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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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