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Akins v. City of Columbia

United States District Court, W.D. Missouri, Central Division

August 2, 2016

CITY OF COLUMBIA, et al., Defendants.



         Plaintiff Matthew Stephen Akins alleges that Defendants violated federal and state laws in connection with their various stops and arrests of him between May 2010 and May 2013. At the time of the alleged incidents, Defendant Kenneth Burton was the Chief of the City of Columbia, Missouri Police Department, and Defendants Eric Hughes, Rob Sanders, Roger Schlude, and Michael Palmer were City of Columbia police officers.

         Akins complains of his May 9, 2010 arrest and the seizure of his gun; a June 6, 2010 traffic stop; a July 27, 2011 incident in a Taco Bell parking lot; his September 11, 2012 arrest and seizure of his butterfly knife; a poster of him that was displayed in a Police Department briefing room; and other incidents involving alleged retaliation, failure to train, malicious prosecution, and conspiracy.

         Defendants Burton, Hughes, Sanders, Schlude, Palmer, and the City of Columbia move for summary judgment, Doc. 81, on all claims. Akins moves for summary judgment in part. Doc. 91. Defendants’ motion for summary judgment is granted and Akins’ motion for summary judgment is denied.

         I. Background[1]

         A. May 9, 2010 incident and Officer Hughes

         1. The arrest

         On May 9, 2010, Officer Hughes stopped Akins on a routine DWI checkpoint in Columbia. Akins was driving a 1997 Toyota Camry and Hughes did not know who Akins was at the time of the stop. When Hughes was speaking with Akins, he observed that Akins’ eyes were bloodshot and his hands shook as he handed Hughes his documents. Hughes also smelled what he believed to be the smell of marijuana.[2] Hughes asked Akins to step out of the car. Akins began rolling up the window, at which point Hughes opened the door himself and asked Akins to step out, which Akins did. As Akins stepped out, Hughes saw Akins move his right hand close to his leg and quickly place an unknown item in his right pants pocket. Based on Akins’ nervous demeanor and the quick motion, Hughes believed Akins could have placed a weapon in his pocket. To check Akins’ pocket and retrieve the unknown item, Hughes moved aside a paper towel that was in Akins’ pocket. Based on Hughes’ training and experience, the paper towel was wrapping what to Hughes felt like marijuana stems, seeds, and leaves.

         When Hughes patted Akins down, Hughes felt a gun near Akins’ waist. The gun, a .380 Bersa, was in a holster attached to Akins’ belt, covered by his shirt. Akins did not tell Hughes about the gun at any time before or after getting out of the car. Akins says Hughes’ actions, from the time of opening the door to when he performed the pat down, did not provide reasonable time to tell Hughes about the gun. When Hughes felt the gun, Hughes pushed Akins off-balance and against the car, and yelled, “Gun!” Hughes asked Akins whether he had a concealed carry permit. Akins said he did not and that his attorney told him he did not need one to carry a gun in the car.

         Hughes later wrote in the offense report that “[t]he gun was discovered to be loaded with 11 bullets in the magazine and 1 round in the chamber. The handgun was readily capable of immediate lethal use and was concealed under [Akins’] shirt, not visible to others.” Doc. 91-3, p. 20 of 22 (Offense Report). Akins admits the gun contained bullets. But he says there was no bullet in the chamber when Hughes removed the gun from the holster. Akins says when Hughes drew the slide back to check on whether there was a round in the chamber, Hughes’ action chambered the round. Doc. 91-1, p. 2.

         Akins admits that a tissue removed from his pocket could possibly have contained “remnants of marijuana” or “marijuana byproducts.” Doc. 82-1, p. 14 (Akins Depo., p. 56). Another officer searched Akins’ car and located a plastic baggie under the driver seat, containing what the officer reported to be marijuana. Akins admits he had used marijuana at some time and that it was possible that what the officer found in his car was his marijuana. Id., p. 18 (Akins Depo., p. 71). Hughes arrested Akins for drug possession and unlawful use of a weapon.

