SIMPSON v. CITY OF INDIANAPOLIS et al
ORDER granting Defendants' 86 Motion for Summary Judgment. Signed by Judge Richard L. Young on 1/11/2017. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CITY OF INDIANAPOLIS and ANDREW )
ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
On June 3, 2012, Plaintiff, Joseph Simpson, saw that several police officers were
outside of a house on his street. He knew that a young boy lived in the house with his
grandmother, and believed that the boy was home alone at the time. He wanted to check
on the boy, so he walked over to the neighbor’s house. The police officers at the home
explained that they were investigating a reported burglary in progress and needed
Simpson to leave the crime scene. Before making his way back home, Simpson called
out to the boy twice and then argued with an officer. During this encounter, officers
ordered him to leave and threatened him with arrest several times. An officer ultimately
came up behind Simpson and attempted to perform an arrest. Simpson initially snatched
his hand away, but then submitted to the arrest. He was ultimately charged with refusing
to leave the scene of an emergency incident area and resisting law enforcement. At trial,
the first charge was dismissed and he was found not guilty of the second.
Simpson filed this lawsuit against Defendants, the City of Indianapolis and Officer
Andrew McKalips, to redress what he believes was an unlawful arrest and prosecution.
Defendants now move for summary judgment. For the reasons set forth below, the court
GRANTS Defendants’ motion.
On June 3, 2012, at approximately 5:40 p.m., M.S., a fourteen-year-old boy who
was home alone, called 911. (Filing No. 88-1, Computer-Aided Dispatch (“CAD”)
Report at 1; Filing No. 88-2, Deposition of M.S. 11:21-25, 12:8-10; Filing No. 88-3, 911
Audio, Tracks 1, 2). He reported that five males were trying to break into his home
through a window. (911 Audio, Track 2).
Several officers with the Indianapolis Metropolitan Police Department (“IMPD”)
were dispatched to investigate the reported burglary in progress. (CAD Report at 1; 911
Audio, Track 6; Filing No. 88-4, Probable Cause Affidavit (“PC Aff.”) at 1). When the
officers arrived at the scene, Officer McKalips stopped two juveniles in front of the home
for questioning while two other officers walked around the perimeter of the house to look
for signs of forced entry. (PC Aff. at 1). A fourth officer subsequently arrived at the
scene to assist. (Id.). M.S., who was hiding in the basement, was still on the phone with
the 911 operator. (911 Audio, Track 2). After the officers completed a perimeter check,
they asked the 911 operator to have the boy come to the door. (Id. at Track 6). The 911
operator told M.S. that it was safe for him to go to the door, but he was too scared to do
so. (Id. at Track 2).
While the officers were investigating the situation, Simpson, who happened to live
across the street and a few houses down, saw the police officers and decided to walk over
so that he could check on M.S. (Filing No. 88-5, Deposition of Joseph Simpson 55:1518, 56:16-57:1; Filing No. 95-1, Affidavit of Joseph Simpson ¶ 1). He approached the
house by walking up a paved path that led from the public sidewalk up to the home’s
front porch. (Simpson Aff. ¶ 11). He stopped at the end of the path at the bottom of the
steps to the front porch. (Simpson Dep. 69:19-24). Officers at the front door told
Simpson that they were investigating a burglary in progress. (Id. 70:1-2). He replied that
M.S. was inside the home and that he could help them get the boy to come outside. (Id.
70:3-6). The officers responded that Simpson needed to leave the area because it was a
crime scene at that point. (Id. 70:6-8). Simpson said he just wanted to help. (Id. 70:8-9).
The officers declined his offer to help and reiterated that it was a crime scene. (Id. 70:9).
Simpson testified that during this exchange, the officers told him “that it was a crime
scene and to leave” two times. (Id. 74:21-23).
Simpson began walking back down the path toward the public sidewalk when he
noticed that one of the home’s windows was open. (Simpson Aff. ¶¶ 15-16). He knew
that the open window was in M.S.’ bedroom, so, as he was walking, he “called out” to the
boy and said, “Melvin, open the door.” (Id. ¶ 16; Simpson Dep. 77:1-6). Simpson then
continued moving away from the home. (Simpson Dep. 78:3-7).
M.S. was finally persuaded by the 911 operator that it was safe to meet the police
at the door. (911 Audio, Track 4). He subsequently opened the door for the officers.
