Opinion
IP 99-1684-C T/G.
January 31, 2001.
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
On November 13, 2000, this court held a bench trial on the following matters brought by Plaintiff, Nathan Phillips, against Defendants, the Sheriff of Marion County and Byron Grandy, a deputy sheriff. Mr. Phillips sued Defendants alleging that his constitutional rights under the Fourth and Fourteenth Amendments were violated because Officer Grandy used excessive force while arresting Mr. Phillips and use of such force was an unconstitutional custom or policy of the Marion County Sheriff's Department. Mr. Phillips further alleged that Officer Grandy, while in the scope and course of his employment, did commit a battery upon him. Following trial, the court having considered all of the evidence, including all of the testimony and exhibits, and applying the facts to the relevant law now finds in favor of Defendants and against Plaintiff.
Any finding of fact, to the extent that it constitutes a conclusion of law, is herein incorporated by reference as an additional conclusion of law. Similarly, any conclusion of law, to the extent that it constitutes a finding of fact, is adopted as such. This order constitutes the findings of fact and conclusions of law mandated by Federal Rule of Civil Procedure 52(a).
I. FINDINGS OF FACT
Nathan Phillips, by his own admission, was a drug dealer. And as is often the case, his greed exceeded his instincts about the people with whom he did business. This led to his efforts to conduct what he thought was a "swap" deal, marijuana for cocaine, with a man named Byron Grandy, whom he thought was a fellow drug trafficker. As it turned out, though, Byron was actually an undercover deputy sheriff. Tragically, in the course of conducting the hoped for swap, Nathan learned Byron's true identity the hard way — as Byron was placing Nathan under arrest, Byron's gun discharged and Nathan was shot in the head. This case is before the court for a determination of whether that shooting was a violation of Nathan's federal constitutional rights or was a tortious battery against him in contravention of Indiana tort law.
Nathan was not a newcomer to the criminal world at the time of these events. He had been convicted of a burglary a couple of years earlier and was serving a probationary sentence at the time of his ill-fated drug dealing.
Grandy had been a deputy sheriff for about 20 years and had worked in drug enforcement for about 9 years at the time of this incident. He had received extensive training in undercover drug investigations and the use of firearms, and in fact had served as a training officer with respect to drug investigations. His expert firearms qualifications recognized his ability to accurately fire a weapon both right and left handed.
In February of 1997, Nathan met a young man named Brian who was dating a young lady who lived next door. According to Nathan, he and Brian double dated, ran around and "partied" together, from which the court infers meant that they may have consumed some illegal drugs together. One thing led to another, and within a short while, Brian said that he had a good friend who wanted to buy some pot (marijuana) and he hoped that Nathan could accommodate him. Nathan did not reject that suggestion so on April 8, the friend, Byron Grandy stopped by Nathan's residence, seeking to acquire some pot. Nathan initially sent Byron away because he didn't have any pot to deal at that time, but arranged to contact him by pager later after he had acquired some pot from his source.
Nathan did page Byron later that day, and they arranged to meet at Nathan's apartment complex. The meeting took place in an automobile and the transaction for a quarter pound of pot went off without a hitch. During the course of the transaction, Grandy had entered the vehicle driven by Nathan and rode around with him briefly. Byron let it be known that he wanted to acquire more pot and that he had some cocaine that he wanted to get rid of in exchange for pot. Byron indicated that he had more cocaine than he needed, but that he just couldn't get his hands on enough pot. Nathan was open to swapping some pot for cocaine, so tentative arrangements were made to have contact the following day and conduct such a deal.
They did link up on April 9 and arranged to meet at the Emerson Village Apartments in Beech Grove, Indiana, a place chosen by Nathan. Nathan expected Byron to be driving the same car he had during their prior encounters, a black Ford Thunderbird. Nathan carried a quarter pound of pot to the meeting and he also outfitted himself with a 9 MM, semiautomatic handgun (a common tool of the drug trade), which he stuck in the waistband of his pants. Nathan went to the location during the prearranged time, between 3 and 4 in the afternoon; however, he could not locate Byron. Nathan was being driven by his brother, who was going to drop him off and Nathan hoped to get a ride back with Byron.
This may have created some confusion because Byron expected Nathan to be in the same vehicle that he had been in the previous day, and he expected him to arrive alone. They may have missed each other initially at the Emerson Village location because of a lack of recognition. Eventually, though, contact was made after a series of pages and Nathan's brother drove him to a pay phone where Nathan made telephone contact with Byron. Byron indicated that he would be at the meeting location by the time Nathan got back there, which turned out to be true.
