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Rembert v. City of Fort Wayne

United States District Court, N.D. Indiana, Fort Wayne Division

September 29, 2017

HARRIE REMBERT, Plaintiff,
v.
CITY OF FORT WAYNE, et al., Defendants.

          OPINION AND ORDER

          SUSAN COLLINS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Harrie Rembert (“Rembert”) brings this action arising under 42 U.S.C. § 1983 and Indiana tort law against Defendants the City of Fort Wayne (the “City”) and Fort Wayne Police Department (the “FWPD”) officers Christopher Hoffman (“Hoffman”), Ryan Tosland (“Tosland”), and Stephen Jackson (“Jackson”) (the FWPD officers together, the “Officers”).[1]Rembert alleges that the Officers, acting within the scope of their employment for the City, are liable for the following: (1) violating his Fourth Amendment right against unreasonable search and seizure; (2) violating his Fourteenth Amendment right to equal protection of law; and (3) the state law torts of battery, false arrest, and false imprisonment. (DE 22 at 6-7 ¶¶ 34-39). Rembert also advances the state law claims against the City on a theory of respondeat superior. (DE 22 at 7 ¶ 40). Now before the Court is Defendants' motion for summary judgment (DE 26), which is fully briefed (DE 27; DE 28; DE 29), asserting that Defendants are entitled to judgment as a matter of law on all claims.

         For the following reasons, Defendants' motion for summary judgment will be GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND[2]

         Rembert contends that the Officers unlawfully searched and seized him because of his status as a homeless person during two encounters in the summer of 2015. (DE 22 at 3 ¶ 14). Hoffman was present at both encounters, Tosland was present at the first, and Jackson was present at the second. (DE 26-1 ¶ 9; DE 28-2 at 12).

         Hoffman started as a police officer with the FWPD on August 2, 2002. (DE 26-1 ¶ 2). It is not clear when Hoffman first met Rembert, but there is no dispute that they knew each other on some level and that Hoffman had detained or arrested Rembert several times prior to June 2015. (DE 26-1 ¶ 5; DE 28-1 ¶ 5; DE 28-2 at 6-7; DE 28-3 at 2-3). For example, Hoffman knew that Rembert had a history of felony convictions, crack-cocaine use and dealing, resisting law enforcement, assaulting police officers, and being “in vehicles he was not supposed to be in.” (DE 26-1 ¶ 5; DE 26-4 at 9; DE 28-2 at 6; DE 28-3 at 2-3). Hoffman knew Rembert well enough to suspect that Rembert's hands exhibited marks that are typically caused by holding a pipe to smoke crack cocaine. (DE 26-1 ¶ 14; DE 28-3 at 3). Rembert claims that he told Hoffman he was homeless prior to the encounters. (DE 28-1 ¶¶ 3-4). Hoffman, however, claims that he was unaware of Rembert's living arrangements at the time of the encounters. (DE 26-1 ¶ 6). Tosland and Jackson, on the other hand, had no prior contact with Rembert. (DE 26-4 at 7, 13).

         The first encounter at issue occurred after 10:00 p.m. on or around June 17, 2015, near a popular crack-cocaine smokehouse located at 3715 Oliver Street in Fort Wayne, which is in a high crime area. (DE 26-1 ¶¶ 21-23; DE 26-2 ¶¶ 4-5; DE 26-4 at 6, 8; DE 28-1 ¶ 6; DE 28-2 at 19; DE 28-3 at 3-4). While Hoffman was training Tosland on field patrol, they saw Rembert standing on a public sidewalk near the smokehouse. (DE 26-1 ¶ 24; DE 26-2 ¶ 5). The Officers were in full police uniforms, carrying holstered weapons, and patrolling in a fully marked police vehicle. (DE 26-1 ¶ 20; DE 28-1 ¶ 10). Upon seeing the police vehicle, Rembert claims that he made his way towards the smokehouse to avoid being harassed by the Officers.[3] (DE 26-4 at 8). Hoffman claims that, based on his knowledge of Rembert's history and the high-crime nature of the area, he became concerned that Rembert had committed, or was about to commit, a crime. (DE 26-1 ¶ 25; DE 28-3 at 3; DE 28-4 at 1). Hoffman and Tosland stopped the squad car in the middle of the street and ordered Rembert to stop. (DE 26-4 at 6; DE 28-1 ¶ 9). The Officers then exited the squad car and approached Rembert. (DE 26-4 at 6). Hoffman asked Rembert what he was doing, and Rembert failed to answer the question. (DE 26-1 ¶ 26; DE 28-2 at 11-12, 19; DE 28-3 at 3). Tosland performed a pat down of Rembert's “exterior for weapons” and, after a check, confirmed Rembert had no active warrants. (DE 28-4 at 1). Hoffman then ordered[4] Rembert to show the Officers his hands for the purpose of training Tosland on the appearance of crack-cocaine burn marks. (DE 28-1 ¶ 12). Rembert complied without resistance or argument. (DE 26-2 ¶¶ 10-11; DE 28-2 at 13). After Hoffman and Tosland looked at Rembert's hands, they advised Rembert to leave the area because they believed “Rembert's intentions weren't good[, ]” and the Officers then departed in their police vehicle. (DE 28 at 19; DE 26-4 at 9). The entire encounter lasted “about five minutes.” (DE 26-4 at 10). Neither Hoffman nor Tosland told Rembert that he was free to leave during this encounter. (DE 28-1 ¶ 13). In Rembert's affidavit, he stated that he believes he was not free to leave during this encounter and that he would have been arrested had he not complied. (DE 28-1 ¶¶ 13-14).

