7th Circuit Court of Appeals
Civil - Class Certification
Michael Driver, et al. v. Marion County Sheriff, et al.
The issue of the certification inmates who allege they were wrongfully detained for unconstitutional periods of time is back before a district court after the 7th Circuit Court of Appeals ruled the court erred in initially denying class certification.
Plaintiffs sued the Marion County Sheriff’s Department and the Consolidated City of Indianapolis and Marion County, alleging their practices caused the class members to be detained in the Marion County Jail for an unreasonable amount of time in violation of their Fourth Amendment rights. The plaintiffs sought to certify five subclasses, but the district court granted certification to only two of the subclasses.
The plaintiffs petitioned for permission to appeal the denial of two of those class certifications, which included individuals who were confined from Dec. 19, 2012, to the present after legal authority for the detentions ceased. The plaintiffs claimed the proposed class members were people who were unlawfully detained due to the sheriff’s office’s practice of operating under a standard of allowing up to 72 hours to release prisoners ordered to release; and due to the office’s employment of a computer system that was inadequate in ensuring the timely release of prisoners.
The appellate court granted an interlocutory appeal, then ruled Judge Richard L. Young had erred in denying the class certifications.
Judge Ilana Rovner wrote that Young had applied a 48-hour rule for defining the reasonableness of a detention, relying on the case of County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and thus determined that members of the proposed class detained for less than 48 hours could not be treated the same as those detained more than 48 hours. However, the proposed class in the instant case involves different facts than in McLaughlin, which addressed the amount of time between a warrantless arrest and a judicial determination of probable cause, Rovner said.
Here, legal authority for the detention of the proposed class had ceased, so “the tasks involved in the situation presented here are significantly less onerous and less time-consuming than the ones involved in McLaughlin,” Rovner wrote. Thus, relying on McLaughlin’s 48-hour rule to define an unreasonable detention does not make sense, she said.
Further, she wrote there was evidence the sheriff profited from an arrangement in which it received its computer system for free and failed to follow the standard review process in choosing the system. The chosen system, OMS, was rife with technical issues, she said, yet the sheriff’s office chose to continue using it, even in the face of significant delays.
Young denied certification to the second subclass affected by the computer system because it was not “identifiable,” but Rovner wrote that “given the evidence of a dramatic increase in detention times in correlation with the implementation of the computer system…the class is capable of detention both by the timing and the length of the delay in the release.”
The case was remanded with instructions to the district court to “consider factual and legal issues comprising plaintiffs’ cause of action insofar as those issues are necessary to a determination of the (Federal Rule of Civil Procedure 23) factors.”
Criminal - Resentencing
United States of America v. Terry Joe Smith
A Putnam County law enforcement officer who used excessive force against compliant arrestees must return to district court for a second resentencing after the 7th Circuit Court of Appeals determined the district court, once again, failed to adequately justify its imposition of a below-guidelines sentence.
Terry Smith, a deputy with the Putnam County Sheriff’s Department, was charged with violently assaulting two arrestees who were under control and not actively resisting arrest. Smith punched an arrestee and caused his face to bleed and swell in one incident. In the second incident, Smith threw another arrestee to the ground and drove his knee into his back to the point where he caused back and rib injuries.
Smith was convicted of violating 18 U.S.C. Section 242, a conviction that comes with a sentencing guideline range of 33 to 41 months in prison. However, Judge William T. Lawrence sentenced Smith to a 14-month term, writing the sentence was “a downward variance based upon the history and characteristics that Mr. Smith presents as well as the nature and circumstances of this offense.”
After an appeal to the 7th Circuit Court of Appeals, the court affirmed Smith’s conviction but vacated and remanded the case for resentencing, noting that the judge had offered no explanation for the lighter sentence other than to say Smith’s risk for reoffending would be reduced with anger management training. Smith was released from prison on the same day the 7th Circuit issued its opinion and enrolled in anger management courses and obtained employment before his resentencing hearing.
At the second hearing, Judge Ilana Rovner wrote in that Smith did not take much ownership of his actions. However, the district court noted that Smith had begun referring to his victims as “victims” in conversations with his probation officer, and, thus determined he had accepted responsibility for his actions.
Smith was resentenced to 14 months in prison, with two years of supervised released and credit for time already served. The government objected on the grounds of procedural and substantive unreasonableness, and the 7th Circuit again vacated the sentence and ordered resentencing.
In his resentencing decision, Lawrence cited to sentencing guidelines in section 5K2.1, Smith’s history and characteristics and the nature of the offense as justification for the re-imposition of the 14-month sentence. But Rovner said the court “erred procedurally by failing to adequately explain or justify the significantly below-guidelines sentence that it rendered.”
Specifically, Rovner said section 5K2.1 did not apply to Smith’s case and presumed the court had meant to refer to section 5K2.10, which allows for a sentence reduction if “‘victim’s wrongful conduct contributed significantly to provoking the offense behavior.’” Here, there was no evidence the victims had provoked Smith’s violent actions, the Rovner said, so use of that section to reduce his sentence is not justified.
