United States District Court, S.D. Indiana, Indianapolis Division
TERESA TODERO as Special Administrator of the ESTATE OF CHARLES TODERO, Plaintiff,
v.
BRIAN BLACKWELL, RENEE ELLIOT, ELIZABETH LAUT, AS-YET UNIDENTIFIED GREENWOOD POLICE OFFICERS, CITY OF GREENWOOD, Defendants.
ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT
James
Patrick Hanlon, Judge
Teresa
Todero alleges that police officers from the City of
Greenwood, Indiana used excessive force and otherwise
violated her son's constitutional rights while arresting
him. Defendants-the City of Greenwood and Officers Renee
Elliot, Elizabeth Laut, and Brian Blackwell-have moved for
summary judgment on certain claims. As explained in detail
below, summary judgment is GRANTED in part and DENIED
in part.
I.
Facts
and Background
Because
Defendants have moved for summary judgment under Federal Rule
of Civil Procedure 56(a), the Court views and recites the
evidence “in the light most favorable to the non-moving
party and draw[s] all reasonable inferences in that
party's favor.” Zerante v. DeLuca, 555
F.3d 582, 584 (7th Cir. 2009) (citation omitted). The Court
will note some factual disputes.
A.
Charles Todero
Charles
Todero was a longtime resident of Greenwood, Indiana.
Dkt. 125-22 at 8-9, 19 (T. Todero Dep. at 6-7, 17).
In May 2016, he lived with his mother and brother in nearby
Trafalgar. Dkt. 125-22 at 8 (T. Todero Dep. at 6).
That month, Mr. Todero's father suddenly died; the
funeral was on May 27, 2016. Dkt. 125-22 at 23,
27-28 (T. Todero Dep. at 21, 25-26).
Late in
the morning on May 29, 2016, Mr. Todero stepped onto Madison
Avenue in Greenwood, Indiana. Dkt. 112-1 at 2
(MacNaughton Dep. at 12). Looking neither left nor right, he
crossed the street, turned around, and walked back into
traffic. Dkt. 112-1 at 3 (MacNaughton Dep. at
13-14). Two drivers nearly hit Mr. Todero; they each called
911. Dkt. 112-1 at 4-5 (MacNaughton Dep. at 39, 43);
dkt. 112-2 at 2-3 (Poynter Dep. at 12, 16). The dispatcher
reported that Mr. Todero was attempting to commit suicide in
traffic. Dkt. 112-5 at 4 (Blackwell Dep. at 29).
B.
Mr. Todero's encounter with Greenwood police
officers
Greenwood
Police Department Officer Brian Blackwell responded to the
scene and found Mr. Todero sitting on the curb. Dkt.
112-5 at 3-4, 6 (Blackwell Dep. at 18, 29, 38). Officer
Blackwell noticed that Mr. Todero held a Bible on his lap.
Dkt. 112-5 at 6 (Blackwell Dep. at 41). As Officer
Blackwell approached, he asked Mr. Todero what was going on,
but got no response. Dkt. 112-5 at 7 (Blackwell Dep.
at 42). Unsure if Mr. Todero was mentally ill, intoxicated,
or impaired, Officer Blackwell walked to about five feet from
Mr. Todero and again asked “what's going on”;
Mr. Todero replied by talking about “Jesus Christ the
Prophet.” Dkt. 112-5 at 7 (Blackwell Dep. at
42-44).
Mr.
Todero then stood up and walked onto the road. Dkt. 112-5
at 7-8 (Blackwell Dep. at 44-46). He initially stayed
close to the curb as Officer Blackwell kept talking to him.
Dkt. 112-5 at 9 (Blackwell Dep. at 50-51). As Mr.
Todero kept walking-the parties dispute whether he veered
away from the curb-Officer Blackwell pulled out his Taser,
put his hand on Mr. Todero's shoulder, and ordered Mr.
Todero to stop. Dkt. 112-5 at 9 (Blackwell Dep. at
51-52).
When
Mr. Todero took about two more steps, Officer Blackwell
warned him that he would be tased, then tased him in the back
from two or three feet away. Dkt. 112-5 at 9-10
(Blackwell Dep. at 53-55). Officer Blackwell continued to
pull the Taser trigger and, after about the fourth time,
placed the Taser on Mr. Todero's calf and deployed it
again. Dkt. 112-5 at 11-15 (Blackwell Dep. at
59-75). By that time, Mr. Todero was flat on his face with
his hands beneath him. Dkt. 112-5 at 11-15
(Blackwell Dep. at 59-75). Because Mr. Todero's hands
were not behind his back, Officer Blackwell kept pulling the
Taser trigger. Dkt. 112-5 at 15 (Blackwell Dep. at
74-75).
Officers
Elliott and Laut arrived to find Mr. Todero with his hands
underneath him, clutching the Bible. Dkt. 112-10 at
5 (Elliott Dep. at 122-23). To gain control of Mr.
Todero's arms, Officer Elliott put her knee on his
shoulder and tried to use a pressure point behind his ear.
Dkt. 113-17 at 9 (Elliott Dep. at 160-61); dkt.
125-20 at 32-33 (Walters Dep. at 30-31). Officers
Elliott and Laut both tried to pull Mr. Todero's arms
behind his back. Dkt. 125-18 at 234-38 (Laut Dep.).
