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Z.J. v. Kansas City

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

September 29, 2017

Z.J. a minor, by and through her next friend Je'taun Jones, Plaintiff,
v.
KANSAS CITY, MISSOURI BOARD OF POLICE COMMISSIONERS, et. al. Defendants.

          ORDER

          Fernando J. Gaitan, Jr., United States District Judge.

         Currently pending before the court is Defendants' Motion to Exclude Plaintiff's Experts Chuck Drago (Doc. # 126), John Nixon (Doc. # 127) and Kurt Krueger (Doc. # 128). Also pending before the Court are three motions for summary judgment - one filed by the Board of Police Commissioners (Doc. # 143), the Detectives (Doc. # 145) and the TAC Officers (Doc. # 147).

         I. FINDINGS OF FACT[1]

         Plaintiff Z. J. a minor child, by and through her next friend Je'taun Jones, brought suit against Kansas City, Missouri Board of Police Commissioners members Alvin Brooks, Michael Rader, Angela Wasson-Hunt, Sylvester James, Leland Shurin and officers Jason Rusley, Michael Jones, Barbara Eckert, Caleb Lenz, William Nauyok, Eric Enderlin, Charles Evans, Robert Jorgeonsen, Venasa Ray, and Robert McLaughlin asserting a claim for excessive force in violation of the Fourth and Fourteenth Amendments and a claim for deliberately indifferent policies, practices, customs, training, and supervision in violation of the Fourth and Fourteenth Amendments.

         On October 29, 2010, Nina Whitney was brutally murdered. Ms. Whitney had been stabbed, strangled and appeared to have been sexually assaulted. Sgt. Barbara Eckert's homicide squad including Detectives Ray and Jones were assigned to investigate the Whitney murder. In investigating the murder, it was discovered that Whitney's cell phone was missing from her house. Detectives contacted the phone company to track down the phone and to retrieve call records for the time period after Whitney was murdered. On October 30, 2010, at approximately 01:50 a.m. from using GPS technology, the detectives learned that Whitney's cell phone was located within an 80 meter radius of the area of 118th and Winchester. The eastern edge of that radius was Bristol Avenue. Bristol Avenue is the street immediately east of Winchester. Sgt. Eckert determined that this area was approximately eight blocks due east of Whitney's house. Sgt. Eckert went to that location and walked to the north end of the perimeter. Another Detective called the victim's cell phone. Sgt. Eckert heard the phone ringing while she was standing between two Gatehouse Apartment buildings, 11707 Winchester and 11708 Winchester, at least four times. Sgt. Eckert realized that the phone was located inside one of the two buildings. On October 30, 2010 at approximately 1:30 a.m. Detective Michael Jones and Sgt. Eckert, with other officers recorded the vehicles that were parked off of 117th to 118th and Winchester. No parked vehicles were considered or recorded on Bristol Avenue. Sometime after the murder, someone used the Whitney's phone to call the residence of 11812 Bristol Avenue in Kansas City. In the ALERT system[2], the address responded to Lee A. Charles. Later in the evening of October 30, 2010, someone used the victim's cell phone to call a Family Dollar Store on Blue Ridge Boulevard. Lee Charles was employed at that store. Accordingly to the employer, Lee Charles' address was 11812 Bristol Avenue. Later on the night of October 30, 2010, GPS showed the phone to be in the vicinity of 71 Highway and Main Street in Grandview. Detectives called the phone, it was answered, but no one spoke. However, it sounded like the sounds of a restaurant and a kitchen in the background. Lee Charles worked at a Popeye's Chicken restaurant near 71 Highway and Main Street in Grandview. Based on this information, Detectives issued a “pick up” for Lee Charles. Before obtaining the search warrant, the Detectives did not go to the residence to see if Lee Charles still lived at 11812 Bristol nor did they conduct any surveillance of that address.

