Baker v. Board of Commissioners of Johnson County, Kansas et al

Filing 40

MEMORANDUM AND ORDER granting in part and denying in part 10 Motion for Summary Judgment; denying as moot 23 Motion for Discovery. IT IS FURTHER ORDERED that defendant Board of Commissioners of Johnson County, Kansas is dismissed from the case. Signed by District Judge Carlos Murguia on 5/16/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
C.F.B., a minor, by and through her next friend
TERRI E. BAKER,
Plaintiff,
Case No. 16-2645-CM
v.
THE BOARD OF COMMISSIONERS OF
JOHNSON COUNTY, KANSAS, et al.,
Defendants.

MEMORANDUM & ORDER
Plaintiff C.F.B., a minor, by and through her grandmother and next friend, Terri E. Baker,
brings this action against the Board of Commissioners of Johnson County, Kansas (“BOCC”), Sheriff
Frank Denning, Lieutenant Thomas Reddin, Sergeant Christopher Mills, and Deputy Travis Turner.
Plaintiff claims that defendants deprived her of her civil rights under 42 U.S.C. § 1983 when
representatives from the Johnson County Sheriff’s department illegally seized her from her
grandfather’s driveway. The matter is now before the court on defendants’ Motion for Summary
Judgment (Doc. 10) and plaintiff’s Motion to Permit Discovery Under Rule 56(d) (Doc. 23). Plaintiff
responded to defendants’ summary judgment motion and subsequently filed her motion for discovery
asking the court to stay or deny the summary judgment motion so that she could more fully develop the
record in order to respond to defendants’ arguments. Defendants responded, arguing that no additional
evidence beyond what was already provided is necessary to fully resolve the question of qualified
immunity. The court agrees that no additional evidence is required to resolve the qualified immunity
issue and, for the reasons set forth below, denies defendants’ motion for summary judgment in part and
grants it in part.

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I.

Factual Background
On September 2, 2015, Deputy Travis Turner of the Johnson County Sheriff’s Department, was

dispatched to meet with Ryan McCormick and his mother in a Johnson County parking lot. Upon
arrival, Ryan informed Deputy Turner that he had filed for and been granted a Temporary Order of
Protection from Abuse (PFA) against his estranged wife, Maggie McCormick. Ryan filed the petition
in Wyandotte County and, after a hearing, a Wyandotte County judge granted the PFA, which
prohibited Maggie from interacting with Ryan. According to the petition, Ryan sought the PFA for
protection only for himself, claiming that while at a bar, Maggie allegedly sent someone outside to
attack him and then actively prevented him from calling the police for help. She also continued to call
and harass him after the incident and attempted to break into his house.
Ryan also indicated in the petition that he and Maggie had a child in common, but did not seek
protection for the child. He requested that Maggie be prohibited from entering his residence in Kansas
City, Kansas, but sought joint legal custody of the child with parenting time. Ryan submitted a
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit along with his petition,
in which he indicated that his child with Maggie, S.F.M., was born in November 2014 and was
currently residing with Maggie at a residence in Stilwell, Kansas. While the affidavit did list the birth
month and year for the child, it did not state the child’s gender or age.
The PFA was granted on September 1, 2015. The order protected only Ryan and did not
include any protection for S.F.M. The order, however, noted that “[t]emporary legal custody and
residency of the following named minor child(ren): S.F.M. II, shall be: sole legal custody granted to
Plaintiff . . . until this order expires.” (Doc. 16-1, at 14.) Within the text of the order, the judge had
the option to grant temporary parenting time to defendant or to withhold parenting time from the
defendant. The judge did not choose either of these options. The order indicated it was effective when

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signed by the judge and that “[l]aw enforcement officials shall immediately enforce this order.” (Doc.
16-1, at 15.)
Ryan provided the petition and order to Deputy Turner upon arrival at the scene. He informed
Deputy Turner that the PFA had not yet been served on Maggie and that the Wyandotte County judge
instructed him to directly contact the Johnson County Sheriff’s office for processing and service, as it
would be faster than if the court were to contact deputies for service. Deputy Turner immediately
expressed concern over whether the Johnson County Sheriff’s Department had authority to serve an
order from Wyandotte County. Ryan also explained he was unclear about the custody order as he had
only requested joint custody. Deputy Turner told Ryan and his mother that he needed to confirm his
authority to serve the order and take custody of the child. Deputy Turner began making phone calls
seeking guidance regarding the order and the custody issue.
Because the entire encounter was recorded on Deputy Turner’s body camera, the court notes
the conversation between Deputy Turner, Ryan, and Ryan’s mother immediately following his phone
call:
Deputy Turner: “Well, the only thing I’m trying to figure out for 100%
sure is usually we don’t . . . force somebody if they, like, if they don’t
want to give the kid back, we don’t forcibly take ‘em. But, we’re just
trying to make 100% sure because these things get messy.”
Ryan’s mother: “So if she won’t give the child up, um, what do we do,
go back to the judge because, and say she wouldn’t do it, and then what
do they arrest her or what?
Deputy Turner: “They may—”
Ryan’s Mother: “Because basically she’s denying a court order saying
that he has – yeah – she’d be in contempt of court for not following what
that says.”

