Opinion
Cause No. IP 01-1391-C H/K
December 19, 2002
ENTRY ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
On April 4, 2000, Indianapolis police officers responded to an emergency 911 call concerning a suicide attempt in progress. When they arrived at the scene, they encountered an unarmed William Jordan standing at the top of a staircase. After attempting to get Mr. Jordan to come down the stairs, the police ran up the staircase, tackled Mr. Jordan, and handcuffed him. During the altercation, Mr. Jordan received multiple blows, including one to the top of his head from a heavy metal flashlight requiring eleven staples in his scalp. He was arrested and charged with resisting arrest. A jury in a criminal trial found him not-guilty of those charges. See State v. Jordan, 49G99-0003-DF-055817.
References to the criminal trial transcript are indicated as "Crim. Tr. -."
Mr. Jordan then filed this action in federal court against the four police officers involved — defendants Scott Bishop, Richard Wilkerson, Jamie Guilfoy, and Tobi Cobian — and the City of Indianapolis. Mr. Jordan seeks relief under 42 U.S.C. § 1983, claiming that the defendants violated his Fourth Amendment rights by seizing him without probable cause and by using excessive force against him in effecting that seizure. He has also alleged false arrest and battery under Indiana state law. Linda Jordan, Mr. Jordan's wife, has alleged a claim for a violation of her substantive due process right to bodily integrity under the Fourteenth Amendment, as well as a claim for battery under Indiana state law.
Defendants have filed a partial motion for summary judgment. The only claim not at issue in this motion is whether the police officers used excessive force against Mr. Jordan after he was handcuffed. Defendants concede that there is a dispute as to material facts on that claim, which will be resolved at trial. As explained below, defendants' motion for summary judgment is granted with respect to Mr. Jordan's claims of an unreasonable seizure under federal law and false arrest under state law, and with respect to Mrs. Jordan's claims. Summary judgment is denied with respect to Mr. Jordan's claims for excessive force under federal law.
I. 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). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party 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 non-moving 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 side.
II. Undisputed Facts
With these standards in mind, the following facts are either undisputed or reflect review in the light reasonably most favorable to the plaintiffs. On April 4, 2000, Mr. Jordan was experiencing an unusual amount of stress from his employment and his troubled marriage. W. Jordan Dep. 37-38. Over the course of the day he took approximately two Xanax pills, one dose of NyQuil, and one drink with the equivalent of three shots of whiskey. Id. at 38-40. Mr. Jordan went into a "spiraling depression" and decided to commit suicide. Id. at 41. He called his son and his father to tell them that he loved them, and he retrieved his son's gun. Id. When Mrs. Jordan arrived home at approximately 6:30 p.m., Mr. Jordan was in the kitchen looking at photographs of his family. Id. at 41. Mr. and Mrs. Jordan talked briefly, and Mr. Jordan told her that he loved her and knew that she was going to leave him. Id. at 41-42. He then made a couple of telephone calls, including one to his son Don leaving a message stating that his mother would be needing him soon. Id. at 42. He went to his son's bedroom, chambered a round in the gun, and put the gun to his head. Id. Mrs. Jordan had followed Mr. Jordan upstairs and was screaming at him, but Mr. Jordan pushed her out of the bedroom and locked the door. Id. Shortly thereafter, Don called and wanted to know why his mother would "need him." L. Jordan Dep. 32. Don spoke with his father briefly. When Mr. Jordan hung up on Don, Don called 911. L. Jordan Dep. 34; 911 Tape at 2. After Mr. Jordan had ended the first conversation with his son, however, he unchambered the round from the gun, wrapped the gun in a towel, and handed it to Mrs. Jordan, who hid it in a dresser drawer. W. Jordan Dep. 43. The second time Don called, he had a 911 operator on the line with him. L. Jordan Dep. 34; 911 Tape at 4. During that telephone conversation, Mrs. Jordan told Don that Mr. Jordan no longer had the gun, that she had hidden the gun, that Mr. Jordan only wanted to speak with someone, and that there was no need for the police to come to the house. L. Jordan Dep. 34; 911 Tape at 4.
