Category Archives: Local Government

What The NRA Hath Wrought…

When I saw this headline, “Owner of stolen handgun not liable for child’s death even when weapon is kept loaded and visible on car seat,” I couldn’t believe a court would rule this way on so obvious a case of negligence.

When I read the article, I understood.

Matthew Kendall, 16, of Huntingburg, died July 22, 2016, after he was shot in the head with a Glock 9 mm handgun that was taken earlier that day by a 15-year-old boy who was showing the weapon to Kendall when it discharged, according to court records.

Kendall’s mother, Shelley Nicholson, sued Christopher Lee, of Huntingburg, seeking damages for negligence in connection with Lee leaving his loaded handgun visible through the windows of Lee’s unlocked and unattended truck.

However, both the Dubois Circuit Court and a unanimous three-judge Court of Appeals panel said Nicholson’s case cannot proceed because Indiana law immunizes gun owners from civil liability for any subsequent use of their stolen firearms.

The court quoted the law as providing immunity from civil liability based on “an act or omission” of the owner, if the weapon was stolen and later used to commit a crime or harm someone.

Judge John Baker, writing for the Court of Appeals, said the plain language of House Enrolled Act 1349 required the court rule in favor of Lee, because regardless of how Lee stores his handgun, if the handgun is stolen, he is statutorily immune from liability for any resulting harm.

The Judge considered himself bound by what he called “the clear intent of the General Assembly,” which was to shield gun owners from liability even in situations like this, when an owner failed to take even the most minimal precautions to safely store his gun.

It’s hard to imagine anything more negligent than leaving a loaded gun on the passenger seat of an unlocked car. Absent the statute enacted by the Indiana legislature–undoubtedly under the influence of the NRA–the owner would be liable for his own careless behavior, as he should be.

Americans who own homes or other properties are routinely sued by folks who fall on steps or sidewalks that have been negligently maintained, or who are harmed by other obvious hazards that a normal person knows or should know are capable of  causing harm to a visitor. Laws that punish us for our own neglect or irresponsibility are there for a reason: to remind us that we have a duty of care, and should avoid negligent behaviors that can cause harm to innocent others.

It is absolutely scandalous that lawmakers (presumably in thrall to the clout of the NRA’s gun nut lobby) decided that a standard of behavior that has informed tort law pretty much forever just needn’t apply to people who might be careless with an inherently dangerous possession–a weapon that has one use and one use only–to injure or kill.

If you have a tree with a loose limb in your yard, you need to take care that it doesn’t fall and hurt someone who might sue you. But if you have a loaded gun available to whoever walks by, no worries.

The Indiana General Assembly has protected you. And gerrymandering protects them.

They Aren’t Even Pretending Anymore

For the past several years, political scientists and pundits have published articles bemoaning the erosion of democracy and democratic norms, and Americans who follow government and politics have nodded in measured agreement.

I say “measured” because we still retain the trappings of democracy–campaigns, elections, the free press that so annoys Donald Trump. But this year, we are coming face-to-face with a reality we’ve been avoiding: our elections are mostly a sham, and legislators–who haven’t felt the need to reflect the will of those who voted for them for quite some time–no longer are bothering even  to pretend that they are “representative.”

David Leonhardt has noticed.

In November, the people of Utah voted to provide health insurance for about 150,000 state residents who lacked it. Last week, Utah’s legislators overruled their own constituents and took away insurance from about 60,000 of those 150,000 people.

The legislators claimedthey were trying to save money, but that’s not a credible rationale: The federal government would have covered the bulk of the cost. The true reason — which the legislators weren’t willing to admit publicly — was a philosophical objection to government-provided health insurance.

Utah’s turnabout is the latest worrisome exampleof politicians rejecting the will of voters.

The offending politicians have been mostly Republican, as they are in Utah. “You see a rising, disturbing trend here of equivocation, if not worse, in the commitment to democratic norms on the part of a growing number of Republicans,” Larry Diamond, a Stanford University democracy expert, told my colleague Ian Prasad Philbrick. “Is this what the Republican Party wants to be? The anti-democracy party?”

