Despite a typographical error that prompted northern Indiana law enforcement officers to arrest, and later release, a man who was mistakenly alleged to have violated a protective order, a district court judge has granted summary judgment to the officers on the man’s wrongful arrest claims, finding the officers had arguable probable cause to make the arrest.
The case of Clifford Clevenger v. City of North Webster Police Department, et al., 1:15-cv-337, began in November 2012, when a dissolution court issued a two-year protective order against Clifford Clevenger that prohibited him from coming to the school where his ex-wife, Heather DeSomer, worked. The couple’s young son also attended school in the building where DeSomer worked.
Then in August 2013, the dissolution court issued another order that stated the “provisional order” was terminated. The words “protective order” did not appear anywhere in the second order, and as provisional orders are commonplace in Indiana divorce cases, the use of the phrase “provisional order” likely would not have raised any red flags, Judge Philip P. Simon of the U.S. District Court for the Northern District of Indiana wrote in a Monday opinion.
In November 2013, Clevenger attempted to enter the school where his ex-wife worked and asked if he could have lunch with his son. Members of the office staff who were aware of the protective order called police, and North Webster police officer Church came to the scene.
While Church was en route, he was advised by central dispatch that there was an active protective order in place against Clevenger. Meanwhile, Christie Holst, the acting school principal, asked Clevenger to wait in a school office until the police arrived. Additionally, someone at the school spoke to DeSomer, who claimed the protective order was no longer in effect.
When Church arrived, Clevenger claimed the protective order had been vacated pursuant to the August 2013 order, but Church noted the order addressed only a “provisional order.” Clevenger repeated the same claims to Sgt. Knafel with the Kosciusko County Sheriff’s Department, so the officers contacted central dispatch a second time to confirm the order was still active.
Clevenger then began video recording his interactions with the officers on his phone and attempted to leave the school. Knafel, however, knocked the phone out of Clevenger’s hand, “cranked” his arm behind his back, then handcuffed Clevenger and removed him from the school. Clevenger was transported to the county jail, but was released a few hours later when the dissolution court issued a new order holding that the “protective order” was terminated.
After his release, Clevenger brought a series of federal wrongful arrest, false imprisonment and excessive force claims, as well as related state law claims, but Simon granted summary judgment to the defendants on the federal claims and dismissed the state law claims Monday. The judge also denied a series of motions to strike evidence, finding he could consider affidavits and exhibits “without the need to employ a motion to strike.”
With regard to Clevenger’s wrongful arrest claims, the district judge wrote the officers’ actions were covered under the doctrine of qualified immunity, as there was arguable probable cause to lead them to believe Clevenger was violating a protective order, even if that belief was mistaken. Further, Clevenger failed to allege that a North Webster Police Department policy had violated his constitutional rights, thus defeating his complaint against the department and Church in his official capacity, Simon held.
Clevenger’s excessive force claims against Knafel also failed, the judge said, because the use of force to slap the phone out of Clevenger’s hand and “crank” his arm backwards was minimal and necessary for effectuating the arrest. Similarly, a failure to intervene claim against Sgt. Shepherd, another sheriff’s department employee present at the scene, was defeated because Clevenger failed to prove Shepherd was in a position to intervene with Knafel’s conduct while handcuffing him.
Finally, Simon granted summary judgment to Holst and other school defendants on Clevenger’s false imprisonment claims, as there is no evidence he was held at the school against his will.