Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rochell v. City of Springdale

United States District Court, W.D. Arkansas, Fayetteville Division

October 25, 2017

JOHNNIE ROCHELL, JR. PLAINTIFF
v.
CITY OF SPRINGDALE, ARKANSAS and DETECTIVE CODY ROSS DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS, UNITED STATES DISRICT JUDGE.

         Currently before the Court are Defendants City of Springdale, Arkansas' ("Springdale") and Detective Cody Ross's[1] 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.

         I. BACKGROUND

         On 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.[2] 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.

         At some 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.

         Detective 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.

         The two 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.

         Mr. 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).

         Mr. 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." Id.

         After 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).

         Once 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.

         Mr. 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.

         What 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).

         Soon 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.

         Ms. 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.

         After 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.

         When 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.

         After 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.

         The day 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.

         Detective 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." Id.

         Armed 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.