Wells vs Bernitts et al - Brief of Appellant (S. Wells)

[RegalDaddy]

Wells vs Bernitts et al - Brief of Appellant (S. Wells)
Filed 3/31/10

Because Rules of the Court for Hearing a Plaintiff’s Civil Case have been abrogated regarding disputed Material Issues of Fact, etc; this Case is being Reviewed. Federal Civil Rights Attorneys and others are looking into the matter.



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SCOTT D. WELLS,
Appellant/ Plaintiff

V.

HERMAN BUD BERNITT, individually,
AMY BERNITT, individually, J.D.
MAXWELL, as an employee of the
Indiana State Police, TRAVIS CORYEA,
Individually, and as an employee of the
Indiana State Police, STACY BROWN,
Individually, and as an employee of the
Indiana State Police, INDIANA STATE
POLICE, OTHER UNKNOWN
EMPLOYEES OF TE INDIANA STATE
POLICE, and STATE OF INDIANA,
Appelleel/Defendants

The Honorable Michael A.
Robbins, Special Judge

STATEMENT OF THE CASE

Scott Wells seeks to vindicate his rights under the U.S. Constitution
against policemen who restrained him with excessive force and caused him
severe physical injuries. He also brings a claim of defamation against Bud and Amy Bernitt, political opponents who set Wells up for arrest by falsely reporting Wells to the police.

Wells filed his Complaint in the Monroe Circuit Court on September 27, 2004. (R. 134.) In it Wells brought claims of defamation against the Bernitts and negligent and intentional torts against the Indiana State Police and three troopers, as well as claims against the troopers for violating Wells' rights under the U.S. Constitution. (R. 140-41.) ...After several special judges recused themselves, Special Judge Richard McIntyre was appointed on July 27, 2006 and ruled on the Bernitts' Motion to Dismiss, denying it... Upon the death of Judge McIntyre, the Honorable Michael A. Robbins was appointed Special Judge...

On June 24, 2009 Wells moved for summary Judgment on the Bernitts' counterclaim.
(R. 10-11.) The Bernitts responded on July 28, 2009 and Judge Robbins conducted a hearing on August 17, 2009. (R. 11.) Judge Robbins granted the Plaintiffs motion and dismissed the Bernitts' counterclaim on September 14, 2009. (R. 11.) Wells filed Notice of Appeal on October 13, 2009 and this appeal ensued. (R. 11.)

On March 19, 2010 the Plaintiff-Appellant moved the trial court to correct the transcript of the August 3, 3007 hearing on summary judgment. (R2. 62.) As of the date of this brief that motion remains pending before the trial court.

STATEMENT OF THE FACTS

Plaintiff-Appellant Scott D. Wells ("Wells") was a tenured high school science teacher in Owen County and an elected member of the Monroe County Council. (R. 135.) He was active in the Democratic Party and a recognized leader on environmental causes. (R. 135-36.) Defendants-Appellees Herman "Bud" Bernitt and his wife, Amy (the "Bernitts") were real estate developers (Bernitt Realty) and were active in the Republican Party. (R. 135.) The Bernitts actively supported Defendant-Appellee J.D. Maxwell's candidacy on the Republican ticket for Monroe County Sheriff. (R.136.)

In the 2001-2002 period Bud Bernitt often attended Monroe County Council meetings where he addressed the Council and accused Wells of dumping hazardous waste into Lake Monroe and violating environmental regulations, and insulted Wells in highly personal terms." (R2. 30-46.) The Bernits also relentlessly attacked Wells in chat rooms maintained by the Bloomington Herald-Times, using pseudonyms such as "Chainsaw," "Tree Cutter," and "Motor City Madman." (R. 75-122.) In one post Bud Bernitt called Wells and his friends "fascist ecoterrorist thugs" and predicted that Wells would soon be in jail. (R. 108-109.)

Wells had previously sued the Bernitts and others for defamation after they falsely accused him of arson. (R2. 79.) This lawsuit eventually resulted in a $390,000 judgment against one of the defendants in that case, though not the Bernitts. (Indiana Jury Verdict Report, July 2009, p. 3.) The Bernitts made their false report to the police that led to this lawsuit two months after Wells commenced his first defamation suit against them. (R2. 79.).

