SouthBend common council

[cobber]

Cobber, they're violating all 3 subsections of section -2

Once they pass an ordinance. But if they just use the threat of passing a law to intimidate WalMart... WalMart could bring suit, but they seem to be capitulating according to WNDU's "reporting". If it were an LGS they would probably be contacting their attorney yesterday.

The test would be who is "subject to" the proposed regulation.

Can you threaten to pass a law that would be illegal were it actually passed? Even if no "adversely affected person" comes forward? Prior restraint?

IC 35-47-11.1-5
Civil actions concerning political subdivision violations
Sec. 5. A person adversely affected by an ordinance, a measure, an enactment, a rule, or a policy adopted or enforced by a political subdivision that violates this chapter may file an action in a court with competent jurisdiction against the political subdivision for:
(1) declarative and injunctive relief; and
(2) actual and consequential damages attributable to the violation.
As added by P.L.152-2011, SEC.4.
IC 35-47-11.1-6
Civil actions; adversely affected persons
Sec. 6. A person is "adversely affected" for purposes of section 5 of this chapter if either of the following applies:
(1) The person is an individual who meets all of the following
requirements:
(A) The individual lawfully resides within the United States.
(B) The individual may legally possess a firearm under the laws of Indiana.
(C) The individual is or was subject to the ordinance, measure, enactment, rule, or policy of the political subdivision that is the subject of an action filed under section 5 of this chapter. An individual is or was subject to the ordinance, measure, enactment, rule, or policy of the political subdivision if the individual is or was physically present within the boundaries of the political subdivision for any reason.
(2) The person is a membership organization that:
(A) includes two (2) or more individuals described in subdivision (1); and
(B) is dedicated in whole or in part to protecting the rights of persons who possess, own, or use firearms for competitive, sporting, defensive, or other lawful purposes.
As added by P.L.152-2011, SEC.4.

IC 35-47-11.1-7
Civil actions; recovery of damages, costs, and fees
Sec. 7. A prevailing plaintiff in an action under section 5 of this chapter is entitled to recover from the political subdivision the following:
(1) The greater of the following:
(A) Actual damages, including consequential damages.
(B) Liquidated damages of three (3) times the plaintiff's attorney's fees.
(2) Court costs (including fees).
(3) Reasonable attorney's fees.
As added by P.L.152-2011, SEC.4.

 

[db1959]

Next up, the SB common council attempts to ban peanut sales from stores for fear of allergic reactions.

 

[daddymikey1975]

Once they pass an ordinance. But if they just use the threat of passing a law to intimidate WalMart... WalMart could bring suit, but they seem to be capitulating according to WNDU's "reporting". If it were an LGS they would probably be contacting their attorney yesterday.

The test would be who is "subject to" the proposed regulation.

Can you threaten to pass a law that would be illegal were it actually passed? Even if no "adversely affected person" comes forward? Prior restraint?

I believe they are flexing their muscles to get WalMart to comply. If I were WalMart, I would disregard their threats and proceed with business as usual per state law

 

[daddymikey1975]

The real question is, how many INgo members are going to the meeting with me ?

 

[cobber]

The real question is, how many INgo members are going to the meeting with me ?

Take a local lawyer with. Let the council know they're #3 after Hammond and Evansville.

I believe they are flexing their muscles to get WalMart to comply. If I were WalMart, I would disregard their threats and proceed with business as usual per state law

Walmart will calculate the cost-benefit of discontinuing gun/ammo sales. Don't expect them to trot out their legal team on this one. If it were a local dealer, things would be different. Maybe a good reason not to patronize the big box stores for [STRIKE]guns and ammunition[/STRIKE] anything you can get anywhere else locally?

 

[686 Shooter]

Did anyone see the gun in question? The word "tactical" is being used a lot, what makes this gun "tactical"?

 

[daddymikey1975]

Walmart will calculate the cost-benefit of discontinuing gun/ammo sales.

So the local gubbermint will win by 'threatening' an illegal policy

Wal Mart will most likely comply due to the cost/benefit calculation.

