Rembert v. Fort Wayne City of et al
ORDER AND OPINION GRANTING 26 Motion for Summary Judgment filed by Fort Wayne City of, Christopher Hoffman, Stephen Jackson and Ryan Tosland. The Clerk is DIRECTED to enter judgment. Signed by Magistrate Judge Susan L Collins on 09/29/17. (sct)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CITY OF FORT WAYNE, et al.,
Cause No. 1:15-cv-00387-SLC
OPINION AND ORDER
Plaintiff Harrie Rembert (“Rembert”) brings this action arising under 42 U.S.C. § 1983
and Indiana tort law against Defendants the City of Fort Wayne (the “City”) and Fort Wayne
Police Department (the “FWPD”) officers Christopher Hoffman (“Hoffman”), Ryan Tosland
(“Tosland”), and Stephen Jackson (“Jackson”) (the FWPD officers together, the “Officers”).1
Rembert alleges that the Officers, acting within the scope of their employment for the City, are
liable for the following: (1) violating his Fourth Amendment right against unreasonable search
and seizure; (2) violating his Fourteenth Amendment right to equal protection of law; and (3) the
state law torts of battery, false arrest, and false imprisonment. (DE 22 at 6-7 ¶¶ 34-39). Rembert
also advances the state law claims against the City on a theory of respondeat superior. (DE 22
at 7 ¶ 40). Now before the Court is Defendants’ motion for summary judgment (DE 26), which
is fully briefed (DE 27; DE 28; DE 29), asserting that Defendants are entitled to judgment as a
matter of law on all claims.
For the following reasons, Defendants’ motion for summary judgment will be
Subject matter jurisdiction arises under 28 U.S.C. § 1331. Jurisdiction of the undersigned Magistrate
Judge is based on 28 U.S.C. § 636(c), all parties consenting. (DE 11).
I. FACTUAL AND PROCEDURAL BACKGROUND2
Rembert contends that the Officers unlawfully searched and seized him because of his
status as a homeless person during two encounters in the summer of 2015. (DE 22 at 3 ¶ 14).
Hoffman was present at both encounters, Tosland was present at the first, and Jackson was
present at the second. (DE 26-1 ¶ 9; DE 28-2 at 12).
Hoffman started as a police officer with the FWPD on August 2, 2002. (DE 26-1 ¶ 2). It
is not clear when Hoffman first met Rembert, but there is no dispute that they knew each other
on some level and that Hoffman had detained or arrested Rembert several times prior to June
2015. (DE 26-1 ¶ 5; DE 28-1 ¶ 5; DE 28-2 at 6-7; DE 28-3 at 2-3). For example, Hoffman knew
that Rembert had a history of felony convictions, crack-cocaine use and dealing, resisting law
enforcement, assaulting police officers, and being “in vehicles he was not supposed to be in.”
(DE 26-1 ¶ 5; DE 26-4 at 9; DE 28-2 at 6; DE 28-3 at 2-3). Hoffman knew Rembert well
enough to suspect that Rembert’s hands exhibited marks that are typically caused by holding a
pipe to smoke crack cocaine. (DE 26-1 ¶ 14; DE 28-3 at 3). Rembert claims that he told
Hoffman he was homeless prior to the encounters. (DE 28-1 ¶¶ 3-4). Hoffman, however, claims
that he was unaware of Rembert’s living arrangements at the time of the encounters. (DE 26-1 ¶
6). Tosland and Jackson, on the other hand, had no prior contact with Rembert. (DE 26-4 at 7,
The first encounter at issue occurred after 10:00 p.m. on or around June 17, 2015, near a
popular crack-cocaine smokehouse located at 3715 Oliver Street in Fort Wayne, which is in a
For summary judgment purposes, the facts are recited in the light most favorable to Rembert, the
nonmoving party. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
high crime area. (DE 26-1 ¶¶ 21-23; DE 26-2 ¶¶ 4-5; DE 26-4 at 6, 8; DE 28-1 ¶ 6; DE 28-2 at
19; DE 28-3 at 3-4). While Hoffman was training Tosland on field patrol, they saw Rembert
standing on a public sidewalk near the smokehouse. (DE 26-1 ¶ 24; DE 26-2 ¶ 5). The Officers
were in full police uniforms, carrying holstered weapons, and patrolling in a fully marked police
vehicle. (DE 26-1 ¶ 20; DE 28-1 ¶ 10). Upon seeing the police vehicle, Rembert claims that he
made his way towards the smokehouse to avoid being harassed by the Officers.3 (DE 26-4 at 8).
Hoffman claims that, based on his knowledge of Rembert’s history and the high-crime nature of
the area, he became concerned that Rembert had committed, or was about to commit, a crime.
(DE 26-1 ¶ 25; DE 28-3 at 3; DE 28-4 at 1). Hoffman and Tosland stopped the squad car in the
middle of the street and ordered Rembert to stop. (DE 26-4 at 6; DE 28-1 ¶ 9). The Officers
then exited the squad car and approached Rembert. (DE 26-4 at 6). Hoffman asked Rembert
what he was doing, and Rembert failed to answer the question. (DE 26-1 ¶ 26; DE 28-2 at 1112, 19; DE 28-3 at 3). Tosland performed a pat down of Rembert’s “exterior for weapons” and,
after a check, confirmed Rembert had no active warrants. (DE 28-4 at 1). Hoffman then
ordered4 Rembert to show the Officers his hands for the purpose of training Tosland on the
appearance of crack-cocaine burn marks. (DE 28-1 ¶ 12). Rembert complied without resistance
or argument. (DE 26-2 ¶¶ 10-11; DE 28-2 at 13). After Hoffman and Tosland looked at
Rembert’s hands, they advised Rembert to leave the area because they believed “Rembert’s
Rembert, an admitted crack-cocaine user, claims that he did not intend to use any drugs inside the
smokehouse and that he was not under the influence of any substance at the time of the first encounter. (DE 26-4 at
The Court notes that Rembert describes this as something he was “asked” to do in his deposition (DE 26-4
at 17), but “ordered” to do in his affidavit (DE 28-1 ¶ 12). The difference between being “ordered” and “asked” is
germane to the Court’s analysis of whether Rembert was seized for the purposes of the Fourth Amendment.
However, in granting all reasonable inferences in favor of the non-moving party, the Court accepts that Hoffman
“ordered” Rembert to display his hands. See Payne, 337 F.3d at 770.
intentions weren’t good[,]” and the Officers then departed in their police vehicle. (DE 28 at 19;
DE 26-4 at 9). The entire encounter lasted “about five minutes.” (DE 26-4 at 10). Neither
Hoffman nor Tosland told Rembert that he was free to leave during this encounter. (DE 28-1 ¶
13). In Rembert’s affidavit, he stated that he believes he was not free to leave during this
encounter and that he would have been arrested had he not complied. (DE 28-1 ¶¶ 13-14).
