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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

JEFFREY BROWN, )

)

Plaintiff, )

)

v. )

) Case No.: 1:16-cv-00337-WCL-SLC

DEPUTY KYLE HARTMAN, )

DET. SHAUN DUNAFIN, )

WANDA TRUELOVE, SHERIFF OF )

NOBLE COUNTY DOUGLAS A. HARP, )

STATE OF INDIANA / INDIANA )

DEPARTMENT OF CORRECTION )

(seeking perspective injunctive relief only), )

VICKI HALSELL and APRIL WILBURN, ) 

)

Defendants. )

Defendants Deputy Kyle Hartman, Detective Shaun Dunafin, 

Wanda Truelove, and the Sheriff of Noble County Douglas A. Harp’s 

Brief in Support of Motion for Summary Judgment 

Defendants, Deputy Kyle Hartman (“Deputy Hartman”), Detective Shaun 

Dunafin (“Detective Dunafin”), Wanda Truelove (“Truelove”), and the Sheriff of Noble 

County Douglas A. Harp (“Sheriff Harp”) (collectively referred to as “these 

Defendants”), by counsel, submit their Brief in Support of Motion for Summary 

Judgment and ask the Court to enter judgment in their favor and against Plaintiff 

Jeffrey Brown. 

I. Introduction 

Plaintiff Jeffrey Brown committed sexual battery before such a crime required the 

perpetrator to register as sex offender. The Indiana General Assembly then passed laws 

requiring people such as Brown to register as sex offenders, but the Indiana judiciary 

later found such statutes unconstitutional as applied to certain offenders. The Indiana 

Attorney General’s Office offered advice to the Indiana Department of Corrections 
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interpreting the Indiana Supreme Court’s decision and that led to a determination that 

Brown was required to register as a sex offender. Brown was subsequently charged and 

convicted on two occasions for failing to comply with registration requirements. 

Pursuant to advice of his defense attorneys, and subject to approval of prosecutors and 

state court judges, Brown pled guilty and served prison time for these offenses. It was 

later determined that Brown was not required to register and a sex offender. As a result, 

Brown has brought this lawsuit, in which he makes multiple claims, which can be 

summarized as to these Defendants as claims against Deputy Hardman, Detective 

Dunafin, and Truelove for false arrest and imprisonment and a claim against Sheriff 

Harp under 42 U.S.C. § 1983 for unconstitutional policies, customs, procedures, or 

practices related to an alleged failure to train. Brown also makes a claim against all 

Defendants for malicious prosecution under the Fourth and Fourteenth Amendments.

While Brown may have a right to be upset about his convictions and 

imprisonment, his displeasure is misplaced against these Defendants, who are protected 

by qualified immunity for the roles they played in Brown’s incarceration. Given the 

clearly expressed belief by multiple attorneys, judges, and other professionals that 

Brown was required to register as a sex offender and failed to properly to do, it cannot 

be said that any of these Defendants knowingly violated Brown’s rights or did not have a 

reasonable belief that they were acting in accordance with the Constitution. The moving 

Defendants, therefore, ask the Court to enter judgment in their favor. 

II. Background on Indiana’s Sex Offender Statutes

“Beginning with ‘Zachary’s Law’ in 1994, Indiana has enacted statutes collectively

referred to as the Indiana Sex Offender Registration Act that require individuals

convicted of sex and certain other offenses to register with local law enforcement
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agencies.” Greer v. Buss, 918 N.E.2d 607, 610 (Ind. Ct. App. 2009). Indiana criminalizes 

the failure to register as follows: 

(a) A sex or violent offender who knowingly or intentionally:

(1) fails to register when required to register under

this chapter;

(2) fails to register in every location where the sex or

violent offender is required to register under this

chapter;

(3) makes a material misstatement or omission while

registering as a sex or violent offender under this

chapter;

(4) fails to register in person as required under this

chapter; or

(5) does not reside at the sex or violent offender’s

registered address or location;

commits a Level 6 felony.

(b) The offense described in subsection (a) is a Level 5 felony

if the sex or violent offender has a prior unrelated conviction

for an offense:

(1) under this section;

(2) based on the person’s failure to comply with any

requirement imposed on a sex or violent offender

under this chapter or under IC 5-2-12 before its

repeal; or

(3) that:

(A) is a crime under the laws of another

jurisdiction, including a military court; and

(B) is:

(i) the same or substantially similar to

an offense under this section; or
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(ii) based on the person’s failure to

comply with a requirement imposed on

the person that is the same or

substantially similar to a requirement

imposed on a sex or violent offender

under this chapter or under IC 5-2-12

before its repeal.

(c) It is not a defense to a prosecution under this section that

the sex or violent offender was unable to pay the sex or

violent offender registration fee or the sex or violent offender

address change fee described under IC 36-2-13-5.6.

