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Herschel v. Watts

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

October 17, 2018

AARON WATTS Officer MPD, ERIC SMALL Officer, MPD, Defendants.


          Hon. Jane Magnus-Stinson, Chief Judge

         This case arises from Plaintiff Charles Herschel's arrest in Muncie, Indiana in 2015. Mr. Herschel alleges that Muncie Police Officers Aaron Watts and Eric Small (“Defendants”) subjected him to false arrest and imprisonment and deprived him of his rights under the Fourth Amendment to the United States Constitution by applying excessive force to him. Defendants have moved for summary judgment on all of Mr. Herschel's claims and have also moved to strike an exhibit. For the reasons described herein, the Court GRANTS Defendants' Motion to Strike, and GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment.


         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, 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. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. 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. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder 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. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). 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. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th Cir. 2017). 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).

         A significant twist on the normal standard of review is at play here: when the record evidence includes a videotape of the relevant events, the Court should not adopt the non-movant's version of the facts when that version contradicts what is depicted on the videotape. Scott v. Harris, 550 U.S. 372, 379-80 (2007) (where plaintiffs account of high-speed chase contradicted videotape of chase, and there were no allegations that videotape was “doctored or altered in any way, nor any contention that what it depicts differs from what actually happened, ” lower court “should have viewed the facts in the light depicted by the videotape”). Accordingly, the Court relies primarily on videos taken from the body cameras of the police present at the scene of Mr. Herschel's arrest.[1]


         Evidentiary Objection

          Prior to considering Defendants' Motion for Summary Judgment, the Court first considers an evidentiary objection. This is necessary because the resolution of the evidentiary objection impacts the scope of information that the Court can consider in analyzing the substantive arguments in the Motion for Summary Judgment.

         In their reply brief, Defendants include a Motion to Strike a memorandum by Captain Steve Cox of the Muncie Police Department, entitled, “Complaint/Disciplinary Action - Officer Aaron Watts # 144, ” (the “Cox Memorandum”). [Filing No. 65 at 7-10.] Defendants argue that the Cox Memorandum is “inadmissible under Federal Rules of Evidence 401 and 407” because it is irrelevant and because it shows subsequent remedial measures. [Filing No. 66 at 2.] Mr. Herschel did not file a sur-reply addressing the admissibility of the Cox Memorandum.

         Defendants' second argument is easily dispensed with for reasons recently explained by the U.S District Court for the Eastern District of Wisconsin, which held that a discharge recommendation for a police officer was “not itself a remedial measure; the remedial measure was [an officer's] termination.” J.M. v. City of Milwaukee, 249 F.Supp.3d 920, 931 (E.D. Wis. 2017) (quoting Aranda v. City of McMinnville, 942 F.Supp.2d 1096 (D. Or. 2013) (“By it terms, this rule is limited to measures that would have made the harm less likely to occur; it does not extend to post-incident investigations into what did occur. The reason [for finding Rule 407 inapplicable] is that such reports or inspections are not themselves remedial measures, and do not themselves even reflect decisions to take or implement such measures. Although such reports or inspections might represent the first or most preliminary steps that might eventually lead to decisions to make or implement changes, they are not themselves excluded under Rule 407.”) (quotations and internal citations omitted)). Therefore, there is no basis to strike the Cox Memorandum under Rule 407.

         However, Defendants' argument that the Cox Memorandum is irrelevant under Rule 401 finds support in Thompson v. City of Chicago, in which the Seventh Circuit affirmed the exclusion of a police department's general orders concerning the appropriate use of force because it was irrelevant to a Fourth Amendment analysis. 472 F.3d 444 (7th Cir. 2006). Specifically, the Seventh Circuit found that “[t]he fact that excessive force is not capable of precise definition necessarily means that, while the . . . General Order may give police administration a framework whereby commanders may evaluate officer conduct and job performance, it sheds no light on what may or may not be considered ‘objectively reasonable' under the Fourth Amendment. . . .” Id. at 455. Therefore, the Court found that whether the officer's conduct conformed with the internal general orders concerning the use of force “was irrelevant to the jury's determination of whether his actions . . . were ‘objectively reasonable' under the Fourth Amendment.” Id. at 455; see also Scott v. Suelter, 2013 WL 2181128, at *3 (C.D. Ill. May 20, 2013) (holding that the plaintiff could not introduce evidence of any police department general order, rule, or policy or evidence of any violation thereof to show that plaintiff's constitutional rights were violated under the Fourth Amendment). The Cox Memorandum specifically cites to and measures Officer Watts' actions against Muncie Police Department policies, [Filing No. 65 at 9], and in doing so, the Cox Memorandum evaluates officer conduct and job performance. Accordingly, for the reasons set forth in Thompson, the Cox Memorandum is irrelevant to a Fourth Amendment analysis. Therefore, Defendants' Motion to Strike the Cox Memorandum is GRANTED pursuant to Federal Rule of Evidence 401, and the Cox Memorandum, [Filing No. 65 at 7-10], is STRICKEN.



