A Citizen's Guide to Indiana

Masson's Blog

SB 1 – Use of force against law enforcement signed into law

by 18 Comments

Gov. Daniels has signed SEA 1 which gives individuals the right to use force, in some cases deadly force, against law enforcement officers. The Indiana Law Blog has posted a news release with the governor’s statement explaining his decision to sign the bill.

He says this actually narrows the situations in which individuals can use force against law enforcement officers. I think that’s hogwash. My major complaint against this bill, the more I think about it, is that it permits use of force not only where a law enforcement officer is acting unlawfully but also where an individual thinks (or, in practice, claims to think) the officer is acting unlawfully.

It speaks to “reasonable belief.” I wonder if courts will permit inquiry into the individual’s overall knowledge of the law to establish that it would be unreasonable for particular individuals to believe they know what the law has to say about the officer’s actions in a given situation. See, generally, the Dunning-Kruger effect.

Indiana House Candidate proposes a drinking license

by 2 Comments

Mark Mellinger, reporting for WANE, has a story entitled Candidate wants to license drinking. In a debate in Auburn, Indiana, House candidate Gary Harbaugh proposed legislation that would license people to drink alcohol in a manner similar to the ways drivers are licensed.

This struck me as a stupid idea. The, upon more thought, maybe it wasn’t so bad. Then, upon even more thought, I think I was probably correct initially.

Rails Do Not Revert to Trails

by 9 Comments

The Indiana Supreme Court answered a certified question concerning some federal “rails-to-trails” litigation. It has to do with whether an easement on land originally granted for the purpose of operating a railroad could later be used for public trails when the railroad was abandoned. The Indiana Supreme Court decided that the easement did not extend to such a use.

The original easement was for a “commercial enterprise for transport.” This explains why the original easement of running a railroad could be shifted to laying down an oil pipeline in the same easement without the easement reverting back to the original property owner. By contrast, the Supreme Court reasoned, a public trail is an “activity of recreation not transportation.” Chief Justice Shepard dissented.

The Court doesn’t get into this, but I think the upshot is that a trail can’t be created along the rail line simply by negotiating with the rail line or its successor; rather, to create a public trail in this location, new deals or condemnations have to be made as to the 128 landowners along the 21 mile stretch.

Social Security Income Can Be Considered in Restitution Determinations

by Leave a Comment

In the case of Kays v. State, the Indiana Supreme Court reversed the court of appeals and held that a trial court is authorized to consider a defendant’s social security income when determining the defendant’s ability to pay restitution.

At issue were the anti-alienation provisions of the federal social security law and the requirement that a trial court consider a defendant’s ability to pay when making restitution a consideration of probation. The former seeks to ensure that creditors can’t get at the bedrock social security income a person might need to survive and the latter seeks to ensure that a person isn’t locked up simply for being poor.

The Court of Appeals looked at the anti-alienation provisions of the social security statutes and concluded that it could not be considered as income when a trial court was making restitution decisions. The Supreme Court, correctly in my opinion, disagreed; reasoning that just ignoring that income would distort the trial court’s view of the defendant’s overall financial situation.

After all, if you’re getting $100 per month in rental income as your only source of income, your financial situation is a little different than if that $100 per month is on top of your social security income. In the former situation, the trial court probably has to conclude that you do not have any ability to pay restitution. In the latter situation, $100 per month in restitution might well be reasonable.

BMV Spokesman Lubsen Fired in Retaliation for Commenting on Indiana Youth Group Double Secret Probation

by 82 Comments

The continuing saga of the Indiana Youth Group License Plate. Unable to stop the scourge of pro-gay license plates through the democratic process; some legislators seized on a work around. They would put the Indiana Youth Group on double secret probation – subjecting the group to scrutiny, ostensibly for violating contract provisions by giving out low numbered license plates to preferred individuals. That this rationale is pretense becomes immediately obvious when one looks at the other plates doing the same thing with no consequence.

When investigating this maneuver, Indy Star journalist, Mary Beth Schneider spoke with BMV spokesman Graig Lubsen who must not have gotten the memo that the fix was in for the Indiana Youth Group. He was unexpectedly candid about the situation:

Graig Lubsen, communications director for the Bureau of Motor Vehicles, said no decision has been made about the Indiana Youth Group contract. He said someone from the Senate had contacted the BMV about the contract issue this morning.

Lubsen said the contract bars groups from auctioning or selling the plates. But he added that traditionally, the BMV has allowed group to give out low-numbered plates as thank-you gifts to donors.

