Opinion
IP01-1674-C-K/T
August 13 2003
ENTRY ON SUMMARY JUDGMENT MOTIONS AND MOTIONS TO STRIKE AND ORDER CORRECTING CAPTION
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiffs brought this case under 42 U.S.C. § 1983, alleging Fourth Amendment violations and state law claims. The Defendants seek summary judgment and to strike portions of the evidence relied on by the Plaintiffs in opposing summary judgment.
I. Order Correcting Caption
It is noted that due to what was apparently inadvertence, the Defendant Burns International Security Services Corporation ("Burns") may not have been included in the caption of the Plaintiffs' Complaint. (It is unclear whether Burns was not named in the caption or whether an error was made in naming "Dustin Crider, an employee of".) However, Burns clearly is a Defendant named in the Complaint, has been served, counsel has appeared on its behalf, and Burns has moved for summary judgment. No one disputes that Burns is a Defendant in this case, least of all Burns. But because Burns was not clearly identified as a Defendant in the caption, Burns has not made it onto the front of the court's docket sheet.
The Clerk is ORDERED to add Defendant Burns International Security Services Corporation to the front of the docket sheet and to amend the caption in all papers from this point forward to clearly include Burns International Security Services Corporation as a Defendant. Burns is DEEMED a named Defendant in the caption of all papers in the court file which precede this entry. It is also ORDERED that all captions on any papers entered, filed or submitted in this case from this point forward shall include Burns as a Defendant as long as Burns remains in this case.
II. Motions to Strike
The Defendants Jane Doe a/k/a Christie, Oshkosh B'Gosh Retail, Inc. ("Oshkosh"), Angela Powers and Ashley Decker move to strike portions of the Plaintiffs' designation of materials in opposition to the summary judgment motions. The Defendants Kraig Weisner and James Pridgen join in the motion. The motion asserts that the purported written statements of former Oshkosh employees Nikki Lovelace, Kylie McKay and Margo Williams are inadmissible as hearsay and because of a lack of authentication. The Plaintiffs argue that the statements fall under a hearsay exception.
Even if the statements fall within an exception to the hearsay rule, they are nonetheless inadmissible. Authentication and hearsay are two different concepts. Authentication is a condition precedent to admissibility. Fed.R.Evid. 901(a); Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001) (when considering a summary judgment motion the "court may consider any material that would be admissible or usable at trial, including properly authenticated and admissible documents or exhibits") (quotation omitted). The requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). The Plaintiffs offer no evidence to support a finding that the statements they offer actually were written by the former OshKosh employees. Thus, the statements are unauthenticated and, therefore, inadmissible. The motions to strike are GRANTED.
III. Background Facts
These facts are undisputed or if disputed viewed in the light most favorable to the Plaintiffs as the evidentiary materials in the record permit. The Plaintiffs' claims are based on events which occurred on November 11, 2000, at an outlet mall in Edinburgh, Indiana. At all relevant times, Defendant Kraig Weisner was a Bartholomew County Sheriff's Deputy, Defendant James Pridgen was a Bartholomew County Sheriffs Reserve Deputy, and both were acting within the scope of their employment.
The Plaintiffs Nola Alexander, Francis Johnson, and Marva Wilson, African-American females, visited and made purchases at many stores in the mall. The Plaintiff Sanford White, Ms. Wilson's young child, accompanied them. The Plaintiffs went to the Oshkosh store. Ms. Johnson did not shop there; she waited on a bench at the front of the store. Two Oshkosh employees, Ashley Decker and Nikki Lovelace, thought they saw Oshkosh tags hanging out of one of the women's shopping bags. They reported this to the store supervisor, Angela Powers, who called mall security, the Defendant Burns International Security Services Corporation ("Burns"). Ms. Powers did not speak with any person, but merely entered a security code number.
When referring to "the Plaintiffs" the court refers to the adult Plaintiffs.
The Plaintiffs assert that this fact is disputed. (See [Burns'] Statement Material Facts Not in Dispute Pls.' Resp. ¶ 6.) However, since Burns has supported this assertion with an appropriate citation to an evidentiary submission (see Powers Dep. at 20) and the Plaintiffs have not controverted it with any well-supported factual assertion, the fact is assumed to exist without controversy. S.D. Ind. L.R. 56(e).
The record does not reveal whether the security code number indicated that there had been a shoplifting incident at the store or simply requested assistance from security without any specification regarding the reason for the request. As all reasonable inferences are to be drawn in favor of the Plaintiffs, the court assumes that the call merely requested security's assistance and did not indicate why assistance was needed, that is, did not indicate that someone was suspected of or was shoplifting from the store.
Dustin Crider, a security guard employed by Burns, responded to the call. Upon his arrival at the store, Ms. Powers told him that she had not seen anything but the employees were suspicious of "the three women that had the little boy" (Powers Dep. at 33), that is, the Plaintiffs. She pointed the Plaintiffs, who were still in the store, out to Mr. Crider. He left the store, returned approximately ten minutes later, and asked Ms. Powers whether she had any more information. She said that she did not because the women were still in the store and were being watched. Mr. Crider left a second time. Ms. Alexander and Ms. Wilson subsequently paid for their merchandise, and the Plaintiffs left the store at approximately 8:10 p.m. without incident.
Mr. Crider was a Defendant, but the claims against him were dismissed pursuant to Fed.R.Civ.P. 4(m).
