Furlow v. Belmar et al

Filing 143

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants St. Louis County and John Belmar's Motion for Summary Judgment, [Doc. No. 77 ], with respect to the claims of Plaintiff Howard Liner, is GRANTED as to Count I and Count II a nd DENIED as to Count III. IT IS HEREBY ORDERED that Plaintiff Howard Liner's Motion for Partial Summary Judgment, [Doc. No. 84 ], is DENIED. IT IS FURTHER ORDERED that Defendant Ed Schlueter's Motion for Summary Judgment, [Doc. No. 135 ], is DENIED as to Count I and Count III and GRANTED as to Count II. Signed by District Judge Henry Edward Autrey on March 15, 2019. (BRP)

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

)
)
)
)
)
)
)
)
)

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

Case No. 4:16-CV-254 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant Ed Schlueter’s Motion for
Summary Judgment [Doc. No. 135], Defendants St. Louis County and St. Louis
County Police Chief John Belmar’s Motion for Summary Judgment [Doc. No. 77],
and Plaintiff Howard Liner’s Motion for Partial Summary Judgment [Doc. No. 84].
The parties oppose the respective motions. The motions have been fully briefed.
This Court’s previous Opinion, Memorandum and Order dated October 5,
2018 [Doc. No. 129] (“Previous Order”) fully disposed of two of the three named
Plaintiffs’ claims. The claims of Howard Liner (“Liner”) against Defendants John
Doe 1-2, St. Louis County and John Belmar (“Belmar”) were stayed pending
substitution of named defendants pursuant to this Court’s Order to Substitute and
Serve the Doe Defendants [Doc. No. 128]. Plaintiffs filed a Second Amended
Complaint substituting Defendant Ed Schlueter (“Schlueter”) as and for the Doe
1

Defendants. Therefore, the claims and parties presently before the Court are
Counts I, II and III, each alleged by Plaintiff Liner against Defendants St. Louis
County, Belmar, and Schlueter.
The Court now considers Defendants’ Motion for Summary Judgment with
respect to Liner’s claims against St. Louis County and Belmar and Plaintiffs’
Motion for Partial Summary Judgment with respect to Liner’s claims, as they were
not ruled on in the Previous Order. Also considered herein is Defendant
Schlueter’s separate Motion for Summary Judgment.
For the reasons set forth below, Plaintiff Liner’s motion for summary
judgment as to Count I is denied. Defendant Schlueter’s motion for summary
judgement is denied as to Count I and Count III, and granted as to Count II.
Defendants St. Louis County and Belmar’s motion for summary judgment is
granted as to Count I and Count II, and denied as to Count III.
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,” which is entered into a computer system by a law
2

enforcement officer, 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. If a St. Louis
County Police officer encounters a person with a wanted entered against him or
her, the officer is authorized by St. Louis County Police Department (“SLCPD”)
policy to take that person into custody. The wanted, as displayed to the arresting
officer, does not include a description of the probable cause on which it is based.
In its Previous Order, this Court held that wanteds are a type of warrantless
arrest, and therefore permissible only if the wanted is based on probable cause.
Facts Not In Dispute
The underlying “wanted” in this matter was issued by Schlueter on August
25, 2015. It identified Liner as wanted for the theft of a set of 22 inch vehicle
wheels and tires from Jaylyn Davis.
As for facts, Schlueter’s August 25, 2015 Investigative Report is undisputed
as representative of what Schlueter heard, observed, and believed at the time he
issued the wanted. For their motions for summary judgement, however,
Defendants rely heavily on Schlueter’s deposition. The deposition was taken more
than 17 months after the events of August 25, 2015 and includes details about the
incident that were not mentioned in the Investigative Report. Liner objects to
Defendants’ characterization of the latter provided details as undisputed fact.
3

