Opinion
Cause No. IP 99-1763-C H/K
January 4, 2002
ENTRY ON DEFENDANTS' SUMMARY JUDGMENT MOTION
Officers of the Indiana Department of Natural Resources (DNR) and other law enforcement agencies executed several arrest warrants at the Midwest Reptile Show on July 28, 1998 as part of "Operation Herpscam," a multi-state initiative designed to crack down on the illegal sale of certain reptiles, including some endangered species. Plaintiff Brian Hahn owns and operates the Midwest Reptile Show. Hahn was not the subject of a warrant. He alleges that he and his business were unlawfully seized while DNR officers executed arrest warrants on several reptile vendors at the show. In this action, Hahn has asserted claims arising from the raid and the effects he says it had on his business. Specifically, Hahn seeks damages under 42 U.S.C. § 1983 for what he claims were unreasonable seizures of his person and his business in violation of the Fourth Amendment. Under state law, Hahn has brought claims for false arrest, tortious interference with a business relationship, and defamation.
In the complaint, plaintiff's name was spelled "Haun." In later filings the parties have uniformly used the spelling "Hahn," which the court has used.
The papers filed in this case indicate that Hahn is unhappy about the actions of many officials and private entities (including news media) who are not parties to this case. The actual defendants in this action are DNR director Larry Macklin, DNR law enforcement division director Larry Allen, and two DNR law enforcement officers, Carroll Henneke and Tony Wilson. The defendants have moved for summary judgment on all claims in Hahn's complaint. Hahn has responded by conceding that the official capacity claims against the four state officials should be dismissed. He has also conceded that the claims against defendants Macklin and Allen for seizure of his person should be dismissed.
As explained below, the court grants the defendants summary judgment on Hahn's Section 1983 claims. Hahn has not come forward with evidence that would permit a reasonable jury to conclude that defendants Wilson or Henneke were responsible for any seizure of Hahn's person. The undisputed facts also show that any temporary seizure of Hahn's business was reasonable under the circumstances, which included the execution of numerous facially valid arrest warrants at the Midwest Reptile Show. At the very least, defendants are entitled to qualified immunity on that claim. Because the federal claims must be dismissed before trial, and because the state law claims raise troublesome Eleventh Amendment problems, the court relinquishes its supplemental jurisdiction over Hahn's state law claims.
Summary Judgment Standard
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). Under Rule 56© of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000). In determining whether a genuine issue of material fact exists, the court must construe all evidence in the light reasonably most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Rummery v. Illinois Bell Tel. Co., 250 F.3d 553, 556 (7th Cir. 2001). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See Bekker, 229 F.3d at 669.
Plaintiff Hahn has asserted, without citation, that when deciding a motion for summary judgment: "Statements of fact in the complaint are presumed to be true." Pl. Mem. at 7. That is not correct. Rule 56(e) is quite clear on this point: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." See also Celotex, 477 U.S. at 324.
In addition, Hahn has attempted to raise genuine issues of fact concerning the defendants' motives or intentions by citing his own testimony about his beliefs about the defendants' motives or intentions. Such beliefs are not evidence of the defendants' motives or intentions and are not sufficient to raise a genuine issue of material fact. See Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 574 (7th Cir. 1998) (plaintiff's subjective belief in discrimination did not create a genuine issue of material fact in an employment discrimination case). Hahn is free to argue reasonable inferences about motive and intent based on the factual record before the court, but his beliefs and speculation are no substitute for actual evidence at this point.
Finally, Hahn also suggests in his brief that more discovery might enable him to fill in some holes in his case and to identify other responsible individuals who could be added as defendants. Hahn had more than a year and a half to conduct discovery in this case before responding to the motion for summary judgment. He also did not file an affidavit under Fed.R.Civ.P. 56(f) demonstrating a need for further discovery. The court does not deny motions for summary judgment based on the opponent's hope that something might turn up.
Undisputed Facts
The following facts are either undisputed or reflect the record in the light reasonably most favorable to Hahn, the non-moving party.
