Manuel R. MORFIN, Plaintiff-Appellant,
v.
CITY OF EAST CHICAGO, Robert A. Pastrick, in his official capacity as Mayor of the City of East Chicago, Frank Alcala, individually and in his official capacity as East Chicago Police Chief, et al., Defendants-Appellees.
No. 02-3113.
United States Court of Appeals, Seventh Circuit.
Argued April 15, 2003.
Decided November 18, 2003.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Ivan E. Bodensteiner (Argued), Valparaiso, IN, for Plaintiff-Appellant.
Anthony DeBonis, Jr. (Argued), Smith & DeBonis, Highland, IN, Frank R. Callahan, East Chicago, IN, Michael W. Bosch (Argued), Bamber, Bosch & Banasiak, Hammond, IN, James A. Greco, Sr. (Argued), Greco, Bishop & Kuechenberg, Merrillville, IN, for Defendants-Appellees.
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge.
Manuel R. Morfin brought this action pursuant to 42 U.S.C. § 1983 and Indiana state law for alleged constitutional violations and other torts resulting from his arrest and detention in May 1999. The defendants moved for summary judgment on all of Mr. Morfin's claims, and the district court granted the defendants' motion. Mr. Morfin appealed. We now affirm in part and reverse and remand in part.
* BACKGROUND
A. Facts
1. Undisputed facts
The facts of this case concern events leading up to the Democratic primary for the mayoral race in the City of East Chicago, Indiana, on May 4, 1999. In that election, Stephen Stiglich was challenging the incumbent mayor, Robert Pastrick. At that time, Mr. Morfin was a mechanic and head custodian for the Lake County Election Board ("Election Board"). He had been appointed to that position by Stiglich. Mr. Morfin also was a supporter of the Stiglich campaign.
On the evening of May 3, 1999, Mr. Morfin and another Election Board mechanic, Roy Shaffer, were eating dinner at a fast-food restaurant when Mr. Morfin received a call from Chris Lincoln, another Election Board employee. Lincoln reported that there had been a problem with the voting machines at one of the polling locations. Mr. Morfin and Shaffer drove to that location, a barbershop, to determine if there were problems with the machines. When they arrived at the barbershop, Mr. Morfin and Shaffer were stopped by Officer Andrew Kovats. The parties dispute the events that followed.
2. Events according to Mr. Morfin
As Mr. Morfin and Shaffer entered the barbershop, Officer Kovats1 addressed them and said, "`I'm taking fingerprints. Don't touch the machines.'" Morfin Dep. at 29. Mr. Morfin then introduced himself as a mechanic for the Election Board and stated: "I'm not going to touch them, I just want to check the seals to see if they're not broken." Id. at 34. As Mr. Morfin was introducing himself, a second officer, who Mr. Morfin later identified as Officer Louis Arcuri, arrived on the scene.
Officer Kovats acquiesced in Mr. Morfin's request. After checking the machines, Mr. Morfin then informed Officer Kovats that he was going to plug the machines in "`to see if the window of the voting machine sa[id] "check ballot."'" Id. at 35.2 Officer Kovats did not attempt to stop Mr. Morfin in any way.
At about the same time as Mr. Morfin was plugging in the voting machines, Kevin Pastrick, who everyone present knew both as Mayor Pastrick's son and as being involved in his father's re-election bid, appeared at the threshold of the barbershop. See Morfin Dep. at 38. Kevin Pastrick was talking on his cellular telephone and informed the party to whom he was speaking that "Rick is in here." Id. at 39. Kevin Pastrick then told Officer Kovats to "[r]emove Rick, get him out of there." Id. at 40.3 Mr. Morfin, however, did not leave, which prompted Kevin Pastrick to tell the party he was speaking to: "`Tell Justin Rick won't leave.'" Id.4
Mr. Morfin then attempted to tell Officer Kovats that there was nothing wrong with the machines. Kevin Pastrick, however, told Officer Kovats that Mr. Morfin was interfering with the investigation of machine tampering. Mr. Morfin attempted to explain to Kevin Pastrick that he was not interfering with the investigation, but was assisting by checking the machines. Mr. Morfin then invited Kevin Pastrick to come and look at the machine to verify what he (Mr. Morfin) had been reporting. Kevin Pastrick did not move, but told Officer Kovats "`Rick is interfering with the investigation, with evidence, have him arrested.'" Id. at 57.
After this last instruction from Kevin Pastrick, Officers Kovats and Arcuri grabbed Mr. Morfin, twisted his arm, shoved him against the wall and took him to the floor. Id. at 59-60. To this point, Mr. Morfin had not resisted any police action and informed the officers, "`I'm going peacefully, you don't have to put handcuffs on me.'" Id. It was only after the officers took Mr. Morfin to the floor that Mr. Morfin crossed his arms on his chest to prevent the officers from handcuffing him. Id. at 105.
