# HARDIMAN v. CHIEF

> District Court, S.D. Indiana · June 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10168006

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** June 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10168006

## How later opinions describe it (automated extraction)

- noting that "Duguay was assumed to be the owner of the car—a proposition which was hotly disputed at the suppression hearing
- noting that "Duguay's brother William Coles, who is another son of the title owner, was also present at the time of the arrest"

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DAMON HARDIMAN, et al., )
)
Plaintiffs, )
)
v. ) No. 1:18-cv-00348-MJD-TWP
)
CHIEF OF THE INDIANAPOLIS )
METROPOLITAN POLICE DEPARTMENT, et )
al., )
)
Defendants. )

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court on Defendants' motion for summary judgment, [Dkt. 68],
and Plaintiffs' motion for partial summary judgment, [Dkt. 71]. The motions are fully briefed
and the Court, being duly advised, GRANTS Defendants' motion and DENIES Plaintiffs'
motion with regard to Plaintiffs' federal claims.1 The Court declines to exercise supplemental
jurisdiction over Plaintiffs' state law claims and REMANDS those claims to the Marion Superior
Court.
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if
the movant shows that there is no genuine dispute as to any material fact and the movant is

1 The Court notes that Plaintiffs do not assert any federal claims against the Chief of the
Indianapolis Metropolitan Police Department; rather, Plaintiffs only assert certain of their state
law claims against that Defendant under the theory of respondeat superior. See [Dkt. 25]. Thus,
the use of the term "Defendants" herein refers to the Defendants other than the Chief of Police.
entitled to judgment as a matter of law." In ruling on a motion for summary judgment, a court
must "view the facts in the light most favorable to the nonmoving party, and draw all reasonable
inferences in his favor." Pack v. Middlebury Cmty. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021)
(citing McAllister v. Innovation Ventures, 983 F.3d 963, 967 (7th Cir. 2020)).
Summary judgment is a critical moment for a non-moving party. It must "respond
to the moving party's properly-supported motion by identifying
specific, admissible evidence showing that there is a genuine dispute of material
fact for trial." Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017).
Inferences supported only by speculation or conjecture will not suffice. Skiba v.
Ill. Cent. R.R. Co., 884 F.3d 708, 721-22 (7th Cir. 2018). Neither will the mere
scintilla of evidence. Grant, 870 F.3d at 571.

Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018). Finally, the non-
moving party bears the burden of specifically identifying the relevant evidence of record, "as it is
not the court's job to 'scour the record in search of evidence to defeat a motion for summary
judgment.'" Hildreth v. Butler, 960 F.3d 420, 429 (7th Cir. 2020), cert. denied, 141 S. Ct. 1527
(2021) (quoting Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008)).
II. Facts Relevant to Plaintiffs' Federal Claims
Plaintiffs assert that Defendants violated their Fourth Amendment rights. The material
facts of record relevant to that claim, viewed in the light most favorable to Plaintiffs, are as
follow.
Defendants Nickolas Smith, Michael McWhorter, and Paul Bellows were, at all relevant
times, officers with the Indianapolis Metropolitan Police Department ("IMPD"). On August 28,
2017, Defendants were working their usual beat. [Dkt. 69-1 at 1, Dkt. 69-4 at 1, Dkt. 69-5 at 1.]2

2 Plaintiffs move to strike the affidavits submitted by Defendants in support of their motion for
summary judgment "because each of the affidavits were signed by said affiants after the Court’s
discovery deadline of February 12, 2021" [Dkt. 74 at 1 n.1.] Plaintiffs argue that they "relied
upon Defendants abiding by the Court’s order; permitting a party to introduce additional
2
While on patrol, Smith noticed a white Cadillac that was parked facing the wrong way
and within thirty feet of a stop sign in violation of local ordinances. [Dkt. 69-1 at 1.] While he
waited for McWhorter and Bellows to arrive at the scene, Smith "walked to the car to see if [it]
looked operable, checked the plate to see if it matched the car, and prepared information for a
parking citation, making sure I had a ticket book on scene." Id. at 2. The license plate check
revealed that the car was registered to Plaintiff Bobby Lee Houston, Jr. Id. Smith did not know
Houston, and Houston was not present. Id.

