# COX v. RANDY WEITZEL

> District Court, S.D. Indiana · February 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10167659

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** February 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ASHLEY COX, individually and as next best )
friend of minor children K.C. and K.R., )
)
Plaintiff, )
)
vs. ) Case No. 1:19-cv-01393-JMS-DLP
)
CITY OF INDIANAPOLIS, )
RANDY WEITZEL, and )
MICHAEL O'CONNOR, )
)
Defendants. )

ORDER
On March 8, 2017, Ms. Cox was driving her daughters K.C. and K.R. home from a
birthday party when she was pulled over by the police, ordered out of her car at gun point,
handcuffed, placed in the back of a police cruiser, and questioned. She filed this lawsuit against
the City of Indianapolis (the "City") and two of the officers involved in the incident, alleging
violations of her and her daughters' rights under the Fourth Amendment of the United States
Constitution; under Article 1, Section 11 of the Indiana Constitution; and under Indianapolis
Ordinance § 581-101 (the "Ordinance"). Defendants have filed a Motion for Summary
Judgment, [Filing No. 87], which is now ripe for the Court's decision.
I.
STANDARD OF REVIEW

A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted
fact by citing to particular parts of the record, including depositions, documents, or affidavits.
Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute or that the adverse party cannot
produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Failure to properly

support a fact in opposition to a movant's factual assertion can result in the movant's fact being
considered undisputed, and potentially in the granting of summary judgment. Fed. R. Civ. P.
56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009).
In other words, while there may be facts that are in dispute, summary judgment is appropriate if
those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th
Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325
F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no
reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d
868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-
moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate
Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are left to the factfinder. O'Leary v.
Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the
cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has
"repeatedly assured the district courts that they are not required to scour every inch of the record
for evidence that is potentially relevant to the summary judgment motion before them."
Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved

against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
II.
STATEMENT OF FACTS

The Court notes at the outset that several important facts are disputed by the parties, and
the following factual background is set forth pursuant to the standards detailed above. The facts
stated are not necessarily objectively true, but as the summary judgment standard requires, the
undisputed facts and the disputed evidence are presented in the light most favorable to "the party
against whom the motion under consideration is made." Premcor USA, Inc. v. Am. Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
A. Events Leading Up to the Traffic Stop
1. Events at the Forest Ridge Apartment Complex
On March 8, 2017, Ms. Cox's five-year old daughter K.R. and seven-year old daughter
K.C. went to their second cousin's Hello Kitty themed birthday party at the Forest Ridge
Apartment Complex. [Filing No. 89-1 at 58-59; Filing No. 89-3 at 34-37.] Ms. Cox arrived at
the apartment complex around 8:20 p.m., parked in the apartment complex parking lot, and went
inside to the party. [Filing No. 89-3 at 37.] Ms. Cox's daughters were already at the party.
[Filing No. 89-3 at 37.] Ms. Cox was wearing a white scrub shirt with teddy bears on it and a
light blue jacket; her daughters were wearing hot pink clothes. [Filing No. 89-3 at 84.]
After "about 10, 15 minutes" at the party, Ms. Cox left with her two daughters and
returned to her car—a gold Mercury Sable with the license plate 333TSE—and began driving
home. [Filing No. 89-3 at 37-38; Filing No. 95-1 at 5.]
At 8:37 p.m. on March 8, 2017, Nathan Bunghi called 9-1-1 and reported that he had

been robbed at gunpoint by a black male in a brown hoodie in the parking lot of the Forest Ridge
Apartment Complex. [Filing No. 89-4 at 2.] Mr. Bunghi told the 9-1-1 operator that the suspect
fled in in a silver or gold Ford Taurus with the license plate VEN331. [Filing No. 89-4 at 2.]
The license plate number provided by Mr. Bunghi was registered to a gold Mercury owned by
Gregory Weber. [Filing No. 89-4 at 2.]
2. Ms. Cox and Mr. Bunghi leave the Forest Ridge Apartment Complex
Mr. Bunghi pursued the suspect's car in his own car, and remained on the call with the 9-
1-1 operator the entire time, updating the 9-1-1 operator of their locations as they drove. [Filing
No. 89-4 at 2-4.] He assured officers that he never lost sight of suspect's car. [Filing No. 89-1 at
78.]

Ms. Cox noticed a regular car following her for a while, but then at some point, there
weren't any cars behind her. [Filing No. 89-3 at 39.] She didn't notice any police officers
following her until she was a few miles from the apartment complex and about ten blocks from
where she was eventually pulled over. [Filing No. 98-3 at 39.]
Meanwhile, at approximately 8:30 p.m. that night, Indianapolis Metropolitan Police
Department ("IMPD") Officer Randy Weitzel was parked at Harcourt Elementary School, and a
few minutes later he received a dispatch call about an armed robbery at 79th Street and
Township Line Road, i.e., the intersection where the Forest Ridge Apartment Complex is
located. [Filing No. 89-1 at 31-36.] He waited at the school—which was a few blocks away
from the address provided by dispatch1—to receive more information on the direction that the
relevant individuals were traveling. [Filing No. 89-1 at 36.] That information was not relayed to
him as quickly as he would have liked, so Officer Weitzel traveled north to 79th Street to see if
he could find the vehicles in which Mr. Bunghi and the alleged assailant were traveling. [Filing

No. 89-1 at 36.] Eventually, dispatch provided several updated locations, and Officer Weitzel
drove to those locations "trying to catch up." [Filing No. 89-1 at 37.]
3. Ms. Cox on College Avenue
Ms. Cox's route home included a turn on to College Avenue, and it was then that she first
noticed a police car behind her. [Filing No. 98-3 at 39.] While driving south on College
Avenue, a police car passed Ms. Cox on the left at a high rate of speed, and she made eye contact
with the officer as he passed her. [Filing No. 89-3 at 40.] Having passed Ms. Cox, the police car
switched lanes to the lane in which Ms. Cox was driving and began to slow down, causing Ms.
Cox to eventually pass the police car on the left, once again making eye contact with the police
officer inside the car. [Filing No. 89-3 at 40-41.] The police officer then pulled behind Ms.

Cox's car and followed her. [Filing No. 89-3 at 41.]
Meanwhile, after relaying several locations, dispatch updated Officer Weitzel that the
vehicles involved were "next to the KeyBank at about the same time [Officer Weitzel was]
passing the KeyBank." [Filing No. 89-1 at 40.] Officer Weitzel noticed two cars traveling very
close to each other in the left lane as he was passing them, but observed that neither vehicle had
their hazard lights on, and the drivers were not attempting to flag him down. [Filing No. 89-1 at
40.] When Officer Weitzel realized he was passing the vehicles he had been searching for, he
"stopped and waited for them to pass [him] again at about the same time [the 9-1-1 caller]

1 Specifically, Harcourt Elementary School is located at the intersection of 74th Street and
Harcourt Road, less than one mile from the intersection of 79th Street and Township Line Road.
announced they were at 63rd and College," which was the exact location where Officer Weitzel
was waiting. [Filing No. 89-1 at 40.] Officer Weitzel testified that at that point, he thought,
"yeah, I have them." [Filing No. 89-1 at 40.]
B. The Traffic Stop

1. Events prior to Ms. Cox getting out of her car
After Ms. Cox passed Officer Weitzel and Officer Weitzel pulled behind Ms. Cox, he
began yelling "Get out the car" on the intercom to Ms. Cox, even though Ms. Cox was still
driving and he had not turned on his lights or siren. [Filing No. 89-3 at 41-43.] Only after
yelling at Ms. Cox to get out of the car did Officer Weitzel activate the red and blue lights on his
car. [Filing No. 89-3 at 41.] Ms. Cox eventually found a safe place to pull over by turning onto
61st Street off of College Avenue. [Filing No. 89-3 at 43.] Because cars were parked along 61st
Street, Ms. Cox stopped her car in the street. [Filing No. 89-3 at 44.]
While Mr. Bunghi was following Ms. Cox's car, IMPD Officer Michael O'Connor was
parked in a grocery store parking lot speaking with another officer. [Filing No. 89-2 at 51.] The

parking lot was only two blocks from the location where Officer Weitzel pulled Ms. Cox over, so
when Officer O'Connor heard the dispatches about the armed robbery and the location where
Officer Weitzel pulled the suspect's vehicle over, he self-dispatched to that location. [Filing No.
89-2 at 52.]
1. Events after Ms. Cox exited her car
After stopping her car, Ms. Cox put the car in park and got out, as the officer had ordered
over the intercom. [Filing No. 89-3 at 45.] Ms. Cox estimated that after she pulled over,
eighteen police cars arrived immediately on the scene. [Filing No. 89-3 at 45.] Mr. Bunghi told
the 9-1-1 operator that he could see officers had pulled over the correct vehicle. [Filing No. 89-4
at 3.]
After Ms. Cox exited her car, Officer Weitzel instructed her to put her hands up and walk
backwards toward him. [Filing No. 89-1 at 53; Filing No. 89-3 at 45-46.] While Officer Weitzel

