Belcher, Ryan L. v. Norton, Vaughn ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3174
RYAN L. BELCHER and
DARAINA GLEASON,
Plaintiffs-Appellants,
v.
VAUGHN NORTON and
TOWN OF ORLAND,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 05 C 101—Theresa L. Springmann, Judge.
____________
ARGUED FEBRUARY 8, 2007—DECIDED AUGUST 15, 2007
____________
Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Ryan L. Belcher and Daraina
Gleason brought this action against Deputy Marshal
Vaughn Norton and the Town of Orland under 42 U.S.C.
§ 1983. They alleged that they were subject to an unlaw-
ful seizure in violation of the Fourth Amendment to the
Constitution of the United States, as made applicable to the
states by the Fourteenth Amendment. They also alleged
that their rights to procedural and substantive due process
under the Fourteenth Amendment were violated. They
2 No. 06-3174
originally filed a complaint in state court, but the case
subsequently was removed to the United States District
Court for the Northern District of Indiana. The district
court granted the defendants’ motion for summary judg-
ment.1 Mr. Belcher and Ms. Gleason timely appealed. For
the reasons set forth in this opinion, we affirm in part
and reverse in part the judgment of the district court.
I
BACKGROUND
A.
Ms. Gleason was driving on the Indiana Toll Road with
her fiancé,2 Mr. Belcher, in her 1998 Plymouth Voyager
minivan. Ms. Gleason and Mr. Belcher are African-Ameri-
can. While the couple was driving along the Toll Road, the
minivan’s transmission failed, and they had to stop along
the side of the road. Ms. Gleason got a ride to Fort Wayne
from a passing motorist while Mr. Belcher remained in the
van. An Indiana state trooper patrolling along the Toll
Road came upon the stopped vehicle and asked Mr.
Belcher why the minivan was stopped along the berm of
the road. The officer subsequently arrested Mr. Belcher for
driving without a license and ordered the van towed to
1
The district court dismissed the plaintiffs’ claims under 42
U.S.C. §§ 1981, 1982 and 1985. The plaintiffs did not appeal these
dismissals; therefore, these claims are not before this court.
2
Ms. Gleason and Mr. Belcher have since married, and Ms.
Gleason has taken her husband’s last name. Because the briefs
refer to Ms. Gleason by her maiden name, we also shall refer
to her in the same manner throughout this opinion.
No. 06-3174 3
Bill’s Professional Towing (“Bill’s Towing”) in Orland,
Indiana. The van was impounded at that location.
Several days later, Ms. Gleason and Mr. Belcher went to
Bill’s Towing to retrieve some personal belongings that
they had left in the van. They spoke with the owner and
operator, Wilburn McClanahan, about retrieving certain
court documents and other personal items from the van,
and they were directed to the tow yard. Once at the tow
yard, McClanahan informed the couple that they were
not allowed to leave the premises until either the towing
and impoundment fees were paid or the title was signed
over to Bill’s Towing. Mr. Belcher proceeded to remove a
variety of items from the van; McClanahan insisted that the
couple was permitted to remove only court documents.
When Mr. Belcher began removing a radio from the
minivan, McClanahan inquired as to whether the couple
was going to pay the storage and towing fee. Mr. Belcher
stated that he would pay those charges, but that he did not
have the money with him. He requested to use the phone
to call his mother in order to make payment arrangements.
McClanahan did not allow Mr. Belcher use of the phone
and further stated that, because the plaintiffs had removed
property from the van, they were responsible for im-
mediate payment. The situation escalated into a heated
debate, and McClanahan called the police.
Almost immediately thereafter, Vaughn Norton, the
Acting Marshal for the Town of Orland, arrived on the
scene. By that time a group of four Caucasian males,
employees of Bill’s Towing, had gathered and would not
permit Mr. Belcher and Ms. Gleason to leave the premises
until they either paid the impoundment fees or signed the
vehicle’s title over to Bill’s Towing. The plaintiffs requested
that a state trooper be called to the scene, but Deputy
4 No. 06-3174
Marshal Norton refused, stating, “ ‘there’s no need to call
a State Trooper, I am the law.’” R.29 at 3.
Mr. Belcher and Ms. Gleason attempted to walk from the
van to the entrance of the towing yard. Deputy Marshal
Norton repeated that the two plaintiffs could not leave
until they had signed the van’s title over to Bill’s Towing.
The plaintiffs got in their car and attempted to leave, but
were blocked by a red city truck and a Bill’s Towing truck.
The plaintiffs then got out of the car. At that point Deputy
Marshal Norton threatened Mr. Belcher with arrest for
disorderly conduct if he did not sign over title of the
vehicle. Mr. Belcher then asked to see Deputy Marshal
Norton’s badge, and, for the first time, Deputy Marshal
Norton produced it. Mr. Belcher told Deputy Marshal
Norton that he could not “make” them sign anything;
Deputy Marshal Norton replied: “ ‘[E]ither sign the title
over or you will be arrested for disorderly conduct.’ ” Id.
at 4.
