Susan Bentz v. City of Kendallville

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3324

S USAN M. B ENTZ,

Plaintiff-Appellant,

v.

C ITY OF K ENDALLVILLE, M IKE M C C ANN,

L ANCE W ATERS, L. R ICHARDSON, and

D OUGLAS M. D AVIS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 07 CV 121—William C. Lee, Judge.

A RGUED M AY 11, 2009—D ECIDED A UGUST 14, 2009

Before C UDAHY, P OSNER, and K ANNE, Circuit Judges.

K ANNE, Circuit Judge. On May 3, 2006, officers of the

Kendallville Police Department entered the home of

Dr. Bernard Leonelli without a warrant, arrested him,

and searched his home for potential domestic violence

victims. Leonelli brought suit against the City of

2 No. 08-3324

Kendallville and individual police officers 1 alleging

various Indiana tort claims and violations of the Fourth

and Fourteenth Amendments under 42 U.S.C. § 1983.

The district court granted summary judgment to the

defendants. While this appeal was pending, Leonelli

passed away from causes unrelated to the lawsuit, and

Susan Bentz became his personal representative. The

city moved to dismiss the appeal, claiming that none of

Leonelli’s claims survived his death. Bentz, meanwhile,

moved that we certify the question of survival to the

Indiana Supreme Court. Because we find that Indiana

law establishes that Leonelli’s claims do not survive,

we grant the city’s motion to dismiss the appeal and deny

Bentz’s motion to certify questions of state law.

I. B ACKGROUND

On May 3, 2006, in response to two 911 calls reporting

a domestic dispute, the Kendallville Police Department

dispatched officers to the home of Dr. Bernard

Leonelli.2 Officer Douglas Davis approached the residence

in his patrol car and observed a large fire on the lawn. As

1

Because all of the defendants’ arguments are identical for

the purposes of this appeal, we refer to them collectively as

“the city.”

2

We provide only a brief summary of the underlying incident

because these facts are largely irrelevant to the survivability of

Leonelli’s claims. For a complete account of the facts in this

case, see Leonelli v. City of Kendallville, No. 1:07 CV 121, 2008

WL 3874701, at *2-4 (N.D. Ind. Aug. 15, 2008).

No. 08-3324 3

he got out of the patrol car, onlookers informed him

that a fight was occurring in the residence.

Davis approached the house, where Leonelli was stand-

ing on the front porch. Davis identified himself and

instructed Leonelli to come talk to him. Leonelli shook his

head, turned, and walked into the house. Davis continued

toward the door, but Leonelli kept walking away. Davis

then observed Leonelli reach for something that Davis

could not see, prompting him to enter the house and

arrest Leonelli.

Other officers arrived at the scene and searched the

residence for victims of domestic violence. Leonelli con-

tended that the officers went through several drawers in

his home and searched his computers, while the officers

claimed that they searched only areas where they

believed they might find a person.

Leonelli sued the city and the individual officers in-

volved in his arrest and search. His complaint alleged that

the defendants had violated his rights under the Fourth

and Fourteenth Amendments. See 42 U.S.C. § 1983. Specifi-

cally, Leonelli claimed that (1) his arrest was without

probable cause and constituted an unreasonable seizure,

and (2) the officers’ entry and search of his home

without a warrant was an unreasonable search and tres-

pass. Leonelli also raised several state tort claims, in-

cluding false arrest, malicious prosecution, and trespass.

The district court granted summary judgment to the

defendants, holding that they were immune from liability

under both federal and state law. Leonelli filed a notice

of appeal. He later died on September 28, 2008. Bentz,

4 No. 08-3324

Leonelli’s personal representative, continued to prosecute

this appeal on his behalf.

II. A NALYSIS

The city filed a motion to dismiss Bentz’s appeal, arguing

that Leonelli’s claims did not survive his death. After

concessions by the appellant, the only claims before us

are those brought under § 1983. That statute is silent on

the issue of survival, so 42 U.S.C. § 1988 directs us to

“look to the most closely analogous state law to deter-

mine survivability.” Bass ex rel. Lewis v. Wallenstein, 769

F.2d 1173, 1188 (7th Cir. 1985); see also Robertson v.