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(Ex. B at 4:00-4:45) At this point, Deputy Turner received another phone call and then informed Ryan
and his mother that someone would be calling the civil unit in the Sheriff’s Department for guidance.
(Id. at 5:54). Deputy Turner then discussed the child custody order in the PFA:

Just because [child custody exchanges] can become really involved . . .
yeah . . . you know because if something happened to the kid, she’s
gonna say well they forcefully took my kids away . . . then it puts us in a
world of crap.
(Id. at 6:10). Ryan’s mother then told Deputy Turner that if Maggie “absolutely refuses” to hand over
the child, that she and Ryan will just call the judge. Ryan agreed with his mother and noted that he had
requested joint custody because “she has never done anything to the child.” (Id. at 6:30-6:44). Ryan
also noted that he didn’t know, based on the order, if he had to take the child at this point. (Id. at 6:46).
Ryan’s mother then stated:
Yeah, and we’re not the type that, you know, if we don’t want . . . we’re
not wrenching the child out of her hand. We’re not going to cause him
any kind of . . . if she’s refusing to do it, then we’ll just take notes,
maybe, obviously . . . you know, get your, you’ll have your thing, and
then we’ll be telling the judge “well this is the officer here and they
refused to give the child,” so I guess she’d just have to be in trouble
legally with that then, if she refuses.
(Id. at 7:00). Deputy Turner then took another call, allegedly from the department’s civil sergeant, and
then informed Ryan and his mother of his plan regarding the situation:
But basically, you know, with all this I’m going to tell her, you know,
basically if she don’t give the kid she’s going to go to jail, so that’s
basically. And, that’s what I figured, but I just wanted to make 100%
sure before I go in there and start making myself look like a fool.
(Id. at 20:50). At that point, Ryan and his mother followed Deputy Turner to the home of Linus and
Terri Baker, who are the parents of Maggie and grandparents of plaintiff. The Bakers’ residence was
listed on the PFA petition as the address at which Maggie could be served. Deputy Turner arrived on
scene and proceeded up the driveway, where he made contact with Linus Baker (“Baker”). Plaintiff,

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who was approximately two years old at the time, appeared in the driveway with Baker. Deputy
Turner told Baker, “we’re here to talk to Maggie,” to which Baker responded “you’re going to have to
leave.” (Ex. C at 1:02-1:06). Lt. Thomas Redding and Sgt. Christopher Mills of the Johnson County
Sheriff’s Department also arrived at the residence to assist Deputy Turner. After Baker asked the
officers to leave, Sgt. Mills responded, “we’re not doing that, I’ve got a court order, we’re here to take
[S.F.M.] . . . I’ve got a court order, she’s going with us.” (Id. at 0:55).
Baker continued to demand that the officers leave, and Sgt. Mills insisted that he had “a
protection from abuse order granting sole custody to the plaintiff.” (Id. at 1:08.) Baker began to
retreat up the driveway and Sgt. Mills followed him and approached plaintiff, who was standing
nearby. Sgt. Mills asked plaintiff, “are you [S.F.M.]? Come here sweetheart.” (Id. at 1:16.) As Sgt.
Mills reached down to pick up plaintiff, Baker began yelling “that is not [S.F.M.]!” (Id. at 1:19.)
Plaintiff began to cry and scream for her mother as soon as Sgt. Mills picked her up. Baker continued
to yell at Sgt. Mills to “give me that baby, give me [C.F.B.].” (Id. at 1:24.) Sgt. Mills proceeded to
carry plaintiff down the driveway noting he was going to “check with the parents” presumably about
the identity of the child. (Id. at 1:33.) Sgt. Mills carried plaintiff off the driveway and took her to the
van where Ryan was parked with his mother. Sgt. Mills asked Ryan if plaintiff was S.F.M. to which
Ryan responded “no, [S.F.M.] is a boy.” (Id. at 1:44.)
Sgt. Mills then carried plaintiff back up the driveway. Baker grabbed plaintiff out of his arms
and carried her up the driveway, continuing to demand that the officers get off his property. As Baker
took plaintiff into the house, one officer is heard asking “did the order say for us to get the kid?” (Id.
at 2:23.) As Deputy Turner began looking through the PFA order, Sgt Mills suggested they should
“call Deer,” and noted “I wish they would have handled it.” (Ex. C, at 2:39.) Sgt. Mills proceeded to
get “Deer” on the phone and asked “hey, how much authority do we have? He’s telling us to get off

