Full opinion text
CERTIFICATION OF QUESTIONS to the Supreme Court of the State of Indiana. FOSTER, United States Magistrate Judge. Pursuant to Rule 15(0) of the Rules of Appellate Procedure of the State of Indiana, we respectfully request the Supreme Court of the State of Indiana to accept these certified questions concerning issues of state law. While we should not be hesitant to employ this useful opportunity to clarify state law afforded by the Supreme Court, Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1402 n. 2 (7th Cir.1992) (Ripple, J., concurring in part and dissenting in part), we recognize the prudence of certifying only those questions that might control the outcome of a case, see Shirley v. Russell, 69 F.3d 839, 844 (7th Cir.1995) (interpreting 7th Cir. R. 52), and we are sensitive to the principle of judicial restraint in addressing constitutional issues, especially novel constitutional issues in a non-specific factual context, Citizens National Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241-42 (Ind.1996). To these ends, we have been careful to assure that the answers to the questions we present are likely to be determinative of claims, defenses, or remedies in this Cause and we have endeavored to give as complete a factual background as the current status of this Cause allows. As usual, we encourage the Supreme Court to reformulate the questions if they conclude that the wrong ones have been asked, see, Todd v. Societe BIC, S.A., 9 F.3d 1216, 1222 (7th Cir.1993), and to illuminate any errors or omissions in our discussion of Indiana law. Pursuant to 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73(a), and upon the consents of the parties, defendants’ Consents (January 22 and February 23, 1998, doc. nos. 13 and 14); plaintiffs’ Consent (February 23, 1998, doc. no. 14), the special designation of the Court, S.D.Ind.LR 72.1(h), and the reference of the assigned district judge, Order of Reference (March 4, 1998, doc. no. 16), this Cause is before the undersigned magistrate judge to conduct any and all proceedings and to order the entry of judgment. I. Factual background. The following facts were taken from the parties’ statements of material facts submitted on the defendants’ motion for summary judgment. Unless otherwise noted, these facts were undisputed. On February 24, 1997, defendant Kerry Buckner, a detective employed by the Sheriff of Marion County, Indiana in his Narcotics Unit, obtained a warrant from a Marion County Superior Court judge to search the residence at 5201 West Chelsea Road in Indianapolis. Detective Buckner’s supporting probable cause affidavit was based on the relations of another deputy sheriff who had observed and seized evidence of suspected controlled substances violations while inside 5201 West Chelsea Road on February 15, 1997, nine days earlier. The warrant was executed later that evening. The warrant described the house as a two-story single family dwelling with a white wood covering, address numbers on the porch pillar at the north section of the residence, and a dirt-covered driveway running to the east of the residence. The only defendant who had seen 5201 West Chelsea Road before the warrant was executed was Detective Buckner. He was new to the Narcotics Unit and was still in training with a Field Training Officer (“F.T.O.”) on the day of the search. This was also his first search. On that day, Detective Buckner’s regular F.T.O. was on vacation and a new one was assigned to him. During daylight hours on that day, Detective Buckner went to 5201 West Chelsea Road with his substitute F.T.O. to obtain a physical description of the residence for the warrant. Defendant McAtee, at this time a Sergeant in the Marion County Sheriffs Nar-coties Unit, was Mr. Buckner’s supervisor. She assigned his substitute F.T.O. and sent both of them to obtain the physical description and to obtain the warrant from the judge. The F.T.O. is not a defendant in this action but she did participate in the execution of the warrant. The plaintiffs’ residence is located at 5129 West Chelsea Road (again, the warrant residence was 5201 West Chelsea Road). Numbers indicating the plaintiffs’ address were clearly marked on the mail box and were marked on the gable above the front porch. Both the warrant residence and the plaintiffs’ residence have porches on the north ends of the houses, dirt-covered or gravel-covered driveways on their east sides, detached garages at the end of the driveways, white siding, and yellow brick half-walls on the porches. Unlike the warrant residence, the plaintiffs’ residence is a single-story house; it has two brick porch pillars; and the porch opening is on the east, on the side of the porch, while the warrant residence’s porch opens to the north, on the front of the porch and house. The warrant residence has a single roof elevation and is clearly a two-story building considerably higher than the plaintiffs’ house. The plaintiffs’ house has two roof elevations, which are observable from the front of the house. The plaintiffs’ house is separated from the warrant house by three houses and perhaps a vacant lot. Detective Buckner led a briefing at the Sheriffs offices for the deputies who were to participate in the execution of the warrant. No information on the content of this briefing was submitted. The team drove to the scene in several vehicles with Detective Buckner in possession of the warrant. At that time, defendant Tomey was a Captain and the Commander of the Sheriffs Special Investigations Unit which included the Narcotics Unit. Neither Sergeant McAtee nor Captain Tomey (we will refer to the ranks the defendants had at that time) rode to the scene with Detective Buckner and, contrary to policy, Detective Buckner did not ride to the scene with his F.T.O. The team entered West Chelsea Road from the east, off of Morris Street, and parked their vehicles to the east of the plaintiffs’ driveway. Detective Buckner identified the plaintiffs’ house as the warrant residence to Sergeant McAtee and Captain Tomey. Because two male subjects were visible inside the front of the house (through the glass in the front door and a window), the officers executing the warrant wanted to enter quickly, with minimal exposure. The officers entered through the front door of the plaintiffs’ house by turning the door knob on the unlocked front door. The officers were in the process of securing the premises when Detective Buckner realized that the plaintiffs were not the people named in the warrant. Detective Buckner notified Sergeant McAtee and Captain Tomey of the error and Sergeant McAtee and Captain Tomey ordered all officers out of the house. The defendants did not damage the plaintiffs’ real or personal property. Only one of the plaintiffs was handcuffed. Deputies pointed firearms at the plaintiffs, collected and detained them together in the front room, and had some physical contact with plaintiffs. None of the plaintiffs sustained personal physical injury at the hands of the defendants. II. Claims, defenses, and rulings. Count 1 of the First Amended Complaint asserted federal constitutional tort claims under 42 U.S.C. § 1983 against all the defendants. Count 2 asserted Indiana common law tort claims against the Sheriff of Marion County and Indiana constitutional tort and statutory claims against all the