Eventually, Officer Elliott took the Bible and, with Officer
Laut, gained control of Mr. Todero's hands and handcuffed
him. Dkt. 112-10 at 7 (Elliott Dep. at 129, 167);
dkt. 112-9 at 9 (Laut Dep. at 263).
In
total, Officer Blackwell's Taser logged sixteen
discharges in four minutes, dkt. 125-15, though the
parties dispute whether it worked properly for each
discharge. Dkt. 131 at 16-17; dkt. 112-5 at
15 (Blackwell Dep. at 75); dkt. 112-8 at 2
(Holtzleiter Dep. at 22-25).[1] Officers Elliott and Laut arrived
between the sixth and thirteenth discharges. Dkt. 112-5
at 18 (Blackwell Dep. at 86).
When
firefighters and paramedics arrived, Mr. Todero was lying on
the ground. Dkt. 112-11 at 2, 7 (Godfrey Dep. at 25,
52). They lifted him onto a stretcher and put him in an
ambulance, where they administered a sedative and took him to
the hospital. Dkt. 112-11 at 2 (Godfrey Dep. at 25).
Mr. Todero died in the hospital on June 11, 2016. Dkt.
112-12 at 2, 9 (Hartman Dep. at 16, 102-04).
C.
Officer Blackwell's prior training and Taser use
Officer
Blackwell completed a Taser refresher course in 2013 and
another Taser training less than two years before his
encounter with Mr. Todero, dkt. 113-1 at 4; dkt.
113-16 at 25-26 (Blackwell Dep. at 163-69), and may have
been trained with a use-of-force policy that allowed Taser
use in cases of “[v]erbal non-compliance, ”
dkt. 125-54 at 84-86 (Ison Dep. at 84-86). Before
the encounter with Mr. Todero, Officer Blackwell had filed
four use-of-force reports describing prior Taser uses on
suspects in varying situations. Dkt. 125-68;
dkt. 125-69; dkt. 125-70; dkt.
125-71.
D.
Procedural history
Teresa
Todero-Mr. Todero's mother and Special Administrator of
his estate-brings this action alleging excessive force,
failure to intervene, and conspiracy under 42 U.S.C. section
1983, and several Indiana-law claims. Dkt. 25.
Officer Blackwell has moved for summary judgment on Ms.
Todero's 42 U.S.C. section 1983 and Indiana-law claims.
Dkt. 110. The City of Greenwood and Officers Elliott
and Laut have moved for summary judgment on Ms. Todero's
42 U.S.C. section 1983, Monell liability, and
Indiana-law claims. Dkt. 107. The Court heard oral
argument on the summary judgment motions on May 9, 2019.
Dkt. 176.
II.
Applicable
Law
A.
Summary judgment
Summary
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party must inform the court
“of the basis for its motion” and specify
evidence demonstrating “the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must “go beyond the
pleadings” and identify “specific facts showing
that there is a genuine issue for trial.” Id.
at 324.
In
ruling on a motion for summary judgment, the Court views the
evidence “in the light most favorable to the non-moving
party and draw[s] all reasonable inferences in that
party's favor.” Zerante, 555 F.3d at 584
(citation omitted).
B.
Qualified immunity
“[Q]ualified
immunity shields officials from civil liability so long as
their conduct ‘does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.'” Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015) (quoting Pearson v.
Callahan, 555 U.S. 223, 232 (2009)). This “clearly
established” standard ensures “that officials can
‘reasonably . . . anticipate when their conduct may
give rise to liability for damages.'” Reichle
v. Howards, 566 U.S. 658, 664 (2012) (quoting
Anderson v. Creighton, 483 U.S. 635, 646 (1987)).
Qualified immunity thus “balances two important
interests- the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officers from harassment, distraction, and liability when
they perform their duties reasonably.''
Pearson, 555 U.S. at 231.
The
“difficult part” of the qualified-immunity test
is “identifying the level of generality at which the
constitutional right must be clearly established.”
Volkman v. Ryker, 736 F.3d 1084, 1090 (7th Cir.
2013). A “high level of generality” is not
appropriate; instead, the question is “whether the law
was clear in relation to the specific facts confronting the
public official when he acted.” Id.“Such
specificity is especially important in the Fourth Amendment
context, ” because “it is sometimes difficult for
an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the
officer confronts.'' Mullenix, 136 S.Ct. at
308 (quotation and citation omitted).
In
excessive force cases, “the result depends very much on
the facts of each case, '' so officers are entitled
to qualified immunity unless precedent
‘‘squarely governs” the case at
hand. Id. at 309 (emphasis in original) (quoting
Brosseau v. Haugen, 543 U.S. 194, 201 (2004)). While
a case directly on point is not required, “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Mullenix, 136 S.Ct.
at 308.
“To
overcome the defendant's invocation of qualified
immunity, [a plaintiff] must show both (1) that the facts
make out a constitutional violation, and (2) that the
constitutional right was ‘clearly established' at
the time of the official's alleged misconduct.”
Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713
(7th Cir. 2013).
III.
Analysis
The
Court addresses the following claims in turn: excessive force
against Officer Blackwell; excessive force against Officers
Elliott and Laut; failure to intervene against Officers
Elliott and Laut; conspiracy against Officers Blackwell,
Elliott, and Laut; Monell ...