Indiana Court Decisions – Aug. 17-29, 2016

7th Circuit Court of Appeals

Aug. 24

Immigration – Discretionary Cancellation

Maria Eudofilia Arias v. Loretta E. Lynch, attorney general of the United States

14-2839

The 7th Circuit Court of Appeals is concerned about the classification of every crime involving deception involving “moral turpitude,” which would prevent some unauthorized immigrants from seeking discretionary cancellation of removal under the law.

Maria Eudofilia Arias, who has been in the country illegally since 2000 and works at Grabill Cabinet Co. in Grabill, Indiana, was charged in federal court in 2010 with falsely using a Social Security number to work for Grabill. She pleaded guilty and was sentenced to “just about the lightest felony sentence one is likely to find in modern federal practice,” Judge David Hamilton wrote, one year of probation and a $100 special assessment. After completing probation and receiving employment authorization, Grabill rehired her. The company calls her an “excellent employee.”

Also in 2010, Arias received notice to appear for removal proceedings. She applied for cancellation of removal under 8 U.S.C. Section 1229b(b)(1). The attorney general of the United States may cancel the removal of unauthorized immigrants who have been in the country for at least 10 years and can show removal would cause exception and extremely unusual hardship to their children, spouses or parents who are U.S. citizens. Arias’ two youngest children are U.S. citizens.

The immigration judge held her crime was a crime involving moral turpitude, which then bars discretionary cancellation. The Board of Immigration Review upheld the finding.

Hamilton noted the conflict in this case, as the rule that all crimes involving any element of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude. But there is also significant precedent indicating that deceptive conduct is morally turpitudinous.

“Arias’s case brings into focus the troubling results that would follow from a rule that every crime that involves any element of deception involves moral turpitude. As of 2014, unauthorized immigrants made up about five percent of the United States labor force,” wrote, citing the Pew Research Center. “Has every one of those millions of workers who gives a social security number to her employer committed a crime involving moral turpitude? Those persons are removable because they are not in the United States lawfully. The issue for Arias and all the others is whether they are barred from even discretionary relief because they have provided false social security numbers so that they can work and pay taxes.”

“It seems inconsistent with the terms ‘base, vile, or depraved’ to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude.”

The 7th Circuit remanded the matter because of “the unsettled state of the law” regarding how the board must go about determining which crimes involve moral turpitude. In between the board’s order and the briefing in Arias’ petition for 7th Circuit review, the attorney general of the United States vacated the order that had set the approach the board used to determine the crime involved moral turpitude. No replacement framework has yet emerged, Hamilton noted.

Judge Richard Posner wrote a concurring opinion, focusing on the concept of “moral turpitude.”

“It is preposterous that that stale, antiquated, and worse, meaningless phrase should continue to be a part of American law. Its meaningless is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals,” he wrote.

“If anything is clear it’s that ‘crime of moral turpitude’ shouldn’t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that’s what the Board of Immigration Appeals did in this case, in upholding the immigration judge’s conclusion that the petitioner had committed a crime of moral turpitude.”

Indiana Court of Appeals

Aug. 18

Juvenile – Child in Need of Services

In the Matter of: A.H. (Minor Child), Child in Need of Services, and A.H. (Mother) v. The Ind. Dept. of Child Services

49A04-1601-JC-42

The Indiana Court of Appeals in a child in need of services case questioned why the Department of Child Services was able to not comply with multiple court orders and face no consequences from the juvenile court.

A.H.’s daughter, also A.H., was found to be a child in need of services in November 2015. The daughter has had a difficult past, the Court of Appeals noted. She was bullied so much for being interracial that she was admitted to a psychiatric hospital. At 14, she became pregnant and was raped while eight months pregnant. Her son has been adjudicated as a CHINS.

The girl has been arrested several times for violent outbursts and diagnosed with anxiety disorder, separation anxiety, and depression. DCS became involved in June 2015 after it received a report the girl hit her brother. A month later, DCS filed a petition alleging the girl was in need of services because of her mother’s “inability, refusal, or neglect” to get her services. Mother told DCS she had been taking the girl to see mental health service providers for years but she refused to participate.

