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Estate of O'Bryan v. Town of Sellersburg

United States District Court, S.D. Indiana
May 20, 2004
NO. 4:02-cv-00238-DFH-WGH (S.D. Ind. May. 20, 2004)

Opinion

NO. 4:02-cv-00238-DFH-WGH

May 20, 2004


ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT


Plaintiff Lee Ann Posante filed this suit on behalf of herself and the estate of her late son, Matthew O'Bryan. Posante alleges that Indiana State Police (ISP) troopers unlawfully seized her in her home and that Sellersburg police officer Major Mark Levesque unlawfully approached the residence and shot O'Bryan three times. (O'Bryan survived the shooting but later died in an unrelated incident.) Posante asserts claims arising under the United States Constitution, the Indiana Constitution, Indiana statutory law, and Indiana common law pursuant to the Indiana Tort Claims Act. Defendants are the Town of Sellersburg and its police department, Mike Stricker in his official capacity as Chief of the Sellersburg Police Department, Sellersburg Police Major Mark Levesque in his official and individual capacities, and ISP Troopers Joshua Banet and Brian Rogers in their official and individual capacities.

Defendants have moved for summary judgment, and those motions are granted in part and denied in part. A number of genuine and material factual disputes require denial of summary judgment as to several claims. Plaintiffs' evidence could allow a reasonable jury to find that Troopers Banet and Rogers seized Posante by holding her at gunpoint without probable cause as she stood in her garage, and that the action violated her constitutional rights. Plaintiffs' evidence could also allow a jury to find that Major Levesque used excessive force against O'Bryan by shooting him as he was leaving his apartment in the home. The record therefore requires denial of summary judgment on all federal claims except for the claim against the Town of Sellersburg. Plaintiffs have not presented sufficient evidence to show that the town had an unconstitutional custom or policy actionable under 42 U.S.C. § 1983. Plaintiffs' state law claims under the Indiana Constitution also cannot survive because the Indiana Supreme Court has not recognized an implied right for a private cause of action under the Indiana Constitution. Additionally, plaintiffs' claims for negligent/intentional infliction of emotional distress cannot survive summary judgment because defendants are immune from liability under the Indiana Tort Claims Act. Plaintiffs' state law claims for assault and battery survive summary judgment.

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 non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When a properly supported motion for summary judgment is filed, the non-moving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita, 475 U.S. at 586-87; Logan v. Caterpillar, Inc., 246 F.3d 912, 923 (7th Cir. 2001). Irrelevant or unnecessary factual disputes do not defeat summary judgment. Clifton, 969 F.2d at 281. In considering defendants' motions, the court must consider the evidence in the light reasonably most favorable to the opposing side, giving plaintiffs the benefit of all reasonable 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. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).

Once a party has made a properly supported motion for summary judgment, the opposing parties may not simply rest upon the pleadings but must instead submit evidentiary materials that "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the non-moving parties bear the responsibility of identifying the evidence upon which they rely. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996). 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 he 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 Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).

Disputed and Undisputed Facts

In light of the summary judgment standard, the following facts are either undisputed or reflect the evidence in the light reasonably most favorable to plaintiffs.

Matthew O'Bryan lived in the basement apartment beneath the home belonging to his mother Lee Ann Posante in Sellersburg, Indiana. Posante Dep. at 5. Douglas Payton, a friend of O'Bryan's, had just moved into the basement apartment with O'Bryan during the afternoon of December 9, 2000. Id. That evening, O'Bryan and Payton went to dinner at a local restaurant where they consumed a few alcoholic drinks. After dinner they accompanied friends to a local bar for more drinks. Payton Dep. at 8. By the time they returned home that night, Payton was intoxicated and believed O'Bryan was as well. Id. at 9, 19.

Around midnight that same night, police officers received a 911 report that a woman's ex-boyfriend was trying to force his way into her home on Paradise Avenue in Sellersburg, Indiana. The officer who took the call, Trooper Joshua Banet of the Indiana State Police, could hear what sounded like someone banging on a door in the background. Banet Dep. at 6. Banet and Trooper Brian Rogers, also an Indiana State Police officer, were on duty at the ISP's Sellersburg post. After Banet received the 911 call, both troopers proceeded to the residence on Paradise Avenue. Before leaving the post, Banet instructed the dispatcher to contact the Sellersburg Police Department to have a Sellersburg police officer sent to the residence. Id.

Major Mark Levesque of the Sellersburg Police Department was at the police department assembling office furniture when the dispatcher received the call for assistance from Banet. Levesque Dep. I at 17. Levesque was wearing blue jeans, at-shirt, and a button-down shirt unbuttoned. Levesque Dep. I at 63-64; Rogers Dep. at 22-23. He also wore a baseball hat with "POLICE" in gold letters across the front. Levesque Dep. I at 19. He had his gun in a holster on his belt on his right hip, and his badge was slightly in front of the gun on his belt. Levesque Dep. II at 7; Levesque Dep. I at 50. After receiving the call from Banet, Levesque advised Banet that he was on his way and left for the residence on Paradise Avenue. Along the way, he received a radio call from another Sellersburg police officer, Jason Spray. Spray offered to accompany Levesque. Levesque Dep. I at 20.

Major Levesque testified in two separate depositions. The first deposition was conducted on September 26, 2001 and is cited here as "Levesque Dep. I." The second deposition was conducted on November 25, 2003 and is cited as "Levesque Dep. II."

Levesque and Spray were the first officers to arrive on the scene on Paradise Avenue. Levesque secured the back of the residence while Spray approached the front door. Levesque Dep. I at 21. The officers used this procedure pursuant to a Sellersburg policy that officers in plain clothes attending to a situation with uniformed officers would not approach the front of the residence but would secure the rear of the residence. Levesque Dep. I at 22, 100; Stricker Dep. at 14. This policy was intended to provide notice to residents and to ensure officer and civilian safety. Levesque Dep. I at 23. Upon inquiry inside the residence, Spray learned that the suspect had gone. Id. at 24.

Troopers Banet and Rogers arrived at the scene and entered the residence with Spray. Levesque never entered the residence. Vicky Clements was the complainant and O'Bryan's ex-girlfriend. Clements told Spray that O'Bryan had called her and had come to her home, though she told him he was not welcome. She claimed he grabbed her and tried to force his way into her home. Spray Aff. ¶ 3.

As noted below, Spray's testimony on this point is offered not for the truth of the matters asserted by Clements, such as to prove that O'Bryan took these actions, but to show the information the officers had available to them.

As Spray was taking a statement from Clements, her telephone rang. Clements' caller identification device indicated that the caller was O'Bryan. Spray answered the phone and identified himself as a police officer. In that conversation, O'Bryan requested that Spray come to his house but did not give his address. Spray told O'Bryan to go to the police department and hung up the phone. Spray Aff. ¶ 4. The phone rang a second time and Banet answered. It was O'Bryan again. Banet identified himself as a police officer and informed O'Bryan that the officers were there taking a statement from Clements and that the officers would come to O'Bryan's house to get "his side of the story". Banet Dep. at 10. Banet claims O'Bryan got "somewhat belligerent," telling him to "come on over." O'Bryan told Trooper Banet to call Judge Fleece of the Clark Superior Court; Trooper Banet declined. Banet Dep. at 11. Banet told O'Bryan not to call Clements again. Spray Aff. ¶ 6.

At that point, the officers decided to go to O'Bryan's house. Plaintiffs claim, and Levesque and Banet admit, that the officers' purpose was to arrest O'Bryan for battery and attempted residential entry. Levesque Dep. I at 31; Banet Dep. at 36. Spray obtained O'Bryan's address from dispatch. Levesque recognized the address as a residence where he had previously assisted officers in serving an arrest warrant for a suspect who lived in the basement apartment there. That suspect was wanted for aggravated battery. Levesque Dep. I at 35, 105. This information heightened the tension for the officers on the way to O'Bryan's home. Banet Dep. at 12; Rogers Dep. at 12. There was discussion among the officers that they might have to fight the suspect and about the maneuvers they might have to use to subdue him. Levesque Dep. I at 30; Banet Dep. at 16; Rogers Dep. at 12-13.