Most of the facts in this matter are undisputed. Hahn attempted to dispute statements 5, 11, 15-19, 21, and 22 of the defendants' 22 statements of material fact. However, several of Hahn's responses to these statements fail to cite any evidence, contrary to the requirement of Local Rule 56.1(f)(2). Hahn's unsupported factual assertions do not raise genuine issues of material fact for trial. See Local Rule 56.1(g) ("court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are specifically controverted or objected to in compliance with L.R. 56.1(f)"). Hahn also did not comply with some of the technical requirements in Local Rule 56.1(f) regarding the format of a Response to Statement of Material Facts. The court has overlooked Hahn's technical noncompliance pursuant to Local Rule 56.1(k) and has considered his "disputed statements of fact," but only to the extent they are supported by specific citations to admissible record evidence.
Plaintiff Brian Hahn owns and operates the Midwest Reptile Show. On June 28, 1998, Hahn held a show at the Indiana State Fairgrounds, as he usually did on a monthly basis. DNR officers purchased booth space at the June 28, 1998 show as they had at nearly every show for two years as part of an undercover investigation. DNR was aware that illegal animal sales had occurred at past shows.
Before the June 28, 1998 show, DNR agents had obtained arrest warrants for eight vendors who had rented booths at the show in the past. DNR had information that the individuals for whom it held warrants would be attending the June 28, 1998 show. DNR did not obtain a warrant for Hahn or the Midwest Reptile Show itself.
Defendant Carroll Henneke and other DNR officials planned to execute the warrants at the show in coordination with the Indianapolis Police Department and the Marion County Prosecutor's Office. Henneke Dep. at 9, 13-14.
Henneke, the police, and the prosecutor's office had decided to close down the show while they were executing the warrants to ensure officer safety, public safety, and preservation of evidence. Id. at 13-17. According to Henneke, public safety was an issue because the officers could not be sure in advance what types of animals would be at the show and whether anyone in attendance would be carrying weapons. Id. In addition, Henneke testified that clearing everyone from the building was a way of avoiding the panic that might occur if officers had started executing warrants as the show was going on. Id. Some exits were sealed during the raid. Id.
At the June 28, 1998 show, some illegal sales of reptiles occurred. Most of them were initiated at the show but actually occurred outside the building where the show was taking place. One relevant snake sale was conducted from the DNR booth within the building. See Henneke Int. Ans. 9. According to Hahn, the sales at issue were illegal only under a DNR emergency rule that he believes was itself invalid and which DNR has subsequently withdrawn, but there is no genuine dispute as to the apparent facial validity of the regulation.
At about noon on June 28, 1998, the law enforcement officials arrived at the Midwest Reptile Show. They were accompanied by reporters and television crews who had been invited to witness the "raid." Before the execution of the arrest warrants, DNR officers and other officials escorted all patrons and vendors who were not being arrested out of the building. DNR officer Lt. Col. Jeff Wells and Indianapolis Police Sergeant Thomas Black asked Hahn to stay in the building while DNR officers executed the warrants. Defendant Henneke and defendant Tony Wilson are among the DNR officers who executed the arrest warrants and who closed down the Midwest Reptile Show temporarily.
Hahn was at first able to move throughout the building while the show was closed. He believed he was free to leave the building up until the middle or end of the raid when an unidentified police officer with a bullhorn (not one of the defendants) "threatened" him. Hahn Dep. at 25-27. The encounter between the unnamed officer and Hahn occurred after Hahn had approached a television news crew who were filming in the building. Hahn was "a little perturbed" that there were reporters in the building "videotaping stuff like it was a big crime scene." Hahn Dep. at 26. Hahn put his hand on a television camera and asked the crew to "please leave." The crew then "backed away." At that point, Hahn testified, the officer with the bullhorn "got into my face and told me to shut up and sit down or I will make sure you don't have . . . a show in the State of Indiana again." Id. at 26-27.
Neither side has identified the officer with a bullhorn. Defendant Wilson testified that he did not know his name but believed that the officer in question was an IPD lieutenant. Wilson Dep. at 8. Defendant Henneke also did not know the officer's name. According to Henneke, the officer reported to Sergeants Black and Hudson of the IPD. Henneke Dep. at 7.
Hahn estimates that the show was shut down for an hour and a half to two hours. Hahn Dep. at 21. After serving the warrants, DNR allowed the show to reopen. By that time, however, many of the patrons had left. Also, Hahn has testified that the effect of the raid has suppressed his volume of business since June 1998. Other facts are noted below as needed, keeping in mind the standard that applies to a motion for summary judgment.
