Ultra Group of Companies, Inc. v. DeKalb County, Georgia et al
Filing
54
ORDER granting in part and denying in part Moving Defendants' 37 Motion for Summary Judgment. Officer Defendants Jones and McCown are entitled to qualified immunity from Plaintiff's § 1983 claims and Defendant DeKalb County Police C hief, in his official capacity, is dismissed from the action as redundant. However, Moving Defendants' motion is denied as to DeKalb County to the extent Plaintiff's claim is based on the County's alleged unconstitutional policy for obtaining illegal gambling search warrants. The parties shall file a proposed consolidated pretrial order within 30 days of the entry of this Order. Signed by Judge Richard W. Story on 8/13/2014. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ULTRA GROUP OF
COMPANIES, INC.,
Plaintiff,
v.
DEKALB COUNTY, GEORGIA;
DEKALB COUNTY POLICE
CHIEF in his official capacity; and
DEKALB COUNTY POLICE
OFFICER L. ROSE; DEKALB
COUNTY POLICE OFFICER E.I.
JONES; AND DEKALB
COUNTY OFFICER E.
McCOWN, in their individual
capacities,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
1:12-CV-1342-RWS
ORDER
This case is before the Court on Defendants Officer McCown, Officer
Jones, DeKalb Chief of Police and DeKalb County’s (“Moving Defendants”)1
Motion for Summary Judgment [37]. After reviewing the record and the
Parties’ submissions, the Court enters the following Order.
1
Defendant Rose is not named in Moving Defendants’ motion. Therefore,
Plaintiff’s claims against him are not impacted by this Order.
AO 72A
(Rev.8/82)
Background2
Plaintiff has lease agreements to rent space for coin-operated amusement
machines at the S&N Superette/Lotto (“S&N Store”), the Chevron Food Mart
(“Chevron Store”), and the Texaco Food Mart (“Texaco Store”). Nizar
Damani, Plaintiff’s CEO, testified that during the relevant time period, Plaintiff
had placed nine amusement machines at the S&N Store, eight machines at the
Chevron Store, and nine machines at the Texaco Store. To play the “touch
screen” machines, patrons insert bills into a money acceptor and redeem their
winning points with the store operator.
Assistant Police Chief Annette Williams testified that in 2010 and 2011,
the DeKalb County Police Department (“DCPD”) received numerous
complaints about illegal gambling activities at area convenience stores, gas
stations, and other establishments. Captain A.T. Mears, testifying as DeKalb
County’s 30(b)(6) witness, described the DCPD’s process for investigating
alleged illegal gambling on amusement machines. (Mears Depo., [38] at 57 of
70.) He stated that once an investigation is opened, vice detectives visit the
2
Unless otherwise noted, the facts are undisputed and are taken from the
Parties’ respective statements of material facts.
2
AO 72A
(Rev.8/82)
alleged illegal gambling location and play the machines or ask an informant to
play the machines. (Id.) If the detectives or their informants receive a payout
over $5.00, they place the payout into evidence and log it in their case notes.
(Id.) If they receive multiple payouts over $5, the detectives prepare a search
warrant for the location and arrest warrants for the individuals who paid them.
(Id.) Once a search warrant is issued, the supervising sergeant arranges for
execution of the warrant with “uniform presence” from the SWAT team or
DCPD officers. (Id.) Following execution of the warrant, any evidence
collected is secured and inventoried. (Id.)
The search warrants obtained by the DCPD in this case authorized
officers to seize cash from the amusement machines at all three stores. (Mears
Depo., [52-2] at 7 of 38.) With respect to officers’ procedure for collecting
money from amusement machines, Captain Mears stated that officers first try to
obtain a key from the store clerk. If the clerk does not have a key, officers
contact the store owner and give him a reasonable amount of time to deliver a
key. If a key is not produced by the store owner, officers force open the
machines and retrieve the cash. Sergeant Thomas testified that if officers have
3
AO 72A
(Rev.8/82)
to open machines themselves, it is normal practice for Strike Force officers to
open them with rams and Halligans. (Thomas Depo., [52-4] at 9 of 48.)
Captain Mears testified that he does not think officers receive training on
using force to open amusement machines, but stated that the protocol –
communicated to vice unit officers – is to “be the least invasive just to go in and
get the money, the minimum amount of damage possible to make entry.”