At approximately 8:30 p.m. Mr. Crider contacted the Bartholomew County Sheriffs Department and reported that three African-American females were being accused of shoplifting. Deputy Weisner was dispatched to the mall in response. Upon arrival he met Mr. Crider in front of the Hush Puppies store. Mr. Crider told Deputy Weisner that Oshkosh employees reported that there had been a shoplifting and he was following three suspects. He later pointed out the suspected shoplifters to the deputy as they left the Hush Puppies store. The deputy asked Mr. Crider whether there were any witnesses to the shoplifting incident, and the guard said that there were.
At approximately 8:35 p.m. Mr. Crider stopped the Plaintiffs as they were leaving the Hush Puppies store. Immediately thereafter, Deputy Weisner approached them, told them that they had been accused of shoplifting and asked them for identification. The Plaintiffs denied shoplifting and gave their identifications to the deputy. Deputy Weisner returned to his vehicle and had dispatch check for any outstanding warrants on the Plaintiffs; there were none. This process took a few minutes. Then he asked the Plaintiffs if they would wait with Mr. Crider and asked Mr. Crider to "stand by at that location" while he went to the Oshkosh store to gather more information and any witnesses to the alleged shoplifting. (Weisner Dep. at 13.)
While Deputy Weisner was gone the Plaintiffs sat on a bench outside the Hush Puppies store and Mr. Crider waited with them. One of the Plaintiffs asked Mr. Crider if they could go inside to get out of the cold, and he answered, "no."
At the Oshkosh store Deputy Weisner spoke with Ms. Powers, who reported that she had not seen anything. He then spoke with Ms. Decker and Ms. Lovelace, both of whom said that they had not observed an actual shoplifting incident but informed him that they had seen Oshkosh tags coming out of one of the Plaintiffs shopping bags. Deputy Weisner requested Ms. Decker to accompany him to identify the suspected shoplifters. She agreed and went with him. Ms. Decker identified the Plaintiffs as the three customers who were in the store and identified Ms. Wilson as the one who had the bag in which she saw Oshkosh tags.
Deputy Weisner then advised the Plaintiffs that the witness said she observed some Oshkosh tags in Ms. Wilson's Gap bag. Ms. Wilson said that he could look through her Gap bag and handed the bag to him. He looked through that bag, and all of the merchandise inside matched her receipt. The deputy asked to see Ms. Wilson's other bags, and she handed those to him as well. He began to look through them, but was interrupted when Ms. Alexander said they were cold and asked if they could go somewhere. Deputy Pridgen, who had arrived by this time, transported the Plaintiffs in his vehicle to the mall security office.
At the mall security office each Plaintiff gave her permission and/or consent for Deputy Weisner to search her shopping bags, in her presence. Deputy Weisner and Ms. Decker searched the Plaintiffs' bags. The deputy had requested Ms. Decker's assistance in matching the merchandise to the receipts. Ms. Decker pulled at least some of the merchandise out of the shopping bags and read the numbers from the tags while Deputy Weisner marked an "X" by the corresponding numbers on the receipts. Together they verified that the items from the bags matched the store receipts.
Ms. Wilson's Oshkosh bag was searched first, next her Gap bag was completely searched, and then all of her other shopping bags were searched. Ms. Wilson testified that she did not object to the search because she "wanted to get it over with" and "hadn't did nothing." (Wilson Dep. at 49.) Deputy Weisner testified that he did not ask Ms. Wilson for her bags; she volunteered for the search of her bags. (Weisner Dep. at 20.) Next, Ms. Alexander gave her bags to Deputy Weisner "[b]ecause [she] had nothing to hide." (Alexander Dep. at 41.) She testified that Deputy Weisner did not have to ask for her bags, she just handed them to him. (Id.) Her bags were searched. Then Deputy Weisner asked Ms. Johnson for her bags, and she, too, gave them to him as she "didn't have anything to hide." (Johnson Dep. at 47.) All the merchandise from the Plaintiffs' shopping bags matched their store receipts.
Ms. Wilson informed Deputy Weisner that she had placed some shopping bags in her trunk and gave permission for a search of her trunk and the bags there. Deputy Weisner sent Deputy Pridgen and the Plaintiffs to Ms. Wilson's car. Mr. Crider did not accompany them. Deputy Pridgen searched the bags in the trunk and looked into the back and front seats of the car, but did not enter the car. Ms. Wilson did not object to any aspect of this search. Deputy Pridgen reported to Deputy Weisner that all of the merchandise in the trunk matched up with store receipts. Deputy Weisner joined the others at Ms. Wilson's car, returned the Plaintiffs' identifications, gave them his business card as well as Ms. Powers', apologized for the inconvenience and told the Plaintiffs that they could leave. The entire incident, from the time the Plaintiffs were initially stopped to the time they left the mall, lasted approximately 90 minutes.
IV. Discussion
The Defendants move for summary judgment on all claims. Summary judgment may be granted "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." Fed.R.Civ.P. 56(c). When considering a summary judgment motion the court views the facts and draws all reasonable inferences in the light evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts. Payne v. Pauley, — F.3d —, No. 02-2674, 2003 WL 21540424, at *2 (7th Cir. July 9, 2003). The court may consider any evidence that would be admissible at trial. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). The evidence does not have to be in admissible form but must be admissible in content. Payne, 2003 WL 2150424, at *6 n. 3.
A. The Deputies
The Plaintiffs' bring their claims against the deputies under § 1983 alleging violations of their Fourth Amendment rights to be free from unreasonable searches and seizures. The Plaintiffs also allege state law claims of intentional infliction of emotional distress and false imprisonment.
