Schenke v. Lehman

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

JAMES K. SCHENKE, )

)

Plaintiff, )

)

v. ) No. 4:18 CV 79

)

THOMAS LEHMAN, et al., )

)

Defendants. )

OPINION and ORDER

This matter is before the court on defendants’ second motion to dismiss.

(DE #20.) For the reasons set forth below, the motion will be granted.

I. BACKGROUND

The following factual allegations come from plaintiff James Schenke’s pro se

amended complaint and the police report attached as an exhibit to his amended

complaint. (DE ## 4; 4-1.) The allegations in the amended complaint are largely

consistent with the information contained in the police report. However, to the extent

that the accounts differ, the court accepts Schenke’s version of events as true for the

purposes of ruling on the motion to dismiss.

On October 28, 2016, Tippecanoe County Sheriff Department deputies

defendants Thomas Lehman and Jodi Rohler responded to a 911 call originating from

Schenke’s home. (DE # 4-1 at 1.) The caller hung up, and when the dispatcher returned

the call it went straight to voicemail. (Id.) When Lehman and Rohler arrived, Schenke’s

wife Shauna answered the door with one of their daughters, 11-year old L.S., who was

crying. (Id. at 1; DE # 4 at 3.) Lehman asked Shauna if everything was ok, and Shauna

told him that she was in “a little argument” with Schenke, but that they had “things all

sorted out and everything is ok.” (DE # 4 at 2.) Shauna told the officers that their

assistance was unnecessary and unwanted. (Id. at 3.) The officers then entered the home

without Shauna’s permission. (Id. at 3.) The officers separated the members of Schenke’s

family – Schenke, Shauna, L.S., the couple’s eight-year-old daughter C.S., and their six-

year-old son W.S. – and began questioning the family. (Id. at 3, 23.) At the time they

entered, the home was quiet and no one had any visible injuries. (Id. at 3.)

When Lehman spoke with Schenke, Schenke explained that he had been

struggling all morning to get the family packed and out the door for a weekend trip to

Chicago. (Id. at 13.) At one point, the children began roughhousing – jumping on his

back and tugging on his arms – as he attempted to complete the packing. (Id.) Schenke

was “sweaty” and “still winded and heart pounding” from the children’s “attack” on

him when, shortly thereafter, the officers knocked on his door. (Id. at 17.)

Schenke also told Lehman that L.S. has a history of attacking her parents and that

she attacked Schenke earlier that day. (Id. at 12.) He claims that earlier that morning,

L.S. had thrown things at him, attempted to kick and punch him, and that she had hit

him over the head with a suitcase. (Id. at 13.) Schenke told Lehman that after L.S. hit

him with the suitcase, he hit her once on her waist with a belt. (Id.) When L.S. then

punched him, he spanked her bottom twice with his hand. (Id. at 7-8, 13.) Schenke

explained to Lehman that L.S. has an untreated mood disorder, leading to her

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challenging behavior. (Id. at 8.) He told Lehman that L.S. called the police because she

did not want to go to Chicago. (Id. at 6.)

When Lehman spoke with Shauna, Shauna told him that Schenke had pushed

C.S. against the wall, pinned her there with his hand around her throat, and yelled into

her ear. (DE # 4-1 at 2.) Shauna told Lehman that C.S. had been crying and talking, so

Shauna did not think Schenke squeezed C.S.’s throat. (Id.)

Shauna also told Lehman that Schenke hit her in the hip/buttock area with a belt,

and that this caused some minor pain. (Id.) Shauna told Lehman that Schenke used his

body to push her backward and yelled at her not to say slanderous things about him.

(Id.) She also said Schenke pushed her hard against the wall and threatened that he

could slam her head through a wall if he wanted to. (Id.) When Schenke spoke to

Lehman, Schenke reported that Shauna accused him of being “murderous” and

screamed at him, “Go ahead. Slam my head through a wall. Kill me. You know that’s

what you want to do.” (DE # 4 at 22.) While Schenke told Lehman that he did not hit

Shauna, he admitted that he grabbed her face around her chin in order to speak with

her during their argument. (DE # 4-1 at 1.)

