HENDERSON v. CITY OF INDIANAPOLIS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

KARL B. HENDERSON, )

)

Plaintiff, )

)

v. ) No. 1:18-cv-00020-JRS-MPB

)

CITY OF INDIANAPOLIS, et al. )

)

Defendants. )

Order on Motion for Summary Judgment

Plaintiff Karl B. Henderson brings this action under 42 U.S.C. § 1983, alleging

that Defendants City of Indianapolis (the “City”) and Officer Justin Baker violated

his rights under the Fourth Amendment in conducting an unreasonable seizure and

false arrest. He also asserts a state-law claim for false arrest. Defendants move for

summary judgment on the false arrest claims, arguing that Officer Baker is entitled

to qualified immunity on the federal claims because he had probable cause to arrest

Henderson for public intoxication, and even if Officer Baker did not have probable

cause for the arrest, he had arguable probable cause. Defendants also contend that

the City is entitled to summary judgment on Plaintiff’s state-law claim under re-

spondeat superior because its officers had probable cause to arrest him.

As a general rule, a party seeking summary judgment must raise arguments in

support of its motion in its opening brief to provide the non-movant a fair opportunity

to respond. See, e.g., Ramos v. City of Chicago, 716 F.3d 1013, 1017 (7th Cir. 2013).

Defendants did not address whether the officers’ initial investigatory stop was

reasonable. The arguments in the motion focus on the defendants’ conduct in arrest-

ing Henderson. However, Plaintiff’s response brief addresses the investigatory stop,

and Defendants’ reply does as well. Regardless, the Court finds there is a genuine

issue of material fact regarding whether the investigatory stop was reasonable. The

Court rules as follows:

I. Background

In the early morning hours of October 28, 2016, Officer Baker was working a late

shift that ended at 6 a.m. for the Indianapolis Metropolitan Police Department

(“IMPD”). (Baker Dep. 12, ECF No. 30-1 at 9.) At approximately 4:39 a.m., he re-

sponded to a dispatch report of a white male in a trench coat with a gun acting

strangely in a McDonald’s parking lot near County Line Road and Madison Avenue

in Indianapolis. (ECF No. 30-1 at 10.) Officer Baker did not hear any explanation of

what was meant by “acting strangely.” He drove to this area to search for the suspect.

(ECF No. 30-1 at 11.)

Officer Ryan Lundy advised other officers that he observed someone matching the

suspect’s description near a Chase Bank at County Line Road and US 31 “hiding

behind a telephone pole …. “ (ECF N0. 30-1 at 11, 27-28.) Officer Baker drove toward

Officer Lundy’s location and saw Officer Lundy walking west across US 31 from a

Speedway gas station toward a shopping plaza. (ECF No. 30-1 at 11.) Officer Baker

also saw Henderson stumble onto US 31 while walking on the opposite side of the

street. (ECF No. 30-1 at 18.)

Officers detained Henderson at 4:52 a.m. and then Officer Baker approached Hen-

derson and retrieved his firearm. (ECF No. 30-1 at 14.) Henderson was placed in

handcuffs for officer safety and Mirandized. (ECF No. 39-1 at 15-16.) Officer Baker

believed that Henderson was a threat to officer safety because it was the middle of

the night, officers had received reports of an armed male acting strangely, Henderson

was hiding behind a pole when he was identified by Officer Lundy, and numerous

businesses had been robbed in the area around that time. (ECF No. 30-1 at 16.)

The officers began speaking to Henderson, and Officer Baker, who has been

trained in field sobriety tests and Advanced Roadside Impairment Detection, ob-

served that Henderson appeared intoxicated. (ECF No. 30-1 at 17.) Officer Baker

believed Henderson was intoxicated because he had slurred speech, an odor of alco-

holic beverages on his person, and red, glassy bloodshot eyes. In addition, he was

unsteady on his feet and while sitting down, demonstrated an inability to answer

some of the officers’ questions, and took a long time to answer other of their questions.

