HOSSTETLER et al v. VAUGHN et al

Filing 57

ENTRY ON DEFENDANTS' 39 MOTION FOR SUMMARY JUDGMENT - For the foregoing reasons, the Defendants' Motion for Summary Judgment (Filing No. 39 ) is GRANTED. Summary judgment is granted on Shara's Fourth Amendment claims against Southport, Chief Vaughn, and Swanson, and on the claim for defamation against Southport, Chief Vaughn, and Swanson, and all claims are dismissed. (See Entry.) Signed by Judge Tanya Walton Pratt on 2/25/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SHARA B. HOSTETLER,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF SOUTHPORT, THOMAS L. VAUGHN, )
and JASON SWANSON,
)
)
Defendants.
)

Case No. 1:17-cv-00708-TWP-TAB

ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment filed pursuant to
Federal Rule of Civil Procedure 56 by Defendants the City of Southport (“Southport”), Thomas L.
Vaughn, and Jason Swanson (collectively, “Defendants”) (Filing No. 39). Plaintiff Shara Hostetler
(“Shara”) filed this action alleging violation of her Fourth Amendment rights under 42 U.S.C. §
1983 (“§ 1983”) following an illegal search of her home, and state law claims. Defendants contend
they are entitled to judgment as a matter of law. For the following reasons, the Court grants
Defendants’ Motion for Summary Judgment.
I.

BACKGROUND

The following facts are not necessarily objectively true, but as required by Federal Rule of
Civil Procedure 56, the facts are presented in the light most favorable to Shara as the non-moving
party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). This case and its companion case, Marc Hostetler v. City of Southport,
1:17-cv-001564-TWP-TAB, both arise out of events leading up to and including April 25, 2015,
which culminated in a search of Shara’s home, and the arrest of her friend and co-parent, Marc

Hostetler (“Marc”). (Filing No. 41-6.) 1 The facts and applicable law in both matters are so similar
that this Court adopts, for the most part, the reasoning and analysis of the companion decision.
Shara and Marc lived together at 7820 Partridge Road, Southport, Indiana (the “Partridge
Road residence”) for approximately a year before Marc moved out in January 2015, and they
remained good friends and co-parents of the son they share. After moving out in January 2015,
Marc frequently spent time at Shara’s home on Partridge Road, visiting and babysitting his son, as
well as Shara’s four other children. Marc would sometimes spend the night and “maybe a third of
the time” spend the day at the Partridge Road residence, while co-parenting. Marc was not on
Shara’s lease, and he owned his own condominium on Punto Alto Circle located in Indianapolis,
Indiana (the “Punto Alto Circle condo”).
In 2015, Shara was employed as the secretary for the Warden at Marion County Jail II in
Indianapolis. At the time of the search, she was seeking the Republican nomination for ClerkTreasurer of Southport, Indiana.

Throughout her campaign, she received the support and

assistance of Marc, and he frequently visited Shara’s home on Partridge Road in Southport to do
campaign work, babysit and to visit his son
Defendant Thomas L. Vaughn (“Chief Vaughn”) was the chief of police in Southport. His
wife, Jane Vaughn, was employed as Southport’s Deputy Clerk-Treasurer under Clerk-Treasurer
Dianna Bossingham, who was the incumbent and Shara’s opponent in the 2015 primary election.
(Filing No. 49-3 at 37.)
In early 2015, at a Southport City Council meeting, Chief Vaughn received a tip from
Ashley Davis (“Davis”), that Marc was “impersonating a police officer again and that he was
carrying a firearm.” (Filing No. 41-1 at 5.) Davis was Dianna Bossingham’s campaign manager
Although they share the same last name, Marc and Shara were never married. In 2012, after the birth of their son,
Shara legally changed her last name to Hostetler because she wanted to share the name with her son by Marc.

