Belcher, Ryan L. v. Norton, Vaughn

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3174

RYAN L. BELCHER and

DARAINA GLEASON,

Plaintiffs-Appellants,

v.

VAUGHN NORTON and

TOWN OF ORLAND,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 05 C 101—Theresa L. Springmann, Judge.

____________

ARGUED FEBRUARY 8, 2007—DECIDED AUGUST 15, 2007

____________

Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Ryan L. Belcher and Daraina

Gleason brought this action against Deputy Marshal

Vaughn Norton and the Town of Orland under 42 U.S.C.

§ 1983. They alleged that they were subject to an unlaw-

ful seizure in violation of the Fourth Amendment to the

Constitution of the United States, as made applicable to the

states by the Fourteenth Amendment. They also alleged

that their rights to procedural and substantive due process

under the Fourteenth Amendment were violated. They

2 No. 06-3174

originally filed a complaint in state court, but the case

subsequently was removed to the United States District

Court for the Northern District of Indiana. The district

court granted the defendants’ motion for summary judg-

ment.1 Mr. Belcher and Ms. Gleason timely appealed. For

the reasons set forth in this opinion, we affirm in part

and reverse in part the judgment of the district court.

I

BACKGROUND

A.

Ms. Gleason was driving on the Indiana Toll Road with

her fiancé,2 Mr. Belcher, in her 1998 Plymouth Voyager

minivan. Ms. Gleason and Mr. Belcher are African-Ameri-

can. While the couple was driving along the Toll Road, the

minivan’s transmission failed, and they had to stop along

the side of the road. Ms. Gleason got a ride to Fort Wayne

from a passing motorist while Mr. Belcher remained in the

van. An Indiana state trooper patrolling along the Toll

Road came upon the stopped vehicle and asked Mr.

Belcher why the minivan was stopped along the berm of

the road. The officer subsequently arrested Mr. Belcher for

driving without a license and ordered the van towed to

1

The district court dismissed the plaintiffs’ claims under 42

U.S.C. §§ 1981, 1982 and 1985. The plaintiffs did not appeal these

dismissals; therefore, these claims are not before this court.

2

Ms. Gleason and Mr. Belcher have since married, and Ms.

Gleason has taken her husband’s last name. Because the briefs

refer to Ms. Gleason by her maiden name, we also shall refer

to her in the same manner throughout this opinion.

No. 06-3174 3

Bill’s Professional Towing (“Bill’s Towing”) in Orland,

Indiana. The van was impounded at that location.

Several days later, Ms. Gleason and Mr. Belcher went to

Bill’s Towing to retrieve some personal belongings that

they had left in the van. They spoke with the owner and

operator, Wilburn McClanahan, about retrieving certain

court documents and other personal items from the van,

and they were directed to the tow yard. Once at the tow

yard, McClanahan informed the couple that they were

not allowed to leave the premises until either the towing

and impoundment fees were paid or the title was signed

over to Bill’s Towing. Mr. Belcher proceeded to remove a

variety of items from the van; McClanahan insisted that the

couple was permitted to remove only court documents.

When Mr. Belcher began removing a radio from the

minivan, McClanahan inquired as to whether the couple

was going to pay the storage and towing fee. Mr. Belcher

stated that he would pay those charges, but that he did not

have the money with him. He requested to use the phone

to call his mother in order to make payment arrangements.

McClanahan did not allow Mr. Belcher use of the phone

and further stated that, because the plaintiffs had removed

property from the van, they were responsible for im-

mediate payment. The situation escalated into a heated

debate, and McClanahan called the police.

Almost immediately thereafter, Vaughn Norton, the

Acting Marshal for the Town of Orland, arrived on the

scene. By that time a group of four Caucasian males,

employees of Bill’s Towing, had gathered and would not

permit Mr. Belcher and Ms. Gleason to leave the premises

until they either paid the impoundment fees or signed the

vehicle’s title over to Bill’s Towing. The plaintiffs requested

that a state trooper be called to the scene, but Deputy

4 No. 06-3174

Marshal Norton refused, stating, “ ‘there’s no need to call

a State Trooper, I am the law.’” R.29 at 3.

Mr. Belcher and Ms. Gleason attempted to walk from the

van to the entrance of the towing yard. Deputy Marshal

Norton repeated that the two plaintiffs could not leave

until they had signed the van’s title over to Bill’s Towing.

The plaintiffs got in their car and attempted to leave, but

were blocked by a red city truck and a Bill’s Towing truck.

The plaintiffs then got out of the car. At that point Deputy

Marshal Norton threatened Mr. Belcher with arrest for

disorderly conduct if he did not sign over title of the

vehicle. Mr. Belcher then asked to see Deputy Marshal

Norton’s badge, and, for the first time, Deputy Marshal

Norton produced it. Mr. Belcher told Deputy Marshal

Norton that he could not “make” them sign anything;

Deputy Marshal Norton replied: “ ‘[E]ither sign the title

over or you will be arrested for disorderly conduct.’ ” Id.

at 4.