IMPD General Order 7.3 governs the towing and impounding of vehicles at the direction
of IMPD officers. See [Dkt. 69-6]. General Order 7.3 cites to Section 611-203 of the Revised
Code of the Consolidated City and County Indianapolis/Marion, Indiana as providing that a
vehicle may be declared a public nuisance if it is "parked . . . upon any street or public place in
the city in violation of any of the provisions of this Code or of any statute of the state." Id. at 1.
Section 611-204 of the Revised Code provides that an officer "upon discovering a vehicle
constituting a public nuisance, may cause the vehicle to be impounded as authorized by this
article." https://library.municode.com/in/indianapolis_-_marion_county/codes/
code_of_ordinances?nodeId=TITIIIPUHEWE_CH611MOVE (last visited June 10, 2021).
General Order 7.3 further provides that a vehicle may be towed and impounded for a variety of

reasons, including "[v]iolating parking or other special restrictions." [Dkt. 69-6 at 2.] Indiana
Code Section 9-21-16-5 prohibits parking within thirty feet of a stop sign. Indiana Code Section
9-21-16-7 provides that "a vehicle stopped or parked upon a roadway where there is an adjacent

evidence outside the discovery deadline renders said deadline meaningless." Id. Plaintiffs'
argument is without merit. The discovery deadline is entirely irrelevant to affidavits created and
submitted in support of or in opposition to motions for summary judgment.
3
curb must be stopped or parked with the right-hand wheels of the vehicle parallel with and within
twelve (12) inches of the right-hand curb." It is undisputed that the Cadillac was violating both
of these provisions.
Smith decided to have the Cadillac towed and impounded "because it violated
ordinances, prevented vehicles from properly stopping at the stop sign, and blocked the flow of
traffic."3 [Dkt. 69-1 at 2.] Smith "knew that [IMPD's] General Orders allow [him] to impound a
vehicle when it violates ordinances and that police officers have community caretaking

responsibilities." Id. at 1. Accordingly, he radioed for a tow truck.
Once McWhorter and Bellows arrived, Smith wrote a ticket, placed it on the windshield,
and began to conduct an inventory search of the Cadillac.4
The Cadillac was parked in front of the home of Plaintiff Damon Hardiman and his
godmother, Leticia Styles. A neighbor called Styles to tell her that police officers were outside
her home going through the Cadillac. [Dkt. 69-3 at 21.] Styles, in turn, called Hardiman, who

3 Hardiman testified at his deposition that the Cadillac was not blocking the street and cars could
safely pass by on the street. [Dkt. 69-3 at 43.] Thus, there is a dispute regarding whether the
vehicle actually blocked the flow of traffic. However, "even at the summary-judgment stage not
every purported factual dispute precludes summary judgment. A factual dispute must be
material and genuine." Alston v. City of Madison, 853 F.3d 901, 910 (7th Cir. 2017)
(citing Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012)). "In determining whether the
nonmovant has identified a 'material' issue of fact for trial, we are guided by the applicable
substantive law; '[o]nly disputes that could affect the outcome of the suit under governing law
will properly preclude the entry of summary judgment.'" Outlaw v. Newkirk, 259 F.3d 833, 837
(7th Cir. 2001) (quoting McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir.
1996)). Whether the Cadillac was actually impeding traffic is not a material fact in this case,
however, because there is no dispute that the manner in which the Cadillac was parked violated
the other parking provisions identified by Defendants, and those violations rendered the Cadillac
a public nuisance under the relevant ordinance.
4 Defendants assert in their statement of facts that there were no valuables in the Cadillac when
the inventory was conducted. While Hardiman disputes this fact, see [Dkt. 74 at 2], the dispute
is not material to the issues resolved by the Court herein.
4
was driving home from school at the time. Id. at 17. Hardiman arrived on the scene with a
friend, Chris Robinson. At that time, the tow truck had not yet arrived.
When he arrived, Hardiman saw Defendant Smith rummaging through the driver's side of
the Cadillac. Hardiman's possessions, which included school supplies, books, papers, and
clothing, were on the ground outside of the vehicle. Hardiman informed Smith that the Cadillac
was his and asked that he or Robinson be permitted to move the vehicle so that it would not need
to be towed. Id. at 47-49. Robinson told Smith that he would move the vehicle and offered to

