BROWN v. ROBINETT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

DEMETRIA Y. BROWN, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-02336-SEB-MJD

)

PHILIP ROBINETT Officer, )

)

Defendant. )

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

On June 11, 2019, Plaintiff Demetria Y. Brown initiated this civil rights lawsuit

against Defendant Philip Robinett, a police officer serving as a member of the

Indianapolis Metropolitan Police Department. Ms. Brown alleges that Officer Robinett

violated her rights under the First and Fourth Amendments to the United States

Constitution. Now before the Court is Officer Robinett's Motion for Summary Judgment

[Dkt. 47]. For the reasons set forth herein, this motion is granted.

Facts

The following facts are undisputed between the parties.

Officer Robinett was on duty and engaged in training a new police officer on the

morning of February 26, 2019, when an all-channels police radio broadcast announced

that a person had been shot in the intersection of 46th Street and Arlington Avenue on

Indianapolis's northeast side. [Robinett Depo, at p. 6]. As Officer Robinett and his trainee

began traveling toward the location of the shooting, Officer Robinett received additional

radio notice that officers at the scene had requested immediate assistance and all

available officers should "rush" (that is, to travel with emergency lights and sirens

activated) to 46th and Arlington Avenue. [Id. at p. 7, lines 10-21; Ex. 3, at 5:12-5:34].

Officer Robinett complied with that directive, and as he traveled, he learned that a traffic

accident had occurred in conjunction with the shooting and that the suspect was running

loose in the surrounding neighborhood. The suspect ultimately was apprehended at 46th &

Emerson Avenue, an intersection located less than a mile from where the police officers

had originally been directed, so Officer Robinett headed to that area immediately

[Robinett Depo. at p. 7-8].

Following his arrival at 46th and Emerson Avenue, Officer Robinett observed law

enforcement officers handcuffing a suspect who appeared to have experienced significant

trauma. Firefighters and emergency medical personnel were present and attempting to

assist and treat the suspect, though their aid was met by the suspect's resistance. Because

all efforts were focused on preserving the life of the suspect, a crime scene perimeter had

not yet been erected. [Id. at 8; Robinett Interrogatory Resp. at p. 7].

Meanwhile, Ms. Demetria Brown, a home healthcare worker, was leaving a

patient's home located near the intersection of East 46th Street and Emerson Avenue. Ms.

Brown's daughter, Ms. Asia Lipscomb, had arrived in her car to pick up Ms. Brown

from her job, and the two proceeded in an effort to exit the client's neighborhood. As Ms.

Brown and Ms. Lipscomb approached East 46th Street on the looped road running

through the client's neighborhood and attempted to drive out of the area, their way was

blocked by parked police cars displaying their emergency lights, signaling their on duty

status at the scene. Ms. Lipscomb attempted to exit the neighborhood from another

outlet, but discovered it was also blocked as well with police vehicles and emergency

workers. At that point, the women noticed the suspect lying on the ground. Ms. Lipscomb

parked her car approximately ten car lengths from the intersection of East 46th Street and

Emerson Avenue, and both women got out of their vehicle and walked toward the scene

where the suspect was lying, all the while recording videos on their smartphones.1 [Pl.

Des. Evid., at p. 36-45].

As paramedics administered medical care to the suspect,2 Officer Robinett

observed Ms. Brown and Ms. Lipscomb approaching the location and, though Officer

Robinett has testified that he was concerned when he first noticed their arrival that they

may have walked into the crime scene, he did not approach to speak to them at that time.

[Robinett Depo., p. 9-10; Robinett Interrogatory Resp., p. 7].

Another police officer, however, (whose name remains unknown to us)

commented that he was going to request that Ms. Brown and Ms. Lipscomb "back up" to

allow the other officers to continue their efforts to identify and secure the crime scene.

[Robinett Depo., p 11]. When this (unidentified) officer approached Ms. Brown and Ms.

Lipscomb, they told him they "ha[d] a right" to be there and were "not doing anything

illegal." The officer informed them that they were standing inside the crime scene and

1 The majority of the police encounter at issue in this litigation was captured on Ms. Brown and

Ms. Lipscomb's recordings. We cite to these recordings as "Brown Video" and "Lipscomb

Video," respectively.

2 Ms. Brown has testified that she was concerned that no care was being provided to the injured

man. However, this statement is plainly contradicted by the video evidence, which shows several

firefighters and emergency medical personnel surrounding the man on the ground and

administering medical care. [See generally Brown video, Lipscomb video].

that they thus needed to "go back." Ms. Brown responded, saying "they don't want us to

see what's going on with him." The officer replied, "They don't want you to see what is

going on period because this is a crime scene." Ms. Brown rejoined that it was "against

the law to make [them] move." [Brown Video, at 0:23-0:42].