Mr. Belcher again refused to sign over the minivan’s

title, and Deputy Marshal Norton went over to the red

truck, came back holding a pair of handcuffs and walked

towards Mr. Belcher as if to place him under arrest. Deputy

Marshal Norton then stated that he was “ ‘calling for back-

up.’ ” Id. He again threatened Mr. Belcher with arrest if

Mr. Belcher continued to refuse to sign the title over to

Bill’s Towing. Mr. Belcher continued to refuse to sign. Ms.

Gleason began crying. Deputy Marshal Norton then asked

Ms. Gleason to sign over the title, and she complied. The

plaintiffs immediately proceeded to the local sheriff’s

department to file a complaint against Deputy Marshal

Norton, but were told there were no grounds upon

which to file such a complaint.

No. 06-3174 5

The couple subsequently filed this action. Their § 1983

claim named Deputy Marshal Norton and the Town of

Orland as defendants. It alleged that the defendants’

actions had subjected them to an illegal seizure and had

violated their procedural and substantive due process

rights under the Fourteenth Amendment.

B.

The district court granted the defendants’ motion for

summary judgment on all counts. The court first analyzed

the plaintiffs’ § 1983 claims of unlawful seizure under the

Fourth Amendment. The court determined that Mr. Belcher

and Ms. Gleason had been “seized” as that term is em-

ployed in Fourth Amendment jurisprudence. The court

then considered whether this seizure was unreasonable.

It stated that

a reasonable officer would be justified in believing that

[Mr. Belcher] was not entitled to take property from the

vehicle and had committed a criminal offense. [Ms.]

Gleason likewise participated in this unlawful conduct.

Under these circumstances, [Deputy Marshal] Norton’s

refusal to let them leave the towing yard was not

unreasonable.

R.75 at 11. The court concluded that Deputy Marshal

Norton had probable cause to arrest the plaintiffs for theft

or criminal conversion. Because the seizure was not

unreasonable under the circumstances, the district court

concluded that no violation of the Fourteenth Amend-

ment had occurred.

The district court then proceeded to analyze the plain-

tiffs’ § 1983 procedural due process claim. The court first

6 No. 06-3174

discussed whether the plaintiffs had a property interest

in the van. The court concluded that, even if Bill’s Towing

had a lien on the vehicle, Ms. Gleason nevertheless re-

tained a property interest in the minivan and, therefore,

was entitled to some process in connection with the

deprivation of this property. The district court further

ruled that the property deprivation was a result of random

and unauthorized action rather than an established state

procedure. Therefore, the court continued, the plaintiffs’

federal due process claim turned on the availability of an

adequate post-deprivation procedure. The defendants had

urged that the Indiana Tort Claims Act (“ITCA”) afforded

the plaintiffs an adequate state law remedy. The plaintiffs

had countered that the ITCA did not provide an adequate

remedy because the law enforcement immunity provision

would insulate Deputy Marshal Norton from liability.

The district court determined that the ITCA’s immunity

provision would not apply because Deputy Marshal

Norton’s actions did not constitute the enforcement of law.

Finally, the district court addressed the plaintiffs’

substantive due process claim. The district court ruled

that Ms. Gleason had not pointed to a separate constitu-

tional violation necessary to support a substantive due

process claim; further, because the court had concluded,

in the context of the procedural due process claim, that

state law remedies were adequate, Ms. Gleason could

not state a substantive due process claim.

II

DISCUSSION

We review a district court’s grant or denial of summary

judgment de novo. Magin v. Monsanto Co., 420 F.3d 679, 686

No. 06-3174 7

(7th Cir. 2005). All facts and reasonable inferences must

be construed in favor of the non-moving party. Id. Our

role is not to evaluate the weight of the evidence, to

judge the credibility of witnesses or to determine the

ultimate truth of the matter, but rather to determine

whether there exists a genuine issue of triable fact. Ander-

son v. Liberty Lobby, 477 U.S. 242, 249-50 (1986). Sum-

mary judgment is proper if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as matter of law.” Magin, 420 F.3d

at 686 (citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986)).

The moving party bears the initial burden of demonstrat-

ing that these requirements have been met and may

discharge this responsibility by showing “that there is an

absence of evidence to support the non-moving party’s

case.” Celotex, 477 U.S. at 323. In order to overcome a

motion for summary judgment, the non-moving party

must come forward with specific facts demonstrating

that there is a genuine issue for trial. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However,

the existence of a mere scintilla of evidence is not suf-

ficient to fulfill this requirement; the non-moving party

must show that there is evidence upon which a jury

reasonably could find for the plaintiff. Anderson, 477 U.S. at

251-52. “The court should neither ‘look the other way’ to

ignore genuine issues of material fact, nor ‘strain to find’

material fact issues where there are none.” Patrick v. Jasper,

901 F.2d 561, 565 (7th Cir. 1990) (internal citations omitted).

8 No. 06-3174

A.

The district court determined that the plaintiffs had been

“seized” for purposes of the Fourth Amendment, but also

determined this seizure had been reasonable. Conse-

quently, ruled the district court, there had been no Fourth

Amendment violation. The plaintiffs submit that Deputy

Marshal Norton did not have probable cause to arrest

Mr. Belcher and Ms. Gleason for theft or criminal con-

version and that, therefore, the seizure was not reasonable.