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the property, and we can’t take the child. All this stuff. He’s an attorney. How enforceable is this
order?” (Ex. D, at 3:18.)
The officers eventually left the driveway in order to update Ryan and his mother who were still
in their van parked on the street. After a few minutes, Ryan and his mother drove away and the
incident was over. Officers were unable to confirm whether Maggie or S.F.M. were at the residence,
and were unable to serve her with the PFA at that time.
II.

Legal Standards
a. Summary Judgment
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine

issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A “genuine” factual dispute requires more than a mere scintilla of evidence. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial
burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party demonstrates an absence of evidence in support of an
element of the case, the burden then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. The nonmoving party
“may not rest upon the mere allegations or denials of his pleading.” Id.
In making the summary judgment determination, the court must view the evidence and
reasonable inferences in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)). Ultimately, the court evaluates “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is so one-sided that one party must prevail
as a matter of law.” Liberty Lobby, 477 U.S. at 252.

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b. Qualified Immunity
The doctrine of qualified immunity “balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). It protects “all but the plainly incompetent or those who knowingly violate
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). This protection applies “regardless of whether
the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.’” Callahan, 555 U.S. at 231 (quoting Groh v. Ramirez, 540 U.S. 551, 567
(2004)).

The purpose behind qualified immunity is to ensure that “insubstantial claims against

government officials [are] resolved prior to discovery.” Callahan, 555 U.S. at 231.
When a defendant has moved for summary judgment based on qualified immunity, the court
must “view the facts in the light most favorable to the non-moving party and resolve all factual
disputes and reasonable inferences in its favor.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th
Cir. 2014).

A defendant is entitled to qualified immunity unless the plaintiff can show “(1) a

reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly
established at the time of the defendant’s conduct.” Id. If a plaintiff successfully overcomes the twopart analysis, the burden shifts to the defendant “as an ordinary movant for summary judgment, of
showing no material issues of fact remain that would defeat the claim of qualified immunity.” Booker,
745 F.3d at 412.
III.

Analysis
Plaintiff brings three claims against defendants, all under 42 U.S.C. § 1983—(1) unlawful

arrest for the seizure of her person under the Fourth Amendment, (2) excessive force under the Fourth
Amendment, and (3) municipal liability under Monell v. Dep’t of Soc. Servs. of City of N.Y.C., 436

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U.S. 658 (1978), for policies and customs violative of civil rights. Defendants allege they are entitled
to qualified immunity for the Fourth Amendment claims. They further argue plaintiff has failed to
state a claim for relief for the Monell claim.
a. Fourth Amendment Claims
i. Constitutional Violations
Plaintiff argues defendants violated her Fourth Amendment rights both when they illegally
seized her and by using excessive force during the seizure. Defendants have moved for summary
judgment on counts one and two, arguing they are entitled to qualified immunity.
As mentioned above, in order to overcome defendants’ assertion of qualified immunity,
plaintiff must show that a reasonable juror could find defendants both violated her constitutional rights
and that these rights were clearly established at the time of defendants’ conduct.
Defendants first address plaintiff’s claim that her Fourth Amendment rights were violated when
she was illegally seized from her grandfather’s driveway. In conducting the qualified immunity
analysis, the court must “first consider whether plaintiff’s allegations, if true, establish a constitutional
violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). Because the case is at the summary judgment
stage, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the
party opposing the [summary judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007). In
qualified immunity cases, this often means adopting the plaintiff’s version of facts, so long as that
version is not “so utterly discredited by the record that no reasonable jury could have believed him.”
Id. at 380.
Plaintiff’s version of the facts is largely undisputed. Body camera evidence provides a reliable
account of the incident and supports plaintiff’s assertions of fact. Thus the court must decide based on