(Mears Depo., [52-2] at 9 of 38.) He stated that officers “don’t try to damage
the machine in any way. [They] try to go in the most, the least invasive way to
get to the [bills].” (Id. at 6 of 38.) When shown a picture of the damage done
to a machine in this case, including a missing video screen, Captain Mears
testified that he’d “never seen a machine in this state” and would “want to know
why we had that amount of damage.” (Id. at 8 of 38.) Invoices show that
$9,815 in damage was done to the S&N Store machines and $13,190 in damage
was done to the Texaco Store machines. ([45-5] Ex.s 6, 7.) Plaintiff claims that
$9,940 in damage was done at the Chevron Store.
Plaintiff does not dispute that receiving cash payouts from winning points
constitutes gambling. Plaintiff admits that at the S&N location, officers were
paid cash in excess of $5.00. (Mears Depo., [38] at 63-64 of 70.) At the
4
AO 72A
(Rev.8/82)
Chevron and Texaco stores, however, officers were paid in items valued at
more than $5.00. (Id.) Captain Mears testified that it was his understanding,
based on DCPD policy, that “if you get something of value from a store of over
$5, . . . that was commercial gambling.” (Mears Depo., [52-2] at 14 of 38.)
Defendant McCown, a vice detective, investigated complaints of
gambling at the S&N store. While working undercover, McCown played the
amusement machines on several occasions, and on at least two occasions he
received cash payouts over $5.00. He also personally observed an informant
play the machines and receive a cash payout. Relying on evidence he obtained
during his investigation, McCown obtained a search warrant from the
Magistrate Court for the entire S&N store premises. The search warrant
described the property subject to search as follows: “Computers and related
devices, . . . any gambling devices, as defined in O.C.G.A. § 16-12-20(2),
including video gambling devices, . . . [and] items of value such as currency or
other items such as electronics, vehicles and all items that are subject to
forfeiture under Georgia Law . . . .”
On February 19, 2011, DCPD SWAT Strike Force officers executed the
search warrant at the S&N Store. Sergeant Thomas supervised the warrant’s
5
AO 72A
(Rev.8/82)
execution. The Strike Force officers used a ram to force open the amusement
machines because the store operator would not provide a key. Defendant
McCown stayed outside during the warrant execution to preserve his
undercover status. Sergeant Thomas took possession of the money seized from
the S&N Store machines and DCPD’s vice unit prepared a seizure report
indicating that $8,633 had been recovered.
Defendant Rose, a vice unit detective, was the lead investigator of
gambling complaints at the Chevron Store. Defendant Jones, a uniform officer,
assisted Defendant Rose and other detectives investigating that location.
Defendant Jones worked undercover by playing the machines and redeeming
her winning points for store merchandise valuing more than $5.00. Defendant
Rose obtained the search warrant for the Chevron Store. On March 12, 2011,
Defendant McCown, Sergeant Thomas, and SWAT Strike Force officers
executed the warrant; Defendant Jones only observed. Again, Strike Force
officers used a ram to open the machines after the store operator refused to
provide a key. The officers seized a printer, a receipt/ticket machine and U.S.
currency. DCPD’s vice unit prepared a seizure report indicating that $4,491
was seized at the Chevron Store.
6
AO 72A
(Rev.8/82)
In early 2011, Defendant Rose began investigating gambling at the
Texaco Store. He obtained a search warrant from the Magistrate Court for that
location after Defendant Jones, again working undercover, played the machines
and redeemed her winning points for $8.00 in store credit, which she turned in
for store merchandise. On or about March 4, 2011, several detectives and
SWAT Strike Force officers executed the search warrant at the Texaco Store.
Sergeant Thomas supervised execution of the warrant. After the store clerk
refused to provide a key, officers used rams to open nine machines and Thomas
took possession of the money recovered. DCPD’s seizure report indicated that
$7,206 was seized from the Texaco Store.
