Becker v. City of Evansville & Zachary Elfreich

• Decision Date: 26 January 2015
• Docket Number: 3:12-cv-182-WGH-TWP
• Parties: JAMIE BECKER, Plaintiff, v. CITY OF EVANSVILLE and ZACHARY ELFREICH, individually and as an Officer of the Evansville Police Department, Defendants.
• Court: U.S. District Court — Southern District of Indiana

JAMIE BECKER, Plaintiff, v. CITY OF EVANSVILLE and ZACHARY ELFREICH, individually

and as an Officer of the Evansville Police Department, Defendants.

3:12-cv-182-WGH-TWP

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION

January 26, 2015

ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Table of Contents

I. Summary Judgment Standard....................................................................1

II. Facts and Procedural History......................................................................2

A. Becker's Arrest…………………………………………………………………….3

1. Elfreich's Approach……………………………………………………….4

2. Elfreich's Uses of Force………………………………………………….7

B. Earlier Proceedings............................................................................9

III. Elfreich is entitled to partial summary judgment on Becker's Section 1983 excessive force claims. ………………………………………………………………...10

A. A reasonable jury could find that Elfreich's uses of force were

objectively unreasonable. …………………………………………………….10

1. Rule of Law: Whether a use of force is reasonable depends on all of the circumstances known to the officer at the time of the arrest. ……………………………………………………………………..10

a. Crime of Suspicion……………………………………………...13b. Threat to Officers' or Others' Safety……………….…..……14

c. Attempts to Resist or Flee from Arrest……………………..18

d. Issuance of a Warning………………………………………….20

e. Officer's Exercise of Control over the Dog…………………22

f. Duration of the Bite and Hold………………………………..23

g. Reasonableness of Deploying a Dog to Bite and Hold…..26

2. Application: The circumstances would justify a jury in finding Elfreich's uses of force objectively unreasonable. ………………27

a. A reasonable jury could find that Elfreich correctly suspected Becker of a violent crime. ……………………….28

b. A reasonable jury could find that Elfreich had minimal reason (and, after seeing Becker on the stairs, no reason) to perceive that Becker posed a safety threat. …………..29

c. A reasonable jury could find that Elfreich had no reason to believe that Becker was hiding and that Becker never attempted to resist or flee from arrest. …………………….32

d. A reasonable jury could find that Elfreich issued no warning before unleashing Axel. ……………………………34

e. A reasonable jury could find that Elfreich exercised no control over Axel from the time he unleashed Axel until he ordered Axel to release Becker's leg roughly one minute later. ……………………………………………………………….35

f. A reasonable jury could find that Elfreich allowed Axel to bite Becker for longer than was necessary to complete the arrest. ……………………………………………………………..37

g. A reasonable jury could find that, given the availability of other tactics, Elfreich acted unreasonably by unleashing Axel with instructions to bite and hold Becker. …………38

3. Conclusion: A reasonable jury could conclude that Elfreich applied excessive force when he unleashed Axel with instructions to bite and hold Becker, when he yanked Becker down the stairs, and when he allowed Axel to continue biting Becker's leg for nearly a minute after Becker surrendered. ….39

B. Elfreich is entitled to qualified immunity for his decision to unleash Axel with instructions to bite and hold Becker—but not for his subsequent actions. ……………………………………………………………41

1. A police officer's exertions of force are protected by qualified immunity unless pre-existing law has clearly established them as unconstitutional. ……………………………………………….…..43

a. The right in question must be cast in the light of the specific facts of the case. ……………………………………..44

b. A judicial precedent finding a constitutional violation on similar facts is helpful—but not essential—to establishing that the law clearly has established the right in question. ………………………………………………………….45

2. The law has not clearly established that an officer offends the Fourth Amendment by unleashing a dog to bite and hold a suspect under the circumstances present here. ………………..47

3. Clearly established law would have notified any competent officer that the Fourth Amendment would prohibit pulling an arrestee face-first down the stairs after a dog had bitten his leg and he had surrendered. ……………………………………………..50

4. Clearly established law also would have notified any competent officer that the Fourth Amendment would prohibit allowing a police dog to continue biting an unarmed, nonresisting arrestee's leg for nearly a minute after he had surrendered. …53

