United States District Court, S.D. Indiana, Evansville Division
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on the Defendants' motion for summary judgment (dkt. no. 75). The motion is fully briefed, and the Court, being duly advised, GRANTS IN PART AND DENIES IN PART the motion for the reasons and to the extent set forth below.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the Court accepts as true the admissible evidence presented by the non-moving party and draws all reasonable inferences in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
On June 20, 2012, the Evansville Police Department ("EPD") became aware of threatening posts on the discussion based website Topix.com. The following posts were discovered under the heading "EPD leak!!! All officers addresses are being passed around Evansville":
"Me n my boys need them copys asap.need to pay a few a visit."
"[Chief] Bolin lives behind parkside"
"Lol at all da cops commenting, f# the police.you mfs need to b taught a lesson, always harassing n violating mfs rights. 4th of July a cops house gonna got hit.dont care about your kids or btchs lives. I dnt even care about my own life. I got my reasons... times ticking.?"
"Cops be aware. Note: I am proudof my county, but I hate police of any kind.. I have explosives.:) made in America. Evansville will feel my pain.guess who's in the river."
Another heading read, "New Indiana law. You have the right to shoot cops." The following post was found under that heading:
"You think cops always win, until now. I got some new artillery I want to test on there thin a$$ vest"
The EPD immediately began an investigation into the threats. After subpoenaing Topix.com and Insight (the local internet service provider which was subsequently purchased by Time Warner Cable), Detective Bryan Brown determined that the threatening posts were all made from an IP address connected with 616 East Powell Avenue, Evansville, Indiana, where sixty-eight-year-old Plaintiff Louise Milan ("Milan") lived with her eighteen-year-old daughter Stephanie Milan ("Stephanie"). Thereafter, Detective Brown drove past Milan's residence and determined that there was one open wireless access point ("WAP") in the area of Milan's home; all others were secured. He could not tell at that time, however, whether it was Milan's WAP that was unsecured.
Shortly thereafter, officers performing surveillance on Milan's home noticed Derrick Murray, a known LA Zombies gang member and a "thorn to the police department for a while, " two houses down from Milan's home on his mother's front porch. Murray had a prior conviction for intimidating a police officer and had sprayed "187" on an officer's garage. Murray was wellknown to the EPD, and the officers involved with this investigation were familiar with his criminal record.
On June 21, 2012, just one day after the threats were discovered, Detective Brown obtained a search warrant for Milan's residence. His warrant request summarized their investigation, but left out any mention of Murray or the unsecured wireless network. The request also stated that "in order for a particular electronic device to utilize a particular IP address, ... [it] requires the electronic device to be in the residence of 616 E. Powell Avenue to access the internet provided... to the residence." Dkt. No. 80-19 at 3 (emphasis added).
About this time, Detective Todd Seibert discovered that Milan's step-son, Anthony Milan, Sr., was a registered sex offender and had previously been arrested on drug and assault charges. His son, Anthony Milan, Jr., also had several recorded run-ins with police, some involving allegations of violence. Once Milan, Jr., became a potential suspect, Officers searched his Facebook page and found a photograph of him pointing a gun and using gang signs. Although the officers were aware that Milan, Sr., and Milan, Jr., did not live with Milan, her address was identified in the EPD's records management system as a previous known location (approximately four years earlier) for Milan, Sr. Detective Seibert also considered a possible familial relationship between Milan and LA Zombies gang member Marc Milan, due to their shared last name. Marc's record ...