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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. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  2. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  3. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

  4. Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?

  5. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

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