C. Conclusion: Elfreich is entitled to partial summary judgment on Counts IV and VI of the Amended Complaint. …………………………..56

IV. The City of Evansville is entitled to partial summary judgment on Becker's Section 1983 excessive force claims. ………………………………………………57

A. Becker may prevail on his Monell claims by proving that the EPD's policies reflected "deliberate indifference" toward the Fourth Amendment and constituted the "moving force" behind Elfreich's unconstitutional conduct. ….………………………………………………..57

B. A reasonable jury could find that the EPD's policies reflected "deliberate indifference" toward the Fourth Amendment and caused some—but not all—of Elfreich's conduct. …………………………………61

1. A reasonable jury could find that the City caused some of Becker's injuries by failing to explain in SOP 359.00 or elsewhere when officers must terminate their exertions of force against arrestees. ………………………………………………………62

2. A reasonable jury could find that the City caused some of Becker's injuries by failing to require in SOP 359.03 or elsewhere that officers constantly remain in position to exercise complete control over their dogs. …………………………………...65

3. Becker has not identified another basis for deliberate indifference in SOP 359.03. ………………………………………….68

V. The Defendants are not entitled to summary judgment on Becker's battery or negligence claims. …………………………………………………………………..69

A. Because a reasonable jury could find Elfreich's conduct "willful and wanton," the ITCA does not protect Elfreich. …………………………….70

B. The ITCA does not exempt officers or municipalities from liability for negligently imposed excessive force. …….………………………………...72

C. Because a reasonable jury could find Elfreich's conduct objectively unreasonable, the Defendants are not entitled to summary judgment on grounds of reasonableness. ………………………………………………73

VI. Conclusion………………………………………………………………………………..74

Opinion

This matter is before me, William G. Hussmann, Jr., United States Magistrate Judge, on the Defendants' Motion for Summary Judgment (Filing No. 80), the parties' consent (Filing No. 8; Filing No. 9), and Judge Pratt's Order of Reference (Filing No. 11). The motion is fully briefed. (See Filing No. 81; Filing No. 83; Filing No. 85; Filing No. 93; Filing No. 98; Filing No. 102.) Having considered the motion, the parties' filings, and relevant law, and being duly advised, I hereby GRANT the motion in part and DENY it in part.

I. Summary Judgment Standard

A court must grant summary judgment on a claim or defense "where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681 (7th Cir. 2014); Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a factual dispute is "genuine"—precluding summary judgment—"only when the evidence could support a reasonable jury's verdict for the non-moving party." Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 650 (7th Cir. 2011).

The movant "bears an initial burden of proving there is 'no material question of fact with respect to an essential element of the non-moving party's case.'" MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 657 (7th Cir. 2011) (quoting Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009)). That burden is formidable, and courtsshould exercise caution in granting summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. If the movant succeeds, the nonmovant then must present "evidence raising a genuine issue of material fact." MMG Fin. Corp., 630 F.3d at 657. The nonmovant need not "clearly prove" his case to avoid summary judgment; he can survive by raising evidence of specific facts that would "permit" a jury to decide in his favor. Williams v. City of Chicago, 733 F.3d 749, 760 (7th Cir. 2013).

"At summary judgment a court may not assess the credibility of witnesses, choose between competing inferences or balance the relative weight of conflicting evidence; it must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party." Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 255). Effectively, the movant asks "the court to apply the law to only the [nonmovant]'s version" of the events. See Norris v. Bain, No. 1:04-cv-1545-DFH-TAB, 2006 WL 753131, at *1 (S.D. Ind. Mar. 21, 2006).

II. Facts and Procedural History

Except where I have noted otherwise, the following description of the facts reflects Becker's account and resolves conflicts and reasonable inferences in his favor. The Defendants may ultimately prove this account untrue. But, at this stage in the proceedings, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.

A. Becker's Arrest

On March 11, 2011, a Vanderburgh County judge issued a warrant for Jamie Becker's arrest on allegations that, three weeks earlier, he held a knife to his brother-in-law's neck and threatened to kill him. (Filing No. 81-1 at ECF pp. 3-4.) At that time, the Evansville Police Department ("EPD") at least suspected Becker of also having threatened his then-roommates with a "decorative spear," a sword, and nunchucks in October of 2010. (See id. at ECF pp. 1-2.) The Defendants...