Opposition Brief — Forman v. City of Richmond

oy | Supreme Court, U.S.

| 2 —s . £ Dp

— OCT 27 1997

No. 97-563 CLERK

In The

Supreme Court of the United States

October Term, 1997

MARC FORMAN, GUY VANDERPOOL, AND

WILLIAM DIX,

Petitioners,

vS.

CITY OF RICHMOND, INDIANA, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENTS' BRIEF IN OPPOSITION

DAVID R. DAY*

MARK A. PALMER

G. RONALD HEATH

ANDRIELLE M. METZEL

JOHNSON, SMITH, PENCE,

DENSBORN, WRIGHT & HEATH

Suite 1800, One Indiana Square

Indianapolis, IN 46204

(317) 634-9777

Counsel for Respondents

City of Richmond, et al.

*Counsel of Record

i

PARTIES TO THE PROCEEDING’

This Petitioners are Marc Forman, Guy Vanderpool and William

The Respondents are the Richmond Police Department and

Mark Smith, Individually and as an officer with the Richmond Police

Department.

Although the City of Richmond, Indiana, is listed in the caption

as a party to the case, it was dismissed from this case by order of the

District Court. No appeal challenging the dismissal of the City of

Richmond by the District Court was considered by the Seventh Circuit

Court of Appeals.

The Brief in Opposition is filed on behalf of the Richmond

Police Department and Mark Smith, Individually and as an officer with

the Richmond Police Department.

1

The names of the parties to the proceeding in the Seventh Circuit,

whose judgment is sought to be reviewed, do not appear in the caption

and do not appear within the Petition for Writ of Certioran. In

compliance with Supreme Court Rule 14(b), the names are therefore

provided herein.

ii

TABLE OF CONTENTS

Parties to the Proceeding ..............................0.00.-.

I scecitiicsscckpsialicicscecaicccabraeanaite

IID -ciccnscinincasccieniniscccnieabealaumnaen

SP I III ici scicesinecsssesiecncnserselennseecoen

Statement of Jurisdiction 2.000002...

Constitutional Provisions |..................................+.

Statutory Provisions ........................ BUA Te

STATEMENT OF THE CASE............................

A. Course of Proceedings and Disposition

of the Case Below........................-

B Correction of Misstatements in the

PI snieniranisphenlestptncesencecieticoiicen

Reasons for Denying the Petition for Writ ........

THERE IS NO REASON FOR THIS COURT TO

CONSIDER THE CONSTITUTIONAL ISSUES

PRESENTED, BECAUSE THE PETITION DOES

NOT RAISE ANY SUBSTANTIAL QUESTION FOR

REVIEW.

A. The Petition Does Not Ask This

Court To Settle Issues of Law..............

B. The Petition Does Not Demonstrate

That Summary Judgment Was

Erroneously Entered on Behalf of the

C. The Petition Does Not Demonstrate the

Existence of Any Confusion or Conflict

in the Lower Courts Regarding the Issue

of Qualified Immumnity......0...0.0.0.00.0cc. ee. 13-15

EE aE ah 15

Appendices

“A” Unpublished Order of the United States District

Court for the Southern District of Indiana,

Indianapolis Division (issued April 1, 1996)........ Al-A24

“B” Opinion of the Indiana Supreme Court issued

A A25-A34

| ae A35 ae

ee >: ee A36-A37

I i nccncnsaapevineeironnnnincuscenscivdssansnnsis A38

iv

TABLE OF AUTHORITIES

Cases _Cited: Page

Anderson v. Creighton,

EN IED isis snacaicicstrcentisivinnstvnvareennane 11,12, 14

Celotex Corp. v. Catrett,

EEF Crate, ee CN wis eng oe sns esas crsrcecaniericcdianeens 3,9

Gomez v. Toledo,

I ID irssnsrcicv seen ssnisditessiianchecmiestiionas 10

Goodman v. Lukens Steel Co.,

I chi cchencivinecintietneasanaeenaniapees 8

Graver Tank & Mfg. Co. v. Linde Air Prod. Co.,

LS Re, LS, RnR nna ann Eee CEE TOR 8

Harlow v. Fitzgerald,

IE I MRIS seicinscnécseciennnescnvactuncedcarvurssnie 10, 11

Hunter v. Bryant,

TS, | em Ren mae 9,10

Illinois v. Rodriguez,

Rs Br IIE ass scssiccnpsecsecnsdceveuhcceveomssanrtentaio 3,8

Malley v. Briggs,

Er IID svcscssssciicacvesncsuetsbersieinasditetnas 10

Pierson v. Ray,

BN Ee NED seiiecivncacccsnccrcvccaraassianaionianms 3,12

Schneckloth v. Bustamonte,

Re II Gio sincsscnaricasccidccatsnniqnncéinarenionees 8

Sigert v. Gilley,

Pe ees SRI saissi cinsidevadevnincschanasepeinsentcnscess 10

v

Forman v. Richmond Police Department,

BOS FSG DSO C7 CR. TGGT) on. snesecscccsncsesesecsoeesss vi, 14

Juriss v. McGowan,

ise Fore, Le 4 ne eee een 12, 13

Rakovich v. Wade,

850 F.2d 1180 (7th Cir. 1988) .....000 9

Haney v. Timesavers, Inc.,

1993 U.S. Dist LEXIS 14646 (D. Or. 1993) ........ 8

State of Indiana v. Marc Forman,

662 N.E.2d 929 (Ind. 1996) ou... .eeeeeeeeeeeeeeeeees vi, 5, 13

Indiana v. Forman,

649 N.E.2d 120 (Ind. App. 1995) 00.00.00... eee 13

nstituti rovisions:

arc I ee a: vi, 2,10,A

tai Me I, BI ibaa cpicmcdenecnienacebacaineearrtanincunsan vi,2,A

Statutes Cited:

Re I ie IN ae cccctea pases shccesavccrcciececceneececaeatens vii, 1,2,6,10,A

Rules Cited:

Rn SS aN E UR AURORE REORON TEE i

RN RI Ih accusers Scssissccrcislvsheienceoneahalgaauecealer denen vi, vii

IE et 2,3

vi

PRIOR COURT OPINIONS

Respondents request that the Court deny the Petition for Writ of

Certiorari seeking review of an opinion of the United States Court of

Appeals for the Seventh Circuit (hereinafter “Seventh Circuit”). The

opinion of the Seventh Circuit has been reported and appears at 104 F.3d

950 (7th Cir 1997) and is reproduced as Appendix “A” and contained

within the Petition for Writ of Certiorari. The Order on Cross Motions

for Summary Judgment of the United States District Court for the

Southern District of Indiana, Indianapolis Division (hereinafter “District

Court”) has not been published. The unpublished Order of the District

Court is reptoduced verbatim herein at Appendix “A”. The opinion of

the Indiana Supreme Court has been reported and appears at 662 N.E.2d

929 (Ind. 1996) and is reproduced verbatim herein at Appendix “B”’.

STATEMENT OF JURISDICTION

Mark Smith does not contest this Court's jurisdiction over the

claims assetted against him. The jurisdiction of the Court over the

Respondent, Richmond Police Department, is disputed, because the

Petitioner dces not raise as error the Seventh Circuit Court's decision

affirming the District Court's Order granting summary judgment in its

favor.

CONSTITUTIONAL PROVISIONS?

The constitutional provisions here involved are the Fourth and

Fourteenth Anendments to the United States Constitution and are set

out verbatim ierein as Appendices “C” and “D”.

2

Constitutional provisions at issue do not appear within the Petition

for Writ of Certiorari. In compliance with Supreme Court Rule 14(f),

these constititional provisions are included herein.

vii

STATUTORY PROVISIONS’

The statutory provision here involved is 42 U.S.C. § 1983 and

is set out verbatim herein as Appendix “E”.

3

| The statutory provision here involved does not appear within the

Petition for Wnit of Certiorari. In compliance with Supreme Court Rule

14(f), the relevant statutory provision is included herein.

]

STATEMENT OF THE CASE

The Respondents respectfully oppose the Petition for Writ of

Certiorari (hereinafter “the Petition”) which is replete with numerous

misstatements of both the facts and the applicable law in this case.

A. Course of Proceedings and Disposition of the Case Below.

In their Complaint and Amended Complaint, Marc Forman

(hereinafter “Forman”), William Dix (hereinafter “Dix”), and Guy

Vanderpool (hereinafter ““Vanderpool”) contended that Mark Smith, a

Lieutenant on the Richmond, Indiana Police Department, the Wayne

County, Indiana Prosecutor Terry O'Maley (“Prosecutor O'Maley”), the

City of Richmond, Indiana and “John Does 1-50" violated 42 U.S.C.

§§ 1983 and 1985 by depriving them of their rights under the United

States Constitution, the Indiana Constitution, and various statutory

provisions. All three plaintiffs brought state law claims of false arrest

and false imprisonment, and Dix added a state claim for defamation.

The district court dismissed the claims against Prosecutor

O'Maley and the City of Richmond in separate orders issued on October

6, 1995. The remaining parties filed cross motions for summary

judgement in January and February of 1995. The district court granted

Lt. Smith's and the Richmond Police Department's motion and denied the

Plaintiffs’ motion. With regard to the claims against Lt. Smith, the court

held that Lt. Smith either did not violate the Plaintiffs' constitutional

rights or that he was entitled to qualified immunity for any constitutional

or state law violations that did occur. Next, the court found that

Plaintiffs failed to establish that the Richmond Police Department

violated their constitutional rights through some official policy or

custom. Finally, the court ruled in favor of the unnamed police officers

(“John Does 1-50") because Plaintiffs failed to identify them within the

applicable two-year statute of limitations. The court also noted that

these defendants would have been entitled to the same qualified

immunity as Lt. Smith.

2

Forman, Dix and Vanderpool subsequently appealed the District

Court’s Order to the Seventh Circuit. The only issues preserved for

appeal were whether Lt. Smith, the Richmond Police Department, or any

other officers from the department violated 42 U.S.C. § 1983 by

depriving them of their constitutional nights under the Fourth and

Fourteenth Amendments to the United States Constitution. Prosecutor

O'Maley and the City of Richmond were not parties to the appeal. No

effort on behalf of Forman, Dix or Vanderpool was exerted to challenge

the district court orders dismissing those parties.

The Seventh Circuit upheld the District Court’s determination

that there were no genuine issues of material fact which precluded the

District Court from granting summary judgment in favor of Lt. Smith

and the Richmond Police Department on the issues of qualified

immunity. Specifically, with regard to the claims asserted by Forman

against Lt. Smith, the Seventh Circuit found that the District Court

correctly determined that Lt. Smith was entitled to qualified immunity.

The Seventh Circuit also determined that the District Court correctly

found that Dix's claims were without merit and that Lt. Smith was clearly

entitled to qualified immunity with regard to them. In addition, the

Seventh Circuit found that the District Court correctly concluded that the

claims asserted by Vanderpool were not supported by any evidence and

that Lt. Smith also had qualified immunity under those circumstances.

Finally, the Seventh Circuit summarily affirmed the District Court's entry

of summary judgment in favor of the Richmond Police Department

regarding the § 1983 claims. Like the District Court, the Seventh Circuit

noted that Forman, Dix and Vanderpool failed to assert that any

constitutional deprivation arose as a result of an official policy or custom

of the Richmond Police Department.

B. Correction of Misstatements in the Petition.

The opinions of the Seventh Circuit and the District Court

correctly set forth the facts of this case and Respondents respectfully

direct the Court's attention to the lower courts' opinions and orders.

