Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Property Law

Legal Malpractice and Violations of Professional Rules Now Have Significant Bankruptcy Consequences

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Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law

Lawyers will now have more reasons to avoid committing malpractice. In Estate of Cora v. Jahrling, the Seventh Circuit held that a lawyer filing for bankruptcy could not discharge a malpractice judgment if it constituted defalcation while acting in a fiduciary role.

Illinois attorney John Jahrling represented ninety-year-old Stanley Cora in a real estate transaction to sell his home. Unfortunately, Mr. Cora only spoke polish, and Jahrling was unable to communicate with his client. However, the opposing attorney was conversant in Polish so Jahrling relied on him to translate and communicate with his client.

The transaction ended in a windfall for the adverse parties, with Mr. Cora agreeing to sell his home for a mere $35,000. The home was actually valued at $106,000 and the buyers eventually resold the home for $145,000. Mr. Cora also believed one term of the transaction gave him a life estate that would allow him to live in the upstairs apartment of the house free of charge. This agreement was lost in translation either intentionally or accidentally, and it was not included in the sale contract.

Mr. Cora sued in state court for malpractice, but passed away before the suit could take place. His estate then continued the lawsuit on his behalf. The estate eventually received a malpractice award of $26,000 plus costs.

Jahrling later filed for Chapter 7 bankruptcy, and Mr. Cora’s estate argued that the judgment was not dischargeable in bankruptcy under 11 U.S.C. 523(a)(4), which prohibits discharging debts obtained “for fraud or defalcation while acting in a fiduciary capacity”. The bankruptcy court found in favor of Mr. Cora’s estate, holding that his conduct not only amounted to a defalcation of a fiduciary duty, but that he clearly disregarded a risk that he would violate this duty by relying on an adverse party to meet his client’s interests.

“Defalcation” is an abstruse term that courts have been struggling to define. The Seventh Circuit noted that it is, “a word only lawyers and judges could love”. But generally, it refers to the misappropriation of money when someone breaches a fiduciary duty.

The Seventh Circuit applied Supreme Court precedent Bullock v. Bank Champaign, which held that debts occurring from defalcation while acting in fiduciary manner are not dischargeable. Bullock also established the state of mind required to show whether defalcation occurred. Under Bullock, defalcation requires gross recklessness or knowledge of the improper nature of the fiduciary behavior.

The Seventh Circuit affirmed the bankruptcy court’s analysis under Bullock that Jahrling’s violation of the professional rules of conductwas circumstantial evidence that he acted with gross recklessness. The fact that Jahrling made no effort to communicate with Mr. Cora except through adverse counsel despite the obvious risks associated with this conduct was also sufficient circumstantial evidence of his recklessness.

Committing malpractice and violating rules of professional responsibility have now become even more significant through this ruling. Unlike with legal malpractice cases, violations of professional responsibility are not proof of legal breaches of duty. Nonetheless, both violations have been held to be permissible circumstantial evidence of recklessness that ultimately may leave bankrupt lawyers on the hook for non-dischargeable judgments.

No Wonder People Do Not Like Insurance Agents

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By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Ohio National Life Assurance Corp. v. Douglas W. Davis, et al. came before the Seventh Circuit on appeal from a summary judgement decision at the trial court. Mavash Morady (Morady), a defendant in this case, was a contracted insurance agent with Ohio National Life Assurance Corp. (Ohio National). Douglas Davis (Davis), another defendant in this case, was working with Morady to defraud Ohio National by using an investment strategy known as Stranger-Owned Life Insurance (STOLI).

Davis and Morady devised a scheme where they chose people that were older because they believed that they would be prime candidates for their scheme. It would begin by Davis approaching an individual, and then asking them to take out a life insurance policy. These people would receive a compensation from Davis for taking out a life insurance policy.

