Summary
In Baxter, police responded to a phone call about a man with a mental disability pacing back and forth in front of a residence for three hours.
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Cause No. IP00-1254-C-M/S.
February 19, 2002
Richard A Waples, Attorney at Law, Indianapolis, IN., for Plaintiffs.
Paul T Belch, Assistant Corporation Counsel, Indianapolis, IN., for Defendants.
John C Ruckelshaus, Ruckelshaus Roland Kautzman Hasbrook, Indianapolis, IN., for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants', Marion County Sheriff, Brian Swinford ("Swinford"), and Richard Johnson ("Johnson"), Motion for Summary Judgment on Plaintiff Kenneth Baxter's ("Kenneth") claims under federal and state law. Kenneth has asserted federal claims under 42 U.S.C. § 1983, alleging that Swinford and Johnson (collectively referred to as "the officers") violated his constitutional rights when they unreasonably seized him, arrested him without probable cause, and used excessive force during the arrest. Kenneth has also asserted claims for false arrest and battery under Indiana law. Swinford and Johnson have moved for summary judgment on Kenneth's § 1983 claims and his battery claim. The parties have fully briefed the issues, and the motion is now ripe for ruling.
The caption of the complaint does not give the Court any guidance as to whether Kenneth's claims are brought against Johnson and Swinford in their individual or official capacities. The parties have primarily focused the arguments in their briefs on qualified immunity, however, which is only available in individual capacity claims. See Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001) ("it is well established that the qualified immunity doctrine does not apply to official capacity claims.") (quoting Ruffino v. Sheahan, 218 F.3d 697, 700 (7th Cir. 2000)). Because the parties have treated Kenneth's claims as individual capacity claims, the Court will do the same.
I. FACTUAL BACKGROUND A. THE OFFICERS ARRIVE AT THE SCENE
Kenneth is mentally retarded. Defendants' Statement of Material Facts ("DSMF") ¶ 1. On October 18, 1999, a bus returned Kenneth from work to his home at 2911 Eagle's Crest Circle, Unit B, Indianapolis, Indiana. Id. ¶ 2. It was daylight at the time, and Kenneth did not have his house key with him. Id. ¶¶ 3-4. Kenneth, who lives with his mother, Charlotte Baxter ("Mrs. Baxter"), repeatedly knocked on the door to his residence. Id. ¶ 5. Mrs. Baxter, who suffers from advanced Parkinson's Disease, heard Kenneth's knocks but was unable to open the door. Id. ¶ 6. Mrs. Baxter fell and passed out as a result of her efforts to open the door. Id. ¶ 7. Kenneth, who was cold, confused, and frightened, remained outside the door to his residence, pacing between the door and the sidewalk on several occasions. Id. ¶ 8. Kenneth yelled to try to get his mother to open the door. Id. ¶ 9.
Sue Lowry ("Lowry") was one of the Baxters' neighbors. Not recognizing Kenneth, Lowry telephoned the non-emergency number for the Marion County Sheriff's Department ("Sheriff's Department"). Id. ¶ 10. Lowry reported that Baxter was outside in the condominium complex and that he appeared to be mentally challenged and confused. Id. ¶ 11. Lowry also reported that Baxter had been outside the residence for three hours. Id. ¶ 12. She stated that she did not think that he was a danger to anybody, and did not think that he had done anything wrong. Lowry Aff. ¶ 6.
Swinford and Johnson responded to Lowry's call. DSMF ¶ 13. When they got there, it was dark. Id. ¶ 14. Kenneth was outside the door of his condominium, knocking on the door, and yelling for his mother. Plaintiff's Statement of Additional Material Facts ("PSAMF") ¶ 3. Swinford was first on the scene, and Kenneth met him on the sidewalk. Swinford began questioning him. Johnson showed up later, but Swinford was the main officer interrogating Kenneth. Id. ¶¶ 4-5. Kenneth was upset and frustrated, but was not crying. Id. ¶ 6. Swinford and Johnson asked Kenneth his name. DSMF ¶ 15. Kenneth told them who he was, that he lived there, that he was locked out of his residence, and that his mother was unable to open the door. Id. ¶ 16; PSAMF ¶ 8. Kenneth told them that he did not have a key to the residence. DSMF ¶ 17. According to Kenneth, the officers had him knock on the door of his residence, but Mrs. Baxter — who remained unconscious — was unable to respond. Id. ¶ 18; Baxter Aff. ¶ 6.