Leonhardt provides examples from Idaho, Maine and Michigan, and notes that, In Missouri,  legislators are attempting to subvert a ballot initiative that would reduce gerrymandering.

In Utah, the legislature partly overturned a new law allowing medical marijuana.

These examples involved lawmakers ignoring the results of state referenda. Indiana doesn’t allow referenda, but our lawmakers have been equally willing to ignore the clear wishes of their voters.

This year, both the Indiana and Indianapolis Chambers of Commerce have made passage of bias crimes legislation a priority. Business and civic leaders throughout the state formed an organization, Forward Indiana, to support the bias crimes bill. The governor has asked the legislature to pass it. In a poll of Hoosiers on the issue, 84 percent of Democrats, 75 percent of independents, and 63 percent of Republicans supported passage of a hate crimes bill focused on marginalized Hoosiers.

The Senate GOP eviscerated the measure, gutting the language that made it legally effective. All indications are that the House–which, like the Senate, has a Republican super-majority with a history of homophobia–will concur.

If Indiana lawmakers actually represented their constituents, passage would have been a no-brainer. But thanks to gerrymandering, Indiana lawmakers feel free to ignore the wishes of the public they ostensibly serve, and they do so with some regularity.

As Common Cause has explained, we have a system in which the legislators choose their voters rather than a truly democratic system in which voters choose legislators. And until that  changes, lawmakers will continue ignoring We the People.

Like the lawmakers in Utah and other states, they don’t even bother to pretend any more.

Journalism Declines And Scandals Rise

I know I harp a lot on the importance of accurate, credible journalism–especially at the local level, but it is really, really important.

Believe it or not, the ongoing scandals in Virginia, which have embroiled the top three state officeholders, are illustrations of what happens when local coverage goes missing.

As Amanda Marcotte observed in Salon, 

The Virginia scandal is a reflection of a larger trend where politics will be driven more and more by revelations, gotcha moments and resulting scandals. The decline in robust, in-depth journalism, particularly on the local level — coupled with the rise of social media and well-funded partisan opposition research — is creating an atmosphere where political scandals, legitimate or not, will increasingly dominate politics and media.

“You have this degradation of resources in local journalism, which has been going on for a while now,” said Joshua Benton, director of the Nieman Journalism Lab, which is currently offering a fellowshipfor local investigative journalism. “You also have this counterpart, which is that it’s easier than before for opposition researchers on all sides to dig up dirt of this sort.”

Benton explained that the decline in local journalism allows politicians in the early stages of their careers, when they are likely to be running for school board or city council,  to escape the scrutiny they would previously have gotten from the relevant local media.

Philip Napoli, a professor at Duke University’s Sanford School of Public Policy, added that this trend has coincided with another, “the rise of social media and the ways that political candidates are able to communicate with their constituencies directly” and present a version of themselves that’s more to their own liking.

The result is that politicians simply don’t get the vetting they might once have received as they climb the career ladder from smaller offices to statewide and even national offices. Red flags that might have been noticed before a politician reached a position of significant power get overlooked, because local papers simply don’t have the resources to catch them.

The decline in local coverage has coincided with the rise of partisan outlets– not just national networks like Fox and Sinclair, but local talk radio and blogs less concerned with accuracy than with scoring points.  Add to that the gift of the internet– the wealth of materials that vigorous opposition research can now unearth– and you have a recipe for ongoing scandals appearing at extremely “inconvenient” times in politicians’ careers.

In the “old model,” Benton said, people  who wanted to share damning information like sexual assault allegations or past episodes of racist conduct would “go to a reporter and hand him or her the documents or the evidence,” and that reporter would “determine whether the information that’s being handed to them is correct or not.”

 “Now, increasingly you can just post it online and skip that step in the process,” he added. So questions about whether the information is true and legitimately newsworthy don’t get answered in advance.

