7th Circuit rules partially for defendant, officers, city in police-impersonation case

The 7^th Circuit Court of Appeals has affirmed, reversed and vacated multiple partial summary judgment awards for a man who was cleared of impersonating police and who later sued the officers who arrested him.

Daudi Mwangangi worked for Finderserve LLC providing roadside assistance in and around Indianapolis.

In October 2017, the company notified him that a driver needed a jump-start in Lebanon at a gas station, so he set out for the job in his dark blue 2003 Ford Crown Victoria. Upon his arrival 45 minutes later, Mwangangi parked his car in front of the Toyota Camry, activated his clear flashing strobe lights for added visibility and jump-started the car.

Unbeknownst to Mwangangi, local police were looking for him after a driver that had passed him on the highway called 911 to report the Crown Vic had “attempted to pull him over with strobe lights in their headlights.” The driver called police back when he happened to spot Mwangangi parked at the Lebanon gas station “with his strobe lights flashing behind another car.”

That second call touched off additional radio dispatches to local law enforcement.

In the first two, the dispatcher informed officers that the “possible police impersonator” was at the gas station with its strobe lights on and a “vehicle pulled over.” In the third, the dispatcher advised that “the vehicle they thought they had pulled over left” the gas station, but that the “blue Crown Vic” was still “pulled over by a pump” and the driver was in the vehicle.

All four Lebanon city police officers on duty responded, and three officers from nearby jurisdictions provided backup.

After initial questioning, Mwangangi was turned around and patted down by office Blayne Root. He was then placed in handcuffs and patted down a second time by a different officer, Frank Noland. No weapons or contraband were found.

While this was unfolding, the Boone County dispatcher informed the officers at the scene that the 911 caller, Dustin Washington, was there too.

Washington told police that Mwangangi tailgated him on the highway, activated his car’s strobe lights and turned on the car’s left turn signal before passing him in the right lane. By chance, when Washington got off the highway a few minutes later, he spotted the same Crown Vic in the gas station parking lot.

Based on that conversation, police returned to Mwangangi, read him his Miranda rights and asked him a series of questions. Mwangangi answered truthfully to the officer during questioning.

Root, who was standing nearby, sought to corroborate Mwangangi’s story by running a Google search for “Findaserve,” which he misspelled, and found nothing.

Mwangangi offered to pull up his call log for officers if they removed his handcuffs. However, he declined their request to search his cellphone.

The officers conferred one more time. In their view, Mwangangi’s account did not add up: They found no trace of Mwangangi’s supposed employer on the internet, he had refused the officers’ request to review his logbook and they did not understand his account of the jump-started Camry’s comings and goings.

All of this led to the ranking officer at the scene deciding that they would arrest Mwangangi and tow and perform an inventory search of his vehicle — and let prosecutors decide whether criminal charges should follow. With that, the officers took Mwangangi to the Boone County Jail, where he remained for two days.

Local prosecutors ultimately charged Mwangangi with impersonating a police officer. Law enforcement also secured a warrant to search his cellphone and iPad, which the police kept for five months.

Mwangangi defended himself against the charge until it was finally dismissed in October 2019. He then filed a complaint in federal court.

The U.S. District Court for the Southern District of Indiana entered partial summary judgment for Mwangangi on four issues: (1) that officer Root’s pat-down was an unreasonable search; (2) that the officers’ decision to handcuff Mwangangi was unreasonable and converted his detention into an arrest without probable cause; (3) that officer Noland’s second pat-down was also an unreasonable search; and (4) the officers’ formal decision to arrest him lacked probable cause. On each point, the district court determined that the individual officers were not entitled to qualified immunity.

However, the defendants were also partially successful on their cross-motions for summary judgment. The district court entered judgment in their favor on Mwangangi’s challenges to the legality of his initial detention, officer Taylor Nielsen’s decision to order him out of his vehicle and the alleged use of excessive force based on the tightness of his handcuffs.

The court also entered summary judgment for the city of Lebanon on Mwangangi’s Monell claim based on the city’s inventory search policy, and for the relevant defendants on his state-law claims of intentional infliction of emotional distress, negligent handling of property and negligent training and supervision.

Before the 7^th Circuit Court of Appeals, judges weighed in on Thursday.

First, the judges found the initial pat-down of Mwangangi wasn’t a constitutional violation given the facts at the time, but cautioned, “There is no ‘one free pat down’ rule — full stop.”

Next, the judges analyzed the Fourth Amendment handcuffing claim, affirming summary judgment for Mwangangi.

“… (W)e cannot say that Officer Root had even ‘arguable probable cause’ to arrest,” Judge Michael Scudder wrote. “‘[A] reasonable officer in the same circumstances and possessing the same knowledge’ — working essentially off only a 911 call, with no information about the underlying conduct that prompted that call — could not have reasonably believed that probable cause existed to arrest Mwangangi for police impersonation. To conclude otherwise risks conflating the authority justifying the initial Terry stop with the authority to arrest. We decline to do so.”

The judges then analyzed the second pat-down.

