Todero v. Blackwell

          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 ...