ILNews

Boy can't sue for lack of probable cause

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The 7th Circuit Court of Appeals declined to decide whether Indiana provides a plaintiff an adequate post-deprivation remedy despite the state's recognition of an affirmative immunity defense for government workers acting in the scope of their employment.

In Michael Tully v. Rush County Prosecutor Paul Barada, et al., No. 09-3237, Michael Tully sued prosecutor Paul Barada and probation officer Catherine Custer under 42 U.S.C. Section 1983, claiming they violated his Fourth and 14th Amendment rights by summoning him to court and initiating juvenile proceedings without probable cause. A deputy sheriff stopped the car Tully and a friend were in to investigate shots fired in the area. In the car he found a spotlight, rifle, and dead raccoon. The boys admitted they knew it was wrong to shoot from a roadway.

Tully was adjudicated as a delinquent child, but the Indiana Court of Appeals reversed due to insufficient evidence. Tully then filed his federal claims. The District Court dismissed, ruling that a court summons is not a "seizure" under the Fourth Amendment and there isn't a constitutional right not to be prosecuted without probable cause.

The United States Supreme Court hasn't recognized nor foreclosed the possibility of plausibly asserting a right not to be prosecuted without probable cause under Section 1983. One reason why this issue remains "uncrystallized" among Courts of Appeals is because prosecutors can render the question moot by claiming absolute immunity, wrote Judge William Bauer. But Barada and Custer failed to raise that defense in the District Court. In fact, Tully overcame the affirmative defenses of absolute immunity, the existence of probable cause, and res judicata because Barada and Custer waived all of them.

"So we must reach the merits of the issue to which the parties devote their arguments, which is whether a plaintiff may assert a federal right not to be summoned into court and prosecuted without probable cause, under either the Fourth Amendment or the Fourteenth Amendment's Procedural Due Process Clause," wrote the judge.

But the answer is no, because a plaintiff can't initiate a Section 1983 claim asserting only that he was summoned and prosecuted without probable cause. Judge Bauer cautioned that the holding shouldn't be misconstrued to deny rights to parties in which prosecutors or other officials falsely accuse, tamper with evidence, or commit other independent constitutional violations that Tully didn't allege in his complaint.

Tully's claim is more like one for "negligent prosecution, but the 7th Circuit elected not to decide whether he has an adequate post-deprivation remedy in Indiana, where it recognizes an affirmative immunity defense.

"We find that Tully was not seized within the meaning of the Fourth Amendment merely by being summoned to appear in court, and that he received procedural due process under the Fourteenth Amendment when the state court system vindicated him. To the extent any harm to his reputation remains, his recourse is to expunge the juvenile court's records," wrote Judge Bauer.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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