King v. Butler City of et al
Filing
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OPINION AND ORDER GRANTING 23 MOTION for Summary Judgment filed by Nick Murray, Randall Duhamel, Butler City of. The Court ORDERS the Clerk to enter judgment in favor of the defendants and against the plaintiff. Signed by Judge Theresa L Springmann on 4/3/12. (jcp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LARRY J. KING,
Plaintiff,
v.
CITY OF BUTLER, INDIANA, BUTLER
POLICE OFFICER NICK A. MURRAY,
AND BUTLER POLICE SERGEANT
RANDALL DUHAMEL,
Defendants.
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CAUSE NO.: 1:10-CV-385-TLS
OPINION AND ORDER
This matter is before the Court on Motion for Summary Judgment [ECF No. 23] filed on
October 26, 2011, by the Defendants, the City of Butler, Indiana, Butler Police Officer Nick A.
Murray, and Butler Police Sergeant Randall Duhamel. The Defendants seek summary judgment
on all claims brought by the Plaintiff, Larry J. King. The Plaintiff filed this action on November
4, 2010, alleging the following counts: Count I – 42 U.S.C. § 1983 False Arrest; Count II – 42
U.S.C. § 1983 Unlawful Search; Count III – Malicious Prosecution; Count IV – False
Imprisonment; Count V – Intentional Infliction of Emotional Distress; and Count VI – State Law
Claims Against Defendant City. The Plaintiff filed a Response [ECF No. 31] to the Defendant’s
Motion for Summary Judgment on December 19, 2011. In his Response the Plaintiff states that
he has “no objection to defendants’ motion to dismiss the counts of the complaint alleging state
law claims, excessive force, and illegal search.” (Pl.’s Resp., ECF No. 31.) The Court will grant
summary judgment on Counts II, III, IV, V, and VI on the basis of the Plaintiff’s statement
waiving response on these claims. Therefore, only Count I, the Plaintiff’s claim for false arrest
brought pursuant to § 1983, remains in dispute between the parties. For the reasons stated below,
the Court will also grant the Defendant’s Motion for Summary Judgment on Count I.
FACTUAL BACKGROUND
On October 11, 2009, the Plaintiff was driving from Chicago, Illinois, to Cleveland,
Ohio. He was traveling on the toll road through Northern Indiana, and took a detour that led him
to Route 6 through Butler, Indiana. The Defendant testified that as he approached Butler on
Route 6, he was traveling between 30 and 35 miles per hour, and that his cruise control was not
set because his speed was too slow for the cruise control to work. The Plaintiff noticed that he
was being followed by a police car with activated flashing lights and siren. He pulled over onto a
side street and remained in his car. Defendant Nick A. Murray then approached the car and
requested the Plaintiff’s driver’s license. The Plaintiff could not locate his driver’s license at the
time because it had fallen under his seat, where he found it after his release. He gave Defendant
Murray a valid U.S. passport as identification along with proof of insurance for the car. The
Plaintiff explained to Defendant Murray that he just purchased the car and was waiting to receive
registration for it in the mail. The Plaintiff testified that Defendant Murray did not tell him he
was pulled over for speeding and that when Defendant Murray approached his car he rolled his
window down completely. He also testified that he gave Defendant Murray the information
contained on his Tennessee driver’s license including name, address, date of birth, and social
security number.
Defendant Murray testified that on October 11, 2009, he was traveling westbound on
Route 6 when he saw the Plaintiff’s car traveling eastbound approaching Butler. He testified that
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he used a radar gun to determine the Plaintiff’s speed and found that he was traveling over the
speed limit. He then observed that the window tint on the car was “very dark.” He also stated in
his report that he saw that the car’s license was improperly displayed but did not recall during his
deposition what about the display was improper. (Murray Dep. 17, ECF No. 23-2.) In his report
prepared on October 12, 2009, Defendant Murray wrote that the Plaintiff was given a citation for
“False and Fictitious license plates, improper display of his license plate, 53 mph in a 45 mile per
hour zone, 45 mph in a 35 mph zone, and 61 mph in a 55 [mile] per hour zone.” (Police
Report 3, ECF No. 23-4.) Defendant Murray testified that when he approached the Plaintiff’s car
he could not see into the car because of the dark window tint and because the Plaintiff did not
immediately roll down his window, instead, Defendant Murray knocked on the driver’s side
window and then the Plaintiff rolled the window all the way down. Defendant Murray testified
that he asked for the Plaintiff’s driver’s license but the Plaintiff could not produce it and instead
gave a passport indicating that he lived in Tennessee. The Plaintiff told Defendant Murray he did
not have the vehicle registration but showed paperwork indicating the he had purchased the car.
