UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

Chelsea Kelly, as Personal Representative of the ) 

Estate of Delano Smith, ) 

 ) 

 Plaintiff, ) 

 ) 

VS. ) CASE NO.: 3:12-cv-00059 

 ) 

City of Elkhart, Officer Bruce Anglemyer, ) 

Corporal Norm Friend, Sergeant James ) 

Buchmann, Officer Michael Price, and ) 

Taser International, Inc., ) 

 ) 

 Defendants. ) 

 

DEFENDANTS’ ANSWER TO COMPLAINT, AFFIRMATIVE DEFENSES AND JURY 

DEMAND

 Defendants, City of Elkhart, Officer Bruce Anglemyer, Corporal Norm Friend, Sergeant 

James Buchmann and Officer Michael Price, for their answer to Plaintiff’s Complaint state as 

follows: 

1. This is an action at law, in part, to redress the deprivation under color of statute, 

ordinance, regulation, custom or usage of a right, privilege and immunity secured to Plaintiff by 

the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 

1983 and 1988, and to seek compensation under the laws of the State of Indiana. 

 RESPONSE: Defendants deny the allegations contained in paragraph one (1) of 

Plaintiff’s Complaint. 

2. Delano Smith was at all material times a resident of Elkhart County, Indiana and a 

citizen of the United States of America. 

RESPONSE: Defendants are without sufficient information to admit or deny the 

allegations contained in paragraph two (2) of Plaintiff’s Complaint. 
3. At material times, Defendants, Bruce Anglemyer, Norm Friend, James Buchmann 

and Michael Price, were officers employed by the City of Elkhart’s Police Department. 

RESPONSE: Defendants admit the allegations contained in paragraph three (3) of 

Plaintiff’s Complaint. 

4. Defendants, Bruce Anglemyer, Norm Friend, James Buchmann and Michael 

Price, acted at material times under color of their official capacity as a law enforcement officers 

and as persons for purposes of §1983 and their acts complained of were performed under color of 

state law. 

RESPONSE: Defendants admit that all times alleged Defendants acted under color of 

their official capacity as law enforcement officers and as persons for the purposes of 1983 and 

that any actions taken were performed under color of state law. However, Defendants deny all 

allegations of violations of state or federal law by the Defendants, and deny all other allegations 

contained in paragraph four (4) of Plaintiff’s Complaint. 

5. The City of Elkhart is incorporated in the State of Indiana and provided 

Defendants, Bruce Anglemyer, Norm Friend, James Buchmann and Michael Price, with official 

badges and identification cards which designated and described them as officers of the Elkhart 

Police Department. 

RESPONSE: Defendants admit the allegations contained in paragraph five (5) of 

Plaintiff’s Complaint.2 

6. Defendants, Bruce Anglemyer, Norm Friend, James Buchmann and Michael 

Price, acted separately and in concert, under color and pretense of law, and engaged in the illegal 

conduct mentioned herein, recklessly and with callous disregard for plaintiff’s rights, causing 

death to Delano Smith and depriving him of the rights, privileges and immunities secured to him 
3

by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and by the 

laws of the United States. 

RESPONSE: Defendants deny the allegations contained in paragraph six (6) of 

Plaintiff’s Complaint. 

COUNT I

7. On or about January 6, 2010, Defendants, Bruce Anglemyer, Norm Friend, James 

Buchmann and Michael Price, were working as uniformed officers and responded to a call at 

Delano Smith’s apartment, located at 123 West Hively Avenue, Apartment B 13, Elkhart, 

Indiana. 

RESPONSE: Defendants admit the allegations contained in paragraph seven (7) of 

Plaintiff’s Complaint. 

8. On or about January 6, 2010, Defendants, Bruce Anglemyer, Norm Friend, James 

Buchmann and Michael Price, entered Mr. Smith’s apartment and observed him dousing his head 

with water at the kitchen sink. The officers also observed a wound to Mr. Smith’s arm and 

broken glass in the apartment. 

