Turner v. Sheriff of Marion County, IP97-2013-C-F/D.

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Citation94 F.Supp.2d 966
Docket NumberNo. IP97-2013-C-F/D.,IP97-2013-C-F/D.
PartiesOdealia TURNER and Bruce Turner, individually and as custodial parents and next friends for Jason Turner and Kathleen Turner, Plaintiffs, v. SHERIFF OF MARION COUNTY; G. Tomey, Unit 32, M.C.S.D.; K. Buckner, Unit 475, M.C.S.D.; B. McAtee, Unit 400, M.C.S.D., Defendants.
Decision Date01 March 2000
94 F.Supp.2d 966
Odealia TURNER and Bruce Turner, individually and as custodial parents and next friends for Jason Turner and Kathleen Turner, Plaintiffs,
SHERIFF OF MARION COUNTY; G. Tomey, Unit 32, M.C.S.D.; K. Buckner, Unit 475, M.C.S.D.; B. McAtee, Unit 400, M.C.S.D., Defendants.
No. IP97-2013-C-F/D.
United States District Court, S.D. Indiana, Indianapolis Division.
March 1, 2000.

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John M Schwartz, Attorney at Law, Indianapolis, IN, for plaintiffs.

A Scott Chinn, Corp Counsel For the City of Indpls, Caren L Pollack, Huffer & Weathers Pc, Thomas Satrom, Office of Corporation Counsel, James S Stephenson, Stephenson Daly Morow & Kurnik, Indianapolis, IN, for defendants.

to the Supreme Court of the State of Indiana.

FOSTER, United States Magistrate Judge.

Pursuant to Rule 15(O) of the Rules of Appellate Procedure of the State of Indiana, we respectfully request the Supreme Court of the State of Indiana to accept these certified questions concerning issues of state law. While we should not be hesitant to employ this useful opportunity to clarify state law afforded by the Supreme Court, Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1402 n. 2 (7th Cir.1992) (Ripple, J., concurring in part and dissenting in part), we recognize the prudence of certifying only those questions that might control the outcome of a case, see Shirley v. Russell, 69 F.3d 839, 844 (7th Cir.1995) (interpreting 7th Cir. R. 52), and we are sensitive to the principle of judicial restraint in addressing constitutional issues, especially novel constitutional issues in a non-specific factual context, Citizens National Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241-42 (Ind.1996). To these ends, we have been careful to assure that the answers to the questions we present are likely to be determinative of claims, defenses, or remedies in this Cause and we have endeavored to give as complete a factual background as the current status of this Cause allows. As usual, we encourage the Supreme Court to reformulate the questions if they conclude that the wrong ones have been asked, see, Todd v. Societe BIC, S.A., 9 F.3d 1216, 1222 (7th Cir.1993), and to illuminate any errors or omissions in our discussion of Indiana law.

Pursuant to 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73(a), and upon the consents

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of the parties, defendants' Consents (January 22 and February 23, 1998, doc. nos. 13 and 14); plaintiffs' Consent (February 23, 1998, doc. no. 14), the special designation of the Court, S.D.Ind.LR 72.1(h), and the reference of the assigned district judge, Order of Reference (March 4, 1998, doc. no. 16), this Cause is before the undersigned magistrate judge to conduct any and all proceedings and to order the entry of judgment.

I. Factual background.

The following facts were taken from the parties' statements of material facts submitted on the defendants' motion for summary judgment. Unless otherwise noted, these facts were undisputed.

On February 24, 1997, defendant Kerry Buckner, a detective employed by the Sheriff of Marion County, Indiana in his Narcotics Unit, obtained a warrant from a Marion County Superior Court judge to search the residence at 5201 West Chelsea Road in Indianapolis. Detective Buckner's supporting probable cause affidavit was based on the relations of another deputy sheriff who had observed and seized evidence of suspected controlled substances violations while inside 5201 West Chelsea Road on February 15, 1997, nine days earlier.1 The warrant was executed later

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that evening. The warrant described the house as a two-story single family dwelling with a white wood covering, address numbers on the porch pillar at the north section of the residence, and a dirt-covered driveway running to the east of the residence.2 The only defendant who had seen 5201 West Chelsea Road before the warrant was executed was Detective Buckner. He was new to the Narcotics Unit and was still in training with a Field Training Officer ("F.T.O.") on the day of the search. This was also his first search. On that day, Detective Buckner's regular F.T.O. was on vacation and a new one was assigned to him. During daylight hours on that day, Detective Buckner went to 5201 West Chelsea Road with his substitute F.T.O. to obtain a physical description of the residence for the warrant.