Pursuant to United States Supreme Court Rule 15.2, however,

Respondents are obligated to bring to the Court's attention any

3

misstatements made in the Petition. The Respondents observe that the

Petition is riddled with inaccuracy and misstatements. Petitioners’ also

fail to accurately cite several cases which they believe support their

Petition.‘ In addition, the Petition lacks sufficient clarity to allow

Respondents to enjoy a ready and adequate understanding of the points

and arguments which Petitioners’ ask this Court to consider. Because of

these several deficiencies, Respondents must undertake the arduous task

of first “re-constructing” Petitioners’ Statement of the Case in order to

comply with the requirements of Rule 15.2.

First, the Petition erroneously portrays the findings of the United

States Court of Appeals for the Seventh Circuit. Specifically, the

Petition mischaracterizes the Seventh Circuit holding by claiming that

the court determined that the warrantless search of the Richmond Plaza

Bingo Center (hereinafter “Bingo Center”) and subsequent seizure on

April 3, 1992, was “proper.” More accurately, the Seventh Circuit found

that Lt. Smith was “entitled to qualified immunity” because his actions

were “objectively reasonable” in light of the facts and law known to him

at that time.

Overall, the Petition attempts to create factual disputes where

none exist by making conclusory statements. The Petitioners’

description of the events of April 3, 1992, leave the Respondents unsure

of the Petitioners’ point or points they ask this Court to review.

Nevertheless, a complete accounting of the facts demonstrates that Lt.

Smith, an investigator with a special unit of the Richmond Police

4

The Petition lists the following incorrect citations:

Celotex Corp. v. Catrett, 47 U.S. 317 (1986), correctly cited

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Pierson v. Ray, 396 U.S. 547 (1967), correctly cited

Pierson v. Ray, 386 U.S. 547 (1967).

Illinois v. Rodriguez, 110 §.Ct. 319 (1990), correctly cited

Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793 (1990).

|

4

Department, received information that the Bingo Center was operating

under an invalid gambling permit. After learning this information, Lt.

Smith drove to the Bingo Center where he observed Petitioner Guy

Vanderpool suddenly move to shut the door to a room at the rear of the

Bingo Center. Lt. Smith approached Vanderpool and asked to speak

with the operator of the Bingo Center. Vanderpool directed Lt. Smith to

Luther Ogletree (hereinafter “Ogletree”). Ogletree identified himself to

Lt. Smith as the operator of the Bingo Center. Lt. Smith requested

Ogletree to produce a valid gambling permit, however, Ogletree was

unable to comply with that request.

Lt. Smith then contacted the Wayne County Prosecuting

Attorney, Terry O’Maley, for instructions and was advised to obtain a

consent to search the premises from Ogletree. Ogletree was read the

Consent to Search form, acknowledged his understanding of the form,

affixed his signature to it and stated that he had nothing to hide.

During the search of the Bingo Center premises, several

thousand dollars in cash, records and documents regarding proceeds,

check books and a hand gun were discovered. Also during the search,

the officers encountered a locked door, which was the same door Lt.

Smith witnessed being closed by Vanderpool. Without asking for a key,

the officers removed the door from its hinges as Ogletree stood quietly

by. Ogletree never requested a stop of the search nor did he make any

attempt to either qualify or withdraw his written consent to search the

premises.

The officers entered the room and discovered ten illegal

gambling machines and ten stools.° At that time, Ogletree disclaimed

ownership of the machines, produced a copy of a written lease and stated

that the room had been rented to Petitioner Marc Forman. Shortly

thereafter, Vanderpool provided Lt. Smith with a set of keys, one of

5

The Petition appears to question the illegality of the gambling

machines and mappropniately places before this Court a question which

was not necessary to the decision below.

5

which opened the lock to the door which was removed from its hinges

Although the Petition accurately states that Lt. Smith and the

Richmond Police officers entered a locked room at the Bingo Center by

removing the door from its hinges, the Petition fails to mention that the

Seventh Circuit found that the entry was made while conducting the

consensual, yet warrantless, search of the premises. Upon the advice of

Prosecutor O’Maley, no individuals were arrested incidental to the search

of the Bingo Center on April 3, 1992. The Petition's characterization of

Lt. Smith's actions as well as its conclusory assertions regarding Lt.

Smith and his decisions surrounding access to the locked room are not

only misplaced but also deficient.

were asserted against Marc Forman; however, the Petition incorrectly

States that the Indiana Supreme Court determined that Lt. Smith failed

to act as a reasonable police officer in State of Indiana v. Marc Forman,

662 N.E.2d 929 (Ind. 1996). This misstatement of the findings of the

Indiana Supreme Court should not mislead this tribunal. Evaluating the

merit of Forman's motion to suppress based upon the challenged validity

of the search of the locked room, the Indiana Supreme Court held,

notwithstanding Ogletree’s consent to search the Bingo Center, that,

“Because the defendant (Forman) had a reasonable expectation of

privacy in the leased (locked) room, there was no valid consent to search

the premises, and no valid exception to the warrant requirement was

claumed, the warrantless search of the leased premises was

unconstitutional and the trial court’s motion to suppress was

appropriate.” State of Indiana v. Marc Forman, 662 N.E.2d 929, 934

(Ind. 1996).

The Petition's portrayal of the Seventh Circuit's rationale for its

decision conferring qualified immunity upon Lt. Smith is based upon

similar distortions. The Petitioners describe the rational of the Seventh

Circuit’s decision as conferring qualified immunity because there was

“no [then] prescribed duty to ask for a key.” By the use of such a

description, Petitioners fail to provide this Court with an accurate

statement of the lower court’s ruling. The Seventh Circuit determined

6

there were no genuine issues of material fact which prevented the district

court from granting summary judgment in favor of Lt. Smith and the

Richmond Police Department. The Seventh Circuit further found that

the District Court correctly determined that Lt. Smith acted in an

objectively reasonable manner in conducting the search of the Bingo

Center and in arresting Marc Forman and that he was therefore entitled

to qualified immunity, as a matter of law, for alleged violations of 42

U.S.C. § 1983.

Regarding Forman's unreasonable search and seizure claim, the

Seventh Circuit initially addressed the issue of whether there were clearly

established constitutional standards governing Lt. Smith's acts of

removing the hinges to the door of a locked room as well as his

subsequent entry and search of the locked room on the premises of an

area to which a consensual search has been authorized. After an

examination of the precedent available to guide a police officer’s conduct

in April 1992, the court concluded that the constitutional standards

governing the scope of consensual searches were not clearly established

and that it was not clear, at that time, that Lt. Smith should have asked

Ogletree for a key to unlock the room.

Regarding Forman's warrantless arrest claim, the Seventh

Circuit concluded that it was unnecessary to determine whether or not Lt.

Smith participated in the warrantless arrest. The Seventh Circuit

reasoned that if Lt. Smith did not participate in the alleged constitutional

violation, then he could not be held liable under § 1983. Nevertheless,

the facts demonstrated that, at the time of the arrest, Lt. Smith had

probable cause to believe Forman had committed a felony because of his

intimate involvement in owning or operating the gambling machines and

placing them in the Bingo Center. The Seventh Circuit concluded that

Lt. Smith was entitled to qualified immunity because his actions were

objectively reasonable based upon the clearly established law and

information he possessed at the time of the arrest.

The Seventh Circuit similarly reyected Dix's claims based upon

his warrantless arrest, because Lt. Smith had probable cause for the

arrest and since Dix was convicted for the underlying conduct leading to

the arrest barring recovery under § 1983. The Petition's assertions

7

regarding Dix and the observations made by Lt. Smith are incomplete

because they exclude the fact that, on two occasions, Dix was seen by Lt.

Smith in the Bingo Center, which was operated without a valid gaming

permit and in violation of Indiana law. In fact, Dix was seen in the

Bingo Center office counting the proceedings and making records of an

evening's bingo game. The Seventh Circuit noted that even if there was

a genuine issue of material fact regarding whether or not probable cause

existed for the arrest, that, under those circumstances, Lt. Smith was

entitled to qualified immunity.

Vanderpool's claims based upon the lack of probable cause for

his arrest pursuant to a warrant were also rejected. The Seventh Circuit

found that Vanderpool's bald assertions, without more, failed to

demonstrate that Lt. Smith knowingly or intentionally included a false

statement within the probable cause affidavit or that he included material

in the affidavit with reckless disregard for its truth. The Petition does

not mention that Vanderpool was seen closing the door to the room

containing illegal gambling machines, that he supervised use of those

machines and made pay outs to customers, or that he possessed the keys

to the room contaiming the machines. Under those circumstances, the

Seventh Circuit acknowledged that Lt. Smith was entitled to qualified

immunity for his actions related to the Vanderpool arrest.

Finally, the Petition erroneously characterizes information

contained within the record regarding Lt. Smith, specifically the

reference to “credibility problems.” The Seventh Circuit rejected those

same allegations and noted that the Plaintiffs had failed to present any

evidence which undermined or served to question Lt. Smith’s credibility.

No new evidence is set forth in the Petition to support this continued

assertion.

eT

8

R for Denving the Petition for Writ of Certiorari

THERE IS NO REASON FOR THIS COURT TO CONSIDER

THE CONSTITUTIONAL ISSUES PRESENTED, BECAUSE

THE PETITION DOES NOT RAISE ANY SUBSTANTIAL

QUESTION FOR REVIEW.

A. The Petition Does Not Ask This Court To Settle

Issues of Law.

The question presented for review in the Petition does not reflect

any issues of law decided by the lower courts. The Petition does not

reflect a conflict or division on a matter of law between the circuits. The

Seventh Circuit found that conferring qualified immunity upon the

district court’s ruling. The Petition’s factbound assertion that the courts

below erroneously determined that the Respondents were entitled to

qualified immunity are merely an attempt to create factual disputes

where none exist and does not warrant review by this Court. The

Seventh Circuit found that the “factual disputes” raised by Forman, Dix

and Vanderpool were without merit and were not pivotal in the court's

decision making. Additionally, the Petition fails to offer any new proof

or evidence why the Respondents should not be entitled to qualified

immunity. Finally, the point of law upon which the Seventh Circuit

decided this case was not raised as error by Petitioners.

This Court has previously stated, “A court of law, such as this

Court is, rather than a court for correction of errors in factfinding, cannot

undertake to review concurrent findings of fact by two courts below in

the absence of a very obvious and exceptional show of error.” Goodman

v. Lukens Steel Co., 482 U.S. 656, 665 (1987), quoting Graver Tank &

Mfg. Co. v. Linde Air Prod. Co., 336 U.S. 271, 275 (1949), and

superseded by statute on other grounds as stated in Haney v.

Timesavers, Inc., 1993 U.S. Dist LEXIS 14646 (D. Or. 1993).

The Petition is merely an attempt at yet another review of the

facts in this case. Although the Petition makes mention of JIlinois v.

Rodriguez, 497 U.S. 177 (1990) and Schneckloth v. Bustamonte, 412

9

U.S. 218 (1973), it is completely bereft of any sound argument that

those precedents were misapplied. The opinion of the Seventh Circuit

includes and did not in any manner ignore those precedents.

Nevertheless, both the district and appellate courts agreed that conferring

qualified immunity was appropriate when interpreting these cases in

conjunction with additional existing case law. Respondents urge that no

further review of the qualified immunity issue is warranted, because the

Petition merely seeks review of unsupported factual allegations and not

of issues of law.

B. The Petition Does Not Demonstrate That Summary

Judgment Was Erroneously Entered on Behalf of the

Respondents.

The Petition appears to claim that the Seventh Circuit

erroneously entered summary judgment on behalf of the Respondents,

because there was a genuine issue of material fact and therefore the

Respondents were not entitled to summary judgment as a matter of law.

Although the Petition includes mention of this Court's standard for

summary judgment as established in Celotex Corp. v. Catrett, 477 U.S.

