Summary
holding that "repeated and unnecessary kicks and blows to complaint suspects lying on the ground in handcuffs" would constitute "violations of clearly established constitutional law."
Summary of this case from Davis v. City of New YorkOpinion
NO. 1:02-cv-1912-DFH-VSS
May 10, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Early on the morning of September 4, 2001, Indianapolis Police Officer Nancy Longworth responded to a call reporting a disturbance on a nearby school bus. Plaintiff Bobby Phelps, an autistic fifteen year old student, had tried to take control of the steering wheel while the bus was in motion. When Longworth arrived at the scene, she arrested Bobby. In the course of the arrest, Longworth used pepper spray and other physical force against Bobby.
Bobby's father, Robert Phelps, Sr., was on the bus. He witnessed Longworth's altercation with Bobby and became very upset. Other police officers soon arrived at the scene and the confrontation spilled out of the bus onto the sidewalk. The events that followed are in sharp dispute. At the end of the encounter, Bobby, his father and his younger brother Donny, who had come to investigate why the bus had stopped, were all under arrest and needed medical attention.
Pursuant to 42 U.S.C. § 1983, Mr. Phelps, Bobby and Donny claim that the police officers who participated in their arrests violated the Fourth Amendment by arresting them without probable cause and by using excessive force in the arrests. Plaintiffs have also brought false arrest claims under Indiana state law against the City of Indianapolis and state law battery claims against all the defendants.
Defendants have moved for summary judgment on all claims. On the false arrest and excessive force claims, they argue that they had probable cause to arrest each plaintiff and used reasonable force in doing so. Defendants also contend that the police officers are entitled to qualified immunity on the federal claims. On plaintiffs' battery claims under state law, defendants argue that the Indiana Tort Claims Act immunizes local governments and employees from liability for injuries resulting from police officers' use of excessive force in making arrests.
As explained in detail below, the material facts on almost all of plaintiffs' claims are sharply disputed. Under plaintiffs' version of the evidence, which the court must accept for purposes of summary judgment, the police lacked probable cause to arrest Mr. Phelps and Donny, and they used excessive force against all three of the plaintiffs. Also, the facts set forth by plaintiffs' version of the evidence show violations of clearly established constitutional law, such as repeated and unnecessary kicks and blows to compliant suspects lying on the ground in handcuffs. These factual disputes require that defendants' motion for summary judgment be denied with respect to all claims except Bobby Phelps' false arrest claims. On that claim, the undisputed facts show that Officer Longworth had probable cause to arrest Bobby based on the information she had received about his attempt to seize control of the steering wheel on the bus. On all other claims, summary judgment is denied.
Summary Judgment Standards
By moving for summary judgment, defendants have called upon the court to evaluate the law as applied to one version of sharply contested facts — the plaintiffs' version. The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving parties entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving parties must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmoving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering defendants' motion, the court must consider the evidence in the light reasonably most favorable to the opposing parties, giving plaintiffs the benefit of all conflicts in the evidence and all reasonable favorable inferences from the evidence. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). In deciding a motion for summary judgment, the court may not weigh conflicting evidence and choose from among conflicting reasonable inferences from the evidence.
Facts for Summary Judgment
The following account of the relevant facts is not necessarily correct, but it is the version upon which defendants have chosen to argue the law — the plaintiffs' version of the evidence, with the benefit of all conflicts in the evidence, and all reasonable and favorable inferences from the evidence. Some facts from the defendants' evidence are undisputed, though, and are treated as such for purposes of defendants' motion.On September 4, 2001, plaintiff Robert Phelps, Jr. ("Bobby") was fifteen years old. Bobby is mentally retarded and autistic. At that time, Bobby was approximately 5 feet 8 inches tall and weighed around 170 pounds. Bobby took a school bus to school every weekday. On the morning of September 4th, Bobby's parents, Robert Sr. ("Mr. Phelps") and Teresa, were having trouble getting Bobby on the bus because he was upset about not being able to find his usual pair of shoes.
After considerable coaxing by his parents and bus driver Linda Wright, Bobby got on the bus with his father. Bobby, however, was still very agitated, and not long after the bus started to move, Bobby began screaming, struck driver Wright with his book bag, and tried to grab the steering wheel of the bus. R. Phelps Dep. at 28-29. Mr. Phelps, who describes himself as "mentally retarded," restrained Bobby. Driver Wright managed to pull the bus over to the side of the road, and she radioed for police assistance. Even after Wright stopped the bus, Bobby continued to struggle with his father. Wright repeated her radio request for the police, this time more frantically.
Warren Williams, a fellow bus driver who was nearby, heard the driver's call for assistance. Williams arrived on the scene before the police. Williams Aff. ¶ 3. With Williams' help, Mr. Phelps and the bus driver managed to calm Bobby down to some extent, although he still was agitated. Id. ¶ 6; R. Phelps Dep. at 30-31.
Officer Nancy Longworth, of the Indianapolis Police Department, arrived a minute or two later. She had been six blocks away from the bus when she had received an initial call reporting a student trying to pull over a school bus. On her way to the scene, Longworth received another call that the bus driver was screaming that she was being beaten. Longworth Dep. at 9-10.
