In Lewis v. City of Topeka,
02-2613-GTV, the plaintiffs claimed that the referenced
officers stopped them based on an unlawful "pretextual" reason
(appearing to engage in a drug deal at the old Fidel's, and then making
a lane change without giving an appropriate signal), and that the
officers used excessive force after two passengers in the car decided
to engage the police in a physical confrontation.
On February 18, 2004, the United
States District Court for the District of Kansas granted a motion for
summary judgment and held that plaintiff's alleged pretextual stop
claim
could not stand. The Court held there was reasonable suspicion of
an illegal lane change in violation of 8-1548(b), and the occupants of
the vehicle were not wearing their seat belts in violation of K.S.A.
8-2503(a), supporting the initial stop and detention.
On the excessive force claim, the court held the
City does not have a policy of illegally targeting vehicles, nor does
if have a policy or custom of using excessive force.
The bottom line? All claims were dismissed except
Wayne & Tyrone Lewis's claim that the arresting officers used
excessive force. That claim went to a jury trial in Kansas City,
and on July 9, 2004, the jury agreed with the defendants that the force
used was not excessive.
After back-up officers arrived, Officer Thompson requested Gonzales to come to his patrol car for an interview. Gonzales exited his vehicle, and Officer Thompson conducted a pat-down search which revealed a large bulge in plaintiff's pocket. Officer Thompson asked what it was, and Gonzales replied that it was cash that he and his son had "won" in a lawsuit and had received from his attorney. Gonzales stated that he thought it was about $5,000.
Officer Thompson subsequently had passenger Soto exit the vehicle, and patted him down. He found two large wads of cash in his front pocket. The money, totaling $1,991.00, included fourteen $100 bills. Officer Thompson then conducted a search of the vehicle and found nothing significant.
While Officer Thompson was speaking to passenger Soto, a woman who identified herself as Gonzales's wife arrived with papers she said were copies of court documents confirming Gonzales's account of the source of his money. Officer Thompson looked at them and noted that they did not contain any official signatures or court stamps.
Officer Thompson seized Gonzales's money, which totaled $3,201.00, including twenty four $100 bills. Officer Thompson completed a property sheet and gave it to Gonzales as a receipt, then learned from dispatch that there was an outstanding warrant on passenger Soto. Officer Thompson arrested passenger Soto and transported him to jail, permitting Gonzales to leave. Gonzales recovered his money within a couple of days.
Gonzales thereafter brought this suit under 42 U.S.C. § 1983 for violation of his civil rights, alleging that the initial stop, subsequent pat-down search, seizure of his money, and search of his vehicle, were unconstitutional.
On September ___, 2002, The United States
District
Court for the District of Kansas rejected each of these claims, and
granted
defendants summary judgment. It ruled that based on the
collective
knowledge of law enforcement officers, it was reasonable to suspect
that
plaintiff's passenger had received drugs or money from Augustine Soto,
and that plaintiff, as his driver, was similarly involved in a drug
operation.
Thus, there was reasonable suspicion for the stop. The court also
held the stop was not illegal in scope because reasonable suspicion of
drug trafficking justified Thompson's detention of plaintiff,
despite
the stated purpose (investigating a drive-by shooting). The court
held the pat down was legal, noting that based on many factors Thompson
testified to, and where an officer has a reasonable suspicion that an
individual
is involved in a drug offense, a frisk of that individual for officer
safety
is warranted. The court held the search of the vehicle was proper
under the automobile exception because Thompson had probable cause to
believe
that plaintiff was engaging in illicit drug transactions.
Finally,
the court held the seizure of Gonzales's money was appropriate, holding
there was probable cause to believe it may have consisted of the police
buy money and thus, was evidence of a drug transaction. Even if
it
weren't, the court held Thompson was entitled to qualified
immunity.
Finding there was no clear evidence supporting Gonzales's assertion
that
police officers are trained to lie about the real reason for car stops,
or to not keep track of buy money, the court granted the City's motion
for summary judgment as well, finding no causal relationship between
those
alleged policy transgressions and Gonzales's alleged damages.