was instructing Ms. Cox to walk backwards toward him, a different officer was ordering Ms.
Cox to stop moving. [Filing No. 89-3 at 46.] As Ms. Cox was walking back, a third officer
asked her who else was in her car, and Ms. Cox responded that her daughters were in the car and
that she did not have any weapons. [Filing No. 89-3 at 50; Filing No. 95-3 at 13.]
While Ms. Cox was backing up toward the officers, she could see officers behind her
pointing their weapons at her, and she could see red dots on her chest that she believed were
coming from the officers' weapons. [Filing No. 89-3 at 75; Filing No. 89-3 at 87.] Eventually,
Ms. Cox made her way to Officer Weitzel, who then instructed her to place her hands behind her
back and handcuffed her. [Filing No. 89-1 at 55-56; Filing No. 89-3 at 51.] As Ms. Cox walked
backwards to the police officers, Ms. Cox's daughters remained in the car and saw the officers

handcuff Ms. Cox and place her in the back seat of a police car. [Filing No. 89-3 at 45; Filing
No. 95-3 at 12-15.]
Ms. Cox asked the officers what was going on and whether she had done something
wrong, but the officers did not respond. [Filing No. 89-3 at 51.] Instead, the officers put Ms.
Cox in the back of a police car that was a few cars behind her car. [Filing No. 89-1 at 56-57;
Filing No. 89-3 at 51-52.]
When Officer O'Connor arrived on the scene, Officer Weitzel had already performed the
initial stop, and there were several additional officers already on scene. [Filing No. 89-2 at 52-
56.]
C. Events While Ms. Cox Was In Custody
1. Ms. Cox's interactions with the police officers
After Ms. Cox was placed in the backseat of the police car, she was advised of her
Miranda rights, but she was not told why she had been pulled over and handcuffed or otherwise

given an explanation of the situation. [Filing No. 89-1 at 57; Filing No. 89-3 at 52-54; Filing No.
89-3 at 90.] Ms. Cox was not asked any questions for several minutes. [Filing No. 89-3 at 52-
54; Filing No. 89-3 at 90.]
Shortly after Ms. Cox was placed in the police car, she could see two police officers
approaching her car with their weapons drawn. [Filing No. 89-3 at 53.] However, because she
was so far away from her car, she could not actually see her car and therefore eventually lost
sight of the police officers approaching her car. [Filing No. 89-3 at 53.]
After placing Ms. Cox in the back of the police car, Officer Weitzel left to go speak with
Mr. Bunghi. [Filing No. 89-1 at 58.] Mr. Bunghi told Officer Weitzel that he had been robbed at
gun point, saw the assailant run into a row of parked cars and when he saw Ms. Cox's car pull

out immediately after, he assumed his assailant was in Ms. Cox's car. [Filing No. 89-1 at 58.]
Mr. Bunghi told Officer Weitzel that he never lost visual contact of the car. [Filing No. 89-1 at
58.] Officer Weitzel did not ask Mr. Bunghi to identify Ms. Cox, nor did he ask Mr. Bunghi
about the discrepancy in the license plates. [Filing No. 89-1 at 59.] When Officer Weitzel told
Mr. Bunghi that the officers did not see a male in the car, Mr. Bunghi "seemed okay with that."
[Filing No. 89-1 at 59.]
While she was in the police car, Ms. Cox was very upset; she was crying and
hyperventilating because her handcuffs were tight and because she knew that she had not done
anything wrong. [Filing No. 89-3 at 90.] After a few minutes in the police car, Ms. Cox was
able to retrieve her cell phone from her back pocket and call her father. [Filing No. 89-3 at 59.]
She asked him if he would come to 61st Street and College Avenue because she had been pulled
over but was not sure what was going on. [Filing No. 89-3 at 60.] Ms. Cox briefly spoke to her
father on the phone before she knocked on the police car window with her head and asked if the

police officer outside—not Officer Weitzel or Officer O'Connor—would speak on the phone
with her father. [Filing No. 89-3 at 60.] The officer spoke with Ms. Cox's father for "eight to ten
minutes," but Ms. Cox could not hear the conversation except for the word "robbery." [Filing
No. 89-3 at 62-63.]
Around the time Ms. Cox called her father, she observed a civilian vehicle arrive on the
scene, and saw various officers speak with the driver. [Filing No. 89-3 at 91.] At some point
after that, Officer Weitzel returned to the police car and asked her if someone had jumped into
her car. [Filing No. 89-3 at 71.] He also asked Ms. Cox whether her daughters would like any
suckers.2 [Filing No. 89-3 at 71.] Ms. Cox believed the suckers were "to kind of make
everything peachy again or make them feel positive about it . . . because there really wasn't a

reason for the suckers. My kids didn't ask for a sucker or anything. He just kind of volunteered
the suckers." [Filing No. 89-3 at 68.]
Approximately ten minutes after the officer finished speaking with Ms. Cox's father on
the phone, a different officer told Ms. Cox they were going to let her go soon. [Filing No. 89-3
at 63.] However, the officer that had spoken with Ms. Cox's father told her they would not let
her go until she calmed down and stopped hyperventilating and crying. [Filing No. 89-3 at 90.]
Eventually, an officer opened the door and let Ms. Cox out of the police car and removed her

2 Initially, Ms. Cox testified that when Officer Weitzel asked if her daughters would like suckers,
she was "outside of the vehicle" and had been "released from the handcuffs." [Filing No. 89-3 at
69.] She subsequently clarified that she had not yet been released when Officer Weitzel asked if
her daughters would like suckers. [Filing No. 89-3 at 71.]
handcuffs, and the officer that spoke with her father returned her phone. [Filing No. 89-3 at 64-
65.]
2. Ms. Cox's daughters' interactions with the police officers
Shortly after Officer Weitzel handcuffed Ms. Cox, two officers, including Officer

Weitzel, approached Ms. Cox's car on either side. [Filing No. 95-3 at 15.] Both officers had
their guns drawn, their weapons aimed at K.C. and K.R., and their fingers on the triggers. [Filing
No. 95-3 at 15-16; Filing No. 95-4 at 14.] Officer Weitzel was the first officer to reach Ms.
Cox's car. [Filing No. 89-1 at 61; Filing No. 89-1 at 79.] When he reached Ms. Cox's car, he
saw two young girls in the backseat, [Filing No. 89-1 at 60], and he "pushed the gun a little
higher and peeked in towards the passenger seat floor well to make sure no one was hiding down
low where we couldn't see them underneath the door panel." [Filing No. 89-1 at 64.] The officer
that approached K.R.'s side of the vehicle—the driver's side—left after he saw that two children
were in the car.3 [Filing No. 95-3 at 17.] The officer that approached K.C.'s side asked what she
had in her hand and K.C. responded that it was a donut. [Filing No. 95-3 at 17-18.] That officer

asked K.C. to open her door, again asked what was in her hand, and asked K.C. to unwrap it.
[Filing No. 95-3 at 18.] K.C. unwrapped the donut, and according to K.C., the officer "looked
disappointed, like, sad, like, disappointed like he wanted it to be a weapon or something."
[Filing No. 95-3 at 18.]
Eventually, the officer that approached K.C.'s side of Ms. Cox's car and interacted with
K.C. also left, and three different officers came to monitor the girls. [Filing No. 89-2 at 64;
Filing No. 95-3 at 19.] The three officers that arrived later were Officer O'Connor, Officer

3 It is not clear which side of the car Officer Weitzel approached. However, for purposes of
Defendants' Motion, whether Officer Weitzel approached the driver's side or passenger's side is
of no consequence.
James Cather, and Sergeant Grace Sibley, and they did not have their weapons drawn. [Filing
No. 89-2 at 64; Filing No. 95-3 at 30.] K.C. and her sister were crying, and the three officers
engaged them in conversation for about fifteen minutes, "probably to make us feel better."
[Filing No. 89-2 at 65; Filing No. 95-3 at 20.] The officers asked how the girls were doing, how

their day was going, and about school. [Filing No. 89-2 at 63; Filing No. 95-3 at 20; Filing No.
95-4 at 16.] K.R. asked when they would get their mom back, and the female officer told her
that they might get her back, but if not, the girls would "have to go to this place where someone
else will take care of you." [Filing No. 95-3 at 20-21.] This caused the girls to cry more, and
eventually they were told "that Mommy was going to come back, but it would probably take a
little while." [Filing No. 95-3 at 21.]
At some point during the girls' conversations with the various officers, an officer said that
Ms. Cox had been pulled over because she didn't have her seat belt on. [Filing No. 95-3 at 22;
Filing No. 95-4 at 12-13.]
D. Ms. Cox Is Released From Custody