Ind. Code § 11-8-8-17.

In 2009, the Indiana Supreme Court handed down two decisions, one of which 

found the registration requirement unconstitutional under the Indiana Constitution as 

applied to the defendant, Wallace v. State, 905 N.E.2d 371 (Ind. 2009), and another 

that found the statute constitutional as applied, Jensen v. State, 905 N.E.2d 384, 388 

(Ind. 2009). In Jensen, the Court found that amendments to the statute requiring 

certain sex offenders to register for life, as opposed to ten years, was permissible and did 

not violate the ex post facto clause of either the United States Constitution or the 

Indiana Constitutions. See Jensen, 905 N.E.2d at 394-95. In Wallace, the Court 

addressed an ex post facto challenge brought by a defendant who was convicted of the 

underlying offense prior to the enactment of the registration statutes. The Court noted 

that the United States Supreme Court had found a similar statute permissible under the 

United States Constitution,1 but reached a different result under the Indiana

Constitution. Specifically, the Court held: 

Richard Wallace was charged, convicted, and served the 

sentence for his crime before the statutes collectively 

 

1 See Smith v. Doe, 538 U.S. 84, 105-06 (2003) (“Our examination of the Act's effects leads to the 

determination that respondents cannot show, much less by the clearest proof, that the effects of the law 

negate Alaska's intention to establish a civil regulatory scheme. The Act is nonpunitive, and its retroactive 

application does not violate the Ex Post Facto Clause.”). 
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referred to as the Indiana Sex Offender Registration Act were 

enacted. We conclude that as applied to Wallace, the Act 

violates the prohibition on ex post facto laws contained in 

the Indiana Constitution because it imposes burdens that 

have the effect of adding punishment beyond that which 

could have been imposed when his crime was committed.

Wallace, 905 N.E.2d at 384. 

III. Facts

Brown was convicted of criminal confinement and sexual battery on October 25, 

1996. (Exhibit A: Deposition of Plaintiff Jeffrey Brown (“Brown Dep.”) p. 12:8-22; 

Brown Dep. Ex. B p. 2.)2 Brown was released from prison in February, 2009. (Brown 

Dep. p. 13:15-22.) Prior to his release, Brown was told by someone with the prison in 

which he was incarcerated that he would have to register as a sex offender for life. 

(Brown Dep. p. 14:7-18; Brown Dep. Ex. A.) 

The Indiana Department of Corrections Registration and Victim Services is the 

entity that has the final say in determining who is designated as someone who needs to 

register as a sex offender. (Exhibit B: Rule 30(B)(6) Deposition of Brent Myers (“Myers 

Dep.”) p. 7:15-18, 9:13-17.) As the Director of the Depart of Correction’s Registration and 

Victim Services explained: 

We make registration decisions for individuals that are 

required to register, or that we believe may have an 

obligation to register. We work with local sheriff's 

departments. We work with other justice professionals, and 

that could be helping them with their understanding of 

registration. It could be making registration decisions for 

them. Ultimately, it's just communicating about sex and 

violent offender registrations here in Indiana.

(Myers Dep. p. 9:3-12.)

 

2 These Defendants have redacted Brown’s Social Security number from the deposition exhibits.
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After being released from prison, Brown completed a sex offender registration 

with the assistance of Truelove, and employee of Noble County. (Brown Dep. p. 18:11-

19:14; Brown Dep. Ex. B.) Brown had no discussions with Truelove as to whether he was 

actually subject to the registration requirements. (Brown Dep. p. 21:19-22.) 

In 2009, while Brown was incarcerated for disorderly conduct, he was charged 

with failing to register as a sex offender. (Brown Dep. p. 22:3-8.) Brown was represented 

by counsel with respect to this charge and entered a plea of guilty for failure to comply 

with the sex offender registration requirements. (Brown Dep. p. 22:12-22.) The 

agreement filed with the Court was signed by Brown, his counsel, and the prosecuting 

attorney. (Exhibit C: October 2011 Plea Agreement.) The Noble Circuit Court Judge 

accepted the settlement agreement, entered judgment against Brown, and entered an

order sentencing Brown to imprisonment for six months, with eighty-two days credit 

applied. (Exhibit D: October 2011 Sentencing Order.) Brown was sentenced to six 

months for this offense, and the conviction also constituted a parole violation. (Brown 

Dep. p. 23:17-25.) The issue of whether Brown was actually required to register as a sex 

offender did not come up with either Brown’s attorney or the presiding Judge. (Brown 

Dep. p. 24:16-19.) 

In May, 2012, while Brown was incarcerated, Brown wrote a letter to the Noble 

County Judge and Sheriff expressing that he should be required to register as a sex 

offender for only ten years, as opposed to life. (Brown Dep. p. 25:7-22; Brown Dep. Ex. 

