Tuesday, April 29, 2014

Indiana Court of Appeals Court Rules Police Officers Violated Fourth Amendment in Warrantless Entry Case; Lafayette Native Margaret Robb Authors Opinion

The Indiana Court of Appeals handed down an emphatic decision today reversing a lower court's ruling that led to the conviction of  J.K., a juvenile who was subsequently declared a delinquent based on charges that he illegally possessed and consumed alcohol. 

The appeals court determined that three Winamac police officers violated the juvenile's constitutional rights when they conducted a warrantless search of the boy's home after receiving a complaint regarding a disturbance in the area.

Lafayette Native Judge Robb
Lafayette native Judge Margaret Robb wrote the opinion and concluded that the "officers' warrantless entry on J.K.'s curtilage, including both the sides of the house and back yard, violated the Fourth Amendment."

"Further we hold the officers' presence at the home and continually knocking for approximately one hour without an answer from an occupant exceeded their implied invitation to knock and talk and constituted an unreasonable search in contravention of the Fourth Amendment.  Finally we also conclude the the officers' warrantless residential entry was unconstitutional."

This is a victory for freedom-loving citizens throughout the Hoosier state, and it sends a strong message to police officers that the fourth amendment must not be trifled with.  The ends do not justify the means, especially when constitutional rights are at stake.  When citizens like J.K. go to lengths to fight these types of abuses it benefits all of society. 

J.K.'s trouble began on December 22, 2011 when someone complained to the Pulaski County Sheriff's Department that juveniles were making noise.  Officers Brian Gaillard and Mark Hoffman arrived at the home of the defendant and saw a shopping cart in the bed of a pick-up truck, which they suspected had been stolen.

Officer Hoffman knocked on the front door while Officers Gaillard and Haley went through the yard around either side of the residence to make sure no one left through the back door.  One officer saw empty beer cans through a window.

No one answered the door as the officer continued to knock.  Officer Gaillard called for a tow truck to impound the pickup truck that contained the shopping cart while the officers remained on the front portch for an additional forty minutes.  Officer Hoffman kept knocking on the door and yelled for the occupants to answer the door.  Finally, after being warned that his truck was going to be towed, one juvenile came outside.

At some point the officers entered the house without a warrant and performed a search where they found additional evidence of underage drinking.  J.K. was charged with illegal possession of alcohol, illegal consumption, and aiding illegal consumption. 

J.K.'s attorney filed a motion to suppress; however, the trial court denied the order and concluded the officer's entry into the residence was justified under the "protective sweep exception" to the Fourth Amendment's warrant requirement.  J.K. appealed the decision.

Several key points were made in the appellate ruling after Judge Robb spelled out the Fourth Amendment:

The Fourth Amendment to the United States Constitution guarantees:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The court duly notes that the U.S. Supreme Court has held that "the curtilage -- the area 'immediately surrounding and associated with the home' -- is 'part of the home itself for Fourth Amendment purposes... Thus, warrantless entry onto one's curtilage is also presumptively unreasonable.'

Also at issue was the contention that officers violated J.K.'s rights by "engaging in unconstitutional knock and talk."

The court determined that when the officers continually knocked for approximately one hour without an answer that it "exceeded their implied invitation to knock and talk," which was noted as an "interesting issue" with little binding authority.

"The Supreme Court in Jardines described the implied invitation to knock and talk as the license to do 'no more than any private citizen might do.'  As noted above, this limited invitation 'permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received and then (absent invitation to linger longer) leave.'  This statement implies that a failure to leave after a brief period exceeds the implied invitation to enter one's curtilage and would violate the Fourth Amendment.  Indeed, Jardines held that law enforcement's use of trained dogs on the defendant's front porch violated the Fourth Amendment; that holding is based on the idea that such conduct was not encompassed by the implied invitation to approach portions of the curtilage."

The ruling also noted that the U.S. Supreme Court has established that "the occupant has no obligation to open the door or to speak."

"[W]hen it comes to the Fourth Amendment, the home is first among equals.  At the Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.  This right would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity..."

