Furlow v. Belmar et al

Filing 129

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment, [Doc. No. 77 ], is GRANTED. IT IS HEREBY ORDERED that Plaintiffs Motion for Partial Summary Judgment, [Doc. No. 84], is DENIED except as to Liner. IT IS FURTHER ORDERED that Plaintiffs Motion to Certify Class, [Doc. No. 80], is DENIED at this time. A separate judgment will be entered upon the disposition of the remaining issues herein. Signed by District Judge Henry Edward Autrey on 9/30/18. (KJS)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DWAYNE FURLOW et al.,

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Plaintiffs,
v.
JOHN BELMAR et al.,
Defendants.

Case No. 4:16CV254 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment [Doc. No. 77], Plaintiffs’ Motion to Certify Class [Doc. No. 80], and
Plaintiffs’ Motion for Partial Summary Judgment [Doc. No. 84]. The parties
oppose the respective motions. A hearing on the motions was held before Judge
John A. Ross on February 28, 2018, and each party submitted a memorandum of
law after the hearing. On March 9, 2018 Judge Ross recused himself and this case
was reassigned to the undersigned.
With respect to the claims of Howard Liner (“Liner”) against Defendant
Officers John Doe 1-2, Plaintiffs have neither substituted named defendants for the
Doe Defendants, nor effectuated service on the Doe Defendants. Liner’s claims
are stayed in accordance with the Order to substitute and serve the Doe Defendants

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dated September 30, 2018, and Liner’s claims are neither considered nor disposed
of in this Opinion, Memorandum, and Order.
For the reasons set forth below, Defendants’ motion is granted as to
Defendants Belmar, St. Louis County, Partin, Walsh, and Clements. Plaintiffs’
motion for partial summary judgment is denied except as to Liner’s claims. A
ruling on Liner’s motion for summary judgment is stayed pending the outcome of
the aforementioned Order. Plaintiffs’ motion to certify class is dismissed without
prejudice.
Facts and Background
“Wanteds”
Under Missouri State Law, a law enforcement officer “may arrest on view,
and without a warrant, any person the officer sees violating or who such officer has
reasonable grounds to believe has violated any ordinance or law of this state,
including a misdemeanor or infraction, over which such officer has jurisdiction.”
544.216 RSMo. A “wanted” is entered into a computer system by law
enforcement, and identifies a person who is wanted for a crime, but for whom no
warrant has been issued. Wanteds differ from warrants in that no judicial
determination of probable cause is required to enter a wanted.
The St. Louis County Police Department (“SLCPD”) has utilized “wanteds”
for over 20 years. SLCPD’s policies for entering wanteds are contained in a
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general order (“G.O.”). Before 2015, nothing was written in the G.O. about
probable cause being a prerequisite to the entry of a wanted. However, each
officer who provided deposition testimony in this cause testified that SLCPD
policy has always been that probable cause is required to enter a wanted. In 2015,
express language about the probable cause requirement was added to the G.O. In
2016, additional language was added to the G.O. requiring supervisory review and
approval of wanted requests before their entry into the computer system.
When an individual’s name is run in the computer system and there is a
wanted issued for that person, the computer will return the wanted to the officer
running the search. The information viewable to the searching officer includes the
name of the officer who issued the wanted and the crime for which the person is
wanted. The wanted does not describe the probable cause on which it is based. If
an SLCPD officer encounters a person with a wanted issued against him or her, the
officer is authorized by SLCPD policy to take that person into custody.
Plaintiff Dwayne Furlow and Defendant Christopher Partin: Facts Not
In Dispute
At 8:58 a.m. on November 11, 2015, Defendant St. Louis County Police
Officer Christopher Partin, along with field training Officer Slusser, received a
dispatch to the home of Janet Virgin based on a 911 call that had been placed at
8:57 a.m.. The officers arrived on the scene at 9:00 a.m. Dwayne Furlow
(“Furlow”), who lived next door to Ms. Virgin, was not on the scene when the
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officers arrived. Ofc. Partin spoke to Virgin, who told him that her family was
having ongoing issues with Furlow’s family. She said Furlow’s son had started a
fight with her sons that morning, so she started video recording the incident on her
cell phone for evidence. Virgin told Partin that Furlow then approached her and
took her phone with some force, including a strike to her head.
Partin also conducted a canvas of the neighborhood in search of witnesses.
Partin spoke to a 16-year-old neighbor who said he observed an altercation
between Furlow and Virgin, and saw Furlow take a phone from Virgin. This
witness also said he did not see whether Furlow or Virgin initiated the altercation.
At some point, one of the Furlow children handed a cell phone to Partin so
that Partin could speak to Furlow. Partin asked Furlow to return home to answer
some questions about the alleged assault and theft. Furlow informed Partin that he
would not return home. Partin told Furlow that he would issue a Wanted for
Furlow if Furlow did not return home. Partin issued a Wanted for Furlow that day.
On December 12, 2015, Furlow, accompanied by counsel, appeared in
person at the St. Louis County Justice Center in Clayton, Missouri. There,
Furlow’s counsel indicated that Furlow would not answer any questions. After
Furlow’s fifth amendment right was invoked, Partin issued a summons to Furlow
relating to charges of assault and larceny, gave the summons to Furlow’s attorney,
and stated that he would cancel the Wanted. Partin then cancelled the Wanted
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shortly after the meeting with Furlow and his attorney, as he was leaving the
Justice Center.
Plaintiff Dwayne Furlow and Defendant Kevin Walsh
During the noon hour on January 25, 2016, St. Louis County Police Officer
Kevin Walsh responded to a 911 call concerning an alleged domestic assault.
Walsh arrived to find Latoya Furlow (“Latoya”), who claimed that her husband,
Plaintiff Dwayne Furlow, had assaulted her. Walsh’s investigative report includes
a summary of Latoya’s statements that day. Latoya told Ofc. Walsh that Furlow
had just assaulted her. Latoya claimed that Furlow had come home and
immediately started screaming, saying he had heard that Latoya was cheating on
him. Latoya said Furlow kept screaming “B****, get the f*** out of my house.”
She claimed he then smacked her in the cheek with his right hand, knocking her to
the ground. Latoya told Walsh that Furlow then stood over her, stomped on her
legs several times, grabbed her by her hair, and began dragging her toward the
door. Latoya said that when Furlow let go of her hair to open the door, she ran out
of the house and to the neighbors, where she called the police. Latoya told Walsh
that she saw Furlow get into his car and drive away. Latoya then told Walsh that
she wanted to press charges.

