Opinion
IP 99-0276-C-M/S
July 30, 2001
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the Motions for Summary Judgment of Plaintiffs Robert and Judy Willits (the "Willits") and Defendants Wal-Mart Stores, Inc. ("Wal-Mart"), Jerry Biggs ("Biggs"), and Pat Barker ("Barker"). The Willits allege that Wal-Mart, Biggs, and Barker, along with the Indiana State Police, violated federal and state law during an execution of a search warrant at their tackle shop, Tackle Town, in Greenfield, Indiana. The Willits have moved for partial summary judgment on their claims under 42 U.S.C. § 1983. Wal-Mart, Biggs, and Barker seek summary judgment on all of the Willits' claims.
This district has specific procedures, embodied in Local Rule 56.1, that parties are required to follow with respect to summary judgment motions and briefs. Without going into painstaking detail, the Court notes that the parties' lack of compliance with that rule has not advanced its efforts to resolve the pending motions for summary judgment. Indeed, the parties attempted to submit over 300 facts, and their failure to follow the required procedures has caused unneeded delay in the resolution of these motions. In its consideration of the motions, the Court has reviewed those facts that were properly submitted in a Statement of Facts or Statement of Additional Facts and supported by record evidence. It has also considered objections that were properly raised. To the extent the parties attempted to add facts or objections that were not in compliance with L.R. 56.1, the Court has disregarded those submissions. After sifting through the voluminous submissions, the Court has derived the following facts.
For example, in their summary judgment brief, Defendants completely failed to follow L.R. 56.1 with respect to their factual submissions. The rule required Defendants' Statement of Material Facts to consist of concise, numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition. L.R. 56.1(f). Instead, Defendants provided the Court with 10 pages of facts in narrative form without any numbered sentences.
I. FACTUAL BACKGROUND
After being arrested for stealing Wal-Mart merchandise, Tim Spurling ("Spurling") provided a statement to the Indiana and Illinois State Police Departments about his activities. During the interview, Spurling told police that he had been providing stolen merchandise from Wal-Mart to the Willits' son, Tim Willits, who would then sell the items at the Willits' tackle shop, Tackle Town. Apparently as a result of this interview, the Indiana State Police (the "ISP") set up at least one controlled buy between Spurling and Tim Willits. The ISP then obtained search warrants for Tackle Town and the Willits' residence, and executed the warrants with the assistance of Wal-Mart employees. It was the execution of these warrants that spawned this lawsuit.
A. THE CONTROLLED BUYS
As part of the sting operation, Wal-Mart personnel provided some of its inventory — which will be referred to as the "control items" — to Spurling so he could offer it to Tim Willits as stolen property. Joint Statement of Undisputed Facts ¶ 1. The control items were marked in a number of ways so they could be traced. Id. ¶ 3. Some of the items had green stickers to make them more readily identifiable. Id. ¶ 4.
Biggs provided a list of the property that Wal-Mart used for these "control buys." Id. ¶ 2.
Although all of the boxes had factory bar codes, additional bar codes were placed on a number of the items with a four-digit number that identified the informant. Id. ¶ 6. Some of the control items were marked with a material that would reveal a code number. Id. ¶ 7.
Every single control item was marked with ultra violet liquid to make it identifiable prior to the transfer to Tim Willits. Id. ¶ 8. Biggs and ISP Detective Michael Morris ("Morris"), marked the control items with ultraviolet liquid. Id. ¶ 10. The ultra violet liquid was visible under an ultraviolet light. Id. ¶ 9.
The items used in the control buy were contained in Rubbermaid bins. Id. ¶ 11. After the items were delivered to Tim Willits, he and Spurling took the property into Tackle Town, locked the door, and left the shop. Id. ¶ 12. After that, no one in the Willits' family re-entered the store until the search warrant was executed. Id. ¶ 13.
Although Defendants obtained two search warrants, the only warrant that is the subject of this particular motion is the one for Tackle Town. Thus, the term "search warrant" in this opinion refers to the warrant for Tackle Town.
At some point, Biggs and Barker attended a meeting with defendants Morris, ISP Officers David Phelps ("Phelps") and Michael Snider ("Snider"), and the Hancock County Prosecutor regarding the investigation and a request for search warrants. Id. ¶ 14. On September 17, 1997, Hancock County Prosecutor Larry Amick ("Amick") appeared before Hancock County Judge Richard D. Culver requesting search warrants. Id. ¶ 15. Amick called Morris to testify regarding the search warrant request. Id. ¶ 16.
After hearing the testimony, Judge Culver signed a warrant to enter "Willits Tackle Shop located at 1429 East Main Street (U.S. 40) Greenfield Indiana 46140, being a wood-frame one story business on the south side of U.S. 40," and authorized the search for "stolen property and/or property purported to be stolen, including fishing and sporting goods equipment, gold jewelry, electronic equipment, controlled substances, money, checks, monetary and business records (written and computerized), notes and records related thereto." Id. ¶ 17.
