Akins v. Knight et al

Filing 117

ORDER. Defendants Burton, Hughes, Sanders, Schlude, Palmer, and the City of Columbia's motion for summary judgment, Doc. 81, is granted. Plaintiff Akins' motion for summary judgment in part, Doc. 91, is denied. Signed on 8/2/16 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
MATTHEW STEPHEN AKINS,
Plaintiff,
v.
CITY OF COLUMBIA, et al.,
Defendants.

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No. 2:15-CV-04096-NKL

ORDER
Plaintiff Matthew Stephen Akins alleges that Defendants violated federal and state laws
in connection with their various stops and arrests of him between May 2010 and May 2013. At
the time of the alleged incidents, Defendant Kenneth Burton was the Chief of the City of
Columbia, Missouri Police Department, and Defendants Eric Hughes, Rob Sanders, Roger
Schlude, and Michael Palmer were City of Columbia police officers.
Akins complains of his May 9, 2010 arrest and the seizure of his gun; a June 6, 2010
traffic stop; a July 27, 2011 incident in a Taco Bell parking lot; his September 11, 2012 arrest
and seizure of his butterfly knife; a poster of him that was displayed in a Police Department
briefing room; and other incidents involving alleged retaliation, failure to train, malicious
prosecution, and conspiracy.
Defendants Burton, Hughes, Sanders, Schlude, Palmer, and the City of Columbia move
for summary judgment, Doc. 81, on all claims. Akins moves for summary judgment in part.
Doc. 91. Defendants’ motion for summary judgment is granted and Akins’ motion for summary
judgment is denied.

I.

Background 1
A.

May 9, 2010 incident and Officer Hughes
1. The arrest

On May 9, 2010, Officer Hughes stopped Akins on a routine DWI checkpoint in
Columbia. Akins was driving a 1997 Toyota Camry and Hughes did not know who Akins was at
the time of the stop. When Hughes was speaking with Akins, he observed that Akins’ eyes were
bloodshot and his hands shook as he handed Hughes his documents. Hughes also smelled what
he believed to be the smell of marijuana. 2 Hughes asked Akins to step out of the car. Akins
began rolling up the window, at which point Hughes opened the door himself and asked Akins to
step out, which Akins did. As Akins stepped out, Hughes saw Akins move his right hand close
to his leg and quickly place an unknown item in his right pants pocket. Based on Akins’ nervous
demeanor and the quick motion, Hughes believed Akins could have placed a weapon in his
pocket. To check Akins’ pocket and retrieve the unknown item, Hughes moved aside a paper
towel that was in Akins’ pocket. Based on Hughes’ training and experience, the paper towel was
wrapping what to Hughes felt like marijuana stems, seeds, and leaves.

1

Unless otherwise noted, the facts recited are those which are properly supported
and undisputed.
2
Hughes has been a Columbia police officer since 2005 and has had training.
Akins disputes that Hughes could have detected the odor of marijuana. Akins states in an
affidavit that he (Akins) had not “smoked or ingested marijuana” that day, he knows what
marijuana smells like, and he did not smell marijuana in his car at the time of the stop, Doc. 1041, suggesting Hughes is fabricating his statement that he believed he smelled marijuana.
However, Akins admits in his reply suggestions to the City Defendants’ motion for summary
judgment that, “[w]eirdly,” many things smell like marijuana, including various other plants,
beer, Axe touch spray, body odor, and skunk. Doc. 110-3 (Exh. 59). Also, Akins admitted he
possibly did have marijuana on his person or in his car at the time. Doc. 82-1, pp. 14 and 18
(Akins Depo. pp. 56 and 71). Finally, what appeared to be marijuana was found in Akins’ car.
On this record, no reasonable juror could find that Hughes was lying when he said he believed he
smelled marijuana. Akins has not created a genuine dispute of material fact concerning Hughes’
belief.
2

When Hughes patted Akins down, Hughes felt a gun near Akins’ waist. The gun, a .380
Bersa, was in a holster attached to Akins’ belt, covered by his shirt. Akins did not tell Hughes
about the gun at any time before or after getting out of the car. Akins says Hughes’ actions, from
the time of opening the door to when he performed the pat down, did not provide reasonable time
to tell Hughes about the gun. When Hughes felt the gun, Hughes pushed Akins off-balance and
against the car, and yelled, “Gun!” Hughes asked Akins whether he had a concealed carry
permit. Akins said he did not and that his attorney told him he did not need one to carry a gun in
the car.
Hughes later wrote in the offense report that “[t]he gun was discovered to be loaded with
11 bullets in the magazine and 1 round in the chamber. The handgun was readily capable of
immediate lethal use and was concealed under [Akins’] shirt, not visible to others.” Doc. 91-3,
p. 20 of 22 (Offense Report). Akins admits the gun contained bullets. But he says there was no
bullet in the chamber when Hughes removed the gun from the holster. Akins says when Hughes
drew the slide back to check on whether there was a round in the chamber, Hughes’ action
chambered the round. Doc. 91-1, p. 2.
Akins admits that a tissue removed from his pocket could possibly have contained
“remnants of marijuana” or “marijuana byproducts.” Doc. 82-1, p. 14 (Akins Depo., p. 56).
Another officer searched Akins’ car and located a plastic baggie under the driver seat, containing
what the officer reported to be marijuana. Akins admits he had used marijuana at some time and
that it was possible that what the officer found in his car was his marijuana. Id., p. 18 (Akins
Depo., p. 71). Hughes arrested Akins for drug possession and unlawful use of a weapon.
2.

Return of the gun

The Boone County prosecutor subsequently charged Akins with unlawful use of a

3

weapon, a class D felony. Then on November 16, 2010, the prosecutor dismissed the charge,
nolle prosequi “and possession of Matthew Akins Bersa 380 pistol was maintained by the
Columbia Police Department pursuant to the recommendations of the Boone County
Prosecutor’s Office.” Doc. 4, p. 8 of 40, ¶ 23 (Akins’ Amended Complaint).
In February 2012, Akins’ defense attorney emailed the assistant prosecutor who had
handled the case, asking if Akins’ gun could be returned to Akins. The assistant prosecutor
responded that that should be alright and asked whether Akins had proof of ownership. No
evidence in the record shows Akins’ attorney responded to the question about proof of
ownership, or that the prosecutor relayed the request to the City police department.
The City police department was performing a routine audit in October 2012 and
according to the City, in the course of the audit it learned it still had Akins’ gun. 3 At the time,
Akins had a pending felony charge relating to an arrest for possession of a knife. The City sent
Akins a letter one week later, informing Akins that the gun was available to be picked up by a
third party, as Akins had a pending felony charge. The evidence custodian of the Columbia
Police Department, Michelle Heater, also explained to Akins in a phone call on October 24, 2012
that a third party could pick it up. No third party came to get it.
In February 2013, Akins emailed Chief Burton and the Boone County prosecutor,
requesting return of the gun. The Boone County Prosecuting Attorney’s office notified Heater
on March 20, 2013 that they no longer needed the gun. Akins was told on March 28, 2013 that

3

Akins states that a printout showing the history of the gun charge, produced by
the City police department in discovery in this lawsuit, shows that the City police department
knew by January 2011 that the charge had been dismissed. See Doc. 91-10 (Akins’ Exhibit 12,
p. 2). The printout does not say that, and the printout does not otherwise reflect, nor is there
evidence in the record of, who had access to the printout, or how and by whom the information it
contains was used.
4

he could pick it up any time. 4 He picked it up on Aril 15, 2013.
B.