D.) The Judge responded to Brown and agreed that Brown should have to register for 

only ten years. (Brown Dep. p. 25:22-25.) This letter from the Judge did not inform 

Brown that he did not need to register at all. (Brown Dep. p. 26:3-7.)
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Brown was released from prison in September, 2012. (Brown Dep. p. 26:10-13.) 

Prior to his release, Brown received and completed a document regarding his sex 

offender registration responsibilities. (Myers Dep. Ex. E, p. 7; Brown Dep. p. 26:20-18-

24; Brown Dep. Ex. E.) This document indicated that Brown was required to register. 

(Myers Dep. Ex. E, p. 7; Brown Dep. Ex. E.) An appointed member of the Indiana Parole 

Board also signed documentation indicating that Brown was required to register as a sex 

offender. (Myers Dep. p. 33:15-35:5; Myers Dep. Ex. E p. 10.) The Department of 

Correction faxed documentation indicating that Brown had to register as a sex offender 

to the local sheriff’s department. (Myers Dep. p. 38:1-5.) The Department of Correction 

did not expect local sheriff’s departments to conduct an independent investigation into 

an individual’s obligation to register, although some departments did so on their own. 

(Myers Dep. p. 38:19-39:18.)

As to the reason for this determination that Brown was required to register, 

Myers explained that, at the time, his department was under legal advice from the 

Attorney General’s office indicating that people in Brown’s position were required to 

register as sex offenders. (Myers Dep. p. 25:17-26:2.) Myers explained that the Attorney 

General’s Office had offered “specific advice as for the implementation of Wallace v. 

State,” which Myers explained “was a case that came down I believe April 30th, 2009, 

that questioned whether or not sex and violent offender registration could be enacted 

retroactively.” (Myers Dep. p. 26:7-13.) The Department of Correction’s understanding 

“was it was an ‘as applied decision’ to Richard Wallace, and the court indicated because 

of his situation of committing, being convicted of, and completing his sentence, that he 

was no longer obligated to register, he didn’t have notice of that obligation.” (Myers 

Dep. p. 26:15-21.) The Attorney General’s advice was that the decision “applied only to 
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Richard Wallace, and that if any other inmate believed he or she was not subject to 

registration requirements, that individual had to seek a court determination.” (Myers 

Dep. p. 26:22-27:8.) In other words, in September, 2012, it was the Department of 

Correction’s policy that Indiana’s sex registration requirements applied to Brown. 

(Myers Dep. p. 32:23-33:2.) This policy later changed, and the Department of 

Correction now looks at when an individual’s crime was committed to determine 

whether the registration requirement exists. (Myers Dep. p. 47:16-48:1.) However, at the 

time Brown was released from prison in 2009 and 2012, the Department of Correction’s 

policies indicated that Brown was required to register as a sex offender. (Myers Dep. p. 

51:14-21.) It was not until March, 2016, that the Department of Corrections informed 

the Noble County Sheriff’s Department that the registration requirements did not apply 

to Brown. (Myers Dep. p. 52:8-12.) 

Upon his release from custody in 2012, Brown returned to Noble County and met 

with Truelove to complete a sex offender registration form. (Brown Dep. p. 29:6-30:1; 

Brown Dep. Ex. F.) Once again, there was no discussion at this point about whether 

Brown was required to register, but there was discussion about whether Brown had to 

register for life or for ten years. (Brown Dep. p. 31:22-32:22.)

On September 1, 2015, Deputy Hartman filed four Informations in the Noble 

Circuit Court based on Brown’s failure to register as a sex offender, along with an 

Affidavit for Probable Cause. (Exhibit E: Informations filed in Cause 57C01-1509-F5-67; 

Exhibit F: Affidavit for Probable Cause filed in Cause 57C01-1509-F5-67.) The Deputy 

Prosecuting Attorney approved and signed the Informations. (Exhibit E: Informations 

filed in Cause 57C01-1509-F5-67.) These Informations and Affidavit indicated that 

Brown had failed to report his change in address, as required by Indiana Code 11-8-8-
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11(a)(1), failed to report his use of social media as required by Indiana Code § 11-8-8-17, 

and omitted information from his Facebook account as required by Indiana Code § 11-8-

8-17(a)(3). (Exhibit E: Informations filed in Cause 57C01-1509-F5-67.) The Affidavit 

also outlined Brown’s prior conviction for sexual battery on February 19, 1996, and his 

conviction for failing to register as a sex offender from 2009. (Exhibit F: Affidavit for 

Probable Cause.) The Noble Circuit Court Judge issued an Order Regarding Probable 

Cause, also on September 1, 2015, finding probable cause for Brown’s arrest and 

directing the Clerk to issue an arrest warrant. (Exhibit G: Order Regarding Probable 

Cause.) On September 1, 2016, the Noble Circuit Court issued a bench warrant for 

Brown’s arrest. (Exhibit H: Bench Warrant.) 