The deputies contend they are entitled to summary judgment because, inter alia: (1) they had probable cause to detain and search the Plaintiffs; (2) the Plaintiffs consented to the searches; (3) there is no evidence or allegation of a custom, policy or practice; (4) they are entitled to law enforcement immunity under the Indiana Tort Claims Act ("ITCA"); and (5) probable cause and consent negate the claims of false imprisonment.
The deputies first contend that they had probable cause to detain and search the Plaintiffs based on the information from the Oshkosh employees and Mr. Crider that they had shoplifted. The Plaintiffs respond that Deputy Weisner lacked probable cause or, for that matter, reasonable suspicion, to stop and detain them and search their shopping bags.
The existence of probable cause to arrest bars a § 1983 claim for unlawful arrest and detention. See, e.g., Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998); Juriss v. McGowan, 957 F.2d 345, 349 n. 1 (7th Cir. 1992). "Probable cause for an arrest exists if an officer reasonably believes, in light of the facts and circumstances within his knowledge at the time of the arrest, that the suspect has committed, or is committing, an offense." Thompson v. Wagner, 319 F.3d 931, 934 (7th Cir. 2003); Neiman v. Keane, 232 F.3d 577, 580 (7th Cir. 2000). Whether probable cause exists generally is a jury question; however, "'when there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them,' a court may decide the issue." Neiman, 232 F.3d at 580 (quoting Booker v. Ward, 94 F.3d 1052, 1058 (7th Cir. 1996) (citation and internal quotations omitted)); cf. Pliska v. City of Stevens Point, Wis., 823 F.2d 1168, 1177 (7th Cir. 1987) (concluding that question whether an officer has reasonable suspicion for investigatory stop is for the jury where reasonable minds could draw different conclusions from the evidence).
The deputies rely on Tangwall v. Stuckey, 135 F.3d 510 (7th Cir. 1998), and Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986), which stand for the rule that "'[w]hen an officer has received his information from some person — normally the putative victim or an eye witness — who it seems reasonable to believe is telling the truth, he has probable cause.'" Tangwall, 135 F.3d at 519 (emphasis omitted) (quoting Gramenos, 797 F.2d at 439); see also Beauchamp v. City of Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003). In Gramenos a store security guard observed Gramenos putting items in his pocket, trying to leave the store without paying for them and then running through the aisles scattering the items when confronted. Gramenos, 797 F.2d at 433. The guard detained Gramenos and called the police who arrested Gramenos based on the guard's report, despite Gramenos' denial of any wrongdoing. Gramenos was acquitted of shoplifting and then sued the guard and the arresting officers under § 1983. The district court granted summary judgment to the defendants. Id. at 434, 438. On appeal, the Seventh Circuit concluded that the guard's identification of Gramenos as a shoplifter was sufficient to provide probable cause for his arrest. Id. at 439-40. The court held that "[w]hen an officer has received his information from some person — normally the putative victim or an eye witness — who it seems reasonable to believe is telling the truth, he has probable cause." Id. at 439. The court explained:
Police have reasonable grounds to believe a guard at a supermarket. We need not say that police always are entitled to act on the complaint of an eyewitness; a guard is not just any eyewitness. The chance that the complainant is pursuing a grudge, a risk in believing an unknown witness, is small in an institutional setting. The guard who pursues a private agenda may be fired and disgraced; there are automatic penalties that the police are entitled to consider. The store will insist that guards err on the side of caution. It does not want to embarrass and anger an honest customer — not only because this is bad for business but also because a false charge of crime may lead to costly tort litigation under state law. Jewel Companies is not judgment-proof; its self-interest protects shoppers from unsubstantiated charges, and the police are entitled to consider this, too.Id. (citation omitted).
In Tangwell, the Seventh Circuit rejected the argument that the holding of Gramenos was limited to identifications provided by security guards and other eyewitnesses subject to "institutional safeguards." 135 F.3d at 519. The court stated that the question is "whether it seems reasonable for the police to believe that the putative victim or eyewitness was telling the truth, and it is the plaintiffs initial burden in a § 1983 case to prove the unreasonableness of an officer's belief[.]" Id. (quotation and citations omitted).
On reviewing the record, the court concludes that a reasonable jury could reach but one conclusion in this case: Deputy Weisner had probable cause to initially stop and detain the Plaintiffs. He was dispatched to the mall in response to a call from the mall security guard that three African-American females had been accused of shoplifting; upon his arrival at the mall the guard told him that there had been a shoplifting at the Oshkosh store and he was following three suspects; the guard pointed out the Plaintiffs, three African-American females, to the deputy and indicated that there were witnesses to the shoplifting incident at the store.
Mr. Crider's identification of the Plaintiffs as suspected shoplifters was sufficient to provide probable cause for Deputy Weisner to stop and detain them. See Tangwell, 135 F.3d at 519; Gramenos, 797 F.2d at 439. Like the store security guard in Gramenos, Mr. Crider, the mall security guard, was subject to institutional safeguards which made it reasonable for Deputy Weisner to believe that he was reporting the truth. And, like the store in Gramenos, the mall security had an interest in protecting shoppers from unsubstantiated charges. Deputy Weisner was entitled to consider these safeguards and interest when deciding whether to believe Mr. Crider's report.
After Deputy Weisner initially stopped the Plaintiffs and asked them to wait with Mr. Crider, he obtained further information from the Oshkosh employees-eyewitnesses to the alleged shoplifting. The Plaintiffs argue that there is a genuine issue of material fact about what the OshKosh employees communicated to Deputy Weisner. They first rely on alleged contradictions in the employees' testimony and the purported written statements of Lovelace, McKay and Williams. Because the written statements have been stricken (see supra at 2), there is no such contradiction.
