Hostetler v. City of Southport

SHARA B. HOSTETLER, Plaintiff, v. CITY OF SOUTHPORT, THOMAS L. VAUGHN,and JASON SWANSON, Defendants.

Case No. 1:17-cv-00708-TWP-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

February 25, 2019

ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants the City of Southport ("Southport"), Thomas L. Vaughn, and Jason Swanson (collectively, "Defendants") (Filing No. 39). Plaintiff Shara Hostetler ("Shara") filed this action alleging violation of her Fourth Amendment rights under 42 U.S.C. § 1983 ("§ 1983") following an illegal search of her home, and state law claims. Defendants contend they are entitled to judgment as a matter of law. For the following reasons, the Court grants Defendants' Motion for Summary Judgment.

I. BACKGROUND

The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Shara as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This case and its companion case, Marc Hostetler v. City of Southport, 1:17-cv-001564-TWP-TAB, both arise out of events leading up to and including April 25, 2015, which culminated in a search of Shara's home, and the arrest of her friend and co-parent, Marc Hostetler ("Marc"). (Filing No. 41-6.)¹ The facts and applicable law in both matters are so similar that this Court adopts, for the most part, the reasoning and analysis of the companion decision.

Shara and Marc lived together at 7820 Partridge Road, Southport, Indiana (the "Partridge Road residence") for approximately a year before Marc moved out in January 2015, and they remained good friends and co-parents of the son they share. After moving out in January 2015, Marc frequently spent time at Shara's home on Partridge Road, visiting and babysitting his son, as well as Shara's four other children. Marc would sometimes spend the night and "maybe a third of the time" spend the day at the Partridge Road residence, while co-parenting. Marc was not on Shara's lease, and he owned his own condominium on Punto Alto Circle located in Indianapolis, Indiana (the "Punto Alto Circle condo").

In 2015, Shara was employed as the secretary for the Warden at Marion County Jail II in Indianapolis. At the time of the search, she was seeking the Republican nomination for Clerk-Treasurer of Southport, Indiana. Throughout her campaign, she received the support and assistance of Marc, and he frequently visited Shara's home on Partridge Road in Southport to do campaign work, babysit and to visit his son

Defendant Thomas L. Vaughn ("Chief Vaughn") was the chief of police in Southport. His wife, Jane Vaughn, was employed as Southport's Deputy Clerk-Treasurer under Clerk-Treasurer Dianna Bossingham, who was the incumbent and Shara's opponent in the 2015 primary election. (Filing No. 49-3 at 37.)

In early 2015, at a Southport City Council meeting, Chief Vaughn received a tip from Ashley Davis ("Davis"), that Marc was "impersonating a police officer again and that he was carrying a firearm." (Filing No. 41-1 at 5.) Davis was Dianna Bossingham's campaign managerand a contributor to Dianna Bossingham's political committee. (Filing No. 49-5 at 5, 10.) Davis told Chief Vaughn that she wished to remain anonymous because she was "scared" of Marc. (Filing No. 41-1 at 6.) Davis did not specify when or where or how Marc committed these acts—and Vaughn did not ask her for details. Chief Vaughn responded that he would give the information to a detective and let him check into her complaint. Id. at 5. Chief Vaughn assigned the investigation of Davis's allegations to Jason Swanson ("Swanson"), an unpaid reserve detective on Southport's police department. (Filing No. 41-1 at 5, 10.)

Unbeknownst to Swanson, Chief Vaughn's wife, Jane Vaughn, was Bossingham's Deputy Clerk and actively campaigned for Bossingham. Facebook pictures, show Chief Vaughn and Bossingham together at campaign events. On primary election day, Shara observed Chief Vaughn and Davis talking together at a polling place as Davis campaigned for Bossingham. Shara believes Chief Vaughn wished to arrest Marc to damage Shara's reputation with voters and ensure that she would lose the primary election.

A. The Investigation

Swanson had been a volunteer detective for the Southport Police Department since March 2015 (Filing No. 41-2 at 4-6). Within a week of being hired, he received a telephone call from Chief Vaughn relaying the complaint from Davis that Marc was carrying a firearm and impersonating an officer. Id. at 6. Chief Vaughn did not inform Swanson that Marc had previously worked at the Southport Police Department. (Filing No. 41-1 at 6.)