Spray stayed at Clements' house. Banet, Rogers and Levesque drove separately to O'Bryan's house. Levesque Dep. I at 39-40. O'Bryan continued to call Clements' residence. Spray continued to answer the calls. In one of the conversations between the two, Spray claims O'Bryan told Spray to come over so he could "show [Spray] what he was talking about." Spray asked if, by that, O'Bryan meant he "wanted to kick my a**," and O'Bryan answered in the affirmative. Spray Aff. ¶ 7. Spray interpreted that as a threat and radioed Levesque to inform him that O'Bryan had just committed intimidation of a police officer, a felony. See Ind. Code § 35-45-2-1(b)(1)(B)(I). Levesque communicated that information to Banet and Rogers by radio. Levesque Dep. I at 45.

Spray received more phone calls from O'Bryan. Spray claims that during the last phone call, he heard a female voice in the background saying that there were "a bunch of police cars out front." O'Bryan replied, "There better f****** not be." Spray claims that O'Bryan said to Spray, "I'm going to kill you. My uncle is Judge Fleece. What is your name?" The call was then ended. Spray Aff. ¶ 8.

Once the officers arrived at O'Bryan's residence at 7004 Highway 311, they turned off their headlights to avoid detection. Levesque Dep. I at 45. Troopers Banet and Rogers approached the front door on the south side of the house, and Levesque, of his own accord and without instruction from the state troopers, proceeded to the back of the residence to make sure that the suspect did not try to leave the residence from the back. Banet Dep. at 22; Levesque Dep. I at 47; Levesque Dep. II at 16. Troopers Banet and Rogers claim they knocked on the front door. Banet Dep. at 22. Lee Ann Posante, O'Bryan's mother, testified that she did not hear knocking and that she had four dogs that would bark at the least bit of commotion. Her dogs did not bark to announce anyone knocking at the front door. Posante Dep. at 70. For purposes of summary judgment, the court must assume there was no knock on the door.

As the state troopers were standing at the front door, Levesque poked his head around the southeast corner of the house to tell the troopers that he remembered that O'Bryan lived in the basement apartment, which had a separate entrance on the east side of the house where he was positioned. Levesque saw only one of the troopers — he is not sure which one — and assumed the troopers had already made contact inside. He repositioned himself along the southeast wall of the house close to the stairs leading down from the front of the house to the basement entrance. Levesque Dep. I at 53, 56.

The troopers, allegedly unsuccessful in attempting to reach any occupants by knocking at the front door, testified that they were going to try knocking on the door leading from the house into the attached garage. Banet Dep. at 25-26. The main garage door leading outside was open. Posante Dep. at 13.

Posante, wearing a t-shirt, was in her kitchen around 12:15 a.m. when she thought she heard noises coming from her garage. Id. at 21-22. According to her testimony, she went into the garage thinking that her son and Payton were making noise. Id. at 12. When she stepped into the garage, she saw two police officers standing on the sidewalk just outside her garage, one of whom pointed a gun at her and began yelling at her not to move. Id. at 12, 15. That officer was leaning back to look around the side of the southeast corner of the house. Id. at 12-13, 116. She yelled back at that officer asking what was going on and asking where her son was. Id. at 13. According to Posante, these events occurred before any shots were fired. Id. at 30-31.

Levesque testified that he believed he heard Rogers' voice coming from inside the basement. Levesque Dep. I at 56. He began to walk down the stairs leading into the basement. Id. at 60. He had his hand on his gun and his button-down shirt pulled back over his gun and badge, id. at 63-64, but he walked down the stairs at a sideways angle leading with his left side; his right side with the badge was turned away from the basement entrance. Id. at 68. His back was therefore turned toward the wall of the house as he walked down the stairs. The basement entrance was in front of him to his left. He reached the second or third step down when the basement door opened and O'Bryan walked out and started up the stairs. Levesque saw O'Bryan with a cordless phone to his left ear and a revolver in his right hand. Id. at 64-66.

O'Bryan later told Posante and his father that he heard his mother scream and that is why he walked out of the apartment carrying his gun. D. O'Bryan Dep. at 13; see also Posante Dep. at 105. O'Bryan told his father that as he started out of the basement, he encountered Levesque at the top of the stairs with his gun pointed at O'Bryan. O'Bryan told his father only that Levesque said "Drop the gun," with no indication that he identified himself as a police officer. D. O'Bryan Dep. at 13. O'Bryan admitted to his father that there was some subsequent verbal exchange and he refused to drop the gun. Id.

In support of summary judgment, the Sellersburg defendants offered the statements O'Bryan made to his father as non-hearsay admissions of a party opponent against O'Bryan's estate under Fed.R.Evid. 801(d)(2)(A). See, e.g., Aliotta v. National Railroad Passenger Corp., 315 F.3d 756, 761 (7th Cir. 2003). Plaintiffs have argued that the same evidence supports their claims, tending to show, for example, that Major Levesque did not identify himself as a police officer before he shot O'Bryan. The Sellersburg defendants have objected to plaintiffs' use of this evidence. Defendants point out correctly that the statements, if offered by plaintiffs, would be inadmissible hearsay. (There is no indication that such statements by O'Bryan would fit any of the exceptions under Rule 804(b) for an unavailable witness.) Because defendants have already offered the statements as evidence, however, plaintiffs are free to use those same statements in opposing summary judgment by arguing for favorable inferences from the evidence already in the record.

Levesque claims that almost immediately after he saw O'Bryan coming out of the basement, O'Bryan pointed his gun at Levesque. Levesque Dep. I at 117-18. Levesque maintains that he identified himself as "Police" and told O'Bryan to "drop the gun," to which O'Bryan responded: "There ain't going to be no dropping the f****** gun," or something to that effect. Id. at 66. Levesque then fired twice in rapid succession at O'Bryan. O'Bryan turned to his right to go back into the house and Levesque fired a third time. Id. at 70. Levesque then retreated up the stairs and took a position above the basement entrance trying to see inside the basement. Id. at 72.

If a jury accepts Levesque's description of the event, then the shooting of O'Bryan might well have been reasonable under the Fourth Amendment. However, in light of the other evidence contradicting Major Levesque's testimony on other key details about his encounter with O'Bryan, a jury could find that Major Levesque's account is not reliable. The jury would not be required to accept his testimony that O'Bryan pointed a gun at him. Although there is no admissible evidence from the late O'Bryan specifically contradicting Levesque about whether he pointed a gun at Levesque, the court routinely instructs juries that if they believe a witness has lied about one point, they are free to discredit the witness's remaining testimony. See O'Malley, Grenig Lee, Federal Jury Practice and Instructions § 15.06 (5th ed. 2000) (model text of " falsus in uno falsus in omnibus" instruction); see also, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (if employer offers dishonest explanation for decision to fire employee, dishonesty can be important evidence of unlawful motive). The Seventh Circuit does not require courts to give the instruction, and has made clear that a court or jury is not required as a matter of law to disbelieve all the testimony of a witness who has lied about one fact. See, e.g., Alien v. Chicago Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003); Piraino v. Int'l Orientation Resources, Inc., 137 F.3d 987, 991 n. 2 (7th Cir. 1998); United States v. Schimmel, 943 F.2d 802, 808-09 (7th Cir. 1991) (not plain error to give instruction in criminal case). However, when a witness has lied about a key fact, it is reasonable and permissible to disbelieve that witness on other key facts. Even the Second Circuit case often cited as disapproving of the instruction recognized that a finder of fact may discredit all of a witness's testimony, but said it would be wrong to require a jury to discount all of a witness's testimony. United States v. Weinstein, 452 F.2d 704, 713 (2d Cir. 1971). Applying those general principles here on summary judgment, whether O'Bryan pointed a gun at Levesque is a genuinely disputed fact that is material to the constitutionality of the shooting.

Posante contends that no conversation between Levesque and her son ever occurred and that all she heard were shots fired. She testified in her deposition that from where she stood in the garage, she would have heard anything that was said between Levesque and O'Bryan on the basement stairs because there was a window in the garage that opened directly over that staircase. That window had been broken out. Posante Dep. at 51.

Thus, the evidence in the record would support three different versions of the encounter between Levesque and O'Bryan. Under Levesque's version, he identified himself as a police officer and ordered O'Bryan to drop his gun, and O'Bryan had pointed his gun at Levesque before Levesque fired. Under O'Bryan's version, Levesque ordered him to drop his gun but did not identify himself as a police officer. Under Posante's version, Levesque said nothing to O'Bryan before shooting him. Under the latter two versions, the court must also assume that O'Bryan did not point his gun at Levesque.