The facts not in dispute, as recorded in Schlueter’s Investigation Report, are
summarized as follows. At 7:34 p.m. on August 25, 2015, Schlueter was
dispatched to a residence on a larceny call. After he arrived at the residence,
Schlueter “contacted the victim identified as Jaylyn Davis.” It is undisputed that
Davis was not at the residence when Schlueter arrived, and that Schlueter only
spoke to Davis on the phone. Davis stated that he and Liner had been in the front
yard, where Davis was trying to sell stereo equipment to Liner. Liner was an
acquaintance of Davis. Davis went inside to get some other items he wanted to
sell. When he came back out, Davis noticed that Liner was gone and four wheels
and tires were missing from the front yard. Davis stated that the wheels and tires
were rented from “Rent ‘N’Roll” and had an estimated value of $3,000.00.
Davis told Schlueter that he observed Liner driving away in a silver BMW
with Illinois license plates. Davis also told Schlueter that one neighbor had
observed a black male putting the wheels into the back of a silver BMW.
Schlueter attempted, but was unable to contact the neighbor, or anyone else,
at the address Davis gave him. Schlueter further canvassed the area “with negative
results.” Schlueter then entered the wanted for Liner.
At 4:45 p.m. on October 5, 2015, Liner was arrested by the St. Louis Metro
Police and taken into custody. The only charge listed on the Metro Police
processing document refers to a document with the same reference number as the
4

wanted entered by Schlueter on August 25, indicating that Liner was arrested based
solely on the outstanding wanted. Liner was then taken into the custody of St.
Louis County Police at 6:30 p.m. Schlueter canceled the wanted after he was
notified that Liner was in custody.
On October 6, Schlueter interviewed Liner in custody. Liner waived his
Miranda rights and told Schlueter that on August 25, he and Davis had argued
about money on the phone. Liner said that he had owed Davis for some stereo
equipment he bought, but that he was not going to pay Davis back because Davis
had stolen money from Liner’s house. Liner’s stepdaughter was a friend of Davis,
and had let him into Liner’s house. Liner told Schlueter that Davis was trying to
sell the wheels and other stolen items on Craigslist.
Liner told Schlueter that he had been out with his girlfriend on August 25th,
and was not at Davis’ home. Liner said he owned a silver BMW, model 325i.
Schlueter noted in his report that “a set of four 22 [inch] rims and wheels
would be too large to fit in the trunk of a BMW 325i.” He also referred to his
earlier report, noting that he had been unable to locate the neighbor that Davis
claimed was a witness to Liner stealing the wheels and tires. Liner was released
from the custody of the SLCPD at 10:58 a.m.
Discussion

5

Liner claims that Schlueter violated his Fourth, Fifth, and Fourteenth
Amendment rights. In addition to Liner’s claims against Schlueter in his
individual capacity, Liner also claims that St. Louis County and Police Chief
Belmar, in his official capacity, are liable for the alleged violations. Liner’s
Second Amended Complaint (“SAC”) alleges three counts.
Count I alleges that Liner’s Fourth Amendment rights were violated when
Schlueter issued a wanted for Liner’s arrest without probable cause and without
seeking a judicial determination of probable cause. Liner further alleges Fourth
Amendment violations based on his arrest and detention pursuant to the wanted
and without actual probable cause or a judicial determination of probable cause.
Count II alleges that Schlueter retaliated against Liner for exercising his
Fifth Amendment right and refusing to answer questions from Schlueter.1
Count III alleges that Defendants deprived Liner of the liberty interests of
freedom of movement and freedom to conduct his daily lives without fear, as well
as his interest in not being classified stigmatically as a person who is subject to
summary arrest and detention. Liner alleges that he was deprived of these interests
without due process or procedure with which to challenge the wanted, thereby
violating his Fourteenth Amendment right to due process.

