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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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  1. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  2. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  3. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

  4. This is why it is important to consider Long term care insurance. For you and for your loved ones

  5. I am terrified to see Fracking going on not only in Indiana but in Knox county. Water is the most important resource we have any where. It will be the new gold, and we can't live without it and we can live without gold. How ignorant are people?

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