settlement, Ben and Guy’s bank accounts are well padded for them and their offspring!

    2. avatar Hannibal says:

      And the vast majority of the settlement probably went to his lawyers for legal bills.

      1. avatar LarryinTX says:

        Nah, reread. The city had to pay his legal fees AFTER paying his settlement. As it should be, loser pays.

        1. avatar glenux says:

          If the article said his lawyers get paid after he gets his settlement,
          that is inaccurate.
          In the legal system, there is a precedent of who gets paid first.
          The courts and the attorneys get paid first.
          That’s an absolute fact.
          Legislatures have seen to it by making laws in their favor.
          If the courts and attorneys did not get paid first, our legal system would crumble overnight.

          I went through probate court a few years ago and was well briefed on
          who gets paid first.
          Many years ago, I had to sue my employer in Workman’s compensation case.
          The court paid only my attorney and then he cut me a check
          AFTER he got is his percentage.

  4. avatar Ralph says:

    This is not a happy ending. A happy ending would have been if the pigs who rousted the Magenheimer family and the snakes who run the city were held personally accountable.

    But some animals are more equal than others, and they know it.

    Oh, well, one good thing came of this. Now the Magenheimers can hate cops too.

    1. avatar LutherTheFiend says:

      Actually, Ben is quite respectful of law enforcement. His present employment demands coordination and cooperation with several state and federal law enforcement agencies.

  5. avatar FedUp says:

    I just checked on OCDO and they were celebrating Ben’s settlement (and new truck) back in April.

    Oh well, thanks for putting the news here even if it was a bit late, because I somehow missed it last Spring.

  6. avatar The Rookie says:

    Guy Relford’s a good egg. He also represents (or represented, if the case is now settled) a woman named Kystie Jaehnen. Short version of that case: in Feb 2017, Jaehnen shot a perp who had an officer on the ground and was going for his gun. Perp’s family filed a wrongful death lawsuit against her.

    1. avatar Kendahl says:

      A good reason to join one of the programs that will pay your legal bills after you defend yourself or another person. Make sure it covers defense using any method, not just a gun, covers civil suits as well as criminal charges, and pays up front instead of reimbursing you afterward.

    2. avatar Mister Fleas says:

      What were the results of the lawsuit?

      1. avatar The Rookie says:

        Mister Fleas – The most recent info I can find on the case is a 2 month old update on her Gofundme page. Sgt. Bill Halbig of the Aurora, IN PD set up the page, and in the update stated that legal proceedings were about to begin. So, the case may still be being fought.

        https://www.gofundme.com/kystie039s-best-defense

  7. avatar Ardent says:

    There is always a lot of commentary in these matters that the paying of settlements in no way effects the officials of a given jurisdiction, but rather the tax payers. Given that the budget is large enough and the settlement small enough this is largely true. However, larger settlements paid from smaller budgets most assuredly do have an impact on elected officials. With less of the public’s money to spend on needful or visible works and services for the public, the odds of reelection are lessened. In smaller venues the effect is not negligible. Such also gives ammunition to challengers primary and general in subsequent elections. While it may be more satisfying to personally punish the naybobs and grandees involved, it is not within the law, and for good reason: we would not have officials shirk from upholding sound law and policy in the face of civil suit, which They would surely do were it not for the immunity they typically enjoy.

    The proper recourse in situations such as these would seem to be suits for denial of civil rights, followed by criminal actions for same by the USAG. If we want to groan about something, the dearth of these, and their toothlessness would be a good place to start.

    1. avatar LarryinTX says:

      I would have them shirk from it! When somebody says “I’m gonna sue your ass!”, I’d like for them to feel some apprehension, just like I would. Why should they be immune to suffering for their own bad acts? If you know you’re going to lose, you would drop the case! If it’s going to cost you nothing, you may keep it going for 20 years!

    2. avatar LutherThe Fiend says:

      Insurance takes care of the payout but premiums will understandably increase. They can’t hide the increase in premiums under a Non Disclosure !!

  8. avatar TFred says:

    This is what’s so valuable about Florida’s preemption laws. The officials who break them are liable PERSONALLY. In this case, the taxpayer is paying these government officials to break the law.

    And no settlement in actions alleging illegal activity by government officials should be shielded from disclosure. Ever.

    1. avatar LarryinTX says:

      Oh, ESPECIALLY preemption laws, absolutely perfect.

  9. avatar Indiana Tom says:

    No skin off the Communists who run the show.
    Taxpayers get soaked through.

  10. avatar Bruce Clark says:

    I have mixed feelings about this case. On the one hand I can understand the persons RIGHT to bear arms any where he sees fit. But on the other hand why does he see fit to open carry where he damned sure knows at least a portion of the population is going to be upset by his action? I conceal carry for exactly that reason. Why make yourself a target for the disdain of other people’s feelings? Even as a 2nd amendment advocate for 65 years now, I have never seen the need to open carry. You lose all element of surprise doing so. You literally make yourself a target for anyone wanting to do harm to you and others.

    1. avatar Sam I Am says:

      “But on the other hand why does he see fit to open carry where he damned sure knows at least a portion of the population is going to be upset by his action? ”

      This is a popular discussion. Here are a few reasons why (just to get you started):
      – Because
      – Because 2A
      – Because horses are frightened of sharp, loud sounds until you acclimate them to the noise; people need acclimating, too
      – Political statement
      – Double-dog dare
      – Because
      – Quicker to respond, rather than removing clothing/cover

    2. avatar Clay says:

      Bruce, what does need have to do with it? Either you support the right(not brandish) or you don’t. I for one do not care about the fear of others. I personally don’t try and scare anyone, but if they are afraid, that is their issue.
      Having said that, I don’t understand why some people do things like carry an AR-15 into a local gov’t office. I do however support their right to do it. I think it’s dumb, but I will stand beside them when the police come to force them out.
      I will also stand beside flag burners if someone tries to force them to stop. I think they are a POS, but they have the same rights.
      I’ll say this again, NEED has nothing to do with it.

  11. avatar Alan says:

    The offended party, one hopes, gets enough money out of this business for him and his family to live in grand style for a very long time to come. Additionally, what penalties have the offending parties suffered, I laughingly ask.

  12. avatar PavePusher says:

    Non-Disclosure requirements with PUBLIC institutions should be illegal. Transparency in Government. The Citizens have a Right to know how their taxes are being wasated, so they know who to vote out or, if required, hang.

    1. avatar Sam I Am says:

      “Non-Disclosure requirements with PUBLIC institutions should be illegal.”

      This is the beauty of privacy laws. Once you involve an individual, all information becomes privacy information, not releasable without consent of the individual involved. Privacy laws can be used to cover a multitude of sins. Just like healthcare extends into every human activity, allowing government to direct your life.

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