         Approximately a month later, the second encounter occurred around the corner of a gas station on the southwest corner of Pontiac Street and Clinton Street. (DE 26-4 at 11-12; DE 28-1 ¶ 17). The encounter took place after dark and in the rain. (DE 28-1 ¶ 19; DE 28-2 at 8). The owners of that gas station had authorized the FWPD to enforce a no-loitering policy because the gas station was a popular area to deal drugs and because cars were frequently stolen while customers went inside to pay for gas. (DE 26-1 ¶ 8; DE 28-2 at 8-9, 16). Hoffman was training and on patrol with Jackson, both in uniform, and riding in a marked police vehicle. (DE 26-1 ¶ 12; DE 28-3 ¶¶ 3-5). Rembert was standing around the corner of the gas station, out of sight of anyone entering or exiting the building. (DE 26-1 ¶ 10; DE 26-4 at 11). Rembert claims that he was standing there trying to get cigarettes from customers or to have customers buy cigarettes for him. (DE 26-4 at 11).

         Hoffman claims that when he saw Rembert standing far from the entrance, with no apparent purpose, and knowing Rembert's criminal history, he became suspicious that a crime was about to be committed, such as Rembert dealing drugs or Rembert taking somebody's car while that person paid for gas. (DE 26-1 ¶ 11; DE 28-2 at 16; DE 28-3 at 3). Hoffman asked Jackson “if [Jackson] had ever seen crack burns on someone's hands. [Jackson] advised that [he] had not.” (DE 28-5 at 1). Hoffman and Jackson then approached Rembert in the police vehicle and “circled around [Rembert] a number of times[.]” (DE 28-1 ¶ 20). The police car then pulled up so that Hoffman's driver-side window was right by Rembert (DE 26-4 at 13), but the Officers stayed in the vehicle throughout the encounter. (DE 26-3 ¶ 6; DE 26-4 at 14). Hoffman asked Rembert what he was doing at the gas station and Rembert had no answer, which Hoffman found suspicious. (DE 26-1 ¶ 13; DE 28-3 at 3). Next, Hoffman ordered Rembert to come over to the police car window, “put [his] hands inside the police car through the window, ” and the two officers “touched and looked at [Rembert's hands].” (DE 28-1 ¶ 21; DE 26-4 at 12). Rembert did not argue or resist Hoffman's order.[5] (DE 26-1 ¶ 16; DE 28-2 at 17; DE 28-3 at 5; DE 28-5 at 2). Rembert then told Hoffman that he wanted to stop standing in the rain, and Hoffman responded, “Okay.” (DE 26-4 at 12). Hoffman reminded Rembert that the gas station had a no-loitering policy and that Rembert “needed to move on.”[6] (DE 26-1 ¶ 16; DE 28-3 at 3). The encounter lasted about three or four minutes. (DE 26-4 at 13). During this encounter, similar to the encounter on Oliver Street, the Officers did not tell Rembert that he was free to leave (DE 28-1 ¶ 23), and Rembert stated in his affidavit that he believes he was not free to leave (DE 28-1 ¶¶ 23-24). None of the Officers filed a report or arrested Rembert[7] (DE 26-1 ¶ 31), and Rembert suffered no physical injuries as a result of either encounter. (DE 26-4 at 15).