(Id.). By that time, Simpson had moved away from the house under investigation and
was standing on the sidewalk in front of the adjacent property. (Simpson Dep. 78:3-13).
He saw the police go into the house and, shortly thereafter, come back out onto the front
porch with M.S. (Id. 78:10-13). Simpson again “called out” to the boy, asking “was he
okay and did he get ahold of his grandmother.” (Id. 78:14-15; Simpson Aff. ¶ 20).
Officer McKalips yelled to Simpson that he “need[ed] to keep moving” because he
had “been asked to leave the crime scene.” (Simpson Dep. 80:15-19). Officer McKalips
added, “[I]f you don’t leave, I will arrest you.” (Simpson Aff. ¶ 20). Simpson responded
“that he had left the scene, and that he was nowhere near the scene.” (Id. ¶ 21). Officer
McKalips then explained that Simpson needed to do two specific things: (1) get 150 feet
away from the emergency area, and (2) get inside his house. (Simpson Dep. 82:16-20).
He again added that if Simpson did not comply, he would be arrested. (Simpson Aff. ¶
22). Simpson retorted that moving 150 feet away from the area would require him to
walk past his own house–he would be “standing outside in the alley somewhere.”
(Simpson Dep. 82:21-23). He told Officer McKalips that he was “a City-County Council
person,” and therefore understood “what police do.” (Id. 83:25-84:1). He also
emphasized that he was 61 years old, a property owner, and a taxpayer, that he paid
Officer McKalips’ salary, and that he was standing on public property at the time. (Id.
Officer McKalips stated, “Well, if you don’t continue, I’m going to arrest you.”
(Id. 84:3-4). Simpson replied, “For what? I am – I’m moving, I ain’t doing anything.”
(Id. 89:23-90:2). Simpson crossed the street and was standing on the sidewalk in front of
his house when he heard his daughter, who had been outside watching the events unfold,
say, “Daddy, turn around, he’s got a Taser on you.” (Id. 84:6-16; Simpson Aff. ¶ 29). As
Simpson started to turn around, he felt his hand being grabbed from behind. (Simpson
Dep. 84:20-21). He “snatch[ed] it back.” (Id. 84:22). He then heard Officer McKalips
say, “You’re under arrest.” (Id. 84:22-23). Simpson turned and saw Officer McKalips
pointing a Taser at him. (Id. 84:25-85:1). He subsequently turned back around, put his
hands behind his back, and allowed Officer McKalips to handcuff him. (Id. 85:3-7).
Simpson was arrested and transported from the scene. (Simpson Aff. ¶ 38).
Officer McKalips prepared a probable cause affidavit. (See P.C. Aff.). Based on
that affidavit, a special prosecutor charged Simpson with (1) refusing to leave the scene
of an emergency incident area, and (2) resisting law enforcement, both as misdemeanors.
See State v. Simpson, No. 49F07-1206-CM-037394 (Marion Super. Ct. 2012). On
November 19, 2012, the Marion Superior Court dismissed Count 1 and, after a bench
trial, found Simpson not guilty on Count 2. Id. This lawsuit ensued.
II. Legal Standard
“Summary judgment is proper where, construing facts and drawing inferences in
the light most favorable to the non-moving party, ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Novoselsky v.
Brown, 822 F.3d 342, 348-49 (7th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).
Although his Complaint is somewhat unclear, the parties appear to agree that
Simpson has advanced five counts: (1) a Fourth Amendment unreasonable seizure claim
against Officer McKalips 1 based on the alleged lack of probable cause to arrest 2; (2) a
Fourth Amendment and/or Fourteenth Amendment malicious prosecution claim against
Officer McKalips; (3) a state law false arrest claim against Officer McKalips; (4) a
Monell 3 claim against the City for failure to train its police officers on the proper
application and interpretation of the emergency incident area statute, which allegedly
caused the false arrest; and (5) another Monell claim against the City for failure to train
its officers on the proper application and interpretation of the emergency incident area
statute, which allegedly caused the malicious prosecution. Defendants move for
summary judgment on all counts and Simpson opposes each part of the motion. For
reasons that will become clear, the court analyzes Simpson’s claims in two groups: (a)
Counts 1, 3, and 4; and (b) Counts 2 and 5.