show him his driver's license. [Dkt. 73-10 at 1.] However Smith told Hardiman that only the
owner of the vehicle could move it. [Dkt. 69-3 at 47-48.] Hardiman called the registered owner
of the car, Houston, who is Hardiman's brother, but Smith refused to allow Houston to come to
the scene to move the car. Id. at 48-49. Therefore, the car was towed to IMPD's impound lot,
where Hardiman had to pay to retrieve it.5
III. Discussion
Plaintiffs argue that the towing and impounding of their vehicle constituted an
unreasonable seizure under the Fourth Amendment. Defendants argue that they are entitled to
qualified immunity on this claim because the seizure of the vehicle did not violate any clearly
established right.

5 The Cadillac was inoperable when Plaintiffs went to pick it up from the impound lot because
the parking brake would not release. In addition, the glove box locking mechanism was broken.
Plaintiffs allege that Smith intentionally broke the parking brake and that Defendants broke the
glove box during the search of the vehicle. Plaintiffs identify disputed facts regarding those
allegations; however, those facts are not material to Plaintiffs' Fourth Amendment claims.
5
A. Qualified Immunity Standard
"'Public officials are immune from suit under 42 U.S.C. § 1983 unless they have
"violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct."'" Dix v. Edelman Fin. Servs., LLC, 978 F.3d 507, 518 (7th Cir. 2020), cert.
denied sub nom. Dix v. Edelman Fin., No. 20-1247, 2021 WL 1952074 (U.S. May 17, 2021)
(quoting City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (in turn
quoting Plumhoff v. Rickard, 572 U.S. 765, 778 (2014))). In addressing the question of qualified

immunity in the context of a motion for summary judgment, the Court must "evaluate '(1)
whether the facts, taken in the light most favorable to the plaintiff[ ], show that the defendants
violated a constitutional right; and (2) whether that constitutional right was clearly established at
the time of the alleged violation.'" Campbell v. Kallas, 936 F.3d 536, 545 (7th Cir. 2019)
(quoting Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009)). "The latter inquiry is
often dispositive and may be addressed first." Id. (citing Pearson v. Callahan, 555 U.S. 223, 236
(2009)). The Court will do so here.
"To be 'clearly established,' a constitutional right 'must have a sufficiently clear
foundation in then-existing precedent.'" Id. (quoting D.C. v. Wesby, 138 S. Ct. 577, 589 (2018)).
An officer cannot be said to have violated a clearly established right unless the
right's contours were sufficiently definite that any reasonable official in his shoes
would have understood that he was violating it, meaning that existing precedent
placed the statutory or constitutional question beyond debate. . . . Put simply,
qualified immunity protects all but the plainly incompetent or those who
knowingly violate the law.

Dix, 978 F.3d at 518 (citations and internal quotation marks omitted). Because "[t]he principle
of fair notice pervades the doctrine" of qualified immunity, "clearly established law cannot be
framed at a 'high level of generality.'" Campbell, 936 F.3d at 545 (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)).
6
A rule is too general if the unlawfulness of the officer’s conduct does not follow
immediately from the conclusion that the rule was firmly established. Existing
caselaw must dictate the resolution of the parties’ dispute, so while a case directly
on point isn’t required, precedent must have placed the constitutional question
beyond debate. Put slightly differently, a right is clearly established only if every
reasonable official would have understood that what he is doing violates that
right.

Id. at 545-46 (internal citations, quotation marks, and alterations omitted).
"The plaintiff carries the burden of defeating the qualified immunity defense."
Chasensky v. Walker, 740 F.3d 1088, 1095 (7th Cir. 2014) (citation omitted).
To meet his burden on the second prong, a plaintiff must "show either a
reasonably analogous case that has both articulated the right at issue and applied
it to a factual circumstance similar to the one at hand or that the violation was so
obvious that a reasonable person necessarily would have recognized it as a
violation of the law." Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997).
This requirement does not mean that a plaintiff must be able to point to a case "on
all fours" with the defendant officer’s misconduct. See Hope v. Pelzer, 536 U.S.
730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). But there must be settled
authority that would cause him to understand the illegality of the action. See
Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015).

