Man removed by PD for carrying at St. Joe County polls

[GodFearinGunTotin]

The government USED illegal force. So why should we merely say "tsk tsk" and let the tinpot tyrant have their way?

Your person and your rights belong to you more than your house or your car, and are more difficult to regain once lost. Yet you would only punish the theft of your car, and submit to the theft of your rights?? Why?

Your RIGHTS are guaranteed, but your car isn't. So why would you be willing to punish someone for stealing something for which you have no guarantee, but that which is guaranteed is to be sheepishly handed over?

Please explain to me how depleting the public treasury restores those lost rights. Allow me to more clearly state my position: public officials that violate the public trust, behave in illegal manner, etc should be punished to the fullest extent of the law, department policy, etc. I'm not sure how much clearer I can state it.

Now please explain to me how robbing the taxpayer of his/her descretionary income (ie liberty) to compensate a victim of a crime by the .gov (again assuming no financial loss) does the people any favors.

 

[griffin]

Now please explain to me how robbing the taxpayer of his/her descretionary income (ie liberty) to compensate a victim of a crime by the .gov (again assuming no financial loss) does the people any favors.

In our legal system the victim must be made whole. Sometimes there is no way to actually compensate the victim or make him whole, hence money is the way our legal system does that.

 

[CathyInBlue]

There is also the political dimension to a government acting in a rogue capacity, violating the human, civil, Constitutional, and legal rights of a minority of its citizens. Yes, those government agents responsible for those violations must be brought to account for it, and the remuneration of their victims needs to be at those agents' expense, but if the punishment for violating the very law they were put in place to administer does not include the removal of them from their positions of power for all time, then, ultimately, the people responsible for those crimes... are the entire electorate.

When the public re-elects known criminals to places of high office, then they need to know that they, too, will be held accountable for making the victims of those officers whole.

 

[Hoosierdood]

Think about it this way... most Americans are apathetic at best until something actually affects THEM. If we are to change those who hold public offices, we must get the American people involved. When public officials violate their office and the Constitution... and we make the taxpayers foot the bill for the unethical and/or illegal actions of said officials... how long do you think it will take before Americans wake up?

I say we go ahead and continue to force the taxpayers to foot the bill for the actions of public figures. Sooner or later, the public will say enough is enough and might actually work for change.

 

[GodFearinGunTotin]

There is also the political dimension to a government acting in a rogue capacity, violating the human, civil, Constitutional, and legal rights of a minority of its citizens. Yes, those government agents responsible for those violations must be brought to account for it, and the remuneration of their victims needs to be at those agents' expense, but if the punishment for violating the very law they were put in place to administer does not include the removal of them from their positions of power for all time, then, ultimately, the people responsible for those crimes... are the entire electorate.

When the public re-elects known criminals to places of high office, then they need to know that they, too, will be held accountable for making the victims of those officers whole.

Think about it this way... most Americans are apathetic at best until something actually affects THEM. If we are to change those who hold public offices, we must get the American people involved. When public officials violate their office and the Constitution... and we make the taxpayers foot the bill for the unethical and/or illegal actions of said officials... how long do you think it will take before Americans wake up?

I say we go ahead and continue to force the taxpayers to foot the bill for the actions of public figures. Sooner or later, the public will say enough is enough and might actually work for change.

Cathy/Dood- As usual, articulate and thoughtful comments, thanks. However thompal was picking a nit that I was not quite comprehending and thus was trying to learn his thoughts on that topic.

I do understand that that's the way our justice system works. I happen to disagree with the philosophy. Maybe it's because of my general disdain with the fact the government has the power to take from one person and give to another.

 

[Flyguy]

Cathy/Dood- As usual, articulate and thoughtful comments, thanks. However thompal was picking a nit that I was not quite comprehending and thus was trying to learn his thoughts on that topic.

I do understand that that's the way our justice system works. I happen to disagree with the philosophy. Maybe it's because of my general disdain with the fact the government has the power to take from one person and give to another.

This is a power that they have given themselves. And is not in the constiution.

This is the root problem.

