People, Let Me Tell You ‘Bout Your Worst Friend

Tired of the endless political posts on Facebook?  It could be worse. Much worse. With apologies to the late Harry Nilsson (and Bill Bixby), imagine if your Facebook best friend posted something like this:

Hey, those people that you saw on the news killing cops? Yeah, they worked for me. They were confidential informants, so I’m glad they’re dead. But more importantly, I head up a the local group of anarchists and we are going to blow up the courthouse, and kill some cops and judges. We have explosives and a massive arsenal. We will accomplish this no matter the cost!

You would be pretty horrified, right? Not everybody-I-went-to-high-school-with-is-so-old-now horrified, I mean legitimately horrified. That’s essentially what the Samuel Bradbury did in 2014, according to yesterday’s 7th Circuit opinion. I’ve paraphrased his diatribe in my example to starve it of any additional notoriety, but the essentials are there: (1) a shout out to recent, public, violent crimes, and (2) voicing an intent to take similar violent actions (3) against law enforcement and judicial officers.

Then, in the comment section, responding to a question from a friend, Bradbury explained that the entry was “complete satire . . .. This is simply a big mind game and satirical joke. . . . [I]t’s made to get you to think.” Though he deleted the message soon afterwards, the police received screenshots and an investigation followed.

The investigation led to Bradbury’s arrest and a search of his bedroom in his parents’ home. (That Bradbury still lived with his parents is easily the least shocking part of this story.) In the bedroom, police found thermite and magnesium, which probably means Bradbury is either really creepy or enjoys underwater welding in his spare time. Still, the defense must have been partially successful. After a trial, Bradbury was only convicted of maliciously conveying false information, which he appealed.

In any jury trial, the judge gives a set of instructions to the jury members. Think of them as answers to the Frequently Asked Questions the jury may have. These instructions often provide specific definitions of some of the terms used by the lawyers and the judge. In this case, the parties tasseled over the judge’s definition of maliciously. On appeal, Bradbury argued that the definition was too broad and would’ve allowed the jury to convict him even if the jury thought he was joking. But whether Bradbury intended to cause physical harm begs the question: when is a threat that puts people in fear or apprehension itself a criminal “harm”? The Court approved the trial court judge’s definition of maliciously, upholding Bradbury’s conviction:

To make a threat . . . is both intentional and malicious—intentional because [it is] deliberate and malicious because [it is] calculated to inspire fear and provoke a possibly costly response—even if the threatener doesn’t intend to carry out the threat. . . . Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. Sec. 844(e) . . . even if the harm that ensues is fright rather than physical injury.

Them’s Fightin’ Words

Watching the Summer Olympics recently, two things occurred to me. First, somewhere on planet Earth there are people who take badminton seriously. Second, I spent a lot of time watching Olympic events that weren’t actually events: awarding medals, raising flags, analysis, and interviews. Plus, there’s always an obligatory video montage of the athlete-of-the-night’s heroic story and hardscrabble fight to become the best and his/her incredibly obscure sport giving hope to his/her hometown (recently emerged from the grip of war or pestilence or telemarketers), which has made him a local hero of Springsteen proportions.

The Big Show

Still, I didn’t Tivo-hop over all the regalia surrounding the Olympics. The Summer Olympics without podiums and medals, national anthems, and the opening ceremonies would amount little more than Labor Day yard games with better-looking people. Stay tuned for the Men’s Lawn Jarts final. Can grandpa defend his title?

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Yes, it’s probably just chocolate wrapped in foil. FreeImages.com/Alen Stojanac.

The Olympics isn’t the only time that sport is more than sport. All sports garnish the physical and mental contests with pageantry to heighten the entertainment of a great event (or distract from an awful dumpster fire of a game). The seventh inning stretch. The tee-shirt cannon. The Jumbotron. Mascots and mayhem, marching bands and the wave.

 

The most important accoutrements to sports, however, might be the words we use to describe them. Without talking about sports, we would lose roughly 1/3 of local news broadcasts. We would only read a newspaper for Dilbert and snarky Letters to the Editor. On the bright side, we wouldn’t have fantasy football. Still, Reggie Miller’s playoff exploits against the Knicks without Slick Leonard’s “Boom Baby!” would be downright two-dimensional.