Further, the record is devoid of any evidence of Smith expressing remorse or accepting responsibility for his actions, the 7th Circuit found, and it is unclear which sentencing guidelines Lawrence used to credit Smith’s “remorse.” Thus, it was procedural error to reduce his sentence on those grounds.
Finally, the 7th Circuit found there was still no evidence that Smith’s anger management classes would lessen his likelihood of reoffending, nor was there evidence that imposing a harsher sentence would impose excessive harm on his family.
Indiana Supreme Court
Criminal – Community Caretaker
William McNeal v. State of Indiana
The Indiana Supreme Court struck down a portion of an Indiana Court of Appeals opinion that extended the law enforcement community caretaker role beyond questions regarding seizures of a vehicle. The justices did affirm the man’s cocaine conviction, however, finding his constitutional arguments failed.
A unanimous Court of Appeals panel affirmed William McNeal’s conviction of Level 5 felony possession of cocaine, finding McNeal was not unconstitutionally detained in the moments leading up to the discovery of baggies of cocaine in his pocket. Indianapolis Metropolitan Police Officer Aaron Helton had handcuffed McNeal after observing him speaking in gibberish and struggling to stand.
A check of McNeal’s identification yielded an outstanding arrest warrant, and a subsequent search incident to arrest led to the discovery of the cocaine. The Court of Appeals upheld the denial of McNeal’s motion to suppress, finding Helton’s decision to detain him was reasonable under the officer’s community caretaking function.
“We emphasize that although prior Indiana courts have either not had occasion or not been inclined to extend the community caretaking exception beyond inventory searches of impounded vehicles, and most recently have extended the community caretaking function only to cases in which a vehicle is involved in some way…it would be illogical to think that a police officer cannot aid a citizen in distress, abate hazards, or perform he ‘infinite variety of other tasks calculated to enhance and maintain the safety of communities’ simply because a vehicle is not involved,” Judge Terry Crone wrote in November.
McNeal sought transfer and asked the Indiana Supreme Court to vacate the portion of the opinion addressing the community caretaking exception to the Fourth Amendment warrant requirement, and the high court agreed to do so in a per curiam.
The justices vacated the final sentence of Section 1, the entirety of Section 1.1, the first phrase of Section 1.2 and the second sentence of the paragraph numbered 25 in the Court of Appeals opinion, each of which discussed law enforcement’s community caretaking role.
However, the high court summarily affirmed the remaining portions of the opinion, including that McNeal’s detention did not violate the Fourth Amendment because “police had reasonable suspicion he ‘had committed, or was about to commit, the crime of public intoxication.’” Further, the high court agreed there was no violation the Indiana Constitution.
Indiana Court of Appeals
Miscellaneous – Tax Deed
David L. Jenner and Vickie Jenner v. Bloomington Cellular Services, Inc. and Crown Castle South LLC
Likening people who buy property at tax sales to gamblers, an Indiana Court of Appeals panel split over how much due diligence the tax sale statute requires of purchasers but still found the buyers of a cell tower property in Bloomington did not do enough.
A piece of property on West Vernal Pike in Bloomington was purchased in 1988 by Bloomington Cellular Services Inc. From there, the property came under the ownership of Westel-Indianapolis Co., then became home to a 228-foot tall cellular tower before being leased to Crown Castle South LLC in 1999.
David and Vickie Jenner then purchased the land at a tax sale in 2014. Documents tracing the changing ownership and lease agreements were not all placed in the chain of title for the property so Crown Castle was not aware of the sale until after the Jenners obtained the tax deed in November 2015.
After intervening in the Jenners’ tax-sale proceedings, Crown Castle asked the Monroe Circuit Court to set aside the tax deed as void. Crown Castle conceded that finding the proper documents in the recorder’s office would have been difficult without knowing to search specifically for either “Westal” or “Crown.” Still, the company argued the sign posted on the property, identifying Crown Castle, would have alerted the Jenners to its possible interests.
The COA affirmed the trial court’s finding for Crown Castle.
Judge L. Mark Bailey, who wrote the majority opinion, pointed to I.C. 6-1.1-25-4.5 and -4.6, and noted the Legislature required that a party seeking a tax deed must give notice to any person who has a substantial property interest of public record. He dismissed the Jenners’ argument that such an interpretation would necessitate that purchasers search every document in a county recorder’s office.
“…a tax-sale purchase is a gamble, and, given the ante i.e. the low purchase price at a tax sale – often just pennies on the dollar relative to the fair market value of a subject property – the Legislature balanced the tax-sale purchaser’s investment against the risk of a forfeiture by the existing interest holders,” Bailey wrote. “The Legislature thus intended to impose a greater burden upon tax-sale purchasers, thereby safeguarding to a significant degree existing property owners’ rights to their land.”
Chief Judge Nancy Vaidik concurred with the result but dissented with Bailey’s interpretation of the statutes. She did not read the law as mandating the purchasers to search every document but to undertake reasonable diligence, performing all available index and electronic searches.
