Immunities Continue to Erode for Indiana Law Enforcement

On July 28, 2010, the Indiana Court of Appeals handed down the opinion of Putnam County Sheriff v. Pamela Rice. It continues what I see as a trend of judicial decisions eroding the immunities available to Indiana’s law enforcement officers under the Indiana Tort Claims Act. As I suggested in an earlier post, the more this continues, the more inaction by law enforcement is the safer liability option. In other words, if police officers sit on their hands, they are much less likely to be sued successfully.

The most recent installment involves a cold November morning at 5:30 a.m. where a Sheriff’s Deputy responded to an accident involving an icy roadway. Turns out the local water authority had a pipe leaking across the road. He called in the situation, and the local water authority that owned the pipe, among others, were notified. But, he didn’t hang around the site until the problem was fixed or stick around to wave off other motorists. Then, at 7:15 a.m., another motorist had an accident at the icy spot. The Indiana Court of Appeals held that the Sheriff could be liable for the second person’s injuries because, it concluded, “the Sheriff has a duty to warn the public of a known hazardous condition.” The court further opined that this duty was not closely enough related to things like preventing crime and providing emergency services to afford the Sheriff the immunity available for those activities.

I think the legislature needs to step in and clarify its intent with respect to the immunities available to law enforcement officials. The nature of the job is that police officers have to get involved in situations where bad things are happening – meaning, a disproportionate number of people injured in one fashion or another. The less they are protected from claims of negligence – resulting from the fact that the government has deep pockets more than from any notable wrongdoing – the more the incentive is going to run toward inactivity.

What a year

The year coming to an end naturally makes me look backward. So, I took a look at my posts from January 1, 2006, and enjoyed this post:

Sylvia Smith, ordinarily the Washington Reporter for the Fort Wayne Journal Gazette has an opinion column in which she asserts that the Democrats are delusional fools for having the audacity to dream of a Republican majority in the United States House of Representatives. We’ll see, but it’s good to see where Ms. Smith is coming from on the issue.

Unfortunately, the column I linked to is no longer available on the Fort Wayne Journal Gazette so I can’t say how fairly I characterized what Ms. Smith wrote, but in any event Democratic aspirations toward majority apparently weren’t so far-fetched.

Sectarian prayer for the Indiana House of Representatives was also at issue with a law professor opining:

We’re just increasingly sensitive to both religious partiality in general and to evangelical Christianity’s attempt to be politically and culturally aggressive. Both of those things are going on in that Indiana setting.

And, finally, there were several articles looking at the then upcoming 2006 legislative session. Among other things, toll road privatization was on the agenda as was property tax relief and Republicans trying to “get right” with their constituents after the 2005 session. They got Toll Road privatization done, they enacted a band-aid fix to the property tax problem, and, by and large, they didn’t get right with their constituents.

Summer Study Committees

The General Assembly’s “summer” study committees are kicking into gear. Information on the committees is available here.

  • The first meeting of the Indiana Commission on Autism will be held on August 24, 2006.
  • The first meeting of the Child Custody and Support Advisory Committee will be
    held on August 25, 2006.

  • The Interim Study Committee on Children’s Issues will meet on August 28, 2006 to discuss, among other things, children’s health in relation to care and management of student diabetes in school.
  • The Commission on Courts will meet August 29, 2006 to discuss creation of a judicial circuit for Switzerland County and the establishment of a dedicated fund for court fees.
  • The Interim Study Committee on Criminal Justice Matters will meet on August 30, 2006 to discuss, among other things, “next of kin” issues and improvements to Indiana’s background check system. Minutes from the committee’s August 2, 2006 meeting are available here. At that meeting, they discussed issues relating to coroners and the proposal by the Indiana Dept. of Homeland Security to create a “disaster mortuary operational respoonse team” (DMORT).
  • The Environmental Quality Service Council will hold its first meeting on August 18, 2006.
  • The minutes from the August 2, 2006 meeting of the FSSA Evaluation Committee is available here. At that meeting, the Committee discussed the development of a survey of consumers and providers of FSSA services. The survey was mandated by the 2006 General Assembly and will be performed with the support of the IUPUI Survey Research Center.

