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Judge dissents in eviction case

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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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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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