In order to establish a violation of the Fourth Amendment,

the plaintiffs must establish that (1) Deputy Marshal

Norton’s conduct constituted a “seizure” and (2) the

seizure was unreasonable. See Donovan v. City of Milwaukee,

17 F.3d 944, 948 (7th Cir. 1994); see also Kernats v. O’Sullivan,

35 F.3d 1171, 1177 (7th Cir. 1994).

1.

In order to establish that Deputy Marshal Norton’s

actions constituted a “seizure,” the plaintiffs must demon-

strate, from all the circumstances surrounding the incident,

that a reasonable person in such a situation would have

believed that he was not free to leave. United States v.

Mendenhall, 446 U.S. 544, 554 (1980). The plaintiffs must

show that they were touched physically by the police or

that they yielded to a show of authority. California v. Hodari

D., 499 U.S. 621, 625-26 (1991). The governmental termina-

tion of freedom of movement must be intentional. Donovan,

17 F.3d at 948.

Upon examination of the record, we believe that the

district court correctly concluded that the plaintiffs were

seized within the meaning of the Fourth Amendment. The

record makes clear that Deputy Marshal Norton repeatedly

No. 06-3174 9

informed Mr. Belcher that he could not leave the towing

yard unless and until he signed over the title to the van. In

addition, Deputy Marshal Norton told Mr. Belcher he could

be arrested for disorderly conduct if he refused to sign over

the vehicle. Simply stated, the Deputy Marshal made it

very clear that he intended to prevent Mr. Belcher and Ms.

Gleason from leaving. The officer clearly asserted his

authority in a way that the plaintiffs reasonably

could construe as a declaration that they were not free to

leave the tow yard. Such a declaration by a police officer

is sufficient to constitute a “seizure” for purposes of the

Fourth Amendment.3

2.

In order to constitute a Fourth Amendment violation,

however, a governmental seizure must be unreasonable.

See Donovan, 17 F.3d at 949. The “test of reasonableness

under the Fourth Amendment is not capable of precise

definition or mechanical application . . . [it] requires careful

attention to the facts and circumstances of each particular

case.” Id. (internal citations and quotation marks omitted).

To determine whether a particular search is unreasonable,

we must balance “the extent of the intrusion against the

need for it.” Id. (internal citations omitted).

3

We believe the record establishes that, even if some of Deputy

Marshal Norton’s remarks were directed principally toward

Mr. Belcher, Ms. Gleason reasonably could have understood

that her freedom of movement also was restricted. See Brendlin

v. California, 127 S. Ct. 2400, 2407-08 (2007) (holding that a

vehicle’s passenger had been seized and was entitled to chal-

lenge the traffic stop). Indeed, since the van was titled in her

name, she alone had the power to transfer ownership.

10 No. 06-3174

We believe that the plaintiffs have presented sufficient

factual issues to raise a very serious question about the

reasonableness of the seizure. The record before us demon-

strates, at the very least, that a genuine issue of triable

fact exists as to whether Deputy Marshal Norton had

probable cause to arrest the plaintiffs for theft or crim-

inal conversion. The defendants characterize the entire

incident as an attempt on the part of the plaintiffs to

“dump” the van on the owner of the towing business. The

plaintiffs, on the other hand, insist that they simply in-

tended to retrieve legal papers and personal belongings

from the van. Whether the Deputy Marshal had probable

cause to effect an arrest is measured by an objective

standard: Would a police officer in his situation reasonably

believe that a criminal offense had been, or was being,

committed. United States v. Reis, 906 F.2d 284, 289 (7th Cir.

1990).

Deputy Marshal Norton certainly should have known

that the lien statute, I.C. § 9-22-5-15, gave Bill’s Towing

a lien on the vehicle but not on its contents. The statute

provides:

(b) An individual, a firm, a partnership, a limited

liability company, or a corporation that provides

towing services for a motor vehicle, trailer, semitrailer,

or recreational vehicle at the request of:

(1) the person who owns the motor vehicle, trailer,

semitrailer, or recreational vehicle; or

(2) an individual, a firm, a partnership, a limited

liability company, or a corporation on whose

property an abandoned motor vehicle, trailer,

semitrailer, or recreational vehicle is located;

has a lien on the vehicle for the reasonable value of the

charges for the towing services and other related costs.

No. 06-3174 11

I.C. § 9-22-5-15(b).4 This language clearly limits the lien to

the vehicle itself, not its contents.

The defendants also assert that, because Mr. Belcher

attempted to remove a radio from the van, he was dimin-

ishing the value of the lien on the van. However, the record

does not establish with any clarity whether the radio was

portable or permanently affixed to the vehicle.5 There is,

at the very least, a genuine issue of triable fact as to

whether Deputy Marshal Norton could have concluded

reasonably that he had probable cause to believe that the

plaintiffs had the requisite criminal mens rea to commit

the crime of criminal conversion, see Sam & Mac, Inc. v.

Treat, 783 N.E.2d 760, 766 (Ind. Ct. App. 2003), or the

specific intent necessary to commit the crime of theft, see

Mitchell v. State, 690 N.E.2d 1200, 1209 (Ind. Ct. App. 1998).

3.

