In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-1501 

JOHN DOE and A. B., 

Plaintiffs-Appellants, 

v.

ADAM GRAY, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division. 

No. 3:20-cv-00129-DRL — Damon R. Leichty, Judge. 

____________________ 

ARGUED JANUARY 5, 2023 — DECIDED JULY 28, 2023 

____________________ 

Before FLAUM, ROVNER, and BRENNAN, Circuit Judges. 

BRENNAN, Circuit Judge. John Doe and A.B. were investigated and arrested for neglecting a dependent and failing to 

support a dependent child under Indiana law. After the

charges were resolved with deferred prosecution agreements, 

together they sued a detective, the Starke County Sheriff’s Department, and a case manager with the Indiana Department 

of Child Services. They brought claims under 42 U.S.C. § 1983 

alleging violations of Doe’s right to privacy in sexual 
2 No. 22-1501 

preference1 under the Fourteenth Amendment and that they 

were arrested without probable cause contrary to the Fourth 

Amendment. They also brought a state law claim of intentional infliction of emotional distress. 

After the defendants moved for summary judgment on the 

claims, the plaintiffs sought to amend their complaint to clarify that Doe’s Fourteenth Amendment claim pertained to the 

disclosure of gender identity as opposed to sexual preference. 

The district court denied the motion to amend and granted 

summary judgment to the defendants. We affirm. 

I. Background

A. Factual2

John Doe is a transgender male who was born female. He 

had breast-removal surgery but no other gender-altering procedure. Doe’s significant other is A.B.,3 the mother of R.M., 

J.M., K.B., and two other children. 

Adam Gray, a detective with the Starke County Sheriff’s 

Department, and Katherine Purtee, a family case manager 

with the Indiana Department of Child Services, met with 

seventeen-year-old R.M. to investigate allegations that Doe 

and A.B. had abandoned him. In that February 1, 2018 

meeting, R.M. told Gray and Purtee that he had lived with his 

1 The plaintiffs in their complaint and pleadings employed the term

”sexual preference” rather than the more widely used term ”sexual orientation.” We use the term as it was pleaded.

2 The facts are relayed in the light most favorable to the non-movants, 

Doe and A.B. See Fin. Fiduciaries, LLC v. Gannett Co., 46 F.4th 654, 668 (7th 

Cir. 2022). 

3 The record is unclear as to whether Doe and A.B. are legally married. 
No. 22-1501 3

mother, A.B., and stepfather, Doe, since November 2017. A.B. 

and Doe found out that R.M. knew his sister J.M. had snuck 

out of the house one evening. As a result, around January 27, 

2018, A.B. and Doe reportedly told R.M. to leave the home and 

not return. R.M. had been staying with his friend M.B. at 

Suzanne Brewer’s home before then and remained with the 

Brewers after. 

In the meeting with Gray and Purtee, R.M. told them 

about text messages he exchanged with A.B. In those messages A.B. told R.M. he could return home but was grounded. 

R.M. responded that he did not want to be grounded. He also 

said he had told his school he could not return home to avoid 

being charged as a runaway. 

A week after the meeting, R.M. was brought to the Starke 

County Sheriff’s Department for a recorded interview with 

Gray and Purtee. In that interview, R.M. reiterated that Doe 

had told him not to return home and to stay at M.B.’s house. 

R.M. also said neither A.B. nor Doe had given him money 

since he was kicked out and that A.B. had provided food on 

only one occasion. In addition, R.M. recalled that this was not 

the first time that he had been kicked out of the home. R.M.’s 

statements to Gray and Purtee also raised concern that Doe 

was sexually assaulting R.M.’s sisters. 

Gray obtained a letter from Suzanne Brewer in which she 

confirmed that R.M. had stayed in her home. She stated A.B. 

had not called her about R.M. or stopped by to check on him, 

nor had A.B. provided money to support him. Brewer 

acknowledged that A.B. brought R.M. food on one occasion. 

