Larsen v. Fort Wayne Police Dep't, Case No. 1:09–CV–55.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtROGER B. COSBEY
Citation825 F.Supp.2d 965
PartiesWilliam R. LARSEN, Plaintiff, v. FORT WAYNE POLICE DEPARTMENT, et al., Defendants.
Docket NumberCase No. 1:09–CV–55.
Decision Date11 June 2010

825 F.Supp.2d 965

William R. LARSEN, Plaintiff,
v.
FORT WAYNE POLICE DEPARTMENT, et al., Defendants.

Case No. 1:09–CV–55.

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

June 11, 2010.


[825 F.Supp.2d 967]

Samuel L. Bolinger, Samuel L. Bolinger & Associates, Fort Wayne, IN, for Plaintiff.

Kelly J. Pautler, Robert T. Keen, Jr., Carson Boxberger LLP, Matthew J. Elliott, Beckman Lawson LLP, Fort Wayne, IN, for Defendants.

OPINION AND ORDER
ROGER B. COSBEY, United States Magistrate Judge.
I. INTRODUCTION

What started as a typical family outing to Northrop High School on February 3, 2007, to attend a show choir competition culminated in Plaintiff William Larsen's arrest for disorderly conduct and resisting arrest, and subsequently, this surprisingly-complex federal lawsuit. After the charges were later dismissed, Larsen filed this 42 U.S.C. § 1983 action against Defendants Fort Wayne Police Officer Juan Barrientes, Fort Wayne Police Officer Allen Glock (together, the “Officers”), and Kevin Damerell, Northrop's Assistant Principal,

[825 F.Supp.2d 968]

advancing a host of claims, including excessive force, false imprisonment, malicious prosecution, and claims under the First Amendment.1

Now before the Court is a motion for summary judgment filed by the Assistant Principal Damerell concerning all of Larsen's claims (Docket # 23), and a motion for partial summary judgment filed by the Officers (Docket # 25) against all claims other than Larsen's ¶ 1983 excessive force claim against them. 2 For the following reasons, Assistant Principal Damerell's motion will be GRANTED, and the Officers' motion will be GRANTED IN PART and DENIED IN PART.

II. FACTUAL BACKGROUND 3

On February 3, 2007, a show choir competition was held at Northrop High School, a public school located in Fort Wayne, Indiana, in which numerous high school show choirs, including Carroll High School, participated. (Damerell Dep. 9–10; 4 Larsen Dep. 16–17, 21–23.) The competition, which was open to the public, was organized essentially as a fundraiser by Northrop's show choir “boosters”, a volunteer group composed of parents (the “Boosters”). (Damerell Dep. 7, 9–10.) Spectators were required to pay an eight dollar admission fee at a table staffed by the Boosters at the school's entrance. (Damerell Dep. 9–10; Glock Dep. 10, 51; 5 Larsen Dep. 25.)

As a fundraiser, the Boosters contracted with Huntington Media Services to professionally videotape the competition, which could then be purchased. (Damerell Dep. 15, 33–34; Damerell Aff. ¶ 3; Larsen Dep. 113; Karl Hans Dep. 9–10; Nancy Hans Dep 10–11; Bumpass Dep 7.) As a result, no flash photography or videography was permitted during the competition.6

[825 F.Supp.2d 969]

(Damerell Dep. 12, 33; Karl Hans Dep. 9–10; Nancy Hans Dep 10–11; Bumpass Dep 7.) Tom Moupin, Northrop's show choir director, was the designated signatory on the contract. (Pl.'s Designation of Evidence. Ex. S.) Signs notifying spectators of this rule were posted at the admission table and on an easel at the end of the table; Larsen contends, however, that these signs were difficult to read. (Glock Dep. 8; Larsen Dep. 32–34; Baughan Dep. 9.) No signs about the rule were posted outside the school or on any exterior entrance door. (Larsen Dep. 32–34; Baughan Dep. 9, 15.)

Larsen, who had earlier dropped off his wife, Lenore, and his daughter at the school, arrived at approximately 10:15 a.m. to watch his daughter perform with the Carroll High School show choir. (Larsen Dep. 21–23). He entered the school and approached the admission table, carrying a tripod and video camera case.7 (Larsen Dep. 25.) He purchased an admission ticket from a volunteer positioned at the table and then walked toward the gymnasium doors. (Larsen Dep. 29–30). He then heard a volunteer shout at him from about forty feet away: “You can't take flash photographs or videotape in there!” (Larsen Dep. 31.) Larsen asked why there were no signs stating that rule. (Larsen Dep. 32–33.) The volunteer then pointed to the sign on the easel near the admission table. (Larsen Dep. 32–33.) Larsen remarked that whoever had put the signs there had done a poor job of placing them where people could see them. (Larsen Dep 32–34.)

