Wheeler v. Lynn et al
Filing
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ORDER denying 61 defendants' motion for summary judgment. Signed on 5/18/12 by District Judge Greg Kays. (Francis, Alexandra)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
GEORGE ALVIN WHEELER,
Plaintiff,
v.
BRAD LYNN, et. al.,
Defendants.
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No. 4:10-CV-00966-DGK
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
This is a civil lawsuit arising from Plaintiff George Wheeler’s arrest in the early morning
of June 21, 2008. Wheeler was arrested at a sobriety checkpoint run by the Kansas City,
Missouri Police Department and held without bond overnight on suspicion of driving under the
influence of cannabis. After his release, Wheeler underwent a drug screen which found no
alcohol or drugs in his system. Wheeler, an attorney who is representing himself, vehemently
denies he had anything to drink that evening or that he has ever used drugs. Wheeler is suing
officers Brad Lynn and Dana Mauzy under 42 U.S.C. § 1983 for wrongful arrest, alleging they
arrested him out of spite because he angered Officer Mauzy during the stop.
Now before the Court is Defendants’ Motion for Summary Judgment (doc. 61).
Defendants claim their actions were reasonable and they had probable cause to arrest Wheeler.
Finding that material facts are in dispute here such that the Court cannot grant Defendants
summary judgment or find that they are entitled to qualified immunity at the present time, the
motion is DENIED.
Standard
A moving party 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 judgment as a
matter of law.” Fed. R. Civ. P. 56(c). A party who moves for summary judgment bears the
burden of showing that there is no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).
When considering a motion for summary judgment, a court
must scrutinize the evidence in the light most favorable to the nonmoving party, and the
nonmoving party “must be given the benefit of all reasonable inferences.” Mirax Chem. Prods.
Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991) (citation omitted).
To establish a genuine issue of fact sufficient to warrant trial, the nonmoving party “must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
nonmoving party must set forth specific facts showing there is a genuine issue for trial.
Anderson, 477 U.S. at 248. But the nonmoving party “cannot create sham issues of fact in an
effort to defeat summary judgment.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d
399, 402 (8th Cir. 1995) (citation omitted).
Facts
Defendants Dana Mauzy and Brad Lynn are police officers employed by the Kansas City,
Missouri, Police Department. In the late evening of June 20/early morning of June 21, 2008,
officers Mauzy and Lynn were working at a sobriety checkpoint at Blue Ridge Boulevard and
Holiday Drive in Kansas City, Missouri. At approximately 12:17 a.m., Plaintiff George Wheeler
approached the sobriety checkpoint in his car. Plaintiff was directed by several different officers
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to go in different directions, and he stopped. Earlier in the day, Plaintiff, an attorney, had been
attending a Continuing Legal Education seminar at Crown Center in Kansas City, Missouri.
Officer Mauzy was the first officer to contact Wheeler. Wheeler was still wearing his
name tag from the seminar. Officer Mauzy claims Wheeler had a faint odor of alcoholic
beverage on his breath, his eyes were bloodshot and glassy, and he was mumbling. Plaintiff
disputes these allegations. Viewing the record in the light most favorable to the Plaintiff, for
purposes of resolving this motion the Court finds Wheeler did not have the smell of alcohol on
his breath, his eyes were not bloodshot and glassy, and he was not mumbling.
Wheeler declined to answer any questions. He told Officer Mauzy that he had not had
any alcohol to drink, that he did not take drugs, and that he would not answer any questions.
When Plaintiff refused to answer any questions, Officer Mauzy’s demeanor changed and she
became angry.
Officer Mauzy then gave Wheeler three field sobriety tests. Wheeler’s performance is in
dispute. Officer Mauzy contends he failed all three; Wheeler has testified he did not fail any of
them.
Officer Mauzy then called over Officer Lynn, who is a certified drug recognition expert.
Officer Lynn also claims that when he met Wheeler, Wheeler’s eyes were glassy, his eyelids
were droopy, and there was a faint odor of an alcoholic beverage on his breath.