RESPONSE: Defendants admit that Defendants Anglemyer and Friend entered the 

apartment, but deny that Defendants Price or Buchmann initially entered the apartment. 

Defendants admit that they observed Mr. Smith submerging his head into the kitchen sink, and 

observed a wound to his arm and broken glass in the apartment, but state that Defendants made 

several other observations which are not contained in paragraph eight (8) of Plaintiff’s 

Complaint. 

9. Defendants, Bruce Anglemyer, Norm Friend, James Buchmann and Michael 
4

Price, each deployed Taser guns and administered electric shock to Delano Smith. The officers 

continued to shock Delano Smith after he was incapacitated and posed no threat to himself or 

others. 

RESPONSE: Defendants admit that they deposed Taser guns and that some electric 

shock was administered. Defendants deny that they continued to shock Delano Smith after he 

was incapacitated and posed no threat to himself or others, and deny all remaining allegations 

contained in paragraph nine (9) of Plaintiff’s Complaint. 

10. The combined electrical shock from the officers’ multiple Taser guns caused 

Delano Smith to die. 

RESPONSE: Defendants deny the allegations contained in paragraph ten (10) of 

Plaintiff’s Complaint. 

11. The officers acted recklessly and with complete disregard to the substantial risk of 

death or serious bodily injury they inflicted upon Delano Smith by administering multiple 

electrical shocks from multiple Taser guns to a single person. 

RESPONSE: Defendants deny the allegations contained in paragraph eleven (11) of 

Plaintiff’s Complaint. 

 12. The officers’ use of their Taser guns as described herein was objectively 

unreasonable and constituted deadly force, which was excessive under the circumstances and 

resulted in Delano Smith’s death. 

RESPONSE: Defendants deny the allegations contained in paragraph twelve (12) of 

Plaintiff’s Complaint. 

13. Defendants, Bruce Anglemyer, Norm Friend, James Buchmann and Michael 
5

Price, separately and in concert, acted outside the scope of their jurisdiction and without 

authorization of law and they, separately and in concert, acted willfully, knowingly and 

purposefully with specific intent to deprive Plaintiff of his rights, and/or with reckless and 

callous disregard for Delano Smith’s rights including rights of: 

(A) freedom from illegal confinement and imprisonment; 

(B) freedom from physical abuse, excessive force, coercion and intimidation; and 

(C) timely and effective assistance that should have been afforded to Delano Smith. 

RESPONSE: Defendants deny the allegations contained in paragraph thirteen (13) of 

Plaintiff’s Complaint. 

COUNT II

14. Paragraphs 1 through 14 of this Complaint are incorporated by reference as if 

repeated herein. 

RESPONSE: Defendants incorporate by reference their answers to paragraphs 1 through 

13 of Plaintiff’s Complaint as if fully set forth herein. 

14. Defendants, Bruce Anglemyer, Norm Friend, James Buchmann and Michael 

Price, acts complained of herein constitute negligence under the laws of the State of Indiana. 

RESPONSE: Defendants deny the allegations contained in paragraph fourteen (14) of 

Plaintiff’s Complaint. 

15. Plaintiff filed a timely notice of tort claim, which was denied by the City of 

Elkhart. 

RESPONSE: Defendants deny the allegations contained in paragraph fifteen (15) of 

Plaintiff’s Complaint. 
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COUNT III

17. The allegations contained in paragraphs 1 through 18 are incorporated herein as if 

set forth again in full. 

RESPONSE: Defendants incorporate by reference their answers to paragraphs 1 through 

16 of Plaintiff’s Complaint as if fully set forth herein. 

18. City of Elkhart failed to adequately train its police officers concerning the use of 

and the risks associated with the Taser guns it has supplied its officers. 

RESPONSE: Defendants deny the allegations contained in paragraph eighteen (18) of 

Plaintiff’s Complaint. 