Approximately a month later, the second encounter occurred around the corner of a gas
station on the southwest corner of Pontiac Street and Clinton Street. (DE 26-4 at 11-12; DE 28-1
¶ 17). The encounter took place after dark and in the rain. (DE 28-1 ¶ 19; DE 28-2 at 8). The
owners of that gas station had authorized the FWPD to enforce a no-loitering policy because the
gas station was a popular area to deal drugs and because cars were frequently stolen while
customers went inside to pay for gas. (DE 26-1 ¶ 8; DE 28-2 at 8-9, 16). Hoffman was training
and on patrol with Jackson, both in uniform, and riding in a marked police vehicle. (DE 26-1 ¶
12; DE 28-3 ¶¶ 3-5). Rembert was standing around the corner of the gas station, out of sight of
anyone entering or exiting the building. (DE 26-1 ¶ 10; DE 26-4 at 11). Rembert claims that he
was standing there trying to get cigarettes from customers or to have customers buy cigarettes
for him. (DE 26-4 at 11).
Hoffman claims that when he saw Rembert standing far from the entrance, with no
apparent purpose, and knowing Rembert’s criminal history, he became suspicious that a crime
was about to be committed, such as Rembert dealing drugs or Rembert taking somebody’s car
while that person paid for gas. (DE 26-1 ¶ 11; DE 28-2 at 16; DE 28-3 at 3). Hoffman asked
Jackson “if [Jackson] had ever seen crack burns on someone’s hands. [Jackson] advised that
[he] had not.” (DE 28-5 at 1). Hoffman and Jackson then approached Rembert in the police
vehicle and “circled around [Rembert] a number of times[.]” (DE 28-1 ¶ 20). The police car
then pulled up so that Hoffman’s driver-side window was right by Rembert (DE 26-4 at 13), but
the Officers stayed in the vehicle throughout the encounter. (DE 26-3 ¶ 6; DE 26-4 at 14).
Hoffman asked Rembert what he was doing at the gas station and Rembert had no answer, which
Hoffman found suspicious. (DE 26-1 ¶ 13; DE 28-3 at 3). Next, Hoffman ordered Rembert to
come over to the police car window, “put [his] hands inside the police car through the window,”
and the two officers “touched and looked at [Rembert’s hands].” (DE 28-1 ¶ 21; DE 26-4 at 12).
Rembert did not argue or resist Hoffman’s order.5 (DE 26-1 ¶ 16; DE 28-2 at 17; DE 28-3 at 5;
DE 28-5 at 2). Rembert then told Hoffman that he wanted to stop standing in the rain, and
Hoffman responded, “Okay.” (DE 26-4 at 12). Hoffman reminded Rembert that the gas station
had a no-loitering policy and that Rembert “needed to move on.”6 (DE 26-1 ¶ 16; DE 28-3 at 3).
The encounter lasted about three or four minutes. (DE 26-4 at 13). During this encounter,
similar to the encounter on Oliver Street, the Officers did not tell Rembert that he was free to
leave (DE 28-1 ¶ 23), and Rembert stated in his affidavit that he believes he was not free to leave
(DE 28-1 ¶¶ 23-24). None of the Officers filed a report or arrested Rembert7 (DE 26-1 ¶ 31), and
Rembert suffered no physical injuries as a result of either encounter. (DE 26-4 at 15).
In his deposition, Rembert denies that he was searched during this encounter. (DE 26-4 at 16).
Rembert has been banned from or trespassed on other businesses in Fort Wayne. (DE 26-4 at 15; DE 28-2
The official FWPD policy regarding “Arrest, Search, Seizure” under the title “PD97-2301” establishes
procedures for the FWPD when conducting different types of searches or seizures. (DE 28-6 at 7-9). Notably, if an
officer conducts a search by consent of an individual, then that officer is to note doing so in a written report. (DE
28-6 at 8-9). If an officer has “articulable reasons to fear for his/her safety because he/she believes [the] individual
to be armed and/or dangerous,” then the officer is permitted to conduct a “Stop and Frisk” on the individual. (DE
28-6 at 9). However, the officer need not make a written record of a stop and frisk unless the officer also handcuffs
the individual. (DE 28-6 at 9).
On September 15, 2015, Rembert issued a Notice of Tort Claim to Defendants. (DE 1-1;
DE 22-1). On December 17, 2015, Rembert filed this case against Defendants. (DE 1; DE 22).
II. STANDARD OF REVIEW
Summary judgment may be granted only if there are no disputed genuine issues of
material fact. Payne, 337 F.3d at 770. “On summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which inferences to draw from the facts; these are
jobs for a factfinder.” Id. (citations omitted). The Court is tasked only with deciding whether
“there is any material dispute of fact that requires a trial” within the “evidence of record[.]”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). “[I]f the
evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving
party[,]” then summary judgment may not be granted. Payne, 337 F.3d at 770. A court must
construe the record in the light most favorable to the nonmoving party and avoid “the temptation
to decide which party’s version of the facts is more likely true[,]” as “summary judgment cannot
be used to resolve swearing contests between litigants.” Id. (citations omitted). However, “a
party opposing summary judgment may not rest on the pleadings, but must affirmatively
demonstrate that there is a genuine issue of material fact for trial.” Id. at 771 (citation omitted).
As discussed below, Rembert alleges three claims for damages, declaratory relief, and
injunctive relief against Defendants arising from the two encounters in the summer of 2015.
First, he alleges that the Officers violated his Fourth Amendment right against unreasonable
search and seizure. (DE 22 at 6 ¶¶ 34-35). Second, Rembert claims that the Officers violated his
Fourteenth Amendment right to equal protection by targeting him for unlawful search and
seizure because he was homeless. (DE 22 at 6-7 ¶¶ 36-37). Third, Rembert alleges that the
Officers are liable for violations of Indiana tort law: battery, false arrest, and false
imprisonment. (DE 22 at 7 ¶¶ 38-40). Rembert asserts that the City is liable for the state-law
tort claims under the doctrine of respondeat superior because the Officers acted within the scope
of their employment for the City during both encounters. (DE 22 at 7 ¶ 40). The Officers assert
the affirmative defense of qualified immunity to Rembert’s constitutional claims. (DE 24 at 12 ¶
As a preliminary matter regarding Rembert’s § 1983 claims, he “must show two
elements: (1) the party against whom the claim is brought qualifies as a ‘person acting under the
color of state law’; and (2) the conduct alleged amounted to a deprivation of rights, privileges, or
immunities under the Constitution or the laws of the United States.” Tom Beu Xiong v. Fischer,
787 F.3d 389, 397 (7th Cir. 2015) (citations omitted). There appears to be no dispute regarding
the first element—that is, that the Officers were acting under color of state law during both
encounters in question. Therefore, the Court’s analysis only addresses the second element of
Rembert’s § 1983 claims.
A. The Officers Will Be Granted Summary Judgment as to Rembert’s Fourth Amendment
The Fourth Amendment protects individuals against unreasonable search and seizure.
U.S. Const. amend. IV. Two categories of seizure implicate the Fourth Amendment: an arrest
and an investigatory stop. United States v. Parker, No. 3:09-CR-148 JD, 2010 WL 2943649, at
*2 (N.D. Ind. July 21, 2010) (quoting United States v. Mancillas, 183 F.3d 682, 695 (7th Cir.