After she was released from her handcuffs and the police car, Ms. Cox noticed three
officers—two males and one female—speaking with her daughters at her car. [Filing No. 89-3 at
66.] After being out of the police car for about a minute and a half, an officer walked Ms. Cox
back to her vehicle and told her she should have been wearing a seatbelt. [Filing No. 89-3 at 58;
Filing No. 89-3 at 93.] Ms. Cox got in her car and drove home with her daughters. [Filing No.
89-3 at 69.]
E. The Lawsuit
Ms. Cox initiated this litigation on behalf of herself, K.C., and K.R. and, in the operative
Amended Complaint, alleges claims against the City, Officer Weitzel, and Officer O'Connor
unlawful search and seizure, excessive force, and false arrest under the Fourth Amendment of the
United States Constitution and Article 1, Section 11 of the Indiana Constitution. [Filing No. 26.]
In addition, they allege claims under Indianapolis Ordinance § 581-101. [Filing No. 26.]
In her Statement of Claims, Ms. Cox identifies four claims that she intends to prove at

trial: (1) claims under Indianapolis Ordinance § 581-101 based on Defendants denying Ms. Cox
and her daughters the right to use city streets; (2) claims under Article 1, Section 11 of the
Indiana Constitution based on unlawful searches and seizures of Ms. Cox, her children, and her
vehicle, as well as excessive force used in effectuating those searches and seizures; (3) claims
under the Fourth Amendment to the United States Constitution based on unlawful searches and
seizures of Ms. Cox, her children, and her vehicle; and (4) claims under the Fourth Amendment
to the United States Constitution for false arrest of Ms. Cox and excessive force used against Ms.
Cox and her children. [Filing No. 57 at 1-2.]
III.
DISCUSSION

A. Collateral Issues
1. Hearsay
In their response to Defendants' Motion for Summary Judgment, Ms. Cox argues that
Defendants' improperly rely on hearsay evidence in support of their Motion and requests that the
Court strike such evidence. [Filing No. 94 at 2-3.] Specifically, Ms. Cox argues that the
following paraphrased statements by Mr. Bunghi are inadmissible hearsay:
1. That Ms. Cox's vehicle was the vehicle occupied by his assailant;

2. That Mr. Bunghi attempted to buy an iPad through the mobile application
OfferUp, that he was robbed at gunpoint during the transaction, that he saw
the male suspect run into a row of parked cars, that he saw Ms. Cox's vehicle
immediately pull out from where the robber went, and that he maintained
visual contact and followed Ms. Cox's vehicle;
3. That Mr. Bunghi was in constant eye contact with the suspect's vehicle since
his assault, that the suspect was a black male wearing a brown hoodie, that
Mr. Bunghi was driving a silver Honda Accord, and that the suspect was
driving a gold Ford Taurus in front of him; and

4. That Mr. Bunghi had reported that he followed the specific car from moments
after his assault and had never lost sight of it.

[Filing No. 94 at 3.]
Defendants reply that Mr. Bunghi's statements are not offered for the truth of the matter
asserted. [Filing No. 98 at 2-3.]
Hearsay is an out of court statement offered to prove the truth of the matter asserted in
the statement. Fed. R. Evid. 801(c). Statements that are offered to show the effect of the
statement on the listener are not hearsay. Schindler v. Seiler, 474 F.3d 1008, 1011 (7th Cir.
2007) ("[A] statement offered to show its effect on the person who heard the statement is not
hearsay.").
Mr. Bunghi's statements are not hearsay because they are not offered for the truth of the
matter asserted. Mr. Bunghi's statements are not offered to prove that Mr. Bunghi's assailant was
in Ms. Cox's car—he wasn't—or that Mr. Bunghi never lost sight of his assailant's vehicle—he
did. Instead, Mr. Bunghi's statements are offered to show the effect of those statements on the
listener: in this case, the officers. The statements' relevance is the very fact that the officers
were told that Ms. Cox's car contained an armed robber and that Mr. Bunghi was sure they had
the correct car.
In addition, many of Mr. Bunghi's statements are textbook examples of present sense
impressions. Mr. Bunghi's description of his attacker, description of the car, and
contemporaneous reports of his location are statements "describing or explaining an event or
condition, made while or immediately after [he] perceived it." Fed. R. Evid. 803(1).
Accordingly, even if Mr. Bunghi's statements were hearsay, they are not excluded by the rule
against hearsay.
2. Statement of Claims
In support of their Motion for Summary Judgment, Defendants argue that Ms. Cox did

not comply with the Court's order to identify which claims she intends to prove at trial and
therefore waived all claims. [Filing No. 88 at 7.] Ms. Cox responds that she filed her Statement
of Claims on February 13, 2020, and that it identifies four state and federal constitutional claims
against Defendants. [Filing No. 94 at 2 (citing Filing No. 57).]
The Case Management Plan, as approved by the parties on May 22, 2019, states in
relevant part:
On or before February 12, 2020, and consistent with the certification
provisions of Fed. R. Civ. P. 11(b), the party with the burden of proof
shall file a statement of the claims or defenses it intends to prove at trial,
stating specifically the legal theories upon which the claims or defenses
are based.

[Filing No. 15 at 4 (emphasis original).]
Ms. Cox's Statement of Claims was filed one day after the deadline set in the then-
effective Case Management Plan. Ms. Cox's counsel also filed an exhibit to the Statement of
Claims in which counsel explains that she attempted to file the Statement of Claims on February
12, but could not due to technical difficulties. [Filing No. 57-1 at 1.] Counsel states: "I finally
reconnected several minutes into February 13, 2020. Upon connecting, I prepared this form in
Appendix D of the ECF Manual and filed the Statement of Claims." [Filing No. 57-1 at 1.]
Ms. Cox's counsel's technical problems do not warrant dismissal of Ms. Cox's claims.
Defendants have not identified any prejudice they suffered because the Statement of Claims was
filed a few minutes after midnight on February 13th. Defendants did not request to amend their
Statement of Defenses, [Filing No. 56], after Ms. Cox's Statement of Claims was filed, nor did
they raise the issue in the seven months between the filing of the Statement of Claims and the
Motion for Summary Judgment. Accordingly, Defendants' Motion for Summary Judgment is
DENIED to the extent it seeks dismissal based on the untimely filing of Ms. Cox's Statement of

Claims.
That said, this Court is the third busiest district in the country, as measured by weighted
filings per judgeship. United States Courts, U.S. District Courts – Combined Civil and Criminal
Federal Court Management Statistics (September 30, 2020),
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2020.pdf. As
mentioned above, the Court does not find dismissal to be appropriate in this circumstance, but
Ms. Cox's counsel is reminded that she should not wait until the last minute, and she should
avoid future untimely filings.
B. Claims against Officers in Personal Capacity
1. Federal Claims

Generally, Defendants argue that their conduct was lawful and did not violate the
Constitution. [Filing No. 88 at 8.] They also argue that Officers Weitzel and O'Connor are
entitled to qualified immunity on all claims. [Filing No. 88 at 8.] The Court will consider each
of Ms. Cox's claims in turn.
a. Seizure
Defendants argue that they did not unlawfully seize Ms. Cox or her children. [Filing No.
88 at 14.] They contend that the seizures were "made as Plaintiffs were subject to an
investigatory stop that detained the Plaintiffs for a duration of approximately thirty minutes," but
the seizure was not unlawful because "Officers Weitzel and O'Connor had reasonable suspicion
to stop [Ms. Cox's] vehicle." [Filing No. 88 at 15.] They contend that "Officer Weitzel had
specific and articulable facts sufficient to give rise to reasonable suspicion that someone in [Ms.
Cox's] vehicle had committed an armed robbery shortly before he encountered the vehicle, which
renders Plaintiffs' brief seizure lawful." [Filing No. 88 at 15.]