The Plaintiffs next argue that the record is silent with respect to the specific information communicated by the Oshkosh employees to Deputy Weisner, which prevents a finding of reasonable reliance on that information. The Plaintiffs, however, acknowledge Deputy Weisner's testimony that he talked to Ms. Decker and Ms. Lovelace and they did not observe an actual shoplifting incident. The deputy could not know this unless these employees told him so. Thus, although the record does not address whether Ms. Decker or Ms. Lovelace told Deputy Weisner about her uncertainty of seeing Oshkosh tags or another store's tags in the shopping bag, the record does establish that he knew that neither witness observed an actual shoplifting incident. Also, Ms. Decker went with the deputy to identify which of the Plaintiffs she suspected of shoplifting, identified the Plaintiffs as the three customers who were in the store, and identified Ms. Wilson as the one who had the bag with an Oshkosh tag. The question is not whether Deputy Weisner could have conducted a more thorough investigation, but whether he had the right to rely on the information given him by the security guard and the Oshkosh employees. Cf. Gramenos, 797 F.2d at 440 ("the fourth amendment does not define as probable cause whatever good police practice requires").
Deputy Weisner could reasonably rely on the information from the employees because it was reasonable for him to believe that they were telling the truth. See Gramenos, 797 F.2d at 439. They were just not any eyewitnesses, and the risk of believing them was small because they were subject to institutional safeguards. The deputy was entitled to consider that making a false accusation would be contrary to their interests. See id.
Even if after talking with the Oshkosh employees Deputy Weisner lacked probable cause to stop and detain all the Plaintiffs, the deputies would still be entitled to summary judgment. Probable cause must exist for a formal arrest. See Smith v. Ball State Univ., 295 F.3d 763, 768 (7th Cir. 2002). The Plaintiffs, however, were not arrested. A Terry stop, Terry v. Ohio, 392 U.S. 1 (1968) (a brief detention for the purpose of investigating criminal activity, Smith, 295 F.3d at 768 n. 3), carries a less demanding standard: an officer must have a reasonable suspicion based on articulable facts that a defendant "'has been, is, or is about to be engaged in criminal activity.'" Id. (quoting United States v. Smith, 3 F.3d 1088, 1095 (7th Cir. 1993)). The record leaves no doubt and the Plaintiffs have not challenged that the less demanding standard for a Terry stop is satisfied in this case with respect to all three Plaintiffs.
Deputy Weisner had a reasonable suspicion based on articulable facts to stop and detain all the Plaintiffs for suspected shoplifting even after he learned that the Oshkosh employees had not witnessed an actual shoplifting incident and only Ms. Wilson was observed with Oshkosh tags in her shopping bag. The undisputed evidence is that Deputy Weisner was informed by the guard that there were three shoplifting suspects who were identified as the Plaintiffs and also was told by Ms. Decker that the Plaintiffs were the three customers who were in the store together. Though Ms. Decker and Ms. Lovelace informed him that they did not observe an actual shoplifting incident, they told him that they had seen Oshkosh tags coming out of one of the woman's shopping bags, and Ms. Decker identified that woman as Ms. Wilson. The fact that no Oshkosh tags were seen in the bags of Ms. Alexander and Ms. Johnson did not eliminate the reasonable possibility that the merchandise with the Oshkosh tags could have been transferred to one of their bags. Therefore, it was reasonable for Deputy Weisner to stop and detain all three Plaintiffs, even though he knew no one had observed an actual shoplifting incident and that only Ms. Wilson had been observed with Oshkosh tags in her shopping bag. See J.C. Penney Co. v. Ruth, 982 S.W.2d 586, 589 (Tex.App. 1998) (trial court correctly concluded that the evidence justified a stop and arrest of store customer who was shopping with her friend where the store security guard watched them leave the store and had probable cause to believe that one of them was leaving without paying for an item); Jenkins v. Wal-Mart Stores, Inc., 601 So.2d 21, 24 (La.Ct.App. 1992) (holding store security officer had reasonable cause to detain minor for suspected shoplifting where the officer saw two boys enter the store, watched them look around as if "checking out" the possibilities of being caught shoplifting and saw one of them put merchandise in his pants, giving him reason to believe the two boys were working together).
When asked why he searched the bags of Ms. Alexander and Ms. Johnson since Ms. Decker did not say that she had seen tags coming out of their bags, Deputy Weisner testified, first, that they allowed the search, and second, because the Plaintiffs were together "there was a possibility things could have been shifted around." (Weisner Dep. at 21.)
The court finds that the information received by Deputy Weisner from the mall security guard and the Oshkosh employees-witnesses whom it was reasonable for the deputy to believe were telling the truth-gave him reasonable grounds to believe that the Plaintiffs were involved in a shoplifting incident. Cf. Gramenos, 797 F.2d at 439 ("Police have reasonable grounds to believe a guard at a supermarket."). The Plaintiffs have pointed to nothing in the record to create a factual issue as to whether Deputy Weisner's belief of the report of Mr. Crider or the Oshkosh employees was unreasonable. Therefore, the court concludes that the deputies had reasonable suspicion (if not probable cause) to stop and detain the Plaintiffs while they investigated the alleged shoplifting incident.
