Opinion
NO. 1:03-cv-00424-DFH-TAB.
July 20, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On January 1, 2002, Indianapolis Police Officers Joshua Reese, Adam Novak, and Marc Euler arrived at the home of 76-year-old John Hyatt looking for a runaway minor. The events that followed are sharply in dispute. According to the officers, Hyatt threatened to kill them and tried to sic his dog on them from inside his home. According to Hyatt's evidence, on the other hand, he only asked for a moment to put his dog away and turned to walk toward the back of his house, upon which the police entered his residence and tackled him, breaking his arm in the process.
Pursuant to 42 U.S.C. § 1983, Hyatt claims that the police officers violated his Fourth Amendment rights by entering his home without a warrant and by using excessive force in his arrest. Hyatt also seeks to hold the City of Indianapolis liable for violating his Fourth Amendment rights. Defendants have moved for summary judgment on all claims.
Because many of the material facts are in sharp dispute, defendants' motion for summary judgment is denied with respect to all claims against the individual officers. A reasonable jury could find that no exigent circumstances justified the officers' warrantless entry and that the officers used excessive force in an unjustified arrest of Hyatt. Because plaintiff's version of the evidence shows violations of clearly established constitutional law, qualified immunity does not apply. However, summary judgment is granted on all claims against the city. Plaintiff has not come forward with evidence supporting his failure-to-train claim sufficient to support a finding of deliberate indifference, and of course § 1983 does not allow claims against local governments based solely on the doctrine of respondeat superior.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving parties entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving parties must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmoving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering defendants' motion, the court must consider the evidence in the light reasonably most favorable to the opposing party, giving plaintiff the benefit of all conflicts in the evidence and all reasonable favorable inferences from the evidence. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). In deciding a motion for summary judgment, the court may not weigh conflicting evidence and choose from among conflicting reasonable inferences from the evidence. However, when a party has shown that it is entitled to summary judgment, it would be a "gratuitous cruelty" to put the parties and others through the stress of a trial that could have only one outcome. See Mason v. Continental Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Facts for Summary Judgment
By moving for summary judgment, defendants have called upon the court to evaluate the law as applied to one version of sharply contested facts — the plaintiff's version. The following account of the relevant facts is not necessarily accurate. It is the plaintiff's version of the evidence, with the benefit of all conflicts in the evidence and any reasonable and favorable inferences from the favorable evidence. Some facts from the defendant's evidence are undisputed, though, and are treated as such for purposes of defendants' motion.
On January 1, 2002, John Hyatt was 76 years old. He lived in a home in Indianapolis with his son, his son's girlfriend, and her daughter Amanda Witt. Hyatt is a throat cancer survivor and cannot speak without the aid of a mechanical device that he places over his throat. Hyatt Aff. ¶ 4. On January 1st, his son and son's girlfriend were out and Amanda Witt was having some friends over, including Brandi Kennedy. Indianapolis police officers Joshua Reese and Adam Novak received a call from dispatch regarding Kennedy, who was wanted for battery on an "Order Taking Child Into Custody." Novak Dep. at 11-12; Reese Dep. at 7. The officers also received a computerized report in their vehicles which listed Kennedy as possibly being at Hyatt's residence. Novak Dep. Ex. 1; Novak Dep. at 10. The officers did not have a warrant for Kennedy's arrest or a search warrant for Hyatt's residence. Id. at 25; Reese Dep. at 26.
Plaintiff contends that this computerized report is untrustworthy and should not be considered. When a police officer is sued for his official actions, however, the officer may ordinarily offer evidence he relied upon in taking the challenged actions, even if the plaintiff contends that the information was mistaken or unreliable. Such evidence is admissible not for the truth of the matters asserted, but to show the information the officer relied upon to take action. Because the undisputed facts show that the officers received the report, the court will consider the report as a basis for the officers' actions.
Officer Novak arrived at Hyatt's residence first. He noticed two girls standing outside the house, one of whom matched the description of Kennedy. Novak Dep. at 11-12. The two girls were in fact Amanda Witt and Brandi Kennedy. When the girls saw the police vehicle, they went inside because Kennedy feared the police were after her. Witt Dep. at 8-9. Novak drove around the block to wait for another officer to arrive. Novak Dep. at 12.