June 6, 2010 incident and Officer Schlude

On June 6, 2010, around 6:50 p.m., Akins made an illegal U-turn while driving and
Officer Schlude stopped him. Akins admits the stop was lawful. Doc. 4, p. 8 of 40, ¶ 25. Akins
had two passengers with him, including one in the back seat. Akins submitted the affidavit of
one of his passengers, K. Jones, who said that after pulling Akins over, Schlude asked Akins
whether there were any illegal drugs or weapons in the car. Doc. 91-7 (Jones Affidavit). Akins
told Schlude there was a legal rifle on the rear floorboard.
Schlude does not have an independent recollection of the interaction with Akins. The
dispatch system records reflected, and Schlude would have been advised at the time, that Akins
had a type two indicator, meaning Akins was known to be armed and violent; and that Akins’
passengers had type one indicators, meaning they were known to be violent. Akins also had a
felony weapons charge at the time. According to dispatch records, Schlude told dispatch that
there was a rifle in the car and requested backup. Schlude said that based on the facts in the
dispatch record, he would have approached the situation with caution given that Akins was
known to be armed and violent, the two individuals were known to be violent, and there was a
rifle in the car.
Schlude ordered Akins and the two passengers out of the car. All three were handcuffed
and searched by a second officer who arrived at the scene. Jones says this second officer was
searching them for “dangerous objects[.]” Id. The three were directed to sit on the curb while
Schlude searched the car. Akins did not consent to the search. Akins says Schlude moved some
items out of the car during the search and the entire encounter lasted about 20-30 minutes.
4

The felony knife charge was amended in March 2013 to driving while revoked or
suspended and failure to yield right-of-way.
5

Schlude issued Akins a citation for the illegal turn. Akins says he asked Schlude whether
he had “done anything wrong” with the gun and what “the protocol” was for a situation like the
one he had just found himself in. Doc. 91-1, p. 5 (Akins Affidavit). He says Schlude responded
that it depended on the officer, i.e., some would see the gun in the car, pull their own gun and
shoot him dead, then testify that they had feared for their life and the charge would be dismissed.
Id.
C.

July 27, 2011 incident and Officer Sanders

Officer Sanders was patrolling in Columbia on the night of July 27, 2011 when he saw a
car exit what he considered a high-crime neighborhood. 5 Sanders began following it and
observed that the occupants became animated, and the driver began behaving differently once the
driver noticed him following, engaging in what Sanders’ training and experience had taught him
were avoidance techniques, i.e., changing lanes multiple times and turning into a parking lot.
According to Sanders’ training and experience, that behavior indicated the occupants were trying
to avoid contact with the police. Akins was the driver and he admits he noticed the police car
behind him, Doc. 92, p. 4 of 47, although he did not know at the time that it was Sanders, Doc.

5

Akins argues that Sanders’ averment concerning the car having come out of a
“high crime” neighborhood should be discounted as speculation because it is supported only by
Sanders’ “self-serving opinion.” Doc. 104, pp. 12-13 of 46. In the summary judgment context,
“the self-serving nature of affidavits, interrogatory answers, or deposition testimony,” in the
sense that such materials support a party’s case or defense, does not “serve to make such
evidence inherently infirm.” Stewart v. Rise, Inc., 791 F.3d 849, 860 (8th Cir. 2015). “As such,
[courts] generally do not discount such evidence at the summary judgment stage.” Id. Akins
states in his affidavit that Sanders began following him as he turned north from Worley Street
onto Providence Road. Doc. 91-1. Sanders had been hired by the Columbia Police Department
as a police officer in 1993, had had training throughout his employment, and the record reflects
that part of his job was patrolling Columbia. A trained, experienced, 18-year veteran police
officer is competent to opine whether a neighborhood is “high crime.” Moreover, Akins offers
no evidence demonstrating a dispute of fact concerning Sanders’ averment that the neighborhood
Akins left was in fact “high crime.” There is no genuine dispute of fact with respect to Sanders’
description of the neighborhood as high crime.
6

82-1, p. 36 of 88 (Akins Depo. p. 147). Akins admits that as he was driving, he “deliberately
changed lanes two separate times to determine if they were being followed by” the police car,
and “both times, [the police car] mirrored Akins’ lane changes.” Doc. 92, p. 4 of 47. Akins’
passenger, M. Carter, “retrieved a video camera and began recording events as they unfolded.”
Id.
Sanders contacted Joint Communications. He recited a license plate number and was
given the name 6, and asked for priors, then stated he was “going to try to check on this vehicle
here, probably at Taco Bell.” Doc. 82-40, Exh. 20 at 00:00—1:04 (audio recording). Joint
Communications checked whether there were units to assist. Officers Scott Hedrick and Mike
Parson responded that they were close.
Akins went to the drive-through and ordered food. Sanders followed Akins’ car and
while Akins was waiting, Carter turned around to continue filming out the back window.
Sanders saw the camera’s light shine at him and waived. Sanders had recently been trained that
individuals will use phones or cameras to video police to try to deter contact by officers. Sanders
parked in the Taco Bell lot. Akins got his order and pulled into an open parking spot in the Taco
Bell lot. Sanders saw the occupants begin to watch his patrol car. Officers Hedrick and Parsons
pulled into the lot, driving a K-9 unit. Sanders had not asked for a K-9 unit. No evidence in the
record reflects Sanders told Hedrick and Parsons where to park. 7
Sanders never activated his lights or sirens. There is no evidence that his car was parked

6

Akins’ name did not come up. He was driving his mother’s car and her last name

is not Akins.
7

There appears to be a dispute of fact, or the evidence—video, photo, and a
diagram—is at least unclear, concerning exactly where Hedrick and Parsons’ police car was
parked in relation to Akins’ car. Akins claims their police car was parked so that he could not
easily pull his car out of his parking spot. Defendants claim Hedrick and Parsons’ car did not
block Akins, and his way out was open at all times during the Taco Bell encounter.
7

in such a way as to block Akins’ car. Sanders walked to Akins’ driver-side window. After
greetings were exchanged, Sanders asked Akins, “You got a driver’s license I could see?” Akins
asked Sanders what his probable cause was, and Sanders replied, “I don’t have to have probable
cause.” Akins also asked Sanders if he was conducting a traffic stop and Sanders said he was
not. Sanders asked Carter if he had identification, Carter indicated he did, and Sanders asked if
he could please see it. Sanders also asked whose car Akins was driving and Akins said it was his
mother’s. Akins and Carter gave Sanders their identification, and Akins said to Sanders that he
believed he was responding to an order by a law enforcement officer, rather than a casual
request. Sanders said, “All right. Sit tight, guys.”
Officer Hedrick told Officer Parson to get his dog out of their car, but to stay back.
Officer Parson did so, “to introduce the dog to new things, new sights, sounds, and trying to get
him used to being a police dog.” Sanders did not tell them to take the dog out of the car or
otherwise tell them where to stand or how to handle the dog. Officer Hedrick went to the
passenger-side window of Akins’ car. Hedrick said to Akins that Sanders was “just checking
you,” that he and Parsons happened to be in the area, and said “it was just safety issues.”
Hedrick and Parsons never drew their weapons or activated their patrol car’s lights or sirens.
Sanders contacted Joint Communications again. He said, “I’m at a check subject at Taco
Bell at Providence and the Loop [UNINTELLIGIBLE] I see about name and date.” 8 Doc. 108-9,
Exh. A at 00:00—00:11 (audio recording). Joint Communications asked, “Which do you want, a
traffic stop or are you on a different check subject?” Id. at 00:17-00:22. Sanders responds, “It’s
8

Akins says in his Statement of Facts that an Internal Affairs report concerning the
incident reflects that Joint Communications entered Sanders’ communication as a “traffic stop”
rather than a “check subject” or “suspicious vehicle.” Doc. 92, p. 6 of 47, ¶ 8. Akins does not
create a genuine dispute of material fact with such evidence. Whatever Joint Communications
entered, the recording does not reflect Sanders called in a “traffic stop,” it reflects Sanders called
in a “check subject.”
8

the same incident but it’s not a traffic stop, it’s, I’m out with [LICENSE PLATE NUMBER] but
it’s not a car stop.” Id. at 00:22—32. One minute later in the recording, Sanders gave Joint
Communications Akins’ and Carters’ names and birthdates to run. Id. at 01:32—2:04. Sanders
later asked Joint Communications whether it could add to the registration that the subjects were
“Columbia citizens on patrol.”
Sanders returned to Akins’ car after what Akins says was no more than one minute and
thirty seconds, returned the identification, told Akins and Carter they were “free to go,” and
thanked them for their cooperation. Sanders then pointed out an open beer bottle on the floor of
the car. Akins said it was his mother’s and Sanders offered to throw it away.
Sanders contacted Joint Communications again and said he would be out report-writing
unless assistance was needed. Doc. 108-9, Exh. A at 13:32—13:48. Joint Communications said,
“Negative,” and asked, “What did you find about your check subject at Taco Bell?” Id. at 13:4813:55. Sanders said he tried to clear it himself but the computer probably crashed and asked that
it be shown as “clear, no report.” Id. at 13:56—14:05.
A Columbia Police Department Internal Affairs investigation concluded the incident at
Taco Bell was a detention rather than consensual contact under all the circumstances and that
Sanders had violated a police department guideline concerning seizure of persons within the
limits of the Fourth Amendment as interpreted by the judiciary.
D.

