United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
PATRICK HANLON UNITED STATES DISTRICT JUDGE
Green was fatally shot after an armed carjacking as he
attempted to elude capture by Indianapolis Metropolitan
Police Department (“IMPD”) officers. Mr.
Green's estate contends that the officers used excessive
force. Defendants-the City of Indianapolis and Officers Marc
Klonne, Adam Mengerink, and Vincent Stewart-have moved for
summary judgment. Dkt. . The officers are entitled to
qualified immunity and the city is not subject to municipal
liability so that motion is GRANTED.
Facts and Background
Mr. Green's encounter with IMPD officers
Defendants have moved for summary judgment under Rule 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 notes some factual disputes.
after 10:00 p.m. on August 9, 2015, IMPD officers received a
dispatch about an armed carjacking with two suspects, one who
fired four shots at a group of people. Dkt. 37-1; dkt. 37-2;
dkt. 44-2 at 5 (Stewart Dep. at 31). That dispatch included a
description of the two unidentified juvenile suspects,
license plate information, and the type of car taken-a red
2013 Nissan Altima. Dkt. 37-1; dkt. 44-2 at 5 (Stewart Dep.
Green, who was fifteen years old, was driving that car, with
another juvenile in the passenger's seat. Dkt. 37-11 at
20-21, 41 (Klonne Dep. at 57-58, 94); dkt. 44-3 at 6
(Mengerink Dep. at 18); dkt. 44-9 at 2. Soon, about five
marked police cars were tailing the Nissan as Mr. Green drove
at a normal speed. Dkt. 44-2 at 9 (Stewart Dep. at 40); dkt.
44-3 at 9 (Mengerink Dep. at 25). Eventually, he turned onto
a dead-end street. Dkt. 44-4 at 6 (Klonne Dep. at 43). Five
officers drove after the Nissan: Adam Mengerink, Cory Heiny,
Vincent Stewart, Marc Klonne, and Lorie Phillips.
See dkt. 37-8 at 13 (Mengerink Dep. at 25).
IMPD officers arranged their cars in a “tactical V
formation, ” which is intended to stop a suspect
vehicle while leaving distance between it and officers. Dkt.
37-11 at 14-15 (Klonne Dep. at 44-45); dkt. 44-3 at 10
(Mengerink Dep. at 28). This formation left no room for the
red Nissan to fit through. Dkt. 44-3 at 12-13 (Mengerink Dep.
at 33-34). The Nissan stopped and the passenger jumped out
and fled. Dkt. 44-3 at 13-14 (Mengerink Dep. at 34-35); dkt.
37-11 at 20-21 (Klonne Dep. at 57-58). Officer Heiny chased
the escaping passenger. Dkt. 37-12 at 15 (Stewart Dep. at
Green then turned the car around and drove toward the police
vehicles. Dkt. 37-8 at 26, 31-32 (Mengerink Dep. at 38,
43-44); dkt. 37-11 at 29 (Klonne Dep. at 66). The parties
dispute what happened next. Defendants contend that Mr. Green
drove into Officer Phillips's car, backed into Officer
Heiny's car, then revved the Nissan's engine and
accelerated quickly forward into Officer Phillips's car
again. Dkt. 37-8 at 35-37 (Mengerink Dep. at 47-49); dkt.
37-11 at 22-16 (Klonne Dep. at 59-63). Mr. Green's estate
argues that Mr. Green drove forward slowly into Officer
Phillips's car only once. Dkt. 44 at 8- 10; dkt. 44-2 at
10-12 (Stewart Dep. at 49-51).
Green drove toward Officer Phillips's car, three officers
opened fire. They were concerned for Officer Phillips's
safety because they didn't know where she was. Dkt. 37-8
at 26, 32, 35, 38-39, 41 (Mengerink Dep. at 38, 44, 47,
50-51, 53); dkt. 37-11 at 22, 28, 32, 40-42 (Klonne Dep. at
59, 65, 69, 93- 95); dkt. 37-12 at 20, 32, 34-35 (Stewart
Dep. at 49, 61, 63-64). Officer Mengerink fired eight shots
through the Nissan's passenger window until he
couldn't see the driver any more. Dkt. 37-8 at 7, 41-44
(Mengerink Dep. at 17, 53-56). Officer Stewart fired seven
shots through either the passenger window or through the
front windshield. Dkt. 37-12 at 24, 26-27 (Stewart Dep. at
53, 55-56); dkt. 37-8 at 44-45 (Mengerink Dep. at 17, 56-57).
Officer Klonne fired five shots through the front windshield.
Dkt. 37-11 at 7-8 (Klonne Dep. at 34- 35). Broken glass from
the Nissan's driver's side door was on the ground
where the Nissan stopped against Officer Phillips's car.
Dkt. 44-2 at 13 (Stewart Dep. at 54); dkt. 44-7.
Green opened his car door and collapsed to the pavement. Dkt.
37-12 at 37-38 (Stewart Dep. at 67-68). Officers Phillips and
Stewart approached Mr. Green and found a handgun next to or
underneath him. Dkt. 37-12 at 40- 43 (Stewart Dep. at 69-72);
dkt. 37-13 at 7 (Phillips Dep. at 66). Mr. Green died
immediately or within minutes from several gunshot wounds,
one of which was to the right side of his back. See
dkt. 44-9 at 4-5; dkt. 37-12 at 41 (Stewart Dep. at 70).
Mr. Harmening's report
estate's expert, William Harmening, prepared a report
analyzing the facts. Dkt. 44 at 9-11. Mr. Harmening has been
a law enforcement officer for about 36 years and is the
program coordinator for Washington University in St.
Louis's forensic-psychology program. Dkt. 44-8 at 3.
on that report, the estate contends that the Nissan
slow-rolled into Officer Phillips's car with no
acceleration, causing no damage. Dkt. 44 at 9-10. The report
is also the basis for the estate's argument that Mr.
Green was shot in the back after the Nissan stopped and after
Officer Stewart ran to its driver's side. Id.
The report also says that it's “reasonable to
conclude” that the final shot must have come after Mr.
Green started exiting the vehicle. Dkt. 44-8 at 9.
Green's estate filed this action alleging excessive force
against the individual officers and that the City of
Indianapolis is liable under Monell for its
officers' constitutional violation. Dkt. 1. Defendants
have moved for summary judgment. Dkt. 36.
judgment shall 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 ...