During the time that Mr. Morfin was in the barbershop, Officer Kovats called the East Chicago Police Department ("ECPD") seeking guidance on what Mr. Morfin's authority was and how he should be treated. Officer Kovats first spoke with Frank Alcala, chief of the ECPD. According to Chief Alcala, the telephone call was interrupted because Mr. Morfin was attempting to take control of the voting machines.5 Chief Alcala then turned the call over to Thomas Ryan, the ECPD legal advisor. Ryan, however, was unsure of the legal authority of Mr. Morfin and simply told Officer Kovats to do his job as a police officer. After Ryan spoke with Officer Kovats, Chief Alcala also told Officer Kovats to do his job. Officer Kovats then informed Chief Alcala that he was going to arrest Mr. Morfin for interfering with the scene.
Mr. Morfin was transported to the ECPD that evening by Officer Clarence Anderson. Mr. Morfin then spent several hours in a cell at the police department and was released on his own recognizance. The arrest report indicated that Mr. Morfin was arrested for resisting law enforcement, in violation of Ind.Code § 35-44-3-3(a)(1), and disorderly conduct, in violation of Ind.Code § 35-45-1-3(2).6 Formal charges never were filed against Mr. Morfin either by the Lake County Prosecutor or a special prosecutor.
3. Events according to defendants
The defendants relate a very different version of events. According to the defendants, Officer Kovats was dusting the crime scene for fingerprints when Mr. Morfin arrived. Mr. Morfin announced that he worked for the Election Board and showed identification. See Kovats Dep. (8/14/01) at 28. He assured Officer Kovats that he would not touch anything, but just wanted to check the seals on the machines; Officer Kovats agreed. Shortly after this discussion, Officers Arcuri and Anderson arrived on the scene. See id. at 19.
At that point, Mr. Morfin informed Officer Kovats that he (Mr. Morfin) was taking over the crime scene. See id. at 31. Officer Kovats asked Mr. Morfin on what authority he could take such an action; without responding directly, Mr. Morfin told Officer Kovats that he would be taking the machines. See id. At that point, Officer Kovats interrupted and instructed Mr. Morfin to wait a minute while he made a phone call. Officer Kovats then called the ECPD and spoke with Ryan. While Officer Kovats was on the phone, Mr. Morfin started to remove the maсhines; Officer Kovats instructed him to stop. Mr. Morfin did not do so, and Officer Kovats told Mr. Morfin "to stop touching the machines." Id. at 44. Mr. Morfin responded: "`F____ you. This crime scene belongs to me now and I'm taking the machines.'" Id. At that point, Officer Kovats instructed Mr. Morfin to "[g]et out of my crime scene" and told Mr. Morfin that this was his last warning. Id. Mr. Morfin flat-out refused to leave at which point he placed Mr. Morfin under arrest. Mr. Morfin, instead of cooperating with the officers, refused the officers' instruction to place his hands behind his back. See id. He also crossed his arms at his chest so as to prevent the officers7 from effecting the arrest. He then told the officers that they did not know who they were "messing with," and that he was "protected by important people." Id. at 45.
After he was handcuffed, Mr. Morfin calmed down and was transported to jail by Officer Anderson. According to the defendants, although Kevin Pastrick may have arrived at the barbershop at some time, he did not enter the barbershop, he did not give any orders, and the officers did not follow any instructions given by Kevin Pastrick.
B. District Court Proceedings
Mr. Morfin filed a complaint in district court against the City of East Chicago, Mayor Pastrick, Chief Alcala, Officer Kovats, Officer Arcuri, Officer Anderson and Kevin Pastrick. Specifically, Mr. Morfin set forth his version of the events of the evening of May 3, 1999, and claimed that "[t]he challenged actions of the defendants and their agents were taken against Mr. Morfin because of his support of Stiglich, Mayor Pastrick's opponent in the 1999 democratic primary election." R.1 at ¶ 13. Furthermore, continued Mr. Morfin, the alleged actions were in violation of "the first, fourth and fourteenth amendments to the U.S. Constitution, which the plaintiff seeks to enforce pursuant to 42 U.S.C. § 1983, Art. 1, §§ 9, 11, 12 and 15 of the Indiana constitution, and Indiana tort law." Id. at ¶ 15.