September 11, 2012 incident and Officer Palmer

On September 11, 2012, Officer Palmer stopped Akins, who was driving a white Kia,
after Akins failed to yield right-of-way at a four-way stop when Palmer was already in the
intersection. At the time he stopped the Kia, Palmer did not know who was driving it.
Akins could not produce a driver license. But he told Palmer that he was driving to a

9

Citizens-for-Justice-related event and was therefore covered to drive under his limited driving
privilege. Doc. 91-1, p. 12 of 16 (Akins Affidavit). Palmer told another officer who arrived on
the scene to assist that Akins was with Citizens for Justice. When Palmer ran Akins’ name
through the MULES system, Akins’ driving privilege was reported as revoked without any
limited privileges. 9 Akins could not provide proof of insurance. Palmer arrested Akins for
driving while revoked, failure to yield right of way, and failure to maintain financial
responsibility.
In conducting a search incident to arrest, Palmer found a butterfly knife in Akins’ right
front pants pocket. Based on his training and experience, Palmer knew a butterfly knife was a
type of knife in which the handle is hollow and split into two parts that connect to the blade with
two loose pins. To open a butterfly knife, the blade pivots around the pins in an arc. Based on
his training at the police academy, knowledge, and experience, Palmer knows that a butterfly
knife can be opened one-handed by the operation of gravity or the application of centrifugal
force. Doc. 82-32, p. 2 of 4 (Palmer Affidavit). The sharp part of the butterfly knife’s edge was
about 3½ inches long; measured from the tip to the hinges, the blade is 4” long. In addition to
the driving and insurance violations, Palmer also arrested Akins for unlawful use of a weapon
and possession of a prohibited weapon, under Mo. Rev. Stat. § 571.020 and § 571.030.
Prior to submitting the probable cause statement, Palmer checked with a supervisor about
the butterfly knife. The supervisor told Palmer the knife was illegal. Palmer wrote in the
probable cause statement that the knife was designed to be opened from the handle by gravity or
by the application of centrifugal force.

9

Akins claims his attorney had cleared up the driver license issues and he was not
actually revoked at the time. But he does not demonstrate a dispute of fact concerning what
MULES showed about his driving privilege when his name was run on September 11, 2012.
10

Akins continued his reporting activity for months following the September 11, 2012
encounter with Officer Palmer.
In May 2013, the charges were amended to driving while revoked or suspended, and
failure to yield the right of way.
E.

The Akins poster and Citizens for Justice website

Prior to the creation of the Citizens for Justice website, Akins had at least nine contacts
with the Columbia Police Department that had resulted in his arrest. He began construction of
the website in June 2010 and the Columbia Police Department became aware of it in December
2010. 10 The website concerned law enforcement interactions with the public, including alleged
police misconduct by the Columbia Police Department. Akins’ systems administrator
accidentally erased the website in the fall or winter of 2012. Doc. 82-1, p. 106 (Akins Depo.
pp. 261-62). But Akins says Citizens for Justice still has active YouTube and Facebook pages.
Doc. 104, p. 30, para. 141.
At some point in 2011, a poster concerning Akins was put up in the Police Department’s
briefing room, an area not generally open to the public. No evidence in the record shows who
created or put up the poster. The poster had a photograph of Akins. It stated he drove a silver
Pontiac Grand Prix and had arrests in the system for weapons violations, including carrying a
pistol concealed on his person. It also stated Akins ran a website, and gave the website address
(which was for Citizens for Justice). Doc. 82-21, Defs. Exh. 26 (poster). The Police Department
does not have a policy concerning posters being displayed within the Department.
10

On December 27, 2010, Eric Dearmont, director of the Columbia Police Officers’
Association and an attorney, contacted Akins’ web administrator and relayed the following:
“While we do not have conceptual concerns about the website itself, we have been informed that
the site may contain the personal contact information (address, etc.) of our officers. Please be
advised that this presents a safety risk to our officers and their families. We ask that in
developing this site you omit all personal information. Thank you for your consideration.”
11

At the time the poster was up, Akins was approaching police offices at night while they
were responding to calls and otherwise performing their duties, recording the officers’ activities
with a camera in night vision mode and that displayed an illuminated red dot when it was on.
Doc. 82-29, Defs. Exh. 35 (Burton Affidavit); Doc. 82-1, pp. 31, 36, 39, 48, 110, 113, and 119 of
188 (Akins Depo., pp. 121, 143, 155, 190, 191, 278, 279, 291, and 315). Chief Burton opined
that the poster promoted Akins’ and officers’ safety. At some point after Akins began filming
police officers, Chief Burton or Jill Schlude advised the Police Department that Akins had the
right to film. Doc. 82-29.
F.

Other incidents
1.

May 19, 2010 incident and Officer Quintana

On May 19, 2010, Akins was pulled over by Columbia Police Officer Thomas Quintana
to check window tints and for expired plates. Akins was arrested pursuant to two, active arrest
warrants.
2.

Email and meeting with Chief Burton in December 2011

Chief Burton had given Akins his personal email address and they exchanged emails. On
December 6, 2011, Akins wrote in an email to Burton, “Although I was skeptical when you first
became Chief and at certain times during your tenure, I have come to respect you and, after
living through the Randy Boehm Administration, know it could be a lot worse. All in all, I
appreciate what you’re doing and wanted to tell you to keep it up.”
Akins also met with Chief Burton in December 2011. Burton told Akins it was his right
to film officers. Burton also said it was his “goal to put them out of business, in the context that
I hoped there would be no negative actions of officers to film.” Doc. 91-11, Pl. Exh. 13 (Pl.’s
Interrogatories to Chief Burton). Burton was aware that some officers thought Akins should not

12

be filming, but did not recall any specifics. Doc. 92-6, Pl. Exh. 3 (Pl.’s Interrogatories to Chief
Burton).
3.

October 14, 2011 incident and Officer Hughes

Akins was in a Columbia bar, Salty’s, on October 14, 2011, at or after the 1:30 a.m.
closing time. Officer Hughes was on patrol in the area. Hughes used his patrol car spotlight to
illuminate the interior of the bar and see people who were still there, a standard procedure for
Columbia police in 2011 that had been adopted from the Lincoln, Nebraska police department.
Columbia police had found that people loitering in and around bars after closing time often led to
fistfights and other peace disturbances, so had adopted the procedure to encourage patrons to
leave bars after closing time and avoid loitering around them. 11 The police officers also used the
spotlights in 2011 to identify individuals and gain visibility at night, because intoxicated persons
were often walking the streets.
Numerous people were leaving Salty’s after 1:30 a.m. on October 14, 2011. Akins was
filming from inside the bar. Hughes approached a bar employee and told him everyone had to be
out of the bar, or the bar would be fined for having patrons inside after 1:30 a.m.. Akins was
working there as a videographer. No evidence in the record shows that Hughes knew Akins was
a bar employee when Hughes approached the bar employee.
Akins walked up to Hughes outside the bar.

At the time, Akins had at least one

outstanding arrest warrant, so Hughes arrested him. While Hughes was arresting Akins, Akins
asked him about a poster hung in the Columbia police department. Hughes said he thought the
poster was hung because Akins had a warrant out for his arrest.
11

Under Missouri law, the premises of a person with a license to sell intoxicating
liquor must be a “closed place” from 1:30 a.m. to 6 :00 a.m. Mo. Rev. Stat. § 311.290. A closed
place is defined as a place where all doors are locked and no patrons are in the place or about the
premises. Id.
13

4.