Ms. Cox responds that Officer Weitzel did not have reasonable suspicion to stop her car.
[Filing No. 94 at 12.] She argues that neither Ms. Cox nor her vehicle matched the information
provided by Mr. Bunghi and that Ms. Cox had not committed any infractions that could have
otherwise precipitated a lawful traffic stop. [Filing No. 94 at 13.] She maintains that even if
Officer Weitzel had "a hunch" about the vehicle, the rest of the evidence "negates any arguably
reasonable suspicion that the suspect was in [Ms.] Cox's vehicle." [Filing No. 94 at 13-14.]
Aside from whether the initial stop was justified, Ms. Cox argues, Ms. Cox's extended detention
was not justified by reasonable suspicion or probable cause. [Filing No. 94 at 22-23.]
Defendants reply that Officer Weitzel had reasonable suspicion based on specific and
articulable facts to stop Ms. Cox's car and temporarily seize it. [Filing No. 98 at 5-6.] They

argue that "even after getting [Ms.] Cox out of the vehicle there was still a reasonable belief that
an armed suspect could be sitting or hiding down low in the front of the vehicle," rendering the
officers' additional actions lawful. [Filing No. 98 at 7.]
"The doctrine of qualified immunity protects government officials 'from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome the doctrine,
a plaintiff must establish: (1) that the official violated a statutory or constitutional right, and (2)
that the right violated was "clearly established" at the time of the alleged misconduct. Id. at 232.
"[A] negative answer to either one is enough to establish the defense of qualified immunity."
Hanes v. Zurick, 578 F.3d 491, 493 (7th Cir. 2009).
The law is clearly established that a traffic stop without reasonable suspicion violates the
Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 30 (1968). Reasonable suspicion requires only

"'a particularized and objective basis for suspecting the particular person stopped' of breaking the
law." Heien v. North Carolina, 574 U.S. 54, 60 (2014) (quoting Navarette v. California, 572
U.S. 393, 396 (2014)). "To be reasonable is not to be perfect, and so the Fourth Amendment
allows for some mistakes on the part of government officials, . . . [but t]he limit is that 'the
mistakes must be those of reasonable men.'" Id. at 60-61 (quoting Brinegar v. United States, 338
U.S. 160, 176 (1949)). In addition, courts have found that officers are permitted to rely on
information from callers as relayed by dispatch, even if the caller is ultimately shown to be
mistaken. See, e.g., United States v. Miranda-Sotolongo, 827 F.3d 663, 669 (7th Cir. 2016)
("Reasonable suspicion … does not require the officer to rule out all innocent explanations of
what he sees. The need to resolve ambiguous factual situations—ambiguous because the

observed conduct could be either lawful or unlawful—is a core reason the Constitution permits
investigative stops."). See also Hill v. Village of Crete, 2008 WL 4559859 (N.D. Ill. Oct. 6,
2008) (finding reasonable suspicion to detain individual to investigate gun that turned out to be
the plaintiff's walking cane where: (1) "an individual contacted 911 to report that a firearm was
in a vehicle parked at the Shell gas station"; (2) "there were not inconsistencies between the
dispatcher's description of the suspect vehicle and plaintiff's vehicle"; and (3) "based on the
circumstances known to [the officer] at the time of the stop," he "reasonably believed that
[plaintiff] had a gun in his vehicle").
Moreover, "qualified immunity exists . . . where there is 'arguable' probable cause, . . .
and thus it likely exists in a false Terry stop case where there is 'arguable' reasonable suspicion.
Rouei v. Vill. of Skokie, 61 F. Supp. 3d 765, 778 (N.D. Ill. 2014) (citing Huff, 744 F.3d at
1007). See also Mitchell v. City of Indianapolis, 2020 WL 1532201, at *10 (S.D. Ind. Mar. 31,

2020) ("A defendant is entitled to qualified immunity in this context if a reasonable officer could
have believed that 'arguable' reasonable suspicion (for a Terry stop) or probable cause (for an
arrest) existed to detain the plaintiff."). Regardless, to be entitled to qualified immunity, a
defendant's belief that he had probable cause must be objectively reasonable. Maxwell v. City of
Indianapolis, 998 F.2d 431, 436 (7th Cir. 1993). See also Hurt v. Vantlin, 2017 WL 1021396, at
*15 (S.D. Ind. March 16, 2017) ("In this context, qualified immunity provides shelter for officers
who have “arguable probable cause” to arrest—i.e., those officers that reasonably but mistakenly
believe they have probable cause.").
No reasonable factfinder could conclude that Officer Weitzel lacked reasonable suspicion
to stop Ms. Cox's car. Mr. Bunghi reported that he was following the individual he believed had

robbed him at gun point, and Officer Weitzel observed two cars at least partially matching the
descriptions provided by Mr. Bunghi of his car and his suspected assailant's car driving in the
location and direction described by Mr. Bunghi. [Filing No. 89-1 at 40; Filing No. 89-4 at 3.] In
addition, Mr. Bunghi confirmed that Officer Weitzel had stopped the correct car. [Filing No. 89-
4 at 3.] In essence, even though the exact details did not match up, Officer Weitzel had enough
information—including reassurance that he was with the correct suspect—to provide him with
reasonable suspicion to stop Ms. Cox's vehicle. Although Officer Weitzel was ultimately
mistaken that Ms. Cox's vehicle contained the armed robbery suspect, his mistake was
reasonable in light of the limited facts before him and limited amount of time he had to analyze
them. Accordingly, no reasonable factfinder could find that Officer Weitzel lacked reasonable
suspicion to stop Ms. Cox's car.
However, even if the officers—and specifically Officer Weitzel—acted reasonably in
pulling Ms. Cox's vehicle over, there exists a genuine issue as to whether the officers' conduct

after that point was supported by arguable reasonable suspicion or probable cause. Reasonable
suspicion "takes into account the totality of the circumstances—the whole picture." Navarette,
572 U.S. at 397. "A Terry stop based on reasonable suspicion can ripen into a de facto arrest that
must be based on probable cause if it continues too long or becomes unreasonably intrusive,"
United States v. Bullock, 632 F.3d 1004, 1015 (7th Cir. 2011), and "common sense and ordinary
human experience" govern whether an investigative detention is unreasonable, United States v.
Sharpe, 470 U.S. 675, 685 (1985). It follows, therefore, that once an officer becomes aware of
additional facts that undermine the existence of reasonable suspicion—or, in some cases, confirm
the absence of reasonable suspicion or probable cause—the officer must cease any actions for
which reasonable suspicion or probable cause are necessary. See Irvin v. Kaczmaryn, 913 F.

Supp. 1190, 1199 (N.D. Ill. 1996) ("[T]he continuation of even a lawful arrest may violate the
Fourth Amendment if the police subsequently discover facts negating probable cause." (citing
BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986))).
Once Officer Weitzel had pulled Ms. Cox's car over, he would have had more time to
assess the situation, including whether the vehicle matched the description relayed by Mr.
Bunghi to dispatch. In addition, he made eye contact with Ms. Cox twice while they were
driving and knew she was a woman. And after Ms. Cox exited the car, every piece of
information available to Officer Weitzel and the other officers differed from the descriptions Mr.
Bunghi provided of his assailant—except for Ms. Cox's race.
The facts, viewed in the light most favorable to Ms. Cox, Darst, 512 F.3d at 907, show
that the officers, while in search of an armed robbery suspect, were presented with the following
factual scenario:

Suspect as reported by
Ms. Cox K.R. K.C.
Mr. Bunghi
Car Make Ford Mercury
Car Model Taurus Sable
License Plate No. VEN331 333TSE
Age Adult Adult 5 7
Gender Male Female Female Female
White scrubs with teddy
Hot Pink Hot Pink
Attire Brown Hoodie bears and a light blue
clothing clothing
jacket
Race Black Black Black Black

[Filing No. 89-3 at 34-38; Filing No. 89-3 at 84; Filing No. 89-4 at 2.] Despite the myriad
differences in the facts as reported by Mr. Bunghi and as found immediately after the stop, and
with race being the only commonality between the alleged assailant and Ms. Cox and her
children, a reasonable jury could readily find that the officers who handcuffed a mother at
gunpoint in front of her young daughters and kept her handcuffed and in the backseat of a police
car separated from her daughters for forty-five minutes acted unreasonably.
The precise point at which the officers no longer had arguable reasonable suspicion or
probable cause to support their conduct, if ever, is not for the Court to determine. In this case,
the genuine issues of material fact result in "substantial, if not complete, overlap of the issue of
immunity and the principle issue on the merits." Maxwell, 998 F.2d at 436. See also Hurt, 2017
WL 1021396, at *16. In sum, the Court finds that a reasonable factfinder could conclude that
Defendants' lacked arguable reasonable suspicion or probable cause for their actions after the
initial traffic stop, and that their conduct therefore violated Ms. Cox's and her children's clearly
established constitutional rights.
Accordingly, Defendants Motion for Summary Judgment is GRANTED with respect to
Ms. Cox's Fourth Amendment seizure claim based on Officer Weitzel pulling Ms. Cox over and

DENIED with respect to Ms. Cox's Fourth Amendment seizure claim based Ms. Cox's continued
detention after being pulled over.
b. Search
Defendants argue that the officers did not search the vehicle, did not search Ms. Cox, and
did not search either daughter. [Filing No. 88 at 5.] Defendants argue that if their conduct was a
search of Ms. Cox's vehicle, that search was lawful, minimally invasive, and "reasonable given
that there was arguable reasonable suspicion to detain the occupants of the vehicle" based on the
armed robbery report. [Filing No. 88 at 13.] They argue that Officers Weitzel and O'Connor
only observed the vehicle from the outside, did not search the trunk of the vehicle, and did not
search any enclosed containers inside the vehicle. [Filing No. 88 at 13.]