The defendants moved for summary judgment on all claims, and the district court rendered judgment in the defendants' favor. The district court believed that its first task was "to determine whether probable cause existed for the charges or a closely related charge which formed the basis for Morfin's arrest." R.114 at 14. Looking to the first charge of resisting law enforcement, which the distriсt court acknowledged required a showing of forcible resistance, the district court found that Mr. Morfin "persisted in attempting to control the scene and began to touch the machines after being instructed not to do so.... He ignored Officer Kovats [sic] repeated instructions to leave the scene, which led the officers to make the determination to arrest him." Id. at 17. As well, the district court explained that
a struggle ensued in light of Mr. Morfin's refusal to comply with the order of both Officer Davis and Officer Kovats to leave the barbershop (Davis p. 39). Rather than comply, Morfin refused to leave the scene and allow the criminal investigation continue. Morfin does not dispute that he was ordered not to touch the machines in light of the ongoing criminal investigation begun by Officer Kovats. Furthermore, Morfin does not dispute the testimony of both Officer Kovats and Officer Davis that the struggle did not begin until after their order to leave the building was ignored by him (Davis p. 40).
Id.8 The district court then held that
[a]n officer has the right to enforce a lawful order, such as securing a potential crime scene, and in turn if an individual through force refuses to obey such an order an arrest is entirely proper.... Furthermore, under clear Indiana precedent, a law enforcement officer has probable cause to arrest an individual who struggles and resists an officer while engaging in his official duties.
R.114 at 17-18 (citing Potts v. City of Lafayette,
The district court also found that there was probable cause to arrest Mr. Morfin for disorderly conduct because he engaged "in fighting or in tumultuous conduct." Id. at 18. According to the district court, this was shown by Mr. Morfin's repeated refusals to stop touching the voting machines, his protestations that the evidence belonged to him, his use of vulgarity with the police, and the struggle that ensued. Consequently, the arresting officers, Officers Kovats and Arcuri, had not committed any Fourth Amendment violation.9
Turning to the other defendants in the case, the district court first determined that Officer Anderson played no role in the arrest of Mr. Morfin and therefore could not be liable for any wrongdoing at the time of arrest. At the very least, the court concluded, Officer Anderson had qualified immunity because he merely was dispatched to the barbershop and proceeded to transport Mr. Morfin to the ECPD.
With respect to the alleged involvement of Kevin Pastrick, the district court engaged in a slightly more detailed analysis. Relying on NCAA v. Tarkanian,
were unfortunate, inappropriate and probably only fueled the adamancy of Morfin to attempt to exert his control over the voting machines, there is no evidence in this record that they had any impact on the officers' decision to make the arrest. The officers were under no obligation to follow the recommendations made by Pastrick. Indeed the record reflects that his recommendations played no role in the decision to make the arrest.
R. 114 at 22 (citing Kovats' deposition).
The court then addressed the liability of Chief Alcala. Although the court acknowlеdged that, under certain circumstances, a state actor's failure to intervene renders him liable under § 1983, this was not such a case. First, the court found that there could be no liability against Chief Alcala because there was probable cause for the arrest. "Further," continued the district court,
even if there had been a constitutional violation, Chief Alcala's personal involvement in the matter consisted of merely turning the phone over to Tom Ryan the ECPD's legal advisor and later telling Officer Kovats' [sic] his job. Thus, Morfin's claim based on Chief Alcala's alleged failure to intervene in his arrest is without merit.
Id. at 25.
Finally, the court addressed Mr. Morfin's excessive force and First Amendment claims. The court found that, given the totality of the circumstances, specifically Mr. Morfin's continued refusal to leave the premises, the struggle that preceded his arrest and the fact that Mr. Morfin suffered no injury, the force was not excessive. Additionally, the district court found that the officers were entitled to qualified immunity because "based upon the factual record these ECPD officers did not violate any clearly established rule prohibiting such conduct." Id. at 29. Finally, the district court found that, because there was probable cause for the arrest, Mr. Morfin's First Amendment claim (that his arrest was motivated by his support of candidate Stiglich) must fail.10
Mr. Morfin timely appealed.
II
ANALYSIS
A. Standard of Review
We review de novo a district court's decision to grant summary judgment. See Remer v. Burlington Area Sch. Dist.,
B. Fourth Amendment Claims
1. Probable cause
Mr. Morfin first submits that genuine issues of material fact precluded the district court from entering summary judgment on behalf of the defendants with respect to his Fourth Amendment false arrest claim. Specifically, Mr. Morfin maintains that the arresting officers did not have probable cause to arrest him either for the offense of resisting law enforcement or for the offensе of disorderly conduct as those offenses are defined under Indiana law. See Ind.Code §§ 35-44-3-3(a)(1), 35-45-1-3(2).