The defendants further assert that, even if Deputy

Marshal Norton had violated the Fourth Amendment

rights of the plaintiffs, he is entitled to qualified immunity

because, at the time that he acted, it would not have been

clear to a reasonable police officer that his actions were in

4

This statutory provision has been amended and its new

provisions became effective on July 1, 2007. 2007 Ind. Legis.

Serv. P.L. 191-2007 (H.E.A. 1425). The amendments to the stat-

ute do not bear on the issues in this case.

5

The record does not demonstrate whether Mr. Belcher had to

use any tools to remove the radio from the van, nor does the

record clarify with any certainty how the radio was affixed to

the van. However, at his deposition, Mr. Belcher testified that

he was able to remove the radio from the van. R.59, Ex. 2 at 50.

12 No. 06-3174

violation of the law. As a general matter, the doctrine of

qualified immunity can shield a public official such as

Deputy Marshal Norton from civil liability if he can

demonstrate that he was performing a discretionary

function and that a reasonable law enforcement officer

would have believed that, at the time he acted, his actions

were within the bounds of the law. See Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194

(2001), the Court reaffirmed this basic principle and gave

additional guidance as to its implementation. “If the

law did not put the officer on notice that his conduct

would be clearly unlawful, summary judgment based on

qualified immunity is appropriate.” Id. at 202; see also

Malley v. Briggs, 475 U.S. 335, 341 (1986). Saucier also

articulates a two-part inquiry for addressing qualified

immunity claims. The first inquiry requires an examina-

tion of the record to determine whether the facts, taken

in the light most favorable to the plaintiffs, show that

the defendants violated a constitutional right. Id. at 201. If

such a constitutional violation is established, it then

becomes necessary to address whether the constitutional

right clearly was established at the time in question. Id. In

sum, qualified immunity protects an official from suit

and from liability for civil damages when, at the time of

the challenged action, the contours of the constitutional

right were not so defined as to put the official on notice

that his conduct violated the Constitution. See Hope v.

Pelzer, 536 U.S. 730, 739 (2002).

As we have noted earlier, if we construe the facts in the

light most favorable to the plaintiffs, there is a genuine

issue of triable fact as to whether Deputy Marshal Norton

violated the Fourth Amendment rights of the plaintiffs.

Moreover, accepting such a construction of the facts, we

No. 06-3174 13

think that it is clear that a reasonable police officer, act-

ing at the time that Deputy Marshal Norton acted, would

have known that he lacked probable cause to arrest the

plaintiffs for theft or for criminal conversion. In short, on

this record, qualified immunity is not available to Deputy

Marshal Norton.

B.

We now examine whether the district court erred in

granting summary judgment to the defendants on the

plaintiffs’ procedural and substantive due process claims.

Both of these allegations focus on the defendants’ success-

ful efforts to induce Ms. Gleason to transfer her owner-

ship of the van to Bill’s Towing.

1.

In order to maintain successfully a procedural due

process claim, the plaintiffs must show that they were

deprived of a constitutionally protected interest in life,

liberty or property. If the plaintiffs can establish such a

loss, we then must determine what process was due

regarding that loss. Porter v. DiBlasio, 93 F.3d 301, 305 (7th

Cir. 1996).

There is no dispute that Bill’s Towing had a lien on

Ms. Gleason’s van for the towing and storage charges

incurred by the plaintiffs when the vehicle was removed

from the Indiana Toll Road. See I.C. § 9-22-5-15(b). How-

ever, the existence of this lien did not eliminate Ms.

Gleason’s property interest in her van. By paying the fee

for the towing and storage services, Ms. Gleason could

have satisfied the lien, and Bill’s Towing would have been

14 No. 06-3174

under a statutory duty to release the van to her. I.C. § 9-22-

5-15(c). Therefore, because she still had a property inter-

est in her van, Ms. Gleason had a right to some process,

before her property interest was terminated involuntarily.

In Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled

in part on other grounds, Daniels v. Williams, 474 U.S. 327

(1986), the Supreme Court of the United States held that

post-deprivation process sometimes may provide adequate

procedural protection for the deprivation of property

rights. Specifically, in Parratt, the Court countenanced two

situations in which post-deprivation process could be

appropriate: (1) where quick action is required on the part

of the state and (2) where providing any meaningful pre-

deprivation process is impracticable. Id. The Court fur-

ther clarified the second instance by stating that such a

situation would occur where the tortious loss of property

is due to “a random and unauthorized act by a state

employee.” Id. at 541. More specifically, if the property

deprivation occurs as a result of a random unauthorized

act, it does not constitute a violation of a litigant’s pro-

cedural due process rights where the state provides “a

meaningful post-deprivation remedy.” Easter House v.

Felder, 910 F.2d 1387, 1396 (7th Cir. 1990) (internal citations

omitted). Therefore, Deputy Marshal Norton’s depriving

Ms. Gleason of her vehicle does not amount to a depriva-

tion of her property in the constitutional sense if his act

was random and unauthorized and if there is an adequate

state law remedy that can provide her meaningful relief.