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the evidence in the record whether a reasonable jury could conclude plaintiff’s Fourth Amendment
rights were violated.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the person or things to be seized.
U.S. Const. amend. IV. The purpose of the Amendment is “to safeguard the privacy and security of
individuals against arbitrary invasions by government officials.” Camara v. Mun. Court of City &
Cnty. of S.F., 387 U.S. 523, 528 (1967). A seizure, as defined by the Fourth Amendment, occurs when
“a reasonable person would believe that he or she is not ‘free to leave.’” Roska ex rel. Roska v.
Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003) (quoting Florida v. Bostick, 501 U.S. 429, 435
(1991)). “Because the Amendment focuses on safeguarding persons from unwarranted intrusion, and
not on regulating the behavior of particular governmental actors, the prohibition against unreasonable
seizures extends to civil, as well as criminal, investigations by the government.” Jones v. Hunt, 410 F.
3d 1221, 1225 (10th Cir. 2005).
A seizure, however, is only illegal under the Fourth Amendment if it is unreasonable. To be
reasonable, a seizure—with limited exceptions—requires either a warrant or probable cause. Id.
(citing Camara, 387 U.S. at 528–29). In recognizing the many “factual determinations that must
regularly be made by agents of the government,” the Supreme Court has held that the reasonableness
requirement of the Fourth Amendment allows room for reasonable mistakes. Illinois v. Rodriguez, 497
U.S. 177, 185–86 (1990) (noting mistakes “must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability.”).

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The Tenth Circuit has found that a government agent’s removal of a child from their home
constitutes a seizure under the Fourth Amendment. See Burgess v. Houseman, 268 F. App’x 780, 783
(10th Cir. 2008) (finding an unreasonable seizure when a social worker helped seize and detain a child
without a warrant or probable cause to believe the child would be abused if she remained in her
mother’s custody); Roska, 328 F.3d at 1244 (finding child was unreasonably seized within meaning of
the Fourth Amendment when state actors removed him from his home under belief that his health was
at risk.).
Defendants argue they are entitled to qualified immunity because there was no violation of
plaintiff’s Fourth Amendment rights under the first prong of the qualified immunity analysis.
Defendants claim they made a reasonable mistake of fact as to the identity of plaintiff, which made the
seizure reasonable under the law. Defendants state that the PFA order did not indicate the gender of
the child at issue and at no time did Ryan or his mother mention another child might be present at the
residence.

Defendants also argue that Sgt. Mills made a reasonable mistake of fact when he

misidentified plaintiff based on evidence from the body-cam video which, defendants allege, shows
plaintiff nodding affirmatively and raising her arms when Sgt. Mills asks if she is S.F.M.
The court is unpersuaded by defendants’ arguments. Based on the evidence provided in the
record, the court determines that a jury could find that defendants’ actions were not reasonable under
the circumstances. First and foremost, plaintiff was seized as defined by the Fourth Amendment. Sgt.
Mills lifted her off the ground and carried her off the driveway without a warrant or exigent
circumstances justifying the seizure. Even after her grandfather told Sgt. Mills that she was not
S.F.M., Sgt. Mills continued to carry plaintiff down the driveway noting he was going to “check with
the parents.” At that point, plaintiff was not free to leave until Sgt. Mills had confirmed her identity.

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The seizure, however, may still be lawful if defendants made a reasonable mistake of fact as
to the child’s identity. In instances, for example, where officers arrest the wrong person pursuant to a
valid warrant, the court must evaluate the totality of the circumstances to determine whether the
mistake was reasonable. See Hill v. California, 401 U.S. 797, 802–804 (finding that “when [police]
reasonably mistake a second party for the first party, then the arrest of the second party is a valid
arrest” only when the circumstances surrounding the mistaken arrest justify the mistake); Rodriguez v.
Farrell, 280 F.3d 1341, 1347 (11th Cir. 2002). In Farrell, the Eleventh Circuit considered, as part of
its reasonableness analysis in a mistaken arrest case, the length of time officers had before effectuating
the arrest. 280 F.3d at 1348 (noting the officers had “minutes, to make their determination [of the
arrestee’s identity], not months or even days.”).
While defendants were obviously mistaken as to the identity of the child, the court believes
that, based on the evidence provided, a reasonable jury could find the mistake was unreasonable.
While the PFA order did not state S.F.M.’s gender or explicitly state his age, there was plenty of time
for Deputy Turner to confirm basic identification information regarding the child, as he spent
approximately 20 minutes speaking to Ryan and his mother prior to the incident. The evidence is
unclear if Sgt. Mills did anything to investigate or confirm the child’s identity before arriving on scene
and immediately seizing plaintiff. Further, there is a genuine dispute of fact as to plaintiff’s reaction
on the video. The court does not accept defendants’ assertion that it is clear from the video plaintiff
nodded affirmatively and raised her arms to be picked up by Sgt. Mills when asked if she was S.F.M.;
rather, reasonable minds could differ as to her actions in the seconds before she was picked up.
Additionally, Baker began yelling at Sgt. Mills that plaintiff was not S.F.M. as soon as she was picked
up. Sgt. Mills, in the absence of exigent circumstances, ignored Baker and continued to carry the
screaming child down the driveway.