Defendant Murray testified that he believed the Plaintiff was being evasive as to his license and
personal identification. Defendant Murray sought assistance from Defendant Randall Duhamel1,
then a sergeant of the Butler Police Department. Defendant Duhamel, after being briefed at the
scene by Defendant Murray, approached the Plaintiff’s car and asked him questions about his
1
Defendant Duhamel’s name is spelled Duhamel on the docket, the Complaint, and the
Defendant’s Amended Answer. His name is spelled “Duhamell” in the Defendants’ Motion for Summary
Judgment, Memorandum in Support of the Motion, and Reply Brief in Support of the Motion. It is
spelled “Duhammel” on his deposition. Because the Defendants have not sought to correct the caption
and have submitted this deposition into evidence without an indication that it requires correction or
which spelling is correct the Court will continue to use the spelling Duhamel.
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driver’s license. Defendant Duhamel testified that the Plaintiff held a map over his face and did
not immediately respond to questioning. (Duhamel Dep.14, ECF No. 30-2.) The Plaintiff argued,
and his testimony appears to support, that he was immediately responsive to questioning by
Defendants Murray and Duhamel.
Defendant Murray testified that he contacted dispatch to run the Plaintiff’s information.
Dispatch told Defendant Murray that the Plaintiff had suspended licenses in both Tennessee and
Indiana. Defendant Murray testified at deposition that dispatch also told him that the Plaintiff had
a prior conviction for operating a vehicle with a suspended license but he did not recall the state
of that conviction. Defendant Murray also learned the license plate on the Defendant’s car
matched a white Oldsmobile rather than the black Toyota he was driving. The Plaintiff admits
the he had previously owned an Oldsmobile and had temporarily moved the plates from his
previous car to the recently purchased Toyota. (Pl.’s Dep. 25–27, ECF No. 30-1.) After
discussing the information received from dispatch and from the Plaintiff, Defendants Duhamel
and Murray decided to arrest the Plaintiff.
LEGAL STANDARD
Summary judgment is appropriate if the facts supported by materials in the record show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56. The motion should be granted so long as no
rational fact finder could return a verdict in favor of the party opposing the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court’s role is not to evaluate the weight of the
evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead
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to determine whether there is a genuine issue of triable fact. Id. at 249–50; Doe v. R.R. Donnelley
& Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The party seeking summary judgment bears the
initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); see also N.D. Ind. L.R. 56-1(a) (stating that the movant must provide a
“Statement of Material Facts” identifying the facts that the moving party contends are not
genuinely disputed). In response, the nonmoving party cannot rest on bare pleadings alone but
must use the evidentiary tools listed in Rule 56 to designate specific material facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324; Insolia v. Philip Morris Inc., 216 F.3d
596, 598 (7th Cir. 2000); see also N.D. Ind. L.R. 56-1(b) (directing that a response in opposition
to a motion for summary judgment “must include a section labeled ‘Statement of Genuine
Disputes’ that identifies the material facts that the party contends are genuinely disputed so as to
make a trial necessary”).
Although a bare contention that an issue of fact exists is insufficient to create a factual
dispute, the court must construe all facts in a light most favorable to the nonmoving party, view
all reasonable inferences in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485,
491–92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is
more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). A material fact must be
outcome determinative under the governing law. Harney v. Speedway SuperAmerica, LLC, 526
F.3d 1099, 1104 (7th Cir. 2008). “Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute.” Id.
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ANALYSIS
“Probable cause is an absolute bar to a § 1983 claim for false arrest.” McBride v. Grice,
576 F.3d 703, 707 (7th Cir. 2009). “Police ordinarily have probable cause if, at the time of the
arrest, the facts and circumstances within the officer’s knowledge are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Smith v. Gomez, 550
F.3d 613, 618 (7th Cir. 2008) (quotation marks and ellipsis omitted) (quoting Wagner v.
Washington Cnty., 493 F.3d 833, 836 (7th Cir. 2007)) (quoting Michigan v. DeFillippo, 443 U.S.
31, 37 (1979)).
