Opinion
IP 02-0433-C-M/S
January 6, 2004
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the motion for summary judgment of defendants, Marion County Sheriff Jack Cottey ("Sheriff') in his official capacity and Ronald Shelnutt ("Shelnutf') in his individual capacity (collectively "Defendants"). The plaintiffs, Larry J. Leaf, individually and as personal representative of the Estate of John Patrick Leaf, Deceased; Martha A. Leaf; and Chaimayne E. Thomas, minor child of John Patrick Leaf, by her next friend, Larry Leaf (collectively "Plaintiffs"), have brought claims for damages against Shelnutt pursuant to 42 U.S.C. § 1983, alleging unlawful search and seizure, excessive force, due process violation, and failure to intervene in another officer's unlawful search and seizure. Plaintiffs have brought state law claims against Shelnutt for trespass, false arrest, assault and battery, and negligence. Plaintiffs have brought a claim for damages against the Sheriff pursuant to 42 U.S.C. § 1983 for maintaining unconstitutional policies or customs within the Marion County Sheriffs Department ("MCSD") that violated Plaintiffs' rights, and a state law claim for negligent hiring, supervision and/or retention. For the reasons discussed herein, Plaintiffs' motion is GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND A. EVENTS OF MAY 5, 2001
On May 5, 2001, Marion County Sheriffs Deputy Andrew Jacobs ("Jacobs") responded to an incomplete 911 call received at 1:10 a.m. Deposition of Andrew Jacobs ("Jacobs Dep.") at 38, 84. Jacobs arrived at the caller's apartment at Lake Nora Arms approximately twelve minutes after the 911 call was made. Jacobs Dep. at 84. After Jacobs arrived, he and Ryan Murphy, the caller, spoke for approximately five minutes. Deposition of Ryan Murphy at 49. After speaking with Murphy, Jacobs radioed that the call was regarding someone breaking the window out of a nearby apartment. Id. at 92. Officer Shelnutt heard Jacobs' announcement, and decided to back up Jacobs. Deposition of Ronald Shelnutt ("Shelnutt Dep.") at 53. Shelnutt's understanding of the situation, while en route, was that Jacobs responded to the incomplete 911 call, and had found a broken window and open patio door. Id. at 55.
Shelnutt arrived at the scene at approximately 1:30 a.m. Id. at 53. He noticed the front window frame was bent and the back sliding glass door was open. Id. at 89, 112. Shelnutt did not see any lights on in the apartment and did not hear any noises coming from inside the apartment. Id. at 104. Jacobs told Shelnutt that the neighbors saw a man trying to get into the apartment, but did not know who the man was. Id. at 77; Jacobs Dep. at 132-33. Jacobs added that the neighbors did not know whether or not the man lived in the apartment. Jacobs Dep. at 133. Shelnutt believed the circumstances indicated a burglary. ShelnuttDep. at 88, 91.
The two officers entered the apartment within a minute or two of Shelnutt's arrival. Jacobs Dep. at 144-45. The officers did not discuss what they would do once inside the apartment. Shelnutt Dep. at 91. Jacobs announced from the patio, into the apartment: "This is the Marion County Sheriff. Come out now. Show yourself. This is the Marion County Sheriff. Come out now. Show yourself." Jacobs Dep. at 155. Jacobs does not remember announcing that he and Shelnutt would be entering the apartment. Id. at 158. Shelnutt recalls hearing Jacobs warn: "We will be searching the apartment." Shelnutt Dep. at 120. Neither officer knocked. Id. at 119.
Both Shelnutt and Jacobs entered the apartment with their guns drawn, using tactical flashlights attached to their guns to illuminate their surroundings. Jacobs Dep. at 160-62. Shelnutt noticed the front door frame looked forced, as if someone had kicked it. Shelnutt Dep. at 125. Jacobs attempted to turn on a light in the kitchen, but the switch did not work Jacobs Dep. at 161. Jacobs did not attempt to turn on a light in the living room while searching that area. Id. at 162. Jacobs and Shelnutt spoke to one another in low voices. Id. at 163. The officers were searching the apartment to determine whether anyone was hiding. Id. at 165. Once inside the apartment, the officers did not make another announcement to identify themselves or state their purpose for being inside the apartment. Shelnutt Dep. at 146; Jacobs Dep. at 177.
Shelnutt heard a noise from the bedroom of the apartment. Shelnutt Dep. at 125. He and Jacobs entered the bedroom and found a man, who turned out to be John Leaf ("Leaf') lying naked on the bed, completely uncovered, and apparently sleeping. Id. at 125-26; Jacobs Dep. at 165, 170. Shelnutt could see Leafs arms and legs. Shelnutt Dep. at 125. Jacobs attempted to turn on the bedroom light, but the switch did not work Jacobs Dep. at 167. Shelnutt and Jacobs kept their tactical lights pointed at Leaf, which meant that their guns also were pointed at Leaf. Id. at 173-74; Shelnutt Dep. at 148. The officers did not use their lights to illuminate their uniforms or badges. Jacobs Dep. at 174. Shelnutt then attempted to clear the remaining areas of the apartment by checking the kitchen, two hall closets, a bedroom closet and a bathroom connected to the bedroom. Shelnutt Dep. at 126. As Shelnutt moved about in Leaf's apartment and bedroom, Jacobs stood at the threshold to the bedroom. Id.
Shelnutt stepped into the adjacent bathroom, which posed a threat because it had not yet been investigated. Id. at 126-27. After checking the bathroom Shelnutt believed he had checked every place where a person could be hiding. Id. at 127. Shelnutt then stepped out of the bathroom approximately one or two feet. Id. Shelnutt wondered aloud to Jacobs why Leaf would be just lying there if he had been burglarized. Id. Shelnutt then reached toward Leaf to try to awaken him. Jacobs Dep. at 177. Leaf suddenly sat up in bed. Shelnutt Dep. at 127.
