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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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