West v. Bd. of Cnty. Comm'rs of the Cnty. of Cherokee

467 F.Supp.3d 1128

Milton Maxwell WEST, et al., Plaintiffs,

v.BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF CHEROKEE, et al., Defendants.

No. CIV-19-0004-JH

United States District Court, E.D. Oklahoma.

Signed June 18, 2020

Nick Larby, Larby & Associates, Tulsa, OK, Brad L. Roberson, Lauren N. Watson, Paul M. Kolker, R. Thompson Cooper, Roberson Kolker Cooper & Goeres, PC, Edmond, OK, for Plaintiffs.

Jamison C. Whitson, Stephen L. Geries, Taylor M. Riley, Collins Zorn & Wagner, PC, Oklahoma City, OK, for Defendants.

ORDER

JOE HEATON, UNITED STATES DISTRICT JUDGE

In this case, plaintiffs Milton and Lisa West assert claims pursuant to 42 U.S.C. § 1983 for violations of their Second, Fourth, and Fourteenth Amendment rights. They also assert various state law claims. Defendants are Cherokee County, Oklahoma,¹ and defendants Grant, Bowling, Cluck and Novak, who are deputies with the Cherokee County Sheriff's office.

Factual Background

The claims arise out of an incident on April 7, 2017. Plaintiffs' contention is that there was a trespasser on their property in rural Cherokee County and that the trespasser began shooting at Mr. West. It is undisputed that Mrs. West called 911 with a report of gunshots outside her home, that her husband was armed and outside, and requested assistance. Deputies Grant, Bowling, Cluck and Novak were dispatched to the property.

When the deputies arrived, Mr. West was outside the West home, with a .45 caliber handgun, in the hot tub. The deputies were advised by dispatch that Mr. West had taken cover there because he was being shot at. They were also advised that Mrs. West had told her husband that the deputies had arrived and were coming up the driveway. The deputies came up the driveway with the emergency lights of their vehicles activated.

It is undisputed that shots were fired in the direction of the deputies as they came toward the house. There is a dispute, however, as to who was doing the shooting. The officers' contention is that, while none of them actually saw Mr. West shoot at them, the shots appeared to be coming from the direction of the hot tub. Mr. West contends he did not shoot at the officers, but that the trespasser did.

The deputies communicated with Mr. West via dispatch and Mrs. West, or with him directly via phone, for 15-20 minutes and eventually persuaded him to leave the hot tub and surrender. The officers then searched the area around the hot tub. They found the handgun with one round chambered and two rounds in the magazine. They located spent shell casings from the .45 on the left side of the hot tub relative to where Mr. West had been sitting. They also conducted a limited search of the surrounding area and found no evidence of a trespasser/shooter.

The deputies took Mr. West into custody based on a charge of assault and battery with a deadly weapon. After a phone discussion between the deputies and Undersheriff Chennault, they decided the best course of action would be to enter the West home and seize any guns found there. Three of the deputies entered the house, secured a weapon that was in plain view, and then searched for and seized a number of other firearms. Defendants contend Mrs. West consented to the entry and seizure. Plaintiffs dispute that.

Mr. West was booked on the assault and battery charge and bonded out. He commenced efforts to have the sheriff's office return his firearms but was advised they could not be returned without permission from the District Attorney's office.

For reasons not clear from the current record, Mr. West was not formally charged with the assault and battery offense until January 19, 2018. In the meantime, another shooting incident occurred at the West property, on April 23, 2017. Mr. West experienced a gunshot wound to his arm, with the parties apparently disputing whether Mr. West was shot by an intruder or shot himself.

Mr. West had further contacts with the authorities via counsel and filed with the County a notice of tort claim under the Oklahoma Governmental Tort Claims Act. The criminal charges against Mr. West were eventually dismissed in July 2018. In August 2018, Mr. West obtained a court order for the return of his guns and they were returned to him in September. In early 2019, this case was filed.

Discussion

Defendants have moved for summary judgment as to all claims. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A genuine dispute as to a material fact exists when the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party." Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quotations and citation omitted). When evaluating a summary judgment motion based on the defense of qualified immunity, the court must "engage in a two-pronged inquiry." Tolan v. Cotton, 572 U.S. 650, 655, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). Taking the facts in the light most favorable to plaintiff, the court must determine whether the defendants' conduct violated a constitutional right. Id. at 655-56, 134 S.Ct. 1861. Also, the court must determine "whether the right in question was clearly established at the time of the violation." Id. at 656, 134 S.Ct. 1861 (quotations and citation omitted). Finally, the Supreme Court has also emphasized in such cases "the importance of drawing inferences in favor of the nonmovant." Id. at 657, 134 S.Ct. 1861.

The complaint does not clearly delineate the specific claims plaintiffs are asserting, but from the parties' submissions they appear to be as set out below.

1. False arrest claim - § 1983.

Mr. West contends the deputies violated his Fourth Amendment rights by arresting him without sufficient justification. He asserts a parallel claim for false arrest under state law, based on the same circumstances.

The Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." However, "[i]f an officer has probable cause to believe that an individual has committed a ... criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). "Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonable trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense." A.M. v. Holmes, 830 F.3d 1123, 1138 (10th Cir. 2016) (quotations and citations omitted). "When assessing whether an officer had probable cause to arrest an individual, courts ‘examine the events leading up to the arrest, and then decide whether these historical facts viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.’ " Id. (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (internal quotations and citation omitted)).

Here, the court concludes the undisputed facts establish that the officers had probable cause to arrest Mr. West for assault and battery with a deadly weapon. The deputies knew that Mr. West was outside his home with a firearm, situated in a hot tub. When they arrived on scene, with emergency lights activated, there were shots fired in their direction from what they thought was the vicinity of the hot tub. Mr. West refused to surrender immediately, which is consistent with him being concerned about being shot at by an intruder but also with the conclusion the officers drew — that he was reluctant to surrender after shooting at them. After detaining Mr. West, the officers located his handgun with a bullet in the chamber and two more remaining in the magazine. Spent shell casings were also found in a location that the deputies believed indicated that Mr. West had been firing in their direction.² The deputies also searched the area where Mr. West reported the unknown intruder had been but found no evidence of anyone present in, or firing a weapon from, that area.³ None of these facts, taken individually or together, prove that Mr. West actually shot at the police officers or that he committed the crime of assault and battery with a deadly weapon. They do, however, at least establish probable cause to believe that Mr. West had committed the offense. As a result, the arrest of Mr. West was not improper under the Fourth Amendment. Defendants' motions will be granted as to the Fourth Amendment arrest claim.⁴

2. Wrongful search claim - § 1983.

Plaintiffs object to the search of their home, contending that the defendants entered without a warrant and without consent. It is undisputed that the officers did not have a warrant.

"With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citations omitted). "Absent consent or exigent circumstances, police may not enter a citizen's residence without a warrant." United States v. Carter, 360 F.3d 1235, 1241 (10th Cir. 2004) (quotations and citation omitted). Defendants contend that they entered the West residence with Mrs. West's consent.

Voluntary consent to a search has two elements: "(1) the law enforcement officers must receive either express or implied consent, and (2) that consent must be freely and voluntarily given." United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012) (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ). Implied consent would exist if Mrs. West "said or did something that permitted the [deputies] to form a reasonable belief that [she] was authorizing them to follow [her] into [her] residence."...