Robinson v. City of St. Louis, Missouri et al
Filing
84
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Plaintiffs motion for partial summary judgment as to liability against Defendant Hawkins (ECF No. 50 ) is DENIED. IT IS FURTHER ORDERED that Plaintiffs official-capacity claims against Defendan ts Hawkins and Swinton in Counts I, II, and VI are DISMISSED. IT IS FURTHER ORDERED that Defendants motion for summary judgment (ECF No. 53 ) is GRANTED in part and DENIED in part as set forth above. Signed by Magistrate Judge Patricia L. Cohen on 4/6/18. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KAYLA ROBINSON,
Plaintiff,
vs.
CITY OF ST. LOUIS, MISSOURI, et al,
Defendants.
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) Case No. 4:17-CV-156 PLC
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MEMORANDUM AND ORDER
This matter is before the Court1 on two motions for summary judgment: (1) a motion for
partial summary judgment filed by Plaintiff Kayla Robinson (ECF No. 50); and (2) a motion for
summary judgment filed by Defendants2 St. Louis City police officers Angela Hawkins and Kelli
Swinton and the St. Louis Metropolitan Police Department Board of Police Commissioners and
its individual members (collectively, “Board Defendants”) (ECF No. 53). For the following
reasons, Plaintiff’s motion for partial summary judgment is denied and Defendants’ motion for
summary judgment is granted in part and denied in part.
On November 15, 2016, Plaintiff filed a petition in the Circuit Court of the City of St.
Louis pursuant to 42 U.S.C. § 1983 asserting claims of unreasonable strip search, excessive
force, municipal liability, and civil conspiracy following her arrest on October 19, 2012 in the
City of St. Louis. (ECF No. 3). Plaintiff alleged that, during a traffic stop, Defendant Hawkins,
1
The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
(ECF No. 28).
2
Defendants’ summary judgment motion was also filed by Defendants Lt. Col. Lawrence
O’Toole and Chief D. Samuel Dotson III. Plaintiff filed and the Court granted a motion to
voluntarily dismiss from this case Defendants O’Toole and Dotson. (ECF Nos. 82 & 83).
Therefore, the Court need not address the motion as to Defendants O’Toole and Dotson.
1
a St. Louis Metropolitan Police Department (SLMPD) officer, pushed Plaintiff against a tractortrailer two times, lowered Plaintiff’s pants and underwear, and placed her hand against Plaintiff’s
vagina, thus violating the Fourth Amendment’s prohibition on unreasonable searches and use of
excessive force (Counts I and II).
Plaintiff further claimed that Defendants Hawkins and
Defendant Swinton, another SLMPD officer, conspired to cover-up Defendant Hawkins’
wrongdoing (Count VI).
In her original petition, Plaintiff also alleged counts of municipal and supervisory liability
against the City of St. Louis, claiming its customs and failure to train and supervise Defendant
Hawkins led to the deprivation of Plaintiff’s constitutional rights (Counts III, IV, V). Defendant
City of St. Louis removed the case to federal court pursuant to 28 U.S.C. § 1441 and the Court’s
federal question jurisdiction under 28 U.S.C. § 1331. (ECF No. 1). Plaintiff subsequently filed a
first amended complaint replacing Defendant City of St. Louis with the St. Louis Board of Police
Commissioners and its individual members, Defendants Gray, Battle-Turner, Irwin, Switzer, and
Slay, in their official capacities only. (ECF No. 18).
Plaintiff’s first amended complaint alleges the following claims under Section 1983: (1)
unreasonable search and use of excessive force in violation of the Fourth and Fourteenth
Amendments against Defendant Hawkins in her individual and official capacities; (2)
unconstitutional custom or policy permitting unreasonable searches and use of excessive force,
failure to train, and failure to supervise resulting in the deprivation of rights under the Fourth and
Fourteenth Amendments against the Board Defendants; and (3) civil conspiracy in furtherance of
violations of the Fourth Amendment against Defendants Hawkins and Swinton in their individual
and official capacities.
Plaintiff moves for partial summary judgment against Defendant Hawkins on her claim
2
under 42 U.S.C. § 1983 for unreasonable search in violation of the Fourth and Fourteenth
Amendments of the United States Constitution. (ECF No. 50). Defendants seek summary
judgment on all six of Plaintiff’s Section 1983 claims. (ECF No. 53).
I.
Legal Standard
The standards applicable to summary judgment motions are well settled, and they do not
change when both parties have moved for summary judgment. See Wermager v. Cormorant
Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983); CitiMortgage, Inc. v. Equity Bank, N.A., 261
F.Supp.3d 942, 950 (E.D.Mo. 2017). Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The
movant “bears the initial responsibility of informing the district court of the basis for its motion”
and must identify “those portions of [the record]...which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
movant does so, the non-movant must respond by submitting evidentiary materials that set out
“specific facts showing that there is a genuine issue for trial.” Id. at 324 (quotation marks
omitted).
“On a motion for summary judgment, ‘facts must be viewed in the light most favorable to
the nonmoving party only if there is a genuine dispute as to those facts.’” Ricci v. DeStefano,
557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation
marks omitted)). The court’s function is not to weigh the evidence but to determine whether
there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.”
3
Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)).
Where parties file cross-motions for summary judgment, each motion should be reviewed
in its own right, with each non-moving party “entitled to the benefit of all inferences favorable to
them which might reasonably be drawn from the record[.]” Wermager, 716 F.2d at 1214; see
also Canada v. Union Elec Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998). “[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, 716 F.2d at 1214.
II.
Background
a. Stop and Search
On the evening of October 19, 2012, St. Louis Metropolitan Police Department (SLMPD)
officers, including Defendant Hawkins, Capt. Joseph Spiess, and Sgt. Mark McMurry, were
conducting a police checkpoint to “look for guns, drugs, and violent offenders.”
At
approximately 10:30 p.m., Plaintiff’s boyfriend, Ronnell Jenkins, was driving Plaintiff’s car, and
Plaintiff was a front-seat passenger. Mr. Jenkins’ brother, Richard Jones, was a passenger in the
back seat of the vehicle. Defendant Hawkins and Capt. Spiess observed Plaintiff’s vehicle make
an illegal u-turn to avoid the checkpoint. In response, they activated the roof lights and siren of
their unmarked police car and pulled over Plaintiff’s vehicle. Defendant Hawkins and Captain
Spiess stopped Plaintiff’s vehicle to determine if Plaintiff, Mr. Jenkins, and Mr. Jones were
“purposely attempting to avoid police contact at the checkpoint” and to “look for drugs and
guns.”
Defendant Hawkins, wearing street attire and a black vest that said “Police,” approached
4
Plaintiff’s vehicle. As Defendant Hawkins neared the rear, passenger side of the vehicle, she
observed Mr. Jenkins “hand something” to Plaintiff. Defendant Hawkins continued walking
toward the passenger-side door and saw Plaintiff “taking her hands out of the front of her
waistband.” Defendant Hawkins reached the passenger-side door and observed Mr. Jenkins and
Plaintiff complete their exchange within “a second or two.” Defendant Hawkins had “a hunch”
that Plaintiff and Mr. Jenkins had exchanged drugs or a weapon.
Defendant Hawkins instructed Plaintiff to show her hands and exit the vehicle. Plaintiff
complied.
Defendant Hawkins handcuffed Plaintiff’s hands together behind her back and
performed a standard pat-down search.3 Defendant Hawkins found no weapons or contraband on
Plaintiff’s person as a result of that search.
After the pat-down search, Defendant Hawkins asked Plaintiff what she had placed in her
waistband, and Plaintiff admitted, “I have some marijuana.”
When Defendant Hawkins
instructed Plaintiff to retrieve the marijuana, Plaintiff asked Defendant Hawkins to transport her
to the police station and allow her to retrieve the marijuana there. Defendant Hawkins refused,
explaining that “. . . it was an officer safety issue and that wasn’t . . . possible.”
Because Plaintiff did not want “to retrieve [the marijuana] in front of the male officers,”
Defendant Hawkins walked her around a building to “a nearby parking lot,” stopping behind a
tractor-trailer. Plaintiff did not resist but “begged” Defendant Hawkins to conduct the search
“back at the station.”
Prior to conducting the strip search, Defendant Hawkins requested rubber gloves over the
3
In her deposition, Defendant Hawkins explained that standard pat-down searches involved
patting the outside of the person’s: waistband; pockets; legs down to the ankles and “all the way
up to the vagina region”; buttocks, and “top portion” including “the female’s bra.” Defendant
Hawkins acknowledged that, “[s]hort of a gun being literally in [Plaintiff’s] vagina,” a pat-down
search would reveal any weapon that Plaintiff was carrying.