A. Counts 1, 3, and 4
Counts 1, 3, and 4 all turn on whether Officer McKalips had probable cause to
perform the arrest. It is well established that probable cause is an “absolute defense” to a
Section 1983 false arrest claim. Hurem v. Tavares, 793 F.3d 742, 745 (7th Cir. 2015).
The same is true for a false arrest claim under Indiana law. See Row v. Holt, 864 N.E.2d
1011, 1016 (Ind. 2007) (“A false arrest requires absence of probable cause.”).
Furthermore, Simpson’s first Monell claim is derivative of his unreasonable seizure
For all counts, Officer McKalips is sued only in his individual capacity.
This type of claim is often referred to as one for false arrest. See Gonzalez v. Vill. of W.
Milwaukee, 671 F.3d 649, 655 (7th Cir. 2012) (“‘False arrest’ is shorthand for an unreasonable
seizure prohibited by the Fourth Amendment.”).
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
claim. If the constitutional claim fails on the merits, his Monell claim must necessarily
fail as well. See Petty v. City of Chi., 754 F.3d 416, 424 (7th Cir. 2014) (“[I]f no
constitutional violation occurred in the first place, a Monell claim cannot be supported.”).
Therefore, finding probable cause to arrest for a single crime ends the analysis for Counts
1, 3, and 4. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007)
(emphasis original) (“[P]robable cause to believe that a person has committed any crime
will preclude a false arrest claim, even if the person was arrested on additional or
different charges for which there was no probable cause . . . .”).
“[P]robable cause for an arrest exists ‘if the totality of the facts and circumstances
known to the officer at the time of the arrest would warrant a reasonable, prudent person
in believing that the arrestee had committed, was committing, or was about to commit a
crime.’” United States v. Sands, 815 F.3d 1057, 1062 (7th Cir. 2015) (quoting Abbott v.
Sangamon Cnty., Ill., 705 F.3d 706, 714 (7th Cir. 2013)). This is a “commonsense,
practical question.” United States v. Hill, 818 F.3d 289, 294 (7th Cir. 2016). At bottom,
the officer’s belief that the arrestee had committed an offense “need only be reasonable.”
Bailey v. City of Chi., 779 F.3d 689, 694 (7th Cir.), cert. denied, 136 S. Ct. 200 (2015).
Determining whether law enforcement had probable cause to arrest “depends on
the elements of the underlying criminal offense.” Neita v. City of Chi., 830 F.3d 494, 497
(7th Cir. 2016). Pursuant to Indiana law, “A person who is not a firefighter who
knowingly or intentionally refuses to leave an emergency incident area immediately after
being requested to do so by a firefighter or law enforcement officer commits a Class A
misdemeanor.” Ind. Code § 35-44-4-5 (repealed 2012) (current version at Ind. Code § 357
44.1-4-5). 4 An “emergency incident area” is defined as “the area surrounding a structure,
vehicle, property, or area that is: (1) defined by police or firefighters with flags,
barricades, barrier tape, or other markers; or (2) one hundred and fifty (150) feet in all
directions from the perimeter of the emergency incident; whichever is greater.” Ind.
Code § 35-44-4-2 (repealed 2012) (current version at Ind. Code § 35-44.1-4-2). Section
5 can effectively be broken down into three elements: a person violates this statute if (1)
he is not a firefighter, (2) he refuses to leave an emergency incident area immediately
after being requested to do so by a firefighter or law enforcement officer, and (3) he acts
knowingly or intentionally.
The court has little trouble concluding that Officer McKalips had probable cause
to arrest Simpson for refusing to leave an emergency incident area based on these
elements. First, Simpson does not claim to be a firefighter. Second, Simpson’s own
deposition testimony and affidavit establish that he did not immediately leave the area
despite being repeatedly instructed to do so by law enforcement. The officers on the
porch told him that he needed to leave twice, but Simpson did not turn around and walk
back home without further incident. Instead, he called out to the burglary victim two
separate times. Then, after being instructed to leave yet again, he quipped that he was
nowhere near the crime scene. When specifically ordered to move 150 feet away from
the home under investigation, Simpson challenged Officer McKalips’ authority and
began arguing with him. He even touted his status as “a City-County Council person”
All statutes located in Ind. Code § 35-44-4 were repealed and recodified at Ind. Code § 3544.1-4 on July 1, 2012.
and asserted that he paid Officer McKalips’ salary. This conduct satisfies the second
element. Lastly, Simpson possessed the requisite intent. He acknowledges that he heard
the repeated commands to leave the area. Furthermore, by arguing with Officer
McKalips over whether he needed to move any further, Simpson demonstrated that he
was acting knowingly and intentionally.
