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Monday, August 03, 2009

Ind. Decisions - 7th Circuit issues two Indiana opinions today; also a case re attorney fees under the FDCPA

In Cheryl Janky v. Lake Co. Convntion & Visitors Bureau (ND Ind., Rodovich, Magistrate Judge), a 17-page, 2-1 opinion, Judge Evan's opinion begins:

This over-litigated case, involving a song by a doo-wop group, comes to us with 18 district court orders and memorandum opinions spread over a combined 239 pages. The district court’s 46-page docket contains a staggering 371 entries. And the briefs of the parties on appeal are a bit unfocused to say the least. But although it’s a tough job, someone has to do it, so with shoulder to the wheel, we forge on.

Lake County, Indiana, is the home of Gary, a gritty industrial town southeast of Chicago. But there’s much more to Lake County than Gary—including miles of pristine beachfront along the Indiana Dunes National Lakeshore—and the Lake County Convention and Visitors Bureau (the Bureau) wants you to know that. To get the word out, the Bureau commissioned a tune singing the county’s praises, the distribution of which led to this lawsuit for copyright infringement. Cheryl Janky says she composed the song and never gave the Bureau permission to use it. The Bureau maintains that Janky was only a co-author and that it had the authority to use the song by licensing it from the other songwriter, Henry Farag.

In Joe Baird v. John Renbarger (SD Ind., CJ Hamilton), a 12-page opinion, Judge Wood writes:
Law enforcement is a difficult job, as “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989). This reality is reflected in the fact that courts give considerable leeway to law enforcement officers’ assessments about the appropriate use of force in dangerous situations. See, e.g., Scott v. Harris, 550 U.S. 372, 385-86 (2007). This latitude ends, however, when police officers employ force that is clearly excessive or unreasonable under the circumstances. That is the case here.

Officer John Renbarger participated in the execution of a search warrant that was based on the crime of altering a vehicle identification number (“VIN”). The crime itself does not involve violence; there was no suggestion that anyone at the search location was armed or dangerous; and no one at the site presented any resistance. Despite this, Renbarger decided to wield a 9-millimeter submachine gun, which he used to detain various people at the search site. The search ended when the officers concluded that the VIN had not actually been altered.

The people who had been held temporarily filed suit under 42 U.S.C. § 1983 alleging violations of the Fourth Amendment and state law. Our appeal, however, deals only with the claims of excessive force against Renbarger, who filed a motion for summary judgment on the basis of qualified immunity. The district court denied his motion, and Renbarger has taken an interlocutory appeal from that order. We affirm. * * *

We conclude that a reasonable jury could find that Renbarger violated the plaintiffs’ clearly established right to be free from excessive force when he seized and held them by pointing his firearm at them when there was no hint of danger. As a result, Renbarger is not entitled to qualified immunity.

For these reasons, we AFFIRM the district court’s opinion.

In Schlacher v. Law Offices of Rotche (ND Ill.), a 12-page opinion, Judge Williams writes:
Plaintiffs Jean, Alfred, and Teri Schlacher sued the defendant, a debt-collection law firm, for violating the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, and, within three months of filing their complaint, they accepted offers of judgment totaling $6,500. The plaintiffs, who were represented by four attorneys from three different law firms, sought attorney’s fees of $12,495 and costs of $437.70. The district court awarded $6,500 in fees and costs, explaining that the unnecessary use of multiple attorneys had led to excessive billing in a straightforward, short-lived case. We affirm.

[See table of rates on p. 4 of opinion.]

Posted by Marcia Oddi on August 3, 2009 01:31 PM
Posted to Ind. (7th Cir.) Decisions