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Excessive force claim to proceed against IMPD SWAT officer

July 11, 2018

A Fourth Amendment excessive force claim against an Indianapolis police officer will continue after a federal judge denied the officer’s motion for summary judgment on Tuesday.

Indianapolis Metropolitan Police Department SWAT Officer Kenneth Kunz moved for summary judgment after Indianapolis resident Marquis Lewins sued him and a fellow officer, Kent Meier, for using excessive force in the execution of a no-knock warrant in October 2014. IMPD had been investigating Lewins for suspicion of selling cocaine from a home on North King Avenue.

The accounts vary as to what happened when the SWAT team tried to serve the warrant on the home. When taking the facts in the light most favorable to Lewins, Indiana Southern District Judge Tanya Walton Pratt wrote Tuesday that one half of the SWAT team unsuccessfully tried to break down the barricaded front door, while the other half, led by Kunz, tried to enter the home through the back door.

While at the back entrance, Pratt said Kunz saw a heavy-set black male standing in the rear bedroom before heading into the bathroom. When the SWAT team finally gained access to the home, Kunz found Lewins in the bathroom, which Lewins claimed was unlocked, sitting on the toilet.

Kunz then allegedly knocked Lewins to the floor and kicked him repeatedly while another officer stomped on his head, face, mouth and jaw. Lewins suffered multiple lacerations and abrasions, and Meier took photos of his injuries. Cocaine, marijuana, cash and guns were found in the home, so Lewins was arrested on drug-related charges.

But according to the defendants’ version of events, the SWAT team was “immediately compromised” and individuals inside the home were seen peering out of windows as the team approached. When Kunz saw Lewins through the window, he said he identified himself as a police officer and ordered the man to put his hands up and lie on the ground. Lewins, however, stuffed a bag of cocaine into a heater register and put an item in the waistband of his jeans before retreating to the locked bathroom.

Once in the bathroom, the defendants said Kunz once again ordered Lewins to the ground, but the man resisted and instead leaned his hands behind the shower curtain. Believing that Lewins was hiding a weapon, Kuntz said he began kicking Lewins in the stomach, but struck his chin when the suspect lowered his head.

Given the discrepancy between those narratives, Pratt denied summary judgment to Kunz on Lewins’ Fourth Amendment claim, citing an issue of fact as to whether Kunz violated the plaintiff’s Fourth Amendment rights by using excessive force.

“Indeed, the reasonableness of the use of such force as Officer Kunz used will likely turn on which version of the facts the trier of fact accepts,” Pratt wrote in Marquis Lewins v. Kenneth Kunz and Kent Meier, 1:16-cv-02759. “A reasonable jury could conclude that Lewins was simply sitting on the toilet using the bathroom when Officer Kunz burst through the bathroom door and kicked him in the body, head, and mouth, knocking out several teeth in an attempt to arrest him. … However, a reasonable jury could resolve all factual disputes in favor of Officer Kunz, and conclude that such force was objectively reasonable.”

Pratt also denied Kunz’s qualified immunity argument, writing that “a reasonable jury could find that a reasonable officer would have known that the force used by Officer Kunz was excessive under the factual circumstances construed in Lewins’ favor and defeat the claim for qualified immunity.”

But Pratt did grant summary judgment to Meier on the excessive force claiming, noting Lewins alleged only that Meier took photos of his injuries after the alleged excessive force was used. She also granted summary judgment to both defendants, who were acting in the scope of their employment, on Lewins’ state law negligence claim, because the plaintiff failed to file a notice of a tort claim with IMPD or the City of Indianapolis.

Pratt did not enter partial judgment in her Tuesday order, but instead instructed Magistrate Judge Doris L. Pryor to schedule a settlement conference. The judge also ordered that Meier be terminated from the case docket.

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