Simpson does not engage in a meaningful discussion of these elements. Rather, he
devotes much ink to an argument of statutory interpretation. He contends that Section 5
narrowly applies to emergencies with firefighters present (i.e., emergency scenes with
only law enforcement officers do not qualify), and submits the following as evidence: (a)
a proposed IMPD legal bulletin that states, “The Marion County Prosecutor’s Office and
the Office of Corporation counsel have determined . . . [t]he term ‘emergency incident
area’ specifically applies to Fire Department action scenes only and does not apply to
police action scenes”; (b) testimony from the City’s representative in a Rule 30(b)(6)
deposition in an unrelated case allegedly establishing that the City reversed its official
position on the statute and agreed with the interpretation espoused in the proposed
bulletin; (c) deposition testimony from Officer McKalips in this case indicating that after
Simpson’s arrest, he learned that it was a matter of policy to only enforce the statute
when firefighters are present; and (d) in Simpson’s state criminal case, the Marion
Superior Court found the statute to be ambiguous as to whether it applied to emergency
scenes with no firefighter presence, and thus dismissed the charge. Because firefighters
were not called to the scene of the reported burglary, Officer McKalips did not have
probable cause to arrest Simpson under this statute, or so the argument goes. Simpson
also contends that interpreting Section 5 to apply when only police officers are present
could raise First Amendment concerns because the public has a right to observe the
actions of public officials, including police officers.
Even assuming that Simpson has presented accurate assessments of the evidence
and the First Amendment, his argument wholly ignores well-settled rules of statutory
interpretation. In Indiana, “the first step is to determine whether the Legislature has
spoken clearly and unambiguously on the point in question. When a statute is clear and
unambiguous, [courts] apply words and phrases in their plain, ordinary, and usual sense.”
Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (citation omitted). A statute “is
deemed ambiguous and thus open to judicial construction” only if it “is susceptible to
more than one interpretation.” Thatcher v. City of Kokomo, 962 N.E.2d 1224, 1227 (Ind.
2012). Thus, if a court finds no ambiguity, the judicial inquiry is complete. See Basileh
v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009) (“Clear and unambiguous statutes leave no
room for judicial construction.”); Ind. Dep’t of State Revenue v. Horizon Bancorp, 644
N.E.2d 870, 872 (Ind. 1994) (“An unambiguous statute must be held to mean what it
plainly expresses, and its plain and obvious meaning may not be enlarged or restricted. . .
. [A] statute which is clear and unambiguous on its face . . . must be applied and
enforced as written.”) (citations omitted). The text of the law governs even if there are
“strong policy or constitutional reasons to construe the statute in some other way.”
Brownsburg Area Patrons Affecting Change v. Baldwin, 943 F. Supp. 975, 986 (S.D. Ind.
1996) (quoted in Brownsburg Area Patrons Affecting Change v. Baldwin, 714 N.E.2d
135, 139 (Ind. 1999)).
The court holds that Indiana Code § 35-44-4-5 is unambiguous because the plain
language is not susceptible to more than one interpretation. There is nothing in the text
of Section 5 to suggest that it only applies when firefighters are present. That limitation
is simply not in the statute. Rather, Section 5 makes clear that the command to leave may
come from either a firefighter or a police officer. How the City, IMPD, the Marion
County Prosecutor’s Office, or the Office of Corporation Counsel interpret this statute is
of no moment because the plain language is unambiguous. There is no room for judicial
construction under these circumstances. But even if Section 5 was unclear, the court’s
analysis would center on ascertaining and implementing the General Assembly’s intent.
A particular municipality’s or agency’s understanding of the law would be given little, if
any, weight. The fact that the Marion Superior Court agreed with Simpson’s position
does not change this conclusion. See In re Howell, 27 N.E.3d 723, 726 (Ind. 2015)
(“Differing judicial opinions about the meaning of a provision are not conclusive of
ambiguity, but they are evidence that an ambiguity may exist.”). See also Frye v.
