United States District Court, W.D. Arkansas, Fayetteville Division
JOHNNIE ROCHELL, JR. PLAINTIFF
CITY OF SPRINGDALE, ARKANSAS and DETECTIVE CODY ROSS DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISRICT JUDGE.
before the Court are Defendants City of Springdale,
Arkansas' ("Springdale") and Detective Cody
Ross's Motion for Summary Judgment (Doc. 51) and
Brief in Support (Doc. 52), Plaintiff Johnnie Rochell,
Jr.'s Response in Opposition (Doc. 59), and
Defendants' Reply (Doc. 65). For the reasons given below,
the Motion is MOOT IN PART, GRANTED IN PART, AND
DENIED IN PART.
February 19, 2016, Detective Ross and several other police
officers were surveilling a house near Mr. Rochell's
residence in Springdale, Arkansas. Detective Ross was parked
in a red, unmarked pickup truck against the curb, directly in
front of Mr. Rochell's house. Detective Ross was not in
uniform even though he was on duty. He was wearing jeans and
a short-sleeved shirt, and he sported a beard. While sitting in
the truck, Detective Ross would periodically look through
binoculars at the house he was surveilling, and then report
what he observed to other officers who were in the vicinity,
either over the radio or over a cell phone.
point, Mr. Rochell and his son arrived home and pulled into
their driveway. Mr. Rochell immediately observed Detective
Ross's truck parked in front of his house. He watched the
truck for a short while. Then Mr. Rochell's son went
across the street to a neighbor's house, and Mr. Rochell
attempted to get Detective Ross's attention by waiving at
him and trying to get him to roll down his window. Detective
Ross testified that at that time, he was the only officer who
had eyes on the house that was being surveilled, so he did
not feel he could get out of his car to speak with Mr.
Rochell. Again Mr. Rochell tried to get Detective Ross's
attention by motioning him to roll down his car window, but
Detective Ross, who was on his cell phone at the time, did
not roll down his window, and instead held up his finger to
Mr. Rochell, in an attempt to tell him to "hold on just
a minute." (Doc. 53-7, p. 5). According to Mr. Rochell,
Detective Ross then made another phone call, looked up, and
"put his one finger up again." (Doc. 53-1, p. 5).
Detective Ross also motioned for Mr. Rochell to come over to
him, but Mr. Rochell shook his head "and said no, "
and then went inside his house. Id.
Ross had the sense that Mr. Rochell was becoming concerned
about his presence, so Detective Ross contacted Detective
John Mackey, who was also in the vicinity, with the intent of
asking him to call police dispatch and warn them that they
might soon receive a call from a concerned citizen (Mr.
Rochell). According to Detective Ross, he had just gotten on
the phone with Detective Mackey, and had started to say,
"Will you call dispatch-" when he noticed Mr.
Rochell walking toward the truck with an AR-15 rifle slung
around his body. (Doc. 53-7, p. 6). Detective Ross does not
recall whether the barrel of Mr. Rochell's rifle was
pointed up or down, but he does confirm that the gun was
resting on Mr. Rochell's back, "[s]uch that he would
have to actually put his head through the sling" to take
it off. Id. at 22. Mr. Rochell confirms that he
"put [the strap of the rifle] over [his] head where the
gun was on [his] back, the barrel.. . pointed down to [his]
right side, the stock . . . pointed up towards his [left]
shoulder." (Doc. 53-1, p. 6). Detective Ross also
testified that Mr. Rochell never ran toward the truck or
pointed the weapon at him. (Doc. 53-7, p. 23). More to the
point, Detective Ross was asked during his deposition whether
Mr. Rochell's hands ever touched his rifle
during the entire encounter, and Detective Ross replied,
"No, not that I recall." Id. at 22-23.
men dispute exactly when Detective Ross identified himself as
a police officer. Detective Ross maintains that he had
already pulled his badge from underneath his shirt and placed
it on his chest before Mr. Rochell exited his house
with his rifle. Detective Ross did so "thinking that if
[Mr. Rochell] did come out on the porch again, he might see
[him]-he might see [his] badge and then not really be
concerned about it or at least relieve his concerns a little
bit." Id. at 6. In Detective Ross's version
of events, he had already placed the badge, which was on a
chain, outside his clothing, resting on his chest, when he
spotted Mr. Rochell walking through his front lawn, toward
the pickup truck, with the rifle slung across his back. When
Mr. Rochell was about eight to twelve feet from the truck,
Detective Ross claims that he exited the truck, drew his
service weapon, and began shouting, "Police, drop the
weapon!" Id. at 7. Detective Ross admits he
shouted this even though Mr. Rochell was not "actually
holding the weapon." Id. at 26.