Officers Reese and Euler then arrived. Officers Reese and Novak walked toward the front of the house while Officer Euler, went to the back. Novak Dep. at 13; Euler Dep. at 7. As Reese entered the fenced front yard, a dog was let loose from inside the house by one of the girls. Novak Dep. at 13. The dog, a medium-sized bulldog mix, ran toward Reese, and Reese retreated back outside the fence. Novak, who was still outside the fence, drew his gun and threatened to shoot the dog if it was not restrained. Reese Dep. at 31-33; Novak Dep. at 26-27. The girl who let the dog out complied and the dog returned to the house. Novak and Reese then entered the yard and approached the front entrance, which had a glass storm door. Novak Dep. at 13, 15, 18-21.
When the officers arrived at the glass door, Hyatt was there. Novak Dep. at 19. The officers never told Hyatt why they were at his residence. Id. at 24. The officers noticed the dog inside the house and asked that the dog be put into the bathroom, which the girls did. Id. at 22; Reese Dep. at 18. According to Hyatt, the only conversation he had with the officers at the door was when he said he was going to put up his other dog; he then turned his back to the officers and moved toward the back of the house. Hyatt Dep. at 15. None of the officers told Hyatt to stop. Id. at 16.
Defendants' brief in support of the motion for summary judgment makes frequent references to alleged oral threats made by Hyatt to the officers; however, Hyatt denies any threats and they are substantiated only by the officers themselves. Based on the evidence presented, a reasonable jury could choose to believe Hyatt and not the officers. For the purposes of summary judgment, the facts must be analyzed in a light most favorable to plaintiff, so the court must assume there were no threats. The effects on the defendants' "exigent circumstances" argument are decisive. Also, the court notes its concern with the way some of these facts were argued by defendants. On page 11 of their brief, the defendants assert: "When the officers reached the front door, Hyatt, who was aware that there were police officers at his front door, told the officers that he was `going to kill them' or `If you shoot my f____ing dog, I'll f____ing kill you." In support of this assertion, defendants cited: "Hyatt Dep. at 11; Novak Dep. at 20; Reese Dep. at 35." From the citation, the reader might get the impression that Hyatt himself had admitted making these threats. He did nothing of the sort. The only relevant point supported by page 11 of his deposition is that he was aware police officers were at the door. The court assumes that the mis-impression given by the defendants' citation was inadvertent; such tactics should be avoided in the future. They do not enhance the credibility of other portions of the case.
According to plaintiff's evidence, Officers Novak and Reese entered the residence and Euler came around front to enter the residence. Novak grabbed Hyatt by the arm and tackled him to the ground. Novak Dep. at 48; Reese Dep. at 36. Hyatt testified that this tackle broke his arm. Hyatt Dep. at 20. Reese held one of Hyatt's arms and Euler the other, and together they handcuffed him while Novak held Hyatt's legs. Reese Dep. at 39-40; Euler Dep. at 39; Novak Dep. at 56. Hyatt denies resisting the officers in any way. Hyatt Aff. ¶ 8; Kennedy Dep. at 55; Witt Dep. at 22. Hyatt testified that one of the officers kicked him with three "light kicks" that "didn't hurt [him]." Hyatt Dep. at 21-22. Brandi Kennedy saw one of the officers kicking Hyatt hard. Kennedy Dep. at 44.
Hyatt was charged with resisting law enforcement, but the charge was eventually dismissed.
Discussion
I. Claims against the Officers
A. Warrantless Entry
Plaintiff Hyatt claims that defendant officers violated his Fourth Amendment rights by entering his home without a warrant. The officers concede that they entered Hyatt's residence without a search warrant. Even if the court assumes the order concerning Brandi Kennedy as equivalent to an arrest warrant, the officers' belief that Kennedy was in Hyatt's home would not have authorized their entry into his home. See Steagald v. United States, 451 U.S. 204, 215-16 (1981); see also United States v. Patino, 830 F.2d 1413, 1414 (7th Cir. 1987). The officers claim, however, that exigent circumstances justified a warrantless entry.
Plaintiff also alleged in his complaint that the officers' actions violated his rights to due process of law and equal protection of the laws. Apart from the incorporation of the Fourth Amendment into the Fourteenth, see Ker v. California, 374 U.S. 23, 30 (1963), a point that is usually unremarked at this late date, the Fourteenth Amendment does not apply here. The proper standard for analyzing claims of unlawful entry and excessive force is the Fourth Amendment's reasonableness standard. See, e.g., Kirk v. Louisiana, 536 U.S. 635 (2002) (analyzing warrantless entry claim under Fourth Amendment); Graham v. Connor, 490 U.S. 386 (1989) (excessive force claims are "properly analyzed under the Fourth Amendment's `objective reasonableness' standard, rather than under a substantive due process standard").