Wegmann, 436 U.S. 584, 588-91 (1978); Anderson v. Romero,

42 F.3d 1121, 1123 (7th Cir. 1994). When analyzing the

survivability of § 1983 claims, we therefore apply the

state survival statute unless it is inconsistent with

federal policy. Anderson, 42 F.3d at 1123. Bentz does not

claim that the application of state law in this case is

inhospitable to the purpose of § 1983 actions, so we

apply Indiana law in deciding whether Leonelli’s claims

survived. Robertson, 436 U.S. at 594.

In order to apply Indiana law, we must properly analo-

gize Leonelli’s § 1983 claims to the appropriate Indiana

torts. In doing so, we begin with the federal claim at

issue. Bass, 769 F.2d at 1188. We must first characterize

that claim and then decide which Indiana tort is the

most similar, without molding the constitutional claim

to fit within the contours of state law. Id. After arriving

at an appropriate analogy, we turn to the Indiana

No. 08-3324 5

survival statute to determine whether that claim should

survive. See Ind. Code § 34-9-3-1.

Bentz presents two Fourth Amendment claims on

Leonelli’s behalf. The first is an illegal seizure/false

arrest claim arising from the warrantless arrest. The

second is based on the allegedly unlawful entry and

“trespass” into Leonelli’s home. After considering the

elements required to establish each federal cause of

action, we hold that neither claim survives under

Indiana law.

A. Illegal Seizure/False Arrest

In his complaint, Leonelli averred that the police

lacked probable cause and that his arrest was therefore an

unreasonable seizure in violation of the Fourth Amend-

ment. The city argues that this claim is analogous to the

Indiana tort of false imprisonment, which does not

survive death.3 Bentz, meanwhile, contends that Leonelli’s

claim was similar to the distinct tort of unlawful arrest,

or that, in the alternative, Indiana law is unclear and

we should certify the question to the Indiana Supreme

Court. See 7th Cir. R. 52(a); Ind. R. App. P. 64 (providing

3

The Indiana survival statute provides a comprehensive list

of claims that do not survive death: (1) libel, (2) slander,

(3) malicious prosecution, (4) false imprisonment, (5) invasion

of privacy, and (6) personal injuries to the deceased party.

Ind. Code § 34-9-3-1. All other personal causes of action

survive and may be brought by the decedent’s representative.

See id.

6 No. 08-3324

that federal courts may certify a question of law to the

Indiana Supreme Court when it appears that the case

“presents an issue of state law that is determinative of

the case and on which there is no clear controlling

Indiana precedent”).

We begin by discussing the requirements for Leonelli’s

federal cause of action. To prevail under § 1983 for this

claim, Bentz must establish that the government’s

conduct constituted a seizure and that the seizure was

unreasonable. Bielanski v. County of Kane, 550 F.3d 632,

637 (7th Cir. 2008). Under the Fourth Amendment, a

person has been seized “ ‘only if, in view of all of the

circumstances surrounding the incident, a reasonable

person would have believed that he was not free to

leave.’ ” Tom v. Voida, 963 F.2d 952, 956-57 (7th Cir. 1992)

(quoting United States v. Mendenhall, 446 U.S. 544, 554

(1980)). We have also referred to a seizure for Fourth

Amendment purposes as “an intentional limitation of a

person’s freedom of movement.” Bielanski, 550 F.3d

at 637. Where an arrest occurs without probable cause,

the plaintiff may bring a claim for unreasonable seizure.

See A.M. v. Butler, 360 F.3d 787, 798 (7th Cir. 2004).

The standards for false imprisonment in Indiana

are remarkably similar. “Under Indiana law, false impris-

onment is defined as the unlawful restraint upon one’s

freedom of movement or the deprivation of one’s liberty

without consent.” Earles v. Perkins, 788 N.E.2d 1260, 1265

(Ind. Ct. App. 2003). As with the Fourth Amendment,

where the police arrest a suspect without probable

cause, they can be held liable for false imprisonment.

No. 08-3324 7

Miller v. City of Anderson, 777 N.E.2d 1100, 1104 (Ind. Ct.

App. 2002).