Mr. Belcher again refused to sign over the minivan’s
title, and Deputy Marshal Norton went over to the red
truck, came back holding a pair of handcuffs and walked
towards Mr. Belcher as if to place him under arrest. Deputy
Marshal Norton then stated that he was “ ‘calling for back-
up.’ ” Id. He again threatened Mr. Belcher with arrest if
Mr. Belcher continued to refuse to sign the title over to
Bill’s Towing. Mr. Belcher continued to refuse to sign. Ms.
Gleason began crying. Deputy Marshal Norton then asked
Ms. Gleason to sign over the title, and she complied. The
plaintiffs immediately proceeded to the local sheriff’s
department to file a complaint against Deputy Marshal
Norton, but were told there were no grounds upon
which to file such a complaint.
No. 06-3174 5
The couple subsequently filed this action. Their § 1983
claim named Deputy Marshal Norton and the Town of
Orland as defendants. It alleged that the defendants’
actions had subjected them to an illegal seizure and had
violated their procedural and substantive due process
rights under the Fourteenth Amendment.
B.
The district court granted the defendants’ motion for
summary judgment on all counts. The court first analyzed
the plaintiffs’ § 1983 claims of unlawful seizure under the
Fourth Amendment. The court determined that Mr. Belcher
and Ms. Gleason had been “seized” as that term is em-
ployed in Fourth Amendment jurisprudence. The court
then considered whether this seizure was unreasonable.
It stated that
a reasonable officer would be justified in believing that
[Mr. Belcher] was not entitled to take property from the
vehicle and had committed a criminal offense. [Ms.]
Gleason likewise participated in this unlawful conduct.
Under these circumstances, [Deputy Marshal] Norton’s
refusal to let them leave the towing yard was not
unreasonable.
R.75 at 11. The court concluded that Deputy Marshal
Norton had probable cause to arrest the plaintiffs for theft
or criminal conversion. Because the seizure was not
unreasonable under the circumstances, the district court
concluded that no violation of the Fourteenth Amend-
ment had occurred.
The district court then proceeded to analyze the plain-
tiffs’ § 1983 procedural due process claim. The court first
6 No. 06-3174
discussed whether the plaintiffs had a property interest
in the van. The court concluded that, even if Bill’s Towing
had a lien on the vehicle, Ms. Gleason nevertheless re-
tained a property interest in the minivan and, therefore,
was entitled to some process in connection with the
deprivation of this property. The district court further
ruled that the property deprivation was a result of random
and unauthorized action rather than an established state
procedure. Therefore, the court continued, the plaintiffs’
federal due process claim turned on the availability of an
adequate post-deprivation procedure. The defendants had
urged that the Indiana Tort Claims Act (“ITCA”) afforded
the plaintiffs an adequate state law remedy. The plaintiffs
had countered that the ITCA did not provide an adequate
remedy because the law enforcement immunity provision
would insulate Deputy Marshal Norton from liability.
The district court determined that the ITCA’s immunity
provision would not apply because Deputy Marshal
Norton’s actions did not constitute the enforcement of law.
Finally, the district court addressed the plaintiffs’
substantive due process claim. The district court ruled
that Ms. Gleason had not pointed to a separate constitu-
tional violation necessary to support a substantive due
process claim; further, because the court had concluded,
in the context of the procedural due process claim, that
state law remedies were adequate, Ms. Gleason could
not state a substantive due process claim.
II
DISCUSSION
We review a district court’s grant or denial of summary
judgment de novo. Magin v. Monsanto Co., 420 F.3d 679, 686
No. 06-3174 7
(7th Cir. 2005). All facts and reasonable inferences must
be construed in favor of the non-moving party. Id. Our
role is not to evaluate the weight of the evidence, to
judge the credibility of witnesses or to determine the
ultimate truth of the matter, but rather to determine
whether there exists a genuine issue of triable fact. Ander-
son v. Liberty Lobby, 477 U.S. 242, 249-50 (1986). Sum-
mary judgment is proper 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 matter of law.” Magin, 420 F.3d
at 686 (citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrat-
ing that these requirements have been met and may
discharge this responsibility by showing “that there is an
absence of evidence to support the non-moving party’s
case.” Celotex, 477 U.S. at 323. In order to overcome a
motion for summary judgment, the non-moving party
must come forward with specific facts demonstrating
that there is a genuine issue for trial. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However,
the existence of a mere scintilla of evidence is not suf-
ficient to fulfill this requirement; the non-moving party
must show that there is evidence upon which a jury
reasonably could find for the plaintiff. Anderson, 477 U.S. at
251-52. “The court should neither ‘look the other way’ to
ignore genuine issues of material fact, nor ‘strain to find’
material fact issues where there are none.” Patrick v. Jasper,
901 F.2d 561, 565 (7th Cir. 1990) (internal citations omitted).
8 No. 06-3174
A.
The district court determined that the plaintiffs had been
“seized” for purposes of the Fourth Amendment, but also
determined this seizure had been reasonable. Conse-
quently, ruled the district court, there had been no Fourth
Amendment violation. The plaintiffs submit that Deputy
Marshal Norton did not have probable cause to arrest
Mr. Belcher and Ms. Gleason for theft or criminal con-
version and that, therefore, the seizure was not reasonable.
