Walker et al v. St. Louis, Missouri City of et al
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' motion for partial summary judgment [ECF No. 24 ] is DENIED. IT IS FURTHER ORDERED that defendants' motion for summary judgment [ECF No. 28 ] is GRANTED in part. Counts I, II, III, IV, and VII are dismissed. IT IS FINALLY ORDERED that defendants' motion for protective order [ECF No. 37 ] is DENIED as moot. Signed by District Judge Catherine D. Perry on 12/29/2016. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LEON WALKER, JR., et al.,
ST. LOUIS, MISSOURI,
CITY OF, et al.,
Case No. 4:15 CV 1254 CDP
MEMORANDUM AND ORDER
Plaintiffs bring this case under 42 U.S.C. § 1983, alleging that their
constitutional rights were violated by a police search of their home pursuant to a
search warrant and by a city building inspection conducted after that search.
Defendants are detective Ronald Vaughan, who obtained the search warrant;
building inspector Hershell Wallace, who conducted the home inspection; and the
City of St. Louis, Missouri. Both sides have filed motions for summary judgment.
The undisputed facts show that detective Vaughan is entitled to qualified
immunity. Because liability under § 1983 is personal, Vaughan is not responsible
for any alleged actions of the SWAT team. The counts against him will be
dismissed. Plaintiffs fail to show the City has a policy of using SWAT to execute
search warrants with no-knock entries whenever guns may be present. Even if
such a policy existed, plaintiffs cannot prove injury. The City’s motion will be
granted on this count for injunctive relief. However, neither side will be granted
summary judgment on the three counts pertaining to Project 87 building
inspections because genuine disputes of fact exist.
Summary Judgment Standard
In determining whether to grant summary judgment, the court views the
facts – and any inferences from those facts – in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The movant bears the burden of establishing that (1) it is
entitled to judgment as a matter of law and (2) there are no genuine issues of
material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Once the movant has met this burden, however, the nonmoving party may
not rest on the allegations in its pleadings but must, by affidavit and other
evidence, set forth specific facts showing that a genuine issue of material fact
exists. Fed. R. Civ. P. 56(c)(1), (e). Where a factual record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial. Matsushita, 475 U.S. at 587.
“[T]he filing of cross motions for summary judgment does not necessarily
indicate that there is no dispute as to a material fact, or have the effect of
submitting the cause to a plenary determination on the merits.” Wermager v.
Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983). Instead, each summary
judgment motion must be evaluated separately on its own merits to determine
whether a genuine issue of material fact exists and whether the movant is entitled
to judgment as a matter of law. Husinga v. Federal–Mogul Ignition Co., 519 F.
Supp. 2d 929, 942 (S.D. Iowa 2007).
On March 4, 2016, defendant detective Michael Vaughan sought and
obtained a state-court search warrant for 5406 Geraldine Avenue in the City of St.
Louis, Missouri. His affidavit in support of the warrant attested to his belief that
heroin and illegal firearms, along with other evidence of drug trafficking, were
being kept there by Darron Ford and others. Vaughan personally appeared before
a state-court judge, who issued the warrant to search “Darron Ford … and 5406
Geraldine Avenue” for the contraband.
The narrative portion of the affidavit stated that Vaughan had obtained
information from a reliable confidential informant (CI) whom he had used in more
than ten previous investigations.2 Vaughan recited that the CI said he had been
inside the building on multiple occasions, including during the past 48 hours, and
had observed persons known as “Mark” and “Roscoe” there, along with large
Unless indicated specifically otherwise, the facts set out here are undisputed.
The gender and identity of the confidential informant are unknown. For ease of discussion, I
will refer to the CI with a male pronoun.
quantities of crack cocaine, heroin, and multiple firearms. The CI indicated that
the occupants had ties to a street gang that had been recently engaged in a shooting
in the area.
Vaughan’s affidavit stated that a search warrant had been executed not long
ago at the next door house, 5412 Geraldine, in which crack cocaine and firearms
had been seized from Darron Ford. The description the CI gave of “Mark”
matched that of Darron Ford, and the CI identified a photo of Ford as “Mark.”
The affidavit related that Vaughan and his partner, detective Michael Kegel,
conducted surveillance at 5406 Geraldine on March 3 and 4, for approximately two
hours each day. Vaughan swore that during each period of surveillance, they
observed approximately ten individuals coming and going from the residence, and
staying for only brief periods of time. The affidavit stated that on both occasions
the officers observed a subject matching the description of “Roscoe” in the rear
yard of 5406 Geraldine.