Even if the deputies lacked probable cause or reasonable suspicion to detain any of the Plaintiffs, the deputies would be entitled to qualified immunity because a reasonable officer could have believed that the stop and detention of all Plaintiffs was lawful in light of the information known to him at the time.
The existence of probable cause or reasonable suspicion precludes the Plaintiffs' claims against the deputies for unreasonable seizures. See, e.g., Kelley, 149 F.3d at 646. The court therefore concludes that the deputies should be GRANTED summary judgment on the Plaintiffs' § 1983 claims based on unreasonable seizures.
The deputies also are entitled to summary judgment on the Plaintiffs' claims based on alleged unlawful searches because the Plaintiffs voluntarily consented to the searches. "[T]he question whether a consent to a search was in fact Voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); see also Valance v. Wisel, 110 F.3d 1269, 1278 (7th Cir. 1997). Factors to be considered include: "the age, education, and intelligence of the individual providing consent; whether he was advised of his rights; how long he was detained prior to giving consent; whether he immediately consented, or whether the police officers made repeated requests for consent; the existence or absence of physical coercion; and whether the individual was in custody." Valance, 110 F.3d at 1278 (citations omitted). In a § 1983 action, if the defendant offers evidence that the plaintiff consented to the search, the plaintiff must offer evidence that she never consented or that her consent was involuntary because it was given under duress or coercion. Id. at 1279.
It is not alleged that the initial search of Ms. Wilson's Gap bag was unlawful. Even if it had been, the uncontradicted evidence is that Ms. Wilson told Deputy Weisner he could look through her Gap bag and handed it to him, so such a claim would fail.
The deputies have offered evidence that each Plaintiff consented to the search of her shopping bags and that Ms. Wilson consented to the search of her vehicle and the bags there. The deputies offer evidence that after Deputy Weisner had looked through Ms. Wilson's Gap bag but before the group moved to the mall security office, he asked Ms. Wilson if he could look through her other shopping bags and she handed them to him, implying her consent to search. The deputies also offer evidence that once inside the mall security office, each Plaintiff gave her permission or consent for a search of her shopping bags. Indeed, the evidence is that Deputy Weisner did not have to ask either Ms. Wilson or Ms. Alexander for their bags; they voluntarily handed them to him for the search.
The Plaintiffs concede that each of them gave their consent to search, but argue that their consent was not freely given. They claim that their consent was coerced because their encounter with the deputies was not consensual and they were not free to leave since Deputy Weisner retained their identifications. (See Deputies' Statement of Material Facts Not in Dispute Pls.' Resp. at 18.) Even assuming that the Plaintiffs' were not free to leave until their identifications were returned, this fact is not dispositive of the question whether their consent to the searches were voluntary. See, e.g., Florida v. Royer, 460 U.S. 491, 501 (1983) (in the context of a lawful Terry stop the defendant's voluntary consent to search renders search valid); United States v. James, 40 F.3d 850, 876 (7th Cir. 1994) ("The fact that [the defendant] was under arrest at the time she consented to the search of her apartment, although relevant to the issue of whether her consent was voluntary, is not dispositive."), vacated on other grounds, 516 U.S. 1022 (1995); United States v. McCarthur, 6 F.3d 1270, 1277 (7th Cir. 1993) ("although the encounter had ripened into an investigatory stop when [the officer] advised [the defendant] that they planned to detain her bag for a canine sniff, that fact alone did not vitiate her consent to a search of the bag.").
The deputies argue that the encounter was consensual, the Plaintiffs were free to leave, and the return of their identifications was contingent on the Plaintiffs' readiness to leave. (See Reply of Bartholomew County Defs. at 5-6.) It is undisputed, however, that Deputy Weisner kept the Plaintiffs' identifications until the end of the encounter; that when he first approached the Plaintiffs he told them they were accused of shoplifting; he asked them to wait with the security guard and told the guard to stand by with them; and there is no indication that the Plaintiffs were ever advised that they were free to leave. Under these circumstances, a reasonable inference could be drawn that a reasonable person would not feel free to leave. See, e.g., Florida v. Royer, 460 U.S. 491, 501-02 (1983) (1983) (concluding the defendant was effectively seized when the officers identified themselves as narcotics agents, told him he was suspected of transporting narcotics and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating that he was free to depart); United States v. Miller, 589 F.2d 1117, 1127 (1st Cir. 1978) (concluding defendant not free to leave where deputy retained his driver's license and registration); see also United States v. Hendricks, 319 F.3d 993, 1000 (7th Cir. 2003) (explaining that "an encounter is not consensual when a reasonable person would not feel free to leave").
Though there is no evidence that the Plaintiffs were ever advised of their right to refuse their consent to the searches, the evidence is that they were not immature youth (they had been employed in housekeeping with Riley Hospital from between 15 and 25 years (see Wilson Dep. at 7; Johnson Dep. at 8-9; Alexander Dep. at 8-9)); and they were not detained for any length of time before they gave their consent (the Plaintiffs believe the entire encounter from their initial stop to the time they left the mall was approximately 90 minutes). In addition, repeated requests for their consent were not made; rather, consent was immediately given, and, in the case of Ms. Wilson and Ms. Alexander, they simply handed their bags to Deputy Weisner without having to be asked for them. Further, there is no evidence to raise an inference that either of the deputies or the security guard displayed their weapon, used any language or a tone of voice indicating that compliance with the request to search might be compelled, or used any physical coercion to obtain the Plaintiffs' consents.