"It is well settled that the actual existence of probable cause to arrest precludes a § 1983 suit for false arrest." Juriss v. McGowan,
The defendants first maintain that there was probable cause to arrest Mr. Morfin on the charge of "resisting law enforcement" pursuant to Ind.Code § 35-44-3-3(a)(1). "Resisting law enforcement" occurs when a person "knowingly or intentionally" "(1) forcibly resists, obstructs, or interferes with a law enforcement officer оr a person assisting the officers while the officer is lawfully engaged in the execution of his duties as an officer." Ind.Code § 35-44-3-3(a)(1). It is clear that under Indiana law the resistance must involve force, which occurs "when strong, powerful, violent means are used to evade a law enforcement official's rightful exercise of his or her duties." Spangler v. State,
In the present case, whether Mr. Morfin forcibly resisted Officer Kovats' orders or forcibly interfered with the investigation are matters of dispute among the parties. Taking the facts in the light most favorable to Mr. Morfin, as we must at the summary judgment stage, Mr. Morfin did not refuse any orders, much less do so with force. See Morfin Dep. at 121, 125.11 It is only if one accepts the defendants' version of events that Mr. Morfin was defiant (and physically so) in response to an officer's order to leave the premises. Consequently, a genuine issue of material fact exists regarding whether Mr. Morfin forcibly resisted Officer Kovats' orders and, therefore, whether the officers had probable cause to arrest Mr. Morfin for interfering with law enforcement.
The defendants also believe that there was probable cause to arrest Mr. Morfin for disorderly conduct. Disorderly conduct occurs when an individual "recklessly, knowingly, or intentionally" "(1) engages in fighting or in tumultuous conduct" or "(2) makes unreasonable noise and continues to do so after being asked to stop." Ind.Code § 35-45-1-3(1) & (2). The arrest report indicates that Mr. Morfin was arrested for violating subsection (2) of the statute.12 With respect to this subsection, Indiana courts have held that "the volume of [the arrestee's] speech is critical in determining whether it was unreasonable...." Johnson v. State,
Again, however, whether there was probable cause to believe that Mr. Morfin had engaged in disorderly conduct involving unreasonable noise depends on which version of events one accepts. At least one of the officers at the scene stated in his deposition that Mr. Morfin never raised his voice, see Davis Dep. at 30, and Mr. Morfin testified that he never directed any threats or obscenities toward the officers at the scene. One has to acсept the other officers' account of the events in order to conclude that Mr. Morfin raised his voice and was belligerent. However, such a credibility determination at the summary-judgment stage constitutes error. See Payne v. Pauley,
Finally, the defendants argue that the officers had probable cause to arrest Mr. Morfin for obstruction of justice, pursuant to Ind.Code § 35-44-3-4. A person commits obstruction of justice under Indiana law if that person "alters, damages, or removes any record, document, or thing, with intent to prevent it from being produced or used as evidence in any official proceeding or investigation." Ind. Code § 35-44-3-4(a)(3). According to the defendants, the arresting officers had probable cause to believe that Mr. Morfin had violated this provision because he expressed a desire to take over the investigаtion, told Officer Kovats that he was taking the voting machines and repeatedly refused to leave when asked to do so.
If, indeed, a jury were to accept the defendants' version of the facts, we would agree with the defendants that the officers had probable cause to arrest Mr. Morfin for obstruction of justice. However, Mr. Morfin disputes that he ever told the officers that he was going to take over the crime scene, that he was going to disassemble and take the voting machines, or that he would not leave the crime scene. As noted above, in determining whether the district court properly entered summary judgment, we must interpret the facts in the light most favorable to the non-moving party, here Mr. Morfin. Therefore, accepting the facts as forwarded by Mr. Morfin, there was no probable cause to believe that he engaged in an obstruction of justice.
In sum, the parties dispute the events leading to the arrest of Mr. Morfin; one account would support a finding of probable cause and justify a resulting arrеst, and the other would not. Consequently, a genuine issue of material fact exists concerning whether the arresting officers had probable cause. Therefore, the district court erred in granting summary judgment to Officers Kovats and Arcuri on Mr. Morfin's Fourth Amendment claim.13
2. Officer Anderson's involvement in the arrest
Mr. Morfin maintains that the district court also erred in granting summary judgment to Officer Anderson on Mr. Morfin's Fourth Amendment claim on the ground that Officer Anderson was not personally involved in the arrest. In his submissions to this court, however, Mr. Morfin barely mentions Officer Anderson and has failed to argue how Officer Anderson's involvement implicates him in the alleged constitutional violation. Therefore, we could affirm the district court's judgment in favor of Officer Anderson simply on the basis that Mr. Morfin has waived any argument with respect to Officer Anderson's liability. See, e.g., Sere v. Bd. of Trustees of the Univ. of Illinois,
3. Chief Alcala's alleged failure to intervene
Mr. Morfin next argues that the district court erred in granting summary judgment to Chief Alcala. According to Mr. Morfin, the law is clearly established that an officer has a duty to intervene to prevent a false arrest or the use of excessive force if the officer is informed of the facts that establish a constitutional violation and has the ability to prevent it. See Miller v. Smith,
Chief Alcala cannot be liable for any constitutional violations committed by his officers simply by virtue of his supervisory role. As we have explained on more than one occasion,
"[T]o be liable for the conduct of subordinates, a supervisor must be personally involved in that conduct." [Lanigan v. Vill. of E. Hazel Crest,
Chavez v. Illinois State Police,
If the record suggested that Chief Alcala had knowledge of faсts that would cause him to believe that Officer Kovats was about to make an unconstitutional arrest but failed to use his authority to stop the violation, his failure would result in liability under § 1983. However, we do not believe that the record, even when read in the light most favorable to Mr. Morfin, can support a conclusion that Chief Alcala had knowledge that an unlawful arrest (or any other constitutional violation) was imminent.
