Citations
- 26 F. Supp. 3d 824
Full opinion text
AMENDED ORDER
JANE MAGNUS-STINSON, District Judge.
Law enforcement officers from various agencies were dispatched to the residence of William Williams after his family members called 9-1-1 because they believed Mr. Williams was suicidal. When law enforcement officers arrived at Mr. Williams’ residence, they found him locked in his bathroom in a suicidal and intoxicated state, and he was threatening to kill anyone who entered. The officers made the decision to open the bathroom door and subdue Mr. Williams with two tasers. Neither of the tasers had any apparent effect on Mr. Williams. Tragically, he then advanced on one officer with at least one twelve-inch knife, which led three officers to shoot Mr. Williams. The shooting proved to be fatal. Following his death, Mr. Williams’ estate and his two sons brought this suit against the five officers who were at the scene and their respective employers.
Presently pending before the Court are four Motions for Summary Judgment filed by (1) Defendants Putnam County Sheriff Steve Fenwick and his Deputy John Chadd, [Filing No. 75;] (2) Defendant Town of Cloverdale (“Cloverdale”), /Filing No. 80]; (3) Defendants Indiana Department of Natural Resources (“IDNR”), Indiana State Police (“ISP”), IDNR Officers Patrick Labhart and Chris Springs-tun, and ISP Officer Brian Thomas, [Filing No. 82]; and (4) Defendant Cloverdale Police Department Officer Charles Hallam, [Filing No. 84.] Also pending is a Motion to Strike filed by Defendants Chadd and Fenwick. For the reasons that follow, all four Motions for Summary Judgment are GRANTED and the Motion to Strike is DENIED.
I.
Standard of Review
A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to' a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir.2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir.2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.2009). The Court views the record in the light most favorable to the nonmoving party and draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir.2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir.2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir.2010).
II.
Factual Background and Evidentiary Objections
A. Factual Background
The parties present the Court with an extensive arsenal of evidence in support of their respective positions. The following factual background focuses on the evidence that is either directly relevant to deciding the issues presented, or is otherwise necessary to provide a full narrative of the events in question. Important factual disputes are highlighted throughout, and the facts are construed in the light most favorable to Plaintiffs, when supported by admissible evidence.
1. Mr. Williams’ Text Message to His Son and His Son’s Arrival at Mr. Williams’ Residence
On January 15, 2012, then 16-year-old Jacob Williams received a text message from his father, William Williams, which stated, “Wish you the best. Love you.” [Filing No. 77-16, at ECF p. 5.] Concerned that his father might be contemplating suicide, Jacob, then at his Aunt Kim Williams’ house, called his 19-year-old brother Tyler and told him to go immediately to their father’s house, and then Jacob himself proceeded to the house. [Filing No. 77-16, at ECF p. 5.] On the way to his father’s house, Jacob called 9-1-1, but before the call was complete, his phone disconnected. [Filing No. 77-16, at ECF p. 6.]
Jacob arrived at the house without regaining contact with emergency services. Although his father’s house was locked when he arrived, Jacob was able to gain entrance through the patio door. [Filing No. 77-16, at ECF p. 6.] Jacob broke through the locked bedroom door, and made contact with his father, who was locked in the bathroom that was connected to bedroom. [Filing No. 77-16, at ECF p. 6.] Mr. Williams told Jacob that if Jacob “came in [the bathroom] he would kill [him].” [Filing No. 77-16, at ECF p. 6.]
Jacob did not attempt to enter the bathroom at that time. Instead, Jacob confirmed that his father was standing up and still talking, which led Jacob to believe his father “was okay.” [Filing No. 77-16, at ECF p. 6.] Jacob then unlocked the doors to the house. [Filing No. 77-16, at ECF p. 6.] Around that same time, Kim and Kim’s then-boyfriend, “Dozie,” were pulling up to the house. [Filing No. 77-16, at ECF p. 6.] As they were arriving, the 9-1-1 dispatcher called Jacob back, and Jacob answered the call. [Filing No. 77-16, at ECF p. 6.]
Over the course of Jacob’s conversations with the dispatcher, Jacob told her that his father was “probably going to shoot himself.” [Filing No. 77-16, at ECF p. 6.] The dispatcher could hear Mr. Williams in the background saying, “Open that door, I’ll f* * *ing kill you.” [Filing No. 77-16, at ECF p. 6.] Jacob also stated to the dispatcher that his father said that “if I open the door, he’s going to stab me.” [Filing No. 77-16, at ECF p. 6.]
The dispatcher then radioed available law enforcement units, informing them that there was an individual threatening suicide with a gun. [Filing No. 77-1, at ECF p. 2.] Officer Chadd of the Putnam County Sheriffs Department responded to the dispatcher, requesting additional information on the suicidal individual. [Filing No. 77-1, at ECF p. 2-3.] The dispatcher informed Officer Chadd that the individual was Mr. Williams and that she overheard Mr. Williams state, “If you come through that door I will kill you.” [Filing No. 77-1, at ECF p. 3.] Officer Hallam of the Clover-dale Police Department heard the dispatcher’s report and radioed Officer Chadd, asking if he too should respond to the call. [Filing No. 77-1, at ECF p. 3.] Officer Chadd informed Officer Hallam that he was going to respond, but Officer Hallam also proceeded to Mr. Williams’ residence. [Filing No. 77-1, at ECF p. 3.] While in route to Mr. Williams’ residence, Officer Chadd radioed the ISP for assistance, and ISP Officer Brian Thomas stated that he would head to Mr. Williams’ residence t'o provide assistance. [Filing No. 77-1, at ECF p. 3.]
In a subsequent call with Jacob, the dispatcher asked Jacob to go out onto the street and wave down the officers who were dispatched to the scene. [Filing No. 77-16, at ECF p. 7.] Jacob eventually flagged down at least one officer, and he never reentered the house for the remainder of the evening. [Filing No. 77-16, at ECF p. 7.]
In the meantime, before any police officers had arrived, Kim and Dozie entered the house to try and talk to Mr. Williams. [Filing No. 77-18, at ECF p. 3.] Like Jacob, Kim communicated with Mr. Williams, but he remained locked in the bathroom. [Filing No. 77-18, at ECF p. 3.] Kim then called Pat Setty, Kim and Mr. Williams’ mother, and told her to call 9-1-1 to make sure that an ambulance was on the way to Mr. Williams’ residence. [Filing No. 77-18, at ECF p. 4.] Kim also told her mother that Mr. Williams had cut his wrists, and Ms. Setty called 9-1-1 and relayed this information to the dispatcher. [Filing No. 77-19, at ECF p. 6.] The dispatcher then informed Officers Chadd and Hallam that Mr. Williams may have cut his wrists, but that, despite earlier reports, she did not think there were firearms in the residence. [Filing No. 77-1, at ECF p. 4; Filing No. 86-9, at ECF p. 59.]