Morady, being the life insurance agent, would meet with the chosen people and have them fill out all of the forms to apply for life insurance. Morady would then fraudulently alter the documents to make these potential clients look like they are younger, and healthier, than they actually were. Ohio National would confirm that these prospective clients were actually people, but they did not check further into any of the clients to ensure the paperwork was completely accurate.

Davis and Morady then would contact the clients about a month after the life insurance went into force. The two then would have the clients sign the policy over to a irrevocable trust that was managed by a company that Morady’s husband owned. The life insurance policy then was owned by the company, and the beneficiary was also the company. The clients never paid any of the premiums because the company paid the premiums for them. The company then would sell the life insurance polices to investors. By doing this, Morady was violating her employment contract with Ohio National because the employment contract does not allow for an agent to sell policies that will be involved in a scheme where a third party will pay the premium, and will thus benefit from the death of the insured.

Once Ohio National found about the scheme Davis and Morady had been carrying out, they voided out all the policies that were involved. Ohio National then filed a complaint against Davis, Morady, Morady’s husband, and other investors. The two sides filed briefs that had a common fact pattern, which means that there was no dispute to the events and how they happened. Ohio National filed a motion for summary judgement, which the court granted in their favor. The court gave Ohio National everything they asked for with the exception for the judgment against Steven Egbert (Egbert). The court reasoned that Egbert was an innocent bystander in the scheme when he made an investment into a life insurance policy, and could not have known the policy was created through fraudulent acts.

The Seventh Circuit decided that summary judgement in favor of Ohio National was correct and the damages awarded were reasonable because Davis and Morady were found to have committed a tort of civil conspiracy.

Chicago’s Rising Weed Problem – Literally

View of the Discount Inn property, from Judge Posner’s opinion.

View of the Discount Inn property, from Judge Posner’s opinion.

By: Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

No, not that kind of weed. In a recent opinion written by Judge Richard Posner, the Seventh Circuit Court of Appeals upheld Chicago’s weed ordinance yet again.

Chicago’s weed ordinance provides that “any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200.” It also states that “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.” Municipal Code of Chicago § 7-28-120(a).

Plaintiff Discount Inn, Inc., claims to have been fined over twenty times for violating this ordinance. It sued the city of Chicago claiming that the ordinance imposing fines on landowners who allow tall, overgrown weeds to take over their property is unconstitutional. Specifically, it claimed that the ordinance violates the Eighth Amendment’s prohibition of “excessive fines” and the First Amendment’s right to free speech and expression.

In the opinion, Posner first points out that the Eighth Amendment does not apply to state and local governments because it has not been incorporated through the Due Process Clause. Even if it did apply to the city, he says, the fines are not unconstitutionally excessive.

Posner also rejects the plaintiff’s First Amendment claim and even goes as far as implying that it was frivolous. “It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows,” Posner writes. “Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.”

He reasons that if the court allowed the plaintiff to make this argument, it would lead to a slippery slope in which Chicago residents were free to throw garbage on their front lawn, graze sheep there, and play loud music 24 hours a day – all in the name of the First Amendment.

Posner also takes the opportunity to advise attorneys representing future litigants to provide background information about their clients. He states that nowhere in the briefs or the record was there any information about Discount Inn except that it is incorporated in Illinois and its address is in the town of Skokie, Illinois.

Posner attempted to learn more about the property owner, but his search was unsuccessful. Although it did not prevent the court from rendering its opinion, practically all the court knew about the plaintiff was that it owned real estate in Chicago. The court did not even have any specific information about the plaintiff’s violation of the ordinance.

Thus, Posner articulated the importance of providing judges with enough background information on your client. The moral of the story is if you want to win a case, give the court enough information to rule in favor of your client.

In this case, the plaintiff’s First Amendment claim was unwarranted. But how would the city deal with residents who refuse to cut overgrown weeds as a form of protest against the ordinance? Would this be considered a valid First Amendment argument? Under Posner’s reasoning, this could create even more “snakes in the grass” for the City of Chicago as well as the court system.

Rental Gone Bad?