In order to establish a violation of the Fourth Amendment,
the plaintiffs must establish that (1) Deputy Marshal
Norton’s conduct constituted a “seizure” and (2) the
seizure was unreasonable. See Donovan v. City of Milwaukee,
17 F.3d 944, 948 (7th Cir. 1994); see also Kernats v. O’Sullivan,
35 F.3d 1171, 1177 (7th Cir. 1994).
1.
In order to establish that Deputy Marshal Norton’s
actions constituted a “seizure,” the plaintiffs must demon-
strate, from all the circumstances surrounding the incident,
that a reasonable person in such a situation would have
believed that he was not free to leave. United States v.
Mendenhall, 446 U.S. 544, 554 (1980). The plaintiffs must
show that they were touched physically by the police or
that they yielded to a show of authority. California v. Hodari
D., 499 U.S. 621, 625-26 (1991). The governmental termina-
tion of freedom of movement must be intentional. Donovan,
17 F.3d at 948.
Upon examination of the record, we believe that the
district court correctly concluded that the plaintiffs were
seized within the meaning of the Fourth Amendment. The
record makes clear that Deputy Marshal Norton repeatedly
No. 06-3174 9
informed Mr. Belcher that he could not leave the towing
yard unless and until he signed over the title to the van. In
addition, Deputy Marshal Norton told Mr. Belcher he could
be arrested for disorderly conduct if he refused to sign over
the vehicle. Simply stated, the Deputy Marshal made it
very clear that he intended to prevent Mr. Belcher and Ms.
Gleason from leaving. The officer clearly asserted his
authority in a way that the plaintiffs reasonably
could construe as a declaration that they were not free to
leave the tow yard. Such a declaration by a police officer
is sufficient to constitute a “seizure” for purposes of the
Fourth Amendment.3
2.
In order to constitute a Fourth Amendment violation,
however, a governmental seizure must be unreasonable.
See Donovan, 17 F.3d at 949. The “test of reasonableness
under the Fourth Amendment is not capable of precise
definition or mechanical application . . . [it] requires careful
attention to the facts and circumstances of each particular
case.” Id. (internal citations and quotation marks omitted).
To determine whether a particular search is unreasonable,
we must balance “the extent of the intrusion against the
need for it.” Id. (internal citations omitted).
3
We believe the record establishes that, even if some of Deputy
Marshal Norton’s remarks were directed principally toward
Mr. Belcher, Ms. Gleason reasonably could have understood
that her freedom of movement also was restricted. See Brendlin
v. California, 127 S. Ct. 2400, 2407-08 (2007) (holding that a
vehicle’s passenger had been seized and was entitled to chal-
lenge the traffic stop). Indeed, since the van was titled in her
name, she alone had the power to transfer ownership.
10 No. 06-3174
We believe that the plaintiffs have presented sufficient
factual issues to raise a very serious question about the
reasonableness of the seizure. The record before us demon-
strates, at the very least, that a genuine issue of triable
fact exists as to whether Deputy Marshal Norton had
probable cause to arrest the plaintiffs for theft or crim-
inal conversion. The defendants characterize the entire
incident as an attempt on the part of the plaintiffs to
“dump” the van on the owner of the towing business. The
plaintiffs, on the other hand, insist that they simply in-
tended to retrieve legal papers and personal belongings
from the van. Whether the Deputy Marshal had probable
cause to effect an arrest is measured by an objective
standard: Would a police officer in his situation reasonably
believe that a criminal offense had been, or was being,
committed. United States v. Reis, 906 F.2d 284, 289 (7th Cir.
1990).
Deputy Marshal Norton certainly should have known
that the lien statute, I.C. § 9-22-5-15, gave Bill’s Towing
a lien on the vehicle but not on its contents. The statute
provides:
(b) An individual, a firm, a partnership, a limited
liability company, or a corporation that provides
towing services for a motor vehicle, trailer, semitrailer,
or recreational vehicle at the request of:
(1) the person who owns the motor vehicle, trailer,
semitrailer, or recreational vehicle; or
(2) an individual, a firm, a partnership, a limited
liability company, or a corporation on whose
property an abandoned motor vehicle, trailer,
semitrailer, or recreational vehicle is located;
has a lien on the vehicle for the reasonable value of the
charges for the towing services and other related costs.
No. 06-3174 11
I.C. § 9-22-5-15(b).4 This language clearly limits the lien to
the vehicle itself, not its contents.
The defendants also assert that, because Mr. Belcher
attempted to remove a radio from the van, he was dimin-
ishing the value of the lien on the van. However, the record
does not establish with any clarity whether the radio was
portable or permanently affixed to the vehicle.5 There is,
at the very least, a genuine issue of triable fact as to
whether Deputy Marshal Norton could have concluded
reasonably that he had probable cause to believe that the
plaintiffs had the requisite criminal mens rea to commit
the crime of criminal conversion, see Sam & Mac, Inc. v.
Treat, 783 N.E.2d 760, 766 (Ind. Ct. App. 2003), or the
specific intent necessary to commit the crime of theft, see
Mitchell v. State, 690 N.E.2d 1200, 1209 (Ind. Ct. App. 1998).