Only three individuals testified regarding Chief Alcala's telephone conversation with Officer Kovats: Officer Kovats, Chief Alcala and Ryan. Officer Kovats' deposition does not contain any reference to a specific conversation with Chief Alcala; according to Officer Kovats, he spoke with one or two people at the ECPD before being transferred to Ryan, with whom he had his only substantive conversation. Chief Alcala testified that he was informed by Officer Kovats "[t]hat Rick was disregarding a police order and was attempting to interrupt a crime scene and smudge prints — if there were any fingerprints оn the machines — to try to cover it up." Alcala Dep. at 84. Unsure about Mr. Morfin's authority, Chief Alcala turned the telephone over to Ryan. Finally, according to Ryan, Officer Kovats told him that Mr. Morfin wanted access to the machines, and, in the middle of the telephone conversation, "Mr. Morfin went for the machines and tried to take them." Ryan Dep. at 35. According to the evidence in the record, therefore, the only source of information for both Chief Alcala and Ryan concerning what was occurring in the barbershop on May 3, 1999, was Officer Kovats. Mr. Morfin does not point to any evidence in the record that establishes that Chief Alcala's knowledge of the events involving Mr. Morfin was broader than that reported to him by Officer Kovats. Similarly, Mr. Morfin fails to come forward with any evidence that Chief Alcala had a reason to question what Officer Kovats reported to him over the telephone. The record reflects that the only information known to Chief Alcala prior to the arrest was that Mr. Morfin was interfering with the сrime scene and ignoring the direct orders of police officers. Based on this information, Chief Alcala reasonably could have concluded that there was probable cause to arrest Mr. Morfin and that there was no reason to put Officer Kovats to further inquiry or to prevent him from arresting Mr. Morfin.
As noted above, the burden was on Mr. Morfin to come forward with specific facts in the record that demonstrated that there was a genuine issue of material fact for trial. There is no evidence in the record from which a jury could conclude that Chief Alcala was apprised of a different set of events at the barbershop, and "[s]peculation is insufficient to withstand summary judgment." Ortiz v. John O. Butler Co.,
4. Kevin Pastrick's alleged participation in the arrest
Mr. Morfin also maintains that the district court erred in entering summary judgment on behalf of Kevin Pastrick. Mr. Morfin points to the Supreme Court's decisions in Edmonson v. Leesville Concrete Co.,
The defendants concede "that a private individual could be held liable under Section 1983 upon a showing that the private individual and state actor(s) acted in concert or jointly in depriving a person of civil rights." Appellees' Br. at 44. However, the defendants maintain that there is no evidence in the record to suggest that any comment made by Kevin Pastrick influenced the officers to arrest Mr. Morfin. Furthermore, because the decision to arrest "occurred after Morfin's refusal to follow commands through the various officers' requests not to touch the voting machines," "any alleged statements attributed to Pastrick were not decisive." Id. at 46. We respectfully disagree.
"Although the conduct of private parties lies beyond the Constitution's scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of thе government and, as a result, be subject to constitutional constraints." Edmonson,
A private citizen may be considered a state actor for any number of reasons, for instance, "because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar,
We cannot say as a matter of law that, on the record before us, Kevin Pastrick did not act jointly with Officer Kovats in the arrest of Mr. Morfin. According to Mr. Morfin and Shaffer, Mr. Morfin cooperated with the officers in the barbershop and only examined the machines with the permission of Officer Kovats. There was no concern with respect to Mr. Morfin's actions until Kevin Pastrick arrived on the scene. Then, after Kevin Pastrick's repeated orders for Officer Kovats to arrest Mr. Morfin, Officers Kovats and Arcuri arrested Mr. Morfin. The combination of these events could lead a jury to conclude that, without the influence of Kevin Pastrick, Officer Kovats would not have arrested Mr. Morfin.
The present situation is not unlike the procedural and factual situation addressed by the Supreme Court in Adickes v. S.H. Kress & Co.,
in moving for summary judgment, Kress argued that "uncontested facts" established that no conspiracy existed between any Kress employee and the police. To support this assertion, Kress pointed first to the statements in the deposition of the store manager (Mr. Powell) that (a) he had not communicated with the police, and that (b) he had, by a prearranged tacit signal ordered the food counter supervisor to see that Miss Adickes was refused service only because he was fearful of a riot.... Kress also relied on affidavits from Hattiesburg chief of police, and the two arresting officers, to the effect that store manager Powell had not requested that petitioner be arrested. Finally, Kress pointed to the statements in petitioner's own dеposition that she had no knowledge of any communication between any Kress employee and any member of the Hattiesburg police, and was relying on circumstantial evidence to support her contention that there was an arrangement between Kress and the police.