         On September 15, 2015, Rembert issued a Notice of Tort Claim to Defendants. (DE 1-1; DE 22-1). On December 17, 2015, Rembert filed this case against Defendants. (DE 1; DE 22).

         II. STANDARD OF REVIEW

         Summary judgment may be granted only if there are no disputed genuine issues of material fact. Payne, 337 F.3d at 770. “On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Id. (citations omitted). The Court is tasked only with deciding whether “there is any material dispute of fact that requires a trial” within the “evidence of record[.]” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). “[I]f the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party[, ]” then summary judgment may not be granted. Payne, 337 F.3d at 770. A court must construe the record in the light most favorable to the nonmoving party and avoid “the temptation to decide which party's version of the facts is more likely true[, ]” as “summary judgment cannot be used to resolve swearing contests between litigants.” Id. (citations omitted). However, “a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial.” Id. at 771 (citation omitted).

         III. DISCUSSION

         As discussed below, Rembert alleges three claims for damages, declaratory relief, and injunctive relief against Defendants arising from the two encounters in the summer of 2015. First, he alleges that the Officers violated his Fourth Amendment right against unreasonable search and seizure. (DE 22 at 6 ¶¶ 34-35). Second, Rembert claims that the Officers violated his Fourteenth Amendment right to equal protection by targeting him for unlawful search and seizure because he was homeless. (DE 22 at 6-7 ¶¶ 36-37). Third, Rembert alleges that the Officers are liable for violations of Indiana tort law: battery, false arrest, and false imprisonment. (DE 22 at 7 ¶¶ 38-40). Rembert asserts that the City is liable for the state-law tort claims under the doctrine of respondeat superior because the Officers acted within the scope of their employment for the City during both encounters. (DE 22 at 7 ¶ 40). The Officers assert the affirmative defense of qualified immunity to Rembert's constitutional claims. (DE 24 at 12 ¶ 10).

         As a preliminary matter regarding Rembert's § 1983 claims, he “must show two elements: (1) the party against whom the claim is brought qualifies as a ‘person acting under the color of state law'; and (2) the conduct alleged amounted to a deprivation of rights, privileges, or immunities under the Constitution or the laws of the United States.” Tom Beu Xiong v. Fischer, 787 F.3d 389, 397 (7th Cir. 2015) (citations omitted). There appears to be no dispute regarding the first element-that is, that the Officers were acting under color of state law during both encounters in question. Therefore, the Court's analysis only addresses the second element of Rembert's § 1983 claims.

         A. The Officers Will Be Granted Summary Judgment as to Rembert's Fourth Amendment Claims

         The Fourth Amendment protects individuals against unreasonable search and seizure. U.S. Const. amend. IV. Two categories of seizure implicate the Fourth Amendment: an arrest and an investigatory stop. United States v. Parker, No. 3:09-CR-148 JD, 2010 WL 2943649, at *2 (N.D. Ind. July 21, 2010) (quoting United States v. Mancillas, 183 F.3d 682, 695 (7th Cir. 1999)). Not every interaction between police officers and citizens fall into one of these categories-a citizen might consent to an interaction with an officer and answer questions without a Fourth Amendment violation. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (“[W]e have held repeatedly that mere police questioning does not constitute a seizure.” (citing Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion))); United States v. Clements, 522 F.3d 790, 794 (7th Cir. 2008) (“A consensual encounter between an officer and a private citizen does not trigger the Fourth Amendment.”); United States v. Hendricks, 319 F.3d 993, 999-1000 (7th Cir. 2003) (explaining that where a driver stops his car on his own and the police officers question him without coercive activity, the result is a consensual encounter). Accordingly, the Court's Fourth Amendment analysis will proceed by resolving two issues: (1) whether Rembert was seized for purposes of the Fourth Amendment, and if so, (2) whether the Officers seized Rembert based on reasonable suspicion of criminal activity.