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The court finds plaintiff has met her burden on the first prong of the qualified immunity
analysis and has established that a reasonable jury could find defendants violated her Fourth
Amendment rights.
ii. Clearly Established Law
Under the second prong of qualified immunity, plaintiffs must show that the law was clearly
established to put defendants on notice that their conduct was unconstitutional. Whether defendants
may be held personally liable for the alleged unlawful conduct “generally turns on the ‘objective legal
reasonableness’ of the action [internal citation omitted] . . . assessed in light of the legal rules that were
‘clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). In
order for the law to be clearly established at the time of the action, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand what he is doing violates that right.” Id.
at 640. This, however, does not mean that the very “action in question has previously been held
unlawful,” rather, the unlawfulness of the action must be apparent “in the light of pre-existing law.”
Id.
Qualified immunity also applies if a reasonable officer could have believed that his conduct
was lawful, “in light of clearly established law and the information the . . . officers possessed.” Groh,
540 U.S. at 566 (Kennedy, J. dissenting). “The central question is whether someone in the officer’s
position could reasonably but mistakenly conclude that his conduct complied with the Fourth
Amendment.” Id. Reasonable mistakes may occur because the officer: (1) “may be unaware of
existing law and how it should be applied,” (2) the officer “may understand important facts . . . and
assess the legality of his conduct based on that misunderstanding, or (3) “an officer may misunderstand
elements of both the facts and the law.” Id. at 566–67.

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Defendants provide three justifications for qualified immunity under prong two: (1) the PFA
order on its face gave them the authority to seize S.F.M. (or plaintiff, mistakenly), (2) if the PFA did
not, in fact, grant them the authority to seize S.F.M., defendants made a reasonable mistake of law as
to whether they had the authority to do so, and (3) if their mistake of law was unreasonable, the law is
not clearly established as to put them on notice that their conduct was unconstitutional.
The court first acknowledges the parties’ arguments over whether the UCCJEA requires a
separate warrant in order to seize a child for child custody purposes. The court, however, declines to
comment on whether the UCCJEA applies.

Instead the court finds, under Kansas law, it was

unreasonable for defendants to believe the PFA granted them the authority to seize the child.
Further—based on the current uncontroverted record—defendants’ conduct was objectively
unreasonable because defendants made no attempt to serve the PFA on Maggie before seizing plaintiff,
especially when there was no demonstrated risk of danger to the child.
The threshold issue in the second prong of the qualified immunity analysis is whether the law
was clearly established to put defendants on notice their conduct was unconstitutional. In this case, the
question is whether it was clearly established that a warrantless seizure of a child, absent exigent
circumstances, violates the Fourth Amendment.

The Tenth Circuit has held that it is clearly

established that children enjoy Fourth Amendment protections against unreasonable seizures. See
Burgess, 268 F. App’x at 783 (“The law was clearly established . . . that children enjoy Fourth
Amendment rights to be free from seizure, including the improper removal from their home.”) (quoting
J.B. v. Washington Cnty., 127 F.3d 919, 928–29 (10th Cir. 1997)). As mentioned above, a warrantless
seizure is unreasonable under the Fourth Amendment.

Exigent circumstances may justify “a

warrantless seizure and detention for child protective purposes,” however, “this exception is narrow,
and must be jealously and carefully drawn.” Burgess, 268 F. App’x at 783; see also Roska, 328 F.3d at