The volunteer then offered to refund Larsen's admission price, but Larsen claimed that he was experiencing almost like a “bait and switch”. (Larsen Dep. 34.) He told the volunteer that since Northrop was public property he could videotape and photograph whatever he wanted. (Larsen Dep. 34.) The volunteer explained to Larsen that the event had hired a professional videographer and that he was free to buy a copy of the video; Larsen responded, “Well, we will see about that,” and proceeded to walk toward the gymnasium, still carrying his video equipment. (Larsen Dep. 34, 37.)

Fort Wayne Police Officer Allen Glock was off duty, working a part-time uniform security detail for FWCS at the Northrop event. (Glock Dep. 5.) He was in full police uniform and was posted outside the Northrop gymnasium doors, where he could observe the admission table. (Glock Dep. 10.) Officer Glock observed the exchange between Larsen and the volunteer, and noted that Larsen gave a rather agitated or aggravated response to the volunteer. (Glock Dep. 5, 10–13.) As a result, he followed Larsen and watched him enter the double doors leading to the gymnasium. (Glock Dep. 13.)

At this point, Officer Glock, concerned about Larsen's demeanor, approached Larsen and informed him that no flash photography or videotaping was allowed. 8 (Larsen Dep. 39; Glock Dep. 16–18.) Larsen responded that Northrop was public property and therefore he could photograph

[825 F.Supp.2d 970]

or videotape anything he wished. (Glock Dep. 18–19; Larsen Dep. 40–41.) Officer Glock then told Larsen that if he caught him videotaping, he would be removed from the building. (Larsen Dep. 40–41; Glock Dep. 16, 18.) Larsen then questioned Glock's authority and identity, asking if he was law enforcement and if he was being paid by the school (Glock Dep 16–17); Glock, however, refused to identify himself (Larsen Dep. 40). Larsen told Officer Glock that if he was being paid by the school, he had no authority as a police officer. (Glock Dep. 17.) He also questioned whether FWCS had obtained consent to videotape his daughter and sell the recordings. (Larsen Dep. 40–41.) Finally, Officer Glock told Larsen that he had to follow the rules regarding no videography, and if not, he would be arrested. (Larsen Dep. 40–41.) Larsen responded: “Well, you do what you think you have to do.” (Larsen Dep. 41.)

Larsen then left Officer Glock and entered the gym. (Larsen Dep 41.) As he was doing so, another volunteer stated: “I would like to remind everybody, there is no flash photography or videotaping allowed.” (Larsen Dep. 41; Hartzler Dep. 13–14.) Larsen shot back: “The school doesn't have the right to videotape my daughter and sell her image to the public.” (Larsen Dep. 41; Hartzler Dep. 13–14.) After entering the gym, Larsen found his wife and sat down with her to watch the competition, placing his video equipment under the seat. (Glock Dep. 20; Larsen Dep. 41–42; Lenore Dep. 20.)

Once Larsen took his seat, Officer Glock saw a fellow Fort Wayne police officer, Juan Barrientes, in the crowd. (Glock Dep. 22; Barrientes Dep. 11. 9) Officer Barrientes was off duty and was at the competition to watch his daughter perform with the Garrett High School show choir. (Barrientes Dep. 6–7.) Though not in uniform, Officer Barrientes was wearing his police badge clip and his standard duty-issued weapon. (Barrientes Dep. 7, 12.) Officer Glock informed Officer Barrientes about Larsen and warned him that Larsen might be a problem. (Barrientes Dep. 13–14; Glock Dep. 22–23.) He asked Officer Barrientes to “keep an eye on him” and assist Officer Glock if necessary. (Barrientes Dep. 13–14; Glock Dep. 22–23.)

Officer Glock then approached Kevin Damerell, Northrop's Assistant Principal and administrative support to the Boosters' event, and discussed the situation with him. (Glock Dep. 24–25; Pl.'s Designation of Evidence Ex. X.) Damerell had already been told by Northrop's choir director that some parents had reported to him that an adult had entered the school with a video camera and had responded rudely and argumentatively when told of the videotape restrictions. (Damerell Dep. 32.) At this point, Officer Glock asserts that Damerell told him that if the situation deteriorated further or if Larsen attempted to use his video camera, he should be removed from the building. 10 (Glock Dep. 24–25.)