Captain Mears testified that practices and procedures for obtaining and
executing search warrants are covered in DCPD’s 24-week basic training, but
not in-depth. (Mears Depo., [52-2] at 3 of 38.) He elaborated, “we cover what
is required to get a search warrant and how to obtain a search warrant, but [we]
don’t actually do a practical or anything like that.” (Id. at 4 of 38.) Captain
Means did not recall receiving basic training on how to do inventory following
execution of a search warrant. (Id.) He testified, however, that DCPD’s written
Standard Operating Procedures, included in the employee manual, contain
7
AO 72A
(Rev.8/82)
information about criteria for obtaining search warrants, parameters for
executing search warrants, and how to conduct inventory and return search
warrants. (Id.)
During the relevant time period, Lieutenant Dickerson was commander of
the vice unit. He testified that he and his staff trained officers on how to
investigate complaints of illegal gambling and how to obtain search warrants
for establishments under investigation. Dickerson instructed officers that they
had to receive at least two cash payouts or prizes valuing more than $5.00
before applying for a search warrant.
Discussion
Plaintiff alleges that “the decision to search, seize, damage and/or destroy
the machines and seize the cash in the machines was unreasonable and in
violation of [Plaintiff’s] Fourth and Fourteenth Amendment rights to the U.S.
Constitution and the laws of the State of Georgia.”3 (Compl., [1] ¶ 16.) Moving
3
The Court interprets Plaintiff’s claim as an action under 42. U.S.C. § 1983,
which provides individuals with a “federal remedy for the deprivation of rights,
privileges, or immunities protected by the Constitution or the laws of the United
States.” Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir. 1990) (citations omitted).
Although the Complaint mentions “laws of the State of Georgia,” no specific laws or
state-law causes of action are identified. Therefore, the Court limits its consideration
to Plaintiff’s federal constitutional claims.
8
AO 72A
(Rev.8/82)
Defendants argue (1) that Defendants McCown and Jones are entitled to
qualified immunity against Plaintiff’s § 1983 claims because they committed no
constitutional violations; and (2) that Defendants DeKalb Police Chief and
DeKalb County are entitled to summary judgment because Plaintiff cannot
show that the harm complained of was caused by any municipal policy.
I.
Officer Defendants and Qualified Immunity
A.
Qualified Immunity Standard
Defendants sued in their individual capacities for discretionary acts are
protected from suit by the doctrine of qualified immunity, unless those acts
violate “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “To receive qualified immunity, a government official must first
prove that he was acting within his discretionary authority.” Cottone v. Jenne,
II, 326 F.3d 1352, 1357 (11th Cir. 2003). Once the government official has
satisfied this initial burden, “the burden shifts to the plaintiff to show that the
defendant is not entitled to qualified immunity.” Id. at 1358. The latter part of
the analysis is two-pronged. First, the court addresses the threshold question of
“whether the plaintiff’s allegations, if true, establish a constitutional violation.”
9
AO 72A
(Rev.8/82)
Id. (internal quotations and citation omitted). If there is a constitutional
violation, the court proceeds to the second step to determine whether that
constitutional right was clearly established. Id.
To demonstrate that a constitutional right was clearly established, a
plaintiff must show that “when the defendant acted, the law established the
contours of a right so clearly that a reasonable official would have understood
his acts were unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557
(11th Cir. 1993) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To
determine whether an official would have understood his conduct to be lawful
or unlawful, parties and courts must look to case law at the time of the alleged
violation. “[T]he salient question is whether the law at the time of the alleged
violation gave officials ‘fair warning’ that their acts were unconstitutional.”
Holmes v. Kucynda, 321 F.3d 1069, 1078 (11th Cir. 2003). “If case law, in
factual terms, has not staked out a bright line, qualified immunity almost always
protects the defendant.” Post, 7 F.3d at 1557.
B.
Standards for § 1983 Liability based on Unlawful Search and
Seizure
1.
Search conducted pursuant to a warrant
10
AO 72A
(Rev.8/82)
Under the Fourth Amendment, “no warrants shall issue but upon
probable cause, supported by oath or affirmation and particularly describing the
place to be searched, and the persons or things to be seized.” U.S. Const.,
amend. IV. “Probable cause to support a search warrant exists when the totality
of the circumstances allow a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” U.S. v. Martinelli, 454 F.3d
1300, 1307 (11th Cir. 2006). But “[w]hen a law enforcement officer seeks
summary judgment on the basis of qualified immunity, we only must ask
whether, viewing the facts in a light favorable to the non-movant, there was
arguable probable cause.” Swint v. City of Wadley, 51 F.3d 988, 996 (11th
Cir. 1995) (internal quotations omitted) (emphasis in original). “Thus, we
determine whether reasonable officers in the same circumstances and
possessing the same knowledge as the [defendant] could have believed that
probable cause existed.” Id. (internal quotations omitted).