The court also addressed the state's claims that the officers' presence on the property was reasonable because they believed the shopping cart to be stolen.

"That argument is misguided," wrote Judge Robb.  "There is no general emergency exception to the warrant requirement, nor does the mere existence of a crime constitute an exception."

"We wish to make this point loud and clear:  suspicion of criminal activity is not an exception to the warrant requirement," Robb continued.  "Moreover, even if the shopping cart were relevant, we do not believe the officers had probable cause to believe the shopping cart was stolen."

Thank you, Judge Robb, for dispensing justice and for protecting the Fourth Amendment as written.

You can read the complete 25-page ruling at this link.

Read about Judge Margaret Robb at this link and also at this link.

Saturday, April 26, 2014

Is Dave Heath the Illegitimate Leader of the Republican Party?

With speculation that a Dave Heath candidacy for sheriff is nothing more than a bait-and-switch scam, there are old concerns surfacing about the legitimacy of last year's election of the Republican party chairman.

Is it time for Dave Heath to retire?

"It's all starting to make sense now," commented one political insider on the reason for the eleventh hour candidacy and "sham election" of Dave Heath as the Tippecanoe County Republican party chairman.

Last year many precinct committeemen were stunned when former party chairman Bob Hicks stepped down as the top Republican leader the night before elections were to take place.  What actually happened at the meeting the next day was even more shocking.

"Dave Heath was coronated the king of the Republican party," commented one party insider.  "There was one last minute candidate and no real election, just a call for a voice vote.  There were people in the room who weren't eligible to vote raising their hands like they were at some Nazi party rally.  At that point no one dared to object.  It was a very intimidating process."

Many people have questioned why Dave Heath would force himself into the leadership position at an age when most people are enjoying retirement.  It has led to much speculation.  Since party chairmen are responsible for appointing precinct committeemen to vacant positions could Heath be setting himself up to choose his own replacement should he win the sheriff's election and at some point step down from the job?

It's also been suggested that he wants power to set a new generation of Heath children up in the sheriff's department.

"I know for a fact that he's trying to get his daughter on at the sheriff's department," commented one political insider.  "He has other children in law enforcement as well."

Political shenanigans within the local Republican Party are nothing new.  In the past county chairmen have stacked the deck by appointing friends and relatives to vacated and empty precinct seats. 

Those stacked deck players are responsible for finding replacements for vacant political offices, which has happened in the past.  And that is precisely what has some people nervous.

"Who is he going to appoint to run the jail, Vickie Mays?" asked one critic.  Mays was the controversial parks department director who many say helped destroy the iconic Columbian Park that generations of Tippecanoe County natives enjoyed prior to its radical change under Heath's mayoral leadership (or lack of).

Critics also pointed out that Heath only lasted a short time as Chairman of the Alcohol and Tobacco Commission before he was fired by former Governor Mitch Daniels.

"Heath might say he resigned from the position, but he was forced out and allowed to have a face-saving measure in the form of a resignation," commented one critic.  "Has anyone asked his bosses why he was asked to leave?"

"Some people just don't know when their time is up.  It's time for Dave Heath to retire.  He keeps grabbing for power and he wants his old job back, because he really hasn't done well on a job that he didn't have a gun and a badge to bully with." 

Friday, April 25, 2014

Is a Dave Heath candidacy a bait and switch scam?

I've heard the rumor too many times to ignore it.   That is, Dave Heath's candidacy is a bait and switch scam.  It makes sense considering the fact that he looks frail and sickly.  I certainly wish the man well, but with all due respect, the citizens of Tippecanoe County deserve a sheriff who is young and healthy enough to do the job.

The noticeable weight loss and gaunt appearance of the former sheriff is being talked about around town.   Many wonder if Heath is up to the demanding job of the top law enforcement position in the county, especially considering the fact that many his age are fully retired.

Some say Heath looks gaunt and is too old to serve as sheriff
"I just don't think the citizens of this community would be wise to put a retiree-aged person in charge of public safety," said one former Heath supporter.  "And if he's planning on taking the job as a figure head so an unelectable person can run the show, that's just plain wrong."

