Beiler v. Dunkirk Police Department et al
Filing
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OPINION AND ORDER GRANTING 50 MOTION for Summary Judgment by Defendants Michael E Kreps, Brad Miller. Clerk DIRECTED to enter judgment in favor of Defendants Michael E Kreps and Brad Miller. Signed by Senior Judge James T Moody on 8/7/13. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BRET S. BEILER,
Plaintiff,
v.
DUNKIRK POLICE DEPARTMENT, et al.,
Defendants.
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No. 1:12 CV 2
OPINION AND ORDER
Bret S. Beiler, a pro se plaintiff, is proceeding on a claim that officers from the
Dunkirk Police Department used excessive force against him in violation of the Fourth
Amendment. The two remaining defendants—Captain Michael E. Kreps and Officer
Brad Miller—move for summary judgment. (DE 50.) For the reasons stated below, the
motion will be granted.
I.
Legal Standards
Summary judgment must be granted when “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). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes
summary judgment inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id. To determine whether a genuine issue of material fact exists,
the court must construe all facts in the light most favorable to the non-moving party
and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606 F.3d 355,
358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials in his or her own pleading, but rather
must “marshal and present the court with the evidence she contends will prove her
case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the
nonmoving party fails to establish the existence of an essential element on which he or
she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson,
457 F.3d 711, 716 (7th Cir. 2006).
Beiler did not file a response to the motion for summary judgment, despite being
given proper notice of the motion. (See DE 49.) Pursuant to N.D. IND. LOCAL RULE 71(d)(4), a party’s failure to file a response within the time prescribed may subject the
motion to summary ruling. Nevertheless, “[s]trict enforcement of [local rules] does not
mean that a party’s failure to submit a timely filing automatically results in summary
judgment for the opposing party.” Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568
(7th Cir. 1992). Rather, that failure “causes all factual assertions alleged by the opposing
party to be deemed admitted.” Id. The court still must “make the further finding that
given the undisputed facts, summary judgment is proper as a matter of law.” Id.
II.
Undisputed Facts
The following facts are undisputed. On April 17, 2010, at approximately 1:00 a.m,
Captain Kreps and Officer Miller were on patrol in full uniform driving an unmarked
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police vehicle. (Defs.’ Facts at 3.) As they approached the intersection of Lincoln Avenue
and Angle Street, they observed a car parked in a mobile home parking lot with its
passenger door open.1 (Id.) They could see a leg sticking out of the vehicle on the
passenger side. (Id.) They pulled over and exited their car to investigate. (Id.)
When the officers reached the car, they saw a man later identified as Beiler. (Id.)
He was slumped over, and they could not determine if he was asleep, awake, or
perhaps injured. (Id.) Captain Kreps shook Beiler, and when Beiler woke up he asked to
see his identification. (Id.) They could smell the odor of alcohol, and noticed he had
bloodshot eyes and his speech was slurred. (Id. at 4.) The officers also saw that his belt
was unbuckled and his pants unzipped, and they noticed a wet spot on the ground
outside the vehicle which smelled like urine. (Id.) Captain Kreps asked Beiler why he
was in the car, and he responded that his roommate “had locked him out because he
was drunk.” (Id.) Captain Kreps was concerned about Beiler’s medical condition and
wanted to assess his intoxication level, so he asked Beiler to step out of the car. (Id.)
Beiler refused. (Id.) The officer told him they wanted to check and make sure he was
alright, and if so he could go home. (Id.) Beiler began yelling profanities at the officers
and refused to exit the car. (Id. at 68.) At that point, Captain Kreps reached into the car,
grabbed a hold of Beiler’s arm, and attempted to pull him out. (Id.) Beiler tried to shut
The car was parked in a common area in front of three mobile homes. (Defs.’
Facts at 3.) The parking lot was open to anyone visiting the area. (Id.)
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the door on Captain Kreps’ hand, grabbed onto the center console so he could not be
pulled out of the car, and continued yelling profanities. (Id.)
Captain Kreps then took out his taser, warning Beiler that if he did not exit the
car he would be tased. (Id.) Beiler still refused, so Captain Kreps stunned him with the
taser. (Id.) Beiler still refused to comply, and continued to push on the door with his foot
so the officers could not remove him from the car. (Id.) Captain Kreps applied his taser a
second time, and the officers were then able to remove Beiler from the car. (Id.) Once
out of the car, Beiler continued to struggle, kick, and yell profanities at the officers. (Id.)
They were eventually able to restrain him, and they placed him under arrest. (Id.) He
was later charged with public intoxication and resisting law enforcement. (Id.) A jury
found him guilty as charged, and his conviction was affirmed by the Indiana Court of
Appeals. Beiler v. State of Indiana, No. 38A02-1109-CR-839 (Ind. Ct. App. May 24, 2012).
III.
Analysis
A.
Res Judicata
The defendants first argue that Beiler’s Fourth Amendment claim is barred by res
judicata, because the issue of whether the officers acted reasonably was already litigated
in the criminal case. (DE 51 at 5.) “A fundamental precept of common-law adjudication,
embodied in the related doctrines of collateral estoppel and res judicata, is that a right,
question or fact distinctly put in issue and directly determined by a court of competent
jurisdiction. . . cannot be disputed in a subsequent suit between the same parties or their
privies[.]” Ross v. Bd. of Educ. of Tp. H.S. Dist. 211, 486 F.3d 279, 282 (7th Cir. 2008)
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(internal citation and quotation marks omitted). These companion doctrines “protect
against the expense and vexation attending multiple lawsuits, conserve judicial
resources, and foster reliance on judicial action by minimizing the possibility of
inconsistent decisions.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
Because the prior case was litigated in state court, the court must look to Indiana
law to determine whether the present action is barred. See 28 U.S.C. § 1738; Marrese v.
