Argued June 1, 2015
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:13-cv-00001-WTL-WGH -- William T. Lawrence, Judge.
For Louise Milan, Plaintiff - Appellee: Benjamin Reed Aylsworth, Attorney, Andrew Dutkanych III, Attorney, Kyle F. Biesecker, Attorney, Biesecker, Dutkanych & Macer, LLC, Evansville, IN.
For BILLY BOLIN, in his individual capacity as Evansville Police Department Chief, JEFF TAYLOR, Evansville Police Department Officer and Swat Team Member, in official and individual capacity, SHAWN CHAPMAN, Evansville Police Department Officer and Swat Team Member, in official and individual capacity, DAVID MOLINET, Evansville Police Department Officer and Swat Team Member, in official and individual capacity, ALLEN GANSMAN, Evansville Police Department Officer and Swat Team Member, in offical and individual capacity, Defendants - Appellants: Robert Burkart, Attorney, Keith W. Vonderahe, Attorney, Ziemer, Stayman, Weitzel & Shoulders, Evansville, IN.
Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
Posner, Circuit Judge.
The plaintiff brought suit against the City of Evansville, Indiana, and several of the City's police officers, contending that the police had used excessive force in the search of her home. The district judge granted summary judgment in favor of the defendants on related claims by the plaintiff, but all that is before us is the defendants' appeal from the district judge's denial of their motion for summary judgment on the excessive-force claim. They argue that qualified immunity insulates them from liability--that is, that there was no established legal principle that would have informed them that they were using excessive force.
On June 20, 2012, the Evansville police department became aware of Internet postings that made threats against the police; a typical posting said " New Indiana law. You have the right to shoot cops." The posts came from an Internet Protocol (IP) address at the home of 68-year-old Louise Milan and her 18-year-old daughter Stephanie (plus another daughter who wasn't however at home during the search).
An IP address is like a phone number, but it is a number that identifies a computer or computer network and so enables a person operating another computer to communicate with it. The network in Mrs. Milan's home was an unsecured WiFi network, meaning that a person in the vicinity of the home--standing in the street in front of the house, for example--could access the network and send messages from it without needing to know a password. The threats against the police could have been posted by someone in her house on her computer, but equally they could have been posted through the unsecured network by someone near the house.
That the threats might have come from a person (or persons) inside the Milan home who might moreover be armed and dangerous was enough to make the police decide to have the house searched by the department's SWAT team forthwith, though, to repeat, the threatening messages could instead have emanated from outside the house because of the open network.
The defendants say they didn't know that Mrs. Milan's network was unsecured and therefore accessible by someone outside the house who could use the unsecured network to send the threatening messages. Although the police had discovered that there was an unsecured network near the house, they hadn't bothered to find out whose network it was, as they could easily have done, precisely because it was unsecured and therefore accessible. Had they done that they would have known that it was Mrs. Milan's network and, since it was unsecured, that it might have been used (without her knowledge) by someone outside her home to send the threatening messages. The failure to discover that the network was Mrs. Milan's was a failure of responsible police practice.
The search was conducted on June 21, just one day after the discovery of the posted threats. Shortly before the search, police had spotted on the porch of a house just two doors from the Milan house a man named Derrick Murray, whom they knew to have made threats against the police in the past--indeed he had been convicted of intimidating a police officer. At least two of the officers thought him the likeliest source of the threats. Prudence counseled delaying the search for a day or so to try to get a better understanding both of the Milan household and of Murray's potential responsibility for the threats. Prudence went by the board.
Some officers thought, mistakenly as it turned out, that one or more of three men whose last name was the same as Mrs. Milan's were likely threateners. One of them, Marc Milan, was believed to be a member of a gang and the nephew of Mrs. Milan's deceased husband, though in her deposition in this case she described him as a near stranger whom she had met for the first time after the search. The second male Milan, Anthony Milan Sr., was a sex offender who had committed other types of crime as well. He was Mrs. Milan's stepson and had lived in her house years prior to the search. The third male Milan, Anthony Milan Jr., was the son of the second Milan. His Facebook pictures show him holding guns. He was only an occasional visitor to his stepgrand-mother's house.
At the time of the search only Mrs. Milan and her daughters were living in the house. No man was living, staying, or visiting there, and police surveillance revealed no man entering or leaving between the threats and the search. Police did see daughter Stephanie come and go from the house. She happens to be small for an 18-year-old--one of the officers who saw her thought she was 13 ...