United States District Court, S.D. Indiana, Indianapolis Division
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
DEBRA McVICKER LYNCH, Magistrate Judge.
Defendants City of Indianapolis and Officer Kevin Brown seek summary judgment on all claims against them brought by plaintiff Terrance Bowens in this excessive force case. The defendants' motion is GRANTED in PART and DENIED in PART. As discussed below, the court determines that (a) Officer Brown is entitled to summary judgment on the state law claims; (b) the City of Indianapolis is entitled to summary judgment on the state law assault claim; and (c) genuine issues of material fact that require a jury to decide whether the force used by Officer Brown was excessive make summary judgment inappropriate on all other claims.
Summary Judgment Standard
Under Fed.R.Civ.P. 56(a), summary judgment may be granted only if there "is no genuine dispute as to any material fact" and the movant is entitled to judgment as a matter of law. Substantive law determines the facts that are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). A genuine issue of material fact exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249. The Seventh Circuit recently has pointedly reminded district courts that they must resist any urge to "weigh evidence, make credibility determinations, resolve factual disputes and swearing contests, or decide which inferences to draw from the facts." Miller v. Gonzalez, 2014 WL 3824318 at *5 (7th Cir. Aug. 5, 2014). Instead, the evidence and all reasonable inferences that can be drawn from the evidence must be viewed in the light that is most favorable to the nonmoving party. Id.
The court will first describe the evidence pertinent to the resolution of the defendants' motion. It will then address Mr. Bowens's Fourth Amendment excessive force claim before moving to Mr. Bowens's Indiana state law claims.
The Evidence and Reasonable Inferences Therefrom
In the early morning hours of August 7, 2012, the Indianapolis Metropolitan Police Department received a complaint of a disturbance between a man and a woman at a hotel on the east side of Indianapolis. When they arrived at the hotel, the woman reported that her boyfriend had threatened to kill her and had left. The officers took the woman to her residence at an apartment complex and were not able to find the man. Another call came before dawn that the man had shown up at the woman's apartment and three police officers (not the ones who had responded to the hotel complaint) responded to that call. (Brown Dep., Dkt. 49-7, at pp. 27-28). They were Officers Woody Burton and Tara Van Deman (who arrived in the same squad car) and defendant Officer Kevin Brown, who arrived in a separate squad car. ( Id. ). The officers learned that the man had just recently "taken off on foot." ( Id. at p. 28). Officers Burton and Van Deman stayed at the complex and Officer Brown drove away to scour the area for anyone who was out walking at 5:30 in the morning. ( Id. ). After only a few minutes, Officer Brown heard a radio call from Officer Burton that the man had been found at the complex. ( Id. at pp. 31-32). Officer Brown drove back to the complex. ( Id. at 32).
It is at this point that the parties' versions of the facts or the reasonable inferences that may be drawn from them begin to differ in material ways.
Officer Brown's Testimony
Officer Brown asserts that he saw that Officer Burton had his gun trained on plaintiff Terrance Bowens, who was about 10-12 feet away from Burton. (Brown Dep., Dkt. 49-7, at p. 33-34). Officer Brown stopped his squad car behind Bowens, got out, and drew his gun. He was about 10 feet behind Bowens. ( Id at pp. 37, 40). He saw that plaintiff Bowens was "on the sidewalk on his knees and he had his hands raised about shoulder height." ( Id. at pp. 34-35). Bowens's hands were "not open or closed, " "just hanging there, " and his back was to Officer Brown. ( Id. at p. 36).
Officer Brown heard Officer Burton command Mr. Bowens "repeatedly" (two to three times) to lie down on the ground and put his hands out to his side. ( Id. at pp. 41-42 and 45). Mr. Bowens did not comply with those commands. ( Id. at p. 42). "He just refuses to do anything Officer Burton tells him to do." ( Id. at p. 46). When Mr. Bowens "refused to comply with Officer Burton's commands to lay prone, " Officer Brown moved in closer behind Mr. Bowens and, with his gun drawn, used his right foot to push Mr. Bowens in the middle of his back, causing him to go to the ground and then Mr. Bowens laid his arms out. ( Id. at pp. 43, 46, 47). Officer Brown immediately then handcuffed Mr. Bowens, the other officers took control, and Officer Brown left on another police run. ( Id. at p. 43, 48).
Officer Brown perceived that Mr. Bowens "was not fighting" and "was not fleeing" ( id. at 57) but was "resisting" the other officer's commands. "He would not lay down prone when he was told to do so numerous times." Id. at p. 56). Officer Brown elaborated:
When Officer Burton is telling him [Terrance Bowens] to lay down on the ground, put your hands to the side, when he's not doing that, he is actually resisting his officer presence and his physical - his verbal commands to do so. At that point, I'm not going to move in to try to arrest him for the simple reason with him not complying to Officer Burton's verbal commands tells me that he may be thinking of fleeing, running - excuse me, fleeing, fighting or something else, and at that point I'm not going to take any chances on Officer Burton's safety, mine or the general public's.
( Id. at pp. 57-58).
Officer Brown "felt that using my foot just to push him to force him to lie down was the least amount of force possible." ( Id. at 57). Officer Brown denies that he kicked Terrance Bowens ( id. at p. 47) and describes the force he used as "no ...