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ATTORNEYS FOR APPELLANT George A. Leininger Gary K. Kemper Madison, Indiana

ATTORNEY FOR APPELLEES HERBERT S. HOUSEWORTH, WILLIAM H. DRAMANN RIPLEY COUNTY, INDIANA, AND BOARD OF COMMISSIONERS OF RIPLEY COUNTY, INDIANA Donald B. Kite, Sr. Carmel, Indiana ATTORNEY FOR APPELLEES HOLLY HOLT AND THE TOWN OF OSGOOD Kirk A. Horn Carmel, Indiana ATTORNEY FOR AMICUS INDIANA SHERIFF'S ASSOCIATION A. Howard Williams South Bend, Indiana ATTORNEYS FOR AMICI INDIANA ASSOCIATION OF CITIES AND TOWNS AND INDIANA MUNICIPAL LAWYERS ASSOCIATION Jon Laramore A. Scott Chinn Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 15S01-0606-CV-239 GEORGE ROW, Appellant (Plaintiff below), v. HOLLY HOLT, HERBERT HOUSEWORTH, TOWN OF OSGOOD, INDIANA, WILLIAM DRAMANN, SHERIFF OF RIPLEY COUNTY, INDIANA, RIPLEY COUNTY, INDIANA, BOARD OF COMMISSIONERS OF RIPLEY COUNTY, INDIANA, Appellees (Defendants below). _________________________________

Appeal from the Dearborn Circuit Court, No. 15C01-0302-CT-014 The Honorable James D. Humphrey, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 15A01-0409-CV-405 _________________________________ April 24, 2007 Boehm, J. We hold that: 1) An arrest by a law enforcement officer without probable cause can give rise to civil liability for false arrest under Indiana common law. 2) Probable cause for purposes of civil liability for an arrest by a law enforcement officer is governed by the same standard imposed by the Fourth Amendment with respect to unlawful seizures and is evaluated in light of the information and circumstances available to the arresting officer at the time of the arrest. 3) An officer reasonably relying on information furnished by other officers is not civilly liable for false arrest even if the officer furnishing the information was not justified in considering it reliable. Factual and Procedural Background This is an appeal from a ruling on summary judgment. The standard of review of a summary judgment ruling is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind. 2005). All inferences are to be drawn in favor of the non-moving party. Id. Except where noted, the following facts are undisputed according to the evidence designated pursuant to Trial Rule 56(C). For some time before the events giving rise to this case, George S. Row, known as "Sam," had been feuding with a family consisting of Kenneth Bowling Sr.; his children, Kenneth Bowling Jr., Keith Bowling, and Krystall Bowling Simon; and Krystall's husband, Vince Simon. Both Row and the Bowling/Simon family lived in the small town of Osgood, and the animosity

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between them was common knowledge among the residents of the town, including Officer Holly Holt of the Osgood Police Department and her supervisor, the town marshal. On September 4, 2001, the Ripley Superior Court granted simultaneous protective orders to Krystall Simon against Row and to Row against the Bowlings and the Simons. Shortly after noon on September 17, 2001, Row was lunching in a local restaurant when Kenneth Bowling Sr., who was "upset because he had been served with a protective order that morning," approached Row, shoved him in the shoulder, and screamed at him until a waitress asked Bowling to leave. Shortly after Bowling left the restaurant, Row left without finishing his lunch and was again confronted by Bowling in the parking lot where Bowling "made more profane statements." Row got in his car and drove away with Bowling following. As Row drove through town, he telephoned for help first from the town marshal and then from the Ripley County Sheriff's Department. Bowling ultimately stopped following Row, and Row returned to his farm. That evening, Row dined at the same restaurant and, according to Row, drank two beers with dinner. Row then visited Frank Cox to discuss some construction work Row was planning. Cox's home was directly across the alley from the Simons' home. When Row left Cox's home he was approached by Vince Simon who demanded that Row talk to him. Row first stopped at his car and retrieved a tape recorder, which he placed in his shirt pocket. Krystall Simon then joined her husband in confronting Row. A verbal and physical confrontation between the Simons and Row ensued. The

testimony conflicts as to whether Row pushed Krystall first or whether she attempted to remove the tape recorder from his pocket and he pushed her arm away. 1 Both Row and the Simons said

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According to Row, as he was leaving Cox's house, Vince and Krystall Simon verbally attacked him, apparently angered by the receipt of the protective orders. Row said that Krystall asked him if he had a tape recorder and when Row responded he did, Krystall attempted to remove the recorder from his pocket and ripped the corner of his pocket in the process. Row said he "shoved her hand away and Vince, at this point, hit [Row] on the shoulder and told [Row] never to touch his wife." Cox, who had emerged from his house when he heard shouting outside, testified that throughout the incident Row "was trying to remain calm and simply get out of a situation that appeared to be getting worse." Cox also observed that Krystall Simon pushed Row, causing him to "fly backwards" and that at no time did Row "strike either Vince Simon or Krystall Simon." Cox testified, "the entire incident was instigated by Vince Simon and Krystall Simon." Krystall Simon gave the following account of the incident: I put my arm up to tell Vince to come on and forget it then [Row] struck me on my right shoulder. Then Vince grabbed [Row's] arm and said don't be hitting my wife. [Row]