It appears that the Virginia accusations are all true, although the stories were “broken” by a sleazy partisan web site. But in other cases, innocent parties and organizations sustained real (and sometimes permanent) damage before manufactured allegations could be debunked. Remember when Breitbart accused the nonprofit ACORN of being involved in sex trafficking? Its story was entirely false, but it led to the group’s collapse. A doctored video was used to accuse Planned Parenthood of selling “baby parts” from aborted fetuses and was gleefully spread far and wide. It was later shown to be part of the ongoing, deceptive effort to convince lawmakers to stop funding Planned Parenthood, but pro-life groups continue to cite it as “evidence” of the organization’s evil doings.

In the absence of adequate, reliable reporting, conspiracy theories and partisan invention will fill the void. And citizens won’t know what they can and can’t believe.

The problem is national, but far more prevalent at the local level.

Under Cover Of Jargon

The Indiana Statehouse is confusing. Often, that confusion is intentional. Lengthy bills are written in turgid “legalese,” and go on for pages. I’m a (recovered) lawyer and my eyes frequently glaze over.

And very often, you don’t have to be a hard-core libertarian to wonder: is this law really needed?

That was my first question when I received an email asking about Senate Bill 471, described as follows:

Would heighten the penalties for protests near oil and gas pipelines and other infrastructure by creating the offenses of “criminal infrastructure facility trespass” and “critical infrastructure facility mischief.” The bill provides that an individual who knowingly enters critical infrastructure facility without permission commits critical infrastructure facility trespass, a Level 6 felony punishable by up to 30 months in prison. Under the bill, recklessly or knowingly defacing such a facility constitutes critical infrastructure facility mischief, punishable by up to six years in prison as a Level 5 felony. In either case, the individual may additionally be liable to the property owner for damages, costs, and attorney’s fees. An organization found to have conspired with an individual who commits either offense may also be liable for a fine of $100,000. The bill newly defines “critical infrastructure facility” under Indiana law to include a range of oil, gas, electric, water, telecommunications, and railroad facilities, as well as any “facility that is substantially similar” to one of the listed facilities.

No one wants to see a “critical infrastructure” damaged. But a bit of digging suggests that more is going on with this bill–being pushed in several states by ALEC, evidently in reaction to Dakota pipeline protests– than the protection of “critical” utilities.

As my correspondent notes,

This description is accurate, but to get into more specifics one of the most troubling provisions is Ch. 10, Sec. 4 that says if an organization is found to be a conspirator with a person convicted of either trespassing or committing criminal mischief on “critical infrastructure” the organization can be fined up to $100,000. Sec. 5(a) could also potentially be interpreted as creating a cause of action by someone who has suffered damages not only against the person who caused the damage, but an organization found to be a conspirator with that person, to recover those damages. If that was the case the organization could be liable for more than a $100,000.

A Sierra Club officer explains the effect:

A couple of years ago the Hoosier Chapter was in discussions with some Northwest Indiana groups about a protest at the BP Whiting Refinery to oppose its expansion to allow it to process tar sands petroleum. When it became clear that some of the groups were contemplating civil disobedience, the chapter withdrew from the discussions, since the Sierra Club forbids illegal activities. In the event, about 40 people sat in front of an access to the refinery and were arrested for trespassing. I believe that most were let go without a fine. Under the proposed law, could we be found to have participated in the protest even though we withdrew? Could we be found liable for informing the public about the protest via our website, FB, and twitter, even though we didn’t support the civil disobedience? Certainly we would have to think long and hard about even participating in such discussions under this bill.

And that, I think, illustrates the actual purpose of the bill: to stifle dissent.

Indiana already has laws against trespassing and damaging property. S.B.471 ramps up the severity of the potential charges–from misdemeanors to felonies–and greatly increases the penalties. Although the bill contains a recitation that it is not intended to apply to “constitutionally-protected activities” (a provision added to mollify opponents of the measure), the question from the Sierra Club officer illustrates the chilling effect.

If one or two people at a protest inflict damage that was unintended and unforeseen by others, those others–including not-for-profits and civic organizations–run the risk of being hit with enormous fines. Of course they would “think long and hard.” That’s the whole point.