Police executed the search warrant around 8:15 a.m. on March 5. A SWAT
team knocked and yelled “police” and then very shortly thereafter struck the door
several times with a battering ram. When the door failed to open, they broke a
window, which shattered at the same time that the door gave way. They threw a
“flash bang” device into the front room. Plaintiffs Leon Walker, Wanda Jean
Millbrook, Correll Taylor Millbrook, and Victor Wayne Millbrooks 3 lived at 5406
Geraldine. Leon Walker had already left for work, but Wanda, Correll, and Victor
(referred to as “Millbrook plaintiffs”) were home when the SWAT team entered.
They were handcuffed and brought to the front room. Once SWAT cleared the
house, detective Vaughan entered the residence. The search of the plaintiffs’
residence by Vaughan and other officers yielded marijuana, drug paraphernalia,
and three firearms.4
After making the entry at 5406, the SWAT team then went to 5412
Geraldine (the two residences are separated by a vacant lot), and made entry for
execution of a separate search warrant there. That warrant had been acquired by
Vaughan’s partner Kegel, also on the previous day. Kegel had appeared before the
same state-court judge to obtain that warrant an hour or two after Vaughan had
obtained his warrant. Neither affidavit mentioned that warrants were being sought
for both houses at the same time. Vaughan and Kegel testified that they believed
that target suspect Darron Ford was using both residences to sell drugs.
Following the searches of both residences, the officers requested building
inspections as part of the City of St. Louis’ Project 87 Program. Under City
Ordinances, Project 87 building inspections have been conducted of nuisance and
Unlike other plaintiffs, Victor spells his last name with an “s” on the end.
Plaintiffs’ lawyer has characterized these as “old” firearms and has said the marijuana was Leon
Walker’s personal use marijuana, but no evidence was presented to support these
problem properties since the mid-1990s. It is police department policy that police
officers contact dispatch for a Project 87 building inspection after executing a
search warrant. Defendant building inspector Hershell Wallace arrived at 5406
Geraldine Avenue, and asked plaintiff Victor Millbrooks to consent to an
inspection of the premises. Wallace provided Victor with a City Inspection
Consent Form, which Victor signed. Wallace and Victor have slightly different
versions of their interaction: Wallace testified that Victor was not handcuffed and
that he told him that if consent was not provided, “we would probably – it would
be condemned anyway until an inspection can be obtained.” Victor testified that
he was uncuffed just to sign the form and then again placed back on the couch, and
that Wallace “demanded” he sign the form, explaining: “Well, what I mean by
demanded is basically you sign this or else. Basically if you don’t sign this, I
guess the house – forecloses or something was going to happen with the house.
We would get put out, something like that.” Before entering the house, the only
building code violation that Wallace noticed was the broken front window through
which the police had thrown the “flash bang.” Wallace found nothing unsafe about
the building, but the Building Department later sent the plaintiffs a letter listing
some interior items that needed to be fixed, which Wallace characterized as not
Police Search and Seizure
Five counts of the amended complaint relate to the police search. Count I is
brought by all four plaintiffs against defendant Vaughan for unreasonable search
under the Fourth Amendment. 5 Counts II through IV are brought by the Millbrook
plaintiffs against Vaughan for unreasonable initial seizure, continued seizure, and
excessive force. Count VII is brought against the City of St. Louis and seeks an
injunction prohibiting the City from engaging in SWAT team “no knock” full
tactical raids on drug houses without particularized concern beyond the presence of
A. Unreasonable Search and Seizure
Detective Vaughan asserts that he is entitled to qualified immunity on all
claims brought against him. “Qualified immunity protects a government official
from liability in a section 1983 action unless the official’s conduct violated a
clearly established constitutional or statutory right of which a reasonable person
would have known.” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To overcome the
defense of qualified immunity, a plaintiff must show: (1) the facts, viewed in the
Plaintiffs’ challenge to the warrant has changed over time. Initially they alleged and argued
that the police were mistaken about the house numbers, and really intended this search warrant to
have been for 5412 Geraldine, where Darron Ford lived, and so Vaughan must have been lying
about the address where he said he conducted the surveillance, and about the reliability of the CI.
