383 F. Supp. 3d 826
S.D. Ind.2019Background
- May 29, 2016: Charles Todero, apparently suffering mental distress, walked into traffic in Greenwood, IN; callers reported possible suicide attempts and Officer Blackwell responded.
- Blackwell encountered Todero sitting with a Bible, who spoke about religion and then walked into the street; Blackwell warned then deployed his Taser repeatedly.
- Taser logs show 16 trigger pulls over about four minutes; after initial discharges Todero was on the ground with hands under him when Officers Elliott and Laut arrived and assisted in restraining and handcuffing him.
- Fire/EMS sedated Todero and transported him to the hospital; he died on June 11, 2016.
- Plaintiff Teresa Todero (special administrator) sued under 42 U.S.C. § 1983 for excessive force, failure to intervene, and conspiracy, plus state-law claims; defendants moved for summary judgment.
- The court denied summary judgment as to excessive force against Blackwell and failure-to-intervene against Elliott and Laut; granted summary judgment for Elliott and Laut on excessive force and conspiracy; granted Monell defense for the City; resolved certain state-law claims accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive force (Blackwell) | Blackwell tased passively resisting, possibly mentally ill Todero many times; such repeated Taser use violates the Fourth Amendment | Blackwell contends Todero was not merely passive, the situation was evolving and dangerous, and precedent does not clearly bar Taser use here | Denied summary judgment for Blackwell on excessive-force; qualified immunity not available because existing Seventh Circuit law gave fair warning that repeated Tasing of a passive, nonviolent suspect is unlawful |
| Excessive force (Elliott & Laut) | Officers used substantial force during handcuffing and dropped Todero's head on curb; conduct violated clearly established law | Officers argue they arrived to an ongoing struggle, reasonably perceived resistance, and are entitled to qualified immunity | Granted summary judgment for Elliott and Laut on excessive-force claim; they are entitled to qualified immunity |
| Failure to intervene (Elliott & Laut) | Officers heard or observed many Taser discharges and could have stopped Blackwell; they had a realistic opportunity to intervene | Defendants say they were actively engaged in restraining and had no realistic opportunity to intervene | Denied summary judgment for Elliott and Laut on failure-to-intervene; factual disputes about awareness and opportunity preclude resolution now |
| Monell liability (City of Greenwood) | City policies/training/custom permitted or failed to prevent excessive Taser use; prior incidents show a pattern or deliberate indifference | City argues policy did not mandate Tasing passive resistors, training existed, and there is no pattern or deliberate indifference sufficient for Monell | Granted summary judgment for City on Monell claims; record fails to show an official policy, custom, or pattern of constitutional violations or deliberate indifference sufficient to impose municipal liability |
Key Cases Cited
- Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir. 2010) (Tasering a possibly mentally ill, passively noncompliant person multiple times can violate the Fourth Amendment)
- Abbott v. Sangamon County, Illinois, 705 F.3d 706 (7th Cir. 2013) (repeated Taser deployment on a passively noncompliant misdemeanant can be excessive force; qualified immunity denied)
- Phillips v. Community Insurance Corp., 678 F.3d 513 (7th Cir. 2012) (substantial escalation of force to compel passive compliance is incompatible with Fourth Amendment limits)
- Smith v. Ball State University, 295 F.3d 763 (7th Cir. 2002) (arriving officer may lawfully use force when reasonably believing a fluid struggle is ongoing)
- Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005) (failure-to-intervene requires awareness and realistic opportunity; such questions are typically for the jury)
- Monell v. Department of Social Services, 436 U.S. 658 (U.S. 1978) (municipal liability only for official policy, custom, or deliberate training failure that is the moving force behind the violation)
- Connick v. Thompson, 563 U.S. 51 (U.S. 2011) (failure-to-train liability requires a pattern of similar constitutional violations except in rare, obvious cases)
- Kisela v. Hughes, 138 S. Ct. 1148 (U.S. 2018) (qualified immunity requires that the unlawfulness be clearly established in relation to the specific facts confronted)