The defendants assert that the raid was shorter, but the court credits Hahn's version of the facts on summary judgment. See Henneke Dep. at 18 (raid lasted less than the expected 30-45 minutes); Ex. C (IPD Sergeant Black estimated that the raid lasted about an hour).
Discussion
I. Section 1983 — Unreasonable Seizure
The Fourth Amendment, applied to the states through the Fourteenth Amendment, provides in relevant part: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, . . . ." Hahn alleges that both he and his business were seized in violation of the Fourth Amendment during the Operation Herpscam law enforcement action at the Midwest Reptile Show on June 28, 1998.
The court assumes that Hahn runs his business as a sole proprietorship rather than as a corporation. No issue has been raised about his ability to seek damages in his own name based on injury to the business.
To determine whether Hahn has a legally sufficient claim under the Fourth Amendment, the court must determine whether the defendants' alleged conduct constituted a seizure and if so, whether the seizure was unreasonable in light of the factual allegations. Brokaw v. Mercer County, 235 F.3d 1000, 1009-10 (7th Cir. 2000), citing Donovan v. City of Milwaukee, 17 F.3d 944, 948 (7th Cir. 1994).
"[A] person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Even if Hahn and his business were seized, "seizure alone is not enough for § 1983 liability; the seizure must be unreasonable." Brokaw, 235 F.3d at 1010, quoting Donovan, 17 F.3d at 949. Indeed, reasonableness is the "central requirement" of the Fourth Amendment. Illinois v. McArthur, 531 U.S. 326, 330 (2001) (holding that a temporary warrantless seizure was lawful under the Fourth Amendment where it was reasonable under the circumstances while police sought and obtained a search warrant). "[R]easonableness under the Fourth Amendment is not capable of precise definition or mechanical application," and "its proper application requires careful attention to the facts and circumstances of each particular case." Graham v. Connor, 490 U.S. 386, 396 (1989) (deciding reasonableness of force used in effecting seizure of suspect). Accordingly, the court considers Hahn's allegations in light of the specific circumstances at issue, namely the temporary closure of Hahn's Midwest Reptile Show for the execution of several arrest warrants.
A. Seizure of Hahn's Person
Hahn argues that he was seized when the unidentified officer with a bullhorn told him to "sit down and shut up" if he wanted to keep working in Indiana. This officer approached Hahn after Hahn had asked a news crew to leave and had put his hand on a television camera. Hahn says he construed the officer's statement as a threat. The court assumes for purposes of argument that Hahn's encounter with the officer was a "seizure" under the Fourth Amendment.
The two remaining defendants on this claim — Henneke and Carroll — are entitled to summary judgment on this claim. Neither was the unidentified officer with the bullhorn, and Hahn has not come forward with any evidence that would allow a jury to find that Henneke or Carroll was responsible for the alleged seizure. The unnamed officer apparently was an IPD lieutenant. Neither the officer nor anyone else from IPD is a party to this action.
"To establish personal liability in a § 1983 action, the plaintiff must show that the government officer caused the deprivation of a federal right." Luck v. Rovenstine, 168 F.3d 323, 327 (7th Cir. 1999) (internal quotation omitted). An official causes a constitutional violation if he sets in motion a series of events that he knew or reasonably should have known would cause others to deprive the plaintiff of constitutional rights. Brokaw, 235 F.3d at 1012, citing Morris v. Dearborne, 181 F.3d 657, 672 (5th Cir. 1999). "An official satisfies the personal responsibility required of section 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge or consent." Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985), quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982). Hahn's Section 1983 claim based on the alleged seizure of his person fails because the undisputed facts show that none of the defendants in this action committed the seizure or could be held responsible for it.
