7th Circuit: Officer entitled to qualified immunity

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Because Indiana's conversion statute doesn't appear to have an implied-consent defense, the 7th Circuit Court of Appeals ruled a couple's excuse for possessing another person's camping gear was irrelevant to the probable-cause determination to arrest them.

In Jo Whitlock and Jesse Whitlock v. Shawn A. Brown, individually and as an Officer for the Indiana Department of Natural Resources, No. 08-2800, the Whitlocks appealed summary judgment for Officer Shawn Brown in their suit alleging he violated their Fourth Amendment rights by omitting exculpatory facts from his warrant application to arrest the couple.

The Whitlocks had been camping in 2005 and found several items at a campsite. Believing they were left behind, they put them in their car to return them to the park office, but ran errands and forgot to turn them in until several hours later. While gone, the owner reported his belongings missing.

Brown thought there was probable cause for conversion charges and applied for an arrest warrant. The Whitlocks were arrested later, but the charges were eventually dropped.

The District Court granted summary judgment for Brown, holding he was entitled to qualified immunity because a reasonable officer would have believed there was probable cause. The 7th Circuit Court of Appeals affirmed, but based on a different analysis. Instead of focusing on whether Brown had probable cause, the Circuit Court examined whether he intentionally or recklessly withheld material information from the warrant application.

The Whitlocks claimed Brown only sent an affidavit with scant information on the incident to the prosecutor and didn't send the more detailed case report. That report did leave out the Whitlocks' explanation that because of an argument in the car with their daughter, they forgot to turn the bags in as they were leaving the park.

Brown testified he provided his case report to the prosecutor; the prosecutor's file was destroyed in 2006 for space reasons. There's no evidence that Brown withheld his case report from the prosecutor and it's just pure speculation on the part of the Whitlocks, wrote Judge Diane Sykes.

The Circuit judges also had to decide whether the omitted explanation was material to the warrant-issuing judge's probable-cause determination. They supposed that an Indiana court might hold that finders of lost property have implied consent from the owner to exert control for the limited purpose of returning it. If that was the case, then leaving out the Whitlocks' explanation may have been a material omission, wrote the judge, and would support they didn't exercise unauthorized control over the bags.

But there aren't any Indiana cases the judges could find establishing an implied-consent defense to a charge of criminal conversion.

"Given the breadth of Indiana's criminal-conversion statute and the apparent absence of an implied consent defense, the Whitlocks' excuse was irrelevant to the probable-cause determination - or at least of such questionable relevance that Brown is entitled to qualified immunity. At best, Indiana law is undeveloped in this area," she wrote.


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.