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In his report, Walsh observed that Latoya was “angry, crying, fearful, afraid,
[and] nervous.” Walsh observed no bruising, swelling, or lacerations on Latoya,
and wrote that she refused medical attention on the scene.
Walsh reported that he conducted an interior sweep of Latoya’s residence
while looking for Furlow. Walsh saw a fully loaded AR-15 firearm in plain view
in the Furlows’ basement. Latoya told Walsh that she purchased the firearm for
her and her husband’s protection, and that she had purchased the firearm in her
name because Furlow was on probation. Walsh ran a record check for Dwayne
Furlow and found that he was indeed on active probation for burglary in the second
degree.
Walsh noted that while he was on the scene, Latoya’s cell phone rang
multiple times. Latoya told Walsh that it was Furlow calling, so Walsh answered
the phone and identified himself as a St. Louis County Police Officer. Walsh
reported that the subject on the phone identified himself as Dwayne Furlow.
Walsh informed Furlow of his investigation, to which Furlow reportedly replied
that he had spoken to his lawyer and would not turn himself in, because he would
get locked up. Furlow reportedly said that Latoya “f***ed around” with another
man and was mad because Furlow now wanted a divorce. Walsh advised Furlow
that he would be “put out as wanted” for domestic assault in the third degree and

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domestic peace disturbance. The phone conversation ended, and Walsh entered the
wanted.
The next day, Walsh received a phone call from a subject who identified
herself as Latoya Furlow. Latoya told Walsh that she wanted to recant her
statement from the previous day. When Walsh asked if anyone was coercing her
into recanting, Latoya said no. It is undisputed that Walsh asked Latoya to come to
the precinct and give a written statement, although neither party makes reference to
an in-person retraction actually occurring.
On January 28, 2016, Furlow was driving a car with no rear tags and was
stopped the police.1 It is undisputed that after he was stopped, Furlow admitted
that he had a suspended license and that he believed a wanted or warrant had been
issued against him. A computer search returned the wanted that Walsh had issued
on January 25. Furlow was arrested and taken into custody at the Jennings,
Missouri police station.2 An officer there informed Walsh that Furlow was in
custody. Walsh asked the officer to conduct an interview with Furlow. The
officer read Furlow his Miranda rights; Furlow invoked his right to remain silent.
While in custody, Furlow contacted his attorney. During Furlow’s
detention, his attorney told multiple police officers that Furlow was being held
The exact details of the stop and Furlow’s arrest are unclear, as the stop apparently occurred in
St. Louis City and Furlow ended up at the City of Jennings precinct in St. Louis County. It is
unclear, therefore, which agency actually arrested Furlow and at what time that arrest occurred.
However, the Court finds that those facts are ultimately immaterial.
2
See Note 1, supra.
1