October 16, 2011 incident and Officer Corcoran

Akins was with his brother in a crowd of people leaving Salty’s Bar around closing time
on October 16, 2011, when Akins claims he was singled out by Columbia Police Officer
Corcoran with a spotlight from the officer’s police car. Akins says, “[A]s we videotaped we
walked sideways across an adjacent parking lot to demonstrate…we were being followed by the
light in an area crawling with people.” Doc. 91-1, p. 11 of 16 (Akins Affidavit).
5.

Filming in the Police Department lobby in 2011

The Columbia Police Department has a lobby that is open 24 hours a day. It contains a
media book, a beat map, informational brochures, and a memorial to a slain Columbia police
officer. The media book contains copies of incident reports from the prior night for interested
media members. The beat map assists citizens in determining the beat they are in for purposes of
filing police reports. Sometime in 2011, Akins was filming a person who was wearing a Ku
Klux Klan hood and was in the lobby to pick up a complaint form. A Community Service Aide
(CSA), who is not a defendant in this case, told Akins he could not film in the lobby and to turn
off the camera, which Akins did.
Akins later followed up with a Police Department Public Information Officer, Jill
Schlude. Schlude told Akins the CSA had been wrong when he said filming in the lobby was not
allowed and told Akins to stop filming. Schlude also said the Police Department had had to
follow up with the CSA so he would know what he told Akins was wrong. The CSA was not
disciplined for asking the filming to stop.
6.

Media Training Day

In October 2015, the Police Department held an invitation-only “Media Training Day”
for its “Media Partners.”

Doc. 100-2.

The email invitation stated that “[d]ue to space

14

limitations, and to provide the best experience possible, we are limiting the training to 30
participants.” Id. The invitation was extended only to traditional media members, including
local television stations and newspapers. Doc. 108-3, p. 4 of 6 (Jill Schlude Affidavit). A person
who had been invited forwarded the information to Akins, who attempted to RSVP to the Police
Department in order to attend. A Police Department public information officer replied to Akins,
apologizing if he thought he was registered, and explaining the event was invitation-only and he
had not been invited.
7.

The Columbia Police Department Facebook page

The Columbia Police Department has had a Facebook page since at least 2011. From
2011 to the spring of 2016, the page has always contained substantially the following statement:
The purpose of this page is to provide an opportunity for the
Columbia Police Department to supply information to the public
about department events, crime alerts, and other important
information. We encourage you to submit comments, but please
note that this is not a public forum. Comments posted to this
page will be monitored. The Columbia Police Department
reserves the right to remove inappropriate comments.
Doc. 108-3, Defs. Exh. G (Affidavit of Jill Schlude). Sometime after 2011, the Department
added examples to the statement.
Akins states that he had posted several Citizens for Justice videos on the Police
Department’s website, but then in the summer of 2011 found that his videos were no longer there
and he could no longer post anything. He said that in fact, he saw that all posts by others outside
the Department had been removed, so he contacted the public information officer, Jill Schlude.
Schlude told him the City did not have a formal social media policy, administrators had decided
to work on one, and until a policy was in place, the Police Department would be posting its own
content.

15

Schlude further explains that that approach was a City-wide one, not limited to the Police
Department. Since the summer of 2011, no one can post original links to videos on the Police
Department’s Facebook page and no one can post comments that do not relate to the original
post by the Police Department. In 2011-2012, comments to the page that were not related to the
topic of the post under which they were made would have been considered inappropriate, and
would have been removed. This is true for all users. Schlude has also reviewed the topics of
postings from 2011-2012, and found none related to the subjects of Akins’ Citizens for Justice
videos. While memos concerning a social media policy have been prepared and circulated, the
City has not adopted a social media policy.
II.

Discussion
A movant is entitled to summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P.56(c). The plain language of the rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In deciding summary judgment, the court views the evidence in a
light most favorable to the non-moving party. Naucke v. City of Park Hills, 284 F.3d 923, 927
(8th Cir. 2002). “However, a ‘nonmovant must present more than a scintilla of evidence and
must advance specific facts to create a genuine issue of material fact for trial.’” Id. (quoting
F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997)).
“[T]o survive a motion for summary judgment under § 1983, the plaintiff must raise a

16

genuine issue of material fact as to whether (1) the defendants acted under color of state law, and
(2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected right.”
Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (citing Cooksey v. Boyer, 289 F.3d 513, 515
(8th Cir. 2002)). Further, personal involvement is required in order for an individual to be liable
under § 1983. Beck v. Lafleur, 257 F.3d 764 (8th Cir. 2001). “Liability for damages for a federal
constitutional tort is personal, so each defendant’s conduct must be independently assessed.”
Wilson v. Northcutt, 441 F.3d 586, 597 (8th Cir. 2006).
Further, a police officer is entitled to qualified immunity unless the plaintiff can establish
that the officers’ conduct violated a constitutional right and the constitutional right was so
“clearly established” at the time of the alleged violation that a reasonable officer would have
known that his conduct was unlawful. Rohrbough v. Hall, 586 F.3d 582, 585 (8th Cir. 2009)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Court has discretion to choose which of
the two aspects of qualified immunity to address first. Pearson v. Callahan, 553 U.S. 223, 239
(2009).
A.

The May 9, 2010 incident and Officer Hughes
1.

The stop and arrest

Akins alleges that on May 9, 2010, he was seized by Officer Hughes without probable
cause, because it was lawful to carry a concealed gun in a car. Doc. 4, pp. 6-8 of 40.
Hughes arrested Akins for possession of an illegal substance, as well as unlawful use of a
weapon, Mo. Rev. Stat. § 571.030. Because Hughes at minimum had probable cause to arrest
Akins for possession of marijuana, Akins’ claim concerning the arrest for the gun fails. “[A]n
officer need only demonstrate probable cause to carry out an arrest for any offense arising out of
an incident. That the officer may have had a mistaken belief that she had probable cause to arrest

17

for other offenses is immaterial so long as probable cause existed for the one offense.” Smithson
v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000).
“To determine whether an officer had probable cause to arrest an individual, [the Court]
examine[s] the events leading up to the arrest, and then decide[s] whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer, amount to probable
cause.” United States v. Winarske, 715 F.3d 1063, 1066 (8th Cir. 2013) (quoting Maryland v.
Pringle, 540 U.S. 366, 371 (2003)); see also United States v. Patrick, 776 F.3d 951, 955 (8th Cir.
2015) (noting that probable cause is evaluated based on the “totality of the circumstances at the
time of the arrest”). The officer need not have “witness[ed] actual criminal activity or ...
collected enough evidence so as to justify a conviction for there to be a legitimate finding of
probable cause to justify a warrantless arrest. Instead, the mere ‘probability or substantial chance
of criminal activity ...’ is all that is required.” Winarske, 715 F.3d at 1067 (citation omitted)
(quoting United States v. Mendoza, 421 F.3d 663, 667 (8th Cir. 2005)).
Here, Hughes stopped Akins at a routine DWI check point. Hughes smelled what he
believed was the odor of marijuana coming from Akins’ car, and observed that Akins’ eyes were
bloodshot, his hands were shaking, and he was acting nervously. Hughes also observed Akins
make a quick movement as Akins got out of the car, placing an unknown item in his right front
pants pocket. Based on Hughes’ training and experience, he believed Akins’ actions were
indicative of an individual who was using or who possessed a controlled substance, and who may
have placed a weapon in his pocket. In performing the search, Hughes felt what he believed to
be marijuana leaves, stems and seeds wrapped in a paper towel in Akins’ pocket, and a search of
the vehicle turned up a baggie of what Hughes believed to be marijuana. Akins admitted in
deposition that the material may have been his marijuana. Hughes had probable cause to arrest