Rochell's version of events is different. He claims that
after he emerged from his house with his rifle on his back
and began walking to the truck, Detective Ross suddenly
jumped out holding a pistol and screaming, "Drop the
fucking gun or I'll blow your fucking brains out! Drop
the gun or I'm going to fucking kill you!" (Doc.
53-1, p. 6). Mr. Rochell avers that he put up his hands
immediately, palms facing outward, even though Detective Ross
did not identify himself as a police officer or display his
badge. Mr. Rochell maintains that he had no idea who this man
pointing a gun at him was and assumed that he might be
"on drugs" or "selling drugs in front of [the]
house." Id. Mr. Rochell also testified that
when Detective Ross yelled at him to "drop the gun"
and threatened to shoot him, Mr. Rochell did not drop the gun
initially because he had no idea Detective Ross was a police
officer. In Mr. Rochell's mind, there was no reason for
him to drop the gun at that point because he "didn't
do anything [wrong]" since "this is an open carry
state, " and he was "well within [his] rights to
come out of [his] house with [his] firearm whenever [he]
[felt] like it." Id. at 6-7. But from
Detective's Ross's perspective, he was "in fear
for his life" and "scared" when he saw Mr.
Rochell approach. Detective Ross agrees that when he first
commanded Mr. Rochell to drop the weapon, Mr. Rochell
"froze and stood there, not being uncooperative by any
means, " but not dropping the weapon. (Doc. 53-7, p. 8).
Rochell testified that Detective Ross eventually pulled his
badge from under his shirt. At that point, Mr. Rochell
realized that Detective Ross was a police officer, and he
immediately complied with the command to drop his weapon. Mr.
Rochell grabbed the strap that held the weapon with his left
hand, pulled the strap over his head, passed the weapon to
his right hand, and set it on the ground, holding both his
hands in front of him. Detective Ross's account of how
Mr. Rochell removed his weapon matches Mr. Rochell's.
See Id. at 27. In particular, Detective Ross
observed that the way Mr. Rochell lifted the weapon over his
head and placed it on the ground was "very slow and
very correct-I mean he did it the correct way."
he placed his weapon on the ground, Mr. Rochell "took a
step to [his] left over away from the weapon." (Doc.
53-1, p. 7). Detective John Brashear, who arrived at the
scene around that same time, confirmed that he saw Mr.
Rochell's rifle "approximately three feet on the
ground from where Mr. Rochell was standing." (Doc.
53-10, p. 2). The rifle "ended up laying near a tree
.... or even on the landscaping at the base of the tree,
" according to Detective Ross's testimony. (Doc.
53-7, p. 27).
Mr. Rochell placed his weapon on the ground and took a step
away from it, he believes Detective Ross grew even more
agitated than he had been before, yelling, "I'll
fucking blow your brains out, get on the ground! I'll
fucking kill you, get on the ground!" (Doc. 53-1, p. 7).
Mr. Rochell testified that he started turning around in order
to get to the ground, but was doing it very slowly, "not
trying to get shot or anything like that." Id.
Detective Ross advanced on Mr. Rochell and shoved him to the
ground. Id. at 8. Detective Brashear confirms that
when he arrived at the scene, he observed Detective Ross
giving Mr. Rochell loud, verbal commands to get on the
ground, and that at first, Mr. Rochell "was just
standing there, " (Doc. 53-10, p. 2), but that
eventually he saw Detective Ross "grabbing [Mr. Rochell]
and putting him on the ground, " id., and doing
so "forcefully, " id. at 4.
Rochell alleges that once he was on the ground, with his
hands behind his back and his rifle laying several feet away
from him, Detective Ross "took his [own] gun"-a
Glock 9-millimeter pistol-"and he pressed it behind [Mr.
