Dick Cheney and his Secret Service Agents left the City of Evansville high and dry defending against a civil rights lawsuit brought by protestor, John Blair who was carrying a sign saying “Cheney: 19th Century Energy Man”, as result of the security measures insisted upon by Cheney’s Secret Service Agents when Cheney attended a fund raiser for Rep. John Hostettler (R-Ind).

Judge McKinney found that the City of Evansville violated Mr. Blair’s 1st and 4th Amendment rights. Monetary damages have yet to be determined. The Evansville City Attorney David Jones complained bitterly:

Jones faulted the Secret Service, who devised the security plan for Cheney but failed to help Jones defend the city in a lawsuit brought after environmental activist John Blair was arrested for violating the Secret Service’s no-protest zone. Jones said the Secret Service refused to provide evidence, testimony and witnesses he needed to make the city’s case. Jones also said the Secret Service “used” city police to provide costly security and then abandoned the city when problems arose. “This is not fair,” said Jones. “We’ve been used like a pair of work gloves and when we were no longer handy, we were just discarded.”

Jones noted he’d asked the Secret Service to allow him to question the agent who instructed city police on the details of the no-protest zone. The agent told police that protesters had to be kept at least 500 feet away from the entrance to The Centre, where Cheney was appearing at a Republican fund-raiser for Rep. John Hostettler. But that agent apparently no longer works for the Secret Service; Jones said the agent’s supervisors told him that the agent couldn’t be located.

(emphasis mine). The Secret Service can’t locate a former agent? Nice Homeland Security. Some details follow.

John Blair, an Evansville photographer and writer, was arrested after entering a large “no-protest” zone surrounding “the Centre”, the site of a February 6, 2002 Cheney visit to Evansville where Cheney was attending a fundraiser for Rep. John Hostettler (R-Ind.). The large “no-protest” zone was set up by the Evansville City Police at the direction of Cheney’s Secret Service detail. Blair was carrying a sign that said, .

Blair had intended to meet people near the Centre, however, when they did not show up by 4:15 p.m., he walked toward the venue. Id. at 14-17. Blair did not see any area designated for protest and did not see any person in the designated protest area as he walked by. Id. at 17. Therefore, he walked to an area where people attending the event could see his sign.

Blair stood silently with his sign on the sidewalk at a spot about 100 feet from the entrance where people could easily get around him.

[Evansville Officer] Welcher indicated that there was a designated area for protesters that Blair had to go to if he wished to engage in protest. Blair objected and noted that the Civic Center of the community should be an appropriate place to engage in protest. Nevertheless, Welcher indicated that Mr. Blair had to move on. Blair asked on whose authority this order was being made. Welcher indicated that he had created a Public Safety Order requiring him to move on. . . . Blair and Welcher talked for about two to three minutes. At some point Welcher stated that if Blair did not move he would be arrested. . . . Blair did not want to walk to the end of the street to the location pointed out by Welcher because this area was so far away that no one attending the event, including the Vice President,
would be able to see his sign. . . . After a few minutes, Blair began to move away from the Centre towards the protest zone. . . . However, at least one time Blair stopped to direct more inquiries to Welcher. When Mr. Blair was about ten to twelve feet away from where he had originally been on the sidewalk, he turned and asked Welcher if he could stand in the parking lot on the other side of Ninth Street where people were parking. Welcher refused this request. Welcher then gave the order to arrest Blair.

Blair was incarcerated for two hours before bonding out. The charges were dropped about 2 weeks later.

The court found that the no-protest zone in this case and the creation of a designated protest zone was not a reasonable restriction on Blair’s freedom of speech. The Court found that a designated protest zone 500 feet from the only entrance to the venue was excessive and that the Defendants’ purported concern over Cheney’s safety was belied by the fact that Cheney’s motorcade would pass a sidewalk away fromt he protest zone.

[T]he Court also conclude[d] that the protest zone was not an adequate alternative channel for communication by protestors. Although an adequate alternative channel for communication need not be the speaker’s first or best choice, it must be more than merely theoretically available. It must be realistic as well. Furthermore, an adequate alternative cannot totally foreclose a speaker’s ability to reach one audience even if it allows the speaker to reach other groups. In the case at bar, the protest zone was 500 feet from the entrance for attendees, and well over 500 feet from the parking lot where the majority of attendees would park for the event. This limitation significantly curtailed Blair’s ability to convey his message to one of his major targets: the event patrons.

