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Bohanon v. Reiger

United States District Court, S.D. Indiana, Indianapolis Division

January 17, 2018

BRADFORD BOHANON, Plaintiff,
v.
MICHAEL REIGER, et al. Defendants.

          ENTRY

          Hon. Jane Magnus-Stinson, Chief Judge

         In the early hours of the morning on August 7, 2014, Plaintiff Bradford Bohanon became involved in a confrontation with two police officers while the three were drinking at Mikie's Pub in Indianapolis. The incident left Mr. Bohanon bloodied and unconscious. The Indianapolis Metropolitan Police Department (“IMPD”) investigated and then-Chief Rick Hite ultimately concluded that the involved officers, Defendants Michael Reiger and John Serban, should be terminated for their actions. Mr. Bohanon brought suit, alleging several claims stemming from the incident at Mikie's Pub.

         Now pending is Defendant City of Indianapolis' (“City”) Motion for Summary Judgment, [Filing No. 105], which requires the Court to determine whether the City may be held liable for the officers' alleged violations of Mr. Bohanon's constitutional rights under the theory recognized in Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Because genuine issues of fact exist as to whether the IMPD's policies on policing while drinking caused one of Mr. Bohanon's alleged constitutional injuries, the Court GRANTS IN PART and DENIES IN PART the City's Motion.

         I.

         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         II.

         Background

         The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. Incident at Mikie's Pub

         At approximately one in the morning on August 7, 2014, Officers Reiger and Serban visited Mikie's Pub while off duty. [Filing No. 116-12 at 7; Filing No. 116-13 at 3-5; Filing No. 116-14 at 5.] The officers wore plain clothes and took Officer Reiger's personal vehicle. [Filing No. 116- 13 at 3-4; Filing No. 116-14 at 3-4.] Upon arriving, the officers each drank several beers and at least one shot. [Filing No. 116-13 at 5; Filing No. 116-14 at 6; Filing No. 116-14 at 35.]

         Sometime after the officers arrived and began drinking, Mr. Bohanon arrived at Mikie's Pub and ordered a double scotch. [Filing No. 116-11 at 11; Filing No. 116-11 at 19.] At some point, Mr. Bohanon ordered a round of shots for the patrons at the bar. [Filing No. 116-11 at 30-31; Filing No. 116-12 at 8; Filing No. 116-15 at 3.]

         When Mr. Bohanon received his tab, he believed that he had been overcharged and disputed his bill with the bartender, Andrea Welsh. [Filing No. 116-11 at 30-32; Filing No. 116-12 at 5; Filing No. 116-15 at 3.] Mr. Bohanon requested an itemized receipt, which Ms. Welsh refused. [Filing No. 116-11 at 34-38.] Mr. Bohanon became loud and combative. [Filing No. 116-11 at 34-38; Filing No. 116-12 at 4-5; Filing No. 116-13 at 4; Filing No. 116-14 at 9; Filing No. 116-15 at 3-4.] Ms. Welsh took the bar tab from Mr. Bohanon's hand and told him to leave. [Filing No. 116-12 at 4; Filing No. 116-13 at 5; Filing No. 116-15 at 3.] Instead of leaving, Mr. Bohanon continued to argue with Ms. Welsh over his bar tab. [Filing No. 116-11 at 34-38; Filing No. 116-12 at 4-5; Filing No. 116-13 at 4; Filing No. 116-14 at 9; Filing No. 116-15 at 3-4.] William Harper, the doorman at Mikie's Pub, witnessed the argument and walked up alongside Mr. Bohanon. [Filing No. 116-15 at 2.]

         When the situation did not deescalate and Mr. Bohanon continued to refuse to leave, [Filing No. 116-13 at 6], Officer Serban grew concerned for Mr. Harper and Ms. Welsh's safety. [Filing No. 116-4 at 3-4.] Officer Serban approached Mr. Bohanon:

I [Officer Serban] actually approached him and stood off a distance for a little bit to [sic] because I knew he was being asked to leave and he's becoming increasingly belligerent and I didn't know if he was going to give Bill [Harper] a problem so that's why I watched him for a minute and instead of calming down and leaving because he had briefly stepped away and then walked back to the bar and he just kept getting more and more loud you know do you know who the f**k I am and then he kept repeating I'm Bradford Scott Bohanon so at that juncture you know this guy's trespassing I know he's not going to leave so (inaudible) identified myself to him.

         [Filing No. 116-13 at 7 (redaction added).] As Officer Serban approached Mr. Bohanon, Officer Reiger followed and stood behind him. [See Filing No. 125 (video footage showing portions of incident).] This approach, where Officer Serban acted as the “contact officer” and Officer Reiger acted as the “cover officer, ” is called the “tactical v” and is part of police training on how officers should take police action. [Filing No. 106-2 at 4; Filing No. 125.]

         Officer Serban next identified himself as a police officer to Mr. Bohanon:

I showed my badge and I told him I was a police officer with IMPD. I said the staff has asked you to leave you know it's time for you to go, you need to go. I had showed him my badge and then I sat down at the bar because I wanted him to be able to read it. He's yelling f**k you I don't give a f**k. He grabs my badge and he threw it on the bar well I mean the floor, but I didn't see where it went and you know he-you know he brought his hand up toward my head and tried to bring my head back and uh at that point it's fine I reach in and I grab him by his-his elbow and I actually tried to bring his shoulder in to control him and put my hand behind his neck as I was trying to spin him toward the door (inaudible) move him or he slipped out of it or he just had a good base on it, but wasn't able to do that and then it escalated.

