Mc Curry et al v. Swanson et al

Filing 77

MEMORANDUM AND ORDER - The plaintiffs' motion for partial summary judgment on the issue of the validity of the warrant 63 is granted. The defendants' motion for summary judgment 66 is granted with respect to defendant City of Omaha and denied in all other respects. The plaintiffs' claims against the City of Omaha are hereby dismissed. Ordered by Chief Judge Joseph F. Bataillon. (JAE)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT McCURRY, et al.,
Plaintiffs,
v.
JERALD SWANSON, et al.,
Defendants.

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8:08CV448

MEMORANDUM AND ORDER

This matter is before the court on the parties’ cross-motions for partial summary
judgment, Filing No. 63 and Filing No. 66. This is an action for deprivation of rights under
42 U.S.C. § 1983, in connection with an allegedly illegal search by Omaha police officers
of the plaintiffs’ home. Plaintiffs Robert, Melanie and Christopher McCurry (hereinafter “the
McCurrys”) move for summary judgement in their favor on the issue of the validity of the
search warrant at issue. Defendants Edith Andersen, Brett Becker, Paul Latchar, Paul
Milone, Ryan Sedlacek, Jerald Swanson, Robert Wondra also move for summary judgment
in their favor on that issue, but concede that there are genuine issues of material fact with
respect to the reasonableness of the search. The defendants also argue that they are
entitled to qualified immunity and contend there is no evidence to support municipal liability
against the City of Omaha.1
I. BACKGROUND
In their complaint, the plaintiffs allege that on August 2, 2007, Officer Swanson and
a team of officers entered and searched their house. Filing No. 1, Complaint at 3. The
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Further, the defendants contend that “the allegations of lost reputation from false allegations to a
Nebraska state agency do not raise any genuine issue of m aterial fact.” Filing No. 66, Defendants’ Motion
for Partial Sum m ary Judgm ent at 1. The court finds that those allegations are not a freestanding claim but
m erely provide factual support for the allegations that the plaintiffs were unfairly targeted by the defendants.
Accordingly, the defendants’ m otion for sum m ary judgm ent on the purported “claim ” will be denied.

plaintiffs allege that defendants handcuffed them and their guests for three hours while
ransacking the house and breaking items of personal property. Id. In addition, plaintiffs
contend that the defendants ripped holes in walls, destroyed glass tables, and tore up
family pictures (while making crude comments about pictures of Melanie McCurry in a
bathing suit) and assert that items seized were never returned. Id. at 3-4. Further,
plaintiffs assert that City of Omaha law enforcement officers and employees retaliated
against them by allegedly firing their foster son and filing false complaints with the
Department of Social Services. Id. at 4-5. Robert McCurry testified in his deposition that
the police officers tore up his house and damaged his furniture in executing the warrant.
Filing No. 65 (Doc # 65-6, Page ID # 232).
Evidence submitted by the parties in support of and in opposition to the motion
shows that the search warrant states on its face that it is “based upon the sworn affidavit
and application of issuance of a search warrant of DETECTIVE SWANSON, Jerald # 1566
dated the 1st date of August, 2007.” Filing No. 67, Index of Evid., Ex. 1, Affidavit of Jerald
R. Swanson (“Swanson Aff.”), Attachment No. 2, Search Warrant at 1 (Doc # 67-1, Page
ID # 263). Detective Swanson’s affidavit and application describes with particularity six
items, including firearms, that were to be the subject of the search. Id., Swanson Aff.,
Attachment No. 1, affidavit and application for issuance of a search warrant at 3. The
search warrant itself, however, contains no description or list of property. Id., Swanson
Aff., Attachment 2, Search Warrant at 1. In the space provided for a description of the
property, only the address and description of the place to be searched are set out. Id. The
warrant does not indicate that any affidavit is attached. Id.