         Application for Search Warrant

         On November 3, 2010, Detective Mike Jones applied for a search warrant for 11812 Bristol Avenue, Kansas City, Missouri. Detective Jones obtained information from a computer record check that Lee Charles had lived at that address at one time. However, the only evidence that Detective Jones had for the location of the phone was that it was located in either 11707 or 11708 Winchester and not in the plaintiff's residence at 11812 Bristol. When applying for the search warrant, Detective Jones did not disclose that the GPS had originally tracked the phone to the area of 118th & Winchester, but instead swore that it was traced to the area of 118th & Bristol. Detective Jones knew the only cell phone location evidence showed the phone was not at the Jones' home on Bristol and 118th, but instead was between two apartment buildings on Winchester. Detective Jones stated in his sworn application for a search warrant for 11812 Bristol, “It is reasonable to believe that the person who has possession of the victim's missing cell phone within hours of her death could be involved in the homicide.” Detective Jones failed to disclose to Judge Gillis in obtaining the search warrant for 11812 Bristol, that on October 30, 2010 in the early morning hours, GPS led the detectives to an area between 11707 Winchester and 11708 Winchester, two Gatehouse Apartments & Townhome buildings. When the number was dialed, detectives heard it ringing at least four times in one of the buildings. On November 3, 2010, at 3:00 p.m. Judge Gillis issued a warrant to search 11812 Bristol Avenue for items connected to the Whitney homicide. The warrant authorized detectives to search the residence for cell phones, cell phone chargers, clothing and shoes with blood, knives with trace evidence, items that could be used for strangulation, and a set of keys described by the victim's family. Detective Jones knew at the time that the warrant was executed that Lee Charles was not in the house.

         Arrest of Lee Charles

         Thirty-seven minutes after the warrant was issued, at 3:37 p.m. Lee Charles was arrested by Officer Lantz. Defendant Eckert was contacted to sign the Investigation Arrest Approval Form for Lee Charles.

         Briefing of Tactical Response Team by Homicide Detectives

         Detective Mike Jones contacted the SWAT Team to provide entry and secure the premises so that Detectives could execute the search warrant. Detective Jones contacted Sgt. Rusley at approximately 6:00 p.m. on November 3, 2010. The SWAT Team obtains information from the investigative team that helps determine how to execute the warrant and clear the residence. At approximately 6:15 p.m. Sgt. Rusley conducted a briefing with members of the homicide squad and the SWAT Team. Sgt. Rusley's team consisted of six members, other than himself: Charles Evans, Robert Jorgeonsen, William Nauyok, Erik Enderlin, Caleb Lenz and Robbie McLaughlin. All police officer defendants attended this briefing. Available information that should be included in these briefings are descriptions, assignments, instructions that may affect the execution, photographs of the exterior of the structure, area diagrams and any problem areas. Homicide is responsible for providing the TAC officers the information in regards to the investigation and giving them information so that they can effectively execute the warrant. Detectives revealed to the SWAT Team that the murder suspect (Lee Charles) was already in custody. Sgt. Eckert did not know if there was anyone in the home before the warrant was executed. Neither Detective Jones nor Eckert were aware of any surveillance done of the home before the warrant was executed. Sgt. Rusley did not know at the time of executing the warrant, how many people were in the home or if any of them had a record of violence. Sgt. Rusley was not provided any information regarding surveillance of the area nor did he have a floor plan of the home. After the briefing, Sgt. Rusley, Detective Ray and Officer Enderlin and Officer Evans conducted a drive-by of the 11812 Bristol Avenue. Detectives waited approximately a block away, while the TAC team secured the residence.

         Execution of the Search Warrant

         The warrant required the officers to knock and announce prior to any forced entry of the home. At approximately 7:00 p.m., three and half hours after Lee Charles had been arrested and 45 minutes after being given notice of the warrant, the search warrant was executed by the TAC team. Officer Evans testified that he knocked and announced “Police, search warrant!” When the search warrant was executed, there were four occupants of the home: the plaintiff, two year old Z.J., twenty-four year old Carla Brown (Z.J.'s cousin and caretaker) Z.J's eighty-four year old grandmother, Laverne Charles and sixty-eight year old Leona Smith, who was caring for Mrs. Charles upstairs.

         The house had two doors, an outer metal storm door and inner wooden door. Both doors had double key locks and could be unlocked from the inside of the home only by a key. Both doors were locked at the time of the execution of the warrant. Carla Brown heard dogs barking the front door and went to investigate. Ms. Brown testified that she did not hear the officers knock and announce that they had a warrant. She unlocked and opened the inner wooden door. When she opened the door, she was confronted by the seven member TAC team, wearing full tactical gear and bearing weapons attempting to gain entry into the house. It is disputed whether Ms. Brown jingled or showed the keys in her hand to signify that the officers did not need to break the door. It is also disputed whether she took a few steps back retreating from the door out of the sight of the officers. Two of the TAC officers in statements stated that Brown “waived a set of keys” at the TAC officers after opening the inner door. Other officers however deny that Brown held up any keys. Another officer stated that Brown had initially turned around and walked away, but after being commanded to open the door, was “coming back toward” them when they broke down the door and deployed the flash bang grenade (“FBG”). Instead of waiting for Ms. Brown to open the door, the TAC team knocked out an upper piece of the outer storm door and then threw a FBG into the opening in the door. The FBG was thrown over Carla Brown's head and into the living room. Carla Brown screamed, grabbed her ears and dropped to the floor. Plaintiff Z.J. was first seen by Officer Evans in the main floor living room, at the bottom of the stairs going up. She was upset and by herself. When the FBG exploded, it ignited the curtains in the living room. After the TAC Team entered the home, the only occupants located were the four females. No one was found to be a threat to the officers' safety or armed with any guns or any weapons.

