Green v. City of India

420 F.Supp.3d 816

ESTATE OF Andre Alexander GREEN, Deceased, Plaintiff,

v.CITY OF INDIANAPOLIS, INDIANA and several unknown members of the Indianapolis Metropolitan Police Department, Marc Klonne, Adam Mengerink, Vincent Stewart, Defendants.

No. 1:17-cv-02673-JPH-TAB

United States District Court, S.D. Indiana, Indianapolis Division.

Signed November 13, 2019

Jamon Rahi Hicks, Douglas Hicks Law, Los Angeles, CA, Trent A. McCain, Mccain Law Offices, P.C., Gary, IN, for Plaintiff.

Andrew R. Duncan, Edward J. Merchant, John F. Kautzman, Ruckelshaus Kautzman Blackwell Bemis, LLP, Indianapolis, IN, Andrew J. Upchurch, Grant E. Helms, OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS, Indianapolis, IN, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

James Patrick Hanlon, United States District Judge

Andre Green was fatally shot after an armed carjacking as he attempted to elude capture by Indianapolis Metropolitan Police Department ("IMPD") officers. Mr. Green's estate contends that the officers used excessive force. Defendants—the City of Indianapolis and Officers Marc Klonne, Adam Mengerink, and Vincent Stewart—have moved for summary judgment. Dkt. [36]. The officers are entitled to qualified immunity and the city is not subject to municipal liability so that motion is GRANTED .

I.Facts and Background

A. Mr. Green's encounter with IMPD officers

Because Defendants have moved for summary judgment under Rule 56(a), the Court views and recites the evidence "in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Zerante v. DeLuca , 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). The Court notes some factual disputes.

Shortly after 10:00 p.m. on August 9, 2015, IMPD officers received a dispatch about an armed carjacking with two suspects, one who fired four shots at a group of people. Dkt. 37-1; dkt. 37-2; dkt. 44-2 at 5 (Stewart Dep. at 31). That dispatch included a description of the two unidentified juvenile suspects, license plate information, and the type of car taken—a red 2013 Nissan Altima. Dkt. 37-1; dkt. 44-2 at 5 (Stewart Dep. at 31).

Andre Green, who was fifteen years old, was driving that car, with another juvenile in the passenger's seat. Dkt. 37-11 at 20–21, 41 (Klonne Dep. at 57–58, 94); dkt. 44-3 at 6 (Mengerink Dep. at 18); dkt. 44-9 at 2. Soon, about five marked police cars were tailing the Nissan as Mr. Green drove at a normal speed. Dkt. 44-2 at 9 (Stewart Dep. at 40); dkt. 44-3 at 9 (Mengerink Dep. at 25). Eventually, he turned onto a dead-end street. Dkt. 44-4 at 6 (Klonne Dep. at 43). Five officers drove after the Nissan: Adam Mengerink, Cory Heiny, Vincent Stewart, Marc Klonne, and Lorie Phillips. See dkt. 37-8 at 13 (Mengerink Dep. at 25).

The IMPD officers arranged their cars in a "tactical V formation," which is intended to stop a suspect vehicle while leaving distance between it and officers. Dkt. 37-11 at 14–15 (Klonne Dep. at 44–45); dkt. 44-3 at 10 (Mengerink Dep. at 28). This formation left no room for the red Nissan to fit through. Dkt. 44-3 at 12–13 (Mengerink Dep. at 33–34). The Nissan stopped and the passenger jumped out and fled. Dkt. 44-3 at 13–14 (Mengerink Dep. at 34–35); dkt. 37-11 at 20–21 (Klonne Dep. at 57–58). Officer Heiny chased the escaping passenger. Dkt. 37-12 at 15 (Stewart Dep. at 44).

Mr. Green then turned the car around and drove toward the police vehicles. Dkt. 37-8 at 26, 31–32 (Mengerink Dep. at 38, 43–44); dkt. 37-11 at 29 (Klonne Dep. at 66). The parties dispute what happened next. Defendants contend that Mr. Green drove into Officer Phillips's car, backed into Officer Heiny's car, then revved the Nissan's engine and accelerated quickly forward into Officer Phillips's car again. Dkt. 37-8 at 35–37 (Mengerink Dep. at 47–49); dkt. 37-11 at 22–16 (Klonne Dep. at 59–63). Mr. Green's estate argues that Mr. Green drove forward slowly into Officer Phillips's car only once. Dkt. 44 at 8– 10; dkt. 44-2 at 10–12 (Stewart Dep. at 49–51).

