UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

DAN FRANKLIN, VIVIAN FRANKLIN, )

and DESHAWN FRANKLIN, )

)

Plaintiffs, )

)

v. ) CAUSE NO.: 3:13-CV-207-TLS

)

CIVIL CITY OF SOUTH BEND, PETE )

BUTTIGIEG, Mayor, CHARLES HURLEY, )

Interim Chief of Police of the South Bend Police )

Department, ERIC MENTZ, Patrolman, )

PFC MICHAEL STUK, and OFFICER AARON )

KNEPPER, )

)

Defendants. )

OPINION AND ORDER

The Plaintiffs, Dan Franklin, Vivian Franklin, and DeShawn Franklin, have sued the

Defendants for events that occurred on July 7, 2012. Dan and Vivian Franklin are the parents of

DeShawn Franklin. Around 2:30 AM, the Defendant police officers entered the Plaintiffs’

residence looking for the Franklins’ older son, Dan Jones, who they believed had just committed

a battery on his girlfriend before fleeing to his mother’s house. Jones was not inside the house.

But the police, mistakenly believing that a sleeping DeShawn was actually Jones, seized him.

Only after officers subdued the resisting DeShawn through the use of physical force did they

realize that he was not the person they were looking for. They detained him further before

deciding that he should not be charged with resisting arrest or battery.

The Plaintiffs filed a twelve-count Complaint at Law [ECF No. 1] in the St. Joseph

Circuit Court, raising claims for violations of the First, Fourth, Fifth, and Fourteenth

Amendments through 42 U.S.C. § 1983, along with state claims for trespass, battery, false arrest,

false imprisonment, negligence, negligent supervision, and assault. In addition to suing Officers
Eric Mentz, Michael Stuk, and Aaron Knepper, the Plaintiffs raised claims against Defendant

Civil City of South Bend (South Bend); Defendant Pete Buttigieg, Mayor of South Bend, and;

Defendant Charles Hurley, Interim Chief of Police of the South Bend Police Department. The

Complaint was removed to this Court.

Pursuant to an Opinion and Order [ECF No. 19] issued on September 19, 2013, the

Plaintiff’s fourth cause of action for invasion of privacy, and the fifth cause of action for failure

to protect are no longer pending against South Bend, Buttigieg, and Hurley. Defendants Mentz,

Stuk, and Knepper have moved for summary judgment [ECF No. 36] on all claims brought

against them.

STATEMENT OF FACTS

The following facts are derived solely from the case reports written by officers Eric

Mentz, Michael Stuk, and Aaron Knepper. The only other evidence offered, a document entitled

“Internal Affairs Investigation Report,” has not been authenticated. See Fed. R. Evid. 901(a)

(“the proponent must produce evidence sufficient to support a finding that the item is what the

proponent claims it is”). Because the proponent of the document, the Plaintiffs, do not provide an

affidavit from the author of the report or custodian of the document concerning its authenticity, it

is not admissible. Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006); Scott

v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003). In any event, the contents of the report

cannot be used for the purpose the Plaintiffs attempt to present it, which is to offer legal

conclusions about the officers’ actions.

On July 7, 2012, at 2:23 AM, Officer Mentz responded to a domestic violence complaint.

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The victim, Crystal Escobedo, told Officer Mentz that her boyfriend, Dan Jones, caused what

Officer Mentz reported were “ghastly bite marks.” (ECF No. 36-2 at 2.) Escobedo told Officer

Mentz that Jones had already left and was going to his mother’s house at 910 Bowman Street.

Officer Mentz relayed this information to Officer Knepper, who intended to look for Jones while

Officer Mentz continued to talk with Escobedo. Officer Mentz told Officer Knepper that Jones

was to be arrested on felony assault charges.

Officer Knepper saw a man jog across a street toward the 1000 block of Bowman and

contacted Officer Mentz by radio. Officer Knepper confirmed with Officer Mentz that Jones was

a black male, about 5'5", 140 pounds, and had braided hair. Officer Knepper turned his car

around to pursue the man he believed to be Jones, but lost sight of him. Another officer, Officer

Stuk, arrived to set up a perimeter. A fourth officer, who had a K-9, began tracking in the alley

where Officer Knepper last saw the man fitting Jones’s description. The K-9 led officers to the

back of a house about two blocks away. The address was 910 Bowman Street.

Officer Knepper asked dispatch to call the occupants of 910 Bowman Street and direct

them to step out of the house. Dispatch advised that the female who answered the phone said that

she lived on Fellow Street, that she was not making any sense, and that she was changing her

story. Officers Mentz and Stuk knocked on the front door of 910 Bowman Street. Vivian

Franklin answered the door. Officer Stuk had her step outside and asked her who else was in the

house. She responded that her husband and her son were inside. Officer Stuk looked over to

Officer Mentz, shrugged his shoulders, and nodded his head. Officer Mentz took this to mean

that they should proceed inside the house.

