Clark v. City of Shawnee, Case No. 15–4965–SAC

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: Sam A. Crow, U.S. District Senior Judge
• Citation: 228 F.Supp.3d 1210
• Decision Date: 05 January 2017
• Docket Number: Case No. 15–4965–SAC
• Parties: Jonathan CLARK and Eric S. Clark, Plaintiffs, v. The CITY OF SHAWNEE, KANSAS, Defendant.

228 F.Supp.3d 1210

Jonathan CLARK and Eric S. Clark, Plaintiffs,
v.
The CITY OF SHAWNEE, KANSAS, Defendant.

Case No. 15–4965–SAC

United States District Court, D. Kansas.

Signed January 5, 2017

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Jonathan Clark, Shawnee, KS, pro se.

Eric S. Clark, Williamsburg, KS, pro se.

Christopher B. Nelson, Michael K. Seck, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, Ellis Rainey, II, Rainey & Rainey, Karen James Torline, Torline Law, LLC, Shawnee, KS, for Defendant.

MEMORANDUM AND ORDER

Sam A. Crow, U.S. District Senior Judge

The case comes before the court on the following motions that are ripe for decision: the motion for partial summary judgment (Dk. 86) by the plaintiffs Jonathan and Eric Clark; the defendant City of Shawnee's, ("City's"), motion for summary judgment (Dk. 108); the plaintiffs' motion for review (Dk. 124); the plaintiffs' second motion for partial summary judgment (Dk. 128); the City's motion to strike (Dk. 130); and the plaintiffs' motion to review (Dk. 134). While docketed as a motion for review,

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the plaintiffs' filing (Dk. 124) simply asks the court to substitute "primary" for "second" on page four of their filed response (Dk. 120) to the defendant's summary judgment motion. The defendant does not oppose this change. The court summarily grants the plaintiffs' motion (Dk. 124) requesting this change. The court also summarily denies the City's motion to strike (Dk. 130), because many of the arguments are similar to those substantively rejected in the court's prior order of October 4, 2016, (Dk. 107), and because a decision on the other arguments will not materially advance the disposition of the case. Finally, the court summarily denies the plaintiffs' last motion for review (Dk. 138), because it fails to make an arguable showing that the magistrate's order denying their motion to compel was erroneous or contrary to law. Thus, the court will decide the three pending summary judgment motions by narrowing its focus to the common dispositive issues.

SUMMARY JUDGMENT STANDARDS

"Summary judgment is appropriate only if ‘the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.’ " Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Fed. R. Civ. P. 56(a) ). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine" factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252, 106 S.Ct. 2505.

The moving party has the initial burden of showing "the absence of a genuine issue of material fact," and, if carried, the non-moving party then "must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which [it] carries the burden of proof." National American Ins. Co. v. American Re–Insurance Co. , 358 F.3d 736, 739 (10th Cir. 2004) (internal quotation marks and citation omitted). At the summary judgment stage, the court is not to be weighing evidence, crediting some over other, or determining the truth of disputed matters, but is only to be deciding if a genuine issue for trial exists. Tolan , 134 S.Ct. at 1866. The court performs this task with a view of the evidence that favors most the party opposing summary judgment. Id. Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby , 477 U.S. at 250–51, 106 S.Ct. 2505. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S.Ct. 2505.

STATEMENT OF FACTS

On December 2, 2013, within the limits of the City of Shawnee, Kansas, the defendant Jonathan Clark was driving his truck which was pulling a trailer loaded with wooden pallets. Nathan Karlin, a police officer with the City of Shawnee, was driving his patrol car when he saw Jonathan's truck and trailer ahead. As it began to pull over to the side of the road, Officer Karlin activated his emergency lights and stopped behind Jonathan's truck and trailer. Officer Karlin stopped because the trailer's load was not secured. Officer Karlin also believed the trailer was one that required a license plate, and he saw none.

