Opinion
Civil Action No. 99-2221-GTV.
July 13, 2000.
Brian T. Johnson, Cornwell Erickson, Overland Park, KS; Mark A. Rohrbaugh, Olathe, KS, for Mark Andrew Ruttan, plaintiff.
Lawrence L. Ferree, II and Kirk Thomas Ridgway, Ferree, Bunn, O'Grady Rundberg, Chtd., Overland Park, KS, for defendants.
MEMORANDUM AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988, alleging that Defendants Board of County Commissioners of Johnson County, Kansas ("Johnson County"), the City of De Soto, Kansas ("De Soto"), Johnson County Deputy Sheriff Robert B. Johnston, Johnson County Deputy Sheriff Larry Shoop, Johnson County Sheriff Fred Allenbrand, and Deputy Sheriffs John and Jane Doe violated Plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution by refusing to allow him to post bond for six hours after his arrest for driving under the influence of alcohol or drugs. The case is before the court on Defendants' Motion for Summary Judgment (Doc. 46) and Plaintiff's Motion for Summary Judgment (Doc. 49). For the reasons set forth below, Defendants' motion is granted and Plaintiff's motion is denied.
I. Factual Background
The following facts are either uncontroverted or based on evidence submitted in summary judgment papers. Immaterial facts and facts not supported by the record are omitted.
At approximately 11:30 p.m. on the night of May 30, 1997, Johnson County Deputy Sheriff Larry Shoop was directing traffic at the intersection of 83rd Street and Kill Creek Road, in De Soto, Kansas. With his cruiser parked so as to block part of 83rd Street west of the intersection, Officer Shoop was directing traffic away from an accident a few hundred yards west of the intersection. Shoop was also using traffic cones and had turned on his vehicle's emergency lights. Plaintiff, driving north on Kill Creek Road, turned left onto 83rd Street and began to drive around Shoop's cruiser and toward the scene of the accident. Shoop shouted at Plaintiff to stop, and directed him to pull over.
When Officer Shoop approached the vehicle, he observed the odor of alcohol emanating from Plaintiff's automobile, and observed open containers of beer in the car; Plaintiff later admitted that he had been drinking from one of the containers immediately prior to being stopped. Shoop then conducted a field sobriety test. Plaintiff's performance on several exercises, such as the "Walk and Turn" and "One Leg Stand," strongly suggested to Shoop that Plaintiff was intoxicated. For example, Shoop testified in deposition that when he asked Plaintiff to recite the alphabet from C to U, Plaintiff's response was "garbled to the point that I couldn't hear any of it." In addition, Plaintiff's speech was slurred; Shoop observed alcohol on Plaintiff's breath; and a preliminary breath test confirmed the presence of alcohol in Plaintiff's breath. Shoop testified in deposition that Plaintiff was the only driver that night who attempted to drive around Shoop's cruiser and towards the scene of the accident. Shoop arrested Plaintiff pursuant to a De Soto, Kansas ordinance prohibiting driving under the influence of intoxicating liquor or drugs ("DUI"). Shoop also issued citations to Plaintiff for violating De Soto ordinances prohibiting transport of an open container of alcohol and driving with a suspended driver's license.
Plaintiff was then taken to the Johnson County Adult Detention Center, where he was given a breath alcohol test. The test, administered at approximately 12:45 a.m., indicated that Plaintiff's blood alcohol content was .069.
Officer Shoop directed that Plaintiff be held at the detention center for six hours from the time of his arrest, at which time he would be eligible to post bond.
At approximately 1:35 a.m., Plaintiff was booked into the detention center. The booking process took about two hours, and included a medical interview, which was conducted at approximately 2:20 a.m. by Deputy Sheriff Bernie Beletsky. Officer Beletsky reported that, at that time, Plaintiff still exhibited signs of being under the influence of alcohol or drugs. During the booking process, Plaintiff also said that he had taken Paxil, a prescription anti-depressant drug, on the morning of May 30, 1997.
At approximately 1:30 a.m., Plaintiff's father telephoned the detention center to inquire about picking up his son. He was told by jail personnel that he would not be able to pick Plaintiff up until the morning. Plaintiff was released from custody on bond, and left the facility shortly before 9:00 a.m. on May 31, 1997.
On the night in question, Officer Shoop was providing law enforcement services for the City of De Soto pursuant to a law enforcement contract between the city, Johnson County, and the Sheriff of Johnson County. It is the Johnson County Sheriff's Department's policy that, when a person is arrested for DUI by the Department pursuant to such a contract, the arresting officer may order the person to be held for up to six hours before being allowed to post bond. Deputy Sheriff Robert B. Johnston, who is the detention center administrator, testified in deposition that this policy, while unwritten, is the custom and practice of the Sheriff's Department, and that it was designed to comport with the Kansas statute governing municipal arrests. See K.S.A. § 12-4213. Johnston also testified in deposition that, under the policy, once the arresting officer "invokes the six hour hold" for municipal arrestees, jail personnel have no discretion to release the prisoner until six hours have elapsed from the arrest.