Brewer also revealed that she had driven R.M. to his home on 

January 29, 2018 to pick up some of his belongings and that a 

bag of R.M.’s clothes was on the porch when they arrived. 
4 No. 22-1501 

After R.M.’s recorded interview, and based on his investigation, Gray contacted a prosecutor about possible charges 

against Doe and A.B. The prosecutor advised that probable 

cause of a crime existed. On February 7, 2018, Doe and A.B. 

were arrested for two Indiana offenses: neglect of a dependent

under Indiana Code § 35-46-1-4(a)(3) and nonsupport of a dependent child under Indiana Code § 35-46-1-5(a). 

The next day, Gray interviewed A.B. During that interview, the detective explained that allegations of sexual misconduct had been made against Doe. Gray told A.B. that 

K.B.’s birth certificate had been falsified to name Doe as the 

child’s father. Gray also stated that Doe was born female, had 

previously been named Barbara B., and had female genitalia. 

A.B. claims not to have known that Doe has female genitalia

until Gray revealed this fact in the interview. 

After the arrests, Purtee took custody of the minor children for placement in foster or kinship care. Purtee spoke 

with April Hopkins, A.B.’s sister, about placing the children 

with her. During that phone conversation, Hopkins says Purtee disclosed that Doe was born female. While at the Brewers’ 

home, Purtee also revealed that Doe was born female to Suzanne Brewer, M.B., J.M., and R.M.4 

B. Procedural 

Doe and A.B. sued Gray and Purtee in their individual and 

official capacities, the Starke County Sheriff’s Department, 

and the Indiana Department of Child Services under 42 U.S.C. 

§ 1983. In a Fourteenth Amendment claim against Gray and 

4 Doe alleged that Purtee made the same disclosure to foster parent 

Tracy Patrick. This claim appears to have been abandoned at summary 

judgment, and even if it was not, our decision is unaffected. 
No. 22-1501 5

Purtee, Doe alleged they violated his right to privacy by disclosing his “sexual preference.” Doe and A.B. raised a Fourth 

Amendment violation against Gray, contending he lacked 

probable cause to arrest them. Doe also brought a state law 

claim of intentional infliction of emotional distress against 

Gray and Purtee. The Starke County Sheriff’s Department and 

the Indiana Department of Child Services were named as defendants under a respondeat superior theory.5 

The defendants moved for summary judgment on the remaining claims. Over one month later, the plaintiffs moved to 

amend their complaint. They sought to revise their Fourteenth Amendment claim by asserting a right to privacy in 

gender identity as opposed to sexual preference. After considering the claims with respect to both Doe’s sexual preference 

and gender identity, the district court denied the plaintiffs’ 

motion to amend and granted summary judgment to the defendants. The court concluded that Gray was entitled to qualified immunity on Doe’s Fourteenth Amendment claim, and 

that Gray had probable cause for the arrests, precluding the 

Fourth Amendment claim. On the state law claim, Doe conceded in his response brief that Gray was entitled to immunity under the Indiana Tort Claims Act (ITCA) in his personal 

capacity. The district court also ruled that Gray was entitled 

to immunity under that statute in his official capacity. Gray’s 

immunity under the ITCA relieved the Starke County Sheriff’s Department of liability. 

5 Through a joint motion, all claims against the Indiana Department 

of Child Services and Purtee in her official capacity were dismissed with 

prejudice. The intentional infliction of emotional distress claim against 

Purtee in her individual capacity was also later dismissed.
6 No. 22-1501 

II. Discussion

Doe and A.B. raise three challenges on appeal: 

• The defendants are not entitled to qualified immunity on Doe’s Fourteenth Amendment claim because there was a clearly established right to privacy in one’s sexual preference or gender identity 

at the time that information was disclosed; 

• The text messages between A.B. and R.M. establish 

a genuine dispute of material fact as to whether 

Gray had probable cause to arrest Doe and A.B., 

precluding summary judgment on their Fourth 

Amendment claim; and 

• Gray, in his official capacity, is not entitled to immunity under the ITCA because he was not adopting or enforcing state law in disclosing Doe’s sexual 

preference or gender identity.6 

Summary judgment will be granted “if the movant shows 

that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” FED.R. CIV.