2. Law Enforcement Arrives at Mr Williams’ Residence
Officer Hallam was the first law enforcement officer to arrive at Mr. Williams’ residence, arriving immediately after Ms. Setty. [Filing No. 77-19, at ECF p. 6-7.] Shortly thereafter, Officer Chadd arrived on the scene, [Filing No. 77-1, at ECF p. 4.] As Officer Chadd was arriving, he told the dispatcher to instruct the ambulance, which was by then parked nearby, to move closer to Mr. Williams’ residence. [Filing No. 77-1, at ECF p. 4.] He also requested that the dispatcher contact the Putnam County Sheriff Department’s negotiator, Officer Nate O’Hare, and send him to Mr. Williams’ residence, but the dispatcher responded that she was unable to reach Officer O’Hare after two attempts. [Filing No. 77-1, at ECF p. 4.] Officer Chadd entered the residence and spoke with Mr. Williams’ family members, who informed him that Mr. Williams had knives but was not believed to have any firearms. [Filing No. 77-1, at ECF p. 5.]
Officer Patrick Labhart of the IDNR heard the police radio communications and decided to assist the other officers at Mr. Williams’ residence. [Filing No. 77-27, at ECF p. 3-4.] He was the third law enforcement officer on the scene. [Filing No. 77-27, at ECF p. 4.] Officer Chadd informed Officer Labhart that Mr. Williams was barricaded in his bathroom and threatening suicide, and that Officer Chadd did not believe there were any guns in the bathroom, but that he did believe there were knives. [Filing No. 77-27, at ECF p. 4.]
Officer Chadd then decided to investigate whether the officers could see into the bathroom from an exterior window. [Filing No. 77-1, at ECF p. 5.] He went outside and located an octagonal window through which he thought he would be able see into the bathroom. [Filing No. 77-1, at ECF p. 5.] Ms. Setty helped Officers Chadd and Labhart get a stepladder from the garage so that they could see into the window. [Filing No. 77-19, at ECF p. 10.] According to Officer Labhart, he climbed the ladder while Officer Chadd was still outside with him, and Officer Lab-hart could see the top of someone’s head through the bathroom window. [Filing No. 77-27, at ECF p. 5.]
At this time, ISP Officer Brian Thomas arrived on the scene and was apprised of the situation. [Filing No. 77-31, at ECF p. 3.] Officer Chadd went back inside the residence, while Officer Labhart repositioned the ladder to get a better angle of vision. [Filing No. 77-27, at ECF p. 5.] When Officer Labhart climbed the ladder the second time, he stated that he could see “blood splattered” on the bathroom door and mirror. [Filing No. 77-27, at ECF p. 5.] Officer Thomas also climbed the ladder and stated that he could see blood splattered on the wall or the vanity. [Filing No. 77-31, at ECF p. 3-4.]
While the other officers were outside, Officer Hallam remained in the residence and made contact with Mr. Williams. [Filing No. 81-3, at ECF p. 3.] Officer Hallam testified that his exchange with Mr. Williams was as follows: “I approached the area and I basically said, ‘Bill, what’s going on?’ And there was a pause, and he said, ‘Who the f* * * are you?’ And I said, ‘Charlie Hallam with the Cloverdale Police Department. I’m here to see what’s going on. How are you doing?’ [He responded,] ‘Get the f* * * out of here. Get the f* * * out of my house. Leave me alone.’ ” [Filing No. 81-3, at ECF p. 3.] Mr. Williams then threatened to stab Officer Hallam or anyone else who opened the door. [Filing No. 86-9, at ECF p. 59.]
After this exchange, and as Officer Chadd was re-entering the residence, Officer Hallam radioed that Mr. Williams was becoming increasingly agitated. [Filing-No. 77-1, at ECF p. 5; Filing No. 81-3, at ECF p. 4.] Officer Hallam informed the other officers and dispatch that he was going to keep his earpiece in but that the other officers were going to turn their radios down so that Mr. Williams did not hear them and become even more agitated. [Filing No. 77-1, at ECF p. 5.]
When Officer Chadd reentered the residence, he and Officer Hallam had a brief conversation with Ms. Setty, at the end of which they asked her to exit the residence. [Filing No. 77-19, at ECF p. 9.] On her way outside, Officer Thomas stopped her and said, ‘When the time comes that we need to get your son help, how do we open the bathroom door?” [Fifing No. 77-19, at ECF p. 9.] Ms. Setty went back inside and retrieved a Q-Tip, broke one end off, and explained to Officer Thomas how he could pop the bathroom door unlocked using the broken Q-Tip. [Fifing No. 77-19, at ECF p. 9.]
All of the officers then met up in the residence. [Fifing No. 81-3, at ECF p. 5.] Officer Labhart reported to Officer Chadd that they saw a lot of blood inside the bathroom through the exterior window. [Fifing No. 81-3, at ECF p. 5; see Fifing No. 77-1, at ECF p. 5; Fifing No. 77-27, at ECF p. 5.] The officers discussed their options of how best to proceed. [Fifing No. 81-3, at ECF p. 6.] They were unsure how injured Mr. Williams was other than that he was bleeding, and none of the officers thought to ask hi m about the extent of his injuries at that time. [Fifing No. 77-1, at ECF p. 6; Fifing No. 81-3, at ECF p. 6.] During this conversation, Tyler and Officer Chris Springstun of the IDNR arrived and entered the residence. [Fifing No. 81-3, at ECF p. 6.]