Deanne
Watts-Hay represented Corporal Thompson, and Tim Schultz represented
the
City. The case is Gonzales, Soto & Boyd v. City &
Stephen
Thompson, Case No. 00-4166-SAC. You can read the opinion at http://www.ksd.uscourts.gov/ors/opinions/004166-114.html
First Amendment Rights Outweigh City's Interests
in Preventing Hostile Working Environment
Remember the bumper sticker policy issued on February 11, 2000, stating that employees could not park their cars on city lots if they displayed racially or sexually insensitive markings such as the Confederate flag? Consider it history.
In a ruling filed on May 2, 2002, United States District Court Judge Sam A. Crow struck down the policy as unconstitutional. Crow held the display of a Confederate flag license plate along with the words "Heritage Not Hate," is protected speech on a matter of public concern, and although some might find it offensive, others find it a way to honor their heritage. The court rejected all the city's asserted interests for the policy.
Based on the court's ruling, the may get stuck paying not only the lawyer it had to hire to defend the policy, but the attorney fees for the plaintiff as well. The case is Kyle Erickson v. City of Topeka, Case No. 00-4150-SAC. The time for appeal should expire on or about June 1, 2002.
Again, please not that the views expressed herein are those of the author only, and should not be attributed to any person, natural or artificial, living or dead, nor to any government agency.
In a two week period, two different federal judges in the United States District Court for the District of Kansas granted the City summary judgment on various claims filed by Joseph R. Ledbetter.
In Ledbetter v. City & Mayor Wagnon, Case Nos. 99-2489-CM & 99-2492-CM, Ledbetter claimed the City wrongfully failed to hire him for the Director of the Topeka Housing Authority and for the Director of Environmental Code Services and violated Title VII, ADEA, the Vietnam Veteran Preference Act, the Kansas Veteran's Preference Act, and in retaliation for for filing complaints with the Kansas Human Relations Commission and the EEOC. Finding no evidence to support Ledbetter's claims, the district court granted the defendants summary judgment on all claims on February 1, 2002. On March 18, 2003, the 10th Circuit affirmed the district court's decision. You can read the 10th Circuit's decision at http://www.kscourts.org/ca10/cases/2003/03/02-3156.htm Dave Plinsky represented the City and Mayor Wagnon.
In Ledbetter v. City of Topeka, Case No. 00-1153-DES, Ledbetter claimed he was unlawfully arrested on a warrant when he failed to appear on a citation for not having city tags on his dog. Ledbetter claimed the warrant was invalid because the municipal judge did not actually sign the warrant, but instead had a clerk rubber-stamp his signature on the warrant. The Court held the judge failure to sign was a judicial act and protected by judicial immunity, and the judge's failure to sign the warrant could not be attributed to any city policy or custom. The court held the city could not be held liable for any failure by the judge under the respondeat superior doctrine. The court issued its ruling on January 18, 2002. On February 6, 2003, the 10th Circuit affirmed the district court's decision. You can read the 10th Circuit's decision at http://www.kscourts.org/ca10/cases/2003/02/02-3202.htm Greg Lee represented the city.
In June 1999, a young lady Y.H., alleged that Dale E. McCormick was stalking her and had trespassed into her home. Moore investigated the case and forwarded the reports to the Shawnee County District Attorney's Office, who filed a stalking charge against McCormick. A warrant issued for McCormick, and he was arrested by KU police. McCormick claimed that Moore failed to review "evidence" in McCormick's possession that Y.H. was unstable and was actually stalking him.
Most of McCormick's claims were dismissed on Moore's and the City's motion to dismiss the petition, but the court allowed a claim of malicious and wanton negligence to proceed. Moore filed a motion for summary judgment, which the Douglas County District Court granted on December 14, 2001. The court said:
[T]here is no evidence to support [McCormick's] claim that Detective Moore acted with gross and wanton negligence. . . . Moore interviewed all persons involved in the incidents, reviewed all documents given to him . . . and reviewed prior police reports. When Moore interviewed [McCormick], he acknowledged making calls and sending correspondence to [Y.H.]. [McCormick] never gave Moore any of the exculpatory evidence he claimed to have. Moore gave all of the information he obtained to the District Attorney's office to review. . . . . Plaintiff has no expert who will testify that Moore's actions are even negligent, much less grossly and wantonly so."The court also denied McCormick's motion to amend his complaint to allege a civil rights cause of action pursuant to 42 U.S.C. § 1983. McCormick claimed that Moore gave him a "lawful police order" not to have further contact with Y.H., and the Topeka Police Department has a practice or custom of training its officers to issue such orders to private persons during domestic disturbances. McCormick alleged the defendants' actions deprived him of his liberty without due process of law and violate the equal protection clause of the United States Constitution. The court found no merit to McCormick's claims and denied him leave to amend. The case is Dale E. McCormick v. James D. Moore, No. 99-C-420. Good job, Jimmy, and Merry Christmas!
