King v. City of Ft. Wayne, Ind., Civ. A. No. F 83-59.

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: LEE
• Citation: 590 F. Supp. 414
• Parties: Clarence J. KING; Martha A. King; and Michelle E. King, Plaintiffs, v. CITY OF FORT WAYNE, INDIANA; Robert J. Lalone; Thomas Turflinger; Kenneth Gigli; Gregory Lewis; and Douglas Haskell, Defendants.
• Decision Date: 29 March 1984
• Docket Number: Civ. A. No. F 83-59.

590 F. Supp. 414

Clarence J. KING; Martha A. King; and Michelle E. King, Plaintiffs,
v.
CITY OF FORT WAYNE, INDIANA; Robert J. Lalone; Thomas Turflinger; Kenneth Gigli; Gregory Lewis; and Douglas Haskell, Defendants.

Civ. A. No. F 83-59.

United States District Court, N.D. Indiana, Fort Wayne Division.

March 29, 1984.

590 F. Supp. 415

COPYRIGHT MATERIAL OMITTED

590 F. Supp. 416

Larry J. Burke, Larry J. Burke P.C., Fort Wayne, Ind., for plaintiffs

John D. Walda, Barrett, Barrett & McNagny, Fort Wayne, Ind., for defendants.

MEMORANDUM OPINION AND JUDGMENT

LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial, held January 24, 1984. Final arguments were held February 1, 1984. The case deals with alleged violations of the fourth and fourteenth amendments to the United States Constitution, and 42 U.S.C. § 1983. This court, having considered the entire record and being duly advised, hereby enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

The plaintiffs in this cause are Clarence J. King, Martha A. King, and Michelle E. King. On October 18, 1981, plaintiffs resided at 925 East Hawthorne Street, Fort Wayne, Indiana. Plaintiffs Mr. and Mrs. King owned the residence at 925 East Hawthorne Street in Fort Wayne. Defendant, City of Fort Wayne, Indiana, is a municipal corporation located in Allen County, Indiana, and has the general control, supervision, management and command of its Police Department and the police officers of the City of Fort Wayne, Indiana. On October 18, 1981 individual defendants Thomas Turflinger, Kenneth Gigli, Gregory Lewis, and Douglas Haskell were all police officers employed by the City of Fort Wayne, Indiana. Lt. Gigli was the ranking officer present during the events and was in charge of the Mid-Shift Watch. Sgt. Pruitt was the patrol sergeant in charge of patrol officers on the second shift. Officer Lalone worked the second shift. Jurisdiction is present under 28 U.S.C. §§ 1343 and 1331 and is conceded by the parties. This action arises under 42 U.S.C. § 1983 and the fourth and fourteenth amendments to the Constitution.

On said date, at approximately 9:30 p.m., Clarence King was driving his automobile on Gaywood Avenue in Fort Wayne, Indiana in excess of the speed limit. While so driving his vehicle, Mr. King was observed by defendant Officer Lalone and Officer Lalone's father-in-law, Fred Richards, who was accompanying Officer Lalone as a "ride along." Officer Lalone began pursuit

590 F. Supp. 417

of Mr. King, following Mr. King on Gaywood Avenue. Officer Lalone was in a marked police squad car which had a revolving flashing light system installed on its roof. Officer Lalone turned on the flashing red lights located on the roof of his car as he pursued Mr. King and intermittently used the police siren to attempt to attract Mr. King's attention when the flashing red lights apparently did not alert Mr. King to the officer's presence behind him. Officer Lalone was close enough to the King vehicle to be able to read the license plate. Officer Lalone's vehicle and Mr. King's vehicle were the only two cars on Gaywood that evening and no traffic was observed by Officer Lalone on the cross streets. Mr. King turned from Gaywood Avenue onto Hawthorne Street; after Mr. King made his turn onto Hawthorne on the evening of October 18, 1981, he heard the siren and saw the lights of the police vehicle behind him. Mr. King pulled onto a parking area located in front of 925 East Hawthorne Street. The residence located at 925 East Hawthorne Street is the second house to the west of Gaywood facing Hawthorne Street. The house at 925 East Hawthorne Street was later found by Officer Lalone to be Mr. King's place of residence. None of the officers had knowledge of the ownership of the residence or the identity of plaintiff at the time

After Mr. King parked his car in front of his residence at 925 East Hawthorne Street, he proceeded to get out of his car and stood by it. Officer Lalone got out of the marked police squad car and approached Mr. King. Officer Lalone was wearing a police uniform and Mr. King knew Officer Lalone was a police officer. Officer Lalone asked Mr. King for his driver's license and the registration to his car. Mr. King refused to give Officer Lalone his driver's license, asserting he did not do anything. Mr. King's driver's license was in his wallet. Mr. King told Officer Lalone that the vehicle registration was in the vehicle, the vehicle was locked, and Officer Lalone would have to tow the car if he wanted more information.