On Friday, September 27, 2007 the Bernitts parked their pickup truck in a parking lot in downtown Bloomington across the street from the Crazy Horse Tavern (R. 58, 6l.), which Wells was known to frequent on Friday evenings (R. 55.). The Bernitts claimed to have observed Wells exit the Crazy Horse, stagger across the street, urinate on the railroad tracks, display other obvious indicia of intoxication, and get into his car and drive onto the streets of Bloomington (R. 58-59, 61-62.). The Bernitts got into their truck and followed Wells (R. 59.). The Bernitts say they followed Wells from the parking lot across from the Crazy Horse, going east on Fourth Street crossing College Avenue to Walnut Street, turned left on Walnut Street to Kirkwood and Walnut Street, where they witnessed Wells nearly strike a group of pedestrians. (R2. 162.) But the Bernitts could not have done this because Fourth Street between College Avenue and Walnut Street was barricaded and closed to vehicular traffic that night for Bloomington's annual Lotus Festival (R. 57.).

The Crazy Horse Tavern's owner, Ronald Stanhouse, remembers Wells starkly differently. Stanhouse conversed with Wells for twenty minutes immediately before Wells left and did not observe any signs of impairment in Wells' mental or motor functions, concluding that He seemed perfectly normal to me." (R. 55-56.). Wells acknowledges that he drank one beer at the Crazy Horse, but he was not drunk when he left and as he walked to his car he did not stagger, urinate on the railroad tracks, or manifest any other signs of intoxication. (R. 51.)

After supposedly pursuing Wells through the streets of Bloomington, Bud telephoned Defendant-Appellee J.D. Maxwell, an Indiana State Trooper. Bud called Maxwell at home. (R. 69.) Bud told Maxwell that he had observed Wells driving drunk and staggering and urinating in the parking lot. (Id.; R. 39,42.) Maxwell then telephoned the State Police post and asked the dispatcher to send an officer not to intercept Wells but rather to meet the Bernitts and take their complaint. (R. 69.)

At Maxwell's request (R. 69.), the dispatcher sent Defendants-Appellees Stacy Brown and Travis Coryea, both of the Indiana State Police. (R. 69) Maxwell withheld from the dispatcher and the officers the fact that he knew the identity of the alleged drunk driver, and that both he and the complaining witness were political enemies of the driver. (Id.) Brown later admitted that he was unhappy with Maxwell's actions. Wells v. State, 848 N.E.2d at 1140.

Brown and Coryea met with the Bernits, who told Brown that they observed Wells stagger out of a bar, urinate on railroad tracks, drive erratically through the streets of Bloomington, weave back and forth, cross the center line nearly striking a group of pedestrians, and possibly enter another bar, Nick's. (R. 70; R. 66-68.) After Brown interviewed the Bernits, Officer Coryea left on an unrelated call and Officer Brown drove to a residential area of Bloomington not ordinarily patrolled by the State Police and intercepted Wells. (R2. 150; R. 71; R2. 127.) Brown found Wells' car parked on the north side of Sixth Street just east of Dunn. (R. 71.) What happened next is in sharp dispute.

Officer Brown contends that he observed Wells get into the car and drive off without putting on his seatbelt until he was underway, and then to drive erratically until Brown activated his emergency lights and stopped Wells. (R. 71.) Meanwhile the Bernitts drove up to watch at a safe distance. (R. 66.) But when Brown first sighted Wells he radioed the dispatcher to say he had found the person the Bernitts described and "saw no impairment." (R. 159.)