In boxing, Ali-Frazier is considered the greatest fight ever by many. But how would it be remembered without its nickname: “The Thrilla in Manila,”? For that matter, it’s hard to imagine Ali’s career without his own boastful phrases or the staccato cadence of Howard Cosell journaling his exploits. Words shape the build up to these events and our perception of them for years to follow.

A Domestic Spat

Alas, however inseparable words are to our sporting pastimes, words in the law remain distinct from actions. On August 29, 2016, the Indiana Supreme Court handed down its opinion in Michael Day v. State of Indiana. After a dispute with his wife, screaming, threats, and four 911 calls, police arrested Day and charged him with disorderly conduct. In Indiana disorderly conduct occurs when a person:

[R]ecklessly, knowingly, or intentionally: (1) engages in fighting or in tumultuous conduct; (2) makes unreasonable noise and continues to do so after being asked to stop; or (3) disrupts a lawful assembly of persons . . .

On appeal, Day argued that the word “fighting” was ambiguous, and could mean either physical fighting or simply verbal arguing, and the ambiguity should result in a narrow interpretation. The Court ultimately agreed, holding that where the State charges a defendant with disorderly conduct for fighting, it must prove that a physical altercation occurred, not a mere verbal exchange. Fortunately for the prosecution–though not so fortunately for Mrs. Day–during their argument, Mr. Day spat in her face. I guess because he’s eight or something.

The Supreme Court said this was enough to make the fighting physical in nature: “Even under our narrow interpretation of ‘fighting,’ Day’s intentional, point-blank spitting on [his wife] constitutes sufficient evidence to support his conviction.”

So, if you’re keeping score at home:

1. Learn from Mr. Michael Day of Franklin County. Always keep your disagreements limited to constructive, gentile criticism such as “You #$%: @&%*! You will sign these papers for the house,” or “You #$%: @&%*! I ought to kill you,” played out within earshot of your young children. Just don’t spit on anybody and you should be fine.

2. Seriously, not even precious metals and the Star-Spangled Banner will make Americans care about badminton.

 

 

Improving the New and Improved

Statehouse
Indiana Statehouse

Each year, most of Indiana’s new laws take effect on July 1st. Sure, January 1 sees a few, and some others are scattered around the calendar. But those are the also-rans, the red-headed stepchildren of legislation. The varsity really suits up mid-year. For a General Assembly that is (technically) part-time, the Indiana legislature still manages to crank out a lot of sausage.

What follows is a summary of the 2016 newbies, along with the Breaking Law Blog’s thoughts about how new laws could be improved. And if you think that judging legislation on a thumbs-up/thumbs-down model is too provincial for your tastes, give it time—they’ll probably pass a law against it next year.

Law

Summary

Verdict

SEA 80 Allows a pharmacist to deny cold medicine containing pseudoephedrine if the pharmacist believes the purchaser does not have a legitimate need. Thumbs UpThis law is a good example of local communities finding solutions to guide State lawmakers. Pharmacists aren’t stupid. Nobody wearing a Bart Simpson tee shirt unironically actually buys Sudafed® so that he will feel 100% at work the next day.

Still, one small improvement might be to also allow a Pharmacist to say, “I’ll sell it to you, but only if you get a note from the police that confirms you’ve identified your dealer.” You’d be surprised how well this would work.

HEA 1187 “Stolen Valor” law makes it a misdemeanor to obtain a discount or benefit by falsely claiming to be a military veteran. Thumbs UpFrankly, anyone convicted of this should be drafted.
SEA 339 Wagering on fantasy sports is classified as NOT gambling, but the online fantasy sports contests now have Indiana Gaming Commission regulations. Thumbs DownPutting real money on theoretical outcomes of events that don’t actually exist is like putting money into funds that don’t actually exist. Only Social Security is allowed to do that.

Also, anyone choosing Tom Brady for a fantasy team should be forced to wear Uggs® at the Indiana State Fair.

