Opinion
8:00CV515.
March 12, 2002
MEMORANDUM AND ORDER
I. Introduction
Before me are 1) defendant City of Omaha's motion, Filing No. 52, to dismiss the plaintiff's first cause of action in the amended complaint, Filing No. 44; and 2) defendant Patrick McCaslin's motion, Filing No. 34, for summary judgment on plaintiff's second and third causes of action in the amended complaint. Defendant McCaslin's motion for summary judgment is supported by an index of evidence, Filing No. 35. The plaintiff submitted a brief opposing the motion for summary judgment and filed an index of evidence, Filing No. 42. After reviewing the record, the parties' briefs and indexes of evidence, and the applicable law, I conclude that 1) the defendant City of Omaha's motion to dismiss the plaintiff's first cause of action in the amended complaint is granted, and 2) defendant McCaslin's motion for summary judgment on the plaintiff's second and third causes of action in the amended complaint is granted.
II. Background
The parties do not dispute the key facts. The plaintiff, Michael Jefferson, is African-American. He seeks damages under federal and state law for an incident in which Patrick McCaslin, a sergeant with the City of Omaha Police Department (OPD), allegedly caused a subordinate officer to arrest Jefferson at his home without probable cause.
Jefferson drove a red pickup truck when delivering newspapers as an independent contractor for the Omaha World-Herald. Filing No. 44, Amended Complaint at 3, ¶¶ 11, 12 ("Amended Complaint"). On October 25, 1999, Jefferson delivered papers in the Eagle Run neighborhood in Omaha from around 4:15 p.m. until 5:00 p.m., then returned to his home around 5:30 p.m. Id. at 3, ¶¶ 13, 14.
Also on October 25, 1999, OPD Officer Reginald Gunter interviewed Matthew Frost, a nine-year-old boy living in the Eagle Run area, who alleged that a black man driving a red pick-up with license plate number 1-49109 had asked him and his friend Ted Elliott if they wanted a ride home. Frost told Gunter that the man was the area newspaper carrier. Gunter verified the story with Ted Elliott. Filing No. 35, Gunter Aff. at 1-2, ¶¶ 3, 5. Gunter's check revealed that the plaintiff was the registered owner of the pick-up. Id. at 2, ¶ 6.
Gunter then went to the plaintiff's home. The plaintiff agreed to speak with Gunter and invited him inside. Gunter told the plaintiff that two boys from the Eagle Run neighborhood alleged that the plaintiff had tried to entice them into his truck. Id., ¶ 7. The plaintiff told Gunter that he had spoken with two white boys that afternoon while delivering newspapers, but he denied having offered them a ride. Id. at 3. The plaintiff testified that the boys said he looked like the man they had heard about at school and on the news. Filing No. 42, Jefferson Dep., 33:14-35:25. Upon hearing this, Gunter assumed that the boys were referring to a man mentioned in a letter from the principal of the boys' school warning parents about reports of an unidentified black man driving a red pick-up truck who was attempting to lure children into his truck. Filing No. 35, Gunter Aff. at 3, ¶ 7; McCaslin Aff. at 2-3, ¶ 4, Ex. A.
Following his interview with the plaintiff, Gunter consulted with his superior, defendant McCaslin. At the time, McCaslin was a sergeant with the OPD Child Victim Sexual Abuse Unit. Id., McCaslin Aff. at 1, ¶ 1. McCaslin instructed Gunter to cite the plaintiff on two counts of enticement pursuant to Omaha Municipal Code § 20-83. Id., Gunter Aff. at 3, ¶ 7; McCaslin Aff. at 3, ¶ 5. The plaintiff followed Gunter to his cruiser, where Gunter fingerprinted the plaintiff and wrote out the citations. The plaintiff was never taken into physical custody or asked to come to police headquarters.