Swinford and Johnson asked Kenneth for identification, and he produced a handwritten index card with directions to his residence and a telephone number for his residence. DSMF ¶ 19; Swinford Dep. at 12, 15, 21-22, 39, 52-53; Karen Baxter Dep. at 21-22; Johnson Dep. at 16-17. Johnson and Swinford contend that Kenneth could not provide any identification that proved that he lived at the address. DSMF ¶ 20. He did provide the written index card, however, and orally identified himself as living at that address. Lowry Aff. ¶ 10. The officers repeatedly asked Kenneth where he lived, and each time he said that he lived at that residence. PSAMF ¶ 10. He told the officers at least ten times that he was tired and just wanted to get inside his home. Id. ¶ 11. Kenneth apparently also had an identification card that contained an old address of 5045 N. Capitol Avenue, Indianapolis, Indiana. DSMF ¶ 21. On the back of the card was the name of "Noble Industries" and that organization's telephone number. Kenneth also had a copy of his social security card, which contained Noble Industries' name and telephone number on the back. PSAMF ¶ 9.
Kenneth told the officers he had been dropped off from work from Noble of Indiana, and one of them said "sure you did." Id. ¶ 14. The officers knew that Noble was an agency that worked with the mentally impaired, and that it placed such individuals with private employers in the community. Id. ¶ 28. The officers did not check with Noble to determine if Kenneth was telling them the truth, or to ascertain his address. Id. ¶ 29. If the officers had checked with Noble, it could have confirmed that Kenneth was in their program, confirmed his address, and provided the officers with the names and telephone numbers of people who should be contacted in the event of an emergency. Id. ¶ 31. The emergency contact person at Noble was also personally familiar with Kenneth and could have confirmed immediately that he was in their program. She also had immediate access to the agency's records of his address, and to the names and numbers of people to contact in an emergency, including his case worker. Id. ¶ 32. Johnson, who denies that Kenneth told the officers that he worked at Noble or that he had any identification with Noble on it, testified that if Kenneth had told him that he worked at Noble, he would have contacted the agency prior to arresting him. Id. ¶ 33. The officers simply did not ask Kenneth where he worked. Id. ¶ 34.
The officers did ask Kenneth if he wanted to use a telephone, but did not ask him whether there was anyone they could call for him. Id. ¶ 15. Because of his mental disability, Kenneth could not recount the telephone numbers for people. If the officers had asked, however, he could have given them the names of people they could call to help him. Id. ¶ 16. Kenneth told the officers that he lived at the residence with his mother. Id. ¶ 17. The officers acted like they were mad at Kenneth, and as he was trying to tell them things, they told him to "shut up" and that they were talking, not him. This scared Kenneth and made him wonder why they were mad at him. Id. ¶ 18. Kenneth led the officers back up to the second floor front door of his condominium. Id. ¶ 19. When they went back up to the door, Kenneth again knocked and yelled for his mother inside, and again told the officers that she was inside but that she was sick. Id. ¶ 20. The officers had dispatch call a telephone number — either the one on Kenneth's index card or one they got from dispatch — and the telephone inside the condominium rang. Id. ¶ 21. There was no answering machine connected to the telephone at the address to indicate who resided there. DSMF ¶ 36. Swinford believed that the fact that Kenneth had a piece of paper with that address and telephone number of the home where he said he lived was an important piece of information in establishing that he was legitimately there. Swinford Dep. at 62. When nobody answered the telephone, Kenneth told the officers that his mother was sick and could not answer the telephone. The officers then became angrier at Kenneth. Kenneth Baxter Aff. ¶ 7. According to Kenneth, he never used bad language or yelled at the officers, but they were very mean to him and used bad language. Id. ¶ 4. One of the officers told Kenneth, "I ain't helping you no more." PSAMF ¶ 25. According to Lowry, the officers treated Kenneth like he was a criminal. Id. ¶ 26.
At some point, according to Swinford and Johnson, they spoke with a neighbor, Larry Mervar ("Mervar"), and asked if he recognized Kenneth as living at the address. Id. ¶ 32. Johnson also claims that he asked Judy Palmer ("Palmer"), a member of the neighborhood association, if she knew who lived in the apartment, or if she recognized Kenneth. Id. ¶ 33. According to Johnson and Swinford, both Mervar and Palmer responded that they did not recognize Kenneth as living at the address. Id. ¶ 34. Marver and Palmer testified, however, that the officers did not talk to them until after they had arrested Kenneth. Merver Aff. ¶ 6, 8; PalmerAff. ¶ 25.