During this exchange between Ms. Brown and the unidentified police officer, a

second officer, Officer Doug Correll, approached to ask whether Ms. Brown had captured

on her video the incident leading to the suspect's injuries. Ms. Brown said no, clarifying

that she had just begun her recording. Officer Correll requested a copy of the video,

which was understood by Ms. Brown as directive for her to continue her recording, since

Officer Correll had said to her, "Yeah, if you would." The first officer then left to rejoin

the other officers. [Id., at 0:42-1:23].

As police officers' were engaged in defining the perimeter of the apprehension

scene by installing the crime scene tape, Ms. Brown and Ms. Lipscomb remained

standing outside that circumscribed space. Officer Robinett concedes that this was true,

but testified that he remained concerned that they were too close because of their

proximity to the still-combative suspect. In addition, Officer Robinet knew that the

suspect had been armed moments before his arrest and that his weapon had not yet been

located or secured. Around approximately the same time, blood had been observed by

officers on the ground in a place just south of where the crime scene tape had been

erected, which led Officer Robinett to believe that the crime scene was potentially wider

than had been initially been determined. Indeed, that expansion later occurred so that the

area circumscribed by the tape encompassed the area in which Ms. Brown and Ms.

Lipscomb had been standing. [Robinett Depo, at p. 10-12; Robinett Interrogatory, p. 8].

Based on these events and Officer Robinett's concerns, he approached Ms. Brown

and Ms. Lipscomb approximately two minutes after the first unnamed officer had

instructed them to "back up," and ordered them "to leave please." [Brown Video at 3:18-

20]. As previously stated, all of these events and spoken exchanges between Officer

Robinett and Ms. Brown were captured on video.3

The video reveals that, in response to Officer Robinett's directive, Ms. Brown

protested that she was permitted to remain in that area in light of Officer Correll's request

that she record what was occurring. Officer Robinett replied, "no," but was interrupted by

Ms. Brown, who said, "Your Officer did. Your Officer did." Officer Robinett attempted

to explain, saying, "I understand. But, so, yes we have crime scene tape up. But he ran.

We don't know where exactly. And we suspect there might be a gun out. So we suspect

that you might be in the crime scene." Ms. Brown appeared to understand. When Officer

Robinett reiterated his reasons to Ms. Brown—that the officers "need her to leave

please"—Ms. Brown resisted, requesting of Officer Robinett that he "check with [his]

officer because he said this footage is important." Officer Robinett replied that, though

3 Ms. Brown has advanced several assertions that are either unsupported entirely or contradicted

by record evidence. For example, she claims that officers on the scene were "standing

nonchalantly around the scene" and "not concerned about the presence of an outstanding

weapon," and that Officer Robinett never attempted to gather information regarding the crime

scene from other officers. These characterizations, quite apart from their other evidentiary

weaknesses, have not been persuasively developed in Ms. Brown's legal analysis. We shall not

include them in our analysis either.

the video footage may prove helpful, "[the suspect is] being transported . . . He is getting

medical attention." Officer Robinett remarked that he was "concerned," but his statement

to Ms. Brown was interrupted by her inquiry as to whether the man (suspect) was alive.

Officer Robinett confirmed that the suspect was alive and also commented that the

officers "don't know where the gun is yet," so Ms. Brown and Ms. Lipscomb "need to

leave" the area to allow the officers to "start searching for the gun after [they] tend to

him." Ms. Brown replied, "Okay, I'll keep recording and back up until you told [sic] me

that cop . . . go ask him if he wants me to stop because I'm cold and I'd like to stop."

Officer Robinett stated again that "[she] may be in the crime scene," which officers are

still in the process of identifying. [Brown Video, 3:21-4:10].

Ms. Lipscomb finally acquiesced in Officer Robinett's orders and agreed to return

to her vehicle. Officer Robinett directed Ms. Brown to also return to the vehicle, but she

remained in place, adamant that "the officers already told [her she was fine]" and

suggesting that Officer Robinett needed to speak to his "superior." Officer Robinett

responded, saying, "No, no, no. I'm telling you right now this is not okay." Ms. Brown

again insisted that Officer Robinett speak to his superior, but Officer Robinett again

ordered Ms. Brown to back away from the crime scene. [Id. at 4:10-4:24; Robinett Depo.,

at 13].

Officer Robinett tried again to secure Ms. Brown's compliance with his order. He

introduced himself and attempted to explain to Ms. Brown that she was located within the

crime scene and needed to move. Ms. Brown's shouted in response, saying, "But you're

not understanding. You need, we would listen, we were already told by an officer

already." Officer Robinett attempted again to persuade Ms. Brown to leave, saying,

"Okay, I am an officer as well and I'm telling you that they are misinformed. We have not

identified the crime scene. You guys need to back up. You are standing in a . . ." Ms.