Defendant McAtee, at this time a Sergeant in the Marion County Sheriff's Narcotics Unit, was Mr. Buckner's supervisor. She assigned his substitute F.T.O. and sent both of them to obtain the physical description and to obtain the warrant from the judge. The F.T.O. is not a defendant in this action but she did participate in the execution of the warrant.

The plaintiffs' residence is located at 5129 West Chelsea Road (again, the warrant residence was 5201 West Chelsea Road). Numbers indicating the plaintiffs' address were clearly marked on the mail box and were marked on the gable above the front porch.3 Both the warrant residence and the plaintiffs' residence have porches on the north ends of the houses, dirt-covered or gravel-covered driveways on their east sides, detached garages at the end of the driveways, white siding, and yellow brick half-walls on the porches. Unlike the warrant residence, the plaintiffs' residence is a single-story house; it

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has two brick porch pillars4; and the porch opening is on the east, on the side of the porch, while the warrant residence's porch opens to the north, on the front of the porch and house. The warrant residence has a single roof elevation and is clearly a two-story building considerably higher than the plaintiffs' house. The plaintiffs' house has two roof elevations, which are observable from the front of the house.5 The plaintiffs' house is separated from the warrant house by three houses and perhaps a vacant lot.

Detective Buckner led a briefing at the Sheriff's offices for the deputies who were to participate in the execution of the warrant. No information on the content of this briefing was submitted. The team drove to the scene in several vehicles with Detective Buckner in possession of the warrant. At that time, defendant Tomey was a Captain and the Commander of the Sheriff's Special Investigations Unit which included the Narcotics Unit. Neither Sergeant McAtee nor Captain Tomey (we will refer to the ranks the defendants had at that time) rode to the scene with Detective Buckner and, contrary to policy, Detective Buckner did not ride to the scene with his F.T.O. The team entered West Chelsea Road from the east, off of Morris Street, and parked their vehicles to the east of the plaintiffs' driveway. Detective Buckner identified the plaintiffs' house as the warrant residence to Sergeant McAtee and Captain Tomey.

Because two male subjects were visible inside the front of the house (through the glass in the front door and a window), the officers executing the warrant wanted to enter quickly, with minimal exposure. The officers entered through the front door of the plaintiffs' house by turning the door knob on the unlocked front door. The officers were in the process of securing the premises when Detective Buckner realized that the plaintiffs were not the people named in the warrant.6 Detective Buckner notified Sergeant McAtee and Captain Tomey of the error and Sergeant McAtee and Captain Tomey ordered all officers out of the house.

The defendants did not damage the plaintiffs' real or personal property. Only one of the plaintiffs was handcuffed. Deputies pointed firearms at the plaintiffs, collected and detained them together in the front room, and had some physical contact with plaintiffs. None of the plaintiffs sustained personal physical injury at the hands of the defendants.

II. Claims, defenses, and rulings.

Count 1 of the First Amended Complaint asserted federal constitutional tort claims under 42 U.S.C. § 1983 against all the defendants. Count 2 asserted Indiana common law tort claims against the Sheriff of Marion County and Indiana constitutional tort and statutory claims against all the defendants.7

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A. Federal claims.

In their complaint, the plaintiffs claimed that defendants Buckner, McAtee, and Tomey violated their Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures when the defendants entered and searched the plaintiffs' residence without probable cause, a warrant, or exigent circumstances; failed to knock and announce before entering; and used excessive force against the plaintiffs. The plaintiffs assert that the individual defendants are liable for their affirmative actions and for their failures to intervene to prevent the violations by other defendants and other deputies. The plaintiffs also claimed that the Sheriff of Marion County is liable for these violations based on respondeat superior liability and the Sheriff's policy, practice, or custom of failing to properly train and supervise his deputies for the execution of search warrants and his practice of encouraging his deputies to not intervene to prevent violations of constitutional rights. The plaintiffs allege that the defendants' conduct was motivated by evil motive or involved reckless or callous indifference to the plaintiffs' rights. They pray for compensatory and punitive damages.

Defendants McAtee and Tomey asserted that they enjoyed qualified immunity from the plaintiffs' § 1983 claims for the mistaken entry into the plaintiffs' residence because they reasonably followed the lead of detective Buckner when he identified the plaintiffs' house as the warrant residence. We also assumed that Detective Buckner was asserting qualified immunity for the wrongful entry. All the defendants asserted qualified immunity from the plaintiffs' excessive force claims arguing that the force allegedly used was not excessive as a matter of law and that a reasonable officer in the circumstances would not...

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