A second warrant authorized the entry into the Willits' residence at "1335 Pauls Drive, Greenfield, Indiana 46140, being a brick one-story residence, located on the south side of Pauls Drive with a two-car attached garage and storage building," and authorized the search for "stolen property and/or property purported to be stolen, including fishing and sporting goods equipment, gold jewelry, electronic equipment, controlled substances, money, checks, monetary and business records (written and computerized), notes and records related thereto." Id. ¶ 18.
C. THE EXECUTION OF THE SEARCH WARRANT
On the day the search warrant was obtained, Phelps had a meeting with ISP Sergeants Bonnie Barnhard ("Barnhard") and Larry Harshman ("Harshman"), ISP Officer Bob May ("May"), Snider, Biggs, Barker, and others. Id. ¶ 19. Biggs did not see the search warrant. Id. ¶ 82. A copy of the warrant was not presented during the pre-search briefing. Id. ¶ 84. During the planning of the search detail Biggs requested that ISP use some Wal-Mart personnel to assist in the identification and collection of merchandise at Tackle Town. Id. ¶ 20. Biggs reassured Phelps and ISP Evidence Technician Steve Knapp ("Knapp") that Wal-Mart had done seizures like this many times with law enforcement without any problems. Id. ¶¶ 21, 98. Biggs stated that Wal-Mart had specific equipment and procedures that it used which could expedite the inventory process. Id. ¶ 22. During a briefing regarding the execution of the search warrant, Biggs instructed that this was the same as or would lead to a RICO-type situation, where anything that was stolen or the profits used from those to buy other items would be subject to seizure. Knapp Dep. at 36. One prosecutor informed Biggs that this action was only a criminal prosecution, and its purpose was not to recover merchandise for Wal-Mart. Biggs Dep. at 143.
Knapp strongly objected to the inclusion of the Wal-Mart employees in the seizure. Id. ¶ 23. He also questioned the procedure that was being used to collect items. Id. ¶ 71.
ISP assigned Wal-Mart personnel to location #3, Willits Tackle Town. Joint Statement of Undisputed Facts ¶ 41. According to the operational plan, Wal-Mart employees were to "assist with identification and collection of seized inventory." Id. ¶ 42. Biggs and Barker had input in formulating the plans regarding the execution of the search. Morris' Ans. to Interrogs. No. 14. Wal-Mart was to provide the employees to do the collecting of the items seized. Joint Statement of Undisputed Facts ¶ 43. Wal-Mart employees were also responsible for identifying which items were like those sold at Wal-Mart. Id. ¶ 44.
On September 17-18, 1997, ISP officers entered and searched the business and residence of Tim Willits. They were accompanied by Wal-Mart employees. Id. ¶ 24. On the first day there were 10 to 15 Wal-Mart employees working on the collection of items. Ex. 13. On the second day there were between 25 and 40 Wal-Mart employees. Id. Wal-Mart employees performed all actions at the direction and under the control and supervision of the ISP. Joint Statement of Undisputed Facts ¶ 40. While the supervision and control of the Wal-Mart employees were the responsibility of Phelps and Knapp, Phelps was apparently running the show. Id. ¶¶ 27-28. He made decisions as the officer in charge at Tackle Town. Id. ¶ 29. Phelps, however, deferred entirely to the judgment of the Wal-Mart employees and their supervisors to select merchandise to be seized from Tackle Town. Id. ¶ 57.
Biggs and Barker were the Wal-Mart liaisons during the search and seizure. Id. ¶ 35. Some of the items to be seized had been marked with an ultra violet marker and others had altered UPC tags on them which Wal-Mart security would identify. Id. ¶ 45. Wal-Mart employees brought a scanner and scanned the UPC codes into their computers. Id. ¶ 46.
Barker ran the black light scanner. Id. ¶ 64. Barker also searched behind the counter. Moore Dep. at 27. Barker seized merchandise that could have been stolen, or that could have been sold at Wal-Mart, or like merchandise sold at Wal-Mart. Barker Dep. at 120, 125-126. Wal-Mart security identified several items by means of a black light and CPU tags. Joint Statement of Undisputed Facts ¶ 50. There was a list specifically indicating items used in the controlled buys as merchandise sold to Tim Willits. Id. ¶ 49. After Wal-Mart identified several items by means of blacklight and CPU tags, Biggs told Knapp that Wal-Mart was treating this as a RICO seizure, and that more items were going to be seized if it was an item that Wal-Mart carried. Ex. 13. Biggs stated to Knapp that Wal-Mart had participated in seizures similar to this many times in the past. Id.
According to Barker, he was supposed to identify any potentially stolen merchandise which at a later date could have been identified as stolen merchandise. Joint Statement of Undisputed Facts ¶ 52.
Barker supervised the selection of merchandise that was being pulled out of Tackle Town because it either had Wal-Mart stickers on it, showed up under a black light, or was purportedly stolen. Id. ¶ 53. Barker instructed the Wal-Mart employees to identify and seize items like merchandise sold at Wal-Mart. Id. ¶ 54. All items identified by the Wal-Mart employees to be taken were seized. Id. ¶ 58. Wal-Mart employees, however, even seized items that contained a price sticker from a store other than Wal-Mart. Id. ¶ 55.