Brown interrupted, "Sir, that's not . . . that's a lie. That's not what he just said on video."

When Officer Robinett asked Ms. Brown if she knew what happened, she replied that she

did not care. [Brown Video, at 4:23-4:58].

Officer Robinett continued to tell Ms. Brown that she was standing in a crime

scene and that she needed to "back up," and Ms. Brown continued to shout that she is

doing what the officer instructed her to do and that Officer Robinett needed to speak to

his superior. Officer Robinett informed Ms. Brown that the officer to whom she was

referring was currently on the phone, and he continued to insist that she remove herself

from the crime scene. Ms. Brown then quipped that Officer Robinett should "stop trying

to be the shot guy." [Id. at 4:56-5:10].

This impasse came to a head when Officer Robinett, who was unable to convince

Ms. Brown to comply with his order to move out of the crime scene, said, "Okay, we're

not going to wait any longer. Go sit in your car. He will come talk to you." Ms. Brown

did not do so, insisting instead that Officer Robinett call his lieutenant. After informing

Ms. Brown that his lieutenant was still tied up. Ms. Brown began shouting that she had a

right to be where she was. Officer Robinett protested that she did not have a right to be

"in [his] crime scene." [Id. at 5:10-5:38].

This entire exchange between Officer Robinett and Ms. Brown unfolded over the

course of something less than two and half minutes.

When Ms. Brown continued to persist in her refusal to comply with Officer

Robinett's order to leave, the Officer approached her to place her under arrest, whereupon

Ms. Brown told Robinett not to touch her and shouted, "Sir! Lieutenant! We were given

orders to record! Please come and help!" The video footage records that Officer Robinett

placed his left hand on Ms. Brown's left arm and his right hand on her back and directed

her to "come over here." Ms. Brown pulled away from him, still shouting for help and

demanding that Officer Robinett not touch her. When Officer Robinett attempted to place

Ms. Brown's arms behind her back to handcuff her, she extricated her left arm in order to

pass her phone to Ms. Lipscomb.4 Officer Robinett took hold of her left arm as Ms.

Brown was pulling her right arm away so she could place a cigarette in her mouth. She

continued to physically resist Officer Robinett's efforts to secure custody of her, yelling

loudly that he was "out of place." Officer Robinett eventually succeeded in placing

handcuffs on Ms. Brown and placed her in a seated position on the ground. Officer

Robinett then walked away to inquire of the other officers if they had found the missing

weapon. Though their responses are not audible on the video, Officer Robinett can be

heard to have said, "Okay, so it is an active crime scene." [Id. at 5:38-7:02; Lipscomb

Video at 5:34-6:19].

Ms. Brown was in custody and restrained for a total of fifty-two seconds before

Officer Robinett removed the handcuffs to allowed her to return to her vehicle. Officer

4 Though Ms. Lipscomb's video camera briefly pans away from Officer Robinett and Ms. Brown

during the outset of their physical encounter, it captured most of the struggle that ensued between

them.

Robinett has testified that he believed he had probable cause to arrest Ms. Brown for

refusing to leave an emergency incident area, for refusing to aid a police officer, for

disorderly conduct, and for resisting law enforcement.

Ms. Brown's lawsuit seeks to hold Officer Robinett personally liable for violating

her "Fourth Amendment right not be subjected to unreasonable search and seizure and

her First Amendment right to record the police."

Analysis

I. Standard of Review

Summary judgment is appropriate where there are no genuine disputes of material

fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must grant a motion for

summary judgment if it appears that no reasonable trier of fact could find in favor of the

nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986). We neither weigh the evidence nor evaluate

the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences

flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip,

573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).

II. Officer Robinett is Entitled to Summary Judgment on Ms. Brown's

Fourth Amendment Claim Against Him

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons . . . and effects, against unreasonable searches and seizures[.]” U.S. Const.

amend. IV. The touchstone of the Fourth Amendment is reasonableness under all the

circumstances, Brigham City v. Stuart, 547 U.S. 398, 403 (2006), limned by balancing

the public and private interests at stake in a given state intrusion into personal privacy.

