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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.