“… (W)e see no choice but to conclude that Officer Noland — by remaining entirely silent on the district court’s direct, express analysis of his conduct — waived any challenge to the district court’s determination that his second pat down violated Mwangangi’s Fourth Amendment rights,” Scudder wrote.

Finally, the 7^th Circuit looked at the question of whether the officers’ formal arrest decision lacked probable cause. On that point, the judges disagreed with the district court’s ruling after analyzing several facts of the case.

“Circumstances changed between Officer Root’s handcuffing of Mwangangi and the time that Sergeant (Ben) Phelps and Officer Nielsen made the decision to formally arrest Mwangangi, tow his car, and transport him to the local jail,” Scudder wrote. “The arrest decision was reasonable based on what officers learned in the interim.

“… In sum, the officers had at least arguable probable cause to arrest Mwangangi for impersonating a police officer by the time Sergeant Phelps made the formal arrest decision,” Scudder continued. “The district court erred, then, in entering summary judgment for Mwangangi as to liability on his false arrest claim against Sergeant Phelps, Officer Nielsen, and Officer Noland, and that determination is reversed.”

To conclude, judges touched on resolving the individual officers’ appeals. Beyond the Fourth Amendment claims addressed, Mwangangi looked to hold not only officer Root liable for the false arrest but also the other officers on the scene who failed to intervene to prevent the constitutional violation created by his continued handcuffing.

The district court concluded that the individual officers had effectively waived any challenge to Mwangangi’s failure-to-intervene claims. In the court’s view, the defendants had not argued that the bystander officers were “not sufficiently involved in the alleged constitutional violation,” and that the “undisputed evidence, viewed in the light most favorable to each of the Individual Defendants, establishes that.”

“But we are not as sure as the district court that Mwangangi is entitled to summary judgment on those claims,” Scudder wrote. “In fact, Mwangangi argued below that there were ‘still questions of material fact’ on this question. Because whether the bystander officer ‘had sufficient time to intervene or was capable of preventing the harm caused by the other officer is generally an issue for the trier of fact,’ further factfinding on what Officer Nielsen and Officer Noland knew about Officer Root’s actions over the course of the evening is needed on remand. The district court, in short, was too quick to enter judgment against the officer defendants, rather than to send this claim to trial.”

On cross cross-appeal, Mwangangi challenged two aspects of the district court’s entry of summary judgment for the defendants: first, the resolution of his Monell inventory search claims, and second, the district court’s determination that the defendants are immune from his state-law claims for negligent supervision and negligent handling of property under the Indiana Tort Claims Act.

The district court concluded that Mwangangi waived his Monell claim based on the city of Lebanon’s inventory search policy because “[f]rom [his] meager briefing, the [court] cannot discern exactly what practice, beyond a generalized ‘inventory search,’ is the subject of Mr. Mwangangi’s complaint.” Mwangangi conceded on appeal that “‘skeletal’ arguments may be properly treated as waived” but insisted that he presented enough for the claim to be addressed on the merits

The second aspect of Mwangangi’s cross-appeal challenged the district court’s entry of summary judgment on certain state-law claims arising from “negligence resulting in damage” to his Crown Vic “during or as a result of the police encounter and arrest” and the “unreasonable and negligent retention of plaintiff’s personal property (phone and tablet) seized in relationship to the police encounter/arrest.”

Judges concluded the city is protected from state tort liability under the law enforcement exemption in Indiana Code § 34-13-3-3(8).

Judge Frank Eastebrook wrote a concurrence, adding an observation about one of the plaintiff’s legal theories.

“Mwangangi contends that Noland and Nielsen are liable under 42 U.S.C. §1983 because they did not intervene to prevent Root from arresting him,” Easterbrook said. “He does not explain why. What statute or constitutional rule requires one employee of the government to stop another from making a mistake? The Supreme Court has held many times that §1983 supports only direct, and not vicarious, liability.

“… Perhaps state law requires police officers to prevent their fellows from violating suspects’ rights, but §1983 cannot be used to enforce state law,” he continued. “Some federal statutes or constitutional provisions may require public employees to render assistance, and these could be enforced through §1983, because then liability would be direct rather than derivative. But Mwangangi has not cited any such sources of law.

“… I do not disagree with my colleagues’ decision to remand with respect to the failure-to-intervene theory against Noland and Nielsen,” he concluded. “I hope, however, that litigants will not continue to allow this questionable theory to pass in silence.”

Judge Thomas Kirsch partially dissented, writing separately that, “Given the totality of what Officer Root knew at the time of the handcuffing and the lack of any clearly established law on what constitutes probable cause under Indiana’s foggy police impersonation statute, I would hold that Root had arguable probably cause to believe Mwangangi had violated the statute.”

“The majority warns that my conclusion ‘risks conflating the authority justifying the initial Terry stop with the authority to arrest,’” Kirsch wrote. “While I agree that we must be careful not to muddy the waters on the level of suspicion required for constitutionally distinct seizures, there are cases where the information that supports reasonable suspicion also supplies arguable probable cause. This is one of them.”

The case is Daudi M. Mwangangi v. Taylor Nielsen, et al. and City of Lebanon, Indiana, 21-1576, 21-1577 and 21-1971.