Indianapolis Police Officers Scott Bishop, Tobi Cobian, Jamie Guilfoy, and Richard Wilkerson were dispatched to the scene. Police Report at 5-6. The versions of events after the officers arrived at the Jordans' home at approximately 7:45 p.m. differ dramatically. The following events all occurred within a few minutes, some happening simultaneously. Mrs. Jordan greeted the police at the front door and informed them that there was no longer an emergency, that she had hidden the gun from Mr. Jordan, and that he only wanted to talk with someone. L. Jordan Dep. 36-37. She also informed them that Mr. Jordan had been drinking after having taken prescription medication. Id. at 54. She further testified that the officers "pushed" their way into the home. Id. at 38. After they were inside the home, however, Mrs. Jordan never asked the officers to leave but informed the police officers that Mr. Jordan was upstairs and showed them to the staircase. Id. at 38-39.
When the officers arrived at the bottom of the stairs leading up to Don's bedroom, Mr. Jordan was standing at the top. W. Jordan Dep. 49; L. Jordan Dep. 40. He testified that he was wearing jeans, a shirt, socks, and no shoes. W. Jordan Dep. 49. Officer Bishop ordered Mr. Jordan to take his hands out of his pockets. L. Jordan Dep. 41; W. Jordan Dep. 74. Mr. Jordan complied by holding his hands in front of him, palms facing out. W. Jordan Dep. 74; L. Jordan Dep. 42. Mr. Jordan also informed the officers that he was not armed. Crim. Tr. 38.
The officers at the scene later testified that Mr. Jordan was acting in a highly agitated manner. Crim. Tr. 65. They talked with him for approximately two to three minutes in an attempt to get him to come down the stairs, which he refused to do. Crim. Tr. 38. At that time, Mrs. Jordan was at the bottom of the stairs with the officers. Crim. Tr. 39. There was some brief discussion of Mr. Jordan's karate abilities. He is a certified third degree black belt in Tae Kwon Do. W. Jordan Dep. 29-30. Mr. and Mrs. Jordan both testified that Mrs. Jordan then attempted to coax him down the stairs by moving up the stairs slightly and motioning to him. L. Jordan Dep. 44; W. Jordan Dep. 50. Mr. Jordan further testified that as his wife did this, he dipped his head so that he could see over his bifocals and started to come down the stairs. W. Jordan Dep. 50-51. At the same time, the officers informed Mr. Jordan that they were going to make him come down, and proceeded to go up the stairs. Crim. Tr. 39. Mrs. Jordan testified that as the officers went up the stairs, she was pushed into the railing of the staircase, injuring her back. L. Jordan Dep. 45-46.
As the officers went up the stairs, it is unclear whether Mr. Jordan was first sprayed with CS/OC, a form of mace and pepper spray, or whether he reacted to the police officers' advance by assuming some sort of defensive position.
Compare W. Jordan Dep. 51, with Guilfoy Dep. 15-17. Mr. Jordan has testified that he "extended" his leg in order to stop the officers, similar to what he does in karate practice. W. Jordan Dep. 51. He also testified that as he saw another officer raise a canister of pepper spray, he put up his arms and turned his head. Id. After he was sprayed with CS/OC, the police officers continued up the stairs and a struggle ensued.
Additional facts are noted below, keeping in mind the standard for a motion for summary judgment, which requires that all record evidence be viewed in the light reasonably most favorable to plaintiffs as the non-moving parties.