Ms. Cox responds that Officer Weitzel conducted two searches—a search of Ms. Cox's
car, and a search of K.C.'s person—and neither search was based on reasonable suspicion or
probable case. [Filing No. 94 at 9-10.] She argues that "Officer Weitzel had no articulable facts
supporting his conclusion that [Ms.] Cox's vehicle contained" the armed robbery suspect because
Ms. Cox's vehicle was not the correct make or model and had a different license plate number.
[Filing No. 94 at 10.] Similarly, Ms. Cox argues, she did not fit the description, and because
Officer Weitzel made eye contact with her prior to pulling her over and saw both of Ms. Cox's
daughters in the backseat, he could not have had reasonable suspicion to search her car. [Filing
No. 94 at 10.] Likewise, she argues, Officer Weitzel did not have reasonable suspicion or
probable cause to search K.C. by ordering her to unwrap her donut, particularly after K.C. told
him it was a donut. [Filing No. 94 at 11.]
Defendants reply that Officer Weitzel had reasonable suspicion based on specific and
articulable facts to stop and perform the limited search of Ms. Cox's car. [Filing No. 98 at 5-6.]

They argue that even after Ms. Cox exited the vehicle, the officers still had a reasonable belief
that an armed suspect could have been hiding in the vehicle, rendering their additional actions
reasonable and lawful. [Filing No. 98 at 6.]
As discussed above, viewing the facts in the light most favorable to Ms. Cox, the Court
finds that a reasonable factfinder could conclude that the officers did not have arguable
reasonable suspicion or probable cause to support their actions after the initial traffic stop.
Because the alleged searches occurred after the initial traffic stop, Defendants Motion is
DENIED as to Ms. Cox's claims based Defendants' alleged searches of Ms. Cox's vehicle and
K.C. However, to the extent Ms. Cox initially intended to assert claims based on alleged
unconstitutional searches of Ms. Cox's or K.R.'s persons, [Filing No. 26], she appears to concede

that no such searches occurred, [Filing No. 94 at 9 (initial subheading stating: "the evidence
demonstrates that Officers Weitzel conducted two searches," and additional subheadings stating:
"Officer Weitzel searched [Ms.] Cox's vehicle" and "Officer Weitzel searched K.C.'s person")].
Accordingly, Defendants' Motion is GRANTED as to any claims based on alleged searches of
Ms. Cox's person or of K.R.'s person.
c. Excessive Force
Defendants argue that it was "objectively reasonable" for Officer Weitzel to draw his
weapon, point his weapon at Ms. Cox's chest, handcuff Ms. Cox, place Ms. Cox in the backseat
of his vehicle, and continue his investigation. [Filing No. 88 at 17-21 (citing Jacobs v. City of
Chicago, 215 F.3d 758 (7th Cir. 2000)).] They argue that when Officer Weitzel pulled Ms. Cox
over, "he had to take precautions for his safety, the safety of the other motorists on the roadway,
the nearby victim, and anyone inside the vehicle." [Filing No. 88 at 17.] They further argue that
Ms. Cox's daughters "were not handcuffed, removed from their car seats, or restrained in anyway

(sic) other than stopped as part of the investigation, and if any firearm was ever brandished
toward the children it was in the process of clearing the vehicle of the alleged armed suspect
inside." [Filing No. 88 at 18.] Defendants also argue that Officers Weitzel and O'Connor are
entitled to qualified immunity on Ms. Cox's excessive force claims. [Filing No. 88 at 17.]
Ms. Cox responds that Officers Weitzel and O'Connor unreasonably threatened K.C. and
K.R. with deadly force by pointing their guns at them. [Filing No. 94 at 14.] Ms. Cox argues
that neither seven-year-old K.C. nor five-year-old K.R. posed any threat to the officers, they
were not suspects, they were not attempting to flee the officers, and they were in car seats.
[Filing No. 94 at 15.] Similarly, Ms. Cox argues that Officers Weitzel and O'Connor used
excessive force when they pointed their weapons at Ms. Cox. [Filing No. 94 at 16-17.] Ms. Cox

asserts that the officers did not have reasonable suspicion or probable cause to stop Ms. Cox's
vehicle, and even if they did, Ms. Cox's actions up to and after that point provide no justification
for the officers pointing their weapons at her. [Filing No. 94 at 17.]
Defendants reply that Officers Weitzel and O'Connor acted reasonably when they aimed
their firearms at Ms. Cox as she exited her vehicle and when they cleared Ms. Cox's car. [Filing
No. 98 at 7-8 (citing McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992)).] In addition,
they argue that to the extent the officers pointed their weapons at K.C. and K.R., doing so was
lawful because the officers were simply clearing the vehicle of a suspected armed robber.
Defendants maintain that "it was unfortunate that children happened to be in the vehicle as
officers brandished their weapons, [but] it does not distract from the officers' genuine belief that
an armed robber was housed in this vehicle." [Filing No. 98 at 9.] In sum, they argue,
"[Officers] Weitzel's and O'Connor's pointing of firearms at both Cox and the children in the
vehicle was reasonable" under the circumstances, which included eye-witness reports from the

victim of an armed robbery. [Filing No. 98 at 8-9.]
Whether a particular use of force has crossed the line into excessive force is governed by
the Fourth Amendment's protection against unreasonable seizures. Weinmann v. McClone, 787
F.3d 444, 448 (7th Cir. 2015). The reasonableness standard is objective and set forth in Graham
v. Connor: The reasonableness of each use of force "must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight." 490 U.S. 386,
396 (1989). "The Graham standard is fact-intensive, asking whether each use of force was
reasonable under the totality of the circumstances, 'including 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.'" Turner v. City of

Champaign, 979 F.3d 563, 567 (7th Cir. 2020) (quoting Graham, 490 U.S. at 396). The
reasonableness of a use of force is a question of law for the Court to decide. Bell v. Irwin, 321
F.3d 637, 640 (7th Cir. 2003) ("Since Graham we have regularly treated the reasonableness of
force as a legal issue.").
When faced with a qualified immunity defense in the excessive force context, the
plaintiff "has the burden of either identifying a 'closely analogous case that established a right to
be free from the type of force the police officers used on [her]' or of showing 'that the force was
so plainly excessive that, as an objective matter, the police officers would have been on notice
that they were violating the Fourth Amendment.'" Weinmann v. McClone, 787 F.3d 444, 450
(7th Cir. 2015) (quoting Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013)).
In this case, the officers were investigating an armed robbery—undoubtedly a severe and
serious crime. However, viewed in the light most favorable to Ms. Cox, the other facts did not

warrant the degree of force used by the officers. Apart from not matching the suspect's
description in any way, Ms. Cox's actions demonstrated that she did not pose any risk—
immediate or otherwise—to the safety of the officers or others. Rather, if there was any risk to
the safety of the officers or others, the risk was created by the officers themselves. Similarly,
Ms. Cox was not resisting arrest. Officer Weitzel testified that she was not speeding or
otherwise committing any traffic violations, [Filing No. 89-1 at 53-54], she complied with the
officers' commands promptly and with civility, and for the vast majority of the events in
question, she was handcuffed and in the backseat of a police car.
With respect to qualified immunity, the facts viewed in the light most favorable to Ms.
Cox show that the force used was so plainly excessive that as an objective matter, the officers

were on notice that they were violating the Fourth Amendment. Ms. Cox was unarmed, walking
backwards (as requested by Officer Weitzel), crying, and when she reached Officer Weitzel,
proactively offered her identification. Ms. Cox's children were in car seats, and K.C. was
holding a donut.
Even if the officers' conduct wasn't so plainly and objectively excessive, there are several
cases decrying the levels of forced allegedly used by the officers in this case. See Jacobs v. City
of Chicago, 215 F.3d 758, 773–74 (7th Cir. 2000) (unreasonable use of force where "officer kept
the gun pointed at [the plaintiff] for over ten minutes, even after ascertaining that [the plaintiff]
was not the person he was looking for, and during which time [the plaintiff] did nothing more
threatening than provide the officer with his identification and ask the officer for permission to
sit down"); McDonald v. Haskins, 966 F.2d 292, 294–95 (7th Cir. 1992) (officer's "threat of
deadly force—holding a gun to the head of a 9–year–old and threatening to pull the trigger—was
objectively unreasonable given the alleged absence of any danger to [the defendant-officer] or