Brown further contends that after he asked Wells to produce identification that Wells became obstreperous, repeatedly asking for the officer's name, claiming that he knew Sheriff Sharp, and shouting that J.D. Maxwell had set him up. (R. 72.) After Wells' outbursts Brown called Coryea for assistance. (R. 72-73.) Brown attempted to read him Indiana's implied consent law but Wells repeatedly interrupted him by shouting that Maxwell had set him up. (R.72•23.) Eventually, according to Brown, Wells took a step toward Coryea and shouted obscenities. (R. 72-23.) The officers ordered Wells to step back, which he refused. (R. 72-73.) Wells then "bladed off," taking a fighting stance. (R. 73.) When Coryea attempted to grab Wells' wrist to handcuff him, Wells struck Coryea's arm. (R. 73.) Coryea administered a knee strike to Wells, bringing him to the ground. (R. 73.) Even on the ground Wells yelled profanities and shouted that he would not allow himself to be handcuffed. Wells attempted to grab and twist Brown's fingers. (R. 73.) Only after Brown administered two more strikes, one to the median motor nerve of the left forearm and one to the mandibular angle of the jaw, were the officers able to subdue Wells and handcuff him. (R. 73.)

Wells' testimony paints a strikingly different picture. Wells had already fastened his seatbelt when he drove past Brown's police car. (R2. 108.) Wells had noticed the marked patrol car behind him and drove cautiously and appropriately. (R2. 109.) When Brown stopped him he cooperated with both troopers; at all times he was passive, non-threatening, and non-combative. (R2. 120.) From the outset of the traffic stop Wells believed that he had been set up for arrest by J.D. Maxwell, but Wells expressed this opinion to the officers in a manner that was polite and respectful. (R2. 120.) At no point did he refuse to stop resisting or to give up his hands to be handcuffed because Brown and Coryea never gave him those commands. (R2. 115.) The officers delivered their blows and took him down without warning. (R2. 113-14.) They knocked him to the ground with such force that he momentarily lost consciousness and was left disoriented afterwards. (R2. 117-18)

Four independent witnesses observed the traffic stop and takedown. All of them support Wells' description of the incident. Kiernan Casey, a resident of the neighborhood, began watching as soon as he realized that a State Police vehicle was in an area where the State Police had never been seen before. (R2. 127). Kiernan did not see any sign of reckless driving before Brown effected the traffic stop. (R2. 127-28) Kiernan testified as follows:

Q: And then you, were you able to see clearly the manner in
which he was thrown to the ground?
A: Yeah, I could see it pretty clearly.
Q: And most importantly what was the man doing right
before he was thrown to the ground?
A: Huh, from what I saw he was just standing there. He had
his back to us, I couldn't see his face but he was just
standing there calmly it seemed to me.
Q: Could you see him make any sort of a gesture flailing his
arms at the police officers?
A: No, I didn't.
Q: Did you see him into any sort of a fighting stance?
A: No, I did not.
Q: Now are you saying you didn't see it or it didn't happen?
A: As far as I could tell it didn't happen.
(R2.129.)

Another witness, Michael Tanoury, observed the incident from inside his living room and testified that Wells never assumed a fighting stance or struck out at the officers with his hand. (R2. 133.) Jason Moore was too far away from the incident to understand the words that they were saying, but it appeared to him that Wells and the officers were having a normal conversation before they took Wells to the ground. (R. 137) Moore came forward as a witness after reading about the criminal charges in the newspaper, because he believed the charges against Wells so completely contradicted the events Moore witnessed. (R2. 119.) Samuel Kaplan testified that Wells never raised his fist, assumed a fighting stance, swung at the officers, or batted their arms away. (R2. 138). Kaplan was "very surprised" by the "very sudden very aggressive movement on the police officers prior to them take his legs out from underneath him and every [sic] abruptly and I'd say almost brutally put him to the ground." (R2. 138.)

Wells was taken to the Monroe County Jail on preliminary charges of OWl refusal and resisting law enforcement. (R. 74.). He was later charged with six criminal counts: 1) Operating a Vehicle While Intoxicated in a Manner that Endangered a Person; 2) Felony Battery on a Law Enforcement Officer; 3) Resisting Law Enforcement; 4) Public Intoxication; 5) Disorderly Conduct; and 6) Failure to Use Front Seat Safety Belt, a Class D Infraction. The case went to a jury trial on October 27, 2003 and Wells was acquitted of all charges except Disorderly Conduct and the lesser included offense of
Operating While Intoxicated Without Endangerment...