3.
The defendants further assert that, even if Deputy
Marshal Norton had violated the Fourth Amendment
rights of the plaintiffs, he is entitled to qualified immunity
because, at the time that he acted, it would not have been
clear to a reasonable police officer that his actions were in
4
This statutory provision has been amended and its new
provisions became effective on July 1, 2007. 2007 Ind. Legis.
Serv. P.L. 191-2007 (H.E.A. 1425). The amendments to the stat-
ute do not bear on the issues in this case.
5
The record does not demonstrate whether Mr. Belcher had to
use any tools to remove the radio from the van, nor does the
record clarify with any certainty how the radio was affixed to
the van. However, at his deposition, Mr. Belcher testified that
he was able to remove the radio from the van. R.59, Ex. 2 at 50.
12 No. 06-3174
violation of the law. As a general matter, the doctrine of
qualified immunity can shield a public official such as
Deputy Marshal Norton from civil liability if he can
demonstrate that he was performing a discretionary
function and that a reasonable law enforcement officer
would have believed that, at the time he acted, his actions
were within the bounds of the law. See Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194(2001), the Court reaffirmed this basic principle and gave
additional guidance as to its implementation. “If the
law did not put the officer on notice that his conduct
would be clearly unlawful, summary judgment based on
qualified immunity is appropriate.” Id. at 202; see also
Malley v. Briggs, 475 U.S. 335, 341 (1986). Saucier also
articulates a two-part inquiry for addressing qualified
immunity claims. The first inquiry requires an examina-
tion of the record to determine whether the facts, taken
in the light most favorable to the plaintiffs, show that
the defendants violated a constitutional right. Id. at 201. If
such a constitutional violation is established, it then
becomes necessary to address whether the constitutional
right clearly was established at the time in question. Id. In
sum, qualified immunity protects an official from suit
and from liability for civil damages when, at the time of
the challenged action, the contours of the constitutional
right were not so defined as to put the official on notice
that his conduct violated the Constitution. See Hope v.
Pelzer, 536 U.S. 730, 739 (2002).
As we have noted earlier, if we construe the facts in the
light most favorable to the plaintiffs, there is a genuine
issue of triable fact as to whether Deputy Marshal Norton
violated the Fourth Amendment rights of the plaintiffs.
Moreover, accepting such a construction of the facts, we
No. 06-3174 13
think that it is clear that a reasonable police officer, act-
ing at the time that Deputy Marshal Norton acted, would
have known that he lacked probable cause to arrest the
plaintiffs for theft or for criminal conversion. In short, on
this record, qualified immunity is not available to Deputy
Marshal Norton.
B.
We now examine whether the district court erred in
granting summary judgment to the defendants on the
plaintiffs’ procedural and substantive due process claims.
Both of these allegations focus on the defendants’ success-
ful efforts to induce Ms. Gleason to transfer her owner-
ship of the van to Bill’s Towing.
1.
In order to maintain successfully a procedural due
process claim, the plaintiffs must show that they were
deprived of a constitutionally protected interest in life,
liberty or property. If the plaintiffs can establish such a
loss, we then must determine what process was due
regarding that loss. Porter v. DiBlasio, 93 F.3d 301, 305 (7th
Cir. 1996).
There is no dispute that Bill’s Towing had a lien on
Ms. Gleason’s van for the towing and storage charges
incurred by the plaintiffs when the vehicle was removed
from the Indiana Toll Road. See I.C. § 9-22-5-15(b). How-
ever, the existence of this lien did not eliminate Ms.
Gleason’s property interest in her van. By paying the fee
for the towing and storage services, Ms. Gleason could
have satisfied the lien, and Bill’s Towing would have been
14 No. 06-3174
under a statutory duty to release the van to her. I.C. § 9-22-
5-15(c). Therefore, because she still had a property inter-
est in her van, Ms. Gleason had a right to some process,
before her property interest was terminated involuntarily.
In Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled
in part on other grounds, Daniels v. Williams, 474 U.S. 327(1986), the Supreme Court of the United States held that
post-deprivation process sometimes may provide adequate
procedural protection for the deprivation of property
rights. Specifically, in Parratt, the Court countenanced two
situations in which post-deprivation process could be
appropriate: (1) where quick action is required on the part
of the state and (2) where providing any meaningful pre-
deprivation process is impracticable. Id. The Court fur-
ther clarified the second instance by stating that such a
situation would occur where the tortious loss of property
is due to “a random and unauthorized act by a state
employee.” Id. at 541. More specifically, if the property
deprivation occurs as a result of a random unauthorized
act, it does not constitute a violation of a litigant’s pro-
cedural due process rights where the state provides “a
meaningful post-deprivation remedy.” Easter House v.
Felder, 910 F.2d 1387, 1396 (7th Cir. 1990) (internal citations
omitted). Therefore, Deputy Marshal Norton’s depriving
Ms. Gleason of her vehicle does not amount to a depriva-
tion of her property in the constitutional sense if his act
was random and unauthorized and if there is an adequate
state law remedy that can provide her meaningful relief.