317 (1986), the Petition does not demonstrate any manner in which the

Seventh Circuit's ruling was made contrary to this standard. The Petition

also ignores the well established legal principal that qualified immunity

is generally a question of law for the court to resolve and that summary

judgment is the proper posture from which to decide this objective legal

question. Hunter v. Bryant, 502 U.S. 224 (1991); Rakovich v. Wade,

850 F.2d 1180, 1201-02, 1204-05 (7th Cir. 1988), cert. den., 488 US.

968.

The issues of fact alluded to by the Petition were found by the

Seventh Circuit to be insubstantial and thereby insufficient to prevent an

entry of summary judgment being granted in favor of Respondents. For

example, in its analysis, the Court explicitly stated that regardless of

whether Lt. Smith participated in the arrest of Forman, whether Lt.

Smith had probable cause to arrest Dix and whether the affidavit was

sufficient to support the probable cause necessary for the arrest of

Vanderpool, Lt. Smith was entitled to qualified immunity under the

eT

10

circumstances surrounding those fact sensitive events. These issues do

not encompass the entirety of the claims against the Respondents,

nevertheless, the Petition curiously directs this Court's attention to these

factors as though they are in some manner dispositive of the summary

judgment issue.

Additionally, the Petition appears to claim that summary

judgment was entered in error and that the Respondents are somehow

barred from entitlement to qualified immunity, because the initial search

of the Bingo Center was found to be unconstitutional. The Petition

misses the purpose of qualified immunity which is to give “‘ample room

for mistaken judgments' by protecting ‘all but the plainly incompetent or

those who knowingly violate the law.”” Hunter v. Bryant, 502 U.S. 224,

229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)).

After a defendant pleads a defense of qualified immunity, “[ojn

summary judgment, the judge appropriately may determine, not only the

currently applicable law, but also whether that law was clearly

established at the time the action occurred...” Sigert v. Gilley, 500 U.S.

226, 231-232 (1991 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In its analysis, a court should ask whether a defendant acted

reasonably under settled law in the circumstances, not whether another

reasonable, or more reasonable, interpretation of the events can be

constructed after the fact. See Hunter, 502 U.S. at 228.

The Petition's conclusion, without more, that the actions of Lt.

Smith were somehow “illegal and contrary to the Fourth Amendment”

and were “patently unreasonable under the Fourth Amendment” lacks

merit. Although difficult to discern, Petitioners appear to be arguing

that an action which, in general, violates any constitutional provision,

such as the Fourth Amendment, vis-a-vis, violates a “a clearly

established right.” In adopting this argument, Respondents believe that

Petitioners fail to comprehend or appreciate the development of the

doctrine qualified immunity.

This Court on several occasions has addressed the proper

analytical framework for determining whether a plaintiff's allegations

are sufficient to overcome a defendant’s defense of qualified immunity.

A government official may plead the affirmative defense of qualified

1]

immunity in an action brought pursuant to 42 U.S.C. § 1983. Gomez v.

Toledo, 446 U.S. 635 (1980). Whether an official protected by qualified

immunity may be held personally liable for an allegedly unlawful official —

action generally turns on the “objective legal reasonableness” of the

action assessed in light of the legal rules that were “clearly established”

at the time it was taken. Harlow v. Fitzgerald, 457 US 800, 816 (1982).

The government official will be immune from liability if the conduct

alleged in the complaint did not violate “clearly established, statutory or

constitutional rights of which a reasonable person would have known.”

Harlow at 818.

In Anderson vs. Creighton, 483 U.S. 635 (1987) this Court

squarely addressed and rejected the very argument which Petitioners seek

to present for review. In Anderson, this Court stated:

“The operation of this standard [objective legal

reasonableness], however, depends substantially upon the

level of generality at which the relevant “legal rule” is to be

identified. For example, the right to due process of law is

quite clearly established by the Due Process Clause, and

thus there is a sense in which any action that violates that

Clause (no matter how unclear it may be that the particular

action is a violation) violates a clearly established right.

Much the same could be said of any other constitutional or

statutory violation. But if the test of “clearly established

law’ were to be applied at this level of generality, it would

bear no relationship to the “objective legal reasonableness”

that is the touchstone of Harlow. Plaintiffs would be able

to convert the rule of qualified immunity that our cases

plainly establish into a rule of virtually unqualified liability

simply by alleging violation of extremely abstract rights.

Harlow would be transformed from a guarantee of

immunity into a rule of pleading. Such an approach, in

sum, would destroy the balance that our cases strike

between the interests in vindication of citizens’

constitutional rights and in public officials’ effective

performance of their duties, by making it impossible for

officials reasonably to anticipate when their conduct may

give rise to liability for damages. It should not be

aI

12

surprising, therefore, that our cases establish that the

right the official is alleged to have violated must have been

“clearly established” in a more particularized, and hence

more relevant, sense: The contours of the right must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right. This

is not to say that an official action is protected by qualified

immunity unless the very action in question has previously

been held unlawful but it is to say that in the light of

pre-existing law the unlawfulness must be apparent.”

Id. at 638 and 639.

Respondents construe Petitioner Forman’s argument to be

identical to the argument previously made and rejected by this Court in

Anderson. This Court has already considered and decided the issues

presented by Petitioners. Because Petitioners have not presented any

compelling factual or legal reason why those issues should be revisited,

this Court should deny the Petition.

The Petition additionally includes citations to Pierson v. Ray,

386 U.S. 547 (1967) and Juriss v. McGowan, 957 F.2d 345 (7th Cir.

1992) without supporting argument or explanation. Respondents,

assuming that these citations are included within the Petition to

demonstrate that the contours of the rights violated were clearly

established at the time of the violation, assert that such precedent does

not support the Petition's claims.

Nevertheless, the inclusion of Pierson is perplexing. In that

1967 case, officers made a claim that they should not have been held

liable if they acted in good faith and with probable cause in making an

arrest under a statute that they believed to be valid but which was later

held to be unconstitutional. This Court determined that a police officer

is not entitled to absolute but rather a qualified type of immunity for

: actions related to said forms of arrests. Respondents note that this case

is not and has not ever been one of absolute immunity. The Seventh

Circuit did not base its ruling on the issue of absolute immunity.

Therefore, Pierson is clearly distinguishable from this case and it

13

provides little, if any, guidance in ascertaining the crux of the Petition's

arguments or support for them.

The citation to Juriss also fails to support the Petition. In

Juriss, the Court recognized that qualified immunity is inappropriate if

a reasonable officer would have known that the “particular action at

issue” was unlawful in light of the law in effect at the time of the

activity. Juriss, 957 F.2d at 350. In Juriss, an officer who knowingly

arrested an individual with a warrant he knew was not supported by

probable cause was not entitled to qualified immunity. Respondents first

contend that the facts of Juriss are clearly distinguishable from the

instant action. Next, aside from allegations that arrests of the Petitioners

were unsupported by probable cause, the evidence before the Seventh

Circuit and that presented within the Petition is not convincing nor does

it challenge the probable cause issue. Finally, the Juriss opinion, in and

of itself, does not make it clear that any action taken by Lt. Smith did not

conform with actions that would have been taken by an objectively

reasonable police officer faced with the same or similar facts and

circumstances.

ad The Petition Does Not Demonstrate the Existence of Any

Confusion or Conflict in the Lower Courts Regarding the Issue of

Qualified Immunity.

Respondents find it difficult to ascertain exactly what the

Petition attempts to convey, and note, however, that if the Petition is

intended to assert any conflict between the opinion of the Seventh Circuit

and that of the Indiana Supreme Court, the argument is unfounded.

The Supreme Court of Indiana reversed an Indiana Court of

Appeals decision [Jndiana v. Forman, 649 N.E.2d 120 (Ind.App. 1995)]

upholding Lt. Smith’s search of the Bingo Center. The Indiana Supreme

Court found that Forman had an expectation of privacy in the locked

room and that if the police reasonably believed that Ogletree gave

permission to search the locked room, the police simply would have

asked Ogletree to unlock the door. State v. Forman, 662 N.E.2d 929

(Ind. 1996). The court ultimately concluded that there was sufficient

eT

14

evidence to demonstrate that Ogletree did not validly consent to a search

of the locked room to support the trial court's grant of Forman's Motion

to Suppress. Despite its finding, the Indiana Supreme Court

acknowledged that it was a “close call whether or not Ogletree had actual

common authority.” Forman, 662 N.E.2d at 932.

As noted by both the District Court and the Seventh Circuit, the

differing opinions of the Indiana Court of Appeals and the Indiana

Supreme Court illustrate the constitutional uncertainty regarding the

standards governing consent to search issues. That two courts could

approach this issue and reach different conclusions suggests that the

governing law was far from “clearly established” at the time of Lt.

Smith's search. In addition, the Seventh Circuit pointed to several other

~ cases, each decided prior to the search in question, which demonstrated,

at a minimum, that there was no clearly established law applicable to the

search of a locked room in April of 1992. The Seventh Circuit also

regarded Lt. Smith’s conferences with the prosecuting attorney as

providing insight into the “objective reasonableness” of the officer’s

actions. Finally, the Seventh Circuit directly addressed the potential

dilemma created by the Indiana Supreme Court opinion and stated the

following:

“Although we find that Lt. Smith is entitled to qualified

immunity, we do not dismiss the Indiana Supreme Court's

concern about police officers removing the door from its

hinges when they could have easily asked someone to

unlock the door. Nevertheless, there was no clearly

established precedent holding that the failure to seek a key

for a locked room found on premises that could otherwise

be lawfully searched would result in a violation of anyone's

Fourth Amendment rights.”

Forman v. Richmond Police Department, 104 F.3d 950, (7th Cir.

1997).

Despite the above, Petitioners continue to assert that opinion of

the Indiana Supreme Court that the search was unconstitutional and

therefore unreasonable is conclusive and binding upon courts

considering Petitioners § 1983 claims. Petitioner’s reliance upon this

argument has been rejected by this Court in Anderson and as such is

15

unfounded. See Anderson at 633 and 644. Therefore, any conflict

between the opinion of the Seventh Circuit and that of the Indiana

Supreme Court is illusory.

CONCLUSION

Respondents respectfully submit that this case presents no issue

of law or fact that justifies review by the United States Supreme Court.

The Petitioners have had appropriate review at both the District Court

and Appellate Court levels. The decisions of those courts were and are

proper and the Petition for Writ of Certiorari s. suld be denied.

A ee rk tee on ws ee ob ti

Al

App. “A”

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MARC FORMAN, WILLIAM )

DIX, JR., and GUY VANDERPOOL, _)

Plaintiffs, )

V. )Cause IP94-340-CM/F

)

CITY OF RICHMOND, INDIANA, )

LT. MARK SMITH, RICHMOND )

POLICE DEPARTMENT, TERRY )

O'MALEY, WAYNE COUNTY )

PROSECUTOR, JOHN DOES 1-50, )

Defendants. )

The present case now comes before this Court on Cross Motions

for Summary Judgment. On February 4, 1994, Plaintiffs Marc Forman

("Forman"), William Dix, Jr. ("Dix") and Guy Vanderpool

("Vanderpool") (collectively referred to as "Plaintiffs") filed this

litigation, contending that their constitutional and statutory nights had

been violated by Defendants Lt. Mark Smith ("Lt. Smith"); the

Richmond Police Department ("Police Department"); the City of

Richmond, Indiana ("Richmond"); Terry O'Maley (“O'Maley”); and

other unidentified police officers. In two separate Orders dated October

6, 1995, this Court dismissed O'Maley and Richmond from the action.

For reasons stated fully below, this Court now DENIES the Motion for

Summary Judgment filed by the Plaintiffs and GRANTS the Motion for

Summary Judgment filed by Lt. Smith and the Police Department. In

addition, this Court GRANTS summary judgment in favor of the still-

unidentified John Doe Defendants.