    That’s an incomplete review of activity, but about all I have time for this morning. LSA maintains a handy calendar. But you have to go to the individual committee pages to see if there is any information about what the committee has or will discuss.

  • Locking down the State House

    Jim Shella has a story about the new security measures at the State House. More cameras, limited access to the parking lot, doors lock a half hour earlier during the week, public access is limited to four hours per day on the weekends, and metal detectors are coming.

    I understand the concerns, but I oppose the measures. The costs of security are incremental but the potential consequences of inadequate security could be tragic. That’s why security has a way of ratcheting up. There’s really no way to know when you have too much.

    To me, part of living in a free and open society means that we have to trust our fellow citizens enough to allow ourselves access to our public spaces; particularly our democratic centers. I don’t think it’s healthy for the body politic to indulge itself in its fears. I believe have to be brave enough to risk tragedy. The alternative is a slow death of a million cuts in which we subject ourselves to ever more suspicion and security, magnifying our fears beyond their legitimate level and sowing distrust among citizens.

    Gas prices pop

    The Lafayette Journal & Courier has a story on how gas prices have jumped in Lafayette, a subject near and dear to my heart since my present commute to work is about 25 miles. However, I’m moving to Lafayette in about 2 weeks which will cut my commute to about 3 miles. So each increase in gas prices make the enormous hassles of moving seem more worthwhile.

    So, while I might find a short-lived and perverse sort of silver lining, on the statewide scale, it seems possible that the ever upward march of gas prices could tarnish the two brighter lights of Indiana’s economy in the news today: Toll Road privatization money and the new Honda plant. With increasing tolls and increased gas prices, driving on the Toll Road is a far more expensive proposition now than it was, say 6 or 7 years ago. Presumably increased gas prices will also reduce the demand for automobiles, even if the one’s produced by Honda in Greenville are comparatively more gas efficient.

    With respect to these stories, mainly, I suppose, the cost of gasoline calls into question the wisdom of spending the Toll Road privatization money on more roads. I can’t say I know what the correct expenditure would be — I guess that’s where vision and leadership come in handy. (And judging from the quote in the toll road story, we’re not likely to get it from Pat Bauer any more than we’ve gotten it from Gov. Daniels. Bauer complains that, while we’re making interest on the privatization dollars, the foreigners are making a bunch more money. I don’t think foreign businesses making money is the problem — it’s the fact that Hoosiers are going to be paying an ever-increasing tab for the next 70 years. The two are related, of course, but I think it’s important to articulate what the real beef is. )

    New fireworks law

    The Fort Wayne Journal Gazette has an editorial asking readers how they think the more liberal fireworks law passed by the General Assembly is working in practice. Advance Indiana has a post mentioning a WTHR report about a 10 year old who lost his eye when he threw a bottle rocket in the air when it shot back and struck him in the eye.

    There are certainly strong policy arguments in favor of stricter controls on fireworks. But I’m not sure there is a practical difference between the new law which is very permissive and the old law which was theoretically stricter but unenforced and unenforceable. I know I didn’t have a great deal of trouble obtaining and using bottle rockets as a youth. I recall riding my bike no-handed while lighting and throwing bottle rockets. That can’t be safe.

    For me, Daylight Saving Time makes fireworks more of a problem than the new fireworks law, just because people are setting them off later than they used to. 4th of July fireworks going off at all hours don’t bother me — that’s just the nature of the day. It’s the 5th of July fireworks that are really annoying. The kids are in bed, I’m just settling into bed myself. BANG BANG BANG BANG down the street. The dogs start barking. Repeat periodically for the next hour or two. Grrr. But I suppose that’s as much a function of my evolution into a grumpy old man as anything else.