More recently they have argued that the police mislead the judge who issued the warrant by not
pointing out to her that they were seeking related search warrants when they appeared in front of
her a couple of hours apart.
light most favorable to the plaintiff, demonstrate the deprivation of a constitutional
or statutory right; and (2) the right was clearly established at the time of the
deprivation.” Howard v. Kansas City Police Dep’t., 570 F.3d 984, 988 (8th Cir.
2009). The court may address either prong first. Id. (citing Pearson v. Callahan,
555 U.S. 223, 236 (2009)).
It is clearly established that the Fourth Amendment requires a truthful
factual showing of probable cause before a warrant can issue. Moody v. St.
Charles Cty., 23 F.3d 1410, 1412 (8th Cir. 1994) (citing Burk v. Beene, 948 F.2d
489, 494 (8th Cir. 1991)). Therefore I must consider whether the facts demonstrate
a violation of this clearly-established constitutional right.
Plaintiffs assert that Vaughan is not entitled to qualified immunity because
he made false statements and omitted material facts in the search warrant
application. They allege that Vaughan lied in the affidavit when he said he had
surveilled the residence and saw multiple people who came and left after a short
period of time. As evidence to support this argument, plaintiffs cite only to their
own deposition testimony where they deny ever being involved in drug dealing,
and say that they had no knowledge of drugs ever being sold from or stored in their
To undermine the validity of the search warrant, plaintiffs must show that
detective Vaughan’s sworn statements in the affidavit supporting the warrant
“were deliberately false or made with reckless disregard for the truth.” Walker v.
Bonenberger, 438 F.3d 884, 889 (8th Cir. 2006) (citing Franks v. Delaware, 438
U.S. 154, 171 (1978)). “Information in an affidavit to establish probable cause
must be truthful in the sense that the information put forth is believed or
appropriately accepted by the affiant as true.” Moody, 23 F.3d at 1412 (quoting
Franks, 438 U.S. at 165 (internal quotations omitted)). For a plaintiff to establish
falsity, the plaintiff must do more than provide his “own naked assertions” that he
did not commit the crime. Moody, 23 F.3d at 1412. To withstand summary
judgment the plaintiff must “substantiate his allegations with sufficient probative
evidence [that] would permit a finding in [his] favor on more than mere
speculation, conjecture, or fantasy.” Id. (internal quotations omitted).
In a similar case, the Eighth Circuit affirmed qualified immunity where the
police had searched the plaintiff’s apartment, seized her person, and later
discovered that they had entered the wrong apartment unit. Walker v.
Bonenberger, 438 F.3d 884 (8th Cir. 2006). In Bonenberger, the police had
obtained a search warrant based on statements of a reliable confidential informant
and their own surveillance. When police went to execute the warrant, they
observed the target suspect conducting drug transactions on the sidewalk in front
of the residence. While arresting him, police asked him where he lived and he said
the second floor. Id. at 886-87. The search warrant they had was for the second
floor unit “A;” there were two doors on the second floor landing, and neither was
marked as unit “A.” Police used a sledgehammer to break down the plaintiff’s
door, conducted a brief search, and an officer remained with plaintiff for an hour
while the other second floor unit was searched. Police later admitted their search
of the plaintiff’s unit was a mistake. The district court ruled, and the court of
appeals affirmed, that the police did not violate plaintiff’s rights under the Fourth
Amendment. Id. at 888. The court found that the plaintiff failed to overcome the
presumption of validity regarding the police officer’s affidavit in support of the
warrant. Plaintiff’s “bare assertion” that drug transactions were never conducted
from her apartment was insufficient to make a substantial showing of warrant
invalidity. Id. at 889. The appellate court added that even if the police officer had
been mistaken in what he witnessed during surveillance, there was still no showing
that he deliberately or recklessly misrepresented his observations when he applied
for the warrant. Id. at 889-90.
The Eighth Circuit has held that to meet their burden of proving intentional
or reckless inclusion of false statements in a warrant affidavit, plaintiffs cannot
respond with general attacks upon defendant’s credibility, but must present
affirmative evidence of bad motive or of a personal stake in the matter. Morris v.
Lanpher, 563 F.3d 399, 403 (8th Cir. 2009). A court may not infer bad motive
“absent even a scintilla of material fact supporting that inference.” Id. Plaintiffs
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must offer specific, nonconclusory evidence that a defendant police officer
believed his affidavit was false or recklessly misconstrued facts. Id.; Bagby v.
Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996).