Michael Crider, a conservation officer with the Indiana Department of Natural Resources at the time of the search, was familiar with Tackle Town and its inventory. Crider Aff. ¶¶ 3, 8. He knew most of the state police officers involved in the search and seizure, and went to the Willits' home at Morris' request. Id. ¶¶ 11-12. He later went to Tackle Town and observed the search. Id. ¶ 15. Upon observing at least 35 Wal-Mart employees present at the shop, he told them that they were "going way too fast and that they needed to slow down." Id. ¶ 16. The Wal-Mart employee replied that he or she was executing the warrant and that the decision had been made that the entire inventory be considered as "ill gotten gains." Id. ¶ 17. He also heard a Wal-Mart employee state that "if Wal-Mart sells it then we are taking it." Id. ¶ 18. Crider confronted some other Wal-Mart employees and asked why they were opening boxes that had shipping labels to Tackle Town on them. Id. ¶ 20. In response, the Wal-Mart employees opened the box, dumped the contents of the box and said, "Well, it doesn't say Willits now." Id. ¶ 22.
At the direction of Wal-Mart supervisors, the Wal-Mart employees were given a cardboard box, a box number, and were assigned a particular area and directed what items to collect. Id. ¶ 61. They then filled boxes with items they thought to be sold at Wal-Mart, and loaded the boxes onto a semi trailer. Id. ¶¶ 62, 69.
The inventory sheets created by ISP were developed from handwritten sheets created by Wal-Mart employees. Id. ¶ 72. Boxes and containers with items seized were brought to Knapp with a sheet with a count and Knapp would look in the box and determine whether it looked probably like the same amount on the sheet. Id. ¶ 74. Knapp did not count the items. Id. ¶ 75. Knapp sealed the boxes and marked his initials. Id. ¶ 76.
D. THE WILLITS' ATTEMPTS TO RECOVER THEIR PROPERTY
On September 26, 1997, Robert, Judy, and Paula (Tim's wife) Willits filed a Motion to Recover Property in Hancock Superior Court 2, Judge Culver's court. Judge Culver held a hearing on the motion on October 31, 1997. Exs. 5, 11. The State was represented by counsel. Ex. 5. During the hearing, Judge Culver stated that:
no reasonably [sic] person could possibly assume uh that the Court order would authorize civilians uh to take Mr. Willits' property. No reasonable person could possibly assume uh that I authorized or had even the slightest suspicion that the police were [sic] go in there and take 86,000 to 94,000 pieces of property. No reasonable person could possible [sic] assume that I authorized the police uh to take property that was boxed and shipped from manufacturers that wasn't even open . . .
Id. Judge Culver ordered all of the items seized to be returned, with the exception of items on Plaintiffs' Exhibit I and the items that were bar coded and blacklighted as part of the sting. Id.
According to Judge Culver, there was "no way in the world that any reasonable person could have thought" that the court was told that they were going to take 94,000 pieces of property. Id. The warrant was only issued based upon the bar code and black light tracking. Id. Judge Culver determined after hearing the evidence that the "State of Indiana exceeded the scope of the authority granted to the State by virtue of the search warrants issued in this cause and improperly seized property belonging to Intervenors." Ex. 6. Judge Culver further ordered the Indiana State Police to return the improperly-seized property. Id.
Defendants claim that Judge Culver's October 31, 1997, order is void because of a Nunc Pro Tunc order he subsequently entered on March 25, 1999. Defendants' Supplemental Ex. 3. For purposes of these motions, the Court need not determine what effect, if any, Judge Culver's Nunc Pro Tunc entry had upon his earlier determination that the ISP and Wal-Mart had exceeded the scope of the search warrants.
After the court ordered the items to be returned, ISP Officer David Sylvester ("Sylvester") was assigned to re-inventory and return the items. Sylvester Dep. at 29-44. Morris instructed Sylvester which items were to be returned and the items that were not to be returned. Sylvester Dep. at 47, 51, 55-56.
Sylvester did not use the blacklight to determine which items should be returned pursuant to the Court order. Sylvester Dep. at 47-48. The trailer with the Willits' property was locked and sealed with an ISP evidence lock. Sylvester Dep. at 74. ISP evidence locks are key locks for which only evidence specialists within the ISP laboratory have keys. Sylvester Dep. at 74. The trailer was taken to the District 52 impound lot and locked inside. Sylvester Dep. at 74. On the day the Willits' property was returned, Sylvester went out to the impound lot and confirmed that the trailer was still locked with the evidence lock. Sylvester Dep. at 74-75.