By: Haley Holmberg
Valparaiso University Law School
J.D. Candidate, 2017

Rental_Gone_BadThere are many reasons individuals may choose to rent instead of buy a living space. Renting often comes with a reduced financial risk, is financially more attainable, and there is often no worries of maintenance on the rental unit. There is typically a written rental agreement or contract that specifies the terms of the rental which are managed under contract law. But what happens when no written rental agreement exists? The 7th Circuit Court of Appeals set out to solve this very problem in Huren v. Tavares.

In October 2010, Nasreen Quadri bought an apartment in the West Ridge area of Chicago. Shortly after, a disturbance occurred and was investigated by police. Nasreen then decided to visit the apartment with her real estate agent and a locksmith. When Dzevad Hurem was discovered in the unit the police were called. Hurem claimed he had paid rent to Quadri’s husband, Moshim, and had obtained the keys to the apartment. Moshim denied this occurring. Hurem was unable to provide a receipt, lease, or any other paperwork referring to his residence in the unit. He refused to leave the residence. Two days later, Quadri again found Hurem in the apartment unit and called the police. Failing to have any paperwork allowing him to be there, the police arrested Hurem. Hurem then sued the arresting officers, the City of Chicago, and the Quadris for wrongful eviction and various civil rights violations. The Quadris and the City were dismissed as defendants, and the district court granted partial summary judgement in favor of all but one of the remaining officers. Hurem then dropped the case against the last officer; nonetheless, the officer later appealed.

The 7th Circuit affirmed the district court’s opinion. The Court held that Hurem’s arrest was not unlawful as they had probable cause that criminal trespass was occurring, as this was the second time police were called. At the time of the arrest the police received two conflicting stories on what was occurring. The Court found officers may rely on information from a witness they find to be credible when making an arrest, regardless if the suspect says otherwise. Further, it is possible to imagine a landlord-tenant relationship which is completely paper-free; however, the lack of existing documentation stating he was renting the apartment from the Quadri’s only helped the probable cause at the time of the arrest.

This particular case shows the importance of necessary documentation. The best bet when renting a new apartment is to ensure that a written lease has been established. Further, make sure you read the entire lease so you are aware of everything to which you are agreeing. Obtaining a copy of the lease is also important; this way if you need to look back on something you agreed to it is readily available. It will also come in handy if any court proceedings take place or if the original lease held by the landlord is lost.

God Blessed the Grass, But the State of Indiana’s a Little More Hard-Nosed

A neatly-mowed vacant lot in Bloomington, via Wikimedia Commons.

A neatly-mowed vacant lot in Bloomington, via Wikimedia Commons.

On December 22, the Indiana Court of Appeals upheld a Bloomington ordinance requiring all homeowners to keep the height of grass in their lawns to no more than 8 inches. The court rejected all three of the plaintiff’s challenges: freedom of conscience, freedom of expression, and unconstitutional vagueness.

The plaintiff in the case was Alexander Gul, a real estate agent living in Bloomington. He does not mow his lawn because of his environmental beliefs. As a result, to date he has been assessed more than $2,800 in fines and costs.

This case began with one of those fines, a $50 ticket issued to Gul in 2013. He appealed the ticket to the Bloomington Board of Public Works, which affirmed it, and appealed from there to the Monroe County Circuit Court, which also upheld the citation on summary judgment. From there he appealed to the Court of Appeals, which is likely the end of the line.

Judge John G. Baker wrote for the three-judge panel. He seems to have enjoyed doing so, leading off his opinion with an excerpt from Edna St. Vincent Millay’s “Portrait by a Neighbor,” and concluding that “after cutting through Gul’s arguments, we affirm.”

Gul first argued that the Bloomington ordinance violated the freedom of conscience clause in Article 1, Section 3 of the Indiana Constitution. The court was unpersuaded: “to rule as Gul asks us to would be tantamount to declaring nearly every statute and ordinance on the books in Indiana unconstitutional, as it is possible to find someone, somewhere, with a sincere belief that contravenes every law.”

