Mann v. Arnos, Court of Appeals Case No. 21A-CT-1634

• Docket Nº: Court of Appeals Case No. 21A-CT-1634
• Citation: 186 N.E.3d 105
• Case Date: March 21, 2022
• Court: Court of Appeals of Indiana

186 N.E.3d 105

Seth MANN, Steven E. Hillman, Douglas Carter, and the Indiana State Police, Appellants-Defendants,
v.
Catherine J. ARNOS, as Personal Representative of the Estate of Lucius D. Washington, Deceased, and Cameron Deshonta Washington, Appellees-Plaintiffs

Court of Appeals Case No. 21A-CT-1634

Court of Appeals of Indiana.

FILED March 21, 2022
Rehearing Denied May 12, 2022

Attorneys for Appellants: Theodore E. Rokita, Attorney General, Benjamin M.L. Jones, Deputy Attorney General, Indianapolis, Indiana

Attorney for Appellees: Eric A. Frey, Frey Law Firm, Terre Haute, Indiana

Crone, Judge.

Case Summary

1] In 2012, Lucius D. Washington was shot and killed by an Indiana State Police trooper. In 2017, Catherine J. Arnos, the personal representative of Washington's estate, and Washington's minor son Cameron Deshonta Washington (collectively the Estate) filed claims for wrongful death and federal civil rights violations against Seth Mann, Steven E. Hillman, Douglas Carter, and the Indiana State Police (the ISP) (collectively the State Defendants). The State Defendants moved for summary judgment on the basis that the complaint was untimely filed and that the federal civil rights claims also failed as a matter of law. The trial court denied summary judgment. The State Defendants appeal, arguing that the trial court erred in concluding that there were genuine issues of material fact as to whether the statutory limitation period should be tolled by the doctrine of fraudulent concealment. They also assert that the trial court erred in denying summary judgment on the federal civil rights claims. We agree on both matters and therefore reverse.

[186 N.E.3d 110

Facts and Procedural History

2] The evidence most favorable to the Estate shows that on May 18, 2012, around 2:52 a.m., then-Indiana State Police Trooper Seth Mann was on patrol in uniform and driving a marked car in Fort Wayne near the intersection of Main and Cherry Streets. Mann saw three individuals striking a person on the ground. Mann did a U-turn, and when he pulled up to the group, the men started walking away. Mann exited his vehicle and said, "Hey, come here, man." Appellants’ App. Vol. 2 at 82. Mann pursued the individual, later identified as Washington, that he saw striking the victim's head. Washington picked up his pace and ran to a fence about a hundred feet away from Mann's vehicle and started to climb it. Mann attempted to put a choke hold on Washington and pulled him off the fence. Id. at 86. They fell to the ground, with Mann landing on his back and Washington landing on top of Mann, chest to chest. Id. Mann felt Washington's hand in the area of the left side of his gun belt. Id. at 87, 212, 216. Mann's gun was located on the right side of his gun belt. Id. at 212, 216. Washington did not strike or hit Mann. Id. at 88. Mann punched Washington's midsection three or four times and then pushed him off to Mann's right. Id. at 89. Washington landed seven or eight feet away. It was very dark, and all Mann could see was Washington's white shirt. Id. at 90. Mann drew his handgun and rapidly fired five shots, followed by two "controlled pairs" for a total of nine shots. Id. at 89-90. Washington died as a result of the shooting.

[3] On May 24, 2012, the ISP issued a one-page news release information form to notify the public that an investigation of Washington's fatal shooting had been opened. This form provided the investigation case number, the name of the victim, the date and location of the incident, the name of the investigating police officer, and the following summary: "Ongoing investigation into a police involved shooting. Investigation continues." Id. at 237. The form had sections for the method of operation, type of physical force used, and type of weapon used, but these were empty.

[4] Arnos was not married to Washington, but she is the mother of his child Cameron, who was then four years old. Arnos contacted the Allen County Coroner's Office but was denied any information relating to or involvement in the investigation of Washington's death because they were not married. Appellants’ App. Vol. 3 at 241-42. Arnos also contacted the Allen County Prosecutor's Office, which advised her that the matter was under investigation and that she would be contacted when the investigation was concluded. Id. No one ever contacted Arnos.

Id. at 242.