Wells suffered severe bruises to his forehead and right elbow when his face made contact with the brick sidewalk. (R2. 122.) In the take down a ligament in his knee was torn and causes him a severe throbbing pain that lasts to this day. His knee requires surgery, which Wells cannot afford because as a result of the arrest he was fired from his tenured teaching job and lost his health insurance. He repeatedly requested medical assistance from the officers at the scene but received none. (R2. 122.)

SUMMARY OF THE ARGUMENT

The Bernitts defamed Wells by falsely accusing him of a wide variety of dangerous and undignified behaviors. The trial court erroneously found that Wells' conviction for OWl established the substantial truth of the Bernitts' assertions, but Wells' conviction did not conclude such facts as that Wells urinated on railroad tracks or nearly struck pedestrians. Because Wells designated evidence showing that these accusations were false, the trial court's entry of summary judgment was erroneous.

The trial court that Wells' federal claims of excessive force against Troopers Brown and Coryea were bared by Heck v. Humphrey, which forbids using a civil suit to collaterally attack a criminal conviction. The trial court's finding of a Heck bar was erroneous because the federal courts have expressly held that an allegation that an arrest was effected with excessive force does not necessarily challenge the validity of the underlying conviction.

[RegalDaddy]

Wells vs Bernitts et al - Brief of Appellant (S. Wells)
Filed 3/31/10



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THE ARGUMENT

I. WELLS' CONVICTION FOR O.W.I. DOES NOT ESTABLISH THE
TRUTH OF THE BERNITTS' UTTERANCES BECAUSE THE
BERNITS MADE DEFAMATORY STATEMENTS OTHER THAN
THAT HE DROVE DRUNK.

A. Standard of Review

Plaintiff-Appellant Wells appeals from the grant of summary judgment.

When reviewing a motion for summary judgment, the Court of Appeals applies the same standard used by the trial court. It must resolve any doubt as to a fact, or an inference to be drawn there from, in favor of the party opposing summary judgment. Ind. Trial Rule 56(C); Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933 (Ind.Ct.App.1996).

The evidence before the court must be liberally construed in the light most favorable to the non-moving party. Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996).

Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Id. The appellate court carefully scrutinizes a trial court's grant of summary judgment to assure that the losing party is not improperly prevented from having its day in court

B. The Bernitts defamed Wells by stating that he staggered, urinated on railroad tracks, and drove so erratically that he nearly struck pedestrians.

... The Bernitts made at least three statements that are defamatory per se because they imputed criminal coriduct. They stated that Wells staggered out of the Crazy Horse, urinated on the railroad tracks in the parking lot across the street, and that he drove erratically and nearly struck a group ofpedestrians. (R. 69; R. 58-59, 61-62.) Urinating on the railroad tracks would constitute public nudity under Ind. Code § 35-45-4-1.5, which states that "[a] person who knowingly or intentionally appears in a public place in a state of nudity commits public nudity, a Class C misdemeanor." The statute defines nudity as "the showing of the human male or female genitals." Ind. Code § 35-45-4-1(d).

The implication of the Bernitts' false statement about Wells staggering out of the Crazy Horse is that Wells was intoxicated in public, which is a Class B misdemeanor. Ind. Code § 7.1-5-1-3. Likewise, the allegation that Wells drove erratically and nearly ran over pedestrians would be a violation of Ind. Code § 9-30-5-2, which provides that driving while intoxicated "is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person."

In fact, based on the Bernitt's false report Wells was charged with two of these crimes-and was acquitted. These allegations, that Wells staggered out of the bar, urinated on the railroad tracks, and drove erratically and nearly struck pedestrians are distinct from driving drunk.

The truth of the statements is not established by Wells' conviction for OWI On the contrary, the criminal court's acquittal of Wells on the endangerment and public intoxication charges charge shows that the jury rejected the truth of the Bernitts' utterance. More important, the Bernitts' utterances concern events and circumstances that far exceed the scope of the facts established by Wells' conviction for OWI.