19. The need for adequate training on the proper use of Taser guns in light of the 

duties assigned to police officers is so obvious that the city’s failure to ensure adequate training 

constitutes a deliberate indifference to the health and safety of the citizens of Elkhart, such as 

Delano Smith, who the officers are likely to encounter. 

RESPONSE: Defendants deny the allegations contained in paragraph nineteen (19) of 

Plaintiff’s Complaint. 

20. As a direct result of the Defendant, City of Elkhart’s deliberate indifference, 

Delano Smith was denied his Fourth Amendment rights to be free from excessive force and 

unreasonable seizure. 

RESPONSE: Defendants deny the allegations contained in paragraph twenty (20) of 

Plaintiff’s Complaint. 

21. Delano Smith died as a direct result of Elkhart’s deliberate indifference. 

RESPONSE: Defendants deny the allegations contained in paragraph twenty-one (21) of 

Plaintiff’s Complaint. 
22. In order to redress these violations of Delano Smith’s civil rights, Plaintiffs’ 

counsel has expended and will continue to expend substantial time in presenting this action. 

RESPONSE: Defendants deny the allegations contained in paragraph twenty-two (22) 

of Plaintiff’s Complaint. 

23. In order to redress these violations of Delano Smith’s civil rights, significant but 

necessary costs have been and will continue to be incurred. 

RESPONSE: Defendants deny the allegations contained in paragraph twenty-three (23) 

of Plaintiff’s Complaint. 

24. Reasonable attorneys' fees and costs are due and recoverable to Plaintiff under 42 

U.S.C. Sec. 1988. 

RESPONSE: Defendants deny the allegations contained in paragraph twenty-four (24) 

of Plaintiff’s Complaint. 

COUNT IV

25. The allegations contained in paragraphs 1 through 25 are incorporated herein as if 

set forth again in full. 

RESPONSE: Defendants incorporate by reference their answers to paragraphs 1 through 

24 of Plaintiff’s Complaint as if fully set forth herein. 

26. At all times mentioned herein, the Defendant, Taser International, Inc. 

(hereinafter “Taser”), was engaged in the business and profession of designing, manufacturing, 

selling, distributing, installing, fabricating, assembling, buying, inspecting, testing, servicing, 

repairing, marketing, warranting and advertising and placing into the stream of commerce Taser 

Electronic Control Devices (“ECD”). 

7
 RESPONSE: The allegations contained in paragraph twenty-six (26) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

27. The ECD used to administer electrical shocks to Delano Smith, as described in 

previous counts, was manufactured by Taser. 

 RESPONSE: Defendants admit the allegations contained in paragraph twenty-seven 

(27) of Plaintiff’s Complaint. 

28. At the time Taser placed the ECD into the stream commerce, Taser knew or, in 

the exercise of reasonable care should have known, that it would be used without inspection for 

defects or dangers in their parts, mechanisms or design. 

 RESPONSE: The allegations contained in paragraph twenty-eight (28) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

29. Defendant, Taser International, Inc.’s product is unreasonably dangerous and 

defective for use on human beings because, among other reasons, it is sold without warning as to 

the effects of multiple or prolonged use, the dangers of using on persons who have mental 

impairments and may reasonably be on medications, and because there exists no adequate 

warnings as to what should be done when a deployed ECD renders a person unconscious or 

unresponsive, or when it results in respiratory arrest or other life-threatening conditions. 

 RESPONSE: The allegations contained in paragraph twenty-nine (29) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

 30. Defendant, Taser International, Inc., sold ECD’s to local law enforcement 

8
agencies such as the governmental Defendants without adequate warnings of or training in its 

potential for causing death and great bodily injury. 

 RESPONSE: The allegations contained in paragraph thirty (30) of Plaintiff’s Complaint 

are directed solely toward Defendant Taser International, Inc. and not toward these answering 

Defendants, therefore Defendants neither admit nor deny the same. 

 31. Taser International, Inc.’s ECD, which was used to administer electrical shocks to 

Delano Smith, is a defective product under Ind. Code 34-20-4-1 because it is unreasonably 

dangerous to the expected user or consumer when used in reasonably expected ways of handling 

or consumption. 