With regard to Blair’s Fourth Amendment claim, the Court rejected the Defendants’ claims that Blair could reasonably have been believed to be engaging in disorderly conduct or resisting law enforcement.

The City of Evansville and the individual officers were found to have violated Blair’s First and Fourth Amendment rights. (The individual officers are not liable to Blair on the First Amendment issue because, prior to this case, the law surrounding this type of First Amendment case was not sufficiently clear to make a reasonable officer aware that he was violating a Constitutional Right. The individual officers are, therefore, entitled to qualified immunity on the First Amendment claim. There is no similar immunity available for the City of Evansville. And there is no qualified immunity available on the Fourth Amendment claims. Presumably, now that this case has issued, the First Amendment law is sufficiently clear (at least in the Southern District of Indiana) to put officers on notice and, therefore, subject them to liability.)

The only issue remaining in the case is the extent of Blair’s damages and how much the City and the Officers will be required to pay Blair.

Sources:

Judge McKinney’s decision (pdf)

Evansville Courier Press story (free registration may be required.)

Indy Star story

The Evansville Courier Press has an opinion on the Consumer Bankers Association’s effort to have federal law supercede Indiana state law to allow its member Banks to engage in telemarketing to Indiana customers.

The Courier Press takes a states’ rights position on this one. I don’t know what the proper federalist position on this one is, but I certainly don’t appreciate the effort to water down Indiana’s do not call list. Turns out the Banks may have walked into a buzzsaw with this one. The Courier Press closes its opinion with this:

In the meantime, Indiana lawmakers are making an effort to send a message to the bankers. In addition to the efforts of Bayh and Lugar, state lawmakers have drafted legislation to prohibit violators of the Indiana law from doing business with the state, reports .

State Sen. Greg Server, R-Evansville, called it a “back at ya'” to the banks.

According to the AP, because of the issue, three banks headquartered in Indiana have disassociated themselves from the group’s FCC petition, and one has severed its membership.

They got the message: Don’t mess with Indiana’s no-call list.

The Evansville Courier Press offers its opinion on the Inspector General bill. They don’t explicitly endorse the House Democrats’ perspective, but seems as if the Courier Press sees eye-to-eye with them rather than the House Republicans:

In the Senate bill that passed the House unanimously this past week, the inspector general would investigate cases, and if after six months a county prosecutor declined to file charges, the inspector general could petition the Indiana Court of Appeals to have the case moved to the inspector general or another prosecutor to try.

That’s an improvement, yet we still end up – presuming the Senate accepts the reduced prosecutorial powers – with an individual hand-picked by the governor, attempting to go over the head of an elected county prosecutor to file criminal charges. It’s better, we believe, that the inspector general’s powers be limited to investigating wrongdoing and then turning his work over to elected prosecutors.

Let the IG inspect wrongdoing, make it public, and recommend prosecution. But don’t give him prosecutorial powers if he’s going to be hand picked by the governor.

Engrossed Version, House Bill 1141:

Creates one new superior court in Dearborn County, DeKalb County, Hamilton County, Howard County, Montgomery County, and Vigo County, and creates two new superior courts in Hendricks County. Establishes a magistrate in Madison County. Provides that the new superior courts in Dearborn County, DeKalb County, Montgomery County, and Vigo County are created on January 1, 2006, the new superior court in Howard county is created on January 6, 2006, and the new courts in Hendricks County and Hamilton County are created on January 1, 2007. Allows the existing superior courts in Hendricks County to appoint a magistrate to serve until January 1, 2007. Abolishes the DeKalb County small claims referee. Makes the superior courts in Howard County standard superior courts.

This bill just cleared committee. I’ve got to say, I got in just under the wire on this one. I defended a case where a complaint was inadvertently filed in the Montgomery County Court plenary docket (jurisdiction $10,000). By the time I figured out my client was liable for at least $10,000 and that it was before the County Court, I filed a Motion for Summary Judgment asking for entry of judgment in the amount of $10,000 and for dismissal of any remaining claim as beyond the Court’s jurisdiction. The statute of limitations had passed on the plaintiff’s claim and Transfer to Superior Court or Circuit court was problematic. The uncertainty this created encouraged both sides to get serious about negotiations, and we managed to settle. If this bill had been further along, I might still be litigating the case and preparing to be the first civil jury case in excess of $10,000 before the Montgomery Superior Court 2. Wow, that was a long, boring story. Sorry for wasting your time.