          The following factual background is set forth pursuant to the standards detailed in Part I. 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).

         On July 21, 2015 Plaintiff Charles Herschel's estranged wife Rhonda Herschel informed him that she had not been making house payments with money he provided, as they had previously agreed. [Filing No. 61-1 at 2.] That day, he was at the house in question doing landscaping with his girlfriend when he went into the garage to take a break. [Filing No. 61-1 at 5.] After Ms. Herschel informed Mr. Herschel that she needed money, they had a verbal “confrontation in the kitchen, ” [Filing No. 61-1 at 7], during which he threw up his hands and told her that he was done trying to help her and that he would “come and get the rest of [his] stuff, ” including his racecar. [Filing No. 61-1 at 6.] As the verbal confrontation continued, Mr. Herschel walked through the house and out the front door. He was “pretty fumed” and informed his estranged wife that she no longer needed to worry about taking care of the plants because he “took care of them for her.” [Filing No. 61-1 at 8-9.] As he left, he “took all the flowerpots and threw them, ” dumping all of the flowers out and said, “Here you go, I'm leaving.” [Filing No. 61-1 at 9.] At some point during the verbal confrontation, Rhonda asked the couple's son to call the police, which he did. [Filing No. 61-1 at 9.]

         1. Mr. Hershel's Arrest

         That evening at approximately 7:25 p.m., Officer Aaron Watts responded to a 911 dispatch that there was a physical disturbance with people fighting at 2809 West Twickingham Drive. [Filing No. 61-4 at 1; Filing No. 65 at 2; Filing No. 65 at 30.] En route to the residence, Officer Watts was stopped by a man in a driveway three houses west of 2809 West Twickingham Drive who said there was a disturbance going on down the street. [Filing No. 61-2 at 5.] As he arrived at the house to respond to the call, Officer Watts was wearing a body camera. [Filing No. 65 at 30-31.]

         Upon arriving at the house, Officer Watts got out of his squad car and encountered a man and a woman standing outside a vehicle in front of a house, and a woman sitting inside the vehicle with the door open. [Filing No. 62-1 at 0:28-0:33.] As he approached the individuals, Officer Watts asked, “What's going on?” [Filing No. 62-1 at 0:38.] An individual who was later revealed to be Mr. Hershcel replied, “There ain't a damn thing going on . . . [inaudible] . . . conversation going on.” [Filing No. 62-1 at 0:40.] An individual who was later revealed to be Ms. Herschel then approached Officer Watts and said “Look, ” and gestured toward the house and various pots and overturned plants on the ground. [Filing No. 62-1 at 0:42.] Mr. Herschel then gestured with his arms as he said to Officer Watts, “You see that? All that's mine. And I f---ed it all up. That's perfectly fine. I bought it. I planted it.” [Filing No. 62-1 at 0:48.] Officer Watts then said to Mr. Herschel, “Hey. Stop yelling, ” to which Mr. Hershel retorted, “Don't yell at me.” [Filing No. 62-1 at 0:50-0:52.]

         Officer Watts then ordered Mr. Herschel to put his hands behind his back. Mr. Herschel asked, “For what?” and Officer Watts again ordered him to put his hands behind his back. [Filing No. 62-1 at 0:55-0:56.] As Officer Watts handcuffed Mr. Herschel, Mr. Herschel continued, “for telling - asking you not to yell at me?” [Filing No. 62-1 at 1:00.] While Officer Watts handcuffed Mr. Herschel, Mr. and Ms. Herschel continued to argue with each other. [Filing No. 62-1 at 1:00-1:10.] During this time, Officer Watts accused Mr. Herschel of drinking and Mr. Herschel said that he had not had anything to drink. [Filing No. 62-1 at 1:20.] “Then why are you acting like an absolute idiot?” asked Officer Watts. [Filing No. 62-1 at 1:27.] Mr. Herschel replied, “because I haven't had my medication.” [Filing No. 62-1 at 1:27.] As Officer Watts continued to attempt to handcuff Mr. Herschel, he instructed, “Release your hands. Relax your hands. Quit pulling.” [Filing No. 62-1 at 1:27.]