During this conversation with Mr. King near Mr. King's vehicle, Officer Lalone smelled alcohol on Mr. King's breath. Officer Lalone asked Mr. King if he had been drinking. Mr. King said he had had something to drink, a couple of beers. At this point, Mr. King began to walk away from Officer Lalone. Officer Lalone asked Mr. King if he was aware that driving while intoxicated was a crime in the State of Indiana. Officer Lalone also told Mr. King that he had probable cause to believe Mr. King was intoxicated and was driving while intoxicated. Officer Lalone asked Mr. King to submit to a breathalyzer test. Mr. King told Officer Lalone there was nothing wrong and there would be no test.

At this juncture, plaintiff had taken five to six steps away from Officer Lalone. Officer Lalone then informed Mr. King that a police investigation was occurring and that if Mr. King continued to walk away he could be and would be arrested for fleeing from a law enforcement officer and resisting a law enforcement officer. Mr. King continued to walk away at a fast gait. Officer Lalone ran after Mr. King and grabbed him by the arm. Officer Lalone informed Mr. King he was under arrest for fleeing and resisting. Mr. King pulled away from Officer Lalone and walked quickly into his home. The door to the residence was left ajar. Officer Lalone attempted to follow Mr. King, but decided to seek assistance from other police units before doing anything further.

Officer Lalone radioed for assistance from the front area of 925 East Hawthorne, using a hand held radio. Officer Lalone then proceeded back to his police car to get his nightstick, said car still having the revolving red lights flashing. Officer Lalone had earlier radioed police dispatch that he was pursuing a car that would not stop. Officers Turflinger, Gigli, Lewis, and Haskell all heard Officer Lalone's dispatches and responded. Officer Gigli arrived at the scene first, followed immediately thereafter by Officer Turflinger. Lt. Gigli, the ranking officer and the officer in charge of the mid-shift watch,

590 F. Supp. 418

asked Officer Lalone for a summary of the situation

Officer Lalone told Lt. Gigli that he attempted to make a vehicle stop of Mr. King's vehicle; when Mr. King finally did stop his vehicle, Officer Lalone had a hard time with Mr. King; Mr. King proceeded to leave the scene of a police investigation; Mr. King was told he was under arrest; and finally, Mr. King had gone into the home located at 925 East Hawthorne Street. Lt. Gigli asked Officer Lalone if he was sure Mr. King was under arrest. Officer Lalone replied that Mr. King was under arrest for fleeing and resisting. Officer Turflinger was present during the conversation between Lt. Gigli and Officer Lalone. An incident report, filed by Officer Turflinger contemporaneously with these events, mirrors Officer Lalone's and Lt. Gigli's recollections of the conversation. Officer Gigli directed Officer Lalone to go around to the back of the home. Lt. Gigli felt that an emergency existed, based on the fact that Mr. King had fled and resisted a police officer and that the officers present were operating under a policy of pursuit. Officer Turflinger also felt the officers were following established police policies.

Lt. Gigli and Officer Turflinger went to the now closed front door of 925 East Hawthorne, knocked on the door, identified themselves as police officers, and asked Mr. King to open the door and come outside. Lt. Gigli told Mr. King if he did not open the door and come outside and talk with the officers about the events, they would have to enter the house forcibly. Plaintiff said he would not open the door. Lt. Gigli told Mr. King that if he did not open the door the officers would kick in the door. Mr. King refused to open the door and told them they would have to kick it in. Lt. Gigli ordered the door broken in; he kicked the door first. Lt. Gigli operated pursuant to standard policies of the City of Fort Wayne when police officers are pursuing a suspect. Officer Turflinger also operated pursuant to the usual practices of the Fort Wayne Police Department in using force to effect sure custody of a suspect who has fled from police officers. Both officers so testified.

Mr. King was standing near the front door in the living room area. Lt. Gigli asked Mr. King his name; Mr. King gave his name. Lt. Gigli told Mr. King he was under arrest and would have to go downtown with the officers. At this time, Officer Lalone returned to the scene from the rear of the house. Lt. Gigli did most of the talking. Plaintiff was quite upset, combative, belligerant, and unhappy about the entry of the police officers into his home. The police officers did not obtain either an arrest warrant or a search warrant prior to their forcible entry of Mr. King's home on the evening of October 18, 1981.

Lt. Gigli began conversing with the plaintiff, standing approximately three to four feet from plaintiff. Lt. Gigli smelled alcohol on plaintiff's person. Mr. King refused to leave until he could call his attorney. Lt. Gigli thought that it was the wise thing to do to allow Mr. King to attempt to contact his attorney. Lt. Gigli felt that a lawyer would assist making plaintiff more aware of his rights. Allowing an arrested suspect to contact...