The next day, McCaslin himself interviewed the two boys and their parents. The boys assured McCaslin that they had told the truth about the incident. Id., McCaslin Aff. at 3, ¶ 6. However, around 8:30 p.m., Ted Elliott's mother telephoned McCaslin to tell him that Ted had announced that he had fabricated the story. McCaslin talked to Ted, who admitted that the plaintiff had not offered the boys a ride in his truck. Ted said he told his story to Matthew Frost as a joke, and Matthew had played along. McCaslin then called Matthew Frost's mother and related what had happened. Matthew's father called McCaslin back a short time later to tell McCaslin that Matthew had admitted that he had not even seen the plaintiff the previous day. Id. at 4, ¶ 7.
McCaslin then immediately contacted OPD's Information Officer and instructed her to fax a release to the news media stating that the boys had recanted. When notified that the boys had recanted, McCaslin's commanding officer immediately voided the citations issued to the plaintiff. The citations had not been entered into OPD's database, so no record of them appears on the plaintiff's record. Id., ¶ 8.
The plaintiff brought suit against the City and against McCaslin in both his individual and official capacity and as an OPD "policy maker." Amended Complaint at 2, ¶¶ 7, 8. The plaintiff's complaint states that the action is filed pursuant to 42 U.S.C. § 1983, id. at 1, ¶ 2, and also identifies three other causes of action: a claim under the Nebraska Political Subdivisions Tort Claims Act, id. at 2-4, ¶¶ 10-24; a claim under the Fourth Amendment for a civil rights violation, id. at 4, ¶¶ 25-27; and a claim for a Fourteenth Amendment equal protection violation, id. at 5, ¶¶ 28-30. The plaintiff seeks back pay and benefits lost as a result of the defendants' allegedly illegal acts, compensatory and punitive damages, and costs and attorney's fees. Id. at 5.
In their answers, McCaslin and the City affirmatively allege that 1) McCaslin himself neither arrested nor cited the plaintiff; 2) the citations were issued in good faith and with probable cause; 3) the charges against the defendant were canceled the next day when the two boys recanted; and 4) the second and third causes of action fail to state claims for relief. Filing No. 51, McCaslin's Answer at 2, ¶ 7; Filing No. 53, City's Answer at 2, ¶ 7. In addition, McCaslin affirmatively alleges that he acted in good faith and is entitled to qualified immunity. Filing No. 51, McCaslin's Answer at 2, ¶ 7.
In a prior order, I dismissed all claims against OPD and dismissed the Political Subdivisions Tort Claims Act cause of action against defendant McCaslin brought under the Nebraska law. See Filing No. 43. The City also now seeks dismissal of the plaintiff's state Tort Claims Act cause of action. McCaslin, for his part, now seeks summary judgment on all remaining claims against him.
III. Discussion A. City's Motion to Dismiss
In my prior order, I dismissed the state Tort Claims Act cause of action against McCaslin. I found that Nebraska has not abrogated its immunity to a claim for false arrest, much less a claim for "negligent" false arrest. The plaintiff nevertheless reasserted the state Tort Claims Act in the amended complaint. For the reasons stated in my prior order, Filing No. 43, the plaintiff's first cause of action brought under the Nebraska Political Subdivisions Tort Claims Act is dismissed as to all defendants.
B. McCaslin's Motion for Summary Judgment
On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(C); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). McCaslin raises three grounds for summary judgment.
1. Fourth Amendment. McCaslin contends that he is entitled to summary judgment on the plaintiff's second cause of action alleging a Fourth Amendment violation because probable cause existed to cite the plaintiff for violation of the enticement ordinance, Omaha, Neb., Muni. Code § 20-93 (1980). In a section 1983 action, the question of probable cause is for the jury if the facts are disputed or subject to different inferences; the question is for the court, however, if the facts are undisputed or susceptible to only one reasonable inference. Linn v. Garcia, 531 F.2d 855, 861 (8th Cir. 1976).
