Jenkins v. Wood

• Decision Date: 16 April 1996
• Docket Number: No. 95-3091,95-3091
• Citation: 81 F.3d 988
• Parties: James C. JENKINS and Lula M. Jenkins, Plaintiffs-Appellants, v. Colin WOOD, Rick Sabel, John Does, KBI Strike Force Agents; John Does, City of Topeka Swat Team Law Enforcement Personnel, each in their individual capacities; City of Topeka, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 988

81 F.3d 988

James C. JENKINS and Lula M. Jenkins, Plaintiffs-Appellants, v. Colin WOOD, Rick Sabel, John Does, KBI Strike Force Agents John Does, City of Topeka Swat Team Law Enforcement Personnel, each in their individual capacities; City of Topeka, Defendants-Appellees.

No. 95-3091.

United States Court of Appeals, Tenth Circuit.

April 16, 1996.

On Appeal from the United States District Court for the District of Kansas; Sam A. Crow (D.C. No. 93-CV-4040).

Pantaleon Florez, Jr. of Florez & Frost, P.A., Topeka, Kansas, for Plaintiffs-Appellants.

Betty J. Mick (Carla J. Stovall, Attorney General, John J. Knoll, Assistant Attorney General, and M.J. Willoughby, Assistant Attorney General, with her on the brief), Topeka, Kansas, for Defendants-Appellees Colin Wood and Rick Sabel.

David D. Plinsky, Chief of Litigation, City of Topeka, Topeka, Kansas, for Defendant-Appellee City of Topeka.

Before BRORBY, EBEL and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

This case concerns a search of the home of James C. Jenkins, Sr., and Lula M. Jenkins. Mr. and Mrs. Jenkins sued the defendants pursuant to 42 U.S.C. § 1983, claiming the defendants' participation in the search violated rights secured by the Fourth Amendment to the United States Constitution. The district court granted the defendants-appellees' motion for summary judgment, and Mr. and Mrs. Jenkins appealed. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Standard of Review

We review de novo a grant of summary judgment, applying the same standard used by the district court. Summary judgment is appropriate if the record reveals that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we examine the factual record in the light most favorable to the party opposing summary judgment, extending to that party all reasonable factual inferences. While the movant bears the burden of showing the absence of a genuine issue of material fact, the movant need not negate the nonmovant's claim. If the movant carries this initial burden, the nonmovant may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof. An issue of material fact is genuine if a reasonable jury could return a verdict for the non-movant. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). If there is no genuine issue of material fact in dispute, then we next determine if the district court correctly applied the substantive law.

II. Background

When read in the light most favorable to Mr. and Mrs. Jenkins, the record reveals the following facts.

At all times relevant to this dispute, defendants Rick Sabel and Colin Wood were special agents with the Kansas Bureau of Investigation ("KBI"). In January 1991, through the use of an informant named James Hayes and in cooperation with the City of Topeka Police Department, the KBI was investigating James Jenkins, Jr., for involvement in narcotics. In mid-January, Mr. Hayes informed KBI Agent Ray Lundin, who is no longer a party to this action, that he had contacted James Jenkins, Jr., at what appeared to be an upstairs apartment in a home located at 1261 S.W. Clay in Topeka. Acting on this information, Agent Lundin observed James Jenkins, Jr., descend an external staircase from the second story of the home at 1261 S.W. Clay and conduct a crack cocaine transaction with the informant, Mr. Hayes. (Id.) When questioned in late January 1991 by an officer of the Topeka Police Department, James Jenkins, Jr., gave 1261 S.W. Clay as his residential address.

On February 18, 1991, Mr. Hayes contacted KBI Agents Lundin and Sabel to inform them that James Jenkins, Jr. and two other men kidnapped him at gunpoint and then took him to 1201 Lincoln in Topeka, where they robbed, beat and interrogated him about "snitching." Mr. Hayes was eventually released upon convincing his assailants he worked for James Jenkins, Jr., and was not a snitch. That evening, after treatment at a hospital, Mr. Hayes gave a complete statement to the KBI. Upon consultation with an assistant attorney general assigned to the KBI, Agents Lundin and Sabel decided to obtain search warrants for 1201 Lincoln and what they believed to be an upstairs apartment at 1261 S.W. Clay. On the night of February 18, 1991, based on an affidavit submitted by Agent Lundin, a Kansas district judge signed search warrants for the two residences. The warrant for 1261 S.W. Clay authorized a search of "[t]he upstairs apartment ... the door being on the second floor facing West at the rear of the building." The warrant listed the following items for which the officers could search:

Blood, $275.00 in cash, a small caliber blue semi auto pistol, a single barrel sawed off shot gun, a black cloth trench coat, a blue sweat shirt with pocket on left sleeve and loop in back, and a sports insignia on the left breast, a key with room 161 engraved on it, and items identifying occupants of the premises including mail and utility bills etc.