Shauna told Lehman that Schenke had become abusive over the previous few

years, and that he had battered her a few times but she had only reported one such

incident. (Id. at 2.) She told Lehman that Schenke mentally abused their children on a

daily basis. (Id.) The officers did not see any injuries on Shauna or the children. (DE ## 4

at 7; 4-1 at 2.)

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Lehman interviewed Shauna in the master bedroom. (DE # 4-1 at 3.) While in the

bedroom, Lehman noticed numerous types of ammunition. (Id.) Shauna told Lehman

that Schenke owned a few different guns, but that none of the guns had been used

during the family’s dispute that day. (Id.) Schenke reported to Rohler that Shauna was

afraid that L.S. would use Schenke’s guns against the family. (Id. at 6.)

Lehman placed Schenke under arrest for domestic battery and Rohler

transported Schenke to jail. (Id. at 2.) A few hours after his arrest, Lehman questioned

Schenke. (DE # 4 at 7.) Schenke asked for counsel, but Lehman continued his

questioning and did not provide him counsel. (Id.)

In his report, Lehman identified the victims of the domestic battery as Shauna,

C.S., and L.S. (DE # 4-1 at 4.) A “no contact” order was completed – listing Shauna and

the children on the order. (Id. at 2.) Lehman confiscated ten guns from Schenke. (Id. at

4.) The officers also contacted the Department of Child Services. (Id. at 3.) An Indiana

Superior Court later entered a protective order, classifying Schenke as a “dangerous

person” and approving the confiscation of Schenke’s firearms.1 (DE # 4 at 7, 11.) The

Tippecanoe County Prosecutor ultimately declined to file charges against Schenke. (Id.

at 2.)

Defendants filed a partial motion to dismiss, addressing several of Schenke’s

claims. (DE # 13.) This court granted the motion and granted defendants leave to file a

1 It is unclear from the face of the complaint when, or if, Schenke’s firearms were

returned to him.

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second motion to dismiss,2 addressing Schenke’s remaining claims under the Second

Amendment, Fourth Amendment, and Fifth Amendment. (DE # 19.) Before the court is

defendants’ second motion, addressing these claims. (DE # 20.) Schenke did not

respond to the motion to dismiss, and the time to do so has passed. This matter is ripe

for resolution.

II. LEGAL STANDARD

A judge reviewing a complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) must construe the allegations in the complaint in the light most favorable to the

non-moving party, accept all well-pleaded facts as true, and draw all reasonable

inferences in favor of the non-movant. United States ex rel. Berkowitz v. Automation Aids,

Inc., 896 F.3d 834, 839 (7th Cir. 2018).

Under the liberal notice-pleading requirements of the Federal Rules of Civil

Procedure, the complaint need only contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “While the federal

pleading standard is quite forgiving, . . . the complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ray v. City

of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011); Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007). A plaintiff must plead “factual content that allows the court to draw the

2 In this court’s Opinion and Order of August 16, 2019, this court dismissed

Schenke’s claims against all defendants except Lehman and Rohler, and dismissed

Schenke’s claim for false arrest. (DE # 19.)

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009).

To meet this standard, a complaint does not need detailed factual allegations, but

it must go beyond providing “labels and conclusions” and “be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555. As the Seventh Circuit

explained, a complaint must give “enough details about the subject-matter of the case to

present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.

2010). Even if the truth of the facts alleged appears doubtful, and recovery remote or

unlikely, the court cannot dismiss a complaint for failure to state a claim if, when the

facts pleaded are taken as true, a plaintiff has “nudged their claims across the line from

conceivable to plausible.” Twombly, 550 U.S. at 555, 570.