Officers Mentz and Knepper entered the house. Officer Stuk stayed outside with Vivian

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just until the K-9 officer could stay with her instead. All three officers entered a bedroom and

saw a black male laying face down on the bed. Officer Knepper saw that he had braids, but that

his clothes were not the same clothes Jones had been wearing earlier. The officers suspected that

it was Jones pretending to be asleep, and began giving him verbal commands.

When verbal commands failed to elicit any response, Officer Mentz attempted to

handcuff the male, who the officers only later discovered was not Jones and was, instead, his

younger brother DeShawn. Because DeShawn had been sleeping, Officer Mentz’s actions caused

DeShawn to jump up and become combative. He lunged at Officer Mentz, grabbing his vest and

gun belt. To subdue DeShawn, Officer Knepper used his taser, but only one probe struck him.

Officer Mentz then hit DeShawn three times in the face until he released his grip on Officer

Mentz’s vest and belt. Officers Mentz and Stuk forced DeShawn onto the bed as Officer

Knepper attempted to put his left arm behind his back to detain him. DeShawn continued to

struggle and Officer Knepper struck him in the shoulder blade area three times with his fist.

Officer Knepper was then able to gain control of DeShawn’s arm and place it behind his back

while Officer Mentz handcuffed him. DeShawn was escorted outside and secured in Officer

Struk’s police vehicle.

By then, Officer Knepper knew that DeShawn was not Jones, however, the officers

detained DeShawn for battery of an officer and resisting arrest. After reviewing the events,

DeShawn was released and treated by paramedics for removal of the taser probe.

ANALYSIS

This Court will only grant summary judgment if all of the admissible submissions

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indicate that there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Fed.

R. Civ. P. 56(a). The 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). A district court should deny a motion for summary judgment only

when the non-moving 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) (citing United States v.

5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); Swearnigen–El v. Cook Cnty. Sheriff’s

Dep’t, 602 F.3d 852, 859 (7th Cir. 2010)). Material facts are those that are outcome

determinative under the applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997).

Additionally, a court is not “obliged to research and construct legal arguments for parties,

especially when they are represented by counsel.” Nelson v. Napolitano, 657 F.3d 586, 590 (7th

Cir. 2011). 

A. Constitutional Claims

When public officers violate the constitutional rights of citizens, 42 U.S.C. § 1983

provides the vehicle for a legal claim. But the Defendants have asserted that they are entitled to

qualified immunity, which is a doctrine that protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

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818 (1982) (citations omitted). Qualified immunity is intended to strike a balance between

“protect[ing] a government official’s ability to function without the threat of distraction and

liability” and “afford[ing] members of the public the ability to vindicate constitutional violations

by government officials who abuse their offices.” Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir.

2014) (internal quotation marks and citations omitted). Evaluating a qualified immunity defense

requires two inquires: (1) whether the facts, taken in the light most favorable to the plaintiffs,

make out a violation of a constitutional right, and (2) whether that constitutional right was

clearly established at the time of the alleged violation. Williams v. City of Chi., 733 F.3d 749,

758 (7th Cir. 2013) (citation omitted). “If either inquiry is answered in the negative, the

defendant official is entitled to summary judgment.” Gibbs, 755 F.3d at 537. The Court is not

required to address the prongs in order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

1. Entry Into the Plaintiffs’ Home and Seizure of DeShawn

It is undisputed that the Defendant officers entered the Plaintiffs’ home and seized

DeShawn, and did so without a warrant or consent. “At the core of the privacy protected by the

Fourth Amendment is the right to be let alone in one’s home.” Sutterfield v. City of Milwaukee,

751 F.3d 542, 550 (7th Cir. 2014). The Fourth Amendment thus “‘prohibits the police from

making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine

arrest,’ even for a felony, and even with probable cause.” Hawkins v. Mitchell, 756 F.3d 983,

992 (7th Cir. 2014) (ellipses omitted) (quoting Payton v. New York, 445 U.S. 573, 576 (1980));

cf. Steagald v. United States, 451 U.S. 204, 214–15 (1981) (holding that police may not lawfully

enter the home of a third party to search for a person named in an arrest warrant without first

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obtaining a search warrant). The protections of the Fourth Amendment extend to warrantless

arrest inside a person’s home, which is to say that police officers may not execute a warrantless

arrest in a home unless they have both probable cause and exigent circumstances. See, e.g.,

Payton, 445 U.S. at 586 (“It is a ‘basic principle of Fourth Amendment law’ that searches and

seizures inside a home without a warrant are presumptively unreasonable.”); Welsh v. Wisconsin,

466 U.S. 740, 749 (1984) (“[W]arrantless . . . arrests in the home are prohibited by the Fourth

Amendment, absent probable cause and exigent circumstances.”). 