There is some dispute over whether Shelnutt actually touched Leaf, but that issue is irrelevant to the present motion.
The following scenario is alleged by Defendants, but Plaintiffs allege additional facts that appear to question the veracity of Defendants' statement of facts: As Shelnutt reached toward Leaf, Leaf raised up from the bed with a 15-inch bowie knife and lunged at Shelnutt's midsection. Shelnutt Dep. at 169; Jacobs Dep. at 34. The officers believe Leafpulledthe knife from under his back. Shelnutt Dep. at 176; Jacobs Dep. at 3 6. Jacobs remembers Leaf moving the knife in a figure-eight motion. Jacobs Dep. at 181. Shelnutt remembers Leaf thrusting the knife straight outward. Shelnutt Dep. at 169. Both officers told Leaf to drop the knife, and shouted "Sheriffs Department" or "Police." Id. at 177; Jacobs Dep. at 188. Leaf did not drop the knife and continued to come toward Shelnutt with the knife. Shelnutt Dep. at 178. Jacobs remembers having about eight to ten seconds to yell to Leaf to drop the knife before the shooting. Jacobs Dep. at 188. Jacobs did not feel there was time to warn that deadly force would be used. Id. As Shelnutt was ordering Leaf to drop the knife, Leaf continued to close in on Shelnutt with the knife. Shelnutt Dep. at 178. Shelnutt backed up, and retreated a step or two into the bathroom, but Leafkept coining toward Shelnutt. Id. Shelnutt fired his gun four times, hitting Leaf three times. Id. at 187. Less than three minutes elapsed between the time Shelnutt arrived at the apartment and the time Shelnutt shot Leaf. Id. at 105.
Plaintiffs add the following facts: Shelnutt and Jacobs allege Leafbrought the knife out from under his bare back. Id. at 176, Jacobs Dep. at 36. Leaf came up with the knife along the left side of his body, but Shelnutt believes Leaf came after him with the knife in his right hand. Shelnutt Dep. at 176. In his statement given following the shooting, Shelnutt could not remember inwhichhand Leafheld the knife. Id. at 164. Jacobs was focused on Leaf's hands, but does not remember which hand held the knife. Jacobs Dep. at 37. Leaf was right-handed. Affidavit of Larry Leaf ("Larry Leaf Aff.") ¶ 3. Leaf wore glasses to correct his vision, but was not wearing glasses at the time he was shot. Id. ¶ 4.
One bullet struck Leaf in the right shoulder area. Deposition of John E. Pless ("Pless Dep.") at 39. This bullet likely would have caused Leaf to drop anything he was holding in his right hand. Id. at 46. Another bullet struck Leaf in the chest and caused his death. Id. at 33, 39. This shot was not the first one to hit Leaf. Id. at 62-63. Another bullet hit Leaf's neck Id. at 21. Shelnutt believes the bullet that hit Leaf's neck was the last bullet to hit Leaf. Shelnutt Dep. at 199.
Jacobs recalled that Leaf sat up so quickly that he could not have had time to remove a sheathfrom the knife. Jacobs Dep. at 36. Later, after the shooting, Jacobs and Shelnutt saw a sheath laying on the bed. Id.; Shelnutt Dep. at 169-70. Leaf's body showed no evidence of an imprint, impression or wound from having laid naked on the knife. Affidavit of Michael Mullins, M.D. ("Mullins Aff") ¶ 16. Plaintiffs' medical expert has opined that the absence of any such mark is inconsistent with the description of Leaf lying nude on the knife. Id. ¶ 18. The knife demonstrated no evidence of ridge details or fingerprints following three test methods of print identificatioa Deposition of Michael Estep ("Estep Dep.") at 97-104. MichaelEstep, the crime scene specialist with the Indianapolis-Marion County Forensics Services Agency, was not surprised by the lack of ridge detail, because there are several instances in which ridges will not be found. Id. at 104.
Sergeant Mark McCardia was the second officer to arrive on the scene after the shooting. Deposition of Sergeant Mark McCardia ("McCardia Dep.") at 96. When he entered Leaf's bedroom, he found Leaf laying on the floor, with the knife between Leaf and the bed, just off the bed. Id. at 106. Estep arrived at the scene at 2:45 a.m., more thananhour following the shooting. Estep Dep. at 15. Estep found the knife in the doorway to the bathroom, approximately five feet from the bed. Plfs' Ex. 29. Estep does not know how many people moved about the crime scene before he arrived to do his investigation and collect evidence. Estep Dep. at 15, 123.
Chris Bauman had been in Leafs apartment before Leaf's death, and had seen a knife that Leaf generally kept between his mattress and box springs. Deposition of Chris Bauman ("Bauman Dep.") at 60. Bauman was not sure that the knife found at the scene of the shooting was the same knife he previously had seen in Leaf's possession. Id. at 61. The knife Bauman previously had seen had some threading wrapped around the handle, whereas the knife found at the crime scene did not. Id. at 95. Bauman previously had seen the sheath in Leaf's possession. Id. at 61.
B. MCSD DISCIPLINE SYSTEM AND POLICE ACTION SHOOTINGS
MCSD's "Rules and Regulations for Merit Deputies" states that an Internal Affairs Section investigates violations of MCSD rules and regulations, and maintains full and complete records of alleged violations. Def's Ex. 6 § 0504. Internal Affairs receives complaints about deputies both internally, from supervisors, deputy chiefs, colonels or the Sheriff; or externally, from citizens. Declaration of Bill Lorah ¶ 5. Citizen complaints are classified either as formal or informal complaints. Id. ¶ 6. Formal complaints include all internal complaints and all serious citizen complaints, including excessive force. Id. All complaints received by Internal Affairs are documented and investigated. Id.