United States v. Hensley, 469 U.S. 221, 228 (1985). Here, Ms. Brown alleges that Officer

Robinett unreasonably seized her by placing her in handcuffs at the crime scene when she

allegedly properly resisted his directive to step back and into a less important space.5

In analyzing the constitutionality of Fourth Amendment seizures, police-citizen

interactions are divided into three types. United States v. Johnson, 910 F.2d 1506, 1508

(7th Cir. 1990) (citing United States v. Black, 675 F.2d 129, 133 (7th Cir. 1982)). Under

this framework, progressively deeper intrusions into a citizen’s privacy interests require

progressively weightier justifications. See id. Consensual encounters over which police

exercise no control, which are therefore not Fourth Amendment seizures at all, require no

particularized suspicion to justify them. Id. Investigatory stops, or Terry stops, which are

limited to brief, nonintrusive detentions require reasonable suspicion of criminality

supported by specific, articulable facts. Id. Full arrests subjecting an arrestee to a litany of

intrusions, see Utah v. Streiff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting),

require probable cause to believe the person is committing or has recently committed a

crime. Johnson, 910 F.2d at 1508.

The parties stipulate that Officer Robinett effected an arrest when he handcuffed

Ms. Brown. The requisite quantum of suspicion for arrests is probable cause.

5 Ms. Brown has not alleged any Fourth Amendment violations arising from her interactions with

Officer Robinett prior to his placing her in handcuffs.

"Probable cause exists if at the time of the arrest, the facts and circumstances

within the officer’s knowledge are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances shown, that the suspect has

committed, is committing, or is about to commit an offense." Ramos v. City of Chicago,

716 F.3d 1013, 1018 (7th Cir. 2013) (internal quotations omitted). Determinations of

probable cause are mixed questions of fact and law, but when the facts are undisputed,

the ultimate resolution of whether probable cause or reasonable suspicion existed

becomes a question of law. United States v. Carlisle, 614 F.3d 750, 754, 2010 WL

3155876 (7th Cir. 2010).

Officer Robinett has testified that he believed he had probable cause to arrest Ms.

Robinett based on her refusal to follow his order to step outside an emergency incident

area, for her refusal to assist an officer, for her disorderly conduct, and for resisting her

arrest. His legal analysis is grounded in the doctrine of qualified immunity, according to

which, he contends, that, regardless of whether probable cause existed, he is shielded

from liability for Ms. Brown's Fourth Amendment claim against him.

Based on our thorough analysis of the facts of this case and the applicable legal

principles, we agree that Office Robinett is entitled to qualified immunity on Ms. Brown's

Fourth Amendment claim.

"Qualified immunity protects public officials from liability for damages if their

actions did not violate clearly established rights of which a reasonable person would have

known." Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 879 (7th Cir.2012). In this

context, qualified immunity protects officers who have "arguable probable cause" to

arrest. In other words, it shields those officers who reasonably but mistakenly believe

probable cause existed. Gutierrez v. Kermon, 722 F.3d 1003, 1008, 2013 WL 3481359

(7th Cir. 2013) ("An arrest without probable cause is a violation of a constitutional right,

whereas an arrest without arguable probable cause is a violation of a clearly established

constitutional right."). Arguable probable cause exists when "a reasonable police officer

in the same circumstances as the officer in question could have reasonably believed that

probable cause existed in light of well-established law." Humphrey v. Staszak, 148 F. 3d

718, 725 (7th Cir. 1998).

We need not review all of Officer Robinett's purported justifications for his arrest

of Ms. Brown, because we have little trouble concluding that Officer Robinett had, at a

minimum, arguable probable cause to arrest Ms. Brown for her refusal to leave the

emergency incident area.6

Under Indiana law, "[a] person who is not a firefighter who knowingly or

intentionally refuses to leave an emergency incident area after being requested to do so

by a firefighter or law enforcement officer commits a Class A misdemeanor." Ind. Code.

§ 35-44.1-4-5. Though there is a dearth of case law interpreting this statute, our court has

previously determined that there are three elements of this offense; a person violates §

35-44.1-4-5 if: 1) she is not a firefighter, (2) she refuses to leave an emergency incident

6 Tucked into Officer Robinette's qualified immunity defense is his passing reference to the fact

that he possessed probable cause to arrest Ms. Brown based on her refusal to leave the

emergency incident area. However, this assertion has not been supported by any analysis in his

motion or his briefing of that motion. He has contented himself simply to invoke an entitlement

to qualified immunity. We do not resolve the probable cause issue, therefore, because Officer

Robinette has not clearly asserted this defense.

area immediately after being requested to do so by a firefighter or law enforcement

officer, and (3) she acts knowingly or intentionally. Simpson v. City of Indianapolis, 2017

WL 106434, 1:13-cv-00791-RLY-TAB, at *4 (S.D. Ind. Jan. 11, 2017). In view of the

factual contours of the dispute before us, we shall divide the second element into two, to

wit, that the individual must refuse to leave the subject area following an order by an

officer to do so and that the subject area satisfies the statutory definition of "emergency

incident area."