 RESPONSE: The allegations contained in paragraph thirty-one (31) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

32. Taser International, Inc.’s ECD, which was used to administer electrical shocks to 

Delano Smith, is a defective product under Ind. Code 34-20-4-2 because its seller has failed to 

label the product to give reasonable warnings of danger about the product. 

 RESPONSE: The allegations contained in paragraph thirty-two (32) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

33. Taser International, Inc.’s wrongful acts or omissions with respect to their ECD 

used to administer electrical shocks to Delano Smith contributed to the wrongful death of Delano 

Smith, an “adult person” under Indiana’s wrongful death statutes Ind. Code 34-23-1-2(a). 

9
 RESPONSE: The allegations contained in paragraph thirty-three (33) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

34. Defendant, Taser International, Inc., is strictly liable to the Plaintiff for 

designing, manufacturing, selling, distributing, installing, fabricating, assembling, buying, 

inspecting, testing, servicing, repairing, marketing, warranting, advertising and placing into the 

stream of commerce the ECD which were unreasonably dangerous for its reasonably foreseeable 

uses. 

 RESPONSE: The allegations contained in paragraph thirty-four (34) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

35. As a direct and proximate result of the strict liability, breach of duties of the 

Defendant, Taser International, Inc., including but not limited to strict liability and breach of 

warranty owed to the Plaintiff, Delano Smith suffered personal injuries and subsequently died. 

 RESPONSE: The allegations contained in paragraph thirty-five (35) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

36. As a direct and proximate result of the carelessness and negligence of the 

Defendant, Taser International, Inc., the Estate of Delano Smith, has incurred hospital, doctor, 

medical and funeral expenses for the decedent by reason of such wrongful death. 

 RESPONSE: The allegations contained in paragraph thirty-six (36) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

10
37. As a direct and proximate result of the carelessness and negligence of the 

Defendant, Taser International, Inc., Delano Smith’s family has lost his love and affection. 

 RESPONSE: The allegations contained in paragraph thirty-seven (37) of Plaintiff’s 

Complaint are directed solely toward Defendant Taser International, Inc. and not toward these 

answering Defendants, therefore Defendants neither admit nor deny the same. 

AFFIRMATIVE DEFENSES

1. Defendants are entitled to qualified immunity from Plaintiff’s claims. 

2. Defendants are entitled to absolute immunity from Plaintiff’s claims. 

3. Plaintiff’s claims are barred for lack of personal involvement by Defendants. 

4. Plaintiff has failed to state a cause of action for which relief may be granted. 

5. With respect to any potential state law claims, such claims are barred for failure 

by Plaintiff to timely file a sufficient and complete notice of tort claim. 

6. With respect to any potential state law claims, Defendants are immune from 

liability pursuant to the Indiana Tort Claims Act. 

7. With respect to any potential state law claims, Defendants are immune under 

common law. 

8. Plaintiff assumed and/or incurred the risk of injury, if any be found. 

9. Plaintiff’s contributory negligence and/or willful, wanton and reckless behavior 

was the proximate cause of her alleged damages, if any be found; thus, Plaintiff is 

barred from recovery. 

10. Plaintiff’s claims are barred by the two-year statute of limitations applicable to 

her cause of action. 

11
12

11. Plaintiff’s claims are barred for failure to properly serve any individual 

Defendants. 

12. Plaintiff’s claims are barred for lack of personal jurisdiction over the Defendants. 

JURY DEMAND

Defendants demand trial by jury. 

 Respectfully submitted, 

 By: /s/ Julie J. Havenith 

 Julie J. Havenith, #17898-53-A 

CERTIFICATE OF SERVICE

 I certify that on the 24th day of February, 2012, I electronically filed the foregoing with 

the Clerk of the Court using the CM/ECF system which sent notification of such filing to all 

counsel of record. 

 

 /s/ Julie J. Havenith____ 

 Julie J. Havenith