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Saturday, August 01, 2015

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday

In Louise Milan v. Billy Bolin (SD Ind., Lawrence), an 8-page opinion, Judge Posner writes:

The plaintiff brought suit against the City of Evansville, Indiana, and several of the City’s police officers, contending that the police had used excessive force in the search of her home. The district judge granted summary judgment in favor of the defendants on related claims by the plaintiff, but all that is before us is the defend ants’ appeal from the district judge’s denial of their motion for summary judgment on the excessive-force claim. They argue that qualified immunity insulates them from liability—that is, that there was no established legal principle that would have informed them that they were using excessive force. * * *

But, to repeat for emphasis, the police acted unreasonably and precipitately in flash banging the house without a minimally responsible investigation of the threats. The open network expanded the number of possible threateners and just one extra day of surveillance, coupled with a brief investigation of Murray and the three male Milans, should have been sufficient to reassure the police that there were no dangerous men lurking in the house.

Precipitate use of flash bangs to launch a search has troubled us before, leading us to declare that “the use of a flash bang grenade is reasonable only when there is a dangerous suspect and a dangerous entry point for the police, when the police have checked to see if innocent individuals are around before deploying the device, when the police have visually inspected the area where the device will be used and when the police carry a fire extinguisher.” Estate of Escobedo v. Bender, supra, 600 F.3d at 784–85. The police in this case flunked the test just quoted. True, they’d brought a fire extinguisher with them—but, as if in tribute to Mack Sennett’s Keystone Kops, they left it in their armored SWAT vehicle.

So while the defendants are correct to point out that a reasonable mistake committed by police in the execution of a search is shielded from liability by the doctrine of qualified immunity, Anderson v. Creighton, 483 U.S. 635, 641 (1987), in this case the Evansville police committed too many mistakes to pass the test of reasonableness.

In Shelia B. Stepp v. Carolyn Colvin, Acting Comm., Social Sec. (SD Ind., Hussman, M.J.), a 29-pga eopinion, Judge Flaum writes:

Appellant Sheila Stepp, who suffers from degenerative disc disease and a variety of other impairments, seeks disability insurance benefits under Title II of the Social Security Act. Following a hearing, an Administrative Law Judge (“ALJ”) issued a decision denying Stepp’s claim. While acknowledging that Stepp suffered from chronic pain, the ALJ concluded that surgery, medication, and therapy had resulted in an improvement in Stepp’s condition such that she retained the capacity to engage in sedentary work. Stepp sought review of the ALJ’s decision by the Social Security Administration’s Appeals Council, and submitted additional evidence in the form of medical records created just prior to the ALJ’s denial of her disability claim. This evidence—specifically, the treatment notes of pain management specialist Dr. Allan MacKay—tends to suggest that Stepp’s condition did not improve over the course of the adjudicative period to the extent that the ALJ estimated. The Appeals Council summarily declined to engage in plenary review of the ALJ’s decision and, in so doing, did not expressly ad-dress Dr. MacKay’s notes. The United States District Court for the Southern District of Indiana affirmed the ALJ’s final decision.

Stepp appeals the district court’s determination on two grounds: first, she contends that the ALJ’s denial of her benefits request was not supported by substantial evidence; second, she argues that a remand for further proceedings is necessary in light of the “new and material” evidence presented by Dr. MacKay’s medical records. We believe that the ALJ properly analyzed a range of conflicting testimony and medical opinions and reached a conclusion adequately sup-ported by the record before her. However, we agree with Stepp that the denial notice from the Appeals Council indicates that the Council did not accept Dr. MacKay’s treatment notes as new and material evidence, and we conclude that the Council made that determination in error. We therefore remand the case to the agency so that it may re-evaluate Stepp’s condition in light of the information presented in Dr. MacKay’s notes.

Posted by Marcia Oddi on August 1, 2015 03:23 PM
Posted to Ind. (7th Cir.) Decisions