The Defendants argues that there was probable cause for the arrest of the Plaintiff and
that summary judgment should be granted in their favor on this basis. The Plaintiff argues that he
has established a genuine issue of fact whether the officers had probable cause to arrest him in
two ways. First, he argues that “[t]here is a triable issue of fact as to whether Defendants Murray
and Duhamel were actually informed by ‘dispatch’ that [the Plaintiff] had a prior conviction for
driving while his license was suspended.” (Pl.’s Mem. Opp’n Summ. J. 6, ECF No. 30.) Second,
he argues that “[t]here is a triable issue of fact as to whether [D]efendant Murray had a
reasonable suspicion sufficient to warrant his stop of [the Plaintiff’s] car.” (Id. 7.)
The Plaintiff asserts that discrepancies between Defendant Murray’s police report and his
and Defendant Duhamel’s deposition testimony create material issues of fact with regard to the
information Defendant Murray received from dispatch. In his report Defendant Murray wrote:
I returned to my vehicle and requested Sgt. Duhamell to the scene of my traffic stop.
I then ran [the Plaintiff’s] information and they informed me that he was suspended
out of Tennessee and Indiana. Dispatch also stated that he has held a license in other
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states such as North Dakota.
Sgt. Duhamell arrived and after speaking with me and dispatch informed me that we
had enough probable cause to believe that [the Plaintiff] has had a previous
conviction of driving while suspended. Sgt. Duhamell then told me to take [the
Plaintiff] to the jail and charge him with driving while being suspended.
(Police Report 3, ECF No. 23-4.) In his deposition Defendant Murray stated that dispatch also
informed him that the Plaintiff had a “prior conviction for operating while suspended.” (Murray
Dep. 22, ECF No. 23-2.) But Defendant Murray testified that he did not remember the state of
this alleged conviction. (Id.) Defendant Duhamel testified that he could not remember if he spoke
to dispatch himself or not. (Duhamel Dep. 20, ECF No. 30-2.)
The Plaintiff focuses on the distinction between a driving on a suspended license and
driving with a prior conviction for driving while suspended. The Plaintiff argues, without citation
to any case law or Indiana statute, but with the agreement of Defendant Murray2, that driving on a
suspended license is not an arrestable offense while driving on a suspended license with a prior
conviction for the same is an arrestable offense. However, “[t]he Supreme Court has held that if
an arrest is otherwise reasonable, the fact that it is not for an ‘arrestable’ offense does not make it
unconstitutional.” Thomas v. City of Peoria, 580 F.3d 633, 637 (7th Cir. 2009) (citing Virginia v.
Moore, 128 S. Ct. 1598, 1606–07 (2008)).
Viewing Defendant Murray’s and Duhamel’s testimony in the light most favorable to the
Plaintiff, he has, at most, raised a question of fact as to whether dispatch told Defendant Murray
or Duhamel that the Plaintiff had a prior conviction for driving while suspended. Similarly
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Defendant Murray testified in his deposition on this matter:“Q: And, let me get this clear,
operating–operating a car while you don’t have driving privileges, even without a prior conviction, is that
a misdemeanor, in your view, or not? A: It’s not an incarcerable offense. We don’t arrest . . . for that.”
(Murray Dep. 24.)
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viewing the testimony of himself and of Defendants Murray and Duhamel in the light most
favorable to the Plaintiff he has raised a question of fact as to whether he gave his answers when
questioned about his license and registration in a forthright manner as he testified or in an
evasive manner as Defendants Murray and Duhamel testified. Viewing these disputed facts in his
favor, the Plaintiff still fails to raise an issue of material fact with regard to whether probable
cause existed to arrest him. Defendants Murray and Duhamel reasonably believed that the
Plaintiff had licenses suspended in two states based on the information given to them at the time.
See United States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001) (“[P]olice officers are entitled to
rely on the reasonable information relayed to them from a police dispatcher.”). It is undisputed
that the Plaintiff failed to provide the Defendants with either the registration for the car he was
driving or his driver’s license. Similarly undisputed by the Plaintiff, Defendant Murray learned
from dispatch at the time that the license plate on the car the Plaintiff was driving did not match
that car, but was registered to a different automobile in the Plaintiff’s name. By failing to
contradict this substantial evidence supporting the belief in the mind of a reasonable police
officer that the Plaintiff had committed or was committing a crime, the Plaintiff has failed to
submit evidence upon which a reasonable jury could conclude that Defendant Murray and
Defendant Duhamel did not reasonably believe that they had probable cause to arrest him.