SEA 1386 Purchasing alcohol on Sundays is allowed (up to 4.5 liters) if it’s manufactured and sold at an artisan distillery. Thumbs DownAs long as we’re adding words like “artisan” to the Indiana Code, shouldn’t this law require only listening to vinyl?
SEA 1048 Drivers involved in minor crashes are to move their vehicles out of traffic if it can be done safely. Thumbs UpGood luck enforcing this one. Any car with only a dented fender left in traffic will soon remove itself from the definition of “minor.” Elegantly self-regulating.
SEA 248 Drivers speeding in a work zone twice in one year will receive a 60 day suspension, in addition to other penalties. Thumbs DownSince Indiana has declared the orange barrel to be the official state mammal, determining an actual work zone will require the use of police psychics.
HEA 1374 Cremains of a police dog may be buried near grave of its deceased owner. Thumbs UpIf you don’t like this idea you’re a horrible, horrible person.
HEA 1378 Indiana’s Public Retirement System must end investments in businesses that support boycotts or sanctions against Israel. Thumbs UpMoney talks. Even to anti-Semites.
SEA 216 Landlords can contract with police to enforce traffic laws on private streets in an apartment complex. Thumbs DownDid we run out of public streets with traffic laws in need of policing?

Confidence Game

 

Danny DeVito’s slimy Sid Hudgens in L.A. Confidential worked for a tabloid and gleefully reminded people that gossip from his paper was always, “Off the record, on the QT, and very hush-hush.” Of course, this was nonsense. He worked for a newspaper. But revealing information a reader perceives as secretive or confidential can inject it with a sense of authenticity, and of course, sensationalism. Legions of click-bait internet ads contain phrases like “secrets to . . .” and “what so-and-so doesn’t want you to know” because it appeals to our desire to have inside information.

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From Indiana’s DCS website.

Still, some confidences are designed to stay confidential, and when they don’t, the consequences can be disastrous. Consider Indiana’s toll-free hotline to report suspected abuse or neglect of children, which received 202,493 calls in 2015. The identity of someone who reports abuse or neglect using this system is supposed to remain confidential. But what if that information is not held in confidence? What happens when the identity of a CPS caller is discovered, in spite of state law and DCS regulations?

First, remember that confidential does not mean anonymous. Although a report can be made anonymously, DCS Investigators must speak with the caller in detail to advance an investigation and the identity can be useful. The law requires that the name of the person who alerts CPS, (the “reporter”), if known, be redacted from documents shared with others, like the parents that are the subject of the investigation. The DCS website contains the following information:

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From Indiana’s DCS website

As you might imagine, if DCS is processing a few hundred thousand reports annually, it’s not unthinkable that one might slip through the cracks, resulting in the name of a reporter being unintentionally disclosed.

In John Doe v. Indiana Department of Child Services, Doe (whose real name was withheld in the lawsuit for obvious reasons) reported suspected abuse or neglect to the DCS. During his phone call, he expressed reluctance at sharing his identity, but was assured by a DCS representative that it would be kept confidential and that no one would know that he had made the report. Sadly, it didn’t stay confidential. The Court of Appeals described the consequences:

About a week [after Doe’s report], on July 3, 2013, Doe was confronted in his front yard by Heather Ditton, who lived across the street and was one of the neighbors Doe reported. While screaming and yelling obscenities, Ditton angrily accused Doe of calling DCS. Ditton had in her possession an unredacted copy of the DCS report, which identified Doe as the reporting source. Other neighbors quickly became aware of the report Doe made. Upon realizing the report was not kept confidential, Doe felt like “somebody ripped [his] heart out.” * * * From that point on, the Doe family no longer felt comfortable outside their house. They wanted to relocate but could not afford to move. Doe indicated that he was “stared at, glared at, mooned, flipped off, yelled at, you know, every day, forever.” His daughter, Jane Doe #2, was bullied by other children. Both Doe and his wife missed work due to stress and lack of sleep.

Doe v. Indiana Dep’t of Child Servs., No. 49A02-1506-CT-682, 2016 WL 3013989 (Ind. Ct. App. May 26, 2016), p. 3 (Internal citations omitted).  In what the Court called an “issue of first impression,” meaning it had not yet been addressed before an Indiana appellate court, the Court examined whether a person who calls to report abuse or neglect has a right to sue DCS for revealing of his/her identity. DCS did not dispute that it violated the statute by disclosing Doe’s identity. However, in examining Indiana Code § 31-33-18-2, the Court stated that “[n]ot every breach of a statutory duty provides plaintiffs with a right of action.” Since the law here does not make a private right of action explicit, the Court examined whether the legislature intended to make it implicit.