Id. at 154-56,
If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Krеss employee had a "meeting of the minds" and thus reached an understanding that petitioner should be refused service.
Id. at 158,
Similarly, in this case, although there is no evidence of an overt agreement between Kevin Pastrick and Officer Kovats to arrest Mr. Morfin, Kevin Pastrick's presence at the scene, his urgent insistence concerning Mr. Morfin's arrest and the sequence of events leading to Mr. Morfin's arrest would allow a reasonable juror to conclude that Kevin Pastrick and Officer Kovats had reached a meeting of the minds that Mr. Morfin should be arrested or had acted jointly in doing so. Consequently, the district court erred in entering summary judgment for Kevin Pastrick on Mr. Morfin's Fourth Amendment claim.
C. Excessive Force
Mr. Morfin next contends that the district court erred when it entered summary judgment for the defendants on his excessive force claim. According to Mr. Morfin, genuine issues of material fact exist concerning whether the arresting officers used excessive force in effecting his arrest. After a review of the record, we conclude that there are disputed material facts with respect to this issue as well.
Because Mr. Morfin's claim of excessive force arises in the context of an arrest, we evaluate the officers' use of force according to the reasonableness standard of the Fourth Amendment. See Graham v. Connor,
Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of "`the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the countervailing governmental interests at stake. [Tennessee v. Garner,
Id. (citations and parallel citations omitted).
The district court found that Mr. Morfin repeatedly refused to obey police orders and attempted to evade the officers' attempt to place him under arrest. Consequently, the district court held, the force used by the officers was reasonable under the circumstances.
However, viewing the record in the light most favorable to Mr. Morfin, a jury could reach the opposite conclusion. According to both Mr. Morfin and Shaffer, Mr. Morfin did not pose a threat to the officers — he was docile and cooperative. Furthermore, Mr. Morfin did not resist arrest in any way prior to the officers' use of excessive force. Mr. Morfin testified that Officers Kovats and Arcuri grabbed him, twisted his arm, shoved him toward the wall and took him to the floor. See Morfin Dep. at 59-60. To this point, Mr. Morfin had not resisted any police action and informed the officers, "`I'm going peacefully, you don't have to put handcuffs on me."' Id. It was only after the officers took Mr. Morfin to the floor that Mr. Morfin crossed his arms on his chest to prevent the оfficers from handcuffing him. Id. at 105. If a jury were to credit Mr. Morfin's version of events over that of the arresting officers, it could conclude that there was no reason for the officers to exert such force on Mr. Morfin. Therefore, the grant of summary judgment in favor of Officers Kovats and Arcuri on Mr. Morfin's excessive force claim must be reversed.
D. First Amendment
Finally, Mr. Morfin contends that the district court erred in granting summary judgment to the defendants on his First Amendment claim. Specifically, Mr. Morfin argues that he brought forth sufficient evidence to show that he was arrested because of his support for Mayor Pastrick's opponent in the mayoral primary.
There is no question that "[a]n act taken in retaliation for the exercise of a constitutionally protected right violates the Constitution." DeWalt v. Carter,
Turning first to the arresting officers, we do not believe that Mr. Morfin has met his burden of coming forward with evidence from which a jury could conclude that his support of Stiglich motivated the officers' decision to arrest him (Mr. Morfin). Mr. Morfin does not point to any evidence in the record that Officer Kovats or Officer Arcuri knew of Mr. Morfin's support of Stiglich.15 Consequently, without knowledge that Mr. Morfin was supporting Stiglich, Mr. Morfin's support of Stiglich could not have motivated the officers' actions in the barbershop.