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1242 (“Simply put, unless the child is in imminent danger, there is no reason that it is impracticable to
obtain a warrant before . . . [removing] a child from the home.”). The law, therefore, was clearly
established that would put defendants on notice that their act of seizing plaintiff, without a warrant or
exigent circumstances, was unconstitutional.
Once a court determines a right at issue was clearly established, “it becomes defendant’s
burden to prove that her conduct was nonetheless objectively reasonable.” Roska, 328 F.3d at 1251.
“The objective legal reasonableness of the officer's actions is a legal question.” Id. Defendants argue
they reasonably believed the PFA gave them the authority to seize S.F.M. (or plaintiff, mistakenly).
Kansas law, however, does not support this proposition. Nothing in the Kansas Protection from Abuse
Act authorizes the seizure of a child pursuant to a PFA, especially when the child is not the subject of
the PFA and is not in immediate danger. When a child is in immediate danger, the Kansas Code for
Care of Children allows for a judge to issue an ex parte order directing authorities to take a child into
custody. See Kan. Stat. Ann. § 38-2242(a). In any other instance when the welfare of the child is not
at issue, a child custody order may be enforced as any other judgment. See § 12:37. Enforcement of
custody, 2 Kan. Law & Prac., Family Law § 12:37. In instances where a parent refuses to comply with
a custody order, that parent may be held in contempt of court or may be charged with a criminal
interference with parental custody. See id.; Kan. Stat. Ann. § 21-5409. Under the Kansas Protection
from Abuse Act, a court may find a defendant in contempt if, after a hearing, the court finds the
defendant in violation of any order. See Kan. Stat. Ann. § 60-3110.
In the present case, the temporary PFA order, protecting only Ryan and not S.F.M., granted
Ryan sole legal custody of S.F.M. until the following hearing date. Nothing in the order directed
officers to forcibly remove S.F.M. from Maggie’s custody. The custody order, rather, was an order
within the PFA that was enforceable like any order. Further, based on the evidence presented,

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defendants indicated they understood the bounds of their authority in regards to the child custody
order. Deputy Turner spoke at length with Ryan and his mother prior to the incident telling them,
“[w]ell, the only thing I’m trying to figure out for 100% sure is usually we don’t . . . force somebody if
they, like, if they don’t want to give the kid back, we don’t forcibly take ‘em. But, we’re just trying to
make 100% sure because these things get messy.” After speaking to other officers on the phone,
Deputy Turner told Ryan and his mother, “But basically, you know, with all this I’m going to tell her,
you know, basically if she don’t give the kid she’s going to go to jail, so that’s basically. And, that’s
what I figured, but I just wanted to make 100% sure before I go in there and start making myself look
like a fool.” Deputy Turner’s statements prior to the incident indicate that he was aware that the
Sheriff’s Department did not have the authority to forcibly remove a child from a parent’s custody and
that the remedy for non-compliance with a custody order was contempt of court. The court is
unpersuaded by defendants’ argument that they reasonably believed the PFA granted them authority to
forcibly remove a child from her home in order to facilitate the transfer of child custody.
The court also finds defendants’ conduct was objectively unreasonable because the law is
clearly established that officers do not have the authority to remove a child from custody without a
hearing and notice to the parent, unless they have an ex parte order to remove the child or the child is
in imminent danger. See Gomes v. Wood, 451 F. 3d 1122, 1128 (10th Cir. 2006) (finding state officials
may not remove children from the home, even through a temporary seizure, without due process of law
which requires that parents “receive prior notice and a hearing” unless emergency circumstances exist
which pose “an immediate threat to the safety of a child.”). The Tenth Circuit, in interpreting an
Oklahoma protection from abuse law, found that absent evidence of child endangerment, parents are
constitutionally entitled some opportunity to comply with court orders before officers can remove their
children. See Hollingsworth v. Hill, 110 F.3d 733, 740 (10th Cir. 1997).

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Here, the judge granted Ryan sole legal custody of S.F.M. as part of the PFA against Maggie.
Defendants were dispatched to serve the PFA on Maggie. And while the PFA did authorize law
enforcement officers to “immediately enforce this order” and to “provide any other assistance
necessary to enforce [the] orders,” the law is clearly established that a parent must first have notice of
the change in custody. When defendants arrived at the Baker residence, they did not attempt to serve
Maggie with the PFA, rather, they immediately sought custody of the child without first giving Maggie
notice that sole custody had been granted to Ryan. Upon arrival, Sgt. Mills told Baker “we’re here to
take [S.F.M.] . . . I’ve got a court order, she’s going with us.” (Ex. D, at 0:55.) Defendants did not
allow Maggie an opportunity to peacefully transfer custody of S.F.M. They instead saw a young child
and assumed they had the authority to seize the child in order to facilitate the custody transfer, despite
the absence of exigent circumstances and without confirming the child’s identity.
In conclusion, the law is clearly established that a warrant is required before a child may be
seized by law enforcement, absent exigent circumstances. Defendants’ act of seizing a child, and in
fact the wrong child, before attempting to serve the PFA on the subject of the PFA was objectively
unreasonable. There was no evidence, beyond alleged threatening conduct between Ryan and Maggie,
that would lead officers to believe the child at issue was in imminent danger, thus justifying an
immediate seizure of the child. For these reasons, the court finds plaintiff’s rights were clearly
established and defendants are not entitled to qualified immunity.
The court is also unpersuaded by defendants’ argument that the seizure of plaintiff was lawful
under the community caretaking function exception to the Fourth Amendment warrant requirement.
“A warrantless arrest may also be justified if the arresting officer was acting in a ‘community
caretaking’ role.” Storey v. Taylor, 696 F.3d 987, 993 (10th Cir. 2012). Defendants argue this
exception applies to the warrantless seizure of plaintiff because they were acting under a belief that the