3. Tyler Speaks with Mr. Williams
When Tyler arrived in the residence, Officer Chadd told him to keep his voice down because “[Mr. Williams] doesn’t know we’re here.” [Fifing No. 101-17, at ECF p. 9.] Tyler told the officers he wanted to speak with his father, and Officer Chadd responded, “Go talk to him.” [Filing No. 101-17, at ECF p. 9.] Tyler initiated a conversation with his father through the bathroom door, which Tyler did not attempt to open. [Fifing No. 101-17, at ECF p. 9-10.] The officers were approximately five to eight feet from the bedroom door, and could hear everything that both Tyler and Mr. Williams said, [Fifing No. 101-17, at ECF p. 10], but Mr. Williams had no reason to know that the officers could hear the conversation, [Fifing No. 86-11, at ECF p. 94],
Tyler began by asking “what’s going on” and “why don’t you come out,” but Mr. Williams refused. [Fifing No. 101-17, at ECF p. 10.] At the urging of Officer Chadd, Tyler asked his father what he had in the bathroom with him, and his father responded that he had knives and an injecting needle used to marinate turkeys. [Filing No. 101-17, at ECF p. 10.] Mr. Williams also told his son that he had taken the rest of his bottle of Xanax, which Tyler thought was somewhere between twenty and forty pills. [Fifing No. 101-17, at ECF p. 10.] Mr. Williams further said that he would “kill anyone that comes through th[e] door.” [Fifing No. 101-17, at ECF p. 10.] Mr. Williams acknowledged to his son that he had cut himself and was bleeding, and commented that “[tjhis is taking longer than I planned.” [Filing No. 101-17, at ECF p. 10.] Mr. Williams continued: “This isn’t going as fast as the Internet said. Give me 30 more minutes and I’ll be done.” [Filing No. 101-17, at ECF p. 13-14.] He asked Tyler to go get him his firearm and to bring him “one bullet.” [Filing No. 101-17, at ECF p. 10.]
Whispering, Tyler asked the officers what he should do, and Officer Chadd told Tyler to tell Mr. Williams that he has his gun to “[s]ee if he’ll come out.” [Filing No. 101 — 17, at ECF p. 10-11.] Tyler described the subsequent events as follows:
So I came up to [my dad] and said, “Got your gun, come out and get it.” My dad said, “No. Put it underneath the door.” I told him it would not fit. He said, “I don’t believe you.” I then took my foot and kicked the door, as if I was trying to shové a gun underneath the door. I was like, “It won’t fit,” and I was kicking the door. He says, “Where is it?” I said, “Right here.” He said, “Put it on the ground, let me see it.” I think I actually, at this time, the officers ... had started to move into the bedroom.... A nd the one officer a couple feet back from the door put his gun down to show that ... maybe my dad would see the gun and that there was a gun there.... [My dad] said he could not see it. I said, “Well, it’s right there.” The officer did not feel comfortable putting it closer to the door, so he took it back towards his possession.
[Filing No. 101-17, at ECF p. 11.] Tyler crouched to the floor, attempting to see where his father was located within the room or what he was doing, and Tyler could only see that his father was standing near the sink. [Filing No. 101-17, at ECF p. 11.] According to Tyler, “It was clear from the communications with my father that he believed I was the only person in the house.” [Filing No. 101-18, at ECF p. 5.]
The officers and Tyler exited the bedroom to discuss what action should be taken. [Filing No. 101-18, at ECF p. 6.] The officers discussed the fact that Mr. Williams had cut himself, was bleeding, and had taken all of his Xanax. [Filing No. 86-11, at ECF p. 94-95.] They also knew that they could pop the bathroom door lock from the outside and that Officers Hallam and Chadd both had tasers to subdue Mr. Williams when the door opened. [Filing No. 86-11, at ECF p. 95.] Officer Chadd believed that rushing Mr. Williams was not an option because the officers “were in a confined area” such that “only one officer could enter the bathroom at the same time.” [Filing No. 77-1, at ECF p. 7.] The officers eventually told Tyler “that they were going to pop the door open and tase [his dad].” [Filing No. 101-18, at ECF p. 6.]
Jp. The Officers Open the Bathroom Door and Deploy Their Tasers at Mr. Williams
The officers reentered the bedroom and positioned themselves throughout the room. [Filing No. 77-1, at ECF p. 7.] Although the precise location of each officer is unclear, [see, e.g., Filing No. 101-10, at ECF p. 26-27; Filing Ño. 101-14, at ECF p. 9-10], Officers Chadd and Hallam positioned themselves near the bathroom door and had their tasers drawn and aimed at the door. [Filing No. 101-18, at ECF p. 7; see also Filing No. 77-1, at ECF p. 7.] Officers Labhart and Springstun had their firearms drawn and aimed at the door. [Filing No. 101-18, at ECF p. 7.] Tyler was also in the room, and the officers indicated that Tyler should continue talking to his father in a loud voice. [Filing No. 101-17, at ECF p. 15.] Either Officer Thomas or Officer Chadd used the Q-Tip provided to the officers by Ms. Setty to unlock the bathroom door from the outside. [Filing No. 77-1, at ECF p. 7; Filing No. 101-18, at ECF p. 7.] After the officer unlocked the door, that same officer flung the door open. [Filing No. 101-18, at ECF p. 7.] Through the open doorway, the officers saw Mr. Williams standing at the sink, yet slightly turned and facing the now open doorway, [Filing No. 77-1, at ECF p. 7; Filing No. 101-17, at ECF p. 16], with both hands placed on the sides of the sink, [Filing No. 101-18, at ECF p. 7]. There were two large knives on top of the sink, each approximately a foot long. [Filing No. 77-1, at ECF p. 7; Filing No. 77-1, at ECF p. 9.] Mr. Williams was “visibly startled” when the door opened. [Filing No. 101-18, at ECF p. 7.] He turned his torso toward the door, and Officers Chadd and Hallam almost simultaneously fired their tasers at Mr. Williams. [Filing No. 101-18, at ECF p. 7-8.] At least one of the taser’s probes struck Mr. Williams, but neither taser had any apparent effect on him. [Filing No. 77-1, at ECF p. 7; Filing No. 101-17, at ECF p. 17 (stating that Mr. Williams exhibited “no obvious reaction to the Tasers. If they were shocking him, it didn’t seem to be noticed by him”).]
5. Mr. Williams Advances on Officer Hallam with at Least One Knife Raised, Leading to the Use of Deadly Force Against Him
After the tasers were fired, Mr. Williams grabbed at least one knife off the sink. [Filing No. 101-17, at ECF p. 17; Filing No. 101-18, at ECF p. 8.] He exited the bathroom “slowly” in a “disoriented manner” with the knife raised above his head. [Filing No. 101-18, at ECF p. 8; see Filing No. 101-17, at ECF p. 17.] No words were exchanged except that at least one of the officers yelled “run” while everyone backed away from Mr. Williams. [Filing No. 101-17 at ECF p. 17.] Officer Chadd backed up while motioning Tyler to exit the bedroom. [Filing No. 101-17, at ECF p. 17-18.]
