United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
bring this case under 42 U.S.C. § 1983, alleging that
their constitutional rights were violated by a police search
of their home pursuant to a search warrant and by a city
building inspection conducted after that search. Defendants
are detective Ronald Vaughan, who obtained the search
warrant; building inspector Hershell Wallace, who conducted
the home inspection; and the City of St. Louis, Missouri.
Both sides have filed motions for summary judgment.
undisputed facts show that detective Vaughan is entitled to
qualified immunity. Because liability under § 1983 is
personal, Vaughan is not responsible for any alleged actions
of the SWAT team. The counts against him will be dismissed.
Plaintiffs fail to show the City has a policy of using SWAT
to execute search warrants with no-knock entries whenever
guns may be present. Even if such a policy existed,
plaintiffs cannot prove injury. The City's motion will be
granted on this count for injunctive relief. However, neither
side will be granted summary judgment on the three counts
pertaining to Project 87 building inspections because genuine
disputes of fact exist.
Summary Judgment Standard
determining whether to grant summary judgment, the court
views the facts - and any inferences from those facts - in
the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The movant bears the
burden of establishing that (1) it is entitled to judgment as
a matter of law and (2) there are no genuine issues of
material fact. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Once the movant has
met this burden, however, the nonmoving party may not rest on
the allegations in its pleadings but must, by affidavit and
other evidence, set forth specific facts showing that a
genuine issue of material fact exists. Fed.R.Civ.P. 56(c)(1),
(e). Where a factual record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial. Matsushita, 475 U.S.
filing of cross motions for summary judgment does not
necessarily indicate that there is no dispute as to a
material fact, or have the effect of submitting the cause to
a plenary determination on the merits.” Wermager v.
Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983).
Instead, each summary judgment motion must be evaluated
separately on its own merits to determine whether a genuine
issue of material fact exists and whether the movant is
entitled to judgment as a matter of law. Husinga v.
Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D.
March 4, 2016, defendant detective Michael Vaughan sought and
obtained a state-court search warrant for 5406 Geraldine
Avenue in the City of St. Louis, Missouri. His affidavit in
support of the warrant attested to his belief that heroin and
illegal firearms, along with other evidence of drug
trafficking, were being kept there by Darron Ford and others.
Vaughan personally appeared before a state-court judge, who
issued the warrant to search “Darron Ford … and
5406 Geraldine Avenue” for the contraband.
narrative portion of the affidavit stated that Vaughan had
obtained information from a reliable confidential informant
(CI) whom he had used in more than ten previous
investigations. Vaughan recited that the CI said he had
been inside the building on multiple occasions, including
during the past 48 hours, and had observed persons known as
“Mark” and “Roscoe” there, along with
large quantities of crack cocaine, heroin, and multiple
firearms. The CI indicated that the occupants had ties to a
street gang that had been recently engaged in a shooting in
affidavit stated that a search warrant had been executed not
long ago at the next door house, 5412 Geraldine, in which
crack cocaine and firearms had been seized from Darron Ford.
The description the CI gave of “Mark” matched
that of Darron Ford, and the CI identified a photo of Ford as
“Mark.” The affidavit related that Vaughan and
his partner, detective Michael Kegel, conducted surveillance
at 5406 Geraldine on March 3 and 4, for approximately two
hours each day. Vaughan swore that during each period of
surveillance, they observed approximately ten individuals
coming and going from the residence, and staying for only
brief periods of time. The affidavit stated that on both
occasions the officers observed a subject matching the
description of “Roscoe” in the rear yard of 5406
executed the search warrant around 8:15 a.m. on March 5. A
SWAT team knocked and yelled “police” and then
very shortly thereafter struck the door several times with a
battering ram. When the door failed to open, they broke a
window, which shattered at the same time that the door gave
way. They threw a “flash bang” device into the
front room. Plaintiffs Leon Walker, Wanda Jean Millbrook,
Correll Taylor Millbrook, and Victor Wayne
Millbrooks lived at 5406 Geraldine. Leon Walker had
already left for work, but Wanda, Correll, and Victor
(referred to as “Millbrook plaintiffs”) were home
when the SWAT team entered. They were handcuffed and brought
to the front room. Once SWAT cleared the house, detective
Vaughan entered the residence. The search of the
plaintiffs' residence by Vaughan and other officers
yielded marijuana, drug paraphernalia, and three
making the entry at 5406, the SWAT team then went to 5412
Geraldine (the two residences are separated by a vacant lot),
and made entry for execution of a separate search warrant
there. That warrant had been acquired by Vaughan's
partner Kegel, also on the previous day. Kegel had appeared
before the same state-court judge to obtain that warrant an
hour or two after Vaughan had obtained his warrant. Neither
affidavit mentioned that warrants were being sought for both
houses at the same time. Vaughan and Kegel testified that
they believed that target suspect Darron Ford was using both
residences to sell drugs.
the searches of both residences, the officers requested
building inspections as part of the City of St. Louis'
Project 87 Program. Under City Ordinances, Project 87
building inspections have been conducted of nuisance and
problem properties since the mid-1990s. It is police
department policy that police officers contact dispatch for a
Project 87 building inspection after executing a search
warrant. Defendant building inspector Hershell Wallace
arrived at 5406 Geraldine Avenue, and asked plaintiff Victor
Millbrooks to consent to an inspection of the premises.
Wallace provided Victor with a City Inspection Consent Form,
which Victor signed. Wallace and Victor have slightly
different versions of their interaction: Wallace testified
that Victor was not handcuffed and that he told him that if
consent was not provided, “we would probably - it would
be condemned anyway until an inspection can be
obtained.” Victor testified that he was uncuffed just
to sign the form and then again placed back on the couch, and
that Wallace “demanded” he sign the form,
explaining: “Well, what I mean by demanded is basically
you sign this or else. Basically if you don't sign this,
I guess the house - forecloses or something was going to
happen with the house. We would get put out, something like
that.” Before entering the house, the only building
code violation that Wallace noticed was the broken front
window through which the police had thrown the “flash
bang.” Wallace found nothing unsafe about the building,
but the Building Department later sent the plaintiffs a
letter listing some interior items that needed to be fixed,
which Wallace characterized as not serious.
Police Search and Seizure
counts of the amended complaint relate to the police search.
Count I is brought by all four plaintiffs against defendant
Vaughan for unreasonable search under the Fourth
Amendment. Counts II through IV are brought by the
Millbrook plaintiffs against Vaughan for unreasonable initial
seizure, continued seizure, and excessive force. Count VII is
brought against the City of St. Louis and seeks an injunction
prohibiting the City from engaging in SWAT team “no
knock” full tactical raids on drug houses without
particularized concern beyond the presence of guns.
Unreasonable Search and Seizure
Detective Vaughan asserts that he is entitled to qualified
immunity on all claims brought against him. “Qualified
immunity protects a government official from liability in a
section 1983 action unless the official's conduct
violated a clearly established constitutional or statutory
right of which a reasonable person would have known.”
Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “To overcome the defense of qualified
immunity, a plaintiff must show: (1) the facts, viewed in the
light most favorable to the plaintiff, demonstrate the
deprivation of a constitutional or statutory right; and (2)
the right was clearly established at the time of the
deprivation.” Howard v. Kansas City Police
Dep't., 570 F.3d 984, 988 (8th Cir. 2009). The court
may address either prong first. Id. (citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
clearly established that the Fourth Amendment requires a
truthful factual showing of probable cause before a warrant
can issue. Moody v. St. Charles Cty., 23 F.3d 1410,
1412 (8th Cir. 1994) (citing Burk v. Beene, 948 F.2d
489, 494 (8th Cir. 1991)). Therefore I must consider whether
the facts demonstrate a violation of this clearly-established
assert that Vaughan is not entitled to qualified immunity
because he made false statements and omitted material facts
in the search warrant application. They allege that Vaughan
lied in the affidavit when he said he had surveilled the
residence and saw multiple people who came and left after a
short period of time. As evidence to support this argument,
plaintiffs cite only to their own deposition testimony where
they deny ever ...