(ECF No. 30-1 at 17.)

The officers asked Henderson where he was headed, where he lived, how he

planned to get home, and what he was doing out at four in the morning. (ECF No.

30-1 at 19.) Henderson was uncooperative. (ECF No. 30-1 at 18.) For example, when

asked if he lived in the area or if he was staying with a friend or at a hotel, Henderson

answered, “all of these.” (ECF No. 30-1 at 19-20.) Officers attempted to identify

someone they could call to come get Henderson, even trying to identify someone in

his chain of command (he was in the U.S. Army and assigned to Camp Atterbury,

Indiana), but Henderson was either unable or unwilling to provide the officers with

this information.(ECF No. No. 30-1 at 22.)

After questioning Henderson for approximately 18 minutes and exhausting all

means the officers could think of to try to get Henderson home, Officer Baker decided

to arrest Henderson. (ECF No. 30-1 at 25, 35-36.) Officer Baker arrested Henderson

for public intoxication because Baker believed that was the crime that Henderson

was committing. (ECF No. 30-1 at 23.) Officer Baker believed that Henderson was

a danger to himself because he had stumbled onto US 31, Baker believed Henderson

was a threat to the officers and that he had breached the peace and harassed, an-

noyed, or alarmed people earlier that night based on the information Baker had re-

ceived that a man with a gun was acting strangely. (ECF No. 30-1 at 7-8.)

II. Discussion

“A district court properly grants summary judgment where there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a

matter of law.” Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019), petition for cert.

filed, (U.S. June 3, 2019). A court must draw all reasonable inferences in favor of the

non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The non-movant must “make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the non-movant

fails to establish an essential element of his case, there is a complete failure of proof,

and the movant is entitled to judgment as a matter of law. Id. at 323. The non-

movant “must do more than simply show that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986); see also Giles, 914 F.3d at 1048 (stating that the non-movant must

“present specific facts establishing a material issue for trial, and any inferences must

rely on more than mere speculation or conjecture”). Where the “evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.” An-

derson, 477 U.S. at 249–50 (citations omitted).

Defendants contend that Officer Baker is entitled to qualified immunity on Hen-

derson’s false arrest claim because he had probable cause, or at least arguable prob-

able cause, to arrest Henderson. “[Q]ualified immunity shields officials from civil

liability so long as their conduct ‘does not violate clearly established statutory or con-

stitutional rights of which a reasonable person would have known.’” Mullenix v.

Luna, ––– U.S. ––––, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555

U.S. 223, 231 (2009)). “[Q}ualified immunity protects all but the plainly incompetent

or those who knowingly violate the law.” Mullenix, 136 S. Ct.at 308 (internal quota-

tion marks and citation omitted). Thus, “[a] state official is protected by qualified

immunity unless the plaintiff shows: (1) that the official violated a statutory or con-

stitutional right, and (2) that the right was “clearly established” at the time of the

challenged conduct.” Lovett v. Herbert, 907 F.3d 986, 991 (7th Cir. 2018) (alteration

in original) (quoting Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017)). To determine

whether a right was clearly established at the time of the challenged conduct, courts

examine “whether it would be clear to a reasonable official that his or her conduct

was unlawful in the situation.” McComas v. Brickley, 673 F.3d 722, 725 (7th Cir.

2012) (quoting Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008)). Courts

“have discretion to choose which prong to address first.” Lovett, 907 .3d at 992.

The Fourth Amendment protects against “unreasonable . . . seizures.” U.S. Const.

amend. IV. Officers need not have probable cause to detain a person for a brief in-

vestigatory stop. Under Terry v. Ohio, 392 U.S. 1 (1968), such a stop is permissible

as long as the officers have reasonable articulable suspicion, supported by specific

and articulable facts, that criminal activity may be afoot. Ramos v. City of Chicago,

716 F.3d 1013, 1017 (7th Cir. 2013). This standard is less demanding than the prob-

able cause standard needed for an arrest; it “requires more than an unparticularized

hunch but less than a probability or substantial chance that criminal activity exists.”