“Nevertheless, because the ultimate touchstone of the Fourth Amendment is

‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Brigham City, Utah

v. Stuart, 547 U.S. 398, 403 (2006). “Before agents of the government may invade the sanctity of

the home, the burden is on the government to demonstrate exigent circumstances that overcome

the presumption of unreasonableness that attaches to all warrantless home entries.” Welsh, 466

U.S. at 750. “[A] warrantless entry into a dwelling may be lawful when there is a pressing need

for the police to enter but no time for them to secure a warrant.” Sutterfield, 751 F.3d at 557

(citing Michigan v. Tyler, 436 U.S. 499, 509 (1978), and Fitzgerald v. Santoro, 707 F.3d 725,

730 (7th Cir. 2013)). The underlying pragmatic concern is “whether the exceedingly strong

privacy interest in one’s residence is outweighed by the risk that delay will engender injury,

destruction of evidence, or escape.” United States v. Acevedo, 627 F.2d 68, 70 (7th Cir. 1980).

The first question the Court asks then, is whether the Defendants had an objectively

reasonably belief that there was an “urgent need to cross the threshold,” of the Plaintiffs’ home

Acevedo, 627 F.3d at 70, so that they could find the person they believed was inside and arrest

him for recently committing a battery on his girlfriend at a different location. The Defendants

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claim that they were so justified because they were in “hot pursuit” of a fleeing suspect. See

United States v. Santana, 427 U.S. 38, 42–43 (1976). They assert that “the interest in finding a

person who committed an act of violence and is evading police intervention outweighs any

inconvenience the [Plaintiffs’] claim in their constitutional right.” (Mem. in Support 8, ECF No.

36-1.)

The Supreme Court first upheld a warrantless entry and search in light the “exigencies of

the situation” brought about by circumstances involving pursuit in Warden v. Hayden, 387 U.S.

294 (1967). The Court held:

The police were informed that an armed robbery had taken place, and that the

suspect had entered [a certain house] less than five minutes before they reached it.

They acted reasonably when they entered the house and began to search for a man

of the description they had been given and for weapons which he had used in the

robbery or might use against them. The Fourth Amendment does not require

police officers to delay in the course of an investigation if to do so would gravely

endanger their lives or the lives of others. Speed here was essential, and only a

thorough search of the house for persons and weapons could have insured that

Hayden was the only man present and that the police had control of all weapons

which could be used against them or to effect an escape.

Warden, 387 U.S. at 298–99. This Court is using the term pursuit loosely in connection with

Warden, as it is aware that the majority opinion did not actually use the term “hot pursuit.”

Those words appear only in the concurring and dissenting opinions. In a later decision, the

Supreme Court noted in a footnote that Warden was actually based on the “exigencies of the

situation,” and did not “even involve a ‘hot pursuit’ in the sense that the term would normally be

understood,” as there was no element of a chase. Santana, 427 U.S. at 42 n.3.

In United States v. Santana, the case cited by the Defendants in support of their

warrantless entry, an undercover officer arranged to buy heroin from an individual who obtained

the drugs from inside Santana’s house. Thus, immediately after the crime had been committed,

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police officers had probable cause to arrest Santana, but no warrant. They saw her standing

outside her open doorway as they approached the house. When they shouted “police,” Santana

retreated into her home. The police followed her inside and arrested her. After concluding that

Santana was in a “public place” when they first encountered her, so that the police were clearly

justified in attempting to arrest her without a warrant, the Court explained:

The only remaining question is whether her act of retreating into her house could

thwart an otherwise proper arrest. We hold that it could not. . . . This case,

involving a true “hot pursuit,” is clearly governed by Warden; the need to act

quickly here is even greater than in that case while the intrusion is much less. The

District Court was correct in concluding that “hot pursuit” means some sort of a

chase, but it need not be an extended hue and cry “in and about (the) public

streets.” The fact that the pursuit here ended almost as soon as it began did not

render it any the less a “hot pursuit” sufficient to justify the warrantless entry into

Santana’s house. Once Santana saw the police, there was a realistic expectation

that any delay would result in destruction of evidence.

Santana, 427 U.S. at 42–43 (footnote cited above omitted). 

In Welsh v. Wisconsin, decided eight years after Santana, the Supreme Court found that

the government had not met the heavy burden of showing that an urgent need justified a

warrantless home arrest. A witness had observed a car swerve off the road and come to a stop in

an open field. After the witness blocked the car from returning to the road, the driver emerged

from the vehicle and asked for a ride home. When the witness suggested they wait for assistance,

the driver walked away from the scene. 466 U.S. at 742. The police arrived a few minutes later

and questioned the witness. They also located the vehicle registration of the abandoned car and

learned that it was registered to Welsh, who lived a short distance from the scene. The police

proceeded to Welsh’s home where they gained entry after a family member answered the door.

Id. at 743. The officers found Welsh lying in bed and arrested him for driving or operating a

motor vehicle while under the influence of an intoxicant. The government attempted to “justify

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the arrest by relying on the hot-pursuit doctrine, on the threat to public safety, and on the need to

preserve evidence of the petitioner’s blood-alcohol level.” Id. at 753. In disposing of the hot

pursuit argument, the Court stated that it was “unconvincing because there was no immediate or

continuous pursuit of the petitioner from the scene of a crime.” Id.