1999)). Not every interaction between police officers and citizens fall into one of these
categories—a citizen might consent to an interaction with an officer and answer questions
without a Fourth Amendment violation. See Florida v. Bostick, 501 U.S. 429, 434 (1991)
(“[W]e have held repeatedly that mere police questioning does not constitute a seizure.” (citing
Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion))); United States v. Clements, 522
F.3d 790, 794 (7th Cir. 2008) (“A consensual encounter between an officer and a private citizen
does not trigger the Fourth Amendment.”); United States v. Hendricks, 319 F.3d 993, 999-1000
(7th Cir. 2003) (explaining that where a driver stops his car on his own and the police officers
question him without coercive activity, the result is a consensual encounter). Accordingly, the
Court’s Fourth Amendment analysis will proceed by resolving two issues: (1) whether Rembert
was seized for purposes of the Fourth Amendment, and if so, (2) whether the Officers seized
Rembert based on reasonable suspicion of criminal activity.
“The proper inquiry” in determining whether law enforcement officers seize an
individual “‘is whether a reasonable person would feel free to decline the officers’ request or
otherwise terminate the encounter.’” United States v. Drayton, 536 U.S. 194, 202 (2002)
(quoting Bostick, 501 U.S. at 436); see United States v. Radford, 856 F.3d 1147, 1149 (7th Cir.
2017) (“[A] seizure hasn’t taken place so long as a reasonable person would feel free to decline
the officers’ request or otherwise terminate the encounter.” (citations and internal quotation
marks omitted)). Whether a reasonable person would feel free to terminate an encounter with a
police officer is dependant on the totality of the circumstances. Bostick, 501 U.S. at 439; United
States v. Nobles, 69 F.3d 172, 180 (7th Cir. 1995) (“The question of whether a particular
encounter is voluntary is a factual one, dependant on the circumstances of each case.” (citations
and internal quotation marks omitted)). The circumstances the Court considers are:
(1) whether the encounter occurred in a public place; (2) whether
the suspect consented to speak with the officers; (3) whether the
officers informed the individual that he was not under arrest and
was free to leave; (4) whether the individuals were moved to
another area; (5) whether there was a threatening presence of
several officers and a display of weapons or physical force; (6)
whether the officers deprived the defendant of documents [he]
needed to continue on [his] way; and (7) whether the officers’ tone
of voice was such that their requests would likely be obeyed.
United States v. Shields, 789 F.3d 733, 743 (7th Cir. 2015); see Clements, 522 F.3d at 794
(citing United States v. Mendenhall, 446 U.S. 544, 554 (1980); United States v. Scheets, 188
F.3d 829, 836-37 (7th Cir. 1999)). “A consensual encounter, which involves no restraint on a
subject’s liberty and is characterized by non-coercive police questions of a citizen in a public
place[,]” does not require any degree of justification or suspicion of criminal activity. Parker,
2010 WL 2943649, at *2 (citations and internal quotation marks omitted); see United States v.
Burton, 441 F.3d 509, 511 (7th Cir. 2006) (observing that an officer may approach a person on
the street and ask him questions, which causes him to stop, listen, and answer with only a slight
“curtailment of the bystander’s mobility, privacy and peace of mind” so that no Fourth
Amendment justification is needed); United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.
1990) (“[T]he degree of suspicion that is required is zero.” (citations and internal quotation
If a reasonable person would not feel free to leave, the Court then considers whether the
investigatory stop was justified under Terry v. Ohio, 392 U.S. 1 (1968). Law enforcement
officers “may conduct ‘a brief investigatory stop when the officer has reasonable suspicion that
criminal activity is afoot.’” United States v. Maclin, 313 F. App’x 886, 888 (7th Cir. 2009)
(quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000), citing Terry, 392 U.S. at 30); see Gentry
v. Sevier, 597 F.3d 838, 845 (7th Cir. 2010) (quoting United States v. Hampton, 585 F.3d 1033,
1038 (7th Cir. 2009)). “Reasonable suspicion is less than probable cause but more than a
hunch.” Maclin, 313 F. App’x at 888 (citing United States v. Lawshea, 461 F.3d 857, 859 (7th
Cir. 2006)). The reasonable suspicion determination is based on:
the totality of the circumstances known to the officer at the time of
the stop, including the experience of the officer and the behavior
and characteristics of the suspect. . . . Further, we recognize that
certain behavior in isolation may have an innocent explanation yet
that same behavior may give rise to reasonable suspicion when
viewed in the context of other factors at play.
Lawshea, 461 F.3d at 859 (citations omitted). The officer need not have reasonable articulable
suspicion when the encounter started, so long as it came into play before the seizure was made.
United States v. Mays, 819 F.3d 951, 957-58 (7th Cir. 2016). For an encounter to “remain a
valid Terry stop, the stop must be ‘limited in scope and execution through the least restrictive
means reasonable.’” Gentry, 597 F.3d at 845 (quoting United States v. Grogg, 534 F.3d 807,
810 (7th Cir. 2008)).
1. A Reasonable Jury Could Find That the Officers Seized Rembert During the Oliver Street
The Officers argue that the Oliver Street encounter was consensual and did not trigger
Fourth Amendment concerns. They claim that they approached Rembert to simply speak with
him and ask him why he was there, and Rembert willingly complied. While the Officers admit
they were armed, there is no dispute that their guns did not leave their holsters. The Officers
also argue that they did not touch Rembert, stating that “perhaps” Tosland performed a pat down
of Rembert’s “clothing.” (DE 29 at 4).
Rembert disagrees. According to Rembert, the Officers’ actions and words were
“degrading” and “menacing” such that their questions were, in fact, commands. (DE 28 at 16-
17). Rembert argues that a reasonable person would not have felt free to leave during this
encounter for several reasons. However, some of the facts do not support Rembert’s contention.
First, Rembert makes much of the fact that the Officers carried pistols, but he does not
claim they were ever brandished. “That most law enforcement officers are armed is a fact well
known to the public. The presence of a holstered firearm thus is unlikely to contribute to the
coerciveness of the encounter absent active brandishing of the weapon.” Drayton, 536 U.S. at
205. Therefore, the mere fact that the Officers were armed does not affect the consensual nature
of the encounter.
Second, Rembert claims he was not free to leave, in part, because he believes that was the
case. However, the Court’s analysis is objective, and does not incorporate Rembert’s subjective
beliefs. See Carlson v. Bukovic, 621 F.3d 610, 619 n.15 (7th Cir. 2010) (“The reasonable
person-free to leave standard is an objective one, and both the officer’s and the encountered
individual’s subjective beliefs during the encounter are not determinative as to whether a seizure
occurred.” (citation omitted)). Consequently, Rembert’s subjective beliefs are not determinative
of the Court’s analysis.
Third, Rembert claims that no person would have felt free to leave when approached by
an officer that had arrested him on multiple previous occasions, as Hoffman did in this case.
However, Rembert does not provide a single case in support of that assertion. In any event, the
history between Rembert and Hoffman does not distinguish the Oliver Street encounter from a
“law enforcement officer . . . merely approaching an individual on the street or in another public
place, [and] asking him if he is willing to answer some questions[.]” Shields, 789 F.3d at 744
(citations omitted). “It is well established that a seizure does not occur merely because a police
officer approaches an individual and asks him or her questions.” United States v. Smith, 794
F.3d 681, 684 (7th Cir. 2015) (citations omitted).
Nevertheless, the Court is satisfied that a reasonable jury could find Rembert was not free
to leave once he was ordered to stop.8 See Drayton, 536 U.S. at 202 (citation omitted); Radford,
856 F.3d at 1149. “A seizure may transpire any time police conduct ‘communicate[s] to the
reasonable person an attempt to capture or otherwise intrude upon [his] freedom of movement.’”