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and a contributor to Dianna Bossingham’s political committee. (Filing No. 49-5 at 5, 10.) Davis
told Chief Vaughn that she wished to remain anonymous because she was “scared” of Marc. (Filing
No. 41-1 at 6.) Davis did not specify when or where or how Marc committed these acts—and
Vaughn did not ask her for details. Chief Vaughn responded that he would give the information to
a detective and let him check into her complaint. Id. at 5. Chief Vaughn assigned the investigation
of Davis’s allegations to Jason Swanson (“Swanson”), an unpaid reserve detective on Southport’s
police department. (Filing No. 41-1 at 5, 10.)
Unbeknownst to Swanson, Chief Vaughn’s wife, Jane Vaughn, was Bossingham’s Deputy
Clerk and actively campaigned for Bossingham. Facebook pictures, show Chief Vaughn and
Bossingham together at campaign events. On primary election day, Shara observed Chief Vaughn
and Davis talking together at a polling place as Davis campaigned for Bossingham. Shara believes
Chief Vaughn wished to arrest Marc to damage Shara’s reputation with voters and ensure that she
would lose the primary election.
A.

The Investigation
Swanson had been a volunteer detective for the Southport Police Department since March

2015 (Filing No. 41-2 at 4-6). Within a week of being hired, he received a telephone call from
Chief Vaughn relaying the complaint from Davis that Marc was carrying a firearm and
impersonating an officer. Id. at 6. Chief Vaughn did not inform Swanson that Marc had previously
worked at the Southport Police Department. (Filing No. 41-1 at 6.)
Swanson telephoned Davis, and Davis reported that she had seen Marc wearing a firearm,
that he kept it in his vehicle and she believed he was representing himself as a police officer. Id.
Swanson began an investigation, which included checking Marc’s social media pages. On Marc’s

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Facebook page, he discovered a photograph of Marc wearing a Southport Police Department polo
shirt on which the badge is partially visible. Id. at 23.
Marc had previously worked as a deputy for the Marion County Sheriff from 1999-2002,
a Perry Township Constable from 2002 until January 2005, and as a consultant for the Southport
Police Department. (Filing No. 41-3 at 8.) In January 2005, Marc was arrested for criminal
trespass and stalking a former girlfriend. He was ultimately convicted on the felony stalking
charge; however, the D felony was automatically reduced to a misdemeanor upon his successful
completion of probation. (Filing No. 49-3 at 33.) In 2009, Marc pled guilty to D felony battery.
(Filing No. 41-5, Filing No. 41-3 at 11.) After his arrest and conviction on the D felony battery
Marc worked various jobs as a security guard. He also worked part-time and unpaid for the
Southport Police Department as a consultant doing background checks on potential hires and
serving as Chaplain. (Filing No. 49-3 at 47-49.) The Southport Police Department issued him a
uniform and a badge identifying him as a certified chaplain. Id at 49.
Early in his investigation, Swanson learned that Marc used two addresses: a property
records search through the assessor’s office revealed the condominium he owned on Punto Alto
Circle in Indianapolis, and Shara’s home at 7820 Partridge Road in Southport, which Marc had
used as a business address and where he was registered to vote. (Filing No. 41-2 at 7, 15-16.)
Swanson sat in his car and surveilled both locations several days a week for approximately a
month. Id. at 7. He noticed that Marc went to and from the Partridge Road residence almost every
day but almost never visited the Punto Alto Circle condo. Id. Swanson never observed Marc
wearing an officer’s uniform or doing anything to suggest he was impersonating an officer,
although he did observe Marc wearing tactical gear on his way to his job as a security guard. Id.
at 8-9. On at least three occasions during his surveillance Swanson observed Marc carrying a

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handgun on his left hip. Id. at 13. Marc denies that he ever carried or possessed a firearm of any
type during this period, and the only thing he would carry was his iPhone cell phone. (Filing No.
49-3 at 75.) Marc concedes that during the time he was surveilled, he did not have a handgun
permit to carry a firearm and his felony battery conviction precluded him from possessing a
firearm. Id. at 73-74.
Swanson did not arrest Marc when he believed he saw him carrying a gun; instead he
continued his surveillance to see whether Marc would impersonate an officer. Id. at 8-9. When
Marc did not impersonate a police officer, Swanson sought a warrant to search the Partridge Road
residence.
B.