The juvenile court ordered DCS to set up therapy and a psychological evaluation for the child, but for four months failed to do so. In fact, the evaluation wasn’t set up until November and the results were not available at the time of the Nov. 16 and 23 fact-finding hearings.

Mother testified at the hearing that her daughter was benefiting from therapy. But the juvenile court adjudicated the girl as a CHINS, noting “the statute also says unable and I do think you’ve been unable for whatever reason to get the help that your daughter needs,” according to the court record.

Citing In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014), the COA reversed. There is no evidence in the record to support a finding that mother would not provide care to her daughter without the coercive intervention of the court, Judge John Baker wrote. Unless the lack of the daughter’s recovery is attributable to some action or inaction by the mother, the lack of recovery alone cannot support a CHINS determination.

He wrote the adjudication was “particularly troubling in this case, given DCS’s inexcusable lack of diligence in referring Child for a psychological evaluation.”

“For DCS to fail to refer Child to a psychological evaluation, for four months and despite multiple court orders, and then to pursue a CHINS petition in which it claims that Mother was unable to supply Child with medical care, is simply indefensible. Moreover, we question why the juvenile court put absolutely no consequences in place for DCS’s repeated failures to comply with court orders. DCS should not be permitted to violate court orders with impunity,” he wrote.

Chief Judge Nancy Vaidik concurred in result without separate opinion.
__________

Aug. 19

Protective Order – Stalking

Joshua Perry Cruse v. C.C.

41A01-1512-PO-2345

An ex-husband’s actions that prompted a woman to get a protective order against him did not constitute stalking or threatening behavior sufficient to warrant the court order, the majority of an Indiana Court of Appeals panel ruled. A dissenting judge warned the holding “insulates perpetrators of domestic violence” who threaten friends or associates of former partners.

The court reversed a Johnson Circuit Court protective order that limited Joshua Cruse’s communication with his ex-wife to only that regarding their three children.

A key incident preceding the issuance of the order was Cruse’s confrontation with his ex-wife’s companion after his son’s baseball game, during which Cruse held a bat and “got up in this gentleman’s face and told him that he better not come around our kids again and he felt threatened enough that he left,” according to his ex.

Judge Edward Najam dissented from the majority that found no basis for stalking or other behavior sufficient to support a protective order.

“C.C. proved that Cruse deliberately initiated three aggressive encounters with her, and Cruse’s conduct is symptomatic of controlling behavior, which is a form of domestic violence,” Najam wrote in his dissent. “I would hold that the trial court did not commit reversible error when it concluded that C.C. carried her burden of proof by a preponderance of the evidence and issued an Order of Protection.”

But Judge John Baker, in a majority opinion joined by Chief Judge Nancy Vaidik, wrote, “As the only evidence in the record regarding the bat establishes that Cruse was holding it in a non-threatening manner, and C.C. did not even mention the bat, we strongly disagree with the dissent that this suffices to establish that Cruse attempted or threatened to cause physical harm to anyone. We certainly do not believe that this holding in any way ‘insulates perpetrators of domestic violence.”

The majority wrote that there was insufficient evidence to support a finding that Cruse stalked his ex. “Although she did comment that at one point she felt intimidated, most of her concerns were based upon the way other people were reacting to Cruse,” Baker wrote. “She was not frightened, she merely ‘preferred’ that Cruse not be around when she was with the children. We also find insufficient evidence that Cruse’s course of conduct would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened.”
__________

Aug. 22

Criminal – Sexual Misconduct With a Minor

Larry R. Beedy, Jr. v. State of Indiana

48A02-1510-CR-1703

The majority of a Court of Appeals panel reversed the conviction of a young man who claimed he was wrongly denied an opportunity to present Indiana’s “Romeo and Juliet” law as an affirmative defense to a charge of sexual misconduct with a minor.

Larry R. Beedy was 17 when he began having sex with a girl who was three years and nine months younger. Before his conviction of the Level 5 felony in this case, he had a prior juvenile adjudication for what would have been sexual misconduct with a minor if committed by an adult because of his relationship with the same girl, A.W., who testified their relationship was consensual and both desired to be married.