[5] While the prosecutor's office was investigating the matter, then-ISP Superintendent Paul Whitesell informed ISP Training Division Commander Major Brent Johnson that a Firearms Review Board (the Board) would be appointed to review Mann's shooting of Washington after the prosecutor's office concluded its investigation. Appellants’ App. Vol. 2 at 134. In January 2013, Douglas Carter was appointed ISP superintendent.

[6] On February 22, 2013, the Allen County prosecutor announced the results of the investigation into Washington's death:

The Allen County Prosecutor's Office has announced the results of an investigation into a police shooting that happened last spring. Lucius Washington was shot and killed by Indiana State Police Trooper Seth Mann during an altercation on May 18th, at the intersection of Main and Cherry Streets. The Prosecutor's Office says that no charges

[186 N.E.3d 111

will be filed as a result of the shooting and that there is insufficient evidence of any criminal liability on the part of Trooper Mann.

Appellants’ App. Vol. 3 at 244. Other than hearing this news in the press, Arnos had no knowledge of the circumstances of Washington's death. Id. at 242.

7] In March 2013, Superintendent Carter ordered that the Board would be convened to review Washington's shooting. Appellants’ App. Vol. 2 at 135. Pursuant to ISP Standard Operating Procedure ENF-048 (the SOP), the Board was to consist of five members appointed by the superintendent. Id. at 235. These five members were the chief council or a staff attorney, an area captain, a firearms instructor, a defensive tactics instructor, and the training division commander, who would serve as the Board's chairperson. Id. The chairperson was authorized to replace a member of the Board if a conflict of interest arose. Id. The SOP required that the chairperson issue a statement of finding to the superintendent at the conclusion of each Board hearing. Id. According to Major Johnson, the primary intent of the Board was to determine if "there is a training deficiency in the actions that the employee took" and whether there is "something there that [the Board] need[s] to identify that ... can maybe prevent a ... similar incident[.] Id. at 135-36.

[8] Superintendent Carter appointed the following people to the Board: Lieutenant Pete Wood from the legal section, Captain Danny Price, firearms instructor Sergeant Kevin Rees, defensive tactics program coordinator Sergeant Terry Treon, and Major Johnson to serve as chairperson. Id. at 135; Appellees’ App.

Vol. 2 at 12-13. In its review of Washington's shooting, the Board reviewed photos of the scene, the autopsy report, and the dashcam video, listened to the audio from Mann's body mic, and interviewed Mann two or three times. Appellees’ App. Vol. 2 at 12, 15, 17. In one meeting, Mann demonstrated how he and Washington fell to the ground and where Washington landed after Mann pushed him off. Id. at 17.

[9] On April 4, 2013, the Board submitted to Superintendent Carter a statement of finding (the April 4 Finding) signed by all five members as required by the SOP.¹ Appellants’ App. Vol. 2 at 145, 215-219. This is the only finding that was issued by the Board consisting of the five original members appointed pursuant to the SOP. Major Johnson did not meet with the Board again after the April 4 Finding was submitted. Id. at 145, 188.

[10] The April 4 Finding indicated that the Board unanimously agreed that its investigation revealed "several areas in need of attention regarding the thoroughness and conduct of the criminal investigation" of Washington's shooting, including the following:

• No quality photographs of the scene or evidence at the scene

• No details in crime scene diagram and failure to utilize any scale diagramming

• No sketch on the firearms discharge report

• Trooper Mann was allowed to view the in car camera footage prior to his initial interview

• Trooper Mann's attorney was allowed to ask questions during the initial interview

[186 N.E.3d 112

• Trooper Mann was not asked in the interview where on his belt or in what manner Mr. Washington was grabbing the gun belt

Id. at 217.² In addition, "the Board identified a series of actions and inactions which ran contrary to established training and demonstrated poor judgment and decision making on the part of Trooper Mann[,]" including:

• Trooper Mann failed to take steps to identify his location while responding to the incident, and did not know his location on arrival.

• Trooper Mann failed to notify radio that he was responding to the fight in progress in which he later stated that at the time he drove by the subject appeared to have been severely beaten and perhaps deceased.

• Trooper Mann failed to assess the initial scene, including ascertaining the location or status of the victim or the existence and location of any additional potential suspects.

• Trooper Mann demonstrated a lack of firm control through appropriate verbal commands in using "Hey, come here man" upon his initial approach to

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