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illegally for lack of probable cause and requested that Furlow be released. Furlow
was not released as a result of those requests.
It is the policy of the St. Louis County Police Department to hold individuals
accused of domestic violence for 24 hours. Furlow was to be held for 24 hours
pursuant to this policy, and was transferred from the Jennings station to the St.
Louis County Justice Center during his detention. Justice Center documents show
an arrest time of 17:40 on January 28 and a release time of 18:08 on January 29,
meaning Furlow was detained for 24 hours and 28 minutes.
It is undisputed that Ofc. Walsh believes that he followed department
procedure with respect to this incident.
Plaintiff Ralph Torres and Defendant Laura Clements
On December 16, 2014, Detective Laura Clements of the St. Louis County
Police Department Child Abuse Unit was directed to begin an investigation into
allegations that Ralph Torres (“Torres”) had sexually abused his minor daughter
(“Daughter”). On November 13, 2014 Torres’ ex-wife, who is also Daughter’s
mother (“Mother”), had contacted the office of the Department of Social Services –
Children’s Division (“DSS”) in St. Charles, Missouri alleging the abuse, which
triggered an “emergency investigation” by DSS. A forensic interview of Daughter
was conducted by a DSS employee on November 26. While Det. Clements would
normally attend a forensic interview, on the day of Daughter’s interview, all police
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officers, including Clements, were working mandatory 12-hour shifts due to civil
unrest in St. Louis County. Clements instead received a video copy of the forensic
interview from her sergeant.
Before viewing the video, Clements called Mother, who told Clements that
one day in November, Daughter began rubbing her own buttocks and asked Mother
to “touch her bottom.” Mother told Clements that she said “No, I don’t do that,” to
which Daughter replied “Well, my dad does.” Mother told Clements that on one
prior occasion, Daughter had grabbed the genital area of Mother’s 14-year-old son.
Mother also said that Daughter would often return from a visit with Torres and
scream and beg not to go with him again. Finally, Mother told Clements that
Torres had not contacted her or Daughter since she reported Daughter’s claims to
DSS.
Clements then viewed the video of the forensic interview. Her investigative
report contains a summary of Daughter’s statement in the video. Daughter
reported that she was 5 years old, that her parents were divorced, and that she lived
mostly with her mother and siblings. The interviewer asked Daughter if she knew
why she was there, and Daughter replied “Because I have to tell you something…
My dad begs me to touch his private parts, and I don’t want to.” Daughter said that
he sometimes made her touch his “front” and sometimes made her touch his
“back.” The interviewer had Daughter identify male and female genital anatomy
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on diagrams. The interviewer asked about the last time she touched her father’s
penis and she said it had happened when she was four years old and that her father
“begs” her to let him touch her privates. Daughter said that her father made her
touch his penis with a tissue, that she had to “clean down there,” and that she had
to touch his buttocks with a washcloth. When asked, Daughter reported that her
father only touched her privates when he was cleaning her. At this point, the
interviewer took a break and left the room. While she was gone, Daughter drew
pictures. She later told the interviewer that the pictures were of her father’s penis
with pee coming out, her fathers “butt,” her mother’s “pee-pee” [vagina], and her
mother’s “butt.” When asked, Daughter said that her father says “yes” when she
touches his penis “because he likes it.” Daughter reported that this happens in the
living room and that her father makes her “clean it when he pees.” Finally,
Daughter said that her father told her not to tell her mother.
Clements did not arrest Torres then. Rather, Clements called Torres and left
voicemails. When Torres returned her call, Clements asked him to come to the
police department to answer questions about the child abuse allegations. Torres
replied that Clements would have to go through his attorney. Clements and the
attorney exchanged “several missed calls.” On February 23, 2015, Clements
entered a wanted for Torres with a charge of statutory sodomy.

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On April 1, 2015, St. Louis County Police Officer Scott Leible ran a
computer check which revealed a wanted for Torres and provided his address.
Leible went to the address at 11:00 a.m., found Torres with his son in the garage
fixing a bicycle, notified Torres of the outstanding wanted, and arrested Torres.3
Clements, who was not on duty at the time, was notified that Torres was in custody
around 11:30 a.m. Clements was scheduled to begin her duty at 4:30 p.m. At 4:30
p.m., she would not have had time to apply for a warrant with the Prosecuting
Attorney’s office that day.
Torres, who had initially been taken to the Affton precinct, was booked into
the County Justice Center at 4:54 p.m. Clements attempted to interview Torres
that night, at 8:45 p.m. Torres invoked his right to silence and right to counsel.
Torres was held overnight at the Justice Center.
At 10:00 a.m. the next morning, Clements went to the St. Louis County
Prosecuting Attorney’s Office to present her case against Torres. Because Torres
was being held, Clements was “bumped up” to speak to the prosecutor sooner.
Around 11:00 a.m., the Prosecutor denied Clement’s request for a warrant
application. Torres was released from custody at around 11:55 or noon on April 2,
2015. In total, Torres was in custody between 24 and 25 hours.