Naturally Doe and DCS did not agree on what the legislature really intended. But rather than answer this question directly, the Court decided to “leave that issue for another day” relying instead on the special duty that occurred when Doe spoke with the DCS representative and specifically voiced concern over confidentiality, and was assured that DCS would protect his identity. The Court of Appeals concluded:

Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise.

(p. 10). Although the litigation has yet to end, the Court allowed the lawsuit to continue. However, the decision of the 3-judge panel was not unanimous. Chief Judge Vaidik disagreed with the majority’s decision to side-step the issue of legislative intent, preferring instead that the Court address it, and arguing that the legislature did not intend to allow for a private right to sue DCS for disclosure. The dissent reasoned that: (1) the purpose of the statute is to encourage reporting of suspected abuse or neglect of children, not to protect reporters; (2) there is already a statutory consequence to wrongfully revealing a reporter’s identity (the public employee can be charged with a Class A infraction); and (3) courts have already held that victims of abuse or neglect cannot sue those who failed to report the abuse, and it’s logical to conclude that if abuse victims don’t have a private right to sue, then reporters don’t either.

Given the division of the Court and the importance of the issue, I think it’s very likely the Indiana Supreme Court will grant a request from the DCS to take up the issue later this year.

 

App-pendix Removal

Being an appendix is a tricky gig. At first, it may seem all cool not to have anything important to do. But if you spend enough time being blissfully unnecessary to the operation of the body, or you cause pain, you just might be sliced out of the torso and discarded like yesterday’s Kung Pao chicken. Exitus corpus.

Appendages aren’t limited to the physical body. There are societal appendages as well, like baton twirlers, kindergarten graduations, and the Vice Presidency. They serve no useful purpose, but haven’t faded away with time. Perhaps we keep them around has historical bookmarks, so the passage of time can be measured through methods more amusing than a ticking clock or flipping calendar pages.

Appendages abound in the legal world, too. Nowhere more prominently than in our language. Wherefores, Hereinafters, and Party-of-the-Second-Parts, which once dotted the plains and pleadings of the American legal landscape like so much pasture-devouring bison, are disappearing rapidly in the wake of the Plain English movement. But they aren’t on the endangered species list yet. I occasionally still see a clerk or lawyer use the phrase “Executrix,” a Victorian-era term for a female executor of one’s estate, even though I learned in law school around [*cough*] years ago that this term was already probably sexist and certainly antiquated.

But legal linguistic appendages encompass more than just the never-say-die aged variety. Lawyers also love their redundancies. And they love re-stating things. And they like repeating themselves. And they enjoy saying the same thing more than once.  This might be useful on occasion, or with contracts covering such vast human interaction that the difference between “rent” and “lease payment” matters, but lawyers have trouble choosing one and the redundancies often result from a “better safe than sorry” attitude toward contracts and pleadings. Still, that’s little comfort for the bogged-down reader.

ScreenHunter_01 May. 26 15.59
Ladies and Gentlemen, Norwegians.

Illustrating the wonderful absurdities birthed by bad legal writing, the Norwegian Consumer Council (Motto: Fighting Swede Greed Since 1978!) recently conducted a live public reading of the Terms & Conditions of Norway’s 33 most popular smart phone apps as part of its #appfail campaign. If you want to challenge your own attention span, you can watch video of the event. The entire reading clocked in at just over 31 hours 49 Minutes. Even accounting for the length of words in Norwegian–a language which seamlessly mixes Klingon, an IKEA catalog, and chemical symbols for rare earth metals–that’s a lot of reading.

Of course, the point is that most of us don’t read Terms & Conditions. We ignore them, and tech companies know we ignore them. The result is the gradual loss–albeit voluntarily–of our data and privacy. Like all unacceptable, unwanted, or unneeded appendages, marathon-length Terms & Conditions will only be cut out and discarded when their costs outweigh their benefits. Right now, the world loves its smartphone apps, so the benefits are significant.

