Jennifer Nelson for www.theindianalawyer.com
The Indiana Court of Appeals in a case of first impression reversed a man’s conviction of battery on a law enforcement officer after finding he exercised reasonable force under I.C. 35-41-3-2(i)(2), the statute revised in response to a 2011 Supreme Court holding that the Castle Doctrine is not a defense to battery or another violent act on a police officer. But one judge asked the Legislature to take another look at the statute for public policy reasons.
David Cupello challenged his Class A misdemeanor battery on a law enforcement officer conviction, which was based on him slamming his apartment front door on the foot of an off-duty constable, Robert Webb, who was employed by the apartment complex as a part-time courtesy officer. The complex told Webb that Cupello had been verbally intimidating to apartment staff, so Webb went to his apartment to investigate “reports of intimidation.†He stuck his foot just inside Cupello’s apartment once he opened the door to prevent him from slamming the door closed.
When Cupello became upset, he tried closing the door several times, striking Webb’s foot. This caused Webb to call for backup and arrest Cupello for battery.
In David Cupello v. State of Indiana, 49A02-1406-CR-394, the judges found that the state did prove that Webb was engaged in the performance of his official duties to support Cupello’s conviction, even though during that incident, Webb was not in uniform nor did he identify himself as a constable to Cupello. But the two had encountered each other on a prior occasion. When Webb went to the apartment, Cupello told him he wanted to press charges against an apartment complex employee for harassment, which could lead one to infer Cupello knew Web as both a law enforcement officer and acting in his official capacity, Judge Edward Najam wrote.
But based on the revised statute, Cupello had a statutory right to exclude Webb from his home and used reasonable force to do so, the judge held. The placement of Webb’s foot inside the threshold of the apartment door was unlawful entry by a public servant. Cupello used reasonable force by closing his door, so the facts do not support his conviction, they held.
Judge Paul Mathias wrote separately to encourage the General Assembly to clarify what easily visible and audible indicia are required to place citizens on notice that he or she is dealing with an off-duty law enforcement officer who is acting in his official capacity. He also believes legislators need to more clearly define what powers private security personnel have.
“Without such careful consideration and differentiation by the General Assembly, Hoosiers have a right to wonder precisely who has been invested with the public authority to regulate civil society, and to resent the instances where government has apparently delegated public authority to private security for purely private purposes and gains,†he wrote.