18

Akins for drug possession.
Akins’ argument that the material seized was not ultimately proven to be marijuana or
was not enough marijuana to be prosecuted for under local ordinance does not show Hughes
lacked probable cause. “[T]he mere ‘probability or substantial chance of criminal activity ...’ is
all that is required.” Winarske, 715 F.3d at 1067 (quoting Mendoza, 421 F.3d at 667). See also
New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015) (A “police officer can have probable cause to
seize what appears to be a controlled substance that is later determined to be something else.”)
(and citations therein).
Because Hughes had probable cause to seize Akins for drug possession, Akins cannot
make a claim with respect to his seizure for the gun violation under Mo. Rev. Stat. § 571.030.
Nonetheless, Hughes also had probable cause to arrest him for a violation of § 571.030. Under
that statute, it is a crime to carry a concealed knife, firearm, “or any other weapon readily
capable of lethal use,” on or about one’s person. § 571.030.1(1). The prohibition is subject to
some exceptions, including instances in which the actor is “transporting such weapons in a
nonfunctioning state or in an unloaded state when ammunition is not readily accessible or when
such weapons are not readily accessible,” or when the actor has a “valid concealed carry
permit[.]” § 571.030.3 and .4. Here, in performing a pat down of Akins’ person outside the car,
Hughes felt a gun in a holster near Akins’ waist. The gun was concealed by Akins’ shirt. The
gun was loaded. Akins did not have a concealed carry permit. These facts provided Hughes
with probable cause to arrest Akins for violation of the statute.
Akins argues that he was free to transport the gun in his car, notwithstanding the lack of a
permit, based on the transportation exception to the statute and because he told Hughes so. But
the gun did not appear to be in a nonfunctioning state and was in fact loaded. Akins argues that

19

although the gun had bullets in it, there was no round in the chamber until Hughes drew the slide
back, so the gun was not readily capable of lethal use at the time he had it on his person. But
even if there had been no chambered round, the gun would still have been readily capable of
lethal use for purposes of the statute. “[T]here is no requirement for a firearm to be loaded or
operational for a defendant to be convicted under § 571.030.1.” State v. Wright, 382 S.W.3d
902, 905 (Mo. 2012) (and citations therein).
Akins also argues that he stepped out of the car because Hughes asked him to and he did
not have sufficient time to tell Hughes about the gun before Hughes detected it. Even assuming
Akins did not have sufficient time, and Akins otherwise met the transportation exception to the
statute to have been carrying the gun in the car, no case addresses such a scenario. Therefore the
contours of Akins’ right would not be so clearly established that a reasonable officer would have
known that Hughes’ conduct violated a right of Akins. Hughes would therefore be entitled to
qualified immunity.
2.

Return of the gun to Akins

Akins also alleges that his gun was wrongfully held from him from May 9, 2010, until
April 15, 2013 when he picked it up. Doc. 4, p. 8 of 40, ¶ 23. Akins does not allege who
allegedly wrongfully held his gun, only that it was “maintained by the Columbia Police
Department.” Id. Since the Columbia Police Department is not a defendant in this case, and is
not a suable entity, see Catlett v. Jefferson County, 299 F.Supp.2d 967 (E.D. Mo. 2004) (citing
American Fire Alarm Co. v. Vd. Of Police Comm’rs of Kansas City, 227 S.W. 114, 116 (Mo.
1920)), Akins may be attempting to bring this claim against the City of Columbia. However, the
City of Columbia cannot be liable under § 1983 on a respondeat superior theory. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Further, Akins has not alleged that the City of

20

Columbia adopted a policy or had a custom that has harmed him, nor identified any such policy
or custom. The claim fails for this reason alone.
Even if Akins had brought a cognizable claim against the City, it would still fail because
he did not suffer a constitutional violation. “When seizing property for criminal investigatory
purposes, compliance with the Fourth Amendment satisfies pre-deprivation procedural due
process as well.” Rodgers v. Knight, 781 F.3d 932, 941 (8th Cir. 2015) (citing Walters v. Wolf,
660 F.3d 307, 314 (8th Cir. 2011)). “Where retention of evidence is justified by pending charges
or an arrest warrant, no further process is required.” Id. “Likewise, if evidence is ‘needed for an
ongoing or proposed specific investigation,’ law enforcement authorities are entitled to retain it.”
Id. (citing Sovereign News Co. v. United States, 690 F.2d 569, 578 (6th Cir. 1982)).
Akins’ charges as a result of the May 9, 2010 arrest were not dismissed until
November 16, 2010. At that time, Akins’ charges were dismissed nolle prosequi, a prosecutor’s
formal entry on the record indicating that he will no longer prosecute a pending criminal charge.
State v. Buchli, 152 S.W.3d 289, 307 (Mo. App. W.D. 2004). A nolle prosequi results in a
dismissal without prejudice. Id. Akins had been charged with a Class D Felony, which had a
statute of limitations of three years. Mo. Rev. Stat. § 556.036.2(1). Thus, he could have been
recharged until at least May 9, 2013. Akins admits the Columbia Police Department maintained
the firearm “pursuant to the recommendations of the Boone County Prosecutor’s Office.”
Doc. 4, p. 8 at 40, ¶ 23. It would have been reasonable for the Columbia Police Department to
believe the firearm could have been needed for an ongoing investigation until that time.
Although Akins’ attorney had some communication with a Boone County assistant prosecutor
about the gun in February 2012, there is no evidence that the assistant prosecutor told the City it
would be alright to return the gun at that time. The Prosecutor’s Office did not inform the

21

Columbia Police Department until March 20, 2013 that the gun was no longer needed.
Therefore, the seizure and continued possession of the property was not a constitutional
violation, because it directly related to the criminal investigation into Akins for possession of the
property.
Additionally, following the dismissal of the charges against Akins, Akins did not
communicate with the Columbia Police Department until October 24, 2012 regarding the return
of his gun. This was only after the Columbia Police Department discovered it still had the gun
and notified Akins on October 18, 2012, via a letter and a phone call. Akins did not arrange for a
third party to come pick up the gun and did not contact the Columbia Police Department again
regarding the gun until February 22, 2013. Chief Burton was first informed of Akins’ request to
have his firearm returned on February 22, 2013. A few days later, Burton asked Captain Jill
Schlude to look into it. By March 26, 2013, she had learned Akins no longer had a pending
felony charge, obtained permission from the Boone County Prosecuting Office to release the
firearm, and notified Akins that he could pick up his gun. Akins did not pick it up until April 15,
2013. Akins has not claimed that 32 days is an unreasonable amount of time to possess a gun
after a request for its return, nor could he make such a claim. See generally, Rodgers v. Knight,
781 F.3d 932, 941 (8th Cir. 2015) (retention for three months after the Supreme Court of
Missouri refused to hear an appeal was a reasonable amount of time and did not violate the
Constitution).
B.

The June 6, 2010 incident and Officer Schlude

Akins alleges Officer Schlude violated his rights on June 6, 2010 in connection with a
traffic stop for an illegal turn, because Schlude took him and his passengers out of his car, and
made them sit cuffed on the curb, while Schlude searched his car without consent or a warrant.

22

Doc. 4, p. 8 of 40, ¶ 25.
A police officer may order persons out of an automobile during a stop for a traffic
violation. Pennsylvania v. Mimms, 434 U.S. 106 (1977). The Supreme Court has specifically
recognized that “investigative detentions involving suspects in vehicles are especially fraught
with danger to police officers” and “that suspects may injure police officers and others by virtue
of their access to weapons, even though they may not themselves be armed.” Mich. v. Long, 463
U.S. 1032, 1047-8 (1983). The Supreme Court held that “the search of the passenger
compartment of an automobile, limited to those areas in which a weapon may be placed or
hidden, is permissible if the police officer possesses a reasonable believe based on ‘specific and
articulable facts which, taken together with the rational inferences from those facts, reasonably
warrant’ the officer in believing that the suspect is dangerous and the suspect may gain
immediate control of weapons.” Id., 463 U.S. at 1049.
Additionally, the Supreme Court has observed that, during a routine traffic stop, police
officers “may order out of a vehicle both the driver and any passengers [and] perform a
‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and
dangerous.” Knowles v. Iowa, 525 U.S. 113, 118 (1998). Further, even if handcuffing an
individual during a traffic stop is not the norm, “[p]olice officers engaged in an otherwise lawful
stop must be permitted to take measures—including the use of handcuffs—they believe
reasonably necessary to protect themselves from harm, or to safeguard the security of others.”
United States v. Harvey, No. 14-00029-11-CR-W-GAF, 2015 WL 1197918, at *5 (W.D. Mo.
Mar. 16, 2015) (citing United States v. Acosta–Colon, 157 F.3d 9, 18 (1st Cir. 1998); United
States v. Bailey, 468 F.Supp.2d 373, 385 (E.D.N.Y. 2006); United States v. Sanchez, 2005 WL
2001510, at *5 (C.D. Ill. July 19, 2005)).