5
radio. Another SLMPD officer, Sgt. Mark McMurry, drove his patrol car “alongside the trailer,”
handed Defendant Hawkins a pair of gloves, and “walked away.”
At this point, Plaintiff’s and Defendants’ versions of events diverge significantly.
According to Defendant Hawkins’ deposition testimony, she unfastened Plaintiff’s belt because
Plaintiff’s hands remained cuffed behind her back. Defendant Hawkins stated that unfastening
Plaintiff’s belt loosened Plaintiff’s jeans “quite substantially” so that Plaintiff was able to lower
them to about mid-thigh and retrieve the marijuana from her underwear.
According to
Defendant Hawkins’ account, when Plaintiff retrieved the marijuana, she also withdrew a small
baggie of what appeared to be crack, which Plaintiff attempted to shove down her pants leg and
hide under her foot. Defendant Hawkins ordered Plaintiff to move her foot and collected the
baggie. Defendant Hawkins stated that Plaintiff pulled her pants back up in the same manner
that she pulled them down, and Defendant Hawkins refastened her belt.
Plaintiff, on the other hand, alleges that, when she asked Defendant Hawkins to search
her at the police station, Defendant Hawkins said, “Bitch, no, we’re doing this right now” and
“was just yelling and in [Plaintiff’s] face continuously.” In her deposition, Plaintiff testified that
Defendant Hawkins “drug [her] without shoes to a vacant lot where a male officer waited in his
cruiser,” and Plaintiff handed Defendant Hawkins the marijuana. Defendant Hawkins said,
“Bitch, this isn’t all that you have. You’re not freaking out over a bag of marijuana,” grabbed
Plaintiff by the arms, and pushed her face-forward into the trailer. Defendant Hawkins then
“flung [Plaintiff] around” and pushed her backward into the trailer. A picture of the jacket
Plaintiff wore on October 19, 2012 shows what appears to be oil stains on the hood and left side.
According to Plaintiff, Defendant Hawkins unfastened Plaintiff’s pants, pulled her
underwear down, and placed her entire hand in Plaintiff’s “underwear right there while [the male
6
cop] was there.” Defendant Hawkins touched Plaintiff’s vagina and “behind” and she felt
Defendant Hawkins’ “fingers on the inside of [her] vagina lips.” Shortly thereafter, Defendant
Hawkins placed a small baggie on the ground in front of Plaintiff and “said it was dope.”
A surveillance video shows that, during the time Defendant Hawkins was strip searching
Plaintiff behind the tractor-trailer, a male officer walked “. . . into view and [walked] in the area
that [Defendant Hawkins] had taken [Plaintiff]” and is later seen “walking back to the area of the
other suspects and the patrol car.” In addition, surveillance video shows Defendant Hawkins and
another male officer escort Plaintiff back to her vehicle “a couple minutes later.” Defendant
Hawkins does not dispute that there were at least two male officers in the parking lot while she
searched Plaintiff.
Shortly after Defendant Hawkins walked Plaintiff to the patrol car, Defendant Swinton
arrived at the scene. Defendant Swinton described Plaintiff as “hysterical,” as though she was
“having a panic attack.” Defendant Swinton informed Plaintiff she was under arrest, and she and
another officer transported Plaintiff to the police station.
At the police station, Defendant Swinton offered Plaintiff the opportunity to provide a
written statement. Plaintiff wrote a statement, in which she complained that Defendant Hawkins
“used unnecessary force and conducted some form of a strip search . . . in front of males, and she
was uncomfortable with it.”4 Although Defendant Swinton observed Plaintiff handwrite the
statement, she did not include Plaintiff’s statement in the final incident report. The Circuit
4
In her deposition, Plaintiff testified that she wrote two statements. According to Plaintiff,
Defendant Swinton insisted Plaintiff write a statement saying that “it was [Mr. Jenkins’] dope”
and informed her that she “wouldn’t be able to leave until she had written this statement.”
(Hawkins’ Dep. at 65-66). In her first statement, Plaintiff wrote “I want my lawyer and I was
physically and sexually assaulted by the St. Louis Police Department.” (Id. at 65). Defendant
Swinton “looked at it and laughed and balled it up” and then took Plaintiff to a cell. (Id.).
Plaintiff wrote a second statement later that night. (Id. at 66).
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Attorney did not charge Plaintiff with any crime.
b. Incident Report
Defendant Swinton completed the incident report even though she did not “witness any
part of the incident” involving Plaintiff’s encounter with Defendant Hawkins.
Defendant
Swinton based the report on information that Defendant Hawkins orally provided her at the
police station after Plaintiff’s arrest.
The incident report stated that, on October 19, 2012, Defendant Hawkins and Det.
Michael Betz observed Plaintiff’s vehicle make an illegal u-turn, “curb[ed] the vehicle,” and
“conducted a voluntary field interview with the occupants of the car[.]” (ECF No.51-1, Pl.’s Ex.
1).
Defendant Hawkins observed Plaintiff and Mr. Jenkins complete “a hand to hand
transaction” and Plaintiff “removing her hands from her waistband, as if she was concealing an
object[.]” (Id.). The incident report continued:
[Plaintiff] was instructed to retrieve the items she placed in her waistband.
[Plaintiff] voluntarily retrieved an individually wrapped bag of a green
vegetable like substance from inside her pants within her undergarment
(panties). She complied; as she removed the plastic bag containing green
vegetable like substance from her pants, another plastic bag containing a white
rock like substance fell to the ground out of the left pants leg of [Plaintiff].
Plaintiff immediately placed her left foot on top of the bag in an attempt to
conceal the item.
(Id.). The incident report stated that Plaintiff “was offered the opportunity to reduce a statement
to writing however she declined.” (Id.).
As previously stated, Defendant Swinton did not include Plaintiff’s handwritten
statement in the final incident report. In that statement, Plaintiff wrote that Mr. Jenkins was
driving her car when officers from the SLMPD pulled them over. (ECF No. 66-5, Pl.’s Ex. 8).
Mr. Jenkins handed Plaintiff “marijuana in a bag and [she] put it in [her] pants.” (Id.). Plaintiff
described the stop, pat-down search, and strip search as follows:
8
A female officer immediately pulled me from the vehicle and cuffed me. She
drug me w/o shoes to a vacant dark lot where a male officer waited in his
cruiser. She searched me by my vehicle and again in the lot. I told her I had
weed she said I needed to pull my pants down. She unfastened my pants and
pulled my underwear and pants down. I begged her to take me to the station
and search me she said no. All of this took place in front of a male officer who
gave her a rubber glove. Once I pulled the weed from my pants she pushed me
hard against the empty trailers getting black grease all over my jacket and shirt.
She was very aggressive. I proceeded to tell her over and over I was having a
panic attack. The male officer made me feel very uncomfortable with being
undressed in an empty dark lot where no one could help me. The female
officer had been given the weed, pushed me into the trailer all while I was
cuffed. She then was behind my back and put a small bag in front of me later
and said it was dope. I told her weed isn’t dope. She said it was in the rocks
somewhere but I had already been searched, stripped and shoeless. The weed
was not mine[.] I have never touched dope in my life. I would like to file a
report on the officer who made me pull my pants down.
(Id.).
At her deposition, Defendant Swinton acknowledged that the incident report contained
many inaccuracies. For example, the report stated that Defendant Hawkins was riding with Det.
Betz on October 19, 2012 and it mentioned neither Capt. Spiess nor Sgt. McMurry, who were
present during Plaintiff’s arrest. (ECF Nos. 51-1, Pl.’s Ex. 1). In addition, the incident report
incorrectly stated that Defendant Hawkins and Det. Betz conducted “a voluntary field interview
with the occupants of the car,” when, in fact, the vehicle’s occupants were not free to leave.
(ECF No. 51-1, Pl.’s Ex. 1). The incident report contained no mention of: the pat-down search;
Defendant Hawkins’ request for rubber gloves; the strip search or the parking lot where it was
conducted; Plaintiff’s request that Defendant Hawkins conduct the strip search at the police
station; the unfastening of Plaintiff’s belt lowering of her pants; or Plaintiff’s distress. (ECF No.
51-1, Pl.’s Ex. 1).
According to Defendant Swinton’s deposition testimony, she did not include Plaintiff’s
written statement in the incident report because Plaintiff did not sign it. However, SLMPD
policy does not require that a suspect sign a statement to include it in an officer’s incident report.