The parties' views of the subsequent events diverge at this point. A video and audio recording of the interior of the bus during the incident, which was captured by a camera mounted above the driver, provides a somewhat helpful but incomplete perspective. From the recording, which is slightly fuzzy and does not capture the entire area of the bus, Longworth can be heard repeatedly ordering Bobby out of the bus. At that point, Bobby was sitting on the steps of the bus (out of the range of the camera) and was crying and saying that he did not want to go to jail. Bobby scrambled away from Longworth toward the back of the bus. Longworth pursued Bobby and sprayed him in the face with CS/OC spray (also referred to as "pepper spray" or "mace"). The bus quickly became chaotic as the other children on the bus, who had been sitting in their seats during the initial altercation, jumped up and fled from Longworth and Bobby.
The court's description of the tape's contents is intended to reflect the evidence in the light reasonably most favorable to plaintiffs at the summary judgment phase of this case. The court's description is not intended to be a definitive interpretation of that evidence.
The tape shows Longworth repeatedly trying to force Bobby's hands behind his back so that she could handcuff him. Bobby resisted this and kept his hands around his eyes, appearing to be reacting to the CS/OC spray. Bobby continued to cry and tried to avoid Longworth. At one point, Bobby broke away from Longworth and grabbed his father, hugging him tightly. Longworth, who was behind Bobby at this point and temporarily obscured from the camera, took some action that caused Bobby to react sharply with pain. For the next minute, Longworth continued to struggle with Bobby. She alternated between using the CS/OC spray, applying a choke hold, and unsuccessfully attempting to handcuff him. At one point, Longworth appeared to slam Bobby against one of the side windows of the bus. As the struggle continued, Mr. Phelps grew more upset and animated, shaking his finger at Longworth and screaming at her to stop harming his son. However, the recording does not reveal any physically aggressive actions by Mr. Phelps toward Longworth.
Finally, after nearly two minutes of struggle, several other police officers appeared on the bus, grabbed Bobby, who was still crying and shielding his eyes with his hands, and helped Longworth take him off the bus. The videotape did not capture any of the subsequent events that occurred outside of the school bus.
According to plaintiffs' evidence, the situation was under control up until Officer Longworth boarded the bus. She immediately attempted to grab Bobby and appeared to scare him. Williams Aff. ¶ 8. Mr. Phelps and the bus driver informed Longworth that Bobby was autistic, but she continued to chase Bobby and to yell at him. She used the CS/OC repeatedly on Bobby, causing pandemonium inside the bus as other children began gagging and coughing from the spray. Wright Dep. at 27. Longworth grabbed Bobby around the neck and hit him several times. Mr. Phelps witnessed all of this and was very upset by it, but he did not physically interfere with Longworth's arrest of Bobby. Williams Aff. ¶ 10.
Defendants have moved to strike Williams' affidavit in its entirety on the theory that some statements amount to inadmissible opinion. The motion to strike is denied in its entirety. There is no basis at all for striking the entire affidavit, which provides a relatively detailed description of the events by a non-party who is apparently neutral between the sides of this lawsuit. Most of the specific points that defendants challenge are obviously within Williams' personal knowledge or easily satisfy Rule 701 on lay opinion testimony. These include: "Longworth's actions appeared to scare Bobby Phelps and made the situation worse than it was"; "Mr. Phelps . . . hugged his child and attempted to console him"; "Mr. Phelps . . . never physically interfered with officer's job on the bus"; and "Mr. Phelps . . . never physically interfered with what [the officers] were doing." Lay opinions about another person's state of mind may be admissible where, as here, the criteria of Rule 701 are satisfied. See United States v. Bogan, 267 F.3d 614, 619 (7th Cir. 2001) (district court did not abuse discretion by allowing witness to prison altercation to testify that defendants "were trying to kill" the prison guard). These opinions of Williams are rationally based on the perception of the witness and helpful to a clear understanding of his testimony and/or determination of factual issues. Defendants will have ample opportunity to cross-examine Williams to probe the limits of his perception and the bases for his opinions.
Defendants also object to Williams' more general opinions: that Longworth's actions "seemed very excessive and were totally unnecessary"; that "Mr. Phelps did not do anything to warrant the officer's actions against him outside the bus, and they had no reason to arrest him"; that "their use of force against [Mr. Phelps] was unnecessary and excessive"; that Donny Phelps "did not do anything to warrant the officer's actions"; and that the officers had no reason to arrest him and their use offeree against him was unnecessary and excessive." Williams' affidavit includes many details supporting these opinions. In denying summary judgment, the court relies on Williams' specific observations rather than his labels of "unnecessary" or "excessive," though such opinions may also be admissible where they are based on his perceptions and may be helpful to understand his testimony. See United States v. Sheffey, 57 F.3d 1419, 1425-26 (6th Cir. 1995) (affirming admission of lay opinion as to whether defendant acted "recklessly" and with "extreme disregard of human life"). Again, defendants will have ample opportunity to cross-examine Williams on these subjects.
According to plaintiffs' evidence, after Bobby had been removed from the bus, the officers pushed him to the ground, hit him with billy clubs, and kicked him. D. Phelps Dep. at 21-22. Seven or eight officers were involved in beating Bobby once he was off the bus. Id. at 21. Officer Longworth also continued to spray Bobby with CS/OC spray. T. Phelps Dep. at 44. At some point, Longworth also struck Bobby with her handcuffs, resulting in a wound to Bobby's ear. R. Phelps Dep. at 38; D. Phelps Dep. at 21. Eventually, Bobby was put in handcuffs.
