Bailey v. Kenney

• Decision Date: 16 April 1992
• Docket Number: Civ. A. No. 90-1257-B.
• Citation: 791 F. Supp. 1511
• Parties: James D. BAILEY, Plaintiff, v. William R. KENNEY, a/k/a Bill Kenney, Bobby Wiley, Darrell Haynes, and the City of Wichita, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

791 F. Supp. 1511

James D. BAILEY, Plaintiff, v. William R. KENNEY, a/k/a Bill Kenney, Bobby Wiley, Darrell Haynes, and the City of Wichita, Kansas, Defendants.

Civ. A. No. 90-1257-B.

United States District Court, D. Kansas.

April 16, 1992.

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Stephen E. Robison, Joseph, Robison & Anderson, P.A., Wichita, Kan., for plaintiff.

Jack Focht, Focht, Hughey, Hund and Calvert, H.E. Jones, Hershberger, Patterson, Jones & Roth, Ed L. Randels, Asst. County Counselor, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter is before the court on the motion of all defendants for summary judgment. The violations alleged by plaintiff arise out of the forced entry into plaintiff's home on May 16, 1989 by a bail bondsman and two Wichita police officers. Believing plaintiff to be a fugitive who had skipped bond, the bondsman and police officers entered plaintiff's home and detained him. After determining that plaintiff was not the fugitive, plaintiff was released and the parties left his home.

Plaintiff brings this action against the bondsman, the officers, and the City of Wichita under 42 U.S.C. § 1983, alleging violations of the Fourth, Fifth, and Fourteenth amendments to the Constitution. Plaintiff also alleges pendent state claims for trespass, assault, outrageous conduct, and false imprisonment.

I. Material Facts

A number of facts are not in dispute. Defendant Kenney is a professional surety who writes bail bonds. Ross Greenfeather, who is not a party to this action, acted as the agent of Kenney in writing a bail bond upon Kenney's assets for one James D. Bailey. Bailey had been charged with aggravated battery. When Greenfeather bonded Bailey out of jail, Greenfeather received certain information from him, including where Bailey worked, where he lived, addresses, and telephone numbers.

Bailey failed to make his court appearance, and an alias warrant was issued for the arrest of James D. Bailey. Greenfeather checked the information he had received from Bailey, but was unable to locate him. Greenfeather discovered that Bailey did not live at the address he had given and that Bailey had quit his job after he had been bonded out. Greenfeather contacted Bailey's mother three or four times and also contacted Bailey's sister, who he had found through her ex-husband. Both women professed ignorance as to Bailey's whereabouts, although Greenfeather did not believe them. The Chief of Police of Clearwater also reported to Greenfeather that Bailey's brother in Clearwater did not know where Bailey was, although this source deemed the brother to be untrustworthy. Greenfeather also attempted to find previous addresses for Bailey through a connection in the sheriff's office.

Greenfeather eventually came upon the address of 518 South Glendale as the address for one James D. Bailey, the plaintiff herein. Greenfeather discovered this address from court records in the Domestic Division of the Clerk of the District Court. Greenfeather did not attempt to ascertain how long the James Bailey of 518 South Glendale had resided at this address. Greenfeather contacted the landlord for 518 South Glendale and verified that a James Bailey lived at the address. No further information regarding plaintiff was discussed between Greenfeather and the landlord.

Greenfeather went to 518 S. Glendale the same evening he discovered this address through the Court Clerk's Office. He knocked at the door and received no response. Thereafter, he placed the house under surveillance from a block away, from which he eventually observed an individual walk in. It was dark and Greenfeather could only identify the individual as a male. Greenfeather approached the house and knocked on the door, but received no response. Greenfeather then called defendant Kenney for assistance.

When Kenney arrived, Greenfeather informed him that the person in the house had not parked in the parking garage or across from his apartment, but had parked some way south of where he lived. Greenfeather also reported that he had seen lights go on from room to room; that he had heard movement within the house; that he had knocked and received no response; and that he had talked to the landlord earlier that day. After conversing with Greenfeather, Kenney called the 911 police dispatcher and told the dispatcher that he had information on a wanted felon who was at 518 S. Glendale. Kenney told the dispatcher that "we would like to have some officers stand by." (Kenney Depo. at 27).