In other words, a plaintiff may establish both a § 1983

claim and an Indiana false imprisonment claim where

his freedom of movement was limited or restrained in

some way without probable cause. See Bielanski, 550 F.3d

at 637; Earles, 788 N.E.2d at 1265 (“[B]oth Indiana and

federal law require the court to determine if there was

probable cause for arrest . . . .”); Miller, 777 N.E.2d at 1104.

The elements of the causes of action are nearly

identical, and Leonelli could have framed his claim

in terms of the Indiana tort of false imprisonment,

federal law, or both.

Bentz relies in part on Row v. Holt, 834 N.E.2d 1074

(Ind. Ct. App. 2005), vacated, 864 N.E.2d 1101 (Ind. 2007),

for her argument that false arrest and false imprison-

ment are distinct torts under Indiana law. She is correct

that, as Row observed, distinctions exist between the two

in certain cases. See id. at 1088-89. But further examina-

tion of Row reveals compelling support for the city’s

position. Although the court noted that the two torts

are different insofar as an imprisonment can be made

absent an arrest, it went on to emphasize that “[a] false

arrest is one means of committing a false imprisonment,

and every false arrest has, at its core, a false imprisonment.”

Id. at 1089 (emphasis added) (quotations omitted). The

court therefore determined that because the plaintiff’s

false imprisonment claim involved an alleged false arrest,

8 No. 08-3324

it required no separate analysis. Id.4

Indeed, Indiana courts have used the terms “false

arrest” and “false imprisonment” interchangeably when

a plaintiff’s claim stems from detention by authorities

without probable cause. See, e.g., Johnson v. Blackwell, 885

N.E.2d 25, 30-31 (Ind. Ct. App. 2008) (using the terms

interchangeably when distinguishing both from malicious

prosecution); Earles, 788 N.E.2d at 1265 (defining false

imprisonment under Indiana law and holding that “[a]

defendant may be liable for false arrest when he or

she arrests a plaintiff in the absence of probable cause”);

Miller, 777 N.E.2d at 1104-05 (equating what a “plaintiff

in a false arrest action” must demonstrate with the stan-

dard for “false imprisonment”). Perhaps more tellingly,

Indiana courts often analyze causes of actions involving

unlawful police detentions solely in terms of false impris-

onment. See, e.g., Trobaugh v. Hellman, 564 N.E.2d 285, 286-

87 (Ind. Ct. App. 1990); Delk v. Bd. of Comm’rs of Del.

County, 503 N.E.2d 436, 439 (Ind. Ct. App. 1987); Grooms v.

Fervida, 396 N.E.2d 405, 411-12 (Ind. Ct. App. 1979); Mitchell

v. Drake, 360 N.E.2d 195, 198 (Ind. Ct. App. 1977) (discuss-

ing the standard the Seventh Circuit has applied “in false

imprisonment actions against government agents under

the Fourth Amendment”).

4

Although this opinion was subsequently vacated, we find

this analysis persuasive because the Indiana Supreme Court

affirmed that no separate analysis was required for false

arrest and false imprisonment. See 864 N.E.2d at 1016 n.4.

No. 08-3324 9

In other words, Indiana courts have analyzed claims

similar to Leonelli’s under the false imprisonment frame-

work. As such, Indiana law establishes that Leonelli’s

§ 1983 claim for unreasonable seizure is analogous to an

Indiana tort claim for false imprisonment, which does not

survive a decedent’s death. See Ind. Code § 34-9-3-1.

We emphasize that this holding does not rest on the

notion that Leonelli’s factual allegations could satisfy

either legal claim because, as we shall soon discuss,

identical facts can often give rise to multiple torts.5

Instead, we base our decision on the similarities between

the elements of Fourth Amendment unreasonable seizure

and Indiana unlawful imprisonment claims. It is due to

these legal similarities that Leonelli’s appeal of this

claim must be dismissed.

B. Unlawful Entry into Leonelli’s Home

Leonelli’s next § 1983 claim challenged the police offi-

cers’ warrantless entry and search of his home. On

appeal, Bentz focuses solely on the allegedly illegal entry

and abandons the challenge to the search.6 She argues that

5

Throughout this opinion, we assume that the entry into

Leonelli’s home was without probable cause and therefore

would indeed form the basis of a cause of action. Because

we dismiss the appeal, we need not decide whether probable

cause in fact existed.