“Where [an] alleged Fourth Amendment violation involves a search or
seizure pursuant to a warrant, the fact that a neutral magistrate has issued a
warrant is the clearest indication that the officers acted in an objectively
reasonable manner . . . .” Messerschmidt v. Millender, 132 S. Ct. 1235, 1245,
11
AO 72A
(Rev.8/82)
__ U.S. __ (2012). However, the fact that a neutral magistrate issued the
warrant “does not end the inquiry into objective reasonableness.” Id. Rather,
the Supreme Court has “recognized an exception allowing suit when it is
obvious that no reasonably competent officer would have concluded that a
warrant should issue.” Id.
2.
Execution of a Search Warrant
“[T]he magnitude of a search is insufficient, by itself, to establish a
constitutional violation; rather, the relevant inquiry is whether the search and
seizures were reasonable under all the circumstances.” U.S. v. Wuagneux, 683
F. 2d 1343, 1352 (11th Cir. 1982). “While the permissible scope of a search is
governed by the terms of the warrant, by the same token a search may be as
extensive as reasonably required to locate the items described in the warrant.”
Id. (internal citation omitted). Search warrants need not specify the precise
manner in which they are to be executed. “On the contrary, it is generally left
to the discretion of the executing officers to determine the details of how best to
proceed with the performance of a search authorized by a warrant – subject of
course to the general Fourth Amendment protection against unreasonable
12
AO 72A
(Rev.8/82)
searches and seizures.” Dalia v. U.S., 441 U.S. 238, 257 (1979) (internal
citation and quotations omitted).
“Excessive or unnecessary destruction of property in the course of a
search may violate the Fourth Amendment, even though the entry itself is
lawful and the fruits of the search are not subject to suppression.” U.S. v.
Ramirez, 523 U.S. 65, 71 (1998). However, the Supreme Court has recognized
that “officers executing search warrants on occasion must damage property in
order to perform their duty.” Dalia, 441 U.S. at 258. “The general touchstone
of reasonableness which governs Fourth Amendment analysis governs the
method of execution of the warrant.” Ramirez, 523 U.S. at 71 (internal citation
omitted).
C.
Application of Legal Standards to Officer Defendants
1.
Defendant Jones
The undisputed facts show that Defendant Jones assisted Defendant Rose
in investigating gambling complaints at the Chevron and Texaco Stores.
Defendant Jones’ role was limited to working undercover, playing the
machines, and redeeming her winning points at those two locations. Notably,
there is no allegation or evidence in the record – nor does Plaintiff suggest in its
13
AO 72A
(Rev.8/82)
response brief – that Defendant Jones participated in any warrant application,
search, or seizure. Therefore, the Court agrees with Moving Defendants that
Plaintiff has not shown a Fourth Amendment violation on the part of Defendant
Jones and she is entitled to qualified immunity.
2.
Defendant McCown
The undisputed facts show that Defendant McCown’s involvement in the
events in question was limited to (1) working undercover and playing the
machines at the S&N Store; (2) applying for and obtaining the search warrant
for the S&N Store from the Magistrate Court; and (3) executing the warrant at
the Chevron Store. Like Defendant Jones, the Court finds that Defendant
McCown’s actions do not amount to constitutional violations. Therefore, he too
is entitled to qualified immunity.
a.
S&N Store Warrant
After playing the amusement machines at the S&N Store, Defendant
McCown personally received at least two cash payouts in excess of $5.00, and
he witnessed an informant receive a cash payout over $5.00 at the same store.4
4
Under O.C.G.A. § 16-12-35(d)(1), Georgia’s gambling prohibition does not
apply to a coin operated game or device designed and manufactured for bona fide
amusement purposes which involves some skill in its operation and rewards players
14
AO 72A
(Rev.8/82)
McCown subsequently presented an affidavit to the Magistrate Court setting
forth this evidence of illegal gambling and obtained a search warrant for the
store. (McCown Affid., [37-2] ¶¶ 3-6.) In its response brief, Plaintiff claims
that the search warrants for the Chevron and Texaco Stores were issued without
probable cause, but makes no mention of the S&N Store warrant. (Pl.’s Resp.