         2. Return of the gun

         The Boone County prosecutor subsequently charged Akins with unlawful use of a weapon, a class D felony. Then on November 16, 2010, the prosecutor dismissed the charge, nolle prosequi “and possession of Matthew Akins Bersa 380 pistol was maintained by the Columbia Police Department pursuant to the recommendations of the Boone County Prosecutor’s Office.” Doc. 4, p. 8 of 40, ¶ 23 (Akins’ Amended Complaint).

         In February 2012, Akins’ defense attorney emailed the assistant prosecutor who had handled the case, asking if Akins’ gun could be returned to Akins. The assistant prosecutor responded that that should be alright and asked whether Akins had proof of ownership. No evidence in the record shows Akins’ attorney responded to the question about proof of ownership, or that the prosecutor relayed the request to the City police department.

         The City police department was performing a routine audit in October 2012 and according to the City, in the course of the audit it learned it still had Akins’ gun.[3] At the time, Akins had a pending felony charge relating to an arrest for possession of a knife. The City sent Akins a letter one week later, informing Akins that the gun was available to be picked up by a third party, as Akins had a pending felony charge. The evidence custodian of the Columbia Police Department, Michelle Heater, also explained to Akins in a phone call on October 24, 2012 that a third party could pick it up. No third party came to get it.

         In February 2013, Akins emailed Chief Burton and the Boone County prosecutor, requesting return of the gun. The Boone County Prosecuting Attorney’s office notified Heater on March 20, 2013 that they no longer needed the gun. Akins was told on March 28, 2013 that he could pick it up any time.[4] He picked it up on Aril 15, 2013.

         B. June 6, 2010 incident and Officer Schlude

         On June 6, 2010, around 6:50 p.m., Akins made an illegal U-turn while driving and Officer Schlude stopped him. Akins admits the stop was lawful. Doc. 4, p. 8 of 40, ¶ 25. Akins had two passengers with him, including one in the back seat. Akins submitted the affidavit of one of his passengers, K. Jones, who said that after pulling Akins over, Schlude asked Akins whether there were any illegal drugs or weapons in the car. Doc. 91-7 (Jones Affidavit). Akins told Schlude there was a legal rifle on the rear floorboard.

         Schlude does not have an independent recollection of the interaction with Akins. The dispatch system records reflected, and Schlude would have been advised at the time, that Akins had a type two indicator, meaning Akins was known to be armed and violent; and that Akins’ passengers had type one indicators, meaning they were known to be violent. Akins also had a felony weapons charge at the time. According to dispatch records, Schlude told dispatch that there was a rifle in the car and requested backup. Schlude said that based on the facts in the dispatch record, he would have approached the situation with caution given that Akins was known to be armed and violent, the two individuals were known to be violent, and there was a rifle in the car.

         Schlude ordered Akins and the two passengers out of the car. All three were handcuffed and searched by a second officer who arrived at the scene. Jones says this second officer was searching them for “dangerous objects[.]” Id. The three were directed to sit on the curb while Schlude searched the car. Akins did not consent to the search. Akins says Schlude moved some items out of the car during the search and the entire encounter lasted about 20-30 minutes.

         Schlude issued Akins a citation for the illegal turn. Akins says he asked Schlude whether he had “done anything wrong” with the gun and what “the protocol” was for a situation like the one he had just found himself in. Doc. 91-1, p. 5 (Akins Affidavit). He says Schlude responded that it depended on the officer, i.e., some would see the gun in the car, pull their own gun and shoot him dead, then testify that they had feared for their life and the charge would be dismissed. Id.

         C. July 27, 2011 incident and Officer Sanders

         Officer Sanders was patrolling in Columbia on the night of July 27, 2011 when he saw a car exit what he considered a high-crime neighborhood.[5] Sanders began following it and observed that the occupants became animated, and the driver began behaving differently once the driver noticed him following, engaging in what Sanders’ training and experience had taught him were avoidance techniques, i.e., changing lanes multiple times and turning into a parking lot. According to Sanders’ training and experience, that behavior indicated the occupants were trying to avoid contact with the police. Akins was the driver and he admits he noticed the police car behind him, Doc. 92, p. 4 of 47, although he did not know at the time that it was Sanders, Doc. 82-1, p. 36 of 88 (Akins Depo. p. 147). Akins admits that as he was driving, he “deliberately changed lanes two separate times to determine if they were being followed by” the police car, and “both times, [the police car] mirrored Akins’ lane changes.” Doc. 92, p. 4 of 47. Akins’ passenger, M. Carter, “retrieved a video camera and began recording events as they unfolded.” Id.

         Sanders contacted Joint Communications. He recited a license plate number and was given the name[6], and asked for priors, then stated he was “going to try to check on this vehicle here, probably at Taco Bell.” Doc. 82-40, Exh. 20 at 00:00-1:04 (audio recording). Joint Communications checked whether there were units to assist. Officers Scott Hedrick and Mike Parson responded that they were close.

         Akins went to the drive-through and ordered food. Sanders followed Akins’ car and while Akins was waiting, Carter turned around to continue filming out the back window. Sanders saw the camera’s light shine at him and waived. Sanders had recently been trained that individuals will use phones or cameras to video police to try to deter contact by officers. Sanders parked in the Taco Bell lot. Akins got his order and pulled into an open parking spot in the Taco Bell lot. Sanders saw the occupants begin to watch his patrol car. Officers Hedrick and Parsons pulled into the lot, driving a K-9 unit. Sanders had not asked for a K-9 unit. No evidence in the record reflects Sanders told Hedrick and Parsons where to park.[7]

         Sanders never activated his lights or sirens. There is no evidence that his car was parked in such a way as to block Akins’ car. Sanders walked to Akins’ driver-side window. After greetings were exchanged, Sanders asked Akins, “You got a driver’s license I could see?” Akins asked Sanders what his probable cause was, and Sanders replied, “I don’t have to have probable cause.” Akins also asked Sanders if he was conducting a traffic stop and Sanders said he was not. Sanders asked Carter if he had identification, Carter indicated he did, and Sanders asked if he could please see it. Sanders also asked whose car Akins was driving and Akins said it was his mother’s. Akins and Carter gave Sanders their identification, and Akins said to Sanders that he believed he was responding to an order by a law enforcement officer, rather than a casual request. Sanders said, “All right. Sit tight, guys.”

         Officer Hedrick told Officer Parson to get his dog out of their car, but to stay back. Officer Parson did so, “to introduce the dog to new things, new sights, sounds, and trying to get him used to being a police dog.” Sanders did not tell them to take the dog out of the car or otherwise tell them where to stand or how to handle the dog. Officer Hedrick went to the passenger-side window of Akins’ car. Hedrick said to Akins that Sanders was “just checking you, ” that he and Parsons happened to be in the area, and said “it was just safety issues.” Hedrick and Parsons never drew their weapons or activated their patrol car’s lights or sirens.

         Sanders contacted Joint Communications again. He said, “I’m at a check subject at Taco Bell at Providence and the Loop [UNINTELLIGIBLE] I see about name and date.”[8] Doc. 108-9, Exh. A at 00:00-00:11 (audio recording). Joint Communications asked, “Which do you want, a traffic stop or are you on a different check subject?” Id. at 00:17-00:22. Sanders responds, “It’s the same incident but it’s not a traffic stop, it’s, I’m out with [LICENSE PLATE NUMBER] but it’s not a car stop.” Id. at 00:22-32. One minute later in the recording, Sanders gave Joint Communications Akins’ and Carters’ names and birthdates to run. Id. at 01:32-2:04. Sanders later asked Joint Communications whether it could add to the registration that the subjects were “Columbia citizens on patrol.” Sanders returned to Akins’ car after what Akins says was no more than one minute and thirty seconds, returned the identification, told Akins and Carter they were “free to go, ” and thanked them for their cooperation. Sanders then pointed out an open beer bottle on the floor of the car. Akins said it was his mother’s and Sanders offered to throw it away.

         Sanders contacted Joint Communications again and said he would be out report-writing unless assistance was needed. Doc. 108-9, Exh. A at 13:32-13:48. Joint Communications said, “Negative, ” and asked, “What did you find about your check subject at Taco Bell?” Id. at 13:48-13:55. Sanders said he tried to clear it himself but the computer probably crashed and asked that it be shown as “clear, no report.” Id. at 13:56-14:05.

         A Columbia Police Department Internal Affairs investigation concluded the incident at Taco Bell was a detention rather than consensual contact under all the circumstances and that Sanders had violated a police department guideline concerning seizure of persons within the limits of the Fourth Amendment as interpreted by the judiciary.

         D. September 11, 2012 incident and Officer Palmer

         On September 11, 2012, Officer Palmer stopped Akins, who was driving a white Kia, after Akins failed to yield right-of-way at a four-way stop when Palmer was already in the intersection. At the time he stopped the Kia, Palmer did not know who was driving it.

         Akins could not produce a driver license. But he told Palmer that he was driving to a Citizens-for-Justice-related event and was therefore covered to drive under his limited driving privilege. Doc. 91-1, p. 12 of 16 (Akins Affidavit). Palmer told another officer who arrived on the scene to assist that Akins was with Citizens for Justice. When Palmer ran Akins’ name through the MULES system, Akins’ driving privilege was reported as revoked without any limited privileges.[9] Akins could not provide proof of insurance. Palmer arrested Akins for driving while revoked, failure to yield right of way, and failure to maintain financial responsibility.

         In conducting a search incident to arrest, Palmer found a butterfly knife in Akins’ right front pants pocket. Based on his training and experience, Palmer knew a butterfly knife was a type of knife in which the handle is hollow and split into two parts that connect to the blade with two loose pins. To open a butterfly knife, the blade pivots around the pins in an arc. Based on his training at the police academy, knowledge, and experience, Palmer knows that a butterfly knife can be opened one-handed by the operation of gravity or the application of centrifugal force. Doc. 82-32, p. 2 of 4 (Palmer Affidavit). The sharp part of the butterfly knife’s edge was about 3½ inches long; measured from the tip to the hinges, the blade is 4” long. In addition to the driving and insurance violations, Palmer also arrested Akins for unlawful use of a weapon and possession of a prohibited weapon, under Mo. Rev. Stat. § 571.020 and § 571.030.

         Prior to submitting the probable cause statement, Palmer checked with a supervisor about the butterfly knife. The supervisor told Palmer the knife was illegal. Palmer wrote in the probable cause statement that the knife was designed to be opened from the handle by gravity or by the application of centrifugal force.

         Akins continued his reporting activity for months following the September 11, 2012 encounter with Officer Palmer.

         In May 2013, the charges were amended to driving while revoked or suspended, and failure to yield the right of way.

         E. The Akins poster and Citizens for Justice website

         Prior to the creation of the Citizens for Justice website, Akins had at least nine contacts with the Columbia Police Department that had resulted in his arrest. He began construction of the website in June 2010 and the Columbia Police Department became aware of it in December 2010.[10] The website concerned law enforcement interactions with the public, including alleged police misconduct by the Columbia Police Department. Akins’ systems administrator accidentally erased the website in the fall or winter of 2012. Doc. 82-1, p. 106 (Akins Depo. pp. 261-62). But Akins says Citizens for Justice still has active YouTube and Facebook pages. Doc. 104, p. 30, para. 141.

         At some point in 2011, a poster concerning Akins was put up in the Police Department’s briefing room, an area not generally open to the public. No evidence in the record shows who created or put up the poster. The poster had a photograph of Akins. It stated he drove a silver Pontiac Grand Prix and had arrests in the system for weapons violations, including carrying a pistol concealed on his person. It also stated Akins ran a website, and gave the website address (which was for Citizens for Justice). Doc. 82-21, Defs. Exh. 26 (poster). The Police Department does not have a policy concerning posters being displayed within the Department.

         At the time the poster was up, Akins was approaching police offices at night while they were responding to calls and otherwise performing their duties, recording the officers’ activities with a camera in night vision mode and that displayed an illuminated red dot when it was on. Doc. 82-29, Defs. Exh. 35 (Burton Affidavit); Doc. 82-1, pp. 31, 36, 39, 48, 110, 113, and 119 of 188 (Akins Depo., pp. 121, 143, 155, 190, 191, 278, 279, 291, and 315). Chief Burton opined that the poster promoted Akins’ and officers’ safety. At some point after Akins began filming police officers, Chief Burton or Jill Schlude advised the Police Department that Akins had the right to film. Doc. 82-29.

         F. ...

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