Johnson claims that before arresting Kenneth, he knocked on the front doors of the condominiums "to the left and the one behind" the Baxters' condominium in an attempt to find out who lived at the residence and to find out how to contact the condominium management. PSAMF ¶ 37. Lowry, who made the initial call to the police, and who was watching the officers question and then arrest Kenneth, lived in the same building in the condominium directly to the left and behind Kenneth's. Id. ¶ 38. The officers had her name and address as a result of her having made the initial call, but they did not knock on her door. Id. ¶¶ 39-40. If they had, she could have told them who managed the condominium complex and provided them with the telephone number. Id. ¶ 41. If the officers had checked with Palmer, she would have told them that while she did not recognize Kenneth, a new family had moved into that condominium a few weeks before, and that they could check with Jan Howard ("Howard"), the condominium manager, to determine who lived there. Id. ¶ 42. If they had checked with Howard, she could have confirmed that Kevin Baxter had purchased the condominium three weeks earlier, in late September of 1999. Id. ¶ 43. The officers did not check with the condominium management prior to arresting Kenneth. Id. ¶ 44.
The officers checked to see if Kenneth had a criminal history, and found that he had none. Id. ¶ 45. Swinford does not remember asking Kenneth what he wanted to do prior to his arrest. Id. ¶ 47. Prior to being arrested, Kenneth was cooperating with the officers. Id. ¶ 50.
B. THE OFFICERS DETAIN AND ARREST KENNETH
The parties' stories with respect to the detention and arrest of Kenneth differ significantly. Johnson made the decision to detain Kenneth and, according to Johnson, conveyed this to him by saying "immediate detention" just before grabbing his arm to place handcuffs on him. Id. ¶ 51. Johnson allegedly was acting pursuant to Indiana's Immediate Detention statute, which would have allowed him to transport Kenneth to Wishard Memorial Hospital ("Wishard") for mental health evaluation. DSMF ¶ 38. According to Johnson, he made this determination because Kenneth was borderline out of control, was pounding on the door, and was yelling. This led Johnson to believe that he was a danger to himself and the neighborhood. Id. ¶ 39. According to Johnson, he believed that he had made a reasonable effort to assist Kenneth, but it was obvious that he was mentally challenged. Johnson thought Midtown Mental Health was the one place that could help Kenneth. Id. ¶ 40. The Immediate Detention Form that Swinford filed with Wishard on the night of the incident noted that, at the time of the incident, Kenneth was "disoriented and confused, may have walked away from his caregiver, has no transportation, keys or any type of shelter. Subject does not know how he got to location, neighbors advised subject had been trying doors in apartment complex, no neighbors recognize subject." Id. ¶ 41.
Consistent with the Indiana statute on immediate detention, sheriff's deputies are trained that they cannot make an immediate detention unless a person is: (1) mentally ill; (2) a danger to himself or others; and (3) needs immediate hospitalization or treatment. PSAMF ¶ 61. Swinford testified that the officers had no probable cause to believe that Kenneth was mentally ill, that he was a danger to himself or others, or that he needed immediate hospitalization or treatment. Id. ¶¶ 62-63, 68. Johnson claims that Kenneth was a danger to himself or others because someone might have come out and hurt him if he continued to yell to his mother in an attempt to get into the house. Id. ¶ 64. Johnson also claims that Kenneth may have been a danger to others, and that he made the decision to arrest him because he was out of control and was screaming profanities toward him. Id. ¶ 69. Johnson claims that if Kenneth hadn't been so belligerent and out of control, he would have offered to drive him to a homeless shelter. Id. ¶ 57. Kenneth denies that he was out of control, that he yelled or used profanities toward the officers, or that he fought them in any way. Id. ¶ 70.