         [Filing No. 116-13 at 7 (redactions added).]

         Officer Reiger joined in the confrontation after Mr. Bohanon threw Officer Serban's badge and made contact with his face. [Filing No. 116-13 at 7.] Officer Reiger attempted to grab Mr. Bohanon's right arm. [Filing No. 116-16 at 10.] Officer Serban threw two punches, striking Mr. Harper with the first and Mr. Bohanon with the second. [Filing No. 116-4 at 20.] In the scuffle, Mr. Bohanon was tackled into a pool table. [Filing No. 116-4 at 26; Filing No. 116-16 at 11; Filing No. 116-17 at 4.] Officer Serban placed Mr. Bohanon in a choke hold. [Filing No. 106-4 at 34; Filing No. 116-4 at 24; Filing No. 116-17 at 4-6.] While Officer Serban continued his choke hold, Officer Reiger placed his knee onto Mr. Bohanon's right thigh and punched Mr. Bohanon several times in the back of his head. [Filing No. 116-4 at 28-29; Filing No. 116-16 at 17-18; Filing No. 125.]

         At some point, the choke hold caused Mr. Bohanon to lose consciousness. [Filing No. 106-4 at 34; Filing No. 116-4 at 24; Filing No. 116-17 at 4-6.] The officers dragged Mr. Bohanon by his feet, face down, out of the pub and into the parking lot. [Filing No. 116-15 at 5-6; Filing No. 125.] Outside, the officers began kicking the still-unconscious Mr. Bohanon in the back and stepping on his face, “grinding his face into the pavement.” [Filing No. 116-15 at 4.]

         Mr. Bohanon recalls regaining consciousness outside in the alleyway by Mikie's Pub. [Filing No. 106-9 at 7.] After being unable to walk correctly, Mr. Bohanon “vaguely remember[s] crawling” before he was “stomped back onto the ground” and knocked unconscious again. [Filing No. 106-9 at 7.] Mr. Bohanon regained consciousness a second time in the parking lot, when he had the following exchange:

The next thing I remember was regaining consciousness the second time to find myself sitting on the ground in the parking lot with my back against a white van. As my vision came back into focus, I saw two (2) men in front of me who were leaning over me and out of breath. The taller of the two men stated, "Don't try to run again." I was confused and beat-up, but responded, "I'm one of the good guys." The taller man either replied, "yeah, you sure are" or "yeah, you're a good guy." The shorter of the two men then asked if I, "believed he was a cop now?" I answered, "no" and was then kicked in the head and face. Thereafter, the taller of the two men said, "If you try to report us we will find you." I was then kicked or hit in the head, and knocked unconscious for the third time. That is my last memory of my encounter with the two (2) men on August 7, 2014.

         [Filing No. 106-9 at 7.] Around four a.m., Mr. Bohanon regained consciousness a third time, covered in blood and missing cash from his wallet. [Filing No. 106-9 at 7.] Mr. Bohanon picked up his business cards, which had been scattered about, and returned to his vehicle. [Filing No. 106-9 at 7-8.]

         B. IMPD Protocols & Procedures

         At the time of the Mikie's Pub incident, IMPD officers, including Officers Reiger and Serban, were required to comply with all IMPD general orders, rules, and regulations. [Filing No. 106-1 at 6.] IMPD orders and rules were disseminated to the police force in several formats, including in electronic format, with a continuously updated database and e-mail distribution; in print, which were always available in each roll call briefing room and additionally posted for at least thirty days; and orally, as supervisors were required to read and review new and revised directives for four consecutive days after their promulgation. [Filing No. 106-1 at 8; Filing No. 106-1 at 36.] General Order (“G.O.”) 2.2 required officers to comply with IMPD directives and provided that violations could result in “disciplinary action, up to and including termination.” [Filing No. 106-1 at 32.] IMPD had general orders addressing several areas implicated by Officers Reiger and Serban, including use of discretion, substance use, off-duty responsibilities, use of force, incident reporting, and rendering medical aid.

         General Order 1.12 sets forth general principles for exercising officer discretion, stating that “[no] single written directive could possibly cover all circumstances.” [Filing No. 116-10 at 2.] The order explains that “[o]fficers must exercise discretion in a manner that is consistent with[] . . . [p]ertinent laws and court decisions; [d]irection, supervision, and orders of supervisors; and [d]epartmental written directives, general or special orders.” [Filing No. 116-10 at 2-3.]

         General Order 3.24, entitled “Substance Abuse Program, ” categorically prohibited consumption of alcohol while on duty: “Members are prohibited from having any alcohol or other intoxicant or controlled substance in their blood while on-duty, or off-duty while in uniform or while employed by any employer to perform a security or law enforcement function.” [Filing No. 106-1 at 39.] In a separate paragraph, G.O. 3.24 restricted off-duty officers' actions while consuming alcohol: “While off-duty, officers with alcohol in their blood are prohibited from performing any law enforcement function or taking self-initiated police actions except in extreme emergency situations where injury to the officer or another person is likely without law enforcement ...


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