There has been a lot of speculation that the heir-apparent to the sheriff's job was Major Charlie Williams. 

"That's how it's always worked in the past," said one insider.  "The job is handed off to a person chosen and groomed for the job, and then the establishment forms a campaign that is often unchallenged."

Insiders say that Williams, second in command at the sheriff's department, was obviously being groomed to become the next Tippecanoe County sheriff, but because of the bad publicity that his son, Charlie Williams, Jr., has received since threatening to kill a private citizen, those plans were derailed.


A Republican Tradition: Passing the torch to the next friend in line
Political observers also note that Heath's election as Republican County Chairman was his first move toward initiating what some have labeled a "bait and switch scam."  Party chairmen have a lot of control, including appointing precinct committeemen to vacant positions. 

"In the event that Heath would have to step down as sheriff, let's say for health reasons, he'd be in a position of power to choose his replacement," commented a political insider. "I predict that replacement would be Major Charlie Williams.  If he can't get in through the front door, they'll make sure he comes in through the back."

There's also talk that Heath is not a full-time presence at his current job as director of the work release center.  Insiders say that Heath delegates much of his responsibilities, which is also why there is much speculation that a potential second role as sheriff during his retirement-aged years would also require a lot of job delegation.

"They just don't want to give up their power," commented one insider.  "It's arrogant to think they are the only ones who can provide law enforcement service to the public, but what they fear most is losing their power status.  They're out in full force trying to discredit the opponent by smearing him and spreading false rumors.  The FOP endorsement is a true indication of their desperation."

The brick wall Richard's opponents are having, however, is that it's hard to discredit someone who has been so visible and done so much good for the community.  Richard, a George Award winner, has worked with junior high school students for the past two decades as a DARE officer.  Hundreds of those students are now of voting age and many of them will be casting their first votes for their former mentor. 

Barry was also recognized for cleaning up the blight at the former Green Acres apartment complex and turning the Boys & Girls Club into a thriving organization.

"No one can outwork Barry Richard," said one of his supporters.  "And Barry's integrity speaks for itself."

Friday, April 11, 2014

Caught on Video: Law Abiding Citizen Threatened With Arrest for Refusing to Provide ID; Tells West Lafayette City Cop: "This is not Communist Red China!"

                                  Video submitted by Jon David Held of Lafayette

Two Purdue college friends were on their way to pick up a pizza from Papa John's recently when they were stopped by WLPD officer Nathaniel Biddle because of a burned out license plate bulb.  The driver complied with the officer's request to show identification and proof of insurance.

The passenger in the video, however,  challenged the legality of the police officers' demands that he also provide a driver's license.  Jon David Held, the passenger, verbally provided his name and date of birth and explained that he was not legally required to provide a driver's license since he was a passenger who had broken no law.  This challenge prompted Biddle to call back-up officer Marcus Slifer.   The officers warned Held that he must comply or they could arrest him.

"This is not Communist Red China!," Held argued during the exchange. Held stated that he should be able to go from his home to a pizza place without being stopped and harassed by the police and forced to show his papers.

Held explained to the officer that he wasn't trying to be uncooperative, but that he loves his rights and chose not to give them up.   Further, Held argued that he takes issue with being treated as if he were a criminal.  Held explained that he gets irritated when police officers treat innocent people like criminals when that's not how the constitution works.

Held center with hat was awarded an Eagle Scout badge by Sheriff Tracy Brown
During the conversation Held told the officer he was recording the incident.  Shortly after this disclosure, the officer told the driver he was free to leave.  Held did not provide a driver's license and was not arrested.

Since this issue continues to rear its ugly head in our community, the LCJ would like to address the misconception that officers are entitled to harass law abiding citizens for identification.

Many police officers, including the ones in this video, falsely claim that passengers who are riding in vehicles that are stopped for minor traffic infractions must provide a driver's license.

The Courts have stated otherwise, including the Indiana Court of Appeals in a 2010 decision against Indianapolis Metropolitan Police Officers, Charles Tice and Davis Ellis.