Once seated, Larsen discussed the “no videography” rule with his wife Lenore, inquiring whether she had signed any consents for their daughter to be videotaped. (Larsen Dep. 45–47; Lenore Dep. 34–35.) Lenore then got up and asked a FWCS official whether non-flash photography was permitted; the official responded in the affirmative. (Larsen Dep. 46; Lenore Dep. 20, 35.) Seeing that he still had a

[825 F.Supp.2d 971]

few minutes before the next performance, Larsen told his wife: “I am going to see if I can't find that official and talk to him about the consent and releases. They obviously don't know what they are doing here.” (Larsen Dep. 47.) At that point, after having been seated for approximately three minutes, Larsen got back up and approached Damerell. (Glock Dep. 24; Larsen Dep. 45–47.)

Once he confirmed that Damerell was indeed a school official, Larsen asked: “Maybe you can answer a question for me?” (Larsen Dep. 48.) Larsen then questioned Damerell about the no videography rule and whether the school had obtained releases from the performers, stating that he had not given such consent on his daughter's behalf. (Larsen Dep. 48–49.) Damerell stated that he did not know whether consents were obtained, and Larsen responded: “Well, it is my experience, in years of photography, that if you wish to videotape and sell a person's image, you need permission of anybody...

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17 practice notes
  • Burns v. Town of Palm Beach, No. 18-14515
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2021
    ...while acknowledging that "communicative photography is well-protected by the First Amendment"); Larsen v. Fort Wayne Police Dep't, 825 F. Supp. 2d 965, 979 (N.D. Ind. 2010) (holding that the "First Amendment is not implicated because a person uses a camera"); State v. Chepilko, 405 N.J.Supe......
  • Marshall v. Town of Merrillville, CAUSE NO.: 2:14–CV–50–TLS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 11, 2017
    ...719, 726 (7th Cir. 1998) ). This is known as " ‘arguable’ probable cause." Id.228 F.Supp.3d 866In Larsen v. Fort Wayne Police Dept. , 825 F.Supp.2d 965 (N.D. Ind. 2010), the plaintiff attended his daughter's choir show at her high school. The school had recently enacted a policy prohibiting......
  • Ocasio v. Turner, Cause No. 2:13–CV–303–PRC.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 14, 2014
    ...678, 686 (7th Cir.2008) (recognizing that probable cause must exist “at the time of the arrest”); Larsen v. Fort Wayne Police Dep't, 825 F.Supp.2d 965, 974 (N.D.Ind.2010) (same).Ocasio could not have been convicted of resisting law enforcement but for the facts in the Information. Ocasio pl......
  • Ocasio v. Turner, Cause No. 2:13–CV–303–PRC.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 14, 2014
    ...678, 686 (7th Cir.2008) (recognizing that probable cause must exist “at the time of the arrest”); Larsen v. Fort Wayne Police Dep't, 825 F.Supp.2d 965, 974 (N.D.Ind.2010) (same). Ocasio could not have been convicted of resisting law enforcement but for the facts in the Information. Ocasio p......
  • Request a trial to view additional results
17 cases
  • Burns v. Town of Palm Beach, No. 18-14515
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2021
    ...while acknowledging that "communicative photography is well-protected by the First Amendment"); Larsen v. Fort Wayne Police Dep't, 825 F. Supp. 2d 965, 979 (N.D. Ind. 2010) (holding that the "First Amendment is not implicated because a person uses a camera"); State v. Chepilko, 405 N.J.Supe......
  • Marshall v. Town of Merrillville, CAUSE NO.: 2:14–CV–50–TLS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 11, 2017
    ...719, 726 (7th Cir. 1998) ). This is known as " ‘arguable’ probable cause." Id.228 F.Supp.3d 866In Larsen v. Fort Wayne Police Dept. , 825 F.Supp.2d 965 (N.D. Ind. 2010), the plaintiff attended his daughter's choir show at her high school. The school had recently enacted a policy prohibiting......
  • Ocasio v. Turner, Cause No. 2:13–CV–303–PRC.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 14, 2014
    ...678, 686 (7th Cir.2008) (recognizing that probable cause must exist “at the time of the arrest”); Larsen v. Fort Wayne Police Dep't, 825 F.Supp.2d 965, 974 (N.D.Ind.2010) (same).Ocasio could not have been convicted of resisting law enforcement but for the facts in the Information. Ocasio pl......
  • Ocasio v. Turner, Cause No. 2:13–CV–303–PRC.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • May 14, 2014
    ...678, 686 (7th Cir.2008) (recognizing that probable cause must exist “at the time of the arrest”); Larsen v. Fort Wayne Police Dep't, 825 F.Supp.2d 965, 974 (N.D.Ind.2010) (same). Ocasio could not have been convicted of resisting law enforcement but for the facts in the Information. Ocasio p......
  • Request a trial to view additional results

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