Reading the record in the light most favorable to the

plaintiffs, as we must in the procedural posture of this

case, there is little question that the actions attributed to

Deputy Marshal Norton must be considered random and

unauthorized. The State of Indiana has a statutory scheme

No. 06-3174 15

that regulates impounded and abandoned vehicles. Indiana

law provides the owner of an impounded vehicle twenty

days within which to claim the vehicle. I.C. § 9-13-2-1(6).

Therefore, the plaintiffs had approximately two additional

weeks to claim the van before it would be considered

abandoned under Indiana law. In short, Deputy Marshal

Norton’s actions did not comport with the statutory

procedure, and, therefore, his actions were random and

unauthorized for the purposes of Parratt.

We therefore must turn to the question of whether state

law affords the plaintiffs an adequate remedy. Indiana has

enacted the Indiana Tort Claims Act (“ITCA”). I.C. § 34-13-

3-1 et seq. We have held, in Hossman v. Spradlin, 812 F.2d

1019 (7th Cir. 1987), that, as a general rule, the ITCA

provides a “constitutionally adequate remedy to redress

property loss caused by a state officer.” Id. at 1023. Never-

theless, the plaintiffs submit that this general rule cannot

govern the situation before us because the ITCA con-

tains a law enforcement immunity provision that shields

state actors, acting within the scope of their employment,

who are engaged in the “adoption and enforcement of or

failure to adopt or enforce a law (including rules and

regulations), unless the act of enforcement constitutes

false arrest or false imprisonment.” I.C. § 34-13-3-3(8).6 In

6

Indiana courts have defined false imprisonment as “the

unlawful restraint upon one’s freedom of movement or the

deprivation of one’s liberty without consent.” Miller v. City of

Anderson, 777 N.E.2d 1100, 1104 (Ind. Ct. App. 2002). Indiana

courts have stated also that “[a] defendant may be liable for false

arrest when he or she arrests the plaintiff[s] in the absence of

probable cause to do so.” Id. The circumstances of this proce-

(continued...)

16 No. 06-3174

the plaintiffs’ view, Deputy Marshal Norton was “attempt-

ing to apply law enforcement procedures” and thus, the

ITCA’s law enforcement immunity provision applies.7

To resolve this issue, we must determine, as a threshold

matter, what constitutes an adequate state law remedy

for the purposes of procedural due process analysis. The

Supreme Court has made clear that, in order to constitute

an adequate remedy, the remedy provided by state law

need not be the same as that available under § 1983. See

Hudson, 468 U.S. at 535; Parratt, 451 U.S. at 544; Parrett v.

City of Connersville, Indiana, 737 F.2d 690, 697 (7th Cir. 1984).

Nevertheless, the relief afforded by the state remedy cannot

be “meaningless or non-existent.” Easter House, 910 F.2d at

1406; see also Hamlin v. Vaudenberg, 95 F.3d 580, 585 (7th Cir.

1996); Cronin v. Town of Amesbury, 81 F.3d 257, 260 (1st Cir.

1996) (per curiam); cf. Briscoe v. La Hue, 663 F.2d 713, 718

(7th Cir. 1981) (noting that common law immunities cannot

be imported wholesale into § 1983 analysis because the

6

(...continued)

dural due process claim do not involve false arrest or false

imprisonment under Indiana tort law. Therefore, these excep-

tions to the law enforcement immunity provision do not apply.

7

See, e.g., East Chicago Police Dep’t v. Bynum, 826 N.E.2d 22, 26

(Ind. Ct. App. 2005) (holding that police officers were not

entitled to immunity under the ITCA law enforcement immunity

provision where the officers violated their statutory duty to

drive with due regard for the safety of all individuals while

acting within the scope of their employment); City of Hammond

v. Reffitt, 789 N.E.2d 998, 1001 (Ind. Ct. App. 2003) (holding

police officers were entitled to immunity where the officers

decided not to arrest an intoxicated driver who subsequently

died of hypothermia in his vehicle).

No. 06-3174 17

purposes of the statute would be frustrated if state execu-

tive officials were afforded absolute immunity).

We now must analyze the ITCA in light of these princi-

ples to determine whether, in this case, the ITCA can be

considered an adequate remedy. In King v. Northwest

Security, Inc., 790 N.E.2d 474 (Ind. 2003), the Supreme

Court of Indiana analyzed this provision at some length.8

The court explained that the law enforcement immunity

provision “restricts the immunity to the adoption and

enforcement of laws that are within the assignment of the

governmental unit.” Id. at 482. The police are a “govern-

mental unit” within the meaning of the statute. Id. The

legislature, wrote the court, enacted the law enforce-

ment immunity provision to ensure that “a governmental

entity [would] be immune only for failing to adopt or

enforce a law that falls within the scope of the entity’s

purpose or operational power.” Id. at 483. Applying this

principle in King, the Supreme Court of Indiana deter-

mined that a school district was not “enforcing” a law

when addressing the matter of school security. Id.

The Supreme Court of Indiana also has addressed the

meaning of “enforcement” in the law enforcement immu-

nity provision. The court stated that “enforcement” should

8

The law enforcement immunity provision formerly was

codified at I.C. § 34-13-3-3(7). In 2001, the statute was amended

and this provision currently is found at § 34-13-3-3(8). See East

Chicago, 826 N.E.2d at 26 n.6 (noting the statutory amendment).