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In the affidavit in support of the search warrant, Officer Swanson also detailed
reports of gang members in and around the McCurry home, and noted that weapons and
spent ammunition had been found in the alley behind the house. Id., Ex. 1, Swanson Aff.,
Attachment 1 at 4. Sergeant Swanson also described several incidents that involved
Christopher McCurry and firearms that were either stolen or defaced (serial numbers
removed). Id. at 6. Also, Swanson stated he observed Corleone McCurry consorting with
known gang members. Id. at 8. The affidavit and application were presented to and
signed by Douglas County, Nebraska. Id., Ex. 1, Swanson Aff. at 2.
Officer Swanson states in his affidavit the omission of the listed items from the
warrant was inadvertent. Id. Further, he states that the policies and practices of the
Omaha Police Department require items targeted in a search to be listed on the warrant
itself. Id. Officer Swanson states that Robert McCurry received a copy of the inventory of
items seized in the search. Id., Swanson Aff. at 13, Attachment No. 3, receipt at 2 (Doc
# 67-1, Page ID # 266); see also Filing No. 65, Index of Evid., Ex. 2, Police report at 4.
(Doc # 65-2, Page ID # 216). In affidavits submitted in opposition to the city’s motion, the
plaintiffs state that they were not provided or shown the search warrant at the time of the
search. Filing No. 75, Index of Evid., Ex. 1, Affidavit of Robert McCurry, Ex. 2, Affidavit of
Melanie McCurry, Ex. 3, Affidavit of Christopher McCurry at 1. The plaintiffs dispute Officer
Swanson’s contention that the affidavit was present at the time of the search. Id.
The evidence shows law enforcement officers found and seized weapons, including
a weapon with a defaced serial number, and drug-related paraphernalia from the home.
Filing No. 65, Index of Evid., Ex. 7, inventory. Christopher McCurry was arrested at the
conclusion of the search, after officers found a weapon concealed in the rafters of his
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bedroom. Filing No. 65, Ex. 2, police report. He was later indicted in this court on a charge
of possession of a defaced weapon. Filing No. 65, Ex. 3, Indictment. His defense counsel
moved to dismiss the evidence seized in the search on the ground that the warrant was
fatally defective. Filing No. 65, Ex. 4. The United States Attorney later dismissed the
charges against Christopher McCurry. Filing No. 65, Index of Evid., Ex. 3, motion to
dismiss.
The evidence also shows that the plaintiffs had previously reported information to
the City of Omaha’s gang unit about possible criminal activity in the park by their house.
Filing No. 65, Index of Evid., Ex. 5, Deposition of Robert McCurry at 2. Plaintiffs had also
complained about police brutality or harassment. Id.
II. DISCUSSION
A. Law
On a motion for summary judgment, the question before the court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows 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; Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th
Cir. 1995). Where unresolved issues are primarily legal rather than factual, summary
judgment is particularly appropriate. Id. In ruling on a motion for summary judgment, a
court must not weigh evidence or make credibility determinations. Kenney v. Swift Transp.,
Inc., 347 F.3d 1041, 1044 (8th Cir. 2003).
The burden of establishing that no genuine issue of material fact exists is on the
moving party. Fed.R.Civ.P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);
Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 890 (8th Cir. 2005) (stating that “[t]he

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moving party bears the burden of showing both the absence of a genuine issue of material
fact and an entitlement to judgment as a matter of law”). Therefore, if the moving party
does not meet its initial burden with respect to an issue, summary judgment must be
denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398
U.S. at 159-60; Cambee's Furniture, Inc. v. Doughboy Recreational, Inc., 825 F.2d 167,
173 (8th Cir. 1987). Once the moving party has met its burden, the nonmoving party may
not rest on the allegations of his pleadings, but must set forth specific facts, by affidavit or
other evidence, showing that a genuine issue of material fact exists. Singletary, 423 F.3d
at 890.
The law imposes civil liability on any 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.” 42 U.S.C. § 1983. The Fourth
Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend IV. The first clause of the Amendment provides an overriding check
on criminal investigations by the government, prohibiting all unreasonable searches and
seizures and the second clause explains the process for obtaining a warrant to authorize
a search. See Soldal v. Cook County, 506 U.S. 56, 63 (1992) (involving reasonableness
clause); Maryland v. Garrison, 480 U.S. 79, 84-85 (1987) (involving warrant clause). A
search that satisfies the warrant clause will generally, but not invariably, satisfy the