         “The proper inquiry” in determining whether law enforcement officers seize an individual “‘is whether a reasonable person would feel free to decline the officers' request or otherwise terminate the encounter.'” United States v. Drayton, 536 U.S. 194, 202 (2002) (quoting Bostick, 501 U.S. at 436); see United States v. Radford, 856 F.3d 1147, 1149 (7th Cir. 2017) (“[A] seizure hasn't taken place so long as a reasonable person would feel free to decline the officers' request or otherwise terminate the encounter.” (citations and internal quotation marks omitted)). Whether a reasonable person would feel free to terminate an encounter with a police officer is dependant on the totality of the circumstances. Bostick, 501 U.S. at 439; United States v. Nobles, 69 F.3d 172, 180 (7th Cir. 1995) (“The question of whether a particular encounter is voluntary is a factual one, dependant on the circumstances of each case.” (citations and internal quotation marks omitted)). The circumstances the Court considers are:

(1) whether the encounter occurred in a public place; (2) whether the suspect consented to speak with the officers; (3) whether the officers informed the individual that he was not under arrest and was free to leave; (4) whether the individuals were moved to another area; (5) whether there was a threatening presence of several officers and a display of weapons or physical force; (6) whether the officers deprived the defendant of documents [he] needed to continue on [his] way; and (7) whether the officers' tone of voice was such that their requests would likely be obeyed.

United States v. Shields, 789 F.3d 733, 743 (7th Cir. 2015); see Clements, 522 F.3d at 794 (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980); United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999)). “A consensual encounter, which involves no restraint on a subject's liberty and is characterized by non-coercive police questions of a citizen in a public place[, ]” does not require any degree of justification or suspicion of criminal activity. Parker, 2010 WL 2943649, at *2 (citations and internal quotation marks omitted); see United States v. Burton, 441 F.3d 509, 511 (7th Cir. 2006) (observing that an officer may approach a person on the street and ask him questions, which causes him to stop, listen, and answer with only a slight “curtailment of the bystander's mobility, privacy and peace of mind” so that no Fourth Amendment justification is needed); United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir. 1990) (“[T]he degree of suspicion that is required is zero.” (citations and internal quotation marks omitted)).

         If a reasonable person would not feel free to leave, the Court then considers whether the investigatory stop was justified under Terry v. Ohio, 392 U.S. 1 (1968). Law enforcement officers “may conduct ‘a brief investigatory stop when the officer has reasonable suspicion that criminal activity is afoot.'” United States v. Maclin, 313 F. App'x 886, 888 (7th Cir. 2009) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000), citing Terry, 392 U.S. at 30); see Gentry v. Sevier, 597 F.3d 838, 845 (7th Cir. 2010) (quoting United States v. Hampton, 585 F.3d 1033, 1038 (7th Cir. 2009)). “Reasonable suspicion is less than probable cause but more than a hunch.” Maclin, 313 F. App'x at 888 (citing United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006)). The reasonable suspicion determination is based on:

the totality of the circumstances known to the officer at the time of the stop, including the experience of the officer and the behavior and characteristics of the suspect. . . . Further, we recognize that certain behavior in isolation may have an innocent explanation yet that same behavior may give rise to reasonable suspicion when viewed in the context of other factors at play.

Lawshea, 461 F.3d at 859 (citations omitted). The officer need not have reasonable articulable suspicion when the encounter started, so long as it came into play before the seizure was made. United States v. Mays, 819 F.3d 951, 957-58 (7th Cir. 2016). For an encounter to “remain a valid Terry stop, the stop must be ‘limited in scope and execution through the least restrictive means reasonable.'” Gentry, 597 F.3d at 845 (quoting United States v. Grogg, 534 F.3d 807, 810 (7th Cir. 2008)).

         1. A Reasonable Jury Could Find That the Officers Seized Rembert During the Oliver Street Encounter

         The Officers argue that the Oliver Street encounter was consensual and did not trigger Fourth Amendment concerns. They claim that they approached Rembert to simply speak with him and ask him why he was there, and Rembert willingly complied. While the Officers admit they were armed, there is no dispute that their guns did not leave their holsters. The Officers also argue that they did not touch Rembert, stating that “perhaps” Tosland performed a pat down of Rembert's “clothing.” (DE 29 at 4).

         Rembert disagrees. According to Rembert, the Officers' actions and words were “degrading” and “menacing” such that their questions were, in fact, commands. (DE 28 at 16- 17). Rembert argues that a reasonable person would not have felt free to leave during this encounter for several reasons. However, some of the facts do not support Rembert's contention.

         First, Rembert makes much of the fact that the Officers carried pistols, but he does not claim they were ever brandished. “That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon.” Drayton, 536 U.S. at 205. ...


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