Discussion
I. Federal and State Law Claims for False Arrest
Mr. Jordan brings his 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." Mr. Jordan contends that Officers Bishop, Cobian, Guilfoy, and Wilkerson violated his Fourth Amendment rights when they arrested him on April 4, 2000. He has also brought a claim for false arrest under Indiana state law. Defendants maintain they are entitled to summary judgment on Mr. Jordan's § 1983 and state law claims because probable cause existed to seize him under the Indiana "immediate detention" statute, which authorizes seizure of a mentally ill person who poses an immediate danger to himself or others, and to arrest Mr. Jordan for resisting law enforcement. Probable cause is an absolute 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 Mr. Jordan's federal claim and state claim will be 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. Indiana Immediate Detention Statute
Under the Indiana Immediate Detention Statute, if a law enforcement officer has "reasonable grounds to believe that an individual is mentally ill, dangerous, and in immediate need of hospitalization and treatment," that officer may "apprehend and transport the individual to the nearest appropriate facility," and if applicable, charge the person with any offenses committed. Ind. Code § 12-26-4-1. "Dangerous" is defined as a "condition in which an individual as a result of mental illness, presents a substantial risk" that he will harm himself or others. Ind. Code § 12-7-2-53. A "psychiatric disorder" is defined as a condition that "substantially disturbs an individual's thinking, feeling, or behavior; and . . . impairs the individual's ability to function." Ind. Code § 12-7-2-130.
The undisputed facts show that when the police officers arrived at Mr. Jordan's home, they had information that only moments prior to their arrival, he had been locked in a bedroom with a gun to his head, threatening to commit suicide. They also knew that he had mixed prescription medication with alcohol, resulting in unknown, potentially toxic effects. The officers asked him to come downstairs, and he refused. The officers were uncertain as to whether or how well the gun had been secured, and they had no way of knowing whether Mr. Jordan would try to commit suicide again after they had left. On the undisputed facts, the officers had probable cause to believe Mr. Jordan was "mentally ill, dangerous, and in immediate need of hospitalization and treatment." Ind. Code § 12-26-4-1. As a matter of law under the immediate detention statute, and as a matter of common sense and human decency, they were entitled to take reasonable steps to apprehend him for his own safety and the safety of others.
B. Resisting Arrest
Under Indiana law, a person resists arrest if he "knowingly or intentionally (1) 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(a). To violate this statute, the use of force is required. See Spangler v. State, 607 N.E.2d 720 (Ind. 1993); Potts v. City of Lafayette, 121 F.3d 1106, 1113 (7th Cir. 1997) (applying Indiana law). In Spangler, the Indiana Supreme Court stated that while "one `forcibly resists' law enforcement when strong, powerful, violent means are used to evade a law enforcement official's rightful exercise of his or her duties," an act of violence towards the officer is not constitutionally required. Spangler, 607 N.E.2d at 723. Rather, a "movement or threatening gesture made in the direction of the official" will suffice. Id. at 724; Potts, 121 F.3d at 1113.
Mr. Jordan has denied "kicking" the officers, but he testified that as the officers came at him, he reacted by putting his foot up in a defensive position as he would do in karate practice. W. Jordan Dep. 51-52. The undisputed facts show that his foot made contact with one of the officers sufficient to stop the officer's forward progress. Guilfoy Dep. 17 (straight kick struck officer in the wrist); Bishop Dep. 23, 25-26; see also W. Jordan Dep. 54-55 (denying "kick" but admitting to stopping officer's forward progress). The police officers interpreted this action as a karate style kick. Guilfoy Dep. 17; Bishop Dep. 23, 25-26. Mr. Jordan testified that he then retreated up the stairs, with his hands in front of his face. W. Jordan Dep. 51-52. Notwithstanding the differences in these versions, the undisputed fact that Mr. Jordan "extended his leg," making contact with one of the officers, after having made it known that he was a black belt in Tae Kwon Do, was enough of a "movement or threatening gesture in the direction" of the officer to give them probable cause to arrest him for resisting law enforcement.
Since the officers were entitled to seize Mr. Jordan, he was not entitled to resist. As a result, summary judgment will be granted to defendants on Mr. Jordan's Fourth Amendment claim for false arrest and his state law claim for false arrest.
II. Excessive Force and Qualified Immunity
Defendants also seek summary judgment on Mr. Jordan's Fourth Amendment claim for the use of excessive force before he was secured in handcuffs. Defendants argue that the undisputed facts entitle them to summary judgment on the merits and/or under the doctrine of qualified immunity.