Mr. Phelps witnessed his son's mistreatment and was upset. He yelled at the officers to leave his son alone. He never physically engaged the police officers, however, or interfered with their arrest of Bobby. Williams Aff. ¶ 12. Mr. Phelps testified that he was running around and gesturing at the officers but that he never made any aggressive movement in their direction or physically contacted them in any way. R. Phelps Dep. at 46. According to Mr. Phelps and Williams, the police responded to Mr. Phelps' complaints by tackling him and wrestling him to the ground. Once on the ground, the officers sprayed him with pepper spray, kicked him and beat him on the face, legs, back and ribs with their fists and batons. Williams Aff. ¶ 13; R. Phelps Dep. at 48-49. Mr. Phelps was eventually put in handcuffs, although several officers continued to hit and kick him even after he had been handcuffed. R. Phelps Dep. at 50-51.
Donald Phelps ("Donny"), Bobby's thirteen year old brother, was sent by his mother to investigate why the bus had stopped less than a block after it had picked up Bobby. As Donny approached the bus, he noticed that a crowd had formed around it. As Donny got closer, a friend of his told him that his "brother was getting beat up by the cops." D. Phelps Dep. at 14. As Donny pushed past his friend, a police officer immediately appeared and informed Donny that he was under arrest. Donny began to protest that he had not done anything, but was quickly set upon by three other officers who wrestled him to the ground. The officer who had originally told Donny that he was under arrest put his foot on Donny's head pinning it to the ground, while the other officers held his legs. Id. at 17. Donny did not resist or fight back. Williams averred that Donny did not hit, push or make any aggressive action toward anyone before he was arrested. Williams Aff. ¶ 15. Donny was also put in handcuffs.
Bobby, Donny and their father were placed under arrest and taken to the hospital where they received treatment for their injuries. Bobby was charged with Resisting Law Enforcement, Battery, Disorderly Conduct and Criminal Recklessness. Donny was charged with Resisting Law Enforcement and Disorderly Conduct. Mr. Phelps was charged with Resisting Law Enforcement, Battery, Obstruction, and Disorderly Conduct. The charges against Bobby and Donny were dismissed. The State proceeded to trial against Mr. Phelps, and a jury found him not guilty. Other facts are noted below as needed, keeping in mind the standard that applies to a motion for summary judgment.
Discussion
I. False Arrest
Plaintiffs bring federal claims pursuant to 42 U.S.C. § 1983, which provides a cause of action against "Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." The plaintiffs contend that defendants violated their Fourth Amendment rights when they arrested them on September 4, 2001. Plaintiffs have also brought state law claims of false arrest against the City of Indianapolis.
Probable cause is a complete defense to a false arrest claim under the Fourth Amendment. Biddle v. Martin, 992 F.2d 673, 678 (7th Cir. 1993). A law enforcement officer has probable cause to arrest someone when a prudent person, knowing the facts and circumstances within the knowledge of the arresting officer, would believe that the suspect had committed or was committing an offense. Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996). Probable cause is often "a matter of degree, varying with both the need for prompt action and the quality of information available." Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993). This "flexible, commonsense approach does not require that the officer's belief be correct or even more likely true than false, so long as it is reasonable." Wollin v. Gondert, 192 F.3d 616, 623 (7th Cir. 1999), citing Texas v. Brown, 460 U.S. 730, 742 (1983).
A court may find as a matter of law that probable cause existed only "when there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them." Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994); accord, Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999). Indiana law parallels federal law on these issues, so the plaintiffs' federal claims and state claims are discussed together. See Garrett v. City of Bloomington, 478 N.E.2d 89, 93-94 (Ind.App. 1985) (Indiana law parallels federal law in false arrest cases; plaintiff has burden of proof to show absence of probable cause); see also Conwell v. Beatty, 667 N.E.2d 768, 775 (Ind.App. 1996) (proof of absence of probable cause is essential to plaintiff's claim for false arrest).
A. Bobby Phelps
In response to defendants' motion for summary judgment, plaintiffs originally conceded that Officer Longworth had probable cause to arrest Bobby. After receiving a report by one of their expert witnesses, plaintiffs sought and received permission to withdraw this concession. Plaintiffs have submitted this report to the court without any accompanying legal argument. The report was prepared by Roger Clark, a 27-year veteran of the Los Angeles County Sheriffs Department who now works as a consultant on law enforcement procedures. Clark concluded that Longworth lacked probable cause because a brief inquiry on her part would have established that Bobby was mentally disabled to the extent that he was not capable of forming the requisite criminal intent or mens rea for an arrestable offense. Docket No. 81, Clark Rep. at 16-17.
The court disagrees. Whether Longworth knew that Bobby was autistic before she attempted to arrest him is a disputed issue. Even under plaintiffs' evidence, which tends to show that Longworth knew about Bobby's mental disability, the law would ask too much in this situation to require a police officer in the heat of the moment to assess a suspect's mental abilities and to determine on the spot whether the suspect was capable of forming the state of mind necessary to commit the crime. Even for a jury with extensive evidence and plenty of time to decide, such questions are difficult and delicate. Public safety requires an officer to act quickly and decisively when she witnesses or learns of conduct (the actus reus of a crime) that constitutes a crime. See Bates v. Chesterfield County, 216 F.3d 367, 372 (4th Cir. 2000) ("in the midst of a rapidly escalating situation, the officers cannot be faulted for failing to diagnose [the suspect's] autism. Indeed, the volatile nature of a situation may make a pause for psychiatric diagnosis impractical and even dangerous.") This is especially so where the officer believes that the suspect presents a continuing risk.