P. 56(a). This court reviews a district court’s grant of summary 

judgment de novo, reading the facts and drawing all reasonable inferences in favor of the non-movant. Pierner-Lytge v. 

Hobbs, 60 F.4th 1039, 1043 (7th Cir. 2023). 

6 Doe and A.B. also argue that the district court erred in denying leave 

to amend their complaint. Because we affirm the grant of summary judgment to the defendants, even in light of the proposed amendment, we 

need not address this argument. 
No. 22-1501 7

A. Fourteenth Amendment Claim

Doe argues he had a clearly established right to privacy in 

his sexual preference or gender identity, relying primarily on 

Wolfe v. Schaefer, 619 F.3d 782 (7th Cir. 2010), Denius v. Dunlap, 

209 F.3d 944 (7th Cir. 2000), and Schaill ex rel. Kross v. Tippecanoe County School Corp., 864 F.2d 1309 (7th Cir. 1989), 

amended, Feb. 14, 1989. At oral argument, however, Doe’s 

counsel admitted that at the time of the challenged conduct,

no authority clearly established a right to withhold gender 

identity from a partner. Oral Arg. at 9:23–9:43, 10:28–10:30, 

11:06–11:22. Even so, to Doe, there is a clear trend in the case 

law such that recognition of a right to privacy in one’s sexual 

preference or gender identity was merely a matter of time. 

The defendants respond that Doe has waived the issue by 

failing to engage with the district court’s reasoning in his 

briefing. Even assuming the issue has not been waived, we 

hold that the defendants are entitled to qualified immunity.

There was no clearly established right to privacy in one’s sexual preference or gender identity during a criminal or child 

welfare investigation at the time of the underlying conduct, 

nor is there now. 

“The doctrine of qualified immunity 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.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017) 

(cleaned up) (quoting Pearson v. Callahan, 555 U.S. 223, 231 

(2009)). We assess claims of qualified immunity under a twopart test. See id. The plaintiff bears the burden of showing that 

(1) a statutory or constitutional right was violated and (2) that 

right was clearly established at the time of the relevant 
8 No. 22-1501 

conduct. See id. This court may address whether a right was 

clearly established before addressing whether the right was 

violated. Id. at 351. 

“To be clearly established at the time of the challenged 

conduct, the right’s contours must be sufficiently clear that 

every reasonable official would have understood that what he 

is doing violates that right ... .” Id. (quoting Gustafson v. 

Adkins, 803 F.3d 883, 891 (7th Cir. 2015)). A plaintiff is not required to present an identical case concluding that the challenged conduct was unlawful, “but existing precedent must 

have placed the statutory or constitutional question beyond 

debate.” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) 

(per curiam)). We first assess “controlling Supreme Court 

precedent and our own circuit decisions on the issue.” Id. 

(quoting Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 

2000)). If there is no controlling Supreme Court precedent, 

“we broaden our survey to include all relevant caselaw in order to determine whether there was such a clear trend in the 

caselaw that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.” Id. (cleaned up) (quoting Jacobs, 215 F.3d at 767). 

Allegedly violated rights must be defined at the appropriate 

level of specificity. Id. “[T]he dispositive question is whether 

the violative nature of the particular conduct is clearly established.” Id. (cleaned up) (quoting Mullenix, 577 U.S. at 12).

A general recognition of a privacy right in certain medical 

or sexual information is not enough to show a more specific 

privacy right in one’s sexual preference or gender identity 

during a criminal or child welfare investigation, especially 

one involving allegations of child sexual abuse. Cf. Anderson 

v. Romero, 72 F.3d 518, 523 (7th Cir. 1995) (observing that 
No. 22-1501 9

evidence showing that the defendants “would have known 

that disclosing some medical records in some circumstances” 

was insufficient to show the asserted right was clearly established). The right to privacy in the disclosure of personal matters has its origins in Whalen v. Roe, 429 U.S. 589 (1977). The 

Supreme Court in Whalen addressed whether New York 

could, consistent with the Fourteenth Amendment, record the 

names and addresses of individuals who obtained certain 

drugs for which there was both a legal and illegal market. Id. 

at 591. In holding that the scheme did not “constitute an invasion of any right or liberty protected by the Fourteenth 

Amendment,” the Court referred to an “individual interest in 

avoiding disclosure of personal matters.” Id. at 599, 603–04. 