Smith, 794 F.3d, at 684 (alterations in original) (quoting Michigan v. Cheternut, 486 U.S. 567,
575 (1988)). Here, the Officers ordered Rembert to stop, and all evidence in the record shows
that he complied. In fact, Rembert was in the process of walking away from the Officers when
they ordered him to stop. In other words, Rembert did not want to stop or interact with the
Officers, they made him do so. See Mays, 819 F.3d at 956 (“‘Even when somebody is
confronted with an obvious show of authority, he is not seized until his freedom of movement is
terminated by an application of physical force or by the suspect’s submission to the asserted
authority.’” (quoting United States v. $32,400.00, in U.S. Currency, 82 F.3d 135, 138-39 (7th
Cir. 1996)); see cf. United States v. Williams, 285 F. App’x 284, 287 (7th Cir. 2008) (“[T]he key
point of Clements is that when the police walk up to someone who is either out on the street or
sitting in a car that was already stopped (in other words, the police had nothing to do with the
driver’s decision to pull over and park), there is no seizure at all.” (citing Clements, 522 F.3d at
794)). Additionally, it is somewhat relevant that the Officers did not tell Rembert that he was
free to leave. See United States v. Adebayo, 985 F.2d 1333, 1338 (7th Cir. 1993) (observing that
The Court notes that even if Rembert was not seized when ordered to stop, he was certainly seized once
Tosland frisked him. See Mays, 819 F.3d at 956 (“[A] fleeing suspect—even one who is confronted with an obvious
show of authority—is not seized until his freedom of movement is terminated by intentional application of physical
force or by the suspect’s submission to the asserted authority.” (citation and internal quotation marks omitted)).
the defendant was told “that he was not under arrest and was free to leave” was relevant to
determining whether a seizure occurred). Considering these facts, a reasonable jury could find
that Rembert was seized during this encounter.9
2. The Officers Had Reasonable Suspicion Supported by Articulable Facts to Conduct a Brief
Investigatory Stop During the Oliver Street Encounter
In this case, no reasonable factfinder could believe that the Officers lacked reasonable
suspicion to perform a Terry stop. First, the Court notes that Hoffman’s 13 years of experience
as a police officer with the FWPD, as of the summer of 2015, is relevant to the determination of
reasonable suspicion. (DE 26-1 ¶ 2); see Parker, 2010 WL 2943649, at *5 (considering the two
officers’ experience was relevant to finding reasonable suspicion).
Second, the Officers were permitted to suspect Rembert of criminal activity based on the
time and location that they found him. There is no dispute that Rembert was near a popular
crack-cocaine smokehouse located in high-crime area, after dark, with no apparent purpose. (DE
26-1 ¶¶ 21-23; DE 26-2 ¶¶ 4-5; DE 26-4 at 6, 8; DE 28-1 ¶ 6; DE 28-2 at 19; DE 28-3 at 3-4).
Such “contextual considerations” are not conclusive by themselves, but may “give rise to
reasonable suspicion.” United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (collecting
cases); see Wardlow, 528 U.S. at 124 (“But officers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances are sufficiently suspicious
to warrant further investigation. Accordingly, we have previously noted the fact that the stop
Rembert also claims that the Officers, through ordering Rembert to show them his hands, questioned him
on suspicion of felony narcotics offenses, which rendered the encounter non-consensual. Such questions cross “the
line between consensual conversation and a seizure . . . when police convey to an individual that he or she is
suspected of a crime.” Smith, 794 F.3d at 681. However, because Rembert was seized prior to being questioned on
the marks on his hands, the Court does not consider this event in its analysis of whether the encounter was
occurred in a ‘high crime area’ among the relevant contextual considerations in a Terry
analysis.” (citation omitted)); Maclin, 313 F. App’x at 889 (“But [the defendant]’s presence at
the apartment complex in the middle of a very cold night, just after reports of vehicle break-ins,
although maybe not conclusive, was certainly relevant to the reasonable suspicion calculation.”
(citations omitted)); United States v. Baskin, 401 F.3d 788, 793 (7th Cir. 2005) (“[I]t is highly
relevant to the reasonable suspicion analysis that the approaching vehicle’s acceleration occurred
in such close proximity to a newly discovered methamphetamine lab in an otherwise remote
county park at a time when most people are asleep.”).10
Third, a law enforcement officer may take into account the characteristics of an
individual for the purposes of reasonable suspicion. See Mays, 819 F.3d at 955 (“When
determining whether an officer had reasonable suspicion, courts examine the totality of the
circumstances known to the officer at the time of the stop, including . . . the behavior and
characteristics of the suspect.” (citing Lawshea, 461 F.3d at 859)); United States v. Lenior, 318
F.3d 725, 729 (7th Cir. 2003) (“When determining whether reasonable suspicion exists, we
examine the totality of the circumstances known to the police at the time of the stop, including
the experience of the officers and the behavior and characteristics of the suspect.” (citation
omitted)). Rembert does not dispute that his characteristics, which were known to Hoffman,
included felony convictions, assaulting police officers, and using crack cocaine.
The Court is mindful that it must be cautious in contemplating Rembert’s presence in a high-crime area
for the purposes of “reasonable suspicion” because it could raise “concerns of racial, ethnic, and socioeconomic
profiling.” Caruthers, 458 F.3d at 467. However, because Rembert himself admits that the house on Oliver Street
was a known place to smoke crack cocaine (DE 26-4 at 6, 8), and because Hoffman knew that Rembert used crack
cocaine (DE 26-1 ¶ 5; DE 26-4 at 9; DE 28-2 at 6; DE 28-3 at 2-3), the Court’s concerns regarding contextual factors
are alleviated. See Caruthers, 458 F.3d at 468 (“Fortunately, these concerns are alleviated here because [the
defendant] concedes that the area around the intersection of Lewis and Lafayette streets in Nashville is a ‘high
crime’ area where officers expect nightly calls regarding robberies or shots fired.”).
Fourth, Rembert admitted that he was trying to avoid the Officers. It is well established
that law enforcement officers are permitted to develop reasonable suspicion from such “furtive
moments.” Maclin, 313 F. App’x at 889 (quoting Caruthers, 458 F.3d at 466); see Wardlow,
528 U.S. at 124-25 (finding that evasion is suggestive of wrongdoing).11
Although Rembert contends the Officers did not have reasonable suspicion to perform an
investigatory stop, he does not deny any of the circumstances discussed supra. Instead, Rembert
argues that the facts of this case could not create reasonable suspicion, absent additional
Rembert appears to argue that in order to reasonably suspect him of criminal
wrongdoing, the Officers needed to receive reports of criminal activity in the area or witness
Rembert perpetrating a crime. However, Rembert does not cite any authority recognizing such a
need. In fact, “behavior that is innocent in isolation may in a particular context give rise to a
reasonable suspicion.” Maclin, 313 F. App’x at 889 (citing Lawshea, 461 F.3d at 859); see also
Mays, 819 F.3d at 957-58 (knowing that the defendant was not involved in criminal activity that
drew the officer’s attention); Borys, 766 F.2d at 311-12 (interacting with an individual was
sufficient to create “[r]easonable suspicion supported [the] investigative stop”). The absence of
reports or observations of criminal activity did not deprive the Officers of their reasonable
Rembert also contends that the Officers were not permitted to perform a Terry frisk
Rembert’s failure to articulate why he was in the area when asked is another potential factor that could
have added to the Officers’ reasonable suspicion. (DE 26-1 ¶ 26; DE 28-2 at 11-12, 19; DE 28-3 at 3); Wardlow,
528 U.S. at 124 (“[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”); Terry,
392 U.S. at 23 (standing or pacing on a street corner “not waiting for anyone or anything” was considered relevant to
the officers’ reasonable suspicion). However, since this verbal exchange did not occur until after the seizure, the
Court does not consider this factor in its analysis.
without articulable facts indicating that Rembert was armed and dangerous. However, Officers
did not need to be certain that Rembert was armed to pat him down. See Parker, 2010 WL
2943649, at *5 (“The officer need not be absolutely certain that the individual is armed; the issue
is whether a reasonably prudent man in the circumstances would be warranted in the belief that
his safety or that of others was in danger.” (citation and internal quotation marks omitted)).