Upon exiting the bathroom with the knife raised, Mr. Williams immediately turned to the right toward where Officer Hallam was standing and walked toward him. [Filing No. 77-1, at ECF p. 8; Filing No. 101-17, at ECF p. 17 (stating that Mr. Williams “focused in on ... [Officer] Hallam”).] Mr. Williams “locked eyes” with Officer Hallam and continued to walk directly at him with the knife raised. [Filing No. 101-17, at ECF p. 18; see Filing No. 77-1, at ECF p. 8.] The other officers had all backed away from Mr. Williams, and Officer Hallam continued to back up with his firearm pointed at Mr. Williams. [Filing No. 101-17, at ECF p. 18.] Officer Hallam rounded the corners of the bed, but-Mr. Williams followed him around each corner with the knife still raised. [Filing No. 101-17, at ECF p. 18.] When Mr. Williams rounded the final corner, Officer Hallam shot at Mr. Williams but missed. [Filing No. 77-23, at ECF p. 10.] Mr. Williams continued to approach Officer Hallam, and Officer Hallam fired a second shot, hitting Mr. Williams when he was approximately three feet away from Officer Hallam.' [Filing No. 77-23, at ECF p. 10.] Mr. Williams continued toward Officer Hallam. [Filing No. 77-23, at ECF p. 11.] When Officer Hallam ran out of space to continue backing, he “tripped up” and fell backwards onto the bed, and Mr. Williams fell on top of him. [Filing No. 101-17, at ECF p. 18-20.] As Mr. Williams was falling* on top of Officer Hallam, Officer Hallam attempted to fire a third round, but because his firearm was pressed against Mr. Williams, his firearm jammed. [Filing No. 77-23, at ECF p. 11.] When Mr. Williams and Officer Hal-lam came together, Mr. Williams’ knife cut one of Officer Hallam’s fingers. [Filing No. 77-23, at ECF ,p. 19.] There was a brief second of separation between Mr. Williams and Officer Hallam, during which Officers Labhart and Thomas each shot Mr. Williams twice. [Filing No. 77-27, at ECF p. 11; Filing No. 77-31, at ECF p. 16.] There is no evidence that Officer Chadd or Officer Springstun shot at Mr. Williams.
After the three officers shot Mr. Williams, he collapsed on the bedroom floor. [Filing No. 77-1, at ECF p. 8; Filing No. 77-23, at ECF p. 12.] He ultimately died from the gunshot wounds. [Filing No. 77-36, at ECF p. 2.] An estimated two to four seconds elapsed from when Mr. Williams exited the bathroom to when he was shot. [See, e.g., Filing No. 77-27, at ECF p. 24; Filing No. 77-31, at ECF p. 16.]
6. Events Following Mr. Williams’ Death
Both parties present evidence regarding the investigation following Mr. Williams’ death, including statements his family members made to law enforcement and what the forensic pathologist’s investigation revealed. However, as both parties subsequently recognize in their respective briefs, such after-the-fact evidence is irrelevant to deciding whether the officers used excessive force against Mr. Williams at the time the force was used. To the extent that this evidence is relevant to analyzing Plaintiffs’ other claims, it is discussed in conjunction with those claims below.
B. Plaintiffs’ Expert Reports Are Inadmissible
Plaintiffs submit two expert reports from Brian Clouse and Dr. James Ginger in support of their claims. [Filing No. 101-4; Filing No. 101-5.] The Court need not detail the contents of these expert reports at length because, as discussed in detail below, they are inadmissible and, in any event, do not advance Plaintiffs’ claims. Nevertheless, in short, the expert reports conclude that the officers failed to follow established police protocols while handling the situation presented by Mr. Williams. For example, the experts conclude that the Responding Officers (1) failed to properly identify themselves and their purpose, [Filing No. 101-5, at ECF p. 12]; (2) failed to adequately reassure Mr. Williams, [Filing No. 101-5, at ECF p. 13]; and (3) failed to gather sufficient information about Mr. Williams’ condition, [Filing No. 101-4, at ECF p. 11]. Plaintiffs’ experts concluded that these failures, and others, contributed to Mr. Williams’ death. [See Filing No. 101-4, at ECF p. 19-20; Filing No. 101-5, at ECF p. 19-21.]
Defendants object to the reports and argue that the Court cannot consider Plaintiffs’ expert reports at all because they are unsworn. [Filing No. 115, at ECF p. 6.] It is well settled that unsworn statements, including expert reports, are inadmissible to support or oppose summary judgment. See Wittmer v. Peters, 87 F.3d 916, 917 (7th Cir.1996) (stating that defendant’s expert reports “were unsworn, hence not affidavits, hence not, strictly speaking, admissible to support or oppose summary judgment”); Vest v. Al-Shami 2014 WL 773231, *6 (S.D.Ind.2014) (“Dr. Payne’s report, as originally designated as part of Plaintiffs evidence in response to the motion for summary judgment, was unaccompanied by a sworn statement and thus inadmissible.”); Wirick v. Consolidated Rail Corp., 2010 WL 2670689, *3 (S.D.Ind.2010) (“The [expert] report is not accompanied by any kind of sworn statement and therefore is not ... admissible to support or oppose summary judgment.”) (citation and quotation marks omitted).
Plaintiffs implicitly admit this error by arguing that Defendants’ objection should be overruled given that Plaintiffs attached declarations to their surreply from each of their experts “authenticating the reports that were previously submitted.” [Filing No. 124, at ECF p. 4; see Filing No. 124-1; Filing No. 124-2.] As Plaintiffs’ surre-ply suggests, the declarations of Plaintiffs’ two experts merely authenticate the expert reports. [Filing No. 124-1, at ECF p. 1 (attesting that the previously filed expert report is “a true and accurate copy of [the] expert report”); Filing No. 124-2, at ECF p. 1 (same).]
The Court agrees with Defendants that Plaintiffs’ expert reports do not constitute admissible evidence and may not be considered in opposing summary judgment. See Fed.R.Civ.P. 56. First, as Plaintiffs implicitly recognize, their expert reports were not properly authenticated and thus are inadmissible. See Fed.R.Evid. 901(a); Scott v. Edinburg, 346 F.3d 752, 759 (7th Cir.2003) (“[The expert] report was introduced into the record without any supporting affidavit verifying its authenticity and is therefore inadmissible and cannot be considered for purposes of summary judgment.”). Plaintiffs’ attempt to cure this defect in their surreply by introducing new evidence is improper. The Local Rules require the party opposing summary judgment to file “a response brief and any evidence ... that the party relies on to oppose the motion.” Local Rule 56 — 1(b) (emphasis added). See also U.S. ex rel. Abner v. Jewish Hosp. Health Care Servs., 2010 WL 811288, *1 (S.D.Ind.2010) (“Pursuant to Federal Rule of Civil Procedure 56(e), the party opposing a motion for summary judgment must, by affidavit or other evidence, set out specific facts showing a genuine issue for trial. The party is not entitled to hold back evidence until the filing of a surreply.”) Plaintiffs were permitted to file a surreply brief under the Local Rules given that Defendants “objected] to the admissibility of the evidence cited in the response,” Local Rule 56-l(d), but that does not permit Plaintiffs to file additional evidence, as the Local Rules are clear that all of Plaintiffs’ evidence should have been filed with the response brief, see Local Rule 56 — 1(b). And even though the Court explicitly granted Plaintiffs leave to file a surreply brief, Plaintiffs only requested such leave to “respond to [Defendant’s evidentiary] objection, pursuant to Local Rule 56-l(d).” [Filing No. 122, at ECF p. 1.] Therefore, the scope of Plaintiffs’ request and the Court’s permission to file a surreply did not authorize the filing of additional evidence, only a responsive argument. The additional evidence attached to Plaintiffs’ surreply thus cannot be considered. For this reason alone, Plaintiffs’ expert reports remain unauthenticated and inadmissible.