This court has interpreted Whalen “to recognize a constitutional right to the privacy of medical, sexual, financial, and 

perhaps other categories of highly personal information ... .” 

Wolfe, 619 F.3d at 785. In Wolfe, a former electoral candidate

sued his opponent alleging he violated the Fourteenth 

Amendment by publicly disclosing that the candidate was 

under investigation for possible violations of Illinois law. Id. 

at 783. This court affirmed dismissal of the case, id. at 786, explaining that the Supreme Court’s rejection of a liberty or 

property right in one’s reputation cast doubt on the existence 

of a right to informational privacy premised on the protection 

of this information under state law. See id. at 785. Though this 

court in Wolfe acknowledged that it had interpreted Whalen to 

announce a right of informational privacy, Wolfe did not 

clearly establish a right to privacy in one’s sexual preference 

or gender identity in the context presented here. 

Nor did Denius or Schaill address the disclosure of similar 

information during a criminal or child welfare investigation. 
10 No. 22-1501 

In Denius, an employer conditioned renewal of an employer 

contract on consent to release certain confidential information. 209 F.3d at 948–49. An employee who refused to sign 

the authorization and whose employment contract was therefore not renewed asserted a violation of the Fourteenth 

Amendment. Id. at 949. This court held that “to the extent that 

the Authorization provided for the release of medical records 

or communications, [the employer] was on notice that this 

type of information has constitutional protection[,]” defeating 

qualified immunity. Id. at 956–57 (footnote omitted). But a reasonable official would not have understood, based on Denius, 

that the disclosure of one’s sexual preference or gender identity during a criminal or child welfare investigation was unlawful. Similarly, Schaill recognized that the disclosure of a 

student-athlete’s medical information in the event of a positive urine test may violate the right to privacy depending on 

the scope of the dissemination. 864 F.2d at 1322 n.19. Neither 

of these decisions implicated the disclosure of medical or otherwise confidential information during a criminal or child 

welfare investigation. 

We also cannot say that controlling precedent makes evident that such a right is simply a question of time. Kemp, 877 

F.3d at 351. The plaintiffs cite Obergefell v. Hodges, 576 U.S. 644 

(2015), United States v. Windsor, 570 U.S. 744 (2013), and Lawrence v. Texas, 539 U.S. 558 (2003), but those decisions do not 

address any right to protect one’s sexual preference or gender 

identity from disclosure during a criminal or child welfare investigation. We therefore agree with the district court’s cogent 

reasoning on Doe’s Fourteenth Amendment claim and its 

grant of summary judgment on this claim to the defendants. 
No. 22-1501 11

B. Fourth Amendment Claim

The district court also granted summary judgment to Gray 

on the plaintiffs’ Fourth Amendment claim, relying in part on 

the fact that Doe and A.B. never provided financial support to 

R.M. or Brewer. In the text messages between R.M. and A.B. 

the plaintiffs see a dispute of material fact about what Gray 

knew at the time of the arrest to establish probable cause. 

They also aver that given such material factual disputes, a 

qualified immunity determination is a jury issue. 

The defendants respond that the plaintiffs have waived 

these arguments. On the merits, the defendants argue that 

even if Gray knew about some of the text messages, the totality of the circumstances still supported probable cause. Gray 

is otherwise entitled to qualified immunity, the defendants 

contend, because he relied on the advice of counsel in determining whether he had probable cause for the arrests. 

Assuming Doe and A.B. have not waived their challenges, 

we first discuss probable cause, and then consider whether it 

exists under the factual circumstances here. 

