Summary
In Sellers, a police officer was sued under 42 U.S.C. § 1983 after he allegedly used excessive force in effecting an arrest, resulting in the subsequent death of the arrestee.
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IP 01-474-C-M/S
June 27, 2002
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on Defendants', Marion County Sheriff's Department ("Sheriff's Department"), Deputy Garth Schwomeyer ("Schwomeyer"), Deputy Fortune ("Fortune"), and Deputy Allen Tuttle ("Tuttle"), Motion for Partial Summary Judgment on the civil rights claims of Plaintiffs Mark Sellers and Cheryl Shell ("Plaintiffs"), who are the co-executors of the estate of Mark Sellers II ("Sellers").
Sellers died three days after a confrontation with the defendants. His estate has filed claims under 42 U.S.C. § 1983 for false arrest and excessive force, and under Indiana law for wrongful death. Defendants seek summary judgment on the false arrest and wrongful death claims only. The parties have fully briefed the issues, and the Court will now consider their arguments.
I. FACTUAL BACKGROUND
On February 23, 2000, Sellers was drinking with friends at bars in the Indianapolis, Indiana, area. Statement of Facts ¶ 1. He started drinking at 4:00 p.m. or 5:00 p.m. Id. ¶ 2. In the early morning of February 24, 2000, Sellers argued with two women in the parking lot of one of the bars. Id. ¶ 3. Sellers was intoxicated during the argument. Id. ¶ 4. After the confrontation was over, Sellers began walking briskly out of the parking lot. Id. ¶ 5. He apparently was headed to his home, which was located on Post Road and 46th Street — just a couple of blocks away from the bar. Id. ¶ 38. His best friend, Donna George ("George"), began following Sellers in her car as he walked toward his home. Id. ¶ 6. George had also been drinking in one of the local taverns, but believed that she was able to drive safely. Id. ¶ 7.
As Sellers proceeded southbound on the sidewalk of Post Road, George followed in her car, and asked Sellers to get into the car. Id. ¶ 8. Sellers continued walking. Id. ¶ 9. George pulled her car into the Pea Pods' parking lot. Id. ¶ 10. Sellers sat down in the parking lot and lamented about his romantic problems. Id. ¶ 11. While he talked to George, Sellers lied down in the Pea Pods' parking lot. Id. ¶ 12.
On the evening of February 23, 2000, Schwomeyer was assigned to a patrol area known as "Beat 17," which is comprised of an area bordered by Carroll Road on the east, Arlington or Shadeland Road on the west, 25th Street on the south, and 45th Street on the north. Id. ¶ 14. Schwomeyer was part of a tactical unit, which was organized for the purpose patrolling high crime areas. Id. ¶¶ 15-16. Beat 17 and its surroundings is a high crime area. Id. ¶ 17.
At some point, Schwomeyer was driving his car when he noticed a person — later determined to be Sellers — lying in the Pea Pods' parking lot. Id. ¶ 19. He also saw a woman, later determined to be George, standing over Sellers. Id. ¶ 20. Schwomeyer made a U-turn at the first available median cutout. Id. ¶ 21. To alert other traffic of his intention to make the U-turn, Schwomeyer turned on his emergency lights. Id. ¶ 22. As he completed his U-turn, Schwomeyer saw Sellers come to his feet and begin walking southbound along the sidewalk. Id. ¶ 23.
Sellers continued southbound on the sidewalk along Post Road, moving at a pace between a walk and a jog. Id. ¶ 24. Sellers' walking was uncoordinated. Id. ¶ 39. According to Schwomeyer, he bleeped his siren, and Sellers turned and looked at his car, but continued to walk down the sidewalk. Id. ¶¶ 25-26. Schwomeyer then accelerated his car past Sellers and pulled into a driveway south of the Pea Pods' parking lot. Schwomeyer Dep. at 93. According to George, when Schwomeyer pulled into the driveway, he struck Sellers with the front passenger side of his car. George Dep. at 60. Sellers got up from the ground and Schwomeyer attempted to restrain him. George Dep. at 65-66. Sellers resisted, so Schwomeyer and Tuttle threw him to the ground. George Dep. at 74-75. Sellers was then arrested for allegedly fleeing law enforcement and for public intoxication. Id. ¶ 36.
It is not clear from the parties' briefs when Tuttle came upon the scene.