This is totally not what you want your guy to say if you want to maintain the pretense that this is totally not about politics and is not about treating one group differently but is totally about neutral enforcement of a generally applicable contract provision and gee, isn’t it unfortunate that your group happens to be unpopular among some people in well-connected political circles.

And, so, according to Jim Shella, Mr. Lubsen was fired the next day.

Graig Lubsen was a spokesman for the BMV who last week told a reporter that someone from the Senate had contacted the BMV about cancelling the youth group license plate. He told 24 Hour News 8 that he was fired the next day. Lubsen declined an on camera interview.

I had some interaction with Mr. Lubsen back in 2010 when I vented my spleen in my blog post entitled, “The Indiana BMV Sucks . . . But You Already Knew That.” He reached out to me and worked pretty diligently to help me with my particular situation and investigate what had gone wrong.

SB 15 – Medicaid and Brain Injury Services Study

by Leave a Comment

SB 15 doesn’t do much of substance but does require a study on the brain injury services offered in Indiana, including: any deficiencies in the provision of brain injury services in Indiana; how to implement additional brain injury services and neurobehavioral rehabilitation programs in Indiana; development of a licensure category for neurobehavioral rehabilitation facilities and the criteria to be included for the license; assessment of whether incentives are needed to encourage the provision of brain injury services and neurobehavioral services in Indiana; determination of the adequate reimbursement under the Medicaid program for brain injury and neurobehavioral services; and determination of whether funds from the Medicaid health facility closure and conversion fund could be used to assist qualified service providers in opening a neurobehavioral rehabilitation facility or to enhance reimbursement for brain injury or neurobehavioral services in Indiana.

SB 1: Confusing and Will Likely Get Someone Killed

by 36 Comments

SB 1 is the defend your home against tyranny bill. Sounds great when you put it like that. “Look at me! I’m George Washington. Take that King George! Blam! Blam!”

But, really what we’re talking about is a lot of grey areas where citizens pissed off about government action – even legal government action – will selectively perceive tyranny when law enforcement is acting legally or in a way that can be remedied after the fact unless someone gets hurt. Used to be, the General Assembly sent the message that you probably ought to wait and sort things out later instead of shooting first. Now, they offer up a word salad that doesn’t do anyone any favors.

The first sign of danger is that the General Assembly felt it necessary to offer a “purpose” section. Good legislation is like a good joke. If you have to explain it first, you’re doing it wrong.

Then, we get three new subsections:

(i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:
(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;
(2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or
(3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.
(j) Notwithstanding subsection (i), a person is not justified in using force against a public servant if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes action by the public servant with intent to cause bodily injury to the public servant;
(3) the person has entered into combat with the public servant or is the initial aggressor, unless the person withdraws from the encounter and communicates to the public servant the intent to do so and the public servant nevertheless continues
or threatens to continue unlawful action; or
(4) the person reasonably believes the public servant is:
(A) acting lawfully; or
(B) engaged in the lawful execution of the public servant’s official duties.
(k) A person is not justified in using deadly force against a public servant whom the person knows or reasonably should know is a public servant unless:
(1) the person reasonably believes that the public servant is:
(A) acting unlawfully; or
(B) not engaged in the execution of the public servant’s official duties; and
(2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person.

So, if you got evicted from your property but don’t believe the court proceedings were proper (perhaps you are a sovereign citizen), then you would seemingly be able to use force, but maybe not deadly force, against the Sheriff enforcing the writ under subsection (i). A person can use force if the person “reasonably” believes the force is necessary to prevent the public servant’s unlawful interference with the person’s property. When does a person’s belief become unreasonable? I have no idea.

Spring Break 2012

by 10 Comments

I’m on Spring Break with the family. Vacations are always a bit of an act of faith that the increased productivity of a rested brain will outweigh the pile of work that builds up over the course of your time off. I tend to be reluctant to take a lot of time off for that purpose, but almost always when I do, I end up on the positive side of the ledger.

And, more importantly, spending time with the family. Much gets made over quality time, but quantity time is important. A lot of bonding takes place over the course of a million minor interactions you’d never schedule for but which are crucial nonetheless.

This year, we’re once again paying tribute to the Florida theme parks; Universal versus last year’s Disney. I’m a bigger fan of Universal, turns out. The organization is a little more haphazard and the employees a little rougher around the edges; but the themes of Universal – Harry Potter, Marvel Comics, etc. – are more appealing to me.