Formal complaint investigations typically consist of in-person interviews with the complainant, the officer involved, and all witnesses. Id. at ¶ 7. The investigating detective then drafts a formal report, which includes factual findings and the detective's conclusion as to whether the officer violated a rule or regulation. Id. The Commander of Internal Affairs reviews the report; then the report is submitted to the colonel, and finally to the division chief or sheriff. Id.
Internal Affairs does not generate a file or an investigation of a complaint if the complainant refuses to give a statement or otherwise cooperate with the investigation. Deposition of William Lorah ("Lorah Dep.") at 23. Internal Affairs also might not have a file on a complaint if the complaint was called into and handled at the divisional level. Id. at 34-36. During the time William Lorah was the Commander of Internal Affairs, there was no set policy or procedure regarding when a complaint called in at the divisional level would be referred to Internal Affairs. Id. at 34.
Internal Affairs does not make decisions about discipline. Id. ¶ 9. The division chief recommends final disciplinary action, whichis approved by the colonel or sheriff. Deposition of Albert Kennedy at 79. The personnel office receives the disciplinary decision from the division chief and implements the discipline. Id. at 80. The personnel office maintains disciplinary records in each employee's employment file. Id. at 8.
MCSD's disciplinary system is intended to be progressive, so that deputies who repeat violations will receive increased discipline. Id. at 34. Discipline can range from an oral counseling session to the Sheriff recommending that the merit board terminate the deputy. Id. at 80. The sheriff has final authority as to discipline, but usually the final disciplinary decisions are made by the colonel. Deposition of Jack Cottey ("Cottey Dep.") at 6-7.
In 1995, someone filed a complaint against Jacobs withMCSD for excessive force. Jacobs Dep. at 256. No one at MCSD told Jacobs about the complaint or talked to him about the incident. Id. at 257. In 1994, Shelnutt was disciplined internally for making an arrest while off duty. Plfs' Sealed Exs. 2, 3. Shelnutt has had four additional complaints filed against him with MCSD. Plfs' Sealed Exs. 4-7. Aside from those complaints, another citizen called the Sheriff at home in 1999 to complain that while Shelnutt was investigating a dispute among neighborhood kids, he was hosfile, cocky, and rude. Deposition of Julie von Arx at 6-7. Lisa Gresh called MCSD in 2000 to complain of Shelnutt's behavior toward teenagers in her neighborhood. Deposition of Lisa Gresh at 46. Shelnutt has never been disciplined for use of force. Shelnutt Dep. at 302.
Lieutenant Pankoke was Shelnutt's supervisor from the time Shelnutt became a deputy until Shelnutt was transferred to the K9 unit Deposition of David Pankoke ("Pankoke Dep.") at 88. Pankoke testified that during that time, Pankoke would have been informed if a complaint against Shelnutt was being investigated. Id. Pankoke was unaware of any complaints against Shelnutt. Id. Lieutenant Cleek supervised Shelnutt beginning in the fallof 1997 throughmost of 1998. Deposition of James Cleek ("Cleek Dep.") at 18, 23. Although Cleek would prefer to be notified whenever a complaint was made about an officer under his supervision, Cleek does not remember being made aware of any citizen complaints about Shelnutt. Id. at 23-24.
Several MCSD employees deposed by Plaintiffs were aware of either no instances or very few instances in the last thirty years of deputies having been disciplined for excessive force or illegal entry. See Deposition of Howard Pollard ("Pollard Dep.") at 226; Pankoke Dep. at 90, 92; Cleek Dep. at 40-41; Deposition of Ruthann Burr ("Burr Dep") at 22-23; Jacobs Dep. at 20-22; Shelnutt Dep. at 291-92.
The Firearms Review Board ("FRB") reviews all discharge of firearms by deputies. Cottey Dep. at 48. FRBs do not consider whether an officer has been involved in prior incidences or whether complaints or disciplinary hearings existed against the officer. In the case of police action shootings, the Sheriff only would refer an officer for discipline after the FRB hearing if the FRB found the shooting unjustified. Id. at 78. The Sheriff does not recall recommending discipline for a police action shooting any time while he was sheriff. Id. at 55.
MCSD policy requires that a Fraternal Order ofPolice ("TOP") attorney be notified immediately after a police action shooting has occurred. Cottey Dep. at 44. An FOP attorney comes to the scene of every police action shooting. Burr Dep. at 87; Estep Dep. at 30. The reason for this policy is to protect the deputy's rights. Cottey Dep. at 45. The FOP attorneys are permitted to interview witnesses at the scene. Id. at 59. MCSD trains new deputies about what will happen if they are involved in a police action shooting, including: the requirement to notify control; that detectives, the crime lab, FOP attorneys and others will respond; that a team will respond to offer support to the officer; and that the deputies must cooperate in the investigation of the shooting, including submitting to interviews by homicide and robbery detectives. CleekDep. at 33-38.
C. MCSD DEPUTY TRAINING
MSCD merit deputy recruits must successfully complete the Indiana Law Enforcement Academy ("ILEA") or an accredited academy recognized by the ILEA, a three-week road school with MCSD, and the ten-week MCSD Field Training program. Cleek Dep. at 12-13. Recruits have use of force training at the ILEA, during Field Training, and at least twice a year during in-service training. Id. at 57. Deputies are evaluated on use of force during Field Training. Id. at 60.
Shelnutt was a merit deputy at the time of Leaf's shooting. Plfs' Am. Compl. ¶ 6.
Deputies are taught that the amount of force warranted is that necessary to affect an apprehension. Id. at 59. The amount of force that is reasonable to apprehend the suspect does not depend upon the crime the suspect may have committed, but on the actions and resistence of the suspect. Id. at 58. Deputies are taught that the use of deadly force is warranted where the deputy is in fear for his own life or the life of another person. Id. at 60. MCSD policies are meant to convey a spectrum of force to be used, and to provide guidelines as to the amount of force that is reasonable in any given situation Id. at 60-61. Deputies review new legal authority related to use of force during their twice-yearly in-service training. Id. at 61.