Brown was subsequently arrested for failing to register as a sex offender pursuant 

to the arrest warrant issued by the Noble Circuit Court. (Brown Dep. p. 33:18-22, 35:2-

7.) Brown hired an attorney to represent him with respect to those charges, and again 

pled guilty to the offense of failing to register as a sex offender. (Brown Dep. p. 35:15-25; 

Exhibit I: Guilty Plea Agreement.) The Agreement was signed by Brown, his defense 

attorney, and the Chief Deputy Prosecuting Attorney for Noble County. (Exhibit I: 

Guilty Plea Agreement.) The Court entered judgement against Brown and sentenced 

him to a term of two years and six months. (Exhibit J: Abstract of Judgment.) 

While in prison, Brown conducted his own legal research and determined that he 

was not required to register as a sex offender. (Brown Dep. 36:16-21, 37:17-22.) Prior to 

doing this research, no one, including officials with the State of Indiana, Brown’s 

defense lawyers, the prosecuting attorneys, and the judges who presided over Browns’ 

cases had told Brown he was not subject to the registration requirements. (Brown Dep. 

p. 37:23-38:8.) 
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Brown then wrote Detective Dunafin to inform him that Brown was not required 

to register. (Brown Dep. Ex. H.) After receiving this letter, Detective Dunafin met with 

Brown and agreed that Brown was not required to register. (Brown Dep. p. 38:9-19.) 

Shortly after this meeting, on March 7, 2016, Brown sent Detective Dunafin a formal 

protest regarding his incarceration. (Brown Dep. Exhibits H and I.) 

As a result of his investigation, Detective Dunafin prepared a Supplemental Case 

Report. (Exhibit K: Detective Dunafin Supplemental Case Report.) In this report, 

Dunafin outlines the chronology of events that led to Brown’s sex offender registration 

charges. (Id. p. 1-3.) This report notes the Attorney General’s position regarding the 

Wallace decision and also notes that, in February, 2010, a letter was sent to offenders 

that the Noble County Sheriff’s Department fell into similar circumstances as the 

plaintiff in the Wallace case, advising those offenders that they were being removed 

from the Noble County Sheriff Department’s registry. (Id. p. 2.) 

Detective Dunafin’s report indicates that on March 8, 2016, the day after his 

meeting with Brown, Detective Dunafin sent an email to the Registration Coordinator 

for the Department of Correction advising her of Detective Dunafin’s belief that Brown 

was not required to register as a sex offender. (Id. p. 4.) Also on, March 8, 2016, Brown’s 

appointed counsel with the Noble County Public Defendant’s Agency filed a Motion to 

Vacate Conviction and for Dismissal, to which the Noble County Chief Deputy 

Prosecuting Attorney indicated it would not oppose. (Exhibit L: Motion to Vacate 

Conviction and for Dismissal.) That same day, the Noble Circuit Court issued its order 

finding that there was no factual or legal basis for the charges or Brown’s guilty plea and 

vacating the conviction. (Exhibit M: March 8, 2016 Order.) 
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IV. Summary Judgment Standard of Review

Summary judgment shall be granted if “there is no genuine issue as to any 

material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56. If the moving party meets this burden, summary judgment is mandatory. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When opposing a summary 

judgment motion, the non-movant “must set forth specific facts that demonstrate a 

genuine issue of triable fact and must produce more than a scintilla of evidence to 

support his position.” Pugh v. City Of Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001). 

“A genuine issue of triable fact exists only if ‘the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986)). 

V. Argument 

A. Qualified Immunity Protects these Defendants from the false arrest, 

false imprisonment, and malicious prosecution claims. 

1. Brown’s claims for false arrest, false imprisonment, and malicious 

prosecution are all analyzed under the Fourth Amendment. 

“There is no such thing as a constitutional right not to be prosecuted without

probable cause.” Day v. Harris, No. 2:18-CV-316-TLS, 2019 U.S. Dist. LEXIS 108261, at 

*11 (N.D. Ind. June 27, 2019) (quoting Manuel v. City of Joliet, 903 F.3d 667, 670 (7th

Cir. 2018)); see also Lewis v. City of Chicago, 914 F.3d 472, 475 (7th Cir. 2019) (“[T]he

Fourth Amendment, not the Due Process Clause, governs a claim for wrongful pretrial

detention.”). However, a claim described as malicious prosecution that alleges unlawful

pretrial detention states a claim under the Fourth Amendment. See id. at *11 (citing

Manuel v. City of Joliet, 137 S.Ct. 911, 918-19 (2017)). Therefore, the Defendants will

address Brown’s claims of malicious prosecution along with his claims for false arrest
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and false imprisonment, which also fall under the Fourth Amendment. See generally

Norris v. Serrato, 761 F. App'x 612, 615-16 (7th Cir. 2019) (finding no Fourth 

Amendment violation for an arrest, and then noting “that claims for wrongful pretrial

detention are analyzed under the Fourth Amendment,” and that “[b]ecause there is no 

malicious-prosecution claim under § 1983, our conclusion that the arrest was supported 

by probable cause wraps up the substantive portion of this appeal”).