The defendant, Adam Starr, appealed his conviction of Refusal to Identify Self, a Class C misdemeanor, arguing that a vehicular passenger is not subject to the same criminal penalties by refusing to identify himself when there was no reasonable suspicion that he had committed an infraction or violated an ordinance.

The Appeals Court agreed with Starr.  You can read the entire ruling at this link.

"There is no showing that Starr was stopped as a consequence of any conduct on his part.  There was no reasonable suspicion that he had committed an infraction or ordinance violation, giving rise to an obligation to identify himself upon threat of criminal prosecution.  Accordingly, Starr did not fall within the purview of the Refusal to Identify Self statute.  His conviction must be reversed."

It is clear that the officers in this video and the one involving Erin Gardner had no probable cause for demanding a driver's license for passengers who had committed no criminal offense.

In Gardner's case, she was allegedly assaulted and arrested by LPD Officer Jeffrey Webb.  Gardner has stated that she intends to file a Civil Rights lawsuit as a result.

David Held didn't feel so welcome.
Held's situation did not escalate to the point of arrest, thankfully; however, his father is concerned that it could have easily turned into a nightmare for all parties involved.

"The officers were clearly trying to escalate this situation so they'd have a valid reason to shut what they thought of as a 'young punk' up," commented the senior Held.

"There was too much blood spilled across this country to just give up our rights," said Held who remains proud of his son for standing up against local tyranny.

Indiana Code 34-28-5-3.5 for Refusal to identify self clearly defines "A person who knowingly or intentionally refuses to provide either the person's: (1) name, address, and date of birth; or (2) driver's license, if in the person's possession; to a law enforcement officer who has stopped the person for an infraction or ordinance violation commits a Class C misdeanor."

Held was not driving, therefore, he did not commit any type of infraction.

Gardner was charged with Failure to identify self; however, she was also not driving the vehicle that was stopped.  The officer claims she was not wearing a seatbelt, although there was no way for him to know that since he did not see her until the car was completely stopped. 

Gardner has maintained that she was wearing a seatbelt when the car was moving, and did not remove it until she went to reach for her purse when the car was fully stopped.  She plans to sue the LPD in federal court for violating her civil rights.

It is obvious to most fair-minded people that these bogus charges are just a means for officers to abuse their power and the law.   They really need to focus on going after real crime and stop harrassing law-abiding citizens.





Monday, April 7, 2014

BREAKING NEWS: Lafayette Police Department, Officer Jeffrey Webb Sued in Federal Court For Alleged Fourth Amendment Violation & Battery

UPDATE:  WLFI-TV 18 has now reported this story.  They have provided a link to the documents.  You can read them at this link.


The City of Lafayette is facing yet another Civil Rights lawsuit filed against the Lafayette Police Department in the U.S. District Court for the Northern District of Indiana on April 7, 2014. The lawsuit was filed on behalf of Andrew Phillips of Lafayette.

Andrew Phillips claims Officer Webb violated his civil rights.
Also named in the lawsuit is LPD Officer Jeffrey T. Webb, the same officer who is the subject of  recent controversy in the matter involving alleged excessive force against Erin Gardner.

The suit alleges that on January 7, 2013 LPD officers Jeffrey Webb and Ron Dombkowski knocked on Phillips's door at his home located at 807 S. 29th Street.  They reportedly asked to search his home.  The request was denied, and Phillips asked to see a search warrant.  When the officers could not produce a warrant, they asked the Plaintiff to step outside to speak with them. 

The Plaintiff reportedly advised the officers that he would speak with them in his yard.  When Phillips exited the home he was asked for identification.  He refused to provide identification and asked why so many officers were present.  He was told to remove his hands from his clothing, which he did. 

Phillips was then asked to consent to a search after he told the officers he had a gun inside.  Phillips reportedly refused to allow the officers to search.  Webb then reportedly drew his gun and put it in "low ready at Plantiff's knees."

Phillips claims that at that point he was "physically spun around and had his hands placed above his head."  He claims he was then searched by Webb without consent. 