American Academy of Orthopaedic, 470 U.S. 373, 380 (1985). Under Indiana law, four
requirements must be satisfied for a claim to be precluded under the doctrine of res
judicata: 1) the former judgment must have been rendered by a court of competent
jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the
matter now in issue was, or could have been, determined in the prior action; and 4) the
controversy adjudicated in the former action must have been between the parties to the
present suit or their privies. MicroVote General Corp. v. Indiana Election Com’n, 924 N.E.2d
184, 191 (Ind. Ct. App. 2010). A subset of res judicata, issue preclusion, bars the
subsequent relitigation of a fact or issue that was necessarily adjudicated in the prior
lawsuit. Miller Brewing Co. v. Ind. Dep’t of State Rev., 903 N.E.2d 64, 68 (Ind. 2009). The
primary consideration in deciding whether the doctrine applies is whether the party
who would be precluded had a full and fair opportunity to litigate the issue. Id.
As pertains to this case, Beiler was found guilty of resisting law enforcement. The
issues of excessive force and resisting arrest are not necessarily coexistensive; in other
words, a finding that a defendant resisted arrest does not always require a
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determination of whether the arresting officer used excessive force. See Hardrick v. City
of Bolingbrook, 522 F.3d 758, 764 (7th Cir. 2008). Here, however, Beiler expressly raised
the issue of whether the officers used excessive force against him, which in his view
gave him the right to resist. See Beiler, No. 38A02-1109-CR-839, slip op. at 12. The
Indiana Court of Appeals rejected his argument, concluding that the officers’ actions
were entirely reasonable under the circumstances. Id. at 14-17. There is no dispute that
the state court had jurisdiction to decide this issue, Beiler was a party to the prior case
and had a full and fair opportunity to litigate this issue, and it is clear that a final
judgment was entered against him. Under these circumstances, the court agrees that
Beiler’s excessive force claim is barred by res judicata.
B.
Excessive Force
The defendants alternatively argue that, even if Beiler’s claim is not barred by res
judicata, it fails on the merits. (DE 51 at 8.) The court agrees. An officer’s right to arrest
an individual includes the right to use some degree of physical force, but the Fourth
Amendment requires that force to be objectively reasonable in light of the totality of the
circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989). “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.” Id. (quotation marks and citations omitted). Factors to consider
include the severity of the crime at issue, whether the suspect posed an immediate
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threat to the safety of the officers or others, and whether he was resisting arrest or
attempting to evade arrest by flight. Id. The court must employ an objective standard,
viewing the matter “from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Id. Furthermore, the “calculous of
reasonableness must embody allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Id. at
396-97. Thus, “[n]ot every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers,” will violate the Fourth Amendment. Id. at 396.
Here, the undisputed facts show that at the time of this incident, the officers were
faced with an individual who was combative, partially undressed, and showing signs of
heavy intoxication. The officers wanted him to exit the vehicle so they could determine
whether he was in need of assistance. However, he refused their verbal commands,
cursed at them, and actively resisted their efforts to physically remove him from the car.
The officers warned him that he would be tased if he did not exit the vehicle, but he still
refused to comply, and instead yelled profanities at them. After being tased the first
time, he still refused to exit the car, and so he was tased again. After he was removed
from the car, he continued to struggle, kick, and evade the officers’ attempts to restrain
him. Based on these undisputed facts, the defendants’ use of force was reasonable
under the circumstances. See Clarett v. Roberts, 657 F.3d 664, 674-75 (7th Cir. 2011)
(affirming jury verdict for officer who tased suspect three times, where suspect
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disobeyed officer’s verbal commands and circumstances were such that a physical
confrontation could escalate quickly); United States v. Norris, 640 F.3d 295, 303 (7th Cir.
2011) (officer reasonably used taser to subdue suspect who failed to accede to police
commands and whose actions “suggested an intent to use violence to fend off further
police action”).
Furthermore, even if the defendants used more force than was necessary under
the circumstances, they would be protected by qualified immunity. (See DE 51 at 12.)
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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The protection of qualified immunity will apply if
the official made a mistake of fact, a mistake of law, or a combination of the two. Pearson
v. Callahan, 555 U.S. 223, 231 (2009). In essence, qualified immunity protects all but the
“plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502
U.S. 224, 227-29 (1991).
Assuming the officers made a mistake in tasing Beiler, it was not unreasonable
for them to conclude in the heat of the moment that use the taser was necessary. It was
late at night, dark, and Beiler was attempting to barricade himself in his car. He was
combative, appeared heavily intoxicated, refused to comply with their verbal
command, and resisted their efforts to remove him from the car. Under these
circumstances, any mistake in using the taser was reasonable. See Brooks v. City of
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Aurora, 653 F.3d 478, 486-87 (7th Cir. 2011) (officer who pepper sprayed plaintiff
stopped for minor traffic offense was entitled to qualify immunity where plaintiff failed
to accede to officer’s authority and arguably posed a threat of flight or resistance); Smith
v. Ball State Univ., 295 F.3d 763, 770-71 (7th Cir. 2002) (officer was entitled to qualified
immunity where he forcibly removed plaintiff from a vehicle, tackled him, and
handcuffed him, as plaintiff was combative and appeared drunk, even though plaintiff
was actually suffering from complications of diabetes). Accordingly, the defendants are
entitled to summary judgment.
IV.
Conclusion
For the reasons set forth above, the motion for summary judgment (DE 50) is
GRANTED, and the clerk is DIRECTED to enter judgment in favor of Captain Michael
Kreps and Officer Brad Miller.
SO ORDERED.
Date: August 7, 2013
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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