Here, there is no dispute that Ms. Brown was not a firefighter at the time of her

arrest nor that she knowingly and intentionally refused to leave the area following Officer

Robinett's orders to do so. The parties' only factual disagreement concerns the remaining

element: whether Ms. Brown was located in an "emergency incident area" when she

refused to leave.

An "emergency incident area" is an area that:

(1) is

(A) defined by police or firefighters with flags, barricades, barrier tape, or

other markers; or

(B) one hundred and fifty (150) feet in all directions from the perimeter of

the emergency incident; whichever is greater; or

(2) is a specific distance less than one hundred and fifty (150) from all directions

from the perimeter of the emergency incident that is articulated by a law

enforcement officer.

Ind. Code § 35-44.1-4-2 (emphasis added).

Pursuant to Ind. Code § 35-44.1-4-1.5(4), an "emergency incident" is, among other

things, a "crime scene," that is, "the location where a crime was committed" and where an

investigation is ongoing. See Tapp v. State, 134 N.E.3d 80 (Ind. Ct. App. 2019).

Officer Robinett argues that his belief that the crime scene (i.e., the emergency

incident) extended, at minimum, to the area identified by the crime scene tape was

reasonable. If this belief is shown to be reasonable, then, pursuant to § 35-44.1-4-2(1)(B),

the "emergency incident area" was the area that was 150 feet from all directions from the

perimeter of the crime scene tape, which area encompassed where Ms. Brown was

standing. Officer Robinett thus contends that he acted reasonably in concluding that Ms.

Brown was refusing to leave the "emergency incident area."

Once a qualified immunity defense is raised, the burden shifts to the plaintiff to

overcome it, if she can, by "identifying a closely analogous case or by persuading the

court that the conduct is so egregious and unreasonable that, notwithstanding the lack of

an analogous decision, no reasonable officer could have thought he acting lawfully.

Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 723 (7th Cir. 2013); Betker v. Gomez, 692

F.3d 854, 860 (7th Cir. 2012).

Ms. Brown has accomplished neither of these showings, choosing to submit

instead what were disorganized, undeveloped legal theories that sidestepped each of the

material issues in dispute. Indeed, Ms. Brown has had nothing at all to say in response to

Officer Robinett's qualified immunity defense to her Fourth Amendment claim. This

procedural default alone entitles Officer Robinett to qualified immunity.7 See Abbott, 705

F.3d at 723. 8

7 We note that Officer Robinett's analysis of his qualified immunity doctrine in his opening brief

is sparse at best, relying on boilerplate phrases and broad statements of legal principles relating

to the Fourth Amendment and the qualified immunity doctrine, on the basis of which in

conclusory fashion he asserts that he is entitled to qualified immunity. Not until his reply brief

does he develop his legal theory. Clearly, an entitlement to qualified immunity cannot be

established by the mere incantation of magic words, purportedly buttressed by endless pages of

quotes relating to the doctrine. Arguably, Ms. Brown was entitled to an opportunity to submit a

surreply in response to the arguments first developed in Officer Robinett's reply to point out

these deficiencies in Officer Robinett's brief. But Ms. Brown failed to raise these arguments.

Had she done so, we likely would have granted her request. She has not, and we will not craft

arguments for her. Whether her arguments against qualified immunity would have carried the

day, however, remains unlikely based on our own analysis.

8 Ms. Brown, in fact, has presented only a minimal rebuttal to Officer Robinett's motion for

summary judgment on this claim. Her primary argument is that no probable cause existed to

arrest her, though her precise legal theory is not so easily identified. From what we can discern,

Ms. Brown believes that § 35-44.1-4-2(2), which provides that the emergency incident area "is a

specific distance less than one hundred and fifty (150) from all directions from the perimeter of

the emergency incident that is articulated by a law enforcement officer" governs the analysis.

Specifically, she contends that Officer Correll (the officer who requested a copy of Ms. Brown's

video), determined that the emergency incident area was the area within the crime scene tape

because "he was looking directly at her as he was stringing crime scene tape and instructing [her]

to keep recording." This theory lacks any legal support, however, on which to base a finding that

Officer Correll's actions qualify an "articulation" of the "specific" perimeter of the emergency

incident area. Even if that were a valid theory, Ms. Brown cannot prevail on her false arrest

claim, given her complete failure to respond to Officer's Robinett's qualified immunity defense.