The Search
On April 24, 2015, Swanson presented a Search Warrant Affidavit for the Partridge Road

residence to a magistrate judge. The Affidavit presents the following:
On or about March 16th, 2015, This [sic] affiant received information from an
individual known to police and wishes to remain anonymous, that Marc D. Hostetler,
DOB [ ], had been representing himself to be a police officer and was in possession
of at least one firearm. As recently as February of 2015, the individual observed
Hostetler to be in possession of a handgun and observed him to be wearing a shirt
that had a Southport Police Department badge emblem on the left breast.
This affiant is familiar with Hostetler because he is a former employee of the Marion
County Sheriff’s Department and the Southport Police Department. This affiant is
aware that Mr. Hostetler was convicted of Stalking as a D felony on February 18,
2005, under Indiana Cause Number 49G17-0412-FD-223584. On October 24, 2007,
the court granted Mr. Hostetler’s Petition for Alternate Misdemeanor Sentencing
and the judgment of conviction was entered as a Class A Misdemeanor. Mr.
Hostetler was convicted of Battery as a D Felony on January 8, 2009, under Cause
Number 49G16-0711-FD-243299. On April 17, 2015, the court took Mr. Hostetler’s
Petition for Alternate Misdemeanor Sentencing under advisement. The felony
battery conviction precludes Mr. Hostetler from possessing a firearm. In addition,
a review of Indiana State Police records by your Affiant indicated Hostetler does not
have a handgun permit.
On March 16th – April 18th, 2015, this affiant conducted surveillance on the
residence of Mr. Hostetler, as reported by the known complainant, to be located at
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7820 Partridge Road, Southport, IN 46227. This affiant observed Mr. Hostetler exit
the residence several times during this period with a handgun on his left waistband,
specifically on March 20, 2015, April 2, 2015, April 3, 2015, and April 10, 2015.
On two of those dates, this affiant observed Mr. Hostetler take the weapon from his
waistband and place it in the driver side compartment under the seat or dashboard in
his vehicle, a maroon Chevy Avalanche, Indiana license plate number TK690LUU.
On one of those dates he then returned to the house. On the other date, he then
entered the car and drove away from the residence.
On March 20th, 2015, I conducted a search of Social Media for Marc Hostetler. I
located a profile on the website “Facebook” which appears to belong to Mr.
Hostetler. A photo added on 11/12/2013 that shows a male, who I recognize as Marc
Hostetler, wearing a Southport Police Department shirt and appears to be a current
representation of Mr. Hostetler’s appearance.
(Filing No. 41-7.) That same day, a Marion Superior Court Magistrate issued a search warrant
for the Partridge Road residence and for Marc’s vehicle. Swanson and other officers executed the
search warrant the next day. They did not find a firearm on Marc’s person or in his vehicle. (Filing
No. 49-7 at ¶ 8.) But their search of the Partridge Road residence turned up a small loaded pistol
under a mattress, which belonged to Shara. (Filing No. 41-6; Filing No. 49-2 at 55-56, 61-64.)
The police also found two .40 caliber Glock magazines stamped “Law Enforcement/Gov’t Use
Only,” a holster for a handgun, and some Marion County Sheriff’s Department police clothing.
(Filing No. 41-6.)
While other officers were searching the Partridge Road residence, Swanson prepared an
application for a warrant to search the Punto Alto Circle condo, which a judge granted that same
day. (Filing No. 41-12.) The search of that property did not turn up a firearm but did reveal
firearm accessories, such as a holster, a magazine, and gun cleaner. (Filing No. 41-6.) It also
turned up old police badges, old identification cards Marc would have used while employed as a
law enforcement officer, and miscellaneous police insignia pins and patches. Id. Additionally,

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police found a signal flare device, three multi-point throwing stars, and five multi-point playing
card throwing knives. Id.
C.

Marc’s Arrest and Criminal Charges
Following the search of the Partridge Road residence, Swanson initially arrested Marc for