Grandy had taken the usual precautions appropriate for such an undercover meeting. He was outfitted with a "kel set" radio transmitting device and he was accompanied by several (six or seven) other members of the Sheriff's Department drug investigation unit. These other deputies, who had worked together on many other situations like this one, traveled to the meeting area in other vehicles. By virtue of the kel set device, two of the deputies (Morgan and Moore) were able to overhear the activities taking place in Grandy's vehicle and near Grandy's person. They were also able to observe the situation from nearby locations.
Upon his return to the Emerson Village Apartments, Nathan spoke briefly to Byron about his need for a ride after their business was done and when Byron agreed to provide for Nathan's transportation, the brother drove away. The scenario began to get a little unusual, from Grandy's perspective, at that time. It seemed unusual that Nathan would be dropped off and get into a vehicle with him because the deal should not have to take that long. He could have just done the deal and been driven off by the person who brought him.
When he realized that Nathan would be entering his vehicle, Grandy surreptitiously placed his gun on his left hand side, between the seat and the door. He ordinarily kept it on his right hand side (he is right handed), but he expected that Nathan would have been able to see it there, so he placed it on the other side for concealment.
Also, after arranging for the ride, Nathan walked off toward one of the apartment buildings and walked into the entryway, out of Grandy's line of vision, and stood there for a moment. He then walked back to the passenger side of Grandy's vehicle. He opened the car door, but rather than entering the vehicle in the normal manner, he backed into it, appearing to do so in order to prevent Grandy from seeing the front of his person. Grandy was quite suspicious that Nathan was armed at that time. He was acting quite different than he had during the previous transaction. Nathan then placed about a quarter pound of pot on the seat between himself, in the passenger side of the front seat, and Grandy, in the driver's seat. They had a brief conversation, focused on the fact that the quantity of pot was not what had been agreed upon. Byron said that the deal had been a pound of pot for an ounce of cocaine. Nathan indicated that his "dope man" (source) wanted to examine the cocaine first, to make certain that it was the correct amount and of sufficient quality before producing the balance of the pot. Nathan had seen the package of cocaine in Byron's shirt pocket. Byron pulled the ounce of cocaine out of his pocket and showed it to Nathan, indicating that he had come prepared to do business, and that the cocaine was not going anywhere until he had the full order of pot. Grandy then put the cocaine back in his shirt pocket and gave the audible pre-arranged signal (the name "Jerry") so that his cohorts would know that an arrest was about to take place. Grandy felt that the deal was getting "hinckey" (fouled) so he decided to bring the matter to a conclusion with an arrest. He had the evidence from the prior day's transaction and Nathan's presence at this scene with the pot so he felt he had plenty of evidence for an arrest.
Some small talk continued briefly in the Thunderbird while Grandy looked for some sign that his partners had heard his signal. There was no movement of their vehicles which indicated to him that they had not heard him, so he gave the signal again. He then saw their cars move, so he initiated the arrest. He did so by reaching for his gun with his left hand, and announcing to Nathan in a loud tone of voice that he was a sheriff's deputy and that Nathan should put his hands up. Nathan did not respond as Grabdy had hoped.
Instead, Nathan swung his left hand toward Grandy and began to reach into his waistband with his right hand. Grandy then yelled again, this time: "Sheriff's Department, put your fucking hands up!" Nathan continued to wrestle with Grandy's left arm or strike it, with his left hand, as though he was reaching for Grandy's gun or trying to push it away, simultaneously reaching into his own waistband. Grandy's gun then discharged, the bullet striking Nathan in his left cheek.
Grandy did not actually see Nathan's weapon until after the shooting.
Nathan claims that prior to the discharge of the gun, Grandy had not identified himself as a police officer in any way. He implied in his direct testimony that when Grandy raised the gun was his first clue that Grandy was a cop. He also claimed that as Grandy was raising the gun, his only response was to raise his hands in an act of surrender. That testimony was not credible. In addition to Grandy's credible representation that he announced his police identity while raising the gun, another experienced officer (Morgan) corroborated that testimony by his report of what he heard via the kel set transmission. On balance, the testimony of these two law enforcement officers is more credible than the testimony of twice convicted Nathan on this point. Besides, on cross examination Nathan admitted that he suspected that Grandy might be a cop even before he went to the Emerson Village meeting.
At first Nathan thought his face had only been hit by the black powder discharge of the weapon, but quickly he could tell that he was actually shot because of the warmth of the blood flowing from the wound. Nathan then reached for the passenger door and rolled out of the car and onto the ground. He landed on his back and he remained in that position.