defendants. A. Federal claims. In their complaint, the plaintiffs claimed that defendants Buckner, McAtee, and To-mey violated their Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures when the defendants entered and searched the plaintiffs’ residence without probable cause, a warrant, or exigent circumstances; failed to knock and announce before entering; and used excessive force against the plaintiffs. The plaintiffs assert that the individual defendants are liable for their affirmative actions and for their failures to intervene to prevent the violations by other defendants and other deputies. The plaintiffs also claimed that the Sheriff of Marion County is liable for these violations based on respondeat superior liability and the Sheriffs policy, practice, or custom of fading to properly train and supervise his deputies for the execution of search warrants and his practice of encouraging his deputies to not intervene to prevent violations of constitutional rights. The plaintiffs allege that the defendants’ conduct was motivated by evil motive or involved reckless or callous indifference to the plaintiffs’ rights. They pray for compensatory and punitive damages. Defendants McAtee and Tomey asserted that they enjoyed qualified immunity from the plaintiffs’ § 1983 claims for the mistaken entry into the plaintiffs’ residence because they reasonably followed the lead of detective Buckner when he identified the plaintiffs’ house as the warrant residence. We also assumed that Detective Buckner was asserting qualified immunity for the wrongful entry. All the defendants asserted qualified immunity from the plaintiffs’ excessive force claims arguing that the force allegedly used was not excessive as a matter of law and that a reasonable officer in the circumstances would not have known that the force used was excessive. We also assumed that the defendants moved for qualified immunity and summary judgment on the plaintiffs’ knock and announce claims. 1. Qualified immunity for unlawful entry claims denied. We ruled that the defendants’ qualified immunity defense for the unlawful entry was forfeited because they failed to adequately develop their argument factually or legally. Alternatively, we addressed the merits of the defendants’ argument. We found that the question of whether reasonable officers in Sergeant McAtee’s and Captain Tome/s positions would have known that deferring to Detective Buckner’s identification of the warrant residence was unreasonable depends in part on their previous awareness of the identifying features of the warrant residence (from, for example, Detective Buckner’s pre-execution briefing) and their own observations of those features at the scene, yet no evidence of those facts was presented on the motion for summary judgment. We found other facts relevant to the inquiry missing as well. For safety reasons, Sergeant McAtee made the decision to approach the warrant residence by a route with which Detective Buckner was less (if at all) familiar and, contrary to policy, Detective Buckner, still in training, drove to the site separately from his F.T.O. Yet the evidence presented on the motion for summary judgment does not indicate whether Sergeant McAtee or Captain To-mey at that time were aware of Detective Buckner’s unfamiliarity with the approach to the warrant residence or that he was unaccompanied by his F.T.O., who had surveyed the residence with him earlier in the day. It is unclear how much of the identifying details of the warrant residence Sergeant McAtee or Captain Tomey knew and whether they took reasonable steps to identify the warrant residence themselves or to check or confirm Detective Buckner’s identification of the warrant residence — perhaps with his presumably equally-knowledgeable F.T.O. who was present. In light of the facts that Detective Buckner was a trainee, that this was his first warrant execution, and that he was separated from his F.T.O., the only other member of the team who had seen the warrant residence, we held that a jury could reasonably conclude that a failure of Sergeant McAtee and/or Captain Tomey to take steps to confirm Detective Buckner’s identification of the warrant residence was unreasonable and violated the Fourth Amendment. Finally we concluded that there were enough significant differences between the features and locations of the warrant residence and the plaintiffs’ house, and enough question about the adequacy of the defendants’ efforts at accurate identification, that a jury could reasonably conclude that the defendants’ mistaken identification was not reasonable and, therefore, neither Detective Buckner, Sergeant McAtee, nor Captain Tomey were protected by qualified immunity. The parties did not discuss on summary judgment, and we did not address, whether the defendants enjoyed qualified immunity for any failure to withdraw from the plaintiffs’ house sooner than they did. 2. Summary judgment on excessive force claims denied in part and conditionally granted in part. The plaintiffs alleged the following uses of excessive force: (1) Upon entry into the house, an officer pointed a gun at Odealia Turner’s forehead and repeatedly shouted at her to get down on the floor. The gun was pointed at her until she sat down on the couch. (2) Upon entry into the house, an officer pointed a gun at Bruce Turner’s face, he was pushed to the floor face-down, and he was forcibly handcuffed. The duration of “contact” was 10-15 minutes. (3) A female officer knocked on the door to the bathroom where Kathleen Turner was showering and yelled asking if anyone was in the bathroom. Kathleen answered the door in a towel and stood there for about five minutes while the female officer ignored her requests to put on clothes and join her mother. While she stood there, several male officers passed by. Odealia Turner also avers that McAtee “pulled my daughter out of the shower and made her stand in the hall in front of the rest of the men.” Kathleen eventually joined the rest of her family in the front room, still dressed in a towel. (4) Jason Turner alleges that Captain Tomey held a gun to his head. When Jason couldn’t comply with Captain To-mey’s command to raise his arms because of a slight handicap in his left arm, Captain Tomey began to yank Jason’s left arm. Captain Tomey continued to yank Jason’s arm and command him to raise it after being told about his handicap. Again, none of the plaintiffs allege that they suffered physical injuries as a result of the defendants’ uses of excessive force. The plaintiffs’ claims of excessive force also encompass all uses of force by the deputies because the plaintiffs allege that the deputies entered the plaintiffs’ house unlawfully and, if their initial entry is found to be lawful, then them claims include all uses of force after the deputies should have retreated from the house. We concluded that, when lawfully executing a search warrant on premises believed to house a narcotics distribution operation, it is a reasonable use of force for law enforcement officers to secure the premises and protect themselves by pointing weapons at the occupants, putting them on the floor, and handcuffing them. See Michigan v. Summers, 452 U.S. 692, 701-03, 101 S.Ct. 2587, 2593-94, 69 L.Ed.2d 340 (1981); Torres v. United States, 200 F.3d 179, 184-87 (3rd Cir.1999); Baker, 50 F.3d at 1191-93; Tom v. Voida, 963 F.2d 952, 957-59 (7th Cir.1992); United States v. Laing, 889 F.2d 281, 285-86 (D.C.Cir.1989), cert. denied, 494 U.S. 1008, 110 S.Ct. 1306, 108 L.Ed.2d 482 (1990); Wilkins v. May, 872 F.2d 190, 194 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990). We found, therefore, that the defendants are conditionally entitled to summary judgment on these claims: if the jury finds that their mistaken entry into the plaintiffs’ house was reasonable, then the defendants would enjoy qualified immunity for pointing their weapons at the plaintiffs, putting Bruce Turner on the floor, and handcuffing Bruce Turner. Because the defendants did not develop qualified immunity arguments regarding other uses of force, including force used against Kathleen and Jason Turner, qualified immunity was denied as to these claims. 