Defendants argue that Torres was arrested after his son’s mother had come to pick the son up
and after Leible contacted Clements. This dispute is ultimately immaterial.
3

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The parties agree that Clements did not have a grudge against, malice
toward, or any emotional connection regarding Torres.
Discussion
Plaintiffs claim that Defendants violated their Fourth, Fifth, and Fourteenth
Amendment rights. In addition to Plaintiffs’ claims against individual officers,
Plaintiffs also claim that St. Louis County and Police Chief Jon Belmar, in his
official capacity, are liable for the alleged violations. Plaintiffs’ First Amended
Complaint (“FAC”) contains three counts. Plaintiffs seek class certification.
Count I alleges that Furlow’s and Torres’ Fourth Amendment rights were
violated when Officers Walsh and Clements, respectively, issued wanteds for their
arrest without probable cause, and without seeking a judicial determination of
probable cause. Count I further alleges that Plaintiffs’ Fourth Amendment rights
were violated when they were arrested pursuant to wanteds by officers who were
without warrants and who had no knowledge of the probable cause on which the
issuing officers based the wanteds. Further, Plaintiffs allege a Fourth Amendment
violation when Defendants detained them without seeking a judicial determination
of probable cause.
Count II alleges that Defendants (excluding Officer Partin) retaliated against
Plaintiffs based on Plaintiffs’ invocation of their rights to silence and rights to have

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counsel during questioning as guaranteed by the Fifth Amendment. Plaintiffs
claim that the retaliation was in the form of prolonged detention.
Count III alleges that Defendants deprived them of the liberty interests of
freedom of movement and freedom to conduct their daily lives without fear, as
well as their interest in not being classified stigmatically as a person who is subject
to summary arrest and detention. Defendants allege that they were deprived of
these interests without due process or procedure with which to challenge the
wanteds issued against them, thereby violating the Fourteenth Amendment right to
due process.
Plaintiffs moved for partial summary judgment as to Count I only.
Defendants moved for summary judgment on all Counts. The Court addresses the
wholly4 dispositive motion first.
Summary Judgment Standard
The Court may grant a motion for summary judgment if the movant shows
that there is no genuine dispute as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The
substantive law determines which facts are critical and which are irrelevant. Only
disputes over facts that might affect the outcome will properly preclude summary
4

Defendants’ motion for summary judgment is dispositive of all claims, excepting of course
those concerning Plaintiff Harold Liner and Defendants John Doe 1-2.
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judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). Summary judgment is not proper if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis
of its motion. Celotex, 477 U.S. at 323. Once the moving party discharges this
burden, the nonmoving party must set forth specific facts demonstrating that there
is a dispute as to a genuine issue of material fact, not the mere existence of some
alleged factual dispute. Anderson, 477 U.S. at 247. The nonmoving party may not
rest upon mere allegations or denials of its pleadings. Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts
in the light most favorable to the nonmoving party, and all justifiable inferences
are to be drawn in its favor. Anderson, 477 U.S. at 255. The Court’s function is
not to weigh the evidence but to determine whether there is a genuine issue for
trial. Id. at 249.
In order to survive a motion for summary judgment, “the nonmoving party
must ‘substantiate his allegations with sufficient probative evidence [that] would
permit a finding in [his] favor based on more than mere speculation, conjecture, or
fantasy.’” Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir.
2011) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733–34 (8th Cir. 2003))
(internal quotation omitted).
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Qualified Immunity
The threshold inquiry is whether the Defendants being sued in their
individual capacities, Walsh, Clements, and Partin, are immune from suit under the
doctrine of Qualified Immunity.
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172
L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments, and protects all but
the plainly incompetent or those who knowingly violate the law.” Messerschmidt
v. Millender, 565 U.S. 535, 546, 132 S. Ct. 1235, 1244, 182 L. Ed. 2d 47 (2012)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 2085, 179
L.Ed.2d 1149 (2011)) (internal quotations omitted). “The entitlement is an
immunity from suit rather than a mere defense to liability . . . it is effectively lost if
a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511,
526, 105 S. Ct. 2806 , 86 L. Ed. 2d 411 (1985) (emphasis in original).
Municipal and Governmental Entity Liability

