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Shannon Mccomas v. Edward Brickley

March 13, 2012

SHANNON MCCOMAS, PLAINTIFF-APPELLEE,
v.
EDWARD BRICKLEY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:09-cv-01540-SEB-MJD-Sarah Evans Barker, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED OCTOBER 17, 2011

Before BAUER, POSNER and WOOD, Circuit Judges.

The plaintiff-appellee, Shannon McComas, was arrested by the defendant-appellant, Edward Brickley, for murder and for assisting a criminal in the state of Indiana. State prosecutors formally charged McComas only with assisting a criminal and false informing. These charges were later dropped. McComas then brought suit in federal court against Brickley for false arrest under 42 U.S.C. § 1983. Brickley moved for summary judgment in the district court, arguing that he had probable cause for the arrest and that he is protected by qualified immunity. The court denied his motion. Finding error in the court's qualified immunity determination, we reverse.

I. BACKGROUND

The events underlying this § 1983 suit for false arrest took place during a 2007 New Year's Eve celebration at Durty Nelly's Pub & Eatery, an Indianapolis bar. McComas was, at the time, an Indianapolis police officer, and his wife was the manager of the bar. McComas was off-duty on New Year's Eve and attended the party at Durty Nelly's. The night progressed without major incident until, at around 3:00 a.m. on New Year's Day, a fight broke out. Surveillance cameras located throughout the bar captured a chaotic series of events that culminated in a shooting just outside of Durty Nelly's front entrance. Several patrons were wounded and a security guard, Ronnie Croom, was killed.

The defendant-appellant, Detective Edward Brickley of the Indianapolis police force, responded to a call for help. He investigated the scene of the shooting and questioned several witnesses, although he did not interview McComas at that time. In the days that followed, Brickley discovered a handgun stashed in a pillowcase on Durty Nelly's premises, and he gained full access to the bar's surveillance videos.

Interviews with various witnesses pointed to Sununguro Runsununkuko (nicknamed "Go-Go") as the primary culprit in Croom's murder. Go-Go was a member of the*fn1 security team hired by the bar for the party that night. Brickley examined the surveillance videos, which showed Go-Go using a taser on patrons during the initial outbreak of the fight. Minutes later, McComas is captured on the cameras walking alone to the back of the bar, through the kitchen and toward the bar's office. When he reappears, he is carrying an object in his hand. Moments later, near the bar's front entrance, Go-Go can be seen tasing another group of people. Go-Go eventually walks outside, where he remains during the period of time that the shots were fired. When Go-Go returns to the bar, he hands off an object to another person, Ramirez Hayes, who also worked security that night. Minutes later, Hayes makes his way through the kitchen and to the office in the back of the bar. When interviewed by Brickley, Ramirez stated that the object he received from Go-Go was a .40 caliber Smith & Wesson, the same type of gun Brickley recovered from the scene. After the shots were fired outside and during the ensuing chaos, McComas was stationed near the front door, discharging a taser on at least two occasions in an apparent attempt at crowd control.

In the course of his investigation, Brickley spoke twice to Norman Broaden, the promoter of Durty Nelly's New Year's Eve party. Broaden claimed to have spoken with McComas after police arrived at the scene and intimated that McComas also spoke with Go-Go at

some point after the shooting. It was only after interviewing several witnesses (including Hayes and Broaden), recovering the gun, and studying the surveil-lance footage that Brickley met with McComas to take his statement. This statement proved critical to McComas's subsequent arrest. McComas initially made several denials. First, he denied being aware of any altercation in the bar that night until he noticed an injured man lying on the floor near the bar's front door. He also claimed that at approximately 3:00 or 3:15 a.m., he accompanied a patron to the back of the bar to retrieve her coat from the bar's office. Next, he explicitly denied speaking to anyone directly about the incident during the aftermath, including Go-Go. He admitted to carrying a taser at times, but claimed that he did not use it that night and reiterated that he "was in the back" and so did not see any fighting. Finally, he denied having any access to a gun that night.

Brickley had gathered enough information to have formed a relatively well-developed theory of what happened that night, and felt that McComas's story did not add up. So he challenged McComas's version of events: "I want you to understand that I've seen the video, the entire video, the whole evening. . . . You're pretty easy to pick out of that thing . . . what you have on is very identifiable in that surveillance video." McComas changed his tack almost immediately. For the first time in the interview, he mentioned that he was drinking that night. He then claimed to have a fuzzy memory about whether he actually saw an altercation and whether he used a taser. Brickley insisted that footage on the surveillance video shortly after 3:00 a.m. shows McComas walking away from the bar's back office with a gun in his hand. McComas replied, "No, I am not carrying a handgun. I'm carrying my taser." When continually pressed by Brickley, he admitted that he might have used Go-Go's taser at some point in the night, although he continued to adamantly deny having access to a gun.

Shortly after the interview, McComas was arrested for murder and for assisting a criminal. Prosecutors pursued charges of assisting a criminal and false informing, but later dropped even those charges, and McComas filed an action for false arrest against Brickley under 42 U.S.C. § 1983.

II. DISCUSSION

The district court denied Brickley's motion for summary judgment, finding that a genuine factual dispute existed as to whether Brickley's actions were protected by the existence of probable cause. The district court denied a motion for qualified ...


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