I certainly don't cndone what WalMart does to a 'local/small' economy, however, I dislike MORE the idea of the governemnt overstepping their boundaries, violating (or threatening to violate) state law and strong-arming an independent corporation into compliance.

 

[KG1]

Did anyone see the gun in question? The word "tactical" is being used a lot, what makes this gun "tactical"?

I believe it was a "Tactical" model shotgun with a breacher choke/ muzzle device installed for blasting door locks off.

Seems to be a big concern in that area for some reason.

 

[686 Shooter]

I believe it was a "Tactical" model shotgun with a breacher choke/ muzzle device installed for blasting door locks off.

Seems to be a big concern in that area for some reason.

That is scary isn't it? Have they had a big problem with it (blasting door locks) in the area, or is it just a precautionary measure?

As for the "News reporters", their morals and tactics rate right at the same level as whale crap, they only care about stirring the pot, it keeps them employed.

 

[Hammerhead]

It doesn't matter if they're passing an ordinance, law, or just telling WM that they can't. ANY statement to ANY retailer about how or what violates 35-47-11.1 and is actionable.

Rule or policies, and in this case if they're forcing WM into an agreement not to sell "EBGs" (sorry EBG) then it's both, are illegal from local government entities. The SB common council seems to be a LGE.

*puts out the Guy Relford signal*

 

[cobber]

It doesn't matter if they're passing an ordinance, law, or just telling WM that they can't. ANY statement to ANY retailer about how or what violates 35-47-11.1 and is actionable.

Rule or policies, and in this case if they're forcing WM into an agreement not to sell "EBGs" (sorry EBG) then it's both, are illegal from local government entities. The SB common council seems to be a LGE.

*puts out the Guy Relford signal*

The statute says they can't regulate. Do you have a statute or case that says what they've done to the present is regulation?

Is it even a policy? They're contemplating passing an ordinance. It doesn't sound like they have anything on the books yet.

edit: looking back I wrote it was a clear violation... rethinking that now...

Monday, Wal-Mart's attorney, Joe Calderon, said he cannot provide a statement because the South Bend Board of Zoning and Appeals has not contacted Walmart to notify them of any non-compliance issues. However, if Wal-Mart receives something from the city in writing, Calderon said Wal-Mart will make the necessary changes.

It might fly in court, but I wouldn't count on it. Unless they have some document they're claiming bars WalMart from doing what they're doing. Correct me if I'm wrong, but in Evansville and Hammond both there were ordinances on the books. Not just an intent to keep guns out of wherever.

I'll defer to Guy if and when he weighs in.

That being said, folks can certainly make their opinions known to the CC. And to WalMart.

 

[9mmfan]

WNDU UPDATE: They just said that WalMart got back with South Bend City council and would follow the agreement they signed at all city Wal Marts.

Can't believe Wal Mart caved.

Edit: Don't have a link yet. Just heard it on the newscast.

Edit# 2: A link from ABC57 http://www.abc57.com/news/local/UPDATE-Wal-Mart-takes-tactical-guns-off-the-shelf--173322761.html

 

[LockStocksAndBarrel]

This is going to be VERY interesting...

 

[KG1]

Well, looks like the danger is over in SB and people can sleep just a little better tonight after this new development. The council has saved the day and cleaned up the crime and thuggery.

Well done! Enjoy your new found false sense of security and congrats on once again fooling the ill-informed into thinking that you are doing something worth while that will actually make a difference.

 

[jcwit]

Used to go S/B shopping, no more, I can only vote with my wallet.

South Bend is closer to down town Detroit than Gary anymore!

 

[daddymikey1975]

I have sent the following email to Mr. Davis (common council vice president) and am looking for the email address of WalMart's attorney to send him the same. I was not able to attend the meeting last night unfortunately.

Mr. Davis,

I am sending you an email regarding the Wal Mart store on Ireland Rd in South Bend.