Probable Cause. Probable cause for an arrest serves as “an 

absolute defense to any § 1983 claim against a police officer 

for false arrest.” Braun v. Village of Palatine, 56 F.4th 542, 548 

(7th Cir. 2022) (quoting Jump v. Village of Shorewood, 42 F.4th 

782, 788 (7th Cir. 2022)). “Probable cause to arrest exists ‘when 

the facts and circumstances that are known to [the officer] reasonably support a belief that the individual has committed, is 

committing, or is about to commit a crime.” Id. (quoting 

Holmes v. Village of Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 

2007)). It “deals with probabilities and depends on the totality 

of the circumstances.” District of Columbia v. Wesby, 138 S. Ct. 
12 No. 22-1501 

577, 586 (2018) (quoting Maryland v. Pringle, 540 U.S. 366, 371 

(2003)). It “is not a high bar,” id. (quoting Kaley v. United States, 

571 U.S. 320, 338 (2014)), and “requires only a probability or 

substantial chance of criminal activity, not an actual showing 

of such activity[,]” id. (quoting Illinois v. Gates, 462 U.S. 213, 

243 n.13 (1983)). 

“The existence of probable cause ... depends, in the first 

instance, on the elements of the predicate criminal offense(s) 

as defined by state law.” Abbott, 705 F.3d at 715. By definition, 

an affirmative defense is not an element of the offense. See Dollard v. Whisenand, 946 F.3d 342, 355 (7th Cir. 2019). Although 

officers “may not ignore conclusively established evidence of 

the existence of an affirmative defense,” the Fourth Amendment does not require them to investigate the validity of these 

defenses. Id. (cleaned up) (quoting McBride v. Grice, 576 F.3d 

703, 707 (7th Cir. 2009)). 

Neglect of a Dependent. Under Indiana law, “[a] person having the care of a dependent, whether assumed voluntarily or 

because of a legal obligation,” commits neglect of a dependent 

where he or she knowingly or intentionally “deprives the dependent of necessary support.” IND. CODE § 35-46-1-4(a)(3).7

“Support” under the statute is defined as “food, clothing, 

shelter, or medical care.” IND. CODE § 35-46-1-1. The term 

“necessary support” as used in the provision means “essential, indispensable or absolutely required food, clothing, shelter and medical care; i.e., food, clothing, shelter, and medical 

care without which the dependent’s life or health is at risk or 

endangered.” Ricketts v. State, 598 N.E.2d 597, 600 (Ind. Ct. 

7 All citations to statutes are to those versions in effect at the time of 

the conduct leading to the arrests. 
No. 22-1501 13

App. 1992). To deprive a dependent of support, a defendant 

“must have actively denied” the support and have “been 

aware of a high probability” that he or she was doing so. Mallory v. State, 563 N.E.2d 640, 643 (Ind. Ct. App. 1990). “A parent 

is charged with an affirmative duty to care for [a] child[,]” and 

“[t]he standard of care is what a reasonable parent would do 

or not do under the circumstances.” Id. at 644. 

The Indiana Court of Appeals has suggested that evidence 

supporting a neglect conviction may include that a child’s diet 

subjected his or her health or life to a risk or danger that was 

actual or appreciable. In Ricketts, the Indiana Court of Appeals 

held that neglect convictions could not be sustained under the 

provision exclusively based on evidence that the defendant’s 

children suffered from malnutrition. Id. at 601. That court observed that “there is a critical difference between malnutrition 

in the sense of poor nutrition and malnutrition which endangers or places at risk a dependent’s health or life.” Id. Since 

only the former was shown, the conviction was vacated. See 

id. at 601–02. But had the state “introduced evidence that the 

children’s diet subjected their health or their lives to a risk or 

danger that was actual and appreciable,” the outcome may 

have been different. Id. at 601 n.6. 

Under the totality of the circumstances, Gray had probable 

cause to arrest Doe and A.B. for neglect of a dependent, 

despite the text messages. We focus our attention on the deprivation of necessary food as opposed to any alleged deprivation of necessary shelter. Gray knew from R.M.’s interview 

that Doe had allegedly told R.M. to stay at M.B.’s home. Likewise, Gray knew that A.B. had dropped off food for R.M. at 

the Brewer home. Doe and A.B. were therefore aware that 

R.M. was living with the Brewers. There is at least a genuine 
14 No. 22-1501 

issue of material fact as to whether a reasonable officer could 

have believed they knowingly deprived R.M. of shelter without which his life or health was at risk or endangered. 