We reach the same conclusion with rеspect to Chief Alcala. In his deposition, Chief Alcala testified that he did not know that Mr. Morfin was a supporter of Stiglich. See Alcala Dep. at 100. Mr. Morfin has not presented any evidence that calls this testimony into question.16
We reach a contrary conclusion, however, with respect to Kevin Pastrick. As noted above, there is evidence in the record that Kevin Pastrick was present at the barbershop when Mr. Morfin was arrested and played a central role in the officers' decision to arrest him. There was additional testimony that, while Kevin Pastrick was in the barbershop, he was on the telephone with other individuals involved in his father's campaign. Indeed, Kevin Pastrick testified that one of the reasons that he was at the barbershop was to protect his father's interests. See Kevin Pastrick Dep. at 37. As well, there is evidence in the record that Kevin Pastrick wished to see those present at the barbershop, who were opposed to his father's re-election, removed from the premises. See Crawford Dep. at 59 (testifying that, after French was arrested, Kevin Pastrick reported to a party over his cellular phone that "we got French"). Finally, the record reflects that, after Mr. Morfin was arrested, Kevin Pastrick made several derogatory comments about Mr. Morfin. See Shaffer Dep. at 47 ("Kevin Pastrick said ... in his opinion that [Mr. Morfin] was a low life and a thief."); id. at 55 (testifying that Kevin Pastrick told him that "Curtis French was there to tamper with the machines and that Rick Morfin was aware of the fact and that he was there to destroy evidence"). We believe that this is sufficient evidence from which a jury could conclude that Mr. Morfin's support of Stiglich motivated Kevin Pastrick's involvement in the arrest of Mr. Morfin. We therefore reverse summary judgment in favor of Kevin Pastrick on Mr. Morfin's First Amendment claim.
Conclusion
For the foregoing reasons, we reverse the judgment of the district court as to the liability of Officer Kovats, Officer Arcuri, and Kevin Pastrick with respect to Mr. Morfin's Fourth Amendment false arrest claim and remand for further proceedings; we affirm the judgment in favor of Chief Alcala and Officer Anderson on this claim. We reverse the judgment of the district court with respect to Officers Kovats and Arcuri on Mr. Morfin's excessive force claim and remand that claim for further proceedings. We also reverse the district court's judgment in favor of Kevin Pastrick on Mr. Morfin's First Amendment claim and remand that claim for further proceedings; we affirm the district court's judgment in favor of Officer Kovats, Officer Arcuri and Chief Alcala with respect to Mr. Morfin's First Amendment claim. Finally, we affirm the judgment of the district court with respect to all claims against the City of East Chicago.17 With respect to those claims on which we reversed the district court's judgment, Circuit Rule 36 shall apply. The parties shall bear their own costs in this court.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Notes:
Notes
Officer Kovats had arrived at the barbershop to conduct an investigation concerning alleged tampering with the voting machines by Curtis French; French had been arrested earlier that evening. Prior to Mr. Morfin's arrival, Officer Kovats had secured the crime scene by removing all non-necessary parties, had taken photographs and had begun dusting for fingerprints
Mr. Morfin сould do so without physically touching the machines because the machine cords were connected to extension cordsSee Morfin Dep. at 50.
At this point, Shaffer left the barbershop
Mr. Morfin believed that Kevin Pastrick was referring to Justin Murphy, a local attorney who supported Mayor Pastrick's re-election campaign
Chief Alcala testified:
Q: What was your understanding of what Morfin was doing during this conversation you were having with Kovats?
A: That Rick [Morfin] was disregarding a police order and was attempting to interrupt a crime scene and smudge the prints — if there were any fingerprints on the machines, to try to cover it up.
Alcala Dep. at 83-84.
Some time after Mr. Morfin was arrested and transported to the ECPD, Chief Alcala became aware that Mr. Morfin had been arrested and was being held on the premises
Officer Kovats identifies Officer Davis, as opposed to Officer Arcuri, as assisting in the arrest. Officer Davis is not a party to this action
At this point in its opinion, the district court noted the following:
Morfin attempts to create an issue of fact in focusing on Officer Davis's statement that Morfin merely stood his ground and refused to leave. (Sеe Memorandum Opposing D's Summary judgment at p. 17). However, Morfin does not dispute the claim by both Davis and Kovats in the Defendants' "Statement of Material Facts" that a struggle ensued because Morfin did not want to leave the building after being told to do so. (Davis p. 39). Further, Morfin does not dispute that he had to be forcibly pushed out. (Davis p. 40). The local rules of procedure specifically provide that: the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion." [sic] N.D. Ind. L.R. 56.1(b).
R. 114 at 17 n. 6.
The district court found alternatively that the officers were entitled to qualified immunity
The district court also found no liability on the part of the City of East Chicago because the claims were not based upon any allegedly unconstitutional policy or practice of the city
As set forth above, with respect to the issue of physical resistаnce, the district court noted that
Morfin attempts to create an issue of fact in focusing on Officer Davis's statement that Morfin merely stood his ground and refused to leave. However Morfin does not dispute the claim by both Davis and Kovats in the Defendants' "Statement of Material Facts" that a struggle ensued because Morfin did not want to leave the building after being told to do so.... The local rules of procedure provide that: the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion." [sic] N.D. Ind. L.R. 56.1(b).