We got down here by driving again. For me, the best way to travel is to drive through the night. I know that’s not for everyone; but, podcasts have revolutionized the game. Whereas in years past the graveyard hours were characterized by a struggle to stay awake during the frequent commercial breaks on AM radio – during the Art Bell show if I was lucky; now, I can just load up on Nerdist podcasts and Dan Carlin’s Hardcore history: stuff that engages me with no commercial breaks. Suddenly, once the family has dozed off, we’re 600 miles down the road before the sun comes up. Leave at 4 p.m., arrive in Kissimme at 10 a.m. with a couple of meal stops in between.

The weather was a little rainy on Saturday and Sunday, but since then, bright and sunny. Beach day at St. Pete today.

Anyway, talk about your own family vacation adventures/nightmares or, open thread!

Gay License Plate Obsession

by 19 Comments

Not content to just let it rest this short session — reserved, I’ve heard it said, for “emergency” issues — anti-gay legislators had signaled that they’d let the Indiana Youth Group license plate matter rest. Despite that, there were rumblings that they’d try to jam it into an end of session conference committee despite the fact the provision hadn’t passed either house on the first go round.

Presumably spurred on by their masters at the American Family Association of Indiana and Advance America of Indiana, it looks as if these legislators are apparently urging the State of Indiana to subject the group’s contract to special scrutiny based on the content of their speech and their sexual orientation.

Mary Beth Schneider reports:

While legislative leaders did not officially declare the effort to pass a bill dead, Senate President Pro Tempore David Long said another “solution” had been found: Voiding the Indiana Youth Group plate.

Long said he believed the Indiana Youth Group had violated its state contract and that it should be cancelled.

“There’s a contract clause apparently which I just saw today which apparently says you cannot remarket those for value and they’re doing that clearly on their internet site,” Long said. “And if they are it says you ‘shall’ terminate the contract.”

Apparently they gave out a couple of low numbered plates to some donors; something the BMV has traditionally allowed other groups to do.

I love the smell of an equal protection lawsuit in the morning. Smells like victory.

Studying Unbelief

by 32 Comments

I flatter myself as having a fairly good knack for empathy, the ability to emotionally identify with others. That’s not to say I’m necessarily motivated to act on that understanding. My tendency toward sympathy is more limited. However, I’ve notice that, in matters of faith, my capacity for empathy is diminishing (that doesn’t mean my sympathy toward believers is necessarily moving one way or another). I just have a hard time getting into a believer’s head and seeing the subject of religion and God from their perspective. For my part, the supernatural beliefs of humanity over the millenia have been so varied and at odds, I don’t grok the mind that is so certain any of them are right – let alone one of them in particular – that one ought to conform their life’s behavior to that belief.

Ed Brayton has a blog post entitled Scholars Study Secularism. Apparently, there may be cognitive differences between the minds of believers and unbelievers.

Boston University’s Catherine Caldwell-Harris is researching the differences between the secular and religious minds. “Humans have two cognitive styles,” the psychologist says. “One type finds deeper meaning in everything; even bad weather can be framed as fate. The other type is neurologically predisposed to be skeptical, and they don’t put much weight in beliefs and agency detection.”

Caldwell-Harris is currently testing her hypothesis through simple experiments. Test subjects watch a film in which triangles move about. One group experiences the film as a humanized drama, in which the larger triangles are attacking the smaller ones. The other group describes the scene mechanically, simply stating the manner in which the geometric shapes are moving. Those who do not anthropomorphize the triangles, she suspects, are unlikely to ascribe much importance to beliefs. “There have always been two cognitive comfort zones,” she says, “but skeptics used to keep quiet in order to stay out of trouble.”

That last bit about keeping quiet struck me as an interesting line. I think the cultural status quo remains in place by socially isolating views outside of the mainstream. The weakness of those non-conforming views is probably out of proportion to its actual prevalence. The Internet is probably changing that; where holders of even the most marginal viewpoints can find a like minded community. Anyway, defined broadly enough, nonbelievers appear to be a non-trivial segment of the population:

But the most significant target of Kosmin’s research is the consumer group most likely to shy away from such commercial products: secularists. “The non-religious, or Nones, hold the fastest-growing world view in the market,” says Kosmin. “In the past 20 years, their numbers in the United States have doubled to 15 percent.”

. . .
This umbrella [of non-believers] covers various groups including atheists, agnostics and humanists, as well as those who are simply indifferent to religion.

Secularists make up some 15 percent of the global population, or about 1 billion people. As a group, this puts them third in size behind Christians (2.3 billion) and Muslims (1.6 billion).

One of the fun parts, they tend to know more about the God they don’t believe in than believers. “Even when the higher education levels of the unreligious were factored out, they proved to be better informed in matters of faith, followed by Jewish and Mormon believers.”

This kind of thing will do nothing to rest the minds of those who feel like the country is going to hell because of our decadent culture.