PS: Mr. (and I use that term loosely) McCormick threatened to sue me over this summary of his losing case. I haven't been served yet, but will let you known when I am.
On a rainy evening on April 29, 1998, dispatch received a call of an armed robbery at what is now the Kum & Go at 3335 S.W. Gage. The suspects were two white males armed with guns and mace, who had maced the clerk and left the store on foot. Officers Middendorf and McKinley responded, and were shortly joined by Cpl. Gregg and off duty Cpl. Reynolds. McKinley's canine followed a trail to a townhouse in the 4500 Block of S.W. 33rd Terrace, and officers saw muddy footprints on Jane Gunn's doorstep. Suspecting the robbers might be inside, the officers knocked on the door and yelled for the occupant(s) to come to the door.
Jane Gunn, the homeowner eventually came to an upstairs window and was holding a shotgun. Officers took cover, then had dispatch call the residence and tell Gunn to come to the door. When Gunn opened the door, she was momentarily detained in handcuffs while officers quickly looked through the residence. Not finding the robbers inside, the officers explained the circumstances to Gunn and apologized to her for the misunderstanding. Their apologies were not good enough for her.
Gunn sued the officers (although Middendorf was never named in the suit) and the City claiming the officers violated her Fourth Amendment rights by entering her home without a warrant and by using excessive force in handcuffing her, among other claims. District Judge Charles Andrews initially granted the defendants summary judgment in a well reasoned decision finding the warrantless search and detention were justified by probable cause and exigent circumstances. However, in a highly unusual turn of events, less than two weeks later Andrews vacated his decision and granted plaintiff's motion to reconsider the ruling. Highly unusual in that plaintiff never filed a motion to reconsider.
In any event, the matter was tried to a Shawnee
County
jury the week of October 24, 2000. The jury deliberated for about
two hours before absolving all the officers of any constitutional
wrongdoing
on October 27, 2000. Congratulations to Cpls. Gregg &
Reynolds,
and Officers McKinley & Middendorf for a job well done!
The Shawnee County Case number is 99-C-570.
In a district court ruling issued October 10, 2000, Officers Jerry Monasmith and Brad Rhodd were granted summary judgment on civil tort claims filed against them by Mindy L. Leitz, wife of local attorney Thomas Lietz.
Monsamith and Rhodd stopped Leitz for failing to signal a turn. When the stop was almost over, Rhodd presented her with a citation to sign. Lietz, who was angry about being stopped, slapped the pen out of Rhodd's hand. After Lietz committed this battery on Rhodd, he and Monasmith removed her from the vehicle and handcuffed her. They briefly detained her until she settled down, then released her with a citation.
Lietz claimed she was falsely arrested because she did use her turn signal, that the officers were extremely rude and assaulted and battered her, negligently used excessive force, committed the tort of outrage, and injured her to the point she lost consortium with her husband.
Judge Franklin Theis found Lietz's plea to one of the initial counts foreclosed her false arrest claim, and found the officer's actions were reasonable and appropriate based on their perception Lietz committed battery on a law enforcement officer. The Shawnee County Case No. is 99-C-673. Congratulations to Officers Monasmith & Rhodd.
Lietz's attorney, Lee R. Barnett, has filed an appeal of Judge Theis's ruling.
PS: An update. The Kansas Court of Appeals reversed summary judgment. They held the plaintiff's version (what little of it there was) was sufficiently different from the defendant's specific, accurate and detailed account of the events, to present the matter to a jury. The matter settled just before trial.