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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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