According to the state troopers, not until after the troopers heard the three gun shots did Posante come out of the house into the garage. Banet Dep. at 25; Rogers Dep. at 35. (On summary judgment, of course, the court must accept Posante's more favorable testimony about the sequence of events, which is that this seizure occurred before any shots were fired.) The troopers drew their guns, pointed them at Posante, and ordered her to show her hands. She complied. Banet Dep. at 26; Rogers Dep. at 35. Rogers approached Posante and followed her as she ran back into the house and downstairs into the basement of the house. Rogers Dep. at 37-38. At the same time, Banet ran around the side of the house where he knew Levesque had been waiting. Banet Dep. at 26. Rogers heard Levesque saying: "He's got a gun." Rogers Dep. at 34.

Rogers followed Posante into the house as far as the top of the inside basement stairs. Id. at 38. He could see O'Bryan lying wounded at the bottom of the stairs. Id. at 39. Rogers, still with weapon drawn, ordered O'Bryan to put his hands up where Rogers could see them. He shouted this command several times before O'Bryan complied. Id. at 39-40.

Levesque and Banet remained outside above the basement entrance shouting for the suspect to come out with his hands in the air. Banet Dep. at 29. Levesque told Banet that O'Bryan had pulled a gun and that Levesque had fired three shots. Levesque described the gun to Banet. When they heard Rogers inside shouting at O'Bryan to show his hands, Levesque and Banet entered the basement through the outside basement entrance. Id. at 33.

According to Posante, Levesque went to O'Bryan, who was lying on the basement floor, and kicked O'Bryan as though trying to move him with his foot. Posante Dep. at 19. Trooper Rogers handcuffed O'Bryan and began to attend to his medical needs. Id. at 20; Rogers Dep. at 41.

The police officers took Posante and Payton upstairs. There they confiscated a .22 caliber rifle from an upstairs closet. Posante Dep. at 22. After Posante handed over the rifle, she asked to see her son. The officer accompanying her answered, "Lady, just calm down, your son is gone." Taking this to mean that her son had died, Posante fell to the floor. One of the state troopers tried to comfort her and reassured her that her son was still alive. Id. at 22-23.

O'Bryan survived the shooting but was in a coma immediately after for nearly fifty days. He was in the hospital for seventy-four days. Id. at 24. O'Bryan lost two ribs, lost the feeling in his right leg, and suffered stomach and digestive tract disorders and shoulder damage. Cplt. ¶ 16. O'Bryan later died in an incident unrelated to this case. Posante Dep. at 29.

Posante brought this action as personal representative for O'Bryan's estate and on her own behalf alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution, Article 1, §§ 11, 15, and 16 of the Indiana Constitution, Indiana common law for the torts of assault, battery, and negligent and/or intentional infliction of emotional distress, and Indiana Code § 34-13-4-1 et seq. In an amended complaint, plaintiffs have sued the Town of Sellersburg, the Sellersburg Police Department, Chief of the Sellersburg Police Department, Mike Stricker in his official capacity, and Officer Levesque in his official and individual capacities. Plaintiffs have also sued Troopers Banet and Rogers in their individual capacities.

The initial complaint named as defendants the Indiana State Police and Indiana State Police Superintendent Melvin J. Carraway. This court dismissed all claims without prejudice against the State Police and Superintendent Carraway allowing plaintiffs the opportunity to cure the enumerated deficiencies. In the caption for the amended complaint, the State Police and Superintendent Carraway have been removed as defendants, and the record indicates no possible basis for holding them liable in this action under federal law.

Discussion

I. Evidentiary Issues

A. Officer Spray's Affidavit

In support of their motion for summary judgment, the Sellersburg defendants submitted an affidavit signed by Officer Jason Spray of the Sellersburg Police Department. Plaintiffs object to Spray's affidavit because it is not signed by a notary public or other person with authority to administer an oath. The objection is overruled. Spray signed the affidavit under penalty of perjury. Under 28 U.S.C. § 1746, an unsworn declaration may be used as an affidavit if the declarant states under penalty of perjury that the declaration is true. Spray's affidavit satisfies that requirement and is admissible in support of summary judgment. See Ford v. Wilson, 90 F.3d 245, 247 (7th Cir. 1996) (sufficient for affiant to declare under penalty of perjury that the factual assertions are true); United States v. McNeal, 82 F. Supp.2d 945, 950 (S.D. Ind. 2000).

In an extraordinary argument, plaintiffs next question Officer Spray's mental capacity to submit testimony in the declaration. Plaintiffs' attorney, Lonnie Cooper, claims in his own affidavit that Spray told him that he was suffering from mental and emotional problems. The court will not strike an affidavit based on an attorney's hunch that the affiant does not have the capacity to submit admissible testimony in an affidavit. Spray's declaration is only marginally relevant, but the court treats as undisputed for purposes of summary judgment statements that he made that have not been contradicted by opposing evidence. The jury may weigh Spray's credibility at trial.

Additionally, plaintiffs claim that the defendants' contention that it was O'Bryan calling Clements' residence on December 10 is based solely on their matching his name with the number that appeared on the caller identification device. Plaintiffs argue this evidence is not sufficiently authenticated under Federal Rule of Evidence 901(a). However, the evidence of who the officers thought was calling Clements' residence that night is admissible because it is not being offered for the truth of the matter asserted, but is being offered to show what the officers believed when they left Clements' residence to go to O'Bryan's residence. Ultimately, though, that evidence has limited relevance on the decisive issues now before the court.

Similarly, plaintiffs' objection to the defendants' evidence that Clements told Spray that O'Bryan had grabbed her and tried to force his way into her home is overruled. That evidence is also not being offered for the truth of the matter asserted and is instead being offered to show that Spray and the other officers believed they had reason to go to O'Bryan's residence to investigate the situation. The evidence is therefore admissible for that limited purpose.

B. Taped Statements

The Sellersburg defendants object to the admissibility of Clements' taped statement and Levesque's taped statement, both taken by Detective Makowsky of the Indiana State Police immediately following the incident. The taped statement by Clements is inadmissible as hearsay to the extent it was offered to prove the truth of any of Clements' assertions. If properly authenticated, the statement by Levesque would be admissible against him and the Town of Sellersburg as a party admission under Fed.R.Evid. 801(d)(2)(A) (D). Plaintiffs have failed to offer evidence authenticating the transcripts, so neither one is admissible on summary judgment.

C. O'Bryan's Arrest Record

Plaintiffs object to the admissibility of O'Bryan's previous arrests in 1993 and 1998. The state defendants presented these arrests as undisputed facts in their brief, see Def. Br. at 5, but did not argue that the arrests were relevant to the court's decision at summary judgment. The court agrees that the evidence is inadmissible pursuant to Federal Rule of Evidence 404(b), which excludes evidence of "other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." Such evidence is admissible only as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence of these arrests and the events underlying them does not fit within any of these exceptions and is therefore inadmissible. These matters have not been considered by the court.

II. Fourth Amendment Claims — The Merits

Plaintiffs assert their federal constitutional claims under 42 U.S.C. § 1983, which reads in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . .

Plaintiffs claim that the defendants violated O'Bryan's and Posante's Fourth Amendment rights to be free from unreasonable search and seizure when defendant officers entered their home on December 10th, pointed their weapons at Posante, and shot O'Bryan several times.

Under the Fourth Amendment to the United States Constitution, police officers who enter a person's home with the intent to arrest either must have an arrest warrant, or they must have probable cause for taking such action accompanied by exigent circumstances that require action before an arrest warrant can be obtained. Welsh v. Wisconsin, 466 U.S. 740, 749 (1984); Hadley v. Williams, ___ F.3d ___, 2004 WL 1080047, *3 (7th Cir. May 14, 2004) (reversing summary judgment on Fourth Amendment claim for unlawful entry to make arrest in a home).

Plaintiffs argue that defendants violated the Fourth Amendment in several ways. Plaintiffs' first theory is that the officers intended to arrest O'Bryan when they left Clements' residence and traveled to O'Bryan's residence. Their formation of the intent to arrest on their way to O'Bryan's residence, plaintiffs contend, was unconstitutional. Second, plaintiffs assert that the officers' presence at the Posante-O'Bryan residence and eventual entry into the home violated the Fourth Amendment. Third, plaintiffs maintain that the state troopers unlawfully seized Posante in the garage of her home by pointing their guns at her and ordering her not to move. Fourth, plaintiffs argue that Levesque's use of force against O'Bryan violated the Fourth Amendment. Viewed through the lens of summary judgment, the evidence would not support the first and second theories, but would support the third and fourth theories. Summary judgment is denied on those grounds.