3. Summary judgment on knock and announce claims denied. The defendants argued for qualified immunity and summary judgment on the knock and announce claims on the ground that there is no genuine dispute of fact there was a knock and announcement. The defendants did not argue that exigent circumstances excused a knock and announcement. We found that the plaintiffs’ affidavits, in which they averred that no knock or announcement was given before the deputies entered, were sufficient to create a genuine issue of material fact about whether a proper knock and announce was given. All of the defendants averred that they entered the plaintiffs’ house by turning the doorknob and entering the unlocked door. 4.Summary judgment granted on respondeat superior claims. The plaintiffs conceded in their summary judgment response that the Sheriff of Marion County cannot be held vicariously liable under § 1983 and summary judgment was accordingly granted on those claims. 5.Summary judgment granted on failure to train claims. Because the plaintiffs did not respond to the defendants’ motion for summary judgment on the plaintiffs’ Monell claim that the Sheriff of Marion County failed to adequately train the defendants, we granted the defendants’ motion. 6. Summary judgment granted on failure to supervise claims. To support their claims that the Sheriff had a policy, practice, or custom of failing to adequately supervise his deputies, the plaintiffs relied only on the fact that Detective Buckner rode to the plaintiffs’ house without his F.T.O. and the alleged fact that neither Sergeant McAtee nor Captain Tomey took steps to make sure that Detective Buckner properly identified the warrant residence. Because the plaintiffs failed to show more than this one incident and failed to show the decision of a responsible policy maker, summary judgment was granted on those claims. 7. Summary judgment granted on punitive damages claims. Because the plaintiffs conceded in their response that they are not entitled to punitive damages against the Sheriff under § 1983, summary judgment was granted on those claims. 8. Qualified immunity on failure to intervene claims denied. The defendants moved for qualified immunity against only the plaintiffs’ § 1983 excessive force claims against the individual deputy sheriffs. As noted above, we ruled that summary judgment on the claims that the defendant deputies used excessive force by pointing weapons at the plaintiffs, putting them on the floor, and handcuffing them depends on whether the original entry into the plaintiffs’ house and any failure to knock and announce were reasonable mistakes. Similarly, we ruled that the defendants’ qualified immunity for failing to intervene to prevent the same uses of force depends on the reasonableness of the entry and any failure to knock and announce. With respect to other uses of force inside the plaintiffs’ house, we ruled that there are sufficient genuine disputes of material fact to prevent a finding that reasonable officers in the defendants’ positions would have known that failing to intervene to prevent the uses of force alleged would have been unreasonable. B. State common law claims. The plaintiffs claimed that the defendants are liable for (1) violation of their rights against unreasonable searches and seizures under Article 1, § 11 of the Indiana Constitution, (2) wrongful entry under Indiana Code § 35-33-5-7(e), and common law (3) trespass, (4) false arrest, (5) battery, and (6) confinement under the Indiana Tort Claims Act. Although the First Amended Complaint literally asserted all of the state law claims against only the Marion County Sheriff, we construed, and later ruled specifically, that the claims under the Indiana Constitution and I.C. § 35 — 33 — 5—7(e) are asserted against all of the defendants. Under the Indiana Tort Claim Act, the plaintiffs may assert their common law tort claims against only the Sheriff. Indiana Code Annotated § 34-13-3-5(a) (Burns 1998) (“A judgment rendered with respect to or a settlement made by a governmental entity bars an action by the claimant against an employee whose conduct gave rise to the claim resulting in that judgment or settlement. A lawsuit alleging that an employee acted within the scope of the employee’s employment must be exclusive to the complaint and bars an action by the claimant against the employee personally”). The plaintiffs have consistently alleged in each of their three complaints that the defendant deputy sheriffs acted within the course and scope of their employment. 1. Summary judgment on battery claims denied in part and conditionally granted in part. Citing Kemezy v. Peters, 622 N.E.2d 1296 (Ind.1993), the Sheriff conceded that the defendants owed a private duty to the plaintiffs to refrain from using excessive force against the plaintiffs during the search and, therefore, the Tort Claims Act’s “enforcement of law” immunity, I.C. § 34-13-3-3(7), does not apply to the plaintiffs’ battery claims. The plaintiffs did not dispute the Sheriffs argument that the “plaintiffs’ claims sounding in battery ... that they had guns pointed at them and one of them was handcuffed” was a reasonable and privileged use of force incident to an arrest or detention and did not amount to battery as a matter of state law. Therefore, parallel to our rulings on the plaintiffs’ excessive force claims under the Fourth Amendment, we conditionally granted the Sheriffs motion for summary judgment and ruled that the defendants’ actions in pointing guns at the plaintiffs and putting Bruce Turner on the floor and handcuffing him were reasonable uses of force if the defendants’ presence in the house was lawful. In other words, the Sheriffs liability for battery depends on whether the jury finds that the defendants’ mistaken entry into the plaintiffs’ house, and any failure to knock and announce, were reasonable under the Fourth Amendment and Section Eleven. The parties did not address and we made no ruling on other touchings by the defendants, specifically the touchings of Kathleen and Jason Turner except for the pointing of weapons at them. As noted in the following section, the question of whether § 3(7)’s immunity applies to the plaintiffs’ excessive force claims is certified to the Indiana Supreme Court. 