As Mr. Green drove toward Officer Phillips's car, three officers opened fire. They were concerned for Officer Phillips's safety because they didn't know where she was. Dkt. 37-8 at 26, 32, 35, 38–39, 41 (Mengerink Dep. at 38, 44, 47, 50–51, 53); dkt. 37-11 at 22, 28, 32, 40–42 (Klonne Dep. at 59, 65, 69, 93– 95); dkt. 37-12 at 20, 32, 34–35 (Stewart Dep. at 49, 61, 63–64). Officer Mengerink fired eight shots through the Nissan's passenger window until he couldn't see the driver any more. Dkt. 37-8 at 7, 41–44 (Mengerink Dep. at 17, 53–56). Officer Stewart fired seven shots through either the passenger window or through the front windshield. Dkt. 37-12 at 24, 26–27 (Stewart Dep. at 53, 55–56); dkt. 37-8 at 44–45 (Mengerink Dep. at 17, 56–57). Officer Klonne fired five shots through the front windshield. Dkt. 37-11 at 7–8 (Klonne Dep. at 34– 35). Broken glass from the Nissan's driver's side door was on the ground where the Nissan stopped against Officer Phillips's car. Dkt. 44-2 at 13 (Stewart Dep. at 54); dkt. 44-7.

Mr. Green opened his car door and collapsed to the pavement. Dkt. 37-12 at 37–38 (Stewart Dep. at 67–68). Officers Phillips and Stewart approached Mr. Green and found a handgun next to or underneath him. Dkt. 37-12 at 40– 43 (Stewart Dep. at 69–72); dkt. 37-13 at 7 (Phillips Dep. at 66). Mr. Green died immediately or within minutes from several gunshot wounds, one of which was to the right side of his back. See dkt. 44-9 at 4–5; dkt. 37-12 at 41 (Stewart Dep. at 70).

B. Mr. Harmening's report

The estate's expert, William Harmening, prepared a report analyzing the facts. Dkt. 44 at 9–11. Mr. Harmening has been a law enforcement officer for about 36 years and is the program coordinator for Washington University in St. Louis's forensic-psychology program. Dkt. 44-8 at 3.

Based on that report, the estate contends that the Nissan slow-rolled into Officer Phillips's car with no acceleration, causing no damage. Dkt. 44 at 9–10. The report is also the basis for the estate's argument that Mr. Green was shot in the back after the Nissan stopped and after Officer Stewart ran to its driver's side. Id. The report also says that it's "reasonable to conclude" that the final shot must have come after Mr. Green started exiting the vehicle. Dkt. 44-8 at 9.

C. Procedural history

Mr. Green's estate filed this action alleging excessive force against the individual officers and that the City of Indianapolis is liable under Monell for its officers' constitutional violation. Dkt. 1. Defendants have moved for summary judgment. Dkt. 36.

II.Applicable Law

A. Summary judgment

Summary judgment shall be granted "if 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 moving party must inform the court "of the basis for its motion" and specify evidence demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets this burden, the nonmoving party must "go beyond the pleadings" and identify "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548.

In ruling on a motion for summary judgment, the Court views the evidence "in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Zerante , 555 F.3d at 584 (citation omitted).

B. Qualified immunity

"[Q]ualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Mullenix v. Luna , ––– U.S. ––––, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). This "clearly established" standard ensures "that officials can ‘reasonably ... anticipate when their conduct may give rise to liability for damages.’ " Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (quoting Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). Qualified immunity thus "balances two important interests— the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officers from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231, 129 S.Ct. 808.

The "difficult part" of the qualified-immunity test is "identifying the level of generality at which the constitutional right must be clearly established." Volkman v. Ryker , 736 F.3d 1084, 1090 (7th Cir. 2013). A "high level of generality" is not appropriate; instead, the question is "whether the law was clear in relation to the specific facts confronting the public official when he acted." Id. "Such specificity is especially important in the Fourth Amendment context," because "it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix , 136 S. Ct. at 308 (quotation and citation omitted).

In excessive force cases, "the result depends very much on the facts of each case," so officers are entitled to qualified immunity unless precedent "squarely governs " the case at hand. Id. at 309 (quoting Brosseau v. Haugen , 543 U.S. 194, 201, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) ). While a case directly on point is not required, "existing precedent must have placed the statutory or constitutional question beyond debate." Id. at 308.

III.Analysis

A. Mr. Harmening's report

Defendants argue that Mr. Harmening's report is inadmissible because it was not timely disclosed under Federal Rule of Civil Procedure 26(a)(2), because Mr. Harmening lacks the specialized knowledge required to form his opinions under Federal Rule of Evidence 702, and because the...