Still not satisfied with the return of the property, Tim, Robert, and Judy Willits filed on December 1, 1998, a second Motion to Recover Property in Hancock County Superior Court 1, Judge Payne's Court. Ex. 11. On January 25, 1999, Judge Payne held a hearing on the motion and determined that the State was served notice of the date the motion had been set for hearing. Ex. 7 at 2; Ex. 8 at 5. Neither the State of Indiana nor ISP appeared in person or by counsel at the hearing. Ex. 7 at 2. Judge Payne determined that the Willits were entitled to judgement in their favor and against the State and ISP. Id. at 3. Judge Payne found that Judge Culver had ordered certain items to be returned by ISP, but that items either were not returned or had been returned in a damaged condition, unsuitable for sale. Id. at 4. Judge Payne determined that the total value of the items not returned amounted to over $25,000, that the loss to the items returned in damaged condition amounted to nearly $6,000, and that additional items not returned had the value of nearly $4,000. Id.
Judge Payne held that the State and ISP failed to comply with the order of Judge Culver dated October 31, 1997, and that the State or ISP converted Willits' property when it was not returned to them. Id. at 5-6. Judge Payne's order entered a default judgement in favor of Plaintiffs and against the State and ISP for $31,084.28, and ordered the State and ISP to return all property to Plaintiffs by April 12, 1999. Id. at 6-7.
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)). The Willits allege that Defendants violated their rights under the Fourth Amendment, which protects persons against unreasonable searches and seizures of their "persons, houses, papers, and effects." Siebert v. Severino, 2001 WL 755419, *3 (7th Cir. July 6, 2001). That amendment also requires that a warrant "particularly describe . . . the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The parties do not dispute that the warrants in this case met this particularity requirement.
Instead, the Willits claim that Defendants exceeded the scope of the warrants when they seized approximately 94,000 items from their tackle shop. "The requirement that search warrants particularly describe the things to be seized is a bedrock of Fourth Amendment jurisprudence." Supreme Video, Inc. v. Schauz, 15 F.3d 1435, 1439 (7th Cir. 1994). The particularity requirement "makes general searches under [a warrant] impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196 (1927). With these standards in mind, the Court will now consider the Willits' claims.
III. DISCUSSION
A. THE WILLITS' SECTION 1983 CLAIM
1. Can The Willits Use Offensive Collateral Estoppel?
The Willits attempt to use Judge Culver's order from Hancock Superior Court, which found that the State exceeded the scope of the search warrant, to prevent all defendants in this matter from relitigating the issue. The Indiana Court of Appeals recently described the doctrine of collateral estoppel as follows:
`Collateral estoppel operates to bar a subsequent relitigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in the subsequent lawsuit.' Wilcox v. State, 664 N.E.2d 379, 381 (Ind.Ct.App. 1996) (citations omitted). Where issue preclusion applies, the first adjudication will be held conclusive, even if the second is on a different claim. Id. Thus, collateral estoppel, or issue preclusion, as it is sometimes called, means that `when an ultimate issue of fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' Davis v. State, 691 N.E.2d 1285, 1288 (Ind.Ct.App. 1998) (citation omitted). Thus, the subsequent relitigation of an issue adjudicated in a former suit, if that same issue is presented by the same parties in the subsequent suit, is barred. Shell Oil Co. v. Meyer, 705 N.E.2d 962, 968 (Ind. 1998).
Ling v. Stillwell, 732 N.E.2d 1270, 1277 at n. 5 (Ind.Ct.App. 2000).
In their initial brief, the Willits argued that they were entitled to use these doctrines to preclude the State of Indiana from rehashing the issue in this matter. The Willits did not argue until their reply brief, however, that the doctrines would similarly apply to Wal-Mart, Biggs, and Barker. It is well settled that a party cannot raise an argument for the first time in a reply brief. See Hall v. Cropmate, 887 F. Supp. 1193, 1199 (S.D.Ind. 1995). As a result, the Court will not address the issue in considering these motions.
2. Were Defendants Acting Under Color Of Law?
The first issue the Court will address is whether Biggs and Barker were acting under color of law or whether their conduct amounted to "state action," for it is well established that the Fourth Amendment is not implicated where there has been a search or seizure by a private party. U.S. v. Shahid, 117 F.3d 322, 325 (7th Cir.), cert. denied, 522 U.S. 902 (1997). The Fourth Amendment does apply, however, to "a search or seizure by a party (even if otherwise a private party) who is acting as an `instrument or agent' of the government." Id. (citations omitted). The question of "`whether a particular conduct is `private,' on the one hand, or `state action,' on the other, frequently admits of no easy answer.'" Wade v. Byles, 83 F.3d 902, 904 (7th Cir.), (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-350 (1974)), cert. denied, 519 U.S. 935 (1996). In general terms, before Biggs' and Barker's conduct can be considered state action there must have been "a sufficiently close nexus between the state and the private conduct so that the action `may fairly be treated as that of the State itself.'" Wade, 83 F.3d at 905, (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
The parties discuss a variety of different theories to be used in considering whether Defendants acted under color of law. For obvious reasons, Defendants attempt to minimize their involvement in the matter. In fact, according to Barker and Biggs the "State Police supervised and controlled the search and seizure, and were simply assisted to different degrees by Biggs and Barker, employees of the victim." See Wal-Mart Defendants' Brief in Opposition to Plaintiffs' Motion for Partial Summary Judgment at 21. The Court does not agree that Biggs and Barker had such de minimus roles with respect to the search and seizure. Biggs is the one who suggested that Wal-Mart personnel assist with the search and seizure, and later stated that the seizure would be similar to one conducted in a RICO situation. Biggs was involved from the beginning, having input into the planning of the controlled buys, the pre-search briefings, and the search and seizure itself. Significantly, the ISP deferred completely to Biggs', Barker's, and their subordinates' decisions as to what property to seize. Under similar circumstances, the Seventh Circuit has found this type of "joint action" with the State by a private party was sufficient to meet the under color of law requirement of § 1983.
In Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986), cert. denied, 481 U.S. 1028 (1987), an individual arrested for and acquitted of shoplifting filed a civil rights action against the store, the security guard, the arresting officers, and another person. In discussing whether the private defendants acted under color of law, the Court noted that "[a]lthough private parties call on the aid of state law `without the grounds to do so,' when the private decision may `in no way be attributed to a state rule or state decision' the private parties are not state actors." Id. at 435 (internal citations omitted). "There must be a conspiracy, an agreement on a joint course of action in which the private party and the state have a common goal." Id. (citing Adickes v. S.H. Kress Co., 398 U.S. 144 (1970)). The Court further explained:
Adickes, the last in a line of cases in which restaurateurs and others used the trespass or vagrancy laws to enforce racial segregation long after it became clear that the state may not discriminate on account of race, has become the basis for a rule that shopkeepers are engaged in `state action' when they strike a deal with the police under which the police simply carry out the shopkeepers' directions. If the police promise to arrest anyone the shopkeeper designates, then the shopkeeper is exercising the state's function and is treated as if he were the state.
Id. In Gramenos, the plaintiff was unable to present any evidence to dispute the denials of the police as to any arrangement, plan, or scheme under which they would arrest anyone Jewel wanted arrested. In contrast, the parties in this matter have stipulated that the ISP deferred entirely to the judgment of the Wal-Mart employees and their supervisors to select merchandise to be seized, and that the State did indeed seize all items the Wal-Mart employees identified to be taken. See Joint Statement of Material Facts Not In Dispute ¶¶ 56-57. In other words, there appears to be at least a question of fact about whether the ISP and Wal-Mart employees struck a deal under which the ISP simply carried out Wal-Mart's directions. If that were the case, Biggs and Barker were acting under color of law. As a result, the Court will consider the remaining elements of the Willits' claim.
3. Are Defendants Entitled to Qualified Immunity And/Or Good Faith Defenses?
Biggs and Barker also claim that even if they were acting under color of law, they are entitled to the defenses of qualified immunity and/or good faith. Qualified immunity generally extends to "`government officials performing discretionary functions . . . insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known.'" Malinowski v. DeLuca, 177 F.3d 623, 626 (7th Cir. 1999), (quoting Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994)). Qualified immunity is "`an entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, ___ U.S. ___, 121 S.Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Before addressing the merits of a qualified immunity defense, however, the Court must first determine if Biggs and Barker are even entitled to raise the defense. In making this determination, courts look to the history and to the purposes that underlie government employee qualified immunity. Richardson v. McKnight, 521 U.S. 399, 404 (1997). Although § 1983 on its face does not allow for any immunities, courts will allow qualified immunity where a "tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that `Congress would have specifically so provided had it wished to abolish the doctrine.'" Wyatt v. Cole, 504 U.S. 158, 164 (1992), (quoting Owen v. City of Independence, 445 U.S. 622, 637 (1980)) (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967)).
In addition to the history of qualified immunity, courts also consider the policy justifications for affording such protection. The chief justifications for qualified immunity include: (1) "protecting the public from unwarranted timidity on the part of public officials" and "`encouraging the vigorous exercise of official authority.'" Richardson, 521 U.S. at 408 (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)); (2) preventing lawsuits from distracting officials from their governmental duties, Id. (citing Forsyth, 472 U.S. at 526); and (3) "ensur[ing] that talented candidates [are] not deterred by the threat of damages suits from entering public service," Id. (citing Wyatt, 504 U.S. at 167).
Ordinarily, once a defendant asserts qualified immunity, it is the plaintiffs' burden to show a violation of a clearly established right. See Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.) (although qualified immunity is a defense to a § 1983 suit, the burden of meeting the elements of the two-part test for determining whether immunity applies rests on the plaintiff), cert. denied, 530 U.S. 1243 (2000). In this case, however, there is a question as to whether Defendants are even entitled to assert the defense. The burden is thus upon Defendants to establish the availability of the defense, a burden that they have failed to meet. Indeed, Biggs and Barker have failed to cite to any cases or historical evidence that would support their claim that private individuals conducting a search and seizure have historically enjoyed qualified immunity. Nor do they address the policy justifications for according them such immunity.
Without such evidence, the Court concludes that they have failed to establish that they are entitled to raise the defense of qualified immunity. See Malinowski, 177 F.3d at 627 (defendants similarly failed to cite any cases or historical evidence "to lend support to the notion that private building inspectors have historically enjoyed qualified immunity.").