Time will tell whether the Council’s attempts to embarrass the tech industry (and by association, the legal industry) into developing easier-to-read Terms and Conditions will have lasting change.  But the Council stresses 5 common sense ways that terms and conditions could improve:

1. Cut back on the obvious;

2. Write so that people understand;

3. Keep it short and concise;

4. Structure the text (to highlight important elements); and

5. Adopt an industry standard.

Let’s hope that all types of legal writing, not just the App Store variety, learn to follow these examples.

 

The Hidden Pitfalls of Police Video

[W]itnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Indiana makes most government records available to the public for the asking. The law is formally known as the Access to Public Records Act (APRA). Its more famous federal cousin is the Freedom of Information Act (FOIA).  Most public records are, of course, mind-numbingly dull. Using public access laws can lead to strange results. For example, consider Mental Floss’s collection of ridiculous documents obtained through public records requests, which includes an FBI Twitter slang dictionary. I can only imagine how that impacted tweets in the bureau.

@SpecialAgentJones OMG your proposal for this task force had me totes ROTFLOL. #GManProblems.

I’m kidding. This can’t be an actual tweet. It uses the word “your” correctly.

Still, we’ve come to accept that the costs of APRA and FOIA are outweighed by the benefits of public accountability. So whenever someone wants to tinker with public access laws, it’s in our nature to fear that government accountability may suffer.  In that context, some proposed changes to APRA this session in the General Assembly have caused a stir.

Here are the basics of the law as it stands today:

General Rule: Government records are public.

Exception: Agencies have some discretion to decide whether to release certain kinds of records. For example, I.C. 5-14-3-4(b) says that public agencies have the discretion to withhold “investigatory records of law enforcement.”

The law being the law, there are many other exceptions, of course. And even a couple exceptions to this exception–but you get the idea. An agency does not have to disclose an otherwise-public record if it is an “investigatory record.” Although policies can vary, this discretion typically means that videos that are part of an investigation might not be released to the public, or the press, while the investigation is ongoing.

There are good reasons for this. Many videos may show crime victims, who may not want the public attention that comes with a video. Also, witnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Enter House Bill 1019, which would change the law in a few important ways.  First, it creates a new category of document called a “law enforcement recording,” which includes audio and video from body cameras and dashboard cameras.  Next, it creates a special standard for obtaining this video. This is where it gets a little more complicated. The person in the video can make a request and is entitled to see the video, with his attorney, at least twice, but is not allowed to copy it.  Anyone else who wants to see it must file a petition with the court and prove that (1) releasing the video is in the public interest, (2) no one will be harmed, and (3) there will be no “prejudicial effect” on any existing civil or criminal cases.

House Bill 1019 is now the subject scathing editorials in the Indianapolis Star and other papers, which can be a bit misleading.  With titles like “Police camera footage should remain public,” the editorials might lead the casual reader to presume that such videos are completely available to the public under the current law, which isn’t the case. Yes, HB 1019 would alter the way one requests a law enforcement recording, but even under current law, an agency has the discretion not to make such a record available if it’s an investigatory record.

To be sure, not every law enforcement recording will be an investigative record. If a police cruiser captures several hours of a 4th of July parade where no crimes are alleged to have occurred, that video is likely not an investigatory record and would fall under the general rule allowing public access. But let’s face it, if a video is so uneventful that it’s not part of an investigatory record, no news agency is going to be interested in seeing it.

That’s not to say that HB 1019 doesn’t have some problems:

  1. Identification of requesting party. I’ve seen many police videos. Although the quality has improved greatly in the past decade, it’s not always easy to tell who is in a video. The bill creates a scenario where somebody—probably a Sheriff’s Office or Police Department employee—will have to decide whether the person making the request for a video is the person in the video. In many cases, this will be undisputed, but, as the saying goes, “Hard cases make bad law.”
  1. Cost of compliance. The costs of compliance for both law enforcement and those making requests could be significant. These include the cost of supervising someone who has a right to watch a police video because she is in it, and making sure she doesn’t use her smartphone to make a copy; the cost of redacting material that should not be revealed; the costs of making (or opposing) a written petition to a court and meeting nebulous legal standards like “public benefit.”