Longworth received two radio calls before she reached the scene. Each call independently gave her probable cause to believe that a crime was being committed. The first call told Longworth that a violent disturbance was taking place on the school bus involving a student who was trying to take control of the bus. The first call also informed Longworth that the student had hit the bus driver. The second radio call, which Longworth received when she was just two blocks away from the scene, reported that the bus driver was screaming that she was being beaten. Plaintiffs do not dispute that Longworth received these calls, and the undisputed evidence shows that the information conveyed in the calls was essentially correct. The videotape recording of the incident confirms both the content and agitated tone of the bus driver's calls for help.
According to Longworth's undisputed testimony, when she arrived at the bus, Bobby, "red in the face" and "clearly upset about something," was sitting on the steps of the bus away from the other children. He was also still being restrained by his father. From these facts, Longworth quickly and correctly concluded that Bobby was the problematic student identified by the radio calls. Bobby's agitation and the fact that he was being restrained by his father logically corroborated the information Longworth had received from the radio dispatch. The undisputed facts show that the information available to Longworth gave her probable cause to believe that Bobby had committed battery and criminal recklessness. Because probable cause to arrest Bobby existed, defendants' motion for summary judgment is granted with respect to Bobby's state and federal false arrest claims.
B. Mr. Phelps
Defendants argue that they had probable cause to arrest Mr. Phelps based on his interference with Bobby's arrest and his attempt to strike Officer Reese and another officer. Defendants also argue that a state court already made a judicial finding of probable cause, which should be binding on Mr. Phelps in this action. Mr. Phelps has rebutted all three of these grounds for his arrest.
A day after his arrest, Mr. Phelps appeared without counsel at a preliminary hearing where a judge placed a checkmark in a box on a form indicating that probable cause had been found. See Def. Exs. A, B. A state court judgment will not be given preclusive effect in a Section 1983 action unless (1) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the state court, and (2) the courts of the state in which the earlier decision was rendered would themselves give that decision preclusive effect. Haring v. Prosise, 462 U.S. 306, 313 (1983) (discussing the preclusive effect to be given state criminal court findings in subsequent § 1983 actions). In this case, the brief preliminary hearing lacked many of the hallmarks of a "full and fair" hearing, including representation by competent counsel and the opportunity to present evidence and to cross-examine adverse witnesses. Under essentially identical circumstances, the Seventh Circuit has declined to give preclusive effect to preliminary findings of probable cause. E.g., Bailey v. Andrews, 811 F.2d 366, 370 (7th Cir. 1987); Whtiley v. Seibel, 676 F.2d 245, 250 (7th Cir. 1982). The probable cause finding from the September 5, 2001 preliminary hearing is not entitled to preclusive effect.
Plaintiffs' evidence also contradicts the evidence the defendants rely upon to justify the arrest of Mr. Phelps. Mr. Phelps and Williams have testified that Mr. Phelps never physically interfered with Longworth when she was attempting to arrest Bobby on the school bus. Although the video recording is not conclusive in either direction, it does seem to support plaintiffs' version of events. The recording does not show Mr. Phelps grabbing Bobby and pulling him away from Longworth, as Longworth testified in her deposition. Whether Mr. Phelps interfered with Longworth on the school bus therefore presents a genuine issue of material fact.
The events that occurred outside the bus are equally disputed. Officer Reese testified that Mr. Phelps threw punches at two different police officers. Mr. Phelps denied this and his denial is supported by Williams, who testified that Mr. Phelps "never physically attacked any of the officers on the scene, and did not hit or try to hit any of the officers, and never physically interfered with what they were doing." Williams Aff. ¶ 12.
Mr. Phelps admitted to waving his arm at one of the officers, wagging his finger and doing what was described as a "bunny hop." Under Indiana law, the offense of resisting law enforcement is committed where a person "knowingly or intentionally forcibly resists, obstructs, or interferes with a law enforcement officer . . . while the officer is lawfully engaged in the execution of his duties as an officer." Ind. Code § 35-44-3-3. Under this statute, the Indiana Supreme Court has required evidence of "strength, power, or violence directed towards the law enforcement official," including a "movement or threatening gesture made in the direction of the official." Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993) (where defendant had vehemently refused to accept law enforcement officer's service of process and had walked away from officer, but had not acted "forcibly," defendant was entitled to judgment of acquittal).
Defendants argue that they reasonably interpreted Mr. Phelps' gestures as acts of threat or aggression. Defendants rely on Potts v. City of Lafayette, 121 F.3d 1106 (7th Cir. 1997), to support their argument that Mr. Phelps' movements created probable cause to arrest him for forcibly resisting a law enforcement officer. In Potts, the Seventh Circuit affirmed the district court's finding that, as a matter of law, police officers had probable cause to arrest the plaintiff for resisting law enforcement after the plaintiff disobeyed the officers' instructions not to enter a Ku Klux Klan rally with his tape recorder without first obtaining a media pass. The undisputed facts demonstrated that when the officers instructed the plaintiff not to enter the rally, he told the officers he believed he had the right to enter the rally and that they were going to have to arrest him in order to stop him. He then took a step toward the rally's entrance. The officers then arrested him for resisting a lawful order of a law enforcement officer.