When the Supreme Court of Indiana decided King v. Northwest

Security, Inc., 790 N.E.2d 474 (Ind. 2003), the law enforcement

immunity provision was found at § 34-13-3-3(7), and therefore

that court references the provision using its then-current

codification.

18 No. 06-3174

be construed to extend beyond traditional law enforce-

ment activities, but that enforcement is “limited to those

activities in which a governmental entity or its employees

compel or attempt to compel the obedience of another to

laws, rules or regulations, or sanction or attempt to sanc-

tion a violation thereof.” Mullin v. Mun. City of South Bend,

639 N.E.2d 278, 283 (Ind. 1994).

In Minks v. Pina, 709 N.E.2d 379, 383 (Ind. Ct. App. 1999),

the Court of Appeals of Indiana determined that immunity

was proper when two police officers stopped an intoxi-

cated motorist and decided not to arrest or detain him

because it would have taken too much time to process the

required paperwork. The court held that, even though

the officers’ conduct was “egregious,” their actions fell

within the scope of enforcement or failure to enforce the

law, and therefore they were entitled to statutory immu-

nity. Id. at 382.

In light of this precedent, we think it clear that Deputy

Marshal Norton was acting within the scope of his em-

ployment and was enforcing the law.9 Therefore, he is

entitled to the protection of the law enforcement immunity

provision. Deputy Marshal Norton arrived on the scene

when called by McClanahan. While at the tow yard, he

clearly was acting as a police officer. He presented a badge

when asked and, at all times, acted in his capacity as

Deputy Marshal of the Town of Orland. Whether a trier of

fact eventually credits the account of the plaintiffs or the

account of Deputy Marshal Norton, the law enforcement

9

The district court reached a contrary conclusion in interpret-

ing Indiana law. It is of course our responsibility to assess

independently a question of state law. Salve Regina Coll. v.

Russell, 499 U.S. 225, 231 (1991).

No. 06-3174 19

immunity of the ITCA would provide the Deputy Marshal

with a shield against liability. Indiana courts explicitly

have accorded immunity to officers who exhibit “egregious

conduct.” Minks, 709 N.E.2d at 382. The decisions of the

Indiana courts make clear that the immunity provided by

this statutory shield “extends well beyond traditional law

enforcement activities.” Id. Indeed, the essence of Deputy

Marshal Norton’s defense is that he was attempting to

compel Mr. Belcher to obey the law. Therefore, he is

entitled to immunity under I.C. § 34-13-3-3(8).

Because we conclude that Deputy Marshal Norton is

entitled to the broad statutory immunity afforded by ITCA,

we also must conclude that the statute does not provide

an adequate state law remedy to the plaintiffs. Relegating

the plaintiffs to this state statutory scheme would deprive

them of any meaningful avenue to seek redress for the

deprivation that they claim to have suffered. Therefore,

we must conclude that the district court erred in granting

summary judgment in favor of the defendants on the

plaintiffs’ procedural due process claim.

2.

Finally, the plaintiffs urge that their substantive due

process rights were violated.10 The Supreme Court of the

10

The district court determined that the plaintiffs had waived

their substantive due process claim. Upon examination of the

record, we must conclude respectfully that the district court

erred in this determination. The plaintiffs contended in the

district court and on appeal that Deputy Marshal Norton’s

conduct deprived them of substantive due process because he

(continued...)

20 No. 06-3174

United States has made clear, and this court similarly has

cautioned, that the scope of substantive due process is very

limited. See, e.g., Tun v. Whitticker, 398 F.3d 899, 902 (7th

Cir. 2005) (citing Washington v. Glucksberg, 521 U.S. 702

(1997)). The Due Process Clause is intended as a “limitation

of the State’s power to act, not as a guarantee of certain

minimal levels of safety and security.” DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195

(1989).

We have stated that substantive due process, at its

essence, protects an individual from the exercise of govern-

mental power without a reasonable justification. See Tun,

398 F.3d at 902. In essence, it affords protection of the

individual against arbitrary action of government. Wolff v.

McDonnell, 418 U.S. 539, 558 (1974). Where the exercise of

government authority involves law enforcement officials,

the Supreme Court has stated that a plaintiff’s substan-

tive due process rights are violated where the alleged abuse

of government power “shocks the conscience.” Rochin v.

California, 342 U.S. 165, 172 (1952).

As this case comes to us, the parties offer two very

different characterizations of the situation that unfolded in

the tow yard. The plaintiffs submit that Deputy Marshal

Norton, relying on the police powers vested in him by

10

(...continued)

extorted the van from Ms. Gleason by threatening the plain-

tiffs with arrest if they failed to sign the van over to Bill’s

Towing. This use of governmental power, they contend, is the

sort of use of governmental power that shocks the conscience

under Rochin v. California, 342 U.S. 165, 172 (1952). In our view,

this argument was developed factually both in the plaintiffs’

brief before this court and in their brief before the district court.

