Mimesis Law
8 December 2019

Indiana Supreme Court Gets Medieval On Notre Dame’s Cops

November 21, 2016 (Fault Lines) – If you’re a Hoosier and an advocate of police transparency, I’ve got some bad news. On Wednesday, November 16, the Indiana Supreme Court handed down a truly strange decision in ESPN v. University of Notre Dame Police Department.

The facts of the case are simple enough. Paula Levigne, an ESPN reporter, requested copies of incident reports from Notre Dame PD to do with certain student athletes. NDPD refused, claiming it wasn’t covered by the state’s public-records law, the Access to Public Records Act. After some back and forth, ESPN sued and the case wound up in court. The trial court ruled in NDPD’s favor; the Court of Appeals of Indiana reversed.

In overturning the appellate court, the Supremes concluded that the Access to Public Records Act doesn’t cover private colleges’ police departments because they don’t count as “law enforcement agencies” or “public agencies” under the APRA’s definition.

That might not be too controversial if private campus police were essentially rent-a-cops. But thanks to a state statute governing private college police forces, Ind. Code 21-17-5, Indiana’s campus dicks get the same law enforcement “powers, privileges and immunities” as any other PD, including the power to arrest people anywhere in the state, for violating any law, and cart them off to the police station. They get the same perks, including a lifetime post-retirement license to carry a handgun. They’re subject to the same training, educational and licensure requirements. As others have noted, NDPD advertises itself as a law enforcement agency among equals.

So why did the Supremes decide they’re exempt? How is it possible they don’t count as government cops, given that Indiana’s lege gave them government cop powers? Did the court screw up? Let’s find out.

ESPN’s first argument was that Notre Dame’s PD is subject to the APRA because it’s a “law enforcement agency.” Sec. 2(n)(6) of the APRA supplies the definition:

[A]n agency or a department of any level of government that engages in the investigation, apprehension, arrest, or prosecution of alleged criminal offenders, such as the state police department, the police or sheriff’s department of a political subdivision, prosecuting attorneys, members of the excise police division of the alcohol and tobacco commission, conservation officers of the department of natural resources, gaming agents of the Indiana gaming commission, gaming control officers of the Indiana gaming commission, and the security division of the state lottery commission.

Aside from proving that Indiana has too many kinds of cop, the definition’s most notable parts are in bold. Both parties agree that NDPD “engages in the investigation, apprehension, arrest, or prosecution of alleged criminal offenders.” But does wielding government power, conferred by a grant from the legislature, suffice to turn NDPD into a “level of government?” The court held that it doesn’t:

Private educational institutions have been granted statutory authority to appoint police officers to protect their campuses. […]

Appointed officers take an oath “in the form and manner prescribed by the appointing governing board” and serve at its pleasure. Ind. Code § 21-17-5- 3. The Department thus acts under the control of the trustees, who may expand and constrict its power at will, and free from government interference. We therefore cannot find that the Department meets the plain language of APRA’s statutory directive, that the law enforcement agency be “of any level of government.” It is an “agency or department” of the University, not of the State of Indiana.

This, then, is the court’s argument: NDPD cops aren’t part of the government because the lege didn’t give government power to the cops, but to the trustees. And if the trustees choose to confer police powers on their employees, why, then they’re not government cops, because they get their power from the trustees and not directly from the state. It’s a sort of feudal theory of law, where Notre Dame’s cops are exempt from the duties of the state’s vassals because they’re the state’s vassal’s vassals.

While the Supremes correctly observe that Ind. Code 21-17-5-2 “grant[s] statutory authority to appoint police officers” to college trustees, they choose to ignore that the cops themselves don’t get police powers from the trustees, “free from government interference,” but directly from the state. Ind. Code 21-17-5-4(a):

Police officers appointed under this chapter have the following powers:

(1) General police powers, including the power to arrest, without process, all persons who commit any offense within the view of the officer.

Nor is it true that the trustees may “expand and constrict [the cops’] power at will.” Instead, they may do so within certain parameters set forth by the lege. Ind. Code 21-15-5-5(c), for instance, lays out when and how trustees get to expand the cops’ jurisdiction. As for “constricting,” Ind. Code 21-17-5-4(b) provides:

The governing board of an educational institution employing a police officer may expressly forbid the officer from exercising any powers otherwise granted to the officer by law.