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A suit against a governmental actor in his official capacity is treated as a suit
against the governmental entity itself. Brockinton v. City of Sherwood, Ark., 503
F.3d 667, 674 (8th Cir. 2007) (quoting Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct.
358, 116 L.Ed.2d 301 (1991)). Section 1983 liability for a constitutional violation
may attach to a municipality if the violation resulted from (1) an official municipal
policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or
supervise. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690–91 (1978); City of
Canton, Ohio v. Harris, 489 U.S. 378, 388–89 (1989).
A plaintiff may establish municipal liability under § 1983 by proving that his
or her constitutional rights were violated by an action pursuant to official
municipal policy or misconduct so pervasive among non-policymaking employees
of the municipality as to constitute a custom or usage with the force of law.” Ware
v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir.1998) (internal quotation marks
and citation omitted). “[I]n order to state a viable § 1983 claim . . . plaintiff is
required to plead facts sufficient to show at least an inference that his constitutional
rights were violated as a result of action taken pursuant to an official policy, or as a
result of misconduct so pervasive among non-policymakers as to constitute a
widespread custom and practice with the force of law.” Davis v. St. Louis County,
Mo., 2015 WL 758218, at *12 (E.D.Mo. Feb. 23, 2015) (citation omitted).
Analysis
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Count I against Walsh and Clements: Probable Cause
Each Plaintiff was subject to a warrantless arrest. The question, therefore, is
whether those arrests violated the Fourth Amendment.
“A warrantless arrest is consistent with the Fourth Amendment if it is
supported by probable cause, and an officer is entitled to qualified immunity if
there is at least ‘arguable probable cause.’” Gilmore v. City of Minneapolis, 837
F.3d 827, 832 (8th Cir. 2016) (quoting Borgman v. Kedley, 646 F.3d 518, 522–23
(8th Cir. 2011)) (internal citations omitted). “Arguable probable cause exists even
where an officer mistakenly arrests a suspect believing it is based on probable
cause if the mistake is objectively reasonable.” Greenman v. Jessen, 787 F.3d 882,
888 (8th Cir. 2015). “Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of
the arrest.” Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010)
(quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004)).
“Probable cause exists when the totality of circumstances demonstrates that
a prudent person would believe that the arrestee has committed or was committing
a crime.” Duhe v. City of Little Rock, 902 F.3d 858 (8th Cir. 2018) (quoting Kuehl
v. Burtis, 173 F.3d 646, 650 (8th Cir 1999). “[P]robable cause is a fluid concept—
turning on the assessment of probabilities in particular factual contexts—not
readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462
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U.S. 213, 232 (1983). “The substance of all the definitions of probable cause is a
reasonable ground for belief of guilt.” Brinegar v. United States, 338 U.S. 160,
175 (1949) (internal quotation omitted). “Whether probable cause existed at the
time of the arrest is a question of law for the court.” Duhe v. City of Little Rock,
902 F.3d 858 (8th Cir. 2018) (quoting Fisher v. Wal-Mart Stores, Inc., 619 F.3d
811, 816 (8th Cir. 2010).
For its determination as to whether arguable probable cause existed, the
Court relies heavily on record investigative reports. The SLCPD investigative
reports from each incident, written contemporaneously by the Defendant officers,
go to the heart of the probable cause issue: that is, what the Defendant officer knew
at the time that he or she issued the wanted. Moreover, the contents of the
investigative reports are undisputed as representative of what the Defendant
officers heard, observed, and believed at the time they issued the wanted.
In issuing a wanted against Furlow for allegedly assaulting and stealing the
phone of Janet Virgin, Partin relied on the statements of Virgin herself and a 16year-old neighbor who said he witnessed the altercation between Furlow and
Virgin. The 16-year-old witness said that he did not see who started the
altercation, but he did say that he saw Furlow take a phone from Virgin. Partin
also spoke on the phone with Furlow and noted that Furlow changed his account of
the incident, first saying that he did not see anyone fighting, and then saying that
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he saw a fight and tried to break it up. These statements, taken together and with
other circumstances, such as the fact that Furlow had left the scene within the three
minutes it took for Partin to arrive on the scene provided enough for a finding of
probable cause.
Plaintiffs argue that Partin should not have relied on the 16-year-old witness
in finding probable cause because the witness was of unknown credibility and a
minor. This argument is not well taken and spurious in tenor. It is wholly
reasonable to believe that an average sixteen-year-old can provide accurate,
competent information about an event he has just seen.
Plaintiffs also claim that Partin should have but did not interview a taxi
driver at the scene. “[L]aw enforcement officers have a duty to conduct a
reasonably thorough investigation prior to arresting a suspect, at least in the
absence of exigent circumstances and so long as ‘law enforcement would not be
unduly hampered...if the agents...wait to obtain more facts before seeking to
arrest.’” Kuehl v. Burtis, 173 F.3d 646, 651 (8th Cir.1999) (quoting United States
v. Woolbright, 831 F.2d 1390, 1394 (8th Cir.1987)). A police officer “need not
conduct a ‘mini-trial before making an arrest, but probable cause does not exist
when a minimal further investigation would have exonerated the suspect.” Id.
(quotation marks and citation omitted).

