Monday, February 24, 2014

Tippecanoe County Prosecutor Called Out By Attorney-Blogger for Illegal Civil Forfeiture Practices

Law Enforcement Agencies Across State Engage in Shakedown of Mexican Restaurants for Cold-Hard Cash

By Paul Ogden
Ogden on Politics

The Indianapolis Star reports:
Officials are looking to hang on to the more than $3.4 million confiscated last fall during raids at dozens of Mexican restaurants in Indianapolis and other locations across the state.

In a civil forfeiture lawsuit filed Friday, the Tippecanoe County prosecutor's office accuses El Rodeo's owners and other parties in the businesses of obtaining the money illegally. Therefore, the suit claims, the defendants should forfeit the money and return it to the criminal justice system.

Police across the state served search warrants Nov. 18 during raids at restaurants and homes. El ­Rodeo establishments in Indianapolis, Avon, Lafayette, West Lafayette, Richmond, Fortville and Mooresville were searched.

Other Mexican-themed restaurants also were raided, including El Jaripeo eateries in Indianapolis, Lebanon, Frankfort and Zionsville; Los Toros restaurants in Indianapolis; and three La Carreta Restaurant & Bars, in Schererville, Vincennes and Merrillville.

The Tippecanoe County lawsuit ­alleges that perjury and forgery ­occurred through falsified tax documents, business formation documents, employment records and tax returns.
Is Pat Harrington breaking the law on civil forfeiture?
The Tippecanoe County allegations seem more than a bit dubious. Alleged perjury and forgery on those types of tax and business documents would not generally be something targeted by prosecutors. However, local prosecutors and law enforcement agencies could well have been incentivized to conduct the raid in order to get their hands on cash for their departments. Under Indiana law, they don't have to pursue criminal charges against these restaurant owners. Instead in a civil case, those owners will have to hire their own attorneys and face a lower standard of proof, all the while facing the possibility of being criminally prosecuted if they don't give in and let the prosecutor and law enforcement agencies keep the money. People for whom English is a second language are even more intimidated by this type of lawsuit.. Many of those who are hit with civil forfeiture just end up walking away from their cash and property rather than try to fight.

Nonetheless, under Indiana law, law enforcement is only entitled to keep civil forfeiture proceeds to cover the cost of the action. The balance is to go to the Common School Fund. My research updated a couple years ago, showed that officials in Tippecanoe, Marion, Hendricks, Madison and Morgan counties, all places where these raids took place, are simply pocketing 100% of the money in contravention of the law. The article does, however, note a raid took place in Richmond, Indiana. In that county, the Wayne County Prosecutor was one of the few prosecutors in the state who made it a point to determine law enforcement costs in civil forfeiture actions in accordance with the law and to cut a check to the Common School Fund for the balance.

About Paul Ogden:  I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate. During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases. I have also been politically active and run this blog in an effort to add my voice to those calling for reform.

Sunday, February 23, 2014

Justice Rush Authors Unanimous Opinion Against DCS Instrusion Into Family's Life Without Just Cause

Supreme Court Justice Loretta Rush
Supreme Court Justice Loretta Rush, a Lafayette resident and former Tippecanoe County Superior Court 3 judge, authored a unanimous opinion against the Marion County Department of Child Services  recently for intruding into a family's life without proper justification.

The case centered around a mother of five children, including a two-year-old who required hospitalization for cardiomyopathy.  The mother was forced to move from her Gary, Indiana home to Indianapolis where the child was placed on a ventilator at Riley Hospital for Children.

The Department of Child Services initiated a CHINS (Child in Need of Services) proceeding against the mother because she failed to enroll them in school and became "disengaged from her child's hospital care plan" because of her overwhelming responsibilities as a single mother.  She allowed DCS to remove the four siblings from her care to focus on the care of her hospitalized child.

The mother worked diligently to find stable housing and employment and the four children were eventually returned to her care; however, DCS refused to release the sick two-year-old to her custody because she had not met the training requirements to care for the child upon her release.  The hospital would not discharge the child until mother and a second caregiver completed significant medical training. 

The child's grandmother had volunteered to be a second caregiver; however, DCS would not approve of her based on a background check.  The mother scrambled to find a replacement back-up, but had difficulty doing so on short notice.

"Child in need of services (CHINS) cases aim to help families in crisis—to protect children, not punish parents," wrote Justice Rush in the unanimous ruling.   "Our focus, then, is on the best interests of the child and whether the child needs help that the parent will not be willing or able to provide—not whether the parent is somehow “guilty” or “deserves” a CHINS adjudication."

Justice Rush also chided DCS for creating the issues that prevented mother's reunification with her sick child.

"Mother's most significant failure--to complete the home-care simulation--appears as much a product of DCS's intervention as it is a sign for her need for that intervention," wrote Rush, who also pointed out that DCS's disapproval of the grandmother required the mother to "go back to the drawing board" to recruit someone else.

The ruling stated that the children may have needed the state to step in at first, but by the time there was a hearing on the case, the family no longer needed services.  The mother had refused public assistance and had instead relied on help from family members. 

The mother also refused to apply for a job at the post office after the state had set up an interview.  In addition, the mother found her own employment and said she did not wish to pursue that type of work, which apparently upset DCS case workers.

"DCS's desire to help the family was understandable, but the facts simply do not justify subjecting the family to State compulsion," wrote Rush.  "When ...coercion is not necessary, the State may not intude into a family's life."

Rush admonished DCS for  it's unnecessary intervention into this family's life and blamed the state for delaying the child's return to her parent's custody.

Justice Rush wrote that the mother "had difficulty meeting the demands of a situation that would test the mettle of any parent," but she might have been able to overcome those obstacles if the state had not intervened.  Rush went on to say that DCS added to the delay in the child's return from the hospital.

Judge Rush Receives Praise From Supreme Court Colleagues

Aside from the fact that Justice Loretta Rush is a crown jewel from Lafayette, she is more than qualified to write this ruling as she presided over CHINS cases in Tippecanoe County Superior Court 3 for over 14 years.

Rush was recently featured in the Purdue Exponent in an article entitled, "Purdue Women Feature: Loretta Rush worked her way up from Purdue to Indiana Supreme Court Justice," wherein she received accolades from colleages, including Senior Justice Brent Dickson, another shining star from Lafayette.
“She is an immensely hard worker, extraordinarily well-prepared, an excellent opinion writer, and contributes (to the court) with wisdom, grace and a good sense of humor,” Dickson wrote in an email.

Another Indiana Supreme Court justice and former juvenile trial court judge, Steve David, agreed with Dickson and spoke very highly of Rush.
“Passion is her personality, she takes what she does, and always has, very seriously,” David said.
The contributors at the Lafayette Citizen Journal believe the accolades are well-deserved. 

Photo:  Justice Brent Dickson administers the oath of office to Justice Loretta Rush.

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