United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
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
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
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).
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).
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).
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).
Incident at Mikie's Pub
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.]
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.]
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.]
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.
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.]
Serban next identified himself as a police officer to Mr.
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.
No. 116-13 at 7 (redactions added).]
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.]
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.]
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.
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.]
IMPD Protocols & Procedures
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.
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
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 ...