Wheeler submitted to a breath test to determine his blood alcohol concentration (“BAC”)
level. Officer Lynn administered the test using an Intoxilyzer 5000. The parties dispute how
many tests were given and the results. Wheeler claims that he was tested three times, that he saw
the results on the machine, and that the results were all 0.00. That is, they showed no alcohol in
his blood. Officer Lynn claims only one test was given, and it measured a blood alcohol
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concentration of 0.01.1 Viewing the record in the light most favorable to the Plaintiff, for
purposes of resolving this motion the Court finds that whether there was one test given or three,
each Intoxilyzer test found no alcohol in Wheeler’s blood.
Officer Lynn then conducted a drug recognition examination (“DRE”). He conducted the
DRE because the Intoxilyzer results were not consistent with his perception of Wheeler’s level of
impairment. As part of the DRE, Lynn conducted several physical tests on Wheeler, including a
balance test, a finger-to-nose test, and lack-of-convergence test. Lynn also took Wheeler’s blood
pressure and listened to his heartbeat with a stethoscope. Drug recognition experts check a
suspect’s blood pressure, pulse, and temperature because certain drugs cause the body to do
things involuntarily. Persons under the influence of cannabis, for example, may have increased
blood pressure and pulse among other things. Wheeler exhibited an increased or higher than
normal blood pressure and pulse.
Officer Lynn also ordered a urinalysis. The results of the test, however, were not
available that night.
Officer Lynn subsequently arrested Wheeler for driving under the influence of cannabis.
Because the checkpoint was a DUI checkpoint, Officer Lynn had pre-written tickets that read
“driving while under the influence of alcohol.” In issuing Wheeler’s ticket, Lynn marked out the
word “alcohol” and wrote “cannabis.” Wheeler’s ticket states he was arrested for driving “while
under the influence of cannabis, to a degree which renders him incapable of safely driving a
vehicle.” After Wheeler was arrested, the police towed his car. The time was 2:13 a.m. on June
21st. Wheeler had been at the checkpoint for approximately 2 hours.
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The threshold for driving with excessive blood alcohol content under Missouri law is 0.08 or greater. Mo. Rev.
Stat. § 577.012.1.
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Immediately after his release from the Kansas City Municipal Jail the next morning,
Wheeler went to Research Medical Center and underwent a physical examination and toxicology
review. He was examined at 7:30 a.m. His blood pressure was 180 over 108, his pulse was 111,
and he had a temperature of 98.01 degrees Fahrenheit. The toxicology review found no evidence
of alcohol or drug use.
The municipal charge against Wheeler was dismissed on September 17, 2008.
Discussion
Section 1983 provides that no person acting under color of state law may violate any
rights secured by the Constitution or laws of the United States.2 Section 1983 does not create
any substantive rights, but merely provides remedies for deprivations of rights established
elsewhere. Albright v. Oliver, 510 U.S. 266, 271 (1994). To state a claim under the statute, a
complaint must allege that the defendant deprived the plaintiff of a right, privilege or immunity
secured by the Constitution or laws of the United States while acting under color of state law.
Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997).
Count I, the sole remaining claim in this case, alleges that Defendants violated Wheeler’s
Fourth, Fifth, and Fourteenth Amendment rights and section 1983 by falsely arresting him. To
prevail on this claim Wheeler must show that the officers were (1) acting under color of state law
(2) when they arrested him, and (3) they arrested him without probable cause. Peterson v. City
of Plymouth, 60 F.3d 469, 473 (8th Cir. 1995). The first two elements are present here; the
question is whether the officers had probable cause to arrest Wheeler for driving while under the
influence of cannabis.
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“Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . for redress.” 42
U.S.C.A. § 1983.
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A.
A jury could find Defendants lacked probable cause to arrest Plaintiff.
Officers have probable cause “if, at the moment the arrest was made, ‘the facts and
circumstances within their knowledge and of which they had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that [the plaintiff] had committed or was
committing an offense.’” Id. (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). This determination
is made by looking at whether the arresting officers had probable cause at the time of arrest, not
whether the decision to arrest could be justified by information learned after the arrest. Lambert
v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999).