As a matter of first impression, the court faced the question of whether someone with a prior adjudication for a sex offense may present the “Romeo and Juliet” statute at I.C. 35-42-4-9(e) as an affirmative defense to a subsequent charge. The statute generally allows an affirmative defense to minor-sex charges for someone who is less than four years older than the victim and who is in an ongoing or dating relationship with the victim.

“Having determined that the statutory language is unambiguous, we need not address the State’s various arguments construing the statute contrary to its plain meaning. Further, to the extent the State’s arguments are based on policy considerations, this is not the proper forum. We therefore conclude that Beedy established his entitlement to the defense found in I.C. § 35-42-4-9(e), and consequently, his conviction cannot stand,” Judge Robert Altice wrote in the majority opinion joined by Judge L. Mark Bailey. “We reverse and remand this cause with instructions to vacate Beedy’s sexual misconduct with a minor conviction.”

Dissenting Judge Cale Bradford wrote that Beedy’s prior adjudication should preclude his affirmative defense under the statute because he had sex with a victim legally unable to consent. He would affirm the conviction.

“Beedy should have learned his lesson before, that even true love would not be an excuse to, in essence, recommit the same unlawful act. I can think of no reason why it should matter that it was the same child he was charged with victimizing here,” Bradford wrote.

Civil Plenary – Access to Public Records Act

David Heber v. Indianapolis Metropolitan Police Department, and City of Indianapolis Office of Corporation Counsel

49A02-1603-PL-549

The Indianapolis Metropolitan Police Department and the city’s Office of Corporation Counsel pursued a ‘wholly meritless, possibly frivolous argument’ in a public-records case, the Court of Appeals ruled. The city will pay the legal fees of a man who sued to obtain records after he was denied.

David Heber was one of two men robbed at gunpoint in Indianapolis in May 2015. After he received an incident report for police, he asked for more investigative records, which were denied after multiple requests. The Indiana Public Access Counselor opined that Heber was entitled to the particular records he requested, but IMPD and the city refused to turn them over.

At this point Heber sued, but the city argued that as a public agency, IMPD and the OCC could not be sued. The trial court dismissed, and Heber filed the instant appeal. Judge Michael Barnes noted that the city defendants didn’t file an appellate brief, but rather stipulated the case should be reversed on the basis of Lane-El v. Spears, 13 N.E.3d 859 (Ind. Ct. 2014). But they could have done so much sooner.

“The Appellees failed to disclose Lane-El in its legal memorandum to the trial court accompanying its motion to dismiss. There is no contrary authority regarding the propriety of suing entities such as the Appellees under the [Access to Public Records Act],” Barnes wrote. Lane-El “was final for nearly eight months before the Appellees filed their motion to dismiss, which claimed solely, and contrary to Lane-El, that they could not be sued under the APRA.”

The panel reversed dismissal, finding the failure to cite controlling authority and the erroneous ruling necessitated expense and delay. Heber is entitled to fees under Indiana Appellate Rule 67.

“Although we commend the Appellees for now conceding that the motion to dismiss must be reversed, the fact remains that the motion was granted and Heber had to pursue this appeal because of a wholly meritless and possibly frivolous argument by the Appellees,” Baker wrote. The case is remanded for a calculation of fees.
___________

Aug. 23

Civil Tort – Indiana Tort Claims Act

Kyleigh Nolan v. Clarksville Police Department and Town of Clarksville, Indiana

10A04-1510-CT-1824

A young woman who suffered a broken nose trying to help law enforcement can have her estoppel claim move forward even though she did not file a timely notice under the Indiana Tort Claims Act.

Kyleigh Nolan, 19, filed a lawsuit against the Clarksville Police Department and the town of Clarksville after the two entities failed to pay her medical expenses. She had volunteered to play a hostage during a training exercise for the local police department and broke her nose after she collided with officers.

Nolan and her mother were assured on different occasions by Police Chief Mark Palmer that the town would cover her medical bills related to the accident. However, neither the department nor the municipality ever paid any of Nolan’s medical expenses.