But there was a substantial probability that Doe and A.B. 

knowingly or intentionally deprived R.M. of necessary food. 

Deprivation turns on whether a reasonable officer could have 

concluded that R.M. was not allowed to return home. A victim’s report need not be “unfailingly consistent to provide 

probable cause.” Spiegel v. Cortese, 196 F.3d 717, 725 (7th Cir. 

1999). Although an officer should conduct further investigation if “information from or about a [putative] victim of crime 

would lead a reasonable officer to be suspicious,” an officer 

“need not exclude every suggestion that a victim is not telling 

the truth.” Id. at 724 (quoting Hebron v. Touhy, 18 F.3d 421, 

422–23 (7th Cir. 1994)). Potential inconsistencies between 

R.M.’s testimony and the text messages did not require additional investigation or undermine probable cause. Gray knew 

that R.M. previously had been told not to return home, as well 

as that Brewer took R.M. to pick up a bag of his clothing left 

for him outside the home. A reasonable officer could have 

concluded from these facts that R.M. was not allowed to return home, despite text messages suggesting he voluntarily 

chose not to return. 

A reasonable officer also could have concluded that R.M.’s 

health was endangered by being unable to obtain food from 

Doe and A.B.’s home. Doe and A.B. do not direct this court to 

any evidence Gray knew that R.M. was eating at the Brewer 

house. Nor is there evidence in the record that Doe ever asked 

R.M. if he had anything to eat, and A.B. only asked R.M. once 

whether he wanted food, to which he responded affirmatively. A.B. provided R.M. with food once over the course of 
No. 22-1501 15

approximately eleven days. From these facts, Gray had probable cause believe that Doe and A.B. knew that they had 

deprived R.M. of necessary food, supporting their arrests for

neglect of a dependent. 

Nonsupport of a Dependent Child. An individual who 

“knowingly or intentionally fails to provide support to the 

person’s dependent child” commits nonsupport of a dependent child under Indiana law. IND. CODE § 35-46-1-5(a). “Support” carries the same definition of “food, clothing, shelter, or 

medical care,” as used in the provision for neglect of a dependent. See IND. CODE § 35-46-1-1. The provision for nonsupport of a dependent child also provides:

It is a defense that the child had abandoned the 

home of the child’s family without the consent 

of the child’s parent or on the order of a court, 

but it is not a defense that the child had abandoned the home of the child’s family if the cause 

of the child’s leaving was the fault of the child’s 

parent.

§ 35-46-1-5(b). Although Indiana courts have not decided this 

issue, Indiana Pattern Jury Instruction No. 7.0740 specifies 

that the defendant bears the burden of proof on this defense 

and that it does not negate any element of the crime. Therefore, unless the evidence conclusively established the defense, 

Gray need not have considered it when assessing probable 

cause. See Dollard, 946 F.3d at 355. 

The totality of the circumstances also supports probable 

cause for the arrests for nonsupport of a dependent child. Doe 

and A.B. failed to provide R.M. with food while he was out of 

their home, except on one occasion. Moreover, the evidence 
16 No. 22-1501 

did not conclusively establish the affirmative defense that 

R.M. abandoned the home. This is because R.M. alleged that 

he had been kicked out of the home previously and on the 

occasion, and Brewer stated that she had driven R.M. to pick 

up a bag of clothes that had been left for him on the porch. 

Gray therefore had probable cause to support arrests for nonsupport of a dependent child.8 Because there was probable 

cause for the arrests, we need not address qualified immunity.9

C. State Law Claim

The district court ruled that Gray was immune from suit 

in his official capacity under the ITCA on Doe’s intentional 

infliction of emotional distress claim. Doe challenges this ruling, contending that Gray was not adopting or enforcing a law 

when he disclosed Doe’s sexual preference or gender identity. 