The Fourth Amendment to the U.S. Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


The suit alleges that Phillips was deprived of his Fourth Amendment rights against unreasonable search and seizure.

"At no time did facts and circumstances that Plaintiff was 'armed and dangerous' permitting a pat down by law enforcement," read a portion of the complaint.  "Because no reasonable suspicion existed at the time of the search of the Plaintiff, or at any other relevant time, no reasonable officer could have believed Webb's actions were within bounds of the law."

The lawsuit also alleges that Webb committed battery against Phillips "by intentionally touching Plaintiff's body in a rude, insolent, or offensive, harmful manner Webb did inflict a battery upon Plaintiff."

Lafayette attorney Kirk Freeman is representing Phillips who is asking  $100,000 in damages.

https://www.youtube.com/watch?v=6wXkI4t7nuc

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Saturday, April 5, 2014

Laura Zeman Could Learn A Few Lessons in Manners From Judge David Certo

What makes a successful judge? 

Here is contrast between two Republican judges: David Certo, a Community Court judge in Marion County and former Judge Laura Zeman of Tippecanoe County. 

As a prosecutor it has been Laura Zeman's job to be tough on suspected criminals.  Unfortunately Zeman carried that role with her to Superior Court over a decade ago, and soon became the first incumbent judge in recent history to be thrown out of office by voters because of it. 

Some say it was because she came with the mindset that defendants were guilty until proven innocent.  Many have complained that they were treated rudely by the harsh judge. 

Whether it was scolding an indigent and mentally-challenged defendant for referring to her as "Laura," or parading a large group of Purdue students who were arrested for underage drinking through her courtroom after notifying the local television news station that she would be doing so, Zeman consistently demonstrated a lack of judgment and compassion.

Russ Pulliam, Associate Editor of The Star, wrote an excellent article on a much different type of judge from Marion County.

David Certo, a Community Court judge, has a much different approach and efficient way to fight crime, writes Pulliam.

Judge David Certo talks to Russ Pulliam
"David Certo doesn't fit the stereotype of a no-nonsense conservative judge.  He talks about dignity and respect for the offenders who come before him for sentencing.  He has a food and clothing pantry for hungry and homeless lawbreakers.  And he and his small staff try to help offenders find jobs."

Can you imagine what types of changes could be made in Tippecanoe County with that type of attitude coming from a bench in Tippecanoe County?  Some people just need a hand up and not another smack down. 

Pulliam's article continues, “If I can take people out of the system and get them on the straight path, we’ve allocated our resources better,” Certo said in an interview between court sessions. “As a conservative I want to do what works. If treating people like neighbors works, let’s do more of that.”

In court he addresses offenders with a mix of threats of jail sentences and polite inquiries about their health. “Take care of yourself and stay out of trouble,” he concludes in sending a man charged with public intoxication to alcohol abuse treatment and two days on a community cleanup crew. “Let us know if we can help you in any way. We have food, we have clothing. We have a variety of ways we can help."

In about 10 percent of cases, the judge sends a person to jail. He prefers to see them motivated to get a job and help for alcohol abuse, sometimes through an assignment to the Salvation Army’s Harbor Light Center.

Other offenders are sentenced to work crews for neighborhood cleanups. Some also appear before a neighborhood impact panel, to hear from community leaders about how trespass or public drunkenness looks to crime victims.

“We’re trying to get people’s attention, not by hitting them over the head,” the judge said. “If you get arrested, and the end result is that you get a job, then everybody wins.”

The Golden Rule is simple.  Treat others the way you would like to be treated, which is why many in this community will not be part of an effort to send Laura Zeman back into the courtroom.  We believe Judge Donat comes much closer to the Certo-style judge than Zeman could ever hope to.

Laura Zeman is no David Certo.


Just ask yourself one question.  If you were a defendant, which judge would you prefer to stand before?

You can access Pulliam's story at this link.

Tuesday, April 1, 2014

High Courts Say Citizens Can Legally Defend Themselves Against Cops Who Use Excessive Force; Judge Les Meade Makes Huge Error in Judgment

In light of recent events involving local police many citizens are left wondering what recourse they might have in the event that a situation arises where an officer uses excessive force against them. 