In the five years that Lt. Cleek has been a training supervisor, he has never provided additional training to an officer as a result of a citizen complaint of excessive force. Id. at 30-31. MCSD does not provide any training to officers that they should warn a suspect before using force. Id. at 69. MCSD trains officers that deadly force is a rare occurrence, and that most officers make it through their entire careers without being involved in a police action shooting. Id. at 70. MCSD "absolutely" does not train officers that deadly force should never be used. Id. at 71.
II. STANDARD
Summary judgment is 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). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to showthe absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco. Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Inconsidering a summaryjudgment motion, a court must draw all reasonable inferences "inthe light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summaryjudgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., Inc., 975 F.2d at 1294.
III. DISCUSSION A. UNLAWFUL ENTRY AND SEARCH 1. Knock and Announce
Part of the inquiry into whether an officer's entry into a home, and the subsequent search, was reasonable and within the bounds of the Fourth Amendment includes the common law "knock and announce"principle. Wilson v. Arkansas, 524 U.S. 927, 934 (1995). Shelnutt contends that his conduct did not violate the "knock and announce" rule, and thus did not make his entry into the home unreasonable as a matter of law.
The Fourth Amendment generally requires police officers to knock on the door and announce their identity and purpose or intent before entering. See Richards v. Wisconsin, 520 U.S. 385, 387 (1997). The objective of the knock and announce rule is for officers to alert the resident of a home as to the officers' presence and give the resident an opportunity to consent to or refuse the officers' entry into the home, as well as to avoid the resident mistaking the officers as intruders. See United States v. Spikes, 158 F.3d 913, 925 (6th Cir. 1998). "The focus of the `knock and announce' rule is properly not on what `magic words' are spoken by the police, or whether the police range the doorbell, but rather on how these words and other actions of the police will be perceived by the occupant." Id. (citations omitted).
Plaintiffs argue that Shelnutt did not comply with the essential elements of the knock and announce rule because neither Shelnutt nor Jacobs actually knocked on Leaf's door. Further, Plaintiffs allege a fact issue exists as to whether Shelnutt or Jacobs announced their purpose for being at the apartment. Shelnutt admits that neither he nor Jacobs knocked on Leaf's door. Shelnutt Dep. at 119. "[A]lthough the principle is commonly referred to as `knock and announce,' the [Supreme] Court's holding in Wilson [ v. Arkansas, 514U.S. 927, 934 (1995)] requires only an announcement." United States v. Smith, 63 F.3d 956, 962 (10th Cir. 1995). This is especially true in this case, where the door was already open and the officers made their announcement into the open door. See Shelnutt Dep. at 89, 112; Jacobs Dep. at 155. Further, the fact that some of Leaf's neighbors, and presumably Leaf himself, did not hear Jacobs make his announcement does not create a genuine factual dispute to defeat summary judgment. See Molina v. Cooper, 325 F.3d 963, 972 (7th Cir. 2003). Plaintiffs have no evidence that indicates the officers did not announce their presence.
However, the officers also must announce their purpose or intent. See Wilson, 514 U.S. at 934. Announcing an intent to enter permits the individuals inside to peaceably comply and open the door for the officers, avoid potential destruction of property caused by forcible entry, and to "prepare themselves" for the officers' entry. See United States v. Espinoza, 256 F.3d 718, 723 (7th Cir. 2001). There is a factual dispute here over whether Jacobs or Shelnutt announced that they would be entering and searching the apartment. The parties agree that Jacobs announced from the patio, into the apartment: "This is the Marion County Sheriff. Come out now. Show yourself. This is the Marion County Sheriff. Come out now. Show yourself." Jacobs Dep. at 155. Shelnutt recalls hearing Jacobs warn: "We will be searching the apartment." Shelnutt Dep. at 120. However, Jacobs does not remember announcing that he and Shelnutt would be enteringthe apartment. Id. at 158. The warning that the officers would be entering the apartment is essential, and thus, the factual dispute is one for the jury.
2. Exigent Circumstances
Where no underlying factual dispute exists, whether exigent circumstances existed to justify a warrantless entry and search is a matter oflaw to be decided by the Court. See United States v. Howard, 961 F.2d 1265, 1267 (7th Cir. 1992). Although police generally must secure a warrant to search a home, officers may enter and search a home if they have a "reasonable belief that exigent circumstances require immediate action and there is no time to secure a warrant." United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003) (internal citations omitted). When a court makes a determination of whether exigent circumstances existed, it views the situation from the perspective of a reasonable officer at the scene. United States v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998). The Court determines whether exigent circumstances existed from the totality of the circumstances, on an objective basis. See Id.
Calls to 911 can, by themselves, be enough to support an application of the exigent circumstances exception to the warrant requirement. Jenkins, 329 F.3d at 581; United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000). "A 911 call is one of the most common — and universally recognized — means through which police and other emergency personnel learn that there is someone in a dangerous situation that urgently needs help." Richardson, 208 F.3d at 630.
In United States v. Jenkins, the police responded to a 911 call reporting an assault. It was unclear from the call whether the assault was completed or ongoing, so the responding officer treated the call as an assault in progress. Id. at 580. When the officer arrived at the site of the alleged assault, she noticed a partially open front door and heard a noise coming from inside. Id. The officer knocked and announced herself as a police officer, but received no response. Id. The officer pushed open the door and entered the residence. Id. The Seventh Circuit upheld this Court's finding that exigent circumstances justified the warrantless entry. The court relied in part upon the facts that the front door was partially open in the middle of the night, and that the 911 caller who reported the assault was identified. Id. at 581-82. Under those circumstances, a reasonable officer would have feared for the safety of someone inside the residence. Id. at 582.