The Court has reviewed the designated evidence and applied the facts most favorable to

the Plaintiffs to the pertinent case law. Having done so, the Court finds that genuine issues of

material fact preclude the Court from finding as a matter of law that it was reasonable for the

police officers, in light of the circumstances they faced, to believe that there was a compelling

need to act and no time to obtain a warrant. 

The Defendants urge the Court to consider the nature of the offense—describing it as a

violent attack. The record reveals that Officer Mentz was dispatched to a residence in reference

“to a domestic.” (Mentz Case Supp’l Report, ECF No. 36-2 at 2.) According to Officer Mentz,

the victim, “had suffered some ghastly bite marks from her boyfriend Dan Jones.” (Id.) Although

the nature of the offense may be a factor in the exigency analysis, it is not instructive as to

whether the officers were in hot pursuit of Jones for committing that offense. See, e.g., Stanton v.

Sims, 134 S. Ct. 3, 6 (2013) (noting that whether a crime was a felony or a misdemeanor was

separate inquiry from whether police were in hot pursuit). The officers responded to a domestic

disturbance call to learn that Jones had already left the scene. The officers attempted to locate

Jones based on the victim’s statement that he was going to his mother’s residence. One of the

officers saw Jones jogging in the direction of the house, but lost sight of him and did not regain a

visual of Jones at any point before entering the house. A K-9 tracked Jones’s scent to the back

door of his mother’s house (a place he presumably visited at some time but not necessarily that

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night). These circumstances may describe a pursuit of a suspect, but they do not describe one

that was “immediate and continuous . . . from the scene of the crime.” See Welsh, 466 U.S. at

753. And as the police did not first attempt to arrest Jones while he was in a public place, this

case is unlike Santana’s continuation of a legitimate doorway arrest. 

Absent a true “hot pursuit,” there is little exigency to justify the officers’ actions.

Although no categorical rule was announced in Welsh, the Court did state that, in situations

where only a minor offense has been committed, “application of the exigent-circumstances

exception in the context of a home entry should rarely be sanctioned.” Welsh, 466 U.S. at 753.

What can be gleaned from the record is that Jones bit his girlfriend. The Defendants attempt to

bolster the justification for their actions by arguing in their Memorandum in Support of summary

judgment that they “remained uncertain if Jones was armed.” (Mem. 6, ECF No. 36-1; see also

id. at 8 (stating that the officers “were uncertain whether Jones was in the house or if he was

armed”).) But there is no indication that Jones’s offense involved a firearm or other dangerous

weapon, that he had used such a weapon in the past, or that he had access to such a weapon, and

the Court cannot assume that the officers had an objective reason to be concerned. See Fed. R.

Fed. P. 56(c) (stating that a party must support an assertion of fact by “citing to particular parts

of materials in the record”). Additionally, the Defendants had no reason to believe that Jones

could destroy any evidence (having used his teeth on the victim), which was a legitimate concern

in Santana when the suspect retreated inside her house from a public place after completing a

drug deal. Nor was there reason to believe that Jones posed a danger to his family inside the

house or to the police officers outside the house. The officers have not presented any evidence to

suggest that they were concerned that Jones was planning an escape or a return to his girlfriend,

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or that he would be able to escape the house undetected with their perimeter in place. Cf.

Warden, 381 U.S. at 298–99 (police justified because delay would have “gravely endanger[ed]

their lives or the lives of others,” or that “only a thorough search of the house for persons and

weapons could have insured that [the robber] was the only man present and that the police had

control of all weapons which could be used against them or to effect an escape”).

The only other reason, in addition to the nature of the offense, the Defendants have

offered thus far for bypassing the constitutional requirement of a warrant is that Jones was

attempting to evade arrest. This fact, however, hardly seems unique to criminal suspects and,

thus, is not an appropriate justification for the warrantless entry. The Supreme Court, explaining

that search warrants are not a mere formality, but serve a “high function,” has stated:

Absent some grave emergency, the Fourth Amendment has interposed a

magistrate between the citizen and the police. This was done not to shield

criminals nor to make the home a safe haven for illegal activities. It was done so

that an objective mind might weigh the need to invade that privacy in order to

enforce the law. The right of privacy was deemed too precious to entrust to the

discretion of those whose job is the detection of crime and the arrest of criminals.

Power is a heady thing; and history shows that the police acting on their own

cannot be trusted. And so the Constitution requires a magistrate to pass on the

desires of the police before they violate the privacy of the home. We cannot be

true to that constitutional requirement and excuse the absence of a search warrant

without a showing by those who seek exemption from the constitutional mandate

that the exigencies of the situation made that course imperative.