In an effort to restore additional accountability, some have suggested expanding the permissible requestors of videos to include journalists. This creates a new problem: putting counties, cities, and towns in the position of determining who is—and who is not—a journalist. Do bloggers count or must a brick-and-mortar television studio or printing press be required? The First Amendment does not elevate the free speech rights of journalists above the rights of citizens, and Indiana’s public access laws should not either.

HB 1019 is currently scheduled to be considered by the Senate Judiciary Committee on February 24, 2016.

***

UPDATE: 2/24/2016 – The Senate Judiciary Committee approved the amendment today which would switch the burden of proof to the public agency to withhold the video in any petition to obtain a Law Enforcement Video.

With Great Powerball Comes Great Responsibility

[T]he damage done by earning less interest in a savings account is minuscule compared to lottery spending and the financial risk for families that have no savings.

The Powerball is a multi-state lottery based in Florida, which I’m told is still a thing. Florida, that is. I knew Powerball was a still thing because I own several media devices which regularly dump media all over me. This week, the Powerball prize was large enough that if there had been a single winner, that winner could’ve become Batman.

Lotteries tout the contributions they make to citizens through expenditures on road construction, road signs, orange road signs, orange blinking road signs, and really big orange road signs with blinking text that drivers can read as they are driving, with helpful themes like “Don’t text and drive.” Sometimes, these signs are hacked by obnoxious teens to say obnoxious teen things like “Han Solo dies.”

In 1964, the first modern U.S. State-run lottery began in New Hampshire. Today 44 States and D.C. have lotteries, and the first multi-State lottery began in 1985. Since then we’ve learned a couple of honest-to-goodness facts about lotteries. First, poor people buy lottery tickets as a much larger percentage of their income than the middle-class. Second, lotteries really hate competition. (And not just State lotteries. Nevada’s gambling industry has successfully prevented a State-run lottery there.)

It’s easy to categorize the poor as being victimized by State-run lotteries. After all, the poor can least afford to lose discretionary income, right? But before you lament a low-income earner falling into mathematical quicksand as a result of ignorance or government predatory schemes (or both), consider the possibility that the poor are rational actors in playing the lottery. The argument goes something like this: a low-income person with a big mountain of debt who plays and loses the lottery still has a big mountain of debt. This same person who doesn’t play the lottery at all still has a big mountain of debt.  A chance of winning, however small, is the only chance of climbing atop the debt mountain. Depending on factors such as income and interest rates, this may be completely accurate. That’s not to say most poor aren’t objectively (financially) worse off for playing the lottery—they are. But lotteries would be broke if we were all objective. Humans, not calculators, buy lottery tickets.

Yep, they’re goats. In trees.

Americans also have a bad habit of not saving money. Sure, in a world where you can buy a 2016 Goats in Trees Calendar, who wants to save money?  I get it. Still, most of us know we should save more, but our national vices—including the lottery—seem to be an obstacle.

Some countries have harnessed the public’s desire to play a lottery to combat poor savings habits. The result is a Prize-Linked Savings (PLS) account. The concept is pretty simple. Suppose a regular savings account pays 3%. A PLS account pays less than 3%, maybe even nothing. But in exchange for foregoing all or part of the interest, the account owner is automatically entered into a lottery. PLS accounts have grown in popularity in the last 10 years.

Some critics of PLS accounts suggest that the cut in the interest rate hurts the poor. Would the poor be better off earning interest? Sure. Objectively.  But considering low-income household finances, the damage done by earning less interest in a savings account is minuscule compared to lottery spending and the financial risk for families that have no savings. Governments should not open candy stores and then feign shock when diabetics walk in the front doors, ignoring the “eat responsibly” signs.  Offering sugar free options might be a better response.

The PLS idea has caught on in such exotic, far off locations as Sri Lanka, Japan, and Michigan. How much does it help people save? The research of Peter Tufano, Dean at Oxford’s business school, noted that 56% of the participants in Michigan’s “Save to Win” PLS program were first-time savers.  At present, 12 states, including Indiana, do allow PLS accounts, but more states should. Even if it means fewer traffic signs.