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,
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,
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.
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.