At about 11:40 p.m. February 18, 1991, officers of the Topeka Police Department assisted KBI agents in executing the search warrant at 1261 S.W. Clay. The search began with a member of the Topeka Police Department throwing a distraction device known as a "flash bang" through the second story entrance. Another Topeka Police officer rammed open the second story door, allowing the search team to enter the home. As the officers entered the home they yelled, "Police search warrant." James Jenkins, Sr. (hereinafter Mr. Jenkins), his wife, Lula Jenkins, and their daughters were the only persons in the house when the officers executed the search warrant. According to Mr. Jenkins' later testimony, James Jenkins, Jr., had not lived in the house for over a year.

As it turned out, there was no upstairs apartment at 1261 S.W. Clay, though the home did have outside stairs that connected to one of three upstairs bedrooms. At the time the Topeka Police officer threw the "flash bang" through the upstairs entrance, Mr. Jenkins was making his way up his home's internal staircase. As he reached the top of the stairs, the explosion knocked him down the stairs. At this point, Mr. Jenkins became "aware that these people[ ] were all around everywhere shooting and carrying on." All told, Mr. Jenkins heard "four or five shots or more," but his later attempt to find any bullets or bullet holes turned up "maybe a possibility of one" of which he "wasn't sure." Upon hearing the commotion and not knowing who was in his home, Mr Jenkins ran to grab a shotgun he kept in his bedroom, which was apparently located in the downstairs half of the house. As he emerged from his bedroom, Mr. Jenkins was met by two law enforcement officers ¹ who told him to drop the gun, get on the floor, and put his hands behind his back. The officers handcuffed him face-down on the floor at gunpoint. One of the officers was a member of the Topeka Police Department and the other was a KBI agent. According to Mr. Jenkins, the KBI agent was a slender, white man of medium height, and in his mid-forties. Otherwise, Mr. Jenkins could not identify the agent. While the two officers held Mr. Jenkins at gunpoint, they inquired about his son, James Jenkins, Jr., and asked that he tell them where they could find him. After Mr. Jenkins had been on the floor for over twenty minutes, Agent Sabel came down the home's internal staircase and saw Mr. Jenkins on the floor. Agent Sabel examined a driver's license other officers had placed on Mr. Jenkins' back and directed the officers to uncuff Mr. Jenkins and allow him to sit down. Mr. Jenkins got up and took a seat in a chair near his wife, who by that time was sitting on the couch. At the time Mr. Jenkins sat in the chair, his two daughters had already been taken down from their upstairs bedrooms and were in the room with him and his wife.

When Lula Jenkins, Mr. Jenkins' wife, heard the flash bang, she remembered her daughters upstairs and started up the stairs to check on their safety. An officer met Mrs. Jenkins at gunpoint, ordered her back down the stairs, and yelled at her to get down on the floor in the same room as her husband. Because of a back injury, Mrs. Jenkins did not immediately obey the officer. Finally, Mrs. Jenkins got face-down on the floor in a spread-eagle position as the officer advised. She was not handcuffed, but was held at gun point prostrate on the floor for about twenty minutes. At one point an officer walked up to Mrs. Jenkins, pointed his gun at her head and said, "You tell me where your son is or I will shoot." Other than to say he was a "real big guy ... kind of casually dressed," Mrs. Jenkins could not identify this officer. Lying on the floor, Mrs. Jenkins grew concerned about her youngest daughter, who suffered from asthma and was having great difficulty breathing. Mrs. Jenkins pleaded with the officers to let her get up and help her daughter with her inhaler. One of the officers told Mrs. Jenkins if she didn't shut her "goddamn mouth ... he was going to slap the shit out of her." After Mrs. Jenkins had been on the floor about twenty minutes, officers allowed her to get off the floor. The officers righted a couch that had been knocked over and let Mrs. Jenkins sit on the couch.

Agent Sabel, who was one of the officers in charge of the search, entered the Jenkinses' home through the second-story door that had been rammed open at the search's inception. As he came through the doorway, an officer informed him the flash bang had left a burn mark on the floor. Agent Sabel stopped momentarily and observed the burn mark. He then walked through the rest of the upstairs of the home, examining the other rooms and closets...