The feudal theory doesn’t work. Notre Dame isn’t a county or dukedom that owes duties to its overlord, but is otherwise free to create its own laws and impose them on underlings. Rather, Indiana’s legislature created a statute that a) confers powers, chiefly of appointment, directly on private college trustees; b) confers powers directly on private campus cops, as the phrase “granted to the officer by law” makes clear; and c) regulates interactions between cops and trustees. Stretching the feudal metaphor to the breaking point, Ind. Code 21-17-5 puts both Notre Dame and the NDPD in the state of Indiana’s demesne.

Lest anyone think this is a bit far-fetched, the court makes itself even more explicit when it rejects ESPN’s second argument, that NDPD constitutes a “public agency:”

The Department exists by creation of, and serves at the pleasure of, the trustees. Ind. Code §§ 21-17-5- 2, -3. It is the trustees who “prescribe the duties of the police officers,” “direct[] their conduct,” and even require the officers to wear “distinctive uniforms.” Ind. Code §§ 21-17-5- 2(2), -2(3). All this is accomplished by the legislature’s grant of power to the trustees. See Ind. Code §§ 21-17-5- 3, -4. The Department is not exercising the power of the State; rather, the trustees are exercising power granted to it by the State to appoint police officers to protect and oversee their campus. (Emphasis in original.)

Along with doubling down on the “college administrators as medieval lords” theory, the Supremes insist on conflating creating the office and powers of private campus cop – something the lege did – with picking people to fill it, the power the lege gave to the trustees.

So what does this mean for the court’s decision? Even if you reject the Supremes’ guiding argument, it remains unclear whether a private college’s PD becomes a “level of government” (and thus a “law enforcement agency”) just because it gets police powers from the state and is functionally equivalent to a regular PD. When ESPN urged the court to say yes, it does, pointing to similar decisions in states like Ohio, they were turned away:

There is no evidence that our General Assembly intended a functional equivalency analysis, like that of Ohio’s, and we decline to read this language into the statute on the legislature’s behalf.

On the other hand, there’s a good case for calling it a “public agency.” Here’s the relevant part of the APRA’s definition:

(2) Any:

(C) other entity, or any office thereof, by whatever name designated, exercising in a limited geographical area the executive, administrative, judicial, or legislative power of the state or a delegated local governmental power.

With the court’s main objection, that Notre Dame’s cops, as opposed to the trustees, don’t “exercise the power of the state” out of the way, NDPD starts to look a lot like a public agency.

But the Supremes made a different decision. No journalist will be getting his hands on Notre Dame PD records anytime soon. And all it took to transform a perfectly normal, statutorily created PD into a hideous, unaccountable public/private monster was a little creative reading. God save the King.

5 Comments on this post.

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  • SPM
    21 November 2016 at 11:48 am - Reply

    If we take the author’s analysis and ESPN’s argument at face value, a strong case can be made from (2)(c) above that virtually every attorney in the state of Indiana is a public agency and therefore their records would be subject to disclosure under the ARPA – notwithstanding any specific exception created under the act.

    • Andrew Fleischman
      21 November 2016 at 12:16 pm - Reply

      *he said without specifying why that makes sense*

  • TD
    21 November 2016 at 6:44 pm - Reply

    Isn’t this a relatively straightforward statutory interpretation question, one easily fixed by the Indiana legislature? Delete “of any level of government” and all police departments, including private police departments like railroad police, are covered by the act.

    I know treating it as a question of statutory interpretation rather than some sort of battle for truth and justice (detached from the actual statute) is kind of boring, but it might be better legal analysis.

    • David Meyer Lindenberg
      22 November 2016 at 8:25 am - Reply

      Can it? Sure. Will it? Eh. Indiana has what’s called a Public Access Counselor, who issues advisory opinions on how to interpret public-records laws. In the years leading up to ESPN’s lawsuit, the then-Counselor repeatedly held that APRA doesn’t cover private college police. Those opinions are non-binding, but the lege – which routinely updates APRA – did nothing to suggest they thought the Counselor got it wrong. It’s hardly dispositive, but it is interesting.

      • David Meyer Lindenberg
        22 November 2016 at 8:27 am - Reply

        Also, I have no idea what you mean by the second half of your comment,