I was unable to make the meeting yesterday due to some prior commitments, however, there are a few things that you might want to run past the city attorney that pertain to the 'agreement' that the city of South Bend has illegally asked/forced Wal Mart into. I am not aware of the details of the agreement, however, based on news stories, the city of South Bend common council has asked Wal Mart to agree to not sell certain types of guns and/or ammunition in it's stores. This request violated a couple different sections of Indiana State Law. As you might be aware, Last year in July, the State of Indiana passed several laws that we (in the gun community) refer to as pre-emption laws wherein a political subdivision (ie 'the City of South Bend) may not create rules, ordinances, or restrictions on several aspects of guns and ammunition. The entirety of the state laws are IC 35-47-11.1. You may read the entire text of the Indiana Code by visiting this link: Indiana Code 35-47-11.1

The portions of State Law that the City is violating are the two following sections specifically:



IC 35-47-11.1-2
Political subdivision regulation of firearms, ammunition, and firearm accessories prohibited
Sec. 2. Except as provided in section 4 of this chapter, a political subdivision may not regulate:
(1) firearms, ammunition, and firearm accessories;
(2) the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories; and
(3) commerce in and taxation of firearms, firearm ammunition, and firearm accessories.
As added by P.L.152-2011, SEC.4.

Further, section -4(4) states the following:

IC 35-47-11.1-4
Not prohibited by chapter
Sec. 4. This chapter may not be construed to prevent any of the following:
(4) The enactment or enforcement of generally applicable zoning or business ordinances that apply to firearms businesses to the same degree as other similar businesses. However, a provision of an ordinance that is designed or enforced to effectively restrict or prohibit the sale, purchase, transfer, manufacture, or display of firearms, ammunition, or firearm accessories that is otherwise lawful under the laws of this state is void. A unit (as defined in IC 36-1-2-23) may not use the unit's planning and zoning powers under IC 36-7-4 to prohibit the sale of firearms within a prescribed distance of any other type of commercial property or of school property or other educational property.

As far as I can tell, in my opinion, and I'm not a lawyer, The City of South Bend (and/or the common council) is violating the above noted laws of the State of Indiana. WalMart (legally in the State of Indiana) is allowed to sell, store, and display any firearms and/or ammunition that it deems proper based on it's own decisions as to what's best for itself.

This topic has come to the attention of 23,000 members of the State of Indiana primarily on a forum called INgunowners.com. There is a multi page thread about this very topic in which I inform the members that I'm going to send this email and await a response. I am also going to forward a copy of this email to Joe Calderon for his information as well so that he is informed of the State laws governing firearms, ammunition and commerce. There is a thread dedicated to this fiasco located here: https://www.indianagunowners.com/fo...scussion/238759-southbend_common_council.html I encourage you to read it. 23,000 members are awaiting a response from the South Bend common council as to it's seemingly illegal actions in requesting or entering into an agreement with WalMart wherein the city wants WalMart to refrain from selling certain types of firearms and/or ammunition.

Thank you for your prompt attention to this matter and for an expeditious reply.

Sincerely,

DaddyMikey1975

I will update if/when I get any reply

ETA: I just sent an email to WalMart's attorney about this including a link to Indiana Code for his perusal. Doubt anything will come of it but it's worth a try.

Bose McKinney & Evans - Attorneys, Indianapolis, Indiana

District 6: Oliver Davis | City of South Bend

links to both guys in case anyone else is interested in sending them an email

 

[9mmfan]

Nice, let us know if the idiot responds to you.

 

[jon5212]

Or walmart already knows about the law, they signed the agreement to set it in stone that South bend has violated state law. Ergo walmart did it on purpose for more evidence

 

[daddymikey1975]

Or walmart already knows about the law, they signed the agreement to set it in stone that South bend has violated state law. Ergo walmart did it on purpose for more evidence

I doubt it, but who knows... If I don't hear back in a couple days, I'll just call both guys up to make sure they got my email and either they don't care, or are too busy to worry about it

 

[jon5212]

For as much money as walmart makes im sure their lawyers could rake south bend over the coals.