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c. Special Order 8-03
At the time of the incident, SLMPD’s Special Order 8-03 governed, among other things,
strip and body cavity searches. According to Section V(A)(2) of Special Order 8-03, a strip
search is “the removal or rearrangement of some or all of the clothing of a person so as to permit
a visual or manual inspection of the genitals, buttocks, anus, breasts, or undergarments of such
person[.]” (ECF No. 66-3, Pl.’s Ex. 3). Under the policy, an officer could conduct a strip search
only if “all of the following conditions” were satisfied:
(a) The Watch Commander responsible for either the investigation or the
custody of the prisoner has given written approval for the search. Written
approval will be recorded on the “Prisoner Search Form. . . .
(b) By an officer and in the presence of officers of the same sex as the person
to be searched. Only those persons necessary for the security and safety
of the officer and prisoner will be present. . . .
(c) Under sanitary conditions and in a place where the search cannot be
viewed by persons other than those necessary for the security and safety
of the prisoner and officers.
(Id.).
At her deposition, Defendant Hawkins admitted that, under the terms of Special Order 803, the search she conducted of Plaintiff on October 19, 2012 constituted a “strip search” and she
conducted the strip search without a commanding officer’s prior written approval.
(Hawkins’
Dep. at 225). Defendant Hawkins explained that, from the time of Plaintiff’s strip search until
shortly before her October 2017 deposition, Defendant Hawkins did not believe that the policy
applied when an officer ordered a suspect to remove his or her own clothes.
d. IAD investigation
Plaintiff filed a complaint with the SLMPD’s Internal Affairs Division (“IAD”) on
October 22, 2012. (ECF No. 75, Pl.’s Ex. 6). In her complaint, Plaintiff stated:
[D]uring a traffic stop, Detective Angela Hawkins, DSN 7215, assigned to
District Seven, conducted a search of her (Robinson’s person) and pulled
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Robinson’s pants and underwear down. During the search Detective Hawkins
touched Robinson’s genitals with her (Detective Hawkins’) hand. In addition,
Robinson alleges that Detective Hawkins forcefully pushed her (Robinson)
against a semitrailer causing injury to her arm.
(Id.). Via letter dated August 26, 2013, IAD informed Plaintiff that it had “sustained” Plaintiff’s
allegation of an improper search in “[v]iolation of Special Order 8-03, Section V; A-2 (a, b, c).”
(Id.).
III.
Discussion
A. Plaintiff’s motion for partial summary judgment on Count I against Defendant
Hawkins
Plaintiff asserts she is entitled to summary judgment on her Section 1983 claim against
Defendant Hawkins for unreasonable search because, even accepting Defendant Hawkins’ facts
as true, the strip search violated Plaintiff’s Fourth Amendment rights. (ECF No. 50). Defendant
Hawkins counters that the Court must deny Plaintiff’s motion for partial summary judgment
because the strip search was “conducted in a secluded place, by a female, was done quickly, and
not in an abusive manner.” (ECF No. 62).
To state a claim under § 1983, a plaintiff must allege (1) that the defendant acted under
color of state law; and (2) that the alleged conduct deprived the plaintiff of a constitutionally
protected federal right.5 Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). Here,
there is no dispute that Defendant Hawkins “acted under color of state law.” Rather, the parties
dispute whether Defendant Hawkins violated Plaintiff’s constitutional rights.
The Fourth Amendment prohibits unreasonable searches. Bell v. Wolfish, 441 U.S. 520,
558 (1979). See also D.H. v. Doe 1, No. 4:14-CV-1882 RWS, 2016 WL 4720456, at *4
(E.D.Mo. Sept. 9, 2016) (“Illegal strip searches by law enforcement officers are rightly the target
5
Plaintiff cites no cases in which this district court has granted a plaintiff’s motion for summary
judgment on a Section 1983 claim.
11
of lawsuits to stop such practices.”). Strip searches are governed by the Fourth Amendment and
are actionable under section 1983. See Schmidt, 557 F.3d at 572. In determining whether a strip
search is unreasonable, a court must balance the need for the particular search against the
invasion of personal rights that the search entailed. See Franklin v. Lockhart, 883 F.2d 654, 656
(8th Cir. 1989). Factors that a court must consider include: “(1) the justification for initiating
the search, (2) the scope of the particular intrusion, (3) the place in which the search is
conducted, and (4) the manner in which it is conducted.” Schmidt, 557 F.3d at 572 (citing
Wolfish, 441 U.S. at 559). Courts applying the Wolfish balancing test “have recognized that
strip and visual body cavity searches impinge seriously upon the values that the Fourth
Amendment was meant to protect.” Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (“[A] strip
search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an
offense to the dignity of the individual.”).
Plaintiff maintains the strip search was unconstitutional because it was unjustified and
conducted in an unreasonably intimidating and humiliating manner. (ECF No. 51). As to the
justification for initiating the search, Plaintiff argues that the vehicle stop was based upon “a
mere municipal ordinance violation” and emphasizes the “ridiculous” nature of Defendant
Hawkins’ deposition testimony that she performed the strip search because she believed Plaintiff
might have hidden a weapon in her vagina. (ECF No. 51 at 24-25). Tellingly, Defendant
Hawkins no longer claims that her decision to conduct a strip search was based upon concern for
officer safety. Rather, Defendant Hawkins asserts that, after Plaintiff advised her that she had
marijuana in her possession, she had probable cause to search Plaintiff for drugs. (ECF No. 62 at
3).
“The decision to stop an automobile is reasonable where the police have probable cause
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to believe that a traffic violation has occurred.” U.S. v. Wright, 512 F.3d 466, 471 (8th Cir.
2008) (quoting Whren v. United States, 517 U.S. 806, 810 (1996)). “Any traffic violation,
however minor, provides probable cause for a traffic stop.” Id. “An otherwise constitutional
traffic stop is not invalidated by the fact that it was ‘mere pretext for a narcotics search.’” Id.
(quoting United States v. Williams, 429 F.3d 767, 771 (8th Cir. 2005)). “[A]n officer making a
traffic stop may order passengers to get out of the car pending completion of the stop,”
Maryland v. Wilson, 519 U.S. 408, 415 (1997), and “[s]uspicious behavior by a passenger during
a traffic stop may reasonably warrant a pat-down of the individual.” United States v. Davis, 457
F.3d 817, 822 (8th Cir. 2006).
The undisputed facts show that Defendant Hawkins and Capt. Spiess stopped Plaintiff’s
vehicle after it made an illegal u-turn.6
It is also undisputed that, as Defendant Hawkins
approached Plaintiff’s vehicle on foot, she observed movements by Mr. Jenkins and Plaintiff,
which suggested that Mr. Jenkins handed Plaintiff a weapon or contraband that Plaintiff then hid
in her pants. Defendant Hawkins’ observations justified placing Plaintiff in handcuffs and
performing a pat-down search to secure Defendant Hawkins’ personal safety. See e.g., Davis,
457 F.3d at 822 (“During a Terry stop, an officer who has reason to believe the detained
individual may be armed and dangerous may conduct a pat-down search for weapons to ensure
officer safety.”).
According to Defendant Hawkins’ account, which the Court credits for the purpose of
Plaintiff’s motion for summary judgment, after performing the pat-down search, she asked
Plaintiff what she had placed in her waistband, and Plaintiff informed her that she “had some
marijuana.” It was not unreasonable, at this point, for Defendant Hawkins to seize the marijuana
6
In response to Defendants’ motion for summary judgment, Plaintiff admits that she was legally
detained. (ECF No. 67 at 8).
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from Plaintiff’s person. “A search incident to arrest is justified by the concern for officer safety
and the need to collect evidence of the offense.” United States v. Pratt, 355 F.3d 1119, 1121 (8th
Cir. 2004). Based on Defendant Hawkins’ evidence, a reasonable jury could find that the strip
search was justified.
Plaintiff also argues that the strip search was unreasonable because Defendant Hawkins
performed it in an unnecessarily intimidating and humiliating manner. (ECF No. 51 at 22). In
particular, Plaintiff points to Defendants’ evidence that Defendant Hawkins watched Plaintiff
remove the marijuana from her underwear and at least one male officer was standing nearby. In
response, Defendant contends that the search satisfied constitutional requirements because it was
performed quickly, out of public view, by a female officer wearing sanitary gloves. (ECF No.
62).
The undisputed facts show that Defendant Hawkins, a female officer, conducted the
search behind a tractor-trailer that shielded Plaintiff from public view. See, e.g., Richmond v.
City of Brooklyn Center, 490 F.3d 1002, 1008 (8th Cir. 2007) (“strip searches should be
conducted in an area as removed from public view as possible without compromising legitimate
security concerns” and “by officials of the same sex as the individual to be searched.”). There
are genuine issues of fact, however, regarding whether and at what distance a male officer
watched the search; whether Defendant Hawkins used abusive language and excessive force
during the search; and whether Plaintiff’s pants and/or underpants were lowered further than
necessary for Plaintiff to retrieve the marijuana hidden inside.