Gul argued next that the ordinance violated his freedom of expression, both under the First Amendment of the United States Constitution and under Article 1, Section 9 of the Indiana Constitution. Neither argument persuaded Judge Baker. The US Constitutional argument failed because lawn-mowing (or non-lawn-mowing) is not the kind of expressive conduct that has been recognized as covered under the First Amendment.

On the Indiana constitutional argument, Judge Baker held that even if lawn-mowing was expressive enough, Gul’s failure to mow was an “abuse” of his expressive rights. His basis for this holding was the evidence in the record that Gul’s unmowed lawn had reduced property values in the neighborhood. Whatever its merits as a legal conclusion, this compels one to wonder whether any expressive conduct that happens to reduce property values could be banned under the Indiana Constitution.

Third and last, Gul argued that the ordinance was unconstitutionally vague, but this didn’t get far either. Even if it was not perfectly clear what “grass” meant in the Bloomington ordinance, or what “rank weeds” meant in the authorizing statute, a law is only unconstitutionally vague, the court wrote, “if individuals of ordinary intelligence cannot adequately comprehend the ordinance so as to inform them of the prohibited conduct.” And in this case, there was no question that the ordinance prohibited Gul’s unshaven lawn.

Taking a step back, there is something rather surreal about the court’s decision, in a state that allows conscience exemptions from vaccinations. After all, a city full of unmowed lawns is at worst ruggedly beautiful, while a city full of unvaccinated children is a death trap for the immunocompromised. This is especially odd in view of the court’s own mention of vaccinations in the opinion: “One is free to believe that rabies vaccinations are harmful to dogs and cats. But one is not free to refrain from vaccinating one’s pets, as that would violate Bloomington Municipal Code 7.44.010.”

But in the end, there is a crucial distinction: the Indiana legislature has seen fit to write a religious exemption for vaccinations into that same Indiana Code that grants a blanket authorization for municipal restrictions on grass height.

And the Indiana legislature is, after all, known for its wisdom in philosophical matters.

By: Samuel Henderson
Valparaiso University Law School
Patent Translator and J.D. Candidate, 2016

Do You Have a Prescription For That Easement?

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Faith Alvarez
Valparaiso University Law School
J.D. Candidate, 2015

You need a prescription for everything these days. The Illinois Supreme Court handed down its decision last week in the case of Nationwide Financial v. Pobuda. The prescription in this case was not for anything medical; rather it was for a basic gravel road. Although the landlocked Pobuda family lost their prescriptive easement battle at the trial court and on appeal, the Illinois Supreme Court re-diagnosed and ruled that their prescription was good.

In 2008, Nationwide bought the lot adjacent to the Pobudas’ home and quickly sued them for trespass. Street access to the Pobudas’ property had been blocked by mature trees, shrubs, and utility equipment (installed in 1957 and serving both properties). They simply could not get from the street to their home without crossing a corner of Nationwide’s newly acquired property. They crossed a gravel road that they had used without incident for over 22 years, one that the mail man, the garbage man, and the meter reader used for over 22 years as well.

Yet the trial and appellate courts ruled in favor of Nationwide because the Pobudas did not establish that their use was exclusive to the point of dispossessing the owner. Fortunately for the Pobudas, the Illinois Supreme Court disagreed finding that their use of the gravel road satisfied the elements of exclusivity and adversity necessary to establish a prescriptive easement.

To establish an easement by prescription, the use of the road must have been—for a 20-year period—adverse, uninterrupted, exclusive, continuous, and under a claim of right. Nationwide claimed that because two people cannot possess the same thing at the same time, the Pobudas would have had to use the road exclusively to obtain an easement. But gaining an easement by prescription merely means that the true owner’s right to stop someone from traveling over their property has been divested.