Another experienced drug investigator, sheriff's deputy Jerry Morgan, a 25 year veteran of police work, was performing back up surveillance and monitoring of the Grandy conversations during the April 9 swap. He and another experienced deputy, Sergeant C.S. Moore were positioned near Grandy's vehicle in another automobile. They had the receiving equipment for the kel set in their car and had found it to be working properly before going to the site. From their position, they were able to observe Grandy and could hear the conversation in his car with the listening device. They also had a tape recorder in conjunction with the kel set receiver. Unfortunately, though, when Morgan went to activate the tape recorder, he hit the forward button instead of the record button, so no recording was made. Morgan did hear the conversation between Grandy and Nathan, and was able to see Nathan walk from Grandy's car to the apartment entryway. Rather than enter any apartment, Nathan just stood in the entry for a moment and then returned to the Thunderbird. Shortly thereafter, Morgan heard Grandy call the "take down" signal (Morgan's first name) and he radioed the other back up officers that the arrest was to take place. Morgan then began backing his vehicle out of its parking space and began heading toward Grandy's vehicle. While doing this, he heard Grandy say, "Sheriff's Department, get your fucking hands up!" followed by the statement, "Get your hand off my gun." He heard Grandy identify himself as a police officer twice.
By this time, all of the back up and surveillance officers were converging on the Thunderbird. Morgan bailed out of his car and approached the passenger side of the car. He noticed that the passenger side window had been blown out and Nathan was on the ground. He did not hear the shot.
One of the other members of the back up team, Cary Buckner, received notice of the take down signal from Morgan and began approaching the Thunderbird from the rear. He began about 30 meters from the vehicle and ran as fast as he could toward the rear of it. He could see in the back window of the vehicle and observed Grandy with his gun raised, and Nathan's hand grabbing at the gun. He approached the passenger side window and could see Nathan, but not his right hand. Nathan had his left hand either on the bottom of Grandy's gun or on Grandy's hand, and continued grabbing at the gun. Buckner stepped back for a moment, and at that instant, the passenger window was blown out. He then observed Nathan rolling out of the car, holding both sides of his face. Buckner immediately pointed his shotgun at Nathan and placed him under arrest.
Buckner was not certain whether Grandy had his gun in his right or left hand.
The next thing Nathan heard was the sound of a car door shutting. He heard someone say, "Does he have any weapons?" Nathan did not respond and he heard no one else respond. He then rolled onto his side to keep the blood from draining down his throat so that he would not choke on it. A police officer (not Grandy) then came up to him and asked him directly whether he had any weapons. Nathan then told the officer where his gun could be found and it was removed. Shortly thereafter, an ambulance arrived and Nathan was rushed to the hospital where he was given medical treatment for the gunshot wound. He suffered no other injuries.
II. CONCLUSIONS OF LAW
A. Excessive Force
Nathan alleges that Defendants violated his Fourth and Fourteenth Amendment rights by using excessive force in seizing his person. Nathan further alleges that such violations were caused by the implementation of a custom or policy of the Sheriff's Department.
As an initial matter, the court notes that because Nathan's claim of excessive force is covered under the Fourth Amendment, the court will analyze his claim using the standards applicable to that Amendment only, not "under the rubric of [Fourteenth Amendment] substantive due process." United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) ("Graham [v. Connor, 490 U.S. 386 (1989)] . . . requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eight Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process."). The Supreme Court has instructed: "[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.
"[T]he Fourth Amendment prohibits the use of excessive force during the execution of a seizure." Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000) (citing Graham, 490 U.S. at 395). In Jacobs, the Seventh Circuit clearly articulated the law applicable to this case. There, the court held:
In order to decide whether the amount of force used during a seizure is `excessive,' we examine the totality of the circumstances to determine whether the intrusion on the citizen's Fourth Amendment interests was justified by the countervailing government interests at stake. The Fourth Amendment test is an objective one, where the officer's subjective good or bad intentions do not enter into the analysis. Instead, we consider factors such as 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. We also consider whether the citizen was under arrest or suspected of committing a crime, was armed, or was interfering or attempting to interfere with the officer's execution of his or her duties. In the end, the excessive force inquiry looks to whether the force used to seize the suspect was excessive in relation to the danger he posed — to the community or the arresting officers — if left unattended.
Id. (internal citations and quotations omitted).
Nathan does not complain that the arrest was unjustified. Clearly, Grandy had probable cause to effectuate an arrest. Nathan only complains that when executing the arrest Grandy used excessive force. Applying the law set forth by the Seventh Circuit, it is more than clear that Grandy did not use excessive force in seizing Nathan.