A. Police Officers' Intent to Arrest O'Bryan

The officers did not violate the Fourth Amendment by merely proceeding to O'Bryan's residence with the intent to arrest him. Regardless of their subjective intentions, the officers would not have violated the Constitution by going to O'Bryan's house, knocking on the door, and trying to talk to him to investigate what had taken place at Clements' home earlier that evening. The Fourth Amendment is not implicated until an actual search or seizure takes place, such as when the police actually enter a home or seize its occupants. See McCoy v. Harrison, 341 F.3d 600, 605 (7th Cir. 2003). Assuming that the officers went to O'Bryan's house intending to arrest him without an arrest warrant, the officers would have been within their rights if they had knocked on the door and had made known the purpose for their visit, and if O'Bryan then had either voluntarily left the house or had consented to the arrest, or if someone else with authority to do so had consented to their entry. Hadley, ___ F.3d at ___, 2004 WL 1080047, at *1; United States v. Berkowitz, 927 F.2d 1376, 1386 (7th Cir. 1991); see also United States v. Johnson, 170 F.3d 708, 711 (7th Cir. 1999) (discussing police officers' permissible "knock and talk" technique). Plaintiffs are essentially arguing that the officers needed an arrest warrant or exigent circumstances merely to go to the door of O'Bryan's residence. That is not correct under the Fourth Amendment. The officers' intent when they left Clements' residence is irrelevant for these purposes. Summary judgment will not be denied on that basis.

B. Officers' Presence and Subsequent Entry into the Residence

Plaintiffs also contend that Major Levesque violated the Fourth Amendment by standing at the rear of the house. The theory seems to be that the occupants of the house were seized unreasonably because they would not then have been free to leave. The undisputed facts show that Levesque did not violate the Fourth Amendment by standing at the rear of the house while the state troopers attempted to pursue their investigation at the front of the house or garage. Levesque could not have seized people who did not even know he was there. As the defendants correctly point out, a seizure requires either the use of physical force to restrain the suspect, or a show of authority to which the suspect yields. California v. Hodari D., 499 U.S. 621, 624-26 (1991); Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968) (seizure occurs when officer has "by means of physical force or show of authority . . . in some way restrained the liberty of a citizen"); see also McCoy, 341 F.3d at 605. By merely standing unseen at the rear of the residence, Levesque did not use force to restrain anyone, nor did he show any authority. His presence did not amount to a seizure.

Plaintiffs also contend that Troopers Banet and Rogers unlawfully entered the residence without a search warrant or an arrest warrant in order to arrest O'Bryan. The undisputed facts show that the troopers remained on the sidewalk outside the garage until after the shots were fired. At that point, exigent circumstances created the need for the troopers to secure the residence and the persons inside it. Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) ("exigent circumstances of the shooting" justified warrantless entry into an apartment where suspect had fired a gun through the floor, striking a person in the downstairs apartment); cf. United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993) (no exigent circumstances where shots had been fired hours before officers arrived; no present danger to officers or to others so there was no ongoing threat); see also Mincey v. Arizona, 437 U.S. 385, 392 (1978) (teaching that police may search residence where violent crime has occurred if they believe victims or dangerous persons are present and pose immediate threat). Under the circumstances here, the troopers did not violate the Constitution by entering the house after hearing gunshots fired somewhere in or near the house.

C. Troopers' Seizure of Posante

Posante argues that she was seized when the troopers entered her garage, pointed guns at her, and told her not to move. Although the undisputed evidence shows that the troopers did not physically pass the threshold of the garage until after shots were fired, a reasonable jury could find that one or both of the state troopers pointed their guns at Posante and demanded that she not move. According to Posante's testimony, one trooper pointed a gun at her before any shots were fired. Troopers Banet and Rogers both testified that they pointed their guns at Posante, though they claim that they did so only after they heard Levesque's shots.

Defendants argue that because they stayed outside the garage, Posante was not seized. Regardless of where the troopers were standing, the court must assume for purposes of summary judgment that they pointed one or two guns at Posante and yelled at her not to move, and that they did so before any shots were fired by Levesque. According to the officers, Posante complied with their order. Their actions amounted to a seizure for purposes of the Fourth Amendment. See California v. Hodari D., 499 U.S. at 624-26; Tennessee v. Garner, 471 U.S. 1, 7 (1985) ("Whenever an officer restrains the freedom of a person to walk away, he has seized that person."); Mearday v. City of Chicago, 196 F. Supp.2d 700, 712 (N.D. 111. 2002) (suspect was seized when he yielded to officers' pointed guns); Johnson v. City of Milwaukee, 41 F. Supp.2d 917, 924 (E.D. Wis. 1999); see also Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (seizure occurs when, "in view of all of the circumstances surrounding the incident," a reasonable person believes she is not "free to leave" an encounter with an officer). The officers needed probable cause to seize Posante from their vantage point just outside the garage. Doe v. Heck, 327 F.3d 492, 513 (7th Cir. 2003). Based on the evidence most favorable to Posante, that the seizure occurred before any shots were fired, and they did not have probable cause or other sufficient grounds to seize her in her own home. Banet's and Rogers' motion for summary judgment with respect to Posante's Fourth Amendment claim is therefore denied.

D. Excessive Force

Plaintiffs' principal claim is that Levesque used excessive force by shooting O'Bryan multiple times, including once in the back. As the cases cited above demonstrate, Levesque "seized" O'Bryan when he pointed his gun at O'Bryan on the outside basement stairs. See also United States v. Steele, 782 F. Supp. 1301, 1309 (S.D. Ind. 1992), aff'd, 989 F.2d 502, 1993 WL 72440 (7th Cir. Mar. 16, 1993) ("an encounter during which an officer draws a weapon is usually considered a seizure"). When Levesque fired his weapon, he obviously continued the seizure, and his use of deadly force is subject to the Fourth Amendment requirement that such force be reasonable under the circumstances. See Tennessee v. Garner, 471 U.S. at 7 ("there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment"). The reasonableness test is a balancing test between "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion" to determine "whether the totality of the circumstances justifies a particular sort of . . . seizure." Lester v. City of Chicago, 830 F.2d 706, 711 (7th Cir. 1987), quoting Tennessee v. Garner, 471 U.S. at 8-9.

The use of deadly force by a police officer is permissible in the following two scenarios:

the officer has probable cause to believe that the armed suspect (1) `poses a threat of serious physical harm, either to the officer or to others,' or (2) `committed a crime involving the infliction or threatened infliction of serious physical harm' and is about to escape.
Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002), quoting Tennessee v. Garner, 471 U.S. at 11-12. The Seventh Circuit also noted in Muhammed that "[w]henever possible under the circumstances, the officer should try to identify himself as a law enforcement officer to the suspect." 316 F.3d at 683, quoting Garner. Whether the use of deadly force was reasonable is determined by examining what a reasonable officer in the position of the defendant officer would have done. Id.

The evidence the court must accept for purposes of summary judgment shows that sometime after midnight, O'Bryan walked out of the basement entrance to his apartment after hearing his mother scream. Once on the steps, O'Bryan encountered a silhouetted figure he did not recognize. The court must also assume that the person, wearing civilian clothing, did not identify himself as a police officer. The person walked down the steps toward O'Bryan with his gun drawn. Under one version of the facts favorable to plaintiffs, the man shouted at O'Bryan to drop his gun and O'Bryan refused. Though officers do not have to wait for a suspect to shoot first before defending themselves, see Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. 1994), there is a question of fact here as to whether the force used by Levesque was excessive.

Under one version of the facts favorable to plaintiffs, Levesque fired without warning. Under another version of the facts favorable to plaintiffs, Levesque ordered O'Bryan to drop his gun, but failed to identify himself as a police officer. Even under some variations of Levesque's version of the facts in which he told O'Bryan he was a police officer, there may be room to argue whether he was entitled to shoot O'Bryan. A person just leaving his home at midnight, who encounters an armed person in civilian clothing, may not be required to take at face value the person's claim to be a police officer. See Rogers v. Carter, 133 F.3d 1114, 1118 (8th Cir. 1998) (where plain clothes officer identified himself orally as police officer but did not produce badge or identification, suspect had no reason to believe he was a police officer; suspect acted reasonably by retreating into his apartment and did not engage in disorderly conduct, resisting arrest, or fleeing law enforcement). According to Levesque, there was some dialogue between the two men on the stairs, indicating an opportunity for him to identify himself as a police officer. The evidence most favorable to plaintiffs raises a genuine issue of material fact as to whether Levesque did so.