Rochell's] right ear, " saying, "I'll blow
your fucking brains out if you ever approach me like that
again." (Doc. 53-1, p. 7). Mr. Rochell believed that,
for some reason, Detective Ross seemed "more irate and
just hyped up" after Mr. Rochell was on the ground than
before, "which didn't make sense" to Mr.
Rochell. Id. at 11. For his part, Detective Ross
does not recall what he said to Mr. Rochell once he was on
the ground. He only remembers "screaming at [Mr.
Rochell]; [and] he was screaming at me." (Doc. 53-7, p.
29). Detective Ross admits that he pointed his gun at Mr.
Rochell "when he was on the ground, " at
"[a]lmost point blank" range, id., and
that it was "[v]ery likely" that he placed the
barrel of his pistol against Mr. Rochell, id. at 30.
He also neither admits nor denies Mr. Rochell's claim
that he threatened to "blow his fucking head off"
after Mr. Rochell was on the ground with his hands behind his
back and weaponless. See id.
happened next is that Detective Ross decided to handcuff Mr.
Rochell. The handcuffs were still in the truck, so Detective
Ross asked Detective Brashear to stay with Mr. Rochell while
he retrieved the cuffs. Detective Brashear did so, holding
both of Mr. Rochell's hands. Detective Brashear testified
that Mr. Rochell "wasn't being combative or anything
at that point." (Doc. 53-10). Detective Ross holstered
his weapon and returned with the handcuffs. He secured them
over Mr. Rochell's wrists and asked him his name. Mr.
Rochell identified himself as "Johnnie Rochell L."
(Doc. 53-1, p. 13).
other officers arrived at the scene, and Mr. Rochell was
placed in the back of a police vehicle. Police then attempted
to confirm Mr. Rochell's identity and determine if he had
a criminal record. Detective Robert Thorson, who had been
part of the team of investigators surveilling the house on
Mr. Rochell's street, arrived at around the time
Detective Ross was handcuffing Mr. Rochell. Detective Thorson
called Springdale police dispatcher Stacy Elliott and asked
her to check the license plate of the car parked in Mr.
Rochell's driveway. The vehicle was registered to a
woman, so that information did not assist in the
identification process. Detective Thorson next asked Ms.
Elliott to check the history of the address for any males who
matched Mr. Rochell's physical description, a Black male
in his mid-30s. (Doc. 53-8, p. 7). After checking, Ms.
Elliott confirmed that a person matching that description
named Johnnie Rochell was listed as a resident of that
address. Detective Thorson then asked Ms. Elliott to run Mr.
Rochell's name and date of birth through the ACIC
(Arkansas Crime Information Center) and NCIC (National Crime
Information Center) databases to see if he had any warrant
history or other criminal history. Id.
Elliott's ACIC search returned a two-page report, which
the Court has received as part of the summary judgment
record. (Doc. 54-2). Significantly, the top of the first page
of the report identifies a White male named Johnny
Wayne Russell, Jr., born October 27, 1977; and the next entry
on the same page identifies a Black male named
Johnnie Rochell, Jr., with the same date of birth. The face
of the report therefore identifies two different
individuals with the same birthdate, not a single
individual with an alias. The report includes only Mr.
Rochell's photograph and lists only his past criminal
offenses: two traffic-related misdemeanor offenses from 2009.
See Doc. 54-2.
viewing the ACIC report, Ms. Elliott reported to Detective
Thorson over the radio that Mr. Rochell had no outstanding
warrants, but that he did have State Identification
("SID") and Federal Bureau of Investigation
("FBI") "numbers." Detective Thorson
asked her to run Mr. Rochell's "numbers" to see
if he was a felon. Ms. Elliott testified that when a database
search returns the name of a person with the same birthdate
as the person being searched, police call this a "false
hit." (Doc. 53-12, p. 4). When Ms. Elliott got a
"false hit" on Johnny Wayne Russell, Jr., she
unfortunately used his "numbers" to search for
felonies. As a result, she falsely reported to Detective
Thorson that Mr. Rochell had two felony-arson convictions out
of Mississippi County, Arkansas, and McDonald County,
Missouri. In actuality, those felony convictions were Mr.