23

Akins admits Schlude validly stopped him for an illegal turn. Akins also admits that he
had a rifle in the rear of his car and told Schlude about it when Schlude came up to the car.
There were two other people in Akins’ car, including one in the rear where the gun was. Central
dispatch informed Schlude that Akins was known to be armed and violent, and that the two
passengers were known to be violent.

Akins had a felony weapons charge at the time.

Consequently, Schlude was justified in asking Akins to exit his car and performing a protective
search of the occupants and the car, and securing the occupants during the search. Akins did not
suffer a constitutional violation.
Akins argues he felt intimidated by his conversation with Schlude at the end of the
encounter. Akins specifically asked Hughes what the protocol was for a situation in which he
had a gun in his car and he encountered the police. Schlude said it depended on the officer and
gave an example of how he thought some officers might react. Schlude had not reacted that way,
however. The exchange occurred after Schlude had already performed the search and ticketed
Akins. In short, the exchange had nothing to do with Akins’ traffic violation and the search. But
to the extent Akins suggests Schlude had an improper motive in conducting the search, the
search was objectively permissible as discussed above, so an inquiry into his motive is
precluded. See Smithson v. Aldrich, 235 F.3d 1058 (8th Cir. 2000).
C.

The July 27, 2011 incident and Officer Sanders

Akins alleges he was seized without probable cause by Officer Sanders on July 27, 2011
at Taco Bell. Doc. 4, p. 8 of 40, ¶ 26. Akins argues Sanders had no lawful basis to perform an
investigative stop. Sanders argues that the encounter was consensual and Akins’ constitutional
rights therefore could not have been violated. Alternatively, Sanders argues that he conducted a

24

permissible investigative stop and at minimum has qualified immunity. Sanders’ alternative
argument is dispositive.
“The Fourth Amendment permits an investigative stop of a vehicle if officers have a
reasonable suspicion the vehicle or its occupants are involved in criminal activity.” U.S. v.
Smith, 648 F.3d 654, 658 (8th Cir. 2011). “In such a case, ‘officer[s] may briefly stop an
individual and make reasonably inquiries aimed at confirming or dispelling the suspicion.’” Id.
“Reasonable suspicion requires ‘that the [officers’] suspicion be based upon particularized,
objective facts which, taken together with rational inferences from those facts, reasonably
warrant suspicion that a crime [has been] committed.’” Id. See also Graham v. Connor, 490
U.S. 386, 3912-93 (1989) (amount of force or coercion used in an arrest, investigative stop, or
other seizure is analyzed under the Fourth Amendment’s objective reasonableness standard).
The determination of reasonable suspicion must be based on commonsense judgments
and inferences about human behavior. See United States v. Cortez, 449 U.S. 411, 418 (1981).
An individual’s presence “in an area of suspected criminal activity, standing alone, is not enough
to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois
v. Wardlow, 528 U.S. 119, 124 (2000). “But officers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances are sufficiently suspicious
to warrant further investigation.” Id. (citations omitted). Thus, “the fact that the stop occurred in
a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.” Id.
(citations omitted). The Supreme Court has “also recognized that nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion.” Id. (citations omitted). For example,
“[o]nce an individual is aware that police are behind him, his choice of a circular route or driving
with no apparent destination may strike a trained officer as a similar attempt to avoid police

25

attention.” Hoover v. Walsh, 682 F.3d 481, 495-496 (6th Cir. 2012). “[W]hen used by trained
law enforcement officers, objective facts, meaningless to the untrained, can be combined with
permissible deductions from such facts to form a legitimate basis for suspicion of a particular
person and for action on that suspicion.” United States v. Cortez, 449 U.S. 411, 419 (1981).
Thus, in Wardlow, for example, the fact that the defendant was present in an area of
heavy narcotics trafficking and fled from the police without provocation justified an investigative
stop. 528 U.S. at 676-77. In Hoover, an investigative stop was justified when the defendant was
driving a car filled to the brim with piles of clothes and other personal items, apparently traveling
randomly while police were following him through a neighborhood known for theft and property
crimes, at 1:20 a.m. 682 F.3d at 496.
Here, Akins’ car pulled out of a high crime neighborhood. Sanders began following the
car and observed the driver begin acting in what he believed to be an unusual manner, according
to his training and experience. The driver changed lanes more than once and then turned into a
parking lot, which signified to Sanders that the driver was trying to avoid police contact.
Sanders also saw the occupants become animated as he was following. In the parking lot,
Sanders saw an occupant shining a light at him from the rear window, and he had recently been
trained that individuals will use phones or cameras to video police to try to deter contact by the
officers. When the driver parked, Sanders observed that the occupants were watching his car.
Sanders spoke with the occupants, checked their identification, and returned it. The interaction
lasted less than two minutes. Sanders never drew his weapon or activated his lights and sirens.
He contacted Joint Communications, said he was performing a subject check, and got
information on the car plates, the driver, and the occupant. The objective facts taken as a whole

26

reasonably warranted a suspicion of criminal activity. At a minimum, a reasonable officer would
not have known under the circumstances that his conduct was unlawful.
Akins cites cases in which investigative stops were held unreasonable, but that are not
factually similar to the case before the Court. In United States v. Camacho, 661 F.3d 718 (1st
Cir. 2011), for example, the defendant was simply walking normally in a residential
neighborhood, displayed no apprehension or nervousness when the officers approached him, and
he gave direct, non-evasive answers to the officers. In United States v. Ceballos, 654 F.2d 177
(2nd Cir. 1981), the officers blocked the defendant’s car and approached him with guns drawn,
without any reason. The case here involves facts like those in Wardlow and Hoover that
permitted a brief investigative stop, rather than the facts like those in Camacho and Ceballos that
did not. Sanders did not ask for as many as two backup officers and a police dog, and even if
Officers Hedrick and Parsons did block Akins’ car, nothing in the record shows Sanders asked
them to do so. Sanders is not responsible for the other officers’ actions.
Akins further argues that in the absence of a valid reason for an investigative stop,
Sanders was stopping him because he had been filming Sanders earlier. Akins points to a report
of an investigation by Columbia Police Department Internal Affairs, concluding Sanders had
violated Police Department guidelines that require seizure of persons to conform to the limits of
the Fourth Amendment as interpreted by the judiciary.

Akins relies on Fed. R. Evid.

803(8)(A)(iii), which allows evidence of “factual findings from a legally authorized
investigation[.]” But a conclusion concerning whether a police officer’s conduct conformed to
the limits of the Fourth Amendment as interpreted by the judiciary is not a factual finding. It is a
legal conclusion and inadmissible hearsay, not covered by FRE 803. Sullivan v. Dollar Tree
Stores, Inc., 623 F.3d 770, 777 (9th Cir. 2010) (“Pure legal conclusions are not admissible as

27

factual findings. In the context of a summary judgment motion, a conclusion of law by a thirdparty investigator does not, by itself, create a genuine issue of material fact for the obvious
reason that a legal conclusion is not a factual statement [.]”); Hines v. Brandon Steel Docks, Inc.,
886 F.2d 299, 302 (11th Cir. 1989) (“[R]ule 803(8)(C) does not provide for the admissibility of
the legal conclusions contained within an otherwise admissible public report.”).