 

[smellslikemichigan]

here is the complaint filed as of this morning by my brother and his attorney:
STATE OF INDIANA ) IN THE SAINT JOSEPH COUNTY COURT
) SS:
COUNTY OF ST. JOSEPH ) CAUSE NUMBER:


CLAY C. EDINGER, )
)
Plaintiff, )
)
v. )
)
THE ST. JOSEPH COUNTY ELECTION )
BOARD, )
THE BOARD OF COMMISSIONERS OF )
ST. JOSEPH COUNTY, )
THE ST. JOSEPH COUNTY POLICE )
DEPARTMENT, )
THE WARREN TOWNSHIP BOARD )
OF TRUSTEES, and )
THE WARREN TOWNSHIP FIRE )
DEPARTMENT, )
)
Defendants. )


COMPLAINT

Plaintiff, Clay C. Edinger (“Plaintiff”), pursuant to §35-47-11.1-1, et seq., by and through his undersigned counsel, alleges and says as follows:

1. Plaintiff brings this action against the St. Joseph County Election Board, the Board of Commissioners of St. Joseph County, the St. Joseph County Police Department, the Warren Township Board of Trustees, and the Warren Township Fire Department (“Defendants,” collectively), based on Defendants’ violation of Ind. Code §35-47-11.1-2, et seq., as more fully set forth below.



BACKGROUND

2. Indiana law has long prohibited most local regulation of firearms by political subdivisions in an attempt to ensure a uniform and consistent system of regulating firearms in Indiana. Otherwise, Indiana residents are at risk of unknowingly and unintentionally violating conflicting and inconsistent firearm regulations imposed by different political subdivisions throughout the State.

3. Prior to July 1, 2011, Ind. Code §35-41-11-2 (now repealed) identified two exceptions to the general rule that State law preempts local governments’ attempts to regulate firearms: a) a political subdivision could use its zoning powers to prevent the sale of firearms within two hundred (200) feet of a school under most circumstances; and b) a political subdivision could regulate firearms on land, in buildings or on other real property owned or managed by the political subdivision.

4. In recent years, the Indiana General Assembly recognized that different political subdivisions in Indiana were regulating firearms in widely varying ways on municipal property or in local government buildings, so that lawful Indiana gun owners remained in jeopardy of unknowingly and unintentionally violating conflicting and inconsistent ordinances in effect in different local jurisdictions throughout the State, which was directly inconsistent with the original intent of the preemption statute. As such, the General Assembly substantially amended the scope of the statute in 2011.

5. Effective July 1, 2011, the preemption statute, now codified as Ind. Code §35-47-11.1-1, et. seq., disallows most regulation of firearms on property or in buildings owned or managed by a political subdivision (although certain exceptions, including the zoning powers identified above, remain in place).

6. The new statute prohibits most local regulation of firearms, ammunition and firearms accessories, as follows:

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.

Ind. Code §35-47-11.1-2.

7. In addition, any attempt to regulate firearms by a political subdivision, in conflict with Ind. Code §35-47-11.1-2 above, is void and unenforceable:

Any provision of an ordinance, measure, enactment, rule, or policy or exercise of proprietary authority of a political subdivision or of an employee or agent of a political subdivision acting in an official capacity:
(1) enacted or undertaken before, on, or after June 30, 2011; and
(2) that pertains to or affects the matters listed in section 2 of this chapter;
is void.

Ind. Code §35-47-11.1-3.

8. The preemption statute provides a remedy to persons adversely affected by the illegal regulation of firearms by a political subdivision:

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.

Ind. Code §35-47-11.1-5.


THE PARTIES

9. Plaintiff is a lawful resident of Warren Township and St. Joseph County, Indiana, United States of America.

10. Plaintiff is a lawful owner of a firearm under the laws of the State of Indiana and holds a valid License to Carry Handgun issued by the Superintendant of the Indiana State Police in full compliance with Ind. Code §35-47-2-3.

11. Warren Township is a political subdivision within the meaning of Ind. Code §3-5-2-38 and §35-47-11.1-1 and is located in St. Joseph County, State of Indiana. Warren Township operates by and through the acts and/or omissions of Defendants, the Warren Township Board of Trustees (“Board of Trustees”) and/or the Warren Township Fire Department (“WTFD”).