The court therefore finds that the undisputed evidence establishes that the Plaintiffs' consents to the searches of their shopping bags and Ms. Wilson's consent to the search of her vehicle and the bags there were voluntary and untainted by any coercion or duress. Cf. United States v. Jerez, 108 F.3d 684, 705 (7th Cir. 1997) (Coffey, J., dissenting) (consent may be tainted by police coercion or compulsion "if a citizen is confronted with the threatening presence of several [i.e., more than two] officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.") (quotation omitted). Thus, the deputies will be GRANTED summary judgment on the § 1983 claims based on alleged unlawful searches.
It is reiterated that the undisputed evidence reveals that Ms. Wilson volunteered to Deputy Weisner that she had some shopping bags in her trunk, and gave permission for the search of her trunk and bags in it. Though there is evidence that Deputy Pridgen also looked into the passenger compartment of the vehicle, he did not enter it. His looking into the passenger compartment would not constitute a search.
The deputies are entitled to summary judgment on the official capacity claims as well. To prevail on a claim against a municipal officer in his official capacity, a plaintiff must be able to prove a policy, custom or practice that caused the alleged constitutional deprivation. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); City of Canton v. Harris, 489 U.S. 378, 385-86 (1989). There being no underlying constitutional deprivation and there being no evidence of any policy, custom or practice that caused the alleged deprivation; the deputies will be GRANTED summary judgment on the § 1983 official capacities claims.
The deputies should be granted summary judgment on the claims of false imprisonment. If a defendant has probable cause to arrest the plaintiff or reasonable suspicion to make a Terry stop, or if the plaintiff cannot show an absence of probable cause or reasonable suspicion, then the plaintiffs false imprisonment claim fails. See Miller v. City of Anderson, 777 N.E.2d 1100, 1104 (Ind.Ct.App. 2002) (holding that officers' actions in arresting plaintiff did not constitute false arrest or false imprisonment where they had probable cause to arrest her), trans. denied.] Chestnet v. K-Mart Corp., 529 N.E.2d 131, 134 (Ind.Ct.App. 1988) ("If a detention is lawful, by definition, it cannot constitute false imprisonment."); cf. Turner v. Sheriff of Marion County, 94 F. Supp.2d 966, 995 (S.D. Ind. 2000) (stating in discussion of false arrest under Indiana law: "An arrest is false if it is accomplished without the required legal basis, e.g., probable cause for a custodial arrest and reasonable suspicion for a Terry stop."). The court's conclusion that the deputies had at least reasonable suspicion to stop and detain the Plaintiffs bars their claims for false imprisonment against the deputies. Summary judgment will be GRANTED the deputies on these claims.
The deputies will be GRANTED summary judgment on the Plaintiffs' claims of intentional infliction of emotional distress as well. The law enforcement immunity provision of the ITCA provides that "[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 or failure to adopt or enforce a law (including rules and regulations), unless the enforcement constitutes false arrest or false imprisonment." Ind. Code § 34-13-3-3(8); see also City of Anderson v. Davis, 743 N.E.2d 359, 363 (Ind.Ct.App. 2001).
The Plaintiffs have not responded to the deputies' argument that the ITCA shields them from liability on the intentional infliction of emotional distress claims. The deputies were acting within the scope of their employment at all relevant times. The Plaintiffs rightly do not challenge whether their alleged emotional distress occurred as a result of law enforcement activities — the deputies' actions in investigating a suspected shoplifting by detaining the Plaintiffs and searching their shopping bags. And, as stated, the detention was not a false imprisonment. Therefore, the deputies have immunity from the Plaintiffs' intentional infliction of emotional distress claims. See, e.g., Miller, 777 N.E.2d at 1103-04 (granting summary judgment to defendant police officers on negligence claim under ITCA because officers were engaged in law enforcement duties).
In addition, the deputies' actions in detaining the Plaintiffs and searching their bags cannot be described as even approaching the kind of outrageous behavior that exceeds all bounds of decency usually tolerated by a decent society. This is yet another reason for granting summary judgment in the deputies' favor on these claims.
B. Burns
The Plaintiffs' claims against Burns are for negligence, including the negligent hiring, training and retention of Mr. Crider, and for intentional infliction of emotional distress and false imprisonment under the theory of respondeat superior. Burns argues that it should be granted summary judgment because Mr. Crider did not act negligently and did not commit the acts giving rise to the claims for intentional infliction of emotional distress or false imprisonment.
An employer may be held liable for the negligent acts of its employee under a theory of respondeat superior or under a theory that the employer was negligent in hiring, training, or retaining the employee. See, e.g., Stropes v. Heritage House Children's Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989) (an employer may be held liable under the theory of respondeat superior for the wrongful acts of its employee committed within the scope of employment); Shipley v. City of South Bend, 175 Ind. App. 464, 469 (Ind.Ct.App. 1978) (concluding that once the jury found that the police officer's actions in shooting the plaintiff did not constitute assault and battery and were not unreasonable, the alleged negligence of the city in hiring and training the officer was no longer at issue). Burns contends that there is no evidence that Mr. Crider acted negligently and that the Plaintiffs have admitted that he acted reasonably under the circumstances. However, viewing the record in the light most favorable to the Plaintiffs and drawing all reasonable inferences in their favor, the court finds that the Plaintiffs have raised a genuine issue of material fact as to whether Mr. Crider acted negligently.