The plaintiff in Potts argued the officers did not have probable cause to arrest him for resisting law enforcement because there was no evidence that he acted "forcibly," as required by Indiana law. Relying on the Supreme Court of Indiana's decision in Spangler, the Seventh Circuit rejected the plaintiff's argument and held that a movement or threatening gesture towards an officer can support a finding that a person acted "forcibly." Potts, 121 F.3d at 1113, citing Spangler, 607 N.E.2d at 723. "An officer has a right to enforce a lawful order even if that means arresting a person who verbally refuses to obey the order and then makes a movement in furtherance of his goal of disobedience." Potts, 121 F.3d at 1113.
The facts of this case differ from Potts in two important respects. The plaintiff in Potts specifically told police officers both that he was going to disobey their lawful order and that they would have to arrest him to prevent him from doing so. When a person deliberately chooses to force the hand of a police officer by disobeying the officer, invites the officer to arrest him, and then takes a physical step toward disobedience, a court can easily find that the person forcibly resisted a law enforcement officer without waiting for him to punch the officer. In other situations, however, where a person has not stated an intention to violate lawful police orders and has not invited an officer to arrest him, Indiana courts have required use of powerful, strong, or violent means against a police officer to support a conviction for resisting law enforcement. See, e.g., Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind.App. 1998) (finding evidence insufficient to sustain defendant's conviction for "forcibly resisting" a police officer; defendant had "twisted and turned a little as he held onto his flag" at a demonstration and had been dragged eight to ten feet by an officer as the officer attempted to remove the flag from defendant's hands, but there was no evidence that defendant "made threatening or violent actions" toward the police); Small v. State, 632 N.E.2d 779, 782-83 (Ind.App. 1994) (affirming conviction for resisting law enforcement where defendant "did not merely refuse to be placed under arrest or simply walk away" but used his "power and strength" to run away from a pursuing officer, to strike an officer in the chest with his fist, and to struggle with officers trying to handcuff him); Young v. State, 626 N.E.2d 474, 476-77 (Ind.App. 1993) (affirming conviction for resisting law enforcement where defendant "did not merely refuse to comply with the officers' repeated demands to put down his weapon" but threatened to kill himself, approached officers with a loaded weapon, and fired the weapon in the direction of the officers).
In this case, taking plaintiffs' evidence as true, Mr. Phelps criticized the police and complained about their treatment of his son, but he did not physically interfere with them or threaten to do so. On this record, the court cannot find as a matter of law that the officers had probable cause to arrest Mr. Phelps for forcibly resisting law enforcement. The court must construe the facts and all reasonable inferences drawn from them in the light most favorable to the non-moving party, Mr. Phelps. "[O]nly when no reasonable jury could find that the officers did not have probable cause to arrest," can the court conclude that probable cause existed as a matter of law. Maxwell, 998 F.2d at 434. Defendants' motion for summary judgment with respect to Mr. Phelps' false arrest claim is denied.
Because defendants' motion must be denied on this basis, the court need not address at this stage the issues presented by a father's attempts to stop the police from using excessive force against his son.
C. Donny Phelps
Factual disputes also control whether the police had probable cause to arrest Donny Phelps. Under defendants' view of the facts, Donny knocked several people to the ground as he was making his way to the scene, disobeyed a direct order from the police to keep away from the altercation, and physically pushed past the officers in an attempt to reach his brother and father. If these facts were undisputed, probable cause would have existed.
But these facts are not undisputed. According to the testimony of both Donny and Williams, Donny did not knock anyone down and never made any contact with the police officers controlling the scene. Donny admitted that he pushed his friend away after his friend had told him that the police were beating up his brother, but there is no suggestion here that this action alone would have justified his arrest. Instead, defendants base their argument on their own testimony to the effect that Donny disobeyed the police officers and tried to push his way through the perimeter the officers had set up around the arrest scene. Both of these allegations, however, are disputed by Donny and Williams. Because there is a genuine issue of material fact regarding Donny's conduct leading up to his arrest, defendants' motion for summary judgment is denied with respect to Donny's false arrest claim.
II. Excessive Force
When a law enforcement officer is alleged to have used excessive force in the course of an arrest, the issue is whether the officer's actions were "objectively reasonable" in light of the situation the officer faced. Graham v. Connor, 490 U.S. 386, 397 (1989); McNair v. Coffey, 279 F.3d 463, 467 (7th Cir. 2002). Relevant factors in determining whether an officer's actions were objectively reasonable include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; accord, Morfin v. City of East Chicago, 349 F.3d 989, 1004 (7th Cir. 2003). Balancing these factors is often a question for a jury, though in some cases the issue can be decided as a matter of law.
A. Bobby Phelps
Defendants argue that they used reasonable force to subdue Bobby. In their view, Bobby had already committed an assault on the bus driver and was a threat to engage in future violence, possibly directed at the school children on the bus. Defendants contend that Longworth's repeated use of CS/OC spray and the "choke hold" she employed against Bobby were necessary because Bobby was attempting to evade arrest and the spray did not seem to have any effect on him.