Reading the record in the light most favorable to the
plaintiffs, as we must in the procedural posture of this
case, there is little question that the actions attributed to
Deputy Marshal Norton must be considered random and
unauthorized. The State of Indiana has a statutory scheme
No. 06-3174 15
that regulates impounded and abandoned vehicles. Indiana
law provides the owner of an impounded vehicle twenty
days within which to claim the vehicle. I.C. § 9-13-2-1(6).
Therefore, the plaintiffs had approximately two additional
weeks to claim the van before it would be considered
abandoned under Indiana law. In short, Deputy Marshal
Norton’s actions did not comport with the statutory
procedure, and, therefore, his actions were random and
unauthorized for the purposes of Parratt.
We therefore must turn to the question of whether state
law affords the plaintiffs an adequate remedy. Indiana has
enacted the Indiana Tort Claims Act (“ITCA”). I.C. § 34-13-
3-1 et seq. We have held, in Hossman v. Spradlin, 812 F.2d
1019 (7th Cir. 1987), that, as a general rule, the ITCA
provides a “constitutionally adequate remedy to redress
property loss caused by a state officer.” Id. at 1023. Never-
theless, the plaintiffs submit that this general rule cannot
govern the situation before us because the ITCA con-
tains a law enforcement immunity provision that shields
state actors, acting within the scope of their employment,
who are engaged in the “adoption and enforcement of or
failure to adopt or enforce a law (including rules and
regulations), unless the act of enforcement constitutes
false arrest or false imprisonment.” I.C. § 34-13-3-3(8).6 In
6
Indiana courts have defined false imprisonment as “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). Indiana
courts have stated also that “[a] defendant may be liable for false
arrest when he or she arrests the plaintiff[s] in the absence of
probable cause to do so.” Id. The circumstances of this proce-
(continued...)
16 No. 06-3174
the plaintiffs’ view, Deputy Marshal Norton was “attempt-
ing to apply law enforcement procedures” and thus, the
ITCA’s law enforcement immunity provision applies.7
To resolve this issue, we must determine, as a threshold
matter, what constitutes an adequate state law remedy
for the purposes of procedural due process analysis. The
Supreme Court has made clear that, in order to constitute
an adequate remedy, the remedy provided by state law
need not be the same as that available under § 1983. See
Hudson, 468 U.S. at 535; Parratt, 451 U.S. at 544; Parrett v.
City of Connersville, Indiana, 737 F.2d 690, 697 (7th Cir. 1984).
Nevertheless, the relief afforded by the state remedy cannot
be “meaningless or non-existent.” Easter House, 910 F.2d at
1406; see also Hamlin v. Vaudenberg, 95 F.3d 580, 585 (7th Cir.
1996); Cronin v. Town of Amesbury, 81 F.3d 257, 260 (1st Cir.
1996) (per curiam); cf. Briscoe v. La Hue, 663 F.2d 713, 718
(7th Cir. 1981) (noting that common law immunities cannot
be imported wholesale into § 1983 analysis because the
6
(...continued)
dural due process claim do not involve false arrest or false
imprisonment under Indiana tort law. Therefore, these excep-
tions to the law enforcement immunity provision do not apply.
7
See, e.g., East Chicago Police Dep’t v. Bynum, 826 N.E.2d 22, 26
(Ind. Ct. App. 2005) (holding that police officers were not
entitled to immunity under the ITCA law enforcement immunity
provision where the officers violated their statutory duty to
drive with due regard for the safety of all individuals while
acting within the scope of their employment); City of Hammond
v. Reffitt, 789 N.E.2d 998, 1001 (Ind. Ct. App. 2003) (holding
police officers were entitled to immunity where the officers
decided not to arrest an intoxicated driver who subsequently
died of hypothermia in his vehicle).
No. 06-3174 17
purposes of the statute would be frustrated if state execu-
tive officials were afforded absolute immunity).
We now must analyze the ITCA in light of these princi-
ples to determine whether, in this case, the ITCA can be
considered an adequate remedy. In King v. Northwest
Security, Inc., 790 N.E.2d 474 (Ind. 2003), the Supreme
Court of Indiana analyzed this provision at some length.8
The court explained that the law enforcement immunity
provision “restricts the immunity to the adoption and
enforcement of laws that are within the assignment of the
governmental unit.” Id. at 482. The police are a “govern-
mental unit” within the meaning of the statute. Id. The
legislature, wrote the court, enacted the law enforce-
ment immunity provision to ensure that “a governmental
entity [would] be immune only for failing to adopt or
enforce a law that falls within the scope of the entity’s
purpose or operational power.” Id. at 483. Applying this
principle in King, the Supreme Court of Indiana deter-
mined that a school district was not “enforcing” a law
when addressing the matter of school security. Id.The Supreme Court of Indiana also has addressed the
meaning of “enforcement” in the law enforcement immu-
nity provision. The court stated that “enforcement” should
8
The law enforcement immunity provision formerly was
codified at I.C. § 34-13-3-3(7). In 2001, the statute was amended
and this provision currently is found at § 34-13-3-3(8). See East
Chicago, 826 N.E.2d at 26 n.6 (noting the statutory amendment).