carrying a handgun without a license. (Filing No. 41-2 at 10.) After searching the Punto Alto
Circle condo, Swanson recommended additional charges of impersonating an officer and theft. Id.
The prosecutor declined to charge Marc with impersonating an officer but did charge him with
theft, possession of a Chinese throwing star, and carrying a handgun without a license. Id. at 11.
The prosecutor dismissed all charges against Marc following a successful motion to suppress the
evidence obtained from the two searches. (Filing No. 49-3 at 124-125).
After Marc’s arrest but before the charges against him were dismissed, Shara met with
Swanson at the Southport police station. Shara interpreted their conversation as Swanson urging
her to implicate Marc in ownership of the firearm recovered from the Partridge Road residence
and threatening her with legal consequences if she did not. (Filing No. 49-2 at 73-76.) But Shara
insisted the firearm belonged to her. No charges were ever filed against Shara. (Filing No. 49-2
at 25.)
Shara believes that Chief Vaughn used Swanson as a pawn to procure Marc’s arrest to
embarrass her and boost the prospects of his wife’s boss, Dianna Bossingham, winning the election
for Clerk-Treasurer. Approximately a week before the primary election, neighbors Cheryl and
Charlie Eaton told Shara that she was “harboring a fugitive” and neighbor Jeff told her that she
was supposedly under investigation and pending criminal charges. (Filing No. 49-2 at 66-67.) Id.
at 78. Shara lost her election by 17 or 18 votes.

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D.

Procedural History
Shara filed this action asserting claims of illegal search, negligence, trespass, false arrest,

defamation, malicious prosecution, and intentional infliction of emotional distress against Chief
Vaughn, Swanson, and Southport. (Filing No. 1.) Defendants moved for partial judgment on the
pleadings, arguing Shara’s claim for illegal search and her claims under Indiana tort law were
inadequately pled and Chief Vaughn and Swanson were immune from the state law claims under
the Indiana Tort Claims Act. (Filing No. 20.) The Court granted the motion in part, dismissing
Chief Vaughn in his official capacity but not in his individual capacity and granting judgment in
favor of Defendants on Shara’s claim for malicious prosecution. (Filing No. 35 at 10.) Shara
withdrew her claims for trespass, negligence, false arrest, and intentional infliction of emotional
distress. Id. Thus, Shara’s Fourth Amendment Unconstitutional Search claim against Chief
Vaughn and Swanson in their individual capacities, her Fourth Amendment Unconstitutional
Search Monell claim against Southport, and her state law claim for defamation against Southport
remain. Defendants moved for summary judgment on those claims. (Filing No. 39.)
II.

SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 106 S.Ct. 1348 (1986). Federal Rule of Civil Procedure 56
provides that summary judgment is appropriate if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007). In ruling on
a motion for summary judgment, the court reviews “the record in the light most favorable to the

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non-moving party and draw[s] all reasonable inferences in that party’s favor.” Zerante, 555 F.3d
at 584 (citation omitted).

“However, inferences that are supported by only speculation or

conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d
624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who
bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is a genuine issue of material fact that
requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet
this burden with conclusory statements or speculation but only with appropriate citations to
relevant admissible evidence.” Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind.
1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence
to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation
marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir.
1997) (citations and quotation marks omitted).
III. DISCUSSION
Defendants argue they are entitled to summary judgment because the evidence does not
support a claim that they illegally searched Shara’s home and because the Indiana Tort Claims Act
immunizes Southport from her defamation claim. The Court will first address the Fourth
Amendment claims before turning to the state law claim.

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A.

Fourth Amendment Unconstitutional Search Claims
Shara originally asserted lack of nexus because Marc did not live at the Partridge Road

residence, but it appears she has abandoned this argument as she argues that Marc was legally
allowed to possess a firearm in his own home, referring to the Partridge Road residence. Moreover,
there is sufficient evidence to support a reasonable belief that Marc used both addresses and
frequently resided at Shara’s residence. Defendants argue that they are entitled to summary
judgment on Shara’s Fourth Amendment claims because the search of her residence was not
unreasonable, Chief Vaughn was not involved in orchestrating the search, and Chief Vaughn and
Swanson are entitled to qualified in immunity.
1.

Monell Claim Against Southport

A local governmental body is liable under 42 U.S.C. § 1983 when “a policy statement,
ordinance, regulation or decision officially adopted and promulgated by that body’s officers” is
related to the unconstitutional conduct of an employee. Monell v. Dep’t of Soc. Servs. of City of
N.Y., 438 U.S. 658, 690 (1978). There are three means through which a local governmental body
can incur Monell liability: (1) an express policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force
of law; or (3) an allegation that the constitutional injury was caused by a person with final
policymaking authority. Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 981 (7th Cir. 2000).
Shara argues a person with final policymaking authority, namely Chief Vaughn, instigated
the violation of her Fourth Amendment rights. Defendants do not dispute that Chief Vaughn
qualifies as a person with final policymaking authority, but they offer two counter-arguments.
First, they assert the evidence does not establish a violation of Shara’s Fourth Amendment rights