Moreover, the fact that Hoffman knew that Rembert had assaulted police officers in the past (DE
26-1 ¶ 5; DE 28-2 at 6; DE 28-3 at 2-3) was sufficient to create the requisite amount of suspicion
that Rembert “posed a danger to the [officers] or others” to justify a Terry frisk. Gentry, 597
F.3d at 847 (collecting cases).
Because a Terry stop is only valid so long as the frisk is “limited in scope and execution
through the least restrictive means reasonable,” the Court now turns to whether the Officers
violated Rembert’s Fourth Amendment right after stopping him. Gentry, 597 F.3d at 845
(internal quotation marks omitted). First, this stop took around five minutes (DE 26-4 at 10),
which is reasonably brief. See Wardlow, 528, U.S. at 123 (holding that a stop must be brief to be
consistent with Terry, 392 U.S. at 30).
Second, the touchstone of whether a search, and to a lesser extent a Terry frisk, is
reasonable turns on “whether the individual, by his conduct, has exhibited an actual expectation
of privacy, and whether the individual’s expectation of privacy is one that society is prepared to
recognize as reasonable.” Gentry, 597 F.3d at 848 (internal quotation marks omitted, collecting
cases). Here, no facts indicate that Rembert expressed an expectation of privacy in his hands.
Rembert’s hands were not covered, and Rembert took no action to keep the marks out of plain
view. See id. (finding that police violated a man’s reasonable expectation of privacy by
searching the contents of a wheelbarrow because some items were covered by a raincoat and
others were not in plain view); cf. Daryl H. v. Coler, 801 F.2d 893, 899-900 (7th Cir. 1986)
(“[T]he visual inspection conducted by government officials of those parts of the human body
usually covered by clothing implicates fourth amendment concerns.” (emphasis added)). That
Hoffman intended to show Tosland the burn marks for the sake of training is not a practice the
Court encourages, but “this Court is not empowered to forbid law enforcement practices simply
because it considers them distasteful.” Bostick, 501 U.S. at 439.
3. No Reasonable Jury Could Find That the Officers Seized Rembert During the Gas Station
The Court’s next task is to evaluate the encounter at the gas station under the same
analyses discussed supra.
Rembert has failed to present facts that dispute the Officers’ contention that, during the
gas station incident, a reasonable person would feel free to terminate the encounter. See
Drayton, 536 U.S. at 202 (quoting Bostick, 501 U.S. at 436); Nobles, 69 F.3d at 180. Rembert
repeats arguments for this encounter that he used for the encounter on Oliver Street—that is, he
argues that the Officers were armed, that he believes he was not free to leave, and that Hoffman
had arrested him in the past. As the Court addressed these arguments supra, they will not be
discussed in the analysis of this encounter.
The first factor that establishes a reasonable person would feel free to leave is that the
Officers remained inside their squad car throughout the encounter. A reasonable person would
not likely believe he was seized while talking to police officers who were in their car in a public
place, see Drayton, 536 U.S. at 195 (observing that while officers were standing on exits of a bus
and asking to search individuals, “[h]ad this encounter occurred on the street, it doubtless would
be constitutional”); Bostick, 501 U.S. at 434 (noting that “no doubt that if this same encounter
had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not
rise to the level of a seizure”); Florida v. Rodriguez, 460 U.S. 1, 4 (1984) (finding no seizure in a
“public area of the airport”), with no exits blocked, Clements, 522 F.3d at 795 (“Other than
illuminating their flashing lights for identification and safety purposes, the officers did nothing
that could have made Clements feel that his freedom was restrained: . . . , they did not surround
Clements’s car with multiple squad cars or officers or otherwise prevent him from driving
away.”); Hendricks, 319 F.3d at 1001 (“Although Officer Swisher followed the car into the
Mobile station and stopped approximately fifteen feet behind it, there was nothing in front of the
car to block its exit from the gas station.”); United States v. Pavelski, 789 F.2d 485, 488 (7th Cir.
1986) (finding that a suspect was not seized until a third police car arrived and he was “bounded
on three sides by police patrol cars”); cf. Smith, 794 F.3d at 686 (finding that two police officers
blocking the defendant’s exit from an alley with their bikes was “sufficient to communicate to a
reasonable person that he was not free to leave”). Moreover, from their squad car, it would be
difficult for the Officers to impose a “limitation of [Rembert]’s movement such as physical
touching, display of a weapon, or other coercive conduct . . . that [would] indicate cooperation
is required.” United States v. Tyler, 512 F.3d 405, 410 (7th Cir. 2008) (citing United States v.
McCarthur, 6 F.3d 1207, 1275-76 (7th Cir. 1993)).
The next factor in the free-to-leave analysis is that the Officers did not issue an order to
Rembert that would impede his freedom of movement. “A seizure may transpire any time police
conduct ‘communicate[s] to the reasonable person an attempt to capture or otherwise intrude
upon [his] freedom of movement.’” Smith, 794 F.3d at 686 (quoting Chesternut, 486 U.S. at
575) (alterations in original)); see cf. Mays, 819 F.3d at 956 (citation omitted). Although, the
Officers did order Rembert to come to the window and show them his hands, which will be
addressed further infra, this was not an order for Rembert to halt or cease any movements he
already was making. See Williams, 285 F. App’x at 287 (“[T]he key point of Clements is that
when the police walk up to someone who is either out on the street or sitting in a car that was
already stopped (in other words, the police had nothing to do with the driver’s decision to pull
over and park), there is no seizure at all.” (citations omitted)).
Rembert’s arguments that this encounter was not consensual are not persuasive. Rembert
appears to argue that the Officers exhibited coercive behavior by circling him a number times
before pulling up to him. To the extent that this could have made Rembert anxious, courts have
found more direct and confrontational moments insufficient to rob an encounter of its consensual
nature. See Drayton, 536 U.S. at 205-06 (witnessing his compatriot getting arrested did not
mean that the defendant was seized); Clements, 522 F.3d at 792 (finding that the defendant
would feel free to leave despite flashing red and blue emergency lights on the police vehicle, and
shining flashlights in the defendant’s car); Pavelski, 789 F.2d at 488 (finding that the defendant
was not seized despite one police car pulling up behind him and one next to him, and asking him
questions). Consequently, the Officers’ circling Rembert does not rebut the Officers’ contention
that the encounter was consensual.