Hahn has identified 69 officers who were present at the raid, and he asserts in response to the motion for summary judgment that he plans to amend his complaint once he learns the identity of the officer with a bullhorn. Pl. Mem. at 7-9. Such an allegation is not sufficient to keep his claim alive. Any proposed amendment at this time would be futile because Hahn's Section 1983 claim against the unnamed officer is time-barred. The statute of limitations on a Section 1983 claim in Indiana is two years, borrowing the limitations period on personal injury claims. See Bailey v. Faulkner, 765 F.2d 102, 103 (7th Cir. 1985), following Wilson v. Garcia, 471 U.S. 261 (1985); see also Ind. Code § 34-11-2-4. Thus, even if Hahn could identify the officer in question, Hahn could not bring any new Section 1983 claims related to the events of June 28, 1998 now that three and a half years have passed. See King v. One Unknown Federal Correctional Officer, 201 F.3d 910 (7th Cir. 2000) (affirming district court's sua sponte dismissal of Bivens action against unnamed prison guard on statute of limitations grounds after action had been pending for four years; even if plaintiff could have identified the guard, any amendment to name him as a defendant would not relate back to the original complaint and the two-year limitations period had long since expired); Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998) (Fed.R.Civ.P. 15(c) permits relation back in certain cases involving mistaken identity but not in cases involving lack of knowledge of the proper party). Plaintiff Hahn has been represented by counsel throughout these events, and he cannot take advantage of the narrow exception available to pro se litigants who have exercised due diligence to identify the proper defendants. See Donald v. Cook County Sheriff's Department, 95 F.3d 548, 557-58 (7th Cir. 1996); see also Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980).
Hahn's complaint includes in the caption "parties as yet unnamed, individually and in their official capacities as employees, officers, and agents of the Indiana Department of Natural Resources." Such attempts to include unidentified parties are permissible, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 390 n. 2 (1971), but the plaintiff must eventually identify the defendants against whom he seeks judgment.
Hahn has not directed the court to any evidence that would support a finding that defendants Henneke or Wilson consented to or directed the unnamed officer's conduct in supposedly seizing Hahn. Evidence that defendants Henneke and Wilson supervised some of the officers involved in the raid is, without much more, insufficient to hold them personally liable for damages under Section 1983. See Hearne v. Board of Educ. of City of Chicago, 185 F.3d 770, 776 (7th Cir. 1999) (no respondeat superior liability under Section 1983).
Hahn has not come forward with evidence that would allow a jury to find that Henneke or Wilson had the opportunity or ability to prevent the alleged constitutional violation. Hahn wrote in his brief that a reasonable jury could conclude that defendant Henneke "ratified" the seizure because he was present in the room while "Hahn was confined to the chair." Pl. Mem. at 10. Hahn cites no evidence to support these two factual assertions, and the court has not found any such evidence. Hahn testified that the unnamed officer told him to "sit down and shut up." There is no evidence about what happened to Hahn next, except that he testified he no longer felt free to leave after the officer made the statement.
In addition, the court has not found any evidence in the record that Henneke was even in close proximity to Hahn's encounter with the officer — and, in any event, mere proximity to wrongdoing is not enough to support personal liability under Section 1983. Hessel v. O'Hearn, 977 F.2d 299, 305 (7th Cir. 1992). On this record, no jury could reasonably find that Henneke was personally responsible for the alleged seizure of Hahn's person.
Similarly, there is no evidence linking defendant Wilson to the unnamed officer's conduct. Hahn argues that the "larger picture" of the raid supports an inference that Wilson was on site and aware of the seizure of Hahn and had a duty to end the seizure. Pl. Mem. at 10. Again, this is argument without any evidence.
Wilson's presence at the scene is insufficient to support Section 1983 liability.
B. Seizure of Hahn's Business
Hahn also alleges that his business, the Midwest Reptile Show, was unlawfully seized while the arrest warrants were executed on June 28, 1998. As an initial matter, defendants Macklin and Allen are entitled to summary judgment on this claim. It is undisputed that these two supervisors were not present at the show. Hahn has come forward with no evidence that Macklin or Allen directed or consented to any allegedly unlawful seizure. As discussed above, respondeat superior liability does not exist under Section 1983, so the mere fact that Macklin and Allen supervised the other defendants does not implicate them in this matter.
Regarding defendants Henneke and Wilson, the court assumes that their actions constituted (or at least contributed to) a temporary seizure of the business. The undisputed facts show that any such seizure was reasonable under the circumstances as a matter of law as the officers were executing valid arrest warrants at the public gathering.
The Supreme Court recently upheld a warrantless temporary seizure of property as reasonable under the Fourth Amendment in Illinois v. McArthur, 531 U.S. 326 (2001). The police had prohibited McArthur from re-entering his home unaccompanied by a police officer while the police obtained a search warrant for marijuana. Based on information from McArthur's wife, the police had probable cause to believe that McArthur was hiding marijuana in the home, and they reasonably feared that he would dispose of the evidence if he were given the opportunity to do so.
