HOWELL v. STATE OF INDIANA, et al.

Filing 11

ENTRY Denying Motions For Temporary Restraining Order and Preliminary Injunction Relating to Ind. Code. § 35-42-4-6: Mr. Howell's 3 ex parte motion for a TRO is denied. Similarly, he has not shown a reasonable likelihood of success on the merits of his claim challenging the constitutionality of Ind. Code. § 35-42-4-6, so his 6 motion for preliminary injunction is denied. (See Entry.) Signed by Judge Jane Magnus-Stinson on 6/17/2016. Copy sent to Plaintiff via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEFFREY E. HOWELL,
Plaintiff,
v.
STATE OF INDIANA,
GREG ZOELLER,
INDIANA DEPARTMENT OF
CORRECTION,
KEITH BUTTS,
CITY OF INDIANAPOLIS,
DARIN ODIER,
SHANI ANDERSON,
MICHAEL THAYER,
CLARK COUNTY, INDIANA,
DANIEL RODDEN,
LIBERTY BEHAVIORAL HEALTH,
BENJAMIN JAMES,
CARY REZMAN,
KELLY HOFFMAN,
Defendants.

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No. 1:16-cv-01377-JMS-DML

Entry Denying Motions For Temporary Restraining Order and Preliminary Injunction
Relating to Ind. Code. § 35-42-4-6
Mr. Howell’s ex parte motion for temporary restraining order (“TRO”) to prohibit the
State from enforcing Ind. Code. § 35-42-4-6, Child Solicitation [dkt. 3], and his motion for
preliminary injunction [dkt. 6] have been considered. Mr. Howell argues that the challenged
statute is overbroad and vague. The challenged statute provides, in part,
(a) As used in this section, “solicit” means to command, authorize, urge, incite,
request, or advise an individual:
***
(4) by using a computer network (as defined in IC 35-43-2-3(a));
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to perform an act described in subsection (b) or (c).

(b) A person eighteen (18) years of age or older who knowingly or intentionally
solicits a child under fourteen (14) years of age, or an individual the person
believes to be a child under fourteen (14) years of age, to engage in sexual
intercourse, other sexual conduct (as defined in IC 35-31.5-2-221.5), or any
fondling or touching intended to arouse or satisfy the sexual desires of either the
child or the older person, commits child solicitation, a Level 5 felony. However,
the offense is a Level 4 felony if the person solicits the child or individual the
person believes to be a child under fourteen (14) years of age to engage in sexual
intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) and:
(1) commits the offense by using a computer network (as defined in IC 35-43-23(a)) and travels to meet the child or individual the person believes to be a child;
or
(2) has a previous unrelated conviction for committing an offense under this
section.
(c) A person at least twenty-one (21) years of age who knowingly or intentionally
solicits a child at least fourteen (14) years of age but less than sixteen (16) years
of age, or an individual the person believes to be a child at least fourteen (14)
years of age but less than sixteen (16) years of age, to engage in sexual
intercourse, other sexual conduct (as defined in IC 35-31.5-2-221.5), or any
fondling or touching intended to arouse or satisfy the sexual desires of either the
child or the older person, commits child solicitation, a Level 5 felony.
However, the offense is a Level 4 felony if the person solicits the child or
individual the person believes to be a child at least fourteen (14) but less than
sixteen (16) years of age to engage in sexual intercourse or other sexual conduct
(as defined in IC 35-31.5-2-221.5), and:
(1) commits the offense by using a computer network (as defined in IC 35-43-23(a)) and travels to meet the child or individual the person believes to be a child;
or
(2) has a previous unrelated conviction for committing an offense under this
section.
(d) In a prosecution under this section, including a prosecution for attempted
solicitation, the state is not required to prove that the person solicited the child to
engage in an act described in subsection (b) or (c) at some immediate time.
Ind. Code. § 35-42-4-6.
Mr. Howell argues that the statute allows for the conviction of individuals accused of
soliciting children believed to be below the proscribed age even when the individual does not

believe he is in communication with a person under that age. He contends that the lack of an
affirmative defense provision to allow the accused to prove that he did not believe he was
communicating with a minor renders the statute unconstitutional.
In accordance with Rule 65 of the Federal Rules of Civil Procedure, a TRO may be
issued without notice only if specific facts “show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can be heard in opposition.” Rule
65(b)(1)(A). “The essence of a temporary restraining order is its brevity, its ex parte character,
and … its informality.” Geneva Assur. Syndicate, Inc. v. Medical Emergency Servs. Assocs. S.C.,
964 F.2d 599, 600 (7th Cir. 1992). In addition to the immediate and irreparable damage
requirement for a TRO, to justify issuance of preliminary injunctive relief, Mr. Howell must first
demonstrate that 1) he has a reasonable likelihood of success on the merits, 2) he has no adequate
remedy at law, and 3) he will suffer irreparable harm if preliminary injunctive relief is denied.
See Stifel, Nicholaus & Company, Inc. v. Godfre & Kahn, 807 F.3d 184, 193 (7th Cir. 2015).
Contrary to Mr. Howell’s assertion that he will face serious and irreparable harm if temporary
injunctive relief without notice is not provided, the Court finds otherwise.
Here, Mr. Howell cannot demonstrate a reasonable likelihood of success on the merits
because he challenged the constitutionality of this statute in his criminal case and lost (which he
failed to point out in his motions). The Indiana Court of Appeals found that his contention that
the statute was impermissibly vague and overbroad was without merit. Howell v. State, 2009 WL
3364798, 915 N.E.2d 209 (Ind. Ct. App. Oct. 20, 2009) (unpublished). The Howell court also
noted that the Indiana Court of Appeals had previously determined that Ind. Code 35-42-4-6 is
constitutional in LaRose v. State, 820 N.E.2d 727, 733 (Ind.Ct.App. 2005). The LaRose court
held that the State has a compelling interest in preventing adults from urging a child to have sex,

the statute is narrowly drawn, and it is not unconstitutionally vague. Id. at 730-33. Nothing urged
by Mr. Howell in his motions for preliminary injunctive relief persuade this Court that he has a
reasonable likelihood of success in challenging the statute under which he was convicted and
which has been upheld by Indiana courts.
Under the current status of Indiana law, Mr. Howell cannot show that immediate and
irreparable harm will result if a TRO is not issued. Therefore, Mr. Howell’s ex parte motion for a
TRO [dkt. 3] is denied. Similarly, he has not shown a reasonable likelihood of success on the
merits of his claim challenging the constitutionality of Ind. Code. § 35-42-4-6, so his motion for
preliminary injunction [dkt. 6] is denied.
IT IS SO ORDERED.

Date: June 17, 2016

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
JEFFREY E. HOWELL
899 S. College Mall Road, #226
Bloomington, IN 47401