It is hard to define exactly what force was used. Of course, Grandy's gun discharged resulting in a bullet striking Nathan in the face. But, there is no evidence whatsoever that Grandy purposefully discharged his weapon. Rather, it appears that the weapon was discharged accidentally as a result of the struggle that occurred between Grandy and Nathan. Moreover, the other factors that the Seventh Circuit has instructed be considered add additional support for this conclusion. First, Nathan clearly posed an immediate threat to Grandy, the other approaching officers and the community at large when Nathan lunged at Grandy and began to wrestle him for the his gun. Second, Nathan was very actively resisting Grandy's attempt to effectuate an arrest when he was shot in the face. Additionally, at the time the struggle ensued, Nathan was not only armed but had committed at least two criminal acts in pursuing his drug trading business. Under the circumstances faced by Officer Grandy, the accidental discharge of his weapon was certainly not excessive force.
Nathan's wound also supports the conclusion that Grandy did not purposefully discharge his weapon in the manner Nathan suggests. As stated above, Grandy had received extensive training in the use of firearms and was qualified to fire his weapon with either his right or left hand. If Nathan's version of the events were true, then it must be that Grandy (1) was attempting to only graze Nathan's cheek with his shot, (2) was attempting to shoot-off Nathan's ear, or (3) missed his mark from what could not have been more than a few feet at most. All of these versions are equally unlikely.
As an aside, the court notes that Nathan did not present even a scintilla of evidence that use of the force he accuses Officer Grandy of applying was in furtherance of an unconstitutional custom or policy of the Sheriff's Department. As such, the court need not discuss this claim further, except to add that in the absence of an underlying constitutional violation, of which there was none here, a governmental unit cannot be found liable as the consequence of a custom or policy. See, e.g., Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978) ("[T]he language of § 1983 . . . compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.").
B. Battery
Nathan also claimed that Grandy, while acting in the scope and course of his employment, committed a battery against Nathan. As an initial matter the court notes that there is no dispute that Grandy was acting in the scope of his employment when the incident which is the subject of this lawsuit occurred. Thus, only the Sheriff's Department is a proper defendant to this claim. See I.C. § 34-13-3-5 ("A lawsuit alleging that an employee acted within the scope of the employee's employment must be exclusive to the complaint and bars an action by the claimant against the employee personally."). Battery, under Indiana law, is defined as "a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent." Fields v. Cummins Employees Fed. Credit Union, 540 N.E.2d 631, 640 (Ind.Ct.App. 1989). Under Indiana law, battery is an intentional tort. See Boruff v. Jesseph, 576 N.E.2d 1297, 1298 n. 3 (Ind.Ct.App. 1991). Thus, in order to be liable for a battery, a defendant must have intentionally made contact with another person. Nathan's claim fails because he has not offered evidence to show that Grandy's physical contact with him was intentional. Rather, the evidence establishes that the physical contact between Nathan and Grandy was initiated by Nathan, not Grandy, and that the bullet which struck Grandy was the result of an accidental discharge of Grandy's weapon, not necessarily fired by Grandy.
Furthermore, Grandy and the Sheriff's Department are entitled to immunity for Grandy's conduct. Nathan has failed to explain why Grandy's actions do not come under the immunity statute, I.C. § 34-13-3-3(7). That section provides:
A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from:
* * *
(7) the adoption and enforcement of . . . a law . . ., unless the act of enforcement constitutes false arrest or false imprisonment[.]
Id. Grandy was most certainly seeking to enforce a law, and clearly, his actions did not constitute a false arrest or false imprisonment. In fact, Nathan does not dispute this. Also, this court concluded above that Grandy's use of force did not violate Nathan's constitutional rights and, thus, was not excessive or illegal. Accordingly, Grandy's conduct was immunized under I.C. § 34-13-3-3(7). See O'Bannon v. City of Anderson, 733 N.E.2d 1, 3 (Ind.Ct.App. 2000) (holding that police officers' conduct, which included firing into the plaintiff's home, searching that home, and momentarily seizing the plaintiff, was immunized under I.C. § 34-13-3-3(7) because the officers were seeking to enforce the law and did not use excessive force in doing so, and their actions did not amount to a false arrest or false imprisonment).
Although Nathan does not otherwise allege, the court notes that Grandy's actions did not offend I.C. § 35-41-3-3(b), which provides:
(b) A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:
(1) Has probable cause to believe that that deadly force is necessary:
(A) To prevent the commission of a forcible felony; or
(B) To effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and
(2) Has given a warning, if feasible, to the person against whom the deadly force is to be used.
III. CONCLUSION
Nathan has failed to prove by a preponderance of the evidence either that a violation of his constitutional rights or a state law battery occurred in connection with the events of April 9, 1997. Based on the facts and law set forth in this Entry, Nathan is not entitled to prevail. Therefore, a final judgment consistent with this Entry and in favor of Defendants will be entered.
ALL OF WHICH IS ORDERED this 31st day of March 2001.