The Pobudas and their visitors regularly crossed the corner of the Nationwide property in an open, visible, notorious, peaceful, and uninterrupted adverse manner since 1986. Furthermore, the Pobudas regularly plowed snow, mowed grass, filled in low spots, raked leaves, swept debris, picked-up sticks, patched, and seal coated the surface of the gravel road on Nationwide’s property. The Supreme Court concluded by granting the Pobudas’ a prescriptive easement for the gravel road.

With their prescriptive easement in force, Nationwide and the Pobudas can now simultaneously use the same gravel road. But doesn’t it seem like this is a compromise that could have been reached before suing each other?

Wisconsin Man Maintains Over Decade Long Zoning Feud

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By: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

It’s hard to say what exactly makes a good topic worthy of blogging. Obviously there are some factors that never can be discounted. The importance of the topic, the relevance of the news to your audience, and timing are all important factors to not just a legal blog but to any sort of news site, and while a new landmark Supreme Court decision or life altering federal statute would definitely be blogworthy, sometimes it is more about the colorful background and characters that make a case truly blogworthy. This blog has covered the frivolous filings of the dancing banana, and now we cover a very disgruntled filing by a very angry ex-employee of Chippewa County, Wisconsin.

Mr. Blaine Kvapil was employed as a seasonal employee for the Chippewa County Highway Department for two years until June 2008. Chippewa County employed all of its seasonal workers as “at will” employees, meaning they could be fired at any time. The county made this fact abundantly clear. It included an orientation for new employees, an employee manual informing him of his employment situation, and a form requiring employees to acknowledge they understood that they were an at will employee. During the course of Mr. Kvapil’s initial trial, he admitted that he knew he was an at will employee.

Mr. Kvapil was eventually let go from his job; that firing from his job is what his lawsuit stemmed from. More specifically, according to the Chippewa Herald, Mr. Kvapil sued for multiple federal civil rights violations, back wages, lost future earnings, emotional distress, loss of reputation, punitive damages, and reinstatement to his former position.

The lost job was only half of the story though. A long standing feud between the Chippewa County Department of Planning and Zoning and Mr. Kvapil provided the real reason for the lawsuit. For over eight years since 2000, Mr. Kvapil had been on notice from the head of the Zoning Department, a Mr. Clary, that Mr. Kvapil was improperly storing a number of unlicensed vehicles and illegally operating a scrap yard on some of Kvapil’s property that was only zoned for agricultural use. Clary sent Mr. Kvapil a number of letters notifying him he was in violation of these ordinances, as well as personally reaching out to Mr. Kvapil by visiting the property and calling him.

Like any reasonable person, Mr. Kvapil reacted cool and rationally to the accusations of zoning violations. According to the record, Mr. Kvapil threatened to set up bear and booby traps all over his property in order to hurt Clary if he ever tried to set foot on Kvapil’s property. Mr. Kvapil threatened to break Clary’s legs. Mr. Kvapil went to Clary’s office and threatened to show up at Mr. Clary’s house. Mr. Kvapil called the office and asked for “Asshole” to answer the phone repeatedly.

Despite a memo being sent to the County Board from Clary discussing Kvapil’s behavior in 2004, nothing was ever done until 2008, when the sheriff and Clary served a warrant on Kvapil to search his property. Two zoning violations citations and two weeks later, Mr. Kvapil showed up at the zoning office and threatened Clary again, in person. Afterwards, Mr. Kvapil was suspended for only a single day even though there was eight years of threatening abusive behavior. It wasn’t until a week and a half later when Mr. Kvapil ran somebody off of the road while working for the county that he was actually terminated. Mr. Kvapil responded with a lawsuit over his lost job, suing not only his employer but also Clary, the Department of Planning and Zoning and the county sheriff.