Howell v. Smith, 853 F.3d 892, 897 (7th Cir. 2017).6
B. United States v. Duguay
Plaintiffs assert that under Seventh Circuit precedent,7 specifically United States v.
Duguay, 93 F.3d 346, 351 (7th Cir. 1996), it was clearly established that the Fourth Amendment

6 Analogous precedent is not always required; there are "rare cases . . . where the state official’s
alleged conduct is so egregious that it is an obvious violation of a constitutional right." Leiser v.
Kloth, 933 F.3d 696, 702 (7th Cir. 2019). Plaintiffs do not argue that this is such a case.
7 Defendants note that "[t]he Supreme Court has questioned whether anything short of its own
precedent could constitute clearly established law." [Dkt. 75 at 8 n.2] (citing City of Escondido
v. Emmons, 139 S. Ct. 500, 503 (2019) (“assuming without deciding that a court of appeals
decision may constitute clearly established law for purposes of qualified immunity”) (in turn
citing City and Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015) (same)); Reichle
v. Howard, 132 S. Ct. 2088, 2094 (2012) (“Assuming for the sake of argument that a controlling
circuit precedent could constitute clearly established federal law in these circumstances.”)).
However, the Seventh Circuit has instructed that "[w]e first look to whether the Supreme Court
7
required Defendants to permit Robinson to move the Cadillac as Hardiman requested instead of
towing it. Thus, a close examination of Duguay is critical to Plaintiffs' argument.
The plaintiff in Duguay was a passenger in a vehicle driven by his girlfriend, Gloria
Vaughn, in Alton, Illinois. A deputy marshal on the scene associated the vehicle with Duguay
based upon a previous investigation the deputy had been involved with. Vaughn parked the
vehicle at the apartment complex in which she lived and she and Duguay began walking toward
the apartments. The pair were approached by three United States deputy marshals who believed

they had pulled into the parking lot to avoid a police roadblock. An altercation ensued between
Duguay and one of the marshals, resulting in Duguay's arrest for assault. An Alton police
detective informed Vaughn that he was going to impound the car; when Vaughn refused to
surrender the vehicle's keys, she was arrested for obstruction of justice. The vehicle was then
impounded and inventoried. A substantial quantity of crack cocaine was found in the trunk of
the vehicle, which led to Duguay being charged with possession with the intent to distribute
narcotics, among other charges.
Duguay moved to suppress the crack cocaine, arguing, inter alia, that the impoundment
and resulting search of the vehicle violated the Fourth Amendment. The district court denied the
motion to suppress, and Duguay was convicted. On appeal, the Seventh Circuit reversed. The

court gave "two independent reasons" for so holding. Duguay, 93 F.3d at 351. One of them—
that the police did not articulate a constitutionally legitimate rationale for impounding Duguay's
car—forms the basis of Plaintiffs' argument in this case. The detective who decided to impound
the car testified that the police department

or this circuit has previously held that conduct analogous to the present case violates the right at
issue. Leiser, 933 F.3d at 702 (citation omitted) (emphasis added).
8
tow[ed] vehicles after the person in control of the vehicle or the owner is arrested
. . . for the protection of the owner of the vehicle and for the liability purpose of
the Alton Police Department. We're not about to leave a vehicle parked on Dooley
Drive, especially after we have arrested the occupant of it. The vehicle could be
vandalized, stolen, a number of things, in which case the Alton Police Department
would be liable for the condition of the vehicle.