K.S.A. § 12-4213 provides that
Any person arrested . . . shall be taken immediately . . . to the police station . . . . At that time, the person shall have the right to post bond for the person's appearance . . . . However, if the law enforcement officer has probable cause to believe that such person may cause injury to oneself or others, or damage to property, and there is no responsible person or institution to which the person might be released, the person shall remain in the protective custody of the law enforcement officer, in a city or county jail for a period not to exceed six hours, at which time such person shall be given an opportunity to post bond for the persons' appearance.
In contrast, the policy for persons arrested for DUI by the state (or pursuant to state law) leaves officers and jail personnel no discretion: DUI arrestees are unable to post bond for at least six hours. The policy is set forth in an order promulgated by an administrative judge in Johnson County, Kansas District Court, which requires that:
No person who is charged with a violation of K.S.A. 8-1567, driving under the influence of alcohol and/or drugs shall be eligible to post the scheduled bond until the person has been under the observation of a police officer for a period of at least six (6) hours from the time of the arrest.
Administrative Judge Promulgation No. AJ90-7 (Tenth Judicial District of Kansas, Sept. 25, 1990). Plaintiff does not discuss the different policies, but asserts that Defendants' policy was "mandatory" and that the policy was to hold DUI arrestees "for at least six hours." The record is quite clear, however, that Defendants were operating under the policy for municipal arrestees set forth above.
Plaintiff was twenty years of age at the time of his arrest.
II. Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "material" if it is essential to the proper disposition of the claim. See id. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See id. at 325. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. Analysis
Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). The first step in any such claim is to identify "whether the Plaintiff has been deprived of a right `secured by the Constitution and laws.'"Id. at 140. See also Albright v. Oliver, 510 U.S. 266, 271 (1994). Plaintiff argues that, after Plaintiff's breath alcohol test produced a .069 reading, Defendants were without probable cause to detain Plaintiff further. Plaintiff also argues that Johnson County's policy violates the Kansas statute governing municipal arrests because the policy does not provide for persons to be released to a responsible person or institution. See K.S.A. § 12-4213. Plaintiff contends that Defendants, by detaining Plaintiff without probable cause and in violation of the statute governing municipal arrests, violated his Fourth Amendment right to be free from unreasonable seizures of the person and the right to due process guaranteed him by the Fifth and Fourteenth Amendments.
Defendants respond that Plaintiff's detention was constitutional, the Fifth and Fourteenth Amendments do not apply, the policy does not offend the Constitution, the individual Defendants are entitled to qualified immunity, De Soto is not liable because respondeat superior liability is not available, and John and Jane Doe Defendants should be dismissed because replacement of the parties is barred by the statute of limitations.
A. Fifth and Fourteenth Amendments: Due Process
Defendants argue that Plaintiff's substantive due process argument fails because claims based on substantive due process rights are not available if a more explicit source of constitutional protection is available. In this case, Plaintiff objects to a type of governmental conduct — pretrial detention — that is explicitly governed by the Fourth Amendment.
Where a particular Amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." . . . We think this principle is likewise applicable here. The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.Albright, 510 U.S. at 273-74 (quoting Graham, 490 U.S. at 395). Plaintiff cannot assert a claim for substantive due process in this context. Accordingly, to the extent that Plaintiff's claim is based on substantive due process, the court grants summary judgment for Defendants.
Similarly, Plaintiff's claim fails to the extent that it is based on procedural due process. When a warrantless arrest has been made lawfully, pretrial detention does not raise procedural due process concerns either until a judicial determination of probable cause has not been made within 48 hours, see County of Riverside v. McLaughlin, 500 U.S. 44, 47-48 (1991) (applying Gerstein v. Pugh, 420 U.S. 103 (1975)), or unless "conditions or restrictions of pretrial detention . . . amount to punishment of the detainee," Bell v. Wolfish, 441 U.S. 520, 535 (1979). Because no such conduct is alleged here, the court grants summary judgment for Defendants with respect to Plaintiff's procedural due process claim.
B. Fourth Amendment: Unreasonable Seizure
Plaintiff claims that Defendants did not have probable cause to detain Plaintiff, asserting that the .069 result of the breath alcohol test meant that Plaintiff was "legal to drive," and that his subsequent detention constituted an unreasonable seizure in violation of the Fourth Amendment. Defendants respond that Plaintiff's detention was not constitutionally offensive because Officer Shoop had probable cause to detain Plaintiff for six hours after the arrest. The court agrees with Defendant.
"[A] policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention" afterwards. Gerstein, 420 U.S. at 113-14. In addition, "the state . . . has an interest in protecting the public from the intoxicated and the intoxicated from themselves," and an officer may seize a person if "probable cause [exists] to believe an intoxicated person is a danger to himself or others." Anaya v. Crossroads Managed Care Sys., 195 F.3d 584, 591 (10th Cir. 1999).