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child at issue may be in danger. As mentioned above, there is no evidence in the record to support
defendants’ argument. The PFA was issued for protection only of Ryan. Ryan had the opportunity to
request a PFA for S.F.M. and declined to do so. He also requested joint custody in the PFA petition.
Video evidence shows that neither Ryan nor his mother feared S.F.M. was in danger, and expressed
that they did not want to force S.F.M. from Maggie if she refused to transfer custody, rather, they
would go back to the judge the following day and seek legal remedies for enforcing the custody order.
There is no evidence that plaintiff or S.F.M. were in imminent danger that would justify their
immediate seizure from the Baker home. See Roska, 328 F.3d at 1245 (noting “the mere possibility of
danger is not enough to justify a removal without appropriate process.”)
For the reasons set forth above, the court denies defendant’s motion for summary judgment on
plaintiff’s claim she was seized in violation of the Fourth Amendment.
Defendants further argue that that Lt. Reddin, and Deputy Turner neither personally
participated or ordered Sgt. Mills to pick up plaintiff, and they therefore are entitled to qualified
immunity as they were not personally involved in the alleged constitutional violation.
The Tenth Circuit has found it is clearly established that:
all law enforcement officials have an affirmative duty to intervene to
protect the constitutional rights of citizens from infringement by other
law enforcement officers in their presence. An officer who fails to
intercede is liable for the preventable harm caused by the actions of the
other officers where that officer observes or has reason to know: (1) that
excessive force is being used, (2) that a citizen has been unjustifiably
arrested, or (3) that any constitutional violation has been committed by a
law enforcement official [.] In order for liability to attach, there must
have been a realistic opportunity to intervene to prevent the harm from
occurring. Whether an officer had sufficient time to intercede or was
capable of preventing the harm being caused by another officer is an
issue of fact for the jury unless, considering all the evidence, a
reasonable jury could not possibly conclude otherwise.

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Hall v. Burke, 12 F. App’x 856, 861 (10th Cir. 2001). Plaintiff argues that Lt. Reddin and Deputy
Turner failed to intervene and instead blocked plaintiff’s grandfather, Baker, from following Sgt.
Mills, despite Baker’s repeated claims that plaintiff was not S.F.M.
The court is not convinced that “a reasonable jury could not possibly conclude” that Lt. Reddin
and Deputy Turner had sufficient time to intercede or prevent the harm, particularly due to the limited
record available at this time. For this reason, the court denies qualified immunity for all three deputies
on the Fourth Amendment seizure claim.
In addition to the unreasonable seizure claim, plaintiff also alleges her Fourth Amendment
rights were violated because defendants used excessive force when seizing her. “Claims that state
actors used excessive force—deadly or not—in the course of a seizure are analyzed under the Fourth
Amendment’s reasonableness standard.” Roska, 328 F.3d at 1243 (citing Graham v. Connor, 490 U.S.
386, 395 (1989)). Objective reasonableness turns on the “facts and circumstances of each particular
case,” and a court must make such a determination “from the perspective of a reasonable officer on the
scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396. See also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2476 (2015) (“For these reasons,
we have stressed that a court must judge the reasonableness of the force used from the perspective and
with the knowledge of the defendant officer.”).
Defendants argue that any force used was reasonable under the circumstances as Sgt. Mills
briefly, and gently, picked up plaintiff and carried her less than 100 feet for approximately 34 seconds.
Defendants claim this is reasonable considering the circumstances—that they were attempting to
transfer custody pursuant to the PFA and needed to confirm the child’s identity with Ryan. Plaintiff
argues that any force used was unreasonable given defendants had no authority to seize her. She