         Officers placed Carla Brown and Leona Smith in handcuffs outside the residence. The officers were unable to put hand cuffs on Laverne Charles failed due to her advanced age and physical limitations. Carla Brown told officers that Lee Charles had been “kicked out” of the residence. Lavern Charles advised officers that Lee Charles had not lived at the residence for over a year and did not have any property at the house. He had been at the house on October 30, 2010 to wash his clothes. Carla Brown advised officers that Lee Charles was living in an apartment around the corner with Ricky Cauthen. Carla Brown obtained the phone number from the caller ID and gave it to Sgt. Eckert. Due to the information they received about Lee Charles not residing at the residence, the house was not searched at all by the Detectives and no property was seized.

         Flash Bang Grenades

         The particular device that was thrown into the plaintiff's home was a Defense Technology Multi-Port-Plus Diversionary Device (“MPPDD”). The characteristics of this device are: (1) Sound 175 decibels at 5 feet; (2) Flash 6 to 8 million candela for 10 milliseconds; and (3) heat (4, 940 F to 5, 660 F). The MPPDD is four times louder than a 12 gauge shotgun, 107 times brighter than a car's high beam headlight and burns at twice the temperature of molten steel. Due to the inclusion of magnesium powder in the FBG's, some of the light generated is in the ultraviolet range. This is known to cause damage to the human retina. The hazards of FBGs include injury to sight and hearing with the possibility of psychological injury. FBGs can break glass, windows, cause items to ignite and blow holes in walls. In the 1000 search warrants executed by Sgt. Rusley, a FBG is deployed one-half of the time. In the several hundred search warrants executed by Officer Lenz, an FBG was deployed 75% of the time if the home was occupied. In the 175 to 245 search warrants executed by Officer Evans, a FBG was deployed 70 - 80% of the time. FBGs are known to have caused injury and death.

         No Official Board Policy re: Flash Bang Grenades

         The Board does not have an official policy regarding the use of FBGs in the execution of search warrants. The Kansas City, Missouri Police Department State Search Warrant Procedures are silent regarding the use of FBGs during the execution of search warrants. The KCMPD State Search Warrant Procedures do not require that officers consider and account for the safety of innocent persons occupying the home being searched and instead require officers to consider “innocent members of the public” outside the home being searched. TAC Officers were trained in how to use FBGs, but not when it was constitutional to do so. The Board was a named defendant in a lawsuit where the plaintiff alleged that an FBG was thrown at him without warning. The frequency in which the TAC Team deploys FBGs gives the Board constructive knowledge that the constitutional rights of citizens have been infringed. In the search warrants executed by Officer Nauyok, FBGs are always deployed. In the 1000 search warrants executed by Sgt. Rusley, an FBG was deployed half of the time. In the several hundred search warrants executed by Officer Lenz, a FBG is deployed fifty percent of the time. In the 175 to 245 search warrants executed by Officer Evans, a FBG was deployed 70 to 80% of the time.

         Location of Whitney's Cell Phone

         Fifty minutes after the search warrant was executed at 11812 Briston, Detectives went to 11708 Winchester, without a uniformed officer or the TAC Team and obtained a consent to search from Donald Dotson. The Detectives retrieved Whitney's grey bar type Nokia cell phone and spoke with Ricky Cauthen and Donald Dotson. The address 11708 Winchester was one of the two buildings where Sgt. Eckert had previously heard the cell phone ring four days before the search.

