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Winters v. City of West Lafayette

United States District Court, N.D. Indiana, Hammond Division, Lafayette

December 29, 2014



PHILIP P. SIMON, Chief District Judge.

West Lafayette Police Officer David Smith shot Brandon Winters in the neck while trying to arrest Winters for an attempted robbery in September 2009. Winters survived the shooting and filed this lawsuit under 42 U.S.C. ยง 1983 alleging Smith and the City of West Lafayette violated his constitutional rights by using excessive force during the arrest. The Defendants have moved for summary judgment [DE 100], arguing that the shooting was justified. According to the Defendants, Winters lunged at Smith, putting Smith in fear of his life. Winters disputes this. He claims he was trying to surrender and has pointed to enough evidence to suggest a reasonable factfinder could believe him. That's enough to preclude summary judgment. Therefore, for the reasons stated below, the Defendants' motion is GRANTED IN PART and DENIED IN PART.


In September 2009, Brandon Winters, a 20-year-old African-American man from Chicago, spent about a week "riding around and getting drunk" with friends in Lafayette, Indiana [DE 102-1 at 2]. If Winters had stuck to getting drunk, the worst that would have happened would probably have been a ticket for underage drinking. Instead, Winters branched out into strong-arm robbery and ended up with a gunshot wound and a jail sentence.

The robberies started in the early morning hours of September 16, 2009. Winters and two friends beat and robbed a man they encountered crossing a pedestrian bridge in Tapawingo Park in West Lafayette, Indiana [DE 102-1 at 5-6]. Later that night, the group beat and robbed two men outside a convenience store in Lafayette. Id. at 6-7.

The next night, Winters returned to Tapawingo Park to drink with his buddies. Tapawingo Park is a narrow, riverside park in West Lafayette. On the south end of the park, there is a pedestrian bridge that spans the Wabash River and connects to Lafayette. This is where Winters had robbed the man the night before and where he found himself at around 1:30 a.m. on the morning of September 17, 2009. He was urinating in the trees down below the pedestrian bridge, when he noticed a man walking on a trail that crosses under the bridge [DE 102-1 at 7-8]. Sensing he had another victim, Winters attempted to rob the man.

Winters jumped out of the woods with his sleeve in front of his face and demanded the man give up his things. [DE 102-1 at 8, 11]. Frightened, the victim turned and ran. Id. Winters didn't give chase. Instead, he yelled "you better not call the police, " and then ambled back over to the north side of the park to rejoin his friends. Id.

Meanwhile, the victim had run away and found a safe place to call 911. He told the operator that a "black dude tried shooting me on the trail" in Tapawingo Park [DE 104 at 0:45-0:56]. This was an exaggeration - Winters did not have a gun - but an entirely understandable one. The victim further described the assailant as a black man wearing a black shirt, jeans, and white shoes. Id. Almost simultaneously with the victim's call, the West Lafayette dispatcher broadcast that there had been an attempted shooting at Tapawingo Park and that the suspect was a black man wearing all black with white shoes. Id. at 1:17-1:24.

Two West Lafayette Police Officers, defendant David Smith and Marsha Miller, responded to the call [DE 108-5 at 9-10; DE 108-8 at 12-13]. About a minute after the call went out, Officer Smith advised dispatch that he had reached the parking lot at the north side of Tapawingo Park [DE 104 at 2:58-3:02]. Meantime, Officer Miller called in to say that she was at the pedestrian bridge on the south end of the park. Id.

Officer Smith got out of his car and started walking south into the park [DE 108-5 at 10]. He saw a group of black men gathered around a car in the parking lot and two other black men off by themselves on the southwest side of the parking lot. Id. at 10-11. One of the men off to the side matched the description given to the 911 operator - he was dressed in dark clothes and had white shoes. Id. at 11. Smith called for backup and began walking towards these two men [DE 104 at 3:17-3:21; DE 108-5 at 11].

The man in the dark clothes was Winters, who had just returned to the parking lot after the attempted robbery [DE 102-1 at 11]. According to Officer Smith, Winters and his friend were walking away from the parking lot southwest into the park [DE 108-5 at 11-12]. Smith started to follow them. Id. The west side of Tapawingo Park is bordered by Tapawingo Drive. And as Officer Smith began walking towards Winters, Winters saw a police car drive by on Tapawingo Drive [DE 102-1 at 11; DE 108-5 at 14]. This was Officer Miller driving north in response to Smith's call for backup [DE 108-5 at 14; DE 108-8 at 13]. Spooked by the patrol car, Winters took off running [DE 102-1 at 11].

Winters ran west, out of the park and across Tapawingo Drive [DE 102-1 at 11; DE 108-5 at 14]. Officer Smith radioed in to report that the suspect had fled towards a parking garage across Tapawingo Drive and began running after him [DE 104 at 3:52-3:55; DE 108-5 at 14]. Officer Miller pulled a u-turn and headed back south on Tapawingo to the garage [DE 108-8 at 15-16].

The parking garage across the street was attached to a large apartment complex that faced Tapawingo Park. Each ground-floor unit on the west side of the complex had a little deck or patio area, and, in front of each patio area there were large bushes-about three feet tall-planted up against the building. After reaching the building, Winters hid behind some of these bushes [DE 102-1 at 11].

Officer Smith, who had lost sight of Winters, noticed some dark clothing hanging off a patio railing [DE 108-5 at 15]. He thought it might belong to the suspect, so he ran over to investigate. Realizing the bushes were a natural hiding spot, Smith started searching the bushes up and down the side of the building. Id. at 16. Miller, who had just pulled up, joined him [DE 108-5 at 16; DE 108-8 at 16-17]. The two officers had their guns drawn and flashlights on, and they began searching all the bushes on the west side of the apartment building [DE 108-5 at 16-18; DE 108-8 at 17-20, 22]. As they ...

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