R. 114 at 17 n. 6 (internal citations omitted). Mr. Morfin argues that the district court's invocation of the local rule was in error. Specifically, Mr. Morfin states:
The court's reliance on N.D. Ind. L.R. 56.1(b) is misplaced because, as pointed out in the plaintiffs' response, "Plaintiffs' Statement of Genuine Issues," French R-84, the defendants' "statement does not comply with L.R. 56.1(a), because it requires a statement `as to which the moving party contends there is no genuine issue.'" Instead, the defendants submitted a "statement of material facts," that makes no attempt to show that facts are not in dispute, often presenting several versions. See French R-67, at 15-34 (part of Morfin's version is at 30-33). Also, Morfin does contest the defendants' version in his statement of genuine issues, French R-84, at 18-20, and in his response to summary judgment. R-70, at 1-8.
Appellant's Br. at 14 n. 13. The defendants, in their brief, do not contest Mr. Morfin's claims that the district court erred in invoking Local Rule 56.1 or that their own statement of material facts failed to comply with the local rule.
Our independent review of the record confirms that Mr. Morfin is correct on both counts. First, the defendants' statement of material facts sets forth the accounts of the events in the barbershop as recalled by Officers Kovats, Arcuri and Davis, as well as Mr. Morfin. See R.64 at 30-33. Consequently, even without the benefit of Mr. Morfin's statement of genuine issues, it is apparent that the parties have vastly different recollections of the events leading to Mr. Morfin's arrest. Furthermore, Mr. Morfin's statement of genuine issues, see R. 114 (Statement of Genuine Issues) at 18-20, sets forth his version of events that stands in stark contrast to that forwarded by Officers Kovats, Arcuri and Davis.
We typically defer to a district court's decision to enforce a local rule. See, e.g., Borcky v. Maytag Corp.,
The arrest report states: "On the above date and time Investigator Kovats was attempting to arrest the above listed subject for interfering with law enforcement. The subject became loud and boisterous and told the officer to "F____ off" several times the subject was asked to quit [sic] down several times because he was drawing a crowd to the crime scenе." R.70, Ex.14 (Arrest No. 99A1100)
The defendants argue that, because they have raised the defense of qualified immunity, this court not only must consider whether there was actual probable cause to arrest, but also must determine whether a reasonable officer could have mistakenly believed that probable cause existedHumphrey v. Staszak,
The problem with the application of the "arguable probable cause" concept to the present case is that it is not at all clear, at this stage in the litigation, what facts were within Officer Kovats' knowledge at the time he arrested Mr. Morfin. If the facts are that Mr. Morfin defied a direct order from an officer to leave the premises, became belligerent, and interfered with the crime scene, then there is no question that Officer Kovats not only had arguable probable cause, but, indeed, had actual probable cause to arrest Mr. Morfin. However, Mr. Morfin contends that he never refused an order of an officer, that he was quiet and subdued, and that he did not interfere with the investigation at all; instead, his arrest was the result of Kevin Pastrick's interference. When, as here,
the arrestee challenges the officer's description of the facts and presents a factual account where a reasonable officer would not be justified in making an arrest, then a material dispute of fact exists. Where there is a genuine issue of material fact surrounding the question of plaintiff's conduct, we cannot determine, as a matter of law, what predicate facts exist to decide whether or not the officer's conduct clearly violated established law.
Arnott v. Mataya,
Mr. Morfin also faults Chief Alcala for failing to hasten his release once he discovered Mr. Morfin had been detained. However, again, there is no evidence in the record to suggest that Chief Alcala was aware of facts that would lead a reasonable officer in his position to conclude that Mr. Morfin's arrest was unlawful. Additionally, as noted above, the fact that Chief Alcala was Mr. Morfin's ultimate custodian during his short detention on the evening of May 3, 1999, is insufficient involvement to hold Chief Alcala liable for the arrest
We also note that Mr. Morfin's claim against the City of East Chicago rests on the involvement of Chief Alcala and his role as a policymaker for the City. Consequently, because we hold that there is insufficient evidence in the record to hold Chief Alcala liable for Mr. Morfin's allegedly unlawful arrest, we also uphold the district court's judgment in favor of thе City with respect to this claim.
Indeed, Officer Kovats testified that he did not even know who Mr. Morfin was when he entered the barbershopSee Kovats Dep. at 29.
Furthermore, even if Chief Alcala were aware of Mr. Morfin's support of Stiglich, we already have concluded that there is not sufficient evidence in this record to support a conclusion that Chief Alcala condoned, or failed to intervene to stop, the allegedly unlawful arrest of Mr. Morfin. Consequently, even if Chief Alcala may have been motivated to take some action against Mr. Morfin, there is not sufficient evidence in the record to conclude that such action was taken
Additionally, because Mr. Morfin's only claim against the City of East Chicago is predicated on Chief Alcala's involvement, we do not believe that the City can be held liable for any of the allegedly unconstitutional actions taken by Kevin Pastrick or the arresting officers.
"[B]ecause this decision reinstates ... federal claims, on remand the district court should entertain" those state law claims over which it has supplemental jurisdictionArmstrong v. Squadrito,