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reasonableness clause. See Richards v. Wisconsin, 520 U.S. 385, 395 (1997) (noting that
despite the issuance of a warrant, “the reasonableness of the officers’ decision . . . must
be evaluated as of the time [of the search]”). Although a search of a residence or building
without a warrant is “presumptively unreasonable,” it will not invariably violate the
reasonableness clause because “exigent circumstances” or consent may excuse the
necessity of a warrant. Payton v. New York, 445 U.S. 573, 587 (1980).
“‘The uniformly applied rule is that a search conducted pursuant to a warrant that
fails to conform to the particularity requirement of the Fourth Amendment is
unconstitutional.’” Groh v. Ramirez, 540 U.S. 551,565 (2004) (quoting Massachusetts v.
Sheppard, 468 U.S. 981, 988 n.5 (1984)). The presumptive rule against warrantless
searches applies with equal force to searches whose only defect is a lack of particularity
in the warrant.

Id. at 559.

However, the particularity requirement of the Fourth

Amendment may be satisfied by cross-reference in the warrant to separate documents that
identify the property in sufficient detail. Id. at 557. Unless the particular items described
in the affidavit are also set forth in the warrant itself, or the affidavit is incorporated by
reference in the warrant and the affidavit is present at the search, “there can be no written
assurance that the Magistrate actually found probable cause to search for, and to seize,
every item mentioned in the affidavit.” Id. at 560. Accordingly, “[t]he fact that the
application adequately described the ‘things to be seized’ does not save the warrant” from
the risk of facial invalidity because “[t]he Fourth Amendment by its terms requires
particularity in the warrant, not in the supporting documents.” Id. at 557. Nevertheless,
a court may accept a warrant that references a supporting application or affidavit if the
warrant uses appropriate words of incorporation, and if the supporting document
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accompanies the warrant. Id. at 558-59 (emphasis added); United States v. Curry, 911
F.2d 72, 77 (8th Cir. 1990) (holding that a description in the supporting affidavit can supply
the requisite particularity if: (a) the affidavit accompanies the warrant, and (b) the warrant
uses suitable words of reference which incorporates the affidavit therein); United States
v. Nieman, 520 F.3d 834, 839 (8th Cir. 2008).
The purpose of the particularity requirement is not limited to the prevention of
general searches, but is to assure “‘the individual whose property is searched or seized of
the lawful authority of the executing officer, his need to search, and the limits of his power
to search.’” Groh, 540 U.S. at 561 (quoting United States v. Chadwick, 433 U.S. 1, 9
(1977)). Although the Fourth Amendment does not require an officer to serve a search
warrant before executing it, a decision of officers not to present an incorporated affidavit
to the occupant upon request may be a relevant factor in determining the reasonableness
of a search. Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and
Firearms, 452 F.3d 433, 443 (6th Cir. 2006).
The existence of probable cause for a search warrant depends on whether, in the
totality of the circumstances, there is a fair probability that contraband or evidence of a
crime will be found in a particular place. United States v. Solomon, 432 F.3d 824, 827 (8th
Cir. 2004). When an issuing judge relies “solely upon the supporting affidavit to issue the
warrant, only that information which is found within the four corners of the affidavit may be
considered in determining the existence of probable cause.” Id. The court should give
considerable deference to the issuing judge’s determination of probable cause. United
States v. Dishman, 377 F.3d 809, 811 (8th Cir. 2004).