The Court recognizes that a “belated affidavit is sufficient to support the use of [an expert] report at the summary judgment stage.” Harpold v. Ethicon Endo-Surgery, Inc., 2009 WL 688984, *1 (S.D.Ind.2009). But even if the Court were inclined to consider Plaintiffs’ belated and improperly submitted declarations, Plaintiffs’ belated authenticate reports did •not cure the problem Defendants identified — namely, that the expert reports were unsworn. [Filing No. 115, at ECF p. 6.] The declarations by Plaintiffs’ experts stating that their previously filed expert reports were “true and accurate copies” of their reports, [Filing No. 124-1, at ECF p. 1; Filing No. 124-2, at ECF p. 1], merely serves to authenticate the reports, and is not the same as swearing under the penalty of perjury that the statements made in the reports are true and correct. See Howmedica Osteonics Corp. v. Tranquil Prospects, Ltd., 482 F.Supp.2d 1045, 1057 (N.D.Ind.2007) (holding that an unsworn expert report cannot be relied upon at summary judgment; “where the substance of a report is not sworn by the alleged expert, ‘the purported expert’s report is not competent to be considered on a motion for summary judgment’ ”) (emphasis added) (quoting Fowle v. C & C Cola, a Div. of ITT-Continental Baking, 868 F.2d 59, 67 (3d Cir.1989)). Because Plaintiffs’ expert reports remain unsworn, they do not constitute admissible evidence that the Court may consider on summary judgment. Fed.R.Civ.P. 56(c)(4); see Wittmer, 87 F.3d at 917.
It would be an understatement to say that the inadmissibility of Plaintiffs’ expert reports is problematic for their opposition to Defendants’ motions for summary judgment, given that Plaintiffs rely almost exclusively on their expert reports to support their theory of liability. Unfortunately for Plaintiffs, this was a problem of their own making. Nevertheless, in the end, the Court concludes that even if the expert reports were admissible, Defendants would still be entitled to summary judgment on all Plaintiffs’ claims. As a failsafe, the Court discusses Plaintiffs’ expert reports below when analyzing Plaintiffs’ claims.
III.
Discussion
Plaintiffs brought the instant suit following Mr. Williams’ death, asserting two federal claims and two state-law claims against various Defendants. Plaintiffs first bring a claim pursuant to 42 U.S.C. § 1983 against the five defendant officers sued in their individual capacities — Officer Hallam, Officer Chadd, Officer Thomas, Officer Labhart, and Officer Springstun (collectively, the “Responding Officers ”)— alleging that they used excessive force against Mr. Williams in violation of his Fourth Amendment rights. [Filing No. 45, at ECF p. 8.] Second, against Putnam County Sheriff Steve Fenwick in his official capacity (“Sheriff Fenwick”) and Cloverdale, Plaintiffs assert a § 1983 municipality liability claim, arguing that each failed to adequately train their officers in handling suicidal and emotionally disturbed individuals, which caused Mr. Williams’ death. [Filing No. 45, at ECF p. 9.] Plaintiffs also assert state-law claims of wrongful death and, solely on behalf of Mr. Williams’ son Tyler, negligent infliction of emotional distress against Sheriff Fenwick, Cloverdale, the ISP, and the IDNR. [Filing No. 45, at ECF p. 10-11.] Defendants move for summary judgment on all of Plaintiffs’ claims. [Filing No. 75; Filing No. 80; Filing No. 82; Filing No. 84.] The Court addresses each of Plaintiffs’ claims in turn.
A. § 1983 Excessive Force Claims
The Responding Officers each move for summary judgment on Plaintiffs’ excessive force claim on two grounds: (1) their conduct did not violate the Fourth Amendment; and (2) they are entitled to qualified immunity. [Filing No. 76, at ECF p. 18-23; Filing No. 83, at ECF p. 9-14; Filing No. 85, at ECF p. 7-14.] Plaintiffs contend that summary judgment is not proper on either ground. [Filing No. 100, at ECF p. 35-58.] The Court begins by setting forth the basic principles governing excessive force claims and qualified immunity before turning to the parties’ specific arguments and the analysis thereof.
1. Principles of § 1983 Excessive Force Claims and Qualified Immunity
a. § 1983
A cause of action may be brought under 42 U.S.C. § 1983 against “[e]very person who, under color of statute, ordinance, regulation, custom or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” To survive summary judgment, a plaintiff claiming a violation of § 1983 must produce evidence that the defendant “caused or participated in [the] constitutional deprivation.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir.2011). A plaintiff may not rely on the doctrine of respondeat superior, but must instead allege personal involvement in the wrongdoing; “[t]here must be a causal connection or affirmative link between the action complained about and the official sued.” Arnett v. Webster, 658 F.3d 742, 759 (7th Cir.2011).
b. Excessive Force
A claim that an officer used excessive force in seizing an individual is “analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); accord Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014). “[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citations and internal quotation marks omitted); accord Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 724 (7th Cir.2013). Factors relevant to the inquiry include “ ‘[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.’ ” Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir.2009) (alterations in original) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865); accord Phillips v. Community Ins. Corp., 678 F.3d 513, 519 (7th Cir.2012). “The dispositive question is whether, in light of the facts and circumstances that confronted the officer (and not 20/20 hindsight), the officer behaved in an objectively reasonable manner.” Padula v. Leimbach, 656 F.3d 595, 602 (7th Cir.2011) (citation and internal quotation marks omitted); accord Plumhoff, 134 S.Ct. at 2020-21, 2014 WL 2178335, at *7. This requires “a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Phillips, 678 F.3d at 519 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865) (internal quotation marks omitted).