Id. at 352. Another detective testified that "if a person is arrested in a vehicle, we tow the
vehicle." Id. The court found that "while protection of the arrestee's property and municipal
liability are both valid reasons to conduct an inventory after a legal impoundment, they do not
establish the a priori legitimacy of the seizure." Id.
First, the court noted that "[t]he police do not owe a duty to the general public to remove
vulnerable automobiles from high-crime neighborhoods" and, "[s]imilarly, the police owe no
duty to incarcerated persons to protect personal property from private injury." Id. at 352-53.
Further, the court noted that since "[t]he state owes no legal duty to protect things outside its
custody from private injury" and "there is no tort for omissions by state actors, the assertion of
custody over Duguay's automobile could only increase the risk of liability." Id. at 353. Plaintiffs
rely on the next passage in the opinion, which reads as follows:
Furthermore, impoundment based solely on an arrestee's status as a driver, owner,
or passenger is irrational and inconsistent with "caretaking" functions. Under
either Detective Waldrup or Detective Adams' policies, towing is required any
time the arrestee is carted off to jail, regardless of whether another person could
have removed the car and readily eliminated any traffic congestion, parking
violation, or road hazard.

Duguay's car was impounded after his arrest, despite the fact that Gloria Vaughn
had driven the car, had possession of the keys, and was prepared to remove the
car from the street. There was unrefuted evidence that Duguay's brother William
Coles, who is another son of the title owner, was also present at the time of the
arrest.

The touchstone of Fourth Amendment analysis is “reasonableness.” See,
e.g., Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d
297 (1991). The policy of impounding the car without regard to whether the
defendant can provide for its removal is patently unreasonable if the ostensible
9
purpose for impoundment is for the "caretaking" of the streets. While it is
eminently sensible not to release an automobile to the compatriots of a suspected
criminal in the course of a criminal investigation, if the purpose of impoundment
is not investigative, and in the absence of probable cause, we do not see what
purpose denying possession of the car to a passenger, a girlfriend, or a family
member could possibly serve. See, e.g., United States v. Pappas, 735 F.2d 1232
(10th Cir. 1984).

The decision to impound an automobile, unless it is supported by probable cause
of criminal activity, is only valid if the arrestee is otherwise unable to provide for
the speedy and efficient removal of the car from public thoroughfares or parking
lots.

Id. (internal record citation omitted).
C. Analysis
Plaintiffs' entire argument in response to Defendants' qualified immunity argument is that
Duguay clearly established that Defendants were "required to allow an on scene licensed driver
[Robinson] to simply move the vehicle" instead of having it towed, and that the failure to do so
violated the Fourth Amendment. [Dkt. 72 at 13.] Certainly some of the broad language in
Duguay, quoted above, supports Plaintiffs' Fourth Amendment claims if it is read in isolation.
However, there are key differences between the facts of this case and the facts of Duguay that
lead the Court to conclude that Duguay did not, as Plaintiffs argue, clearly establish that it was
constitutionally impermissible to have the Cadillac towed under the circumstances.
As an initial matter, the Court notes that, while Plaintiffs assert in their Second Amended
Complaint that both the search and the seizure violated the Fourth Amendment, [Dkt. 25 at 8],
Plaintiffs make no specific argument with regard to the search itself in response to Defendants'
motion for summary judgment. Indeed, their sole argument regarding their Fourth Amendment
claims in their response brief is the following:
As Plaintiffs explained in their Brief in Support of Their Motion for Partial
Summary Judgment, Dkt. 72, they are entitled to judgment as a matter of law on
their Fourth Amendment claims because Officer Smith’s impoundment of their
10
vehicle was unreasonable given that he refused to allow an on-scene licensed
driver to simply move the car a required by Ind. Code § 9-21-16-3,8 IMPD
General Order 7.3,9 and United States v. Duguay, 93 F.3d 346 (7th Cir. 1996).

[Dkt. 74 at 3-4] (footnotes added).10 In the referenced brief, Plaintiffs argue that "Officer
Smith’s unlawful seizure of the Cadillac renders the subsequent search unreasonable under the
Fourth Amendment." [Dkt. 72 at 2.]