McDonald v. United States, 335 U.S. 451, 455–56 (1948). In Mincey v. Arizona, 437 U.S. 385

(1978), the Court warned that “the mere fact that law enforcement may be made more efficient

can never by itself justify disregard of the Fourth Amendment.” 437 U.S. at 393 (“[T]he Fourth

Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person’s

home and property may not be totally sacrificed in the name of maximum simplicity in

enforcement of the criminal law.”).

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The record developed thus far reveals genuine issues surrounding whether the

warrantless entry was a matter of exigency, or was simply the more efficient course of action. A

reasonable jury, considering the facts most favorable to the Plaintiffs, could conclude from the

current record that there were no exigencies that rendered it unreasonable for the Defendants to

obtain a warrant, and that their failure to do so violated the Plaintiffs’ Fourth Amendment rights.

Accordingly, the first inquiry of the qualified immunity analysis does not favor the Defendants.

Next, the Court considers whether the Fourth Amendment right at issue was clearly established

at the time of the incident.

“To be ‘clearly established,’ the right in question must be ‘sufficiently clear that a

reasonable official would understand that what he is doing violates that right. This is not to say

that an official action is protected by qualified immunity unless the very action in question has

previously been held unlawful; but it is to say that in the light of pre-existing law the

unlawfulness must be apparent.’” Miller v. Jones, 444 F.3d 929, 934 (7th Cir. 2006) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Courts “do not require a case directly on

point, but existing precedent must have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). 

No reasonable officer could claim to be unaware of the general rule, well established by

the Supreme Court, that, absent consent or exigency, a warrantless search of the home is

presumptively unconstitutional. See Payton, 445 U.S. at 586–88; see also Steagald, 451 U.S. at

214–15 (holding that police cannot personally determine when there is sufficient justification for

searching the home of a third party for the subject of an arrest warrant, in the absence of exigent

circumstances, any more than they can justify warrantless entry to search for objects). Turning to

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the specific context of this case, the Court finds that the law was sufficiently clear to make it

apparent to the officers that the situation lacked the exigency necessary to justify a warrantless

entry. 

In 1984, the Supreme Court warned that police “bear a heavy burden when attempting to

demonstrate an urgent need that might justify” warrantless entry. Welsh, 466 U.S. at 749–50

(explaining that exigent circumstances that may excuse a warrantless entry of a home were “few

in number and carefully delineated”). In Welsh, the Supreme Court unequivocally rejected the

contention that the arresting officers were in hot pursuit of the suspect where the officers arrived

at the scene after the suspect had left, and then proceeded to arrest him at his home. Id. at 753.

Arguably, this case presents some differences—Officer Knepper saw Jones jogging across the

street at one point during his canvas of the neighborhood and a K-9 tracked his scent to the

house. But there is no precedent to suggest that the eventual and interrupted pursuit could be

considered immediate and continuous based on these differences. For example, there is no case

to support a belief that the K-9 track is the same as a continuous pursuit by officers. Even if the

record were not so sparse on details about the K-9’s actions—such as whether it picked up a

scent immediately, how long the dog tracked the scent, how old the scent could have been for the

dog to still track it, whether the dog went straight to the residence, or whether it stopped only at

the residence—the pursuit could not be called continuous under any existing case law.

Additionally, this case presents an added layer that warranted caution. The home the

officers entered was not that of the suspect, but that of a third party. None of the facts presented

to the Court suggest that the Defendants had reason to believe that the home on Bower Street

was Jones’s residence. In 1981, the Supreme Court recognized that the availability of telephonic

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search warrants minimized the burden of obtaining a search warrant to enter a third person’s

house to seize a fugitive. Steagald, 451 U.S. at 222; see also Fed. R. Crim. P. 41(d)(3) (allowing

warrant to be obtained based on information “communicated by telephone or other reliable

electronic means”). 

The law was clearly established before the officers acted. This was not a “close case,” for

which qualified immunity is intended so as to protect “the officer’s snap judgment in a legally

hazy area.” White v. Stanley, 745 F.3d 237, 241 (7th Cir. 2014). Rather, based on the

circumstances currently before the Court, the Defendants were faced with a scenario that

required them to identify a true exigency before invading the privacy of the Plaintiffs inside their

home. A jury will be allowed to consider the Plaintiffs’ claim that the Defendants violated their

Fourth Amendment rights when they entered their home and seized DeShawn.

2. Excessive Force

The right to make an arrest or investigatory stop necessarily carries with it the right to

use some degree of physical coercion or threat thereof to effect it. Graham v. Connor, 490 U.S.

386, 396 (1989). In assessing whether an officer’s use of force violates the Fourth Amendment,

the question is whether the officer’s “actions are objectively reasonable in light of the

information known at the time of an arrest.” Miller v. Gonzalez, 761 F.3d 822, 828 (7th Cir.

2014). This question turns on such factors as “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Courts

also consider “whether the citizen was under arrest or suspected of committing a crime, was

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armed, or was interfering or attempting to interfere with the officer’s execution of his or her

duties.” Jacobs v. City of Chi., 215 F.3d 758, 773 (7th Cir. 2000). An officer’s use of force is

unreasonable if in light of all those circumstances at the time of the seizure, the officer used

greater force than was reasonably necessary to effectuate the seizure. Graham, 490 U.S. at 397.