No. 06-3174 21

virtue of the office he held, extorted the van from the

plaintiffs by threatening to use his power of arrest if they

did not comply. The defendants, on the other hand, sug-

gest that the plaintiffs were in the process of “dumping”

the van on the tow yard owner and that the Deputy

Marshal, suspecting that a crime was being committed, was

well within his rights as a police officer when he pointed

out the legal consequences of such an action to the plain-

tiffs. Because this case comes to us after the grant of

summary judgment to the defendants, we must construe

the facts in the light most favorable to the plaintiffs. Given

that constraint, we must conclude that a trier of fact would

be entitled to say that the Deputy Marshal’s actions, as

characterized by the plaintiffs, shock the conscience, as that

term is employed in modern substantive due process

analysis.

C.

The plaintiffs also urge that the Town of Orland is liable

for the alleged constitutional violations of the plaintiffs’

rights because Deputy Marshal Norton was a “final

policymaker” for the Town, and, therefore, municipal

liability should attach. See, e.g., Pembaur v. City of Cincinnati,

475 U.S. 469, 481 (1986) (“where action is directed by those

who establish governmental policy, the municipality is . . .

responsible”); see also Baxter by Baxter v. Vigo County Sch.

Corp., 26 F.3d 728, 735 (7th Cir. 1994) (“a single act or

decision of a final policymaker can establish municipal

policy”). However, a municipality may not be held

liable based upon the doctrine of respondeat superior.

Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691

(1978). We think it clear, on this record, that Deputy

Marshal Norton was not a final policymaker for the Town

22 No. 06-3174

of Orland. Therefore, the Town is not liable under 42

U.S.C. § 1983.

Conclusion

For the foregoing reasons, we affirm the district court’s

dismissal of the Town of Orland. We reverse the district

court’s dismissal of the Fourth Amendment and procedural

and substantive due process claims against the defendants

because, on this record, these claims present genuine

issues of triable fact. Accordingly, the judgment of the

district court is affirmed in part and reversed in part. The

plaintiffs may recover their costs from Deputy Marshal

Norton.

AFFIRMED in part and REVERSED in part

MANION, Circuit Judge, concurring in part and dissenting

in part. After Daraina Gleason’s vehicle broke down on

the Indiana Toll Road, the state police had it towed to

Bill’s Towing in Orland, Indiana. The vehicle at issue in

this case was a 1998 Plymouth Voyager minivan with

272,833 miles on its odometer and a failed transmission. It

was registered to Gleason, who received it as a gift from

the mother of her then-fiancé, Ryan Belcher. It is undis-

puted that the Bill’s Towing had a valid possessory inter-

est in the impounded minivan under Indiana’s lien statute.

A few days after the minivan was impounded, Gleason

and Belcher arrived at Bill’s Towing to retrieve some

No. 06-3174 23

personal items and possibly the minivan. The confrontation

at the tow yard between Belcher, Gleason, and the tow

yard employees began when Belcher and Gleason started

removing various items from the minivan. Despite Bill’s

Towing’s policy against removing items from impounded

vehicles, the tow yard’s owner, Wilburn McClanahan,

agreed to allow Belcher and Gleason to remove some

legal papers and their child’s medicine from the minivan.

Belcher and Gleason, however, decided to remove many

additional items. Gleason made several trips from the

minivan to her borrowed car carrying items that Belcher

had taken out of the minivan. In addition to the legal

papers, the baby medicine, and some tools (including a

heavy tire tool and jack), Belcher removed a radio that he

had installed in the minivan’s dashboard. The fact that

Belcher removed the installed radio along with his personal

belongings is of particular importance because Indiana’s

lien statute provided the tow yard with a lien on the

vehicle (i.e., the minivan), which includes all of the vehi-

cle’s fixtures, such as its tires, its hubcaps, and its installed

radio. Thus, when Belcher removed the minivan’s radio

and refused to return it, he violated the tow yard’s

possessory interest in the minivan.1

When a Bill’s Towing employee observed Belcher

removing the minivan’s radio, he called McClanahan,

who then confronted Belcher. McClanahan and Belcher

engaged in a heated discussion before McClanahan

called the police. The officer who responded was Deputy

Marshal Vaughn Norton. The Town of Orland employed

1

Although Bill’s Towing posted a rule prohibiting removal of

any personal property from impounded vehicles, that policy

was not enforceable under the Indiana lien statute.

24 No. 06-3174

Norton as its Street Superintendent, but he also was the

acting Town Marshal at that time because the regular

Town Marshal was deployed in Iraq. Norton also was not

wearing a police uniform that day because he was on duty

as Street Superintendent. The record indicates that

McClanahan told Norton that Belcher had removed the

minivan’s radio without permission. The parties dispute

whether Belcher became verbally abusive to Norton, but

they agree that once it was apparent that Belcher and

Gleason could not pay the costs necessary to recover the

minivan, Norton gave them two options for resolving the

standoff: (1) Gleason could sign over the minivan’s title

to Bill’s Towing; or (2) he would arrest Belcher for disor-

derly conduct. Those stark choices were incomplete. Under

Indiana’s lien statute, which gives a vehicle’s title

holder thirty days to recover an impounded vehicle, Ind.

