SOW v. FORTVILLE POLICE DEPARTMENT (February 11, 2011)

Mouhamadou Sow, a Senegal native, traveled all over the United States selling African items at fairs and festivals. In November 2007, Sow tried to cash a $1000 money order at the Fortville, Indiana Post Office. He had purchased the money order at a United States Post Office in Columbus, Ohio. The postal clerk suspected that the money order was counterfeit and told Sow as much. After conferring with her supervisor, she told Sow that she did not have enough money to cash the money order and directed him to the nearby McCordsville Post Office. Once Sow left, a postal employee reported the suspected forgery incident to the Fortville police. The Fortville police notified the McCordsville police, who stopped Sow before he reached the post office. Fortville Officer Michael Fuller arrived at the scene. The police interrogated Sow for over an hour. Sow produced the money order but was unable to produce a receipt. He did produce other receipts and money orders. Both officers examined the money order and also believed that it was counterfeit. They called post office headquarters and a local postal inspector and described the money order and its serial numbers. Both postal employees told the officers that the money order was counterfeit. The officers did not call the Columbus Post Office where Sow told them he purchased the money order, even though they had its phone number. The police arrested Smith. The charges were ultimately dismissed. Smith brought suit under §§ 1983, 1985, and 1986 against the Fortville postal employees, the two police departments, and Officer Fuller. He alleged that he was unlawfully arrested, that he was physically mistreated, and that his handcuffs were too tight. Judge Young (S.D. Ind.) dismissed the postal employees and granted summary judgment to the police departments and Fuller. Sow appeals.

In their opinion, Circuit Judges Flaum and Evans and District Judge McCuskey affirmed. The Court first affirmed the dismissal of the two police departments. Section 1983 liability for local governments depends on state law. Indiana law does not allow municipal police departments to sue or be sued. Next, the Court rejected Sow's argument that the statements made to Fuller by the postal employees were inadmissible hearsay. Since the statements were offered not for their truth but because they constituted part of the facts and circumstances known to Fuller when he decided to arrest Sow, they were properly admitted. Third, the Court addressed Sow's unlawful arrest claim. That claim rests on the existence of probable cause. Here, although Fuller did not call the post office where Sow claimed to have purchased the money order, he received information from several third parties that supported the conclusion that the money order was a forgery. He had no reason to believe that the information he received was anything but truthful. Based on that information, the Court concluded that a reasonable person would believe that a crime had been committed -- probable cause therefore existed. Finally, the Court affirmed with respect to the racial profiling, excessive force, and conspiracy allegations.