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In his deposition, Partin claimed that he had trouble understanding the
driver, while Furlow claims that the driver was always understandable. This
argument does not preclude a finding of summary judgment in favor of Partin.
There is no indication or allegation that the driver’s statement would have
exonerated Furlow. In fact, Furlow testified that he told his son to stay inside until
the cab taking him to school arrived, and then left home. It does not follow that the
taxi driver, who arrived after Furlow left home, could have witnessed the incident
between Furlow and Virgin. Partin had probable cause to believe Furlow assaulted
Virgin and took her phone.
In issuing a wanted against Furlow for allegedly assaulting his wife, Latoya,
Walsh relied on Latoya’s statements, her emotional state, and the presence of a
loaded gun in the Furlow home. Latoya told Walsh that, while screaming and
cursing at her, Furlow smacked her, knocked her to the ground, stomped on her
legs, and dragged her by her hair. Partin observed that Latoya was “angry, crying,
fearful, afraid and nervous.” In a domestic violence situation such as this, where
Partin has no reason to believe Latoya was lying or being coerced, her specific,
credible statements and heightened emotional state are enough to warrant a finding
of arguable probable cause.
Partin also found a fully loaded firearm in the home. Plaintiff’s claim that
the firearm and the fact that Latoya bought the firearm in her name because Furlow
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was on probation are immaterial facts. The Court disagrees. Probable cause is
based on the totality of the circumstances. While the gun may not be a direct
indication of domestic violence, the circumstances of its purchase and the presence
of a loaded, deadly weapon in the home could reasonably lead Partin to at least
believe that Latoya was not fabricating her allegations, and was actually in fear of
her husband.
Latoya did recant her statement the next day, over the phone, and claimed
she was not being coerced to do so. Walsh did not cancel the wanted. Walsh
testified that based on her statement and demeanor the previous day, Latoya’s
recantation seemed “odd” to Walsh. Walsh also testified that Latoya was speaking
at a fast pace and she seemed anxious and agitated. Plaintiffs claim that Walsh’s
interpretation are not facts and are unsupported by documentary evidence. While
that may be true, the issue here is probable cause, the existence of which relies on
the reasonable conclusions officers make based on their reasonable beliefs and the
totality of the circumstances. Here, Walsh concluded, based on Latoya’s demeanor
on the phone, that her recantation was not genuine. Arguable probable cause did
not cease to exist based on Latoya’s recantation.
In issuing a wanted against Torres for allegedly abusing his minor daughter,
Clements relied on the statement of Mother and the video of the DSS interview of
Daughter. Plaintiffs do not seem to argue that the Mother’s statements and the
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video interview do not support a probable cause finding. Rather, Plaintiffs argue
that because Clements did not meet Mother to assess her credibility in person or
communicate with DSS staff while investigating the allegations, probable cause
did not exist. Indeed, unbeknownst to Clements, DSS had closed its investigation
two days prior to Torres’ arrest, and Mother would later be found to have
fabricated allegations about Torres.5
In determining whether a Fourth Amendment violation occurred, “Courts
must not judge officers with the 20/20 vision of hindsight.” City & Cty. of San
Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1777, 191 L. Ed. 2d 856 (2015).
Unlike most cases in which Clements would be involved from the beginning and
attend the initial DSS interview of an alleged child victim, in this case, Clements
could not attend the interview because SLCPD officers were working 12 hour
shifts in response to civil unrest. Rather, Clements called Mother and viewed the
video of the interview well after the initial allegations to DSS. It is not alleged
what, if anything, about an in-person interview with Mother would have led
Clements to believe she was not credible. Clements noted nothing incredible about
Mother’s statements over the phone. When Clements issued the wanted, DSS had
not yet closed the case against Torres. While Clements testified that she typically
communicates with DSS staff concerning allegations, she did not in this case, and

