Dees v. Davis

1

JOSIAH DEES, Plaintiff, v. ALVIN DAVIS, et al., Defendants.

No. 1:22-CV-163-HAB

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

March 7, 2024

OPINION AND ORDER

HOLLY A. BRADY, CHIEF JUDGE

In the summer of 2020, Fort Wayne, Indiana, like other American cities, saw protests in response to the murder of George Floyd. Plaintiff Josiah Dees (“Dees”) took part in those protests. And he did so, as shown by two guilty pleas, in violation of Indiana law. Even so, Dees has sued Fort Wayne Police Officer Alvin Davis (“Davis”) for excessive force, Fort Wayne Police Officer Fritz Rommel (“Rommel”) for false arrest, and the City of Fort Wayne (“City”) under Monell v. Dept. of Soc Servs. of City of New York, 436 U.S. 658 (1978).^[1]

Now before the Court is Defendants' motion for summary judgment. (ECF No. 23). That motion is now fully briefed (ECF Nos. 24, 51, 50, 55) and ready for ruling.^[2],^[3]

I. Factual Background

Dees was one of many individuals that took to the streets of downtown Fort Wayne in May and June 2020. On May 29 and June 14, he illegally obstructed traffic, which were misdemeanor offenses. He pleaded guilty to both.

A. June 15, 2020

On June 15, Dees was again taking part in a protest in downtown Fort Wayne. Dees observed officers chasing after Courtney Willis (“Willis”), a person Dees knew to suffer from a heart issue. Dees and two other individuals followed the officers, “quickly at first,” to ask that Willis not be tased because of the heart condition. The three slowed as they came to the location where Willis was being arrested. They were blocked from proceeding by Officer Kylen Hill (“Hill”), who had placed his police bicycle across the sidewalk. The parties more or less agree on the facts up to this point.

From here, however, the parties' versions differ significantly. Davis states that he and other officers gave loud verbal commands for Dees and his companions to back up. The three did not back up, and one tried to push forward through the bike. This made Davis feel “threatened and nervous,” particularly given the surrounding circumstances of the protests. Davis “deployed his personal OC spray,” or pepper spray, causing Dees and his companions to retreat.

Dees tells a different story. Dees states that he and his companions were told to stop, and they did so, short of the bike. This left Dees standing in front of the bike, arms at his side, opposite Hill. Dees states that he was not yelling, cursing, or otherwise threatening the officers. Dees denies touching or trying to push forward through the bike. While Dees was standing there, Davis came up and, without warning, sprayed Dees and his companions with pepper spray. Dees denies that he was told to back up until Davis was already using the pepper spray.^[4] Dees retreated in pain and remained in pain for at least the next day.

The next day, Officer Mark Gerardot (“Garardot”) was instructed to find and arrest Dees. Gerardot was advised that the arrest was due to Dees actions on May 29 and June 14. That same day, Gerardot located Dees in a vehicle driven by another individual. After an “extended process . . . involving multiple officers and vehicles,” Dees was taken into custody.

B. Probable Cause Affidavits

Following the protests, the Fort Wayne Police Department set about reviewing film of the events to determine whether criminal laws had been broken. Sgt. Mark Brooks (“Brooks”) supervised this effort. After reviewing tapes from May 29 and June 14, and after Dees was arrested, Brooks and Rommel drafted probable cause affidavits alleging that Dees violated Ind. Code § 3544.1-2-16 by obstructing traffic.

Brooks also reviewed video of the June 15 incident detailed above. From that review, Brooks drafted a probable cause affidavit and submitted it to the prosecutor. But Brooks failed to sign the affidavit, so someone, either the prosecutor or the trial court, contacted Rommel. Rommel then signed the affidavit and submitted it after Dees' arrest. The problem was that Rommel did not change the first-person narrative drafted by Brooks. So the affidavit as submitted represented, under oath, that Rommel had first-hand knowledge of things that, in fact, he did not. Instead, Brooks had the first-hand knowledge. All charges related to the June 15 incident were ultimately dismissed.

C. FWPD Use-of-Force Policy

The Fort Wayne Police Department uses a use-of-force continuum to determine what use of force is reasonable in any one circumstance. The continuum matches levels of resistance by a suspect to levels of force by an officer, with officers being permitted to use one level of force more than the level of resistance being used. The policy defines the use of pepper spray as “soft empty-hand control.” This means that pepper spray is authorized in response to “anything that the officer would encounter that . . . could be defined as resistance,” including “pre-assault cues” (such as verbal threats, a fighting stance, or balled fists) as well as verbal non-compliance and passive resistance. But if someone is not showing pre-assault cues, not threatening anyone, and not committing a crime, pepper spray is not to be used.

II. Legal Analysis

A. Summary Judgment Standard

Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The non-moving party must marshal and present the Court with evidence on which a reasonable jury could rely to find in their favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court must deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (citations omitted). A court's role in deciding a motion for summary judgment “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

Facts that are outcome determinative under the applicable law are material for summary judgment purposes. Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material fact exists cannot create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid “the temptation to decide which party's version of the facts is more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). A court is not “obliged to research and construct legal arguments for parties.” Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011).

B. Davis is not Entitled to Summary Judgment on Plaintiff's Excessive Force Claim

Qualified immunity^[5] shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). District courts have discretion to decide which of the two prongs of the qualified immunity analysis to tackle first. Person v. Callahan, 555 U.S. 223, 236 (2009).

The Court recognizes that the parties' versions of events do not line up perfectly, particularly about Plaintiff's role in the confrontation. Still, the mere existence of disputed facts is not enough to defeat summary judgment. Instead, for Plaintiff to prevail, the disputed facts must be material to the question of qualified immunity. Hernandez v. Cook Cty. Sheriff's Off., 634 F.3d 906, 916 (7th Cir. 2011). Viewed in a light most favorable to Dees, the Court finds that Davis violated a clearly established constitutional right when he deployed his pepper spray on June 15.

Two recent decisions from the Supreme Court of the United States have clarified what it means for a right to be “clearly established.” See City of Tahlequah, Oklahoma v. Bond, 595 U.S. 9 (2021); Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021). Both cases emphasize that clearly established law cannot be defined “at too high a level of generality.” Bond, 595 U.S. at 12. “It is not enough that a rule be suggested by then-existing precedent; the rule's contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. (internal quotations omitted).^[6]

Fourth Amendment cases call for particular specificity, as it is “sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Id. at 11-12. Thus, to show a violation of clearly established law, Plaintiff must identify a case that put Defendants on notice that their specific conduct was unlawful. Cortesluna, 595 U.S. at 7.

None of the cases offered by Dees meet the standard of specificity required to demonstrate a clearly established right. His first two cases, Chelios v. Heavener, 520 F.3d 678 (7th Cir. 2008), and Morphin v. City of E. Chicago 349 F.3d 989 (7th Cir. 2003), do not address the use of pepper spray. They could not, then, have told Davis that his specific conduct was unlawful. Graham v. Hildebrand, 203 Fed. App'x. 726 (7th Cir. 2006), probably does tell Davis that his conduct was unlawful, at least under Dees' facts, but it is unpublished. Unpublished circuit court decisions cannot clearly establish...