Burns asserts the Plaintiffs concede that it was reasonable for Mr. Crider to stop them and search their bags. Burns overlooks a very important aspect of the testimony of Ms. Johnson and Ms. Wilson, however. They testified that Mr. Crider acted reasonably in stopping them if he was told they had been shoplifting. (See Johnson Dep. at 74 (testifying the security guard did nothing wrong if someone had told him the Plaintiffs were accused of shoplifting); Wilson Dep. at 107 (it was reasonable for the security guard to stop them if he was told they were shoplifting)). Though Ms. Alexander did not also qualify her testimony with such an "if, " Burns offers no authority to support the proposition that her lay opinion regarding the reasonableness of Mr. Crider's actions is dispositive of her legal claims against Burns.
Burns contends that Mr. Crider's actions cannot subject him or it to tort liability, relying exclusively on Conn v. Paul Harris Stores, Inc., 439 N.E.2d 195 (Ind.Ct.App. 1982). Conn held that a defendant may not be held liable in tort "when the defendant does nothing more than detail his version of the facts to a policeman and ask for his assistance, leaving it to the officer to determine what is the appropriate response, at least where his representation of the facts does not prevent the intelligent exercise of the officer's discretion." Id. at 199. The court concludes that the rule from Conn does not apply to Mr. Crider or Burns because there is a genuine dispute of fact regarding the divergence from information Mr. Crider had and the information he communicated to the Sheriffs Department and Deputy Weisner.
The record reveals that the following with respect to the information communicated to or known by Mr. Crider: Ms. Powers contacted Burns and entered a security code number; Mr. Crider went to Oshkosh where Ms. Powers told him she had not seen anything but the employees were suspicious of the Plaintiffs; and the Plaintiffs were still in the store at the time; on his return to the store ten minutes later for more information, Ms. Powers indicated that she had none because the Plaintiffs were still in the store and were being watched. As explained in the Background Facts section, because all reasonable inferences are drawn in favor of the Plaintiffs, it must be assumed that Ms. Powers' call to mall security merely requested assistance and did not indicate that there was a shoplifting or suspected shoplifting at the store. Thus, the information known by Mr. Crider was that the Oshkosh employees were "suspicious" of the Plaintiffs who were still in the Oshkosh store. It seems he had no basis to believe that any of them had left or attempted to leave the store without paying for an item.
With this information, the evidence establishes that Mr. Crider contacted the Sheriffs Department and reported that three African-American females were accused of shoplifting. When Deputy Weisner arrived, Mr. Crider told him the Oshkosh employees had reported a shoplifting and he was following the suspects. The record does not reveal how or why Mr. Crider reached the conclusion that the Oshkosh employees accused the Plaintiffs of shoplifting. Being suspicious is one thing; shoplifting or even attempted shoplifting is another. Given the genuine dispute of fact between what Mr. Crider was told and what he reported to the Sheriff's Department and Deputy Weisner, one could reasonably find that Mr. Crider did not merely relate the facts to law enforcement, but that he made up facts to the Plaintiffs' detriment. Whether this was mere negligence or a more sinister attempt by Mr. Crider to justify the stop and detention of the Plaintiffs remains to be seen.
Furthermore, unlike the situation in Conn, the record in the instant case may support a reasonable finding that Mr. Crider detained the Plaintiffs. He waited with them, on Deputy Weisner's request, when the deputy went to Oshkosh; when one of the Plaintiffs asked Mr. Crider if they could go inside to get out of the cold, he told them "no, " thus, raising a reasonable inference that they were not free to leave. These facts raise a reasonable inference that Mr. Crider restrained the Plaintiffs and detained them while Deputy Weisner was checking things out at Oshkosh. This was what seems to be a very brief period of time, but a brief duration of a detention does not negate the Plaintiffs' claims. Instead, the brevity relates to their damages.
The arguments that Burns has made in favor of summary judgment on the negligence claims are not persuasive based on the record before the court. The claims must be tried. Burn's motion for summary judgment is DENIED as to the negligence claims under respondeat superior.
Burns argues that it is entitled to summary judgment on the claims of negligent hiring, retention and training for the same reasons it is entitled to summary judgment on the negligence claims under respondeat superior. But Burns is not entitled to summary judgment on the latter claims. Burns also argues that the only value of a negligent hiring, retention and training claim to a plaintiff who also pursues a negligence claim under respondeat superior would be in a case in which punitive damages are at issue. Then, Burns claims that Mr. Crider did not commit any of the intentional acts forming the basis of the claims in Counts III and IV, the only claims for which Burns asserts punitive damages may be at issue, such that it should be granted summary judgment on the negligent hiring, retention and training claims as well as the claims for intentional infliction of emotional distress and false imprisonment.
There is evidence from which a reasonable trier of fact could find that Mr. Crider committed some acts which form the basis of the claims for intentional infliction of emotional distress and false imprisonment, for example, that he wrongly reported that the Plaintiffs had been accused of shoplifting and later detained them. Therefore, the court finds that summary judgment should be DENIED Burns on the negligent hiring, training and retention claims, the intentional infliction of emotional distress claims, and false imprisonment claims.
Count IV for the false imprisonment contains a paragraph which alleges that the detention of the Plaintiffs after Ms. Wilson's bags were initially searched was unreasonable. (Compl. ¶ 50.) The court does not understand the Complaint to limit the Plaintiffs' false imprisonment claim to the period of time after that initial search to the exclusion of the period of time before that search. The count also incorporates all previous paragraphs of the Complaint. Given the Complaint's other allegations, an allegation that the detention was unreasonable was not required.