With respect to this midnight encounter with police officers in plain clothes, this case is similar to Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996), where the Seventh Circuit reversed summary judgment for a police officer on the merits and on the basis of qualified immunity. The facts for purposes of summary judgment in Sledd showed that police officers in plain clothes had broken into an apartment to execute a search warrant, but they had done so without identifying themselves as police officers. A man in the apartment had retrieved a rifle to confront men he thought were intruders. Id. at 286. After the officers retreated from the house, the man stepped outside holding the rifle and was shot by one or more officers. The Seventh Circuit found that qualified immunity was not available where there were disputed questions of fact about whether the police officers had identified themselves and whether it was reasonable to shoot the man as he stepped outside the apartment holding a rifle. Id. at 287-88. The Seventh Circuit noted that, in a situation where a person has no reason to know that someone is a police officer, and the officer's identity is concealed, the normal rules governing use of deadly force and right to resist are modified. Id. at 288, citing Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993) (dismissing appeal from denial of qualified immunity where factual issues would allow jury to find that officer unreasonably put himself in danger and officers then shot fleeing suspect in non-violent crime), and comparing Soller v. Moore, 84 F.3d 964, 970 (7th Cir. 1996) (finding no need for instruction on negligent identification and self-defense where officer repeatedly identified himself as a police officer to both parties).

In Sledd the Seventh Circuit relied on Yates v. City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991), in which the Sixth Circuit held that a police officer was not entitled to qualified immunity from suit based on shooting a suspect. The officer had entered a dark hallway at 2:45 a.m. without identifying himself as a police officer, without shining a flashlight, and without wearing his hat. Accepting the plaintiff's evidence for purposes of summary judgment, it was, the court concluded, objectively unreasonable for the officer to enter the area in that manner, and thus he was not entitled to qualified immunity from suit. The Sixth Circuit reached that conclusion notwithstanding the officer's argument that, at the time he shot the plaintiff, he reasonably believed that his life was in danger. The act of entering a private residence late at night with no indication of identity was enough to show that the officer had unreasonably created the encounter that led to the use of force. See Sledd, 102 F.3d at 287-88, discussing Yates, 941 F.2d at 447. The Yates court therefore affirmed the denial of summary judgment on the qualified immunity defense.

Similarly here, under the version of the evidence most favorable to plaintiffs, O'Bryan was encountering an unidentified armed man approaching his home after midnight. Either the man said nothing (consistent with Posante's testimony that she would have heard any voices through the broken window), or he did not identify himself as a police officer (consistent with O'Bryan's statement offered by defendants). In either situation, O'Bryan was not required to drop his gun, and he did not give the approaching officer in plain clothes a reasonable basis to shoot him. As noted above at pages 12-13, Levesque testified that O'Bryan's gun was aimed at him. That fact might, if it were a fact, serve to distinguish Sledd, see 102 F.3d at 286 (assuming for purposes of summary judgment that plaintiff did not aim his rifle at defendant officers), but a jury would not be required to accept Levesque's testimony on that point as true and accurate. Also, the fact that Levesque was wearing a baseball cap with the letters "POLICE" on the front is not decisive, especially at night.

The Seventh Circuit emphasized in Plakas v. Drinski, 19 F.3d 1143, 1149-50 (7th Cir. 1994), among many other cases, the split-second decisions police officers must make when they use deadly force. If the shooting occurred exactly as Levesque testified, then he probably would be entitled to summary judgment. Under the facts the court must treat as true for purposes of summary judgment, however, a reasonable jury could find that Levesque shot O'Bryan at the door of his own home at night, without warning, and without identifying himself as a police officer. Under those circumstances, the jury could find that the shooting violated O'Bryan's rights under the Fourth Amendment to be free from an unlawful seizure and excessive force. Levesque is not entitled to summary judgment on the merits of the Fourth Amendment claims based on his shooting of O'Bryan.

The state troopers, however, are entitled to summary judgment on any claims against them based on Levesque's alleged excessive force in shooting O'Bryan. Section 1983 requires proof of personal and individual responsibility for the alleged constitutional violation. E.g., Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). There is no evidence to indicate that Banet or Rogers personally participated in Levesque's shooting of O'Bryan. Summary judgment is granted as to that claim.

This court granted the state defendants' motion to dismiss on plaintiffs' theory that Banet and Rogers failed to prevent Levesque from shooting O'Bryan. Plaintiffs filed an amended complaint realleging the claim against Banet and Rogers. A claim for failure to intervene requires proof of the following:

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.
Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). In other words, to avoid summary judgment on the failure to intervene theory, plaintiffs must present evidence that Banet and Rogers had the ability and opportunity to intervene to prevent Levesque's alleged use of excessive force. Banet and Rogers could not see Levesque as he was going down the stairs toward O'Bryan's door, and the evidence would not allow the inference that they had the ability to intervene in the shooting, which took a matter of a few seconds between Levesque and O'Bryan. See Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 478 (7th Cir. 1997) (supervisor not liable for subordinate officer's use of excessive force because supervisor did not use excessive force himself and did not have opportunity to intervene). Banet and Rogers are entitled to summary judgment on plaintiffs' failure to intervene theory.

Plaintiffs argue as an alternative to their failure to intervene theory that the state troopers created a dangerous situation for the public and did not take reasonable steps to rein in that danger. For this proposition, plaintiffs cite Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993). In that case, the Seventh Circuit found police officers to be liable under section 1983 where they had created a dangerous situation for the public by arresting a sober driver while leaving an intoxicated passenger in a car, who later took the wheel and caused a serious accident. The Seventh Circuit explained: "When the police create a specific danger, they need not know who in particular will be hurt. Some dangers are so evident, while their victims are so random, that state actors can be held accountable by any injured party." 986 F.2d at 1127. The Seventh Circuit made clear in Reed that in order to find officers liable for creating an allegedly dangerous situation, the evidence must show that the officers either specifically and affirmatively created the danger — not that the officers failed to protect the public from a preexisting danger — or that the officers' reckless conduct created the danger. Even for the latter standard, officers must have "take[n] action under color of state law which rendered the [public] vulnerable," as in cases where an "officer . . . left a passenger alone and on foot in a high crime area," or where "officers . . . arrested a driver and left young children stranded on the highway." Reed, 986 F.2d at 1127.

The facts here simply are not comparable. The evidence in this case shows that the state troopers went to O'Bryan's residence to investigate crimes, and that they anticipated the possibility of a violent encounter. Plaintiffs' evidence shows that one of the troopers pointed a gun at Posante in her garage and yelled at her not to move. The troopers heard three shots fired and then quickly entered the residence. There is no evidence that the state troopers acted to create a situation dangerous to plaintiffs or to the public, nor is there evidence that they acted recklessly, creating a dangerous situation.

III. Fourth Amendment Claims — Qualified Immunity

The individual defendants have all invoked the defense of qualified immunity to plaintiffs' Fourth Amendment claims. A two-part test determines whether a government official is entitled to qualified immunity in a civil suit under section 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 ex rel. Gossens 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 plaintiffs. 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. City of Los Angeles v. Heller, 475 U.S. 796 (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. City of 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. If both questions are answered in the affirmative, the official is not entitled to qualified immunity.

To answer the second "clearly established law" question, the court asks whether a reasonable public official who faces the same factual circumstances that the defendant faced would recognize that his or her actions would violate the Constitution. The question is not a broad question of abstract constitutional doctrine, but 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 his actions. Forman v. Richmond Police Dep't, 104 F.3d 950, 958 (7th Cir. 1997) (finding that qualified immunity gives "ample room for mistaken judgments" and protects "all but the plainly incompetent or those who knowingly violate the law").