Br., [45] at 6-9 of 12.) As Moving Defendants note, McCown was not involved
in obtaining search warrants for the Chevron or Texaco locations.
The Court finds that a reasonable officer in McCown’s circumstances
could have believed that probable cause existed to support a search warrant for
the S&N Store. Therefore, because McCown had arguable probable cause, he
is entitled to qualified immunity from Plaintiff’s unreasonable search claim.
b.
Chevron Store Warrant Execution
At the outset, Moving Defendants note that Defendant McCown “assisted
in the March 12, 2011 search warrant execution at Chevron,” but he “did not
physically take possession of any currency or items seized during the warrant
exclusively with: free plays; merchandise, prizes or gift certificates worth no more
than $5.00; points, tokens, vouchers, or tickets that may be exchanged for free plays or
merchandise worth no more than $5.00; or a combination of any of the
aforementioned awards.
15
AO 72A
(Rev.8/82)
execution.” (McCown Affid., [37-2] ¶ 10.) Even if the other officers’ conduct
could be attributed to Defendant McCown, however, Moving Defendants
maintain that the seizure did not violate the constitution, let alone any clearly
established rights. The Court agrees with Moving Defendants.
Moving Defendants argue, and Plaintiff does not dispute, that the
Chevron Store warrant authorized the use of force during execution of the
search warrant. The warrant read: “Necessary and reasonable force may be
used to effect an entry into any building or property or part thereof to execute
this search warrant if, after verbal notice, or an attempt in good faith to give
verbal notice, by the officer directed to execute the same of the officer’s
authority and purpose: (1) The officer is refused admittance. . . .” (See, e.g.,
S&N Store Warrant, [37-2] at 16 of 19.) Sergeant Thomas testified that the
Chevron Store machines were forced open because the attendant did not have a
key and the owner was unable to come to the scene within a reasonable time.
(Thomas Depo., [52-4] at 21 of 48.)
Plaintiff responds that officers’ execution of all three warrants violated
the Fourth Amendment because “the actions of the Strike Force in ramming
and halliganning the machines was plainly unreasonable and unnecessary to the
16
AO 72A
(Rev.8/82)
performance of their duty to obtain the money in the machine.” (Pl.’s Resp.
Br., [45] at 9 of 12.) Plaintiff’s cursory argument is not sufficient to defeat
Defendant McCown’s claim for qualified immunity. Plaintiff has not identified
any case law in existence at the time the warrant was executed that would have
put McCown on notice that he was violating Plaintiff’s clearly established
rights. See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)
(“If case law, in factual terms, has not staked out a bright line, qualified
immunity almost always protects the defendant.”).
Given the scope of the search warrant, officers’ general discretion to
determine how best to execute a warrant, and Sergeant Thomas’s testimony that
the officers first tried to obtain a key to the machines, the Court cannot
conclude – based solely on Plaintiff’s assertion – that the seizure was plainly
unreasonable and unnecessary. Therefore, Defendant McCown is entitled to
qualified immunity with respect to the Chevron warrant execution.
In sum, Plaintiff has failed to show that Defendant Jones or Defendant
McCown violated any clearly established right while performing their
discretionary functions. Accordingly, the officers are entitled to qualified
17
AO 72A
(Rev.8/82)
immunity and Moving Defendants’ motion for summary judgment is
GRANTED with respect to these Defendants.
II.
Supervisory Liability in § 1983 Suits
A.
Legal Standard for Supervisory Liability
“The Supreme Court has placed strict limitations on municipal liability
under § 1983. A county’s liability under § 1983 may not be based on the
doctrine of respondeat superior.” Grech v. Clayton Cnty., 335 F.3d 1326, 1329
(11th Cir. 2003) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989) and
Monnell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). To establish
municipal liability under § 1983, Plaintiffs must allege facts to show the
county’s culpability in the alleged constitutional violation. “A county is ‘liable
under section 1983 only for acts for which the county is actually responsible.’”