The Sheriff's Department's policies and procedures required Johnson to place handcuffs on Kenneth to transport him to Wishard. DSMF ¶ 42. Before physically touching Kenneth, Johnson claims that he told him he was going to take him to the hospital. Id. ¶ 43. Johnson claims that he first spoke in a calm voice in an attempt to stop Kenneth from pounding at the door, but raised his voice to tell Kenneth to lower his voice. Id. ¶ 44. Johnson also claims that he told Kenneth it would be necessary to handcuff him to take him to the hospital. Id. ¶ 45. Johnson used a soft hand control by placing his hand on Kenneth's forearm area to put on the handcuffs. Id. ¶ 46. At that point, according to Johnson, Kenneth resisted by twisting and turning in an attempt to get away, and Swinford then stepped in to help. Id. ¶ 47. When Swinford assisted Johnson with attempting to handcuff Kenneth, they all three fell to the ground. Id. ¶ 48. Johnson claims that Kenneth continued to resist by pulling away, twisting, and kicking at Swinford. Id. ¶ 49. Mervar then came over to assist. Id. ¶ 50. While Johnson, Swinford, and Mervar struggled with Kenneth to handcuff him, Johnson sprayed him with mace, which stopped his resistance and allowed them to handcuff him. Id. ¶ 51. It kind of shocked Swinford when he heard Johnson's decision to place Kenneth under arrest. PSAMF ¶ 52.
Kenneth presents a different version of the events. According to Kenneth, when Johnson grabbed his arm, it scared him and he began to cry. Id. ¶ 53. Johnson did not give Kenneth any forewarning about what he was doing; instead, he simply grabbed one of his arms, put a handcuff on it, and twisted it behind his back. Lowry Aff. ¶ 17; Kenneth Baxter Aff. ¶¶ 7-8. When Johnson did this, Kenneth said "what are you doing to me?" He also said "please don't do that." PSAMF ¶ 73. Kenneth did not understand what the officers were doing, and they did not explain anything to him. Id. ¶ 74. Kenneth tried to turn toward the officers behind him to see what they were doing and to talk to them. Id. ¶ 75. According to Lowry, Kenneth's movement toward the officers may have been "wiggling," but he was not resisting. Id. ¶ 76. It appeared to Swinford that Kenneth did not understand what Johnson was doing when he grabbed him. Id. ¶ 77. The only resisting Kenneth did occurred when Johnson grabbed his arm. That is when Kenneth began "twisting and turning." Id. ¶ 78.
As Kenneth tried to turn toward the officers, Johnson put his knee behind Kenneth's knee and pushed him forcefully to the ground. Id. ¶ 79. Kenneth was only standing for 10 to 20 seconds before the officers placed him down on the ground. Id. ¶ 80. Kenneth did not pull away, did not try to run away, did not try to hit the officers, and did not try to kick the officers. Id. ¶ 81. The officers were trained to obtain control when they initiate the handcuffing procedure, either through joint manipulation, or wrist locks. If those do not work, they are trained "to take him to the ground." Id. ¶ 82. When the officers pushed Kenneth to the ground, his knees and lip hit the concrete and were cut. Kenneth Baxter Aff. ¶¶ 9, 12. At least one of the officers was on top of Kenneth when he was on the ground, so he could not move. PSAMF ¶ 84. After pushing Kenneth to the ground, the officers took 30-40 seconds to handcuff him. Id. ¶ 85.
The Sheriff Department's policies provide that deputies "shall only use force . . . after other reasonable means have been exhausted or would be clearly ineffective." Id. ¶ 89. Johnson also sprayed Kenneth with O.C. pepper gas during the arrest. Id. ¶ 91. Johnson claims that Kenneth was trying to kick Swinford, but Kenneth claims that he was not fighting and did not kick them. Id. ¶¶ 92-93. Swinford did not say that Kenneth tried to kick him, and instead testified that the only resisting that Kenneth did was by "twisting and turning." That is the only "resisting" Swinford mentioned in his police report, which contained all of the important details of the event. Id. ¶ 94. Kenneth was not out of control when Johnson grabbed him. Id. ¶ 95.
Sheriff's Department training materials provide that a "verbal warning should be given prior to [pepper spray's] use, unless under immediate attack." Id. ¶ 100. Johnson was not under immediate attack, and did not give Kenneth a verbal warning before spraying him with pepper spray. Id. ¶ 101.
After arresting Kenneth, Johnson checked with condominium resident Palmer, who told him that while she did not recognize Kenneth, a new family had moved into that particular condominium within the last few weeks, and gave him the name of Howard as the person he could check with to see who lived there. Id. ¶ 96. Johnson did not follow up on Palmer's suggestion, and instead responded that he "didn't think that he [Kenneth] belonged here." Id. ¶ 97. After the arrest the officers were joking around and making fun of Kenneth. Id. ¶ 98.