The facts in this case are quite similar to those in Jenkins. In this case, the officers responded to a late-night 911 call and spoke with the caller. The officers were aware someone had tried to break a window to gain entrance to Leaf's apartment. The back patio door was open and no one responded to the officers' announcement. A reasonable officer could have treated the incident as a burglary in progress and could have feared for the safety of someone inside.
Shelnutt has admitted that he and Jacobs did not have any evidence that anyone inside Leaf's apartment was a danger to himself or others. Shelnutt Dep. at 103. The officers did not have evidence of an ongoing crime. Jacobs Dep. at 154. However, even if Shelnutt held the view that an emergency did not exist, the exigent circumstances exception applies. The subjective state of mind of the officers at the scene has no place in the Court's determination. See Richardson, 208 F.3d at 630. The Seventh Circuit has explained that the objective test for exigent circumstances is important because it ensures control over the reasonableness of officers' conduct. Id. "This kind of external accountability is especially important when warrantless searches of homes are at stake." Id.
There maybe some situations in which an officer has gathered enough additional information about the 911 call that it would be objectively unreasonable for the officer to rely on that call. Id. at 631. However, this is not that case. Plaintiffs argue that substantial time passed between the 911 call and the officers' entry into Leaf's apartment. Shelnutt has testified that in his experience, a burglary that lasts longer than 30 minutes is rare. Shelnutt Dep. at 221. Shelnutt entered Leaf s apartment approximately 25 to 3 0 minutes following the 911 call. Plaintiffs also argue that Shelnutt and Jacobs had no evidence that a crime had been committed. However, these facts not make Shelnutt's actions unreasonable. Based on the 911 call, the report that someone was breaking into Leaf's apartment, even though he claimed to be the resident, the broken window and open door in the middle of the night, exigent circumstances existed to justify a warrantless entry into and search of Leaf s home.
3. Manner of Search
While the entry into and search of Leaf's apartment were justified by exigent circumstances, the manner in which Shelnutt searched could be found unreasonable. "[T]he Fourth Amendment's proscription of unreasonable searches and seizures `not only prevent[s] searches and seizures that would be unreasonable if conducted at all, but also . . . ensure[s] reasonableness in the manner and scope of searches and seizures that are carried out.'" Lauro v. Charles, 219 F.3d 202, 211 (2d Cir. 2000) (quoting Ayeni v. Mottola, 35 F.3d 680, 684 (2d Cir. 1994)). See also, Duncan v. Barnes, 592 F.2d 1336, 1338 (5th Cir. 1979) ("a reasonable belief in the validity of the search warrant did not immunize appellees from liability for the manner in which they executed the warrant, if such manner of execution violated the Constitution"). The Seventh Circuit has recognized that certain conduct on the part of officers during a search can be dangerous and may lead to Section 1983 liability. See United States v. Folks, 236 F.3d 384, 387-88 (7th Cir. 2001) (declining to address Fourth Amendment claim for search conducted in unreasonable manner because inevitable discovery doctrine applied to admit evidence regardless); United States v. Jones, 214 F.3d 836, 838 (7th Cir. 2000) (noting that use of a flash-bang device causing injury to person or property might have presented a "serious" claim for damages).Aside from the factual dispute as to whether the officers announce their purpose and intent before entering, other facts preclude summary judgment on the claim for unreasonable search. Once inside the apartment, neither officer attempted to verbally identify themselves as officers. Shelnutt Dep. at 146; Jacobs Dep. at 177. They did not turn on any lights. Once Jacobs and Shelnutt found Leaf lying naked on his bed, apparently asleep, they did not knock on the bedroom door or wall in an attempt to wake him up, or try again to establish their identity. See Shelnutt Dep. at 144. In fact, they spoke in low voices. Jacobs Dep. at 163. Jacobs and Shelnutt relied only upon the tactical lights attached to their guns, thus aiming their guns anywhere they aimed their lights. Shelnutt Dep. at 121-22. They did not illuminate their uniforms or badges. Jacobs Dep. at 174. Jacobs had told Shelnutt that the man may have been the resident. Id. at 133. Looking at the totality of the circumstances, evidence exists from which a fact-finder could determine that Shelnutt behaved in an objectively unreasonable manner once inside the apartment. Thus, although exigent circumstances warranted Jacobs' entry into the apartment, the Court cannot find as a matter of law that the manner of search was reasonable. The Defendants' motion for summary judgment on Plaintiffs' claims for illegal search is DENIED.
B. EXCESSIVE FORCE
The Court addressed Plaintiffs' unlawful seizure claim in its order dated October 14, 2003, denying Plaintiffs' motion for partial summary judgement. The Court has ruled that a jury must determine whether Shelnutt's and Jacobs' seizure of Leaf while he was in his bed was reasonable. That claim related to the alleged illegal seizure up to the time Leaf was shot.
Fact issues also preclude summary judgment on Plaintiffs' claims for excessive force. Claims that officers used excessive force are to be analyzed under the Fourth Amendment's reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The reasonableness of an officer's decision must be determined from the view of the officer based upon the knowledge he had at the time of the incident. Id. at 396. The determination must be made objectively, without regard to the officer's intent or motivation. Id. at 397.
Officers are legally entitled to use deadly force where threatened with the risk of death or serious physical harm. Tennessee v. Garner, 471 U.S. 1, 11-12(1985). The risk of death or serious physical harm is established where the suspect threatens the officer with a deadly weapon. Id. Whenever possible, the officer should give a warning that deadly force will be used. Id.