Russell's, not Mr. Rochell's. Still, the error had
been unwittingly made, and Detective Thorson, having received
confirmation of the felony record from dispatch, relayed this
information to Detective Ross, who next placed Mr. Rochell
under arrest for being a felon in possession of a firearm.
Mr. Rochell was told why he was being placed under arrest, he
immediately denied that he was a felon. He claims he
"started laughing" and said, "Man, I don't
have any felonies." (Doc. 53-1, p. 14). Mr. Rochell also
claims that he was told by police that his alias was
"Johnny Russell, " and he adamantly denied this,
too. Id. at 15.
Mr. Rochell was arrested, he was taken to the Springdale
Police Department. There, Detective Ross spoke with Mr.
Rochell about "his" felony-arson convictions in
Arkansas and Missouri, and Mr. Rochell once again denied he
was a felon. Detective Ross stepped into the area where Mr.
Rochell was waiting to be booked and processed, and he spoke
to Mr. Rochell about the details of the felony convictions,
all the while holding the ACIC report that contained the
"false hit" on Johnny Wayne Russell, Jr., a White
male. Detective Ross admitted in his deposition: "I have
never in my career ran an ACIC printout myself.... So I
don't have a great understanding of it. . . ." (Doc.
53-7, p. 37). And although Detective Ross "may have even
showed [Mr. Rochell] the ACIC report that showed the
conviction, " id. at 11-12, Mr. Rochell
remained "very adamant that [the report] was not true,
" id. at 12. Detective Ross performed no
further inquiries or investigations at that time and instead
wrote up a report on the day's events. He did so even
though he felt "there may have been some validity"
to Mr. Rochell's denial that he had a felony record,
given "the way [Mr. Rochell] was saying it."
Id. Regardless of his qualms, Detective Ross
arranged for Mr. Rochell to be transferred to the Washington
County Detention Center ("WCDC"), where he was
jailed on the charge of being a felon in possession. He spent
the night in jail and was released on bond sometime later.
of the arrest was Friday, February 19, 2016. The following
Monday, February 22, 2016, Detective Ross came to work
concerned that perhaps he had made a mistake after all in Mr.
Rochell's case. He decided to do some investigating. He
began by approaching FBI Task Force officer Robert Hendrix
and confessing his fears. He told Detective Hendrix that Mr.
Rochell "may have a point and there's an identity
issue somewhere in here, " and that he "just
want[ed] to make sure we did the right thing."
Id. at 14. According to Detective Ross, Detective
Hendrix helped him out by giving him "some pointers ...
on websites to look at and databases to look into" to
confirm his suspicions. Id. at 15. After some
digging, Detective Ross realized that "[f]or some odd
reason, when you run Mr. Rochell, this white male named
Johnny Russell shows up." Id. at 17. Mr.
Rochell's criminal record only contained "some
misdemeanor charges"; whereas Mr. Russell's record
contained felony-arson convictions. Id.
Ross then "started looking at the criminal charge out of
McDonald County[, Missouri]" that pertained to Johnny
Russell, and he decided to call the sheriff's office
there to inquire further. Id. He spoke by telephone
to a McDonald County sheriff's officer and asked him to
fax Mr. Russell's booking photo. Once the photo was
faxed, Detective Ross examined it and determined the quality
was too poor to be of any value. Detective Ross decided,
"There's something wrong here and we need to figure
it out, " so he and another officer "just g[ot] in
the car and dr[ove] to McDonald County and . . . look[ed] at
the booking photo ourself [sic]." Id. at 18.
Sure enough, when the officers viewed Johnny Russell's
booking sheet, "it [was] obviously not Mr. Rochell. It
[was] a white male holding a board that says Johnny Wayne
Russell, same date of birth as Mr. Rochell."
with the knowledge that he had arrested Mr. Rochell for a
crime he did not commit, Detective Ross returned to the
Springdale Police Department and called the city prosecutor
to explain that the felon-in-possession charge against Mr.
Rochell should be dropped. He next called Mr. Rochell and
told him he "did some digging" and "went
around to other agencies" and had confirmed that the
person who had the felony-arson conviction was "clearly
not you." Id. at 19-20. He then invited ...