         After handcuffing Mr. Herschel, Officer Watts instructed him to sit on the ground, which he did, before telling Officer Watts, “I don't have anything to say to you, sir.” [Filing No. 62-1 at 1:48-1:55.] While Mr. Herschel was seated on the sidewalk, Officer Watts ascertained that the woman in the parked vehicle was Mr. Hershel's girlfriend, while the woman outside of the vehicle was Mr. Herschel's wife. [Filing No. 62-1 at 2:00-2:01.] Ms. Herschel began explaining to Officer Watts what occurred with the flower pots. [Filing No. 62-1 at 2:10.] Officer Watts then said, “We got a call that you were physically hitting each other and everything, ” to which Ms. Herschel replied, “Oh, no. . . He [inaudible] the sh-t out of me.” [Filing No. 62-1 at 2:18-2:22.] She went on to explain to Officer Watts that Mr. Herschel “just went crazy” and that he was out of his pain medicine and has “a lot of pain issues, ” including his shoulder. [Filing No. 62-1 at 2:38-2:54.]

         Officer Watts then took down the names and dates of birth of Mr. and Ms. Herschel and Mr. Herschel's girlfriend, Melissa Alexander. [Filing No. 62-1 at 3:20-4:07.] As Officer Watts called the individuals' names and birthdays into his radio, Mr. Herschel called out, “Hey, can you loosen these up?” [Filing No. 62-1 at 4:30.] As he stood Mr. Herschel up, Officer Watts said, “Right now, you're under arrest for disorderly conduct and resisting law enforcement, ok?” [Filing No. 62-1 at 4:50-4:52.] Mr. Herschel denied resisting arrest and then said, “I gotta take some medication before I leave.” [Filing No. 62-1 at 4:52-5:22.] Officer Watts then conducted a search of Mr. Herschel's pockets, during which time Mr. Herschel called out, “You happy?” and Officer Watts instructed him to stop. [Filing No. 62-1 at 5:34-5:36.] After pulling two pills out of Mr. Herschel's pocket, Officer Watts asked, “What are these?” [Filing No. 62-1 at 5:37.] Mr. Herschel then asked, “Are these Tylenol?” to which Ms. Herschel replied, “It's not Tylenol.” [Filing No. 62-1 at 5:48-6:00.]

         As Officer Watts continued searching Mr. Herschel, Officer Eric Small arrived on the scene. [Filing No. 62-1 at 6:38; Filing No. 62-4 at 0:01-0:30.] Officer Watts asked Officer Small if he would hold Mr. Herschel because Mr. Herschel was bleeding, at which point, Mr. Herschel stated, “I'm bleeding because he's got these f---ing handcuffs on so tight and I asked him to loosen ‘em up.” [Filing No. 62-1 at 6:42-6:48; Filing No. 62-4 at 0:35-0:38.] Officer Small then began searching Mr. Herschel and Mr. Hershel stated that he needed “to take some medicine before I leave - anxiety meds.” [Filing No. 62-4 at 0:55-0:59.] Officer Small replied that he was not going to give Mr. Herschel any medicine but that he would check the handcuffs. [Filing No. 62-4 at 1:02-1:22.] Officer Small informed Mr. Herschel that he could “get a whole finger between each one” of the handcuffs so they were “good.” [Filing No. 62-4 at 1:30-1:33.] Officer Small then continued searching Mr. Herschel's pockets. [Filing No. 62-4 at 1:30-2:06.]

         Officer Small was still searching Mr. Herschel, who was facing the squad car, as Officer Watts approached the two. [Filing No. 62-4 at 0:55-0:59.] Officer Small asked Mr. Herschel, “Where are you bleeding from?” [Filing No. 62-4 at 2:05.] Mr. Herschel responded, “I don't know. F---ing check it out, ” and moved his arms with his hands still in handcuffs straight back behind him. [Filing No. 62-1 at 8:16; Filing No. 62-4 at 2:05-2:08.] Mr. Herschel continued, “I can't see the f---ing - can I see back there?” [Filing No. 62-4 at 2:05-2:11.] As he spoke, Mr. Hershel, whose back was facing Officer Small, swiftly turned his head and torso to his left, looking behind him and looked down at his handcuffs and then up at Officer Small. [Filing No. 62-1 at 8:18.] As he did so, he stepped his left foot forward. [Filing No. 62-1 at 8:18.] Officer Small turned Mr. Hershel back around and said, “You can't see back here.” [Filing No. 62-4 at 2:11.] Shortly thereafter, Officer Small put Mr. Herschel in the back of the squad car. [Filing No. 62-4 at 2:40.]

