George v. City of Wichita, 02-1344-WEB.

• Decision Date: 29 November 2004
• Docket Number: No. 02-1344-WEB.,02-1344-WEB.
• Citation: 348 F.Supp.2d 1232
• Parties: Ikoma GEORGE, Plaintiff, v. The CITY OF WICHITA, Kansas, a municipal corporation; and Detective James J. Bratt, Defendants.
• Court: U.S. District Court — District of Kansas

348 F.Supp.2d 1232

Ikoma GEORGE, Plaintiff, v. The CITY OF WICHITA, Kansas, a municipal corporation; and Detective James J. Bratt, Defendants.

No. 02-1344-WEB.

United States District Court, D. Kansas.

November 29, 2004.

COPYRIGHT MATERIAL OMITTED

Jon S. Womack, Wichita, KS, for Plaintiff.

Michael L. North, City of Wichita Law Department, Wichita, KS, for Defendants.

Memorandum and Order

WESLEY E. BROWN, Senior District Judge.

On November 16, 2000, a Wichita Police Department (WPD) officer responded to a 911 call from an individual named Teresa Fermin. Fermin told the officer that her boyfriend Ikoma George had driven past her house and she was scared because of their violent history. Fermin said she had hurt her leg when she had been battered by George on November 4, 2000. Detective James Bratt of the WPD subsequently investigated the matter and drafted and signed an affidavit of probable cause. The Sedgwick County District Attorney's Office filed a complaint against plaintiff alleging Aggravated Battery, a felony, in Case No. 01 CR 196. George eventually pled guilty to three misdemeanor counts as part of a plea agreement with the State. George later filed this action under 42 U.S.C. § 1983, claiming the defendants violated his constitutional rights by, among other things, failing to fully investigate the incident; by including matters in an affidavit that the officer knew to be false; by having a municipal custom of not ensuring the accuracy of affidavits from officers; by failing to properly train and oversee officers; by causing a prosecution to be initiated in the absence of probable cause; by causing plaintiff's arrest without probable cause; and by causing plaintiff to be falsely imprisoned and strip-searched at the County detention facility.

The matter is now before the court on the defendants' motion for summary judgment. The court finds that oral argument would not assist in deciding the issues presented.

I. Facts.

1. Plaintiff Ikoma George was never charged with rape or other sexual offenses under Kansas law arising from the incident with Teresa Fermin on November 4, 2000.

2. George was charged with Aggravated Battery under K.S.A. § 21-3414(a)(1)(A) from the incident.

3. At a Preliminary Hearing on March 9, 2001, Judge Gregory Waller of the Eighteenth Judicial District found that there was probable cause to believe plaintiff Ikoma George had committed the crime of Aggravated Battery against Teresa Fermin.

4. George entered a plea of No Contest or Nolo Contendere to one count of Domestic Battery, a Class B Misdemeanor, and two counts of Assault, a Class C Misdemeanor, on September 18, 2001.

5. On November 16, 2000, Teresa Fermin stated to Officer Nikkel of the Wichita Police Department that Ikoma George had battered her on November 4, 2000. She stated that George had thrown her on the floor in the front room of her house, causing her to hurt her leg.

6. Fermin was subsequently interviewed by WPD Detective James Bratt. Fermin told Bratt that she was frightened of George; that on November 4th George had picked her up and put her on the floor; that her left leg hurt as a result; that plaintiff slapped her a couple of times; and that she was in fear for her life.

7. Fermin told Bratt that she had non-consensual sex with George on November 4, 2000, after she injured her leg, and that he had raped her on prior occasions.

8. Plaintiff contends that Detective Bratt "made statements under oath which he knew to be false or which were wantonly and recklessly made for the purpose of convincing the Sedgwick County District Attorney to file criminal charges."

