# Opposition Brief — Forman v. City of Richmond

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 997

## Text

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.

~

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
ba

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1504%3A2. Public record. Not legal advice.