Viewing the record in the light most favorable to the Plaintiff, the Court holds a
reasonable jury could find the following: Wheeler had not been drinking the evening of June 2021, and he has never used illegal drugs. After he was stopped at the sobriety checkpoint, he
angered the police by refusing to answer their questions. In response, the officers falsely
claimed that they smelled alcohol on his breath, that his eyes were bloodshot and his eyelids
were droopy, and that he was mumbling so that they could conduct drug and alcohol tests on
him. Officer Lynn then used the fact that he found Wheeler’s blood pressure and pulse rate
higher than normal to justify arresting him for driving under the influence of cannabis. A
reasonable person, however, would not have believed that Wheeler had committed, or was
committing , the crime of driving under the influence of cannabis. Consequently, Wheeler was
falsely arrested.
A reasonable jury could make these findings because the record consists of more than just
Plaintiff’s self-serving testimony. Plaintiff’s testimony is corroborated by two different pieces of
objective evidence, the breathalyzer test results and the toxicology review.
This evidence
supports Wheeler’s assertion that he had not been drinking or using marijuana that night, that he
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was not displaying any symptoms of alcohol or drug use as the officers claimed, and that the
officers simply arrested Wheeler to harass him. While the evidence is hardly overwhelming, it is
enough to allow Plaintiff’s wrongful arrest claim to go to the jury.
B.
Defendants are not entitled to qualified immunity at the present time.
If the Court finds the officers lacked probable cause, “a second inquiry is necessary to
determine whether the officers are nonetheless entitled to qualified immunity. The officers are
immune from liability if, in light of clearly established law and the information known to the
officers, a reasonable officer could have believed the arrests were supported by probable cause.”
Peterson, 60 F.3d at 473-74.
“Qualified immunity protects government officials from liability under § 1983 when their
conduct does not violate ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009)
(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
“Qualified immunity balances two
important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). It
provides protection “to all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1996). An officer is entitled to qualified immunity unless
(1) the facts, taken in the light most favorable to the injured party, show that the officer’s
conduct violated a constitutional right; and (2) the constitutional right was clearly established at
the time of the deprivation so that a reasonable officer would understand his conduct was
unlawful. Nance, 586 F.3d at 609. Although qualified immunity is an affirmative defense, the
plaintiff must allege and present evidence from which a reasonable jury could find that the
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officer violated the plaintiff’s constitutional rights. Otey v. Marshall, 121 F.3d 1150, 1155 (8th
Cir. 1997).
If the allegation here were simply that the officers arrested Wheeler for driving under the
influence of cannabis because they mistakenly believed that having higher than normal blood
pressure and an increased pulse rate was probable cause of this crime, the officers would be
entitled to qualified immunity. After all, it was not clearly established at the time that such an
arrest is unconstitutional such that a reasonable officer would have known it was illegal. And
police officers “are not liable for bad guesses in gray areas; they are liable for transgressing
bright lines.” Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (quotation omitted).
The allegation here, however, is that the Defendants intentionally made a meritless arrest
of Wheeler because he angered them. Qualified immunity does not shield officers engaged in
such behavior. Qualified immunity is defeated if an official “‘took the action with the malicious
intention to cause a deprivation of constitutional rights or other injury.’” Ambrose v. Young, 474
F.3d 1070, 1077 (8th Cir. 2007) (emphasis in original) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 815 (1982)).
In denying qualified immunity, the Court notes that as in Moore v. Indehar, this is not a
case where the plaintiff’s only chance of defeating qualified immunity rests in the possibility that
the jury might disbelieve the officer’s testimony. 514 F.3d 756, 761 (8th Cir. 2008). The record
here consists of the Plaintiff’s testimony and independent evidence which corroborates his
testimony. This is sufficient evidence of malicious intention to defeat qualified immunity.
Consequently, viewing the record in the light most favorable to the Plaintiff, the Court
cannot grant Defendants qualified immunity. Of course, if at trial Wheeler fails to prove that the
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officers intentionally arrested him without probable cause, the officers will be entitled to
qualified immunity.
Conclusion
Finding that material facts are in dispute here such that the Court cannot grant Defendants
summary judgment or find that Defendants are entitled to qualified immunity, Defendants’
Motion for Summary Judgment (doc. 61) is DENIED.
IT IS SO ORDERED.
Date: May 18, 2012
/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT
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