However, she affirmed the trial court’s ruling since a reasonable search would have included a visit to the property where the Jenners would have seen the posted sign. Then sifting through the databases for “Crown Castle,” they would have found the lease and license.
Judge Margret Robb dissented with the result. She agreed with Bailey that the sign on the property did not put the Jenners on notice of Crown Castle’s interest. However, she disagreed with Bailey’s strict interpretation of the statutes, echoing Vaidik that such a reading would impose on tax sale purchasers the impossible task of searching every record.
Civil Tort - Chiropractor Opinions
Craig Totton v. Daniel P. Bukofchan, D.C., and Franklin County Chiropractic Clinic
A medical malpractice case against a Franklin County chiropractor must proceed to trial after the Indiana Court of Appeals held that chiropractors, including those on medical review panels, are not qualified to render opinions on the cause of injuries when a case involves a “complex” causation issue.
After Craig Totton broke multiple ribs and fractured his ankle in a motorcycle accident in September 2009, he started receiving treatments from Dr. Daniel P. Bukofchan at Franklin County Chiropractic Clinic. After one visit at which Bukofchan “snapped” Totton’s neck, Totton said he experienced pain and weakening in his left arm.
Then in December 2010, an MRI showed a herniated disc in Totton’s neck, which required surgery. He filed a proposed medical malpractice complaint against Bukofchan and the clinic, alleging the doctor had “carelessly, negligently, and unskillfully examined and treated Totton and that as a direct and proximate result, he suffered personal injuries and an aggravation of a preexisting injury.”
However, a medical review panel consisting of three chiropractors issued an opinion in 2015 finding Bukofchan’s treatment did not fail to meet the applicable standard of care and “was not a factor of the resultant damages.” Totton then filed his complaint in Franklin Circuit Court, and Bukofchan moved for summary judgment.
In opposition, Totton designated the affidavit of Guy S. DiMartino, a chiropractor who said Bukofchan failed to meet the applicable standard of care and caused or substantially contributed to Totton’s injuries.
Bukofchan argued DiMartino was not qualified to provide expert testimony on the causation of Totton’s injuries, and the trial court agreed. Summary judgment was entered in favor of Bukofchan, with the court finding “…chiropractors are more akin to nurses in that they receive limited medical licenses and are therefore not qualified to offer expert testimony as to the medical cause of injuries.”
Totton appealed, arguing DiMartino is qualified to render a causation opinion under Indiana Evidence Rule 702. In reversing, Chief Judge Nancy Vaidik said “there is not a blanket rule that prohibits non-physician healthcare providers from qualifying as expert witnesses as to medical causation under Evidence Rule 702.”
For example, Vaidik pointed to the case of Curts v. Miller’s Health Systems, 972 N.E.2d 966 (Ind. Ct. App. 2012), in which the court held non-physician health care providers can give a causation opinion if the issue is not complex. However, if an issue is complex and a chiropractor cannot render an opinion, then chiropractors sitting on medical review panels are likewise unqualified.
Drawing on precedent from Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43 (Ind. Ct. App. 2010), Vaidik said “the requirements of Evidence Rule 702 have not been met given the complex causation issues present in this case,” so “the unanimous opinion of the all-chiropractor medical review panel cannot be used as evidence the Dr. Bukofchan did not cause Totton’s injuries.”
While the panel’s opinion can be used as evidence Bukofchan met the standard of care, Totton “created a genuine issue of material fact…by designating the affidavit of Dr. DiMartino.”
Civil Tort - Attorney Fees/Expenses
Angel Shores Mobile Home Park, Inc. v. John Crays and Megan Crays
In a case of first impression, the Indiana Court of Appeals upheld the award of attorney fees in a child’s wrongful death case.
John and Megan Crays filed a wrongful death suit after their 13-year-old son was electrocuted and died while swimming. The couple who owned the pool reached a settlement with the Crays but the manufactured housing community where the tragedy occurred, Angel Shores Mobile Home Park, proceeded to a jury trial.
In March 2014, the jury found for the plaintiffs with total damages at $3 million and 5 percent fault allocated to Angel Shores, resulting in the verdict amount of $150,000. Afterwards, the Crays filed a motion and the trial court awarded attorney fees of $60,000 and litigation costs at $72,864.85. This brought to total judgment to $282,864.85.
Angel Shores appealed, arguing the Indiana Child Wrongful Death Statute, does not include a provision for the attorney fees and litigation expenses.
The Court of Appeals disagreed and upheld the award, citing McCabe v. Commissioner, Indiana Dept. of Insurance, 949 N.E.2d 816 (Ind. 2011) and SCI Propane, LLC v. Frederick, 39 N.E.3d 675 (Ind. 2015), which examined the language in Adult Wrongful Death Statute and the General Wrongful Death Statute.
“As the plain language of the CWDS allows for other remedies as provided by law, and the second category of the GWDS provides for attorney’s fees, it is logical to construe the two in harmony, and conclude that a party filing an action under the CWDS, like a party filing an action under the AWDS, is entitled to attorney’s fees under the second category of the GWDS,” Judge Melissa May wrote for the court.•