other officers at the scene and the fact that the victim, a child, was neither a suspect nor
attempting to evade the officers or posing any other threat").
The parties have vastly differing versions of the situation, including each person's
demeanor, intensity, emotional state, motivations, and actions. Ms. Cox's version—which is the
Court's focus for purposes of this motion—describes shocking, offensive, and senseless behavior
by the police toward an innocent Black woman driving her young children home from a birthday
party. It is this version on which the Court must base its decision, and therefore, Defendants'
Motion is DENIED as to Ms. Cox's claims for excessive force.
d. False Arrest
Defendants argue that Ms. Cox and her daughters "were never arrested but were rather

subject to a 30-minute custodial interrogation and lawful detention." [Filing No. 88 at 27.] They
argue that based on the reliable information from the victim of an armed robbery, the officers
were permitted to perform a reasonable search for weapons for their protection on the basis of
reasonable suspicion. [Filing No. 88 at 26 (citing United States v. Mancillas, 183 F.3d 682, 697
(7th Cir. 1999)).] Defendants argue that even if Ms. Cox's detention was transformed into an
arrest, the officers had probable cause to arrest her, and that probable cause is an absolute
defense to a false arrest claim. [Filing No. 88 at 21.]
Ms. Cox argues that the traffic stop was converted to an arrest because "Defendants
escalated the interaction with Plaintiffs beyond what was necessary for checking Cox's vehicle
for a robbery suspect." [Filing No. 94 at 23.]
Defendants reply that "Plaintiffs' detention was lawful and did not amount to an arrest."

[Filing No. 98 at 9.]
"[A] claim for false arrest is a claim for the harm of being unlawfully imprisoned through
some extrajudicial act that does not amount to legal process, for example, when a police officer
performs a warrantless arrest without probable cause." Snodderly v. R.U.F.F. Drug Enforcement
Task Force, 239 F.3d 892, 899 n.9 (7th Cir. 2001). "A traffic stop can be converted into a full-
blown arrest if it extends beyond the time reasonably necessary to complete the purpose for
which the stop was made." Huff v. Reichert, 744 F.3d 999, 1005 (7th Cir. 2014) (citing Illinois v.
Caballes, 543 U.S. 405, 407 (2005)). "For an investigative stop based on reasonable suspicion to
pass constitutional muster, the investigation following it must be reasonably related in scope and
duration to the circumstances that justified the stop in the first instance so that it is a minimal

intrusion on the individual's Fourth Amendment interests." United States v. Bullock, 632 F.3d
1004, 1015 (7th Cir. 2011). In other words, an initially lawful Terry stop based on reasonable
suspicion "may be transformed into a formal arrest requiring probable cause if an officer's use of
force is sufficiently disproportionate to the purpose of the stop—which may include ensuring the
safety of the officers or others—in light of the surrounding circumstances. It may also become a
de facto arrest if the detention continues longer than necessary to accomplish the purpose of the
stop or becomes 'unreasonably intrusive.'" Matz v. Klotka, 769 F.3d 517, 524-25 (7th Cir. 2014)
(internal citations omitted). In evaluating whether the force used converted an encounter into a
full arrest, courts have considered "the hallmarks of a formal arrest such as applying handcuffs,
drawing weapons, and placing suspects in police vehicles," as well as whether the surrounding
circumstances would support an officer's legitimate fear for personal safety and whether the
suspect's resisted the officer's efforts. Id. at 526 (citing United States v. Bullock, 632 F.3d 1004,
1016 (7th Cir. 2011); Jewett v. Anders, 521 F.3d 818, 824-25 (7th Cir. 2008))

Viewing the facts in the light most favorable to Ms. Cox, there is a genuine issue as to
whether Ms. Cox was arrested. Apart from being pulled over, Ms. Cox was ordered from her
car, handcuffed, placed in the back of a police car, informed of her Miranda rights, and kept in
the police car for thirty to forty-five minutes. [Filing No. 89-3 at 57.] Under these
circumstances, a reasonable factfinder could understand the situation to have constituted a
restraint on Ms. Cox's freedom of movement of the degree associated with a formal arrest. In
addition, a reasonable factfinder could conclude that keeping Ms. Cox handcuffed in the
backseat of a police car and away from her daughters for at least thirty minutes was exceeded the
time reasonably necessary to determine that the armed robber was not in Ms. Cox's vehicle. Ms.
Cox's vehicle did not match the make, model, or license plate number of the assailant's reported

vehicle, and none of the occupants of Ms. Cox's car could have been reasonably mistaken for a
male in a brown hoodie. Finally, refusing to release Ms. Cox until she calmed down – after
pointing their weapons at her and her children, handcuffing her and holding her for 45 minutes –
may well be deemed unreasonable by a reasonable factfinder.
As discussed above, a reasonable factfinder could find that the officers arrested Ms. Cox
without probable cause, and there can be no question that an individual's right to be free from
arrest without probable cause is clearly established. Accordingly, Defendants' Motion is
DENIED with respect to Ms. Cox's claims for false arrest.
2. State Law Claims
a. Claims Under the Ordinance
Defendants argue that they did not violate the Ordinance because they did not "impede[]
the Plaintiffs from any employment endeavor, education opportunity, or the acquisition of real

estate." [Filing No. 88 at 10.] In addition, they contend that Ms. Cox's and her children's races,
genders, sexual orientations, disabilities, and veteran status were not relevant to anything that
occurred during the stop. [Filing No. 88 at 10.] To the extent Ms. Cox and her daughters were
prevented from using public rights of way, Defendants argue, they were so prevented based on a
report that an armed robbery suspect was fleeing in Ms. Cox's car, not based on their protected
status. [Filing No. 88 at 10.] Defendants maintain that "after Plaintiffs were released from
detention, they were free to return to pursing educational opportunities, employment
opportunities, acquire real estate, and to use public accommodations." [Filing No. 88 at 10.]
Ms. Cox responds that "[t]here is a genuine dispute over the reason Defendants prevented
[Ms.] Cox from using the public street." [Filing No. 94 at 7.] Ms. Cox asserts that she was

stopped because she is African American, and not because of the report that an armed robbery
suspect was in her car. [Filing No. 94 at 7-8.] She argues that the only commonality between
her and the robbery suspect is their race, and that every other piece of information about the
suspect—including gender, attire, vehicle color, vehicle make and model, and vehicle license
plate—did not match Ms. Cox or Ms. Cox's vehicle. She further argues that Officer Weitzel "did
not perform any independent check on the suspect vehicle's license plate." [Filing No. 94 at 8
(citing Filing No. 89-1 at 55).] In sum, she argues, "[Ms.] Cox's race was the only reason Officer
Weitzel connected her to the alleged robbery incident and denied her from using the public
street. He denied [Ms.] Cox use of the public street for approximately 45 minutes based on her
race and nothing more. Officer Weitzel's race-based denial of equal access to the public street is
discriminatory and violates [the Ordinance]." [Filing No. 94 at 9 (citations omitted).]
In reply, Defendants argue that the Ordinance does not provide a private right of action.
[Filing No. 98 at 5.] They argue that Officer Weitzel stopped Ms. Cox's vehicle based on a

report that the individual who had just committed an armed robbery was in the car, and
"Plaintiffs' race and gender did not influence why this vehicle was stopped." [Filing No. 98 at 5.]
The Court issued an order pursuant to Federal Rule of Civil Procedure 56(f)(2) that it
intended to grant Defendants' Motion as to Ms. Cox's claims under the Ordinance on grounds not
raised by Defendants, and the Court gave Ms. Cox an opportunity to respond. [Filing No. 99.]
Specifically, the Court noted that the Court's researched revealed that the Ordinance did not
provide a private right of action. [Filing No. 99 at 2.]
In her response to the Court's Order, Ms. Cox argues that "the City of Indianapolis’s
Municipal Ordinance 581-101, as applied to her, violates the Indiana Constitution." [Filing No.
100 at 1.] She elaborates that "Ordinance 581-101 specifically gives [Ms.] Cox a right to use the

city streets regardless of her race. This right was not equally available to [Ms.] Cox because the
color of her skin was the only reason her vehicle, her person, and her children were seized.
Therefore, [Ms.] Cox may raise an as applied challenge to the ordinance under Article 1, Section
23 [of the Indiana Constitution]." [Filing No. 100 at 2.]
Ms. Cox's response is confusing, and it is not clear whether her claims are based on an
alleged violation of the Ordinance, or based on a theory that the Ordinance itself was
unconstitutional. Regardless, summary judgment is appropriate. As an initial matter, Ms. Cox's
entire argument under the Ordinance is that the officers violated the ordinance and thereby
violated her rights. The idea that a violation of the Ordinance—which she expressly states
"specifically gives her a right to use the city streets regardless of her race," [Filing No. 100 at
2]—somehow renders the Ordinance itself unconstitutional is without a legal basis and has never
been raised previously by Ms. Cox.
Not every statute or ordinance creates a private right of action. Cuyler v. United States,