Defendants also contend that if they are not entitled to raise the defense of qualified immunity, they at least are eligible to raise the defense of good faith. In Wyatt, the Supreme Court left open the possibility that "private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens." 504 U.S. at 168. The Court need not decide whether such a defense is available in this matter, however, because even if it were there is a jury question concerning the subjective intentions of Biggs and Barker. Indeed, despite the scope of the search warrant, during a briefing Biggs declared that Wal-Mart was turning the search into a RICO-type search and seizure. Barker presumably was in attendance at this briefing, and there is no evidence that he disagreed with this stance.
Once the seizure began, Biggs told Knapp that the search was going to be one of a RICO nature.
While it is not entirely clear what Biggs believed a "RICO-type" seizure to be, he apparently was under the impression that such searches were very broad in scope and would permit Wal-Mart to seize anything in Tackle Town that Wal-Mart also sold. As it turned out, Wal-Mart even seized items that it did not sell in its stores. Even if a good faith defense were available to Biggs and Barker — which the Court need not decide — the Court cannot determine as a matter of law that they went into this search and seized items in a good faith attempt to abide by the terms of the search warrant. As a result, the Court must continue its analysis and consider whether the search and seizure may have violated the Willits' constitutional rights.
4. Did Biggs and Barker Violate the Fourth Amendment?
Even assuming Biggs and Barker acted under color of law, that they are not entitled to qualified immunity, and that there is a factual question as to their good faith (assuming such a defense is available), to be liable under § 1983 they must have violated the Willits' constitutional rights. Thus, the Court must determine whether they so exceeded the terms of the search warrant that they violated the Fourth Amendment. Again, the warrant for the search of Tackle Town provided as follows:
stolen property and/or property purported to be stolen, including fishing and sporting goods equipment, gold jewelry, electronic equipment, controlled substances, money, checks, monetary and business records (written and computerized), notes and records related thereto.
Defendants claim that they did not disregard the terms of this warrant by conducting a general search, but instead "selectively seized items that they reasonably believed may have been stolen or purportedly stolen property." Defendants' Brief in Support Motion for Summary Judgment at 18. Defendants claim they were allowed to reasonably interpret the terms of the warrant, and that their interpretation and subsequent seizure was constitutional.
The Court agrees that Defendants were entitled to interpret the warrant. Indeed, the Seventh Circuit has noted that individuals who conduct searches are entitled to rely on search warrants, and are actually required to interpret them. Hessel v. O'Hearn, 977 F.2d 299, 302 (7th Cir. 1992). In addition, Defendants were not "obliged to interpret it narrowly, and they could have been mistaken to do so, because items not in fact necessary for proceedings against the owner can always be returned whereas items not seized are unlikely to be found the next time the police go looking for them." Id. The Seventh Circuit also was careful to caution, however, that it was not suggesting that "a search warrant gives the executing officers a blank check. There are limits to interpretation. Otherwise the constitutional requirement that a search warrant describe with particularity the things to be seized would be a nullity. Flagrant disregard for the terms of the warrant transforms it into a general warrant, which the Fourth Amendment prohibits." Id. (internal citations omitted).
In Hessel, a case upon which Defendants rely, 14 Wisconsin police officers participated in the search of the plaintiffs' premises for evidence of illegal gambling. Id. at 301. The warrant authorized the officers to seize illegal lottery tickets, "money [sic] which is the fruit or has been used in the commission of a crime," and "documents that may constitute evidence of a crime." Id. In addition to illegal lottery tickets, the police also seized legal lottery tickets, an adding machine, the cover of a telephone book, and a number of glasses, jars, and other containers that held small sums of money, along with the monies themselves. Id.
The plaintiffs filed suit under § 1983, claiming that the officers had exceeded the terms of the warrant. The Seventh Circuit disagreed, however, and affirmed the district court's grant of summary judgment in favor of the defendants. The Court found that "[r]easonably construed, the warrant in this case covers all the items seized, even though some of them turned out to be irrelevant to the investigation and were returned." Id.
This Court must now determine whether Biggs and Barker were reasonable in their interpretation of the warrant. On this record, it appears that Biggs and Barker were responsible for supervising the Wal-Mart employees and ensuring proper identification of items for seizure. Barker, however, determined that instead of items stolen or purportedly stolen, items that even were like items from Wal-Mart — apparently whether they came from Wal-Mart or not — were subject to seizure. Biggs also had an expanded view of the terms of the warrant, as he concluded that the search would be a RICO-type search. While the Court need not decide exactly what the scope of a "RICO-type" search would be, it is a reasonable inference from this record that Biggs at least believed it to be broader than the terms of the warrant. Indeed, other Wal-Mart employees also understood that to be the case, as one commented that the decision had been made — presumably by Biggs and Barker, who were supervising the search — that the entire inventory be considered as "ill gotten gains." Another Wal-Mart employee stated that "if Wal-Mart sells it then we are taking it." When Crider confronted some other Wal-Mart employees and asked why they were opening boxes that had shipping labels to Tackle Town on them, they opened the box, dumped the contents and said, "Well, it doesn't say Willits now." Id. ¶ 22. Finally, it is undisputed that Wal-Mart seized items that contained price stickers from stores other than Wal-Mart.