2. Summary judgment on trespass and confinement claims denied. The Sheriff of Marion County argued that the Indiana Tort Claims Act immunizes him from the plaintiffs’ claims for trespass and confinement pursuant to I.C. §§ 34-13-3-3(7) (enforcement of a law), (12) (authorized entry onto land), and (13) (unintentional misrepresentation). The Sheriff argued that § 3(7) immunity applied because the deputies were in the process of attempting to enforce the state’s drug laws by serving a valid warrant on suspected drug dealers. The plaintiffs responded only that the later-enacted and more specific “wrongful entry” liability created by I.C. § 35-33-5-7(e) supersedes the immunities of the earlier and more general Tort Claims Act. The plaintiffs did not address the merits of any of the specific immunities asserted by the Sheriff and neither side addressed the public-private duty test that Quakenbush v. Lackey, 622 N.E.2d 1284 (Ind.1993), and Kemezy v. Peters, 622 N.E.2d 1296 (Ind.1993), prescribed for applying § 3(7)’s “enforcement of a law” immunity. In this posture of the parties’ arguments, we granted summary judgment on the plaintiffs’ trespass and confinement claims on the ground of § 3(7) immunity. However, while preparing this Entry, we reconsidered and vacated our ruling that I.C. § 34-13-3-3(7) immunizes the Sheriff from liability for trespass and confinement claims. We first reconsidered the definition of the duty to which the Quakenbush public-private analysis should be applied: whether it should be the general duty to “enforce the law against growing marijuana in Indiana”, as contended by the Sheriff, or the specific duty to accurately identify a warrant residence before execution. During this reconsideration, however, we discovered the Supreme Court’s decision in Benton v. City of Oakland City, 721 N.E.2d 224 (Ind.1999), which caused us to reconsider our ruling on a more fundamental level and convinced us of the need to certify the question of the meaning of § 3(7) to the Supreme Court. In its 1993 opinion in Quakenbush, the Supreme Court declared the meaning of the “enforcement of a law” immunity of § 3(7): Accordingly, we hold that Section 3(7) was intended to codify the common law as it existed at the time the Act was passed. The state of the common law was such that governments and their employees were subject to liability for the breach of private duties owed to individuals, but were immune from liability for the breach of public duties owed to the public at large. Quakenbush, 622 N.E.2d at 1290-91. See also Kemezy, 622 N.E.2d at 1297 (“In Quakenbush, we held that the legislature intended that Section 3(7) confer immunity only when the plaintiff seeks recovery for the breach of a public duty, but provides no refuge to governmental entities or their employees for the breach of a private duty”). In Quakenbush, the Court overruled its previous interpretation of § 3(7) that it immunized only “activities attendant to effecting the arrest of those who may have broken the law”, Tittle v. Mahan, 582 N.E.2d 796, 801 (Ind.1991), which in turn had overruled the Court’s earlier interpretation that § 3(7) immunized all law enforcement activity conducted within the course and scope of employment, except for false arrest and false imprisonment, Seymour National Bank v. State, 422 N.E.2d 1223, 1226, modified on rehearing, 428 N.E.2d 203 (Ind.1981). In Quakenbush, the Court adopted the definition of the public-private duty test described by Judge Robertson in his opinion for the Court of Appeals in Seymour: [Judge Robertson] concluded that the term “enforcement of the law” rendered Section 3(7) ambiguous and ultimately concluded “that the legislature intended enforcement to mean at least that the decision to enforce and the end result thereof upon the object of the enforcement (within the bounds of law) is protected activity and will not give rise to a civil action for damages.” In other words, he reasoned that the decision of whether or not to investigate a crime, whether to arrest a particular individual for committing a crime, and the arrest itself were protected activities so long as the acts are otherwise conducted legally. We believe this analysis comports with the legislature’s intent when it drafted Section 3(7). This analysis also gives meaning to the exception in Section 3(7) that immunity does not apply if an officer’s conduct results in false arrest or false imprisonment. Quakenbush, 622 N.E.2d at 1289-90 (citations omitted). Based on this standard, Quakenbush held that an officer traveling to the scene of a crime is not immune from civil liability for negligence because police officers have a private duty to use reasonable care when driving their vehicles. Presumably, the reason was because driving to the scene of a crime does not involve the decision whether to investigate a crime, whether to arrest a suspect, or an arrest itself. In Kemezy, decided the same day as Quakenbush, the Court held that police officers owe a private duty to refrain from using excessive force during an arrest and therefore are liable for intentional batteries committed during an arrest. Although the Court did not trace out its rationale in Kemezy, presumably it concluded that an intentional battery on an arrestee, although involving the “end result [of a “decision to enforce”] upon the object of the enforcement”, is not an end result that is “within the bounds of law”, Quakenbush, 622 N.E.2d at 1289, or that, while it is an “arrest itself’, it is not an arrest “otherwise conducted legally”, id., 622 N.E.2d at 1289-90. In Benton, the Supreme Court returned to the standard of governmental common law liability declared in Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (Ind.1972), which culminated the Court’s progressive abrogation of governmental immunity in Indiana. In Campbell, the Court held that governmental entities would thenceforth be liable for any “duty owed to a private individual”, meaning that governmental entities would be liable under the same “common law duty to use ordinary and reasonable care under the circumstances” that applies to non-governmental entities. The Court reserved three areas where sovereign immunity would remain: claims that a governmental entity failed to provide adequate police protection to prevent crime, that a state official appointed a negligent individual, and that challenge judicial decision making. Benton, 721 N.E.2d at 227, 228. Benton made clear that governmental entities face common law liability for all claims unless “the duty alleged to have been breached is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) that it should be treated as one as well.” Id. at 230. The Court specifically rejected the public-private duty test which was predominantly applied to determine common law liability, explaining that the development of that test was a departure from Campbell’s simple holding and had resulted in an unworkable, convoluted, highly abstract, and almost metaphysical analysis. Although the Court was careful to limit its discussion to the scope of governmental entities’ common law liability and explicitly disclaimed any consideration of the Tort Claims Act’s immunities, particularly Quakenbush’s public-private duty analysis for § 3(7), id., 721 N.E.2d at 226 n. 2, 231-32, Benton’s rationale appears nonetheless to undermine the basis for Quaken-bush’s interpretation of § 3(7). Benton explained that “[f]or a brief period following Campbell, courts correctly concluded the phrase ‘duty owed to a private individual’ was nothing more than a synonym for ‘duty of reasonable care’ ”, Benton, 721 N.E.2d