Schwomeyer noticed a strong odor of alcohol emanating from Sellers. Stmt. of Facts ¶ 31. After handcuffing Sellers, Schwomeyer noticed blood tricking from his ear and his nose. Id. ¶ 32. After trying to talk to Sellers, Schwomeyer removed the handcuffs from his hands. Id. ¶ 62. Schwomeyer called for an ambulance. Id. ¶ 33. Sellers was taken to Wishard Hospital for treatment. Id. ¶ 34. Sellers died three days later at Wishard Hospital as a result of blunt force injury to the head. Id. ¶ 35.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 499 U.S. 923 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
B. SECTION 1983 STANDARDS
Title 42 U.S.C. § 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir), cert. denied, 522 U.S. 998 (1997). Section 1983 is not itself a font for substantive rights; instead it acts as an instrument for vindicating federal rights conferred elsewhere. Id. Liability under § 1983 requires proof of two essential elements: that the conduct complained of (1) was committed by a person acting under color of state law; and (2) deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997). The initial step in any § 1983 analysis is to identify the specific constitutional right which was allegedly violated. Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997) (citing Graham v. Connor, 490 U.S. 386, 394 (1989); Kernats v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994)).
In this case, Plaintiffs claim Defendants violated Sellers' rights under the Fourth Amendment to the United States Constitution by arresting him without probable cause. The Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime before making an arrest. U.S. v. Scheets, 188 F.3d 829, 836 (7th Cir. 1999), cert. denied, 528 U.S. 1096 (2000).
Plaintiffs also asserted a claim for wrongful death under Indiana law. The only issue with respect to that claim is whether Defendants are immune from suit. Thus, the Court will not concern itself with the standards or elements of such a claim, but only with the immunity issue.
III. DISCUSSION A. PLAINTIFFS' FOURTH AMENDMENT CLAIMS
As discussed, the Fourth Amendment generally requires a law enforcement officer to have probable cause before arresting someone. Certain seizures of the person, however, need not be supported by probable cause. "An investigatory stop not amounting to an arrest is authorized if the officer making the stop is `able to point to specific and articulable facts' that give rise to a reasonable suspicion of criminal activity." United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Officers are allowed to use some amount of force to effectuate a Terry stop. Tom v. Voida, 963 F.2d 952, 958 (7th Cir. 1994). If the force employed is objectively unreasonable, however, then the stop may ripen into a formal arrest requiring probable cause. Id.Plaintiffs concede that Officer Schwomeyer was justified in making a Terry stop of Sellers. They claim, however, that he used unreasonable force when he pulled into a driveway and his car "struck" Sellers, which converted the investigatory stop into a full-fledged arrest that required probable cause. It is not clear from George's testimony, which Plaintiffs rely upon, whether Schwomeyer used his car to strike Sellers, or if Sellers ran into Schwomeyer's car. Her actual testimony was as follows:
Q: What happened next?
A: The police car came around me. Mark was running here. I saw Mark running here and Mark ran around this pole and then the police car pulled into this drive here, this entrance of this drive here, and the car struck Mark. Mark had to go around this. There's kind of a dip there where the post is at. He had to go around that to stay on the sidewalk.
George Dep. at 60.
If Sellers ran into Schwomeyer's car, which is one possible interpretation of George's testimony, then there was no use of objectively unreasonable force that would remove the initial detention outside the realm of a Terry stop. Under this scenario, the initial detention of Sellers was nothing more than a Terry stop, which Plaintiffs concede was justified.
Once Schowmeyer was out of his car, he attempted to restrain Sellers by handcuffing him. This was a reasonable use of force to detain a fleeing person about whom he had a reasonable suspicion of criminal activity. See Voida, 963 F.2d at 958. Upon handcuffing Sellers, Schwomeyer noticed an odor of alcohol. In Indiana, it is unlawful for a person to be in a public place while intoxicated. See Ind. Code § 7.1-5-1-3. The odor of alcohol on Sellers, coupled with the fact that Schwomeyer had seen him walking in an uncoordinated manner, provided probable cause to arrest Sellers for public intoxication. The officers also had probable cause to arrest Sellers for resisting law enforcement, because Plaintiffs concede that Sellers struggled with the officers when they tried to handcuff him. Because Sellers' arrest was supported by probable cause, Plaintiffs' false arrest claim fails as a matter of law.
An officer has probable cause to arrest "when the totality of the facts and circumstances within his knowledge and of which he has reasonably trustworthy information is sufficient that a prudent person would believe that the suspect committed or was committing an offense." Marshall v. Teske, 284 F.3d 765, 770 (7th Cir. 2002). Courts evaluate probable cause not from the perspective of an omniscient observer, but on the facts as they would have appeared to a reasonable person in the position of the arresting officer. Id.