The Court agrees with Plaintiffs' that enough doubts exist in the evidence to prevent summary judgement for Defendants on the excessive force claim. There is evidence to support a doubt as to whether the knife found at the scene belonged to Leaf. There is conflicting evidence as to where the knife was following the shooting and the manner in which Leaf wielded the knife. There were no marks on Leafs back consistent with him laying on top of the knife as the officers allege. What likely was Shelnutt's first shot would have been enough to disable Leafs right arm, without killing him. See Pless Dep. at 46. Shelnutt believes Leaf had the knife in his right hand, and Leaf was right-handed. The Court cannot determine as a matter of law that Leaf presented Shelnutt with a threat of death or serious bodily injury, or that it was necessary for Shelnutt to fire the second shot, which killed Leaf. Plaintiffs are entitled to a trial in which the jury can hear all the evidence and assess the credibility of the witnesses. Summary judgment as to Plaintiffs' excessive force claim is DENIED.
C. DUE PROCESS VIOLATION
Plaintiffs allege that Shelnutt's conduct was so outrageous at to "shock the conscience," and thus violate Plaintiffs' Fourteenth Amendment due process rights. In some situation courts will use the Fourteenth Amendment "shocks the conscience" test to analyze a claim of excessive force. However, in cases where the force occurred in the contest of a seizure, the conduct is analyzed under the Fourth Amendment reasonableness standard, to the exclusion of the Fourteenth Amendment.
[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach.Graham, 490 U.S. at 395 (emphasis in original). Courts prefer the more specific constitutional protection of the Fourth Amendment over the more general substantive due process provision. See Id. Following the Supreme Court's directive, the Seventh Circuit applies a substantive due process analysis to claims of excessive force only where no seizure has occurred. See, e.g., Bublitz v. Cottey, 327 F.3d 485 (7th Cir. 2003); Schaeferv. Goch, 153 F.3d 793 (7th Cir. 1998).
Leaf was seized when he was shot by Shelnutt; none of the parties argue otherwise. The Plaintiffs' excessive force claim will be analyzed under the Fourth Amendment only. Defendants' motion for summary judgment as to Plaintiffs' claim for due process violation is GRANTED.
D. FAILURE TO INTERVENE
Omissions sometimes can violate civil rights just as actions can. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).
An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.Id. (emphasis in original).
Because fact issues exist precluding summary judgment on Plaintiffs' claims of unlawful entry, search and seizure, the Court cannot determine whether Shelnutt had a duty to intervene in Jacobs' conduct. Defendants' motion on this issue is DENIED.
E. UNCONSTITUTIONAL POLICY OR CUSTOM
Plaintiffs can hold the Sheriff liable for Shelnutt's alleged unconstitutional actions only by showing that a policy or custom of MCSD caused the constitutional deprivation. See Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978). There are three ways in which a municipality's policy or custom can cause the municipality to be liable: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice or custom that, although not an official policy of the municipality, is permanent enough to constitute a custom; or (3) the constitutional deprivation was caused by a person with "final policymaking authority." Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994) (citations and internal quotations omitted). Defendants have established that MSCD has a multi-tiered system for investigating complaints against officers and disciplining deputies found to have violated MCSD rules and regulations. Thus, Plaintiffs can hold MCSD liable only under the second theory, that some unwritten, persistent practice within MCSD constitutes a custom that results in constitutional deprivations.
In Monell, the policy itself was found unconstitutional, because by its terms it required pregnant employees to take a mandatory leave of absence prior to a medical need for leave. See City of Oklahoma v. Tuttle, 471 U.S. 808, 822 (1985) (discussing Monell). In a case like Monell, where the policy is unconstitutional on its face, a plaintiff must only prove one application of the unconstitutional policy for the municipality to be held liable. Id. However, when the policy relied upon is not unconstitutional on its face, "considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the `policy' and the constitutional deprivation." Id. at 824. A plaintiff must show a specific pattern or series of incidents to supportthe allegationthat a custom exists. Henryv. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986).
Moreover, whenthe customitself does not establish constitutional wrongdoing, an "affirmative link" must be shown between the custom and the constitutional deprivation. Id. at 823. This affirmative link requires some actual or constructive knowledge on the part of the municipality ofboththe custom and its unconstitutional consequences, "showing the municipality's approval, acquiescence, or encouragement of the alleged unconstitutional violation." Jones v. City of Chi., 787 F.2d 200, 204 (7th Cir. 1986). To establish that a municipality should be liable for the constitutional deprivation, the evidence must permit an inference of deliberate indifference or tacit authorization of the violative conduct. See Id. at 205.
1. Ignoring Complaints About Deputy Misconduct
Plaintiffs cannotestablishacustornofignoringcomplaintsaboutdeputymisconduct. Plaintiffs allege that because documents regarding complaints and investigations are not kept in one central location, and because Shelnutt's supervisors were not aware of all of the complaints brought against Shelnutt, the Sheriff should be held liable for Shelnutt's alleged unconstitutional behavior. However, Plaintiffs can demonstrate no affirmative link between MSCD's method of record-keeping and Shelnutt's use of force against Leaf.
Likewise, the fact that MCSD rarely disciplines a deputy for excessive force does not establish a custom of ignoring complaints. Defendants have presented evidence of a multi-tiered system of investigating and disciplining officers. Plaintiffs cannot show that MCSD does not follow that system, or that deputies who should have been disciplined were not. "[T]he number of complaints filed, without more, indicates nothing. People may file a complaint for many reasons, or for no reason at all." Strauss v. City of Chicago, 760 F.2d 765, 768-69 (7th Cir. 1985). The fact that MCSD has only rarely disciplined deputies as a result of complaints does not create an inference that MCSD does not investigate complaints or discourages discipline for violation of rules and regulations. See Id. at 768. Plaintiffs have not demonstrated any material fact issue regarding MCSD's discipline system that would entitle a jury to find a widespread custom of ignoring complaints of misconduct and an affirmative link between that custom and Shelnutt's conduct on May 5, 2001.