Even assuming the argument has not been waived, we affirm 

the district court.

Indiana Code § 34-13-3-3(8)(A) provides that a tort claim 

may not be brought against a public employee “acting within 

the scope of the employee’s employment” if the loss results 

from “[t]he adoption and enforcement of ... a law.” Indiana 

courts have defined “enforcement” to mean “compelling or 

8 In assessing probable cause for both offenses, the district court need 

not have considered whether Doe and A.B. provided financial support to 

R.M. or Brewer. Neither offense defines “support” as including money.

See IND. CODE § 35-46-1-1; see also Geans v. State, 623 N.E.2d 435, 437 (Ind. 

Ct. App. 1993).

9 Any argument that may have been available under Heck v. Humphrey, 512 U.S. 477 (1994), related to the Fourth Amendment claim has been 

waived.
No. 22-1501 17

attempting to compel the obedience of another to laws, rules, 

or regulations, and the sanctioning or attempt to sanction a

violation thereof.” Johnson ex rel. Ind. Dep’t of Child Servs. v. 

Marion Cnty. Coroner’s Office, 971 N.E.2d 151, 158 (Ind. Ct. 

App. 2012) (quoting St. Joseph Cnty. Police Dep’t v. Shumaker, 

812 N.E.2d 1143, 1150 (Ind. Ct. App. 2004)). “An employee’s 

scope of employment consists of activities involving the pursuit of the governmental entity’s purpose.” King v. Ne. Sec., 

Inc., 790 N.E.2d 474, 483 (Ind. 2003). Thus, Indiana courts have 

specified that “a governmental entity will be immune only for 

adopting or enforcing ... a law, rule, or regulation within the 

scope of the entity’s purpose or operational power.” Johnson, 

971 N.E.2d at 158 (quoting Shumaker, 812 N.E.2d at 1150). 

We understand Doe’s concession in the district court—

that Gray was entitled to immunity under the ITCA in his individual capacity—to mean there is no dispute that Gray 

acted within the scope of his employment. See IND. CODE § 34-

13-3-5(a). So, we address only whether Gray was enforcing a 

law within the scope of the Starke County Sheriff’s Department’s purpose or operational power. 

Arrestee interviews are within the scope of the Starke 

County’s Sheriff’s Department’s operational power. See IND.

CODE § 36-8-10-9(a)(1), (2) (providing that each member of the 

sheriff’s department has “general police powers” and shall 

detain offenders “until the cause of the arrest has been investigated”). The transcript of Gray’s interview with A.B. reveals 

that he disclosed information about Doe in the context of informing her that federal officers would be investigating the 

falsification of K.B.’s birth certificate. Even if enforcing federal 

law was not within the scope of the Starke County Sheriff’s 

Department’s operational power, this information was also 
18 No. 22-1501 

related to the state investigation of alleged neglect and nonsupport as well as possible child sexual abuse of a dependent 

child. As part of that investigation, Doe and A.B.’s children 

would be placed with other individuals. Gray told A.B. during the interview that the children’s placement needed to be 

reevaluated, which was why he needed to speak with A.B. For 

purposes of child placement, therefore, it was relevant to 

identify K.B.’s father. Gray thus provided information about 

Doe to A.B. while enforcing state law within the scope of the 

Starke County Sheriff’s Department’s operational power. 

Gray is entitled to immunity under the ITCA. Accordingly, 

the Starke County Sheriff’s Department is also immune from 

the plaintiffs’ state law claim. See Minks v. Pina, 709 N.E.2d 

379, 382 (Ind. Ct. App. 1999). 

III. Conclusion

The defendants are entitled to qualified immunity, as 

there is no clearly established right to privacy in one’s sexual 

preference or gender identity during a criminal or child welfare investigation. The totality of the circumstances provided 

probable cause for the arrests of Doe and A.B., and the Indiana Tort Claims Act provides Gray immunity from plaintiffs’ 

Indiana intentional infliction of emotional distress claim. For 

these reasons, we AFFIRM.