12. St. Joseph County is a political subdivision within the meaning of Ind. Code §3-5-2-38 and §35-47-11.1-1 and is located in the State of Indiana. St. Joseph County operates by and through the acts and/or omissions of Defendants, the Board of Commissioners of St. Joseph County (“Board of Commissioners”), the St. Joseph County Election Board (“Election Board”) and/or the St. Joseph County Police Department (“SJCPD”).

13. The Election Board was created by statute, Ind. Code §3-6-5-1, and has the legal duty to “conduct all elections and administer the election laws within [St. Joseph] county” pursuant to Ind. Code §3-6-5-14(a)(2).

JURISDICTION AND VENUE

14. Jurisdiction and venue are proper in this Court for the following reasons:

A. Plaintiff is a resident of St. Joseph County, State of Indiana.

B. Each defendant is a governmental entity located in St. Joseph County, State of Indiana.
C. Rules, policies or exercises of proprietary authority were enforced against Plaintiff by agents and/or employees of Defendants that violated Ind. Code §35-47-11.1-2, above. Those violations occurred in St. Joseph County, State of Indiana, as more thoroughly set forth below.

FACTUAL ALLEGATIONS

15. On May 8, 2012, primary elections were conducted in St. Joseph County and overseen by the Election Board.

16. At approximately 9:40 a.m. on May 8, 2012, Plaintiff arrived at his designated polling station, the Warren Township Fire Station #2, located at 59330 Crumstown Highway, North Liberty, Indiana. That fire station is owned and/or operated by and through the Board of Commissioners, the Board of Trustees and/or WTFD.

17. At the time that Plaintiff arrived at the polling station, and consistent with his daily practice, Plaintiff had in his possession a legally-owned handgun. He also had in his possession his valid Indiana License to Carry Handgun.

18. Plaintiff entered the “chute” of the polling station and handed his valid Indiana driver’s license to a poll worker. The poll worker accepted the Plaintiff’s driver’s license and began to look up Plaintiff’s name in the roll of registered voters.

19. A person identified as “T. Vanoverbergh” approached Plaintiff and informed Plaintiff that he “could not have a gun in the building.” Plaintiff inquired as to the authority that Mr. Vanoverbergh was relying upon to make that statement. Mr. Vanoverbergh responded with various and conflicting answers, including: a) “It’s against my policy because I’m in charge here;” b) “It’s against Warren Township policy to have a gun in a fire station;” c) “Federal law prohibits guns in polling places;” d) “It’s illegal to ‘open carry’ in Indiana;” e) “State law prohibits guns in fire stations;” and f) “State law prohibits guns at polling places.” At all relevant times, Mr. Vanoverbergh was acting as an agent and/or employee of the Election Board, the Board of Commissioners, the Board of Trustees, WTFD and/or the SJCPD.

20. Mr. Vanoverbergh then ordered Plaintiff to leave the polling station and Plaintiff complied by walking outside the building. Mr. Vanoverbergh then informed Plaintiff that members of the SJCPD were already in route to the polling station at the request of Mr. Vanoverbergh.

21. Thereafter, Officer Banicki of SJCPD arrived and informed Plaintiff that the reasons that Officer Vanoverbergh had refused to allow Plaintiff to vote were valid and that Plaintiff could not vote while in possession of a firearm. Officer Banicki also informed Plaintiff that if Plaintiff persisted in his attempts to vote without relinquishing his firearm, Banicki would “revoke your permit on the spot, confiscate your handgun and force you to appeal that decision in Indianapolis.” At all relevant times, Officer Banicki was acting as an agent and/or employee of the Election Board, the Board of Commissioners, the Board of Trustees, WTFD and/or the SJCPD.

22. Another agent and/or employee of WTFD then approached with a laptop computer and stated that he was attempting to identify a law that Plaintiff was violating by not concealing his handgun and/or by possessing a firearm at a polling place and/or possessing a firearm at a fire station. No such law was identified by that individual.