The Defendants argue that they used no greater force than was “necessary to return safety

to them and others in the vicinity to make the eventual arrest of DeShawn.” (Defs.’ Mem. 11.)

The Plaintiffs have not disputed that DeShawn became combative and grabbed Officer Mentz’s

utility belt and refused to give Officer Knepper his arm. Additionally, nothing in the record

provides a reason to questions the Defendants’ accounts. It was 2:00 in the morning when

DeShawn was awakened in his bed by the officers attempting to force his hands behind his back.

A common sense reaction would include “fighting back” against these unknown assailants.

Rather than dispute these specific facts, the Plaintiffs assert that the officers “knew that 17 year

old DeShawn Franklin was asleep and posed no threat when they struck and tased him thereby

using excessive force.” (Pls.’ Mem. 8, ECF No. 37 (citing Payne v. Pauley, 337 F.3d 767, 780

(7th Cir. 2003), for the proposition that “officers do no have the right to shove, push, or

otherwise assault innocent citizens without any provocation whatsoever”).) Nothing in the

designated evidence supports the assertion that the Defendants knew DeShawn was asleep.

Rather, all of the designated evidence indicates that the officers believed the person in the bed

was Jones, not DeShawn, and that he was only pretending to be asleep when he ignored the

officers’ commands. Accordingly, there are no genuine disputes regarding DeShawn’s active

resistance to the Defendants’ attempts to seize him, and the immediate threat to the safety of the

officers that his reaction posed. Under these circumstances, officers would not have had reason

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to believe that their conduct in restoring order and controlling DeShawn was unreasonable. 

The Plaintiffs also appear to be relying on pre-seizure conduct to support the excessive

force claim. Weaved into the excessive force argument, in fact dominating it, is an analysis about

lack of exigencies, which rendered the entry into the home unlawful and led to the seizure of the

wrong person—a minor who was asleep in his bedroom and who had committed no crimes. This

is essentially an argument that the Defendants are liable for excessive force because they

unreasonably created the encounter that led to the use of force against DeShawn. “Pre-seizure

police conduct cannot serve as a basis for liability under the Fourth Amendment; [courts] limit

[their] analysis to force used when a seizure occurs.” Marion v. City of Corydon, Ind., 559 F.3d

700, 705 (7th Cir. 2009). The Seventh Circuit stated recently that its “caselaw is far from clear as

to the relevance of pre-seizure conduct, or even as to a determination as to what conduct falls

within the designation ‘pre-seizure,’ although the majority of cases hold that it may not form the

basis for a Fourth Amendment claim.” Williams v. Ind. State Police Dep’t, — F.3d —, No.

14-2523, 2015 WL 4772639, at *10 (7th Cir. Aug. 13, 2015). Given this lack of clarity, the court

granted qualified immunity to an officer who used deadly force, because he would not have been

“on notice that his conduct leading up to the encounter could itself be the basis for Fourth

Amendment liability.” Id.

Because caselaw in this Circuit does not clearly establish that an officer may be liable

under the Fourth Amendment solely for his pre-seizure conduct that led to the encounter, and the

Plaintiffs do not dispute that DeShawn actively resisted the officers, the Defendants are entitled

to qualified immunity on the excessive force claim. There is, likewise, no basis to proceed to a

jury on the Plaintiffs’ claim that the Defendants are liable for failing to intervene in these

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circumstances. 

However, even if DeShawn does not have an independent cause of action for excessive

force, the amount of force used against him may be pertinent to the damages he incurred for

other constitutional violations. The Seventh Circuit has said that “when an illegal arrest sets off a

chain of indignities inflicted on the hapless victim, including offensive physical touchings that

would be privileged if the arrest were lawful, she is entitled to obtain damages for these

indignities whether or not they are independent violations of the Constitution.” Herzog v. Vill. of

Winnetka, Ill., 309 F.3d 1041, 1044 (7th Cir. 2002). This is because “they are foreseeable

consequences of the illegal arrest, and the ordinary rules of tort causation apply to constitutional

tort suits.” Id.

3. Formal Arrest of DeShawn For Resisting Arrest and Battery

The Complaint alleges that the officers arrested DeShawn in violation of his right to be

secure in his person from unreasonable seizure under the Fourth Amendment. In the Defendants’

Motion for Summary Judgment, they note that the initial seizure was the result of mistakenly

believing that DeShawn was Jones. After they realized DeShawn’s true identity, he was then

“briefly” arrested for battery on an officer and resisting arrest. (Mem. in Support 6, ECF No. 36-

1.)