    Interim Study Committees

    Representative Dvorak has posted a list of topics to be studied by legislative interim study committees which I will shamelessly cut and paste:

    Interim Study Committee on Public Health and Safety Matters
    -Railroad labor camps
    -Coal mine safety
    -Smoke detectors and sprinklers in health facilities
    -Food handling regulations for tax-exempt organizations

    Interim Study Committee on Government Administration and Regulatory Matters
    -Impact of privatization of non-health related services performed or administered by state agencies
    -Impact of privatization on state employees who have been laid off
    -License branch operations and closings
    -Eminent domain issues (including the use by small, private utilities)
    -Various matters involving non-profit entities

    Interim Study Committee on Criminal Justice Matters
    -Rights of “next of kin” in situations involving criminal activity
    -Improvements to Indiana’s background check system
    -Coroner qualification issues

    Interim Study Committee on Children’s Issues
    -Child labor
    -Children’s health issues with emphasis on diabetes and obesity

    Interim Study Committee on Alcoholic Beverage Issues
    -Alcoholic beverage display requirements
    -Clerk licensure and training
    -Other various issues that were not resolved during the last session

    Statutory Committees

    Code Revision Commission
    -Using respectful language when referring to people with disabilities in code

    Counterterrorism and Security Council
    -Security at ports, freight yards, and rail yards

    Commission on Courts
    -Appelate issues
    -Establishment of a dedicated fund for court fees
    -Establishment of a court with exclusive jurisdiction over commercial driver’s license cases

    Indiana Economic Development Corporation
    -Whether to develop incentives to encourage film, television, and new media production

    Environmental Quality Service Council
    -Indiana’s impact on Lake Michigan water quality and participation in the Great Lakes Protection Fund
    -Regional sewer districts

    Health Finance Commission
    -Cost of delivering health care to diabetics
    -Health coverage systems used in other jurisdictions
    -Monitor and report on the impact of the privatization of health services performed or administered by state agencies (including the impact on laid off employees)
    -Advisability of a certification program for surgical technicians

    Health Policy Advisory Committee
    -Restraint of trade issues associated with contact lenses
    -Advisability of consolidating all the various health-related study committees

    Select Joint Commission on Medicaid Oversight
    -Medicaid reimbursement rates

    Commission on Mental Health
    -Social, emotional, and behavioral health screening of children

    Natural Resources Study Committee
    -Park issues, including development of Rail/Trail corridors

    Pension Management Oversight Commission
    -Police and fire pensions
    -Factors used to compute public employee pensions
    -Funding sources for pension relief for municipalities
    -Issues related to the 1977 Police and Fire pension and disability fund

    Regulatory Flexibility Committee
    -Renewable energy development

    Sentencing Policy Study Committee
    -Impact of sealing and expunging criminal arrest and adjudication records, including the impact on employment and recidivism rates

    Commission on State Tax and Financing Policy
    -Eligibility for certain military benefits
    -Expanding eligibility for the property tax deduction for low-income senior citizens by removing AV criteria
    -Child welfare system funding
    -Issues pertaining to public transportation and commerce

    Study Committees assigned

    Lesley Stedman Weidenbener has an article on the study committee assignments given by the Legislative Council, the administrative arm of the General Assembly.

    Her article focuses on the assignment to the Interim Study Committee on Criminal Justice Matters to evaluate potential changes in the law that automatically deems the spouse as the “next of kin” when an individual dies. Sen. Connie Sipes (D-New Albany) requested consideration of whether that’s appropriate in cases where the spouse has confessed to murdering the decedent.

    But this is one of many assignments made by the Legislative Council. Some study committees are created by statute — sometimes when a legislator is unable to pass legislation on an issue, he or she can get legislation assigning the issue to a study committee as sort of a consolation prize. The other way issues get assigned to the study committees is by assignment by the Legislative Council. Presumably this information will be available via LSA’s Interim Information page sooner or later, but I was unable to find the text of the Legislative Council’s resolution as I was writing this.