Ms. Brown's brief is dotted with other legal assertions that lack any relevance or connection to

the law and evidence before the court. For example, she asserts that a determination of her false

arrest claim hinges on whether Officer Robinett arrested her "for the reasons stated" or rather

"because he simply wished to find a vehicle to exclude public observance of the police," which,

she says, is a question that must be resolved by a jury. The only apparent basis for this argument

is Ms. Brown's personal theorizing. Officer Robinett's motivations are entirely irrelevant to the

legal issue of whether he violated her Fourth Amendment rights. Gibbs v. Lomas, 755 F.3d 529,

537 (7th Cir. 2014) (stating well-established rule that an officer's subjective motivations are not

considered in determining if probable cause existed); Harrell v. Cook, 169 F.3d 428, 431 (7th

Cir. 1999) ("Qualified immunity depends on the objective legal reasonableness of the defendants'

actions, not on their subjective motivations."). Her remaining arguments are similarly flawed and

do not warrant further review by the court, particularly in light of her complete failure to address

Officer Robinett's qualified immunity defense.

Moreover, we concur in Officer Robinett's belief that he did possess arguable

probable cause to arrest Ms. Brown for refusing to leave the emergency incident area.

As set forth in § 35-44.1-4-2, the emergency incident area is the greater of two

measurements: either the area "defined by police or firefighters with flags, barricades,

barrier tape, or other markers" or 150 feet in all directions from the perimeter of the

"emergency incident." Here, the relevant "emergency incident" was the "crime scene,"

which term is undefined in the statute and unaddressed by Indiana courts in interpreting §

35-44.1-4-5. Accordingly, qualified immunity is available to Officer Brown to shield him

from liability so long as his interpretation of this undefined term was reasonable. Thayer

v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012).

Ms. Brown does not dispute the reasonableness of Officer Robinett's statutory

interpretation. Nor does she contend that he was erroneous in his belief that the crime

scene tape established the perimeter of the crime scene. Our review of the caselaw

discloses no court holding establishing that a police officer acts unreasonably in assuming

that a "crime scene" encompasses the entire area that has been segregated off by law

enforcement officers as part of their efforts to investigate crimes, secure evidence, and

detain suspects.9 Thus, we conclude as well that Officer Robinett reasonably believed

9 We reject Ms. Brown's contention that Officer Robinett did not have personal knowledge of

"what comprised the emergency incident scene" because he did not arrive until the suspect was

apprehended. This assertion is nonsensical; there can be no dispute that Officer Robinett had

personal knowledge, at the time of Ms. Brown's arrest, that a weapon was missing following the

apprehension of a suspect; that, immediately preceding his apprehension, the suspect had been

running through the streets surrounding the apprehension scene; that there was blood on the

pavement beyond the perimeter of the crime scene tape; and that law enforcement officers were

in the process of identifying and securing the crime scene when Ms. Brown arrived. The fact that

Officer Robinett learned pieces of this information through discussion with other officers,

that the "crime scene," and correspondingly the "emergency incident," extended to

include the area encompassed by the crime scene tape.

We further conclude that, if Officer Robinett's belief was reasonable, it was also

reasonable for him to conclude that, under § 35-44.1-4-2, the emergency incident area

was 150 feet from all directions of the crime scene tape. We note again that Ms. Brown

has not objected to the reasonableness of this interpretation, nor has she identified (or the

Court located) any cases contradicting Officer Robinett's interpretation. Additionally, the

video evidence establishes clearly, indeed, beyond dispute, that Ms. Brown was within

150 feet from the crime scene tape at all times during her interactions with Officer

Robinett.10

whether through radio dispatch or face-to-face communications, is immaterial. Torry v. City of

Chicago, 932 F.3d 579, 586 (7th Cir. 2019); United States v. Hayden, 353 Fed. Appx. 55, 57,

2009 WL 4072078, at *2 (7th Cir. 2009).

10 Ms. Brown asserts that "there is no evidence in the record of the precise distance between the

emergency incident and the location Ms. Brown occupied." This assertion is presented without

any effort by Ms. Brown to navigate the statutory framework of Ind. Code § 35-44.1-4-2.

Additionally, though "the precise distance" between Ms. Brown and the crime scene tape may

not be set forth in the evidence, Ms. Brown has not argued that Officer Robinette was

unreasonable in his estimations that she was within 150 feet of the crime scene tape. Moreover,

no reasonable juror could review the video evidence and conclude that Ms. Brown was more

than 150 feet from the crime scene tape when she refused to follow Officer Robinett's directives

to leave. Rather, for the duration of this exchange leading up to her arrest, she appears to be

standing directly behind the crime scene tape. By Officer Robinett's personal estimate, to which

she has not objected, this tape was approximately 15 feet from the location where the suspect had

been apprehended and was receiving medical care. We note as well that Ms. Brown has

requested that we take judicial notice of the map of the street on which her arrest occurred. While

doing so does not enable us to determine the precise distance from the location of the suspect's

apprehension to the crime scene tape, Google Maps nonetheless establishes that the suspect's

apprehension was approximately 50 feet from where Officer Robinett first attempted to restrain

Ms. Brown, and, at most, 120 feet from where she was ultimately handcuffed. Cloe v. City of

Indianapolis, 712 F.3d 1171, 1177, 2013 WL 1405428 (7th Cir. 2013), overruled on other

grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) ("We have taken

judicial notice of—and drawn our distance estimates from—images available on Google Maps, a

source whose accuracy cannot reasonably be questioned, at least for the purpose of determining

We thus hold that Officer Robinett reasonably concluded at the time of Ms.