In early 2014, Nolan filed a lawsuit against the department and the town. The town countered with a motion for summary judgment arguing Nolan had not provided the pre-suit notice of her claim within 180 days of the incident as required by the ITCA.

Clark Circuit Court Special Judge Susan Orth granted summary judgment in favor of Clarksville.

On appeal, the Indiana Court of Appeals upheld part of the trial court’s dismissal of Nolan’s lawsuit on the grounds that she did not provide the municipality with required 180-day notice that she was going to sue.

But the appellate court found there was a genuine issue of material fact as to whether the town should be estopped from asserting her non-compliance as a defense. It remanded the case, finding Nolan is entitled to present her estoppel claim to a jury at trial.

In particular, the Court of Appeals noted the police told Nolan her medical expenses would be covered. Nolan neither knew nor had any way of discovering that the municipality was not going to pay and, instead, relied on Palmer’s assurances to her detriment.

Clarksville argued that Nolan cannot satisfy the detrimental-reliance prongs because there is no evidence that she did not file the tort-claim notices because of what Palmer said.

The COA was not convinced. It pointed out that an ITCA plaintiff claiming estoppel does not need to show she was aware of the notice requirement and would have complied but the conduct of another stopped her from doing so. Indeed, Nolan only has to show that she detrimentally relied upon Chief Palmer’s statements.

“The evidence that Nolan and her mother attempted to work with Chief Palmer and to follow his instructions regarding the submission of medical bills, rather than filing a notice of a claim, is sufficient to create a genuine issue of material fact on the detrimental-reliance elements,” Chief Judge Nancy Vaidik wrote for the court.
__________

Aug. 24

Criminal – Motion to Suppress

Thomas Pinner v. State of Indiana

49A02-1511-CR-2036

By a 2-1 vote, the Indiana Court of Appeals reversed the denial of an Indianapolis man’s motion to suppress a handgun found on him after officers questioned him in a lobby of a movie theater. The majority ruled the officers had no reasonable suspicion to justify the investigatory stop.

Indianapolis police officers Jason Palmer and George Stewart responded to a call from a cab driver who said a passenger dropped a handgun when exiting the cab at Studio Movie Grill. He indicated he was fearful of being robbed, but the driver left the scene before officers arrived. The driver gave a description of a black male wearing a blue jacket who was with a black female with blonde hair.

The officers saw a woman matching that description walk away from Thomas Pinner, who matched the male’s description. The officers approached Pinner, who was alone on a bench in the lobby, told him there was a report of a man with a gun and asked if he had a gun on him. Pinner denied having one, but was hesitant to answer. When officers asked him to stand, Palmer saw a butt of a gun in his front pocket. Pinner was arrested when Palmer discovered he didn’t have a license to carry.

The Class A misdemeanor carrying a handgun without a license charge was elevated to a Level 5 felony due to a prior commission of a felony. Pinner filed a motion to suppress, and the trial court denied it, finding the officers had reasonable suspicion to approach and question Pinner.

On interlocutory appeal, the Court of Appeals reversed. The majority found it was not a consensual encounter where Pinner would feel free to get up and walk away. Two armed officers did not make small talk and stood in front of him as they asked him questions, Judge Melissa May wrote. This was an investigatory stop, which required reasonable suspicion. Mere possession of a firearm, which is legal, cannot produce a reasonable suspicion to justify a Terry stop, she wrote. The state presented no evidence as to why the police believed Pinner’s possession of the gun was illegal or that other criminal activity was afoot.

Judge Elaine Brown dissented, citing a recent Mississippi case, U.S. v. Scott, 2015 WL 450864 (S.D. Miss. July 24, 2015), which was affirmed by the 5th Circuit Court of Appeals. In Scott, officers responded to an anonymous tip that drugs were being sold in a specific spot in a high-crime area. Officers saw Scott acting nervously and adjust his waistband. He was told he did not have to leave. When Scott lifted his arms, officers saw a gun in his waistband. The court held a seizure did not occur until the gun was discovered.

But the majority pointed out that Pinner was alone in a movie theater lobby, not acting in any manner consistent with illegal activity. Also, Scott had room to walk away whereas Pinner could only exit by standing and walking between the two officers who had already asked him pointed questions.•