6

Counsel made this concession at oral argument. We presume

the remaining claim is found in Paragraph 9 of the second

(continued...)

10 No. 08-3324

because this claim rests on the physical entry into

Leonelli’s home, it is akin to trespass, which survives

under Indiana law. 7 See Ind. Code § 34-9-3-1. The city,

on the other hand, compares Leonelli’s claim to the

Indiana tort of invasion of privacy, which does not sur-

vive. See id.

At first blush, this appears to be a difficult question

because the facts of this case potentially implicate both

torts. To prove trespass under Indiana law, a plaintiff

need only show that he was in possession of the land

and that the defendant entered that land without right.

Garner v. Kovalak, 817 N.E.2d 311, 313 (Ind. Ct. App. 2004).

On the other hand, invasion of privacy can take the form

of “an intrusion upon the plaintiff’s physical solitude

or seclusion as by invading his home or conducting an

illegal search.” Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.

1991).8 Restricting the question to the officers’ illegal

6

(...continued)

amended complaint, which averred that “[d]efendants . . .

committed trespass . . . in violation of the Plaintiff’s Fourth

Amendment Rights, when they entered into . . . Dr. Leonelli’s

home without warrant or sufficient legal justification, all

in violation of the tort laws and public policies of the State

of Indiana.”

7

Bentz again requests that we certify this question to the

Indiana Supreme Court, but we do not believe that there is

any uncertainty in applicable Indiana law. See Ind. R. App. P. 64.

8

Invasion of privacy can take one of four forms: appropria-

tion, intrusion, public disclosure of private facts, and false

(continued...)

No. 08-3324 11

entry into Leonelli’s home, it seems that the complaint’s

allegations could form a basis for either claim.

But Indiana tort law and the facts of this individual

case are not at the core of our analysis—we must begin

with the federal claim at issue. See Bass, 769 F.2d at 1188.

Only after characterizing the federal claim do we

decide which analogous Indiana tort applies. See id. And

federal law makes clear that the crux of a Fourth Amend-

ment claim of this nature, whether framed as an unlawful

search, an unreasonable entry into the home, or any

other similar action, is invasion of privacy. See, e.g., United

States v. Henderson, 536 F.3d 776, 786 (7th Cir. 2008).

The Supreme Court has stated that “a funda-

mental purpose of the Fourth Amendment is to safe-

guard individuals from unreasonable government inva-

sions of legitimate privacy interests.” United States v.

Chadwick, 433 U.S. 1, 11 (1977), abrogated on other grounds

by California v. Acevedo, 500 U.S. 565 (1991). Thus, to bring

a Fourth Amendment action for an unlawful search (or

entry), a plaintiff must have a legitimate expectation of

privacy that society recognizes as reasonable. California v.

Ciraolo, 476 U.S. 207, 211 (1986); United States v. Sandoval-

Vasquez, 435 F.3d 739, 743 (7th Cir. 2006). As federal

and Indiana courts have repeatedly recognized, this

expectation of privacy is the hallmark of Fourth Amend-

ment analysis. See, e.g., Michael C. v. Gresbach, 526 F.3d 1008,

8

(...continued)

light in the public eye. Cullison, 570 N.E.2d at 31. Only intrusion

is applicable here.

12 No. 08-3324

1014-15 (7th Cir. 2008); Membres v. State, 889 N.E.2d 265,

269 (Ind. 2008); Trimble v. State, 842 N.E.2d 798, 801 (Ind.

2006); Rook v. State, 679 N.E.2d 997, 999 (Ind. Ct. App. 1997)

(“The basic purpose of [the Fourth Amendment] is to

safeguard the privacy and security of individuals

against arbitrary and unreasonable government intru-

sions.”). It is, therefore, the government’s unlawful

invasion of this privacy that gives rise to a Fourth Amend-

ment violation.