Bowman, 193 F. Supp. 2d 1070, 1089 (S.D. Ind. 2002) (“[S]tate trial court decisions are
not binding on higher state courts, other state trial courts, or this court.”).
Reasonable people could not disagree as to whether Officer McKalips had
probable cause to arrest Simpson for refusing to leave an emergency incident area.
Therefore, Counts 1, 3, and 4 fail as a matter of law. Summary judgment for Defendants
on those counts is required.
B. Counts 2 and 5
In Count 2, Simpson brings a claim for malicious prosecution against Officer
McKalips pursuant to the Fourth and Fourteenth Amendments. Defendants advance
several arguments in support of summary judgment on this claim, but the court need not
address most of them because Simpson does not contest one. Initially, the parties agree
that Simpson must proceed only under the due process clause of the Fourteenth
Amendment, not the Fourth Amendment. This is problematic because Simpson has not
presented a constitutional violation independent of the alleged wrongful arrest. As the
Seventh Circuit explained,
[A] warrantless arrest . . . cannot serve as the basis for a malicious
prosecution action. Malicious prosecution provides a remedy for a
deprivation of liberty pursuant to legal process—but when the arrest takes
place without a warrant, the plaintiff only becomes subject to legal process
afterward, at the time of arraignment.
Serino v. Hensley, 735 F.3d 588, 593-94 (7th Cir. 2013) (citing Heck v. Humphrey, 512
U.S. 477, 484 (1994)) (emphasis original). Paraphrasing the Serino court, Simpson’s
warrantless arrest does not count—he must show that he suffered a constitutional
deprivation after he was arraigned. Yet, he fails to state any kind of post-arraignment
liberty deprivation. For instance, he does not allege that he was held without bail or that
the state imposed a travel restriction. Id. at 594.
Simpson acknowledges that his claim is doomed under the current state of the law
in this circuit. However, he essentially argues that Serino will not be good law for much
longer. In support, he emphasizes that the Supreme Court recently granted certiorari on
this issue. See Manuel v. City of Joliet, 590 F. App’x 641 (7th Cir. 2015), cert. granted,
136 S. Ct. 890 (2016). The issue in Manuel is as follows:
The question presented is whether an individual’s Fourth Amendment right
to be free from unreasonable seizure continues beyond legal process so as to
allow a malicious prosecution claim based upon the Fourth Amendment.
This question was raised, but left unanswered, by this Court in Albright v.
Oliver, 510 U.S. 266 (1994). Since then, the First, Second, Third, Fourth,
Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a
Fourth Amendment malicious prosecution claim is cognizable through 42
U.S.C. § 1983 (“Section 1983”). Only the Seventh Circuit holds that a Fourth
Amendment Section 1983 malicious prosecution claim is not cognizable.
See Manuel v. City of Joliet, No. 14-9496 (U.S. 2016).
Simpson maintains that the Court is likely to reverse the Seventh Circuit, and
therefore this court should defer ruling on Counts 2 and 5 until a decision is handed
down. This request is denied for several reasons. Initially, the court notes that despite
Simpson’s firm belief that the Court will reverse the Seventh Circuit, it might not. The
fact that the Seventh Circuit stands alone in its position on this issue does not necessarily
mean that it is incorrect. Second, the Court may not even reach the question; it may find
that the issue is not properly before it or the appeal may be voluntarily dismissed. Third,
it is time for this protracted litigation to come to an end. This case was filed in May
2013, nearly four years ago, to redress an arrest that occurred in June 2012. Further delay
would not serve the interests of justice. Most importantly though, this court is required to
apply binding precedent. Unless or until the Supreme Court reverses the Seventh Circuit,
Serino is binding precedent.
Count 2 fails as a matter of law pursuant to Serino. Whereas Count 5 is a
derivative Monell claim against the City, it likewise fails. See D.S. v. E. Porter Cnty.
Sch. Corp., 799 F.3d 793, 800 (7th Cir. 2015) (“[A] municipality cannot be found liable
under Monell when there is no underlying constitutional violation by a municipal
employee.”). Summary judgment for Defendants is required.
Therefore, Defendants’ Motion for Summary Judgment (Filing No. 86) is
SO ORDERED this 11th day of January 2017.
Distributed Electronically to Registered Counsel of Record.
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