When the Supreme Court of Indiana decided King v. Northwest
Security, Inc., 790 N.E.2d 474 (Ind. 2003), the law enforcement
immunity provision was found at § 34-13-3-3(7), and therefore
that court references the provision using its then-current
codification.
18 No. 06-3174
be construed to extend beyond traditional law enforce-
ment activities, but that enforcement is “limited to those
activities in which a governmental entity or its employees
compel or attempt to compel the obedience of another to
laws, rules or regulations, or sanction or attempt to sanc-
tion a violation thereof.” Mullin v. Mun. City of South Bend,
639 N.E.2d 278, 283 (Ind. 1994).
In Minks v. Pina, 709 N.E.2d 379, 383 (Ind. Ct. App. 1999),
the Court of Appeals of Indiana determined that immunity
was proper when two police officers stopped an intoxi-
cated motorist and decided not to arrest or detain him
because it would have taken too much time to process the
required paperwork. The court held that, even though
the officers’ conduct was “egregious,” their actions fell
within the scope of enforcement or failure to enforce the
law, and therefore they were entitled to statutory immu-
nity. Id. at 382.
In light of this precedent, we think it clear that Deputy
Marshal Norton was acting within the scope of his em-
ployment and was enforcing the law.9 Therefore, he is
entitled to the protection of the law enforcement immunity
provision. Deputy Marshal Norton arrived on the scene
when called by McClanahan. While at the tow yard, he
clearly was acting as a police officer. He presented a badge
when asked and, at all times, acted in his capacity as
Deputy Marshal of the Town of Orland. Whether a trier of
fact eventually credits the account of the plaintiffs or the
account of Deputy Marshal Norton, the law enforcement
9
The district court reached a contrary conclusion in interpret-
ing Indiana law. It is of course our responsibility to assess
independently a question of state law. Salve Regina Coll. v.
Russell, 499 U.S. 225, 231 (1991).
No. 06-3174 19
immunity of the ITCA would provide the Deputy Marshal
with a shield against liability. Indiana courts explicitly
have accorded immunity to officers who exhibit “egregious
conduct.” Minks, 709 N.E.2d at 382. The decisions of the
Indiana courts make clear that the immunity provided by
this statutory shield “extends well beyond traditional law
enforcement activities.” Id. Indeed, the essence of Deputy
Marshal Norton’s defense is that he was attempting to
compel Mr. Belcher to obey the law. Therefore, he is
entitled to immunity under I.C. § 34-13-3-3(8).
Because we conclude that Deputy Marshal Norton is
entitled to the broad statutory immunity afforded by ITCA,
we also must conclude that the statute does not provide
an adequate state law remedy to the plaintiffs. Relegating
the plaintiffs to this state statutory scheme would deprive
them of any meaningful avenue to seek redress for the
deprivation that they claim to have suffered. Therefore,
we must conclude that the district court erred in granting
summary judgment in favor of the defendants on the
plaintiffs’ procedural due process claim.
2.
Finally, the plaintiffs urge that their substantive due
process rights were violated.10 The Supreme Court of the
10
The district court determined that the plaintiffs had waived
their substantive due process claim. Upon examination of the
record, we must conclude respectfully that the district court
erred in this determination. The plaintiffs contended in the
district court and on appeal that Deputy Marshal Norton’s
conduct deprived them of substantive due process because he
(continued...)
20 No. 06-3174
United States has made clear, and this court similarly has
cautioned, that the scope of substantive due process is very
limited. See, e.g., Tun v. Whitticker, 398 F.3d 899, 902 (7th
Cir. 2005) (citing Washington v. Glucksberg, 521 U.S. 702(1997)). The Due Process Clause is intended as a “limitation
of the State’s power to act, not as a guarantee of certain
minimal levels of safety and security.” DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195
(1989).
We have stated that substantive due process, at its
essence, protects an individual from the exercise of govern-
mental power without a reasonable justification. See Tun,
398 F.3d at 902. In essence, it affords protection of the
individual against arbitrary action of government. Wolff v.
McDonnell, 418 U.S. 539, 558 (1974). Where the exercise of
government authority involves law enforcement officials,
the Supreme Court has stated that a plaintiff’s substan-
tive due process rights are violated where the alleged abuse
of government power “shocks the conscience.” Rochin v.
California, 342 U.S. 165, 172 (1952).
As this case comes to us, the parties offer two very
different characterizations of the situation that unfolded in
the tow yard. The plaintiffs submit that Deputy Marshal
Norton, relying on the police powers vested in him by
10
(...continued)
extorted the van from Ms. Gleason by threatening the plain-
tiffs with arrest if they failed to sign the van over to Bill’s
Towing. This use of governmental power, they contend, is the
sort of use of governmental power that shocks the conscience
under Rochin v. California, 342 U.S. 165, 172 (1952). In our view,
this argument was developed factually both in the plaintiffs’
brief before this court and in their brief before the district court.