In the Seventh Circuit, once a defendant claims qualified immunity, the burden is on the plaintiff to show that the right claimed to have been violated was clearly established under the circumstances. Marshall v. Alien, 984 F.2d 787, 797 (7th Cir. 1993); Pounds v. Griepenstroh, 970 F.2d 338, 342 (7th Cir. 1992). Because the question depends on a fact-sensitive examination of the constitutional violation, it can be difficult to resolve the issue as a matter of law at the summary judgment stage where the parties' versions of events are so different. See Morfin v. City of East Chicago, 349 F.3d 989, 1000 n. 13 (7th Cir. 2003) (in false arrest case, reversing 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.").

A. State Troopers

Plaintiffs argue that the state troopers violated the Fourth Amendment by entering Posante's garage, by using excessive force against O'Bryan, by failing to intervene to stop Levesque from shooting O'Bryan, and by creating a dangerous situation and failing to take reasonable steps to eliminate the danger.

As noted above, accepting Posante's testimony as true, a reasonable jury could find that the officers violated Posante's Fourth Amendment rights and unreasonably seized her, not by entering the garage after shots were fired, but by pointing a gun at her and commanding her not to move before any shots had been fired. If the officers did not have probable cause for their actions, then such conduct violated the Fourth Amendment, as the cases cited above at page 24 clearly established at the time of the events in question here. Based on Posante's evidence, the troopers had no warrant and encountered a woman, obviously not a suspect, in her home walking into her garage from her house. Based on Posante's evidence, she did not provoke the officers in any way, nor did she pose an apparent threat to the officers or to anyone else. Defendants' motion for summary judgment based on qualified immunity is therefore denied with respect to the claim that they unlawfully seized Posante. See, e.g., Hadley v. Williams, __ F.3d at __, 2004 WL 1080047 at *3 (reversing summary judgment based on qualified immunity where claims based on well established law).

B. Major Levesque

As the court has explained, the evidence could lead a reasonable jury to find that Levesque violated O'Bryan's Fourth Amendment rights by shooting him. On the night in question, the law was clearly established that, when feasible, some warning should be given before use of deadly force, Tennessee v. Garner, 471 U.S. at 11-12, and that officers who failed to identify themselves so that they could be easily mistaken as intruders would not be entitled to the same deference in their use of force against those who reasonably feared them. See Sledd, 102 F.3d at 287-88 (reversing summary judgment based on qualified immunity); Yates, 941 F.2d at 447 (affirming denial of summary judgment based on qualified immunity). Taken in the light reasonably most favorable to plaintiffs, the evidence shows that Levesque had opportunity to engage in conversation with O'Bryan before shooting him and did not do so, and did not identify himself as a police officer. The principles and cases the court has relied upon to deny summary judgment on the merits were well established when Levesque shot O'Bryan. What is not well established are the facts, but the conflicting evidence would allow a jury to find that Levesque acted contrary to well established constitutional law by shooting O'Bryan.

It was also clearly established that officers, once legally engaged in the use of deadly force, do not have the right to "shoot at any time thereafter with impunity." Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993). The evidence shows that Levesque shot O'Bryan twice in rapid succession. He then shot O'Bryan a third time as he was turning away from Levesque. There are times when officers may use deadly force to prevent a suspect from escaping. "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Tennessee v. Garner, 471 U.S. at 11. Although O'Bryan had a weapon, it is not immediately apparent from the facts that this was one of those times. Officer Levesque testified in his deposition that he fired the first two shots, O'Bryan backed down the stairs, and Levesque then fired again. Levesque Dep. I at 69. It was after the third shot that O'Bryan withdrew back into the house. The evidence would allow an inference that when Levesque fired the third shot, O'Bryan was not a "fleeing suspect" who posed a threat of serious physical harm after he had been shot twice or that Levesque had to prevent him from escaping. The evidence would permit a finding that O'Bryan was simply recoiling after having been shot twice.

Finally, based on plaintiffs' evidence, the court must assume that Levesque kicked O'Bryan when he was lying on the ground after the third shot. Such action could be found to have violated clearly established Fourth Amendment law. Frigo v. Guerra, 860 F. Supp. 524, 532 (N.D. Ill. 1994) (denying summary judgment where a reasonable jury could find that officer used excessive force by kicking suspect after hitting him over the head with his gun).

For all of these reasons, summary judgment is denied with respect to Major Levesque's defense of qualified immunity on plaintiffs' federal claims.

IV. Municipal Liability

Plaintiffs have named Major Levesque and the two state troopers as defendants in both their official and individual capacities. They have also named Mike Stricker in his official capacity as chief of the Sellersburg Police Department. Under 42 U.S.C. § 1983, an official capacity suit represents "only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978). Any official capacity claims against Stricker and Levesque are really claims against the government entity — the Town of Sellersburg. See Hafer v. Melo, 502 U.S. 21, 25 (1991). For purposes of summary judgment, the official capacity claims against Stricker and Levesque are redundant because the town is also a defendant. Those official capacity claims are dismissed as duplicative. Similarly, the Sellersburg Police Department has no legal identity separate from the Town of Sellersburg, so the claims against the police department are also dismissed as duplicative. See, e.g., Jones v. Bowman, 694 F. Supp. 538, 544 (N.D. Ind. 1988).

As for the state defendants, this court determined in its entry on the state defendants' motion to dismiss that the Indiana State Police, a state agency, is not subject to suit for damages under section 1983. A suit under section 1983 against a state official in his or her official capacity is a suit against the entity he or she represents. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Section 1983 authorizes a federal cause of action against "any person" who, while acting under color of state law, violates another person's federal rights, and the Supreme Court has decided that a State "is not a person within the meaning of § 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). Just as official capacity suits against Sellersburg police officers are effectively suits against the Town of Sellersburg, official capacity suits against employees of the Indiana State Police, Rogers and Banet, are suits against the State, so Rogers and Banet are not subject to suit for damages under this statute in their official capacities.

To hold the Town of Sellersburg liable under section 1983, plaintiffs must come forward with evidence both: (a) that plaintiffs' constitutional rights were actually violated, and (b) that the alleged constitutional violation was caused by an official policy or custom of the local government entity. See Heller, 475 U.S. at 799 (no municipal liability if no violation is found); Monell, 436 U.S. at 694 (requiring proof that official policy or custom caused violation); Harris v. City of Marion, 79 F.3d 56, 58 (7th Cir. 1996).

Plaintiffs argue that the town's policy of positioning non-uniformed officers at the rear of a residence while uniformed officers approach the front door potentially results in the unconstitutional use of excessive force by non-uniformed police officers against unsuspecting occupants of the residence. As the court has already determined, a reasonable jury could find that plaintiffs' constitutional rights were violated later in the encounter. However, plaintiffs have failed to provide sufficient evidence to allow a reasonable jury to find that the alleged constitutional violations were caused by an unconstitutional policy or custom of the Town of Sellersburg.

To prove an unconstitutional policy or custom, plaintiffs must show one of the following: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). Because they do not attempt to argue that individuals with the requisite policymaking authority established an official policy, plaintiffs do not put forth their argument under the first provision. Chortek v. City of Milwaukee, 356 F.3d 740, 748-49 (7th Cir. 2004). Rather, they argue that the town is liable for its deliberate indifference to public safety. The inference from that argument is that they intend to argue a "widespread practice" that is "permanent and well settled." See Palmer v. Marion County, 327 F.3d 588, 597 (7th Cir. 2003) (evidence of deliberate indifference necessary to prove a widespread practice). To support their claim, plaintiffs must show that the town's policymakers were deliberately indifferent to the "known or obvious consequences" of the custom. Board of County Comm'rs v. Brown, 520 U.S. 397, 406-07 (1997). "`Deliberate indifference' means recklessness in a criminal, subjective sense: disregarding a risk of danger so substantial that knowledge of the danger can be inferred. . . . Such disregard is tantamount to intending that the injury occur." James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir. 1992).

To succeed on a "widespread practice" claim and establish deliberate indifference, "proof of isolated acts of misconduct will not suffice; a series of violations must be presented to lay the premise of deliberate indifference." Palmer, 327 F.3d at 596. This is where plaintiffs' claims fail. The only alleged act of misconduct they claim to have been caused by the Sellersburg police policy is Levesque's use of excessive force on December 10, 2000 at O'Bryan's residence. Levesque and Stricker each testified that the Sellersburg Police Department has a policy of sending non-uniformed police officers to the rear of a residence while uniformed officers approach the front. The Seventh Circuit has held that under Indiana law, the chief of police is the final policymaker for his department with respect to the rules and regulations governing arrests. Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995); Warner v. City of Terre Haute, 30 F. Supp.2d 1107, 1123 (S.D. Ind. 1998). Under that approach, Chief Stricker's actions may be imputed to the Town of Sellersburg. Plaintiffs have therefore come forward with evidence of a Sellersburg policy of sending officers out of uniform to the rear of a residence while uniformed officers go to the front. However, that showing is not sufficient. There is no evidence aside from the present case that would lead a reasonable jury to conclude that the Sellersburg policy has deprived other individuals of their constitutional rights and is therefore unconstitutional.