C. The Oshkosh Defendants
The Plaintiffs allege that Oshkosh was negligent in its duty to protect them from unreasonable searches and in hiring, training and retention of its employees. They claim that Oshkosh knew or should have known that its employees lacked the training to exercise reasonable care in determining the appropriate legal standards to stop, detain and search business invitees. The Plaintiffs also allege an intentional infliction of emotional distress claim, presumably under respondeat superior. They allege claims of intentional infliction of emotional distress and, apparently negligence against the Oshkosh employees as well.
The court is puzzled by the Plaintiffs assertion in their brief that the Oshkosh employees are liable for false imprisonment. (Pls.' Resp. Br. at 3.) The Complaint alleges no false imprisonment claim against any Oshkosh defendant. (See Compl. at 9-10, Count IV entitled "False Imprisonment" seeking judgment against Crider, Weisner and Pridgen only). Because the Plaintiffs cannot amend their Complaint with argument in their brief opposing summary judgment, Grayson v. O'Neill, 308 F.3d 808, 817 (7th Cir. 2002), petition for cert. filed, 72 U.S.L.W. 3007 (U.S. Mar. 20, 2003) (No. 02-1837), there is no false imprisonment claim against the Oshkosh Defendants. Even if there were, the Plaintiffs could not prevail on such a claim. See Conn v. Paul Harris Stores, Inc., 439 N.E.2d 195, 198-99 (Ind.Ct.App. 1982).
The gist of the Oshkosh Defendants' motion for summary judgment is that they did nothing wrong, specifically, they did not stop, detain or search any of the Plaintiffs and did not direct mall security or the deputies to do so. The Oshkosh Defendants rely for authority almost exclusively on Conn in arguing that they cannot be held liable for simply reporting their version of the facts to security and the deputy.
The Plaintiffs acknowledge that Conn v. Paul Harris Stores, Inc., 439 N.E.2d 195 (Ind.Ct.App. 1982), allows a merchant to escape liability for false imprisonment and slander when it merely and accurately details its version of facts to a law enforcement officer, and the officer responds in the manner he or she deems appropriate. They argue, however, that Conn is inapplicable because of conflicts in the statements and testimony of the Oshkosh employees about what they observed and what they told law enforcement. Since the court has stricken the purported written statements of the Oshkosh employees, there is no such conflict in the evidence. A logical extension of Conn leads to summary judgment in favor of the Oshkosh Defendants.
Conn is slightly different from this case as it involved claims of false imprisonment and slander, whereas, the claims against the Oshkosh Defendants are for negligence, negligent hiring, training, and retention of employees, and intentional infliction of emotional distress. The court, however, discerns no reason why Conn's holding would not apply equally to the types of state law claims alleged in this case. Nothing in the court's opinion suggests that its decision or rationale depended on the type of claim asserted.
Ms. Decker and Ms. Lovelace reported what they thought they had observed to their Oshkosh store supervisor, Ms. Powers, who then called mall security. The Plaintiffs argue that Ms. Powers had no reason to call security based on what she was told by Ms. Decker and Ms. Lovelace (Pls.' Br. at 5), but identify no specific facts in the record to support their position. It is undisputed that Ms. Decker and Ms. Lovelace thought they saw Oshkosh tags hanging out of one of the women's shopping bags while they were still shopping in the store. Given such information and in the absence of any evidence to suggest that Ms. Powers should have disbelieved Ms. Decker and Ms. Lovelace's honesty or sincerity, and there is none in the record before the court, it seems that Ms. Powers had a good reason to call security.
When Mr. Crider arrived, Ms. Powers reported that the employees were suspicious of the Plaintiffs. When later questioned by Deputy Weisner, Ms. Powers explained that she had not seen anything, and Ms. Decker and Ms. Lovelace reported that they had not observed an actual shoplifting incident but had seen Oshkosh tags coming out of one of the Plaintiffs shopping bags. Ms. Decker later identified the Plaintiffs to Deputy Weisner as the three customers who were in the store and identified Ms. Wilson as the one with the bag that had Oshkosh tags in it. Thus, the evidence establishes that the Oshkosh employees merely reported what they knew first to Mr. Crider and then to Deputy Weisner, seeking their assistance, and left it to them to decide the appropriate response. Nothing in the record suggests that the Oshkosh employee's representation of the facts prevented either Mr. Crider or the deputies from an intelligent exercise of their discretion. Therefore, neither Oshkosh nor its employees can be held liable on the Plaintiffs' state law claims. See Conn, 439 N.E.2d at 198-99.
The Plaintiffs argue that the Oshkosh employees should have foreseen that calling the security guard would lead to a stop and possible detention. This seems like a reasonable inference, but it raises the question, "So what?" There was reasonable suspicion, if not probable cause, based on the reports of the Oshkosh employees to stop and detain the Plaintiffs.
One last matter needs to be addressed. The Oshkosh Defendants incorrectly claim that no Oshkosh employee was involved in any of the searches challenged in this case. The record reveals that Ms. Decker assisted Deputy Weisner in searching through the Plaintiffs' shopping bags. However, the court has found that the Plaintiffs each voluntarily consented to those searches. Therefore, neither Ms. Decker nor Oshkosh can be held liable on any claim arising from her participation in the searches.
For these reasons, the Oshkosh Defendants will be GRANTED summary judgment.
V. Conclusion
For the foregoing reasons, the motions to strike are GRANTED and the motions for summary judgment of the deputies and the Oshkosh Defendants will be GRANTED and Burns' motion for summary judgment is DENIED. Entry of judgment awaits disposition of the remaining claims. Counsel will be contacted by the court in order to select a trial date of the claims against Burns.
ALL OF WHICH IS ORDERED