A2

I. BACKGROUND

This action arises from a police raid of an unlicensed bingo

operation located in Richmond, Indiana. On April 3, 1992, Lt. Smith

received information that the operators of the Richmond Plaza Bingo

Center ("Bingo Center") had been using a charity bingo permit belonging

to the Muncie Fraternal Order of Police ("FOP") without proper

authorization from that group. Desig. of Evid. Mater. in Supp. of Defs."

Mot. for Summ. J. (hereinafter "Defs. Ex.") , Ex. 1, p. 14. FOP

President Max Pratt told Lt. Smith that he had removed a copy of the

permit from the Bingo Center and that he did not believe there was a

valid bingo permit on the premises. Defs. Ex. 1, pp. 17, 18; Def's Ex.

2, p. 74.

That same evening, Lt. Smith went to the Bingo Center to

determine whether it was operating under a valid permit. Defs. Ex. 1,

p. 13; Defs. Ex. 2, p. 76. When Lt. Smith entered the Bingo Center,

Luther Ogletree ("Ogletree") informed the officer that he was the

operator of the bingo game and the lessor of the Bingo Center premises.

Defs. Ex. 3, pp. 58-59. Lt. Smith asked Ogletree to show him the Bingo

Center's operating permit and accompanied him to the office located in

the rear of the building, where Dix and another volunteer were counting

money from the night's bingo operations. Defs. Ex. 1, p. 16; Defs. Ex.

2, pp. 79, 86. After Ogletree searched the office and failed to produce

a permit, Lt. Smith informed him that the Bingo Center was operating

illegally and called in additional officers from the Police Department to

help shut down the building. Defs. Ex. 2, pp. 86, 88. Lt. Smith also

called the Wayne County Prosecutor, Terry O’Maley (“O'Maley") to

discuss whether a warrant would be needed im order to search the

premises. Defs. Ex. 2, p. 90. During the conversation, O’Maley told Lt.

Smith that if valid consent was given to search the building, no search

warrant would be needed. Defs. Ex. 2, pp. 135-136.

After obtaining a standard consent to search form from one of

the uniformed officers, Lt. Smith read the contents of the form to

Ogletree. Defs. Ex. 2, pp. 114-15; Defs. Ex. 3, p. 59. Ogletree stated

that he understood the document and signed the form. Defs. Ex. 2, pp.

114-15; Defs. Ex. 3, p. 60; Defs. Ex. 4. During the search of the office,

A3

Lt. Smith and other officers found several thousand dollars in cash, the a

Bingo Center's operating records and check books, and a handgun. Defs.

Ex. 2, pp. 90-91. In addition, the officers attempted to enter a room

located at the rear of the building but found that it was locked. After

removing the hinges from the door, police found ten gambling machines

inside the room. Defs. Ex. 1, p. 21. Although Ogletree was present

while the officers removed the door, he stood by without requesting that

the search stop or attempting to withdraw or qualify his written consent

to the search. Defs. Ex. 3.

After the door had been removed, Ogletree informed Lt. Smith

that the machines belonged to Marc Forman and provided Lt. Smith with

a copy of the parties’ lease agreement. Defs. Ex. 2, p. 22; Defs. Ex. 5.

Vanderpool gave Lt. Smith keys to both the room and the machines and

stated that he was working as a volunteer at the Bingo Center under

Ogletree's supervision. Defs. Ex. 3, pp. 76-77. After a conversation

with O'Maley, Lt. Smith confiscated the currency, gambling machines,

and bingo operations records found in the Bingo Center. Defs. Ex. 6, p.

2. Forman himself telephoned Lt. Smith and claimed ownership of the

machines later that evening. Defs. Ex. 3, p. 67.

On April 6, 1992, Ogletree presented Lt. Smith with a second

bingo permit, bearing the name and address of the New Hope Missionary

Baptist Church of Dayton, Ohio. Defs. Ex. 8, p. 1. Lt. Smith traveled

to Dayton on April 7, 1992, but found no church located at that address.

Defs. Ex. 8, p. 2. He also contacted the Indiana Secretary of State for

additional information regarding the permits used by the Bingo Center.

Defs. Ex. 8, p. 2. He presented an affidavit containing these findings to

the Wayne County Superior Court and obtained a search warrant for the

Bingo Center. Defs. Ex. 8. Several officers from the Police Department

executed the search warrant on April 8, 1992 and arrested Dix, Ogletree,

and another volunteer on charges of professional gambling. Over the

next two days, newspapers in Richmond, Muncie, and Dayton reported

that the Bingo Center had been searched, that the permit used by the

Bingo Center belonged to a nonexistent entity, and that Dix had been

arrested on related charges.

A4

Charges were filed against Dix based on his activities at the

Bingo Center during the first search on April 3, 1992. Deffs. Ex. 10. On

September 22, 1992, Lt. Smith filed an Affidavit of Probable Cause and

an Information--both prepared by O'Maley--alleging that Dix had

committed two class D felonies: Professional Gambling and Theft.

Defs. Ex. 10. Dix filed a motion to dismiss the charges and a motion to

suppress the evidence taken during the search, but the Wayne County

Court denied both motions. Defs. Ex. 11. A jury convicted Dix on both

counts on Apmil 21, 1993, and Dix received a 1 '42 year sentence. Defs.

Ex. 11. The Indiana Court of Appeals affirmed Dix's conviction on

August 30, 1994. Defs. Ex. 12.

On Apmil 20, 1993, police officers made a warrantless arrest of

Forman in the hallway of the Wayne County Courthouse. Defs. Ex. 13.

Lt. Smith had previously signed an Affidavit of Probable Cause against

Forman on June 29, 1992, based on Forman's knowledge and ownership

of the machines found during the first search of the Bingo Center. Defs.

Ex. 7. This Affidavit was filed with the Wayne County Court on April

30, 1993, and Forman was charged with two counts of Professional

Gambling. Defs. Ex. 7. On May 4, 1993, Forman filed a motion to

suppress the evidence found in the locked room at the Bingo Center.

After a hearing on the matter, the court granted Forman's motion and

stated that the officers should have obtained express consent prior to

removing the hinges from the door to the back room. Defs. Ex. 19.

O'Maley dismissed the case against Forman on August 18, 1993, and

stated that “the Court's ruling on the Defendant's Motion to Suppress

precludes further prosecution.” Defs. Ex. 20. On April 12, 1995, the

Indiana Court of Appeals reversed the trial court's decision on the

motion to suppress. Indiana v. Foreman, 649 N.E.2d 120 (Ind. Ct. App.

1995). Subsequently, in an Order dated March 18, 1996, the Supreme

Court of Indiana reversed the Court of Appeals. Indiana v. Foreman,

N.E.2d _, 1996 WL 116206 (Ind.).'

1

It is significant to remember the legal standards behind the appellate

review of this case. The Court of Appeals noted that the state must

show the tral court's ruling to be “contrary to law.” Forman, 649

AS

The third Plaintiff in the present action, Vanderpool, was also

arrested on charges relating to the gambling operations observed on

Apnil 3, 1992. During its investigation, the Police Department obtained

evidence that Vanderpool had assisted Forman in moving the machines

into the building, had supervised the customers' use of the machines, and

had paid the customers their winnings. Defs. Ex. 15. On June 29, 1992,

Lt. Smith signed an affidavit regarding Vanderpool's involvement with

the gambling machines and his assistance with the bingo operations.

Defs. Ex. 15. On April 30, 1993, O'Maley filed this affidavit and an

information regarding the gambling charges, and the court issued an

arrest warrant ten days later. Defs. Exs. 16, 17. Lt. Smith arrested

Vanderpool on June 2, 1993.: Defs. Ex. 18. O'Maley filed a motion to

dismiss the charges on May 9, 1994. Defs. Ex. 22.

N.E.2d at 123. “We will reverse a negative judgment only when the

evidence is without conflict and all reasonable inferences lead to a

conclusion opposite that of the trial court.” Id Upon review of the

evidence, the court determined that all the evidence pointed to the

conclusion that Ogletree had common authority over the premises.

“Notwithstanding the high standard which the State must overcome on

appeal from a negative judgment, we hold, as a matter of Jaw, that the

police officers’ belief that Ogletree possessed common authority over

the room leased to Foreman was reasonable." Id at 125 (emphasis

added).

In reversing the Court of Appeals, Indiana's Supreme Court did not

reach conclusions "as a matter of law" regarding the evidence. Instead,

the Court simply noted that "the evidence was at least conflicting that

the officers reasonably believed that Ogletree had common authority

over the leased premises." Forman, 1996 WL116206, at *2. Since

conflicting evidence existed, the Supreme Court concluded that the

Court of Appeals should have sustained the trial court. Id at *3

("[T]Jhere was sufficient evidence that Ogletree did not validly consent

to a search of the leased premises to support the trial court's grant of the

motion to suppress.").

A6

In the Amended Complaint, the Plaintiffs contend that Lt. Smith

and the Police Department violated 42 U.S.C. §§ 1983 and 1985. More

specifically, they assert that these Defendants violated their nghts under

the federal Constitution, the Indiana Constitution, and various other

Statutory provisions. The Plaintiffs also claim that they were subjected

to false arrest and false imprisonment.

On January 31; 1995, the Plaintiffs filed a Motion for Summary

Judgment. On February 1, 1995, Lt. Smith and the Police Department

also filed a Motion for Summary Judgment. These Motions are now ripe

for resolution.

11. SUMMARY JUDGMENT STANDARD

Motions for summary judgment are governed by Rule 56(c) of

the Federal Rules of Civil Procedure, which provides that a court shall

grant summary judgment where “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 a matter of law.” When

this standard has been met, summary judgment is mandatory. Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Shields Enters., Inc. v.

First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). The mere

existence of a factual dispute, by itself, is not sufficient to bar summary

judgment. Rather, the disputed facts must be outcome determinative.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Schroeder

v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). Only factual disputes that

might affect the outcome of the suit in light of the substantive law will

preclude summary judgment. Anderson, 477 U.S. at 248. Irrelevant or

unnecessary facts will not preclude summary judgment even when in

dispute. Clifton v. Schaefer, 969 F.2d 278, 281 (7th Cir. 1992). Guided

by these standards, this Court now considers the motions for summary

judgment. For the sake of clarity, this Order shall first discuss each

Plaintiffs’ § 1983 claims against Lt. Smith and then discuss the § 1983

claims against the Police Department. Next, the § 1985 claims shall be

discussed. Finally, this Order shall examine the claims against the John

Doe Defendants.

A7

Ill. THE § 1983 CLAIMS

Under 42 U.S.C. § 1983, a person “who, under color of any

Statute, ordinance, regulation, custom, or usage, of any state . . . subjects,

or causes to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at

law, suit, or other proper proceeding for redress.” To prevail in a § 1983

claim, a plaintiff must show that “(1) the defendant, while acting under

color of state law, engaged in specified conduct, and (2) the specified

conduct worked to deprive the plaintiff of rights privileges, or

immunities secured to [him] by the United States Constitution or other

federal law.” Bianton v. City of Indianapolis, 830 F. Supp. 1198, 1201

(S.D. Ind. 1993); Brown v, City of Lake Geneva, 919 F.2d 1299, 1301

(7th Cir. 1990).

A. FORMAN'S § 1983 CLAIMS AGAINST

LT. SMITH

In the Amended Complaint, Forman raises three separate

claims. First, he contends that Lt. Smith violated his constitutional

rights by conducting an illegal, warrantless search of the back room of

the Bingo Center. Second, he alleges that he was subjected to an

unconstitutional warrantless arrest unsupported by probable cause.

Third, he alleges that this warrantless arrest represented false arrest and

false imprisonment in violation of Indiana law. While these latter two

claims do not specifically mention Lt. Smith, Forman has contested Lt.

Smith's motions to dismiss these claims against him; therefore, this

Court shall examine whether summary resolution of these claims would

be appropriate.

