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COA affirms dismissal of complaint

Jennifer Nelson
January 1, 2008
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An Anderson man who filed a complaint against the officers that arrested him and two police departments filed his civil action outside of the statute of limitation, the Indiana Court of Appeals ruled April 28.

The appellate court agreed with the trial court in Jon S. Johnson v. Stephon Blackwell, et al., No. 49A02-0709-CV-759, that Johnson filed his four-count complaint against two detectives, the Madison County Sheriff's Department, and the Anderson Police Department after the two-year statute of limitations expired.

After receiving a tip in late February 2003 that Johnson had a large amount of drugs in his home, detectives Stephon Blackwell and Cliff Cole went to Johnson's house to investigate. The detectives told Johnson about the anonymous tip and asked to search his home. Johnson denied drugs were inside and started down a hallway, which caused Blackwell to draw his gun and tell Johnson that his walking away was a safety issue for the detectives. Johnson came back toward the detectives and allowed them to enter the home and search. The detectives found a package of crack cocaine in a dresser.

Johnson was charged in U.S. District Court, Southern District of Indiana, with possession with the intent to distribute crack cocaine. In March, Johnson moved to suppress the evidence, arguing his consent was involuntary. The District Court denied his motion and convicted him in May. Johnson appealed to the 7th Circuit Court of Appeals, which reversed Johnson's conviction and remanded the case to the District Court in October 2005. The indictment was dismissed in July 2006.

In November 2006, Johnson filed his complaint against the defendants alleging civil rights violations, false imprisonment/false arrest, wrongful infliction of emotional distress, and invasion of privacy by intrusion. All the counts were based on the February 2003 search of his home. The trial court granted the defendants' motion to dismiss pursuant to Indiana Trial Rule 12(B)(6) because his complaint was barred by the two-year statute of limitations governing injury to person.

Indiana Code Section 34-11-2-4 says an action for injury to a person must start within two years after the cause of action accrues. The appellate court determined the start dates for each of Johnson's counts, finding the start date for the civil rights violation, wrongful infliction of emotional distress, and invasion of privacy by intrusion counts began on the day the police searched his home.

Citing Livingston v. Consolidated City of Indianapolis, 398 N.E.2d 1302, 1303 (Ind. Ct. App. 1979) and Wallace v. Kato, 127 S. Ct. 1091 (2007), the Court of Appeals found Johnson's cause of action for false imprisonment/false arrest accrued when he was bound for trial in March 2003, wrote Judge Nancy Vaidik.

Even though Johnson's criminal litigation was still pending within the two-year statute of limitations, he should have filed the civil litigation, which would have been stayed until the outcome of his criminal case, she wrote.

"There is nothing that prevented Johnson from filing his civil complaint while his criminal case was pending. ... This is especially so given that when the Seventh Circuit remanded Johnson's criminal case in 2004, which was still within the statute of limitations, the court said that it was a "close question" of whether the detectives had reasonable suspicion to seize Johnson," she wrote.
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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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