         Search of Jeffrey Moreland's Home

         Lee Charles was released from custody after being held for twenty-four hours and was ultimately found not to be involved in Whitney's murder. On July 6, 2011, the Kansas City Regional Crime Lab advised that a DNA sample recovered from Jeffrey Moreland, a former Grandview Police Officer, was tested and matched DNA recovered from Whitney's body on October 29, 2010. Due to the DNA match, a search warrant was served on Moreland's residence at 2904 Twin Pines Drive in Harrisonville, Missouri. Before Moreland's home was searched on July 7, 2011, a call was placed to a family member who provided the garage code. On July 7, 2011, Sgt. Eckert with a uniformed officer and two Detectives entered Moreland's residence through the garage using the code and searched the residence.

         Damages

         The Jones' residence at 11812 Bristol suffered damage. Additionally, a physician has confirmed that plaintiff Z.J. has experienced significant regression in social, emotional, communication and behavior milestones after this incident and has post-traumatic stress disorder.

         II. STANDARD

         A moving party is entitled to summary judgment on a claim only if there is a showing that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party meets this requirement, the burden shifts to the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court emphasized that the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts” in order to establish a genuine issue of fact sufficient to warrant trial. In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).

         III. DISCUSSION

         A. TAC Team's Motion for Summary Judgment

         The TAC officers move for summary judgment on plaintiff's claims against them arguing they are entitled to qualified immunity. The TAC officers argue that the manner in which the search warrant was executed, including the use of the FBG was reasonable. The TAC Officers also argued that even if they violated the Fourth Amendment, it was not clearly established at the time that using a FBG was unreasonable.

         1. Qualified Immunity - Two- Part Test

We apply a two-part test to determine the applicability of qualified immunity. Clayborn v. Struebing, 734 F.3d 807, 809 (8th Cir.2013). “First, ‘whether the facts alleged, construed in the light most favorable to [plaintiff], establish a violation of a constitutional or statutory right, ' and second, ‘whether that right was clearly established at the time of the alleged violation, such that a reasonable [officer] would have known that [the] actions were unlawful.'” Id. (quoting Kell v. Triveline, 661 F.3d 981, 985 (8th Cir.2011)).

Hosea v. City of St. Paul, 867 F.3d 949, 955 (8th Cir. 2017). Courts have discretion to decide which of the two prongs of the test should be addressed first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). “Although qualified immunity is an affirmative defense, the burden is on the plaintiff to plead, and, if presented with a properly supported motion for summary judgment, to present evidence from which a reasonable jury could find that the defendant officer has violated the plaintiff's constitutional rights.” Moore v. Indehar, 514 F.3d 756, 764 (8thCir.2008)(citations omitted).

         2. Violation of a Constitutional Right

         Plaintiff alleges that at the time of the search, she had a clearly established constitutional right under the Fourth Amendment to be secure in her person from unreasonable search through excessive force.

Force is constitutionally excessive if it is objectively unreasonable. . . .Determining whether the force used was objectively unreasonable requires balancing of the individual's Fourth Amendment interests against the relevant government interests. . . .The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. . . .We thus allo[w] for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation. . . .And we assess the amount of force used from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Hosea, 867 F.3d at 957 (internal citations and quotations omitted). The Court in Hosea continued, “We pay ‘careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.' Graham [v. Connor], 490 U.S. at 396, 109 S.Ct. 1865; see also Malone v. Hinman, 847 F.3d 949, 952-53 (8th Cir.2017), petition for cert filed, (U.S. July 17, 2017)(No. 17-80)(noting the Graham factors).” “Moreover, it is clearly established that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public.” Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir.2009). “People do not automatically lose their right to be free from explosive devices being thrown into their houses simply because there is a valid and outstanding search warrant with respect to the property. The use of a stun grenade must be justified by the particular risk posed in execution of the warrant.” Terebesi v. Torreso, 764 F.3d 217, 239 (2d Cir. 2014), cert. denied, 135 S.Ct. 1842 (2015).

         Forty-five minutes before they executed the search warrant, the TAC officers attended a briefing. At the briefing, the officers were informed that that murder suspect who was believed to be living at 11812 Bristol, was already in custody. Sgt. Eckert did not know how many people lived in the home or even if the home was occupied or if any of the residents might have a record of violence. No surveillance had been done of the home before the warrant was executed. The TAC Officers did not have a diagram or floor plan of the house or even any photos of the residence. A brief drive-by of the house was conducted by Sgt. Rusley, Detective Ray and Officers Enderlin and Evans shortly before executing the warrant. The search warrant authorized the officers to search and seize: cell phones, cell phone chargers, clothing or shoes with blood, knives with trace evidence, items that could be ...


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