Officer Shoop testified in deposition that he ordered that Plaintiff be detained for six hours because he believed that Plaintiff, by virtue of his "impairment," "posed a danger to himself or others" and a "danger to damaging [sic] property." Plaintiff, asserting that "BAC .069 [means] legal to drive in all 50 states," argues that Defendants had no probable cause to detain him once the breath alcohol test indicated that his blood alcohol content was .069.
This assertion is incorrect. Because Plaintiff was only twenty years of age at the time of his arrest, his .069 reading actually established a presumption that he was not "legal to drive." See K.S.A. § 8-1567a(a) ("It shall be unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or greater.").
In Kansas, a breath alcohol test reading of .08 or higher, see K.S.A. § 8-1567(a)(1)-(2), creates a "presumption of intoxication for purposes of criminal prosecution" that serves as "prima facie evidence the Defendant was under the influence of alcohol to a degree that rendered him incapable of driving safely," Poole v. Earp Meat Co., 750 P.2d 1000, 1004 (Kan. 1988) (declining to extend presumption of intoxication set forth in K.S.A. § 8-1567(a) to worker's compensation defense). Such readings are not, however, dispositive of probable cause to arrest or detain a person for driving under the influence of alcohol or drugs. In this case, Officer Shoop conducted numerous field tests, observed that Plaintiff was slurring his speech, and observed Plaintiff's impaired driving. Shoop also knew at the time he ordered Plaintiff's continued detention that Plaintiff had taken the prescription drug Paxil on the morning of May 30, 1997.
Despite the .069 reading, Shoop had ample additional evidence from which to conclude that Plaintiff, by virtue of his impairment, would pose a danger to himself or others if released before a substantial amount of time had passed. The court concludes that Officer Shoop had probable cause not only to arrest Plaintiff, but to detain him for up to six hours following his arrest.
Plaintiff argues that Defendants, by telling Plaintiff's father that he could not post bail for his son until the morning, violated the Kansas statute governing municipal arrests, and therefore violated Plaintiff's Fourth Amendment right to be free from unreasonable seizures of the person. See K.S.A. § 12-4213. Even if Defendants did violate the statute, "they are still not liable under § 1983 absent some wrong of constitutional import." Schneider v. Hammers, No. 76-194-C5, 1977 U.S. Dist. LEXIS 13857, at *9 (D. Kan. Sept. 22, 1977) (distinguishing between "state created procedural rights" set forth in K.S.A. § 12-4213 and constitutional rights protected by 42 U.S.C. § 1983). See also Baker, 443 U.S. at 144 ("Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution"). The Fourth Amendment requires that seizures must be made pursuant to warrants made upon probable cause and that probable cause to detain persons arrested without warrants must be determined by a judicial officer within 48 hours. See McLaughlin, 500 U.S. at 47-48. The Fourth Amendment does not require local law enforcement agencies to release pretrial detainees to private individuals, no matter how responsible they may be. See Baker, 443 U.S. at 144.
Furthermore, even if probable cause did not exist to detain Plaintiff for six hours after his arrest, Plaintiff's Fourth Amendment rights would not necessarily have been violated by the detention. Several federal courts have held that, unless it becomes exceedingly clear that probable cause no longer exists, a law enforcement officer does not have an affirmative duty to release a detainee who was arrested based on probable cause. See, e.g., McConney v. City of Houston, 863 F.2d 1180, 1185 (5th Cir. 1989) ("[A] person may constitutionally be detained for at least four or five hours following a lawful warrantless arrest for public intoxication without the responsible officers having any affirmative duty during that time to inquire further as to whether the person is intoxicated, even if requested to do so."); Harrison v. Abraham, No. 96-4262, 1997 U.S. Dist. LEXIS 6894, at *63-70 (E. D. Pa. May 16, 1997) (collecting cases and concluding that "a prisoner awaiting criminal trial does not have a `clearly established' right to have probable cause reexamined following an arrest based on probable cause"); Jackson v. Inhabitants of Sanford, No. 94-12-P-H, 1994 U.S. Dist. LEXIS 15367, at *15 (D. Me. Sept. 23, 1994) (quoting Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986) for the proposition that a police officer must release an arrestee only if the officer "`ascertains beyond a reasonable doubt' that the probable cause for the arrest is unfounded").
The court concludes that Defendants' conduct on the night of May 30, 1997 did not subject Plaintiff to the deprivation of any right, privilege, or immunity guaranteed by the Fourth, Fifth, or Fourteenth Amendment to the United States Constitution. Plaintiff's claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 therefore fail. See Baker, 443 U.S. at 144 n. 3.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's Motion for Summary Judgment (Doc. 46) is granted and Plaintiff's Motion for Summary Judgment (Doc. 49) is denied.
The case is closed.
IT IS SO ORDERED.