The Fourth Amendment provides in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." "`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Kyllo v. United States, 533 U.S. 27, 31 (2001), quoting Silverman v. United States, 365 U.S. 505, 511 (1961). Warrantless searches and seizures inside a residence therefore are presumed to be unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980); Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) ("It is axiomatic that the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'"), quoting United States v. United States District Court, 407 U.S. 297, 313 (1972).
Where both exigent circumstances and probable cause are present, however, a warrantless entry may be permissible. United States v. Rivera, 248 F.3d 677, 680 (7th Cir. 2001). Exigent circumstances may exist when there is a compelling need for official action and no time to secure a warrant. United States v. Hardy, 52 F.3d 147, 149 (7th Cir. 1995); United States v. Saadeh, 61 F.3d 510, 516 (7th Cir. 1995) (warrantless entry justified where planned undercover drug deal had been shifted to new location and police knock prompted warning to those inside, who could have tried to destroy evidence and retrieve weapons). Exigent circumstances are "few in number and carefully delineated." Sheik-Abdi v. McClellan, 37 F.3d 1240, 1243 (7th Cir. 1994) (warrantless entry authorized to assist paramedics treat a person inside house who needed medical assistance); see also Minnesota v. Olson, 495 U.S. 91, 100 (1990) (exigent circumstances may include hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling). Determining the presence of exigent circumstances is a fact-sensitive analysis. Id.
When determining whether exigent circumstances existed, the court must analyze the situation from the perspective of the officers at the scene and not merely speculate on what the police could have done differently. The court must determine whether the police had, at the time, a reasonable belief that there was a compelling need to act and no time to seek a search warrant. United States v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998); Saadeh, 61 F.3d at 516, citing United States v. Foxworth, 8 F.3d 540, 544 (7th Cir. 1993).
In this case, plaintiff implicitly concedes that the police had probable cause to believe that Brandi Kennedy was in Hyatt's home. But the police had no warrant. To justify their warrantless entry, defendants contend that they were concerned about their safety when Hyatt moved toward the back of his house. According to Officer Novak: "Once he took off for the rear of the house, now we have an officer safety issue with, one, I hope he's not going for the dog; two, I really hope he's not going to get an assault rifle." Novak Dep. at 37. The issue for summary judgment is whether a jury could find that this safety concern was unreasonable based on plaintiff's version of the facts.
A reasonable jury could choose to believe Hyatt's evidence. Before the police arrived at the front door, Witt or Kennedy had called the dog back into the house and it was never loosed on the officers again. As noted above, the court must also assume that Hyatt made no threats to the officers but only asked for a moment to secure his dog. The jury could also believe that Hyatt never attempted to open the door and release his dog on the officers. While it is undisputed that Hyatt moved away from the officers and to the back of the house, a jury could choose to accept Hyatt's testimony that the officers never asked him to stop.
Under Hyatt's version of the facts, the police invaded the home of a man who had done nothing more than move around in his own home, where the police had no right to enter. Even if the police had asked him to stay at the door, they would not have been entitled to enter. After all, Hyatt was within the sanctity of his own home. See Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1357 (7th Cir. 1985) (Posner, J., concurring) ("When police knock at the door of a house . . . and the householder opens the door, he does not thereby consent to an entry into his house"); see also Silverman v. United States, 365 U.S. 505, 511 (1961) ("At the very core [of the Fourth Amendment] stands the right of a man to retreat into his home and there be free from unreasonable government intrusion.").
Defendants point out correctly that the evaluation of exigent circumstances must be based on the situation that the officers faced at the time. E.g., Rivera, 248 F.3d at 681. Contrary to the defendants' reply brief (at pages 4-5), however, that principle does not mean that the court must accept the officers' own testimony about the situation they faced. On the motion for summary judgment, the court must view the evidence about the situation the officers faced in the light reasonably most favorable to plaintiff, giving him the benefit of all conflicts in the evidence and of favorable inferences from that evidence.