1, THE WARRANTLESS SEARCH

In Count I, Forman alleges that Lt. Smith's search of the back

room of the Bingo Center violated the Fourth and Fourteenth

Amendments to the United States Constitution, as well as Article [,

A8

Section 11 of the Indiana Constitution. In response, Lt. Smith asserts

that, even if Forman's constitutional nghts have been violated, he is

entitled to qualified immunity and may not be held liable for any

violation.

Government officials performing discretionary functions

possess qualified immunity “insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). More specifically, a court must answer “the objective

(albeit fact-specific) question whether a reasonable officer could have

believed [the] warrantless search to be lawful, in light of clearly

established law and the information the searching officers possessed.”

Anderson v. Creighton, 483 U.S. 635, 641 (1987). The Supreme Court

has emphasized that courts must examine whether the law was clearly

established at the time an action occurred. “If the law at that time was

not clearly established, an official could not reasonably be expected to

anticipate subsequent legal developments, nor could he be fairly be said

to ‘know’ that the law forbade conduct not previously identified as

unlawful.” Harlow, 457 U.S. at 818.

Under these standards, Lt. Smith is entitled to qualified immunity

for the search of the locked room at the bingo center if he reasonably

believed the search to be lawful based upon clearly established law and

the facts he possessed at the time of the search. Certain aspects of

Fourth Amendment law must be considered “clearly established” for

purposes of the present case. While the Fourth Amendment generally

requires the police to obtain a warrant prior to initiating a search, “a

search conducted pursuant to a valid consent is constitutionally

permissible.” Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).

The Supreme Court has also indicated that a third party with common

authority over the premises may give consent to a warrantless search.

United States v. Matlock, 415 U.S. 164, 171 (1974). Moreover, “a

warrantless search is valid when based upon the consent of a third party

whom the police, at the time of the entry, reasonably believe to possess

common authority over the premises”--even if that third party does not

in fact possess such authority. Illinois v. Rodriguez, 497 U.S. 177, 179

(1990).

A9

According to these precedents, this Court must determine

whether Lt. Smith could reasonably have believed that Ogletree

possessed common authority over the locked room at the time of the

search. The facts indicate that such a belief would have been reasonable.

Upon entering the bingo center, Lt. Smith spoke with Ogletree, who

identified himself as the operator of the bingo center and the lessor of the

premises. Prior to initiating the search, Lt. Smith obtained a consent

form and read the contents to Ogletree. Ogletree indicated that he

understood the document and signed the form. When the police found

the back room to be locked, they did not consult with Ogletree but

instead removed the door from its hinges and entered the room, where

they discovered the gambling machines. The evidence does not suggest

that Ogletree ever attempted to withdraw or qualify his consent to

search. * Only after the police had discovered the machines did Ogletree

inform Lt. Smith that Forman had leased the room.

Based upon Ogletree's identification of himself as lessor of the

Bingo Center and Ogletree's signature on the consent form, Lt. Smith

could reasonably have believed that Ogletree had consented to a search

of the entire Bingo Center. At the very least, Lt. Smith could have

reasonably believed that Ogletree had common authority over the entire

premises. At the time Lt. Smith conducted this search, it was not clearly

established that an officer who has obtained written consent for a search

2

The lone evidence the Plaintiffs advance suggesting that Ogletree

had not consented to a search of the locked back room comes in an

Affidavit submitted by Vanderpool. According to Vanderpool, he heard

Ogletree tell Lt. Smith that another party had leased the locked room

prior to the removal of the hinges from the door. However, this

evidence constitutes hearsay which is not admissible for purposes of the

present motion.

Al0

must request a key to a locked room on the premises.’ Therefore, this

Court concludes that Lt. Smith could have reasonably believed the

warrantless search--including the removal of the door to the locked back

room--to be lawful. Accordingly, Lt. Smith possesses qualified

immunity and may not be held liable by Forman for any violation of his

constitutional rights resulting from the search of the Bingo Center.‘

2. THE WARRANTLESS ARREST

In Counts II and III, Forman alleges that various officials

violated his rights by arresting him. In these Counts, Forman does not

specifically mention Lt. Smith; however, Forman has opposed Lt.

Smith's efforts to have these Counts dismissed against him. In response

to an interrogatory asking if Forman contends that Lt. Smith ordered or

participated in his arrest, Forman responded: “Lt. Smith may deny his

role as one who either ordered the arrest or participated, but there are

sufficient facts to conclude that he, at minimum, knew about it, and at

maximum, ordered and/or participated in the same - based on the present

information.” Defs. Ex. 25.

Even assuming Counts II and III do state claims against Lt.

Smith, Forman's claims under these two cannot survive Lt. Smith's

3

In fact, the differing opinions of the Indiana Court of Appeals and

the Indiana Supreme Court illustrate the constitutional uncertainty

regarding this question. That two courts could approach this issue and

reach different conclusions suggests that the answer is far from “clearly

established.”

7

The Plaintiffs' counsel has argued forcefully that Lt. Smith lacked

probable cause to search the bingo parlor or the locked room. However,

since Lt. Smith obtained Ogletree's consent prior to initiating the search,

the question of probable cause has no relevance to the validity of the

search or to the existence of qualified immunity.

~<a,

All

Motion for Summary Judgment. As noted by the Seventh Circuit,

"[s]ection 1983 creates a cause of action based upon personal liability

and predicated upon fault. An individual cannot be held liable in a §

1983 action unless he caused or participated in an alleged constitutional

deprivation. " Rascon v. Hardiman, 803 F. 2d 269, 273 (7th Cir. 1986)

(emphasis omitted) (quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869

(7th Cir. 1983)); Lile v, Tippecanoe County Jail, 844 P. Supp. 1301,

1308 (N.D. Ind. 1986).

No facts presently before this Court directly establish that Lt.

Smith caused or participated in Forman's arrest. According to the

evidence, the police arrested Forman in a hallway at the police station,

and the facts do show that Lt. Smith was present at the time and place of

the arrest. In support of the claim that Lt. Smith may have caused or

participated in the arrest, Forman points to four f acts. First, prior to the

actual arrest, said “watch this” to another officer; after that, an officer

stopped Forman and placed handcuffs on him. Second, after Forman

had been led away, Lt. Smith laughed. Third, Lt. Smith participated in

the investigation from its outset, discussing various matters with

O'Maley. Fourth, the Plaintiffs note a conflict between interrogatory

answers of Lt. Smith and O'Maley. According to Lt. Smith, O'Maley

directed Officer Branum to make the arrest; however, O'Maley stated

that he did not learn about the arrest until after it had occurred.

While these facts do not constitute direct evidence that Lt. Smith

caused or participated in the decision to arrest Forman, they may create

at least a genuine issue of fact. However, even if Lt. Smith did cause or

participate in the arrest, he is entitled to qualified immunity for his

action. As previously noted, qualified immunity shields police officers

from suit for damages if “a reasonable officer could have believed [the

arrest] to be lawful, in light of clearly established law and the

information the [arresting] officers possessed.” Hunter v. Bryant, 502

US-224, 227 (1991); Edwards v. Cabrera, 58 F.3d 290, 292 (7th Cir.

1995). Of course, Lt. Smith would be entitled to qualified immunity if

he had probable cause to arrest Forman, meaning that “the facts and

circumstances within [his] knowledge . . . were sufficient to warrant a

prudent man in believing” that Forman had violated the law. Hunter,

502 U.S. at 228; Edwards, 58 F.3d at 292. A court should determine

Alz

whether the police had probable cause based upon the information

available to them at the time of the arrest. Brinegar v. United States,

338 U.S. 160, 175-76 (1949); Edwards, 58 F.3d at 292. However,

“fe]ven if probable cause was lacking with respect to this arrest, despite

_ [Lt. Smith's] subjective belief that [he] had probable cause, [he is]

entitled to qualified immunity as long as [his] belief was objectively

reasonable.” Edwards, 58 F.3d at 293; Hunter, 502 U.S. at 227.

When the police arrested Forman, they had observed the

gambling machines in the back of the Bingo Center. Ogletree informed

Lt. Smith that the room had been leased by Forman. Forman himself

confirmed that he had an interest in the machines. According to the

Probable Cause Affidavit, Forman, in the company of his attorney,

presented himself to the Wayne County Prosecutor's Office on April 6,

1992 and “stated that those machines were his and that he placed them

there in the Richmond Plaza Bingo Center for profit.” Defs. Ex. 7.

Based upon these facts, Lt. Smith could have reasonably believed that

probable cause existed to arrest Forman. Although O'Maley did

determine at a later time that probable cause did not exist, that

determination does not impact this Court's inquiry. Lt. Smith's qualified

immunity depends upon the known facts and law at the time of the

arrest--not upon subsequent legal analyses. This Court concludes,

therefore, that Lt. Smith is entitled to qualified immunity from Forman's

claims under Counts II and III of the Amended Complaint.

5

In addition, Forman has raised a general challenge to Lt. Smith's

credibility. In the Memorandum in Support of Summary Judgment and

the Response to Lt. Smith's Memorandum in Support of Motion for

Summary Judgment, the Plaintiffs' counsel notes certain inconsistencies

between Lt. Smith's statements in the various phases of the litigation

stemming from the search and subsequent arrests. For example, the

briefs note that Lt. Smith referred to “the Muncie FOP charity bingo

license” in the Dix Affidavit of Probable Cause; however, in the

Forman Affidavit of Probable Cause, Lt. Smith referred to a photocopy

of the bingo permit. While a “material misrepresentation in a probable

cause affidavit is actionable under § 1983,” Pennington v. Hobson, 719

Al3

B. DIX'S §1983 CLAIMS AGAINST LT. SMITH

In Counts IV, V, and VI of the Amended Complaint, Dix asserts

various claims against Lt. Smith. In Count IV, he challenges his arrest

on constitutional grounds; in Count V, he alleges that the arrest

represented false arrest or false imprisonment under Indiana law. In

Count VI, he claims that Lt. Smith and other unidentified Richmond

police officers committed the tort of defamation against him.

1. THE CONSTITUTIONAL CLAIMS

The constitutional claims raised in Count IV of the Amended

Complaint lack the focus of Forman's constitutional arguments. It

is not entirely clear whether Dix challenges his arrest or the April 8

search of the Bingo center. For purposes of thoroughness, this Court

shall assume that Dix challenges both.

Dix first claims that Lt. Smith did not have adequate probable

cause to support the issuance of the warrant for the April 8 search.

According to the evidence presently before this Court, after closing down

the bingo game on April 3, Lt. Smith told Ogletree that the game must

remain closed until Ogletree could provide a proper bingo permit. On

April 6, Ogletree provided Lt. Smith with a bingo permit issued by the

Indiana Secretary of State to the New Hope Missionary Baptist Church

(“New Hope Church”). In addition, Ogletree gave Lt. Smith an

Affidavit from Robert Gilbert, listed as a trustee of the New Hope

Church, stating that Ogletree had been given permission to use that

church's permit. Upon receiving this information, Lt. Smith began to

investigate whether the New Hope Church was, in fact, a legitimate

F. Supp. 760, 767 (S.D. Ind. 1989), the Plaintiffs never explain how

this or any of the other alleged misrepresentations might be material.

Accordingly, these inconsistencies do not impact Lt. Smith's ified

immunity.

Al4

entity.© After this investigation, Lt. Smith concluded that the church did

not meet Indiana's requirements for a bingo permit and obtained a

warrant to search the Bingo Center in Richmond.

Dix appears to contend that Lt. Smith could not have had

probable cause to support the search of the Bingo Center on Apmil 8,

1992, because he had not conducted a thorough enough investigation of

the New Hope Church prior to obtaining the warrant. Specifically, Dix

contends that Lt. Smith should have checked the church's status with the

Internal Revenue Service and with the Ohio Secretary of State.