The Court treated the police restriction on McArthur as a seizure of his home and property. The Court acknowledged that "in the ordinary case," the Fourth Amendment requires the police to obtain a warrant based on probable cause before seizing personal property. 531 U.S. at 330. However, there are exceptions to this general rule:
We nonetheless have made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. See, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940-941 (1996) (per curiam) (search of automobile supported by probable cause); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990) (suspicionless stops at drunk driver checkpoint); United States v. Place, [ 462 U.S. 696, 706 (1983)] (temporary seizure of luggage based on reasonable suspicion); Michigan v. Summers, 452 U.S. 692, 702-705 (1981) (temporary detention of suspect without arrest warrant to prevent flight and protect officers while executing search warrant); Terry v. Ohio, 392 U.S. 1, 27 (1968) (temporary stop and limited search for weapons based on reasonable suspicion).531 U.S. at 330-31. Thus, instead of applying a per se rule against warrantless seizures, the Court balanced the "privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable." Id.
Considering four factors in combination, the Court concluded that the temporary warrantless seizure of the home and its contents was reasonable. 531 U.S. at 331-32. First, the police had probable cause to believe the home contained evidence of a crime (marijuana). Second, the police had good reason to fear that McArthur, if given the opportunity, would have destroyed the drugs before the officers returned with the warrant. Third, the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the home nor arrested McArthur before obtaining a warrant. Fourth, the police imposed the restraint for a limited period of time — two hours.
Here, viewing the record evidence in the light reasonably most favorable to Hahn, the same factors the Supreme Court considered in McArthur demonstrate that any seizure of the Midwest Reptile Show was reasonable.
First, defendants had probable cause to believe that the building that housed the show contained evidence of a crime, including the reptiles that could not be lawfully sold in Indiana at the time under a facially valid emergency regulation. This is the same probable cause that supported the issuance of the arrest warrants that were executed at the show. Hahn does not dispute the validity of the warrants executed on others at the show.
Second, the defendants reasonably could have concluded that the subjects of the arrest warrants might try to flee the scene or attempt to get rid of their reptile contraband if given the chance. Many people were attending the show, and there were multiple exits from the building where the show was held.
Third, the defendants made reasonable efforts to reconcile their law enforcement needs with any privacy interest Hahn might have had in keeping his business open to the public while multiple valid arrest warrants were being executed on exhibitors at his show. Hahn has not argued, and no evidence before the court suggests, that the defendants tried to take advantage of the temporary closing of the show to search Hahn or his business records.
Fourth, the show was closed for a limited period of time — not more than one and a half to two hours. Hahn has not drawn the court's attention to any evidence that the defendants kept the show closed down for longer than reasonably necessary to clear the premises and to execute the arrest warrants.
In his "disputed statements of fact," Hahn stated: "After serving the arrest warrants, DNR kept the MRS closed until the media had finished its live and taped inspections of Mr. Hahn's business. Only then was control of the premises returned to Mr. Hahn." Pl. Mem. at 6. Hahn did not cite any evidence to support these assertions and the court is not aware of any. Thus, Hahn's assertion is unsupported argument that does not present a genuine issue of material fact for trial. Hahn plainly believes the media presence violated his constitutional rights, but he concedes that, at the very least, the defendants were entitled to qualified immunity on any such claim in light of the Supreme Court's decisions in Wilson v. Layne, 526 U.S. 603 (1999), and Hanlon v. Berger, 526 U.S. 808 (1999). In Wilson and Hanlon, two unrelated cases decided the same day, the Court held that police officers were entitled to qualified immunity for their actions in bringing news media on executions of warrants at private homes. The Court held that so-called "media ride-alongs" may violate the Fourth Amendment, but immunity attached because the law on the issue was not clearly established before these recent decisions. The raid on the Midwest Reptile Show occurred in 1998, before Wilson and Hanlon were decided.
Based on the record evidence, no reasonable jury could conclude that the four McArthur factors, viewed singly or in combination, demonstrate that the defendants acted unreasonably when they closed down the Midwest Reptile Show temporarily to execute several valid arrest warrants. The undisputed facts here, even when viewed in the light reasonably most favorable to Hahn, show that law enforcement officials were carrying out a large-scale "raid" to execute multiple arrest warrants at the Midwest Reptile Show. On the record before this court, the arrest warrants were valid, and the defendants and their colleagues had good reason to expect that the subjects of those warrants would be present at the show as exhibitors there. The officers planning the raid knew they were likely to encounter a large crowd in a public building with many exits. They expected they might find evidence of ongoing criminal conduct in the course of executing the arrest warrants. The defendants' expressed concerns about maintaining sufficient control to ensure safety of the public and the officers and to preserve evidence were objectively reasonable. Hahn cannot create a genuine issue of material fact for trial by arguing that the defendants might have done things differently on June 28, 1998. Hahn's Section 1983 claim based on the alleged seizure of his show fails as a matter of law.