Another interpretation of George's testimony — one that Plaintiffs urge the Court to adopt — is that Schwomeyer actually struck Sellers with his squad car when he pulled into the driveway. Assuming such conduct amounted to unreasonable force in effectuating a Terry stop — and thus converted the stop into an arrest requiring probable cause — Schwomeyer had probable cause to arrest Sellers for resisting law enforcement. Under Ind. Code § 35-44-3-3(a)(3), a person "who knowingly or intentionally flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop" commits a Class A misdemeanor. In this case, Schwomeyer had turned on the lights of his marked squad car, and had "bleeped" his siren at Sellers as he continued down the sidewalk. Any reasonable person would have understood that Schwomeyer was ordering Sellers to stop. Nonetheless, Sellers refused to stop and continued down the sidewalk. Indiana courts have found that fleeing in response to a police car's lights and siren is chargeable as resisting law enforcement. See State v. Blake, 468 N.E.2d 548, 550 (Ind.Ct.App. 1984). Thus, because Schwomeyer had probable cause to arrest Sellers for resisting law enforcement, Plaintiffs' false arrest claim fails as a matter of law. The Court GRANTS Defendants' Motion for Summary Judgment on Plaintiffs' § 1983 claim for false arrest.
B. PLAINTIFFS' WRONGFUL DEATH CLAIMS
Plaintiffs also have alleged a claim for wrongful death under Indiana law. Defendants assert that they are immune from any tort claims because they were involved in the enforcement of a law. Under the Indiana Tort Claims Act, "a governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the adoption and enforcement of . . . a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment." Ind. Code § 34-13-3-3(7) (2000). Plaintiffs do not dispute that the officers were acting within the scope of their employment. Instead, their sole argument on this issue is that Schwomeyer was not "enforcing a law" when he used his patrol car to strike Sellers, so there is no immunity available under § 34-13-3-3(7).
This provision has been amended and is now found at Ind. Code § 34-13-3-3(8).
The Indiana Supreme Court has explained that the scope of the term "enforcement" under § 34-13-3-3(7) is "limited to those activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof." Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 282 (Ind. 1994). In this case, Schwomeyer engaged his siren and lights in an effort to get Sellers to stop fleeing down the sidewalk. He later pulled his car into a driveway, at which time there was contact with Sellers. Throughout this series of events, Schwomeyer was attempting to compel compliance with the law, and he is entitled to immunity under § 34-13-3-3(7).
Although it is not clear from Plaintiffs' complaint or summary judgment brief, it would seem that their wrongful death claim stems from the alleged use of excessive force, not from the alleged false arrest. Because Plaintiffs did not raise such a claim in their response brief, however, the Court need not address it. The Court notes that while it once was unclear whether officers were immune from claims of excessive force, the most recent statement on the issue from an Indiana court indicates that is no longer the case:
In Kemezy, the supreme court applied the test from Quakenbush, which had been issued the same day, and determined that the ITCA did not immunize a police officer's use of excessive force, reasoning that `law enforcement officers owe a private duty to refrain from using excessive force in the course of making arrests.' Id. at 1297. However, as noted above, the supreme court in Benton explicitly disavowed the Quakenbush public duty/private duty test, upon which the holding of Kemezy is based. Thus, the excessive force exception to the ITCA immunity announced in Kemezy cannot be regarded as good law to the extent that it is based on the Quakenbush test. The Act itself does not provide an explicit immunity exemption for excessive force or other illegal acts. The only exceptions explicitly recognized are false arrests and false imprisonment. The interpretation of the ITCA to include a free standing illegality or excessive force exception, without any explicit support in the Act itself, would appear to run afoul of the supreme court's admonition in Benton 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.'
City of Anderson v. Davis, 743 N.E.2d 359, 366 n. 4 (Ind.Ct.App. 2001) (citing Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993); Quakenbush v. Lackey, 622 N.E.2d 1284 (Ind. 1993); and Benton v. City of Oakland City, 721 N.E.2d 224 (Ind. 1999)). Thus, it appears that the officers also would be immune from any tort claims based upon their alleged use of excessive force. Because the officers are immune from suit for wrongful death, the Court GRANTS their Motion for Summary Judgment on that claim.
IV. CONCLUSION
Plaintiffs have failed to present sufficient evidence from which the Court could find a genuine issue of material fact on their § 1983 claim for false arrest. In addition, the Indiana Tort Claims Act provides immunity to the defendant officers from Plaintiffs' wrongful death claims under Indiana law. Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment on the § 1983 claim for false arrest and the wrongful death claim under Indiana law. Plaintiffs' excessive force claim under § 1983 remains for trial.
IT IS SO ORDERED.