This Court does not agree. The Seventh Circuit has noted that

“once police officers have discovered sufficient facts to establish

probable cause, they have no constitutional obligation to conduct any

further investigation in the hopes of uncovering potentially exculpatory

evidence.” Schertz v. Waupaca County, 875 F.2d 578, 583 (7th Cir.

1989). Based upon the information Lt. Smith uncovered in his

6

First, Lt. Smith went to the church's listed address in Dayton, Ohio,

where he found the only building with that address was a commercial

building containing only a dentist's office and’ an accountant's office.

Next, Lt. Smith telephoned the Indiana Secretary of State to verify the

church's address. Another Richmond police officer, James Branum,

traveled to the church's listed address in Dayton and discovered the

accountant maintaining an office at that address was Gilbert. Gilbert

gave Branum a different address for the church, but Branum did not

find the church at that address, either. Gilbert then told Branum that

they were sharing a church at a third address; however, Branum found

only a vacant lot in this location. Lt. Smith also discovered that the

articles of incorporation for the New Hope Church did not list Gilbert

as a trustee. Additionally, when Ogletree first informed Lt. Smith that

he was the operator of the Bingo Center, he identified himself as a

trustee of Elks International Fraternity; however, under Indiana Code §

4-32-3-2, Elks International could not operate a game for another

organization.

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Al5

investigation, he reasonably concluded that the church did not meet

Indiana's requirements for a bingo permit; therefore, he determined that

the Bingo Center was operating without a valid permit. Because he

reasonably believed the bingo game violated Indiana law, he had

sufficient probable cause to support the warrant. No constitutional

mandate required him to contact the Internal Revenue Service or the

Ohio Secretary of State.’

Dix also suggests that his warrantless arrest violated

constitutional standards. This Court finds no merit in this contention.

According to the evidentiary materials, Lt. Smith arrested Dix based on

his observations during the initial search of the Bingo Center on April 3.

On that evening, Lt. Smith observed Dix counting money and making

records regarding the night's bingo operations. This observation created

probable cause sufficient to support Dix's warrantless arrest five days

later.

Moreover, even if probable cause were found to be lacking for

the search warrant or the warrantless arrest, Lt. Smith would still possess

qualified immunity for his actions. Based upon the facts and law known

to Lt. Smith at the time of these actions, he could reasonably have

believed that probable cause existed. Therefore, this Court concludes

that probable cause supported the search warrant and the warrantless

arrest of Dix and that Lt. Smith possesses qualified immunity for his

actions in regard to the search and the arrest.

2. F NT

Dix also contends that his arrest and incarceration constituted

false arrest and false imprisonment under Indiana law. However,

qualified immunity shields police officers from suit for damages if “a

7

Interestingly, although Dix contends that Lt. Smith should have

contacted these two entities, no evidence in the record presently before

this Court reveals what Lt. Smith might have learned through such a

continuance of his investigation.

Al6

reasonable officer could have believed [the arrest] to be lawful, in light

of clearly established law and the information the [arresting] officers

possessed.” Hunter v. Bryant, 502 U.S. 224, 227 (1991); Edwards v.

Cabrera, 58 F.3d 290, 292 (7th Cir. 1995). As noted above, the

evidentiary materials presently before this Court establish that probable

cause existed to support Dix's arrest. Even if such probable cause did

not exist, however, a reasonable officer could have believed that Dix's

arrest would be lawful based upon Dix's actions on April 3. Therefore,

this Court concludes that probable cause supported Dix's arrest and that

Lt. Smuth has qualified immunity for his actions in association with this

arrest.®

3. DEFAMATION

In Count VI, Dix raises a claim for defamation against Smith

and various other unidentified officers of the Police Department. Dix

alleges that the officers made certain statements to a newspaper or to

various newspapers regarding his arrest and that those statements

imputed criminal activity to him and caused him harm.

Under Indiana law, the tort of defamation involves four elements:

“(1) communication with defamatory imputation; (2) malice; (3)

publication; and (4) damages.” Schaefer v. Newton, 868 F. Supp. 246,

(S.D. Ind. 1994), aff'd, 57 F.3d 1073 (7th Cir. 1995); Schrader v. Eli

Lilly & Co., 639 N.E.2d 258, 261 (Ind. 1994), reh. denied. In the

present case, Dix's defamation claim cannot withstand Lt. Smith's

Like Forman, Dix emphasizes that various inconsistencies exist

between Lt. Smith's statements in his various testimony. However, Dix

fares no better than Forman in explaining how the difference between

a bingo license and a photocopy of a bingo license represents a

“material misrepresentation.” Accordingly, this Court finds no merit to

Dix's claim that these inconsistencies defeat Lt. Smith's claim of

qualified immunity.

Al7

Motion for Summary Judgment since Dix has not identified any

defamatory statement. While Dix refers to newspaper articles in the

Amended Complaint, he has only included one such article in the

evidentiary materials. Exs. Attached to Pls. Resp. to Lt. Smith's Memo.

in Supp. of Mot. for Summ. J. (hereinafter “Pls. Resp. Exs.”). This

article, dated Thursday, May 7, 1992, notes that the Indiana State Police

had seized thirty-one gambling machines from seven Richmond area

fraternal organizations and one local business the previous afternoon.

The article goes on to identify the locations from which the machines had

been seized and the value of the machines. The final paragraph of the

article states: “On April 4, Richmond Police conducted a similar raid at

Richmond Plaza Bingo, 1815 National Road W., and confiscated ten

video poker and slot machines. The bingo hall was shut down for

operating without a permit.”

This article never mentions Dix. Although the Plaintiffs' Brief

requests summary judgment on this issue, the Plaintiffs have not

provided any evidence suggesting that Lt. Smith or any other Richmond

police officer made a defamatory statement about Dix. Therefore, this

Court believes that summary resolution of this claim in favor of Lt.

Smith is appropriate at this time.

C. VANDERPOOL'S § 1983 CLAIMS.

AGAINST LT. SMITH

Like the other plaintiffs in this action, Vanderpool raises two

separate challenges to his arrest. First, he asserts that the arrest violated

various constitutional provisions; second, he contends that the arrest

represented false arrest or false imprisonment. These claims may be

treated simultaneously.

Unlike Forman and Dix, Vanderpool was arrested by Lt. Smith

pursuant to an arrest warrant. On June 29, 1992, Lt. Smith signed an

Affidavit of Probable Cause, attributing certain illegal actions to

Vanderpool. This Affidavit contains a detailed discussion of the

discovery of the gambling machines during the search of the Bingo

Center on April 3, the operation of the machines, and Vanderpool's role

Al8

in supervising the use of the machines. On April 30, 1993, O'Maley

filed this Affidavit of Probable Cause and an Information charging

Vanderpool with two counts of professional gambling. On May 10,

1993, the Wayne County Court issued a warrant for Vanderpool's arrest,

and Lt. Smith arrested Vanderpool on June 2. On May 9, 1994,

however, O'Maley filed a motion to dismiss the charges against

Vanderpool.

The subsequent decision to dismiss the gambling charges against

Vanderpool dces not impact the determination of whether probable cause

existed for the initial arrest. Rather, this Court must ascertain whether

“the facts and circumstances” within Lt. Smith's knowledge at the time

of the arrest “were sufficient to warrant a prudent man in believing” that

Vanderpool had violated the law. Hunter, 502 U.S. at 228; Edwards, 58

F.3d at 292. According to Lt. Smith's Affidavit, the investigation

suggested that Vanderpool had not only supervised the customers’ use of

the machines but had also paid the customers their winnings. This

evidence suffices to show that Lt. Smith had probable cause to arrest

Vanderpool.

However, Vanderpool has also raised a challenge to the veracity

of Lt. Smith's affidavit. In doing so, he bears a high burden, for courts

award “great deference” to a magistrate's conclusion that a warrant

should issue. United States v. Leon, 468 U.S. 897, 914 (1984).

However, such deference “is not boundless,” and a court may inquire

“into the knowing or reckless falsity of the affidavit on which that

determination was based.” Id. In Franks v. Delaware, 438 U.S. 154,

155-56 (1978), the Supreme Court held:

where the defendant makes a substantial preliminary

showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the

allegedly false statement is necessary to the finding of

probable cause, the Fourth Amendment requires that a

hearing be held at the defendant's request. In the event that

at that hearing the allegation of perjury or reckless

disregard is established by the defendant by a

preponderance of the evidence, and, with the affidavit's

Al9

false material set to one side, the affidavit's remaining

content is insufficient to establish probable cause, the

warrant must be voided... .

In asserting that Lt. Smith "knowingly and intentionally”

included false statements in the Affidavit of Probable Cause, Vanderpool

points to the same inconsistencies identified by Forman and Dix. Once

again, Vanderpool emphasizes that Lt. Smith referred to the bingo

license in one Affidavit of Probable Cause and the copy of the bingo

license in another Affidavit of Probable Cause. Like the other Plaintiffs,

however, Vanderpool fails to attribute any legal significance to this

distinction. Vanderpool does not show that Lt. Smith made any

misrepresentation “knowingly and intentionally, or with reckless

disregard for the truth.” Most importantly, however, Vanderpool does

not show that the remainder of the Affidavit fails to establish probable

cause. Even without any reference to the facts challenged by

Vanderpool, it appears likely that the Court would still have issued the

arrest warrant. Therefore, Vanderpool's challenge to the Affidavit of

Probable Cause fails as a matter of law, and the finding of probable

Cause remains intact.

Since the Wayne County Court determined that probable cause

supported Vanderpool's arrest, Lt. Smith did not violate the

constitutional provisions by carrying out that arrest. Moreover,

Vanderpool's arrest was neither false arrest nor false imprisonment.

This Court also notes that, based upon the facts and law known to him

at the time, Lt. Smith would also have possessed qualified immunity for

his role in the arrest.

D. THE PLAINTIFF'S §1983 CLAIMS.

AGAINST THE POLICE DEPARTMENT

The three Plaintiffs have raised the same § 1983 claims against

the Police Department that they raised against Lt. Smith. However,

these claims against the Police Department cannot survive the present

motion for summary judgment. First, it is questionable whether a

plaintiff may properly assert a § 1983 claim against a city police

A20

department. “A city's police department is merely a vehicle through

which the city government fulfills its policy functions and is not a proper

party defendant.” Jones v. Bowman, 694 F. Supp. 538, 544 (N.D. Ind.

1988) ; Slay v. Manion County Sheriff's Dept., 603 N.E.2d 877, 887

(Ind. Ct. App. 1992).

Moreover, even if the Plaintiffs may pursue a §1983 action

against a city police department, their claims cannot survive the present

motion for summary judgment since they have failed to show that they

suffered a deprivation of their constitutional rights as a result of some

official policy or custom. As recently noted by this Court, to prevail in

a § 1983 “against a municipality, a municipal officer in his or her official

Capacity. . . . or a municipal department or agency,” a plaintiff must

prove “that the constitutional deprivation was caused by enforcement or

exercise of a municipal policy or custom.” Blanton, 930 F. Supp. at

1198 (citations omitted). In other words, “a direct-causal link” must

exist between the “municipal policy or custom and the alleged

constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385

(1989). Moreover, the plaintiffs must submit evidence suggesting “that

the claimed policy or custom actually exists, and that the alleged

deprivation resulted from enforcement or pursuit of that policy--i.e., that

the deprivation was not an ‘isolated’ incident.” Blanton, 830 F. Supp. at

1202.

In the present case, the Plaintiffs have not shown any

constitutional deprivation resulting from an official policy or custom. In

responding to the Defendants’ Motion for Summary Judgment, the

Plaintiffs contend that “liability would flow from the policy and custom

established concerning the selective enforcement of the gambling laws

of the State of Indiana by the City of Richmond.” Pls. Resp. to Lt.

