Part of the claims filed against the University Police Department chief and an officer have been dismissed, an attorney for the McKinney family said Monday.
Tim McKinney and his wife, Lisa McKinney, filed charges in February against Police Chief Gene Burton and Officer Robert Duplain for the shooting death of their son Michael McKinney. The lawsuit filed was based on two different types of claims, naming the defendants as individually responsible and in their official capacity, as university employees, Thomas Malapit, an attorney for the McKinney family, said.
"The court ruled that suing an employee of a university, namely Ball State, is tantamount to suing the state," Robert Giroux, lead counsel for the McKinney family, said.
A court filing on Thursday stated that Ball State University is part of the state of Indiana and the lawsuit against Burton and Duplain in their official capacity as Ball State employees cannot be filed. Malapit said the 11th amendment provides immunity from the claim.
"A lawsuit in the official capacity means you're not really suing them, you're suing the entity for whom they work," Giroux said.
Claims in the lawsuit about the university police policies on staffing, deployment or training are out of the lawsuit, as well as complaints filed against Duplain about not attending the academy, Scott Shockley, Ball State's attorney, said. The decision to drop the official capacity claims determine what kind of evidence is relevant, he said.
"This is a significant and positive development for the defense," Shockley said. "We expect to file additional motions asking the court to review the individual charges for dismissal."
He said the university insurance policy still applied to the remaining claims against Duplain and Burton as individuals.
"Actions taken on the job by university police officers are covered under the university's insurance," Shockley said.
Burton said he was not aware of the latest developments and could not comment.
The parties involved met in a pretrial conference on Wednesday to determine the next steps in the case. In the filing, the judge set the date for both parties to present documentation for the upcoming trial. Final witness and exhibit lists for the trial must be filed by May 9, 2005 and all subsequent damages must be completed by July 29, 2005. The McKinney family has until Jan. 7, 2005 to submit a list of all non-monetary compensation sought in the case.
Read More
Three Air Jam teams take home the win
October 12, 2012Nineteen teams shimmied, shook and flipped for a sold out John R. Emens Auditorium on Thursday night during the 25th annual Air Jam.
Bill Clinton Speaks at North Central High School
October 12, 2012Former President's Speech Could Have Effect on State Senate Race