The Plaintiff next argues that Defendant Murray did not have probable cause supporting
the initial traffic stop that led to his arrest on the above grounds. “[T]he decision to stop an
automobile is reasonable when the police have probable cause to believe that a traffic violation
has occurred.” United States v. Muriel, 418 F.3d 720, 724 (7th Cir. 2005) (citing Whren v. United
States, 517 U.S. 806, 810 (1996)). “Probable cause exists when ‘the circumstances confronting a
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police officer support the reasonable belief that a driver has committed even a minor traffic
offense.’” Muriel, 418 F.3d 720, 724 (quoting United States v. Cashman, 216 F.3d 582, 586 (7th
Cir. 2000)).3
The Plaintiff testified that he was not speeding, but rather traveling between 30 and 35
miles per hour when he was pulled over by Defendant Murray. Defendant Murray testified that
he measured the Plaintiff’s speed using a radar gun and that he observed the Plaintiff exceed the
speed limit in three different speed limit zones. Defendant Murray also submitted his nearly
contemporaneously prepared police report documenting particular speeds at which the Plaintiff
exceeded the speed limit. While the Court must avoid “the temptation to decide which party’s
version of the facts is more likely true,” Payne, 337 F.3d at 770, the Court must also determine
whether, when the non-moving party asserts that a material factual dispute exists, the nonmoving party has put forward evidence sufficient for a reasonable juror to find in his favor. At
trial, the Plaintiff would carry the burden of showing that the Defendants did not have probable
cause.
The Defendants argue that whether or not the Plaintiff was speeding is not material to
whether Defendant Murray had probable cause to pull him over for speeding. Rather, the
Defendant argues that Defendant Murray’s reasonable belief that the Plaintiff was speeding is
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Although the Plaintiff argues the officers did not have even reasonable suspicion for the stop,
the Defendants argue their case on the basis that they met the higher standard of probable cause. (Def.’s
Reply 5–6, ECF No. 33.) Because the Defendants put forward a higher burden on themselves the Court
evaluates the evidence using this standard and notes that if Defendant Murray can show that he met the
higher standard of probable cause for the stop then he would necessarily have met the lower standard of
reasonable suspicion. See Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008) (“Reasonable suspicion is
more than a hunch but less than probable cause.”).
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undisputed. The Court finds, however, that Defendant Murray’s testimony concerning his own
belief as to the Defendant’s speed cannot end the analysis of probable cause for the stop. If the
Plaintiff had some evidence showing that he drove below the speed limit, at all relevant times, or
submitted some other evidence calling into question Defendant Murray’s testimony then he could
establish a question of material fact for trial on whether Defendant Murray reasonably believed
that he was speeding.
The Plaintiff first relies on his own testimony as to his speed to contradict Defendant
Murray’s testimony. However, his testimony does not materially contradict Defendant Murray’s
testimony because each testified to the Plaintiff’s speed at different points in time. The Plaintiff
testified:
Q: At some point, you must have noticed there was a police car, right?
A: Yes. The car sped up on me and the sirens and lights flashed behind me. There
were some cars in front of me. Before that into Butler, I noticed there were cars in
front of me and I was going about the same rate at [sic] them, and then I noticed the
police car came, sped up on me and then turned on its flashers and pulled me over.
Q: How long was that police car behind you, if you know, before they turned the
flashing lights on?
A: They turned on the flashing lights probably less than half a minute before he
stopped me.
Q: But was the flashing lights what caught your attention, or did you see him come
up in your mirror?
A: Well, he tooted the horn or sirens.
Q: Okay, so that was what first alerted you that there was a police officer behind you,
correct?
A: Yes.
Q: And how fast were you going at that point?
A: Between 30 and 35.
(Pl.’s Dep. 29–30, ECF No. 30-1.) The Plaintiff testified only to his speed moments before he
was pulled over. He testified that he was traveling between 30 and 35 miles per hour and below
the speed limit at essentially the same time that he became aware that Defendant Murray had
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activated his lights and siren to pull him over. Defendant Murray, for his part, testified to the
Plaintiff’s speed before that time, as he testified that he tracked the Plaintiff through three speed
zones. Because the Plaintiff only accounts for how fast he was going when he first noticed that
there was a police car behind him, which was not until Defendant Murray activated his car’s
lights and siren, his testimony does not contradict Defendant Murray’s testimony.
