Plaintiffs*fn1 filed an amended complaint on September 30, 2004, alleging claims pursuant to 42 U.S.C. §§1981, 1983, 1985(3), and 1986 for violations of their First, Second, Fourth, Fifth, Eighth, and Fourteen Amendments rights. Specifically, they allege a violation of §1983 by the pursuit and execution of a search warrant by Moon, Turner, Curtis, Rick, and Glen without probable cause on the plaintiffs' home on February 5, 2001; a violation of §1983 by the invitation and pursuit of prosecution without probable cause by Moon, Curtis and Turner on February 12,15, and 17 of 2001; a violation of §1983 by the intentional deprivation of right to reasonable bail, due process and equal protection of law by Moon and Curtis on February 12, 2001; a violation of §1983 by the unlawful seizure, detention and search of Moses by Rick and Glen when he was stopped on June 21, 2001; a violation of §1983 by the deprivation of liberty, unreasonable search and seizure by Rick and Glen on August 1, 2001; a §1983 violation by Moon failing to supervise, train, and discipline his officers; a §1983 violation of municipal liability; and §§1981, 1983, and 1985(3) conspiracy to violate civil rights. Plaintiffs seeks both compensatory and punitive damages.
On October 7, 2005, the Des Arc defendants -- the City, Moon, Turner, Curtis, and Rick -- filed a motion for summary judgment supported by brief,*fn2 exhibits*fn3 and a separate statement of undisputed facts. They state that plaintiffs claim specifically that their rights were violated when their residence was searched -- pursuant to a warrant -- on or about February 5, 2001; they were arrested on or about February 17, 2001 as a result of the evidence found during the search; a traffic stop involving a car in which Moses was driving on or about June 21, 2001 was initiated, the car searched and Moses cited for a traffic violation; and Moses was arrested on or about August 1, 2001 for disorderly conduct and obstruction of justice.
They argue that they did not violate Moses' First Amendment rights in retaliation for his criticism of Mack when Moses was arrested on August 1, 2001 as his conduct in inserting himself into a traffic stop and using profane language with a wrecker driver who had been requested by a county law enforcement official to tow away a vehicle driven by a man arrested of driving while intoxicated does not rise to the level of protected speech as threats of violence do not fall within the realm of protected speech. The Des Arc defendants continue that even if Moses could demonstrate a violation of his First Amendment rights, the same decision to pursue charges would have occurred in the absence of the allegedly illicit motive as Moses attempted to hinder or impair the completion of the towing process order by the County deputy and so Rick had probable cause to arrest Moses.
On the alleged constitutional violations of interference with the plaintiffs' marital relationship, these defendants assert that there is absolutely no evidence that their conduct has "significantly discouraged" plaintiffs' marriage, made it "practically impossible," or acted with the "goal of poisoning" it and there is no evidence that these defendants directed their statements and conduct at plaintiffs' intimate relationship.
Turning to the Second Amendment claim, these defendants argue that plaintiffs have not alleged or otherwise demonstrated that their possession of firearms is reasonably related to a well-regulated militia.
The Des Arc defendants assert that the February 5, 2001 search of plaintiffs' residence was pursuant to a search warrant supported by affidavits presumed to be valid and issued by a municipal judge who was satisfied that there was probable cause and plaintiffs have offered no proof -- beyond their bare assertions -- that Turner made any statements which were deliberately false or in reckless disregard of the truth. Likewise, they argue that the February 17, 2001 arrest of plaintiffs was made pursuant to a warrant which generally does not give rise to a cause of action against the arresting officer.
Regarding the June 21, 2001 traffic stop, they state that Rick initiated the traffic stop because Moses was driving a vehicle without a license plate which was a violation of state law, Rick then asked for a copy of the bill of sale to determine whether the deadline for registering the car had passed, and when Moses could not present a bill of sale, Rick issued him a citation for operating a vehicle which was not properly registered. Moreover, they assert that as Moses did not own the car he was driving, he had no legitimate expectation of privacy in the vehicle and lacks standing to assert claims for a search of the car.
As for as the August 1, 2001 arrest, they state that Prairie County Deputy Alan Roberson had initiated a traffic stop of a driver suspected of driving while intoxicated ("DWI"); Roberson asked Rick to bring a portable breath test to the scene as Roberson did not have one; Roberson ordered that the car be towed after determining that the driver should be arrested for DWI and asked Rick to stay with the vehicle to ensure that it was towed away; plaintiffs arrived at the scene during the stop and Moses asked if he could take home the car -- which apparently belonged to them -- which was being towed; when Rick told them that he did not have anything to do with the tow, plaintiffs asked why the driver had been arrested, approached Mack -- the tow truck driver, and Moses called Mack a "motherfucker" when Mack would not agree to release the car from the wrecker so Moses impaired or hindered the governmental function of having the car towed and also engaged in disorderly conduct.