In sum, it appears that Biggs and Barker decided to treat this as a RICO-type seizure, which in their minds apparently was much broader than what the warrant authorized. Other Wal-Mart employees received orders from Biggs and Barker, and at least some of those employees understood that the entire inventory was subject to seizure. Indeed, Wal-Mart did seize items that had stickers on them from stores other than Wal-Mart. It is not clear how many items fell into that category, but the Court need not determine that at this stage. For now, the Court has determined that there is a jury question on whether Biggs' and Barker's interpretation of the warrant authorizing the search of Tackle Town was reasonable.
As a result, the Court DENIES Defendants' Motion for Summary Judgment with respect to the Willits' § 1983 claims against Biggs and Barker. Because factual issues remain as to the reasonableness of the search and seizure, however, the Court also DENIES the Willits' Motion for Partial Summary Judgment on those same claims
5. Can Wal-Mart Be Held Liable Under § 1983?
Wal-Mart claims that it has no liability under § 1983 merely because it employed Biggs and Barker.
In the public employer setting, it is well established that a governmental entity is not vicariously liable for the acts of its employees. See McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995) (Respondeat superior does not suffice to impose § 1983 liability on the City) (citing Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-91 (1978)). The same is true in the private sector. See Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (a private corporation is not vicariously liable under § 1983 for its employees' deprivations of others' civil rights). Instead, to hold Wal-Mart liable, the Willits must show that their injuries were caused by (1) enforcement of an express policy of Wal-Mart, (2) a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law, or (3) a person with final policymaking authority. Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001).
The Willits claim that Biggs and Barker spoke with in-house attorneys for Wal-Mart regarding the scope of the search and seizure to be conducted. According to the Willits, these attorneys authorized a RICO-type search and seizure of Tackle Town. In support of this argument, the Willits point to pages 84-88 of Biggs' deposition. Biggs never testified, however, that Wal-Mart's attorneys discussed with him the scope of the search and seizure at Tackle Town. At best, the evidence reveals that Biggs recommended to Wal-Mart attorney Richard Wells that the company consider pursuing a civil RICO action against Tackle Town. Even if Wells had authorized such an action, that is a far different matter from authorizing a wide-sweeping, general search and seizure of Tackle Town's inventory. Without any evidence that any policymaker of Wal-Mart ever authorized or condoned such a search and seizure, the Willits' claim against Wal-Mart fails as a matter of law. Accordingly, the Court GRANTS Wal-Mart's Motion for Summary Judgment on the Willits' § 1983 claim against it.
B. THE WILLITS' STATE LAW CLAIMS
Defendants also move for summary judgment on the Willits' claims against them under Indiana law, including conversion, interference with a prospective advantage, and illegal seizure. It appears that the Willits have asserted these claims against all three defendants. Although Wal-Mart could not be vicariously liable under § 1983 for the acts of Biggs and Barker, Indiana law does not necessarily afford it similar protection. See Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 148 (Ind.Ct.App. 1999) ("Respondeat superior is the applicable tort theory of vicarious liability. Under respondeat superior, an employer, who is not liable because of his own acts, can be held liable `for the wrongful acts of his employee which are committed within the scope of employment.'") (citations omitted). The Court will now consider those claims.
1. Conversion
The Willits assert that Defendants converted their business property when they seized items outside the scope of the warrant. The elements necessary to establish a civil cause of action for conversion are found in the criminal conversion statute. Anderson v. Indianapolis Indiana AAMCO Dealers Advertising Pool, 678 N.E.2d 832, 838 (Ind.Ct.App. 1997) (citing DBC Capital Fund, Inc. v. Snodgrass, 551 N.E.2d 475, 478 (Ind.Ct.App. 1990)). Under Indiana Code § 35-43-4-3, the criminal conversion statute, "[a] person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion. . . ." Id. The criminal conversion statute has a mens rea element, requiring the unauthorized control to be either knowing or intentional. Catellier v. Depco, Inc., 696 N.E.2d 75, 78 (Ind.Ct.App. 1998) (citing Coffel v. Perry, 452 N.E.2d 1066, 1069 (Ind.Ct.App. 1983)). Mens rea is not, however, an element of tortious conversion. Id.
Defendants' sole basis for moving for summary judgment on this claim is that after the seizure at Tackle Town the ISP — and the ISP only — had complete control and possession of the Willits' property.
Because they never exerted control over the property, according to Defendants, they could not have converted it. Defendants ignore the fact, however, that Biggs and Barker directly supervised and participated in the initial seizure of the inventory. Plaintiffs rely upon this initial seizure of property to support their claim for conversion, and there is at least a question of fact about whether Defendants' control over it was unauthorized. As a result, summary judgment is inappropriate, and the Court DENIES Defendants' motion on the conversion claim.