23. Sgt. K. Glueckert of the SJCPD then arrived and took possession of Plaintiff’s License to Carry Handgun and Indiana driver’s license. Sgt. Glueckert eventually received word, reportedly from an attorney at the Election Board, that Ind. Code §35-47-2 prohibited Plaintiff from carrying a firearm in a polling station. Plaintiff knew that said statute was entirely inapplicable to the circumstances, but complied with the various orders of the Defendants that he not enter the polling station to vote. At all relevant times, Sgt. Glueckert and the unidentified attorney who communicated with Sgt. Glueckert were acting as agents and/or employees of the Election Board, the Board of Commissioners, the Board of Trustees, WTFD and/or SJCPD.

24. Later in the day, Plaintiff confirmed that Ind. Code §35-47-2 did not prevent him from carrying a firearm at a polling station or a fire station and returned to the polling station at approximately 5:40 p.m. in another attempt to exercise his legal right to vote. As Plaintiff approached the building, the poll inspector, Mr. Gus Tillman, was standing at the door of the polling station, blocking the way inside. Plaintiff stated to Mr. Tillman, “I’d like to vote tonight. Will you let me do that?” Mr. Tillman responded, “I cannot let you come in. I had the election board call me. I cannot let you come in.” As a result, Mr. Tillman denied Plaintiff his legal right to vote, specifically and solely because Plaintiff was legally carrying a firearm. At all relevant times, Mr. Tillman was acting as an agent and/or employee of the Election Board, the Board of Commissioners, the Board of Trustees and/or the WTFD.

25. A few minutes later, Officer Chuck Flanagan of SJCPD arrived and approached Plaintiff. Officer Flanagan informed Plaintiff that he could not vote while carrying a firearm. At that point, Plaintiff again left the premises, having again been prevented from exercising his legal right to vote. At all relevant times, Officer Flanagan was acting as an agent and/or employee of the Election Board, the Board of Commissioners, the Board of Trustees, WTFD and/or SJCPD.

26. No legal justification existed for Defendants, through their agents and/or employees, to deny Plaintiff his right to vote while carrying a legally-possessed and carried firearm.

CAUSE OF ACTION
27. Plaintiff asserts a single cause of action in this matter: the statutory cause of action defined by Ind. Code §§35-47-11.1-5 through 35-47-11.1-7:
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.

* * *
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.
* * *
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.

28. As set forth in Paragraphs 15 through 25, above, Defendants, by and through their agents and/or employees and on behalf of St. Joseph County and Warren Township as political subdivisions, enforced “a measure, enactment, rule, policy or exercise of proprietary authority” against Plaintiff, specifically:

A. Defendants adopted and enforced an illegal policy that required Plaintiff to relinquish his legal right to carry a firearm in order to vote.

B. Defendants adopted and enforced an illegal policy that prevented Plaintiff from carrying a firearm into a polling station.

C. Defendants adopted and enforced an illegal policy that prevented Plaintiff from carrying a firearm into a fire station. (“Illegal Policies,” collectively),

29. The Illegal Policies set forth above each constitute the regulation of “firearms” and/or the “carrying of firearms” in violation of Ind. Code §35-47-11.1-2, above.

30. Plaintiff has been adversely affected by Defendants’ Illegal Policies, as defined by Ind. Code §35-47-11.1-6. Specifically, Plaintiff was “subject to” the Illegal Policies set forth in Paragraph 26, inter alia, by being ordered by Defendants to relinquish his firearm in order to vote and/or for being prevented from carrying a firearm into the polling station by Defendants, through their agents and employees. In addition, Plaintiff was “subject to” the Illegal Policies by being physically present within the boundaries of Warren Township and/or St. Joseph County where said Illegal Policies were “adopted or enforced” against Plaintiff, as defined in Ind. Code §35-47-11.1-5 and 35-47-11.1-6.