In City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985), in a plurality opinion, the Supreme Court reversed a plaintiff's verdict against a city in a police shooting case because the evidence of the single incident of police misconduct was not sufficient to find a municipality liable for that police misconduct. The Court recognized that the standard to prove municipal liability under section 1983 is two-fold. Plaintiffs must first prove that there was a custom or policy. Plaintiffs here have done that through the testimony of Levesque and Stricker. Second, plaintiffs must prove that the policy was unconstitutional on its face or that the policy was the "moving force" behind the injury suffered. See Mohr v. Chicago Sch. Reform Bd. of Trustees, 99 F. Supp.2d 934, 939 (N.D. Ill. 2000) ("a municipal violation of a single person's rights may result in § 1983 liability if there is proof that it was pursuant to an unconstitutional policy or practice."), citing Tattle, 471 U.S. at 823-24. The plurality opinion on the merits provided the narrowest grounds for the Court's decision:

Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, 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.
471 U.S. at 823-24 (emphasis added).

The Tattle plurality distinguished Monell by noting that the policy in Monell was itself unconstitutional, so that any government official who acted to enforce the policy would be engaged in unconstitutional conduct. Therefore, the plurality wrote in Tattle: "Obviously, it requires only one application of a policy such as this to satisfy fully Monell's, requirement that a municipal corporation be held liable only for constitutional violations resulting from the municipality's official policy." 471 U.S. at 822.

In this case, as in Tattle, the policy is not itself unconstitutional. The same was true in Board of County Comm'rs v. Brown, 520 U.S. 397 (1997). In Brown, the Supreme Court found that the single hiring decision at issue was not itself illegal and the final policymaker did not authorize the subordinate officer's use of excessive force: "Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." 520 U.S. at 405.

As explained above, Levesque did not violate the Fourth Amendment by merely standing unnoticed at the rear of O'Bryan's residence, and there is no evidence that Stricker or any other superior authorized Levesque's use of allegedly excessive force. "[S]ome limitation must be placed on establishing municipal liability through policies that are not themselves unconstitutional, or the test set out in Monell will become a dead letter. . . . At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged." Tuttle 471 U.S. at 823; accord, Brown, 520 U.S. at 405 ("a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights."); Arlotta v. Bradley Center, 349 F.3d 517, 523 (7th Cir. 2003) (affirming summary judgment where policy was not unconstitutional itself and plaintiff had no evidence of other mistaken arrests resulting from application of the policy).

The causal connection between the policy and the alleged constitutional violation here is far too tenuous. When the policy at issue is facially lawful, the plaintiff must show that the municipality acted with deliberate indifference as to its known or obvious consequences. Brown, 520 U.S. at 407, citing Canton. To prove deliberate indifference, plaintiffs were required to show that "a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Id. at 411. Plaintiffs here have evidence sufficient to show here only that Major Levesque might have violated O'Bryan's Fourth Amendment rights. They have failed to come forward with evidence that would allow a to find that the policy of sending non-uniformed officers to the rear of a residence while uniformed officers approach the front reflected deliberate indifference to safety and constitutional rights. The court will not speculate as to the future likelihood of violent encounters between plain clothes officers standing at the rear of residences and occupants who mistake those officers for prowling civilians, nor will the court ask a jury to engage in such speculation. Summary judgment is therefore granted as plaintiffs' Fourth Amendment claim against the Town of Sellersburg.

In their complaint, plaintiffs allege that the town of Sellersburg failed to train Levesque properly. The Sellersburg defendants responded to that claim and plaintiffs did not answer in their reply. To prevail on the failure to train claim, plaintiffs were required to present evidence that "the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). Their failure to do so requires the court to grant summary judgment for defendants on plaintiffs' federal claims against the Town of Sellersburg.

V. Indiana Constitution

Plaintiffs also seek damages directly under the Indiana Constitution for violations of rights protected by that Constitution. Defendants seek dismissal of those damages claims because Indiana courts have not recognized an implied right of action for damages under the Indiana Constitution. In other words, the Supreme Court of Indiana has never taken the step under the Indiana Constitution that the Supreme Court of the United States took under the federal Constitution in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). That decision recognized an implied right under the United States Constitution to sue individual federal agents for damages for violations of the federal constitutional rights.

One case in the Northern District of Indiana has held that a plaintiff may bring a damages action under the equal protection clause of the Indiana Constitution. See Discovery House, Inc. v. Consolidated City of Indianapolis, 43 F. Supp.2d 997, 1004 (N.D. Ind. 1999) (allowing private cause of action for damages under Indiana Constitution), final judgment rev'd on other grounds, 319 F.3d 277, 284 (7th Cir. 2003) (remanding case for entry of judgment as a matter of law for defendants on federal claims; no mention of state constitutional claims going to trial). The Discovery House district court decision is not persuasive on this point. It is not persuasive because the two Indiana cases offered in support are readily distinguishable. The first, Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), involved a state constitutional provision that expressly provides for "just compensation" for the taking of private property or "particular services" for public purposes. Bayh offers no support for an implied right of action for damages under other constitutional provisions. The second case, Hilburt v. Town of Markleville, 649 N.E.2d 1036, 1041 (Ind.App. 1995), merely assumed without discussion that a constitutional claim for damages might be available, and rejected the claim for damages on other grounds.

The Discovery House district court opinion is also contrary to the weight of federal authority, which appears to be unanimous in this district. See Willits v. Wal-Mart Stores, Inc., 2001 WL 1028778, *15 (S.D. Ind. July 30, 2001) (McKinney, C.J.) (Indiana Supreme Court has not yet recognized private cause of action for damages under Indiana Constitution); Baker v. Washington Bd. of Works, 2000 WL 33252101, *8 (S.D. Ind. June 8, 2000) (Tinder, J.) (same); Boczar v. Kingen, 2000 WL 1137713, *24-25 (S.D. Ind. March 9, 2000) (Tinder, J.), aff'd, 2001 WL 468254 (7th Cir. May 1, 2001) (same); Craig v. Christ, No. IP 96-1570-C H/G, Entry on Defs.' Motions for Summary Judgment and to Dismiss and City's Motion to Strike (S.D. Ind. Dec. 15, 1998) (Hamilton, J.) (same). As this judge wrote in Craig v. Christ, recognizing such an implied right to sue for damages under the Indiana Constitution would work a dramatic change in Indiana law, in the relationships between citizens and their state and local governments, and between those governments and their employees. If such a step is to be taken, it will need to be taken by the Indiana courts, not by a federal court whose duty is to apply existing Indiana law. Defendants are entitled to summary judgment on the damages claims under the Indiana Constitution.

VI. State Law Claims — Indiana Tort Claims Act

Plaintiffs have asserted several state law claims against the defendants, including negligent and/or intentional infliction of emotional distress, assault, and battery. Under the immunity provisions of the Indiana Tort Claims Act (ITCA), Ind. Code § 34-13-3-3(8), a government or government employee acting within the scope of his or her employment is not liable for injuries that result from "[t]he adoption and enforcement of or failure to adopt or enforce a law. unless the act of enforcement constitutes false arrest or false imprisonment."

It is well settled that government employees are immune from liability for negligent/intentional infliction of emotional distress under Indiana law unless their conduct is so egregious as to be considered outside the scope of their employment. See City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind.App. 1999). An employee's tortious conduct is within the scope of his employment when the employee's purpose was, "to an appreciable extent, to further his employer's business." Willits v. Wal-Mart Stores, Inc., 2001 WL 1028482, at*14 (S.D. Ind. Aug. 14, 2001); Davis v. City of Greenwood, 2000 WL 33309745, at *4 (S.D. Ind. Nov. 14, 2000), citing Weatherford, 714 N.E.2d at 186.