An officer’s use of force is “judg[ed] from the totality of the circumstances at the time of the [seizure].” Fitz gerald, v. Santoro, 707 F.3d 725, 733 (7th Cir.2013) (alterations in original) (citation and internal quotation marks omitted). In analyzing whether an officer’s force was reasonable under the circumstances, the Court must “remain cognizant of ‘the fact that police officers- are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.’” Abbott, 705 F.3d at 724 (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). The Court must therefore give “considerable leeway to law enforcement officers’ assessments about the appropriate use of force in dangerous situations.” Baird, 576 F.3d at 342. “ ‘[W]hen material facts (or enough of them to justify the conduct objectively) are undisputed, then there would be nothing for a jury to do except second-guess the officers,’” therefore, “[i]n this situation ... the reasonableness of the force used is a legal question.” Cyrus v. Town Mukwonago, 624 F.3d 856, 862 (7th Cir.2010) (quoting Bell v. Irwin, 321 F.3d 637, 640 (7th Cir.2003)).
“Plaintiffs need not show physical injury in order to sustain an excessive force claim,” as “an arrest can be effectuated by the slightest application of physical force, or by some other show of authority.” Baird, 576 F.3d at 344 (citing California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). “The issue is simply whether, once it is clear ... that a seizure has occurred, that seizure meets Fourth Amendment standards.” Id.
c. Qualified Immunity
“[Qualified immunity is immunity from suit rather than a mere defense to liability.” Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984, 988 (7th Cir.2012) (emphasis in original) (citation and quotation marks omitted). It gives “government officials ‘the benefit of legal doubts.’” Rooni v. Biser, 742 F.3d 737, 743 (7th Cir.2014) (quoting Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir.1991)); see Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir.2013) (“Qualified immunity protects public servants from liability for reasonable mistakes made while performing their public duties.’-’). In the excessive-force context, qualified immunity, “in effect, affords enhanced deference to officers’ on-scene judgments about the level of necessary force.” Abbott, 705 F.3d at 725. “Once the defense of qualified immunity is raised, ‘it becomes the plaintiffs burden to defeat it.’ ” Estate of Escobedo v. Martin, 702 F.3d 388, 404 (7th Cir.2012) (quoting Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir.2008)).
“To determine whether a defendant is entitled to qualified immunity, courts must address two issues: (1) whether the defendant violated the plaintiffs constitutional rights and (2) whether the right at issue was clearly established at the time of the violation.” Rooni, 742 F.3d at 742 (citation omitted). “In other words, the plaintiff must show not only that her constitutional rights were violated, but that any reasonable official under the circumstances would have realized that her rights were being violated.” Easterling v. Pollard, 528 Fed.Appx. 653, 656-57 (7th Cir.2013). The Court may decide these factors in either order. See Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir.2012).
“To be clearly established at the time of the challenged conduct, the right’s contours must be ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right,’ and ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ” Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir.2013) (quoting Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir.2012)). The plaintiff can carry his burden to identify the clearly established right “either by identifying a ‘closely analogous case that established a right to be free from the type of force the police officers used on him’ or by showing ‘that the force was so plainly excessive that, as an objective matter, the police officers would have been on notice that they were violating the Fourth Amendment.’ ” Findlay, 722 F.3d at 899 (quoting Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir.2008)); accord Abbott, 705 F.3d at 723-24. That being said, “a case directly on point is not required for a right to be clearly established and ‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’ ” Abbott, 705 F.3d at 731 (quoting Phillips, 678 F.3d at 528). In identifying the clearly established right, the plaintiff must do so “in a particularized sense, rather than in an abstract or general sense.” Id. The Supreme Court has “repeatedly told courts ... not to define the clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff, 134 S.Ct. at 2023 (citations and quotation marks omitted).
2. Plaintiffs’ Excessive Force Claims
Plaintiffs’ theory of liability for excessive force focuses first on the Responding Officers’ alleged failures to follow established law enforcement protocols for dealing with suicidal individuals and their alleged failure to make an adequate plan for handling Mr. Williams’ situation (ie., Plaintiffs’ “deficient plan theory”). [See Filing No. 100, at ECF p. 41-46.] According to Plaintiffs, the Responding Officers’ pre-seizure conduct is not only relevant in assessing the reasonableness of the Responding Officers’ subsequent uses of force, but also was itself unreasonable. [See Filing No. 100, at ECF p. 41-46.] Plaintiffs additionally focus on the three instances when they contend that Mr. Williams was seized and thus the Responding Officers’ use of force must be considered: “(1) when the police opened the door to the bathroom with weapons trained on him; (2) when [Officer] Chadd and [Officer] Hallam tased him; and (3) when [Officers] Hallam, Lab-hart, and Thomas used deadly force.” [Filing No. 100, at ECF p. 36.]
In evaluating the constitutionality of this conduct, the Court must “carve up the incident into segments and judge each on its own terms to see if the offieer[s] w[ere] reasonable at each stage.” Deering v. Reich, 183 F.3d 645, 652 (7th Cir.1999) (citation and quotation marks omitted). Therefore, the Court must determine first whether “a seizure occurred,” and if it did, whether “that seizure meets Fourth Amendment standards,” Baird, 576 F.3d at 344, and whether the seizure violates clearly established law, Miller, 698 F.3d at 962. The Court turns first to the relevance of the Responding Officers’ pre-sei-zure conduct and whether such conduct can violate Mr. Williams’ Fourth Amendment rights, before addressing each alleged seizure in turn.
a. Pre-seizure conduct: Plaintiffs’ deficient plan theory.
The parties vigorously dispute whether and to what degree the Responding Officers’ pre-seizure conduct is relevant. Generally stated, Plaintiffs’ theory of liability is that the Responding Officers’ pre-sei-zure conduct and overall plan to deal with the situation was unreasonable, and thus they are liable for the foreseeable consequences of that deficient plan. [See Filing No. 100, at ECF p. 40 (citing Deering, 183 F.3d at 652; Estate of Starks v. Enyart, 5 F.3d 230, 233-34 (7th Cir.1993)).] This theory of liability is relevant in assessing both, factors of the qualified immunity inquiry: “(1) whether the defendant violated the plaintiff’s constitutional rights and (2) whether the right at issue was clearly established at the time of the violation.” Roon, 742 F.3d at 742 (citation omitted). The Court addresses each factor in turn,
i. Evidence of the Responding Officers’ alleged deficient plan, while perhaps relevant, cannot itself constitute a Fourth Amendment violation.
