ILNews

Justices hear IMPD arresting-authority case

Michael W. Hoskins
January 1, 2007
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Indiana's highest jurists today questioned attorneys about whether any arresting authority exists for those who didn't take an official oath for the recently created Indianapolis Metropolitan Police Department.

Justices' pointed questions go to the heart of State v. Cheryl Oddi-Smith, 49A05-0708-CR-445, a drunk driving case that Marion Superior Judge Rueben Hill ruled on in early August, throwing out a woman's arrest because of the oath-taking issue. The Indiana Attorney General's office filed a petition in August to appeal the case directly to the state's highest court. Justices accepted emergency transfer Oct. 9 to bypass the Court of Appeals, citing Appellate Rule 56(A) that notes in rare cases the court can bypass the lower court "upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination."

This high-profile appeal comes after Judge Hill in Criminal Court 18 - himself a former Indiana State Police trooper - decided that the January drunk-driving arrest of Oddi-Smith was illegal because the arresting officer was not officially sworn in after the police merger of the Indianapolis Police Department and the Marion County Sheriff's Department. Only top officials and a few officers took the oath following the merger, according to defense attorneys James Voyles and Annie Fierek.

The judge noted in his opinion that the main legal issue is whether this merger created an entirely new police agency, and if so then all officers would need to be sworn in again.

Potentially at stake in the case: thousands of arrests made this year. Though Judge Hill has vowed not to hold this standard to other cases, and the officers have since taken an official oath, defense attorneys could still have a field day with appeals on countless arrests made by the law enforcement agency.

Cynthia Ploughe, deputy attorney general arguing for the Indiana Attorney General's Office, told the court that oaths are mostly ceremonial and don't mean much - it's the training that matters more.

"There is no state law that requires the IMDP to be sworn in; they are de facto officers," she said, mentioning that the local in-house ordinance can't be applied as a law.

Justice Brent Dickson interjected arguments at one point, asking the importance of this issue that seems more like a "fictional issue" than anything of practical importance. He posed the question of whether an officer is less obligated to the Constitution by not taking an oath.

Voyles countered the state's point, noting that an oath is more than just a "technical nicety" and is a promise that officers will uphold the Constitution.

Justice Frank Sullivan picked up on the term "consolidated" and compared the law enforcement consolidation to a corporate merger, where the new entity is beholden to all the previous liability and obligations the former two agencies had.

He pondered what would happen to lawsuits or actions filed to a previous agency if that liability went away with a consolidation, and his colleagues picked up on that thought. Justice Ted Boehm noted that it could create an opportunity for municipalities to create a shell game to avoid liability, washing their hands clean of any potential trouble by forming a new entity.

"If an oath doesn't carry over, what else doesn't carry over," Justice Sullivan asked. "What implications does that have, and how can that make sense?"

You can watch the Supreme Court arguments online at http://www.indianacourts.org/apps/webcasts.
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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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