An individual defendant in a § 1983 case may assert the defense of qualified immunity, which is available if a reasonable public official would not have realized at the relevant time that his or her actions would violate the plaintiff's federal rights. Wilson v. Layne, 526 U.S. 603, 609 (1999); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity defense is intended to strike a balance between two important values: the public interest in deterring unlawful conduct and in providing compensation for victims who suffer constitutional violations, versus the cost of subjecting public officials to suit, in terms of both the actual cost of litigation and the social cost of litigation, such as the risk of inhibiting government action. See Harlow, 457 U.S. at 816-19. When applicable, a qualified immunity defense entitles an officer "not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200 (2001), quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Federal courts apply a two-part test to determine whether a government official is entitled to immunity from civil suit. Saucier, 533 U.S. at 200-01; see also McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002); Marshall v. Teske, 284 F.3d 765, 771-72 (7th Cir. 2002). First the court asks whether the facts alleged, when examined in the light most favorable to the plaintiff, would amount to a constitutional violation. Saucier, 533 U.S. at 201. If the facts alleged reveal no constitutional violation, the inquiry ends and the officer prevails on the merits of the case. Id. If the facts alleged would amount to a constitutional violation, the court next examines whether the right was "clearly established" at the relevant time. Id.; Marshall, 284 F.3d at 772. If both questions are answered in the affirmative, the official is not entitled to qualified immunity. As a result, intertwined with the inquiry into qualified immunity is the issue of the use of excessive force, and the two will be discussed together.
A. The Facts As Alleged — Excessive Force Prior to Restraint
Mr. Jordan claims that defendants violated his Fourth Amendment rights by using excessive force in seizing him. The evidence, taken in the light reasonably most favorable to Mr. Jordan and giving him the benefit of reasonable inferences from the evidence, demonstrates a genuine dispute as to material facts concerning whether the officers used excessive force in apprehending Mr. Jordan, requiring a trial on the claim. See Garvin v. Wheeler, 304 F.3d 628 (7th Cir. 2002) (dismissing appeal from denial of summary judgment based on qualified immunity in excessive force case because of the existence of genuine issues of fact).
According to Mr. Jordan, when the police arrived, he was standing at the top of the stairs. He testified that he was "lethargic, depressed and subdued." W. Jordan Aff. ¶ 3. He further testified that the officers were aggressive and yelling obscenities at him. W. Jordan Dep. 49-50; L. Jordan Dep. 43-44. He maintains that, while he was not willing to come down the stairs as requested by the officers, he was cooperating and had in fact begun his descent when the officers charged at him, spraying him with CS/OC spray, striking him with large metal flashlights, and tackling him to the ground. See W. Jordan Dep. 50-53. By contrast, the officers maintain that Mr. Jordan was agitated, aggressive, and physically violent towards them, necessitating a stronger showing of force. As noted above, the undisputed facts show that Mr. Jordan resisted arrest. But resistance can be a matter of degree, so that some resistance does not give the police a blank check to use any force they wish to, including potentially deadly force such as blows to the suspect's head with a flashlight or other weapon. See W. Jordan Dep. 52-53 (officers sprayed defendant in face with CS/OC and struck him in the face with flashlight as four police officers tackled him to the ground); see also, e.g., Herzog v. Village of Winnetka, 309 F.3d 1041, 1043 (7th Cir. 2002) (reversing summary judgment where evidence indicated that police officer used excessive force when, without probable cause, she pushed a subject to the ground, refused to loosen handcuffs that were too tight, and forcibly administered a breathalyzer test that resulted in a cracked tooth); Clash v. Beatty, 77 F.3d 1045, 1048-49 (7th Cir. 1996) (shoving unarmed, handcuffed man into police car, injuring his knee could constitute excessive force under the circumstances; "police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever"). Whether the officers used unreasonable force in subduing Mr. Jordan turns on conflicting testimony on material facts.
