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In the United States District Court for
For the Western District of Missouri - Southern Division
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Plaintiff, Vs City of Springfield, et al Defendants, |
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Case No: 98-3486-CV-S-SOW |
Brief in Support of
Motion for Partial Summary Judgement
A party is entitled to summary judgement, or in this case partial summary judgement, when there are sufficient facts that are not in dispute that constitutes the necessary elements of the offense. In this case there are several counts where the facts are on the face of the record, in the police report, and in the letters from the city officials. Plaintiff is therefore entitled to a judgement in his favor on these issues.
It is well established in the law that a police officer can not arrest a person in his home without a warrant. The exception to this rule is that a felony must have been committed and exigent circumstances must exist. Here neither existed. In the case of Payton V. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 it was decided:
Held: The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. Pp. 583-603.
(a) The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. To be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Pp. 583-590.
The Plaintiff makes an even more detailed argument in his supplemental brief filed on February 3rd 1999. The Officers, in this case, according to their own police report, came to the plaintiff's home in the middle of the night and without a warrant, absent exigent circumstances, and without any legal authority arrested the Plaintiff for trespassing, an ordinance violation. That's false arrest.
Likewise, according to their own police report, the Officers searched the plaintiff's home without a warrant during the false arrest. Their own police report states that the did not have the plaintiff's permission. The defendants claim that the search was justified as a cursory safety check is defeated because there was no reason to believe, in arresting him for trespassing, that the plaintiff was a dangerous person and hiding a gunman in his home. The defendants would have to affirmatively state facts indicating they had reason to believe the plaintiff was hiding someone who would be a threat to police. In the case of United States Of America V. John Henry Morgan, 743 F.2d 1158 it was decided:
Nor was this a situation where a suspect represented an immediate threat to the arresting officers or the public which justified the absence of a warrant. The United States argues no warrant was required because the police conduct constituted a "cursory safety check," which is a recognized exception to the warrant requirement. See United States v. Kolodziej, 706 F.2d 590, 596-97 (5th Cir. 1983) (and cases cited therein). We disagree. To satisfy the cursory safety check exception "the government must show that there was 'a serious and demonstrable potentiality for danger.'" United States v. Kolodzeij, supra, 706 F.2d at 596, quoting United States v. Smith, 515 F.2d 1028, 1031 (5th Cir. 1975) (per curiam), cert. denied, 424 U.S. 917, 96 S. Ct. 1119, 47 L. Ed. 2d 322 (1976). The record in this case reveals no such immediate threat or security risk to the officers involved here. As found by the district court, the evidence "shows that the occupants of the house were peaceful until startled by Officer Alcorn's car coming up their driveway in a clandestine manner." Moreover, Morgan's prior contact with police officials had been friendly and cooperative. There was no substantiated evidence that Morgan was dangerous or that a grave offense or crime of violence had occurred or was even threatened. United States v. Killebrew, 560 F.2d at 734. Other than the unconfirmed information supplied to Sheriff Reynolds by an unidentified person, the police officers could point to no other substantiated evidence that indicated Morgan or his companions posed an impending threat to the police or to the public. Indeed, all the proven evidence indicates Morgan and his friends posed no risk to anyone until the police officers surrounded the Morgan home and flooded it with high-powered spotlights. See United States v. Hatcher, 680 F.2d 438, 444 (6th Cir. 1982) (government failed to show evidence indicating that defendant was a dangerous individual to justify warrantless "protective sweep" of defendant's home). We believe that looking at the totality of the circumstances, the district court was correct in concluding that the facts did not indicate any risk to justify a warrantless entry into the Morgan home. See United States v. Killebrew, supra, (where there were no facts indicating occupant was dangerous or about to escape, warrantless entry into suspect's motel room violated fourth amendment, even though police knew occupant possessed a gun); see also United States v. Gamble, 473 F.2d 1274, 1277 (7th Cir. 1973). To justify this type of warrantless intrusion, police officers "must be able to point to specific and articulable facts which, taken together with other rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Police officials, however, are not free to create exigent circumstances to justify their warrantless intrusions. United States v. Allard I, 600 F.2d 1301, 1304 n.2 (9th Cir. 1979) ("If exigent circumstances were created, they resulted from the agent's own conduct.")
Additionally, it is well established that the Plaintiff had the right to make bond and consult with his attorney, both of which were denied. This constitutes false imprisonment.
Clearly these officers are liable to the plaintiff, but so is the city. It is well settled in the case of Monell v. New York City Dept. of Social Servs., 436 U. S., at 689, that municipalities and other local governmental bodies are "persons" within the meaning of Section(s) 1983. The courts have consistently refused to hold municipalities liable under a theory of respondeat superior. See Oklahoma City v. Tuttle, 471 U. S. 808, 818 (1985). Instead, in Monell and subsequent cases, the courts have required a plaintiff seeking to impose liability on a municipality under Section(s) 1983 to identify a municipal "policy" or "custom" that caused the plaintiff's injury. See Monell, supra, at 694; Pembaur, supra, at 480-481; Canton, supra, at 389. Locating a "policy" ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. Monell, supra, at 694. Similarly, an act performed pursuant to a "custom" that has not been formally approved by an appropriate decision maker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law. 436 U. S., at 690-691 (citing Adickes v. S. H. Kress & Co., 398 U. S. 144, 167-168 (1970)).
In this case, the plaintiff received a letter from Sgt. Greer, the head of the Internal Affairs department, stating, "the actions of the officers were in full compliance with current department policy and/or state law." To avoid the possibility of a mistake, the plaintiff responded to Sgt. Greer and, using the statements in the officers' own police report that the officers made a false arrest. Sgt. Greer sent a second letter confirming his position. The plaintiff, in an attempt to give the city yet another chance to fix the problem contacted police chief Rowe explaining to him in detail the law and that you can't arrest people in their home without a warrant. Chief Rowe responded to the plaintiff in a letter confirming Sgt. Greer's position stating, "I have personally reviewed the investigation conducted by the Internal Affairs Unit", and concluded the officers conduct was lawful. The Plaintiff then send three letters to each member of city council and the city manager. In these letters the Plaintiff explained what happened and provided them with police reports and case law. The Plaintiff pointed out that at least three members of city council were lawyers. The Plaintiff threatened to sue them if they didn't act and even outlined the legal arguments he would use should he have to sue them. The Plaintiff took extraordinary steps to assist the City in avoiding liability, nonetheless, the City took no action.
Plaintiff therefore contends that the three letters he received from city officials stating and confirming that the officers' conduct was in full compliance with current department policy establishes the existence of a municipal policy supporting false arrests, illegal searches, and false imprisonment within the meaning of Monell. Therefore, the City of Springfield is liable for the actions of the officers under Section 1983.
Plaintiff therefore contends that on the face of the record that there exists no reasonable argument to deny the liability of the officers for false arrest, illegal search, and false imprisonment. Plaintiff also contends that on the face of the record that there is no doubt that the officers acted according to the "customs" or "policies" of the City of Springfield as they have admitted in writing, and are therefore jointly liable.
This court has in this file copies of the three letters in question as well as the police report. The plaintiff has more detailed arguments on the issues in his brief and supplemental brief. With no facts for a jury to decide on these issues, and in the spirit of judicial economy, plaintiff requests partial summary judgement on the issue of liability alone leaving the amount of damages for a jury to decide pursuant to Rule 56(c).
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Marc Perkel - Plaintiff - 04-21-99
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