Defendants dispute the use of the term "choke hold" to describe Longworth's actions. The phrase has become a term of art in both the law enforcement and legal communities. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Nonetheless, the phrase is one reasonable description of what is shown on the videotape. Longworth herself testified: "I was trying to get my arm around his neck so that I could have control of his body, which rarely requires an actual choke." Longworth Dep. at 22.
Based on plaintiffs' evidence, however, a reasonable jury could reach the opposite conclusion. According to Mr. Phelps and Williams, Bobby had calmed down by the time Longworth reached the bus and did not present a physical threat to anyone. Viewing the facts from the plaintiffs' perspective, Longworth's use of CS/OC spray, ostensibly justified because Bobby was "evading arrest," was unreasonable because Bobby had retreated further into the bus, which was essentially a dead-end. The testimony of Mr. Phelps and Williams, as well as the videotape recording of the incident, also belies Longworth's assertion that multiple CS/OC sprays were necessary because it was not having any effect. On the contrary, plaintiffs' evidence shows that Bobby immediately reacted to the CS/OC spray by raising his hands to his eyes and using them in an attempt to rub the chemicals off. In fact, this evidence suggests that the CS/OC spray may have actually contributed to Bobby's failure to place his hands behind his back as Longworth ordered. Longworth's use of a "choke hold" on a crying, partially blinded 15-year old who had displayed no aggression against her also raises a genuine issue regarding the reasonableness of her actions.
The court need not decide at this point whether any officers' knowledge of Bobby's diminished mental capacity and autism affected the reasonableness of the use of force — a problem of considerable subtlety that seems to depend a great deal on the specific facts of the case rather than broad generalities. Compare, e.g., Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir. 2003) ("we have held that a detainee's mental illness must be reflected in any assessment of the government's interest in the use of force"), with Bates, 216 F.3d at 372 ("Knowledge of a person's disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public when faced with threatening conduct by the disabled individual.").
Even if Longworth's use of the CS/OC spray and other uses offeree on the bus were deemed reasonable as a matter of law, there are other issues. Defendants' account of Bobby's arrest stops soon after Bobby was removed from the bus, but plaintiffs' account does not. Donny Phelps testified that as many as eight police officers beat, kicked and hit Bobby with billy clubs while he was down on the ground. D. Phelps Dep. at 21. If a jury were to accept this testimony as true, it could easily find that the level of force employed by the police in arresting Bobby was excessive. Accordingly, defendants' motion for summary judgment is denied with respect to Bobby's excessive force claim.
In his deposition, Donny did not identify by name the officers who were allegedly mistreating his brother. The City has indicated that Officers Longworth, Reese and Lynnette Littlejohn were the only officers who participated in Bobby's arrest.
B. Mr. Phelps
Material and genuine factual disputes also require denial of defendants' motion for summary judgment with respect to Mr. Phelps' excessive force claim. Defendants claim that Mr. Phelps was wrestled to the ground, sprayed with CS/OC spray, and handcuffed after he attempted to punch two police officers. Mr. Phelps denies that he attempted to strike any of the officers and contends that he was savagely beaten and kicked by as many as eight police officers. Williams testified that several police officers, without provocation, kicked and beat Mr. Phelps with a nightstick. Teresa Phelps testified that the beatings continued even after Mr. Phelps had been handcuffed.
Defendants claim that Mr. Phelps resisted arrest, by "kicking" and "flailing." Mr. Phelps, however, emphatically denies that he kicked, resisted or fought against the police officers in any way as they attempted to place him under arrest. R. Phelps Dep. at 46, 51. His denial is consistent with Williams' observations. See Williams Aff. ¶ 14. A genuine issue of material fact exists as to Mr. Phelps' conduct during the course of his arrest.
The testimony of Mr. Phelps and his wife that Mr. Phelps was hit and kicked even after he had been placed in handcuffs also is sufficient to deny summary judgment on this claim. Whether the officers used unreasonable force in subduing Mr. Phelps turns on conflicting testimony on material facts. Accordingly, defendants' motion for summary judgment is denied.
C. Donny Phelps
Donny testified that he was not hit or kicked in the course of his arrest, but that an unknown police officer put his boot on top of Donny's head and pinned his head to the ground. As a result, Donny sustained a laceration to his forehead. D. Phelps Dep. at 26. His testimony is corroborated by his father and mother, who both testified that they saw an officer stepping on Donny's head.
Defendants deny that any of the officers act in this fashion, and they argue that the use offeree against Donny was not excessive under the circumstances. A material factual dispute exists concerning whether one of the police officer defendants acted as Donny, his father and his mother have described. This is an argument for denying, not granting, summary judgment.
Perhaps pinning a 13-year-old's head to concrete does not always constitute excessive force depending on the circumstances. A child might be vigorously resisting arrest or pose a danger to the arresting officers, to others, or to himself. Defendants, however, have not come forward with any evidence to this effect, let alone undisputed evidence to this effect. Donny admits to "moving" his legs, but that is not enough on its own to justify as a matter of law the force that plaintiffs claim was exerted against him. Whether Donny was treated as he alleges and whether that treatment was reasonable under the circumstances are questions that a jury must decide.
In their reply brief, defendants argue that Donny has failed to identify the specific officer who injured his head. In response to defendants' motion, Donny did not need to do so. The issue could and should have been raised in defendants' original motion if they thought it was a good reason to grant summary judgment. "When a party moves for summary judgment on ground A, his opponent is not required to respond to ground B — a ground the movant might have presented but did not." Malhotra v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989), superseded on other grounds by statute, Rush v. McDonald's Corp., 966 F.2d 1104, 1119-20 (7th Cir. 1992). The issue may be addressed at trial.