Thus, from the plaintiff's evidence, a reasonable jury could conclude that no exigent circumstances justified the warrantless entry. When Hyatt arrived at the front door with his dog, the officers asked him to put it away. It is not clear who put the dog away, but no dogs were present as the officers opened the glass door "to try to address Mr. Hyatt." Novak Dep. at 23. Hyatt then asked for a minute to put his other dog away and turned to the back of the house. Based on these facts, the police did not have a right as a matter of law to enter the house merely because a 76-year-old man, who (the court must assume) had given no indication that he was dangerous, was heading toward the back of his own home. They had no reason to believe that he was going to release his dog after he asked for a minute to restrain it, and they certainly had no indication that he was going for a gun.
To show that warrantless entry is sometimes reasonable when there is a concern for safety, defendants rely on Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999). In Fletcher, plaintiff had obtained a restraining order against her violent boyfriend. Two officers saw her boyfriend at her home and went to the house to investigate. Concerned for Fletcher's safety, the police entered her home and found her boyfriend. Fletcher claimed that the police walked into her home uninvited through a locked door. She insisted that the police leave and was warned that she would be arrested if she continued to interfere with their effort to reach her boyfriend. Id. at 48. The officers eventually arrested Fletcher, although no charges were brought against her. Id. When Fletcher sued the officers, the district court denied the officers' motion for summary judgment on the grounds of qualified immunity. The First Circuit reversed and held that the officers were entitled to qualified immunity for the warrantless entry and arrest stating that the officer's belief that Fletcher was in danger was reasonable. Id. at 44.
The present case is readily distinguishable. In Fletcher, there was a factual dispute about whether the plaintiff had consented to the officers' entry, but the court accepted plaintiff's evidence that she had not. On the issue of exigent circumstances, however, almost all of the evidence that supported the officers' belief that Fletcher was in danger was not disputed — the restraining order, the boyfriend's unlawful presence in the home, Fletcher's denial of her boyfriend's presence, and the long history of violence against Fletcher. Id. at 45-48. As a result, the First Circuit held that the undisputed facts known to the officers meant they were entitled to qualified immunity for the warrantless entry.
Similarly, in Ewolski v. City of Brunswick, 287 F.3d 492, 501-02 (6th Cir. 2001), also cited by defendants, the facts supporting the warrantless entry in a tense hostage-taking were deemed undisputed, as were the facts supporting exigent circumstances in Howes v. Hitchcock, 66 F. Supp. 2d 203, 215-16 (D. Mass. 1999). Other cases cited by defendants are different enough not to require specific discussion.
Here, however, the evidence that could support defendants' belief that they were in danger — Hyatt's alleged threats, Hyatt's alleged attempt to sic his dog on the officers, Hyatt's alleged running to the back of his house — is all disputed by Hyatt. On summary judgment, the evidence must be analyzed in the light most favorable to plaintiff as the non-moving party. Because a jury could reasonably conclude that exigent circumstances did not exist, material facts remain in dispute and the motion for summary judgment on plaintiff's claim against the individual officers must fail.
The parties have briefed whether the officers violated the "knock and announce" principle stated in Richards v. Wisconsin, 520 U.S. 385, 387 (1997). Since the defendants are not entitled to summary judgment on the issue of whether the warrantless entry was lawful at all, regardless of whether they knocked and announced their purpose, the court need not address at this point the possibility that the entry might have been lawful but that the alleged failure to knock and announce was unlawful.
B. Excessive Force
When a law enforcement officer is alleged to have used excessive force in the course of an arrest, the issue is whether the officer's actions were "objectively reasonable" in light of the situation the officer faced. Graham v. Connor, 490 U.S. 386, 397 (1989); McNair v. Coffey, 279 F.3d 463, 467 (7th Cir. 2002). Relevant factors in determining whether an officer's actions were objectively reasonable include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; accord, Morfin v. City of East Chicago, 349 F.3d 989, 1004 (7th Cir. 2003). Balancing these factors is often a question for a jury, though in some cases the issue can be decided as a matter of law.
A reasonable jury could find that it was excessive for the police to force an elderly man to the ground who was not resisting arrest in any way, and who had not done anything to justify an arrest. According to Hyatt and Witt, the police never told Hyatt to stop; rather, they simply came into the house as soon as Hyatt turned away, and they tackled him. Under Hyatt's version of the events, he was grabbed and tackled without provocation. Officer Novak tackled him to ground with such force that he broke Hyatt's arm. Further, according to Hyatt, Witt, and Kennedy, Hyatt never resisted the officers in their attempt to arrest him, but the officers kicked him after he was on the ground.