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suggests defendants should have used their phones to take a picture and use that picture to confirm her
identity with Ryan.
Plaintiff’s contention would require the court to assume that the force used in the seizure was
necessarily excessive simply because the seizure itself was unreasonable. Tenth Circuit law, however,
precludes this logical conclusion. In Cortez v. McCauley, 478 F.3d 1108, 1126 (10th Cir. 2007), the
Tenth Circuit found that an excessive force inquiry “evaluates the force used in a given arrest or
detention against the force reasonably necessary to effect a lawful arrest or detention under the
circumstances of the case.” Thus, if officers use a reasonable amount of force to effectuate an arrest
that is unlawful under the Fourth Amendment, a plaintiff would have a claim for “unlawful arrest or
detention but not an additional claim for excessive force.” Id.
Based on the evidence in the record, the court determines that a reasonable jury could not find
that defendants’ conduct was excessive. While defendants lacked authority to seize plaintiff, the
seizure itself was not excessive. Plaintiff’s argument that defendants could have used their phone to
take a photo for identity confirmation purposes is made with the benefit of hindsight, which the law
prohibits the court to do.
For these reasons, the court grants qualified immunity for the defendants on the excessive force
claim.
b. Monell Claim
Defendants argue they are entitled to summary judgment on plaintiff’s claim under Monell v.
Dep’t of Soc. Servs. of City of N.Y.C., 436 U.S. 658 (1978). First, defendants state the BOCC should
be dismissed as a party because it has no involvement with the Sheriff’s Department’s training,
supervision, policies or practices. Defendants also argue that the Monell claim should be dismissed
because plaintiff has failed to adequately allege any facts to support her claim.

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Plaintiff claims the Johnson County Sheriff’s Department is liable under Monell based on its
policies and customs which operated to deprive plaintiff of her rights. These polices include informal
customs within the department, decisions of authorities with final policymaking authority, and failure
to adequately train or supervise deputies.
Section 1983 liability attaches to a municipality only when “execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury . . . .” Monell, 436 U.S. at 694 (1978). To prevail on a
Monell claim, a plaintiff must establish a “direct causal link between a municipal policy or custom and
the alleged constitutional deprivation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
The Supreme Court has held that “failure to train” can be the basis for liability under § 1983,
however, a plaintiff must show that the failure to train “amounts to deliberate indifference to the rights
of persons with whom the police come into contact.” Id. at 387–88. Therefore, § 1983 liability only
attaches when the failure to train reflects “a deliberate of conscious choice by a municipality . . . .” Id.
at 389. Deliberate indifference can be shown when “in light of the duties assigned to specific officers
or employees the need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city can reasonably be said
to have been deliberately indifferent to the need.” Id. at 390.
At the outset, the court finds plaintiff has not established that the BOCC is a final policymaker
in regard to the Monell claim. Under Kansas law, the sheriff is an independent elected official of the
county. See Kan. Stat. Ann. § 19–801a; Blume v. Meneley, 283 F. Supp. 2d 1171, 1174 (“The sheriff is
an independently elected officer whose office, duties, and authorities are established and delegated by
the legislature. The sheriff is not a subordinate of the board of county commissioners . . . .”) (quoting
Bd. of Cnty. Comm’rs of Cnty of Lincoln, Kan. v. Nielander, 62 P.3d 247 (Kan. 2003))). “The Board

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of County Commissioners has no authority to supervise, discipline, or remove the sheriff or his
subordinates. . . [a]ccordingly, the conduct of the sheriff and his subordinates cannot be attributed to
the county commissioners.” Lee v. Wyandotte County, Kan., 586 F. Supp. 236, 238–39 (D. Kan.
1984). And while the BOCC has some authority over specific Sheriff’s Department functions—
namely the budget and personnel actions—plaintiff has not established that the BOCC was the final
policymaker in regard to any of the policies or decisions at issue in this specific case. For these
reasons, the BOCC is dismissed as a defendant.
As for the remaining defendants, the court finds that summary judgment is not appropriate at
this time. There is evidence in the record that indicates there was confusion as to the authority to serve
civil papers and proper procedures for serving civil papers, including policies dealing with child
custody situations.

At this point, defendants have not established they are entitled to summary

judgment as a matter of law as to whether Johnson County Sheriff’s Department officials are liable
under § 1983 for failure to train.
In conclusion, the court denies defendants’ Motion for Summary Judgment on counts one
(Unlawful Seizure) and three (Municipal Liability), but grants summary judgment on count two
(Excessive Force).
IT IS THEREFORE ORDERED that defendant’s Motion to Dismiss (Doc. 10) is granted in
part and denied in part.
IT IS FURTHER ORDERED that defendant Board of Commissioners of Johnson County,
Kansas is dismissed from the case.
IT IS FURTHER ORDERED that plaintiff’s Motion for Discovery (Doc. 23) is denied as
moot.
Dated May 16, 2017, at Kansas City, Kansas.

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s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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