It’s a fair question considering the fact that LPD officers admittedly threatened to kill Tim VanderPlaats after he accepted a hug from one of the officer’s girlfriends.  VanderPlaats was later beaten unconscious, leaving many to wonder whether or not police officers acted on the verbal threats.  Astonishingly, the officers are still patrolling Lafayette streets.

Interestingly, the question of using force against a rogue cop was answered in a 2006 ruling by the Indiana Court of Appeals after justices unanimously overturned a ruling by Tippecanoe County Superior Court Judge Les Meade involving a citizen’s right to defend himself against a police officer who used excessive force.  

The details of the ruling didn't receive much media coverage, however, so many citizens remain in the dark concerning this obscure, but important common law.  Self-defense is as old as the Magna Carta, and yet a Tippecanoe County judge did not believe it to be so.  The actions Meade took in the courtroom that day should concern every Tippecanoe citizen, especially since he is seeking a higher judicial office in the upcoming election.
Judge Les Meade was overturned on appeal.

At issue was whether Meade “committed a reversible error when he declined to give a proposed instruction that informed the jury about a defendant’s right to protect himself when arresting officers use excessive force.”

The proposed instruction, which was denied by Meade, read, “The law does not allow a peace officer to use more force than necessary to effect an arrest, and if he does use such unnecessary force, he thereby becomes a trespasser, and an arrestee therefore may resist the arrester’s use of excessive force by the use of reasonable force to protect himself against great bodily harm or death.  If you find that Officer’s Myer and Wilson used more force than necessary to effectuate the arrest, then Shane Wilson was permitted to resist the arrest to such an extent as necessary to protect himself from great bodily harm or death, and you must find him not guilty of resisting law enforcement…”

Meade erroneously ruled that a person could not resist an unlawful arrest and stated that a person must bring an action later, but not resist the arrest.  According to the ruling Meade made this as a statement of law in error.  AttorneySteve Knecht aptly pointed out at the time that “a defendant who is killed by [an] arresting officers’ excessive force would be unable to pursue a civil court action.”  Meade reportedly acknowledged Knecht’s statement, but still refused to allow such an instruction to be given to be given to the jury.

To add insult to injury, Meade did allow a deputy prosecutor to inform jury members “that they had ‘taken an oath to follow the [erroneous] instructions by the judge’ and that they should notice that the instructions given to them did not state ‘that if the officer is shooting your tire, that gives you the license to take off.  There is not going to be anything that even resembles that in the instructions.’”

The prosecutor’s statements were false, because not only does a jury have the right to judge both the law and the facts, but the Court of Appeals also ruled that they should have been instructed that citizens have the right to protect themselves against bodily harm when excessive forced is used by a police officer.  This common law has also repeatedly been upheld by the United States Supreme Court.

“Meade has shown poor judgment in this and other cases,” commented one Lafayette resident who asked not to be identified.  “He has threatened to put lawyers and police officers in jail and he just doesn’t have the right temperament to sit on a judicial bench in any courtroom.”

The Overturned Case: Clinton County Officers Fired Shots at Fleeing Vehicle Injuring Defendant

 

The appeals case involved Shane Allen Wilson of Mulberry who was appealing his conviction of resisting law enforcement by fleeing, a Class D felony.

The Court of Appeals provided a case history in its ruling.  We have provided the history, in part, below to give our readers an idea of what was at stake in the matter:

On September 6, 2003, Officer Matthew Myers, a Clinton County Deputy Sheriff and Town of Mulberry Police Officer, noticed a red, white and blue truck proceeding down a road in a rural area of Clinton County, Indiana.  Myers knew that Shane owned the truck and that an arrest warrant had been issued due to an alleged violation of Shane’s probation.

Officer Myers initiated a stop just as Shane turned onto a county road in Tippecanoe County.  Although Myers parked at least fifty feet behind Shane’s truck, he heard Shane protesting screaming and immediately confirmed Shane’s identity.  Shane, appearing nervous and agitated, told Officer Myers, ‘Let me go, or I’m going to run.’  Officer Myers jogged to the truck as Shane started to pull away, and Shane stopped the truck.  Officer Myers then requested that Shane put the truck in park, turn off the engine, and exit the vehicle so the two could talk.  Shane partially complied by putting the truck in park.