In our case, plaintiffs testified in their depositions that they were not aware
of drugs ever being sold out of their 5406 Geraldine residence; that neither heroin,
crack cocaine, nor gang members have ever been present in their residence; and
that they do not know anyone named “Mark” or “Roscoe.” ECF No. 42 at ¶ 69-90.
Similar to the Bonenberger case, plaintiffs attempt to demonstrate that detective
Vaughan’s statements in support of the search warrant were false with only their
bare assertions in opposition. This is insufficient to show either that the affidavit
was false or that defendant Vaughan believed it was false.
Next, plaintiffs argue that the warrant was invalid because detective
Vaughan’s belief – that he would find target suspect Darron Ford at their residence
– was unreasonable. The warrant detective Kegel acquired on the same day for
5412 Geraldine also listed Darron Ford as an object of that search. Plaintiffs
contend that because a person cannot be in two places at once, Vaughan could not
have had a reasonable belief that Ford would be found at their residence. I
disagree. When reliable information from a CI, confirmed by surveillance by the
police, indicates that a target suspect is illegally selling drugs out of multiple
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locations, it is not unreasonable to believe that he could be at either of those
locations at a given time.
Alternatively, plaintiffs assert that the CI lied to detective Vaughan.
“Information may be sufficiently reliable to support a probable cause
determination if the person providing the information has a track record of
supplying reliable information, or if it is corroborated by independent evidence.”
Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998) (citing U.S. v. Williams, 10
F.3d 590, 593 (8th Cir. 1993)). The affidavit here stated that this CI had proven
reliable at least ten times in the past, and that surveillance had corroborated some
of the CI’s statements. ECF No. 25-1 at 3. Plaintiffs argue that this CI should be
considered an unreliable source of information because no heroin or crack cocaine
was found in their residence. But the results of the search of plaintiffs’ residence
do not mean that Vaughan should not have relied on the information provided by
his CI. Moreover, weapons and drugs were recovered from plaintiffs’ residence in
the search. Detective Vaughan’s reliance on the CI’s statements was objectively
Detective Vaughan is entitled to the protection of qualified immunity against
the plaintiffs’ claims for unreasonable search and seizure in Counts I, II and III.
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B. Excessive Force During Entry and Seizure
The fourth count brought against detective Vaughan is for excessive force.
It is undisputed that detective Vaughan did not enter the house with the SWAT
team. When he entered the house, the Millbrook plaintiffs were already cuffed and
seated on the couch. Plaintiffs argue, however, that Vaughan is liable to them for
the SWAT team’s alleged use of excessive force because their injuries were a
natural consequence of his actions in obtaining the search warrant, completing
portions of the SWAT team plan, and briefing the SWAT team before the raid. 6
Plaintiffs’ cite Jennings v. Davis, 476 F.2d 1271, 1274 (8th Cir. 1973), for
their argument that a “person is liable for the natural consequences of his actions”
under 42 U.S.C § 1983. ECF No. 39 at 15; ECF No. 47 at 7. The holding in that
case actually supports Vaughan’s argument. In Jennings, the defendant police
officer arrested the plaintiff for a traffic offense and told her to report to the police
station. Once at the station, an incident occurred between plaintiff and a civilian
clerk that plaintiff alleged caused her physical and emotional injuries. Jennings,
476 F.2d at 1273. Given that the only allegation against the defendant officer was
that he arrested plaintiff that day, the Eighth Circuit affirmed the trial court’s
Plaintiffs allege that “Det. Vaughan knew the raid would be no knock when he applied for the
warrant.” ECF No. 27 at 23. However, there is no evidence in the record to support this
allegation. In fact, Vaughan’s application for a search warrant for 5406 Geraldine did not
request a “no-knock” entry, as detective Kegel’s did for 5412 Geraldine. Compare ECF No. 251 at 2-4 with ECF No. 25-8 at 3-5. The defendants presented evidence that the police did knock.
Plaintiff Victor Millbrooks testified that he did not hear a knock, but he also testified that he was
in his upstairs room with the television on when he heard the SWAT team’s forced entry.
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dismissal of the complaint against the arresting officer and found the appeal
patently frivolous. Id. at 1274. Plaintiffs’ arguments that Vaughan is responsible
for any excessive force that the SWAT team might have used is similarly frivolous.
Vaughan is entitled to summary judgment on Count IV.