The Western District of Wisconsin was not very sympathetic to Mr. Kvapil’s myriad claims. The judge there granted summary judgment to the county, meaning that the court granted the county victory in the lawsuit without a trial. Mr. Kvapil appealed the decision, but the Seventh Circuit Court of Appeals was no more swayed or sympathetic than the trial court. In affirming the lower court’s decision against Mr. Kvapil, District Judge St. Eve wrote that Mr. Kvapil’s argument that he had been denied a property interest in his job were completely unfounded in both precedent and fact. Under Wisconsin law and supported by a long history of court precedent, at will employment does not establish a property interest that is protected by 14th Amendment Due Process requirements. Since Mr. Kvapil was an at will employee that worked seasonally, he therefore possessed no property interest in his job, nor should he have expected to even be called back year to year to work.

Mr. Kvapil’s suit in Kvapil v. Chippewa County is not perhaps the most important case ever decided, but makes for a good read. If you think that losing at both trial and appeal level would cause Mr. Kvapil’s feud to end, guess again. Just this year, Mr. Kvapil continued on a lone crusade for justice against the zoning office. According to the town of Wheaton’s town minutes, Mr. Kvapil has moved to have Wheaton withdraw from the county zoning office and establish their own zoning office due to several problems he has had obtaining permits. He even called for a special town meeting that everyone in the town would receive a personal invitation to. This motion does not seem likely to go very far, as Mr. Kvapil’s nemesis Mr. Clary intervened in the form of a letter, explaining that the earliest Wheaton could withdraw would be in May of 2015, and as the next town hall meeting showed, nobody seemed very on board with the very expensive idea. No matter what happens though, one thing is for sure, Mr. Kvapil is not done fighting.

U.S. Supreme Court Examines Abandoned Railroad Grades

By: Thomas McNamee
J.D. Candidate, 2015
Valparaiso University Law School

On March 10, 2014, the United States Supreme Court handed down a decision addressing rightful owners of abandoned railroad lines, looking at whether or not the railroad companies held an easement or a “right of way” under the General Railroad Right-of-Way Act of 1875.

The court begins with a history of the issue, noting that in the mid 1800’s the United States began granting private railroad companies rights of way over public lands in the pursuit of moving west.  Land containing the rights of way began to be deeded to settlers, while the rights of way were still in effect. As the court summarizes, the settlers remained but the railroad companies did not, often abandoning the grades they once operated on. The case examines the issue of what happens to the property, granted under the General Right-of-Way Act of 1875, when the railroad company abandons it. More specifically, who the property belongs to: the federal government, or the private landowner who had acquired the property “below” the right of way through conveyance by the federal government. The Brandt family was one such private landowner who received the property subject to the Right-of Way Act, and when the railroad company abandoned the grade with federal approval, the United States filed a quiet title action to regain the property. The Brandt’s argued that the right-of way was an easement on their property, and that the easement extinguished when the railroad abandoned it, meaning the property was theirs.

In an opinion written by Chief Justice Roberts, the court agreed with the Brandts and held that the right of way was an easement that was terminated by the railroad’s abandonment, leaving the land unburdened to the private landowner. Because the interest in the land that was granted to the railroad company pursuant to the 1875 Act was only an easement that ended when the grade was abandoned, the United States no longer holds what they argued was an “implied reversionary interest” in the land. The court took note that the issue had been addressed previously, in a case in which the United States argued on the other side. In a case involving rights to drill for oil on a grade, the United States argued and won on the idea that the 1875 Act merely created an easement, leaving the lands to the government. Great Northern R. Co. v. United States, 315 U.S. 262 (1942). The court held “that the 1875 Act clearly grants only an easement, and not a fee.” Id at 271. Justice Sotomayor argues in her dissent that the decision could destroy the legality of thousands of miles of former right of ways that have now become public trails for recreation and transportation. However, the other justices were hesitant to allow the federal government to receive exemption from a rule it had vigorously argued for previously.

As Sotomayor points out, the decision could be burdensome for the federal government down the road. For private landowners, it seems to be a victory in Lockean Theory: Life, Liberty, and Property.