1

As discussed below, the Complaint, which applied to all three Plaintiffs, made no allegations
that Liner refused to answer questions or invoked his Fifth Amendment rights.
6

Plaintiffs moved for partial summary judgment as to Count I only.
Defendants moved for summary judgment on all Counts.
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
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
7

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.
Qualified Immunity
Whether Schlueter is immune from suit under the doctrine of Qualified
Immunity is a threshold issue. “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).
8

Municipal and Governmental Entity Liability
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).
9

Analysis
Count I
“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
U.S. 213, 232 (1983). “The substance of all the definitions of probable cause is a
10

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)). Nevertheless,
“the burden remains on the proponent of [qualified] immunity to establish the
relevant predicate facts, and at the summary judgment stage the nonmoving party
is given the benefit of all reasonable inferences.” Pace v. City of Des Moines, 201
F.3d 1050, 1056 (8th Cir. 2000). “In the event that a genuine dispute exists
concerning predicate facts material to the qualified immunity issue, the defendant
is not entitled to summary judgment on that ground.” Id.
Here, Liner’s and Schlueter’s cross-motions for summary judgment as to
Count I must be denied because there are genuine disputes of fact that are material
to the issue of whether or not Schlueter had arguable probable cause to enter a
wanted for Liner. Liner disputes many of Defendants’ proposed facts based on the
absence of those facts in Schlueter’s Investigative Report. Those proposed facts
are taken from Schlueter’s deposition and are relied upon by Defendants for their
probable cause argument, namely:
• that Schlueter spoke not only to Davis on the phone, but also to Davis’
mother and other people that were in the house;
11

• that Davis’ mother told Schlueter that Liner had stolen the wheels;
• that Davis’ mother told Schlueter that she saw Liner drive away.
Defendants claim that Liner cannot defeat their motion for summary
judgment because Liner fails to come forward with “specific facts showing that
there is a genuine issue for trial.” This argument is not well taken. Liner clearly
argues that the factual dispute concerns the additional material information given
in Schlueter’s deposition versus his Investigative Report. Liner distinguishes the
Investigative Report, which was made contemporaneously with the events of
August 25, 2015 from Schlueter’s deposition, which was taken 17 months later
when Schlueter’s memory of the events was not fresh. Moreover, Schlueter
testified his investigative reports usually contain the details upon which he bases
probable cause, and that he based his probable cause determination on the
statements of “[Davis’] mother and the other individuals on scene.” However, the
only statements mentioned in the Investigative Report are those of Davis, creating
a credibility question that is not in the purview of this Court.
Whether Schlueter had even arguable probable cause to enter a wanted for
Liner is subject to a factual dispute regarding the veracity of the deposition details.
The undisputed facts alone do not conclusively establish probable cause.
[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
12

more facts before seeking to arrest.” . . . An officer need not conduct a
“mini-trial” before making an arrest, Brodnicki v. City of Omaha, 75
F.3d 1261, 1264 (8th Cir.), cert. denied, 519 U.S. 867, 117 S.Ct. 179,
136 L.Ed.2d 119 (1996); Morrison v. United States, 491 F.2d 344,
346 (8th Cir.1974), but probable cause does not exist when a
“minimal further investigation” would have exonerated the suspect.
See Bigford, 834 F.2d at 1219; BeVier v. Hucal, 806 F.2d 123, 128
(7th Cir.1986) (a police officer “may not close her or his eyes to facts
that would help clarify the circumstances of an arrest”); Romero v.
Fay, 45 F.3d 1472, 1476–77 and n. 2 (10th Cir.1995) (police need not
interview alleged alibi witnesses but must “reasonably interview
witnesses readily available at the scene, investigate basic evidence, or
otherwise inquire if a crime has been committed at all before invoking
the power of warrantless arrest and detention”); Sevigny v. Dicksey,
846 F.2d 953, 956–58 (4th Cir.1988) (no probable cause where officer
unreasonably failed to interview witnesses at scene of automobile
accident who would have corroborated plaintiff's version of story);
Baptiste, 147 F.3d at 1259 (officers may weigh the credibility of
witnesses in making a probable cause determination, but they may not
ignore available and undisputed facts).
Kuehl v. Burtis, 173 F.3d 646, 650–51 (8th Cir. 1999). Schlueter relied on the
statements of only one witness – the purported victim – who had left the scene
minutes after the alleged larceny. Schlueter also relied on the alleged victim’s
assertions that some other witness saw Liner taking the wheels, even though that
person, like the alleged victim, was not locatable minutes after the events. Based
solely on the undisputed facts, Schlueter could not reasonably have believed there
to be probable cause to arrest Liner without a warrant. The disputed facts, which
cannot be judged by this Court, concern predicate facts material to the issues of
probable cause and qualified immunity, and thus preclude summary judgment as to
Schlueter and Count I.
13