C. The Bernitts' utterances are false.

Wells emphatically denies that he staggered out of the Crazy Horse, urinated on the railroad tracks, or drove so erratically as to nearly run over pedestrians. (R. 51.) His assertion is supported at least in part by independent witness Ronald Stanhouse's testimony that Wells was not impaired at the time he left the Crazy Horse (R. 55-56.), and Kiernan Casey's testimony that Wells was not drivingerratically when Brown effected the traffic stop (R2. 128.) Because the court must resolve all factual disputes on summary judgment in favor of the non-movant, the Court most accept the truth of Wells' description of the incident; this evidence sufficed to defeat the motion and the trial court's grant of summary judgment was error.

The primary basis of the trial court's ruling on summary judgment was that Wells' conviction for OWl conclusively established the truth of the Bernitts' utterances. (R. 14.) Although the trial court did not expressly invoke the doctrine of collateral estoppel, this appears to be what it intended. A trial court may apply collateral estoppel against a convicted criminal defendant on issues that were defended vigorously in the criminal case in the absence of a showing that it is unfair to the defendant to give conclusive effect to the conviction. Doe v. Tobias, 715 N.E.2d 829,830 (Ind. 1999).

In this case the trial court used the conviction to collaterally estop Wells from denying the truth of the Bernitts' utterances even without comparing the charging documents to the conviction, none of which appear to have been designated on summary judgment by any party. But even assuming that collateral estoppel was appropriate, the trial court extended the preclusive effects of the conviction far beyond the facts actually established by the conviction. There is no element of OWl that overlaps with the act of urinating on the railroad tracks. The statement that Wells nearly ran over pedestrians cannot be taken as a concluded fact when the jury acquitted Wells on the endangerment element.

Nor would the Bernitts' utterances about staggering, urinating, and almost striking pedestrians come with the "substantial truth" doctrine. Under the Constitution, literal truth is not required to be an affirmative defense to defamation; it suffices that the statement is substantially true. Heeb v. Smith, 613 N.E. 2d 416, 421 (lnd.Ct.App. 1993). It is sufficient that the substance, "the gist" or "the sting" of the statement is true. Id. The test for determining whether a statement is substantially true is whether any inaccuracies caused the statement to produce a different effect on the audience than would have been produced had the literal truth been spoken. Id. That a person merely drove after imbibing alcohol produces a far different effect on an audience than stating that he was so drunk he crossed the center line and nearly killed pedestrians. Even when accepting the OWI as a concluded fact, that does not establish the substantial truth of the Bernitts utterances that have nothing to do with driving.

Wells designated ample evidence to show that the Bernitts' statements were false and the trial court's grant of summary judgment based on the substantial truth of the Bernitts' utterances was reversible error.

D. The Bernitts made their statements with malice.

Actual malice exists when the defendant publishes a defamatory statement" 'with knowledge that it was false or with reckless disregard of whether it was false or not.''' Journal-Gazette Co. v. Bandido's, Inc., 712N.E.2d 446,456 (Ind. 1999)(quoting New York Times Co. v. Sullivan, 376 U.S. 254,279-80 (1964». Actual malice must be shown by clear and convincing evidence. Heeb v. Smith, 613 N.E.2d 416, 419 (Ind.Ct.App.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986». To demonstrate reckless disregard, "[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication," or proof that the false publication was made with a "high degree of awareness of their probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74 (1964). Hence, a defendant's actual state of mind is a critical factor in the analysis. See Herbert v. Lando, 441 U.S. 153, 160 (1979). A defendant's state of mind is a subjective fact and may be shown by indirect or
circumstantial evidence. Bandido's at 456.

Ample circumstantial evidence shows that the Bernitts entertained serious doubts about the truth of their accusations. First, the overwhelming evidence reveals that Wells did not stagger out of the Crazy Horse Tavern, urinate on the railroad tracks, or drive recklessly and nearly run over pedestrians. Wells himself testified that he did not do any of those things and other witnesses back him up.

Ronald Stanhouse, the Crazy Horse's owner, states that Wells was impaired in neither his mental or motor faculties when he left the Crazy Horse (R. 55.)

Officer Brown, one of the Defendant-Appellees, testified that when he first encountered Wells he "saw no impairment." (R2. 159.)