B. Qualified Immunity
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); Frazell v. Flanigan, 102 F.3d 877, 882 (7th Cir. 1996). 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, Frazell, 102 F.3d at 882-83. Mr. Jordan has alleged that the officers used potentially deadly force on him by striking him on and about the head with a heavy metal flashlight while standing unarmed in the stairwell of his home. If the facts as they have been alleged are true, then the use of excessive force violated a clearly established right. However, because it is yet to be determined the situation the officers faced, determining whether the officers' actions were objectively reasonable is premature and not appropriate for summary judgment. The court cannot grant summary judgment on the defense of qualified immunity here because, under plaintiffs' version of events, the force used, including potentially deadly force, could be deemed unreasonable and excessive. There is no argument here about the legality of degrees of force, as there was in Saucier v. Katz. See 533 U.S. at 205-06. Rather, the dispute here concerns the facts — what force was in fact used by Mr. Jordan as well as by the defendant officers. Accordingly, Mr. Jordan's excessive force claim survives summary judgment.
III. Mrs. Jordan's Substantive Due Process Claim
Plaintiffs' evidence indicates that Mrs. Jordan was pushed aside by officers as they rushed up the stairs to restrain Mr. Jordan. She has testified that she suffered a back injury as a result. Mrs. Jordan asserts her own federal claim under the Due Process Clause of the Fourteenth Amendment, which provides that no state shall "deprive any person of life, liberty, or property, without due process of law." She also asserts that the officers' actions amounted to a battery under state law.
The Supreme Court has recognized that the Fourteenth Amendment provides citizens with two types of due process rights. Substantive due process protects against "government interference with certain fundamental rights and liberty interests," see Washington v. Glucksberg, 521 U.S. 702, 720 (1997), while procedural due process mandates that government action depriving a person of life, liberty, or property "be implemented in a fair manner." United States v. Salerno, 481 U.S. 739, 746 (1987), citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976). A person's liberty interest includes, among other things, the freedoms protected by the Bill of Rights, the right to marry, the right to have children and to direct their education, the right to marital privacy, and the right to bodily integrity. See Glucksberg, 521 U.S. at 720 (citing cases). The "touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness, or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective." County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (internal quotations and citations omitted).
Mrs. Jordan has alleged that her Fourteenth Amendment substantive due process right to bodily integrity was violated when the officers allegedly shoved her into the handrail on the staircase, injuring her back. The Supreme Court's decision in County of Sacramento v. Lewis sets out the standards for such substantive due process claims. 523 U.S. 833 (1998). A claimant must pass two hurdles. First, if there is a more "explicit source of constitutional protection against a particular sort of governmental behavior, that Amendment, not the more generalized concept of substantive due process, must be the guide for analyzing these claims." Id. at 842, quoting Graham v. Connor, 490 U.S. 386, 395 (1989). Second, the governmental abuse of power must be such that it "shocks the conscience." Id. at 846. The Court made clear that "the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Id. at 848. Rather, "conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Id. at 849. The Court, however, left open the possibility that an official's conduct may violate substantive due process under a standard of deliberate indifference. See id. at 849-50 n. 10. In the case of a claimed violation of the right of bodily integrity, the Seventh Circuit has written that the inquiry into sufficient culpability becomes "muddled," with varying standards depending on the situation. Armstrong v. Squadrito, 152 F.3d 564, 570 (7th Cir. 1998).
In determining the level of culpability, the Seventh Circuit has applied two levels of review: the shocks the conscience standard and the deliberate indifference standard. See Schaefer v. Goch, 153 F.3d 793, 797-98 (7th Cir. 1998) (applying shocks the conscience standard to officer's action in shooting at suspect, resulting in death of target's hostage); compare also Khan v. Gallitano, 180 F.3d 829, 836 (7th Cir. 1999) (fundamental rights analysis will be applied absent particularized circumstances warranting application of the shocks the conscience standard), citing Washington v. Glucksberg, 521 U.S. 702 (1997) and County of Sacramento v. Lewis, 523 U.S. 833 (1998), with Dunn v. Fairfield Community High Sch. Dist. No. 225, 158 F.3d 962, 966 (7th Cir. 1998) (stating that the fundamental rights analysis would be applied only in situations involving legislation); see also Foo v. Trustees, Indiana University, 88 F. Supp.2d 937, 961 n. 20 (S.D.Ind. 1999) (noting the apparent tension between analysis in Khan and Dunn).