Code § 9-22-5-15, Norton should have given Belcher and

Gleason an additional choice: return the radio and any

other fixtures that they had removed and leave the pre-

mises. That latter option would have enabled Belcher and

Gleason to make the minivan whole, preserved the tow

yard’s possessory interest in the vehicle under Indiana’s

lien statute, allowed Gleason to retain the title to her

minivan, and provided her with the remainder of her

statutorily mandated period to pay the towing and stor-

age fees and recover the minivan.2

2

The entire situation probably could have been resolved if

McClanahan would have allowed Belcher and Gleason to use

a telephone to call Belcher’s mother. Because the vehicle was a

gift to Gleason from Belcher’s mother, Gleason likely wanted

to consult with Belcher’s mother before signing over the title.

Both testified that if Belcher’s mother was not willing to put up

(continued...)

No. 06-3174 25

Accordingly, I concur with the court’s reasoning that

when construing the facts in the light most favorable to

Belcher and Gleason, there is a genuine issue of triable

facts as to whether Norton violated their Fourth Amend-

ment rights based on his “seizing” them during the con-

frontation without probable cause. Also at this point, based

on the facts contained in the record before the court,

qualified immunity is not available to Norton. I also concur

with the court’s conclusion that the district court erred in

granting summary judgment to Norton on Belcher and

Gleason’s procedural due process claim, because when

viewing the record in the light most favorable to Belcher

and Gleason, Norton’s failure to give them the third option

discussed above rendered his conduct random and unau-

thorized. Furthermore, I concur with the court’s reason-

ing regarding why Norton’s entitlement to immunity under

the Indiana Tort Claims Act resulted in an inadequate state

law remedy for Belcher and Gleason. Finally, I agree with

the court that the Town of Orland is not liable under 42

U.S.C. § 1983.

Where I disagree with the court is on its conclusion that,

when viewing the record in the light most favorable to

Belcher and Gleason, a reasonable trier of fact could

2

(...continued)

the money for the tow lot’s towing and storage charge (and

likely the additional cost for towing the disabled van to Fort

Wayne), Gleason willingly would sign over the title to the

minivan. Based on the monetary value of the inoperable minivan

vis-a-vis the towing and storage costs owing, a simple call to

Belcher’s mother probably would have resolved this situation

in the same way it ultimately played out, with Gleason signing

over the minivan’s title and without making a federal case

out of it.

26 No. 06-3174

conclude that Norton violated Belcher’s and Gleason’s

substantive due process rights. In this circuit, the Supreme

Court’s decision in United States v. Russell, 411 U.S. 423

(1973), “has been found to present ‘an extremely narrow

opportunity . . . to challenge government conduct.’ ” Kramer

v. Vill. of N. Fond du Lac, 384 F.3d 856, 865 (7th Cir. 2004)

(quoting United States v. Davis, 15 F.3d 1393, 1415 (7th Cir.

1994)). “The scope of substantive due process . . . is very

limited and protects plaintiffs only against arbitrary

government action that ‘shocks the conscience.’ ” Montgom-

ery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005) (citation

omitted); see also Bublitz v. Cottey, 327 F.3d 485, 491 (7th Cir.

2003) (“It is generally only deliberate action intended to

harm another that is the type of conduct targeted by the

Fourteenth Amendment: ‘[C]onduct intended to injure in

some way unjustifiable by any government interest is the

sort of official action most likely to rise to the conscience-

shocking level.’” (emphasis in original) (quoting County

of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (citations

omitted))). As we previously have stated, “[i]t is one thing

to say that officials acted badly, even tortiously, but—and

this is the essential point—it is quite another to say that

their actions rise to the level of a constitutional violation.”

Tun v. Whitticker, 398 F.3d 899, 903 (7th Cir. 2005). For that

reason, we have “declined to impose constitutional liability

in a number of situations in which we find the officials’

conduct abhorrent.” Id. (citing Bublitz v. Cottey, 327 F.3d 485

(7th Cir. 2003) (finding no substantive due process viola-

tion when police used a tire-deflation devise during a high-

speed chase which caused the target vehicle to lose control,

hit another vehicle, and kill two people); Schaefer v. Goch,

153 F.3d 793 (7th Cir. 1998) (finding no substantive due

process violation when officers shot a woman to death on

her own front steps during a standoff with the woman’s

No. 06-3174 27

husband)). While the record could, and very well may,

indicate that Norton acted improperly, nothing in the

record evinces that his behavior was abhorrent. Despite

Belcher’s and Gleason’s comments in their depositions that

“we might possibly be lynched,” and “I felt like I was going

to be lynched,” there is no evidence in the record even

remotely describing a physical threat. Norton did not have

a weapon. He did not use physical force or violence, did

not taunt or mock them, did not use racial or sexual

epitaphs, nor did he subject them to public ridicule.

Marshal Norton was summoned to resolve a heated

argument over property. When he warned Belcher that he

would be arrested, Norton also called for backup from his

County Sheriff’s office. Perhaps intervention by a uni-

formed, professional officer would have solved the prob-

lem, but Norton canceled his call for backup when Gleason

reluctantly signed over the title to the minivan to Bill’s

Towing. The whole process was unfortunately clumsy and

mishandled, but by no means shocking to the conscience.

Therefore, on the issue of substantive due process,

I respectfully dissent.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-15-07