Motley v. Kellogg, 3-280A48

• Decision Date: 24 September 1980
• Docket Number: No. 3-280A48,3-280A48
• Citation: 409 N.E.2d 1207
• Parties: Virgil MOTLEY, Richard Gordon Hatcher and City of Gary, Indiana, Defendants- Appellants, v. Demuth KELLOGG, Hilbert L. Bradley, Terry C. Gray, John Wilbert Richardson, Hervey Burnett, Mary Wilusz, Plaintiffs-Appellees, and John Shettle, Superintendent, Indiana State Police, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1207

409 N.E.2d 1207

Virgil MOTLEY, Richard Gordon Hatcher and City of Gary Indiana, Defendants- Appellants, v. Demuth KELLOGG, Hilbert L. Bradley, Terry C. Gray, John Wilbert Richardson, Hervey Burnett, Mary Wilusz Plaintiffs-Appellees and John Shettle, Superintendent, Indiana State Police Defendant-Appellee.

No. 3-280A48.

Court of Appeals of Indiana, Fourth District.

Sept. 24, 1980.

Rosalind G. Parr, City Atty., Charles A. Ruckman, Corp. Counsel, Gary, for defendants-appellants.

Hilbert L. Bradley and Terry C. Gray, Attys., Gary, for plaintiffs-appellees.

CHIPMAN, Judge.

Virgil Motley, Mayor Richard G. Hatcher, and the City of Gary, Indiana, collectively appeal from an order granting a preliminary injunction enjoining Virgil Motley, Acting Chief of Police, from interfering with the distribution of handgun applications and ordering him to make applications available to citizens of Gary, Indiana, who desire to apply for handgun licenses. The issue upon appeal is whether the trial court abused its discretion in granting this injunction. ¹

We hold the preliminary injunction was properly granted.

The record discloses that for approximately ten years prior to January 1, 1980, applications for handgun permits were routinely available at the office of the Gary Chief of Police. These were state forms which the Gary Police Department obtained from the Indiana State Police and then made available to Gary citizens. In an effort to control the number of handguns on the streets in Gary, however, an agreement was apparently reached between Gary's Acting Chief of Police, Virgil Motley and its Mayor, Richard Hatcher, that these applications would no longer be distributed from Motley's office, and a sign to this effect was posted on the Chief's office door announcing: "No more gun applications will be given out effective January 1, 1980. Thank you!!! Chief's Office." Thereafter, although the Gary Police Department never refused to accept applications, the application forms were no longer available there, and the record indicates citizens of Gary could not obtain these forms elsewhere.

This suit was commenced by Gary citizens who had presented themselves at the Gary Police Department and been unable to secure a gun permit application. The plaintiffs-appellees include business persons in the community who testified they felt it necessary to carry a gun because of large sums of money they transported, security guards for a private detective agency, an attorney, and a Gary homeowner. All were refused gun applications due to the department's adoption of the blanket policy that henceforth, no applications would be distributed. Among the relief sought by these plaintiffs was a preliminary injunction prohibiting the appellants from further withholding handgun license applications. The trial court issued the following preliminary injunction:

"A) John T. Shettle, Superintendent Indiana State Police is hereby enjoined from the arbitrary and capricious distribution of applications for hand gun permits; that said John T. Shettle, Superintendent shall make available to the defendant Virgil C. Motley such number of handgun permits as shall be requested by the defendant Virgil C. Motley, to be made available by the defendant Virgil C. Motley to citizens of Gary requesting same for the purpose of applying for handgun permits.

B) That said Superintendent shall make said applications available at the Police Station of the City of Gary, located at 13th and Broadway. That the Acting Chief of Police, Virgil C. Motley, shall in no way interfere with the distribution of said applications; that the said Acting Chief of Police shall immediately process any applications received as provided by statute and shall not in any way or manner delay the processing of said applications."

Appellants maintain this preliminary injunction is contrary to law because they are under no statutory duty to distribute or otherwise make available handgun permit applications. We disagree.

It is well settled the granting or denial of an injunction rests within the sound discretion of the trial court. Peters v. Davidson, Inc., (1977) Ind.App., 359 N.E.2d 556; Elder v. City of Jeffersonville, (1975) 164 Ind.App. 422, 329 N.E.2d 654. In cases of this posture, we review for an abuse of discretion; we do not review the final merits of the case since a preliminary injunction, unlike a permanent injunction, is issued during the pendency of an action before a determination is made on the merits. Indiana & Michigan Electric Co. v. Whitley County Rural Electric Membership Corp., (1974) 161 Ind.App. 492, 316 N.E.2d 584. A preliminary injunction is not a final adjudication of the merits, Rees v. Panhandle Eastern Pipe Line Co., (1978) Ind.App., 377 N.E.2d 640; consequently, a party need not show they will prevail on the merits.

"The rules governing the granting of a temporary injunction or an interlocutory order are different from those which would prevail in the hearing on the permanent injunction. It is not necessary that the proof be as complete and convincing in the granting of a temporary injunction or interlocutory order as that required at the time of the determination of the permanent injunction. It has been said that the granting of an interlocutory order is within the sound discretion of the trial court and the petitioner need only make out a prima facie case."

Jos. Guidone's Food Palace, Inc. v. Palace Pharmacy, Inc., (1969) 252 Ind. 400, 406, 248 N.E.2d 354, 357. Moreover, we will not interfere with the exercise of discretion in this regard by the trial court unless it is shown the court acted arbitrarily or the action in question constitutes a clear abuse of discretion. Negley v. Lebanon Community School Corp., (1977) Ind...