5

So found by Judge Thomas J. Frawley of the Circuit Court of the City of St. Louis.
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had no knowledge of the disposition of Torres’ case at DSS. It is very unfortunate
that Torres was subjected to arrest and detention for horrific, but false, allegations.
Still, qualified immunity “protects all but the plainly incompetent or those who
knowingly violate the law.” Messerschmidt, 565 U.S. at 546. Clements’ missteps
do not rise to those levels. Clements had probable cause, attempted to get Torres’
side of the story, and issued a wanted when she could not. Neither Clements nor
Torres or his attorney attempted to resolve the matter between the day the wanted
was issued and the day he was arrested, over a month later. This is not plain
incompetence. There is no evidence that Clements intended to leave Torres’ arrest
warrant out for two days after DSS closed the case, so as to pick him up despite a
lack of probable cause. Clements is entitled to qualified immunity.
Plaintiffs also argue that in general, warrantless arrests pursuant to a wanted
are illegal when effectuated by an officer who does not have any knowledge of the
grounds on which the issuing officer found probable cause.
In United States v. Hensley, 469 U.S. 221, 232 (1985) , the Supreme Court
addressed the legality of an investigatory Terry stop when the police officer is
relying upon a “wanted flyer,” or notice from another police department, that a
person is wanted in connection with the investigation of a crime. “[I]f a flyer or
bulletin has been issued on the basis of articulable facts supporting a reasonable
suspicion that the wanted person has committed an offense, then reliance on that
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flyer or bulletin justifies a stop to check identification, to pose questions to the
person, or to detain the person briefly while attempting to obtain further
information.” Hensley, 469 U.S. at 232 (internal citations omitted), accord United
States v. Smith, 648 F.3d 654, 659 (8th Cir. 2011).
A flyer based on reasonable suspicion is sufficient to justify a Terry stop
even if the flyer omits the specific articulable facts supporting that reasonable
suspicion. It follows that a wanted based on probable cause that a subject
committed some offense is sufficient to support a warrantless arrest for that
offense, even though the wanted lacks a description of the circumstances and facts
supporting probable cause. See United States v. Holloman, 2018 WL 1166557, at
*2 (E.D. Mo. Mar. 6, 2018) (“The ‘wanted’ could only justify their detaining
Holloman for the purpose for which it was issued—allowing the sex crimes
Detective to interview him.”). Here, there is no Fourth Amendment violation
because the wanteds in question were based on probable cause.
It is also noted that in Plaintiffs’ Memorandum of Law in Opposition to
Defendants’ Motion for Summary Judgment, they claim summary judgment is not
appropriate because Defendants have not shown that Torres was arrested outside
the curtilage of his home and “Officer Leible violated Mr. Torres’ right to be free
from warrantless arrest within his home.” This alleged violation is not pled in the
FAC. Officer Leible is not a party to this action. Therefore, an individual claim
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for this alleged violation does not exist in this case. Moreover, Plaintiffs do not
argue that there is a question of fact as to whether there is a policy, practice or
custom of arresting subjects in the curtilage of their homes, so there is no claim
against SLCPD or Chief Belmar. See Monell v. Dep't of Soc. Serv., 436 U.S. 658,
690–91 (1978). Summary judgment is not barred by the purported issue of Torres’
arrest “within his home.”
Defendants Walsh and Clements are entitled to summary judgment as to
Count I of the FAC.
Count II against Walsh and Clements: Fifth Amendment Claims
Furlow and Torres claim that Defendants violated their Fifth Amendment
rights by issuing retaliatory wanteds, and detaining them pursuant to these
wanteds, after they invoked their right to silence and right to have counsel present
during questioning while on the phone with Defendant officers. However,
Plaintiffs fail to create a question of fact as to whether they actually invoked these
rights. Plaintiffs offer no law to support their contention that the Fifth Amendment
may be invoked, sight unseen, on a telephone call with a law enforcement officer.
As argued by Defendants, an officer cannot be sure to whom he is speaking when
on the phone, rendering a purported invocation of rights meaningless, and resulting
in no constitutional violation.

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Plaintiffs also allege retaliation for properly invoking their right to silence
and right to have counsel present during questioning once they had been arrested
and were in custody pursuant to the wanteds. Furlow and Torres claim that as a
result of these invocations, Defendants Walsh and Clements, respectively, held
them in custody as retaliation with their times in detention exceeding the maximum
24 hours allowed by §544.170 RSMo.
Contrary to Plaintiffs’ retaliation claims, Defendants say that Furlow was
held in custody pursuant to an SLCPD policy that requires those accused of
domestic violence to be held for 24 hours. The parties agree that the SLCPD has
such policy, though it seems to be unwritten. The parties also agree that Walsh
believes he followed all policies in his dealings with Furlow. The issue of
mandatory or minimum holds of people accused of domestic violence has not yet
been addressed by the Supreme Court or the Eighth Circuit. The purported right to
be free from a domestic violence hold is not clearly established. It would certainly
not be clear to a reasonable officer who by all accounts was acting in accordance
with SLCPD policy. Walsh is entitled to qualified immunity on this claim. As to
the fact that Furlow was held for 24 hours and 28 minutes, Walsh is not alleged to
have had control over Furlow’s detention outside of the general directive to hold
Furlow for 24 hours. Walsh is not liable for the 28 minute statutory overage.

