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Clark v. Clark

United States District Court, E.D. Missouri, Southeastern Division

January 23, 2018

GREGORY CLARK, Plaintiff,
v.
AUSTIN CLARK, Deputy, in his individual capacity only, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This action, brought by Plaintiff Gregory Clark under 42 U.S.C. § 1983 against Defendant Austin Clark in his individual capacity as deputy sheriff of Ste. Genevieve County, Missouri, is before the Court on Defendant's motion for summary judgment. Although this is a close case in some respects, for the reasons set forth below, the motion will be granted as to all claims.

         BACKGROUND

         The record establishes the following for purposes of the motion before the Court. In the early afternoon of January 25, 2016, a 911 call was received by the Ste. Genevieve County Sheriff's Department from the Bloomsdale Elementary School about gunshots fired near the school coming from the area of a nearby highway rest stop or adjacent woods. Defendant and Detective Mathew Ballew were driving in the vicinity of the rest stop when the police dispatcher radioed them to investigate the complaint. Specifically, they were advised, “There is a report of shots fired near the rest stop, possibly in the wooded area between the rest stop and the elementary school.”

         The officers drove to the rest stop, arriving there four to ten minutes after receiving the call. They parked, and saw three vehicles and one person in the parking area. The person was Plaintiff, who is African-American. He was seated at a picnic table near his pick-up truck at the end of the parking area that was near the woodland. The officers approached Plaintiff and asked him if he had heard any shots, and Plaintiff responded that he had not. Plaintiff told the officers that he was armed, and immediately gave the officers, without being asked, his concealed carry permit, his driver's license, and his military identification card. He told the officers that he was on his way from Memphis to Chicago.

         Defendant “ran” Plaintiff's identification, that is, he called the information in to the Sheriff's Department to check for warrants or criminal history, and was told that Plaintiff was “clean.” This process took one to two minutes. Plaintiff asked Defendant why he had “run” him and Defendant responded that his boss liked to know to whom he was talking. Plaintiff said words to the effect of, “If I were someone else you wouldn't have run me, ” and testified that Defendant responded, in an angry tone, “Don't pull the race card on me.”

         Defendant and Ballew walked away to the building in the rest area that contained a rest room. When the officers were walking to the building, Plaintiff went to the back of his vehicle, got out a bottle of water, got into the vehicle, took his weapon off his side and placed it in the center console. He then drove out of the rest area onto the highway heading north. The officers testified that they believed Plaintiff left to avoid further questioning. They returned to their car and followed Plaintiff, driving close behind him. Defendant testified by deposition that he observed Plaintiff moving about in the front seat of the pick-up, for a “long duration, ” moving toward the passenger seat and center console. ECF No. 42-2 at 28-29. Although Plaintiff does not deny that he was moving in his truck, he maintains that his back window was tinted, such that Defendant could not have observed this. In support, Plaintiff submits a photograph of the back window of the pick-up. The Court is unable to discern from the photograph whether someone driving behind the pick-up would have been able to observe movement in the front seat. But the Court does rely on this disputed fact in reaching its determination below.

         Approximately two miles north of the rest area, Plaintiff exited and crossed over the highway, and reentered the highway travelling south. Plaintiff testified that he did so to avoid the police. Defendant called for other officers in marked patrol cars to come and pull Plaintiff over. After driving about 19 miles, with Defendant and Ballew following him, Plaintiff neared an exit where other police cars were positioned. Plaintiff testified as follows: “I decided to pull over once I seen there were several police cars all over the area, I decided to pull over on my own. No one pulled me over.” ECF No. 42-1 at 22. Upon pulling over, Plaintiff parked his pick-up truck on the exit ramp and put both his hands out the window of his vehicle.

         Defendant and about four other officers approached Plaintiff's truck with guns drawn, and told him to get out of the vehicle. Plaintiff did so. Defendant's body cam recording shows that as he was approaching Plaintiff's vehicle, Defendant's gun was in a “low ready” position, but as he got closer, he raised his arm so that the gun was pointed at Plaintiff. Defendant and/or other officers searched Plaintiff and ordered him to stand away from his vehicle. Plaintiff testified that after he was patted down, Defendant “immediately grabbed the keys” from Plaintiff's vehicle, went to the back of the truck, opened the tailgate, and started searching the back of the truck. EFC No. 42-1 at 25. Defendant asked Plaintiff where his gun was located. Plaintiff stated that it was in the console, and Defendant found it there. Defendant's bodycam recording reflects that Defendant asked Plaintiff how many rounds he had in his gun and Plaintiff responded that he didn't know as he had not fired the gun in years. Defendant determined that Plaintiff's gun was missing two bullets. When asked about the two missing bullets, Plaintiff said he couldn't explain it, and repeated that he had not fired the gun in several years.