at 228, and that the “convoluted analysis that seemed to support an entirely separate test for duty in cases involving a governmental defendant” began shortly thereafter, id., at 228-29. Benton’s description of the state of the common law at the time the Tort Claims Act was enacted inevitably informs the interpretation of § 3(7) because Quaken-bush and most opinions addressing 'the legislative purpose behind § 3(7) hold that the General Assembly intended § 3(7) to codify the common law existing at the time of enactment. The two cases cited in Benton as representative of the “brief period” of correct judicial expression of the common law of governmental liability after Campbell were decided on March -22, 1974 and February 28, 1974. Id., at 228. The Tort Claims Act, including § 3(7)’s “enforcement of a law” immunity in its present relevant form, was enacted on February 19, 1974, Acts 1974, P.L. 142, § 1, during this “brief period” of correct interpretation that § 3(7) codified. A review of the decisions Benton cites that progressively abrogated governmental immunity confirms this reading of the contemporary common law because a public-private duty analysis for governmental liability does not figure in any of the opinions. The decisions cited by Benton as representative of the caselav/s unfortunate divergence into public-private duty, special duty, and other tests for governmental liability were decided in 1975, 1978, 1979, and later, after the enactment of § 3(7). Benton, 721 N.E.2d at 228-29. It appears, then, that the public-private duty distinction was not part of the “common law as it existed at the time the Act was passed”, which Quakenbush held the General Assembly codified in § 3(7). Quakenbush, 622 N.E.2d at 1290, 1290-91; Kemezy, 622 N.E.2d at 1297. Thus, our impasse over the proper interpretation of § 3(7)’s immunity for enforcement of laws. If we follow that part of Quakenbush’s and Kemezy’s holdings that the General Assembly intended to codify the existing common law of governmental liability in § 3(7), and that part of Benton (and the caselaw) that describes the state of the common law at the time, then we would likely hold that § 3(7) does not immunize the Sheriff from the plaintiffs’ trespass (or battery) claims because the plaintiffs’ claims that the defendant deputies unreasonably misidentified their house as the warrant residence does not appear to constitute a claim that the Sheriff failed to provide sufficient police protection to prevent crime, the relevant category of sovereign immunity reserved in Campbell. Although such an interpretation would not render § 3(7) any more superfluous than it is under Quakenbush and Kemezy, we are reluctant to take such a significant departure from the standard established in Quakenbush that Benton was so careful not to overrule without authoritative guidance from the Supreme Court. The alternative is to reject either Quakenbush’$ holding that the General Assembly intended to codify the common law or Benton’s reading of that common law, and follow Quakenbush’s public-private duty standard for immunity under § 3(7). We found no Indiana decisions applying Quakenbush’s standard to officers’ search of a residence, but because executions of search warrants involve the “decision to enforce and the end result thereof upon the object of the enforcement” — in other words, the decision whether to investigate a crime, whether to search a particular location, and the search itself — we would be inclined to find that the deputies were engaged in a public duty which is immunized under § 3(7). We are understandably reluctant on our own to reject either proposition from Quakenbush or Benton and apply a public-private duty analysis which Benton criticizes. Moreover, we cannot see how Quakenbush’s public-private duty analysis for § 3(7) can practically be severed from the legislative intent holding on which the Court so firmly based it. With these conflicting standards and rationales, we face the dilemma of picking and choosing which parts of Indiana Supreme Court decisions to accept and which to reject on a question of first impression. As we read it, Benton undermines, if not abrogates, the holdings of Quakenbush and Kemezy on the meaning of § 3(7) and we are unable to predict which course the Supreme Court will take. We conclude that, in the present state of the caselaw, § 3(7)’s phrase “enforcement of or failure to ... enforce a law” is ambiguous, which leaves “no, clear controlling precedents in the decisions of the Supreme Court” on the meaning of § 3(7), Ind. R.App.P. 15(0). We have decided, therefore, to certify the question of the meaning of § 3(7) to the Supreme Court for further instruction. We also conclude that this is not the type of question that is likely to produce a “fact bound, particularized decision lacking broad precedential significance” and counsels against certification. See Erie Insurance Group v. Sear Corp., 102 F.3d 889, 892 (7th Cir.1996). 3. Summary judgment on false arrest and false imprisonment claims denied in part and conditionally granted in part. Because false arrest and false imprisonment claims are specifically exempted from the Tort Claims Act’s immunity for enforcement of laws, the Sheriff asserted the immunities of I.C. §§ 34-13-3-3(12) and (13). The plaintiffs did not address these immunities in their response and the Sheriff did not supply legal authorities in support. The Sheriff argued that § 3(12) applies because his deputies “believed they were entering onto land for which they held a valid search warrant”. Narrowly interpreting § 3(12) (because it is contrary to the common law of general liability), we concluded that it established an objective, not a subjective, test, and therefore held that the statute requires the entry onto land to be authorized in fact, not that officers have a good faith and/or reasonable belief that their entry was authorized by law. There is no dispute in this case that, because the defendants had neither probable cause, a warrant, nor exigent circumstances to enter the plaintiffs’ house, their entry onto the plaintiffs’ land was not in fact authorized by law. Therefore, we ruled that § (12) does not Immunize the Sheriff against the plaintiffs’ false arrest and false imprisonment claims. We also rejected the Sheriffs argument that § 3(13)’s immunity applies because the plaintiffs’ deprivations resulted from Detective’s Buckner’s unintentional misrepresentation to his fellow officers that the plaintiffs’ house was the warrant residence. Again, we were not supplied with developed legal arguments or authoritative interpretations of § 3(13), particularly regarding the proximity of causation required. In this context, we did not interpret the immunity as broadly as the Sheriff urged. We found that the plaintiffs do not claim that their injuries and deprivations of rights resulted from Detective Buckner’s communications to his fellow officers, but from the defendants’ wrongful entries into their house. In the absence of authoritative state decisions and in recognition of the principle that statutes in-derogation of the common law are to be narrowly construed, we interpreted § 3(13) to require that the misrepresentation itself be the act that directly and immediately caused plaintiffs’ injuries. In addition, we noted that, even if the Sheriffs construction