         Before leaving the scene, Officer Watts and Officer Small spoke with Ms. Herschel about what medicine had been in Mr. Herschel's pockets and about the possible source of the blood they found on him. [Filing No. 62-1 at 2:41-5:12.] Officer Small noted that Mr. Herschel had many scabs on his body and Officer Watts speculated that one of them could have come open when he had Mr. Herschel sit on the ground. [Filing No. 62-1 at 5:12-5:20.]

         2. Mr. Hershel's Transportation to and Arrival at the Delaware County Jail

         Officer Small transported Mr. Herschel to jail. [Filing No. 61-1 at 16.] Upon arriving at the jail, Officer Watts opened the door to the squad car and instructed Mr. Herschel to get out of the car. [Filing No. 62-2 at 0:31-0:40.] Thereafter, Officer Watts began to lead Mr. Herschel, who was handcuffed, toward the jail door. [Filing No. 62-2 at 0:44.] During this time, Officer Watts asked Mr. Herschel, “You have any other pills on you?” [Filing No. 62-2 at 0:57.] Mr. Hershel replied that he had “just the two Tylenol, ” to which Officer Watts replied, “Those are not Tylenol.” [Filing No. 62-2 at 1:00-1:02.] Mr. Herschel then commented that they must have been Gabapentin, and Officer Watts agreed that they were. [Filing No. 62-2 at 1:04.] Mr. Herschel then said, “I'm prescribed those, ” and Officer Watts said, “No, you're not. Your wife is.” [Filing No. 62-2 at 1:06-1:08.] Mr. Herschel said, “No, I am, too - by the Cleveland Clinic.” [Filing No. 62-2 at 1:09.] Officer Watts then opened the door to the jail and led Mr. Herschel through it as he said, “Ok.” [Filing No. 62-2 at 1:11.]

         As they entered the jail, Mr. Herschel said, “You f---ing telling me what I am and am not? Do you know? Do you live there?” [Filing No. 62-2 at 1:12-1:16.] Officer Watts and Mr. Herschel then turned right, after walking around a half-wall in the jail. [Filing No. 62-2 at 1:16.] As they did so, Officer Watts said, “You do not have a prescription on you so - ” [Filing No. 62-2 at 1:16- 1:19.] Mr. Herschel replied, “Well they are in the cabinet. I was at my residence.” [Filing No. 62-2 at 1:19-1:22.]

         After walking to the other side of the half wall, Officer Watts instructed Mr. Herschel to have a seat. [Filing No. 62-2 at 1:22.] On that side of the half wall, there was a chair directly in front of Mr. Herschel. [Filing No. 62-2 at 1:22.] Mr. Herschel then began to turn around to face Officer Watts, and Officer Small appeared in the doorway. [Filing No. 62-2 at 1:23.] Officer Watts again instructed Mr. Herschel to have a seat. [Filing No. 62-2 at 1:23.]

         As Mr. Herschel turned to his right, Officer Watts had his left hand on Mr. Herschel's arm. [Filing No. 62-6 at 0:08.] One second later, Officer Watts had both hands on Mr. Herschel's upper arms. [Filing No. 62-6 at 0:08.] As Officer Watts turned his back to the camera in the jail, [Filing No. 62-6 at 0:10], Officer Small entered the doorway to the jail, [Filing No. 62-5 at 14:28]. As Officer Small stepped into the doorway, Officer Watts was standing behind Mr. Hershel and had his right arm around Mr. Herschel's neck. [Filing No. 62-5 at 14:28.] Officer Watts then used his left hand to pull his right hand back and pulled Mr. Herschel's neck back. [Filing No. 62-5 at 14:28-14:30.] Officer Watts then pulled Mr. Hershel down to the ground, toward both men's left side. [Filing No. 62-5 at 14:31.] As Mr. Herschel moved to the ground, Officer Watts was positioned over him. [Filing No. 62-5 at 14:31.]

         While Officer Watts had Mr. Herschel on the ground, Officer Small walked into the jail. [Filing No. 62-5 at 14:37.] Officer Watts then said to Officer Small, “Have them come in here.” [Filing No. 62-5 at 14:40.] Officer Small then walked toward a door, before returning to Officer Watts and Mr. Herschel. [Filing No. 62-5 at 14:42.] While still on the ground, Officer Watts said to Mr. Herschel, “That's not how this is going to work. You understand? That's not how it's going to work.” [Filing No. 62-5 at 14:47-14:50.] Four other officers then came through the door and surrounded Officer Watts and Mr. ...

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