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Myers v. Bernardino

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

December 14, 2016

TANYA MYERS, Plaintiff,
P.O. BERNARDINO, P.O. ASHCRAFT, Individually, and the TOWN OF MUNSTER, Defendants.



         In 2013, Plaintiff Tanya Myers was involved in the slow and hostile disintegration of her marriage to John Myers. For the sake of clarity and convenience, and without intending any disrespect, I will use Mr. and Mrs. Myers' first names in this opinion. According to Tanya, John presented incomplete and one-sided information to obtain an order of protection against her, then provided false information to the police to bring about Tanya's arrest. She now seeks redress from the officer who arrested her and the Town of Munster, which employs the officer. But because the arresting officer reasonably acted on the basis of a facially valid arrest warrant when he arrested Tanya, she cannot prevail in her § 1983 suit for violation of her rights under the Constitution.


         The facts set forth below are told in the light most favorable to Tanya. According to Tanya, in August 2013 John went to a judge ex parte and provided a series of lies and half-truths, and as a result, came away with an order of protection against Tanya. The protection order prohibited Tanya from contacting John or John's daughter. Tanya received official mailed notice of the protection order around August 20, 2013. Tanya did not contact John or his daughter after receiving notice of the order. (DE 48-1 at 6, 9, 10, 11, 25.) The day after getting the notice, Tanya requested a hearing before the judge. (DE 48-1 at 9, 10.) The hearing was scheduled for September 12, 2013, and both Tanya and John attended. At the hearing, Tanya saw John's petition for the protection order for the first time. She then told the judge her side of the story, and the judge vacated the protection order, but told both parties to avoid each other. (DE 48-1 at 11-12; DE 48-2 (Order Dismissing Petition and/or an Order for Protection dated Sept. 12, 2013).) According to Tanya, she did not contact John or his daughter after the hearing, nor did she ask anyone else to do so on her behalf. (DE 48-1 at 12.)

         A couple weeks later, on October 5, 2013, Munster Police Officer Bernardino was dispatched to John's home in response to a call made by John. (DE 48-4 at 5.) John showed Officer Bernardino e-mails on his mobile phone and a call log that purported to show that Tanya had contacted John and his daughter in violation of a protection order. (DE 48-4 at 5-6.) Tanya testified that John had changed his online login information in early 2013, after Tanya told him she was filing for divorce, and it was these accounts from which John claimed that Tanya was sending him e-mails. (DE 48-1 at 10, 15; DE 48-4 at 6-7.) Tanya contends that all of this evidence of her contacting them was fabricated. John eventually sent Officer Bernardino records of purported communications that he had received from Tanya during August, September, and October of 2013, although not the same messages Officer Bernardino remembered seeing when he responded to John's call on October 5th. (DE 48-1 at 14; DE 48-4 at 7, 13, 14, 15.) Officer Bernardino consulted a police database and confirmed that the protection order John had shown him was listed as still being active. (DE 48-4 at 10-11.)

         Based on the active protection order, the phone log purporting to show that Tanya called John's daughter, and the messages that Tanya allegedly sent to John, Officer Bernardino referred the case to the Lake County prosecutor for possible prosecution and completed a probable cause affidavit. (DE 48-4 at 15; DE 41-1 at 12, 18.) The Lake County prosecutor decided to prosecute, and Tanya was charged with invasion of privacy under Indiana Code § 35-46-1-15.1(1). The form Information dated October 10, 2013, alleged that Tanya “violate[d] a Protective Order . . . requiring [her] to refrain from abusing, harassing or disturbing [t]he peace of” John or his daughter. (DE 41-1 at 19.) An arrest warrant was thereafter issued in connection with the charge. (DE 41-1 at 20.) According to Tanya, she learned of the arrest warrant on October 25, 2013, when she received a copy of it in the mail, and she immediately called the Munster Police Department to inquire. She testified that she spoke with a woman who told her to come to the police station and bring a copy of the vacated protection order, which she did shortly before 5:00 p.m. that same Friday. (DE 48-1 at 16-17, 21.) Upon arrival at the police station she met with Officer Ashcraft. According to his report, Officer Ashcraft met with Tanya at 5:41 p.m. that day. (DE 48-3 at 17.)