31. As a result of the above, Plaintiff has incurred actual damages and/or is entitled to liquidated damages.

NO CAUSE OF ACTION IN TORT IS ALLEGED

32. Plaintiff does not assert any cause of action based on any theory of tort, however named, on behalf of himself or any other person. Plaintiff’s sole cause of action is based on Defendants’ violation of Ind. Code §35-47-11.1-2, et seq.
RELIEF REQUESTED
33. WHEREFORE, Plaintiff requests judgment on his behalf, and against the Defendants, and each of them, awarding the following relief:
(A) The greater of the following:
(1) actual damages, including consequential damages, or
(2) three (3) times Plaintiff’s’ attorney’s fees as liquidated damages.
(B) Declaratory relief, in the form of a Declaratory Judgment finding the Illegal Policies to be void and unenforceable under Ind. Code §35-47-11.1-2, et. seq.
(D) Injunctive relief, ordering Defendants to refrain from enforcing the Illegal Policies or any other “ordinance, measure, enactment, rule, or policy or exercise of proprietary authority” that violates Ind. Code §35-47-11.1-2, et. seq.
(E) Attorneys’ fees, as authorized by Ind. Code §35-47-11.1-7.
(F) Costs of this action, including fees, as authorized by Ind. Code §35-47-11.1-7.
(G) Such other relief as the Court deems just and proper in the premises.


Guy A. Relford
Attorney No. 6450-49

Attorney for Plaintiff, Clay C. Edinger

Law Offices of Guy A. Relford
4181 First Flight Circle
Zionsville, IN 46077
(317) 450-8252
(317) 873-9193 (facsimile)
grelford@global-lit.com

 

[Expat]

here is the complaint filed as of this morning by my brother and his attorney:
https://word.office.live.com/wv/Wor...vZnixvoidB-YWTYD1ookkFTw&title=Complaint.docx

Just curious. Is there going to be a separate action filed in Federal Court for violation of his voting rights? Was any attempt made by either side to settle the matter pre-suit?

 

[KG1]

here is the complaint filed as of this morning by my brother and his attorney:
https://word.office.live.com/wv/Wor...vZnixvoidB-YWTYD1ookkFTw&title=Complaint.docx

Thanks for the update. It looks like a pretty solid case presentation.

 

[smellslikemichigan]

Just curious. Is there going to be a separate action filed in Federal Court for violation of his voting rights? Was any attempt made by either side to settle the matter pre-suit?

no, the federal angle was considered, but it would be unlikely that the federal court would touch it because they will not speak on a state firearms matter.
to my knowledge, there was no pre-suit discussion. i don't see why the parties named would approach a person before they file a lawsuit.

 

[long coat]

Are any of the named "going to jail" for breaking the Indiana voting laws? A few were listed on here.

 

[MikeDVB]

Are any of the named "going to jail" for breaking the Indiana voting laws? A few were listed on here.

That, unfortunately, would be up to the prosecuting attorney's office. I'd venture to guess they are going to decline to prosecute without some.... eh.... pressure.

 

[Expat]

That, unfortunately, would be up to the prosecuting attorney's office. I'd venture to guess they are going to decline to prosecute without some.... eh.... pressure.

and that pressure is undeliverable. You have a Democrat prosecutor in a Democrat Count who is not going to prosecute other members of the Democrat machine that runs St. Joseph County.

 

[jon5212]

I think a large group of people should put some pressure on them.

 

[Titanium_Frost]

I think a large group of people should put some pressure on them.

At this point, there is. The power of the people via the General Assembly is now coming crashing down on their asses via the Preemption Act IC 35-47-11.1

That is some significant pressure.

 

[actaeon277]

Still seems like there should be something about being denied his vote. Unless I missed it, it all looked about the PreEmption Law.
But, I'm 100% sure Guy knows better than me.

 

[LockStocksAndBarrel]

I was hoping for a federal case on the denial of his voting rights, too. A felony conviction or 5 would really get the educational process going among the county election boards, the police agencies, fire departments and municipal attorneys.

Maybe patience will bear this out. I hope so.

I have complete faith in Guy!

 

[ghuns]

How are the defendants in this case not begging for an out-o-court settlement? There is so much fail to go around. Do you have to prove that the defendants acted with malice? Or is their blatant ignorance enough?

 

[CathyInBlue]

Blatant ignorance will suffice. It doesn't matter their justifications, motivations, or purposes in acting illegal, just that they acted illegally.

 

[jeremy]

I personally think they should serve some Jail Time, and be stuck with the term of Felon....