In support of her position that the strip search was unconstitutional, Plaintiff relies on
Pace v. City of Des Moines, 201 F.3d 1050 (8th Cir. 2000). In Pace, the Eighth Circuit affirmed
the denial of the defendant police officer’s motion for summary judgment on the ground of
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qualified immunity. Id. at 1052. The defendant, acting without a warrant: entered the plaintiff’s
place of business, flashed his firearm, ordered the plaintiff to step outside, pushed the plaintiff
against a wall, ordered the plaintiff to remove his shirt, and photographed the tattoo on the
plaintiff’s chest. Id. at 1053.
The Eighth Circuit held that detaining and photographing the
plaintiff without his consent exceeded the scope of an investigative stop and the defendant was
not entitled to qualified immunity. Id. at 1053-54.
Pace is inapposite because it involved an investigative stop.7 See, e.g., Schmidt, 557 F.3d
at 573 (“The argument in Pace centered around whether a Terry stop was unreasonably delayed
when police ordered Pace to remove his shirt in public in order to photograph his tattoo.”).
Unlike the defendant in Pace, Defendant Hawkins had probable cause to stop, search, and arrest
Plaintiff and was, therefore, not bound by the constitutional limitations of an investigative stop.
In light of the conflicting testimony, genuine issues of fact exist relating to the scope of
the strip search and the manner in which it was performed. These issues require credibility
determinations that cannot be made at the summary judgment stage. See e,g., Anderson., 477
U.S. at 255 (“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions.”). The Court therefore denies Plaintiff’s
motion for summary judgment on her Section 1983 claim against Defendant Hawkins for
unreasonable search in violation of the Fourth Amendment.
B. Defendants’ motion for summary judgment
Defendants move for summary judgment on all six counts in Plaintiff’s first amended
7
The Supreme Court has described three general categories of encounters between police and
citizens: (1) consensual or voluntary encounters, which are not seizures and do not implicate the
Fourth Amendment; (2) investigative detentions, which are seizures of limited scope and
duration within the meaning of the Fourth Amendment and must be supported by a reasonable
articulable suspicion of criminal activity; and (3) physical arrests, which must be supported by
probable cause. United States v. Flores–Sandoval, 474 F.3d 1142, 1144 (8th Cir.2007).
15
complaint. (ECF No. 53). The Court will address each count in turn.
1. Official-capacity claims
As an initial matter, the Court addresses Defendants Hawkins’ and Swinton’s argument
that because “official claims are identical to and redundant to the claims against the Board
Defendants, the Court should dismiss Plaintiff’s official capacity claims [against the individual
officers].” (ECF No. 54 at 5). In Counts I and II, Plaintiff sues Defendant Hawkins in her
individual and official capacities and, in Count VI, Plaintiff sues Defendants Hawkins and
Swinton in their individual and official capacities. Defendants Hawkins and Swinton urge the
Court to dismiss Plaintiff’s official-capacity claims against them.
“A suit against a government officer in his official capacity is functionally equivalent to
a suit against the employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d
1254, 1257 (8th Cir. 2010) (official capacity claims are properly dismissed as duplicative of
claims against the city). See also Monell v. Dep't of Social Services, 436 U.S. 658, 690 n. 55
(1978) (A suit against a government official in his or her official capacity is “another way of
pleading an action against an entity of which an officer is an agent.”). Therefore, to establish the
liability of an official acting in his or her official capacity, a plaintiff must prove that “a policy or
custom [of the municipality] caused the alleged violation.’” Rogers v. City of Little Rock, 152
F.3d 790, 800 (8th Cir.1998).
Plaintiff’s official-capacity claims against Defendants Hawkins and Swinton are
duplicative of her municipal liability claims against St. Louis Board of Police Commissioners in
Counts III, IV, and V. The Court therefore dismisses Plaintiff’s official-capacity claims against
Defendants Hawkins and Swinton.
See, e.g., Brooks v. City of St. Louis, No. 4:17-CV-981
RLW, 2018 WL 346450, at *1-2 (E.D.Mo. Jan. 8, 2018).
16
2. Count I: Unreasonable search (against Defendant Hawkins)
Defendant Hawkins moves for summary judgment on Plaintiff’s claim that she conducted
an unreasonable strip search in violation of Plaintiff’s Fourth Amendment rights, arguing that the
search in question was reasonable. (ECF No. 54). Defendant Hawkins further asserts that, even
if there is a question of fact as to the constitutionality of the search, she is entitled to qualified
immunity because her conduct did not violate a clearly established constitutional right. (Id.).
Plaintiff counters that, even accepting Defendant Hawkins’ version of events, the search was
unconstitutional and a reasonable officer would have known that Defendant Hawkins’ conduct
violated a clearly established constitutional right. (ECF No. 67).
“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 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[O]fficers
are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the
time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)). “In analyzing a claim of qualified immunity, [a court] may examine
the two key prongs . . . in either order.” Moore v. City of Desloge, Mo., 647 F.3d 841, 846 (8th
Cir. 2011) (citing Camreta v. Greene, 131 S.Ct. 2020, 2031-32 (2011)).
“For a constitutional right to be clearly established, its contours ‘must be sufficiently
clear that a reasonable official would understand that what [the official] is doing violates that
right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). “This is not to say that an official action is protected by qualified immunity
17
unless the very action in question has previously been held unlawful; but it is to say that in the
light of pre-existing law the unlawfulness must be apparent.” Id. (quoting Anderson, 483 U.S. at
640) (internal citation omitted).
See also Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(“Because the focus is on whether the officer had fair notice that her conduct was unlawful,
reasonableness is judged against the backdrop of the law at the time of the conduct.”).
As previously discussed with regard to Plaintiff’s motion for partial summary judgment,
genuine issues of material fact exist relating to the scope of the intrusion and the manner in
which the search was conducted. Viewing the evidence in the light most favorable to Plaintiff,
Defendant Hawkins: “dragged” Plaintiff, whose feet were bare and hands were cuffed behind her
back, behind a tractor-trailer; yelled insults and curse words in Plaintiff’s face; “threw”
Plaintiff’s body against the tractor-trailer two times; pulled down Plaintiff’s pants and
underwear; placed her hand between Plaintiff’s bare legs; and touched Plaintiff’s vagina with her
hand. Based on the record before the Court, a jury could find that Defendant Hawkins’ conduct
deprived Plaintiff of her Fourth Amendment right to be free from unreasonable searches.
Defendant Hawkins may nevertheless be entitled to qualified immunity if the
constitutional right she allegedly violated was not clearly established. Turning to the second step
of the qualified immunity analysis, the Court must consider whether the law at the time of the
events in question gave Defendant Hawkins “fair warning” that her conduct was
unconstitutional. See Chambers v. Pennycook, 641 F.3d 898, 908 (8th Cir. 2011) (citing Hope,
536 U.S. at 741).
A person’s right to be free from a strip search conducted in an unreasonable manner is
clearly established. See Wolfish, 441 U.S. at 559-60. At the time of Plaintiff’s strip search, the
law clearly provided that strip searches should be: (1) conducted in an area as removed from
18
public view as possible without compromising legitimate security concerns; (2) by officials of
the same sex as the individual to be searched; (3) in a hygienic manner; and (4) not in “a
degrading, humiliating or abusive fashion.” Richmond, 490 F.3d at 1008.
Viewing the facts in the light most favorable to Plaintiff, Defendant Hawkins refused
Plaintiff’s repeated requests to strip-search her at the police station and, instead, conducted the
strip search in a parking lot and in the presence of two male officers. Defendant Hawkins used
threatening and offensive language and physical force before and during the search. While
Plaintiff’s hands were cuffed behind her back, Defendant Hawkins “threw” Plaintiff against the
tractor-trailer two times, pulled down Plaintiff’s pants and underwear, and placed her hand
between Plaintiff’s legs. Plaintiff felt Defendant Hawkins’ fingers touch her vagina, “behind,”
and “the inside of [her] vagina lips.” “Every objectively reasonable officer would have known
that, when conducting a strip search, it is unreasonable to do so in the manner demonstrated by
the sum of the facts alleged by Plaintiff[].” Evans v. Stephens, 407 F.3d 1272, 1283 (11th Cir.
2005).
Not only was the strip search unnecessarily degrading, humiliating, and abusive, “no
urgency justified forcibly strip searching a handcuffed arrestee.” Richmond, 490 F.3d at 1010
(Smith, J. dissenting). As Defendant Hawkins admitted in her deposition, she had no reason to
believe, after conducting a pat-down search, that Plaintiff concealed a firearm on her person.