II. Qualified Immunity
Even if Hahn's Fourth Amendment claim for seizure of his business might survive summary judgment on the merits, defendants would still be entitled to summary judgment based on the doctrine of qualified immunity. Government officials performing discretionary functions generally are shielded from individual liability for civil damages unless their conduct violates "clearly established" statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a constitutional right was "clearly established" at the time of the alleged violation, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The court has reviewed above the undisputed facts showing that the alleged seizure of Hahn's business during the execution of the warrants was reasonable as a matter of law. Even if the court assumes there is room for argument on the merits, however, the law was certainly not clearly established that such a temporary seizure of the business under these circumstances would be unreasonable and unconstitutional. See Saucier v. Katz, 533 U.S. 194, ___, 121 S.Ct. 2151, 2159 (2001) (qualified immunity available even where the underlying alleged Fourth Amendment violation is determined based on objective test of reasonableness). Accordingly, defendants also are immune from suit on Hahn's Fourth Amendment claim for seizure of his business.
III. Hahn's State Law Claims
This court has had supplemental jurisdiction over Hahn's state law claims pursuant to 28 U.S.C. § 1367. When the court grants summary judgment on all federal claims before trial, the general rule is that the court should relinquish supplemental jurisdiction over state law claims. See, e.g., Van Harken v. Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997). Another factor in this case also points toward relinquishing supplemental jurisdiction.
In this case, the defendants have invoked the Eleventh Amendment, at least with respect to the federal claims for damages against the defendants, who are all state officials, in their official capacities. The protection of the Eleventh Amendment is available to the state and state officials when sued for damages in federal court under state law. Under Indiana tort law, the real party in interest on a tort claim against a state employee for actions taken within the scope of his employment is the State itself. See Ind. Code § 34-13-3-5(a) (b) (barring action against employee personally unless plaintiff makes and supports certain allegations justifying personal liability).
Defendants have not raised the Eleventh Amendment issue specifically with respect to the state law claims, but the fact that they have raised it at all creates a somewhat muddled record on the issue, especially if defendants were later to raise the issue more specifically. Although a court is not required to reach out and decide an Eleventh Amendment issue that has never been raised, see Floyd v. Thompson, 227 F.3d 1029, 1035 (7th Cir. 2000), it is free to consider an Eleventh Amendment defense on its own initiative if it chooses to do so. Higgins v. Mississippi, 217 F.3d 951, 953-54 (7th Cir. 2000). Since powerful authority even allows an Eleventh Amendment defense to be raised for the first time on appeal, see Edelman v. Jordan, 415 U.S. 651, 677-78 (1974), the potential for such a defense weighs in favor of relinquishing jurisdiction.
Also, this is not an exceptional case to which the court has already devoted an extraordinary amount of time, such that judicial economy would require the court to retain supplemental jurisdiction. Cf. Miller Aviation v. Milwaukee County Bd. of Supervisors, 273 F.3d 722, 731-32 (7th Cir. 2001) (finding that district court abused its discretion by relinquishing supplemental jurisdiction after five years of litigation and multiple hearings and opinions, during which district court developed mastery of the case).
Given both the usual practice of relinquishing supplemental jurisdiction when all federal claims are resolved short of trial and the room for uncertainty about possible Eleventh Amendment waiver arguments in the future, the court concludes that the most prudent course here is to relinquish supplemental jurisdiction over the state law claims.
Conclusion
Defendants are entitled to summary judgment on Hahn's Section 1983 claims for alleged violation of his Fourth Amendment right to be free from unreasonable seizure. They also are immune from suit on Hahn's Fourth Amendment claim for seizure of his business. Judgment for the defendants will be entered on Counts I and II of Hahn's complaint. The remaining claims in Hahn's complaint shall be dismissed without prejudice. Final judgment shall issue accordingly.
So ordered.