Plaintiffs argue that the applicable standard in this situation is deliberate indifference, while defendants argue for the higher shocks the conscience standard. Based on applicable case law, the shocks the conscience test from County of Sacramento v. Lewis is the applicable standard for this case alleging a wrong in the context of a fast-moving police effort to restrain a subject.
The deliberate indifference standard will not be applied in situations where "`actual deliberation'" is impracticable. Schaefer, 153 F.3d at 797-98 (deliberate indifference standard is particularly appropriate in custodial settings, as opposed to high-speed chases), quoting Lewis, 523 U.S. at 851; see also Armstrong, 152 F.3d at 576-77 (using deliberate indifference standard in situation where sheriff seized and detained person for 57 days when warrant authorized only brief detention), citing Lewis, 523 U.S. at 851.
By contrast, the shocks the conscience standard is used in situations where decisions must be "`necessarily made in haste, under pressure, and frequently without the luxury of a second chance.'" Lewis, 523 U.S. at 852, quoting Whitley v. Albers, 475 U.S. 312, 320 (1986); accord, Khan v. Gallitano, 180 F.3d 829, 836 (7th Cir. 1999). In these cases, the Court concluded that "liability should turn on `whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Lewis, 523 U.S. at 853, 849 ("the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process"), citing Whitley, 475 U.S. at 320-21; see Schaefer, 153 F.3d at 797-98.
In Schaefer, a woman was being held hostage by her husband in their home. Schaefer, 153 F.3d at 794. The wife came onto the front porch of the house and dropped to her hands and knees as instructed by the police, who were positioned in front of the home. Shortly thereafter, her husband came out, grabbed her by her hair, and pulled her up to his side in an apparent attempt to regain control of his hostage. The husband was armed but never pointed his gun at the police officers. At some point, the husband released his hold on his wife.
Police officers immediately began shooting at him with automatic weapons, killing both the husband and the wife. Schaefer, 153 F.3d at 794-95.
The wife's parents and estate sued the officer who fired the fatal shot. In upholding summary judgment for defendant-officer, the Seventh Circuit concluded that liability under the shocks the conscience standard requires "`a purpose to cause harm.'" Schaefer, 153 F.3d at 798, quoting Lewis, 523 U.S. at 854. Further, "high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressable by an action under § 1983." Lewis, 523 U.S. at 854.
Thus, when "government officers face the sort of unforeseen and rapidly changing circumstances that demand unreflective decisions with potentially grave consequences on every side, `even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates [the concerns of substantive due process].'" Schaefer, 153 F.3d at 798 (emphasis added).
The reasoning of Schaefer applies squarely to this case. Mrs. Jordan has not come forward with any evidence that the police officers' actions amounted to anything more than negligence. There is certainly no evidence that the officers acted with the purpose of harming her. By all accounts, the situation at the Jordans' home was tense. The time spent at the bottom of the stairs talking with Mr. Jordan lasted only a matter of minutes. In an effort to defuse the situation, Mrs. Jordan testified that she voluntarily offered to help get her husband down the stairs. L. Jordan Dep. 44. She did this by raising her hand to her husband and proceeding up a couple of steps. Id. Mrs. Jordan testified that as she did this, the police officers ran up the stairs, pushing her out of the way and injuring her back. Id. at 46. The evidence does not present a genuine issue of disputed fact regarding her claim under the shocks the conscience standard.
Even under the more deferential deliberate indifference standard, Mrs. Jordan's claim would not survive summary judgment. In defining "deliberate indifference," the Supreme Court placed emphasis on "unhurried judgments" and "the chance for repeated reflection," something which was not available to the defendants in this case. See Lewis, 523 U.S. at 853 ("When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking."). The defendants in this case were presented with the uncertain situation of a man having only moments before locked himself in a bedroom with a gun to his head. He was refusing to obey the police officers' commands, and he informed them that he was a black belt in karate. Under those circumstances, the officers were not presented with a situation that afforded them the luxury of unhurried reflection. They had to make quick decisions and carry them out immediately.
