United States District Court, W.D. Missouri, Western Division
Z.J. a minor, by and through her next friend Je'taun Jones, Plaintiff,
KANSAS CITY, MISSOURI BOARD OF POLICE COMMISSIONERS, et. al. Defendants.
Fernando J. Gaitan, Jr., United States District Judge.
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).
FINDINGS OF FACT
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
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, 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
for Search Warrant
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.
of Lee Charles
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
of Tactical Response Team by Homicide Detectives
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.
of the Search Warrant
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.
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
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.
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.
Official Board Policy re: Flash Bang Grenades
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.
of Whitney's Cell Phone
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.
of Jeffrey Moreland's Home
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.
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.
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).
TAC Team's Motion for Summary Judgment
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.
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).
Violation of a Constitutional Right
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
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).
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 ...