 

Stand On Your “Ground”: Legally Shooting Guns on Private Land

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By: Faith Alvarez
Valparaiso University School of Law
J.D. Candidate, 2015

Florida’s Stand Your Ground law gained notoriety with the Zimmermann trial. The controversial law continues to draw attention. Just this week, a Florida jury convicted Michael Dunn, who claimed his actions were justified under the Stand Your Ground law, feeling threatened by a car of unarmed black teenagers listening to rap music at a gas station. (Dunn shot at their car 10 times, then he fled the scene and instead of calling the police, he went to a hotel with his girlfriend and ordered pizza.) In summary, it is clear that shooting guns is important to Floridians.

It comes with little surprise then that you can legally shoot guns in your backyard in Florida. The Miami Herald recently published a story about a man who regularly shoots at a makeshift target inside his yard, which is only fenced in with chain-link, in a residential neighborhood.

“Without any oversight, somebody’s neighbor could set up a gun range and invite his friends over and have a good old time shooting,” said longtime Monroe County Commissioner George Neugent. “That’s a little scary situation, and I say that as a gun owner and somebody who believes in the Second Amendment.”

Even Varrieur said he was surprised to discover that he could shoot with few restrictions and with no mandatory safety requirements. “It’s almost the wild, wild west again when we go back to firing wherever you want, whenever you want,” Ramsay said.

Florida statute 790.15 sets the parameters for discharging firearms in a public place, like a highway or street. Florida courts interpreted this statute in C.C. v. State, 701 So.2d 423 (Fl. Ct. App. 1997). The court held that the backyard of a home is not a “public place” within meaning of this statute, making it completely legal to discharge a firearm in your yard.

But what about Indiana? Can Hoosiers legally shoot guns in their yards too? Well yes – er probably. Indiana statute 14-22-10-1 states that if you have consent from the owner, you can “shoot with any kind of firearm or archery equipment” on private land. However, local governments can regulate shooting by issuing ordinances. For example, a city may have an ordinance restricting shooting to land outside city limits or land containing at least 10 acres.

Seems reasonable. But what if I want to hunt without leaving the city limits and getting permission from the landowner?

In January, a proposed constitutional amendment to protect hunting and fishing passed in the Indiana Senate by a 43 to 4 vote. The NRA and Indiana legislators want to promote more gun shooting in Indiana. State Senator, Brent Steele,  has been quite outspoken, explaining that this amendment is to protect hunters from the “tentacles” of organizations such as the Humane Society, who want to end hunting.

“One never knows what might be coming down the road sometime in the future, particularly when there are well-funded, aggressive organizations out to advance their mission of removing meats from the American diet.”

The impact of the proposed constitutional amendment is unclear, however, it would likely be used in two ways. First, it could be used as a defense for individual violations of hunting laws. Second, it could be used to challenge new or existing laws and regulations in the courts. The second is more troubling.

If the right to hunt becomes an inalienable right as part of the state constitution, hunting practices would become very difficult to regulate because it would be subject to strict scrutiny as opposed to the current rational basis standard. Currently, many regulations control hunting: licensing requirements, designated seasons, game preserves, and requirements of educational courses aimed at hunting safety. If this proposed amendment passed, these regulations could all be held as unduly burdensome on the right to hunt and thus, unconstitutional.

In light of the recent shootings at Purdue and the Elkhart grocery store, why is Indiana making this strong move to protect the right to hunt?
The senator promoting the bill said that recent statistics show more than 291,000 in Indiana residents participate in hunting and fishing. He claims this has helped create about 5,085 jobs and has an economic impact of more than $530 million.

Wow! That averages out to hunters and fishers spending about $1,800 and every hunting job worth about $106,000. It is good for the economy to stand on your “ground” and shoot a gun. With such impressive statistics, the potential for collateral damage is more understandable.

How can we balance the right to bear arms and the concern for public safety? Why has the Indiana legislature bifurcated the question?

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