III. DISCUSSION

A. Claims Regarding Entry, Seizure, and Questioning

Liberally construing Schenke’s amended complaint, Schenke identifies several

claims under the Fourth and Fifth Amendments. He argues that defendants

unreasonably entered and searched his home and detained himself and his family for

questioning. He also argues that defendants failed to provide a Miranda warning, failed

to honor his request for counsel, and questioned his children against his will. None of

these allegations amount to a constitutional violation. A strikingly similar case, Hanson

v. Dane Cty., Wis., 608 F.3d 335 (7th Cir. 2010), demonstrates why these claims must be

dismissed.

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In Hanson, a dispatcher received a 911 call, but the connection was broken. Id. at

337. When the dispatcher called back, no one answered. Id. The defendant police

officers were called to the home to investigate. Id. The officers entered the home without

permission and questioned the occupants: a husband, wife, and their two teenage

daughters. Id. The officers learned that during a heated argument, the husband bumped

into the wife, and the wife called 911. Id. The husband was arrested for domestic

battery; however, the wife refused to cooperate with the prosecution, and the case was

dismissed. Id. The husband filed suit under 42 U.S.C. § 1983, alleging that the officers

violated his Fourth, Fifth, and Fourteenth Amendment rights. Id.

First, the husband claimed that the officers violated his Fourth Amendment

rights when they entered his home without probable cause and refused to leave when

his wife asked them to go. Id. The Seventh Circuit rejected this argument, finding:

[A] 911 call provides probable cause for entry, if a call back goes

unanswered. The 911 line is supposed to be used for emergencies only. A

lack of an answer on the return of an incomplete emergency call implies

that the caller is unable to pick up the phone—because of injury, illness (a

heart attack, for example), or a threat of violence. Any of these three

possibilities supplies both probable cause and an exigent circumstance

that dispenses with the need for a warrant.

Id. (internal citations omitted). Moreover, even though the wife asked the officers to

leave, “officers who have probable cause need not cancel an investigation on request.”

Id. at 338. The wife’s statement that she was unharmed did not establish that there was

no need for further inquiry. Id. Additionally, because of the nature of domestic violence,

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“the police acted reasonably by continuing their investigation and questioning [the

wife] and [the husband] out of each other’s presence.” Id.

The husband also challenged the officers’ questioning of his daughters outside of

his presence, on substantive due process grounds. Id. The Seventh Circuit held that

because the daughters were not plaintiffs, the husband’s suit could only litigate his own

rights; not those of his daughters. Id. Moreover, the Court noted that it was unaware of

any fundamental right to prevent police from questioning a person’s children over the

parent’s objections. Id. at 339.

Finally, the husband argued that the officers violated his right against self-

incrimination when they questioned him without first delivering the warnings that

Miranda v. Arizona, 384 U.S. 436 (1966), requires before custodial interrogation. Id. The

Court held that because the privilege against self-incrimination concerns the use of

compelled statements in criminal prosecutions, an interrogation that yields

incriminatory evidence that is never used in a criminal trial does not support an award

of damages. Id. “The police therefore did not violate [the husband’s] privilege against

self-incrimination, whether or not they should have given him Miranda warnings.” Id. at

340.

Schenke’s claims mirror those made by the husband in Hanson, and must be

dismissed for the same reasons. Lehman and Rohler had probable cause to enter

Schenke’s home after L.S.’s aborted 911 call, and the dispatcher’s subsequent,

unanswered return call. When the officers arrived at the Schenke home, there were

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signs of a domestic disturbance. Because they had probable cause to enter the home, the

officers did not have to terminate their investigation after Shauna requested that they

leave. See id. at 338.

The officers also did not violate Schenke’s rights when they separated the family

into different rooms for questioning. See id. Moreover, the questioning of Schenke’s

children did not implicate any of Schenke’s constitutional rights.

Finally, as in Hanson, Schenke was never prosecuted or tried. Therefore,

defendants’ failure to provide Miranda warnings, or to cease questioning when he

requested a lawyer, are not cognizable claims. Id. at 339 (“[I]nterrogation that yields

incriminatory evidence never used in court does not support an award of damages.”).