See, e.g., Williams v. Kaufman County, 352 F.3d 994, 1006-07 (5th Cir. 2003); Meeks v. City of
Minneapolis, 822 F.Supp.2d 919, 923 (D. Minn. 2011). To the extent Defendant Hawkins
suspected Plaintiff was hiding drugs on her person, no exigent circumstance necessitated their
retrieval at the scene.
In her reply memorandum in support of summary judgment, Defendant Hawkins argues
19
that, in light of the Eighth Circuit’s decision in Richmond, Defendant Hawkins “did not violate
any bright lines in this area.” (ECF No. 74 at 7). Richmond is factually and procedurally
inapposite. In that case, the defendant police officer arrested the plaintiff in a motel room
pursuant to an arrest warrant and, in the ensuing search, discovered a small amount of marijuana
and over $1,300 on his person. 490 F.3d at 1005. Suspecting that the plaintiff, who was
handcuffed, had concealed drugs on his person, the police officer lowered the plaintiff’s pants
and underwear, “visually inspected, without touching, [the plaintiff’s] genitalia and buttocks,”
and, wearing a latex glove, “grabbed the corner of [a] tissue” that was “protruding from [the
plaintiff’s] buttocks.” Id. at 1005.
After a jury returned a verdict in favor of Plaintiff on his Section 1983 action for damages
for an unreasonable search, the defendant police officer appealed the district court’s denial of
qualified immunity. Id. at 1006-07. Importantly, the defendant did not dispute on appeal the
jury’s finding that he conducted the strip search in an unreasonable manner in violation of the
plaintiff’s Fourth Amendment rights. Id. at 1007. The Eighth Circuit held that the defendant
was entitled to qualified immunity because a reasonable officer in the defendant’s position would
not have understood that the strip search was unlawful because: the strip search satisfied the
standards for privacy and hygiene; the defendant did not use excessive force; and the plaintiff did
not “cite any evidence of insulting, intimidating or humiliating comments or jokes by the
officers.” Id. at 1008-09.
Given the distinguishable facts and that the Richmond court did not consider the
constitutionality of the search itself, Richmond does not require a determination that Defendant
Hawkins lacked fair notice that her conduct was unlawful. The Court therefore denies Defendant
Hawkins’ motion for summary judgment as to the Section 1983 unreasonable search claim in
20
Plaintiff’s Count I.
3. Count II: Excessive force (against Defendant Hawkins)
Defendant Hawkins moves for summary judgment on Plaintiff’s Section 1983 claim for
excessive force, arguing that the amount of force she used during the strip search and arrest was
reasonable. (ECF No. 54). Defendant Hawkins further argues even if the Court finds a question
of fact with regard to the amount of force she used, she is entitled to qualified immunity because,
under established law, “the use of force in this case could not reasonably be classified as clearly
impermissible.” (Id. at 5). Plaintiff opposes summary judgment on the ground that the force
used was objectively unreasonable and violated her clearly established right to be right free from
excessive force. (ECF No. 67).
“The right to be free from excessive force in the context of an arrest is a clearly
established right under the Fourth Amendment's prohibition against unreasonable seizures.” Ngo
v. Storlie, 495 F.3d 597, 604 (8th Cir.2007). “In determining whether a particular use of force
was excessive, [a court] considers whether it was objectively reasonable under the
circumstances, ‘rely[ing] on the perspective of a reasonable officer present at the scene rather
than the 20/20 vision of hindsight.’” Perry v. Woodruff County Sheriff Dept., 858 F.3d 1141,
1145 (8th Cir. 2017) (quoting Carpenter v. Gage, 686 F.3d 644, 649 (8th Cir. 2012) (internal
quotation omitted)).
“Police officers undoubtedly have a right to use some degree of physical force, or threat
thereof, to effect a lawful seizure, and reasonable applications of force may well cause pain or
minor injuries with some frequency.” Chambers, 641 F.3d at 907 (internal citation omitted). In
determining whether the use of force was objectively reasonable under the circumstances, a court
considers: “the severity of the crime at issue, whether the suspect poses an immediate threat to
21
the safety of the officer or others, and whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight.’” Perry, 858 F.3d at 1145 (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)). Importantly, a plaintiff need not “show more than de minimis injury to
establish an application of excessive force.” Chambers, 641 F.3d at 907 (clarifying a previously
“open question in this circuit whether an excessive force claim requires some minimum level of
injury.”).
Viewing the evidence in the light most favorable to Plaintiff, Plaintiff possessed only a
small amount of marijuana, was unarmed, and complied with all of Defendant Hawkins’
directives. Even though Plaintiff did not behave aggressively and her hands were cuffed behind
her back, Defendant Hawkins pushed her face-forward into the side of the tractor-trailer.
Plaintiff’s chest hit the trailer, knocking the wind out of her and causing her pain, which she
rated as an eight on a ten-point scale. According to Plaintiff, Defendant Hawkins then “flung
[Plaintiff] around” and pushed her again, this time backward, against the trailer, causing pain in
her upper back, shoulder blades, and hands. (ECF No. 55-1 at 50). Plaintiff characterized the
pain in her hands as a ten and the pain in her shoulders as a seven on a ten-point scale. After
Defendant Hawkins searched Plaintiff, she tightened Plaintiff’s handcuffs and refused Plaintiff’s
request to loosen them. Plaintiff stated that the handcuffs cut her wrists, and her shoulder pain
lasted for approximately one week.8
“[T]he use of force against a suspect who was not threatening and not resisting may be
8
As evidence of her injuries, which she acknowledges “may be considered de minimis,” Plaintiff
presented records from a visit to the emergency room at DePaul Hospital on October 20, 2012,
the day the police released her from custody. (ECF No. 67 at 19; Pl.’s Ex. 15). Plaintiff
presented to the emergency room with “complaints of left shoulder pain and left sided neck pain”
and reported that “the police officer threw me against a semi-truck[.]” (Pl.’s Ex. 15 at 2, 3). The
emergency room doctor diagnosed Plaintiff with “left shoulder pain” and prescribed Ultram,
Naprosyn, and Flexiril. (Id. at 23).
22
unlawful.” Shannon v. Koehler, 616 F.3d 855, 864 (8th Cir. 2010). Based on the record before
the Court, a jury could conclude that Defendant Hawkins’ conduct deprived Plaintiff of her
Fourth Amendment right to be free from excessive force. See, e.g., Hemphill v Hale, No. 4:09CV-2123 CEJ, 2011 WL 4014371, at *3 (E.D.Mo. Sept. 9, 2011) (aff’d 677 F.3d 799 (8th Cir.
2012)); Miller v. Albright, No. 4:07-CV-1086 CAS, 2009 WL 4573295, at *5 (E.D.Mo. Dec. 3,
2009).
Defendant Hawkins argues that, even if the Court finds a question of fact with regard to
whether she violated a constitutional right, the Court should grant her qualified immunity
because, given the limited amount of force used and Plaintiff’s minor injuries, “the use of force
in this case could not reasonably be classified as clearly impermissible.” (ECF No. 54 at 5).
Citing Crumley v. City of St. Paul, Minn., 324 F.3d 1003 (8th Cir. 2003) and Foster v. Metro.
Airports Comm’n, 914 F.2d 1076 (8th Cir. 1990), Defendant Hawkins claims that pain resulting
from handcuffs, shoves, and “being roughed up, without some evidence of permanent injury, are
insufficient to support a claim of excessive force.” (ECF No. 54 at 5).
Since deciding Crumley and Foster, and before this incident, the Eighth Circuit held that
an excessive-force claim does not require some minimum level of injury. Chambers, 641 F.3d at
906-07 (“[T]here is no uniform requirement that a plaintiff show more than a de minimis injury
to establish an application of excessive force.”). Pursuant to Chambers, the excessive-force
inquiry “must focus on the force applied and not its end result, that is, the level of injury.”
McClennon v. Kipke, 821 F.Supp.2d 1101, 1106 (D. Minn. 2011) (emphasis added) (citing
Chambers, 641 F.3d at 906).
By focusing on the degree of injury Plaintiff suffered, Defendant Hawkins “has skipped
over the question whether the use of any force was appropriate in this instance.” Hemphill, 2011
23
WL 4014371, at *4. When Defendant Hawkins searched and arrested Plaintiff in October 2012,
clearly established law provided that the Constitution required some justification for the use of
greater than de minimis force. See, e.g., Stewart v. Speiser, 2018 WL 614967, at *6 (W.D.Mo.