2. The Defendants reasonably believed that it was lawful for Brown to be 

arrested and detained based on his failing to register as a sex offender.3

Police officers “performing discretionary functions enjoy qualified immunity and 

are ‘shielded 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.’” In re Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir.2010) (quoting 

Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007)). “In other words, qualified

immunity ‘shields from liability police officers 'who act in ways they reasonably believe

to be lawful.’” Ewell v. Toney, 853 F.3d 911, 919-20 (7th Cir. 2017) (quoting Jewett v.

Anders, 521 F.3d 818, 822 (7th Cir. 2008)). When addressing a claim of qualified 

immunity, the court determines whether the facts show that the officer’s conduct 

violated a constitutional right and whether the right was clearly established at the time 

of the claimed violation. See Reiner v. Dandurand, 33 F. Supp. 3d 1018, 1026 (N.D. Ind. 

2014). “A right is ‘clearly established’ when there is either a closely analogous case that 

 

3 Because Brown was already incarcerated when he was charged with failing to register in 2009, he has no 

cognizable claim for false arrest related to that charge. See, e.g., Bristol v. Queens Cty., No. CV 09-5544 

(JFB) (AKT), 2018 U.S. Dist. LEXIS 56996, at *36 (E.D.N.Y. Mar. 30, 2018) (“It is well-settled that a

plaintiff does not have a claim for false arrest under § 1983 if the plaintiff was already in custody on other

charges at the time of his or her arrest because the plaintiff has not suffered the requisite "deprivation of

liberty.”); Senalan v. Curran, 78 F. Supp. 3d 905, 910 (N.D. Ill. 2015). Therefore, this discussion will 

focus on the arrest of Brown that occurred in 2015. 
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establishes that the conduct is unconstitutional or when the violation is so obvious that 

a reasonable state actor would know that his actions violated the Constitution.” Id.

(citing Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2001)). “[T]he doctrine of

qualified immunity leaves ‘ample room for mistaken judgments’ by police officers.”

Montgomery v. Vill. of Lake Station, No. 2:02-CV-209, 2006 U.S. Dist. LEXIS 62855, at 

*18 (N.D. Ind. Aug. 22, 2006) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

Qualified immunity protects “all but the plainly incompetent or those who knowingly 

violate the law.” Malley, 475 U.S. at 341; see also Anderson v. Creighton, 483 U.S. 635, 

638 (1987).

“Once qualified immunity is raised, the plaintiff has the burden of establishing 

that his or her rights were violated and that the law concerning the proffered right ‘was 

clearly established at the time the challenged conduct occurred.’” Burritt v. Ditlefsen, 

807 F.3d 239, 249 (7th Cir. 2015) (quoting Mustafa v. City of Chicago, 442 F.3d 547, 

548 (7th Cir. 2006)).

Qualified immunity protects an officer accused of false arrest “if the officer 

actually had probable cause or, if there was no probable cause, whether a reasonable 

officer could have mistakenly believed that probable cause existed.” Humphrey v. 

Staszak, 148 F.3d 719, 725 (7th Cir. 1998). “The Court's consideration of probable cause 

and qualified immunity are closely related.” Montgomery, at *18.

Whether police officers had probable cause to arrest a suspect and whether 

they are entitled to qualified immunity for the arrest are closely related 

questions, although qualified immunity provides the officers with an 

‘additional layer of protection against civil liability’ if a reviewing court 

finds that they did not have probable cause.

Id., at *18-19 (quoting Williams v. Jaglowski, 269 F.3d 778, 781 (7th Cir. 2001). The 

ultimate question is “whether a reasonable officer would have been justified in believing
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that he had probable cause” and whether it would “have been plain to a reasonable

officer that arresting and detaining [a plaintiff] under [the] circumstances would have

been unlawful under the Fourth Amendment.” Ewell v. Toney, 853 F.3d 911, 919-20 

(7th Cir. 2017). In other words, “as long as [a defendant] reasonably, albeit possibly 

mistakenly, believed that probable cause existed to arrest [a plaintiff], then [the 

defendant] is entitled to qualified immunity.” Burritt v. Ditlefsen, 807 F.3d 239, 249-51 

(7th Cir. 2015) (quoting Fleming v. Livingston Co., Ill., 674 F.3d 874, 880 (7th Cir. 

2012)). 

