400 F.3d 1070 (7th Cir. 2005), 04-1318, Leaf v. Shelnutt

Docket Nº:04-1318.
Citation:400 F.3d 1070
Party Name:Larry J. LEAF, individually and as personal representative of the estate of John P. Leaf, deceased, Martha A. Leaf, John P. Leaf, et al., Plaintiffs-Appellees, v. Ronald SHELNUTT, Defendant-Appellant.
Case Date:March 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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400 F.3d 1070 (7th Cir. 2005)

Larry J. LEAF, individually and as personal representative of the estate of John P. Leaf, deceased, Martha A. Leaf, John P. Leaf, et al., Plaintiffs-Appellees,

v.

Ronald SHELNUTT, Defendant-Appellant.

No. 04-1318.

United States Court of Appeals, Seventh Circuit.

March 18, 2005.

        Argued Sept. 21, 2004

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        Kathleen A. DeLaney (argued), DeLaney & DeLaney, Indianapolis, IN, for Plaintiffs-Appellees.

        Anthony W. Overholt (argued), Office of the Corporation Counsel, Indianapolis, IN, for Defendant-Appellant.

        Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit Judges.

        RIPPLE, Circuit Judge.

        Early in the morning of May 5, 2001, Marion County Sheriff's Deputy Ronald Shelnutt shot and killed John Patrick Leaf. Members of Mr. Leaf's family ("the Leafs") brought this action pursuant to 42 U.S.C. § 1983 and Indiana state law for alleged constitutional violations and other torts arising from this tragic event. The

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district court granted in part and denied in part Deputy Shelnutt's motion for summary judgment. For the reasons set forth in the following opinion, we now reverse the district court and remand for further proceedings.

        I

        BACKGROUND

        A. Facts

        On the night of May 4, 2001, John Patrick Leaf patronized a bar in Indianapolis. When he left the bar, he turned over his keys to a friend and took a taxicab to his home at 8863 Lake Nora West Drive, Apartment B, in the Lake Nora Arms Apartments. When he arrived, he forced entry into his own apartment.

        Around 1 a.m. on May 5, Dustin Kersey, Ryan Murphy and Vito Sanders, residents of the Lake Nora Arms Apartments, heard glass breaking in the direction of Mr. Leaf's apartment. The residents called out to see what was happening, and the sounds of glass breaking stopped for a few minutes and then resumed. When the sounds of glass breaking began again, the residents went to investigate. Kersey, Murphy and Sanders arrived at the patio entrance to Mr. Leaf's apartment and saw a man trying to gain entrance to the apartment. Mr. Leaf introduced himself to the residents and explained that he lived in the apartment but did not have his keys. The men had not met Mr. Leaf prior to that night. They talked with Mr. Leaf briefly and then left. Murphy later returned to Mr. Leaf's apartment to make note of the address and then called 911 from his own apartment at 1:10 a.m., but hung up before his call was answered.

        That night, Deputy Andrew Jacobs was working for the Meridian Hills Police Department. Deputy Jacobs sometimes served as a special deputy for the Marion County Sheriff's Department and volunteered to respond to the incomplete 911 call on behalf of that department. Deputy Jacobs responded to the call at Murphy's apartment; he arrived at around 1:22 a.m. Murphy told Deputy Jacobs that the man he had seen breaking a window had claimed to be the occupant of the apartment and had claimed that he did not have his keys. According to Deputy Jacobs, Murphy also said that the man at the apartment had been belligerent. Deputy Jacobs did not know that the residents had shaken hands with Mr. Leaf or that Mr. Leaf had introduced himself. For two or three minutes, Deputy Jacobs spoke with Murphy and the other residents who had seen Mr. Leaf.

        Deputy Jacobs then drove to Mr. Leaf's apartment. There, he observed the apartment from outside the fence that enclosed a patio at the back of Mr. Leaf's apartment. Deputy Jacobs noticed that the patio door was open and that a window at the rear of the apartment was broken. He then walked through the fence gate and into the patio area, where he could see that the vertical blinds that hung at the apartment's patio doorway were moving. The blinds, hung inside the apartment, were blowing outside. Deputy Jacobs pushed the blinds aside to look into the apartment. He saw an item, later identified as an ice chest, pushed up against the front door. Deputy Jacobs testified that burglars sometimes will obstruct all entries to a home except those through which they enter and exit.

        At that point, Deputy Jacobs called for backup, and Deputy Shelnutt responded. Deputy Jacobs stated in the call that there was an open patio door and a broken window, but did not specifically say that he believed there had been a burglary. He continued to observe the apartment until 1:30 a.m., when Deputy Shelnutt arrived. Deputy Jacobs testified that he told Deputy

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Shelnutt about the substance of his conversation with the residents--specifically, that the residents had spoken with the man seen entering the apartment and that they did not know whether that man lived in the apartment.