Smith's Memo. in Supp. of Mot. for Summ. J. (“Pls. Resp.”), pp. 14-15.

The Plaintiffs claim that the Police Department possessed information

about other gambling in Richmond which was not “subject to the same

enforcement efforts/levels.” Pls. Resp., p. 15. They charge that the

Police Department selectively enforced the gambling laws by prosecuting

non-residents while tolerating local gambling. Pls. Resp., p. 15.

A21

The Plaintiffs have offered no evidence to support these

assertions. In fact, the Plaintiffs' own evidentiary materials undermine

their theory of selective enforcement. According to the newspaper article

appended to the Plaintiff's Response, Indiana State Police--assisted by

eleven Richmond police officers--seized thirty-one gambling machines

from seven Richmond area fraternal organizations and one local business

on May 6, 1992. These seizures refute the Plaintiffs' claim that Lt.

Smith and the Police Department singled them out for investigation and

prosecution; rather, the Plaintiffs' own evidence suggests that the Police

Department actively enforced the state's gambling laws and subjected

known violators to similar enforcement efforts.

The Plaintiffs have not established that the Police Department

pursued an official policy of selective enforcement against nonresidents;

therefore, this Court awards summary judgment in favor of the Police

Department on the Plaintiffs’ § 1983 claims.

IV. THE PLAINTIFF'S § 1985 CLAIMS

The Plaintiffs have also stated claims against Lt. Smith and the

Police Department under 42 U.S.C. § 1985; however, these claims also

lack sufficient evidentiary support. As this Court recently noted, to

prevail in an action under § 1985, a plaintiff must show

(1)a conspiracy, (2) a purpose of depriving any person or

class of persons of equal protection, or equal privileges

and immunities, under the laws, (3) an act in furtherance of

- the conspiracy, (4) a resulting injury to person or property,

or a deprivation of rights, and most importantly (5) a racial

or otherwise class-based discriminatory animus.

Blanton, 830 F. Supp. at 1203 (citing Quinones v. Szore, 771 F.2d 289,

291 & n.1 (7th Cir. 1985).

In the present case, the Plaintiffs have provided no evidence as

to the fifth necessary element: “racial or otherwise class-based

discriminatory animus.” The Plaintiffs' Response notes that “the objects

of the criminal prosecutions were all associated with the Richmond Plaza

Bingo, where Ogletree and Dix were dark skinned/resident(s) of the

A22

State of Ohio, Forman was a non-resident of Delaware County, and

Vanderpool was a resident of Wayne County, associated with the Bingo

Center.” Pls. Resp., p. 17. The differing races of the three Plaintiffs

defeats any claim that Lt. Smith or the Police Department discriminated

against the Plaintiffs based upon their race. Further, the Plaintiffs have

not provided adequate evidence to suggest that they were discriminated

against because they were non-residents of Richmond.’ Therefore, this

Court concludes that the Plaintiffs have not made an adequate showing

on the fifth required element of a claim under § 1985.'° Therefore, this

Court believes summary judgment may appropriately be awarded in

favor of Lt. Smith and the Police Department on the Plaintiffs' § 1985

claims.

Y. THE JOHN DOE DEFENDANTS

In addition to the named Defendants, the Plaintiffs have brought

claims against fifty John Doe Defendants. According to the Amended

Complaint, these Defendants “are police officers with the City of

Richmond Police Department in and around April, 1992, and thereafter,

9

In discussing the Plaintiffs' §1983 claim against the Police

Department, this Court noted that the Plaintiffs submitted a newspaper

article which mentioned that Indiana State Police Officers and

Richmond Police Officers seized thirty-one gambling machines from

seven Richmond area fraternal organizations and one local business on

May 6, 1992. This further undermines the Plaintiffs' suggestion that the

Police Department and Lt. Smith conspired against them based upon

their state or county of residence.

10

This Court makes no finding as to whether the Plaintiffs have

provided adequate evidence of the remaining four elements of a § 1985

claim.

A23

and other persons whose names and actions are currently unknown to the

Plaintiffs’ at this time, and the Plaintiffs' will amend the complaint to

name the person(s) and their actions when fully ascertained.” Amended

Complaint, 12, Although the Plaintiffs filed their Amended Complaint

on July 5, 1994, these John Doe Defendants still have not been

identified.

As noted by the Seventh Circuit, “[a] cause of action under 1983

for an improper arrest or search accrues at the time of the arrest or

search.” Perez v. Sifel, 57 F.3d 503, 505 (7th Cir. 1995). Moreover,

“the two year Indiana statute of limitations for personal injuries (Ind.

Code § 34-1-2-2) applies to § 1983 claims.” Although a plaintiff may

file a complaint against a John Doe Defendant, the plaintiff must identify

that defendant within the limitations period; otherwise, any amendment

of the complaint to name the individual would not be timely unless the

amendment related back or the statute of limitations had been tolled.

Worthington v. Wilson, 8 F. 3d 1253, 1255 (7th Cir. 1993); Perri v.

Daggy, 776 F. Supp. 1345, 1349 (N_D. Ind. 1991). In the present case,

the most recent event challenged by the Plaintiffs is Vanderpool's arrest,

which occurred on June 2, 1993. Accordingly, statute of limitations

expired--at the latest--in June of 1995. Because the Plaintiffs failed to

identify the John Doe Defendants within the applicable two-year period,

their claim against these Defendants is time barred.

Also, while the Amended Complaint does mention “other

persons whose names and actions are currently unknown,” the Amended

Complaint only mentions the actions of unidentified police officers. In

discussing the Claims against Lt. Smith, this Court noted that

government officials possess qualified immunity if “insofar as their

conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow, 457

US. at 818. The facts and law in the present case supported the search

of the Bingo Center and the arrests of Forman, Dix, and Vanderpool,

Presumably, any other officers involved in the search or the arrest of

these three individuals would receive the same qualified immunity as Lt.

This Court recognizes that a district judge may grant summary

judgment in favor of a party which has not requested it. Hunger v.

A24

Leininger, 15 F.3d 664, 669 (7th Cir.), cert. denied, 115 S.Ct. 123

(1994), Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1226 (7th

Cir. 1993). Based upon the expiration of the limitations period and the

existence of qualified immunity, this Court believes summary resolution

in favor of the John Doe Defendants is appropriate at this time.

CONCLUSION

For the reasons stated above, this Court now GRANTS the

Motion for Summary Judgment filed by Lt. Smith and the Police

Department on all Counts of the Plaintiffs' Complaint. Also, this Court

DENIES the Motion for Summary Judgment filed by the Plaintiffs.

Finally, this Court GRANTS Summary Judgment in favor of the

unidentified John Doe Defendants.

IT IS SO ORDERED this Ist day of April, 1996.

LARRY J. McKINNEY, JUDGE

United States District Court

Southern District of Indiana

A25

App. “B”

No. 89SOl - 9508 - CR -979

STATE of Indiana,

Appellant,

¥.

Marc FOREMAN, a/k/a Marc Forman,

Appellee.

Supreme Court of Indiana.

March 11, 1996.

Defendant was charged with professional gambling and the

Wayne Circuit Court, Douglas Van Middlesworth, J, granted

Appeals, Najam, J., reversed. Transfer was granted. The Supreme

Court, Sullivan, J., held that: (1) belief that third party had common

authority over leased premises was unreasonable; (2) there was no

evidence that third party consented to search of locked room; (3)

defendant had subjective expectation of privacy in room; and (4)

expectation of privacy was reasonable.

Affirmed.

Opinion, 649 N.E.2d 120, vacated.

Appeal from the Wayne Circuit Court; The Honorable Douglas

Van Middlesworth, Judge, Cause No. 89CO1-9304-CR-47.

Pamela Carter, Attorney General, Geoff Davis, Deputy

Attorney General, Indianapolis, for Appellant.

Thomas D. Margolis, Muncie, for Appellee.

ON PETITION TO TRANSFER

A26

SULLIVAN, Justice.

Facts

Defendant Marc Foreman, a.k.a. Marc Forman, leased a room

at the Richmond Plaza Bingo Center in Richmond, Indiana, from Luther

Ogletree, the operator and manager of the bingo hall.

On April 3, 1992, after receiving a report that unauthorized

bingo games were being conducted at the bingo center, investigator Mark

Smith with the Special Unit of the Richmond Police Department went to

the bingo center to see if it was operating under a proper gambling

permit. Upon his arrival to the bingo center, Smith observed several

hundred people playing bingo. Smith also learned that there was no

proper permit for the bingo games and subsequently ordered the games

to cease.

While Smith was at the bingo center, Ogletree identified himself

to Smith as the operator of the bingo center and the leaseholder on and

lessor of the premises, and then gave Smith written consent to search the

premises. During the search of the premises, Smith and assisting

Officers encountered a locked door. The officers removed the door from

its hinges and entered the room behind the door. Inside the room the

officers found ten video gambling machines with stools in front of them.

Ogletree told Smith the machines were not his and that he was renting

the room to defendant. The door to the room was generally left open

during bingo games to allow access to patrons of the bingo hall.

On April 30, 1993, Foreman was charged with two counts of

professional gambling, both Class D felonies.’ In response, Foreman

filed a motion to suppress and a motion to dismiss, claiming that

1

Ind.Code § 35-45-5-3(3) and (6).

A27

Ogletree's consent to search was invalid as to the room leased by him.

The trial court granted Foreman's motion to suppress and in doing so

Stated: |

The argument that the police believed they had valid

consent to search the premises would be more persuasive

had they asked the presumed consenting party to unlock

the door rather than taking the door off its hinges to gain

entry... The requirement of a search warrant is intended to

protect all from unreasonable searches. The present case

highlights the importance of obtaining a warrant when

possible. In the present case, first hand information

concerning the activities, in the subject room was

obtainable with a minimal police investigation. The police

already suspected illegal gaming in the room, having

received several tips. There were numerous customers and

workers at the Bingo Plaza that had access to the room and

were familiar with the activities therein. An undercover

agent could have obtained access with little apparent

difficulty. The prudent steps of obtaining a warrant would

have prevented the illegal search problem.

Thereafter, the State filed a motion to dismiss, which the trial

court later granted. The State then appealed the trial court's granting of

Foreman's motion to suppress, claiming that the search was valid. The

Court of Appeals agreed and reversed the trial court. Indiana vy.

Foreman, 649 N.E.2d 120, 125 (Ind.Ct.App. 1995). Judge Baker

dissented and agreed with the trial court that valid consent had not been

obtained in this case and that therefore a warrant was necessary. Id.

Foreman seeks review of the Court of Appeals decision and we granted

transfer on August 17, 1995.

Discussion

Foreman maintains that the trial court was correct in granting

his motion to suppress, because the State's warrantless search of the

room he leased at the bingo center constituted a violation of his Fourth

A28

Amendment rights.” The State asserts, and the Court of Appeals agreed,

that there was no Fourth Amendment violation since the police

conducted the search with the consent of Ogletree, whom the police

reasonably believed to have authority over the premises searched.

Under the Fourth Amendment to the United States Constitution,

applicable to the states through the Fourteenth Amendment, all searches

of private property must be reasonable. U.S. Const. amend. IV; Fair v.

State, 627 N.E.2d 427, 430 (Ind.1993). “A warrantless search is

presumed to be unreasonable, and the State bears the burden to show

that the search falls under an exception to the warrant requirement.”

Smith v. State, 565 N.E.2d 1059, 1060 (Ind.1991) (citing Brooks v.

State, 497 N.E.2d 210 (Ind. 1986)). The validity of a warrantless search

turns upon the facts of each case. Savage v. State, 523 N.E.2d 758, 760

(Ind. 1988).