Plaintiffs rely solely on the reports of their two law-enforcement experts, Dr. Ginger and Mr. Clouse, to argue that the Responding Officers “violated almost every principle for dealing with suicidal or emotionally disturbed persons.” [Filing No. 100, at ECF p. 40.] For example, Plaintiffs’ experts state that the Responding Officers should have made “contact with the subject, being clear about their status and purpose” and “[i]dentif[ied] the ‘real problem.’ ” [Filing No. 100, at ECF p. 42 (citing Filing No. 101-5, at ECF p. 11).] Instead of following these protocols, say Plaintiffs, the Responding Officers “deceived [Mr.] Williams, then surprised him by opening the door with weapons drawn and attacked him. [They] had no reason to use force when they did, and they made no reasonable effort to end the encounter peacefully. [Mr.] Williams’[ ] response, and the tragedy that followed, was foreseeable.” [Filing No. 100, at ECF p. 40.]
Defendants contend that the Responding Officers’ pre-seizure conduct is irrelevant to the Fourth Amendment inquiry. [Filing No. 76, at ECF p. 19.] Indeed, Defendants point to several Seventh Circuit cases supporting their position and attempt to distinguish the two cases on which Plaintiffs rely. [See Filing No. 115, at ECF p. 8-10; Filing No. 116, at ECF p. 14-15.]
The Seventh Circuit addressed the relevance of pre-seizure conduct in Carter v. Buscher, where it held that the Fourth Amendment does not “prohibit[] [law enforcement from] creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect.” 973 F.2d 1328, 1332 (7th Cir.1992). This is so, the Seventh Circuit reasoned, because “[t]he Fourth Amendment prohibits unreasonable seizures not unreasonable, unjustified or outrageous conduct in general. Therefore, pre-seizure conduct is not subject to Fourth Amendment scrutiny.” Id. (emphasis in original). Accordingly, the Seventh Circuit characterized the analysis that must be undertaken' in an excessive force case quite simply: “identify! ] the seizure,” and “[t]hen ... proceed[ ] to examine ... whether the force used to effect that seizure was reasonable in the totality of the circumstances, not whether it was reasonable for the police to create the circumstances.” Id. The Seventh Circuit continued, “Even if the defendants concocted a dubious scheme to bring about [the plaintiffs seizure], it is the [seizure] itself and not the scheme that must be scrutinized for reasonableness under the Fourth Amendment.” Id. at 1333; see also Tom v. Voida, 963 F.2d 952, 956 (7th Cir.1992) (“Even if [the officer’s] various decisions to question and follow-[the plaintiff] were unjustified, they did not constitute a ‘seizure’ and, as a result, are not subject to any Fourth Amendment scrutiny.”); cf. Jenkins v. City of Lawrence, 2011 WL 2670830, *6 (S.D.Ind.2011) (“While argument may exist that [the officer’s] action[s] were not prudent, nor the best course of action or even necessary, these are not the proper considerations [in assessing whether qualified immunity applies to his use of force].”).
Despite this seemingly clear authority, Plaintiffs argue that the Seventh Circuit “long ago rejected” Defendants’ arguments that pre-Seizure conduct is irrelevant in Deering and Starks. [Filing No. 100, at ECF p. 40-41.] A careful reading of Seventh Circuit’s analysis in each of these cases demonstrates why Plaintiffs’ position is off the mark.
Deering was an excessive force case involving a post-trial challenge to the evidence the district court admitted regarding conduct that occurred before the seizure. See 183 F.3d at 647. Relying on Carter, the defendant officer argued that law enforcement’s decision to serve a warrant “in the middle of the night on an elderly man living alone in a rural farmhouse” was irrelevant pre-seizure conduct. Id. at 650. The Seventh Circuit’s sole treatment of this argument was as follows: “Reading Carter in the context of other cases, however, we think the most that can be said, for purposes of our case, is that Carter reinforces the concept ... that the deputies did not need to consider all feasible alternatives in serving the warrant on [the plaintiff]. But that is not the same as saying that any specific alternative is per se reasonable.” Id. The Court then went on to hold that the pre-seizure conduct was relevant, but only to the extent that it evidenced “what [the officer] knew at the time,” as the officer’s knowledge at the time he used the force in question was of course “relevant to the evaluation of the reasonableness of his conduct.” Id. at 652. But this was only to say that the “totality of the circumstances” that must be considered “cannot be limited to the precise moment when [the officer] discharged his weapon,” as actions prior to the application of force reflect his knowledge the moment he decided to use the force, and that therefore such evidence is relevant and admissible. Id. at 649; see id. at 653 (holding that the jury instruction stating that “the reasons for issuing the warrant for [the plaintiffs] arrest are irrelevant” was given in error because “[t]he reasons for issuing the warrant are part of the facts and circumstances known to [the officer]”). This clarification of what information can be considered as part of the totality of the circumstances certainly is not a rejection of Carter, and, as explained further below, is not even truly in tension with Carter’s core holding. Indeed, Deering merely explains that Carter’s seemingly categorical statement — that “pre-seizure conduct is not subject to Fourth Amendment scrutiny,” 973 F.2d at 1332 — remains true, but that evidence of pre-sei-zure conduct can still be relevant to the extent it reveals the officers’ knowledge at the time they decide to use force.
Starks too does not signify a rejection of Carter. In Starks, three police officers located a reportedly stolen cab in a parking lot, and they exited their vehicles to approach the man inside the cab. See 5 F.3d at 232. Instead of complying with the officers’ request to exit the vehicle, the man slowly reversed the cab into one of the officers’ vehicles and then drove forward a short distance, but his escape was blocked by a utility pole. See id. The driver reversed again so as. to maneuver into a clear escape route, placed the car in drive, and floored the accelerator. See id. After the driver began moving forward “at a high rate of speed,” one of the officers “moved out from behind the utility pole, jumping to a position in front of the moving cab. All three officers fired their weapons[,] [and the plaintiff] died as a result of his gunshot wounds.” Id. The Seventh Circuit affirmed the denial of the officers’ motion for summary judgment on the issue of qualified immunity for their use of deadly force. See id. at 233-34.
The Seventh Circuit first highlighted the fact that the driver’s “attempt to maneuver the cab was not so reckless that, apart from [the officer’s] appearance at the front of the cab, police officers could reasonably fear for their safety or the safety of the community,” precluding the officers from considering the driver “a fleeing felon against whom deadly force could legitimately be used.” Id. at 233. Given this, the court could not conclude that summary judgment on the issue of qualified immunity was appropriate:
The key dispute for the factfinder will be whether [the officer] stepped in front of [the driver’s] rapidly moving cab, leaving [the driver] no time to brake. If he did, then [the officer] would have unreasonably created the encounter that ostensibly permitted the use of deadly force to protect hi m, because the decedent would have been unable to react in order to avoid presenting a deadly threat to [the officer]. On the other hand, if [the officer] was in the path of the car before the car started forward or if the factfinder concludes that [the driver] could have braked but chose not to, then the three [officers] reasonably responded to [the driver’s] acceleration toward [the officer]. [The driver] would have threatened the life of a police officer, and reasonable officers could believe that the use of deadly force was appropriate.