        About one minute after Deputy Shelnutt arrived, the officers entered the apartment. The deputies did not radio to say they would be entering the apartment. In fact, once Deputy Shelnutt responded to Jacobs' call, neither Deputy Jacobs nor Deputy Shelnutt made any radio communications with the police department until they radioed to report that there had been a shooting.

        The officers entered the apartment with guns drawn, using the tactical lights attached to the barrels of their guns to illuminate the dark apartment. Neither officer knocked before entering the apartment. However, Deputy Jacobs testified in his deposition that he announced from outside the apartment, "This is the Marion County Sheriff. Come out now. Show yourself. This is the Marion County Sheriff. Come out now. Show yourself." R.147, Ex.7 at 155. Deputy Shelnutt made no announcements. Deputy Jacobs testified that he "could" have said, "Come out and make yourself known," but that he did not "recall" making such an announcement. R.147, Ex.7 at 155. Deputy Jacobs also said that he did not announce that the officers would enter the apartment. Deputy Shelnutt, however, testified at his deposition that he recalled Deputy Jacobs announcing, "We will be searching the apartment." R.147, Ex.13 at 120.

        Once the officers entered the apartment, Deputy Shelnutt noticed light coming from the front door, and concluded that, before the front door was secured shut with the ice chest, the front door had been kicked in and the door frame broken. The officers searched the apartment, including the bedroom, where they found Mr. Leaf lying naked and uncovered on his bed, face up, with his eyes closed. Mr. Leaf was breathing deeply. After finding Mr. Leaf on the bed but before waking him, Deputy Shelnutt conducted a search lasting approximately three minutes, in order to determine whether anyone was hiding; Deputy Jacobs remained in the bedroom. Deputy Shelnutt checked the kitchen, two hall closets, a bedroom closet and a bathroom. In the bedroom, Deputy Shelnutt then approached the bed with his gun drawn and the tactical lights illuminated, in order to awaken Mr. Leaf. It is disputed whether Deputy Shelnutt actually touched Mr. Leaf. Deputy Shelnutt did not "recall" touching Mr. Leaf's shoulder. R.147, Ex.13 at 160. Deputy Jacobs, on the other hand, testified in his deposition that he saw Deputy Shelnutt nudge Mr. Leaf. R.147, Ex.7 at 35, 177.

        At this point, the officers claim, Mr. Leaf jumped up from the bed and lunged at Deputy Shelnutt, wielding a 15-inch bowie knife. Deputy Jacobs did not remember which hand Mr. Leaf used to wield the knife, but recalled that Mr. Leaf waved the knife in a "figure eight" motion. R.147, Ex.7 at 178. The officers told Mr. Leaf to drop the knife and shouted, "Sheriff's Department" or "Police." R.147, Ex.7 at 188; R.147, Ex.13 at 177, 178. When Mr. Leaf continued to advance toward Deputy Shelnutt with the knife, Deputy Shelnutt retreated a step or two into the bathroom. Deputy Shelnutt then fired four shots at Mr. Leaf, hitting him three times. Mr. Leaf died from the gunshot wounds.

        B. District Court Proceedings

        On February 19, 2002, members of Mr. Leaf's family initiated this action in Indiana state court pursuant to 42 U.S.C. § 1983 and Indiana state law. The Leafs named as defendants Deputies Jacobs and

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Shelnutt in their individual capacities, as well as Marion County Sheriff Jack Cottey and Meridian Hills Town President Ed Perry in their official capacities. The Leafs alleged that Deputy Shelnutt and Deputy Jacobs violated Mr. Leaf's rights under the Fourth and Fourteenth Amendments to the Constitution. In particular, the Leafs claimed that the officers had unlawfully searched Mr. Leaf's apartment, that they had unlawfully seized him and that both officers had deprived Mr. Leaf of life, liberty or property without due process of law. The Leafs further asserted that Deputy Shelnutt had used excessive force against Mr. Leaf. They also advanced § 1983 claims for failure to intervene on Mr. Leaf's behalf against both Deputy Shelnutt and Deputy Jacobs. 1 On March 20, 2002, the defendants removed the action to the United States District Court for the Southern District of Indiana.

        In a motion filed July 21, 2003, the Leafs sought partial summary judgment from the district court. They contended that the officers had unlawfully seized Mr. Leaf. The officers responded that they did not unlawfully seize Mr. Leaf and asserted qualified immunity as a defense. In an order issued October 14, 2003, the district court denied summary judgment on the question of illegal seizure. The court concluded that Mr. Leaf was seized while lying in his bed. Noting that there was a "factual dispute about whether Shelnutt touched or nudged Leaf ... in an effort to wake him," R.172 at 4, the district court did not determine whether Deputy Shelnutt touched Mr. Leaf. The court found that the fact that Mr. Leaf "did not flee from the officers' show of authority (or physical touching, if one...

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