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“It is elementary Fourth Amendment law that even valid warrants must be executed
in a reasonable manner.” Dalia v. United States, 441 U.S. 238, 257-58 (1979). Although
how best to proceed in performing a search is generally left to the discretion of officers
executing a warrant, possession of a search warrant does not give the executing officers
a license to proceed in whatever manner suits their fancy. Id. The manner in which a
warrant is executed is always subject to judicial review to ensure that it does not traverse
the general Fourth Amendment proscription against unreasonableness. Id. The “when”
and “how” of otherwise legitimate law enforcement actions may always render such actions
unreasonable. Zurcher v. Stanford Daily, 436 U.S. 547, 559-60 (1978); see also HummelJones v. Strope, 25 F.3d 647, 653 (8th Cir. 1994) (holding the defendant police officer’s
search unreasonable, despite the presence of a valid warrant).
The principles of qualified immunity shield an officer from personal liability when an
officer reasonably believes that his or her conduct complies with the law. Pearson v.
Callahan, 555 U.S.223, —,129 S. Ct. 808, 823 (2009). To overcome a defendant’s claim
of qualified immunity, a plaintiff must show that: “(1) the facts, viewed in the light most
favorable to the plaintiff[s], demonstrate the deprivation of a constitutional . . . right; and
(2) the right was clearly established at the time of the deprivation.” Baribeau v. City of
Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010) (quoting Howard v. Kansas City Police
Dep't, 570 F.3d 984, 988 (8th Cir. 2009)); Wilson v. Lawrence County, 260 F.3d 946, 951
(8th Cir. 2001). The qualified immunity defense is not available in an action to enjoin future
conduct or in an action against a municipality. County of Sacramento v. Lewis, 523 U.S.
833, 842 n.5 (1998).

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“Whether a given set of facts entitles the official to summary judgment on qualified
immunity grounds is a question of law,” however, and “if there is a genuine dispute
concerning predicate facts material to the qualified immunity issue, there can be no
summary judgment.”

Turney v. Waterbury, 375 F.3d 756, 759-760 (8th Cir. 2004)