C. Request for Injunction against SWAT raids
Plaintiffs assert that the City of St. Louis has a policy of performing “noknock” full tactical SWAT team raids on drug houses when executing a search
warrant where guns might be present in the home. They argue that this policy
violates the Fourth Amendment. Even if plaintiffs could establish that such a
policy exists, they cannot show that they have been affected by the policy or that
they are suffering from irreparable harm from such a policy.
“A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). In the Eighth Circuit, these four factors are known as the
“Dataphase ” factors, based upon the 1981 en banc case, Dataphase Sys., Inc. v.
CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). In each case, the factors must be
balanced to determine whether they tilt toward or away from granting injunctive
relief. West Publ’g Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir.
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1986). The party requesting injunctive relief bears the “complete burden” of
proving that an injunction should be granted. Gelco Corp. v. Coniston Partners,
811 F.2d 414, 418 (8th Cir. 1987). Injunctive relief is “an extraordinary remedy
that may only be awarded upon a clear showing that the plaintiff is entitled to such
relief.” Winter, 555 U.S. at 22. The factors for granting a permanent injunction
are essentially the same as for a preliminary injunction, except that the movant
must also attain success on the merits. Bank One, Utah v. Guttau, 190 F.3d 844,
847 (8th Cir. 1999).
According to the Supreme Court, the Fourth Amendment’s reasonableness
requirement does not require a strict rule of announcement in the execution of all
search warrants. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). Countervailing
law enforcement interests, such as a threat of physical violence or the likely
destruction of evidence, can justify a no-knock entrance. Id. at 936. The Court has
rejected blanket exceptions to the Fourth Amendment, such as allowing no-knock
entries in all felony drug cases. Richards v. Wisconsin, 520 U.S. 385, 388 (1997).
Instead, the reasonableness of the method used to execute a search warrant must be
evaluated on a fact-dependent, case-by-case basis. U.S. v. Banks, 540 U.S. 31, 36
A warrant may specifically authorize a no-knock entry, but even when it
does not, the police may enter without announcing themselves if the circumstances
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upon arrival support a reasonable suspicion of exigency. Id. at 37. According to
the Eighth Circuit, police are not required to request a no-knock entry warrant
whenever the basis for the search warrant justifies it. Doran v. Eckold, 409 F.3d
958, 965 (8th Cir 2005). If the warrant is silent as to entry, but the facts known
prior to obtaining it justify a no-knock entry – and no facts learned by police in
execution of the warrant counteract the exigencies – a no-knock entry is reasonable
under the Fourth Amendment. Id.
Here, plaintiffs cannot prove injury from any alleged City policy. The
search warrant obtained by detective Vaughan did not authorize no-knock entry,
but based on the allegations of the affidavit, such an entry would have been
constitutional. Vaughan attested that the CI witnessed firearms and drugs in
plaintiffs’ residence and that the residents may be related to a gang that had
recently engaged in a shooting. Exigent circumstances, including threat of
physical violence to police and the likely destruction of evidence, justified a noknock entry.
To the extent plaintiffs attempt to make a facial attack on City policy based
on the Supreme Court’s holding in City of Los Angeles, California v. Patel, 135 S.
Ct. 2443, 2449 (2015), this attempt fails. In Patel, the Court ruled that facial
Fourth Amendment challenges to a statute itself, as opposed to a particular
application of the statute, are allowed, but are the most difficult to win. Id. To
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succeed, a plaintiff must establish that the law is unconstitutional in all applications
in which it actually authorizes or prohibits conduct, not where it is irrelevant in
application. Id. at 2451. Plaintiffs make no argument as to how the alleged City
policy would be unconstitutional in all applications where it authorizes no-knock
entry. Obviously, in many cases where guns are believed to be present – like this
case – a no-knock entry is appropriate.
Although the Supreme Court disfavors blanket exceptions to the Fourth
Amendment reasonableness inquiry, the facts here do not show that the City even
has a policy that guns alone justify no-knock SWAT entries. Plaintiffs provide no
evidence of any specific City policy on SWAT entry. To the extent that plaintiffs’
seek to enjoin the general use of SWAT’s “full tactical raid” method of search
warrant execution, there is no evidence on the decision-making process for the
deployment of SWAT. Plaintiffs attempt to rely on the deposition testimony of
Lieutenant Dodge, a City of St. Louis SWAT Commander, who stated that when
weapons are involved, the usual practice is to use the SWAT team for search
warrant execution. ECF No. 25-15 at 18:13-16. However, plaintiffs
mischaracterize Dodge’s testimony as an admission of a rigid policy, when he was
only speaking in general terms. Id. at 18:1-8. 7
Lt. Dodge confirmed that the custom and practice of SWAT officers is to consider factors
outlined in a City of St. Louis Special Order from the Chief of Police in deciding whether to use
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Finally, even if plaintiffs could prove a City policy existed, they must have
standing to bring a facial attack on the policy. See Free Speech Coal., Inc. v.