Id. “Before law enforcement may stop a person based on an anonymous tip, reason-

able suspicion typically “requires that [the] tip be reliable in its assertion of illegality,

not just in its tendency to identify a determinate person.’” United States v. Lopez,

907 F.3d 472, 480 (7th Cir. 2018) (alteration in original) (quoting Florida v. J.L., 529

U.S.266, 272 (2000)).

In responding to the summary judgment motion, Henderson argues that the offic-

ers did nothing to corroborate the tips communicated to them from dispatch, and the

tips contained no assertion of criminal conduct or illegality. He submits there is no

evidence in the record to raise a reasonable inference of criminal activity. Defend-

ants’ reply argues that Officer Baker had reasonable suspicion based on that follow-

ing facts: it was the middle of the night, the officers had received reports of an armed

male acting strangely, Officer Lundy reported that Henderson was hiding behind a

pole when he was identified, and around that time, several businesses in the area

had been robbed around that time.

“When more than one police officer is involved in the reasonable-suspicion analy-

sis, courts consider their collective knowledge.” United States v. Street, 917 F.3d 586,

596 (7th Cir. 2019). “The collective knowledge doctrine permits an officer to stop,

search, or arrest a suspect at the direction of another officer . . . even if the officer

himself does not have firsthand knowledge of facts that amount to the necessary level

of suspicion to permit the given action.” United States v. Williams, 627 F.3d 247, 252

(7th Cir. 2010). To rely on the collective knowledge doctrine, “(1) the officer taking

the action must act in objective reliance on the information received, (2) the officer

providing the information—or the agency for which he works—must have facts sup-

porting the level of suspicion required, and (3) the stop must be no more intrusive

than would have been permissible for the officer requesting it.” Street, 917 F.3d at

596–97.

In arguing that Officer Baker had reasonable suspicion, however, Defendants em-

phasize his knowledge that Henderson was hiding behind a pole when first identified

as the suspect. (Reply Brief Support Mot. Summ. J. 5, ECF No. 41) (asserting that

“suspects that are hiding behind poles in parking lots at 5 a.m. do garner reasonable

suspicion that they are committing or have committed a crime”).) A suspect’s attempt

to evade law enforcement may provide reasonable suspicion so as to justify a Terry

stop. See, e.g., D.Z. v. Buell, 796 F.3d 749, 755 (7th Cir. 2015) (concluding officer had

reasonable suspicion to stop suspect that matched the description of a burglar where

the suspect was in the vicinity of the burglary and the officer reasonably believed

suspect had tried to evade police). Officer Lundy, who was the first officer on the

scene, reported that Henderson was hiding behind a pole. While Officer Baker’s re-

liance on that report may have been reasonable, evidence in the record raises a dis-

pute of fact over whether Officer Lundy’s report was accurate and based on the facts.

When asked at his deposition whether he was hiding behind a pole, Henderson an-

swered, “No.” (Henderson Dep. 109, ECF No. 36-1 at 109.)

Thus, there is a dispute at least as to whether Henderson was hiding behind a

pole when Officer Lundy first spotted him, or whether Officer Lundy’s report that

Henderson was hiding behind a pole was false. When the report that Henderson was

hiding behind a pole is eliminated, see, e.g., Betker v. Gomez, 692 F.3d 854, 862 (7th

Cir. 2012) (evaluating whether probable cause would have existed absent false or

misleading statements), the remaining facts known to the officers collectively and to

Officer Baker in particular—it was late at night, a man in a trench coat had a gun

and had been acting “strangely,” Henderson matched the suspect’s general descrip-

tion, and businesses in the area had been robbed at some other time—did not estab-

lish reasonable suspicion to stop Henderson. A genuine issue of material fact exists

as to whether Officer Baker had reasonable suspicion to conduct a Terry stop of Hen-

derson and whether Officer Baker violated Henderson’s Fourth Amendment right to

be free from an unreasonable seizure. Where there is a factual dispute bearing on

the qualified immunity analysis, “a trial is required before a determination can be

made as to whether [the defendant] is entitled to qualified immunity.” Chelios v.