362 F.3d 949, 952 (7th Cir. 2004). Whether a statute creates a private right of action is a
question of law for the court. Howard Regional Health Sys. v. Gordon, 952 N.E.2d 182, 187
(Ind. 2011).
In Indiana, "the issue when a plaintiff claims a private right of action is whether the
legislative body intended to establish not just a standard of conduct but a duty enforceable by tort
law." Stachowski v. Estate of Radman, 95 N.E.3d 542, 545 (Ind. Ct. App. 2018) (citing Estate of
Cullop v. State, 821 N.E.2d 403, 408 (Ind. Ct. App. 2005); Cuyler v. United States, 362 F.3d
949, 952 (7th Cir. 2004)). Indiana courts "have a well-established standard for determining
whether a legislative body intended to confer a private right of action. Absent an express right of
action, the primary considerations are (1) whether the statute or ordinance was designed to

protect particular individuals or the public in general and (2) whether it includes an independent
enforcement mechanism." Id. at 546 (citing Doe #1 v. Ind. Dep't of Child Servs., 81 N.E.3d 199,
202–04 (Ind. 2017); Estate of Cullop, 821 N.E.2d at 408). In other words, if a statute or
ordinance does not expressly provide a private right of action, courts "usually will not infer a
private right of action when the statute (1) primarily protects the public at large and (2) contains
an independent enforcement mechanism." Doe #1, 81 N.E.3d at 202; Howard Regional Health
Sys., 952 N.E.2d at 187 ("A private party may not usually enforce rights under a statute designed
to protect the public in general and which contains an enforcement provision. When a statute
limits a thing to be done in a particular mode, it includes the negative of any other mode."
(internal citations and quotations omitted)).
The relevant sections of the Indianapolis Code of Ordinances do not expressly provide a
cause of action. The Court must therefore determine whether the Ordinance was designed to

protect particular individuals or the public in general and whether it includes an independent
enforcement mechanism. See Stachowski, 95 N.E.3d at 546.
The legislative purpose is laid out in Section 581-101:
(a) The council finds that the practice of denying equal opportunities in
employment, education, access to and use of public accommodations,4 and
acquisition of real estate based on race, color, religion, ancestry, age, national
origin, disability, sex, sexual orientation, gender identity, or United States
military service veteran status is contrary to the principles of freedom and
equality of opportunity and is a burden to the objectives of the policies
contained herein and shall be considered discriminatory practices.5

4 "Public accommodation means an establishment which caters to or offers its services, facilities
or goods to the general public.

Public facility means any facility or establishment, other than an educational institution, which is
owned, operated or managed by or on behalf of a governmental agency." Indianapolis Ord. §
581-103.

5 "Discriminatory Practice means and includes the following:

(1) The exclusion from or failure or refusal to extend to any person equal opportunities or
any difference in the treatment of any person by reason of race, sex, sexual
orientation, gender identity, religion, color, national origin or ancestry, disability, age,
or United States military service veteran status;

(2) The exclusion from or failure to extend to any person equal opportunities or any
difference in the treatment of any person, because the person filed a complaint
alleging a violation of this chapter, testified in a hearing before any members of the
board or otherwise cooperated with the office or board in the performance of its
duties and functions under this chapter, or requested assistance from the board in
connection with any alleged discriminatory practice, whether or not such
discriminatory practice was in violation of this chapter . . . ."

Indianapolis Ord. § 581-103.
(b) It is the purpose of this chapter to carry out the following policies of the city
and county:
(1) To provide equal employment opportunity in all city and county
jobs without regard to race, color, religion, disability, national
origin, ancestry, age, sex, sexual orientation, gender identity, or
United States military service veteran status;

(2) To encourage the hiring of the persons with disabilities in both the
public and the private sectors and to provide persons with
disabilities with equal access to public accommodations;

(3) To utilize businesses owned by persons with disabilities;

(4) To protect employers, labor organizations, employment agencies,
property owners, real estate brokers, builders, lending institutions,
governmental and educational agencies and other persons from
unfounded charges of discrimination;

(5) To provide all citizens of the city and county equal opportunity for
education, employment, and access to public accommodations
without regard to race, religion, color, disability, sex, sexual
orientation, gender identity, national origin, ancestry, age, or
United States military service veteran status; and

(6) To provide all citizens of the city and county equal opportunity for
acquisition through purchase or rental of real property including,
but not limited to, housing without regard to race, religion, color,
disability, sex, sexual orientation, gender identity, familial status,
national origin, ancestry, age or United States military service
veteran status.

Indianapolis Ord. § 581-101. The Ordinance states that "[e]ach discriminatory practice as
defined in section 581-103 of this chapter (including any retaliatory practice encompassed within
the definition of 'discriminatory practice') shall be considered unlawful unless it is specifically
exempted by this chapter." Indianapolis Ord. § 581-403. The Ordinance also creates an "office
of equal opportunity," (the "Office") and states that the Office shall monitor internal employment
practices and "receive, investigate and adjudicate community complaints as specified in Article
IV of this chapter." Indianapolis Ord. § 581-202. In Article IV Ordinance contains an
enforcement provision:
(a) A complaint charging that any person has engaged in or is engaging in a
discriminatory practice prohibited by section 581-403 of this chapter may be
filed with the office by any person claiming to be aggrieved by the practice, by
one (1) or more members of the board or by one (1) or more employees of the
office who have reasonable cause to believe that such a violation has
occurred, in any of the following circumstances:

***

(3) In the case of a public accommodation, against the owner or person in
charge of any such establishment, or both;
(4) In the case of a public facility, against the governmental body which
operates or has jurisdiction over the facility . . . .

Indianapolis Ord. § 581-405 (emphasis added).
The Ordinance does not create a private right of action. On its face, the Ordinance is
designed to "provide all citizens of the city and county equal opportunity for education,
employment, and access to public accommodations without regard to race, religion, color,
disability, sex, sexual orientation, gender identity, national origin, ancestry, age, or United States
military service veteran status." Indianapolis Ord. § 581-101(b). When a statute is designed
mainly for public benefit, it implies no right of action; incidental benefits to a private party make
no difference." Doe #1, 81 N.E.3d at 202; Whinery v. Roberson, 819 N.E.2d 465, 474 (Ind. Ct.
App. 2004) ("A private cause of action will not be inferred where the legislature imposes a duty
for the public's benefit.") The Ordinance here is designed mainly for the public benefit, and its
incidental benefit to Ms. Cox is inconsequential to that determination.
In addition, the Ordinance provides an enforcement mechanism: a person claiming to be
aggrieved by a practice declared unlawful by the ordinance—like Plaintiffs in this case—may
file a complaint with the Office created by the Ordinance. "When a statute expressly provides
one enforcement mechanism, courts may not engraft another." Doe #1, 81 N.E.3d at 204
(holding that a statute requiring reporting of child abuse provided two enforcement mechanisms:
(1) a person who violates the statute commits a Class A infraction carrying a fine of up to
$10,000; and (2) "that employee may also be disciplined in accordance with the personnel
policies of their agency" (internal quotations omitted)). See also Borne, 532 N.E.2d at 1203
("[I]f it appears that the duty imposed is merely for the benefit of the public, and the fine or

penalty a means of enforcing the duty and punishing a breach thereof, the fine or penalty is
exclusive, and a private action cannot be maintained for injury by reason of the breach." (quoting
Bartholomew Cty. Beverage Co. v. Barco Beverage Corp., 524 N.E.2d 353, 356 (Ind. Ct. App.
1988)).
Finally, the Indianapolis City Council expressly provided for judicial enforcement in
certain circumstances. Section 581-415(a) provides that "[i]n any case where the board, the
adjudication committee or the hearing officer has found that a respondent has engaged in or is
engaging in a discriminatory practice in violation of section 581-403 of this chapter, and such
respondent has failed to correct or eliminate such discriminatory practice within the time limit
prescribed by the board, the adjudication committee or the hearing officer and the time limit

for appeal to the board has elapsed, the board may file in its own name in the Marion County
Circuit or Superior Courts a complaint against the respondent for the enforcement of" the
findings. Moreover, where a person claiming to be aggrieved files a complaint with the Office,
"In any case where the board, the adjudication committee or the hearing officer has found that
a respondent has engaged in or is engaging in a discriminatory practice in violation of section
581-403 of this chapter, and such respondent has failed to correct or eliminate such
discriminatory practice within the time limit prescribed by the board, the adjudication
committee or the hearing officer and the time limit for appeal to the board has elapsed, the
board may file in its own name in the Marion County Circuit or Superior Courts a complaint
against the respondent for the enforcement of section 581-414 of this chapter." Indianapolis
Ord. 581-415(c).
Accordingly, it is clear from both the express statements in the Ordinance, as well as the
fact that the Ordinance provides for the use of courts in certain limited circumstances that the