         Officer Ashcraft testified during his deposition that when he spoke to Tanya in the police station, he asked for her identification card, which he brought to the police dispatcher to run through the police system. That search indicated that there was an active warrant for her arrest. The dispatcher then called and confirmed the active warrant with the originating party, Lake County, Indiana. (DE 48-3 at 7.) Officer Ashcraft did not independently check for a warrant himself. (DE 48-3 at 8.) His report indicates that at some point he learned that the warrant was for invasion of privacy, but he did not recall whether he knew that when he arrested Tanya, or whether he learned it later, but before writing the report. (DE 48-3 at 11, 12; DE 41-1 at 28.) Officer Ashcraft testified that, upon learning of the confirmed active warrant from the dispatcher, he arrested Tanya. He testified that he did not recall whether Tanya showed him a vacated protection order before he arrested her. (DE 48-3 at 7.) When shown a copy of the document vacating the protection order, Officer Ashcraft testified that he had not previously seen the document. (DE 48-3 at 15.)

         Tanya's version of her arrest varies a bit from Officer Ashcraft's, and because Tanya is opposing summary judgment, I draw reasonable inferences in her favor. See, e.g., Belcher v. Norton, 497 F.3d 742, 747 (7th Cir. 2007). The recollections to which Tanya testified are more detailed than Officer Ashcraft's-unsurprising, given that her arrest was a unique experience for her, and a commonplace one for Officer Ashcraft. Tanya says that she showed Officer Ashcraft the vacated protection order, and as he read it “he flushed a little bit red, ” but then told her that he still had to arrest her. (DE 48-1 at 18.) Tanya testified that she asked what he had to arrest her for, and he said for violation of privacy. (DE 48-1 at 18.) Tanya says that Officer Ashcraft told her that he would speak to someone at Lake County about the apparent mistake, but that didn't happen; instead, he just left Tanya at Lake County lockup. (DE 48-1 at 19-20.) A female officer who processed her at Lake County did look up the protection order and, according to Tanya, said to another officer, “[s]he's right. The order was vacated. There is no way this warrant should've even been issued.” (DE 48-1 at 20.) Nonetheless, the officer told Tanya that she had to bail out or wait for the judge to return on Monday morning. (DE 48-1 at 20-21.)

         Tanya spent several unpleasant hours in a holding cell with several other people, one of whom was “acting crazy, ” under strong air conditioning that Tanya alleges aggravated her arthritis. (DE 48-1 at 21, 23-25.) Around 4:00 a.m. Tanya finally remembered her youngest son's phone number and called him to come bail her out. (DE 48-1 at 21.) She estimated that, after processing, she left the Lake County jail a little after 6:00 a.m. (DE 48-1 at 22.)

         Officer Ashcraft testified that, vacated protection order or no, once he learned that there was an active warrant for Tanya's arrest confirmed by Lake County, he was going to arrest her. (DE 48-3 at 16-18.) He testified that it is for the court to determine whether there was a valid basis for an arrest warrant. (DE 48-3 at 17.) On the other hand, it is his job, as a patrolman, to execute a “shall arrest” warrant that appears valid. (DE 48-3 at 17-19.)

         Officer Ashcraft further testified that John contacted the Munster Police at the end of November 2013, after Tanya's arrest. At that point, John reported to Officer Ashcraft that Tanya was still trying to contact him. Afterwards, Officer Ashcraft checked his computer system and found that the protection order against Tanya in favor of John still appeared to be active, so Officer Ashcraft called Tanya to tell her to stop trying to contact John. (DE 48-3 at 13.) In fact, according to Tanya's testimony, in November, after her arrest, she and John went back before the family court judge who sua sponte issued a protection order against John in favor of Tanya. (DE 48-1 at 6, 12-13.) In discussing the fact that the computer system showed an active order of protection apparently several weeks after it was vacated, Officer Ashcraft testified that it is not his place to ensure that the records of protection orders are updated, but rather the job of “somebody down at Lake County.” (DE 48-3 at 14.)

         Tanya was never actually prosecuted. The Lake County Prosecutor's Office filed a motion to dismiss the criminal case against her on January 13, 2014, citing insufficient evidence to successfully prosecute the case. (DE 48-5 at 2.)


         It is proper to grant summary judgment when there exist no outstanding issues of material fact that require determination through trial. In such a situation, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see, e.g., Belcher v. Norton, 497 F.3d 742, 747 (7th Cir. 2007). I will construe all reasonable inferences in favor of the non-moving party, here Plaintiff Tanya Myers, and the defendants must meet the initial burden of showing there is no genuine issue of material fact. Belcher, 497 F.3d at 747 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Magin v. Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005)). However, if the defendants do that, the non-moving party then bears the burden of presenting specific facts demonstrating a genuine need for trial. A “mere scintilla” of evidence will ...

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