The Fourth Amendment guarantees the right to be free from arrest without probable

cause. D.Z. v. Buell, — F.3d —, No. 14-1490, 2015 WL 4652778, at *4 (7th Cir. Aug. 6, 2015)

(citing Baker v. McCollan, 443 U.S. 137 (1979)). “Probable cause to arrest is an absolute defense

to any claim against police officers under § 1983 for wrongful arrest.” Wagner v. Washington

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Cnty., 493 F.3d 833, 836 (7th Cir. 2007). A police officer has probable cause if, at the time of the

arrest, the facts and circumstances within the officer’s knowledge are sufficient to warrant a

prudent person in believing that the suspect has committed an offense. Id. Where probable cause

is lacking with respect to an arrest, an officer is nevertheless entitled to qualified immunity if his

belief that he had probable cause was an objectively reasonable belief. D.Z., 2015 WL 4652778,

at *4 (citing Humphrey v. Staszak, 148 F.3d 719, 726 (7th Cir. 1998)). This is known as

“‘arguable’ probable cause.” Id.

According to the Defendants, DeShawn attacked them, which is battery upon an officer,

and he appeared to be resisting arrest. (Defs.’ Mem. 9, ECF No. 36-1.) In Indiana, resisting law

enforcement is a Class A misdemeanor if a person “knowingly or intentionally . . . forcibly

resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer

while the officer is lawfully engaged in the execution of the officer’s duties.” Ind. Code § 35-

44.1-3-1. At the time of the events in question, the rule in Indiana was that a private citizen could

not “use force in resisting a peaceful arrest by an individual who he knows, or has reason to

know, is a police officer performing his duties regardless of whether the arrest in question is

lawful or unlawful.” Casselman v. State, 472 N.E. 2d 1310, 1315 (Ind. 1985); see also Shoultz v.

State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000). However, it was also true that when an officer

unlawfully enters a residence to make an arrest, he is not “lawfully engaged in the execution of

his duties as a law enforcement officer.” Adkisson v. State, 728 N.E.2d 175, 178 (Ind. Ct. App.

2000). Additionally, nothing in the facts suggests that DeShawn knew, or should have known,

that the men in his room in the middle of the night were police officers. Accordingly, the

Defendant did not have arguable probable cause to arrest DeShawn for resisting arrest.

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Likewise, it is unclear whether, under the facts and circumstances known to the

Defendants, they would have reasonable grounds to believe that DeShawn had committed the

criminal offense of battery or whether, instead, he was justified by statute in using force to

protect himself against persons who were using force against him. “A person is justified in using

reasonable force against any other person to protect the person or a third person from what the

person reasonably believes to be the imminent use of unlawful force.” Ind. Code § 35-41-3-2(c);

cf. Cupello v. State, 27 N.E.3d 1122, 1132 (Ind. Ct. App. 2015) (applying a different subsection

of the use of force statute to overturn a conviction for battery on a law enforcement officer where

the officer had unlawfully entered the suspect’s apartment and resisted the suspect’s attempts to

close the door on the officer, thus providing a reasonable belief that force was necessary to

terminate the unlawful entry into his apartment). When the Defendants arrested DeShawn, they

were already aware that he was not the person they were looking for and had simply been asleep

in his bed when they tried to seize him. There is no indication in the record that the Defendants

identified themselves as police officers when DeShawn began resisting.1

 Thus, the Defendants

had no reason to believe that DeShawn was not simply using reasonable force to protect himself

against unknown individuals who were attacking him in the middle of the night.

Because the Defendants have not shown that the undisputed facts support arguable

probable cause to arrest DeShawn, his Fourth Amendment false arrest claim should be decided

by a jury.

1 Even if they had identified themselves as police officers, the same statute provided, in July

2012, that “[a] person is justified in using reasonable force against a public servant if the person

reasonably believes the force is necessary to: (1) protect the person or a third person from what the person

reasonably believes to be the imminent use of unlawful force.” Ind. Code § 35-41-3-2(i)(1).

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4. Invasion of Privacy

The Plaintiffs allege in their fourth cause of action that the Defendants violated their First

Amendment right to privacy when they informed the media that the officers had entered the

home because a violent crime had been committed and the suspect was inside the house. The

Plaintiffs appear to be alleging that some or all of the Defendants personally went to local media.

However, nowhere in the Complaint do they identify which Defendant took this action. Granting

a Motion to Dismiss, the Court has already dismissed the claims in the Plaintiff’s fourth cause of

action as against Defendants South Bend, Buttigieg, and Hurley. 

The Defendant officers have not moved for summary judgment on the First Amendment

claim. Normally, this would mean that the Plaintiffs were not yet required to defend the claim.

However, given the lack of any factual allegations suggesting that the Defendant officers made

any statements to the media, the claim fails to plausibly suggest the possibility of relief against

them. Additionally, this Court previously directed the Plaintiffs to file “a status of the case

setting forth the discrete claims they intend to pursue to trial, including which Defendants are

being sued for each particular claim.” (1-27-15 Opinion & Order 7, ECF No. 34.) The Plaintiffs’

Status of the Case Report [ECF No. 35] does not acknowledge any First Amendment claim. 