8 Indiana Code § 9-21-16-3 provides:
Whenever a police officer finds a vehicle standing upon a highway in violation of
this chapter, the officer may require the person driving the vehicle or other person
in charge of the vehicle to move the vehicle to a position off the paved, improved,
or main traveled part of the highway. If:

(1) a person directed by an officer fails or refuses to move the vehicle; or
(2) the vehicle is unattended;

the officer may provide for the removal of the vehicle to the nearest available
garage or other place of safety.
It is clear that this statute does not, as Plaintiffs suggest, set out the only circumstances under
which an officer may have an improperly parked vehicle towed. For example, imagine a
scenario in which the person driving the vehicle does not have a valid driver's license. Clearly
the officer is not required to choose between directing an unlicensed driver to move the vehicle
and leaving it illegally (and dangerously) parked.
9 Plaintiffs point to a provision in IMPD General Order 7.3 that states that "[i]f a properly
licensed owner or operator of a vehicle that is to be towed arrives on the scene of the violation
prior to the vehicle being removed," the vehicle shall be released to the owner or operator unless
certain exceptions apply. Hardiman was not a properly licensed owner of the Cadillac, but he
argues that Robinson was an "operator" of the vehicle.
10 The Court notes that even assuming that Plaintiffs are correct that the cited statute and policy
were violated by the towing of the Cadillac under the circumstances—something the Court is far
from convinced of—that is irrelevant to the Fourth Amendment analysis, because
§ 1983 "protects plaintiffs from constitutional violations, not violations
of state laws or, in this case, departmental regulations and police practices." Scott
v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). Policies and procedures do not
shed light on the reasonableness of an officer's behavior because, "even if they
could be practicably assessed by a judge, [such policies] vary from place to place
and from time to time," and so "[w]e cannot accept that the search and seizure
11
Plaintiffs' argument ignores that fact that the decision to impound the Cadillac was made,
and the search of the vehicle was conducted (at least in large part), prior to the arrival of
Hardiman and Robinson at the scene. "The authority of police to seize and remove from the
streets vehicles impeding traffic or threatening public safety and convenience is beyond
challenge." South Dakota v. Opperman, 428 U.S. 364, 369 (1976). Plaintiffs do not dispute that,
at the time Smith made the decision to impound the Cadillac, he had the authority to do so
because it was parked illegally and Plaintiffs were not present. In addition, "[s]earches

conducted by the police prior to towing a car are 'lawful if conducted pursuant to standard police
procedures aimed at protecting the owner's property—and protecting the police from the owner's
charging them with having stolen, lost, or damaged his property.'" United States v. Cherry, 436
F.3d 769, 772 (7th Cir. 2006) (quoting United States v. Pittman, 411 F.3d 813, 817 (7th Cir.
2005)). Plaintiffs do not argue that Defendants failed to follow standard police procedures in
conducting the search; their assertion that the search of the Cadillac violated the Fourth
Amendment is premised entirely on their argument that the towing of the Cadillac was
unconstitutional. Indeed, Plaintiffs' entire Fourth Amendment argument is premised on the
presence of a licensed driver who could move the Cadillac; they point to no precedent that

protections of the Fourth Amendment are so variable." Whren v. United States,
517 U.S. 806, 815, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Est. of Biegert by Biegert v. Molitor, 968 F.3d 693, 699 (7th Cir. 2020). Conversely, to the
extent that Defendants complied with IMPD policy in deciding to tow the Cadillac, "that fact is
important, [but] it is not dispositive for purposes of the Fourth Amendment. The existence of a
police policy, city ordinance, or state law alone does not render a particular search or seizure
reasonable or otherwise immune from scrutiny under the Fourth Amendment." United States v.
Cartwright, 630 F.3d 610, 614 (7th Cir. 2010) (citations omitted).
12
suggests, let alone clearly establishes, that any actions that were taken by Defendants prior to
Robinson's arrival on the scene violated the Fourth Amendment.
Indeed, that is one of the facts that distinguishes this case from Duguay. In Duguay, the
decision to tow and impound the vehicle was made in spite of the fact that both the presumed
owner of the vehicle and the woman who had been driving the vehicle were present. In addition,
there is no dispute that the Cadillac was parked illegally and qualified as a public nuisance under
the applicable ordinances and that Smith made the decision to have it towed because of that fact,

while in Duguay the vehicle was not parked illegally and the officers gave no valid reason to
have the vehicle towed, basing their decision only on the fact that the owner had been arrested
and it was parked in a high crime area.
Most importantly, in Duguay the officers did not doubt Duguay's authority over the car,11
while in this case, at the time Hardiman asked that Robinson be permitted to move the Cadillac,
Defendants knew that Hardiman was not the registered owner of the car; indeed, they knew that
Hardiman was not even a licensed driver. The Cadillac was registered to Houston, whose
address—at least according to the vehicle registration—was several miles away from where the
Cadillac was parked.12 Defendant Smith explains his refusal to permit Robinson to move the
vehicle as follows:

11 It appears that Duguay's father actually held the title to the vehicle. See Duguay, 93 F.3d at
352 (noting that "Duguay was assumed to be the owner of the car—a proposition which was
hotly disputed at the suppression hearing); id. at 353 (noting that "Duguay's brother William
Coles, who is another son of the title owner, was also present at the time of the arrest").
However, the officers "associated" the vehicle with Duguay and did not base their decision to
tow the vehicle on the fact that Duguay was not the titled owner. Therefore, the Seventh Circuit
had no occasion in Duguay to consider the type of situation presented in this case.
12 Defendants clearly were not required to wait for Houston to arrive on the scene to move the
Cadillac. See Cartwright, 630 F.3d at 615 ("The Fourth Amendment does not require that the
police offer these sorts of alternatives to impoundment.") (citing Colorado v. Bertine, 479 U.S.
13
Hardiman did not have a license and was not on the vehicle’s registration, so he
could not move the vehicle or give permission for anyone to move it, as it is not
his vehicle. I can’t release it to someone who isn’t on the registration, without the
owner there giving permission. Then the owner could report it stolen. This is
department policy.

[Dkt. 69-1 at 3.] Given this material difference between the facts in Duguay and the facts in this
case, the Court finds that Duguay does not dictate a finding that the Defendants' refusal to permit
Robinson to move the Cadillac instead of having it impounded violated the Fourth Amendment.
In so holding, the Court again recognizes that there are statements in the Duguay opinion
that read as if they are establishing a broad rule that arguably would apply to this case. However,
the Supreme Court has long held that such broad rules are not appropriate in the Fourth
Amendment context, instead holding
that the "touchstone of the Fourth Amendment is reasonableness." Florida v.
Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991).
Reasonableness, in turn, is measured in objective terms by examining the totality
of the circumstances. In applying this test we have consistently eschewed bright-
line rules, instead emphasizing the fact-specific nature of the reasonableness
inquiry. Thus, in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983), we expressly disavowed any "litmus-paper test" or single "sentence or . .
. paragraph . . . rule," in recognition of the "endless variations in the facts and
circumstances" implicating the Fourth Amendment. Id., at 506, 103 S.Ct., at
1329. Then, in Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100
L.Ed.2d 565 (1988), when both parties urged "bright-line rule[s] applicable to all
investigatory pursuits," we rejected both proposed rules as contrary to our
“traditional contextual approach.” Id., at 572-573, 108 S.Ct., at 1978-1979. And
again, in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389
(1991), when the Florida Supreme Court adopted a per se rule that questioning
aboard a bus always constitutes a seizure, we reversed, reiterating that the proper
inquiry necessitates a consideration of “all the circumstances surrounding the
encounter.” Id., at 439, 111 S.Ct., at 2389.

367, 373-74 (1987) (holding that the police need not give a motorist "an opportunity to make
alternative arrangements" that avoid impoundment and inventory) and United States v. Clinton,
591 F.3d 968, 972 (7th Cir.) ("That Clinton's girlfriend, the owner of the car, could have been
called to take possession of the car, is irrelevant.")). Plaintiffs do not argue otherwise.
14
Ohio v. Robinette, 519 U.S. 33, 39 (1996). Given the Supreme Court's approach, the Court
rejects Plaintiffs' argument that Duguay established a rule broad enough to encompass the
specific circumstances faced by Defendants in this case.13
"A Government official's conduct violates clearly established law when, at the time of the
challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable
official would [have understood] that what he is doing violates that right.'" Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