Rembert also argues that he was not free to go because he was ordered to show his hands
to the Officers. This argument fails for several reasons. As discussed supra, Rembert was in a
public place and the Officers remained in their vehicle. This order did not require Rembert to
move to a different place, and barely required him to move at all because Hoffman pulled up
right next to him. Law enforcement officers may approach and ask questions of an individual
that causes him to stop to listen and answer with only a slight “curtailment of the bystander’s
mobility, privacy and peace of mind” so that no Fourth Amendment justification is needed.
Burton, 441 F.3d at 511; see cf. Williams, 285 F. App’x at 287 (“[W]hen the police walk up to
someone who is either out on the street or sitting in a car that was already stopped . . . , there is
no seizure at all.” (citation omitted)). Moreover, this order was not accompanied by an act that
would force Rembert into compliance such as the Officers turning on their emergency lights or
shining a light onto Rembert. See Hendricks, 319 F.3d at 1001 (“[The officer] did not activate
his emergency lights when [the driver] pulled into the gas station, nor did he shine a light on the
car.”); see cf. Mays, 819 F.3d at 956 (citation omitted). In any event, although the Officers did
issue an order, they did not terminate “[Rembert’s] freedom of movement,” leaving a reasonable
person feeling at liberty to refuse the order. Mays, 819 F.3d at 956 (citation omitted).
Rembert contends that the Officers, by asking to see the marks on his hands, questioned
him on felony drug offenses, such that a reasonable person would not feel free to walk away.
While officers may pose questions to an individual without requiring Fourth Amendment
justification, “the line between consensual conversation and a seizure is crossed when police
convey to an individual that he or she is suspected of a crime.” Smith, 794 F.3d at 681; see
Borys, 766 F.3d at 311 (“In these circumstances where Borys knew that the agents had positively
identified him as a suspect, a reasonable person would not have felt at liberty to leave.” (citation
omitted)). Here, the Officers did not tell Rembert they suspected him of committing any crime;
rather, they simply told Rembert they wanted to see the marks on his hands “for training.” (DE
26-1 ¶ 22). This sort of questioning or inspection would not communicate to a reasonable person
that he was a suspect of a criminal investigation, such that he would not feel free to leave.
Rembert argues that he was not free to leave because the Officers physically touched his
hands. However, it is not the act of physical touching itself that is indicative of a seizure, but
rather whether a police officer’s touching or conduct “communicate[s] to the reasonable person
an attempt to capture or otherwise intrude upon [his] freedom of movement.” Smith, 794 at 68687 (alterations in original) (citation and internal quotation marks omitted). Here, by touching
Rembert’s hands, the Officers did not intrude upon Rembert’s ability to move; rather, they
merely inspected his hands. Moreover, as discussed infra, the Officers’ touching of Rembert’s
hands does not appear to be part of a type of Terry frisk, that would indicate an investigatory
stop had taken place.
Finally, Rembert claims that the encounter could not have been consensual because the
Officers failed to note the encounter in a written report as required for consensual searches under
FWPD policy. (See DE 28-6 at 9). This argument fails because “the violation of police
regulations or even state law is completely immaterial as to the question of whether a violation
of the federal constitution has been established.” Thompson v. City of Chi., 472 F.3d 444, 454
(7th Cir. 2006) (citation omitted).
4. Any Reasonable Factfinder Would Find That the Officers Had Reasonable Suspicion to
Perform an Investigative Stop During the Gas Station Encounter
Rembert’s arguments that an investigative stop was not justified under Terry are
unavailing. In the first place, many of the facts that conferred reasonable suspicion in the Oliver
Street encounter were present during this encounter: (1) Hoffman had 13 years of experience as
a police officer, (2) Hoffman’s knowledge of Rembert’s violent and criminal history, and (3) the
Officers found Rembert in a high-crime area, known for dealing crack cocaine at night.
Additionally, Hoffman was particularly suspicious that criminal activity was afoot because
Rembert was standing around the corner of the entrance, where he could not be seen, clearly not
conducting business at the gas station. (DE 26-1 ¶ 10; DE 26-4 at 11). This fact alone, while not
dispositive for reasonable suspicion purposes, provided sufficient reason for Hoffman to
approach Rembert and enforce the no-loitering policy. (See DE 28-2 at 8-9).
Viewing this encounter as some type of Terry stop, the Officers did not perform a full
Terry frisk, leaving Rembert’s Fourth Amendment right intact. An investigatory stop is valid as
long as it is limited in scope and conducted through the least restrictive means possible. Gentry,
597 F.3d at 845 (collecting cases). Here, there is no dispute that the gas station encounter lasted
less than five minutes, which is reasonably brief. See Wardlow, 528 U.S. at 123 (citation
omitted). Further Rembert does not contend that the Officers patted him down; rather, they
inspected his hands. Similar to the Oliver Street encounter, Rembert’s hands were not covered;
they were in plain view. See cf. Daryl H., 801 at 899-900. As Rembert stated in his deposition,
he did not feel as though he was searched (DE 26-4 at 16), belying any argument that his
expectation of privacy was violated. Gentry, 597 F.3d at 848. Therefore, the Officers’ motion
for summary judgment will be granted with regard to all of Rembert’s Fourth Amendment
B. The Officers Will Be Granted Summary Judgment as to Rembert’s Fourteenth
“The Equal Protection Clause directs that all persons similarly circumstanced shall be
treated alike.” Plyer v. Doe, 457 U.S. 202, 216 (1982) (citation and internal quotation marks
omitted); see Lunini v. Grayeb, 395 F.3d 761, 767-70 (7th Cir. 2005). A plaintiff advancing an
equal protection claim bears the burden of demonstrating “that he suffered unequal
treatment—the essence of an equal protection violation is, after all, discrimination of some sort.”
Lunini, 395 F.3d at 767-70.
Typically, a plaintiff in an equal protection case complains that he belongs to a group that
is suffering some sort of discrimination. Ind. Land Co., LLC v. City of Greenwood, 378 F.3d
705, 712 (7th Cir. 2004). The plaintiff “must prove that the defendants’ actions had a
discriminatory effect and were motivated by a discriminatory purpose.” Chavez v. Ill. State
Police, 251 F.3d 612, 635-36 (7th Cir. 2001) (citations omitted). To prove the “discriminatory
effect” component, a plaintiff must establish that he is a member of a protected class or
“otherwise similarly situated to members of the unprotected class,” and that he was treated
differently from members of the unprotected class. Id. at 636; see Srail v. Vill. of Lisle, 588 F.3d
940, 943 (7th Cir. 2009) (“Often an equal protection violation occurs when [the government]
draws distinctions among people based on a person’s membership in a ‘suspect’ class. Suspect
classes include race, alienage, and national origin.” (citations omitted)). To prove that the
defendant treated the plaintiff differently than those similarly situated in the unprotected class,
the plaintiff may name individuals in the unprotected class or use statistics. Chavez, 251 F.3d at
636. “Another typical equal protection challenge is based on denial of a fundamental right.