2. Inadequate Training
To hold the Sheriff liable on a theory of inadequate training, Plaintiffs must show that MCSD's training program is not adequate, and if it is not, that the inadequate training is an MCSD policy. See City of Canton v. Harris, 489 U.S. 378, 390 (1989). The Mowing test is useful: Plaintiffs must establish (1) the training provided to MCSD deputies is, in fact, inadequate; (2) that MCSD is culpable because it was faced with an obvious need for training and consciously chose not to provide adequate training; and (3) MCSD's choice not to provide adequate training was the "moving force" behind Plaintiffs' alleged constitutional deprivations. See Kindle v. City of Harvey, No. 00 C 6886, 2002 WL 230779, *3 (Feb. 15, 2002 N.D. Ill.) (citing Monell, 436 U.S. at 694). An entity will be held liable where the plaintiff proves a deliberate indifference to the need for training. Harris, 489 U.S. at 390.
Plaintiffs argue that within MCSD there exists an "obvious need" for additional training on excessive force. However, Plaintiffs do not demonstrate inadequate training. That new hires are trained to be prepared to use deadly force, that the amount offeree need not vary with the severity of the suspected crime and that no warnings need be given before using deadly force are not, on their face, inadequate training tips. Nothing in the law states that deputies should not be trained to be prepared to use deadly force where necessary or that the amount of force should vary according to the suspected crime. The law requires a warning of deadly force where practicable, recognizing it is not possible in every instance. Cleek testified he was merely unaware of any policy to train that a warning is required; he did not testify that MCSD teaches that no warning should be given. See Cleek Dep. at 69.
Plaintiffs also argue that the failure of MCSD to refer deputies for additional training following a citizen complaint demonstrates deliberate indifference. However, there is no evidence that those citizen complaints were substantiated or that additional training was warranted. Rather, Cleek's testimony demonstrates a policy that MCSD deputies and recruits are trained on the use of excessive force both before and throughout their careers. Plaintiffs have not demonstrated an issue of fact as to whether MCSD training as to excessive force is adequate. Defendants' motion for judgment on Plaintiffs' unconstitutional policy claim is GRANTED.
F. QUALIFIED IMMUNITY
Government officials generally are granted qualified immunity from damages suits so long as their conduct was objectively reasonable in light of clearly established constitutional rights of which a reasonable person would have known. Harlowv. Fitzgerald, 457 U.S. 800, 818 (1982). Because Shelnutt has pleaded qualified immunity, the Court must apply a two-step analysis to each of the Plaintiffs' claims. First:
Does the conduct Plaintiffs allege violate a constitutional right? Second: Was the constitutional right clearly established by law at the time of the alleged violation? See Donovanv. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). A constitutional right cannot be "clearly established" on general terms. A constitutional right has been clearly established only if the law is such that a potential defendant would be on notice that his conduct is probably unlawful. Azeez v. Fairman, 79 F.2d 1296, 1301 (7th Cir. 1986). The law must have been clear in light of the specific facts facing the public official at the time he acted. Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987).
Qualified immunity generally is a legal question for the Court. However, this Court has found that fact issues exist for the jury on the claims for unlawful entry, search and seizure, and excessive force. These underlying fact issues prevent the Court from deciding as a matter of law whether Shelnutt is entitled to qualified immunity on those claims.
To defeat qualified immunity, the Plaintiffs must demonstrate that a reasonable officer in Shelnutt's position would have known that his conduct, i.e. the manner in which he entered, searched and seized, violated one ofLeaf's clearly established constitutional rights. See Kernatsv. O'Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994); Maxwell v. City of Indianapolis, 998 F.2d 431, 435 (7th Cir. 1993). The jury first must resolve whether, before the officers entered Leaf's apartment, Jacobs announced that they would be entering. If the officers failed to make the appropriate announcement before entering, Shelnutt violated the Fourth Amendment. The requirement of announcing prior to entry has been clearly established, and a reasonable officer would know that entering without announcing his purpose or intent would violate the Fourth Amendment. The Court cannot rule on qualified immunity because whether the law was violated depends upon which version of the facts the jury believes. Likewise, a major fact issue exists that prevents the Court from finding as a matter of law that Shelnutt's use of deadly force was justified. As previously noted, it will be for the jury to determine whether Leaf threatened Shelnutt with death or serious physical harm. It also will be for the jury to decide whether it was unreasonable for Shelnuttt to take the second shot at Leaf, which caused his death. The legal question of whether Shelnutt used excessive force is completely dependant on which version of the facts the jury accepts. See Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994). "Because there are contested issues of material facts in regard to . . . the use of force, the jury must decide these issues in regard to qualified immunity." Id.; see also Starks v. Enyart, 5 F.3d 230, 233 (7th Cir. 1993) ("[I]f the record read favorably to the plaintiff supports a version of the facts which would not entitle the defendants to immunity, we will dismiss the interlocutory appeal for lack of jurisdiction.") Like the issue of unlawful entry, the question is not about legal uncertainty, but about the underlying factual question. If Shelnutt unlawfully used deadly force, he violated the Fourth Amendment. "Because the facts are in hot dispute, the officers cannot seek pretrial refuge behind a claim of qualified immunity. All officers know they cannot conduct business this way, and a fact finder must decide" which version of the facts is true. DuFour-Dowell v. Cogger, 152 F.3d 678, 680 (7th Cir. 1998).
Less than three minutes elapsed from the time Shelnutt entered Leaf's apartment to the time he shot Leaf. The circumstances that occurred during that time coalesce into one fluid incident that cannot fairly be separated into separate phases. Thus, the jury's decision as to the reasonableness of Shelnutt's actions between the time he entered the apartment and the time he shot Leaf also affect whether Shelnutt is entitled to qualified immunity. The Seventh Circuit has established that the unreasonable manner in which an officer conducts a search or seizure will put the officer at risk for having created the dangerous situation that required force, thereby stripping the officer of qualified immunity. See Sledd v. Lindsay, 102 F.3d 282, 287-88 (7th Cir. 1996). The court in Sledd v. Lindsay relied on a Sixth Circuit Court of Appeals case that held that where the officer acted objectively unreasonable in his entry, he unreasonably created the need for force. See Id. (citing Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991) (upholding district court's denial of summary judgment on qualified immunity)). "[B]ecause [the officer's] actions preceding the shooting were not those of an objectively reasonable police officer, we conclude that qualified immunity is not appropriate." Yates, 941 F.2d at 447.