(quotations omitted); see Iqbal, 129 S. Ct. at 1947 (noting that “determining whether there
is a genuine issue of material fact at summary judgment is a question of law, but it is a
legal question that sits near the law-fact divide”). A successful claim of qualified immunity
will generally “present ‘purely legal’ issues capable of resolution ‘with reference only to
undisputed facts.’” Ortiz, 131 S. Ct. at 892 (noting that “[c]ases fitting that bill typically
involve contests not about what occurred, or why an action was taken or omitted, but
disputes about the substance and clarity of pre-existing law”); see, e.g., Behrens v.
Pelletier, 516 U.S. 299, 313 (1996) (stating that “typically, the issue is whether the federal
right allegedly infringed was clearly established”); Johnson v. Jones, 515 U.S. 304, 313-18
(reaffirming that summary judgment determinations are appealable when they resolve a
dispute concerning an “abstract issu[e] of law” relating to qualified immunity, not when the
record raises genuine issues of fact); Pearson, 129 S. Ct. at 819 (noting that the qualified
immunity procedure is of little use in fact-bound cases).
Even if a defendant frames an issue in terms of qualified immunity, the court should
determine whether he is simply arguing that the plaintiff offered insufficient evidence to
create a material issue of fact. White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008). The
party asserting immunity always has the burden to establish the relevant predicate facts,
and at the summary judgment stage, the nonmoving party is given the benefit of all
reasonable inferences. Id. If there is a genuine dispute concerning predicate facts
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material to the qualified immunity issue, the defendant is not entitled to summary judgment.
Id.
An officer relying on a warrant that is “‘so facially deficient––i.e., in failing to
particularize the place to be searched or the things to be seized—that the executing
officers cannot reasonably presume it to be valid” is not entitled to qualified immunity.
Groh, 540 U.S. at 565 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). “Given
that the particularity requirement is set forth in the text of the Constitution, no reasonable
officer could believe that a warrant that plainly did not comply with that requirement was
valid.” Groh, 540 U.S. at 563-64. An officer who prepares an invalid warrant may not
argue that he reasonably relied on the issuing judge’s finding that the warrant contained
an adequate description of the things to be seized and was therefore valid. Id. at 564, 565
n.8 (noting that the same standard of objective reasonableness applied in Leon, 468 U.S.
at 923, with respect to the “good faith” exception to the exclusionary rule in a criminal case,
defines the qualified immunity accorded an officer); see also Malley v. Briggs, 475 U.S.
335, 346 n.9 (noting that if a request for a warrant is outside the range of professional
competence expected of an officer, “[t]he officer cannot excuse his own default by pointing
to the greater incompetence of the magistrate.”).
“Respondeat superior or vicarious liability will not attach under § 1983.” City of
Canton v. Harris, 489 U.S. 378, 385 (1989). A municipality may be held liable under
§ 1983 for a rights violation when either the municipality had an unlawful policy or practice
that caused the rights violation, or a municipal “policymaker” directly caused the rights
violation. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986); Yellow Horse v.
Pennington County, 225 F.3d 923, 928 (8th Cir. 2000). A municipality can be held “liable
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under 42 U.S.C. § 1983 for constitutional violations resulting from its failure to train
municipal employees.” City of Canton, 489 U.S. at 380; Turney, 375 F.3d at 762 (noting
that “failure to properly train employees is one way in which an entity can exhibit deliberate
indifference toward the rights of others.”).
B. Analysis
1. The Warrant
The court first finds that the warrant is plainly invalid on its face. Like the warrant
at issue in Groh, this warrant did not simply omit a few items from a list of many to be
seized, or misdescribe a few of several items; rather, in the space set aside for a
description of the items to be seized, the warrant referred to the address of the place to be
searched. Although it contains the language that it was “based upon the sworn affidavit,”
it does not contain any indication that the affidavit was attached to the warrant and
presented to the judge. Without such express indication, it is at least theoretically possible
that the issuing judge agreed that the scope of the search should be as broad as the
affiant’s request. See Groh, 540 U.S. at 560-61 (noting, in an application seeking authority
to search for weapons, “conceivably, the Magistrate might have believed that some of the
weapons mentioned in the affidavit could have been lawfully possessed and therefore
should not be seized”). Further, there are disputed issues of fact with respect to whether
the warrant and affidavit were presented to the plaintiffs during the search, so as to inform
the plaintiffs of the limits of the officers’ power to search. The McCurrys testified they were
not shown either the warrant or the affidavit. The evidence shows there is a genuine issue
of material fact with respect to the reasonableness of the search, notwithstanding the
invalidity of the warrant.

The validity of the warrant is a factor to consider in the

reasonableness analysis.
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The court finds that defendant Swanson is not entitled to qualified immunity. There
are disputed issues of material fact on the issue of whether it was objectively reasonable
for the other officers to rely on the warrant as well as whether the conduct of the officers
in effecting the search was reasonable. Accordingly, the defendants’ motion for summary
judgment on the basis of qualified immunity will be denied.
2. Municipal Liability
The plaintiffs have not presented any evidence to counter the defendants’ evidence
that Officer Swanson’s fatal omission of the targeted property in the warrant was not an act
taken pursuant to a custom or policy of the city. No named defendants have been shown
to be policymakers of the City. Accordingly, the defendants’ motion for summary judgment
will be granted with respect to defendant City of Omaha.
THEREFORE, IT IS ORDERED:
1. The plaintiffs’ motion for partial summary judgment on the issue of the validity
of the warrant (Filing No. 63) is granted.
2. The defendants’ motion for summary judgment (Filing No. 66) is granted with
respect to defendant City of Omaha and denied in all other respects.
3. The plaintiffs’ claims against the City of Omaha are hereby dismissed.
DATED this 31st day of August, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge
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