Bentz draws our attention to Supreme Court precedent

that emphasizes the importance of a man’s home, noting

that “ ‘physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is di-

rected.’ ” New York v. Harris, 495 U.S. 14, 18 (1990) (quoting

Payton v. New York, 445 U.S. 573, 585 (1980)); see also Kyllo

v. United States, 533 U.S. 27, 40 (2001). Because of the

home’s importance, Bentz argues that trespass is the

most closely analogous tort.

We are mindful that the home occupies a special place

in Fourth Amendment jurisprudence. But the reasoning

behind this principle is straightforward—individuals

have a particularly high expectation of privacy in their

homes. As the Court recognized, in no setting “is the zone

of privacy more clearly defined than when bounded by

the unambiguous physical dimensions of an individual’s

home.” Payton, 445 U.S. at 590. This makes the home

distinct from property in plain view, of which seizures

and searches involve no invasion of privacy. Id. at 586-87.

Furthermore, although the Supreme Court has often

expressed concern for protecting “the sanctity of a man’s

No. 08-3324 13

home,” id. at 585 (quoting Boyd v. United States, 116 U.S.

616, 630 (1886)), it has, with equal vigor, emphasized that

“the Fourth Amendment protects people, not places,” Katz

v. United States, 389 U.S. 347, 351 (1967). It is for this

reason that “[w]hat a person knowingly exposes to the

public, even in his own home or office, is not a subject of

Fourth Amendment protection. But what he seeks to

preserve as private, even in an area accessible to the

public, may be constitutionally protected.” Id. (citations

omitted). Thus, the Supreme Court long ago abandoned

the “trespass” doctrine, holding that a Fourth Amend-

ment violation could occur even without a physical

intrusion onto the plaintiff’s property. Id. at 353 (“[T]he

reach of [the Fourth] Amendment cannot turn upon

the presence or absence of a physical intrusion into

any given enclosure.”).

Thus, the threshold question in a Fourth Amendment

inquiry is not whether a trespass occurred, Sayre v. State,

471 N.E.2d 708, 713 (Ind. Ct. App. 1984) (citing United

States v. Conner, 478 F.2d 1320 (7th Cir. 1973)); see also

United States v. Hanahan, 442 F.2d 649, 654 (7th Cir. 1971)

(noting that the police officer had committed “no more

than a technical trespass,” which did not give rise to a

Fourth Amendment violation); it is whether the gov-

ernment violated the plaintiff’s privacy interest. The

Indiana tort of invasion of privacy, in the form of

intrusion, has the same focus: the plaintiff must show

“an intrusion upon [his] physical solitude or seclusion.”

Cullison, 570 N.E.2d at 31. In contrast, to succeed in a

trespass claim, a plaintiff need not establish any privacy

interest; he must show only that he was in possession

14 No. 08-3324

of the land. See Garner, 817 N.E.2d at 313 (“[I]t is necessary

for the plaintiff to prove only that he was in possession

of the land and that the defendant entered thereon

without right . . . .” (emphasis added) (alteration in origi-

nal) (quotations omitted)).

We do not doubt that if the police lacked probable

cause to enter Leonelli’s home, the facts he alleged could

form the basis for either Indiana tort. But as explained

above, we must be careful when conducting our

analysis not to distort the federal claim to fit within

the confines of a particular state law. See Bass, 769 F.2d at

1188. Federal law is clear that the core of a Fourth Amend-

ment claim is an expectation of privacy. This concern

is also at the center of an invasion of privacy claim under

Indiana law, but it is completely irrelevant in a trespass

case. For that reason, the most analogous state tort to

Leonelli’s unlawful entry claim is invasion of privacy,

which does not survive under the Indiana survival

statute. See Ind. Code § 34-9-3-1.

III. C ONCLUSION

Nothing in our opinion requires that we resolve a

question of state law on which there is no clear controlling

Indiana precedent. For that reason, Bentz’s motion to

certify questions of law to the Indiana Supreme Court is

D ENIED.

Leonelli’s federal claim for unreasonable seizure would

be treated under Indiana law as a false imprisonment

claim; his unlawful entry Fourth Amendment claim is

No. 08-3324 15

analogous to the Indiana tort of invasion of privacy.

Because neither tort survives under Indiana law, the

appellees’ motion to dismiss the appeal is G RANTED .

8-14-09