Officer Karlin asked Jonathan to produce proof of insurance. When Jonathan opened the driver's-side door of his truck, Officer Karlin saw a handgun in the door well. The handgun was not encased, but holstered, and it appeared to be loaded. At this point, Officer Karlin grabbed the handgun from the door well and ordered

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Jonathan who was in the cab to put his hands up. Thinking the situation was threatening, Officer Karlin ordered Jonathan to go to the front of the truck and to get on the ground. Jonathan complied, and Officer Karlin handcuffed him without incident and asked him if he had a concealed carry permit. Jonathan told the officer that he did not have a permit.

Jonathan was later placed in a second officer's vehicle while his truck was searched. Officer Karlin found in the truck cab another loaded handgun which also was not encased. Officer Karlin provided Jonathan with a notice to appear for three ordinance violations: (1) unlawful use of a firearm; (2) spilling loads on highway due to failure to secure load, and (3) no registration on the trailer. About 50 minutes after the initial stop, Officer Karlin released Jonathan at the scene, but Jonathan's firearms were seized by Officer Karlin. The court has previously summarized the procedural disposition of these violations in a prior order. (Dk. 16, pp. 10–11). In short, Jonathan was convicted in municipal court of the firearm and spilling violations. Before the district court, Jonathan was convicted of the spilling violation but the city dismissed the firearm violation.

Eric Clark was not a passenger in the truck, was not at the scene of the arrest, and was not with Jonathan immediately before, during or after the traffic stop, arrest and search. Eric has never been detained or charged with violating the firearm ordinance in question. Eric does not have a conceal carry permit. Eric stated in his deposition that there was "about a dozen" times when he did not carry any firearm while in the City of Shawnee during the period between December 2, 2013, the date of Jonathan's traffic stop, and August 25, 2014, the repeal date of the firearm ordinance. (Dk. 109–3, p. 6). Eric also testified that "once or twice" during the same time period he "carried a loaded unencased firearm[ ] in the City of Shawnee." Id. at p. 5.

The firearm ordinance in question is the City of Shawnee's § 9.13.040 Criminal Possession of a Firearm ("Ordinance"), that was in force on December 2, 2013, and that made it an unlawful act prohibited within the City to criminally possess a firearm by "Transporting a Firearm in any air, land, or water vehicle, unless the Firearm is unloaded and encased in a container which completely encloses the Firearm." (Dk. 87–1, pp. 9–10). This Ordinance was repealed on August 25, 2014, as a result of a state law making all ordinances null and void which were adopted prior to July 1, 2014, and which governed the "transporting of firearms or ammunition." (Dk. 87–1, p. 21).

STANDING OF ERIC CLARK

This will be the court's third chance to consider this issue. The plaintiff Eric has been afforded a full opportunity to present the factual and legal merits to his somewhat unusual position. In effect, Eric is bringing "a pre-enforcement challenge to a city criminal ordinance that has since been repealed." (Dk. 16, p. 6). The uncontested record fully establishes that he no longer faces any credible threat of prosecution under the ordinance. State law now forecloses the City from having an ordinance that governs the transportation of firearms. Consequently, the plaintiffs' second amended complaint seeks relief only in the form of compensatory damages and makes no claim for injunctive or declaratory relief. In the same vein, the plaintiffs' summary judgment filings reiterate that they "are not seeking to have any ordinance or regulation declared as unconstitutional, nor seeking injunctive or prospective relief." (Dk. 87, p. 29)(emphasis in original). Eric's standing, therefore, is determined solely by his claim of compensatory damages for injuries allegedly sustained because

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the ordinance was in effect from December 2, 2013, through August 24, 2014, even though it was never enforced against him. Count one of the second amended complaint does allege that the "plaintiff Uncle Eric ... has suffered damages including emotional distress, mental anguish, and loss of enjoyment of life." (Dk. 45, ¶ 42).

In his summary judgement filings, Eric explains his injuries to result from the ordinance's impact on his decisions to act and on his related emotional experiences. He has testified...