Also, apart

from the FRE 803 issue, the Eighth Circuit has held that the legal conclusions of expert
witnesses on police conduct are not admissible. Schmidt v. City of Bella Villa, 557 F.3d 564, 570
(8th Cir. 2009) (“expert testimony on reasonableness of police behavior in light of Fourth
Amendment standards is statement of legal conclusions and not admissible”) (citing Peterson v.
City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995)).
In any event, inasmuch as the investigative stop Sanders performed was objectively
permissible, as discussed above, an inquiry into his motive is precluded. See Smithson v.
Aldrich, 235 F.3d 1058 (8th Cir. 2000).
Sanders is entitled to qualified immunity with respect to the July 27, 2011 incident.
D.

The September 11, 2012 incident and Officer Palmer

Akins alleges his rights were violated by Office Palmer on September 11, 2012 when
Palmer stopped him for a traffic violation and arrested him on a number of charges, two of which
were eventually dismissed. Doc. 4, pp. 11-14 of 40, ¶ 32-35.
Palmer stopped Akins because Palmer was driving through an intersection and Akins
entered it, failing to yield the right of way. Akins did not have a driver license. He told Palmer
that he was driving to a Citizens-for-Justice-related event and was therefore covered to drive
under his limited driving privilege. But when Palmer ran Akins’ name through MULES, Akins’
driving privilege was reported as revoked without any limited privileges. Akins could not

28

provide proof of insurance. Palmer arrested Akins for driving while revoked. Palmer had
probable cause to stop Akins and arrest him for this violation.
In conducting a search incident to arrest, Palmer found a butterfly knife in Akins’ right
front pants pocket. Based on his training and experience, Palmer knew a butterfly knife was a
type of knife in which the handle is hollow and split into two parts that connect to the blade with
two loose pins. To open a butterfly knife, the blade pivots around the pins in an arc. Based on
his training at the police academy, knowledge, and experience, Palmer knows that a butterfly
knife can be opened one-handed by the operation of gravity or the application of centrifugal
force.

In addition to the driving and insurance violations, Palmer also arrested Akins for

unlawful use of a weapon and possession of a prohibited weapon, under Mo. Rev. Stat.
§ 571.020 and § 571.030.
Prior to submitting the probable cause statement, Palmer checked with a supervisor about
the butterfly knife. The supervisor told Palmer the knife was illegal. Palmer wrote in the
probable cause statement that the knife was designed to be opened from the handle by gravity or
by the application of centrifugal force. In May 2013, the charges were amended to driving while
revoked or suspended, and failure to yield the right of way.
Akins alleges that the violations cited in the probable cause statement have nothing to do
with his butterfly knife and the knife was legal. A Fourth Amendment violation can occur as a
result of an officer’s probable cause statement if the probable cause statement contained a
“‘deliberate falsehood’ or [the officer] acted with ‘reckless disregard for the truth’ when he
prepared it.” Murray v. Lene, 595 F.3d 868, 872 (8th Cir. 2010). Under § 571.010(12), a
“knife” is “any dagger, dirk, stiletto, or bladed hand instrument that is readily capable of
inflicting serious physical injury or death by cutting or stabbing a person. For purposes of this

29

chapter, ‘knife’ does not include any ordinary pocketknife with no blade more than four inches in
length.” Under § 571.010(20), a “switchblade knife” is “any knife which has a blade that folds
or closes into the handle or sheath, and: … (b) That opens or released from the handle or sheath
by the force of gravity or by the application of centrifugal force.”
First, Officer Palmer is entitled to qualified immunity regardless of whether the butterfly
knife found on Akins qualified as a “knife” under § 571.010(12). “[Q]ualified immunity is
appropriate if defendant has been accused of submitting a recklessly false affidavit and if a
corrected affidavit would still provide probable cause to arrest or search.” Bagby v. Brondhaver,
98 F.3d 1096, 1099 (8th Cir. 1996). Since Akins was also properly arrested for driving while
revoked, Officer Palmer’s probable cause statement provided sufficient probable cause for arrest
regardless of any reference to the butterfly knife.
Further, Officer Palmer would still be entitled to qualified immunity even if the arrest
was based solely on the butterfly knife. Arguably, under § 571.010(20), the knife Akins was
carrying was a “switchblade knife.” The butterfly knife had a blade that would fold into its
handle. Based on his training and experience, Palmer testified that the butterfly knife could be
opened by gravity or centrifugal force. Before finishing the probable cause statement, Palmer
also checked with his supervisor whether the butterfly knife was legal, and was told it was not.
At the very least, a reasonable officer could have concluded the butterfly knife was a switchblade
knife and illegal under the statute. Akins’ argument or belief that the latch would make it
difficult to open the knife by gravity or centrifugal force at most makes the application of the
statute to the situation debatable, which will no defeat qualified immunity.
Further, even if the knife was not a switchblade knife, Palmer would still be entitled to
qualified immunity because it is not clearly established under Missouri law what constitutes the

30

“blade” of a knife, and it would have been reasonable for him to conclude that the butterfly
knife’s blade was at least 4 inches for purposes of § 571.010(12)’s definition. No Missouri case
defines “blade” or indicates how the blade of a knife should be measured to determine its length.
The State of Missouri has previously defined a weapon’s blade as the metal part of the weapon.
See State v. Luker, 873 S.W.2d 316, 318 (Mo. App. S.D. 1994) (where the State defined an awl’s
blade as the “metal, round shaft”). It is logical to read the statute to refer to the metal shaft
protruding above the handle when referencing the “blade,” because it is the metal part attached to
handle that gives the weapon’s user the ability to reach and injure a victim. Measured from the
tip of the blade to the top of the hinges, the metal part of Akins’ butterfly knife is at least 4
inches. At the very least, the law regarding § 571.010(12) and its term “blade” is not clearly
established and Palmer is entitled to qualified immunity.
For the first time in his suggestions in opposition to Defendants’ motion for summary
judgment, Akins states his butterfly knife was unlawfully destroyed. Doc. 104, p. 37 of 46.
There is no such claim in his Amended Complaint, so such a claim is not properly before the
Court. Moreover, there are no facts in the record showing it was destroyed or who allegedly did
so, let alone that a Defendant did, and respondeat superior is not a basis for § 1983 liability.
Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997).
Also for the first time in his suggestions, Akins states the City of Columbia violated his
due process rights by failing to follow the Missouri Criminal Asset Forfeiture Act, Mo. Rev.
Stat. §§ 513.600—.45 in the handling of his butterfly knife. Doc. 104, p. 37-43 of 46. Akins’
Amended Complaint contains no Missouri CAFA claim, so such a claim is not properly before
the Court. In any event, the Missouri CAFA does not apply to this case. It is a discretionary,
civil asset forfeiture procedure that a prosecutor may employ, and nothing in that statute affects

31

law enforcement’s ability to seize property pursuant to criminal investigations. See Mo. Rev.
Stat. § 513.607. Akins’ lengthy argument that the law should not be construed to provide
prosecutors with absolute and unfettered discretion to retain property does not address the facts
of this case. The Defendants are not prosecutors and would not be liable under § 1983 for
prosecutors’ exercise of discretion concerning retention or civil forfeiture of property.
E.