"[E]xisting precedent must have placed the statutory or constitutional question beyond debate."
Id. (citations omitted). Plaintiffs have failed to demonstrate that, given all of the relevant facts
known to Defendants, existing precedent placed "beyond debate" the question of whether having
the Cadillac towed rather than permitting Robinson to move it violated the Fourth Amendment,
given that Hardiman was not a licensed driver, neither Hardiman nor Robinson were the
registered owners of the vehicle, and Defendants had not observed either operating the vehicle.
Accordingly, the Court finds that Defendants14 are entitled to qualified immunity on Plaintiffs'
Fourth Amendment claims and therefore are entitled to summary judgment on those claims.

13 The Court notes that Judge Posner recognized the breadth of the relevant language in Duguay
in his dissent in Cherry, 436 F.3d at 778 ("Granted, we may have gone too far when we said
in [Duguay] that 'the decision to impound an automobile, unless it is supported by probable
cause of criminal activity, is only valid if the arrestee is otherwise unable to provide for the
speedy and efficient removal of the car from public thoroughfares or parking lots.'").
14 The Court has referred generally to "Defendants" throughout this discussion. However, as
noted above, no federal claim has been asserted against Defendant the Chief of the Indianapolis
Metropolitan Police Department. In addition, Defendants argue that neither Defendant
McWhorter nor Defendant Bellows were "personally involved with the decision to impound the
vehicle, so they cannot be liable for Fourth Amendment seizure." [Dkt. 70 at 10.] The Court
need not address this argument—which Plaintiffs do not respond to—in light of the Court's
resolution of the qualified immunity issue in Defendants' favor.
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IV. State Law Claims
Defendants also move for summary judgment on Plaintiffs' remaining claims, all of
which are premised on state law. The Court's jurisdiction over Plaintiffs' state law claims is
based on 28 U.S.C. § 1367, which provides for the exercise of supplemental jurisdiction over
claims based on state law that are closely related to the federal claims in a case. However,
"[w]hen all federal claims in a suit in federal court are dismissed before trial, the presumption is
that the court will relinquish federal jurisdiction over any supplemental state-law claims." RWJ

Mgmt. Co. v. BP Products N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (citation omitted); see
also Coleman v. City of Peoria, Illinois, 925 F.3d 336, 352 (7th Cir. 2019) ("Absent unusual
circumstances, district courts relinquish supplemental jurisdiction over pendent state law claims
if all claims within the court's original jurisdiction have been resolved before trial.") (citations
omitted). "The presumption is rebuttable, but it should not be lightly abandoned, as it is based
on a legitimate and substantial concern with minimizing federal intrusion into areas of purely
state law." RWJ Mgmt. Co., 672 F.3d at 479 (citations and internal quotation marks omitted).
The Seventh Circuit has
identified certain circumstances that may displace the presumption, namely: (1)
the statute of limitations has run on the pendent claim, precluding the filing of a
separate suit in state court; (2) substantial judicial resources have already been
committed, so that sending the case to another court will cause a substantial
duplication of effort; or (3) when it is absolutely clear how the pendent claims can
be decided.

Id. at 480 (citation omitted). None of those exceptions apply here. Accordingly, the Court
declines to exercise supplemental jurisdiction over the state law claims asserted in Plaintiffs’
Second Amended Complaint.

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V. Conclusion
For the reasons set forth above, Defendants' motion for summary judgment [Dkt. 68] is
GRANTED and Plaintiffs’ motion for partial summary judgment [Dkt. 71] is DENIED as to
Plaintiffs’ Fourth Amendment claims. The Court declines to exercise supplemental jurisdiction
over Plaintiffs’ state law claims; those claims are REMANDED to the Marion County Superior
Court. As required by 28 U.S.C. § 1447(c), the Clerk shall mail a certified copy of this
remand order to the Clerk of the Marion County Superior Court.
SO ORDERED.

Dated: 11 JUN 2021

4 J. ut
United StatesWMagistrate Judge
Southern District of Indiana

Distribution:
Service will be made electronically on all
ECF-registered counsel of record via email
generated by the Court's ECF system.

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10168006. Public record. Not legal advice.