Shane then stated that this would be the day he (Shane) would die if Officer Myers persisted in taking him to jail.  Shane asked Officer Myers to ‘give him a break and let him go,’ and Officer Myers informed him that he could not do so.  At some point during the conversation, Officer Myers, who had recently talked to Shane’s parents about the arrest warrant, remarked, “fifty-seven days left,” to indicate the amount of time left on the warrant.  Shane’s truck started ‘to roll again,’ but Shane applied the brakes when Officer Myers told him to do so.  Shane then became very agitated and began to cry.

Mulberry Town Marshall Glenn Wilson soon arrived and walked up to the truck while Officer Myers continued to talk to Shane.  When Shane saw Wilson, he said, ‘Let me go, Glenn…’  Wilson responded, ‘Shane, you know you’ve got to go to jail today.’  Shane then began yelling that he couldn’t go to jail.

At this point, the State’s evidence is conflicting.  Officer Myers and Wilson testified that Shane started to pull away at a high rate of speed, and then both officers began shooting at the truck’s tires.  Clinton County Deputy Sheriff Jared Blacker testified that just before he turned a corner near the scene he heard the shots, and as he turned the corner he observed the truck’s tires spinning as it began to ‘take off…’

Wilson flattened the truck’s left rear tire by firing two shots from his handgun. Wilson then tried to shoot the right rear tire but hit the license plate instead.  Officer Myers fired seven shots at the truck as it moved away from the scene.  Some of the shots hit the truck’s bed, and one shot passed through the back driver’s window and out the front windshield, resulting in a head injury to Shane.  Shane proceeded a quarter mile down the road, where he jumped out of the truck and ran to a nearby barn.  He surrendered to the officers without further incident.

Shane was subsequently charged with and found guilty of resisting arrest by fleeing.  Officer Myers and Wilson both were charged with criminal recklessness, but neither had been tried at the time of Shane’s trial.  Shane was sentenced to three years’ imprisonment with one year suspended.  He now appeals.

The Ruling: Protecting Citizens From Overly-Aggressive Cops


Lafayette attorney Steve Knecht
The decision, handed down on February 17, 2006, was unanimous.  Judge Les Meade had erred by not allowing the jury to be instructed on Shane's right to self-defense when these officers were obviously using excessive force that could have killed him.

In its ruling, the court cited a previous Supreme Court ruling (Plummer) wherein the defendant shot and killed the Kentland Town Marshal after the officer struck him with a club and fired shots at him.  The defendant returned fire and killed the marshal.   

In that case, the Indiana Supreme Court held that a police officer "may not use more force than necessary to effect an arrest.”  The court held that “if an officer is resisted before he has used “needless force and violence,” he may then “press forward and overcome such resistance, even to the taking of the life of the person arrested, if absolutely necessary.” 

The ruling went on to say, “The court noted that the marshal had not indicated to the defendant that he was under arrest and that there had been no necessity for the marshal to strike the defendant with his billy club.  The court reasoned that the marshal therefore became a ‘trespasser’ and that the marshal’s assault with the billy club, coupled with the discharge of his weapon, ‘gave [the defendant] the clear right to defend himself.’”
"When a person, being without fault, is in a place where he has a right to be, and is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.”
The justices noted that Meade “erroneously believed that the rule stated in [the Plummer case] had been set aside.”

The court did caution; however, that citizens “may not resist a peaceful, though illegal, arrest” and said the ruling “was not intended as a blanket prohibition so as to criminalize any conduct evincing resistance where the means used to effect an arrest is unlawful.”
“We concluded that a citizen has the right to resist an officer that has used unconstitutionally excessive force in effecting an arrest, but the force used to resist the officer’s excessive force may not be disproportionate to the situation.”
In the end, Shane's conviction was duly vacated.  You can read the entire ruling at this link.