Swinford does not believe that Johnson's actions were appropriate, and he does not think that Johnson should have placed his hands upon Kenneth. Id. ¶ 86. Swinford believes that Johnson's actions escalated the situation, and that the whole incident could have been avoided had he handled it differently. Id. ¶ 87. Swinford believes that it would have been reasonable to exhaust more means to ascertain whether Kenneth was telling them the truth rather than jumping to a "quick solution." Id. ¶ 88.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Logan v. Caterpillar, Inc., 246 F.3d 912, 923 (7th Cir. 2001). 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 nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "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), cert. denied, 519 U.S. 1115 (1997).
B. SECTION 1983 STANDARDS
Title 42 U.S.C. § 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir), cert. denied, 522 U.S. 998 (1997). Section 1983 is not itself a font for substantive rights; instead it acts as an instrument for vindicating federal rights conferred elsewhere. Id. Liability under § 1983 requires proof of two essential elements: that the conduct complained of (1) was committed by a person acting under color of state law; and (2) deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997). The initial step in any § 1983 analysis is to identify the specific constitutional right which was allegedly violated. Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997) (citing Graham v. Connor, 490 U.S. 386, 394 (1989); Kernats v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994)).
III. DISCUSSION A. ARE DEFENDANTS PROTECTED BY QUALIFIED IMMUNITY?
Before addressing the merits of Kenneth's claim, the Court must first consider the officers' assertion that they are entitled to qualified immunity, which is an "`entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The privilege is "`an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Id. As a result, the Supreme Court has stressed the importance of resolving immunity questions at the earliest stage of litigation. Id.
In addressing the qualified immunity issue, the Court's initial inquiry must be whether, taken in the light most favorable to Kenneth, the facts alleged show the officers' conduct violated a constitutional right. Id. If a violation could be established on a favorable view of the facts, the next step is to ask whether the right was clearly established. This inquiry must be undertaken "in light of the specific context of the case, not as a broad general proposition." Id. In addition, the "relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). The Court will now consider whether the officers are entitled to qualified immunity with respect to each of Kenneth's claims.
1. Unreasonable Seizure
The Fourth Amendment, incorporated by the Fourteenth Amendment, provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated . . ." U.S. Const., amend. IV; Brokaw v. Mercer Co., 235 F.3d 1000, 1010 (7th Cir. 2000). Although the parties refer to Johnson's initial detainment of Kenneth under the Indiana Immediate Detention statute as an "arrest," it was more of a seizure than an arrest. That is not to say that Kenneth is without a claim, because the Fourth Amendment — in addition to prohibiting arrests without probable cause — also protects individuals from unreasonable seizures by the government. The parties do not dispute that in detaining Kenneth, the officers "seized" him. Thus, the Court must determine whether they unreasonably seized him. The test of reasonableness under the Fourth Amendment "is not capable of precise definition or mechanical application," and "it's proper application requires careful attention to the facts and circumstances of each particular case." Id. (quoting Graham, 490 U.S. at 396).
The Indiana statute governing immediate detention sets the parameters for determining whether the officers' detention of Kenneth was reasonable. That statute provides that a law enforcement officer may apprehend and transport an individual to the nearest appropriate facility if the officer has reasonable grounds to believe that the individual is:
(1) mentally ill;
(2) dangerous; and
(3) in immediate need of hospitalization and treatment.
I.C. § 12-26-4-1. For purposes of this statute, the term "dangerous" means "a condition in which an individual as a result of mental illness, presents a substantial risk that the individual will harm the individual or others." I.C. § 12-7-2-53. According to Johnson, he believed that Kenneth was a danger to himself or others because someone might have come out and hurt him if he continued to yell to his mother in an attempt to get into the house. PSAMF ¶ 64. Swinford, on the other hand, testified that Kenneth was not a danger to himself and that there was no probable cause to believe that he was a danger to others. Swinford Dep. at 40, 74. Johnson believed that Kenneth was a danger to others because he was borderline out of control, pounding on the door, yelling, screaming, and directing profanities at Johnson. Johnson Dep. at 22. Kenneth, however, denies that he was out of control, that he yelled or used profanities toward the officers, or that he fought them in any way. PSAMF ¶ 70. Even Swinford testified that before Johnson placed his hands on Kenneth, he was not out of control. Swinford Dep. at 29. Accordingly, there is at least a factual dispute about whether Kenneth was "dangerous," as that term is defined under Indiana law. Accepting the facts in the light most favorable to Kenneth, he has shown that the officers' conduct violated his constitutional right to be free from unreasonable seizure.
The officers claim that there is another Indiana statute that would have allowed them to detain Kenneth if he were mentally ill and either dangerous or gravely disabled. See I.C. § 12-26-1-1. The officers argue that under that provision, they lawfully detained Kenneth because he was mentally ill and gravely disabled, which is defined, in part, as "a condition in which an individual, as a result of mental illness, is in danger of coming to harm because the individual is unable to provide for that individual's food, clothing, shelter, or other essential human needs." I.C. § 12-7-2-96. Even assuming Kenneth were mentally ill and gravely disabled, however, I.C. § 12-26-1-1 would only have authorized the officers to proceed with the detention under I.C. § 12-26-4-1. As discussed, that particular provision requires, among other things, that the officer have a reasonable belief that the individual is dangerous.
That does not end the inquiry, however, because the Court must now consider whether the constitutional right to be free from unreasonable seizures was clearly established. "The relevant, dispositive inquiry in determining whether a right was clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 121 S.Ct. at 2156. If the law did not put the officers on notice that their conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. The parties have not alerted the Court to any case that addresses this particular factual situation. A right may be clearly established, however, if it is so obvious that a reasonable state actor would know that what they were doing violated the Constitution or if a closely analogous case establishes that the conduct is unconstitutional. Siebert v. Severino, 256 F.3d 648, 654-655 (7th Cir. 2001). Some rights may be so clearly established that there may not even be case law on point. The Court concludes that even absent case law directly on point, this case falls within the "obvious" scenario. It has been clearly established for a very long time that police officers cannot unreasonably seize individuals. See, e.g., Holland v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001) (noting that the Fourth Amendment's guarantee against unreasonable seizures has been part of our Constitution since 1791). Thus, a reasonable police officer should have known that it would have been unlawful to detain Kenneth under I.C. § 12-26-4-1 absent any evidence that he was "dangerous." Accordingly, the Court denies the officers' motion for summary judgment based on qualified immunity with respect to Kenneth's unreasonable seizure claim.
It is not clear that there was any evidence that Kenneth was in immediate need of hospitalization or treatment, either, but the Court need not decide that issue at this time.
2. Unlawful Arrest
The officers also seek qualified immunity on Kenneth's claim that they had no probable cause to arrest him for resisting law enforcement. The Fourth Amendment requires officers to have probable cause before arresting someone. See United States v. Nobles, 69 F.3d 172, 180 (7th Cir. 1995) (for an arrest, Fourth Amendment requires that the police have probable cause to believe that a person has committed or is committing a crime). The Court must first consider whether Kenneth has alleged facts that show the officers violated his constitutional rights. The officers claim that they arrested Kenneth because when they attempted to detain him he began twisting, turning, and pulling away from Johnson. In addition, Johnson believed that Kenneth was trying to kick Swinford. Kenneth, on the other hand, denies that he tried to pull away from the officers, to run from the officers, to hit the officers, or to kick the officers. Lowry testified that she observed Kenneth "wiggling," but that he was not resisting. Mervar saw the officers struggling with Kenneth, and eventually helped them handcuff him. He did not say, however, if this "struggling" was due to Kenneth's resisting law enforcement. Viewing the facts in a light most favorable to Kenneth, he has alleged a violation of his constitutional right to be free from arrest without probable cause.
The Court must now consider whether such a right was clearly established. Because qualified immunity protects all "but the plainly incompetent or those who knowingly violate the law," the officers would be immune from Kenneth's claim that they arrested him without probable cause unless "it is obvious that no reasonably competent officer" would have believed that there was probable cause to arrest. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). Accordingly, even if the officers had no probable cause to arrest Kenneth, they would be entitled to qualified immunity if they reasonably but mistakenly concluded that such probable cause existed. Spiegel, 196 F.3d at 723, (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
Again, viewing the facts in a light most favorable to Kenneth, no reasonable officer could have concluded that he had probable cause to arrest him for resisting law enforcement. The officers faced a situation involving a mentally ill individual who was locked out of his house, had been cooperating with them, and had put up no resistance. Under that scenario, no reasonable officer could have thought that he had probable cause to arrest Kenneth for resisting law enforcement. As a result, the officers' motion for summary judgment on the false arrest claim because of qualified immunity is denied.