Based on the foregoing, the Court finds that the Complaint does not state a First

Amendment violation against the officers, and that the Plaintiffs have not pursued a First

Amendment claim against the officers or given them any reason to believe one was being

pursued. Accordingly, the fourth cause of action is dismissed.

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5. Trespass, Battery, False Arrest, False Imprisonment, Negligence, Negligent

Supervision, and Assault

The Plaintiffs Complaint includes claims for trespass, battery, false arrest, false

imprisonment, negligence, negligent supervision, and assault, yet their Memorandum in

Opposition to the Officers’ Motion for Summary Judgment mentions only trespass and

battery—in the following heading: “Qualified Immunity/excessive force/ITCA

immunity/Trespass/Battery.” The text under the heading does not include any citation to state

law, or any analysis of state law. The Plaintiffs did not include any state claims in the Status of

the Case Report filed on February 27, 2015. 

For their part, the Defendants assert immunity under subsection (8) of the Indiana Tort

Claims Act. See Ind. Code § 34-13-3-3(8). According to this subsection, “[a] governmental

entity or an employee acting within the scope of the employee’s employment is not liable if a

loss results from” the “enforcement of . . . a law.” Id. However, immunity does not apply if the

“act of enforcement constitutes false arrest or false imprisonment.” Id.. The Plaintiffs have not

attempted to explain why the Defendants’ actions should not fall within the ITCA’s immunity

provision. Even though the heading in their Memorandum indicates that the text will address

ITCA immunity, the Plaintiffs do not actually include any discussion of law enforcement

immunity under Indiana Code § 34–13–3–3(8), relying instead on a previous discussion

regarding qualified immunity in the context of § 1983 claims. 

The law enforcement immunity section of the ITCA does not immunize the Defendants

from the Plaintiffs’ claims, under Indiana law, for false arrest or false imprisonment. See Hogue

v. City of Fort Wayne, 599 F. Supp. 2d 1009 (N.D. Ind. 2009); see also Thomas v. Brinker, No.

1:09-CV-01516-TWP, 2011 WL 1157622, at *6 (S.D. Ind. Mar. 28, 2011) (stating that “even

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where an employee is acting within the scope of his or her employment, a plaintiff may still

bring state law claims of false arrest, false imprisonment, or excessive force”). Additionally, the

Defendants do not seek immunity for battery, arguing instead that their actions were brought on

by DeShawn’s “provocation,” as defined by Indiana Code. See Ind. Code § 35-42-2-3 (making it

a Class C infraction to “recklessly, knowingly, or intentionally engage[ ] in conduct that is likely

to provoke a reasonable person to commit battery”). 

Based on the foregoing, the Court finds that no immunity applies to the Plaintiffs’ claims

for false arrest, false imprisonment, and battery. Moreover, there are triable issues of fact

surrounding these claims that must be decided by a jury.

B. Plaintiffs’ Motion to Strike Paragraph

The Plaintiffs have filed a Motion [ECF No. 39] to strike a sentence contained within the

Defendants’ Reply brief. The sentence at issue is that the Defendants were “informed that the

woman inside the house, presumably Jones’ mother, was uncooperative and constantly changing

her story.” (Motion 1.) The Plaintiffs argue that this statement is “wildly inaccurate” and

“scandalous,” and should therefore be stricken pursuant to Federal Rule of Civil Procedure 12(f).

They assert that there is no evidence that police contacted Vivian Franklin before they knocked

on her door, or that she was uncooperative or changing her story.

The Court denies the Plaintiffs’ Motion. First, Rule 12(f) applies to pleadings, and a brief

filed in connection with a motion for summary judgment is not a pleading. See Fed. R. Civ. P.

7(a) (listing the pleadings that are allowed). Second, the Court does not read the Defendants’

statement to mean, or be intended to mean, that dispatch actually talked to Vivian Jones. The

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implication of the statement, particularly in light of the entire record, is that dispatch told the

Defendants that a female occupant of the house was contacted and was being uncooperative. The

fact that dispatch called the wrong number does not change the facts the dispatch officer relayed

to the Defendants, or the inferences they drew from this information. The Court assures the

Plaintiffs that it did not, in ruling on the Defendants’ Motion for Summary Judgment, consider it

an established fact that dispatch spoke to Vivian Franklin before the Defendants knocked on the

Plaintiffs’ front door.

CONCLUSION

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART the

Motion for Summary Judgment [ECF No. 36] filed by Defendants Eric Mentz, Michael Stuk,

and Aaron Knepper, and DENIES the Plaintiffs’ Motion to Strike Paragraph [ECF No. 39].

Further, the Plaintiff’s claim for Invasion of Privacy is DISMISSED. Still pending are the

Plaintiffs’ claims for unlawful entry and seizure under the Fourth Amendment and claims for

false arrest, false imprisonment, and battery under state law.

SO ORDERED on September 3, 2015.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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