In Weatherford, the defendant officers entered plaintiff's residence without consent, probable cause, or a warrant, in response to complaints about a loud party there. Plaintiff filed misconduct charges against the offending officers. One week later, the officers returned to plaintiff's residence and attempted to enter. One month later, plaintiff was arrested pursuant to an arrest warrant despite orders the officers had received to bring charges against plaintiff pursuant to a summons rather than by an arrest warrant. The defendant officers agreed among themselves to arrest plaintiff at a public gathering.

The Indiana Court of Appeals held that, although the officers obtained the arrest warrant in defiance of their superior's orders to operate by a summons, the warrant was valid. The employer's business in that case was "to execute a duly issued warrant," and the defendants were operating in furtherance of that goal. Weatherford, 714 N.E.2d at 186. As the court noted, even "the commission of an intentional criminal act may be considered as being within the scope of employment if the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope. . . . even willful or wanton behavior does not necessarily remove one from the scope of his employment." Id.

Plaintiffs have offered no evidence that would allow a reasonable jury to find that any of the defendants were acting outside the scope of their employment in the encounter with Posante and O'Bryan. Taking plaintiffs' facts, none of the officers' conduct was "so incompatible with the performance of their employment as to be deemed outside the scope of their employment." Id.

Plaintiffs submit several factual bases to assert that defendants are liable for negligent/intentional infliction of emotional distress, including that defendants went to the O'Bryan residence specifically intending to arrest him; pulled into the driveway and turned off their headlights to avoid detection; prowled around the yard to flush O'Bryan out of the house into a public area so that they could arrest him without a warrant; pointed a gun at Posante in her garage; shot O'Bryan and kicked him after he had been shot; refused to allow Posante to use the telephone after O'Bryan was shot; and told Posante that O'Bryan was dead when he was actually still alive. Though some of these allegations could support a claim for negligent/intentional infliction of emotional distress against private defendants, the police officers in this case are immune from liability under the ITCA. None of the above-mentioned facts are sufficient to show the level of egregiousness required to prove the defendants acted outside the scope of their employment. The facts show that the defendant officers were acting, rightly or wrongly, in furtherance of their employing agencies' business to investigate and arrest potential suspects. Summary judgment is therefore granted as to plaintiffs' claim for negligent/intentional infliction of emotional distress.

More complicated is the question whether defendants are protected by the ITCA for an excessive force claim. Defendants contend that the ITCA bars plaintiffs' assault and battery claims against the Town of Sellersburg and the individual officers. The issue under Indiana law is whether the ITCA immunizes local governments and police officers from liability for injuries resulting from the use of excessive force.

In Quakenbush v. Lackey, 622 N.E.2d 1284, 1291 (Ind. 1993), the Indiana Supreme Court interpreted the language of Indiana Code § 34-13-3-3(8) to subject government employees to liability for losses stemming from the breach of a "private duty," but to immunize them from liability where the losses resulted from the breach of a "public duty." On the same day that Quakenbush was decided, the Supreme Court answered a certified question from Judge Tinder in Kemezy v. Peters, 622 N.E.2d 1296, 1297 (Ind. 1993). The Kemezy opinion applied Quakenbush's private duty/public duty framework to hold that the ITCA did not immunize a police officer's use of excessive force because "law enforcement officers owe a private duty to refrain from using excessive force in the course of making arrests." (Emphasis added.)

In Quakenbush, the court addressed the exceptions to the ITCA before a 1998 repeal and recodification. Ind. Code § 34-13-3-3 is the current citation.

In the face of this square holding in Kemezy, the Indiana Supreme Court decided Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999), overruling the Quakenbush framework, and finding that the distinction between public and private duties owed by government entities was "highly abstract" and impracticable. Benton reaffirmed that the starting point for determining tort liability was the common law, but noted that the ITCA had established "extensive immunity provisions which shield governmental units from liability even in those cases where a common law duty of care exists." Id. at 232. In disavowing the Quakenbush judicial formulation of immunity, the Indiana court asserted that the Indiana legislature "is in the best position to determine the nature and extent to which governmental units in Indiana should be insulated from tort liability." Id.

One can argue that Benton implicitly overruled Kemezy since the holding in Kemezy relied upon the Quakenbush private duty/public duty test. There is some support, albeit in dicta, for this view. See Sellers v. Marion County Sheriffs Dep't, 2002 WL 1630008, *5 (S.D. Ind. June 27, 2002); City of Anderson v. Davis, 743 N.E.2d 359, 366 n. 4 (Ind.App. 2001). At least one post- Benton decision by the Indiana Court of Appeals has declined to treat Kemezy as overruled. E.g., O'Bannon v. City of Anderson, 733 N.E.2d 1, 2-3 (Ind.App. 2000) (recognizing that Kemezy had been "called into question," but proceeding to determine that police officers had not used excessive force and were therefore immune).

In considering questions of state law, the court must determine the issues as it believes the Indiana Supreme Court would. E.g., Trytko v. Hubbell, Inc., 28 F.3d 715, 719 (7th Cir. 1994); Dameron v. City of Scottsburg, 36 F. Supp.2d 821, 831 (S.D. Ind.1998). The state supreme court's decision in Kemezy is directly on point here, and the state court itself has not overruled it. This court cannot predict at this point that the state court will overrule the result in Kemezy, so as to leave citizens with no recourse under state law if police officers use unlawful force against them, even if the court might use a different analysis in the future.

The court recognizes that it reached a contrary conclusion on this question in Jordan v. City of Indianapolis, 2002 WL 32067277, *11 (S.D. Ind. 2002) (granting summary judgment on similar state law claims for battery where police had probable cause for arrest or detention). The briefing in this case and in Phelps v. Longworth, Cause No. 02-191-C (S.D. Ind. May 10, 2004), has caused the court to reconsider the issue and the importance of the result in Kemezy, as distinct from its rationale.

Also, it would be premature and potentially unnecessary for the court to find at this early stage in the case that the plaintiffs' assault and battery claims are barred by the ITCA. This case is destined for a jury regardless of how the ITCA immunity issue is resolved. Including the battery claims in the case will not increase either side's evidentiary or legal burden. Indiana's excessive force standard effectively parallels the federal one. See O'Bannon, 733 N.E.2d at 3; see also Ind. Code § 35-41-3-3(b). Denying summary judgment on the issue of immunity under the ITCA may require the court to ask the jury one additional question for each plaintiff: whether the police officers' actions amounted to assault or battery under state law. If the need should arise, the court can revisit this issue during the course of the trial or after the jury has returned a verdict, or eventual certification of the question by this court or the Seventh Circuit to the Indiana Supreme Court may be available, especially if it is clear that the question is not merely theoretical but may in fact be decisive.

In Turner v. Sheriff of Marion County, 94 F. Supp.2d 966 (S.D. Ind. 2000), Judge Foster certified the same question and many other related questions to the Indiana Supreme Court, but the state court declined to accept the certified questions, which arose at the summary judgment stage of the case.

Conclusion

For the foregoing reasons, summary judgment is denied in part and granted in part. Viewed through the summary judgment lens, the evidence at this point would allow a reasonable jury to find that the state troopers unreasonably seized Posante in her garage and that Major Levesque used excessive force by shooting O'Bryan three times and later kicking him. The motion for summary judgment filed by Troopers Banet and Rogers is denied with respect to the claim that they violated Posante's Fourth Amendment rights and the state law claim that they assaulted her. Their motion is granted with respect to all other claims, including the official capacity federal claims. The motion for summary judgment filed by Major Levesque is denied with respect to the Fourth Amendment claim against him for using excessive force against O'Bryan and the state law claim for battery. Summary judgment is granted for defendants Stricker, the Town of Sellersburg, and the Town of Sellersburg Police Department, except that the Town of Sellersburg remains a defendant on the state tort claim for battery.

So ordered.


Summaries of

Estate of O'Bryan v. Town of Sellersburg

United States District Court, S.D. Indiana
May 20, 2004
NO. 4:02-cv-00238-DFH-WGH (S.D. Ind. May. 20, 2004)
Case details for

Estate of O'Bryan v. Town of Sellersburg

Case Details

Full title:THE ESTATE OF MATTHEW S. O'BRYAN, By its Personal Representative, LEE ANN…

Court:United States District Court, S.D. Indiana

Date published: May 20, 2004

Citations

NO. 4:02-cv-00238-DFH-WGH (S.D. Ind. May. 20, 2004)

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