Defendants rely on Brandon v. Village of Maywood, 157 F. Supp. 2d. 917 (N.D. Ill. 2001), to assert that these kicks do not rise to the level of a constitutional violation. In Brandon, plaintiff twice refused an officer's order to get down on the ground, after which the police threw him to the ground. Id. at 929. Plaintiff was not injured by the "gratuitous shove." The court ruled that even assuming there was a violation, the defendants were entitled to qualified immunity because the officer's action was "not so plainly excessive that they ought to be on notice of its unconstitutionality." Id. at 929 n. 10.
The present case differs in key respects. Unlike the plaintiff in Brandon, there is evidence that Hyatt had not refused to obey any command from the officers; rather, the officers kicked him with no provocation at all while he was handcuffed. Kennedy Dep. at 44. Further, there are material issues of fact as to whether or not Hyatt was injured by the officer's kicks. Brandi Kennedy testified Hyatt was kicked hard along the side. Id. Photographs of Hyatt show him badly bruised and discolored along his side, notwithstanding his testimony that the kicks did not hurt him (perhaps only as compared to the broken arm). A more appropriate case for comparison is Clash v. Beatty, 77 F.3d 1045 (7th Cir. 1996). In that case, Clash was handcuffed and had not resisted the police in any way when the police gave him a "wholly gratuitous" shove that broke his knee. Id. at 1048. The court dismissed an appeal from a denial of summary judgment on the basis of qualified immunity and explained: "It is clear . . . that police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever." Id. The officers are not entitled to summary judgment on the merits of the excessive force claim.
II. Qualified Immunity
The individual officers have also asserted the defense of qualified immunity. A two-part test determines whether a government official is entitled to qualified immunity in a civil suit under § 1983. Saucier v. Katz, 533 U.S. 194, 200-01 (2001); see also McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002); Marshall v. Teske, 284 F.3d 765, 771-72 (7th Cir. 2002). First a court asks whether the facts alleged demonstrate a constitutional violation when examined in the light most favorable to the plaintiff. Saucier, 533 U.S. at 201. If the facts as alleged reveal no constitutional violation, the inquiry ends and the officer prevails on the merits of the case. Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding that if there is no constitutional violation, there can be no liability on the part of the individual officer or the government body); Estate of Phillips v. Milwaukee, 123 F.3d 586, 596-97 (7th Cir. 1997). If the facts alleged would amount to a constitutional violation, the court next examines whether the law was "clearly established" at the relevant time. Saucier, 533 U.S. at 201; Marshall, 284 F.3d at 772.
To answer the second "clearly established law" question, the court asks whether a reasonable public official who faced the same factual circumstances that the defendant faced would have recognized at the time that his or her actions would violate the Constitution. The question is not a broad question of abstract constitutional doctrine, but is specific to the particular circumstances. See Saucier, 533 U.S. at 201; Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Qualified immunity protects a government official even if that official is mistaken about the law that applies to her actions. Forman v. Richmond Police Dep't, 104 F.3d 950, 958 (7th Cir. 1997) (doctrine of qualified immunity gives "ample room for mistaken judgments" and protects "all but the plainly incompetent or those who knowingly violate the law").
At the summary judgment stage in § 1983 actions where the plaintiff has alleged a violation of the Fourth Amendment, the qualified immunity question is closely related, though not identical, to the question on the merits: whether the plaintiff has raised a triable issue regarding the constitutional violation. As discussed above, viewed in the light most favorable to the plaintiff, the defendant police officers violated Hyatt's rights under the Fourth Amendment not to be subjected to an warrantless entry of his home and his right not to be subjected to excessive force.
Turning to the second element, a "clearly established" right, once a defendant claims qualified immunity, the burden is on the plaintiff to show that the right in question was clearly established. Perry v. Sheahan, 222 F.3d 309, 315 (7th Cir. 2000); Marshall v. Allen, 984 F.2d 787, 797 (7th Cir. 1993); Pounds v. Griepenstroh, 970 F.2d 338, 342 (7th Cir. 1992). Because this showing turns on a fact-sensitive examination of the dimensions of the constitutional violation, the question can be difficult to resolve as a matter of law on summary judgment where the parties' versions of events are as far apart as they are in this case. See Morfin, 349 F.3d at 1000 n. 13 (in false arrest case, reversing district court's grant of summary judgment in favor of police officer based on qualified immunity: "Where there is a genuine issue of material fact surrounding the question of plaintiff's conduct, we cannot determine, as a matter of law, what predicate facts exist to decide whether or not the officer's conduct clearly violated established law.").