Deliberate indifference "amounts to criminal recklessness — the defendant must have known that the plaintiff `was at serious risk of being harmed, [and] decided not to do anything to prevent that harm from occurring even though he could easily have done so.'" Armstrong, 152 F.3d at 577 (defining deliberate indifference as "`conscious disregard of known or obvious dangers'"), citing West v. Waymire, 114 F.3d 646, 651 (7th Cir. 1997). Furthermore, it must be "`a deliberate choice" with respect to a plainly obvious danger. Armstrong, 152 F.3d at 577 (choice must be deliberate even if "`the defendant obtusely lacks actual knowledge of the danger'"), citing Waymire, 114 F.3d at 651.
Based on the facts as presented by Mrs. Jordan, at most the defendants acted with negligence and not with the criminal recklessness toward her safety that would be required to show a constitutional violation even under the deliberate indifference standard. This was not the kind of deliberate, calculated choice that would result in a substantive due process violation. Accordingly, Mrs. Jordan has failed to present a genuine issue of material fact on her claim for a violation of her substantive due process rights, and defendants' motion for summary judgment is be granted with respect to that claim.
IV. State Law Battery Claims
In addition to their federal constitutional claims, Mr. Jordan and Mrs. Jordan have alleged state law claims for battery. OK Defendants assert that they are immune from these claims under the Indiana Tort Claims Act, § 34-13-3-3. The Indiana Tort Claims Act ("ITCA") provides in relevant part:
Defendants argue in their brief to dismiss the plaintiffs' claims for negligent and intentional infliction of emotional distress. Def. Br. at 16. Upon review of plaintiffs' briefs and of the complaint, however, the court has determined that plaintiffs have not asserted such a claim.
A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from: . . .
(7) The performance of a discretionary function; . . .
(8) The adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.
Ind. Code § 34-13-3-3. As both sides point out, this field of Indiana law is in a state of flux. However, the Indiana courts have recognized that the ITCA grants immunity to police officers for negligent and intentional torts committed while effecting an arrest. Ind. Code § 34-13-3-3; City of Anderson v. Davis, 743 N.E.2d 359 (Ind.App. 2001) (recognizing the elimination of the private/public duty distinction in ITCA and granting immunity against a claim of excessive force), citing Benton v. City of Oakland City, 721 N.E.2d 224 (Ind. 1999); City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind.App. 1999) (ITCA bars recovery on claims of negligent and intentional infliction of emotional distress).
In Davis, the court adhered to the Indiana Supreme Court's admonition that "it is the legislature, and not the courts, that is in the best position to determine the nature and extent to which governmental units in Indiana should be insulated from tort liability," Benton, 721 N.E.2d at 232, and held that the terms of the ITCA itself govern, Davis, 743 N.E.2d at 364.
On the face of the statute, the only applicable exceptions to the granting of immunity are for false arrest and false imprisonment. Ind. Code § 34-13-3-3(8). As discussed above regarding Mr. Jordan's federal claim for an unlawful seizure, the defendants had sufficient grounds to arrest and detain Mr. Jordan, so defendants' motion for summary judgment on Mr. Jordan's claim of false arrest must be granted. Neither Mr. Jordan nor Mrs. Jordan has stated a claim for false imprisonment, leaving only their respective claims for battery. Under the previously discussed cases, those claims fall squarely into the immunity provided by the ITCA. As a result, defendants' motion for summary judgment must be granted with respect to the state law claims of battery and false arrest.
Conclusion
Defendants' motion for summary judgment is granted with respect to Mr. Jordan's Fourth Amendment and state law claims for false arrest, both plaintiffs' claims for battery, and Mrs. Jordan's substantive due process claim. With respect to Mr. Jordan's federal constitutional claim for excessive force and the defense of qualified immunity on that claim, the defendants' motion is denied. Trial remains scheduled for Monday, February 3, 2003, with a final pretrial conference on Friday, January 24, 2003, at 9:00 a.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana.
So ordered.