Question: Can you challenge a gun regulation that violates state law when it is not enforced and void as a matter of law?
Answer: No, since you will not have standing without the regulation being enforced.
The Hammond Municipal Code contains 4 ordinances that were in effect before July 1, 2011, that regulated firearms, ammunition and or/firearm accessories. However, Indiana passed a law that states: 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. In August of 2011, an ordinance was considered that would have amended Hammond Ordinance to bring it into compliance with Indiana Law. The mayor opposed the amendment and indicated that he would unilaterally defeat the proposed ordinance if it passed. The ordinance was eventually defeated.
On August 29, 2011, 2 residents of Hammond who possess valid Licenses to Carry a Handgun filed a proposed class-action suit against Hammond. On September 7, 2011, the mayor issued an executive order directing that neither the Hammond Police Department, nor any other city employee to enforce Hammond Ordinance Number 132.073. On September 21, 2011, the mayor issued another executive order prohibiting enforcement of any other city regulation that was in violation of either state or federal law. However, Hammond never officially repealed the Ordinances and they are still a part of the Hammond Municipal Code that is both published to the public and provided on the City’s website. The Firearm Owners moved for summary judgment on their claim, contending that the City of Hammond was strictly liable for failing to repeal the ordinances that were in violation of state law. The City responded and filed a cross-motion for summary judgment, arguing that the state law voided and superseded the ordinances, making any obligation to repeal the ordinances moot. The trial court entered summary judgment in favor of the City, finding that the state law had invalidated the ordinances so the Firearm Owners had no claim. The Firearm Owners appealed.
On appeal, the Firearm Owners contend that they and others similarly situated have been “adversely affected” by the Ordinances because they are still present in the Hammond Municipal Code and they therefore are being subjected to them. Looking at the plain language of the statute, a person can only bring a cause of action if he has been adversely affected by the adoption or enforcement of an ordinance. However, Indiana law explicitly states that any provision of an ordinance, measure, enactment, rule or policy or exercise of proprietary authority of a political subdivision … enacted or undertaken before, on, or after June 30, 2011 … is void. Therefore, regardless of whether the Ordinances were still in the Hammond Municipal Code, they became void. An individual cannot be adversely affected by a void ordinance, because by its very nature, a void ordinance is of no legal effect; null. Therefore, the Firearm Owners have not shown that they have been adversely affected by an ordinance … adopted or enforced in violation of Indiana Code section 35–47–11.1–2, so they have failed to show that they have any valid claim under Indiana Law. Thus, the trial court did not err in denying the Firearm Owners’ motion for summary judgment and granting summary judgment in favor of the City of Hammond. 985 N.E.2d 1105