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Lake County sheriff granted summary judgment in deputy sexual assault case

June 7, 2017

A northern Indiana sheriff has been cleared of liability relating to an alleged sexual assault of a Lake County resident by a sheriff’s deputy after a magistrate judge concluded the alleged victim failed to present evidence that the sheriff had a duty to her.

The case of Rebecca Zander v. Samuel Orlich, Jr. and John Buncich, Sheriff of Lake County, 2:14-CV-400, in the U.S. District Court for the Northern District of Indiana, traces back to Sept. 19, 2013, when Lake County resident Rebecca Zander claims Lake County Sheriff’s Deputy Samuel Orlich sexually assaulted her in her home. Orlich came into contact with Zander after responding to a call about a domestic disturbance between her and her husband, then later transported Zander to her second home to allow for a “cool-down period.”

Zander testified that Orlich left her home and she went into the bathroom, but when she emerged he had returned and was standing in her bedroom with no clothes on. She testified he then pushed her onto the bed and forced her to perform sexual acts on him. Orlich, however, testified the encounter was consensual.

Zander brought claims against Orlich in his individual and official capacities. The court granted Orlich’s motion to dismiss the charges against him in his official capacity, but denied his motion for summary judgment last month. Additionally, Zander raised state tort law claims against Buncich, alleging he was vicariously liable for Orlich’s alleged actions under the theory of respondeat superior and that he had negligently hired, trained and retained the sheriff’s deputy.

Specifically, Zander alleged three claims of false imprisonment against Orlich. The first occurred before Orlich left her home, when he told her she could not return to her other house until later in the day. The other two instances occurred when Orlich re-entered Zander’s house without official authorization.

In a Tuesday opinion, Northern District Magistrate Judge Paul R. Cherry, who had authority to enter a final judgment in this case, wrote Zander’s claims against Buncich do not allege he should be held liable for the first instance of false imprisonment when Orlich told Zander she could not yet leave her home, the only instance in which he was authorized by Buncich to be in the home. Thus, because the other two instances occurred when Orlich returned without authorization and outside the scope of his employment, Buncich cannot be held liable under respondeat superior theory on the false imprisonment claims.

Similarly, Buncich testified Orlich was not authorized to have sexual relations with anyone while on duty, regardless of whether the relationship was consensual. Therefore, if Buncich did not authorize Orlich to engage in sexual contact with or otherwise touch Zander, he cannot be held liable on those claims, Cherry wrote.

Cherry reached a similar conclusion on Zander’s negligent hiring, training and retention claim, holding “Buncich had no duty to exercise reasonable care to control Orlich.”

Zander had argued that “because (sheriff’s deputies) have authority to detain criminal suspects and, in some circumstances, use deadly force … it is not surprising that occasionally deputies ‘misuse that authority by engaging in assaultive conduct,’” thus endowing sheriff and police departments with a duty to citizens related to employee assaults. Cherry, however, rejected that notion and further noted there was no evidence of previous misconduct on Orlich’s part.

“This Court rejects the idea that misconduct by a few bad actors should put all police departments and sheriff’s departments on notice that each and every one of their police officers and sheriff’s deputies may misconduct themselves; this cannot satisfy the requirement that the master know or should know cause to exercise control over the servant,” Cherry wrote.

Thus, magistrate judge granted summary judgment to the Lake County sheriff on each of Zander’s claims.
 

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