Defendants rely on Siebert v. Severino, 256 F.3d 648, 654-655 (7th Cir. 2001), to argue that plaintiff must come forward with a closely analogous case demonstrating that a reasonable officer would have known that his actions violated the Constitution in order to show that the right was clearly established. However, Siebert identifies two routes for proving a right is clearly established: (1) the violation is so obvious that a reasonable officer would know that what he or she was doing violates the Constitution, or (2) a closely analogous case establishes that the conduct is unconstitutional. Id.
No reasonable officer could claim to be unaware that, absent exigent circumstances, a warrantless entry of the home is presumptively unconstitutional. See Groh v. Ramirez, 540 U.S. ___, ___, 124 S. Ct. 1284, 1294 (2004) (reversing grant of summary judgment based on qualified immunity). "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590. Those looking to prove exigent circumstances "bear a heavy burden" to show "an urgent need to cross the threshold [of a residence]." United States v. Acevedo, 627 F.2d 68, 70 (7th Cir. 1980). This heavy burden obviously is not met where the subject has simply walked away from officers at his front door. See, e.g., McKinney v. George, 726 F.2d 1183, 1188 (suggesting that a person answering the police's knock may retreat into his home, and that police may not then enter without a warrant to arrest him). Assuming, as the court must at this stage, that plaintiff's evidence is true, a reasonable police officer could not have believed that he had a right to enter Hyatt's home without a warrant or consent.
Similarly, on the excessive force claim, there was no basis even for arresting Hyatt, let alone doing so by tackling him with force sufficient to break his arm. Under Hyatt's characterization of the facts, the police, without provocation, tackled him to the ground and broke his arm. It is clear that this type of force is unlawful when the arrestee was not resisting, did not disobey any order of the police, did not pose a safety risk, and did not commit a crime. See Payne v. Pauley, 337 F.3d 767, 780 (7th Cir. 2003). When he was on the ground he did not resist in any way, yet the police assaulted him and caused the bruises and discoloration seen in the photographs he provided. Unprovoked and unjustified attacks by police officers violate the Fourth Amendment, and on the motion for summary judgment, the court must assume this was such a case. At the time of the arrest, it was clearly established that "police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever." Clash, 77 F.3d at 1048 (although no closely analogous case alone rebutted qualified immunity, it is clear that police do not have the right to assault otherwise innocent citizens). Genuine disputes of material fact require the court to deny the individual defendants' motion for summary judgment on the federal claims under the doctrine of qualified immunity.
III. Municipal Liability
Plaintiff alleges two counts against the City — the first under a theory of vicarious liability, the second on failure to train. Respondeat superior does not apply to § 1983 suits; government entities cannot be held liable merely because they employ wrongdoers. Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999), citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). To hold the City liable under § 1983, plaintiff must come forward with evidence that the alleged constitutional violation was caused by an official policy or custom of the local government entity. See Monell, 436 U.S. at 694 (requiring proof that official policy or custom caused violation). Plaintiff provided no evidence of a custom or policy that caused the alleged violation of his constitutional rights. Plaintiff's failure to do so requires the court to grant summary judgment for defendants on that remaining § 1983 claim against the City.
Plaintiff has named both the City and the Indianapolis Police Department as defendants. The department, however, has no legal existence separate from the City. The City's police department is merely a vehicle through which the city government fulfills its policing functions. Jones v. Bowman, 694 F. Supp. 538, 544 (N.D. Ind. 1988).
Conclusion
Summary judgment is granted for the City of Indianapolis because a theory of respondeat superior is impermissible under § 1983 and because plaintiff has provided no evidence to warrant municipal liability on a failure to train. Whether exigent circumstances justified warrantless entry and whether excessive force was used by the officers in arresting plaintiff depend on genuine issues of material fact. Accordingly, defendants' motion is denied with respect to all claims against the individual officers. The case remains set for trial on Monday, October 4, 2004.
So ordered.