Attorney General United States, 825 F.3d 149, 165 (3d Cir. 2016) (examines
whether plaintiffs have standing before reaching the merits of a facial challenge).
To seek injunctive relief, a plaintiff must show that he is under threat of suffering
‘injury in fact’ that is concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be fairly traceable to the
challenged action of the defendant; and it must be likely that a favorable judicial
decision will prevent or redress the injury. Summers v. Earth Island Inst., 555 U.S.
488, 493 (2009) (citing Friends of Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 180–181 (2000)). When seeking injunctive relief the
standing inquiry focuses on the threat of future harm. Free Speech Coal., 825 F.3d
at 166. Plaintiffs have asserted no likelihood of future harm from any alleged City
policy. The City is entitled to summary judgment on Count VII.
Project 87 Building Inspection of 5406 Geraldine
Plaintiffs bring three claims arising from the Project 87 building inspection
that was conducted after the search of their residence. Count V alleges building
inspector Hershell Wallace conducted an unreasonable search in violation of the
Fourth Amendment because Victor Millbrooks’s consent to search was not
SWAT for the execution of a search warrant. ECF No. 25-15 at 14:18–17:10, 16:12–17:2. The
Special Order was not submitted as evidence in this case.
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voluntarily given. Count VI seeks to impose liability on the City of St. Louis
under Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978),
because Wallace’s unlawful search was conducted pursuant to a city policy. Count
VIII seeks to enjoin the City from allowing referrals to building inspectors when
City police officers are executing warrants, unless the warrant authorizes such
A. Defendant Building Inspector Hershell Wallace
Wallace seeks summary judgment of the claim brought against him based on
the fact that he obtained a signed consent form to inspect and that he is protected
by qualified immunity. As discussed earlier, in deciding whether a defendant is
protected by qualified immunity, I must determine whether plaintiffs have asserted
a violation of a clearly-established right and whether a reasonable official in the
defendant’s position would have known that his conduct violated that right.
Walden, 156 F.3d at 868-69. Wallace is protected by qualified immunity where his
actions are found to have “objective legal reasonableness” when “assessed in light
of the laws or legal rules that were clearly established at the time the action
occurred.” Id. at 869 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40
It is well established that the Fourth Amendment’s prohibition on
warrantless entry into a residence does not apply when voluntary consent has been
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given. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In determining whether
consent to search was voluntary, the court must examine the totality of the
circumstances in which it was given. Schneckloth v. Bustamonte, 412 U.S. 218,
226 (1973). The Eighth Circuit has set out factors for the characteristics of the
person and the environment, to be considered when determining whether consent
to search was voluntarily given. U.S. v. Chaidez, 906 F.2d 377 (8th Cir. 1990).
Characteristics of persons giving consent which may be relevant to the question
include: (1) their age; (2) their general intelligence and education; (3) whether they
were intoxicated or under the influence of drugs when consenting; (4) whether they
consented after being informed of their right to withhold consent; and (5) whether
they were aware of the protections afforded to suspected criminals by the legal
system. Id. at 381. Characteristics of the environment in which consent was given
include: whether the person who consented (1) was detained and questioned for a
long or short time; (2) was threatened, physically intimidated, or punished by the
police; (3) relied upon promises or misrepresentations made by the police; (4) was
in custody or under arrest when the consent was given; (5) was in a public or a
secluded place; or (6) either objected to the search or stood by silently while the
search occurred. Id. No single factor is dispositive or controlling. U.S. v. Bradley,
234 F.3d 363, 366 (8th Cir. 2000).
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The evidence presented on the summary judgment motions shows that
disputes of fact remain regarding whether Victor voluntarily consented to the
inspection. Viewing the facts most favorably to the plaintiffs, police entered
Victor’s home with a battering ram and flash-bang, dragged him and his family
members across the floor, and handcuffed them while they searched their house.
Less than an hour later, Wallace was accompanied by police when he approached
handcuffed Victor and asked him to sign the consent form. When Victor
questioned the need for the inspection, Wallace informed him that if he did not
sign the consent, he and his family would be put out of their home. This evidence,
if believed by a jury, could show that the consent was not voluntary.