Id. (quoting Marsh v. Butler Cnty., 268 F.3d 1014, 1027 (11th Cir. 2001)).
“Indeed, a county is liable only when the county’s official policy causes the
constitutional violation. Thus, [plaintiffs] must identify a municipal policy or
custom that caused [their] injury.” Id. (internal quotations and citations
omitted).
18
AO 72A
(Rev.8/82)
B.
Application of Legal Standard to County Defendants
Plaintiff’s suit against the DeKalb County Police Chief in his official
capacity is, in effect, a suit against DeKalb County. Brandon v. Holt, 469 U.S.
464, 471 (1985). Where suits are brought against both a municipality and an
officer in his or her official capacity “there no longer exists a need to bring
official capacity actions” because it would be redundant. Busby v. Orlando,
931 F.2d 764, 776 (11th Cir. 1991). Therefore, the Court limits its
consideration to Plaintiff’s allegations against DeKalb County and the DeKalb
County Police Chief, in his official capacity, is DISMISSED from this action.
Moving Defendants argue that Plaintiff cannot establish that a County
policy or custom caused any constitutional violation. Specifically, Moving
Defendants claim that (1) there was no constitutional violation, and therefore,
the County cannot be liable under § 1983; and (2) Plaintiff has not produced
any evidence that the County “had a policy of not properly training its officers
on how to obtain search warrants and how to execute search warrants.” (Def.s’
Br., [37-1] at 24-25 of 27.) Plaintiff responds that (1) the Chevron and Texaco
Store search warrants were obtained based on a “long standing policy and
practice of DeKalb County which was legally incorrect; i.e., that providing
19
AO 72A
(Rev.8/82)
merchandise in excess of $5.00 as winnings on a bona fide coin operated
amusement machine amounts to commercial gambling;”5 and (2) “DeKalb
County has a policy and practice that allows its Strike Force officers to ram and
Halligan machines, which effectively destroys them, in this situation where
such damage and destruction is not reasonably necessary to the performance of
their duty . . . .” (Pl.’s Resp. Br., [45] at 6 of 12.)
1.
Policy or Custom Regarding Search Warrants
The Court finds that unresolved factual issues preclude summary
judgment for Moving Defendants on this claim. Captain Mears, testifying on
behalf of the County, described the County’s practice when investigating illegal
5
Effective July 1, 2010, “single play” is defined under O.C.G.A. § 50-2770(b)(16) as: “the completion of a sequence of a game, or replay of a game, where the
player receives a score and from the score the player can secure free replays,
merchandise, points, tokens, vouchers, tickets, or other evidence of winnings as set
forth in subsection (c) or (d) of Code Section 16-12-35. A player may, but is not
required to, exchange a score for rewards permitted by subparagraphs (A), (B), (C),
and (D) of paragraph (d)(1) of Code Section 16-12-35 after each play.”
Thus, Plaintiff argues, “the statute provides that if a player of this game plays
the game multiple times, the value of the prize can be $5.00 times the number of the
plays.” (Pl.’s Resp. Br., [45] at 8 of 12 (emphasis added).) Plaintiff’s position is
supported by Georgia case law. Ultra Telecom v. State, 701 S.E. 2d 144 (Ga. 2010).
By extension, Plaintiff contends, the search warrants for Chevron and Texaco were
issued without probable cause because “statements that a prize of more than $5.00 in
merchandise was [awarded] does not allow the fair probability of finding contraband
or evidence of a crime at the location.” (Id.)
20
AO 72A
(Rev.8/82)
gambling complaints: “If [detectives] were to win and receive payouts over $5,
they would bring the payout back, place it into evidence, then they would do
their case notes about it. If they received multiple payouts, then they would
obtain a search warrant for the location for the crime of commercial gambling . .
. .” (Mears Depo., [38] at 57 of 70.) Mears clarified that his understanding of
DCPD policy was that “if you receive something of value from a store of over
$5, . . . that was commercial gambling.” (Mears Depo., [52-2] at 14 of 38.)