Heavener, 520 F.3d 678, 692 (7th Cir. 2008). Therefore, even if Defendants’ summary

judgment motion had addressed Henderson’s unreasonable seizure claim arising

from the initial stop, summary judgment would still be inappropriate.

Henderson’s false arrest is a different matter. Probable cause is a bar to a Fourth

Amendment claim for false arrest. Muhammad v. Pearson, 900 F.3d 898, 907 (7th

Cir. 2018). “Probable cause exists if, at the time of the arrest, the facts and circum-

stances within the defendant’s knowledge are sufficient to warrant a prudent person,

or one of reasonable caution, in believing, in the circumstances shown, that the sus-

pect has committed . . . an offense.” Id. at 908 (quotation and citation omitted). Prob-

able cause is an objective standard that “relies on the common-sense judgment of the

officers based on the totality of the circumstances.” Id. (quotation and citation omit-

ted). When a defendant raises qualified immunity as a defense to a false-arrest claim,

the court determines whether “the officer actually had probable cause or, if there was

no probable cause, whether a reasonable officer could have mistakenly believed that

probable cause existed,” Fleming v. Livingston Cty., Ill., 674 F.3d 874, 878 (7th Cir.

2012) (quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998))—that is,

whether there is “arguable probable cause,” McComas, 673 F.3d at 725 (in the context

of a wrongful arrest, whether it would be clear to a reasonable official that his conduct

was unlawful “turns on whether the arresting officer had ‘arguable probable cause’”)

(quoting Jones v. Clark, 630 F.3d 677, 684 (7th Cir. 2011)). “Arguable probable cause

exists when a reasonable officer could mistakenly have believed that he had probable

cause to make the arrest.” Id.

Officer Baker arrested Henderson for public intoxication. Indiana law makes it a

crime “for a person to be in a public place or a place of public resort in a state of

intoxication caused by the person’s use of alcohol . . . , if the person: (1) endangers the

person’s life; . . . or (4) harasses, annoys, or alarms another person.” Ind. Code § 7.1-

5-1-3(a). Indiana law defines “intoxicated” as “under the influence of alcohol . . . so

that there is an impaired condition of thought and action and the loss of normal con-

trol of a person’s faculties.” Ind. Code § 9-13-2-86. “[C]ommon indicia of intoxication

include ‘(1) the consumption of [a] significant amount of alcohol; (2) impaired atten-

tion and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath;

(5) unsteady balance; (6) failure of field sobriety tests; [and] (7) slurred speech.’”

Gutierrez v. Kermon, 722 F.3d 1003, 1012 (7th Cir. 2013) (quoting Fought v. State, 898

N.E.2d 447, 451 (Ind. Ct. App. 2008)). “‘[I]indicators [of intoxication] are well within

the experience of the average adult,’ making it a proper subject for lay opinion testi-

mony.” Johnson v. Rogers, No. 1:16-cv-02705-JMS-MPB, 2019 WL 203115, at *8 n.1

(S.D. Ind. Jan. 15, 2019) (quoting Mowrey v. City of Fort Wayne, 2013 WL 6512664,

at *6 (N.D. Ind. 2013)) and citing Fed. R. Evid. 701), appeal filed (7th Cir. Feb. 28,

2019) (No. 19-1366).

Officer Baker testified that he believed Henderson was intoxicated because he had

slurred speech, an odor of alcoholic beverages on his person, and red, glassy bloodshot

eyes; he was unsteady on his feet and while sitting down; and he demonstrated an

inability to answer the officers’ questions and took a long time to answer questions.