The ordinance makes it "unlawful for any person to lure to any place or take away or attempt to lure to any place or attempt to take away to any place any child under 16 years of age with the intent to physically abuse or take indecent liberties with such child." Omaha, Neb., Muni. Code § 20-93 (1980).
Probable cause exists if "the totality of facts based on reasonably trustworthy information would justify a prudent person in believing the individual arrested had committed . . . an offense" at the time of the arrest. Hannah v. City of Overland, 795 F.2d 1385, 1389 (8th Cir. 1986) (quoting United States v. Wallraff, 705 F.2d 980, 990 (8th Cir. 1983)). Probability not concrete proof of criminal activity is the standard. Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000). "Probable cause is to be determined upon the objective facts available to the officers at the time of the arrest." Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996).
Here, McCaslin contends that his decision to have Gunter issue citations to the plaintiff was based on reasonably trustworthy information that meets the probable cause standard. The two children specifically identified the man who had offered them a ride as the man who delivered newspapers in their neighborhood, described the truck, and gave the truck's license plate number. The boys' mothers told Gunter that the boys were generally trustworthy. Gunter verified the truck's registration before he went to the plaintiff's home to discuss the children's allegations. During that initial consensual conversation, the plaintiff admitted to Gunter that he had been in the boys' neighborhood and that while delivering papers that afternoon, he had encountered two white boys who said he looked like the man who had been trying to lure children into his truck with candy. Further, McCaslin was aware of a prior report of a black man in a red truck who had attempted to entice a child in the same area. McCaslin contends under these circumstances, any reasonable police officer could have concluded that probable cause existed to cite the plaintiff under the enticement ordinance. He and Gunter had no reason to suspect at the time of the citations that the boys had fabricated their story and no reason to discount the prior report of a similar attempted enticement. See Brodnicki v. City of Omaha, 75 F.3d at 1264-65 (finding, on similar facts, that "a reasonable police officer could conclude that probable cause existed to arrest" the section 1983 plaintiff).
The plaintiff counters that none of the exigent circumstances permitting a warrantless misdemeanor arrest applied in the plaintiff's situation. See Neb. Rev. Stat. § 29-404.02. Further, the plaintiff contends that the officers' investigation was not thorough enough to create sufficient probable cause for the citations. See, e.g., Brodnicki v. City of Omaha, 75 F.3d at 1263. In Brodnicki, the Eighth Circuit determined that Omaha police officers, including defendant McCaslin, had probable cause to arrest a suspect for attempted kidnapping. Officers brought a child claiming near-abduction to the suspect's home for a show-up in his front yard, searched the suspect's car and found items similar to those the child had described, and questioned the suspect at police headquarters about his lack of an alibi. The plaintiff complains that none of these procedures were used in his case, and that if they had been, officers would have discovered they lacked probable cause.
Under Nebraska law, an officer may arrest a person without a warrant on a misdemeanor offense if the person commits the offense in the officer's presence or if officer has reasonable cause to believe the person might flee, injure himself or others or damage property, or destroy or conceal evidence. Neb. Rev. Stat. § 29-404.02.
In the same vein, the plaintiff argues that had the officers followed their own procedure for investigating enticement allegations, they would have discovered the boys' falsehoods before issuing citations to the plaintiff. McCaslin testified in his deposition, for instance, that a non-uniformed officer generally interviews children in enticement cases at a place called Project Harmony before a citation issues or an arrest is made. Filing No. 42, Ex. 3, McCaslin Dep., 28:7-30:10. On October 25, however, McCaslin had no detectives available to interview the boys at Project Harmony or the plaintiff at police headquarters, so after hearing Gunter's account, he directed Gunter to cite the plaintiff. Id., 30:11-34:5.
Since the parties' accounts of events do not differ in any material way, the probable cause issue is thus a legal issue for the court to resolve. See Linn v. Garcia, 531 F.2d at 861. I find that given the totality of the circumstances existing at the time Gunter cited the plaintiff, the officers did not have sufficient probable cause to believe that the plaintiff had violated the enticement ordinance.