As the Court of Appeals correctly pointed out, "a valid consent

to search obviates the necessity of a warrant." 649 N.E.2d at 123 (citing

Stallings v. State, 508 N.E.2d 550, 552 (Ind. 1987)). Consent to search

may be granted by a third party who has common control over the

premises searched. United States v. Matlock, 415 U.S. 164, 171, 94

S.Ct. 988, 993, 39 L.Ed. 2d 242 (1974). To establish common authority,

the State must show that the third party had joint access or control over

the premises. Id. at 171 n. 7, 94 S.Ct. at 993 n. 7.

In this case, the Court of Appeals declined to determine whether

or not Ogletree had common authority over the leased premises, because

even where a third party does not actually have common control over the

premises, if the police at the time of the entry reasonably believed that

2

The Fourth Amendment to the U.S. Constitution reads, "[t]he nght

of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.”

A29

the third party had common control over the premises, the warrantless

entry may be valid. Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S.Ct.

2793, 2796-2797, 111 L.Ed.2d 148 (1990). The Court of Appeals

applied the Rodriguez analysis to the facts of this case and concluded

that the police officers reasonably believed that Ogletree had common

authority over the leased premises. In so concluding, the Court of

Appeals relied on the facts that Ogletree informed the police that he was

the operator of the bingo game and the leaseholder on the premises, that

Ogletree gave permission to search the Richmond Plaza Bingo Hall, and

that the officers did not find out that Foreman leased the room until after

the search was conducted. 649 N.E.2d at 125.

We do not find the Court of Appeal's analysis convincing for

several reasons. First, in light of the fact that the police officers took the

door off of its hinges to gain access to the room instead of merely asking

Ogletree to unlock the door, the evidence is at least conflicting that the

officers reasonably believed that Ogletree had common authority over

the leased premises. Second, and more importantly, we believe that even

if the officers had reasonably believed that Ogletree had common

authority over the leased premises, we find no evidence that Ogletree

consented to the search of the locked room. It is irrelevant whether or

not the officers thought Ogletree had common authority over the leased

premises if it is not first clear that he actually consented to a search of

the leased premises. Rodriguez, 497 U.S. at 177, 110 S.Ct. at 2795

(third party clearly consented to search first). As the trial court said,

“The argument that the police believed they had valid consent to search

the premises would be more persuasive had they asked the presumed

consenting party to unlock the door rather than taking the door off its

hinges to gain entry.” (emphasis added).

We agree with the trial court that had the police reasonably

believed that Ogletree gave permission to search the room, the police

simply would have asked Ogletree to unlock the door. Instead, the police

took the door off its hinges to gain access to the room. We acknowledge

that Ogletree had signed a written consent permitting a search of the

Richmond Plaza Bingo Hall, without any explicit exclusion of the locked

room. However, we cannot reconcile that fact with the inconsistent

behavior of the police in removing the door off the hinges when Ogletree

A30

was standing night there and could have easily provided a key to unlock

the door. We conclude there was sufficient evidence that Ogletree did

not validly consent to a search of the leased premises to support the trial

court's grant of the motion to suppress.’

"[A] Fourth Amendment violation must establish (i) that the

defendant had an actual or subjective expectation of privacy and (ii) that

the claimed expectation must be one which society recognizes as

reasonable." Blalock v. State, 483 N.E.2d 439, 441 (Ind. 1985) (citing

Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d

220 (1979) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967)). This two prong test was initially espoused in

Justice Harlan's weil known concurrence in Katz and has come to play

a vital role in Fourth Amendment jurisprudence.

A

The first prong of the test requires a determination that the

defendant held an actual, subjective expectation of privacy in the area

searched. Katz, 389 U.S. at 361, 88 S.Ct. at 516-17. In making this

determination, courts have historically looked to the steps that the

defendant took to preserve his or her privacy. See California v. Ciraolo,

476 US. 207, 106 S.Ct. 1809, 90 L.Ed. 2d 210 (1986) (A ten foot fence

placed by the defendant around his yard was evidence that he took

precautions to maintain his privacy, at least with respect to street level

viewers.); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53

L.Ed.2d 538 (1977) (By taking steps to place his personal effects in a

locked footlocker, the defendant manifested an expectation of privacy.);

Katz, 389 U.S. at 351-52, 88 S.Ct. at 511 (“What a person knowingly

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

3

The State also argues that even if valid consent was not given, the

defendant did not have a legitimate expectation of privacy in the area

searched and that therefore the search did not violate the defendant's

Fourth Amendment nghts.

A31

the Fourth Amendment protection... But what he seeks to preserve as

private, even in an area accessible to the public, may be constitutionally

protected.") (emphasis added); and United States v. Burnett, 890 F.2d

1233, 1239 (D.C.Cir. 1989) (In determining that defendant did not have

a reasonable expectation of privacy, court focused on steps not taken to

preserve privacy. “Had Burnett's subjective expectation of privacy been

more pronounced, he would, presumably, have closed the door to the

bedroom in which he was staying...” (emphasis added).

The State argues that the defendant took no precautions to

maintain privacy because the room he leased was open to the public.

Although it is true that the room was open to the general public during

business hours, at the time that the officers encountered it, the room was

no longer open to the public. Sometime before encountering the locked

door, the police had ordered the games to cease, which thereafter

effectively closed the center. One of the employees had then closed and

locked the door to the leased room, cutting off access at that point to the

general public.

In this, case, we acknowledge that had the officers entered the

room while the door was open and the rest of the public had access, the

defendant likely would not have had an expectation of privacy at that

time. See Marvland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86

L.Ed 2d 370 (1985) (There is no reasonable expectation of privacy in an

area that is open to the public.) But that is not what happened here--as

demonstrated by the fact that the police could only gain access by

removing the doors from its hinges while it was closed and locked.

Furthermore, it has been held that in order to claim a defendant

did not have an expectation of privacy in premises that were open to the

public, the officers must have viewed incriminating evidence as regular

customers would. "[G]overnment agents cannot attempt to justify a

warrantless search on a claim of reduced expectation of privacy on

business premises when the agents do not see the items as a customer

would ordinarily see them." United States v. Swart, 679 F.2d 698, 701

(7th Cir. 1982) (citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329,

99 S.Ct. 2319, 2326, 60 L_Ed.2d 920 (1979)). Since the officers had to

A32

remove the door from its hinges, it is clear that the officers did not enter

the premises as regular customers during business hours would.

In addition, we agree with the Court of Appeals that the mere

fact that Ogletree and a few other entrusted persons had a key to the

premuses did not negate defendant's reasonable expectation of privacy.‘

The fact that other employees or entrusted people have a key to one's

office does not defeat that person's expectation of privacy in his or her

commercial premises. United States v. Taketa, 923 F.2d 665, 673 (9th

Cir. 1991) (“[A]llowing the existence of a master key to overcome the

expectation of privacy would defeat the legitimate privacy interest of any

hotel, office, or apartment nan Privacy does not require

solitude.”’).

When the doors were closed and locked and access to the general

public cut off, a measure was taken to maintain privacy with respect to

that room. In light of this effort, we believe the defendant had a

subjective expectation of privacy at least during the times that the door

was closed and locked and general public access denied.

This does not end our inquiry, however, as we must further

determine whether Foreman's expectation of privacy in this case is one

that society would recognize as reasonable. Katz, 389 U.S. at 361, 88

S.Ct. at 516-17.

4

Given the Court of Appeals' disposition of this case, it found it

unnecessary to decide whether Foreman had a reasonable expectation

of privacy in the locked room. The Court of Appeals did observe,

however, that it agreed with the trial court that lessor's mere limited

right to enter the room and possession of a key do not overcome the

defendant's expectation of privacy in the leased room. 649 N.E.2d at

124 n. 3.

A33

Although the expectation of privacy with regard to commercial

premises is less than the expectation of privacy with regard to private

homes, New York v. Burger, 482 U'S. 691, 107 S.Ct. 2636, 96 L.Ed.2d

601 (1987),° the United States Supreme Court has established that the

Fourth Amendment prohibition against unreasonable searches does

apply to commercial businesses. Marshall vy. Barlow's, Inc., 436 U.S.

307, 311, 98 S.Ct.1816, 1819-20, 56 L.Ed.2d 305 (1978)(“The Warrant

Clause of the Fourth Amendment protects commercial buildings as well

as private homes. To hold otherwise would belie the origin of that

amendment, and the importance of the American colonial experience.”’)

As we discussed in part II-A, supra, an expectation of privacy in

business premises while general public access is available is not likely

to be considered reasonable, at least as long as the officers view items as

ordinary customers would. See Macon, 472 U.S. 463, 105 S.Ct. 2778,

and Swart, 679 F.2d 698. However, in a case such as this one, where the

general public no longer had access to the room and the door was closed

and locked, we believe society would recognize defendant's expectation

of privacy as reasonable. Simply because one allows general access to

a facility during certain times, does not mean that person has forgone any

expectation of privacy with respect to that facility during times he or she

wishes to exclude others. In fact, we are hard pressed to think of a

situation where our society would be more likely to recognize that a

commercial establishment's expectation of privacy is reasonable than

when the doors have been closed and locked and business hours are over.

Finally, we believe this conclusion is consistent with the United States

Supreme Court's recognition of what it called "our society's historical

understanding that owners of such [commercial] property have a

legitimate interest in being free from unnecessary government

inspections." Marshall, 436 U.S. at 311-313, 98 S.Ct. at 1819-1821.

5

“An expectation of privacy in commercial premises ... is less than

a similar expectation in an individual's home." Burger, 482 U.S. at 699,

107 S.Ct. at 2642 (citing Donovan v, Dewey, 452 U.S. 594, 598-99,

101 S.Ct. 2534, 2538, 69 L.Ed.2d 262 (1981)).

A34

Conclusion

Because the defendant had a reasonable expectation of privacy in

the leased room, there was no valid consent to search the premises, and

no other valid exception to the warrant requirement was claimed, the

warrantless search of the leased premises was unconstitutional and the

tnal court's motion to suppress was appropriate.

Therefore, we vacate the decision of the Court of Appeals and

affirm the trial court's grant of defendant Foreman's motion to suppress.

SHEPARD, C.J., and DEBRULER, DICKSON and SELBY, JJ.,

concur.

A35

App. “C”

Amendment IV

United States Constitution

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

A36

App. “>

Amendment XIV

United States Constitution

Section 1. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several

States according to their respective numbers, counting the whole number

of persons in each State, excluding Indians not taxed. But when the right

to vote at any election for the choice of electors for President and Vice

president of the United States, Representatives in Congress, the

Executive or Judicial officers of a State, or the members of Legislatures

thereof, is denied to any of the male inhabitants of such State, being

twenty-one years of age, and citizens of the United States, or in any way

abridged, except for participation in rebellion, or other crime, the basis

of representation therein shall be reduced in proportion which the

number of such male citizens shall bear to the whole number of male

citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or representative of Congress,

or elector of President and Vice President, or hold any office, civil or

military, under the United States, or under any State, who, having

previously taken an oath, as a member of Congress, or as an officer of

the United States, or as a member of any State Legislature, or as an

executive or judicial officer of any State, to support the Constitution of

the United States, shall have engaged in insurrection or rebellion against

the same, or given aid or comfort to the enemies thereof. But Congress

may vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of pensions or

A37

bounties for services in suppressing insurrection or rebellion, shall not

be questioned. But neither the United States nor any State shall assume

or pay any debt or obligation incurred in aid or insurrection or rebellion

against the United States, or any claim for the loss of emancipation of

any slave; but all such debts, obligations and claims shall be held illegal

and void.

Section 5. The Congress shall have the power to enforce, by appropriate

legislation, the provisions of this article.

A38

App. “E”

42 US.C. § 1983

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable.

For the purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to be a statute

of the District of Columbia.

;

b

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