United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY
RICHARD L. YOUNG, JUDGE
3, 2012, Plaintiff, Joseph Simpson, saw that several police
officers were outside of a house on his street. He knew that
a young boy lived in the house with his grandmother, and
believed that the boy was home alone at the time. He wanted
to check on the boy, so he walked over to the neighbor's
house. The police officers at the home explained that they
were investigating a reported burglary in progress and needed
Simpson to leave the crime scene. Before making his way back
home, Simpson called out to the boy twice and then argued
with an officer. During this encounter, officers ordered him
to leave and threatened him with arrest several times. An
officer ultimately came up behind Simpson and attempted to
perform an arrest. Simpson initially snatched his hand away,
but then submitted to the arrest. He was ultimately charged
with refusing to leave the scene of an emergency incident
area and resisting law enforcement. At trial, the first
charge was dismissed and he was found not guilty of the
filed this lawsuit against Defendants, the City of
Indianapolis and Officer Andrew McKalips, to redress what he
believes was an unlawful arrest and prosecution. Defendants
now move for summary judgment. For the reasons set forth
below, the court GRANTS Defendants' motion.
3, 2012, at approximately 5:40 p.m., M.S., a
fourteen-year-old boy who was home alone, called 911. (Filing
No. 88-1, Computer-Aided Dispatch (“CAD”) Report
at 1; Filing No. 88-2, Deposition of M.S. 11:21-25, 12:8-10;
Filing No. 88-3, 911 Audio, Tracks 1, 2). He reported that
five males were trying to break into his home through a
window. (911 Audio, Track 2).
officers with the Indianapolis Metropolitan Police Department
(“IMPD”) were dispatched to investigate the
reported burglary in progress. (CAD Report at 1; 911 Audio,
Track 6; Filing No. 88-4, Probable Cause Affidavit (“PC
Aff.”) at 1). When the officers arrived at the scene,
Officer McKalips stopped two juveniles in front of the home
for questioning while two other officers walked around the
perimeter of the house to look for signs of forced entry. (PC
Aff. at 1). A fourth officer subsequently arrived at the
scene to assist. (Id.). M.S., who was hiding in the
basement, was still on the phone with the 911 operator. (911
Audio, Track 2). After the officers completed a perimeter
check, they asked the 911 operator to have the boy come to
the door. (Id. at Track 6). The 911 operator told
M.S. that it was safe for him to go to the door, but he was
too scared to do so. (Id. at Track 2).
the officers were investigating the situation, Simpson, who
happened to live across the street and a few houses down, saw
the police officers and decided to walk over so that he could
check on M.S. (Filing No. 88-5, Deposition of Joseph Simpson
55:15-18, 56:16-57:1; Filing No. 95-1, Affidavit of Joseph
Simpson ¶ 1). He approached the house by walking up a
paved path that led from the public sidewalk up to the
home's front porch. (Simpson Aff. ¶ 11). He stopped
at the end of the path at the bottom of the steps to the
front porch. (Simpson Dep. 69:19-24). Officers at the front
door told Simpson that they were investigating a burglary in
progress. (Id. 70:1-2). He replied that M.S. was
inside the home and that he could help them get the boy to
come outside. (Id. 70:3-6). The officers responded
that Simpson needed to leave the area because it was a crime
scene at that point. (Id. 70:6-8). Simpson said he
just wanted to help. (Id. 70:8-9). The officers
declined his offer to help and reiterated that it was a crime
scene. (Id. 70:9). Simpson testified that during
this exchange, the officers told him “that it was a
crime scene and to leave” two times. (Id.
began walking back down the path toward the public sidewalk
when he noticed that one of the home's windows was open.
(Simpson Aff. ¶¶ 15-16). He knew that the open
window was in M.S.' bedroom, so, as he was walking, he
“called out” to the boy and said, “Melvin,
open the door.” (Id. ¶ 16; Simpson Dep.
77:1-6). Simpson then continued moving away from the home.
(Simpson Dep. 78:3-7).
was finally persuaded by the 911 operator that it was safe to
meet the police at the door. (911 Audio, Track 4). He
subsequently opened the door for the officers.
(Id.). By that time, Simpson had moved away from the
house under investigation and was standing on the sidewalk in
front of the adjacent property. (Simpson Dep. 78:3-13). He
saw the police go into the house and, shortly thereafter,
come back out onto the front porch with M.S. (Id.
78:10-13). Simpson again “called out” to the boy,
asking “was he okay and did he get ahold of his
grandmother.” (Id. 78:14-15; Simpson Aff.
McKalips yelled to Simpson that he “need[ed] to keep
moving” because he had “been asked to leave the
crime scene.” (Simpson Dep. 80:15-19). Officer McKalips
added, “[I]f you don't leave, I will arrest
you.” (Simpson Aff. ¶ 20). Simpson responded
“that he had left the scene, and that he was nowhere
near the scene.” (Id. ¶ 21). Officer
McKalips then explained that Simpson needed to do two
specific things: (1) get 150 feet away from the emergency
area, and (2) get inside his house. (Simpson Dep. 82:16-20).
He again added that if Simpson did not comply, he would be
arrested. (Simpson Aff. ¶ 22). Simpson retorted that
moving 150 feet away from the area would require him to walk
past his own house-he would be “standing outside in the
alley somewhere.” (Simpson Dep. 82:21-23). He told
Officer McKalips that he was “a City-County Council
person, ” and therefore understood “what police
do.” (Id. 83:25-84:1). He also emphasized that
he was 61 years old, a property owner, and a taxpayer, that
he paid Officer McKalips' salary, and that he was
standing on public property at the time. (Id.
McKalips stated, “Well, if you don't continue,
I'm going to arrest you.” (Id. 84:3-4).
Simpson replied, “For what? I am - I'm moving, I
ain't doing anything.” (Id. 89:23-90:2).
Simpson crossed the street and was standing on the sidewalk
in front of his house when he heard his daughter, who had
been outside watching the events unfold, say, “Daddy,
turn around, he's got a Taser on you.”
(Id. 84:6-16; Simpson Aff. ¶ 29). As Simpson
started to turn around, he felt his hand being grabbed from
behind. (Simpson Dep. 84:20-21). He “snatch[ed] it
back.” (Id. 84:22). He then heard Officer
McKalips say, “You're under arrest.”
(Id. 84:22-23). Simpson turned and saw Officer
McKalips pointing a Taser at him. (Id. 84:25-85:1).
He subsequently turned back around, put his hands behind his
back, and allowed Officer McKalips to handcuff him.
(Id. 85:3-7). Simpson was arrested and transported
from the scene. (Simpson Aff. ¶ 38).
McKalips prepared a probable cause affidavit. (See
P.C. Aff.). Based on that affidavit, a special prosecutor
charged Simpson with (1) refusing to leave the scene of an
emergency incident area, and (2) resisting law enforcement,
both as misdemeanors. See State v. Simpson, No.
49F07-1206-CM-037394 (Marion Super. Ct. 2012). On November
19, 2012, the Marion Superior Court dismissed Count 1 and,
after a bench trial, found Simpson not guilty on Count 2.
Id. This lawsuit ensued.
judgment is proper where, construing facts and drawing
inferences in the light most favorable to the non-moving
party, ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.'” Novosels ...