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because probable cause supported Swanson’s warrant application. Second, they argue that Chief
Vaughn was not personally involved in either ordering the search of Shara’s home or filling out
the warrant application to support the search.
Before determining whether the search violated the Fourth Amendment, the Court will
address whether Chief Vaughn had sufficient personal involvement to implicate Southport under
§ 1983. Shara alleges the following facts tie Chief Vaughn to the search of her home: he received
the initial tip from Davis (Filing No. 41-1 at 24), he assigned the case to Swanson without
informing Swanson of Davis’ possible political motivation (Filing No. 41-2 at 18-21), he was on
the telephone with Swanson during the search of Shara’s house (Filing No. 49-7 at ¶ 9-10) and
physically present for the search of Marc’s Punto Alto Circle condo (Filing No. 41-1 at 32-33),
and he turned a blind eye to Swanson’s investigation to maintain deniability. Defendants argue
that Chief Vaughn never gave any direction to Swanson after assigning him to the case, and that
Swanson conducted surveillance and sought a search warrant on his own initiative. Id. at 28-30.
This disagreement is a dispute of material fact that precludes a finding of summary
judgment on this basis. Shara has designated evidence indicating Chief Vaughn was giving
Swanson instructions during the search of her home (Filing No. 49-7 at ¶ 9-10), while Defendants
have designated evidence that Chief Vaughn was totally uninvolved with the search of the
Partridge Road residence. (Filing No. 41-1 at 29-32.) This conflicting evidence is resolved in
favor of Shara at the summary judgment stage, accordingly, the Court finds that Chief Vaughn was
involved with the search of her home.
Defendants next challenge Shara’s Monell claim on the grounds that, even if Chief Vaughn
was involved with the search, Shara has not designated sufficient evidence to show that the search
of her home violated her Fourth Amendment rights. “A warrant request violates the Fourth

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Amendment if the requesting officer knowingly, intentionally, or with reckless disregard for the
truth, makes false statements in requesting the warrant and the false statements were necessary to
the determination that a warrant should issue.” Knox v. Smith, 342 F.3d 651, 658 (7th Cir. 2003).
An officer acts with reckless disregard to the truth if the officer “entertained serious doubts as to
the truth of the statements, had obvious reasons to doubt their accuracy, or failed to disclose facts
that he or she knew would negate probable cause.” Betker v. Gomez, 692 F.3d 854, 860 (7th Cir.
2012) (internal quotations omitted). In deciding whether to issue a search warrant, the issuing
magistrate's task is simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be
found in a particular place. State v. Spillers, 847 N.E.2d 949, 953 (Ind.2006).
Shara first argues that Swanson’s affidavit in support of the search warrant request did not
establish a sufficient nexus between the suspected crimes and the Partridge Road residence. She
contends Swanson made false statements in requesting the search warrant because Indiana Code §
35-47-2-1(b)-(c) allows unlicensed possession of a firearm within your own dwelling or within the
dwelling of another person who gives consent. She contends no law prohibited Marc from keeping
a firearm in his home or the home of his ex-girlfriend so long as she consented. Shara asserts it is
reasonable to infer that Swanson acted with reckless disregard for the truth and that Swanson made
a false statement in his search warrant affidavit when he said that Marc’s “felony battery conviction
precludes [him] from possessing a firearm.” (Filing No. 49-7.)
However, Shara is incorrect. The Case Chronology Summary reflects that on January 8,
2009 Marc was convicted of Battery as a class D felony and sentenced to 545 days, executed 90
days, suspended 455 days and place on probation for 364 days. (Filing No. 41-5 at 5.) The Court
cannot find the affiant’s statement that Marc’s felony conviction prevented him from legally