Jan. 29, 2018). Moreover, long before Plaintiff’s arrest, the Eighth Circuit “had announced that
the use of force against a suspect who was not threatening and not resisting may be unlawful[.]”
Burnikel v. Fong, No. 16-13930, 2018 WL 1570657, at *4 (8th Cir. Apr. 2, 2018) (quoting
Shannon, 616 F.3d at 864).
Plaintiff presented evidence that Defendant shoved her twice against a tractor trailer and
then tightened her handcuffs so as to cut her wrists, even though Plaintiff had committed a
relatively minor offense, was not resisting arrest or attempting to flee, and posed no visible threat
to Defendant Hawkins or anyone at the scene. If accepted by a jury, the evidence could support
a finding that the force applied by Defendant Hawkins served no legitimate governmental
interest. “A reasonable police officer would know that use of force unjustified by any legitimate
need would be unlawful.” Hemphill, 2011 Wl 4014371, at *4. The Court therefore denies
Defendant Hawkins’ motion for summary judgment on Count II on the basis of qualified
immunity.
4. Counts III, IV, and V: Municipal liability (against Defendant Board) 9
The Court now turns to Defendants’ motion for summary judgment with respect to
Plaintiff’s Section 1983 claims against the Board Defendants. A municipality may be liable
under Section 1983 for a violation of an individual’s constitutional or statutory rights if the
violation resulted from: (1) an official municipal policy; (2) and unofficial custom; or (3) a
deliberately indifferent failure to train or supervise. City of Canton, Ohio v. Harris, 489 U.S.
9
Plaintiff’s claims against the Board are treated as claims against the municipality. See Holmes
v. Slay, 99 F.Supp.3d 978, 983 (E.D.Mo. 2015).
24
378, 388 (1989); Monell, 436 U.S. at 694. In Counts III, IV, and V, Plaintiff alleges that the
Board’s unconstitutional custom of permitting unreasonable searches and use of excessive
force,10 failure to train, and failure to supervise caused the constitutional violations she suffered.
a. Municipal custom
The Board Defendants move for summary judgment on Plaintiff’s claim that Defendant
Hawkins violated her constitutional rights pursuant to its unofficial, municipal custom, arguing
that “there is no evidence of any unlawful practices by St. Louis police officers[,] which is a
necessary predicate for such a claim[.]” (ECF No. 54 at 6). Plaintiff counters that her evidence
of fifteen Section 1983 actions against the Board alleging “conduct similar to that which has
been alleged in Plaintiff’s suit” demonstrates a custom of unconstitutional conduct. (ECF No. 67
at 22-23).
To establish municipal liability based on a custom, a plaintiff bears a “heavy burden” to
demonstrate: (1) the existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit
authorization of such conduct by the municipality’s policy-making officials after notice to the
officials of the misconduct; and (3) that the plaintiff was injured by acts pursuant to the
municipality’s custom, meaning that the custom was the moving force behind the constitutional
violation. Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018) (citing Mettler v. Whitledge, 165
F.3d 1197, 1200 (8th Cir. 1999)). The Eighth Circuit explained that it “has held municipalities
10
In Count III, Plaintiff broadly alleged unconstitutional policies and customs. (ECF No. 18 at
18-19). “Policy and custom are not the same thing.” Corwin v. City of Independence, Mo., 829
F.3d 695, 699-700 (8th Cir. 2016). Plaintiff did not identify an official policy that affirmatively
sanctioned unconstitutional actions, and her memorandum in opposition to summary judgment
argued only an unconstitutional custom. Therefore, the Court views the claim in Count III as
alleging only a violation resulting from an unofficial custom and need not address the claim in
the context of any allegedly unconstitutional policy.
25
liable ... when the plaintiffs have produced evidence of prior complaints sufficient to demonstrate
that the municipalities and their officials ignored police misconduct.” Id. at 1080 (quoting
Mettler, 165 F.3d at 1205).
“However, when the plaintiff has not made such a showing, the
mere existence of previous citizens' complaints does not suffice to show a municipal custom of
permitting or encouraging excessive force.” Id. (quoting Mettler, 165 F.3d at 1205).
“There
must also be some showing that the complaints had merit[.]” Rogers, 152 F.3d at 799.
In support of her municipal-custom claim, Plaintiff presented evidence of fifteen prior
complaints and petitions alleging Section 1983 claims against the SLMPD or Defendant Board.
(ECF Nos. 66-11 at 1-265, Pl.’s Ex. 18; 67 at 23-30). The complaints and petitions alleged,
among other things, unlawful seizure and use of excessive force by SLMPD officers between
2002 and October 2012.11 (Id.). Plaintiff also submitted settlement documentation relating to
nine of those cases and an informal list of settlements entered between 2010 and December 2018.
(Id.; see also ECF No. 66-10, Pl’s Ex. 17). Eleven of the fifteen complaints and petitions
identified by Plaintiff alleged use of excessive force and six alleged unlawful seizure or arrest (a
claim not raised in Plaintiff’s first amended complaint). None of the complaints and petitions
involved strip searches.
Plaintiff’s evidence does not show a “continuing, widespread, persistent pattern” of
unconstitutional misconduct by SLMPD police officers “similar to the violation at issue here.”
11
In their reply memorandum in support of their motion for summary judgment, Defendants
contend that Plaintiff failed to demonstrate a genuine issue of fact because the documents upon
which she relies “constitute inadmissible hearsay testimony which is not covered by any hearsay
exception.” (ECF No. 74 at 13). Defendants first raised this hearsay argument in their reply
brief. See, e.g., Jenkins v. Winter, 540 F.3d 751, 756 (8th Cir. 2004) (“This court does not
consider issues raised for the first time on appeal in a reply brief ‘unless the appellant gives some
reason for failing to raise and brief the issue in his opening brief.’”) (quoting Neb. Plastics, Inc.
v. Holland Colors Ams., Inc., 408 F.3d 410, 421 n.5 (8th Cir. 2005)). Additionally, Defendants
failed to explain why this evidence is hearsay and, if so, why it is inadmissible hearsay.
26
Corwin v. City of Independence, Mo., 829 F.3d 695, 699-700 (8th Cir. 2016). Many of the
incidents cited by Plaintiff involve facts that are dissimilar to those at issue here. See Wright v.
Saint Louis Bd. of Police Com’rs, No. 4:12-CV-107 AGF, 2014 WL 4187797, at *17 (E.D.Mo.
Aug. 22, 2014). For example, eight of the eleven excessive-force claims involved use of either a
gun, Taser, baton, or pepper spray. Additionally, while any use of excessive force is a very
serious matter, eleven excessive-force claims catalogued by Plaintiff are “not pervasive in light
of the large number of arrests made each year by the SLMPD.” Id. Merely showing that other
complaints were made is not sufficient to show that there was a custom or policy condoning or
tolerating the use of excessive force. See, e.g., Bonenberger v. St. Louis Metro. Police Dept.,
956 F.Supp.2d 1059, 1070 (E.D.Mo. 2013).
Nor does Plaintiff’s evidence demonstrate that the Board was deliberately indifferent to
or tacitly authorized the SLMPD’s excessive use of force. “To make a cognizable claim under
this theory, Plaintiff must ‘show that [the Board Defendants] had notice of prior incidents of
police misconduct and had deliberately failed to act on this knowledge.” Rohrbough v. Hall, No.
4:07-CV-996 ERW, 2008 WL 4722742, at *11 (E.D.Mo. Oct. 23, 2008) (quoting Harris v. City
of Pagedale, 821 F.2d 499, 504 (8th Cir. 1987)). Plaintiff submitted no evidence that the Board
received notice of the complaints and petitions. See, e.g., Id. at *11 (“While Plaintiff has
introduced evidence of numerous [citizen] complaints of excessive use of force that have been
filed against officers, Plaintiff has introduced no evidence that the [Board] Defendants had notice
of these complaints.”). cf. S.L. ex rel. Lenderman v. St. Louis Metro. Police Dept. Bd. of Police
Comm’rs, No. 4:10-CV-2163 CEJ, 2012 WL 3564030, at *9 (E.D.Mo. Aug. 17, 2012) (twentythree instances of false reporting and nineteen IAD investigations sustaining charges of false
reporting sufficiently demonstrated municipal custom of false reporting).