Kiernan Casey observed Wells driving before the traffic stop and observed no sign of erratic driving. Taking the facts in the light most favorable to Wells, and resolving, as the Court must, all factual disputes in Wells' favor, the Bernitts describe events that never occurred. The Bernitts must therefore have had a high degree of awareness of the their probable falsity.

Second, the Bernits described Wells as having driven on a route through the city of Bloomington that was closed and barricaded. The Bernitts say they followed Wells from the parking lot across from the Crazy Horse, going east on Fourth Street crossing College Avenue to Walnut Street, turned left on Walnut Street to Kirkwood and Walnut Street, where they witnessed the alleged near striking of pedestrians.

Yet Wells and the Bernitts could not have taken this route because Fourth Street between College Avenue and Walnut Street was closed to vehicular traffic for the Lotus Festival. (R. 57.)

The Bernitts describe a scenario that is physically impossible. Nor is this merely an innocent misrecollection of a complicated route. The Bernitts described the same route on at least three separate occasions-their statement to Brown, their deposition in Wells' criminal case, and at Wells' trial. (R2. 160-63.) If their initial statement to Brown was a mere slip of the tongue they had many opportunities to correct it.

That the Bernitts described Wells as doing something that was physically impossible is strong circumstantial evidence that they made their statements in reckless disregard of the truth.

E. The element of malice is also shown by the Bernitts' ill-will.

Malice is also shown by the personal animus the Bernitts bore against Wells. While "ill-will" is not an element of the legal definition of actual malice, it is nevertheless relevant and admissible as evidence in the determination of whether defendant possessed a state of mind highly conducive to reckless disregard of falsity. Cochran v. Indianapolis Newspapers, Inc., 372 N.E.2d 1211, 1220 (Ind. 1978).

The Bernitts made their utterances against Wells just two months after Wells filed a lawsuit against them for falsely accusing him of arson. (Pedigo Bay pleadings.) Bud Bernitt was a long-time political opponent of Wells and often attended meetings of the Monroe County Council and Monroe County Plan Commission, where he would publicly and falsely accuse Wells of failing to obtain permits for his septic system while hypocritically citing Republicans for such violations, and he would insult Wells in harsh, personal terms. (See, e.g., R2. 39, "Obviously Scott Wells and his friends think that they are above the standards which they impose upon us. There's one set of rules for Scott and his friends and there's another set of rules for us.")

Likewise, Bud and Amy both relentlessly attacked Wells in internet chat rooms maintained by the Bloomington Herald-Times. In these posts, in which they would use multiple pseudonyms, often talking to each other to create the impression of a widespread. popular conversation, they called him a "fascist" and "ecoterrorist thug", associated him with the Environmental Liberation Front ("ELF," a terrorist organization), and repeatedly accused him of dumping raw sewage into Lake Monroe. (R. 48-49.)

In one particularly ominous (Herald-Times) post just two months before making his false report to Maxwell, Bud predicted Wells would be in jail,. (R. 49.) Yet at trial Bud admitted that he possessed no evidence whatsoever that Wells dumped sewage into Lake Monroe. (R. 64.) His charge was baseless and he knew it.

Finally, this Court has already recognized the likelihood that the Bernitts "set up" their political enemy Wells to be arrested by the Bernitts' political ally Maxwell. Wells v. State, 848 N.E.2d 1133, 1150 n.9 (Ind. Ct. App. 2006). That their goal was not the disinterested report of a potential crime but the humiliation of political enemy establishes a state of mind conducive to the reckless disregard of the truth.

F. The Bernitts lost any qualified privilege they may have had
by abusing it for malicious, political purposes.

The trial court erroneously found that the Bernitts' utterances were covered by the "common interest" privilege. (R. 14.)...

The Bernitts' report of Wells' alleged crimes to J.D. Maxwell do not fall within either the "common interest privilege or the "public interest" privilege. The Bernitts' putative interest in getting a drunk driver off the road was not served by calling J.D. Maxwell, a personal friend and political confidante.