of § 3(13) were accepted, he would not be immunized from liability for Detective Buckner’s conduct because Detective Buckner entered the plaintiffs’ house not because he communicated his mistaken identification of the house to the other officers, but because he mistakenly identified the house. Moreover, the Sheriff would not be immunized from liability for Sergeant McAtee’s or Captain Tome/s entries into the plaintiffs’ property to the extent that they unreasonably followed Detective Buckner’s lead. Hinshaw v. Board of Commissioners of Jay County, 611 N.E.2d 637, 640 (Ind.1993). The plaintiffs did not dispute, and we agreed, that detentions of the type and duration that the plaintiffs experienced would be legal if the warrant the deputies executed was for the plaintiffs’ residence. Therefore, we ruled that whether the Sheriff is liable for the plaintiffs’ claims of false arrest and false imprisonment will depend on whether the jury finds that the defendant deputies’ mistaken entry into the plaintiffs’ house violated their rights under the United States and/or Indiana Constitutions. On reconsideration, we clarify only that the legality of the detentions to which the plaintiffs were subjected will depend also on the jury’s finding of when the defendant deputies should have discovered their mistake, when they actually did discover their mistake, and how expeditiously they withdrew after discovering their mistake. C. State constitutional and statutory claims. We did not address the plaintiffs’ claims based on Article 1, Section 11 of the Indiana Constitution and I.C. § 35-33-5-7(e) because we intended to certify these issues to the Supreme Court. D. Summary of existing claims. The following claims survived our rulings on summary judgment: 1. Section 1983 claims for compensatory damages, punitive damages, and attorney’s fees (under 42 U.S.C. § 1988) against the individual deputies for the following alleged violations of the plaintiffs’ rights under the Fourth and Fourteenth Amendments of the United States Constitution: a. Entering the plaintiffs’ house without a warrant or probable cause and without taking reasonable steps to ensure the accurate identification of the warrant residence and failing to immediately retreat when they discovered or should have discovered their mistake. b. Failing to knock and announce before entering the plaintiffs’ house in the absence of exigent circumstances. c. Using excessive force against the plaintiffs. If the jury finds that the deputies’ mistaken entries into the plaintiffs’ house were reasonable and that the knock and announce requirement was satisfied or excused, then the plaintiffs’ claims of excessive force are limited to the force used against Kathleen and Jason Turner except for the pointing of weapons at them and any uses of force occurring after the defendant deputies should have withdrawn; If the jury finds that the deputies’ mistaken entries were not reasonable or that any failure to knock and announce was not excused, then the plaintiffs’ claims of excessive force include all uses of force against all the plaintiffs from the moment of entry into the plaintiffs’ house. d. Failing to intervene to prevent or stop these violations of the plaintiffs’ rights. 2. State common law tort claims against the Sheriff of Marion County for compensatory damages: a.Battery for the deputies’ unlawful touching of the plaintiffs. If the jury finds that the deputies’ mistaken entries into the plaintiffs’ house were reasonable and that the knock and announce requirement was satisfied or excused, then the plaintiffs’ claims of battery are limited to the touchings of Kathleen and Jason Turner, except for the pointing of weapons at them and any touchings occurring after the deputies should have withdrawn from the house. If the jury finds that the deputies’ mistaken entries were not reasonable or that any failure to knock and announce was not excused, then the plaintiffs’ claims of excessive force include all uses of force against all the plaintiffs from the moment they entered the plaintiffs’ house. b. Trespass for the deputies’ allegedly unlawful entry into the plaintiffs’ house and any failure to withdraw after they discovered or should have discovered their mistake. c. False arrest and false imprisonment for the deputies’ unlawful detentions of the plaintiffs. If the jury finds that the deputies’ mistaken entry into the plaintiffs’ house was reasonable and that any failure to knock and announce was excused, then the plaintiffs’ claims of false arrest and false imprisonment are limited to the detentions that occurred after the deputies did or should have discovered their mistake but failed to withdraw. 3. Claims for “wrongful entry” under I.C. § 35-33-5-7(e) against the deputies and the Sheriff for compensatory and punitive damages. 4. Claims for compensatory and punitive damages against the deputies and the Sheriff for violating Article 1, Section 11 of the Indiana Constitution by unreasonably entering the plaintiffs’ house, failing to knock and announce before entering, failing to withdraw when the mistake was or should have been realized, and using excessive force against the plaintiffs. III. Certification analysis. In order to determine the questions needing to be certified and to ensure that the answers are necessary, we examine the differences in standards, defendants, and remedies under each of the claims and legal theories asserted. A. Entering and searching the plaintiffs’ house. The plaintiffs assert four legal theories to support their causes of action against the defendants for entering and searching their house. 1. § 1983, Fourth and Fourteenth Amendments to the United States Constitution. The Fourth Amendment, applicable to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Law enforcement officers who execute a warrant on the wrong residence violate the residents’ Fourth Amendment rights if the officers fail to make an objectively reasonable effort to accurately identify the place to be searched. See Maryland v. Garrison, 480 U.S. 79, 87-89, 107 S.Ct. 1013, 1018-19, 94 L.Ed.2d 72 (1987) (standard is whether “officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment”); Hartsfield v. Lemacks, 50 F.3d 950, 955 (11th Cir.1995) (“absent probable cause and exigent circumstances, a warrantless search of a residence violates the Fourth Amendment, unless the officers engage in reasonable efforts to avoid error”); Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir.1995) (“the execution of a valid warrant on the wrong premises violates the Fourth Amendment if the officers should know the premises searched are not the premises described in the warrant, i.e., the officers’ mistake is not objectively reasonable”); Hill v. McIntyre, 884 F.2d 271, 276 (6th Cir.1989) (a mistake is unreasonable if officers act recklessly). Even if the initial entry into a residence results from an objectively reasonable mistake, the Fourth Amendment requires officers to retreat as soon as they discover or reasonably should discover their mistake. See Garrison, 480 U.S. at 87, 107 S.Ct. at 1018; Tierney v. Davidson, 133 F.3d 189, 197-99 (2nd Cir.1998); Liston, 120 F.3d at 978 (“the reasonableness of the detentions does not turn on the total amount of time involved but on when a reasonable officer would have known that a serious error had occurred and