Here, the arrest and detention of Brown was supported by a judicial finding of

probable cause and an arrest warrant. “An officer is not expected to question a judicial

determination.” Archer v. Chisholm, 191 F. Supp. 3d 932, 944 (E.D. Wis. 2016) (citing 

United States v. Leon, 468 U.S. 897, 920-21 (1984)). “The existence of an outstanding

warrant shows that a judge has found probable cause, and an arrest is proper when a

warrant is based on probable cause.” Norris v. Serrato, 761 F. App'x 612, 615 (7th Cir. 

2019). “When an arrest is judicially authorized, as it was in this case, ‘we presume the

validity of [the] warrant and the information offered to support it.’” Camm v. Faith, 937 

F.3d 1096, 1105-06 (7th Cir. 2019) (quoting Whitlock v. Brown, 596 F.3d 406, 410 (7th

Cir. 2010)). This presumption of validity “may give way on a showing that the officer

who sought the warrant knowingly or intentionally or with a reckless disregard for the

truth[] made false statements to the judicial officer and that the false statements were

necessary to the judicial officer’s determination.” Id. (quoting Whitlock, 596 F.3d at

410); see also Archer, 191 F.Supp. 3d at 944 (“Only where it is objectively unreasonable

for an officer to rely on a judicially-approved warrant will qualified immunity be

withheld.”). Deputy Hartman submitted no false statements to the Court in his probable
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cause affidavit, so Deputy Hartman had no objectively unreasonable reason to question

the arrest warrant or judicial finding of probable cause. Indeed, the issue in this case

relates not to a discrepancy in reports of what factually occurred (Brown was convicted

of a sex crime and failed to comply with the registration statute), but to the legal import

of those actions and inactions. Under these circumstances, officers such as Deputy

Hartman should not be required to second-guess judges.

It is also worth noting that the information filed by Deputy Hartman was 

approved by the County’s Deputy Prosecuting Attorney. The prosecutor’s involvement in 

obtaining the warrant provides significant evidence that Brown’s arrest was reasonable. 

See Burritt v. Ditlefsen, 807 F.3d 239, 249-51 (7th Cir. 2015) (recognizing that “the fact

that the officer had consulted with the District Attorney prior to arresting the plaintiffarrestee ‘goes a long way toward solidifying his qualified immunity defense’” (citing 

Fleming, 674 F.3d at 881)); see also Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir.

2004) (“Consulting a prosecutor may not give an officer absolute immunity from being

sued for false arrest, but it goes far to establish qualified immunity. Otherwise the

incentive for officers to consult prosecutors—a valuable screen against false arrest—

would be greatly diminished.” (citation omitted)); Kelly v. Borough of Carlisle, 622 F.3d 

248, 255 (3d Cir. 2010) (“In our view, encouraging police to seek legal advice serves

such a salutary purpose as to constitute a ‘thumb on the scale’ in favor of qualified

immunity.”). Further, the prosecuting attorney and defense counsel for Brown also 

joined in the misinterpretation or application of the sex offender registration laws, as 

evidenced by their signatures on the plea agreement entered into by Brown. 

There is no doubt that Brown should not have been arrested in 2015 or charged 

with failing to register in either 2009 or 2015. But the mistakes that led to Brown’s 
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arrest and detentions did not stem from false statements or omitted information by 

these Defendants. Indeed, the initial determination that Brown was required to register 

was made before Brown was released from prison and went to Noble County to actually 

complete the registration. Therefore, this case is unlike cases in which a court has 

rejected a qualified immunity defense in the context of an arrest or detention supported 

by a warrant. Cf. Autrey v. Stair, 512 F. App’x 572, 578-79 (6th Cir. 2013) (“To the 

extent that a plaintiff in a § 1983 cause of action can point to instances where the 

consideration of falsehoods or the omission of material exculpatory evidence could have 

colored a state-court judge's probable-cause determination, there is no requirement that 

the initial finding be given preclusive effect in the federal-court action.”). The mistake 

was one of law and was made not only by these Defendants, but everyone involved in 

Brown’s arrest, convictions, and detention, including the Attorney General’s office, the 

Department of Corrections, prosecuting attorneys, defense lawyers, and judges. 

These defendants recognize that, in some instances, a court opinion holding a 

statute unconstitutional will deprive a defendant of a qualified immunity defense. But 

there is no per se rule to that effect. See Amore v. Novarro, 624 F.3d 522, 534 (2d Cir. 

2010). As the Third Circuit has noted, “there are circumstances wherein a police officer's

violation of a law may be within the bounds of reason, even though the law in question

can be said, from the comfort of an armchair, to be ‘clearly established.’” Kelly v.