No. 06-3174 21
virtue of the office he held, extorted the van from the
plaintiffs by threatening to use his power of arrest if they
did not comply. The defendants, on the other hand, sug-
gest that the plaintiffs were in the process of “dumping”
the van on the tow yard owner and that the Deputy
Marshal, suspecting that a crime was being committed, was
well within his rights as a police officer when he pointed
out the legal consequences of such an action to the plain-
tiffs. Because this case comes to us after the grant of
summary judgment to the defendants, we must construe
the facts in the light most favorable to the plaintiffs. Given
that constraint, we must conclude that a trier of fact would
be entitled to say that the Deputy Marshal’s actions, as
characterized by the plaintiffs, shock the conscience, as that
term is employed in modern substantive due process
analysis.
C.
The plaintiffs also urge that the Town of Orland is liable
for the alleged constitutional violations of the plaintiffs’
rights because Deputy Marshal Norton was a “final
policymaker” for the Town, and, therefore, municipal
liability should attach. See, e.g., Pembaur v. City of Cincinnati,
475 U.S. 469, 481 (1986) (“where action is directed by those
who establish governmental policy, the municipality is . . .
responsible”); see also Baxter by Baxter v. Vigo County Sch.
Corp., 26 F.3d 728, 735 (7th Cir. 1994) (“a single act or
decision of a final policymaker can establish municipal
policy”). However, a municipality may not be held
liable based upon the doctrine of respondeat superior.
Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691
(1978). We think it clear, on this record, that Deputy
Marshal Norton was not a final policymaker for the Town
22 No. 06-3174
of Orland. Therefore, the Town is not liable under 42
U.S.C. § 1983.
Conclusion
For the foregoing reasons, we affirm the district court’s
dismissal of the Town of Orland. We reverse the district
court’s dismissal of the Fourth Amendment and procedural
and substantive due process claims against the defendants
because, on this record, these claims present genuine
issues of triable fact. Accordingly, the judgment of the
district court is affirmed in part and reversed in part. The
plaintiffs may recover their costs from Deputy Marshal
Norton.
AFFIRMED in part and REVERSED in part
MANION, Circuit Judge, concurring in part and dissenting
in part. After Daraina Gleason’s vehicle broke down on
the Indiana Toll Road, the state police had it towed to
Bill’s Towing in Orland, Indiana. The vehicle at issue in
this case was a 1998 Plymouth Voyager minivan with
272,833 miles on its odometer and a failed transmission. It
was registered to Gleason, who received it as a gift from
the mother of her then-fiancé, Ryan Belcher. It is undis-
puted that the Bill’s Towing had a valid possessory inter-
est in the impounded minivan under Indiana’s lien statute.
A few days after the minivan was impounded, Gleason
and Belcher arrived at Bill’s Towing to retrieve some
No. 06-3174 23
personal items and possibly the minivan. The confrontation
at the tow yard between Belcher, Gleason, and the tow
yard employees began when Belcher and Gleason started
removing various items from the minivan. Despite Bill’s
Towing’s policy against removing items from impounded
vehicles, the tow yard’s owner, Wilburn McClanahan,
agreed to allow Belcher and Gleason to remove some
legal papers and their child’s medicine from the minivan.
Belcher and Gleason, however, decided to remove many
additional items. Gleason made several trips from the
minivan to her borrowed car carrying items that Belcher
had taken out of the minivan. In addition to the legal
papers, the baby medicine, and some tools (including a
heavy tire tool and jack), Belcher removed a radio that he
had installed in the minivan’s dashboard. The fact that
Belcher removed the installed radio along with his personal
belongings is of particular importance because Indiana’s
lien statute provided the tow yard with a lien on the
vehicle (i.e., the minivan), which includes all of the vehi-
cle’s fixtures, such as its tires, its hubcaps, and its installed
radio. Thus, when Belcher removed the minivan’s radio
and refused to return it, he violated the tow yard’s
possessory interest in the minivan.1
When a Bill’s Towing employee observed Belcher
removing the minivan’s radio, he called McClanahan,
who then confronted Belcher. McClanahan and Belcher
engaged in a heated discussion before McClanahan
called the police. The officer who responded was Deputy
Marshal Vaughn Norton. The Town of Orland employed
1
Although Bill’s Towing posted a rule prohibiting removal of
any personal property from impounded vehicles, that policy
was not enforceable under the Indiana lien statute.
24 No. 06-3174
Norton as its Street Superintendent, but he also was the
acting Town Marshal at that time because the regular
Town Marshal was deployed in Iraq. Norton also was not
wearing a police uniform that day because he was on duty
as Street Superintendent. The record indicates that
McClanahan told Norton that Belcher had removed the
minivan’s radio without permission. The parties dispute
whether Belcher became verbally abusive to Norton, but
they agree that once it was apparent that Belcher and
Gleason could not pay the costs necessary to recover the
minivan, Norton gave them two options for resolving the
standoff: (1) Gleason could sign over the minivan’s title
to Bill’s Towing; or (2) he would arrest Belcher for disor-
derly conduct. Those stark choices were incomplete. Under
Indiana’s lien statute, which gives a vehicle’s title
holder thirty days to recover an impounded vehicle, Ind.