It is true that the boys gave the correct license plate number of the plaintiff's truck and that they also specifically identified the driver of the truck as the man who delivered newspapers in their neighborhood. Further, the plaintiff admitted that he had encountered two boys that afternoon on his route. The boys, however, were never interviewed according to the regular investigative protocol for enticement cases.
An officer experienced in enticement cases should have interviewed the boys before citing the plaintiff. McCaslin's decision to cite the plaintiff was therefore premature. The statute clearly provides that officers may issue citations only in limited circumstances, none of which were present here. The plaintiff was not a flight risk, nor had Gunter witnessed the alleged enticement. Thus, McCaslin and Gunter had insufficient probable cause to cite the plaintiff until an officer had interviewed the boys according to the investigative protocol.
However, before McCaslin can be held personally responsible for any Fourth Amendment violation, the court must determine whether qualified immunity exists. McCaslin's qualified immunity argument is discussed below.
2. Equal Protection. McCaslin contends that he is entitled to summary judgment on the plaintiff's equal protection claim in which the plaintiff alleges that the defendants' actions were based on the plaintiff's race. Amended Complaint at 5, ¶ 29. McCaslin argues that he did not decide to cite the plaintiff on the basis of the plaintiff's race, but because "a number of other characteristics of the described suspect all pointed to [the plaintiff] with greater specificity than his race and that identification of Plaintiff turned out to be correct." Defendants' Brief at 18.
The plaintiff nevertheless argues that the officers' failure to follow their usual investigative procedures "resulted in unequal enforcement" of those procedures and that the "lack of enforcement was motivated by the very purpose of discrimination." Plaintiff's Brief at 14. The plaintiff claims that because he is African-American, McCaslin failed to conduct an investigation as comprehensive as the investigation McCaslin had performed for the white suspect in Brodnicki. Further, the plaintiff cites census statistics showing that while Douglas County is only 11% black, 44% of those arrested are black, leading the plaintiff to claim that "race may be a motivating factor in the arrest of an individual." Id.; Filing No. 42, Ex. 5.
The defendant is entitled to summary judgment on this claim because the plaintiff offers no evidence that McCaslin intentionally discriminated against him on the basis of his race when citing him for allegedly violating the enticement ordinance. A plaintiff claiming unequal enforcement of a facially neutral statute such as the Omaha ordinance must show
both that the enforcement had a discriminatory effect, and that the enforcement was motivated by a discriminatory purpose. To establish discriminatory effect in a race case, the claimant must show that people of another race violated the law and the law was not enforced against them. To show discriminatory purpose, the claimant must show the official's decision to enforce the law was at least partially based on race.United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996) (no selective enforcement where officers stopped black suspect for violating Iowa's bicycle headlamp statutes) (interior citations omitted). See also United States v. Perry, 152 F.3d 900, 903 (8th Cir. 1998) (criminal defendant's selective prosecution claim failed for "inadequate showing of discriminatory effect, coupled with his inability to produce any evidence of discriminatory purpose").
The plaintiff here fails to show that officers did not cite violators of a different race under the enticement ordinance. In the only comparable situation the plaintiff offers, Brodnicki, the suspect arrested for attempted kidnapping was white. Nor are the plaintiff's arrest statistics of any help in demonstrating race-based arrests, since they show only the total number of adult arrests by race alone, not by race and crime.
The plaintiff fares no better on the second prong of the Bell test, the requirement of showing that McCaslin's decision to cite him was motivated by the plaintiff's race. As McCaslin admits in his brief, the plaintiff's race did enter into his decision to cite the plaintiff because the two boys described the suspect as an African-American male who drove a red pick-up truck; the plaintiff is also an African-American male with a red pick-up truck. But McCaslin had considerable additional evidence that had nothing to do with the plaintiff's race. The plaintiff's truck bore the exact license plate number the boys provided. The suspect whom the boys described delivered newspapers in the boys' neighborhood, as did the plaintiff. Finally, the plaintiff himself admitted that he had encountered two neighborhood white boys that afternoon who had said he looked like the man they had heard about at school and on the news.