that the search should be terminated”); Baker, 50 F.3d at 1192; Pray v. City of Sandusky, 49 F.3d 1154, 1159 (6th Cir.1995). Respondeat superior liability is not available in § 1983 actions, Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), and we have granted summary judgment against the plaintiffs’ direct liability claims against the Sheriff of Marion County. Therefore, the plaintiffs claims are against only the individual defendant deputies. Under § 1983, plaintiffs may recover compensatory damages for emotional distress. Memphis Community School District v. Stachura, 477 U.S. 299, 306-07, 106 S.Ct. 2537, 2543, 91 L.Ed.2d 249 (1986) (ordinary tort damages are available under § 1983, including “ ‘impairment of reputation ..., personal humiliation, and mental anguish and suffering’ ”). See Sims v. Mulcahy, 902 F.2d 524, 532-33 (7th Cir.1990), cert. denied, 498 U.S. 897, 111 S.Ct. 249, 112 L.Ed.2d 207 (1990). General, or presumed, compensatory damages may be awarded in the absence of proof of injury for Fourth Amendment deprivations. Stachura, 477 U.S. at 310-11, 106 S.Ct. at 254445; Hessel v. O’Hearn, 977 F.2d 299, 301-02 (7th Cir.1992). Punitive damages are available when “the defendants’ conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118, 2125, 144 L.Ed.2d 494 (1999); Kyle v. Patterson, 196 F.3d 695, 697-98 (7th Cir.1999). Punitive damages are available on proof by a preponderance of the evidence. Karnes v. SCI Colorado Funeral Services, Inc., 162 F.3d 1077, 1081 (10th Cir.1998). Prevailing plaintiffs may recover their attorney’s fees. 42 U.S.C. § 1988. 2. Common law tort of trespass. A plaintiff in an Indiana trespass action must prove that he was in possession of the land in question and that the defendant entered the land without right. Calumet National Bank v. American Telephone & Telegraph Co., 682 N.E.2d 785, 788 (Ind.1997); Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 227 (Ind.Ct.App.1999). After lawfully entering land, a defendant may become a trespasser if he fails to leave when his presence is no longer lawful. See Indianapolis Street Railway Co. v. Hockett, 161 Ind. 196, 200-01, 67 N.E. 106, 108 (Ind.1903). Neither an intruder’s motive or intent for entering premises nor his reasonable, good faith belief that he had a right to enter the premises are relevant to liability for trespass; Ms mental state is relevant only to the availability of punitive damages. Moyer v. Gordon, 113 Ind. 282, 284-85, 14 N.E. 476, 477 (Ind.1887); Hawke v. Maus, 141 Ind.App. 126, 129-30, 226 N.E.2d 713, 715 (Ind.App.1967); American Sand and Gravel Co. v. Spencer, 55 Ind.App. 523, 527, 529, 103 N.E. 426, 427, 428 (Ind.App.1913) (distinction between innocent and wilful trespassers). See 7 Speiser, Krause, and Gans, The American Law of Torts § 23:12, p. 647, § 23:28, p. 686 (1990) (intent is not a test of liability for trespass; mistakes of fact or law, however reasonable, and absence of bad faith are irrelevant). Under the doctrine of trespass ab initio, a person who lawfully enters property under color of law (e.g., a government agent or private individual acting under legal authority) then later abuses that authority by a positive act of misconduct will be considered a trespasser ab initio and liable in trespass for his acts from the first moment of his entry. Burton v. Calaway, 20 Ind. 469, 471 (Ind.1863); Ferguson v. Day, 6 Ind.App. 138, 144, 33 N.E. 213, 214 (Ind.App. 1893); Spades v. Murray, 2 Ind.App. 401, 405, 28 N.E. 709, 710 (Ind.App.1891); Bennett v. McIntire, 121 Ind. 231, 233, 23 N.E. 78, 78-79 (Ind.1889). See 28 Indiana Law Encyclopedia, “Trespass” § 2, p. 60 (1999); 7 American Law of Torts § 23:25, pp. 682-85; Prosser and Keeton on the Law of Torts 5th Ed., § 25, pp. 150-52 (1984). Law enforcement officers who enter premises without authority are subject to common law trespass actions. See, State ex rel. McPherson v. Beckner, 132 Ind. 371, 374, 31 N.E. 950, 951 (Ind.1892); McGee v. Givan, 4 Blackf. 16, notes p. 19 (Ind.1835); Hollingsworth v. Bates, 3 Blackf. 340 (Ind.1834); Levelling v. Leavell, 2 Blackf. 163 (Ind.1828); State v. Thomas, 642 N.E.2d 240, 246 (Ind.Ct.App. 1994), trans. denied; Stuck v. Yates, 30 Ind.App. 441, 66 N.E. 177 (Ind.App.1903). Under I.C. § 34-13-3-3(7), governmental defendants enjoy immunity from trespass actions if the plaintiffs loss results from “the ... enforcement of or failure to ... enforce a law”, the meaning of which, we have discussed above, is uncertain and herein certified. As noted above, the plaintiffs have consistently alleged that the defendants acted within the scope of them employment and the Sheriff has not answered otherwise. Therefore, the plaintiffs’ trespass claims are asserted against only the Sheriff. I.C. § 34-13-3-5(a). Plaintiffs may recover damages for emotional distress caused by a trespass regardless of physical injury. Cullison v. Medley, 570 N.E.2d 27, 30 (Ind.1991) (“When one intentionally invades the premises of another in such a way as to provoke a reasonably foreseeable emotional disturbance or trauma of the rightful occupier of the premises, the occupier may, in addition to recovering damages to the realty, if any, recover damages for such emotional injury”); Moyer, 113 Ind. at 288, 14 N.E. at 479 (trespass plaintiff entitled to damages for mental anguish or suffering, injury to pride and social position, sense of shame and humiliation). A jury may award nominal damages in the absence of proven actual damages. Indiana Pipe Line Co. v. Christensen, 188 Ind. 400, 407-08, 123 N.E. 789, 792 (Ind.1919); Indiana Michigan Power, 717 N.E.2d at 227; 7 American Law of Torts § 23:11, p. 645. Under the Tort Claims Act, the liability of the Sheriff for each plaintiffs combined common law claims is limited to $300,000 and his aggregate liability for all of the plaintiffs’ common law claims in this cause is limited to $5,000,000. I.C. § 34-13-3-4. A governmental entity is not liable for punitive damages for common law torts. Id. 3. Statutory action for “wrongful entry”, Indiana Code § 35-33-5-7(e). Indiana Code § 35-33-5-7(e) provides a statutory cause of action for the defendants’ mistaken entry: A person or persons whose property is wrongfully damaged or whose person is wrongfully injured by any law enforcement officer or officers who wrongfully enter may recover such damage from the responsible authority and the law enforcement officer or officers as the court may determine. This section is thin on details and we have not found any Indiana decision that addresses it. This section was enacted in 1983, P.L.320-1983, § 7, nine years after the Tort Claims Act was enacted, Acts 1974, P.L. 142, § 1. Section 7(e) does not refer to the Tort Claims Act and it clearly conflicts with it in important respects by broadening the scope of recovery. Under the Tort Claims Act, only governmental entities are liable for the acts of their employees committed within the scope of their employment, I.C. § 34-13-3-5(a), but § 7(e) explicitly permits recoveries against law enforcement officers as well as the responsible authorities, although it is unclear whether § 7(e) contemplates vicarious as well as direct liability against responsible authorities. In addition, while the Tort Claims Act limits the damages recoverable per plaintiff and per occurrence and excludes punitive damages, § 7(e) allows recovery