Defendants’ motion to dismiss these claims will be granted.

B. Claims Regarding Seizure of Firearms

Schenke also challenges the seizure of the firearms from his home as violations of

his rights under the Second and Fourth Amendments. Defendants are entitled to

qualified immunity regarding their seizure of Schenke’s firearms.

“Qualified immunity shields a government official from suit when the official is

performing a discretionary function and his conduct does not violate clearly established

rights of which a reasonable person would have known.” Sutterfield v. City of Milwaukee,

751 F.3d 542, 572 (7th Cir. 2014). Here, there is no question that the officers’ seizure of

the firearms was a discretionary act. See id. Moreover, the seizure of the firearms did not

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violate a clearly established right of which a reasonable person in defendants’ position

would have known.

Under Indiana law,

(b) A law enforcement officer may confiscate and remove a firearm,

ammunition, or a deadly weapon from the scene if the law enforcement

officer has:

(1) probable cause to believe that a crime involving domestic or

family violence has occurred;

(2) a reasonable belief that the firearm, ammunition, or deadly

weapon:

(A) exposes the victim to an immediate risk of serious bodily

injury; or

(B) was an instrumentality of the crime involving domestic

or family violence; and

(3) observed the firearm, ammunition, or deadly weapon at the scene

during the response.

Ind. Code § 35-33-1-1.5.

Furthermore, Indiana’s “red flag” law permits a warrantless seizure of firearms

where a law enforcement officer believes that an individual is dangerous, as defined by

Indiana Code § 35-47-14-1. See Ind. Code § 35-47-14-3 (eff. to June 30, 2019); Redington v.

State, 992 N.E.2d 823, 830 (Ind. Ct. App. 2013) (“Section 3 provides a mechanism for a

law enforcement officer to seize firearms from an individual believed to be dangerous

without a warrant.”). An individual is “dangerous” for purposes of this statute if: “the

individual may present a risk of personal injury to the individual or to another

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individual in the future and the individual: . . . (B) is the subject of documented

evidence that would give rise to a reasonable belief that the individual has a propensity

for violent or emotionally unstable conduct.” Ind. Code § 35-47-14-1 (eff. to May 5,

2019). The red flag law provides for the temporary seizure of firearms, and a procedure

for judicial review of the seizure. Ind. Code § 35-47-14-5.

Here, defendants are entitled to qualified immunity on Schenke’s Fourth

Amendment claim because in light of the Indiana law, a reasonable officer in Rohler or

Lehman’s position could have believed that seizure of Schenke’s firearms was lawful.

See Sutterfield, 751 F.3d at 578 (officers who seized gun during the course of involuntary

mental health commitment were entitled to qualified immunity because a reasonable

officer could believe, under state law, that the seizure was lawful).

Defendants are also entitled to qualified immunity on Schenke’s Second

Amendment claim. The Supreme Court has noted that the right to possess a firearm,

secured by the Second Amendment, “is not unlimited.” D.C. v. Heller, 554 U.S. 570, 626

(2008). However, the contours of this right, in this context, remain underdeveloped.

“Whether and to what extent the Second Amendment protects an individual’s right to

possess a particular gun (and limits the power of the police to seize it absent probable

cause to believe it was involved in a crime) is an issue that is just beginning to receive

judicial attention.” Sutterfield, 751 F.3d at 571. In the absence of clearly established law

on this issue, and in light of Indiana’s law apparently authorizing the seizure, a

reasonable officer in Lehman or Rohler’s position would not have known that they were

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violating Schenke’s rights (if in fact, such a seizure did violate his rights) by confiscating

his firearms during the course of his arrest.

IV. CONCLUSION

For the foregoing reasons, the court GRANTS defendants’ second motion to

dismiss. (DE # 20.) The Clerk is DIRECTED to close this case.

SO ORDERED.

Date: April 9, 2020

s/James T. Moody

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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