Brown's arrest that she was located within the "emergency incident area" when she, a

non-firefighter, knowingly and intentionally refused to immediately leave despite Officer

Robinett's directives to do so. Accordingly, Officer Robineet had arguable probable cause

to arrest her for refusing to leave the emergency incident area in violation of Ind. Code. §

35-44.1-4-5 and is entitled to qualified immunity on the Fourth Amendment claim against

him. Summary judgment shall enter in Officer Robinett's favor on this claim by Ms.

Brown.

III. Officer Robinett is Entitled to Summary Judgment on Ms. Brown's First

Amendment Claim Against Him

Ms. Brown alleges that Officer Robinett violated her First Amendment "right to

record police" when he forced her to stop recording the crime scene on February 26,

2019. To prevail on her First Amendment claim against Officer Robinett, Ms. Brown

must establish that: "(1) [she] engaged in activity protected by the First Amendment; (2)

[she] suffered a deprivation that would likely deter First Amendment activity; and (3) the

First Amendment activity was at least a motivating factor in the police officer's decision."

Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012).

There is no dispute that Ms. Brown undoubtedly suffered a "deprivation" by virtue

of her arrest, thus satisfying the second element of her First Amendment retaliation claim.

Hudkins v. City of Indianapolis, 2015 WL 4664592, at *15 (S.D. Ind. Aug. 6, 2015)

general distances.") (internal quotations omitted). Accordingly, there can no dispute that Ms.

Brown was within the area that Officer Robinett reasonably identified as the "emergency

incident area."

(citing Thayer, 705 F.3d at 251). Additionally, with respect to the first element, the

parties agree that the First Amendment broadly protects the right to record policy activity.

Id.; Am. Civil Liberties Union : of Illinois v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012).

The parties also agree that this broad protection of the right to record is not

absolute. In an order preliminarily enjoining an Illinois statute which criminalized the

recording of police in public places, the Seventh Circuit explained that:

It goes without saying that the police may take all reasonable steps to maintain

safety and control, secure crime scenes and accident sites, and protect the integrity

and confidentiality of investigations. While an officer surely cannot issue a "move

on" order to a person because he is recording, the police may order bystanders to

disperse for reasons related to public safety and order and other legitimate law-

enforcement needs . . . Nothing we have said here immunizes behavior that

obstructs or interferes with effective law enforcement or the protection of public

safety.

Alvarez, 679 F.3d at 607. Accordingly, it is beyond debate that an officer acts

within constitutional boundaries when he demands that a bystander/citizen engaged in

recording a particular scene depart from the area when there is a need to secure public

safety or to protect the integrity of a crime scene. See id. We move, therefore, to consider

the third element of Ms. Brown's First Amendment retaliation claim, that is, whether

Officer Robinett's decision to arrest her was motivated by her engagement in the

protected First Amendment activity.

The Seventh Circuit has prescribed a burden-shifting framework to guide our

analysis of this element. Pursuant to this framework, a plaintiff first must "show that a

violation of his First Amendment rights was a 'motivating factor' of the harm he's

complaining of." Thayer, 705 F.3d at 251. If the plaintiff succeeds in making such a

prima facia showing, "the burden shifts to the defendant to show that the harm would

have occurred anyway." Id. "Once a defendant produces evidence that the same decision

would have been made in the absence of the protected speech, the burden shifts back to

the plaintiff to demonstrate that the proffered reason was pretextual and that the real

reason was retaliatory animus." Id. at 252. On summary judgment, this means that a

plaintiff must produce specific evidence upon which a reasonable juror could infer that

the defendant's proffered reason for the harm to plaintiff was a lie. Id.

Officer Robinett bypasses this framework in his analysis, going instead directly to

the issue of whether qualified immunity shields him from liability.

Our analysis of this claim need not be protracted because it is abundantly clear that

Officer Robinett is entitled to qualified immunity on this claim against him as well.11

As previously stated, “[q]ualified immunity shields government officials from

civil damages liability unless the official violated a statutory or constitutional right that

was clearly established at the time of the challenged conduct." Id. at 252. A clearly

established right is one that is sufficiently clear such that "every reasonable official would

have understood that what he is doing violates that right." Id.