of “such damage[s] ... as the court may determine”. An Indiana court construing § 7(e) would presume that the General Assembly was aware of the provisions of the Tort Claims Act when enacting § 7(e), White v. Indiana Parole Board, 713 N.E.2d 327, 329 (Ind.Ct.App.1999), trans. denied; WorldCom Network Services, Inc. v. Thompson, 698 N.E.2d 1233, 1239 (Ind.Ct.App.1998), trans. denied, and that it did not intend to enact a useless provision, White, 713 N.E.2d at 329. Furthermore, when there is an irreconcilable conflict between two statutes on the same subject matter passed at different sessions of the legislature, the later-enacted statute will prevail over the earlier-enacted statute, State ex rel. Indiana State Board of Finance v. Marion County Superior Court, Civil Division, Room Ip, 272 Ind. 47, 51, 396 N.E.2d 340, 344 (Ind.1979); Waldridge v. Futurex Industries, Inc., 714 N.E.2d 783, 785 (Ind.Ct.App.1999); Board of Trustees of Indiana Public Employees’ Retirement Fund v. Grannan, 578 N.E.2d 371, 375 (Ind.Ct.App.1991), trans. denied, and the more specific statute will control over the more general statute, State v. Greenwood, 665 N.E.2d 579, 583 (Ind.1996); Campbell v. State, 714 N.E.2d 678, 683 (Ind.Ct.App.1999); City Securities Corp. v. Department of State Revenue, 704 N.E.2d 1122, 1128 (Ind. Tax Ct., 1998), to the extent of the conflict. Horne v. State, 572 N.E.2d 1333, 1334 (Ind.Ct.App.1991), trans. denied. We assume, therefore, that the later-enacted § 7(e), which specifically addresses liability for wrongful entries, would supersede'the earlier and more general Tort Claims Act to the extent it relates to wrongful entries and conflicts with § 7(e). By not including or referring to the Tort Claims Act’s immunities or damages limits, we assume that the General Assembly intended that they not apply to § 7(e) and that a cause of action for “wrongful entry” would partake of all aspects of an ordinary tort action. We assume, therefore, that, just as with ordinary torts, governmental employers (“responsible authorities”) can be vicariously, as well as directly, liable; that plaintiffs may recover for pain, suffering, and mental anguish regardless of physical injury; and that nominal and punitive damages are available. We say we “assume” because the statute itself is silent on the relationship between the two statutes and we have no controlling decisions from Indiana courts. We have therefore determined to certify these questions of first impression and significant impact to the Indiana Supreme Court while indicating our initial impressions. On its literal terms, I.C. § 35-33-5-7(e) applies only to wrongful entries, not wrongful failures to withdraw after a lawful or reasonably mistaken entry. 4. Article 1, Section 11 of the Indiana Constitution. Article I, Section 11 of Indiana’s Constitution virtually duplicates the language of the Fourth Amendment to the United States’ Constitution, but Indiana courts have charted an independent jurisprudence for Section Eleven. Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999); Peterson v. State, 674 N.E.2d 528, 533 (Ind.1996), cert. denied, 522 U.S. 1078, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998); Brown v. State, 653 N.E.2d 77, 79 (Ind.1995). While the requirement that searches and seizures be reasonable is the ultimate standard under both the Fourth Amendment, New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985); Soldal v. Cook County, Illinois, 506 U.S. 56, 71, 113 S.Ct. 538, 549, 121 L.Ed.2d 450 (1992); S.L. v. Whitburn, 67 F.3d 1299, 1307 (7th Cir.1995); United States v. Gosha, 78 F.Supp.2d 833, 838-39 (S.D.Ind. 1999), and Section Eleven, Peterson, 674 N.E.2d at 533; Peete v. State, 678 N.E.2d 415, 419 (Ind.Ct.App.1997), trans. denied, Indiana has rejected specific tests developed in federal law for applying this ultimate standard .to particular scenarios, adhering only to the test of reasonableness for Section Eleven analysis, see, e.g., Moran, 644 N.E.2d at 540-41 (rejecting federal Katz tworprong test for expectation of privacy); Brown, 653 N.E.2d at 80 (rejecting federal warrant requirement); Baldwin, 715 N.E.2d at 337 (instead of federal concepts like a warrant requirement and probable cause, Indiana requires the state to bear the burden of showing that an intrusion was reasonable in the totality of the circumstances). State v. Lamar, 680 N.E.2d 540, 543 (Ind.Ct.App.1997). In some applications, Indiana’s reasonableness analysis has produced virtually the same results as under Fourth Amendment law, but it has also resulted in some significant differences. We have found no Indiana decisions applying Section Eleven’s reasonableness analysis to the mistaken execution of a valid warrant on the wrong residence. However, because Indiana courts apparently have not defined any differences between Section Eleven and the Fourth Amendment that are relevant to this issue, and because federal courts have not defined a particular test for mistaken entries, we assume that analysis under Section Eleven would ask the same questions as under the Fourth Amendment, viz-., whether law enforcement officers took reasonable steps to accurately identify the warrant residence. We assume that Section Eleven’s reasonableness standard would also govern the length of the defendant deputies’ presence in the plaintiffs house, requiring them to withdraw when they realized or should have realized their mistake. Cf. Coates v. State, 534 N.E.2d 1087, 1092 (Ind.1989) (investigatory detentions must last no longer than necessary to accomplish the purpose (but uncertain if based on state constitutional law)). Indiana courts have not recognized or rejected a private cause of action for damages to remedy deprivation of rights under Article I of its Constitution. Not surprisingly, decisions have also not addressed whether the procedures, immunities, and limitations of the Tort Claims Act would apply to such an action. One published federal district court decision in the Northern District of Indiana held that Indiana courts had recognized an action for damages under the Indiana Constitution. Discovery House, Inc. v. Consolidated City of Indianapolis, 43 F.Supp.2d 997, 1004 (N.D.Ind.1999). We do not agree that the cases cited in support of that proposition so hold. An unpublished decision from this Court declined to consider whether Indiana courts would recognize a private right of action for damages under the Indiana Constitution. Craig v. Chief of Police Donald Christ, Cause No. IP 96-1570-C-H/G, “Entry on Defendants’ Motions for Summary Judgment and to Dismiss and City’s Motion to' Strike”, p. 5 (S.D.Ind., December 15, 1998). When a federal district court sits in diversity, it should decide questions of state law as it believes the highest court of the forum state would decide them, even when those questions are difficult, uncertain, or of first impression. But we are of the opinion that the difficulties of ascertaining what the state courts may hereafter determine the state law to be do not in themselves afford a sufficient ground for a federal court to decline to exercise its jurisdiction to decide a case which is properly brought to it for decision. The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their rights in the federal rather than in the state courts. In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal co