United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
U.S.C. § 1983 case arises from the St. Louis County
Police Department's seizure and retention of Plaintiff
Mark Wellman's firearms. Wellman claims the warrantless
seizure and retention of his firearms violated his Fourth
Amendment and due process rights, among others. Both parties
move for summary judgment. For the reasons that follow, I
will grant Defendants' motion.
ruling on a motion for summary judgment, I must view the
facts and inferences from the 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 moving party has the burden of establishing that
there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
Once the moving party has met this burden, the nonmoving
party may not rest on the allegations in its pleadings, but
by affidavit or other evidence must set forth specific facts
showing that a genuine issue of material fact exists.
Fed.R.Civ.P. 56(c)(1), (e). “Where parties file
cross-motions for summary judgment, each summary judgment
motion must be evaluated independently to determine whether a
genuine dispute of material fact exists and whether the
movant is entitled to judgment as a matter of law.”
Jaudes v. Progressive Preferred Ins. Co., 11
F.Supp.3d 943, 947 (E.D. Mo. 2014).
following facts are undisputed unless otherwise indicated.
is a firefighter with the City of Hazelwood fire department.
On December 25, 2014, Wellman was involved in a domestic
violence incident with his wife that resulted in the police
being called to Wellman's home. On December 28, 2014,
Wellman was “down in the dumps” and felt very
depressed. He testified that his wife had moved out of their
home temporarily and he was concerned they may not resolve
their problems. Wellman called his co-worker and friend,
Gerard Hagedorn. During their conversation, Hagedorn
expressed concern for Wellman and told Wellman he would send
a police officer over to the house to check on him. Wellman
testified he told Hagedorn not to send the police to his
house as “nothing good” would come of it. Wellman
told Hagedorn that if he sent the police to Wellman's
house, he would see Wellman on the news that night being
carried out in a body bag.
fire chief, David Radel, called 911 and reported that Wellman
was home alone, probably very drunk, and wanted to commit
suicide. Radel also reported that Wellman had several weapons
in the home and had warned that no one had better call the
police. Radel and Hagedorn gathered near Wellman's home
with a couple other friends and co-workers of Wellman's.
Louis County police were dispatched to Wellman's home.
Sergeant Erich Von Almen spoke to Wellman on the phone for
10-15 minutes. During the conversation, Wellman's speech
was slurred and he sighed a lot. Wellman and Sergeant Von
Almen discussed the fact that Wellman owned firearms. Wellman
told Sergeant Von Almen he knew the police would come in and
take all his guns.
eventually came out of the house. Another officer on the
scene, Jason Whiteside, observed that Wellman appeared
intoxicated and exhibited mood changes. See
Whiteside Deposition at 23, ECF No. 18-2 (explaining that
Wellman “went from anger to crying, to anger to crying,
to being completely normal in mood”). Officer Whiteside
heard Wellman say, “I'm just not in my right mind;
I haven't slept in a couple days.” Def.'s
Statement of Facts ¶ 64, ECF No. 25.
cooperated with the police and eventually agreed to go to the
hospital for a mental health evaluation. Wellman told
Sergeant Von Almen that there were two guns by his chair in
his living room. The parties disagree about whether Wellman
gave consent to Sergeant Von Almen to enter his home.
Sergeant Von Almen testified he did not think it was suitable
to ask Wellman to sign a written consent form given his
was taken to the hospital by ambulance and committed for a
mental health evaluation. At Wellman's apparent request,
one of his friends, Jim Mangan, stayed at his house and
waited for Wellman's wife to arrive. After Wellman left
for the hospital, Sergeant Von Almen entered Wellman's
home and found two firearms sitting out by some chairs, as
Wellman had described. Sergeant Von Almen testified that he
made a judgment call and decided to take those firearms based
on the reports of threats Wellman had made against himself.
Sergeant Von Almen explained he did not know if Wellman would
be released from the hospital immediately and was concerned
about what might happen if he was released and still had the
firearms. The firearms were taken by another officer to the
station to be packaged for safekeeping.
Sergeant Von Almen left Wellman's home, Mangan called the
police and said he and Wellman's wife had located more
guns and wanted the police to come back and take them.
Officer Whiteside returned to the house. The parties disagree
about who collected and stacked up Wellman's firearms,
but they agree the firearms were stacked when Officer
Whiteside arrived. Wellman's wife told Officer Whiteside
that she was worried about her husband's safety and her
safety. Officer Whiteside testified that he removed the
weapons at the direction of Mrs. Wellman and Mangan. Mrs.
Wellman swears in an affidavit that she did not gather the
firearms up or consent to police removing them from her home,
though Mr. Wellman admits that Officer Whiteside acted upon
the wishes of Mrs. Wellman. The police gave Mrs. Wellman a
receipt detailing all the firearms that were seized sometime
before Mr. Wellman was discharged from the hospital.
was released from the hospital after a few days. His employer
advised him to go to an employee assistance program and
required him to go to a doctor for an evaluation before he
could return to work. Wellman testified that the doctor
determined he was not a threat to himself or others and that
he was allowed to return to work a few weeks after he was
released from the hospital.
point, Wellman began trying to get his firearms back. The St.
Louis County Police Department has a policy, Special Order
11-334 (the Special Order), that states that if a firearm has
been seized in circumstances such as these, the owner must
produce a writ of replevin or a medical letter from a
treating physician stating the person is no danger to himself
or others before the firearms will be released. The relevant
portion of Special Order 11-334, titled “Release of
Firearm Evidence, ” reads:
If the firearm was seized pursuant to a suicide or the person
was voluntarily or involuntarily committed to a mental health
facility for evaluation following a suicide intervention
wherein a firearm was seized, a Writ of Replevin (a court
order from a judge advising the Department to release the
firearm) needs to be completed to authorize the release of
the firearm. The Writ of Replevin is necessary unless the
person from whom the firearm was seized produces a notarized
written statement from a treating psychiatrist or a treating
psychologist that states the health care provider is
currently treating the person and that the person is in no
danger to himself or to others and that the firearm should be
returned to the person. Prior to the release of any firearm
pursuant to either a Writ of Replevin or a medical letter
from a treating psychiatrist/psychologist, approval will be
received from the St. Louis County Counselor's Office.
Order 11-334 ¶ III.B.5, ECF No. 18-4. The Special Order
also states that “[i]f there is any question in
determining whether or not to authorize the release of a
firearm, officers should contact a supervisor or the Property
Control Unit for clarification.” Id. ¶
the parties disagree about all of the steps Wellman took to
try to get his firearms back, Wellman admits he knew about
the requirements of the Special Order but refused to comply
because he believes the policy is
unconstitutional. Rather than providing the police
department with a letter from a psychologist or psychiatrist
stating he is not a danger to himself or ...