Had the Bernitts been honest, disinterested citizens acting with only the public weal in mind, they would have called 911. The entity with the corresponding common interest in arresting drunk drivers was the police department in whose jurisdiction the alleged crime occurred. But that is not the entity with whom the Bernitts communicated. Instead Bud Bernitt phoned Maxwell at home. (R. 69.)

Maxwell had the dispatcher tell Trooper Brown to call Maxwell at home, which deviated from normal procedure (Wells v. State, 848 N.E.2d at 1139) and then dispatched Brown to a residential location the State Police do not normally patrol. (R2. 127.)

The Bernitts' utterances were not made in the course of a legitimate law enforcement investigation; they were made in furtherance of a plot to humiliate a political enemy. As such they are outside both the common interest and public interest privileges.

Our Supreme Court has reasoned that "there is no privilege if the publication was made primarily for the purpose of furthering an interest that is not entitled to protection, or if the defendant acted principally through motives of ill will, or, so it is held, if he acted recklessly." Tanoos at 598 (quoting 50 Am.Jur.2dLibel and Slander § 197 at 702-03 (1970». The Bernitts acted primarily to further a political agenda and their statements fall outside the privilege.

Even if the Bernitts' utterances were privileged, the Bernitts lost that privilege by abusing it. A communication otherwise protected by a qualified privilege may lose its protection if it is shown that: (1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statements; or (3) the statement was made without belief or grounds for belief in its truth. Tanoos at 598.

For all the reasons noted above, the evidence shows that in making their statements the Bernitts were motivated primarily by ill will. They made their accusations two months after Wells initiated a lawsuit against them for falsely accusing him of arson.

Bud Bernitt regularly spoke at meetings of the Monroe County Council and its Plan Commission, where he harshly attacked Wells.

Bud and Amy both posted comments on Internet chat rooms where they attacked Wells relentlessly. Staking out the Crazy Horse and reporting that Wells had staggered into his car and urinated by the railroad tracks was simply the latest (and most successful) of the Bernitts' many attempts to humiliate and destroy a political opponent.

Unless only one conclusion can be drawn from the evidence, the question of whether the privilege has been abused is for the jury. Tanoos at 601. (quoting William Prosser, Law of Torts § 115, at 796 (4th ed.1971». This Court has already determined that grounds exist to believe that the Bernitts "set up" Wells for arrest because he was a political enemy. Wells v. State, 848 N.E.2d 1133, 1150 n.9 (Ind. Ct. App. 2006). This Court should therefore reverse the trial court's finding of the existence of a qualified privilege and remand this matter for a determination by a jury of whether the Bernitts abused the privilege.


II. THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY
JUDGMENT ON PLAINTIFF'S FEDERAL CLAIMS OF
EXCESSIVE FORCE AGAINST BROWN AND CORYEA

A. Standard of Review

As it does with Wells's Indiana law claims, the appellate court reviews his federal claims de novo. Talanda v. KFC Nat. Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998). In assessing whether there is a genuine issue of material fact, the reviewing court is obliged to examine the record in the light most favorable to the party against whom summary judgment was decided, and to grant him the benefit of every reasonable inference that can be drawn
from those facts. Id.

B. Wells states a claim under the Fourth Amendment.

In addition to his Indiana law claims against the Bernitts, Wells brings a claim under 42 D.S.C. § 1983 to vindicate his rights under the D.S. Constitution to be free from excessive force during an arrest...

C. Brown and Coryea effected Wells' arrest with brutally excessive force.

... In order to assess objective reasonableness, the court must consider all the circumstances, including notably 1) the severity of the crime, 2) whether the suspect poses an immediate threat to the safety of the officers or others, and 3) whether he is actively resisting arrest or attempting to evade arrest by flight. Id. The force employed by a police officer is deemed excessive if, in light of the totality of the circumstances, it was greater than was reasonably necessary to effectuate the seizure. Holmes v. Village of Hoffman Estate, 511 F.3d 673, 685 (7th Cir. 2007).