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possessing a firearm, is a “false statement” because under federal law Marc was a person prohibited
from possessing a firearm 2. Moreover, based upon his observations, it was reasonable for Swanson
to believe that a firearm could be found at the Partridge Road residence where Marc spent a
significant amount of time, and where he observed Marc carrying what he believed to be a firearm
on at least three occasions. See Allen v. State 798 N.E. 2d 490, 499 (Ind. Ct. App. 2003) (“… we
find that a reasonably prudent person could make a practical, common-sense determination, given
all the circumstances set forth in the affidavit, that there was a fair probability that the weapons
used in the series of murders would be found at the apartment”). Accordingly, the Court rejects
Shara’s argument that the affidavit lacked a sufficient nexus between the items to be searched for
and the place to be searched.
Even if Swanson made a false statement, to show an unreasonable search, Shara must also
designate evidence that “the false statements were necessary to the determination that a warrant
should issue.” Knox, 342 F.3d at 658. Swanson did not swear in the affidavit that he saw Marc
impersonating a police officer or wearing police clothing during his surveillance. The affidavit
discloses that Marc had been a law enforcement officer in multiple jurisdictions, meaning the
likelihood of finding police gear and possibly old uniforms was high, but it would not be evidence
that Marc had committed the crime of impersonating an officer. Given the scant evidence that
Marc impersonated an officer and the miniscule likelihood of discovering more evidence of that
crime while executing a warrant, it is reasonable to infer that the issuing judge relied heavily on
Swanson’s assertion that a search was likely to yield evidence of illegal possession of a handgun.
No Fourth Amendment constitutional injury was caused by Chief Vaughn, therefore, the Court
grants summary judgment as to the Monell claim against Southport.
A person convicted in any court of a crime punishable by imprisonment for a term exceeding one year (regardless
of whether a person is actually imprisoned) cannot possess any firearm in any location. See 18 U.S.C. 922(g).

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2.

Claims Against Chief Vaughn and Swanson in their Individual Capacities

Defendants ask for summary judgment on the Fourth Amendment claims against Chief
Vaughn and Swanson in their individual capacities. They echo the same arguments the Court
discussed above—that Chief Vaughn was not personally involved in the search of Shara’s home
and that Shara has not designated evidence sufficient to support a Fourth Amendment claim. For
the same reasons outlined in the previous section, the Court finds there is a factual dispute on the
issue of whether Chief Vaugh was personally involved in the search, but Court grants summary
judgment because there was no reckless disregard for the truth or false statements in the affidavit
for the search warrant. There was clearly probable cause for the search of her home; accordingly,
Shara’s Fourth Amendment claims against Chief Vaughn and Swanson individually, fail.
3.

Qualified Immunity

Defendants argue that even if the Monell claims were to survive summary judgment, both
Chief Vaughn and Swanson are entitled to qualified immunity in their individual capacities. “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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(citation and quotation marks omitted). In determining whether qualified immunity applies, courts
decide “whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional
right,” and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.” Id. at 232. “Qualified immunity is applicable unless the official’s conduct violated
a clearly established constitutional right.” Id.
To show a constitutional right is clearly established, a plaintiff must point out a clearly
analogous case establishing the right to be free from the specific conduct at issue or allege that the

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conduct is so egregious that no reasonable person could have believed that it would not violate
clearly established rights. Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir. 2008). “The Supreme
Court has instructed that the clearly established law should not be defined at a high level of
generality.” Muhammed v. Pearson, 900 F.3d 898, 904-05 (7th Cir. 2018) (internal quotations
omitted). While general statements of law can sometimes be sufficient to give officers fair and
clear warning, in light of pre-existing law the unlawfulness must be apparent. Id. at 905. And
though a case directly on point is not required, “the clearly established law must be particularized
to the facts of the case.” Id.
Defendants make three arguments in support of their motion for summary judgment based
on qualified immunity: (1) Chief Vaughn has qualified immunity because a reasonable officer in
his position would have believed probable cause supported the search of the Partridge Road
residence, (2) Swanson is entitled to qualified immunity because Shara cannot show that he
violated her constitutional right, and (3) Swanson is entitled to qualified immunity because Shara
cannot show that the constitutional right at stake was clearly established at the time of the alleged
violation.
The specific case Shara alleges should have alerted Chief Vaughn and Swanson that their
conduct was unlawful is Rader v. State, 932 N.E.2d 755 (Ind. Ct. App. 2010). That case requires
a law enforcement officer, in the affidavit supporting his warrant request, to establish “a logical
connection, or nexus, between the suspect and the location to be searched.” 932 N.E.2d at 759.
Again, Shara argues it was legal for Marc to possess a handgun in her home, if she consented, and
because there was little likelihood the search would yield evidence of impersonating an officer,
there was no nexus between the place of the search and the object of the search. Chief Vaughn is
entitled to qualified immunity because, viewing the facts in the light most favorable to Shara as