I find that McCaslin's decision to cite the plaintiff was not based on the plaintiff's race but on the objective facts developed during the investigation of the boys' report. Consequently, McCaslin's motion for summary judgment on the plaintiff's Fourteenth Amendment Equal Protection claim is granted.
3. Qualified Immunity. Finally, McCaslin contends that even if the court determines that he did not have probable cause to cite the plaintiff, he nevertheless is entitled to qualified immunity on the plaintiff's Fourth Amendment and Equal Protection claims.
The qualified immunity defense provides that "[a]n official performing discretionary functions will generally be immune from liability unless a reasonable person in his position would have known that his actions violated clearly established law." Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). When, as here, the parties agree on the relevant facts of the plaintiff's wrongful arrest claim, "a court should always be able to determine as a matter of law whether or not an officer is eligible for qualified immunity that is, whether or not the officer acted reasonably under settled law given the particular set of facts." Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000) (victim's statement she was "85-90 percent" sure that section 1983 claimant was her assailant found sufficiently credible to allow reasonable officer to conclude that probable cause existed; arresting officer therefore entitled to qualified immunity). The plaintiff argues that by not following the interview protocol for enticement cases before concluding that probable cause existed to cite the plaintiff, McCaslin engaged in "unreasonable conduct" that deprives him of a qualified immunity defense.
a. Fourth Amendment Claim. In determining whether McCaslin is entitled to a qualified immunity defense on a Fourth Amendment wrongful arrest claim, the relevant inquiry is whether McCaslin had probable cause to cite the plaintiff for violation of the enticement ordinance. Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000). Under settled Fourth Amendment law, police officers have qualified immunity "if they arrest a suspect under the mistaken belief that they have probable cause to do so provided that the mistake is objectively reasonable. Stated otherwise, 'The issue for immunity purposes is not probable cause in fact but arguable probable cause.'" Id. (quoting Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996)) (interior citation omitted).
Although I have already concluded that McCaslin and Gunter did not have probable cause in fact, I find that they had at least "arguable" probable cause to conclude that the plaintiff had violated the enticement ordinance. The boys identified the correct license plate number of the plaintiff's truck, and they also identified the driver of the truck as the man who delivered newspapers in their neighborhood. The plaintiff corroborated the boys' statements when he admitted to Gunter that he had encountered two boys that afternoon on his route. Gunter and McCaslin were not required "to conduct a mini-trial" to weigh the boys' credibility or even to conduct a more detailed investigation before citing the plaintiff for the serious misdemeanor of enticement. Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974). McCaslin should have followed normal investigative procedures before citing the plaintiff, but the standard for qualified immunity is arguable cause, not probable cause in fact and not negligent arrest. McCaslin is therefore entitled to qualified immunity on the plaintiff's wrongful arrest claim.
b. Equal Protection Claim. McCaslin is also entitled to qualified immunity on the plaintiff's equal protection claim. The plaintiff contends that by selectively enforcing the enticement ordinance against him, McCaslin violated the plaintiff's clearly established right to equal protection. I have already concluded above that McCaslin did not selectively enforce the racially neutral enticement statute against the plaintiff. The plaintiff's race was only one factor among other more specific, racially-neutral factors that led McCaslin to conclude that he had probable cause to cite the plaintiff. As a consequence, McCaslin's motion for summary judgment on qualified immunity grounds is granted.
IT IS THEREFORE ORDERED:
1) The defendant City of Omaha's motion, Filing No. 52, to dismiss the plaintiff's first cause of action in the amended complaint, Filing No. 44, is granted; and
2) The defendant Patrick McCaslin's motion, Filing No. 34, for summary judgment on plaintiff's second and third causes of action in the amended complaint, Filing No. 44, is granted.