Similarly, Moving Defendants’ Statement of Undisputed Material Facts says:
Lieutenant Dickerson was commander of the vice unit
team during this time period. Dickerson and his staff
trained officers on how to investigate complaints of
illegal gambling. Dickerson explained what was
required to obtain a search warrant for the
establishments. Dickerson instructed McCown and
other officers that they had to receive at least two cash
payouts or prizes valuing more than $5.00 from
playing the amusement machines prior to applying for
a search warrant.
(Def.s’ SMF, [39] ¶ 14.)
As Plaintiff notes, non-cash payouts of more than $5.00 do not
necessarily violate Georgia law. (See n. 5, supra.) Undercover detectives or
informants receiving more than $5.00 worth of prizes for a single play would
21
AO 72A
(Rev.8/82)
constitute evidence of illegal gambling. However, detectives receiving more
than $5.00 in prizes for multiple plays does not necessarily supply probable
cause for a search warrant based on illegal gambling.
Without more specificity regarding the number of plays executed by the
investigating officers and informants at the Chevron and Texaco stores, the
Court cannot make a determination as to whether a constitutional violation
occurred. Based on the facts now before the Court, the County’s policy on
obtaining search warrants for illegal gambling may have caused a violation of
Plaintiff’s Fourth Amendment rights. Therefore, Moving Defendants’ motion
for summary judgment is DENIED with respect to this claim.
2.
Policy or Custom Regarding Execution of Search Warrants
Captain Mears testified about the County’s practice for recovering cash
from amusement machines suspected of containing illegal gambling proceeds.
First, he stated, officers attempt to obtain a key to the machines from the store
clerk. (Mears Depo., [38] at 60-61 of 70.) If the clerk does not have a key, the
officers attempt to contact the owner. (Id. at 61 of 70.) They inform the owner
that the officers have a search warrant to go into the machines and ask the
owner to provide a key. (Id. at 61 of 70.) They advise the owner that he has a
22
AO 72A
(Rev.8/82)
reasonable amount of time to produce the key. (Id.) Then, if the owner does
not arrive within a reasonable time or if the owner refuses to provide a key, the
officers force open the machines. (Id.) There is no allegation that this
procedure was not followed at all three stores. Captain Mears also testified that
it was the County’s policy to do as little damage as possible to the machines and
use the least invasive method available to recover the bills. (Mears Depo., [522] at 6, 9 of 38.)
First, the Court notes that the County’s process for seizing cash from
amusement machines appears to comport with the scope of the search warrants
issued by the Magistrate Court. (See Part I.C.2.b, supra.) While excessive or
unnecessary destruction of property in the course of a search may violate the
Fourth Amendment, Mears testified that it is the County’s policy not to cause
unnecessary destruction and to use the least invasive means possible to execute
the search warrant. Whether that policy was observed in these particular
instances is beyond the scope of the Court’s inquiry into the County’s liability.
Notably, Plaintiff has failed to identify a contrary County policy that
instructs officers to cause excessive or unnecessary damage. Plaintiff’s
accusation that “ramming and halliganning the machines was plainly
23
AO 72A
(Rev.8/82)
unreasonable and unnecessary” to fulfill the officers’ duties in this case is
insufficient to establish supervisory liability based on an unconstitutional policy
or custom. Therefore, Moving Defendants’ motion for summary judgment is
GRANTED with respect to this claim.6
Conclusion
Based on the foregoing, Moving Defendants’ motion for summary
judgment [37] is GRANTED in part and DENIED in part. Officer
Defendants Jones and McCown are entitled to qualified immunity from
Plaintiff’s § 1983 claims and Defendant DeKalb County Police Chief, in his
official capacity, is dismissed from the action as redundant. However, Moving
Defendants’ motion is denied as to DeKalb County to the extent Plaintiff’s
claim is based on the County’s alleged unconstitutional policy for obtaining
illegal gambling search warrants.
The parties shall file a proposed consolidated pretrial order within 30
days of the entry of this Order.
6
While the Court finds that damage to the machines does not give rise to an
independent constitutional claim, if it is ultimately established that the machines were
searched pursuant to invalid warrants, these facts will be relevant to determining the
extent of damages owed to Plaintiff.
24
AO 72A
(Rev.8/82)
SO ORDERED, this 13th day of August, 2014.
________________________________
RICHARD W. STORY
United States District Judge
25
AO 72A
(Rev.8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?