Fundamental rights include freedom of speech and religion.” Srail, 588 F.3d at 943 (citations
“Homeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental
right.” Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000) (collecting cases); see also
Sanchez v. City of Fresno, 914 F. Supp. 2d 1079, 1108-09 (E.D. Cal. 2012). “In the absence of
deprivation of a fundamental right or the existence of a suspect class, the proper standard of
review is rational basis.” Srail, 588 F.3d at 943; see, e.g., Saiger v. City of Chi., 37 F. Supp. 3d
979, 982 (N.D. Ill. 2014) (applying the rational basis test to plaintiff’s claim that the city violated
his right to equal protection by distinguishing between homeless and non-homeless sex
offenders). This requires the plaintiff to show that: “(1) the defendant intentionally treated him
differently from others similarly situated, (2) the defendant intentionally treated him differently
because of his membership in the class to which he belonged, and (3) the difference in treatment
was not rationally related to a legitimate state interest.” Smith v. City of Chi., 457 F.3d 643, 65051 (7th Cir. 2006) (citations omitted). In an equal protection claim based on a “class of one,” a
plaintiff need not demonstrate the second element of an equal protection challenge. Srail, 588
F.3d at 943.
Here, Rembert fails to provide evidence of any similarly-situated non-homeless persons
that have been treated differently. Rembert supports his claim that he was treated differently
with three purported facts: (1) that he was in fact homeless at the time of both encounters; (2)
that Hoffman knew that Rembert was homeless; and (3) that he believes that the Officers would
not have stopped and searched him if he were not homeless. Both Rembert’s homelessness and
Hoffman’s awareness of that fact, are, by themselves, insufficient to create an inference that the
Officers initiated either encounter because Rembert was homeless. Rembert’s “speculation
regarding the [O]fficers’ motive cannot overcome the contrary evidence that” the Officers’
initiated both encounters for legitimate reasons. Devbrow v. Gallegos, 735 F.3d 584, 588 (7th
In fact, Rembert does not dispute the facts underlying the Officers’ reasons for initiating
either encounter. Instead, Rembert argues that the Officers should provide evidence that they
“stopped and physically inspected anyone but a homeless individual for physical signs and
evidence of substance abuse.” (DE 28 at 19). This is incorrect. It is not the Officers’ burden to
prove that they treated Rembert the same as other similarly situated, non-homeless persons;
rather, it is Rembert’s burden to prove that the Officers treated him differently than other
similarly situated, non-homeless persons. Smith, 457 F.3d at 650-51. Consequently, Rembert
has failed to provide any facts demonstrating that the Officers “intentionally treated [Rembert]
differently” because he was homeless. Id. Having found that Rembert has failed to present an
issue of material fact as to the first element of rational-basis analysis, the Court does not need to
reach the second and third elements. See id. Similarly, the Court need not reach any additional
issues regarding Rembert’s “class of one” assertion because Rembert has failed to demonstrate
that he was treated differently than other similarly situated, non-homeless persons. Therefore,
the Court will grant summary judgment in the Officers’ favor on Rembert’s Fourteenth
Amendment claims as well.
C. The Officers Will Be Granted Summary Judgment as to Their Qualified-Immunity
The Officers assert that, even if they violated Rembert’s Fourth and Fourteenth
Amendment rights, qualified immunity shields them from liability. (DE 24 at 12 ¶ 10). “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.” Huff v. Reichert, 744 F.3d 999, 1003-04 (7th
Cir. 2014) (citations and internal quotation marks omitted). “Qualified immunity balances two
important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The
doctrine allows ‘ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.’” Gonzalez v. City of Elgin, 578 F.3d 526,
540 (7th Cir. 2009) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
There are “two key inquiries for qualified immunity assertions: (1) whether the facts,
taken in the light most favorable to the plaintiffs, show that the defendants violated a
constitutional right; and (2) whether that constitutional right was clearly established at the time
of the alleged violation.” Id. (citing Pearson, 555 U.S. at 232; Saucier v. Katz, 533 U.S. 194,
201 (2001)). Courts “may decide these questions in whatever order is best suited to the case at
hand.” Id. (citing Pearson, 555 U.S. at 236).
Because “the purpose of qualified immunity is to protect officers from guessing about
constitutional developments at their peril, the plaintiffs have the burden of showing that the
constitutional right was clearly established.” Id. (citing Purtell v. Mason, 527 F.3d 615, 621 (7th
Cir. 2008)). A plaintiff can show that the constitutional right is clearly established “by showing
that there is ‘a clearly analogous case establishing a right to be free from the specific conduct at
issue’ or that ‘the conduct is so egregious that no reasonable person could have believed that it
would not violate clearly established rights.’” Id. (quoting Smith, 242 F.3d at 742). If the issue
of qualified immunity “cannot be disentangled from disputed facts, the issue cannot be resolved
without a trial.” Id. (citing Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996)).
As discussed supra in parts III.A and III.B, a reasonable jury could not find that the
Officers violated Rembert’s Fourth and Fourteenth Amendment rights on either encounter.
Therefore, the first inquiry for a qualified immunity analysis is answered in the negative—that is,
the facts, taken in the light most favorable to Rembert, could not support a finding by a
reasonable jury that the Officers violated Rembert’s constitutional rights. Regarding the second
inquiry in a qualified immunity analysis as it pertains to Rembert’s Fourteenth Amendment
claims, Rembert does not argue that there is an analogous case establishing a constitutional right
that the Officers violated. Therefore, the Court will grant summary judgment to the Officers for
their qualified-immunity defense to Rembert’s Fourteenth Amendment claims, addressing the
second element of a qualified-immunity analysis with regards to Rembert’s Fourth Amendment
Even if Rembert had presented facts that could convince a jury that the Officers’ conduct
satisfies the first element of a qualified-immunity analysis as to his Fourth Amendment claims,
Rembert fails to present a clearly analogous case or establish that the Officers’ conduct was so
“egregious that no reasonable person could have believed it would not violate clearly established
rights.” Gonzalez, 578 F.3d at 540 (citation and internal quotation marks omitted). Rembert
argues that United States v. Tyler, 512 F.3d 405 (7th Cir. 2008), serves as an analogous case that
put the Officers on notice that their conduct would violate Rembert’s Fourth Amendment right.
In Tyler, two police officers noticed the defendant walking on a public street in
Hammond, Indiana, with an open beer bottle in his hand. 512 F.3d at 407. The officers believed
that it was a crime to walk in public with an open alcohol container, unaware that doing so was
in fact not a crime. Id. at 408. The officers approached the defendant and told him that he was
breaking the law by carrying the open beer bottle. Id. at 407. Then, one officer noticed a bulge
underneath the defendant’s pants around his belt and asked him what it was. Id. at 408. A
struggle ensued, and the officers found the defendant in possession of crack and powder cocaine.
Id. The Seventh Circuit found that the defendant was seized when the officers told him that he
was breaking the law because no reasonable person would feel free to leave at that point. Id. at
410-11. This seizure, however, violated the defendant’s Fourth Amendment right because the
officers lacked reasonable suspicion to conduct an investigatory stop as they had seized the
defendant based entirely on a mistake of law. Id. at 411 (“[W]e have held that a mistake of law
(as opposed to a mistake of fact) cannot justify an investigative detention.” (citing United States
v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006)).
Rembert argues that this case is similar to Tyler in that he “was outside, was approached
by two city officers, was accused of a crime, had a warrant check ran on his name, and gave the
officers no articulable reason to suspect him of a crime.” (DE 28 at 21). The Court disagrees;
Tyler is not analogous to this case. The Seventh Circuit held in Tyler that officers violate the
Fourth Amendment when they perform an investigative detention and their reasonable suspicion
is entirely grounded in a mistake of law. 512 F.3d at 407. Here, Rembert does not assert that the
Officers detained him based on a mistake of law; he argues, rather, that the circumstances of the
encounters do not amount to reasonable suspicion.12 Because Tyler is not an analogous case, the
Officers will be granted summary judgment on their qualified-immunity defense.