Code § 9-22-5-15, Norton should have given Belcher and
Gleason an additional choice: return the radio and any
other fixtures that they had removed and leave the pre-
mises. That latter option would have enabled Belcher and
Gleason to make the minivan whole, preserved the tow
yard’s possessory interest in the vehicle under Indiana’s
lien statute, allowed Gleason to retain the title to her
minivan, and provided her with the remainder of her
statutorily mandated period to pay the towing and stor-
age fees and recover the minivan.2
2
The entire situation probably could have been resolved if
McClanahan would have allowed Belcher and Gleason to use
a telephone to call Belcher’s mother. Because the vehicle was a
gift to Gleason from Belcher’s mother, Gleason likely wanted
to consult with Belcher’s mother before signing over the title.
Both testified that if Belcher’s mother was not willing to put up
(continued...)
No. 06-3174 25
Accordingly, I concur with the court’s reasoning that
when construing the facts in the light most favorable to
Belcher and Gleason, there is a genuine issue of triable
facts as to whether Norton violated their Fourth Amend-
ment rights based on his “seizing” them during the con-
frontation without probable cause. Also at this point, based
on the facts contained in the record before the court,
qualified immunity is not available to Norton. I also concur
with the court’s conclusion that the district court erred in
granting summary judgment to Norton on Belcher and
Gleason’s procedural due process claim, because when
viewing the record in the light most favorable to Belcher
and Gleason, Norton’s failure to give them the third option
discussed above rendered his conduct random and unau-
thorized. Furthermore, I concur with the court’s reason-
ing regarding why Norton’s entitlement to immunity under
the Indiana Tort Claims Act resulted in an inadequate state
law remedy for Belcher and Gleason. Finally, I agree with
the court that the Town of Orland is not liable under 42
U.S.C. § 1983.
Where I disagree with the court is on its conclusion that,
when viewing the record in the light most favorable to
Belcher and Gleason, a reasonable trier of fact could
2
(...continued)
the money for the tow lot’s towing and storage charge (and
likely the additional cost for towing the disabled van to Fort
Wayne), Gleason willingly would sign over the title to the
minivan. Based on the monetary value of the inoperable minivan
vis-a-vis the towing and storage costs owing, a simple call to
Belcher’s mother probably would have resolved this situation
in the same way it ultimately played out, with Gleason signing
over the minivan’s title and without making a federal case
out of it.
26 No. 06-3174
conclude that Norton violated Belcher’s and Gleason’s
substantive due process rights. In this circuit, the Supreme
Court’s decision in United States v. Russell, 411 U.S. 423(1973), “has been found to present ‘an extremely narrow
opportunity . . . to challenge government conduct.’ ” Kramer
v. Vill. of N. Fond du Lac, 384 F.3d 856, 865 (7th Cir. 2004)
(quoting United States v. Davis, 15 F.3d 1393, 1415 (7th Cir.
1994)). “The scope of substantive due process . . . is very
limited and protects plaintiffs only against arbitrary
government action that ‘shocks the conscience.’ ” Montgom-
ery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005) (citation
omitted); see also Bublitz v. Cottey, 327 F.3d 485, 491 (7th Cir.
2003) (“It is generally only deliberate action intended to
harm another that is the type of conduct targeted by the
Fourteenth Amendment: ‘[C]onduct intended to injure in
some way unjustifiable by any government interest is the
sort of official action most likely to rise to the conscience-
shocking level.’” (emphasis in original) (quoting County
of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (citations
omitted))). As we previously have stated, “[i]t is one thing
to say that officials acted badly, even tortiously, but—and
this is the essential point—it is quite another to say that
their actions rise to the level of a constitutional violation.”
Tun v. Whitticker, 398 F.3d 899, 903 (7th Cir. 2005). For that
reason, we have “declined to impose constitutional liability
in a number of situations in which we find the officials’
conduct abhorrent.” Id. (citing Bublitz v. Cottey, 327 F.3d 485(7th Cir. 2003) (finding no substantive due process viola-
tion when police used a tire-deflation devise during a high-
speed chase which caused the target vehicle to lose control,
hit another vehicle, and kill two people); Schaefer v. Goch,
153 F.3d 793 (7th Cir. 1998) (finding no substantive due
process violation when officers shot a woman to death on
her own front steps during a standoff with the woman’s
No. 06-3174 27
husband)). While the record could, and very well may,
indicate that Norton acted improperly, nothing in the
record evinces that his behavior was abhorrent. Despite
Belcher’s and Gleason’s comments in their depositions that
“we might possibly be lynched,” and “I felt like I was going
to be lynched,” there is no evidence in the record even
remotely describing a physical threat. Norton did not have
a weapon. He did not use physical force or violence, did
not taunt or mock them, did not use racial or sexual
epitaphs, nor did he subject them to public ridicule.
Marshal Norton was summoned to resolve a heated
argument over property. When he warned Belcher that he
would be arrested, Norton also called for backup from his
County Sheriff’s office. Perhaps intervention by a uni-
formed, professional officer would have solved the prob-
lem, but Norton canceled his call for backup when Gleason
reluctantly signed over the title to the minivan to Bill’s
Towing. The whole process was unfortunately clumsy and
mishandled, but by no means shocking to the conscience.
Therefore, on the issue of substantive due process,
I respectfully dissent.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-15-07