Indianapolis City Council did not intend to create a private right of action. The Ordinance is
designed to protect the public generally and contains its own enforcement mechanisms. The
Court does not hold that Defendants did not violate the Ordinance. Instead, the Court finds that
the Ordinance, even if violated, does not provide Ms. Cox a private right of action. Accordingly,
Defendants' Motion for Summary Judgment is GRANTED as to Ms. Cox's claims under the
Ordinance.
b. Claims under Indiana Constitution
As it did with Ms. Cox's claims under the Ordinance, the Court issued an order pursuant
to Rule 56(f) informing the parties that it intended to grant Defendants' Motion on Ms. Cox's
claims under the Article 1, Section 11 of the Indiana Constitution on grounds not raised by the

moving party. [Filing No. 99.] Specifically, the Court's research revealed that Article 1, Section
11 of the Indiana Constitution does not provide a private right of action. [Filing No. 99 at 1-2.]
In her response to the Court's Order, Ms. Cox argues that she "does not raise a separate
claim under Article 1 Section 11 of the Indiana Constitution. Rather, she claims that Defendants'
search and seizure was unreasonable when duly analyzed under Article 1, Section 11 of the
Indiana Constitution as well as the Fourth Amendment." [Filing No. 100 at 2.]
"There is no explicit language in the Indiana Constitution providing any specific remedy
for violations of constitutional rights." Cantrell v. Morris, 849 N.E.2d 488, 499 (Ind. 2006). See
also McConnell v. McKillip, 573 F. Supp. 2d 1090, 1103 (S.D. Ind. 2008) ("[T]he Indiana
Supreme Court . . . recognized that Indiana has no statutory provision like § 1983 that creates an
explicit civil remedy for constitutional violations by individual officers or governmental
entities."); Willits v. Wal-Mart Stores, Inc., 2001 WL 1028778, at *15 (S.D. Ind. July 30, 2001)
("This Court agrees with the reasoning of Judge Tinder, and similarly declines to recognize an

implied right of action under Article 1, Section 11 of the Indiana Constitution." (citing Baker v.
Washington Board of Works, 2000 WL 33252101, at *8 (S.D. Ind. June 8, 2000)).
In any event, Ms. Cox clarifies that she is not pursuing any claims under Article 1,
Section 11 of the Indiana Constitution. [Filing No. 100 at 2.] Accordingly, Defendants' Motion
for Summary Judgment is GRANTED as to Plaintiffs' claims under the Indiana Constitution.
C. Claims against the City
Defendants argue that Ms. Cox's Monell claims against the City fail because "there is no
evidence that any policy, custom or practice caused a constitutional violation." [Filing No. 88 at
32.] Defendants contend that to the extent Ms. Cox relies on the various General Orders she
cites, "[t]here is nothing in these express policies that, when enforced, cause a constitutional

deprivation." [Filing No. 88 at 32.]
In response, Ms. Cox argues: "Defendants present a general discussion of Monell claims
in this section. This discussion is not enough for Plaintiffs to respond. Defendants point to no
evidence or claims. Consequently, Plaintiffs are rendered wholly unable to respond to this
section." [Filing No. 94 at 25.]
In their Reply, Defendants do not address or present any argument with respect to
Plaintiffs' claims against the City.
"Failure to respond to an argument . . . results in waiver." Bonte v. U.S. Bank, N.A., 624
F.3d 461, 466 (7th Cir. 2010). Despite Ms. Cox's assertion to the contrary, Defendants argue
that her Monell claims fail because there is no evidence that any policy, custom, or practice
caused the alleged constitutional violations. Ms. Cox failed to respond—and indeed chose not to
respond—to Defendants' argument and therefore has waived any argument to the contrary.
Regardless, Defendants' argument is correct. "A village or other municipality may be

found liable under § 1983 when it violates constitutional rights via an official policy or custom."
Wragg v. Village of Thornton, 604 F.3d 464, 467 (7th Cir. 2010) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978)). "To establish an official policy or custom, a plaintiff must show
that [her] constitutional injury was caused 'by (1) the enforcement of an express policy of the
[village], (2) a widespread practice that is so permanent and well settled as to constitute a custom
or usage with the force of law, or (3) a person with final policymaking authority.'" Id. at 467
(quoting Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001)).
Ms. Cox des not identify in her Amended Complaint, Statement of Claims, or Response
to Defendants' Motion a practice, policy, or custom that caused the alleged constitutional
violations. Similarly, she does not allege or present evidence that a person with final

policymaking authority caused the alleged constitutional violations. Accordingly, Defendants'
Motion is GRANTED as to Ms. Cox's claims against the City.
D. Claims against Individual Defendants in Official Capacities
Defendants argue that a suit against a municipal officer in his or her official capacity is
functionally equivalent to a suit against the municipal entity. [Filing No. 88 at 32 (citing Smith v.
Ciesielski, 975 F. Supp. 2d 930, 937 (S.D. Ind. 2013)).] Defendants assert that the claims against
Officers Weitzel and O'Connor in their official capacities are duplicative of Ms. Cox's claims
against the City. [Filing No. 88 at 32.] Therefore, Defendants argue, the claims against Officers
Weitzel and O'Connor should be dismissed for the same reasons that the claims against the City
should be dismissed. [Filing No. 88 at 32.]
In Response, Ms. Cox argues: "Defendants argue Plaintiff cannot pursue claims against
Officers Weitzel and O'Connor in their official capacities. The argument does not provide

enough analysis of this argument for Plaintiffs to respond. Defendants fail to identify what
claims they are seeking summary judgment on. Therefore, Plaintiffs cannot properly respond to
this section[.]" [Filing No. 94 at 25 (citations omitted).]
In their Reply, Defendants do not address or present any argument with respect to
Plaintiffs' claims against the individual defendants in their official capacities.
As stated above, "[f]ailure to respond to an argument . . . results in waiver." Bonte, 624
F.3d at 466. Despite Ms. Cox's assertion, Defendants argued that her claims against Officers
Weitzel and O'Connor in their official capacities are tantamount to claims against the City, and
therefore fail because there is no evidence that any policy, custom, or practice that caused the
alleged constitutional violations. Ms. Cox failed to respond to Defendants' argument and has

therefore waived any argument to the contrary.
In any event, Defendants' argument is correct: "official-capacity suits generally represent
only another way of pleading an action against an entity of which an officer is an agent."
Monell, 436 U.S. at 690 n.55. Accordingly, "in an official-capacity suit the entity's 'policy or
custom' must have played a part in the violation of federal law." Kentucky v. Graham, 473 US.
159, 166 (1985). Ms. Cox has not identified a policy, custom, or practice that caused the alleged
constitutional violations. Therefore, Defendants' Motion is GRANTED as to Ms. Cox's claims
against Officers Weitzel and O'Connor in their official capacities.
IV.
CONCLUSION

Consistent with the foregoing, Defendants' Motion, [87], is GRANTED IN PART and
DENIED IN PART as follows:
• The Motion is GRANTED as to Ms. Cox's claims under the Fourth Amendment against
the individual defendants in their personal capacities based on the initial traffic stop;

• The Motion is DENIED as to Ms. Cox's claims under the Fourth Amendment against the
individual defendants in their personal capacities based on Officer Weitzel's and Officer
O'Connor's actions after the initial traffic stop;

• The Motion is GRANTED as to Ms. Cox's claims under the Ordinance;

• The Motion is GRANTED as to Ms. Cox's claims under Article 1, Section 11 of the
Indiana Constitution;

• The Motion is GRANTED as to Ms. Cox's claims against the City; and

• The Motion is GRANTED as to Ms. Cox's claims against Officers Weitzel and O'Connor
in their official capacities

The following claims SHALL PROCEED:
• Ms. Cox's individual and representative claims against Officers Weitzel and O'Connor in
their personal capacities under the Fourth Amendment based on their continued seizure of
Ms. Cox after the initial traffic stop;

• Ms. Cox's individual and representative claims against Officers Weitzel and O'Connor in
their personal capacities under the Fourth Amendment based on the searches of Ms.
Cox's vehicle and K.C.'s person;

• Ms. Cox's individual and representative excessive force claims against Officers Weitzel
and O'Connor in their personal capacities under the Fourth Amendment; and

• Ms. Cox's personal false arrest claim against Officers Weitzel and O'Connor in their
personal capacities under the Fourth Amendment.

The Court requests that the Magistrate Judge confer with the parties as soon as practicable to
discuss the possibility of resolving the remaining claims short of trial.
Date: 2/25/2021
Hon. Jane Maghus-Stinson, Chief Judge
‘United States District Court
Southern District of Indiana

Distribution via ECF only to all counsel of record

4]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10167659. Public record. Not legal advice.