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they were calling the police. Row returned to his vehicle and drove home. The Simons, however, carried through on their promise and called the police, claiming a battery and also that Row was operating a vehicle under the influence of alcohol. As a result, Officer Holt received a dispatch that a battery had occurred at the Simon residence, and Ripley County deputy sheriff Herbert Houseworth was alerted to a possible drunk driver. Houseworth contacted Holt by radio, and Holt "described the domestic incident" and identified Row and the "general direction" he might be heading to his home. Holt arrived at the Simons' home where Vince and Krystall Simon told her that they and Row had gotten into an argument "about some papers that were served" on the Simons. The Simons reported that Row "was drinking, you could smell the alcohol on him," and that the encounter had been recorded on tape. The Simons also told Holt that Row "shoved Krystall back" and that Vince had grabbed Row's hand and said not to touch his wife. Holt saw no evidence of physical injury but asked Krystall if she wanted to fill out a battery affidavit. Krystall filled in the blanks of the form Holt supplied, reading as follows, with the underlined portions filled in by Krystall: On or about the 17th day of September, 2001, in [name of county not visible on affidavit] County, State of Indiana, Sam Row did knowingly touch Krystall R. Simon in rude, insolent and angry manner, to-wit: Sam shoved Krystall in the right shoulder with his hand which touching resulting in bodily injury to shoulder. I understand that the investigating officer is relying upon my allegations set forth in this Affidavit as establishing Probable Cause for the arrest of the Defendant on the charge of Battery under I.C. 35-42-2-1. Holt then asked Vince and Krystall Simon to write narrative statements and left statement forms for them to complete while Holt went to meet Houseworth at Row's house. Holt said she was at the Simon residence "[n]ot very long. Long enough to hear their side of the story, get the battery affidavit signed and go down the road." Holt did not speak to Cox or conduct any further investigation before going to Row's house. When Row returned to his house, he had "two or three drinks" of whiskey before Holt and Houseworth arrived. Row "opened the door and invited them into [his] home." At that

replied that Vince was going to jail for battery and started yelling for Frank Cox to come out here to see if he seen Vince batter him. Frank never said a word.

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point, Holt informed Row that they were there to arrest him for "assault" of Krystall Simon. Row testified: "I asked Dep. Holt what she was talking about and she informed me that Vince Simon and Krystall Simon Bowling [sic] had filed a complaint accusing me of assault." The deposition testimony conflicts as to the events after the arresting officers entered Row's house. Holt agreed that Row "said he had a recording of what was going on. He said it was in the kitchen I believe." All agree that Row went to the kitchen to retrieve the tape. According to Holt, Row was "ranting and raving and cussing and whatnot," and as Holt reached back to retrieve the tape recorder from Row, "[Row] shoved [Holt] into the doorway yelling that we're not getting that, it's his evidence and [Row's] tired of everything being lost in Ripley County systems." Row denied pushing Holt. According to Row, he offered to play the

recording of his argument with the Simons, but Holt rejected the offer and said they would take the tape as evidence. Row claimed that he asked the officers if they had spoken to Cox, who witnessed the incident, and they said they had not. While Row was retrieving his recorder, Houseworth had left the house to improve his radio reception for a check of Row's identification. When he returned, "there was some more agitation in the air. [Holt and Row] were essentially arguing." Houseworth testified "Officer Holt advised me that she had been pushed, which I didn't witness, but with that taken into consideration and the signed battery affidavits I believe she was attempting to handcuff Mr. Row." Houseworth said he then handcuffed Row over Row's resistance. Holt also testified that Row resisted arrest. 2 Row denied resisting being handcuffed but remembered complaining that the handcuffs were too tight. In sum, there is conflicting evidence as to whether Row pushed Holt and whether Row resisted arrest after Holt and Houseworth attempted to cuff him. After his arrest Row was held in jail for six and one-half hours. The Ripley County prosecutor did not charge Row. A special prosecutor was appointed, and a grand jury returned no indictments. On September 13, 2002, Row filed a complaint for false arrest and false imprisonment against Holt and Houseworth, individually and in their capacities as law enforcement officers.
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Holt stated, "I got a cuff on him. He was resisting and wouldn't let me cuff him. I went to take him out and he wasn't moving. I couldn't move him. He had his feet planted, so Houseworth took him out." According to Holt, Houseworth had to finish cuffing Row because she "couldn't get it on him. He wouldn't hold his hand back there."

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Row also named the Town of Osgood, the Ripley County Sheriff, and Ripley County and its Board of Commissioners as defendants. All defendants moved for summary judgment, asserting probable cause for Row's arrest and qualified immunity. Houseworth, the Sheriff, the county, and the Board of Commissioners (collectively "the county defendants") also argued that the facts established no viable claim against Deputy Sheriff Houseworth. The trial court granted summary judgment in favor of all defendants. 3 The Court of Appeals reversed, holding that there was no probable cause for Row's arrest and finding genuine issues of material fact precluding summary judgment. Row v. Holt, 834 N.E.2d 1074, 1089 (Ind. Ct. App. 2005). We granted transfer. Row v. Holt, 2006 Ind. LEXIS 565 (Ind. June 28, 2006). I. The Standard for Probable Cause Row's complaints are based on common law causes of action for false arrest and false imprisonment. 4 He correctly observes that the governmental immunity for "enforcement of

law" under the Tort Claims Act, Indiana Code section 34-13-3-3(8), does not extend to these torts. A false arrest requires absence of probable cause. Earles v. Perkins, 788 N.E.2d 1260, 1265 (Ind. Ct. App. 2003). Indiana Code section 35-33-1-1 provides: (a) A law enforcement officer may arrest a person when the officer has: (1) a warrant commanding that the person be arrested; . . . (4) probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer's presence; (5) probable cause to believe the person has committed a: (A) battery resulting in bodily injury under IC 35-42-2-1; or (B) domestic battery under IC 35-42-2-1.3. The officer may use an affidavit executed by an individual alleged to have direct knowledge of the incident alleging the elements of the offense of battery to establish probable cause. 5
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The trial court dismissed the Board of Commissioners pursuant to a joint motion filed by all parties, but the Board remained in the caption and was granted summary judgment along with the other county defendants. 4 There is no claim asserted under 42 U.S.C.

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