3. Excessive Force Claim
Kenneth has also asserted a claim that the officers used excessive force in effectuating his arrest. In particular, he claims that they threw him to the ground and sprayed him with mace. The officers claim that they are entitled to qualified immunity on this claim, too, because they reasonably believed that the use of such force was necessary. The Fourth Amendment protects citizens against the use of excessive force during an arrest. See Graham, 490 U.S. at 388. Whether excessive force was used is evaluated under the "objective reasonableness" standard, through which courts assess whether the actor's actions were objectively reasonable "in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397; Chapman v. Keltner, 241 F.3d 842, 847 (7th Cir. 2001). Courts 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." Graham, 490 U.S. at 396. Courts 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. Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000). Ultimately, 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 to the arresting officers — if left unattended. McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir. 1992) (citing Wilkins v. May, 872 F.2d 190, 193 (7th Cir. 1989), cert. denied, 493 U.S. 1026 (1990)).
Once again, the Court must first consider whether the facts, taken in a light most favorable to Kenneth, show a constitutional violation. If, as Kenneth's evidence suggests, he did nothing to resist the officers' attempts to handcuff him, then the officers' act of spraying mace in his face was objectively excessive. In addition, based upon the facts alleged by Kenneth, it would have been clear to a reasonable officer that he was not legally justified in using such force under the circumstances. As a result, the officers are not entitled to qualified immunity on Kenneth's excessive force claim.
B. THE MERITS OF KENNETH'S CLAIMS 1. The Federal Claims
The officers also believe that they are entitled to summary judgment on the merits of Kenneth's claims. At this stage of the proceeding, the Court is required to view the facts in the light most favorable to Kenneth. As already discussed, Kenneth has put forward sufficient evidence to establish that his constitutional rights were violated. The officers understandably disagree with Kenneth's version of events with respect to each of his claims, but those factual disputes are to be resolved by a jury. As a result, the Court denies the officers' motion for summary judgment on all of Kenneth's federal claims.
2. The Claims under Indiana Law
The officers also moved for summary judgment on Kenneth's claim for battery under Indiana law. Kenneth also had a state law claim for false arrest, but the officers did not seek summary judgment on that particular claim. The officers contend that because no excessive force was used, Kenneth's battery claim fails as a matter of law. In addition, the officers assert that I.C. § 34-13-3-5 mandates that any claim for battery must be against the Sheriff's Department, not against them individually.
Under Indiana law, "[a] police officer in the lawful discharge of his duties is privileged to use only that force which is reasonable and necessary to effect an arrest. If he uses unnecessary force his conduct is no longer privileged and he is answerable for an assault and battery . . . The issue is whether under the circumstances the force used was excessive. If it was, the assault and battery was not privileged. On the other hand, if the force used was reasonable and was incident to a lawful arrest, it was privileged." City of South Bend v. Fleming, 397 N.E.2d 1075, 1077 (Ind.Ct.App. 1979).
The Court has already determined that a factual dispute precluded the entry of summary judgment on Kenneth's excessive force claim. In other words, a jury must determine whether the officers used excessive force in arresting Kenneth. Accordingly, summary judgment on Kenneth's battery claim is also inappropriate. The officers are correct, however, that the state law battery claim may only be pursued against the Sheriff's Department, and not against Johnson and Swinford individually. See Phillips v. Sheriff of Marion County, 2001 WL 290379, *6 (S.D.Ind. January 31, 2001) (where there was no dispute that deputy sheriff was acting in the scope of his employment when the incident occurred, only the Sheriff's Department was a proper defendant to the claim) (citing I.C. § 34-13-3-5). Thus, the Court grants the officers motion for summary judgment on Kenneth's battery claim to the extent he seeks to hold them individually liable. The claim against the Sheriff's Department, however, remains for trial.
IV. CONCLUSION
In sum, the Court grants Defendants' Motion for Summary Judgment on Kenneth's battery claim against Johnson and Swinford, but denies the motion with respect to Kenneth's battery claim against the Sheriff's Department. The Court also denies Defendants' Motion for Summary Judgment on Kenneth's § 1983 claims.