         Defendant asserts that he did not search the cargo area of the pick-up, and relies on footage from his bodycam recording to support this assertion. Based on its viewing of the recording, the Court concludes that it refutes Plaintiff's rendition of the facts on this matter-the recording shows the happenings during the time frame in which Plaintiff alleges Defendant searched the cargo area, and it does not depict such a search by Defendant, or any other officer, then, or at any other time.

         A deputy at the scene called the gun's serial number into dispatch and a report came back that the gun was stolen. Plaintiff explained to the officers that he had reported the gun as stolen when he had left the military and it was lost in transit, but the gun was found a few days later and he filed a follow-up report. Plaintiff was then handcuffed on Defendant's orders. Defendant and Ballew left the scene, and a few minutes later, the other officers at the scene received confirmation that the gun had been reported as found, and that it did belong to Plaintiff. At some point, an officer smelled Plaintiff's gun and determined it had not been shot recently. Plaintiff was released. Approximately 20 minutes elapsed from when Plaintiff was patted down until he was released. According to Plaintiff, when he got back in his vehicle, he drove a few miles to a gas station, and there checked his gun and determined that there were two bullets less in the gun than had been there at the beginning of the incident.

         In his seven-count amended complaint, Plaintiff asserts claims for unconstitutional seizure in detaining Plaintiff at the rest stop while running an identification check on him, in that Plaintiff was not free to leave because Defendant had Plaintiff's permit, license, and identification card (Count I); unconstitutional seizure at the highway exit ramp (Count II); excessive use of force in approaching Plaintiff with a drawn gun at the exit ramp (Count III)[1]; unconstitutional search of the cargo area of Plaintiff's vehicle at the exit ramp (Count IV); and theft of two bullets, in violation of Plaintiff's substantive due process rights (Count V). Plaintiff also asserts an equal protection claim, alleging that Defendant's first detention of Plaintiff at the rest area, which led to the subsequent events, was based on Plaintiff's race (Count VI); and a First Amendment free speech claim, alleging that Defendant called for additional police cars, detained Plaintiff at the exit ramp, used excessive force, conducted the cargo area search, and stole the bullets all because Plaintiff suggested at the rest stop that Defendant would not have detained someone who was not African-American (Count VII). In each count, Plaintiff seeks compensatory and punitive damages.

         ARGUMENTS OF THE PARTIES

         In support of his motion for summary judgment, Defendant argues that he is entitled to qualified immunity on all counts. More specifically, he argues that his conduct was objectively reasonable under the circumstances when he ran Plaintiff's identification information at the rest stop. Defendant maintains that Plaintiff was “the author of his own detention” by voluntarily giving Defendant the permit, license, and identification that rendered him unfree to leave. Defendant argues that, moreover, Defendant had objectively reasonable grounds to detain Plaintiff for the one minute it took to run the identification information because “Plaintiff's conduct created reasonable suspicion that Plaintiff could have or was about to commit a crime” in light of the “shots fired” dispatch moments earlier. ECF No. 42 at 9. Thus, according to Defendant, the encounter at the rest area was a permissible investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968).

         Defendant argues that the totality of circumstances provided him not only reasonable suspicion, but also probable cause that Plaintiff was involved in the reported shots fired, thereby justifying the detainment on the exit ramp. Defendant points to the facts that Plaintiff was the only person visibly present at the rest stop when Defendant and Ballew arrived to investigate the shots fired call, Plaintiff was armed, he was defensive about his information being run, he immediately left the rest stop when the deputies walked away to continue the investigation, he appeared to be moving something in the passenger seat or center console as he was driving, and he changed directions on the highway.

         Defendant next argues that he is entitled to qualified immunity with respect to the excessive force claim, as approaching Plaintiff's vehicle with his gun drawn was objectively reasonable under the circumstances. With respect to Plaintiff's remaining claims, Defendant argues that his bodcam recording shows that he did not search the cargo area of Plaintiff truck, and in any event, probable cause existed for this search; the theft of two bullets, even if true, does not state a substantive due process claim, which requires conscience-shocking conduct; and Plaintiff has failed to provide any evidence showing a discriminatory purpose in Defendant's conduct, or that ...


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