27
In support of her position that evidence of numerous complaints may support the finding
of a municipal custom, Plaintiff cites Lenderman. In that case, the court denied the Board’s
motion for summary judgment on the plaintiff’s claim that the Board was deliberately indifferent
to SLMPD officers’ widespread and persistent pattern of unlawful arrest and false reporting. Id.
at 10. As evidence of the Board’s alleged failure “to take effective action in response to a known
problem,” the plaintiff submitted (1) nineteen IAD investigation reports from the preceding fiveyear period in which a charge of false reporting was sustained and (2) twenty-three instances of
false reporting during the same period in which officers submitted false reports to conceal
unlawful conduct, but no IAD investigations were conducted. Id. at *9. The court held that the
plaintiff presented evidence from which a reasonable jury could conclude that there was a
widespread persistent pattern of false reporting, the Board was deliberately indifferent to or
tacitly approved false reporting, and the plaintiff sustained injury as a result. Id. at 10.
Unlike the plaintiff in Lenderman, Plaintiff has not introduced evidence of numerous,
similar prior complaints. As previously stated, not one of the fifteen complaints presented
involved Defendant Hawkins or circumstances like those present here.
Nor did Plaintiff
demonstrate that the Board received notice of any of the fifteen complaints.
The undisputed evidence before the Court does not demonstrate that there was an
unofficial custom for SLMPD officers to use excessive force under the circumstances here or
conduct unreasonable strip searches. See, e.g., Bry v City of Frontenac, No. 4:14-CV-1501
RLW, 2015 WL 9275661, at *8 (E.D.Mo. Dec. 18, 2015). The Court therefore grants summary
judgment in favor the Board Defendants on Plaintiff’s Section 1983 municipal custom claim in
Count III.
b. Failure to train
28
The Board Defendants contend they are also entitled to summary judgment on Plaintiff’s
failure-to-train claim in Count IV because “St. Louis Police Officers receive substantial training
and . . . there is no evidence in the record [that] problems with searches or use of force were
occurring on a regular basis.”
(ECF No. 54 at 7).
Plaintiff counters that the evidence
demonstrates a genuine issue of material fact as to whether the Board Defendants had notice that
the training relating to “searching techniques, specifically strip search procedures” was
inadequate and likely to result in a violation of constitutional rights. (ECF No. 67).
Under a failure-to-train theory, a municipality may be liable under Section 1983 if: (1)
the municipality's training practices were inadequate; (2) the municipality was “deliberately
indifferent to the rights of others in adopting them, such that the failure to train reflects a
deliberate or conscious choice” on the part of the municipality; and (3) an alleged deficiency in
the training procedures actually caused the plaintiff’s injuries. Parrish v. Ball, 594 F.3d 993, 997
(8th Cir. 2010) (quoting Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir.1996)).
“A
municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on
a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011).
To survive a motion for summary judgment, a plaintiff must provide evidence that the
municipality “was on notice that its training procedures were ‘inadequate and likely to result in
violation of constitutional rights.’” Larkin v. St. Louis Hous. Auth. Dev’t Corp., 355 F.3d 1114,
1117 (8th Cir. 2004) (quoting S.J. v. Kansas City Pub. Sch. Dist., 294 F.3d 1025, 1029 (8th
Cir.2002)). A plaintiff may prove notice by showing either that: (1) “the failure to train is so
likely to result in a violation of constitutional rights that the need for training is patently
obvious”; or (2) “a pattern of misconduct indicates that the [municipality’s] responses to a
29
regularly recurring situation are insufficient to protect the [people's] constitutional rights.” Id.
(quotations and citations omitted).
A claim against a municipality for an alleged failure to train its officers cannot succeed
unless an officer violated the plaintiff's constitutional rights. Neal v. St. Louis Cty. Bd. of Police
Comm'rs, 217 F.3d 955, 959 (8th Cir.2000). As discussed above, genuine issues of material fact
exist concerning whether Defendant Hawkins violated Plaintiff’s Fourth Amendment rights by
either conducting a strip search or using excessive force against her. Therefore, Plaintiff has
satisfied this threshold inquiry for the purposes of summary judgment.
In regard to whether the Board was on notice that its training relating to searches, and
specifically strip searches, was inadequate, Plaintiff presents no evidence of a regularly recurring
practice. Rather, Plaintiff appears to argue that the need for continuous and in-depth training
relating to strip search was “patently obvious.” The undisputed evidence shows that, at the St.
Louis Police Academy, only six to eight hours of the thirty-week program covered topics such as
frisks, searches, search warrants, seizures, strip and body cavity searches, processing of prisoners
and holdover conditions. While SLMPD officers received continuing education throughout their
careers and were required to review and acknowledge all new special orders and updates to the
police manual, including updates to Special Order 8-03, several SLMPD officers testified in their
depositions that they recalled receiving no follow-up training specific to strip or body cavity
searches.
There is no question that, due to the highly sensitive nature of strip searches, their use
must be justified and they must be performed in such a way as to minimize the “potential
invasion of the suspect’s privacy.” United States v. Williams, 477 F.3d 974, 977 (8th Cir. 2007).
However, Plaintiff presents no evidence of either the frequency in which SLMPD officers
30
performed strip searches or a pattern or practice of improper strip searches by SLMPD officers.
Nor is there evidence to suggest an inevitability that SLMPD officers would conduct improper
strip searches and violate citizens’ constitutional rights. A reasonable juror could not find, from
the evidence provided, that the Board had actual or constructive notice of any inadequacy of the
training it provided or the likelihood that it would result in a violation of constitutional rights.
The Court therefore grants the Board Defendants’ motion for summary judgment as to Plaintiff’s
failure to train claim in Count IV.
c. Failure to supervise
Defendants move for summary judgment on Plaintiff’s Section 1983 claim for failure to
supervise in Count V, arguing that the evidence does not show a pattern of misconduct on the
part of Defendant Hawkins or other SLMPD officers sufficient to support a failure to supervise
claim. (ECF No. 54 at 10). In response, Plaintiff asserts that, based on the evidence of fifteen
other Section 1983 lawsuits against the Board, a reasonable jury could find that “the Board, at
the very least, turned a ‘blind eye’ to the SLMPD’s misconduct.” (ECF No. 67 at 33).
Municipalities may be liable under 42 U.S.C. § 1983 if they fail to properly supervise the
employee who caused a deprivation of constitutional rights. See Andrews, 98 F.3d at 1078. A
failure-to-supervise claim “may be maintained only if a defendant demonstrated deliberate
indifference or tacit authorization of the offensive acts.” Liebe v. Norton, 157 F.3d 574, 579 (8th
Cir. 1998) (quotation omitted).
Under Section 1983, a failure-to-supervise claim requires
evidence that the municipality received notice of a pattern of unconstitutional acts committed by
its employees and deliberately failed to take action. Atkinson v. City of Mountain View, Mo.,
709 F.3d 1201, 1216–17 (8th Cir. 2013); Andrews, 98 F.3d at 1075.
As discussed above with respect to Plaintiff’s municipal custom claim, the fifteen
31
complaints and petitions introduced by Plaintiff are insufficient to show past misconduct similar
to Defendant Hawkins’ or that any such misconduct was brought to the Board Defendants’
attention and ignored. Nor does Plaintiff’s evidence establish that the Board turned a “blind eye”
to SLMPD officers’ misconduct. A reasonable jury could not find, based on fifteen claims of
police misconduct over an eleven-year period, that the Board ignored a widespread pattern of
unreasonable searches and the use of excessive force. Cf. Rohrbough, 2008 WL 4722742, at *13
(evidence of 322 claims of physical abuse by SLMPD officers in the five-year period preceding
the plaintiff’s encounter showed that the Board “either intentionally or unwittingly created an
insulating barrier which prevents notice of complaints from reaching the [Board].”).
Furthermore, the incidents alleged in those fifteen petitions and complaints were not similar to
this one and Plaintiff presented no evidence that the Board failed to take remedial action with
respect to any of the fifteen complaints. The Court therefore grants the Board Defendants’
motion for summary judgment on Plaintiff’s failure-to-supervise claim in Count V.
5. Count VI: Conspiracy in furtherance of violations of the Fourth Amendment (against
Defendants Hawkins and Swinton)
In Plaintiff’s Count VI, against Defendants Hawkins and Swinton, Plaintiff alleges a civil
conspiracy claim pursuant to Section 1983.
Specifically, Plaintiff claims that Defendants
Hawkins and Swinton “deliberately, wrongfully, and unlawfully conspired with each other to
violate Plaintiff’s constitutional rights and concomitantly cover-up the wrongdoing of Defendant
Hawkins.” (ECF No. 18 at ¶ 129).
Defendants Hawkins and Swinton move for summary judgment on Plaintiff’s Section
1983 conspiracy claim on the ground that “Plaintiff has failed to allege that Defendants
conspired to deprive her of any constitutionally protected right,” there is no evidence of an
agreement, and the intracorporate conspiracy doctrine bars this claim. (ECF No. 54 at 10).