(Baker Dep. at 20-21, ECF No. 30-1 at 17-18.) Henderson himself testified that he

may have smelled like alcohol because he wears cologne that smells like alcohol, and

he said that “[e]veryone says I slur my speech.” (Henderson Dep. at 121-22, 200, ECF

No. 30-5 at 12, 19.) The undisputed evidence establishes that Office Baker believed,

and a reasonable officer could have believed, that Henderson smelled like alcohol and

had slurred speech at the time of his arrest. Further, Officer Baker testified that the

officers asked Henderson a lot of questions, but his answers were not responsive, and

he was uncooperative. (Baker Dep. at 21-22, ECF No. 30-1 at 19-20.) Similarly, Hen-

derson testified that after he was Mirandized, he did not speak to the officers any-

more. (Henderson Dep. at 117, ECF No. 30-5 at 7-8.) Thus, the undisputed evidence

raises an inference that Henderson had difficulty answering the officers’ questions

and was not cooperative. The undisputed evidence further establishes that Hender-

son had red, glassy and bloodshot eyes and was unsteady on his feet and while sitting

down. Given that the evidence establishes that Henderson demonstrated several in-

dicia of intoxication, Officer Baker had probable cause to believe that Henderson was

intoxicated during their encounter.

Furthermore, Officer Baker had probable cause to believe that Henderson had

endangered his life by stumbling into Highway US 31. And, based on the calls to

report a man acting strangely with a gun and Officer Lundy’s observation that Hen-

derson matched the suspect’s description, Officer Baker also had probable cause to

believe that Henderson had harassed, annoyed, or alarmed another person.

Therefore, the undisputed facts establish that Officer Baker had probable cause to

arrest Henderson for public intoxication in violation of Indiana law. And even if prob-

able cause to arrest Henderson for public intoxication did not exist, Officer Baker had

“arguable probable cause” to arrest Henderson. As noted, “[a]rguable probable cause

exists when a reasonable officer could mistakenly have believed that he had probable

cause to make the arrest.” McComas, 673 F.3d at 725. Given that, among other

indicia of intoxication, Henderson smelled of alcohol, had slurred speech, was un-

steady on his feet and sitting, and had stumbled into the highway, a reasonable officer

could have mistakenly believed he had probable cause to arrest Henderson.

The existence of probable cause “is an absolute defense” to both federal and state

claims based on a wrongful arrest. Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th

Cir. 2006). The probable cause standard under Indiana law is akin to the federal

standard: “Probable cause for arrest is demonstrated by facts and circumstances

known to the arresting officer which would warrant a person of reasonable caution

and prudence in believing that the accused had committed or was committing a crim-

inal offense.” Tallman v. State, 13 N.E.3d 854, 857 (Ind. Ct. App.2014) (quotation

and citation omitted). As discussed, Officer Baker had probable cause to believe that

Henderson was committing the crime of public intoxication under Indiana law. The

claim against the City is brought under respondeat superior, under which the City as

employer is liable for the tortious acts of its employee committed within the scope of

employment. See Scott v. Retz, 916 N.E.2d 252, 257 (Ind. Ct. App. 2009) (citing Bar-

nett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008)). Under Indiana law, summary

judgment in favor of the employee on the underlying tort claim necessitates judgment

in favor of the employer under respondeat superior. Id. Because the officers are not

liable to Henderson on his false arrest claim, the City is entitled to summary judg-

ment on his false arrest claim as well.

Conclusion

For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No.

is granted as to the false arrest claims and denied as to the claims that Defend-

ants violated Plaintiffs Fourth Amendment rights in the initial investigatory stop.

This case remains set for jury trial on September 23, 2019, and for a final pretrial

conference on August 22, 2019. A separate order setting pretrial filing deadlines will

be issued.

SO ORDERED.

Date: 7/26/2019 fh Set

JAMES R. SWEENEY II, JUDGE

United States District Court

Southern District of Indiana

Distribution by the Court’s CM/ECF system to all registered counsel of record

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