III. Qualified Immunity
The individual officers have also asserted the defense of qualified immunity on the § 1983 claims against them. A two-part test determines whether a government official is entitled to qualified immunity in a civil suit under § 1983. Saucierv. Katz, 533 U.S. 194, 200-01 (2001); see also McNairv. Coffey, 279 F.3d 463, 465 (7th Cir. 2002); Marshall v. Teske, 284 F.3d 765, 771-72 (7th Cir. 2002). First a court asks whether the facts alleged demonstrate a constitutional violation when examined in the light most favorable to the plaintiff. Saucier, 533 U.S. at 201. If the facts as alleged reveal no constitutional violation, the inquiry ends and the officer prevails on the merits of the case. Los Angeles v. Heller, 475 U.S. 796 (1986) (holding that if there is no constitutional violation, there can be no liability on the part of the individual officer or the government body); Estate of Phillips v. Milwaukee, 123 F.3d 586, 596-97 (7th Cir. 1997). If the facts alleged would amount to a constitutional violation, the court next examines whether the law was "clearly established" at the relevant time. Saucier, 533 U.S. at 201; Marshall, 284 F.3d at 772.
To answer the second "clearly established law" question, the court asks whether a reasonable public official who faced the same factual circumstances that the defendant faced would have recognized at the time that his or her actions would violate the Constitution. The question is not a broad question of abstract constitutional doctrine, but is specific to the particular circumstances. See Saucier, 533 U.S. at 201; Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Qualified immunity protects a government official even if that official is mistaken about the law that applies to her actions. Forman v. Richmond Police Dep't, 104 F.3d 950, 958 (7th Cir. 1997) (doctrine of qualified immunity gives "ample room for mistaken judgments" and protects "all but the plainly incompetent or those who knowingly violate the law").
At the summary judgment stage in § 1983 actions where the plaintiff has alleged a violation of the Fourth Amendment, the qualified immunity question is closely related, though not identical, to the question on the merits: whether the plaintiff has raised a triable issue regarding the constitutional violation. As discussed above, viewed in the light most favorable to the plaintiffs, the defendant police officers violated Mr. Phelps' and Donny's rights under the Fourth Amendment not to be arrested without probable cause, and all three plaintiffs' rights not to be subjected to excessive force.
Turning to the second element, a "clearly established" right, once a defendant claims qualified immunity, the burden is on the plaintiff to show that the right claimed to have been violated was clearly established. Marshall v. Alien, 984 F.2d 787, 797 (7th Cir. 1993); Pounds v. Griepenstroh, 970 F.2d 338, 342 (7th Cir. 1992). Because this showing turns on a fact-sensitive examination of the dimensions of the constitutional violation, the question can be difficult to resolve as a matter of law on summary judgment where the parties' versions of events are as far apart as they are in this case. See Morfin, 349 F.3d at 1000 n. 13 (in false arrest case, reversing district court's grant of summary judgment in favor of police officer based on qualified immunity: "Where there is a genuine issue of material fact surrounding the question of plaintiff's conduct, we cannot determine, as a matter of law, what predicate facts exist to decide whether or not the officer's conduct clearly violated established law.").
Taking the facts in the light reasonably most favorable to the plaintiffs, the officers' conduct violated clearly established law. As to the officers' probable cause findings, the contours of the crime of "resisting law enforcement" are sufficiently well settled in Indiana law so that under plaintiffs' version of the facts, there was clearly no probable cause to arrest Mr. Phelps or Donny. See Morfin, 349 F.3d at 997; id. at 1000 n. 13 (reversing on qualified immunity); Potts, 121 F.3d at 1113; Spangler, 607 N.E.2d at 723. Nor can there be any question that the use of CS/OC spray, police batons, choke holds and knee strikes on handcuffed, immobilized and unresisting arrestees would be excessive under the Fourth Amendment. See Drummond, 343 F.3d at 1061 (reversing grant of summary judgment; using knees to press down on suspect's back and neck while he lay on the ground in handcuffs was objectively unreasonable); Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996) (affirming district court's denial of summary judgment based on qualified immunity; not reasonable as a matter of law to shove handcuffed arrestee into car); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) (reversing grant of summary judgment in police officer's favor; using mace against an unresisting person who committed a minor infraction is excessive as a matter of law).
At the time of the arrest, it was clearly established that "police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever." Clash, 77 F.3d at 1048. It was also clear that "[a]n officer's use of deadly force to apprehend a suspect is unreasonable, absent probable cause that the suspect is dangerous or has committed a violent crime." McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir. 1992).
The individual defendants are not entitled to summary judgment on the federal claims under the doctrine of qualified immunity.
IV. State Law Claims
Defendants also contend that an exception in the Indiana Tort Claims Act (ITCA), Ind. Code § 34-13-3-3(8), bars plaintiffs' battery claims against the City of Indianapolis and individual officers. The issue under Indiana law is whether the ITCA immunizes local governments and police officers from liability for injuries resulting from the use of excessive force in carrying out an arrest.