I am aware of no evidence that existing measures against trespass and property damage are inadequate or ineffective. But unnecessary and chilling as it may be, S.B. 471 is apparently moving “under the radar” toward passage.

This is how it’s done by the big “players” who understand how the system works.

While public attention and media coverage (such as it is) are focused on high-profile measures like bias crimes and teachers pay, troubling laws get a pass–in both senses of that word.

 

 

Indiana Forward

I recently read an article that identified pluralism as the great challenge of our time.

Most Americans no longer live among people who look, pray and think as they do; we are no longer surrounded by people whose minor differences offer no challenge to the assumptions that ground our worldviews.

Will our tribal differences allow us to create genuine, supportive communities?

Psychiatrists can probably explain why some people are comfortable in a diverse environment and others are threatened, but that diversity is an inescapable aspect of modern life. The challenge facing lawmakers is how to craft rules that respect the right of threatened folks to hold their beliefs while protecting the targets of their disapproval or hatred from harm.

I recently posted about a letter to the editor from four Indiana legislators opposing a hate crimes bill.The tone of that letter made it abundantly clear that lawmakers who wrote it see the bill as criticism of  their belief that certain Hoosiers are unworthy of explicit protection. (The LGBTQ community was the clear, if unidentified, target of their “righteous” enmity.)

A very different perspective was offered by Michael Huber, who heads the Indianapolis Chamber of Commerce, and Ann Murlow, CEO of United Way of Central Indiana. In a column written for the Indiana Business Journal, they reminded readers that Indiana is one of only five states without a hate crimes law.

It’s a blind spot in our justice system and a flaw in our business climate that becomes more conspicuous with each passing year.

Nationally, reports of crimes motivated by a victim’s unchangeable characteristics—such as race, religion, sexual orientation and gender identity—increased 17 percent from 2016 to 2017. Stories of violence and vandalism from across the state show that Hoosiers aren’t immune to this trend.

The column reported on the establishment of a coalition called Forward Indiana by members of the business, nonprofit, education, faith, government and philanthropy communities.

That coalition understands that an inclusive bias-crimes law is good for people, employers and our state. The Indy Chamber has also reactivated the statewide Indiana Competes coalition, extending its anti-discrimination mission to make the business case for action against bias crimes.

Together, we represent thousands of companies, civic organizations, religious and social service groups, and individuals from all walks of life in support of a strong law with a clear list of personal characteristics that reflects the diversity of modern-day Hoosiers.

Simply put, we want Indiana to reject hate without loopholes or ambiguity.

Indiana Forward recognizes that failure to declare, in no uncertain terms, that government will forcefully protect its citizens from crimes motivated by the bigotries of other citizens would send a positive signal to self-righteous haters.

Huber and Murtlow are also absolutely right when they point out that passage of a hate crimes bill that is not inclusive, a bill that surrenders to theocratic demands to exclude certain citizens from its protection, would be an endorsement of the position that it is acceptable to hate members of that group.

If we go to the Statehouse ready to exclude some of our fellow citizens— trading equality for expediency—any victory would be a hollow one that surrenders any claim to real leadership….

If Indiana passes a bias-crimes bill in 2019 that pointedly excludes gender identity, it would only amplify the negative perceptions that hinder our economic development efforts.

No one wants another Religious Freedom Restoration Act; our partners still struggle with the fallout as they try to appeal to skilled workers, attract conventions and convince employers that Indiana is an inclusive and inviting state.

But the lesson of RFRA isn’t to avoid controversy, it’s that discrimination is bad for business and wrong for Indiana. Leaving gender identity out of bias-crimes legislation would leave us on the defensive, limiting our ability to welcome a diverse workforce and the business opportunities that follow.

It’s not enough to lead with an affordable business climate when human capital is also a top priority. Passing a watered-down bias-crimes law would force CEOs to rethink Indiana as a competitive place to recruit and retain talent.

We shouldn’t squander this opportunity to lead with hesitation or half-measures; the General Assembly should pass a strong bias-crimes law that doesn’t leave any Hoosiers behind.•

In other words, let’s bring Indiana into the 21st Century.