Borough of Carlisle, 544 F. App'x 129, 134 (3d Cir. 2013). As the Second Circuit has 

explained, “[t]he question is not what a lawyer would learn or intuit from researching

case law, but what a reasonable person in a defendant's position should know about the

constitutionality of the conduct.” Id. at 533-34 (quoting Young v. County of Fulton, 160

F.3d 899, 903 (2d Cir. 1998)); see also Scarbrough v. Myles, 245 F.3d 1299, 1303 n.8
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(11th Cir. 2001) (“Police officers are not expected to be lawyers or prosecutors.”); Blue v.

Batth, No. GJH-15-1024, 2017 U.S. Dist. LEXIS 152604, at *14-16 (D. Md. Sep. 18, 2017)

(“[W]hile the Court finds that officers must know the law, it cannot ask that officers also

engage in the type of interpretation required of lawyers. “). This line of thinking is even

more applicable in this case, in which two lawyers and a Judge (not to mention the

Parole Board and the Attorney General’s Office) all believed that the applicable statute

was effective and applied to Brown, and made such a determination before Brown was

arrested in Noble County. Cf. Thomas v. Hurley, 51 F. App'x 694, 694-95 (9th Cir. 

2002) (“Hurley and Spanski could reasonably have understood § 134-7 and the Hawaii 

Attorney General's opinion as meaning that regardless of the settlement agreements,

Thomas' 1973 conviction made him ineligible in the first instance for a license to sell 

guns and thus precluded him from acquiring or maintaining any lawful property or 

liberty interest in the license. In light of this reasonable interpretation of the statute and 

the Attorney General's opinion, Hurley's and Spanski's conduct did not violate clearly

established rights of which a reasonable official would have known. Therefore, Hurley 

and Spanski are entitled to qualified immunity. (emphasis in original); Cahaly v.

LaRosa, 25 F. Supp. 3d 817, 830 (D.S.C. 2014) (“Defendants’ arrest of Plaintiff was 

arguably consistent with the state attorney general’s interpretation of the statute (which 

did not address any constitutional question) because Plaintiff did not comply with the 

disclosure requirements of the statute.”), aff’d in part vacated in part, 796 F.3d 399 

(4th Cir. 2015).4 Indeed, to hold Deputy Hartman liable in this case would equate to a

 

4 These Defendants recognize that there is no evidence that they relied directly on the Attorney General’s 

opinion. However, the fact that the Attorney General’s opinion and interpretation of the Indiana Supreme 

Court’s Wallace decision led to the conclusion that Brown was subject to statutory registration 

requirements until a specific defendant obtained relief from Court is evidence that the Wallace decision 
2510322 Page 18 of 22

determination that he should have known that arresting Brown was unconstitutional

despite judicial approval. “It is a sound presumption that the magistrate is more 

qualified than the police officer to make a probable cause determination, and it goes 

without saying that where a magistrate acts mistakenly in issuing a warrant but within 

the range of professional competence of a magistrate, the officer who requested the 

warrant cannot be held liable.” Malley, 475 U.S. at 346 n.9 (internal citation and 

quotation omitted). 

At the end of the day, the general purpose of qualified immunity is “to ensure that

before they are subjected to suit, officers are on notice their conduct is unlawful.” Hope

v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted). Here, the

Defendants not only had no notice of the unlawfulness of their conduct, but also had

affirmative confirmation from the prosecutor’s office and a judge, and later Brown’s

defense counsel, of the lawfulness of their conduct related to assisting Brown with his

registration, providing information to prosecutors that led to charges being filed against

Brown, and arresting Brown pursuant to a warrant. Thus, any “incorrect understanding

of the law [was] not devoid of merit.” Kelly, 544 F. App'x at 135. Based on the 

confirmation from the prosecutor and Judge, “even though the law was, in a sense,

‘clearly established,’ it was not so clearly established that one could say a reasonable

officer ‘would have known’ of the illegality of the arrest.” Id. at 136 (citing Harlow, 457

U.S. at 818). Indeed, it is impossible to find these Defendants’ conduct unreasonable

when numerous lawyers were interpreting the existing case law (although perhaps

incorrectly) in a manner that indicated Brown was required to register and had broken

 

did not create “clearly established” law of which any of these Defendants should have been aware with 

respect to Brown’s situation. 
2510322 Page 19 of 22

the law by not doing so. Qualified immunity therefore applies and protects all these

Defendants from liability.

B. Brown has no facts to support a Monell claim. 

It is well-established that defendants in section 1983 claims cannot be held liable 

under a theory of vicarious liability. See Monell vs. Dep’t of Social Servs. Of City of New 

York, 436 U.S. 658, 691 (1978); Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015); 

Wiseman v. City of Michigan City, 966 F. Supp. 2d 790, 797 (N.D. Ind. 2013). Those who 

employ police officers can be held liable pursuant to section 1983 only if there is:

(1) an express policy that would cause a constitutional deprivation if 

enforced; (2) a common practice that is so widespread and well-settled that 

it constitutes a custom or usage with the force of law even though it is not 

authorized by written law or express policy; or (3) an allegation that a 

person with final policy-making authority caused a constitutional injury.