Greenfeather and Kenney met Lt. Haynes and Officer Wiley a few blocks from plaintiff's residence. There is some dispute as to what Kenney told the officers when they arrived. According to Kenney, he informed the officers that they had verified that a James D. Bailey lived there, and that they needed to determine if this was the James D. Bailey who was wanted in the warrant. Haynes, however, testified that Kenney informed him that there was a bond forfeiture at the residence. (Haynes Depo. at 29). Haynes did not ask Kenney how long Bailey had resided at 518 S. Glendale. Either Haynes or Wiley ran a license tag check on the car that Kenney identified as belonging to the resident of the house, and this check revealed that the car was registered to James D. Bailey at 518 S. Glendale. (Haynes Depo. at 39).

The police officers parked their white police cars on a side street adjacent to plaintiff's residence. The cars were prominently identified as police cars and could be seen from plaintiff's residence. Kenney, Greenfeather, and the two police officers approached the front door and knocked. They knocked for a few minutes, but no one came to the door. The officers yelled: "Police Officers, come to the door."

When no one answered the door, some members of the party went to a neighbor's house with a mug shot photo of James D. Bailey that Greenfeather had gotten from the records section of the sheriff's office. The neighbor, Mr. Handley, was shown the photo and was asked whether it was a picture of his neighbor. As Handley recalled in his deposition, he told the persons that he did not think the person in the photo was his neighbor, but that he could not be sure.¹ Greenfeather, however, recalls that Handley said he "couldn't say" whether the photo and the neighbor were the same, (Greenfeather Depo. at 59), and Lt. Haynes recalls that Handley said the photo "looked like him but he couldn't be sure." (Haynes Depo. at 39).

The party resumed knocking at the door and announcing that they were police officers. Kenney then went to his car phone and called the landlord. Kenney informed the landlord that the police were there and that James D. Bailey was wanted as a bond forfeiture. He asked the landlord if he would come up and let them in. The landlord said he did not want to be involved but that if they had to go in, the least amount of damage they could do would be to break a small pane in the back door. The landlord testified that he considered plaintiff to be one of his best tenants and was surprised to learn that plaintiff was in any kind of trouble. The landlord does not remember whether he communicated his surprise to Kenney. (Hixon Depo. at 4, 7-8).

Kenney returned to the party and the decision was made to forcibly enter the residence. Kenney told Haynes that they could enter and search for their bond forfeitures, and that they did it all the time. According to Lt. Haynes, Kenney informed Haynes that the landlord was scared of Bailey, (Haynes Depo. at 49), although Kenney denies making this statement to Haynes. (Doc. 72, at 4-5). Kenney used a flashlight to break out a pane on the back door, and he and Haynes entered through the back door. Haynes had his gun drawn upon entering the premises. The front door was opened, and Officer Wiley came in with his gun drawn. Eventually, Greenfeather followed Wiley into the house.

Plaintiff came out of another room, whereupon Haynes and Wiley pointed their guns at him. Plaintiff was not free to leave. Plaintiff was wearing only undershorts and told to keep his hands up. Plaintiff was cooperative and appeared frightened. Plaintiff was asked to produce identification, which he did. His identity was checked against the mug shot, and it was determined that plaintiff was not the fugitive. Plaintiff explained that he had not come to the door because it was his birthday; he had been "partying" earlier; and he thought his friends were trying to play a joke on him. Apologies were made to plaintiff, and Kenney left $20 to pay for the broken window pane.

All defendants move for summary judgment, alleging inter alia, that they are entitled to qualified immunity from prosecution for plaintiff's § 1983 claims.

II. Standards for Qualified Immunity

Qualified immunity is available to state actors who perform discretionary functions if their actions do not violate clearly established law of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The standard is one of "objective legal reasonableness" in light of the legal rules that were "clearly established" at the time the challenged action took place. Id. at 818-19, 102 S.Ct. at 2738. Whether the official violated clearly established law is both a legal and a fact specific question that depends upon all the circumstances facing the official at the time the alleged violation occurred. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987):

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Creighton, 483 U.S. at 640, 107 S.Ct. at...