The Des Arc defendants next address the plaintiffs' Fourteenth Amendment procedural due process claims concerning the motor vehicle stops of June 21 and August 1 and the seizure of their firearms on February 5. They argue that Moses was afforded due process as citations were issued on both dates upon probable cause, Moses was then afforded a trial with assistance of counsel and the opportunity to confront all witnesses, and the charges against him were dismissed. These defendants continue that the claim based upon the confiscation of the firearms for evidence as the plaintiffs have failed to allege -- much less demonstrate -- that they exhausted available state remedies in seeking the return of their guns as Moses has admitted that he made no attempt to retrieve his firearms from the Des Arc Police Department and Moon testified that plaintiffs could obtain the firearms at their convenience.
As to substantive due process, the Des Arc defendants argue that their conduct does not rise to the level of a substantive due process violation and plaintiffs have not offered any evidence to show that their conduct was individuously discriminatory or that plaintiffs have been treated any differently from other similarly-situated individuals who are suspected of possessing marijuana, driving vehicles without proper registration, or interfering with the investigation of a DWI stop.
Turning to the equal protection claims, these defendants again argue that plaintiffs have not offered any evidence to show that their conduct was individuously discriminatory or that plaintiffs have been treated any differently from other similarly-situated individuals who are suspected of possessing marijuana, driving vehicles without proper registration, or interfering with the investigation of a DWI stop. They counter that the evidence confirms that plaintiffs were treated as anyone else would have been in similar circumstances as arrest warrants are typically sought when the charge is based on evidence found during a search conducted pursuant to a warrant, the Des Arc police officers do not consider race in issuing traffic or other citations, and plaintiffs simply cannot prove that couples involved in same-race marriages are treated more favorably when it comes to executing search warrants, initiating traffic stops, issuing citations or effecting arrests.
Moon contends that the claim for his alleged failure to train and supervise fails given the absence of any underlying violation of constitutional rights and that plaintiffs must prove that Moon had notice of prior misbehavior and that his failure to act upon such knowledge caused the injuries in question. He asserts that he had no notice or knowledge of similar misconduct by Turner, Rick and Curtis and that those officers were all certified law enforcement officers who had received hundreds of hours of training in law enforcement.
The Des Arc defendants maintain that there is nothing to demonstrate an agreement among the individual defendants to support the §1985 conspiracy claim and that the §1986 claim is dependent on a valid §1985 claim.
The individual Des Arc defendants argue that they are entitled to qualified immunity in their individual capacities. They assert that probable cause existed for the search of plaintiffs' residence, their subsequent arrest arising therefrom, the traffic stop involving Moses, and the arrest of Moses for disorderly conduct and obstruction of justice. They also argue that a reasonable police officer would not know that it would violate constitutional rights to search a residence pursuant to a search warrant, confiscating controlled substances from individuals not authorized to possess same, confiscating firearms from persons who have been convicted of a felony, arresting an individual pursuant to an arrest warrant, initiating a traffic stop of a car which does not have license plates, issuing a citation to a driver operating a vehicle with no license plates and no bill of sale establishing the date of the vehicle purchase, bringing a canine to the scene of a traffic stop where the officer smells marijuana, searching the vehicle after the canine indicates the presence of illicit drugs, and arresting a person for disorderly conduct and obstruction of governmental operations after said individual shows up at a traffic stop of a third party and uses profanity with the wrecker driver who has been ordered to tow away the vehicle driven by a person arrested for driving while intoxicated.
The Des Arc defendants continue that as plaintiffs have not demonstrated any constitutional violations, there can be no federal constitutional claim against the City of Des Arc; that even if the plaintiffs' constitutional rights were violated, the plaintiffs have failed to show that their injury was the result of an official policy or widespread custom of the City; that the Des Arc Police Department's policies and procedures are promulgated and adopted by the City Council so that Moon, Turner, Rick and Curtis are not "final" policymakers; and the three alleged instances of unconstitutional conduct are insufficient to constitute a pattern of unconstitutional behavior or a policy involving arrests based on interracial marriages.