D. Defendants Will Be Granted Summary Judgment as to Rembert’s State-Law Claims
Rembert alleges that the City is liable for the torts of Hoffman, Tosland, and Jackson
under the doctrine of respondeat superior, specifically for claims of battery, false imprisonment,
The Court agrees with Rembert that Tyler affirms that police officers may not seize a person on the street
absent reasonable suspicion. However, Tyler does not establish that circumstances similar to those in this case—i.e.,
a police officer’s experience and knowledge of an individual’s criminal history, finding an individual in a high-crime
area known for dealing drugs without a purpose, and the individual attempting to flee—fail to create reasonable
and false arrest. Under Indiana law, “[i]f an officer uses unnecessary or excessive force, the
officer may commit the torts of assault and battery.” Wilson v. Isaacs, 929 N.E.2d 200, 203 (Ind.
2010). “Therefore, to establish a battery claim against a police officer effectuating an
investigatory stop or arrest, a plaintiff must show that the officer used ‘unnecessary or excessive
force.’” Campbell v. City of Indianapolis, No. 1:10-CV-01079-JMS, 2011 WL 5088633, at *5
(S.D. Ind. Oct. 25, 2011) (quoting Wilson, 929 N.E.2d at 203).
Here, Rembert fails to allege any facts suggesting that the Officers used excessive force
on either occasion. The extent of physical contact alleged is that the Officers patted Rembert
down during one encounter and touched his hands on another. Rembert admits that the contact
did not cause any physical injury during either encounter. In other words, Rembert fails to allege
“any amount of force,” Wheatley v. Hendricks Cty. Sheriff, No. 1:11-CV-0046-TWP-DML, 2012
WL 1833942, at *7 (S.D. Ind. May 18, 2012) (citation and internal quotation marks omitted),
such as a “shove, [or] push,” Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.1996), that could
cause “mere bumps and bruises,” which could give rise to a viable excessive force claim,
Wheatley, 2012 WL 1833942, at *7. Thus, even when viewing the facts in light most favorable
to Rembert and affording him all reasonable inferences, no reasonable jury could conclude that
the Officers used unnecessary or excessive force against him. Therefore, the Officers will be
granted summary judgment as to Rembert’s battery claim.
Regarding Rembert’s remaining state law claims, the Supreme Court of Indiana and the
Seventh Circuit agree that “the terms ‘false arrest’ and ‘false imprisonment’ [are]
interchangeabl[e] when a plaintiff’s claim stems from detention by authorities without probable
cause.” Bentz v. City of Kendallville, 577 F.3d 776, 780 (7th Cir. 2009) (citations omitted); see
Row v. Holt, 864 N.E.2d 1011, 1016 n.4 (Ind. 2007). Under Indiana law, “[f]alse imprisonment
is the unlawful restraint upon one’s freedom of movement or the deprivation of one’s liberty
without consent.” Miller v. City of Anderson, 777 N.E.2d 1100, 1104 (Ind. Ct. App. 2002)
(citation omitted); see Bentz, 577 F.3d at 779 (quoting Earles v. Perkins, 788 N.E.2d 1260, 1265
(Ind. Ct. App. 2003)). “If a defendant has probable cause to arrest the plaintiff or reasonable
suspicion to make a Terry stop, or if the plaintiff cannot show an absence of probable cause or
reasonable suspicion, then the plaintiff’s false imprisonment claim fails.” Alexander v. Doe, No.
IP 01-1674-C-K/T, 2003 WL 22244782, at *10 (S.D. Ind. Aug. 20, 2003) (citing Miller, 77
N.E.2d at 1104). Having found, supra, that the Officers did have reasonable suspicion to
perform an investigatory stop of Rembert in both encounters, Rembert’s false imprisonment
“A defendant may be liable for false arrest when he or she arrests the plaintiff in the
absence of probable cause to do so.” Miller, 777 N.E.2d at 1104 (citation omitted). “Indiana
law defines an ‘arrest’ as ‘the taking of a person into custody, that he may be held to answer for
a crime.’” Elliot v. Sheriff of Rush Cty., 686 F. Supp. 2d 840, 867 (S.D. Ind. 2010) (quoting Ind.
Code. § 35-33-1-5). However, under Indiana law an “arrest” does not occur during an
investigatory stop. See Ind. Code § 35-33-1-5; Elliot, 686 F. Supp. 2d at 867 (“An investigatory
stop does not constitute an arrest under the Indiana definition of arrest.” (citing James v. State,
622 N.E.2d 1303, 1307 (Ind. Ct. App. 1993))).
Rembert does not argue that he was taken into custody, handcuffed, or arrested during
either encounter with the Officers. Instead, Rembert argues that the Officers are liable for false
arrest because they “restricted [his] liberty and freedom of movement absent his consent without
legal cause or process.” (DE 28 at 22). Without a doubt, an investigatory stop briefly restricts
an individual’s freedom of movement. See Wardlow, 528 U.S. at 126 (accepting that Terry
presents the risk of “allowing such detentions”). However, because an investigatory stop does
not rise to the level of an arrest, the Court will grant the Officers’ motion for summary judgment
on Rembert’s claims of false imprisonment and false arrest under Indiana law.13
Having granted summary judgment to the Officers on Rembert’s state-law tort claims, his
claims against the City under the doctrine of respondeat superior also fail. See Perry v. City of
Fort Wayne, No. 1:15 CV 397, 2017 WL 3131012, at *9 (N.D. Ind. July 21, 2017) (“Because
the defendant officers are entitled to summary judgment on the state law tort claims, Perry’s
respondeat superior claim fails as well.”); Branham v. Celadon Trucking Servs., Inc., 744
N.E.2d 514, 525 n.2 (Ind. Ct. App. 2001) (finding that because “summary judgment should be
granted on all counts against the individual defendants, [the court] need not decide” the issue of
the employer’s vicarious liability under respondeat superior). Consequently, summary judgment
will be granted in favor of the City on all of Rembert’s state-law claim as well.
For the foregoing reasons, Defendants’ motion for summary judgment (DE 26) is
GRANTED, and Rembert’s claims against Defendants are DISMISSED. The Clerk is
DIRECTED to enter judgment in favor of Defendants and against Rembert.
Rembert supports his claim that false arrest is detention without process by citing Bianchi v. McQueen,
818 F.3d 309 (7th Cir. 2016). However, the plaintiff’s detention in Bianchi was an arrest pursuant to a warrant
issued after a grand jury indictment. 818 F.3d at 321. Thus, Bianchi is not applicable to the facts of this case
because Rembert does not allege that he was arrested. Rembert also asserts that, under Conwell v. Beatty, 667
N.E.2d 768 (Ind. Ct. App. 1996), the Officers are liable in tort because they arrested him without probable cause.
However, again, the Officers did not arrest Rembert; they performed an investigatory stop, which requires
reasonable suspicion, not probable cause. Consequently, Rembert fails to present any authority indicating that he
was falsely arrested.
Entered this 29th day of September 2017.
/s/ Susan Collins
United States Magistrate Judge
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