IMPD dismissed from excessive force suit following Black man’s shooting death

The Indianapolis Metropolitan Police Department has been dismissed from an excessive force lawsuit filed following the police shooting death of a Black man in the Circle City. Additional claims against the city and individual officers, however, will proceed.

Indiana Southern District Chief Judge Jane Magnus-Stinson on Tuesday ordered the termination of IMPD as a defendant in the case brought by the family of Dreasjon “Sean” Reed. Also, Officer Steven Scott has been dismissed as a defendant in the litigation.

Reed, 21, was killed May 6 in an incident captured on Facebook Live. IMPD Chief Randal Taylor and Deputy Chief Kendale Adams were driving in separate vehicles on Interstate 65 when they observed Reed’s vehicle “being driven recklessly as the driver exited the highway” near West 30^th Street.

Taylor and Adams began to pursue Reed, whom the officers claimed “almost struck another car.” When Reed realized he was being pursued by law enforcement, he activated a Facebook livestream to capture the chase.

A police sergeant called off the pursuit after 10 minutes because of Reed’s speed, but the chase continued until Reed parked his vehicle at the back of a building near West 62^nd Street and North Michigan Road. Reed exited the vehicle and fled on foot.

“Officer (De’Joure Marquise Mercer) came upon the parked Corolla and continued to pursue Mr. Reed on foot,” Magnus-Stinson wrote Tuesday. “Seconds after Mr. Reed began running, Officer Mercer deployed his electronic control device (“ECD”), also known as a taser, and struck Mr. Reed.

“Mr. Reed fell to the ground and began to convulse, and Officer Mercer immediately began firing multiple shots with his firearm at Mr. Reed,” Magnus-Stinson continued, noting in her opinion that at this stage of the litigation she must accept the factual allegations as true. “Mr. Reed was struck and died instantly. At no time prior to shooting Mr. Reed did Officer Mercer command Mr. Reed to drop a weapon or warn Mr. Reed that he (Officer Mercer) was going to shoot.”

When Officer Scott arrived at the scene and saw Reed’s injuries, he remarked, “I think it’s going to be a closed casket, homie.” Mercer and Scott were not aware of the ongoing Facebook recording when Scott made that remark.

But “(s)hortly thereafter,” Magnus-Stinson wrote, “they officers became aware that their conversations were being recorded, and at that point they ‘began to formulate a theory about what transpired just prior to the fatal shooting,’ which ‘was contrary to the objective evidence.’”

Reed’s mother, Demetree Wynn, filed the civil suit in June, raising eight claims against the city, IMPD, Taylor, Adams, Mercer and Scott. Her allegations arose under federal and state law and included claims of excessive force, failure to train, battery and wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, denial of medical attention, vicarious liability under the theory of respondeat superior and an indemnification claim.

The freestanding respondeat superior claim was dismissed without prejudice as duplicative, while IMPD was terminated because it is not a suable entity in this context. Scott was named in the claims for excessive force, wrongful death, intentional infliction of emotional distress and negligent infliction of emotional distress, but he secured a dismissal with prejudice on each count.

Specifically, Magnus-Stinson wrote that Wynn did not allege that Scott, Taylor or Adams participated in the shooting or were present when it occurred, thus defeating the excessive force claims against them. That claim against Mercer, however, will proceed.

Additionally, because Wynn alleged that Mercer and Scott acted within the scope of their employment, they could not be held personally liable for the emotional distress or wrongful death claims. Those three state law claims were dismissed with prejudice as to Mercer and Scott.

The intentional infliction of emotional distress allegation arose from Scott’s “closed casket comment,” which Wynn said the officers should have known would be recorded given the ubiquity of recording devices. She raised this claim against the city in addition to Scott and Mercer, but Magnus-Stinson also granted the city’s motion to dismiss with prejudice.

“Because Ms. Wynn alleges that Officer Scott was acting within the scope of his employment when he made the comment in question, and because his utterance does not constitute the use of excessive force or violate any other identified Indiana statute, Ms. Wynn’s IIED claim is barred by law enforcement immunity,” the chief judge held.

Even so, Magnus-Stinson added in a footnote that “Officer Scott’s remark is precisely the type of conduct that is ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,’ such that it would meet the ‘rigorous’ requirement for extreme and outrageous conduct necessary to state an IIED claim under Indiana law.’”

Wynn did survive the motion to dismiss on a few of her allegations, though. Specifically, Magnus-Stinson rejected Taylor and Adams’ immunity argument on the state-law claims – negligent infliction of emotional distress and wrongful death – finding the court needed “the benefit of factual development” on the issue of whether those officers were acting within the scope of their employment.

“This ruling, however, is without prejudice to Defendants’ ability to assert a properly supported immunity defense at a later stage,” the chief judge wrote. She likewise rejected an argument that Wynn did not sufficiently allege the state-law torts against Taylor and Adams, finding instead that the allegations “meet the minimum requirements of notice pleading … .”

Similarly as to the state-law claims against the city, Magnus-Stinson noted the wrongful death and negligent infliction of emotional distress claims were based on conduct allegedly constituting excessive force. Thus, law enforcement immunity could not apply.

Finally, because liability has not yet been established, Wynn’s indemnification claim was dismissed without prejudice as unripe.

Magnus-Stinson’s ruling leaves six claims to proceed:

• Excessive force against Mercer individually and against the city.
• Failure to train against the city.
• Wrongful death against the city, Taylor and Adams.
• Battery against Mercer and the city.
• Negligent infliction of emotional distress against the city, Taylor and Adams.
• Denial of medical care against Mercer.

The case is Demetree Wynn v. City of Indianapolis, et al., 1:20-cv-1638.

Wynn’s lawsuit is not the only action to follow Reed’s shooting.

Scott was suspended for his “closed casket” remark, while IMPD announced all of its officers would be equipped with body cameras this summer.

The shooting also sparked protests in the city, as Reed was one of three people killed by Indianapolis police in one day.  Those protests came just weeks before the nationwide protests following the death of George Floyd.

Reed’s family had initially asked the federal government to get involved in the investigation of his death. Also, Marion County Prosecutor Ryan Mears stepped down from the case, resulting in Rosemary Khoury of Anderson taking on the role of special prosecutor.

Khoury later asked the Indiana State Police to handle the investigation into the shooting. In August, investigators made a public call for witnesses to come forward.