In considering qualified immunity in circumstances similar to those before us, the

Seventh Circuit has directed that, even if there is evidence establishing that an arrest was

retaliatory and in violation of the First Amendment, qualified immunity shields an officer

11 Nor do we need to engage in any further review of Ms. Brown's speculative, conclusory, and

unsubstantiated theories.

from liability so long as the officer had arguable probable cause for the arrest.12 Id. at

253. As the Seventh Circuit has explained, neither the Supreme Court nor the Seventh

Circuit has ever recognized a clearly established First Amendment right to be free from a

retaliatory arrest that is supported by arguable probable cause. Id. (finding that Supreme

Court's holding that the existence of probable cause shielded arresting officer from

individual liability extended to instances where the arrest was supported by arguable

probable cause). From our thorough review, such a clearly established right remains

unrecognized. Accordingly, having previously determined that arguable probable cause

existed for her arrest, we hold that Officer Robinett is entitled to qualified on immunity

on Ms. Brown's First Amendment retaliation claim.

In any event, Ms. Brown has entirely failed to proffer any evidence in support of a

reasonable inference that Officer Robinett acted with retaliatory animus in arresting her.

For example, Ms. Brown's act of recording the crime scene was never met with

instantaneous shows of force against her by Officer Robinett. Officer Robinett, so far as

we have been informed, has never acted to prevent citizens from recording law

enforcement officers. There is no evidence to show that his communications with Ms.

Brown conveyed his purpose or intent that she could stay in the protected area if she

12 Though Officer Robinett has stopped short of making the case that probable cause existed for

the arrest, we note that a finding of probable cause forecloses any First Amendment retaliation

claims against him. Lund v. City of Rockford, Illinois, 956 F.3d 938, 944 (7th Cir. 2020)

("[P]robable cause defeats a claim of retaliatory arrest . . . No further analysis of causation,

motive, or injury is required.") (citing Nieves v. Bartlett, ––– U.S. ––––, 139 S. Ct. 1715, 1727,

204 L.Ed.2d 1 (2019)).

stopped recording, nor did he ever, in fact, express any frustrations or concerns to her or

anyone else arising from the fact she was recording the crime scene. Rather, he simply

stated and then reiterated numerous times to her his concerns regarding her proximity to

the crime scene in light of the missing weapon. His only request of her throughout this

encounter was that she continue her observations from a further distance away from the

crime scene. Only when she repeatedly refused to follow his directives, despite repeated

cautions about the outstanding weapon and the scope of the crime scene, did Officer

Robinett arrest Ms. Brown. On these facts, no reasonable juror could find in favor of Ms.

Brown on her First Amendment claim. Compare Thayer v. Chiczewski, 2010 WL

1336537, at *7 (N.D. Ill. Mar. 31, 2010), aff'd in relevant part, 705 F.3d 237 (7th Cir.

2012) with Hudkins v. City of Indianapolis, 2015 WL 4664592, at *15 (S.D. Ind. Aug. 6,

2015); Kozel v. Vill. of Dolton, 804 F. Supp. 2d 740, 744 (N.D. Ill. 2011); Bass v.

Hansen, 2010 WL 5069690, at *14 (N.D. Ill. Dec. 7, 2010); Baldauf v. Davidson, 2007

WL 1202911, at *5 (S.D. Ind. Apr. 23, 2007), review granted, decision modified, 2007

WL 2156065 (S.D. Ind. July 24, 2007).

Accordingly, we hold that Officer Robinett is entitled to summary judgment on

Ms. Brown's First Amendment claim against him.

CONCLUSION

Defendant's Motion for Summary Judgment [Dkt. 47] is granted. Final judgment

shall enter by separate order.

IT IS SO ORDERED.

Date: 2/19/2021 Wd GousBinler

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

Distribution:

Traci Marie Cosby

OFFICE OF CORPORATION COUNSEL

tmcosby @ widener.edu

Andrew R. Duncan

RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS DUNCAN & MERCHANT, LLP

ard @rkblegalgroup.com

Anne Celeste Harrigan

OFFICE OF CORPORATION COUNSEL

anne.harrigan @ indy.gov

John F. Kautzman

RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS DUNCAN & MERCHANT, LLP

jfk @rkblegalgroup.com

Terrance Lamont Kinnard

KINNARD & SCOTT

tkinnard @ kinnardlaw.net

Edward J. Merchant

RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS DUNCAN & MERCHANT, LLP

ejm @rkblegalgroup.com

Andrew J. Upchurch

OFFICE OF CORPORATION COUNSEL

andrew.upchurch @indy.gov

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