2. Interference with a Prospective Advantage
The Willits have also asserted a claim for interference with a prospective advantage. Under Indiana law, the elements of a cause of action for tortious interference with a prospective economic advantage include: (1) the existence of a business relationship, (2) the defendant's knowledge of the existence of the relationship, (3) the defendant's intentional interference in the relationship, (4) the absence of any justification, and (5) damages resulting from the defendant's interference. Butts v. OCE-USA, Inc., 9 F. Supp.2d 1007, 1012 (S.D.Ind. 1998) (citations omitted). In addition, "it is critical that the defendant acted illegally in achieving his end." Id. (citations omitted).
The parties disagree about the exact nature of the Willits' claim. In their complaint the Willits asserted as their fourth cause of action "Interference with Prospective Advantage." As a result, the Court will analyze the claim as one for interference with a prospective advantage.
The Court concludes that the Willits have proffered sufficient evidence to at least create a question for the jury on this claim. Taken in the light most favorable to the Willits, the non-moving party on this claim, it is reasonable to infer that they had a business relationship with their customers, that Defendants were aware of the relationship, that Defendants intentionally interfered with that relationship by seizing the Willits' inventory, that Defendants' seizure was without justification, and that the Willits were harmed as a result. The Court has already concluded that a reasonable jury could determine that Defendants exceeded the scope of the warrant. If that were the case, it would amount to "illegal" conduct sufficient to support the Willits' claim for interference with a prospective advantage. As a result, the Court DENIES Defendants' Motion for Summary Judgment on that claim.
3. Illegal Seizure of Property
Finally, the Willits assert claims for illegal seizure under Article 1, Section 11 of the Indiana Constitution and under Indiana Code § 35-33-5-7(e). The Willits fail to explain how they can bring a private cause of action for damages under the Indiana Constitution. Judge Tinder of this Court has previously considered the issue, and ultimately declined to recognize an implied right of action for damages directly under the Indiana Constitution, at least absent a clear indication from Indiana courts that such an action is available. See Baker v. Washington Board of Works, 2000 WL 33252101, *8 (S.D.Ind. June 8, 2000); Boczar v. Kingen, 2000 WL 1137713, *25 (S.D.Ind. March 9, 2000), aff'd., 2001 WL 468254 (7th Cir. May 1, 2001); Pearson v. Indiana High School Athletic Association, 1999 WL 33117389, *5 (S.D.Ind. February 8, 2000). This Court agrees with the reasoning of Judge Tinder, and similarly declines to recognize an implied right of action under Article 1, Section 11 of the Indiana Constitution. The Court GRANTS Defendants' Motion for Summary Judgment on that particular claim.
That provision of Article 1, which is entitled "Unreasonable search or seizure; warrant," provides as follows:
Section 11. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
The Willits' other claim is under the Indiana Code, which provides that:
A person or persons whose property is wrongfully damaged or whose person is wrongfully injured by any law enforcement officer or officers who wrongfully enter may recover such damage from the responsible authority and the law enforcement officer or officers as the court may determine. The action may be filed in the circuit court, superior court or county court in the county where the wrongful entry took place.
It is not clear how Defendants can be held liable under this statute, which on its face only applies to "law enforcement officers." The statute itself does not define that term, nor do the parties provide the Court with any other definition. The Court notes that other provisions of the Indiana Code have defined "law enforcement officer," and Defendants would not be covered under either definition. For example, Indiana Code § 35-41-1-17 provides:
§ 17. (a) "Law enforcement officer" means:
(1) a police officer, sheriff, constable, marshal, or prosecuting attorney; (2) a deputy of any of those persons; (3) an investigator for a prosecuting attorney; (4) a conservation officer; or (5) an enforcement officer of the alcoholic beverage commission.
In addition, Indiana Code § 5-2-1-2, which is included in the chapter dealing with mandatory training for law enforcement officers, defines the term as follows: ". . . an appointed officer or employee hired by and on the payroll of the state or any of its political subdivisions who is granted statutory authority to enforce all or some of the penal laws of the state of Indiana and who possesses, with respect to those laws, the power to effect arrests for offenses committed in his presence."
Defendants would not fall under either of these definitions. Although the definitions are not necessarily applicable to the provision under which the Willits have sued, the Court believes that they provide a good indication of what the Indiana legislature considers to be a "law enforcement officer." After considering these definitions and examining the plain language of Indiana Code § 35-33-5-7(e), the Court concludes that Defendants are not "law enforcement officers." As a result, the Willits' claim fails as a matter of law and the Court GRANTS Defendants' Motion for Summary Judgment.
IV. CONCLUSION
In sum, the Court DENIES Plaintiffs' Motion for Partial Summary Judgment on their § 1983 claims, and DENIES Defendants' Motion for Summary Judgment on that same claim as it applies to Biggs and Barker. The Court also DENIES Defendants' Motion for Summary Judgment on Plaintiffs' claims for conversion and interference with a prospective economic advantage. The Court GRANTS Defendants' Motion for Summary Judgment on Plaintiffs' § 1983 claims against Wal-Mart. Finally, the Court also GRANTS Defendants' Motion for Summary Judgment on Plaintiffs' claims for illegal seizure under Indiana law and the Indiana Constitution.
IT IS SO ORDERED.