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Judge dissents in eviction case

March 25, 2010

There is "potential for abuse" when an armed and uniformed police officer is at the scene of a self-help eviction or repossession of a private party, according to an Indiana Court of Appeals judge.

Judge James Kirsch dissented from his colleagues in Mark Harness Jr. v. Paul Schmitt and Town of Winona, No. 43A05-0909-CV-528, in which the majority upheld the finding that police officer Paul Schmitt was immune from tort liability. Mark Harness alleged Schmitt unlawfully assisted in a false eviction when Schmitt went to the house Harness was renting at the request of the homeowner to evict Harness.

"While it may not be improper per se for an armed and uniformed police officer to accompany a private party to the scene of self-help eviction or repossession, such a practice is fraught with the potential for abuse," wrote Judge Kirsch. "It creates the false impression that the eviction or repossession is being effected pursuant to court authority although the officer has no way of knowing whether the eviction or repossession is lawful or unlawful."

He believed there were material questions of fact whether Schmitt was assisting in an unlawful eviction and would remand for trial.

But the majority held Schmitt was acting in the scope of his employment and engaged in law enforcement when he went to Harness' house. Even though the record doesn't explain why the eviction notice was "false," Schmitt would still be immune from liability, wrote Judge Melissa May.

He wasn't acting outside the scope of his duties because police officers are often required to keep the peace and enforce laws. Schmitt was at the house to prevent any breach of peace.

"We decline to hold an officer's presence at a place where a breach of the peace might be anticipated is, as a matter of law, outside the definition of 'law enforcement,'" she wrote.

The appellate court also denied attorney fees for Schmitt.

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