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the non-moving party, there was clearly a nexus between the crimes Southport was investigating
Marc for and Shara’s home.
Defendants’ assertions that Swanson is entitled to qualified immunity rely on the same
arguments they make in their other arguments on this claim. Thus, the Court grants Defendants’
motion for summary judgment on the Fourth Amendment claim as to Swanson. He is entitled to
qualified immunity because, viewing the facts in the light most favorable to Shara as the nonmoving party, there was no clearly established right which Swanson would have understood he
was violating and no Fourth Amendment violation as there was no reckless disregard for the truth
or false statements in the affidavit for the search of Shara’s home.
B.

Defamation Claims
Shara asserts defamation claims against Southport, Chief Vaughn, and Swanson. She

alleges three instances of defamation: (1) two of her former neighbors told her a police officer said
she was harboring a fugitive, (2) a different neighbor told her a police officer said there was a
possibility criminal charges would be filed against her, and (3) a Code Enforcement Officer
overheard police officers talking about how Shara had charges pending against her. (Filing No.
49-2 at 65-77.)
As an initial matter, Defendants point out that Shara does not allege either Chief Vaughn
or Swanson made defamatory statements about her. (Filing No. 40 at 28-29.) Shara has not
responded to that contention, and thus waives any argument in opposition. Accordingly, the Court
grants summary judgment in favor of Chief Vaughn and Swanson on the defamation claim.
To succeed on a defamation claim against Southport, Shara must prove: (1) a
communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Kelley
v. Tanoos, 865 N.E.2d 593, 596-97 (Ind. 2007). Defendants argue Shara’s defamation claim is

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deficient as a matter of law because it is based entirely on inadmissible hearsay, she cannot
establish any of the elements of a defamation claim, and the Indiana Tort Claims Act immunizes
Southport from this defamation claim.
The Indiana Tort Claims Act protects governmental entities and government employees
acting in the scope of their employment from claims that stem from “[t]he performance of a
discretionary function” or “[t]he adoption and enforcement of…a law.” Ind. Code §§ 34-13-33(7), (8). Defendants identified the discretionary “duty to inform the public” that would qualify
remarks officers made to inquiring neighbors as government function that precludes this claim
under Subsection 3(7) of the Tort Claims Act. See Bull v. Bd. of Trustees of Ball State Univ., 2012
WL 1564061 (S.D. Ind. 2012), E.L.C. Elec., Inc. v. Ind. Dept. of Labor, 825 N.E.2d 16 (Ind. Ct.
App. 2005).
Here, Southport police officers were executing a search warrant and acting within the scope
of their employment. Their comments to Shara’s neighbors were an attempt to inform the
community about the situation. While their statements may not have been accurate, the Court
concludes the Indiana Tort Claims Act was meant to protect government officials from liability in
situations like these so that the officers could focus on safely and efficiently executing the warrant.
Shara has not responded to Defendants’ contention that they are immune under the Indiana Tort
Claims Act, and thus she waives any argument in opposition. Accordingly, the Court grants
summary judgment in favor of Southport on the defamation claim.
Because the Court grants summary judgment on this issue under the Indiana Tort Claims
Act, it need not address Defendants’ remaining arguments.

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IV. CONCLUSION
For the foregoing reasons, the Defendants’ Motion for Summary Judgment (Filing No. 39)
is GRANTED. Summary judgment is granted on Shara’s Fourth Amendment claims against
Southport, Chief Vaughn, and Swanson, and on the claim for defamation against Southport, Chief
Vaughn, and Swanson, and all claims are dismissed.
SO ORDERED.
Date: 2/25/2019

DISTRIBUTION:
Jeffrey S. McQuary
BROWN TOMPKINS LORY
[e-mail]
R. Jeffrey Lowe
KIGHTLINGER & GRAY, LLP-New Albany
[e-mail]
Whitney Elizabeth Wood
KIGHTLINGER & GRAY, LLP (New Albany)
[e-mail]

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