Id. The causation element is mandatory. Connick v. Thompson, 563 U.S. 51, 60 (2011)

(“Plaintiffs who seek to impose liability on local governments under § 1983 must prove 

that ‘action pursuant to official municipal policy’ caused their injury.” (quoting Monell, 

436 U.S. at 691)). 

“[I]n limited circumstances a municipality may be held liable under § 1983

for constitutional violations resulting from a failure to properly train police officers.”

Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015) (emphasis added) (quoting 

Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504, (7th Cir. 2010)). “Failure to

train officers may support a Monell claim, but ‘only where the failure to train amounts

to deliberate indifference to the rights of persons with whom the police come into

contact.’” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). As the

Supreme Court has explained, “[a] municipality’s culpability for a deprivation of rights

is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 
2510322 Page 20 of 22

563 U.S. 51, 61 (2011). The failure to train must be amount to “deliberate indifference,” 

which “‘is a stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.’” Id. (quoting Bd. of the

Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). The policy of inaction must equate

to a decision by the municipal actor to violate the Constitution. Id. “A less stringent

standard of fault for a failure-to-train claim ‘would result in de facto respondeat

superior liability on municipalities . . . .’” Id. (quoting Canton v. Harris, 489 U.S. 378,

392 (1989)).

Here, the undisputed evidence shows that multiple entities, including the

Attorney General’s Office, Department of Corrections, prosecutors, defense attorneys, 

and even Judges, believed that Brown was required to register as a sex offender. The 

Department of Corrections in fact, based on advice from the Attorney General’s office, 

provided documentation to the DeKalb County Sheriff’s Department indicating that 

Brown had an obligation to register. These circumstances clearly do not amount to the 

deliberate indifference standard required to sustain a Monell claim. Cf. Prince v. Curry, 

423 F. App'x 447, 451-52 (5th Cir. 2011) (finding that the plaintiff’s allegations did not 

fall within the “extremely narrow category of claims where ‘the unconstitutional

consequences of failing to train could be so patently obvious that a city [or other local

government] could be liable under § 1983 without proof of a pre-existing pattern of

violations.’” (quoting Connick, 563 U.S. at 60)); Littlejohn v. Garrett, No. 4:17-cv-238-

KPJ, 2018 U.S. Dist. LEXIS 63243, at *10-11 (E.D. Tex. Apr. 13, 2018) (finding that the 

plaintiff’s conclusory allegations that the City did not adequately train employees 

regarding sex offender registration did not show deliberate indifference). 
2510322 Page 21 of 22

Further, as indicated by Detective Dunafin’s case report, the Sheriff’s Department 

was not deliberately indifferent to the requirement for certain individuals to register in 

light of the Wallace decision. And once it was brought to the Sheriff Department’s 

attention that Brown might not have an obligation to register, a prompt investigation 

occurred. Detective Dunafin met with Brown, agreed that Brown did not have to 

register, and communicated with the Department of Correction. These circumstances 

show that the Sheriff’s Department was not deliberately indifferent to Brown’s plight, 

but was in fact concerned and attentive to the situation. Brown simply cannot make the 

high showing required to sustain a Monell claim based on a failure to train. 

VI. Conclusion 

Brown certainly has a valid reason to complain that he spent time in prison under

a statute that the Indiana Supreme Court held could not constitutionally apply people in

his situation. But his real beef is not (or at least should not be) with Deputy Hartman,

Detective Dunafin, Truelove, or Sheriff Harp. The true reason Brown spent time in

prison for failing to register stemmed from the Attorney General’s interpretation of case

law and apparent confusion over that case law by the prosecutors, defense attorneys,

and judges who all played a role in allowing Brown to be arrested for, charged with, and

convicted of these offenses. Deputy Hartman, Detective Dunafin, Truelove, and Sheriff

Harp are not lawyers, and should not be faulted for failing to second guess and

somehow overrule these attorneys and judges.

For these and the foregoing reasons, Deputy Hartman, Detective Dunafin,

Truelove, and Sheriff Harp respectfully ask this Court to enter summary judgment in

their favor on all claims raised against them by Brown.
2510322 Page 22 of 22

Respectfully submitted,

BARRETT McNAGNY LLP

By /s/William A. Ramsey

Robert T. Keen, Jr., #5475-02

William A. Ramsey, #26547-53

215 East Berry Street

Fort Wayne, IN 46802

Telephone: (260) 423-9551

Fax: (260) 423-8920

Email: rtk@barrettlaw.com

 war@barrettlaw.com

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of January, 2020, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system, which sent notification 

to all counsel of record. 

s/William A. Ramsey

William A. Ramsey