Under the immunity provisions of the ITCA, a government or government employee acting within the scope of his or her employment is not liable for injuries that result from "[t]he adoption and enforcement of or failure to adopt or enforce a law . . . unless the act of enforcement constitutes false arrest or false imprisonment." In Quakenbush v. Lackey, 622 N.E.2d 1284, 1291 (Ind. 1993), the Indiana Supreme Court interpreted this provision to subject government employees to liability for losses stemming from the breach of a "private duty," but to immunize them from liability where the losses resulted from the breach of a "public duty." On the same day that the Quakenbush opinion was issued, the Supreme Court answered a certified question from Judge Tinder in Kemezy v. Peters, 622 N.E.2d 1296, 1297 (Ind. 1993). The Kemezy opinion applied Quakenbush's private duty/public duty framework to hold that the ITCA did not immunize a police officer's use of excessive force because "law enforcement officers owe a private duty to refrain from using excessive force in the course of making arrests." (Emphasis added.)
In the face of this square holding in Kemezy, defendants rely on Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999), where the Indiana Supreme Court rejected the Quakenbush framework, finding that the distinction between public and private duties owed by government entities was "highly abstract" and impracticable. Benton reaffirmed that the starting point for determining tort liability was the common law, but noted that the ITCA had established "extensive immunity provisions which shield governmental units from liability even in those cases where a common law duty of care exists." Id. at 232. In disavowing Quakenbush's judicial formulation of immunity, the Indiana court asserted that the Indiana legislature "is in the best position to determine the nature and extent to which governmental units in Indiana should be insulated from tort liability." Id.
Defendants argue that Benton implicitly overruled Kemezy since the holding in Kemezy relied upon the Quakenbush private duty/public duty test. There is some support, albeit in dicta, for this view. See Sellers v. Marion County Sheriff's Dept., 2002 WL 1630008, *5 (S.D. Ind. June 27, 2002); City of Anderson v. Davis, 743 N.E.2d 359, 366 n. 4 (Ind.App. 2001). Plaintiffs maintain that Kemezy is still good law. At least one post-Benton decision by the Indiana Court of Appeals has declined to treat Kemezy as overruled. E.g., O'Bannon v. City of Anderson, 733 N.E.2d 1, 3 (Ind.App. 2000) (recognizing that Kemezy had been "called into question," but affirming summary judgment because facts showed that police officers had not used excessive force).
In considering questions of state law, the court must determine the issues as it believes the Indiana Supreme Court would. E.g., Trytko v. Hubbell, Inc., 28 F.3d 715, 719 (7th Cir. 1994); Dameron v. City of Scottsburg, 36 F. Supp.2d 821, 831 (S.D.Ind. 1998). The state supreme court's decision in Kemezy is directly on point here, and the state court itself has not overruled it. This court cannot predict at this point that the state court will overrule the result in Kemezy, even if it might use a different analysis in the future. In addition, the defendants' immunity theory assumes that their arrests were based upon probable cause. See O'Bannon, 733 N.E.2d at 3 (noting that Indianalaw requires probable cause to authorize use of force, and relying on absence of evidence of false arrest to find that officers were either immunized or not liable). There is a triable issue of fact as to the lawfulness of the arrests of both Mr. Phelps and Donny, and thus as to whether any use of force was permissible against them.
The court recognized that it reached a contrary conclusion on this question in Jordan v. City of Indianapolis, 2002 WL 32067277, *11 (S.D. Ind. 2002) (granting summary judgment on similar state law claims for battery where police had probable cause for arrest or detention). The briefing in this case has caused the court to reconsider the issue and the importance of the result in Kemezy, as distinct from its rationale.
Also, as a practical matter, it would be premature and potentially unnecessary for the court to find at this early stage in the case that the plaintiffs' battery claims are barred by the ITCA. This case is destined for a jury regardless of how the ITCA immunity issue is resolved. Including the battery claims in the trial will not increase either side's evidentiary or legal burden; Indiana's excessive force standard effectively parallels the federal one. See O'Bannon, 733 N.E.2d at 3; see also Ind. Code § 35-41-3-3(b). Denying summary judgment on the issue of immunity under the ITCA may require the court to ask the jury one additional question for each plaintiff: whether the police officers' actions amounted to battery under state law. If the need should arise, the court can revisit the immunity issue during the course of the trial or after the jury has returned a verdict. Eventual certification of the question by this court or the Seventh Circuit to the Indiana Supreme Court may be available, especially if it is clear that the question is not merely theoretical but may in fact be decisive.
In Turner v. Sheriff of Marion County, 94 F. Supp.2d 966 (S.D. Ind. 2000), Judge Foster certified the same question and many other related questions to the Indiana Supreme Court. The state court declined to accept the certified questions, which arose at the summary judgment stage of the case, before it was clear that the answers to these frequently recurring questions would be decisive.
Conclusion
The undisputed facts show that Officer Longworth had probable cause to arrest Bobby Phelps. Therefore, defendants' motion for summary judgment on Bobby's state and federal false arrest claims is granted. Because material facts about the arrests of Mr. Phelps and Donny are in dispute, defendants' motion is denied with respect to their state and federal false arrest claims. Genuine issues of material fact also require denial of summary judgment on all three plaintiffs' claims of excessive force. Also, under Kemezy, the court denies summary judgment on the plaintiffs' state law claims for battery. Trial remains scheduled for June 7, 2004.So ordered.