COA reverses for ISP in wrongful death, civil rights violation suit

The Indiana State Police, including its superintendent in his individual capacity, has secured a win in a wrongful death case after the Court of Appeals of Indiana reversed in the civil rights lawsuit filed by the estate of a Black man who was shot and killed by a trooper nearly a decade ago.

“We rule in favor of the State Defendants in all respects. Accordingly, we reverse,” the COA held in reversing the denial of the state defendants’ motion for summary judgment.

In May 2012, ISP trooper Seth Mann was on patrol in Fort Wayne when he saw three individuals striking a person on the ground near an intersection. Mann pursued the individual, later identified as Lucius Washington, that he saw striking the victim’s head.

Washington, a Black man, “picked up his pace” and started to climb a nearby fence before the trooper attempted to put him in a chokehold and pulled him off the fence.

The two fell to the ground, with Mann landing on his back and Washington landing on top of Mann. Mann felt Washington’s hand in the area of the left side of his gun belt, though his weapon was on his right, according to court documents.

Mann punched Washington’s midsection and pushed him off. The trooper then drew his handgun and fired nine times. Washington died as a result.

While the Allen County Prosecutor’s Office was investigating the matter, then-ISP Superintendent Paul Whitesell informed ISP Training Division Commander Major Brent Johnson that a firearms review board would be appointed to review the shooting after the prosecutor’s office concluded its investigation. Douglas Carter was appointed ISP superintendent in January 2013.

In February 2013, the Allen County Prosecutor’s Office announced it wouldn’t pursue charges because there was “insufficient evidence of any criminal liability on the part of Trooper Mann.”

A month later, Carter ordered that the review board convene to review Washington’s shooting. Pursuant to ISP Standard Operating Procedure ENF-048, the board consisted of five members appointed by the superintendent.

An April 4, 2013, finding by the review board unanimously agreed that its investigation revealed “several areas in need of attention regarding the thoroughness and conduct of the criminal investigation” of Washington’s shooting. In addition, “the Board identified a series of actions and inactions which ran contrary to established training and demonstrated poor judgment and decision making on the part of Trooper Mann.”

But the April 4 finding also determined Mann’s shooting of Washington was objectively reasonable, with one dissenting member.

However, according to the Court of Appeals, Carter believed the April 4 report “include[d] way more than it need[ed]” and did not just focus on whether the shooting was “objectively reasonable.” So, he asked Major Steve E. Hillman, the assistant chief of staff of the fiscal department, to “call the [B]oard together again, issue a new report, and bring that report more narrow into just looking at the shooting.”

On April 29, 2013, Hillman and the other five members of the board issued a statement of finding. Johnson received an electronic copy of the April 29 finding and was informed that the April 4 report had been amended, that Hillman had been assigned to oversee the amendment and that the amendment was going to be submitted.

The April 29 finding contained the same factual summary as the April 4 report and also concluded that Mann’s shooting of Washington was “objectively reasonable with one dissenting member.” However, the April 29 finding omitted all the findings in the April 4 report that related to the deficiencies in the investigation of the shooting and Mann’s violations of ISP policies and procedures.

Additionally, the April 29 finding did not recommend the incident be referred to the Office of Professional Standards to address the issues dealing with those violations.

After Johnson distributed the April 29 report to the board members, two of those members — Lt. Pete Wood and Sgt. Kevin Rees — were upset by the changes and “felt that it was unjust or improper to change the recommendation of the Board.” But Johnson told them that “we’re not the final authority on this,” and “[i]t is the Superintendent who will then make a decision on the final outcome.”

The April 29 report was then amended, and the amended version was submitted to and accepted by Carter on May 1, 2013. The May 1 report contained photographs that were not in the April 29 report, and the factual summary was somewhat different.

About four years later in March 2017, Catherine Arnos, who had a child with Washington, received copies of the April reports. From those, Arnos first learned that Washington was unarmed, chased by Mann, placed in a chokehold and shot nine times. A month later, Arnos was appointed personal representative of Washington’s estate.

The estate’s counsel emailed a request to ISP for an opportunity to review and make copies of the investigation file, but the ISP legal office emailed the estate’s counsel only a copy of a May 2012 form announcing the investigation into the shooting, stating, “The complete report is an investigatory record of our agency and is excepted from disclosure under Ind. Code 5-14-3-4(b)(1). Thank you.”

In May 2017, Arnos, on behalf of the estate and Washington’s minor son, filed a complaint asserting a wrongful death claim against Mann and ISP, as well as federal civil rights claims under 42 U.S.C. §§ 1981, 1985 and 1986 against Carter, Hillman and Mann in their individual capacities.

The state filed a summary judgment motion in January 2020, arguing that the complaint was untimely and that the federal claims failed as a matter of law.

Following a hearing, the Marion Superior Court denied summary judgment, finding there was a genuine issue of material fact as to whether the doctrine of fraudulent concealment tolled the time period to file an action. The trial court also found the defendants were not entitled to summary judgment on the federal claims because Carter, Hillman and Mann were each sued in their individual capacities and therefore were persons subject to suit under federal civil rights laws.

On interlocutory appeal, the Court of Appeals reversed.

First, the COA found the estate failed to establish an issue of fact material to its fraudulent concealment theory.

“For the Estate to rely on fraudulent concealment, there must be some evidence that the State Defendants made a statement or took some action to mislead her, and there is no designated evidence showing or supporting an inference that the State Defendants had any involvement in the prosecutor’s announcement,” Judge Terry Crone wrote for the unanimous appellate panel.

“Any of the ISP’s actions related to the organization of the Board occurred after the prosecutor’s announcement and therefore could not have had any effect on the prosecutor’s investigation,” Crone wrote. “Moreover, fraudulent concealment requires that the plaintiff reasonably rely on the defendant’s statement or conduct, and the Estate provides no cogent argument or case law to support the novel notion that the doctrine applies to statements or conduct by third parties. Therefore, this argument is waived.”

The COA also found the estate’s federal civil rights claims failed.

“… (Section) 1981 prohibits racial discrimination in the making and enforcement of contracts and private employment. However, the police shooting of Washington and the investigation and review of the shooting do not involve a contract with or employment of Washington,” Crone wrote. “The Estate baldly contends that the (standard operating procedure) is a contract, but it provides no cogent argument or authority to support that contention. Therefore, this contention is waived.”

Crone continued, “As for the Estate’s conspiracy claim under §§ 1981, 1985 and 1986, that also fails on the merits. Section 1985(3) is ‘a remedial statute that prohibits conspiracies to deprive a person of rights guaranteed by the Constitution or federal laws.’ … Here, Superintendent Carter, Major Hillman, and Mann all worked for the ISP, and therefore if the intracorporate conspiracy doctrine applies to public entities, they would not be subject to a § 1985(3) claim.

“Indiana courts have not addressed whether the intracorporate conspiracy doctrine applies to federal civil rights claims. We need not decide whether the doctrine applies because, due to the division of the federal courts on this issue, Superintendent Carter, Major Hillman, and Mann lacked the notice required to subject them to liability,” Crone concluded. “Accordingly, the § 1985(3) fails on the merits, as does the § 1986 claim. Therefore, the trial court erred by denying summary judgment to the State Defendants on the Estate’s conspiracy claim.”

The case is Seth Mann, Steven E. Hillman, Douglas Carter, and the Indiana State Police v. Catherine J. Arnos, as Personal Representative of the Estate of Lucius D. Washington, Deceased, and Cameron Deshonta Washington, 21A-CT-1634.