The House Committee on Education considered two bills which should probably be rolled together. Senate Bill 0332 Requires a United States flag to be displayed in each classroom of a school corporation and requires a school corporation to provide a daily opportunity for students to voluntarily recite the Pledge of Allegiance. Provides an exemption for students who choose (or whose parents choose for them) not to participate in the Pledge. SB 285 defines “bullying”, and requires a school corporation to adopt rules to prohibit bullying.

I say the two bills are related because you know what’s going to happen to a kid who tells the class he won’t say the pledge because his mommy told him not to. I figure the legislature has enough to do without trying to micromanage our schools. They ought to worry less about this trivia and more about ways in which the state can afford to give the schools enough money to afford top-flight math and science teachers (perhaps with some of the money earmarked for buying flags and defending against First Amendment flag and pledge lawsuits.)

The Indy Star Editorial Board has what I regard as a sensible position on SJR 7 the proposed Anti-Gay Marriage Amendment entitled Don’t close door on civil unions. The Indianapolis Star reasons:

The proposal as it now stands goes too far — not only banning same-sex marriages but also closing off even the possibility of civil unions in the future.

Civil unions do not exist in Indiana, and may never be implemented here. But current legislators shouldn’t block the elected leaders who will one day follow them from even considering such an accommodation. . . . [W]hen determining what language to include in the state Constitution, moderation is in order. The House should amend SJR7 to keep open the possibility of civil unions.

Now, to start with, I don’t have any particular love for SJR 7 since I don’t have any particular objection to homosexuals being allowed to marry. To paraphrase Thomas Jefferson, “The legitimate powers of government extend to such acts only as are injurious to others.” Since the marriage of a homosexual couple neither picks my pocket nor breaks my leg, I don’t regard it as any of my business. However, it’s also not a burning issue with me. There are a lot of problems in the world that are likely to affect me and my family directly. Gay marriage isn’t one of them. (Unless, of course, one of my children were to turn out to be gay. “Not that there’s anything wrong with that.”) But, I recognize that marriage as a civil institution is hopelessly intertwined with marriage as a religious institution. I also recognize that people are passionate, sincere, and not entirely rational about their religious beliefs such that it might be hard for them not to see civil marriage of homosexuals as an affront to their religious institution.

So, in my mind, civil unions are a viable option. Certainly not acceptable to certain segments of our society, but overall, a good compromise on a divisive issue. There are some legal benefits to marriage from which there are no rational reasons to exclude a gay couple. I won’t be leading the charge. But, in a couple of decades when Indiana sees that marriage hasn’t been destroyed as an institution in Vermont, as the doomsayers seem to predict, perhaps as those of us now under 35 get long in the tooth and continue to fail to see what the big deal is, we will want the freedom to offer a compromise solution. Or, if no solution is available, maybe we’ll see fit to repeal the amendment altogether.

The Associated Press is reporting that the Inspector General bill has passed 98-0. Should be interesting to see what the Senate thinks of this thing. Of course, the only time they’ll get to consider it is in Conference Committee.

And, is it just me, or are AP stories on Indiana politics consistently less informative than stories from local reporters? (Probably it’s my own bias and it’s one of our local reporters writing for the AP.)

According to James Wensits of the South Bend Tribune, Senators Lugar and Bayh have asked the FCC not to preempt Indiana’s do not call list. It’s good to see bipartisan support on a no-brainer like this. I think most Hoosiers would agree they don’t want Indiana’s do-not-call law watered down in favor of the Consumer Bankers’ Association’s request to be permitted to make telemarketing call on the basis of an “established business relationship” consisting of nothing more than a citizen paying a bill or using a credit card sometime in the prior 18 months.

The Indianapolis Star has an Editorial about the Attorney General’s insider deal outsourcing civil suit defense to a recent deputy AG formerly in charge of the in-house defense of such cases. The editorial board is not amused. They point out that outside competition was all but nonexistent and that ethics review was illusory. Pretty poor performance, they say, for folks who ran on an ethics platform.

For my own part, I simply don’t see the source of the savings in outsourcing a core function of the AG’s office. I think either the contract will run over, the level of service will be cut back, or the contracting law firm will take a big financial hit trying to fulfill the contract.

Update The Indiana Law Blog has more.