The City relies on a 2007 ruling from this district which found a City of St.
Louis Project 87 building inspector protected by qualified immunity, but that case
is distinguishable. In Appel v. City of St. Louis, No. 4:05-CV-772-SNL, ECF No.
168 (E.D. Mo. Aug. 15, 2007) (aff’d in part, rev’d in part on other grounds sub
nom., Cross v. Mokwa, 547 F.3d 890 (8th Cir 2008)), a police officer triggered the
Project 87 inspection by filing a Nuisance Form and citing “major structural
deficiencies and overcrowding.” Appel, ECF No. 168 at 6 n.4. The court held that
police presence and the building inspector’s threat to condemn the property did not
render the resident’s consent to the inspection involuntary and found that qualified
immunity protected the Project 87 building inspector. Id. at 26 n.10, 27.
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Unlike this case, in Appel there was particularized knowledge of a building
code violation within the premises, and therefore, there was probable cause for the
search. The plaintiffs in Appel did not contest the ruling as to qualified immunity
of the building inspector on appeal, but in discussion of related issues, the court of
appeals expressed some skepticism about the legitimacy of Project 87 inspections.
Cross v. Mokwa, 547 F.3d at 899 (noting genuine fact disputes regarding the
validity of the Project 87 form and whether the reasons for issuing the Project 87
citation were legitimate). In our case, the Project 87 inspection was triggered by
the police department policy of requesting an inspection following the execution of
any search warrant. ECF No. 25-13 at 114:13-115:2. Other than the window that
was broken by the SWAT team upon entry, Wallace had no reason to believe he
would find building code violations before conducting the search.
There are genuine disputes of fact as to whether Victor’s consent to inspect
was voluntarily given. Under the objective standard for qualified immunity,
factual disputes remain as to whether it is reasonable for a building inspector to
threaten condemnation of a home when there is no evidence to suggest building
code violations are present. Neither side will be granted summary judgment on
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B. Defendant City of St. Louis, Missouri
In Counts VI and VIII, plaintiffs bring a claim under Monell and seek
injunctive relief against the City in regards to Project 87 building inspections. In
Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978), the
Supreme Court held that a municipality or local government may be sued directly
under § 1983 when that local government implements an unconstitutional policy or
custom. Factual disputes as well as legal issues remain regarding exactly what the
city policy is and whether a policy that allows a search whenever a homeowner
refuses consent for an inspection is constitutional. Municipal liability may only be
sustained where there has been a violation of the plaintiffs’ constitutional rights as
a result of action by the municipality’s employee. Speer v. City of Wynne, Ark.,
276 F.3d 980, 986 (8th Cir. 2002). Because disputes of fact exist as to whether
Wallace violated plaintiffs’ Fourth Amendment rights with the Project 87 building
inspection, plaintiffs’ claims for Monell liability and injunctive relief pertaining to
Project 87 inspections withstand summary judgment. Neither side will be granted
summary judgment on these two counts.
Summary judgment will be granted to defendants on Counts I, II, III, IV, and
VII of the amended complaint. Detective Vaughan is protected by qualified
immunity and is not personally liable for any excessive use of force by the SWAT
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team. Additionally, plaintiffs have not shown that the City has a policy of using
SWAT to perform no-knock search warrant entries based on the presence of guns
alone, nor have they shown that plaintiffs suffered harm or a likelihood of future
harm as a result of such alleged policy.
Summary judgment will not be granted to either side as to Counts V, VI, and
VIII, pertaining to the Project 87 building inspection by defendant Wallace. Facts
are in dispute as to whether Victor voluntarily consented to the inspection and
whether the City Ordinances authorizing Wallace to threaten condemnation are
Finally, defendants have a pending Motion for Protective Order in regards to
City of St. Louis spreadsheets documenting the number of search warrants
executed by SWAT during a certain time period (ECF No. 25-10). Because all
counts relating to search warrant execution have been dismissed from this case,
this motion is now moot.
IT IS HEREBY ORDERED that plaintiffs’ motion for partial summary
judgment [ECF No. 24] is DENIED.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment [ECF No. 28] is GRANTED in part. Counts I, II, III, IV, and VII are
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IT IS FINALLY ORDERED that defendants’ motion for protective order
[ECF No. 37] is DENIED as moot.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 29th day of December, 2016.
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