Chief Judge may Appoint an Attorney in Civil Case to Represent Black Man Suing West Lafayette Police

From [HERE] The benefit of a court-appointed attorney is typically reserved for criminal defendants who have no assets, source of income or family willing to front the money for private counsel — and not plaintiffs who want to sue another person, the government or a business. But one could be granted to 23-year-old Brandon M. Winters, a convicted felon from Lafayette, in a civil lawsuit he has filed against the city of West Lafayette and the police officer who shot him during a robbery investigation three years ago.

In an order signed Nov. 27, Chief Judge Philip P. Simon of U.S. District Court in Hammond wrote that the unusual move might be necessary to even simply decide whether the lawsuit should proceed to trial.

“... It has become apparent to me that there is an official capacity claim against the city and that Winters is not capable of adequately proceeding pro se on this claim, which he asserts he does not understand,” Simon wrote.

“To prove this claim, or even obtain the facts necessary for me to determine if it is a valid claim that deserves to go to trial, will require discovery and analysis that appears to be beyond Winters’ abilities.”

The judge stayed the case for 90 days, during which he plans to attempt to find Winters someone to represent him, court records show. The Nov. 27 ruling reverses a prior order he issued that denied Winters’ request for a court-appointed attorney, since “there is no constitutional or statutory right to counsel in a civil case,” Simon wrote in June.

The change of heart came while Simon was reviewing a request by attorneys for the city of West Lafayette and patrolman David Smith (in photo) to dismiss the lawsuit because Winters missed a deadline to hand over discovery.

Simon denied the defendants’ request on grounds that the missed deadline — medical records from Winters’ stay at an Indianapolis hospital were among the documents that the defendants asked for — was due to Winters’ lack of legal comprehension and not from bad faith. Winters’ lawsuit alleges that Smith used excessive force and violated Winters’ rights against unreasonable searches and to due process — as guaranteed by the Fourth and 14th amendments — when he shot Winters on Sept. 17, 2009.

Smith was one of several West Lafayette and Tippecanoe County police officers responding to a 911 call placed by a young man who Winters and a co-defendant, then 17-year-old Antwon Milsap of Lafayette, jumped under the John T. Myers Pedestrian Bridge — the third such robbery or attempted robbery reported near downtown in a 24-hour period.

The shooting took place as Winters was hiding in bushes just outside Wabash Landing Apartments. A bullet entered Winters’ neck and exited through his mouth, leaving Winters with no upper teeth.

The lawsuit was originally filed by two northwest Indiana attorneys, but they have since withdrawn from representing Winters.