In the final hour of session on Friday, a bill tackling a gap in the state’s trespass statute quietly died with little explanation.
The bill passed out of the House rules committee on a party-line vote after a fiery discussion, but wasn’t called on the House floor just minutes later for a full vote by the chamber.
Senate Bill 293 was the result of an Indiana Court of Appeals case in which judges identified a gap in Indiana’s criminal trespass laws. Senators advanced the measure on a 45-2 vote and the failure to pass in the House took some members by surprise.
“Property is one of the most valuable things a person can own, which is why I supported Senate Bill 293. The bill would have allowed for a member of law enforcement to, in certain circumstances, serve as an agent for the property owner in an event where the owner is not present to deny someone entry or ask a person to leave. While it did not move forward in the legislative process, I will continue to support legislation that will protect Hoosiers’ property rights in the future,” Michiana Shores Republican Sen. Mike Bohacek said in a revised release, corrected after the news of the bill’s demise.
Sen. Randy Maxwell, the bill’s author, didn’t respond to a request for comment.
Rep. Chris Jeter, the House sponsor, told the Indiana Capital Chronicle that it wasn’t a specific issue with the bill but “we just could not get comfortable with the language and felt it needed additional work and discussion.”
“I’m still committed to revisiting our trespass statute in a future session,” he said.
A separate bill, House Bill 1338, made its own attempt to address the underlying issue in the state’s trespass law but was amended to include public access counselor language late in the process. It hasn’t yet been signed by the governor.
The underlying bill
The proposal was a direct response to Young v. State, in which a store owner asked the Vincennes Police Department to perform extra patrols around its property following suspected trespass incidents.
A man later arrested by a law enforcement officer was jailed and eventually charged. But the state’s appellate court found the state failed to prove that the property owner or an agent of the property told the man to leave, a requirement under the law, as detailed by the Indiana Lawyer.
Additionally, it found that state law didn’t allow police officers to act as agents of private property.
“… they held that the plain language of the law requires that the actual owner, manager or adult employee be the one to inform the individual,” Maxwell, R-Guilford, said when introducing the bill in January. “(Senate Bill 293) provides that the police officer can act as the agent.”
Later in the process, as explained by Jeter, the House added language protecting a property owner from liability for the actions of the police.
“We had them add a sentence that says, ‘however, a person having a contractual interest in the property is not civilly liable for any act by law enforcement,’ which we thought sort of hemmed up the liability issue and allows us to solve the problem,” said Jeter, of Fishers, in a rules committee meeting on Friday.
But Rep. Matt Pierce disagreed with that assessment. The initial House amendment, he said, added language that a police officer must be dispatched but didn’t pass muster in the Senate.
“As I recall … the concern that was raised … was whether, by simply declaring law enforcement officers an agent, you would inadvertently convert them from a law enforcement officer to essentially a private security guard,” Pierce, D-Bloomington, said. “Then that raises questions as to whether the police officer might lose their qualified immunity.”
Qualified immunity is a practice that shields officers from allegations of misconduct by requiring a higher standard of proof.
Jeter responded that attorneys on “our side” felt that officers would retain qualified immunity and the bigger issue would be property owner liability.
Conference committee system
Pierce pointed to the conference committee system, which some have called the “least transparent” portion of the law-making process. When the two chambers disagree on a bill, they start behind-the-scenes collaborative rewrites. Often, the public-facing portion is a 90-second conference committee that reveals little about the status of negotiations.
As a conferee on Senate Bill 293, Pierce should have had more insight into the trespass bill’s process but said he was removed as a conferee with, he said, no discussion from Republicans after the conference meeting.
“(This was) never discussed in the house as an issue. Never! All of the concerns about potential liability have been for law enforcement officers,” Pierce said. “And then we get to the final hours here and they just yanked me. Not one single word of discussion. And I’m angry about it. This place should not be operating this way.”
After session ended, House Speaker Todd Huston called the conference committee system “imperfect” but stressed its importance in the process.
“It’s the first time you really know the lay of the land … bills change on the other side,” Huston said. “Conference matters because it’s kind of a chance to talk to your peers … (and) get bills in the right shape.”
Huston’s counterpart in the Senate, Senate President Pro Tem Rodric Bray, called it an “age-old complaint” with “some legitimacy to it.”
“One way or the other we have to find a way to merge the versions … we chafe against that process (and) we need to make sure that it’s as transparent as can be,” Bray said.
He noted that the conference committee process in recent years shrunk, with dozens of bills crammed into just one week this year.
“So I think that we’ll continue to try and improve,” Bray said.
This story and headline have been updated to include comments from Rep. Chris Jeter.
By Whitney Downard – The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.