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Contrary to Plaintiffs’ retaliation claims, Defendants say that Torres was
held overnight only because it was too late to go to the prosecuting attorney’s
office to apply for a warrant at the time that Clements came on duty. Clements
applied for a warrant the next morning, before she was scheduled to work. The
warrant request was denied, and Torres was released soon after, though more than
24 hours after his arrest.
In County of Riverside v. McLaughlin, the Supreme Court set forth
boundaries on detention pending a probable cause determination:
This is not to say that the probable cause determination in a particular
case passes constitutional muster simply because it is provided within
48 hours. Such a hearing may nonetheless violate Gerstein if the
arrested individual can prove that his or her probable cause
determination was delayed unreasonably. Examples of unreasonable
delay are delays for the purpose of gathering additional evidence to
justify the arrest, a delay motivated by ill will against the arrested
individual, or delay for delay's sake. In evaluating whether the delay
in a particular case is unreasonable, however, courts must allow a
substantial degree of flexibility. Courts cannot ignore the often
unavoidable delays in transporting arrested persons from one facility
to another, handling late-night bookings where no magistrate is
readily available, obtaining the presence of an arresting officer who
may be busy processing other suspects or securing the premises of an
arrest, and other practical realities.
500 U.S. 44, 56–57, 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991). Here, every
delay in seeking a probable cause determination for Torres was based on
reasonable, unavoidable delays. Plaintiffs agree that Clements harbored no ill-will
against Torres. There is no allegation that Clements delayed Torres’ detention by
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seeking additional information to justify Torres’ arrest. Like Walsh, there is no
evidence that Clements instructed the Justice Center officers and employees to
hold Torres longer than 24 hours. Walsh is entitled to qualified immunity on
Torres’ Fifth Amendment retaliation claim.
Defendants Walsh and Clements are entitled to summary judgment as to
Count II of the FAC.
Count III against Partin, Walsh , and Clements: Due Process
Plaintiffs also claim that Defendants, by issuing wanteds for their arrests,
deprived Plaintiffs of liberty interests including freedom of movement and freedom
to conduct their daily lives without fear. Plaintiffs also claim that being the subject
of wanteds subjected them to classification and stigma as a person who is subject
to summary arrest and detention. This claim is not well-founded. Plaintiffs
present no evidence of an actual harm. Additionally, Plaintiffs could not fear a
deprivation of liberty where no liberty existed, i.e. they were not free from the
threat of arrest because there was probable cause to arrest them. To the extent that
there was a likely lack of probable cause to arrest Torres for the two days prior to
his arrest, Clements is entitled to qualified immunity. Individual Defendants
Walsh, Partin, and Clements are entitled to summary judgment as to Count III of
the FAC.
All Counts, as to Defendants Belmar and St. Louis County
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Plaintiffs name Defendants St. Louis County and SLCPD Chief Belmar, in
his official capacity, in all three counts of the FAC. Because Plaintiffs have failed
to overcome summary judgment on their claims against the individual SLCPD
defendants, Plaintiffs cannot satisfy their burden of establishing municipal liability
or liability of the governmental entity. Brockinton v. City of Sherwood, Ark, 503
F.3d 667, 674 (8th Cir. 2007). Delmar and the County are entitled to summary
judgment as to the claims of Furlow and Torres.
Plaintiffs’ Motions
As none of Furlow’s or Torres’ claims survive this motion for summary
judgment, Plaintiffs’ motion for class certification is denied without prejudice at
this time, pending the outcome of Liner’s claims.
Similarly, Plaintiffs motion for partial summary judgment is denied without
prejudice at this time, pending the outcome of Liner’s claims.
Conclusion
The record before the Court establishes that the individual Defendants are
entitled qualified immunity from suit. Plaintiffs have failed to establish that
immunity does not apply. As such, the Chief Belmar and St. Louis County
Defendants are also entitled to summary judgment.
Accordingly,

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IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment, [Doc. No. 77], is GRANTED.
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial Summary
Judgment, [Doc. No. 84], is DENIED except as to Liner.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Certify Class,
[Doc. No. 80], is DENIED at this time.
A separate judgment will be entered upon the disposition of the remaining
issues herein.
Dated this 30th day of September, 2018.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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