Like Deering, Starks does not explicitly or implicitly reject Carter, as Plaintiffs contend. The Seventh Circuit in Starks found an issue of fact and deemed the officer’s pre-seizure conduct relevant only to the extent that the officer’s unilateral pre-seizure conduct made it impossible for the driver to avoid “presenting a deadly threat” to the officer, which in turn justified the officer’s use of deadly force. Id.; see id. (“[If the driver had] no time to brake ... then .[the] [o]fficer ... would have unreasonably created the encounter that ostensibly permitted the use of deadly force to protect him, because the decedent would have been unable to react in order to avoid presenting a deadly threat to [the officer], ”) (emphasis added).
It is true, as Plaintiffs contend, that in balancing the nature of the intrusion against the countervailing government interest at stake, the Seventh Circuit in Starks held that there is “no countervailing governmental interest in unreasonable police conduct that would justify a greater intrusion on the individual’s rights.” Id. Plaintiffs read this quote in isolation, as if in order to show a Fourth Amendment violation they only need to point to any law enforcement conduct that could be deemed “unreasonable” and that increases the justification for using a higher level of force— such as not following established police protocols or following a deficient plan. But Plaintiffs quote this sentence without context. The sentence in Starks preceding the quote makes clear that “unreasonable police conduct” is only conduct that inr creases the justification for the use of force “solely based on the actions of a police officer.” Id. (emphasis in original); see id. (“The alleged unreasonableness of [the officer’s] action, according to the plaintiffs, comes from moving out from behind the pole without leaving [the driver] time to stop the car. For the limited purpose of this appeal, we agree with this assessment.”) (emphasis added); see also Estate of Brown v. Thomas, 7 F.Supp.3d 906, 914, 2014 WL 1053320, *7 (E.D.Wis. 2014) (“Starks does not say that officers who use aggressive police tactics cannot use deadly force if it becomes necessary. It merely says that police cannot escape liability if their actions turn a nonviolent fleeing suspect into a violent threat to life and limb. That is not what happened here.” (emphasis added)). A factual dispute was found on this issue in Starks because, according to the plaintiffs version of the facts, it was literally impossible for the plaintiff, given the officer’s actions, to avoid placing the officer in imminent risk of serious bodily injury or death. See 5 F.3d at 234.
None of the Responding Officers’ conduct in this case was “unreasonable” like the officer’s conduct in Starks. Specifically, the Responding Officers’ conduct was not the “sole[]” cause of the increased justification for the use of force; Mr. Williams’ responses to the Responding Officers’ conduct, at the very least, precipitated the increased justification. In other words, none of the Responding Officers’ alleged pre-seizure errors unilaterally justified a greater use of force. Plaintiffs implicitly acknowledge this by arguing that “[Mr.] Williams’[] response” to the Responding Officers’ allegedly deficient plan “was foreseeable.” [Filing No. 100, at EOF p. 40 (emphasis added).] And they must, as it is undisputed that after the Responding Officers attempted to use nonlethal force to subdue Mr. Williams, he engaged in the threatening conduct of advancing on Officer Hallam with at least one twelve-inch knife raised in the air. [See, e.g., Filing No. 77-1, at EOF p. 8; Filing No. 101-17, at EOF p. 18.] It was this act by Mr. Williams, not “solely ... the actions of a police officer,” Starks, 5 F.3d at 234 (emphasis in original), that justified a greater use of force against Mr. Williams.
In sum, although Deering and Starks clarify that pre-seizure events are not literally irrelevant to the Fourth Amendment inquiry, they do not undermine the core holdings of Carter that are relevant here— namely, that (1) the Fourth Amendment does not “prohibit[ ] creating unreasonably dangerous circumstances in which to effect a legal [seizure] of a suspect,” 973 F.2d at 1332; and (2) “it is the [seizure] itself and not the scheme [to complete the seizure] that must be scrutinized for reasonableness under the Fourth Amendment,” Id. at 1333. Notably, the Seventh Circuit has reiterated these core .holdings of Carter after both Deering and Starks were decided. See, e.g., Marion v. City of Corydon, Ind., 559 F.3d 700, 705 (7th Cir.2009) (“Pre-seizure police conduct cannot serve as a basis for liability under the Fourth Amendment; we limit our analysis to force used when a seizure occurs.”); McCoy v. Harrison, 341 F.3d 600, 605 (7th Cir.2003) (“Even unreasonable, unjustified, or outrageous conduct by an officer is not prohibited by the Fourth Amendment if it does not involve a seizure.”) (alteration and citation omitted); see also Price v. Marion Cnty. Sheriff’s Dep’t, 2013 WL 5321260, *6 (S.D.Ind.2013) (“Because ‘pre-seizure conduct is not subject to Fourth Amendment scrutiny,’ the court must first determine whether Defendants’ conduct constituted a seizure of [the plaintiff].”) (quoting Carter, 973 F.2d at 1332); Hayes v. City of Indianapolis, 2009 WL 700232, *3 (S.D.Ind.2009) (“ ‘[P]re-seizure conduct is not subject to Fourth Amendment scrutiny.’ ”) (quoting Carter, 973 F.2d at 1332); Escobedo v. City of Fori Wayne, 2008 WL 1971405, *18 (N.D.Ind.2008) (“Before undertaking any analysis of the reasonableness of the Defendants’ actions, the Court must determine whether, and when, a seizure occurred. This is important because ‘pre-seizure conduct is not subject to Fourth Amendment scrutiny.’”) (quoting Carter, 973 F.2d at 1332).
Simply put, Plaintiffs’ theory is directly analogous to the one advanced and rejected in Carter, where the theory of liability was that law enforcement’s “plan for [the plaintiffs] arrest provoked a situation whereby unreasonable deadly force was used in the attempt to seize his person,” yet the plaintiff reacted to the allegedly deficient plan in a way that justified deadly force. 973 F.2d at 1329-30. And it is distinguishable from Starks where an issue existed as to whether the unilateral action of the officer justified the use of deadly force. 5 F.3d at 233-34. This distinction is critical and is what forecloses Plaintiffs’ deficient plan theory in this case.
Accordingly, the Court rejects Plaintiffs’ deficient plan theory of liability as the basis of an excessive force claim. The Responding Officers’ pre-seizure conduct cannot itself violate Mr. Williams’ Fourth Amendment rights,