The Plaintiff also attempts to cast doubt more generally on Defendant Murray’s testimony
but fails to submit evidence upon which a reasonable jury could conclude that Defendant
Murray’s testimony is untrue. The Plaintiff testified that Defendant Murray did not tell him that
he had pulled the Plaintiff over for speeding. The Court views no inference a jury could draw
from this fact alone to indicate that Defendant Murray did not tell the truth in either his report or
his deposition. This is true particularly because the Plaintiff has submitted, beyond this
testimony, no evidence indicating that Defendant Murray held some particular bias or reason to
invent a pretext for stopping him. The Plaintiff does not even argue that Defendant Murray acted
on the basis of some ill motive. The Plaintiff, therefore, provides no basis for a finding that
Defendant Murray manufactured his documentation of the speed at which the Plaintiff was
traveling or that he lied later when he testified that he saw the Plaintiff speeding and used a radar
gun to determine his speed.
In two recent opinions, district courts in this Circuit denied summary judgment to a
defendant police officer where a plaintiff argued that there was no probable cause or reasonable
suspicion to support a stop. In Hopkins v. O’Brien, passengers and the driver of a car pulled over
by a Chicago police officer sued under § 1983. Hopkins v. O’Brien, No. 09 C 6877, 2011 WL
4585233 (N.D. Ill. Sept. 30, 2011). The officer stated that he had probable cause for the initial
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stop because he observed the plaintiffs were speeding and the car had windows tinted in violation
of the Chicago Municipal Code. Id. at *5. The Court denied summary judgment because the
plaintiffs “den[ied] they were speeding, and although one testified that [the driver’s] window was
rolled up when [the officer] stopped the car and approached [the driver], a reasonable jury could
believe those other witnesses who insisted that the windows were rolled down and that [the
officer] could not have determined that they were tinted before he stopped them.” Id. The
plaintiffs in Hopkins alleged that the officer made racial slurs against them and “threatened to
charge them with driving under the influence of alcohol, warning them that it would be
Plaintiffs’ word against his and that fighting a DUI charge would cost $10,000.” Id. at *3–4. The
officer made no police report of the stop. Id. at *3.
In Washington v. Kein, a plaintiff sued a police officer under § 1983 alleging that the
officer pulled him over based on his race. Washington v. Kein, No. 07 C 698, 2009 WL 763751,
* 3–4 (N.D. Ill. March 18, 2009). The officer testified that he had probable cause for the stop
based on the “weathered” look of the car’s temporary license plates and his running a check, once
behind the car, finding that the plates were expired and did not match the car driven by the
plaintiff. Id. at *3. The court denied the defendant’s motion for summary judgment because “it is
unclear whether [the officer] had sufficient time to take the actions he claims he did regarding a
determination of the improper use of the temporary plates before stopping Plaintiff” as the
plaintiff had alleged it was not plausible that the officer could have taken the actions he testified
to in the time period he described. Id. Additionally, the defendant officer in Washington admitted
that temporary plates on the car were not in fact “weathered” or expired. Id.
The Court finds these two cases instructive on the type of evidence that could create a
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material issue of fact on the issue of whether a police officer sued for false arrest under § 1983
lacked probable cause or reasonable suspicion for a stop. Unlike the plaintiffs in Hopkins and
Washington, the Plaintiff in this case made no allegation of racial or other bias on the part of
Defendant Murray. Nor did the Plaintiff, as did the plaintiffs in Hopkins, present evidence of
particular misconduct on the part of Defendant Murray followed by a failure to create a police
report, or evidence that Defendant Murray’s version of events was somehow implausible or even
unlikely, as did the plaintiff in Washington. Instead, the Plaintiff argues that he has created an
issue of material fact through the submission of testimony as to his own memory of his speed at
the moment before he was pulled over as against Defendant Murray’s testimony regarding his
speed through three different speed zone limits. There is no basis in the record for a finding by a
reasonable jury that Defendant Murray’s testimony is untrue, as it has not been materially
contradicted by the Plaintiff’s testimony and has not been otherwise called into question.
Because the Court will rule in favor of the Defendants on the grounds described above it
need not reach the defense of qualified immunity raised by the Defendants.
CONCLUSION
For the reasons stated above, the Court GRANTS the Defendant’s Motion for Summary
Judgment [ECF No. 23]. The Court ORDERS the Clerk to ENTER JUDGMENT in favor the
Defendants and against the Plaintiff.
SO ORDERED on April 3, 2012.
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s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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