The jury is entitled not only to resolve the factual disputes, but to consider whether Shelnutt's conduct leading to the shooting was objectively reasonable. Summary judgment is DENIED on qualified immunity grounds.
G. STATE LAW IMMUNITY 1. Officer Shelnutt
Pursuant to the Indiana Tort Claims Act ("ITCA"), Shelnutt is immune from liability on Plaintiffs' state law claims for trespass, assault and battery, and negligence. "A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following:. . . (8) the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment" Ind. Code § 34-13-3-3 (West Supp. 2002). The parties agree Shelnutt was acting within the scope of his employment. "Enforcement of a law" within the meaning of the ITCA includes "those activities in which a government entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof." Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind. 1994). Law enforcement is not limited to arrest or pursuit of suspects. Quakenbush v. Lackey, 622 N.E.2d 1284, 1287 n. 3 (Ind. 1993).
Plaintiffs claim that Shelnutt's conduct amounted to false arrest, and that because false arrest is excepted from immunity under the ITCA, Shelnutt is stripped of "any immunity afforded by" the ICA. Complaint ¶¶ 152, 155 (emphasis added). While it is true that Shelnutt would not be immune to a claim for false arrest, if one existed in this case, that fact does not deprive him of immunity to other state law claims.
Even if Shelnutt was negligent in performing his law enforcement duties, he retains his immunity on Plaintiffs' negligence claim. `To exempt negligent acts from immunity under the [ITCA], the explicit purpose of which is to shield government entities from liability for losses resulting from the performance of various governmental functions, would render the act largely meaningless. It is, after all, the Tort Claims Act." City of Anderson v. Davis, 743 N.E.2d 359, 365 (Ind.Ct.App. 2001). Officers also are immune where their conduct constitutes an intentional tort. Id. (citing City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind.Ct.App. 1999)).
More importantly for this case, officers are immune from state law claims based on alleged excessive force or other illegal acts. Id. at 366 n. 4. "[A] police officer's use of excessive force or performance of his duties in an otherwise illegal manner would not appear to take those activities outside the scope of his employment . . . or beyond the realm of law enforcement." Id. (citations omitted). This Court previously has adopted the view that since Davis, state law claims based on allegations of excessive force are barred by the ITCA. Sellers v. Marion County Sheriff's Dep't, No. IP 01-0474-C-M/S, 2002 WL 1620008, *5-*6 (S.D. Ind. July 27, 2002). Thus, Shelnuttis also immune from the assault and battery claim based on the alleged use of excessive force. Defendants' motion for summary judgment as to Plaintiffs' claims for trespass, assault and battery and negligence is GRANTED.
Shelnutt is immune to Plaintiffs' trespass claim because he was enforcing the law and within the scope of his employment; however, even if Shelnutt were not immune, the Court has already found that exigent circumstance justified Shelnutt's entry into Leaf's apartment.
2. The Sheriff
Indiana law also provides for immunity of governmental entities from suit for "[t]he performance of a discretionary function." Ind. Code § 34-13-3-3(7) (West Supp. 2002). Defendants argue that the Sheriff is immune from Plaintiffs' claims of negligent hiring and retention because those are discretionary functions. The Indiana Supreme Court decided several years ago, in Foster v. Pearcy, 387 N.E.2d 446 (Ind. 1979), that employment and supervision were discretionary functions, for which governmental entities would be immune to suit. Foster, 387 N.E.2d at 450. However, in 1988 the court abandoned the "discretionary-ministerial test" and adopted the "planning-operational test" for determining when a governmental function is discretionary. Peavler v. Board of Comm'rs of Monroe County, 528 N.E.2d 40, 46 (Ind. 1988).Under the planning-operational test, the entity will not be liable for alleged negligence that arises from decisions made at the planning level. Id. at 43. Those planning activities for which an entity is not subject to liability are those that involve "formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy. . . . If the act is one committed to coordinate branches of the government involving policy decisions not reviewable under traditional tort standards of reasonableness, the government is immune from liability even if the act was performed negligently." Id. at 45.
Since Peavler, it appears no Indiana court or federal court in Indiana has applied the planning-operational test to claims of negligent hiring and retention. This Court finds it would be a stretch to determine that hiring and retaining deputies is the type of function that involves weighing alternatives and choosing public policy. Further, claims of negligent hiring and retention easily lend themselves to being reviewed according to "traditional tort standards of reasonableness." See Peavler, 528 N.E.2d at 45. Other state courts that have abandoned the discretionary-ministerial test in favor of the planning operational test similarly exclude claims of negligent hiring and retention from the cloak of immunity. See, e.g., Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 906, 908 (Tenn.Ct.App. 1993) (collecting cases); Pacifico. v. Froggatt, 591 A.2d 1387, 1389 (N.J.Super.Ct. 1991); Willis v. Dade County Sch. Bd., 411 So.2d 245, 246 (Fla.Dist.Ct.App. 1982) (explaining that although the creation of a position is a planning function, the actual placement of a person in that position is an operational function). Defendants are not entitled to immunity on Plaintiffs' claims of negligent hiring and retention. Defendants' request for qualified immunity on these claims is DENIED.
IV. CONCLUSION
For all of the reasons stated, Defendants' motion for summary judgment is GRANTED as to Plaintiffs claims of violation of due process, unconstitutional policy or custom, and on the state law claims against Officer Shelnutt, and DENIED as to Plaintiffs' claims of unlawful entry and search, excessive force, failure to intervene, qualified immunity, and state law immunity for the Sheriff.
IT IS SO ORDERED.