United States District Court, S.D. Indiana, Indianapolis Division
BILLIE THOMPSON, as personal representative of the ESTATE OF DUSTY HEISHMAN, Plaintiff,
BRIAN BURNETT, DONALD SPIEGL, WILLIAM BUECKERS, PHILLIP GREENE, and BILLY JOHNSON, Defendants.
ENTRY GRANTING CITY DEFENDANTS' RENEWED MOTION
FOR SUMMARY JUDGMENT
WALTON PRATT, JUDGE
matter is before the Court on Defendants Brian Burnett,
Donald Spiegl, William Bueckers, Phillip Greene, and Billy
Johnson (collectively, “City Defendants”),
Renewed Motion for Summary Judgment in Light of Seventh
Circuit's Ruling in Thompson v. Cope.
(Filing No. 187.) For the reasons stated below, the
Motion is granted.
case stems from the death of Dusty Heishman. In Indianapolis
in October 2014, Heishman was high on amphetamines and naked
in the street. The City Defendants are law enforcement
officers that responded and tried to subdue Heishman.
Paramedics arrived on the scene and administered a sedative
to Heishman, so he could be moved to an ambulance to be taken
to an arrestee holding room at a hospital. Soon,
Heishman's heart and breathing stopped. Despite efforts
to revive him, Heishman died several days later. Billie
Thompson, as personal representative of the Estate of Dusty
Heishman (“Thompson”) sued, asserting federal
Fourth Amendment claims and state-law tort claims against the
City Defendants and Defendants Health and Hospital
Corporation of Marion County and Medic Lance Cope (jointly,
“Medical Defendants”.) This Court issued rulings
on summary judgment motions on which two interlocutory
appeals were filed by Medical Defendants. (seeFiling No.
156, Filing No. 174). The United States Court
of Appeals for the Seventh Circuit on September 24, 2018
issued a Mandate (Filing No. 185), which instructed
The denial of [Defendant Lance] Cope's motion for summary
judgment on the excessive force claim and the denial of
defendants' [Health and Hospital Corporation of Marion
County and Cope] motion to dismiss the state-law claims are
REVERSED, with costs. The case is
REMANDED with instructions to dismiss the
estate's state-law claims without prejudice and to
dismiss the federal claims against Cope with prejudice.
Id. at 4.
the issuance of the Mandate, the City Defendants filed the
instant Renewed Motion for Summary Judgment in Light of
Seventh Circuit's Ruling in Thompson v. Cope.
(Filing No. 187.) City Defendants point out that on
September 29, 2017, this Court issued its Entry on City
Defendants' Motion for Summary Judgment, in which summary
judgment was granted to the City Defendants on all claims
except the federal claim of failure to protect/intervene
(Filing No. 154 at 33). In the Court's summary
judgment Entry, the Court found there was a “material
dispute regarding whether the officers had a realistic
opportunity to intervene to prevent the harm from Medic
Cope's use of force against Heishman, ”
id. at 28, and thus, summary judgment was denied as
to the failure to protect/intervene claim on that basis.
Defendants now argue that, because the Seventh Circuit has
held that it was not clearly established that Cope's
actions were subject to the Fourth Amendment, Thompson's
failure to protect/intervene claim fails as a matter of law.
They assert that a failure to protect/intervene claim is
based on the principle that “[t]he Fourteenth Amendment
imposes an affirmative duty on all law enforcement officials
‘to intervene to protect the constitutional rights of
citizens from infringement by other law enforcement officers
in their presence.'” Moore v. Morales, 445
F.Supp.2d 1000, 1009 (N.D. Ill. 2006) (quoting Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Defendants argue that the law enforcement officers in this
case could not have failed to intervene if Medic Lance Cope
was not acting as a law enforcement officer subject to Fourth
Amendment limitations. They point to Seventh Circuit case
law, which explains,
An officer who is present and fails to intervene to prevent
other law enforcement officers from infringing the
constitutional rights of citizens is liable under § 1983
if that officer had reason to know: (1) that excessive force
was being used, (2) that a citizen has been unjustifiably
arrested, or (3) that any constitutional violation has been
committed by a law enforcement official, and the officer had
a realistic opportunity to intervene to prevent the harm from
Yang v. Hardin, 37 F.3d 282, 287 (7th Cir. 1994).
Mandate, the Seventh Circuit held it was not clearly
established that Medic Lance Cope was acting in a law
enforcement capacity. In particular, the court held,
“It was not clearly established that a paramedic
effects a ‘seizure' within the meaning of the
Fourth Amendment and subjects himself to an excessive force
claim by sedating an arrestee who is suffering from a medical
emergency to take the arrestee to the hospital.”
(Filing No. 185 at 20.) City Defendants note that
this Court previously held in the summary judgment Entry that
“there must be an underlying constitutional violation
to support a claim for failure to protect or
intervene.” (Filing No. 154 at 27.)
Thus, City Defendants officers' liability is fully
dependent on Medic Lance Cope's liability, and because it
was not clearly established that Medic Lance Cope was
affecting a seizure subject to Fourth Amendment limitations,
the officers had no reason to know a constitutional violation
was occurring and had no duty to intervene. Therefore, the
City Defendants are protected by qualified immunity, and
there is no underlying constitutional violation to support a
failure to protect/intervene claim, and thus, summary
judgment should be granted.
response, the Thompson acknowledges that the only remaining
claim against City Defendants is the failure to
protect/intervene claim related to Medic Lance Cope's use
of force, and the Seventh Circuit held that Medic Lance
Cope's use of force was not clearly established as
violative of the Fourth Amendment (Filing No. 201 at
2). Thompson states, “In light of the opinions of
this Court and the Seventh Circuit, the Plaintiff does not
dispute that the Defendants' Motion for Summary Judgment
has merit.” Id. Furthermore, “[a]s a
result, the Plaintiff does not have a good faith basis to
file a response in opposition to the City Defendants'
Motion for Summary Judgment.” Id.