Glen and Mayher filed a motion to adopt the Des Arc motion on October 11th as well as their own motion for summary judgment filed on October 18th supported by brief, exhibits and a separate statement of undisputed facts. They state that they are being sued arising out of the search conducted on the plaintiffs' house on February 2, 2001, that was instituted by various officers of the City of Des Arc Police Department based on search warrants obtain by that department and that the Des Arc police officers drove by the Prairie County Sheriff's Office on the way to the plaintiffs' residence and requested assistance from Glen and Mayher who were employed there. Glen and Mayher assert that they had no prior knowledge of the arrest warrants and took a very limited role in the search so any acts or omissions committed by the Des Arc police department cannot be attributed to them for purposes of imputing individual liability and there is no showing of a custom or policy that these defendants were following for official capacity liability. They contend that they provided security for the officers conducting the search; they assisted -- at Curtis's request -- in moving a heavy sofa for Curtis to search behind it and Mayher looked on the inside lining of the sofa; Mayher never entered the bedroom area and Glen looked under the bed and retrieved a box which contained the remains of Lisa's mother; they remained mostly in the living room area; they were not involved in the arrests of plaintiffs subsequent to the search and they were not involved in the seizure of the firearms or marijuana which were seized from the plaintiffs' home; they left the residence at approximately 9:57 p.m. to assist a Prairie County Deputy in a traffic stop on Interstate 40; the Des Arc officers were still engaged in the search when they left; and neither of them ever returned to plaintiffs' residence since.
Glen and Mayher argue that they are entitled to qualified immunity as they had no role in obtaining the search warrant, they went along as "back-up" to provide security with the Des Arc officers who obtained and were executing the warrant; they had no individual role in the search of the individuals or residence and no individual role in the subsequent arrest, detention or the prosecutorial process; and they simply went along to the residence for a period slightly in excess of one hour during which time they essentially "stood there." They continue that they complied with all aspects of Arkansas Criminal Procedure Rule 13.1 for execution of a search warrant; plaintiffs cannot submit facts which show that they violated any of plaintiffs' constitutional rights; that based on their objective knowledge of the situation at the time, they could not have known that any of their subsequent conduct considered unlawful as they were simply assisting another law enforcement agency in the service of the execution of a presumably valid search warrant. These defendants also assert that generally when an individual defendants is found not to have committed a constitutional violation, then there is no official capacity liable either and that there is no showing that the Sheriff's office through these defendants engaged in or followed a custom or policy set up to deprive plaintiffs of their constitutional rights.
On October 18th, plaintiffs filed a response to the Des Arc defendants' motion as well as the motion to adopt along with a brief, and a controverting statement. They first start with the argument regarding the August 1, 2001 incident that these defendants overlook that the traffic stop was over, the ticket was written, and the person accused of a crime was on his way to the county jail in a separate police car operated by Robinson when Rick arrested Moses. Rick directed Moses to talk to Roberson about retrieving plaintiffs' car and Roberson has admitted that Moses did not interfere with Roberson or his prisoner in any way, Roberson directed Moses to Mack who denied his request although Moses clearly had a right to take possession of the car under Ark. Code Ann. §27-50-1202(B)(5), and so his arrest is evidence that defendants conspired to violate his civil rights. Plaintiffs continue that Rick's explanation that he arrested Moses for using profanity is an admission that Rick violated Moses' First Amendment right as it was the word itself and not the context that caused the arrest and there is a question whether Moses committed the offense of disorderly conduct as it depends on the purpose Moses had in his mind. Moses has testified that his purpose was to take his car home and pay Mack for any money that was owed for Mack's service which was justified under state law while the conduct of Rick and Mack in refusing to release the car was not and since they have not given a reason why they did not comply with state law, summary judgment in inappropriate.
Plaintiffs next turn to the February 5, 2001 search. They argue the extensive Arkansas discussion of what is required of warrants authorizing nighttime searches and how defendants' argument of qualified immunity based on a facially valid warrant ignores Arkansas law that a reasonable police officer knows or should know not to request or execute a nighttime search warrant without setting out a clear factual basis for that extraordinary relief. Plaintiffs contend that no objective facts demonstrating an exigent circumstance were stated in the affidavit for the search warrant as required by state law only that the officers' sworn statement that a confidential informant told Turner that the CI had observed a "large quantity of marijuana, drug paraphernalia, and other instruments of crime used for the sale and consumption of illegal contraband" in the plaintiffs' home on February 5, 2001, and Turner's sworn conclusion that he felt like it was an emergency to get the evidence that night.
Regarding the February 17, 2001 arrest of Moses, plaintiffs assert that liability for executing the felony arrest warrant for Moses depends on whether a reasonably well-trained officer would have known the arrest was illegal despite the magistrate's authorization. They state that the officers knew the felony warrant was based on the officers' representation that Moses was a convicted felon in possession of a firearm and was in constructive possession of less than one gram of marijuana, that Moses had no ACIC record of being convicted of a felony, and that he had never received any fine or imprisonment on any felony offense. Plaintiffs continue that Moon supervised the drafting of the arrest affidavit and the execution of the warrant and is liable as a supervisor ...