As for St. Louis County and Belmar, Count I alleges that they are liable as
governmental entities because “issuing Wanteds in order to cause the arrest and
detention of individuals without obtaining a prompt determination of probable
cause by a neutral judicial magistrate” violates the Fourth and Fourteenth
Amendments. This Court rejected this argument in its Previous Order, finding that
the lack of a prompt judicial determination of probable cause does not render the
Wanted system unconstitutional. Accordingly, Defendants St. Louis County and
Belmar are entitled to summary judgement as to Count I.
Count II
In the SAC, Plaintiffs 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, the
SAC contains no allegations that Liner ever refused to answer Schlueter’s (or any
officer’s) questions or otherwise invoked his Fifth Amendment rights. Seemingly,
Count II erroneously included a claim by Liner against Schlueter. As there is no
allegation of an underlying constitutional violation, summary judgment for Count
II will be entered in favor of Defendant Schlueter as well as St. Louis County and
Belmar.
Count III
14

Liner claims that by issuing a wanted for his arrest, Schlueter deprived him
of liberty interests including freedom of movement and freedom to conduct his
daily lives without fear. Liner alleges that he was deprived of these interests
without due process or procedure with which to challenge the wanted issued
against him, thereby violating the Fourteenth Amendment right to due process.
Liner also claims that the wanted subjected him to classification and stigma as a
person who is subject to summary arrest and detention.
Defendants did not brief any arguments regarding Count III in their first
Motion for Summary Judgment or in Schlueter’s Motion for Summary Judgment.
Nevertheless, in its Previous Order, this Court granted summary judgment as to
Count III in favor of Defendants. That determination was based squarely on the
Court’s finding that Defendants had at least arguable probable cause to arrest the
relevant Plaintiffs. Here, the question of probable cause cannot be reconciled on
summary judgment, and Defendants have not justified their motion for summary
judgment as to Count III. Defendants are not entitled to summary judgment as to
Count III.
Conclusion
Based on the foregoing, Plaintiff Liner’s motion for summary judgment as to
Count I is denied. Defendant Schlueter’s motion for summary judgement is denied
as to Count I and Count III, and granted as to Count II. Defendants St. Louis
15

County and Belmar’s motion for summary judgment is granted as to Count I and
Count II, and denied as to Count III.
As a matter of clarification, the remaining parties and claims in this case are:
Count I – Plaintiff Liner against Defendant Schlueter, and Count III – Plaintiff
Liner against Defendants Schlueter, St. Louis County, and Belmar.
Accordingly,
IT IS HEREBY ORDERED that Defendants St. Louis County and John
Belmar’s Motion for Summary Judgment, [Doc. No. 77], with respect to the claims
of Plaintiff Howard Liner, is GRANTED as to Count I and Count II and DENIED
as to Count III.
IT IS HEREBY ORDERED that Plaintiff Howard Liner’s Motion for
Partial Summary Judgment, [Doc. No. 84], is DENIED.
IT IS FURTHER ORDERED that Defendant Ed Schlueter’s Motion for
Summary Judgment, [Doc. No. 135], is DENIED as to Count I and Count III and
GRANTED as to Count II.
Dated this 15th day of March, 2019.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
16