Alleged retaliation by the City of Columbia

Akins alleges “the City of Columbia has a pattern and practice of targeting those critical
of police misconduct with retaliatory action” and that he was “targeted with a ‘wanted poster’
displayed at the Columbia Missouri Police Department” for exercising his First Amendment
rights. Doc. 4, p. 30 of 40, ¶84 (emphasis in original).
The creator of the poster is unknown and the City of Columbia cannot be liable for the
poster, or any other allegedly retaliatory behavior, under § 1983 on a respondeat superior theory.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). A municipality may be held liable
for the unconstitutional acts of its employees when those acts implement or execute an
unconstitutional municipal policy or custom. Id.; see also Doe v. Washington County, 150 F.3d
920, 922 (8th Cir.1998). But to establish a municipality’s liability, a plaintiff must prove that a
municipal policy or custom was the “moving force [behind] the constitutional violation.” Monell,
436 U.S. at 694; see also Board of Comm'rs v. Brown, 520 U.S. 397, 400 (1997) (holding that
only “deliberate” action by a municipality can meet the “moving force” requirement). Akins has
neither alleged nor demonstrated that the City of Columbia adopted a policy that led to the poster
and the alleged retaliation. The claim concerning the poster and alleged retaliation fail for these
reasons alone.
Furthermore, a First Amendment retaliation claim requires, among other things, proof of

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a defendant’s retaliatory animus, which need not necessarily be the sole motive, but must be a
substantial factor in the plaintiff’s subsequent injury. Baribeau v. City of Minneapolis, 596 F.3d
465, 481 (8th Cir. 2010). There is no evidence in the record of the motive of the person who
created it, let alone that any retaliatory animus on that person’s part was a substantial factor in a
subsequent injury Akins experienced, if any.
In support of his retaliation claim, Akins points to a May 19, 2010 traffic stop by Officer
Quintana. But Quintana had probable cause to stop Akins because Akins’ window tints appeared
to be darker than the legal limit and he was driving a car with expired plates. Quintana also had
probable cause to arrest Akins because of two active warrants. Moreover, Quintana is not a
defendant and his actions cannot be imputed to a defendant here. Personal involvement is
required to establish liability under §1983. Beck v. LaFleur, 257 F.3d 764 (8th Cir. 2001).
Quintana’s actions do not establish retaliation on the part of the Defendants.
Akins also points to two incidents involving policing at downtown bars at closing time.
Officers Corcoran, who is not a defendant, and Hughes encountered Akins in public two separate
times in October 2011 while patrolling. Missouri law requires bars to be closed, locked, and
empty of patrons after 1:30 a.m. or be fined. Mo. Rev. Stat. § 311.290. The Columbia police
were using a spotlight to view the bars, disperse crowds, and stave off fights and loitering by
intoxicated persons, a routine practice. Hughes was shining a spotlight at a bar Akins was in
near 1:30 a.m., saw someone in the bar, and went in to tell a bar employee to clear the bar or be
fined. Akins was working there as a videographer at the time. There is no evidence in the record
showing Hughes knew the person he saw from his car was Akins, nor that he knew Akins was
employed by the bar and not a patron when he approached the bar employee. Given these facts,
Akins has failed to show that Hughes’ threat to fine a bar employee for having an individual in

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the bar after hours was anything other than routine law enforcement. Further, Akins later
voluntarily walked up to Hughes outside the bar.

Hughes arrested him because he had

outstanding warrants.
Officer Corcoran was shining his spotlight on a crowd of people leaving a bar, including
Akins. By Akins’ admission, he and his brother broke from the crowd and began walking
sideways across an adjacent lot to show that they were being followed by the spotlight. Police
officers are allowed to make observations while they are in public. See generally, Florida v.
Riley, 488 U.S. 455, 448 (1989), and California v. Ciraolo, 476 U.S. 207, 209 (1986). Nothing
in the record shows that Corcoran knew Akins. That an officer might be curious about two
people who broke from a crowd and began walking sideways across an adjacent lot does not
demonstrate retaliatory motive. In short, the bar encounters do not establish retaliation on the
part of any of the Defendants.
Akins also argues that he was retaliated against when he was stopped from filming a
citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were
removed from the Police Department’s Facebook page in the summer of 2011; and he was
excluded from a Police Department Media Training Day in October 2015.

None of the

individual Defendants participated in these incidents, and as discussed above, the City cannot be
liable under § 1983 on a respondeat superior theory.

Moreover, Akins points to no

unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape
any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004)
(“[N]either the public nor the media has a First Amendment right to videotape, photograph, or
make audio recordings of government proceedings that are by law open to the public.”), and Wis.
Interscholastic Ath. Ass'n v. Gannett Co., 658 F.3d 614, 627-628 (7th Cir. 2011) (same). His

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links to the Police Department’s Facebook page were treated the same as everyone else’s and
there is no constitutional right to unlimited posting. See TinleySparks, Inc. v. Vill. of Tinley
Park, 2015 WL 2265451, *10 (N.D. Ill. May 11, 2015) (“Plaintiffs have not cited any case
holding that they have a right to post messages that could be perceived as political in online
forums intended to promote small business growth. Indeed, the cases support the opposite
conclusion: that Defendants could, consistent with the First Amendment, prohibit political
messages on the Downtown Tinley website and Facebook page to preserve their intended
purpose as small business forums so long as they refrained from engaging in viewpoint
discrimination.”) Finally, with respect to the media training event, Akins was not a member of
the traditional media, nor does the record show he was an active nontraditional media member at
the time. Space was limited. These were content-neutral reasons not to create an exception for
Akins to attend the invitation-only event. The media does not enjoy a right of equal access or
special First Amendment rights. See Snyder v. Ringgold, 133 F.3d 917 (4th Cir. 1998).
The retaliation claim therefore fails.
F.

Failure to train

Akins broadly alleges that the City of Columbia failed to train its law enforcement
officers. Doc. 4, p. 35 of 40, ¶ 97. A municipality cannot be liable under § 1983 for failure to
train or supervise its police officers if the police officers did not commit a constitutional
violation. Gibson v. Cook, 2014 WL 4085821, at *6 (8th Cir. Aug. 20, 2014) (police officers
were held not liable for constitutional violations because they had probable cause, and city
therefore could not be subject to liability under § 1983 for failure to train and supervise) (citing
Moore v. City of Desloge, 647 F.3d 841, 849 (8th Cir. 2011)).
As discussed above, Defendants Hughes, Schlude, Sanders, and Palmer had probable

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cause in connection with the incidents of May 9, 2010; June 6, 2010; July 27, 2011; and
September 11, 2012. Furthermore, Akins cannot demonstrate his constitutional rights were
violated in connection with return of the gun, seizure of the butterfly knife, or his reporting
activities. The failure to train claim therefore fails.
G.

Malicious prosecution

Akins alleges he was subject to malicious prosecution. Doc. 4, pp. 33-34 of 40, ¶ 96.d.
A claim of malicious prosecution does not appear actionable under § 1983 in the Eighth Circuit.
See Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir.2001) (“Moreover, this court has
uniformly held that malicious prosecution by itself is not punishable under § 1983 because it
does not allege a constitutional injury.”). See also Trevino v. Benton County, Ark., 578 Fed.
Appx. 626,627 (8th Cir. 2014) (citing Kurtz with approval).
But even if the Eighth Circuit recognized such a claim under § 1983, Akins’ claim would
fail at minimum because the existence of probable cause for his arrests, as discussed above,
would defeat it. See Fagnan v. City of Lino Lakes, Minn., 745 F.3d 318, 324 (8th Cir. 2014)
(probable cause supporting warrant and arrest would defeat a § 1983 claim for malicious
prosecution).
H.

Conspiracy

Akins alleges the Defendants engaged in a conspiracy to deprive him of his constitutional
rights. Doc. 4, pp. 35-36 of 40, ¶ 100.
To prove a § 1983 conspiracy claim, a plaintiff must show: (1) that the defendants
conspired to deprive him of a constitutional right; (2) that at least one of the alleged coconspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the overt act
injured the plaintiff. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). Most importantly, “the

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plaintiff is … required to prove a deprivation of a constitutional right or privilege in order to
prevail on a §1983 civil conspiracy claim.” Id.
As discussed above, Akins failed to prove he suffered a deprivation of a constitutional
right. Furthermore, he has not presented any evidence that any of the Defendants reached an
agreement to deprive him of his constitutionally guarantee rights.

See Larson by Larson v.

Miller, 76 F.3d 1446, 1458 (8th Cir. 1996).
Therefore, the conspiracy claim fails.
III.

Conclusion
Defendants Burton, Hughes, Sanders, Schlude, Palmer, and the City of Columbia’s

motion for summary judgment, Doc. 81, is granted.

Plaintiff Akins’ motion for summary

judgment in part, Doc. 91, is denied.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: August 2, 2016
Jefferson City, Missouri

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