Swanson telephoned Davis, and Davis reported that she had seen Marc wearing a firearm, that he kept it in his vehicle and she believed he was representing himself as a police officer. Id. Swanson began an investigation, which included checking Marc's social media pages. On Marc'sFacebook page, he discovered a photograph of Marc wearing a Southport Police Department polo shirt on which the badge is partially visible. Id. at 23.

Marc had previously worked as a deputy for the Marion County Sheriff from 1999-2002, a Perry Township Constable from 2002 until January 2005, and as a consultant for the Southport Police Department. (Filing No. 41-3 at 8.) In January 2005, Marc was arrested for criminal trespass and stalking a former girlfriend. He was ultimately convicted on the felony stalking charge; however, the D felony was automatically reduced to a misdemeanor upon his successful completion of probation. (Filing No. 49-3 at 33.) In 2009, Marc pled guilty to D felony battery. (Filing No. 41-5, Filing No. 41-3 at 11.) After his arrest and conviction on the D felony battery Marc worked various jobs as a security guard. He also worked part-time and unpaid for the Southport Police Department as a consultant doing background checks on potential hires and serving as Chaplain. (Filing No. 49-3 at 47-49.) The Southport Police Department issued him a uniform and a badge identifying him as a certified chaplain. Id at 49.

Early in his investigation, Swanson learned that Marc used two addresses: a property records search through the assessor's office revealed the condominium he owned on Punto Alto Circle in Indianapolis, and Shara's home at 7820 Partridge Road in Southport, which Marc had used as a business address and where he was registered to vote. (Filing No. 41-2 at 7, 15-16.) Swanson sat in his car and surveilled both locations several days a week for approximately a month. Id. at 7. He noticed that Marc went to and from the Partridge Road residence almost every day but almost never visited the Punto Alto Circle condo. Id. Swanson never observed Marc wearing an officer's uniform or doing anything to suggest he was impersonating an officer, although he did observe Marc wearing tactical gear on his way to his job as a security guard. Id. at 8-9. On at least three occasions during his surveillance Swanson observed Marc carrying ahandgun on his left hip. Id. at 13. Marc denies that he ever carried or possessed a firearm of any type during this period, and the only thing he would carry was his iPhone cell phone. (Filing No. 49-3 at 75.) Marc concedes that during the time he was surveilled, he did not have a handgun permit to carry a firearm and his felony battery conviction precluded him from possessing a firearm. Id. at 73-74.

Swanson did not arrest Marc when he believed he saw him carrying a gun; instead he continued his surveillance to see whether Marc would impersonate an officer. Id. at 8-9. When Marc did not impersonate a police officer, Swanson sought a warrant to search the Partridge Road residence.

B. The Search

On April 24, 2015, Swanson presented a Search Warrant Affidavit for the Partridge Road residence to a magistrate judge. The Affidavit presents the following:

On or about March 16^th, 2015, This [sic] affiant received information from an individual known to police and wishes to remain anonymous, that Marc D. Hostetler, DOB [ ], had been representing himself to be a police officer and was in possession of at least one firearm. As recently as February of 2015, the individual observed Hostetler to be in possession of a handgun and observed him to be wearing a shirt that had a Southport Police Department badge emblem on the left breast.

This affiant is familiar with Hostetler because he is a former employee of the Marion County Sheriff's Department and the Southport Police Department. This affiant is aware that Mr. Hostetler was convicted of Stalking as a D felony on February 18, 2005, under Indiana Cause Number 49G17-0412-FD-223584. On October 24, 2007, the court granted Mr. Hostetler's Petition for Alternate Misdemeanor Sentencing and the judgment of conviction was entered as a Class A Misdemeanor. Mr. Hostetler was convicted of Battery as a D Felony on January 8, 2009, under Cause Number 49G16-0711-FD-243299. On April 17, 2015, the court took Mr. Hostetler's Petition for Alternate Misdemeanor Sentencing under advisement. The felony battery conviction precludes Mr. Hostetler from possessing a firearm. In addition, a review of Indiana State Police records by your Affiant indicated Hostetler does not have a handgun permit.

On March 16^th - April 18^th, 2015, this affiant conducted surveillance on the residence of Mr. Hostetler, as reported by the known complainant, to be located at7820 Partridge Road, Southport, IN 46227. This affiant observed Mr. Hostetler exit the residence several times during this period with a handgun on his left waistband, specifically on March 20, 2015, April 2, 2015, April 3, 2015, and April 10, 2015. On two of those dates, this affiant observed Mr. Hostetler take the weapon from his

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