    Toll Road Lawsuit: Bond Request

    As has been widely reported (here is an AP story), the Daniels Administration is trying to quash the lawsuit (pdf) by the Citizens Action Coalition challenging the constitutionality of the Toll Road privatization legislation.

    Specifically, Article 10, section 2 of Indiana’s Constitution says:

    All the revenues derived from the sale of any of the public works belonging to the State, and from the net annual income thereof, and any surplus that may, at any time, remain in the Treasury, derived from taxation for general State purposes, after the payment of the ordinary expenses of the government, and of the interest on bonds of the State, other than Bank bonds; shall be annually applied, under the direction of the General Assembly, to the payment of the principal of the Public Debt.

    The Daniels Administration is attempting to quash the lawsuit without addressing its merits under IC 34-13-5 which sets the procedure governing “public lawsuits.” In particular IC 34-13-5-7 allows a defendant (in this case, the State) to request that bond be posted. The court is required to set a hearing on the petition. Judge Scopelitis has set a hearing date of May 11.

    The statute instructs the judge to use the standard for granting a preliminary injunction as the standard for determining whether a bond is required. This standard essentially requires the judge to weigh the harm if the requested relief is granted (delaying the sale), the harm if the requested relief is denied (allowing the sale to go through while the lawsuit is pending), and the plaintiff’s likelihood of success on the merits. If the judge decides that the CAC is likely to succeed on the merits of the case and that allowing the sale to proceed will cause greater harm than delaying the sale pending trial of the case, he will deny bond. If he decides to the contrary, he is instructed to set bond at a level that that would compensate the defendant for damages and costs accrued to the defendant by reason of the pendancy of the lawsuit.

    Regardless of whether bond is approved or denied, either party can appeal the decision directly to the Supreme Court within 10 days of the trial court’s decision. So we’re likely to have a read on the Supreme Court’s opinion on the applicability of the Constitutional provision before too long.

    My thoughts: 1) I question whether a statute such as IC 34-13-5 is permitted to essentially render a Constitutional provision a nullity. To take a hyperbolic example from the federal Constitution, what if Congress said a citizen had to post $1 billion to bring a lawsuit to stop a free speech violation by the government? Clearly Congress would not be permitted to make an end run around the Constitution in that fashion. 2) The consequences of a delay in entering into the privatization agreement while litigation is pending is less harmful than the consequences of potentially entering into the agreement illegally. The Toll Road isn’t going anywhere and there is no evidence that its value is diminishing. Unraveling the privatization deal once it goes into effect would likely be expensive and difficult, particularly if the State distributes the proceeds from the sale of its property rights in the Toll Road. 3) The State’s apparent reliance on characterization of the deal as a lease rather than a sale seems superficial and misguided. A lease is merely a particular kind of sale of property rights. Not to get all Property 101 on you, but the Daniels administration seems to be taking the position that the word “sale” in the Constitution refers only to a sale of a fee simple absolute interest in the Toll Road Property and that any other kind of sale is not subject to the constitutional provisions, including sale of a leasehold interest in the Toll Road Property for a term of years.

    Grant Smith on Telecom “Deregulation” Bill

    Grant Smith, of the Citizen’s Action Coalition, has a scathing column in the Fort Wayne Journal Gazette on HB 1279 which lifts regulations on local telephone companies. The short version: “Telecom bill raises rates, reduces jobs.” Mr. Smith contends that, despite telecom company claims to the contrary, this bill does not do much to encourage broadband competition between telecom companies and cable companies. A couple of quotes:

    Broadband was defined in the legislation to accommodate copper-wire data transfer speeds, not high-speed fiber optic cable. Why? It’s an underhanded way to base automatic rate increases on investments already made. Rate increases will occur in areas where 50 percent of customers in an exchange have access to (not actually have) broadband service – in other words, in urban areas.

    . . .

    The entire ill-gotten deal smacks of crony capitalism. Those legislators who sponsored the legislation should apologize profusely to their constituents and vow to reverse the ill-advised passage of HB 1279. Higher utility rates and fewer jobs are not a good combination for the Indiana economy.