Taking the facts in the light most favorable to Wells and resolving all factual disputes in Wells' favor, the officers had no reason to employ any force at all, much less to brutally throw him onto a brick sidewalk. Brown stopped Wells for a seatbelt violation (R. 71), which is merely a civil infraction and not even a crime. Wells posed no threat to the officers but was talking to them passively and politely (R2. 120.) No one has suggested that Wells was armed. No one has suggested that Wells attempted to flee. A jury acquitted him of the charges of battery on a police officer and resisting arrest.

Four independent witness confirm that at the moment Brown and Coryea initiated the take down Wells was calmly talking to the officers and not striking at them or making any other threatening gestures towards them. (See, e.g., R2. 129.) The use of any force on Wells was unnecessary and summary judgment on these facts is reversible error.

D. Wells' conviction does not bar his claims for excessive force.

The trial court dismissed Wells' excessive force claims against Brown and Coryea on the erroneous theory that they were barred by the doctrine announced in Heck v. Humphrey, 512 U.S. 744 (1994). (Order.)...

In the present case, Wells was convicted of OWl and Disorderly Conduct. He was acquitted of other charges, including Battery on a Police Officer and Resisting Arrest. Clearly his claim of excessive force in no way invalidates his conviction for OWI. The two are not even remotely inconsistent. Even his conviction for disorderly conduct is not invalidated because the mere fact that Wells was disorderly would not justify the degree of force used on him.

The plaintiff in VanGuilder was convicted of resisting arrest and was alleged to have fought with the arresting officer, yet the Seventh Circuit did not find this to be inconsistent with his civil claim that the officers used excessive force to subdue him. VanGuilder at 691.

Wells' conviction for Disorderly Conduct is for a crime less violent that the Resisting conviction in VanGuilder that the Seventh Circuit found not to constitute a Heck bar. Wells claims of excessive force fit well within the exceptions carved out to the Heck doctine and the trial court's dismissal of them was reversible error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court should be reversed. All Plaintiff-Appellant's claims against the Bernitts and his federal law claims against Brown and Coryea should be reinstated and this matter remanded to the trial court for further proceedings.

[Richard Potato]

For those who care.

[Village Idiot (R)]

For those who care.

No, we know the facts.

These posts are for those who should care.

[Richard Potato]

For those who care.

No, we know the facts.

These posts are for those who should care.

Who are ''we''?

Personally, I welcome these not-linked posts; they almost satisfy my craving for beating dead horses.

[Village Idiot (R)]

For those who care.

No, we know the facts.

These posts are for those who should care.

Who are ''we''?

Personally, I welcome these not-linked posts; they almost satisfy my craving for beating dead horses.

We are those who care.

Unless you think police and political activists should collude to beat people up, so should you.

[Richard Potato]

For those who care.

No, we know the facts.

These posts are for those who should care.

Who are ''we''?

Personally, I welcome these not-linked posts; they almost satisfy my craving for beating dead horses.

We are those who care.

Unless you think police and political activists should collude to beat people up, so should you.

Sorry, I have bigger dead horses to beat. I'm too busy trying to learn people that Lincoln was a war-mongering bastard, and that he should be severely and harshly punished for his crimes against Humanity. I'll leave petty local stuff like The Wells Case [which has already been settled and/or taken care of] to you and your ilk.

[Village Idiot (R)]

I'm too busy trying to learn people that Lincoln was a war-mongering bastard, and that he should be severely and harshly punished for his crimes against Humanity.

Knock yourself out.

[Richard Potato]

I'm too busy trying to learn people that Lincoln was a war-mongering bastard, and that he should be severely and harshly punished for his crimes against Humanity.

Knock yourself out.

vice-versa

[Village Idiot (R)]

I'm too busy trying to learn people that Lincoln was a war-mongering bastard, and that he should be severely and harshly punished for his crimes against Humanity.

Knock yourself out.

vice-versa

The courts will take care of that where as you are probably on your own with your dead president.

You incorrectly state that this case is settled.

[Richard Potato]

I'm too busy trying to learn people that Lincoln was a war-mongering bastard, and that he should be severely and harshly punished for his crimes against Humanity.

Knock yourself out.

vice-versa

The courts will take care of that where as you are probably on your own with your dead president.

You incorrectly state that this case is settled.

Then I'm misinformed. What hasn't been settled?