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Plaintiff counters that she “proffered more than enough evidence that she was subjected to an
unreasonable search and the use of excessive force” and “Defendants Hawkins and Swinton
conspired to cover-up Defendant Hawkins’ wrongdoing, which resulted in the deprivation of
Plaintiff’s constitutional rights.”
(ECF No. 67 at 35-36, 37). Additionally, Plaintiff contends
that the intracorporate conspiracy doctrine does not bar Section 1983 civil conspiracy claims
against municipalities. (Id. at 33).
“To prove a § 1983 conspiracy claim, a plaintiff must show: (1) defendants conspired to
deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an
overt act in furtherance of the conspiracy; and (3) the overt act injured her.” Askew v. Millerd,
191 F.3d 953, 957 (8th Cir. 1999). Additionally, a plaintiff “is required to prove a deprivation of
a constitutional right or privilege in order to prevail on a [Section] 1983 civil conspiracy claim.”
White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). The first prong requires evidence of
specific facts that show a “meeting of the minds” among conspirators. Barstad v. Murray Cty.,
420 F.3d 880, 887 (8th Cir. 2005). “The question of the existence of a conspiracy to deprive the
plaintiff[] of [her] constitutional rights should not be taken from the jury if there is a possibility
that the jury could infer from the circumstances a ‘meeting of the minds’ or understanding
among conspirators to achieve the conspiracy’s aims.” White, 519 F.3d at 516 (quoting Larson
by Larson v. Miller, 76 F.3d 1446, 1458 (8th Cir. 1996)).
In Count VI, captioned “Civil Conspiracy in Furtherance of Violations of the Fourth
Amendment,” Plaintiff alleged that Defendants Swinton “knew that Defendant Hawkins
performed an unreasonable search of and used excessive force against Plaintiff, thus violating
Plaintiff’s constitutional rights,” and Defendants Swinton and Hawkins “unlawfully conspired
with each other to violate Plaintiff’s constitutional rights and concomitantly cover-up the
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wrongdoing of Defendant Hawkins.” (ECF No. 18 at ¶¶ 129-30). Plaintiff further stated that
“[a]s a direct and proximate result of Defendants’ deliberate, wrongful, and malicious acts in
furtherance of said conspiracy, Plaintiff was deprived of her rights guaranteed in the United
States Constitution.” (Id. at ¶ 131).
To the extent that Plaintiff claims Defendants Hawkins and Swinton conspired with each
other to violate Plaintiff’s rights under the Fourth Amendment, a review of the amended
complaint reveals that it includes no allegations that Defendants Hawkins and Swinton conspired
or agreed with each other to conduct an unlawful search of Plaintiff. Based on the allegations,
there was no purported meeting of the minds until after the alleged unlawful search when
Defendant Swinton drafted the police report and Plaintiff filed her IAD complaint.
Plaintiff also alleged that Defendants Hawkins and Swinton conspired to cover up the
unlawful search. While the amended petition does not expressly allege that the cover-up was
designed to deny Plaintiff her right to pursue a Section 1983 claim, Plaintiff asserts in her
memorandum opposing Defendants’ motion for summary judgment that, had the officers not
conspired to omit pertinent information from the police report, “Plaintiff would have had even
more evidence than she already has to support her § 1983 claims [against Defendant Hawkins].”
(ECF No. 67 at 38). The Court therefore reads Plaintiff’s amended complaint to allege a
conspiracy to deny her access to the courts. See, e.g., Ladd v. Nocchiero, No. 4:10-CV-2219
AGF, 2014 WL 4352029, at *5 (E.D.Mo. Sept. 2, 2014).
There is a constitutional right to access to the courts. A.J. ex rel. Dixon v. Tanksley, 94
F.Supp.3d 1061, 1073 (E.D.Mo. 2015) (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002).
“The right applies not only to the actual denial of access to the courts, but also to situations in
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which the plaintiff has been denied meaningful access by some impediment put up by the
defendant.” Id. (citing Scheeler v. City of St. Cloud, 402 F.3d 826, 830 (8th Cir. 2005)).
“The question of the existence of a conspiracy to deprive [a] plaintiff[] of [her]
constitutional rights should not be taken from the jury if there is a possibility the jury could infer
from the circumstances a ‘meeting of the minds’ or understanding among the conspirators to
achieve the conspiracy’s aims.” White, 519 F.3d at 816 (quoting Larson, 76 F.3d at 1458).
Because “the elements of a conspiracy are rarely established through means other than
circumstantial evidence” and “summary judgment is only warranted when the evidence is so
one-sided as to leave no room for any reasonable difference of opinion as to how the case should
be decided[,]” the court “must be convinced that the evidence presented is insufficient to support
any reasonable inference of conspiracy.” Id. (quoting Westborough Mall, Inc. v. City of Cape
Girardeau, 693 F.2d 733, 743 (8th Cir. 1982)).
Viewing the facts in the light most favorable to Plaintiff, a reasonable juror could find
that Defendants Swinton and Hawkins reached a meeting of the minds to omit pertinent facts
from the police report relating to the search and to exclude Plaintiff’s statement from the final
report.
In her deposition, Defendant Swinton characterized Defendant Hawkins as her
“unofficial mentor.”
Even though Defendant Hawkins was the investigating officer and
Defendant Swinton was not present when Defendant Hawkins searched Plaintiff, Defendant
Swinton drafted the incident report. It was unusual for an investigating officer not to draft his or
her own report. Defendant Hawkins did not complete a supplemental report or correct Officer
Swinton’s report.
It is undisputed that the incident report contained numerous inaccuracies. For example,
the report does not mention that Defendant Hawkins: escorted Plaintiff to a nearby parking lot;
35
patted Plaintiff down; requested gloves; or unfastened Plaintiff’s belt. Nor does the report state
that Plaintiff was crying hysterically and repeatedly asking to be searched at the police station.
Perhaps most significantly, the incident report stated that Plaintiff was offered but declined “the
opportunity a statement to reduce a statement writing” when, in fact, Plaintiff completed a
written statement and Officer Swinton decided to exclude it.
The Court finds that Plaintiff has submitted evidence that would support a reasonable
inference of conspiracy between Defendants Hawkins and Swinton. See, e.g., Rohrbough v.
Hall, 2008 WL 4722742, at *8. Summary judgment in this case is not proper because “there is a
possibility the jury could infer from the circumstances a ‘meeting of the minds' or understanding
among the conspirators to achieve the conspiracy's aims.” White, 519 F.3d at 816 (quoting
Larson, 76 F.3d at 1458).
Defendants briefly assert that Defendants Hawkins and Swinton are entitled to qualified
immunity on Plaintiff’s conspiracy claim because Plaintiff “has no constitutional right with
regard to the IAD investigation…or a constitutional right to an accurate police report, [therefore]
any conduct in this regard resulting in the violation of a constitutional right of Plaintiff would not
be clearly established under prevailing law.” (ECF No. 54 at 13). However, as previously
discussed, Plaintiff claims that these two Defendants violated her constitutional right to access
the courts, not her right to an accurate police report or thorough IAD investigation.
“The Supreme Court has long held that ‘civil rights actions are of fundamental
importance in our constitutional scheme because they directly protect our most valued rights.’”
S.L. ex rel. Lenderman v. St. Louis Metro. Police Dept. Bd of Police Com’rs, 725 F.3d 843, 853
(8th Cir. 2013) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977) (internal quotations
omitted)). Accordingly, the Eighth Circuit has held that “conspiring to prevent a plaintiff from
36
bringing a viable § 1983 action by covering up a false arrest therefore may amount to a violation
of a clearly established right.” Id. It follows therefore that conspiring to prevent a plaintiff from
bringing a Section 1983 action by covering up an unlawful search and use of excessive force
would likewise violate a clearly established right. Accordingly, the Court denies Defendants’
motion for summary judgment on Plaintiff’s conspiracy claim under 42 U.S.C. § 1983 against
Defendants Swinton and Hawkins in Count VI.
IV.
Conclusion
For the reasons set forth above, Plaintiff’s motion for partial summary judgment is denied
and Defendants’ motion for summary judgment is granted in part and denied in part. The claims
remaining for jury trial beginning on April 23, 2018 are: Counts I and II against Defendant
Hawkins in her individual capacity and Count VI against Defendants Hawkins and Swinton in
their individual capacities.
IT IS HEREBY ORDERED that the Plaintiff’s motion for partial summary judgment as
to liability against Defendant Hawkins (ECF No. 50) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s official-capacity claims against
Defendants Hawkins and Swinton in Counts I, II, and VI are DISMISSED.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF
No. 53) is GRANTED in part and DENIED in part as set forth above.
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 6th day of April, 2018
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