9. The statements made under oath, which plaintiff contends were false, were contained in Detective Bratt's probable cause affidavit and are as follows:

A comparison of the transcript of the interview with his affidavit reveals that James Bratt made the following false statements under oath:

a) "George told your affiant he was angry at Teresa..."

b) "George stated they looked [at] her leg, and he popped it back in place."

c) "George told your affiant that it was reasonable to believe a woman in Teresa's condition would not want to have sexual intercourse."

d) "George told your affiant that on 11-04-2000, he and his girlfriend, Teresa, got into an argument when she arrived at his residence to retrieve her vacuum cleaner."

e) "Teresa stated George suddenly became angry and grabbed her by the neck ..."

f) "Teresa said at this point, she was in fear for her life."

g) "Teresa stated George then took off her sweatpants and panties."

h) "Teresa said she said nothing to George while this was going on for fear he would harm her further."

10. Bratt completed his probable cause affidavit in support of an application for an arrest warrant on January 22, 2001.

11. Prior to completing the affidavit, Bratt conducted taped interviews with Ikoma George and the alleged victim, Teresa Fermin.

12. Audiotapes used for interviews of suspects and victims are routinely copied over after a period of time and are not usually kept permanently by the Wichita Police Department. Additionally, the audiotapes of interviews are routinely given to the District Attorney's Office when the case is referred there. No audiotape of either interview is currently in the possession of the defendants.

13. Detective Bratt is required by policies of the WPD to present all cases of suspected domestic violence to the Sedgwick County District Attorney's Office.

14. After a case is presented from the Wichita Police Department, it is up to the Sedgwick County District Attorney's Office to decide if charges are to be filed and what charges will be filed.

15. As part of his investigation, Detective Bratt: spoke to and read the notes of the civilian violence investigator, Gerri Lema; obtained copies of the police reports and material related to the Protection From Abuse Orders filed at earlier dates; obtained records from the K.U. Medical Center; conducted interviews with plaintiff and Ms. Fermin; spoke to Fermin several times over the phone before and after her taped interview, and eventually made out his affidavit and spoke to the Assistant District Attorney.

16. Teresa Fermin admitted to Detective Bratt that she lied to personnel in the emergency room at Via Christi Medical Center on November 5, 2000, about the cause of her injuries, telling them she had fallen down some stairs. She said the reason she lied was because she was intimidated by plaintiff George, whom she said was at the hospital "hovering" over her and would not let her be alone with medical personnel and "watched over me like a hawk."

17. In Bratt's experience, victims of domestic abuse will often lie to authorities about how they obtain their injuries because of embarrassment or out of concern for protecting their domestic partners.

18. The report from the K.U. Medical Center in an examination of Ms. Fermin on December 8, 2000, indicates that she suffered an injury to an intra patellar fat pad and a medial meniscus tear in her left knee which would require surgery. In the records she described the injury as occurring when she was assaulted by her boyfriend on November 4, 2000. The records indicate that she had immediate pain in the knee and could not stand. The knee had to be "popped back into place." The seriousness of the injury entered into Bratt's decision about whether the case warranted a felony charge against the plaintiff.

19. A warrant for plaintiff's arrest was filed on January 30, 2001, for the crime of Aggravated Battery, K.S.A. § 21-3414(a)(1)(A), a felony under Kansas law.

20. It is the policy of the Sedgwick County Detention Facility to strip search new prisoners who are charged with felonies during the booking process. The arresting officer is required to be present during the search but has no discretion whether the search takes place for a felony prisoner.

II. Arguments on Summary Judgment.

Defendants argue Detective Bratt is entitled to dismissal of the claims on grounds of qualified immunity. They contend plaintiff's arrest was supported by probable cause, and point to cases where the testimony of an alleged victim, standing alone, has been held sufficient to establish probable cause for an arrest. They argue that the Kansas court's finding of probable cause at plaintiff's preliminary hearing creates a presumption that plaintiff's rights were not violated. Defendants also maintain they had no duty to complete an investigation of the victim's claim prior to obtaining a warrant, and that any failure to do so did not violate plaintiff's constitutional rights. Defendants argue that any omissions or errors in the probable cause affidavit were not material, and that Bratt made no misrepresentations. As for plaintiff's claim that he was improperly strip-searched, defendants argue that Bratt did not conduct the search and therefore cannot be held liable. Defendants argue that the City of Wichita is entitled to summary judgment because Detective Bratt did not violate the plaintiff's rights, and therefore any alleged failure by the City to properly train Bratt could not have caused any violation of plaintiff's rights. Defendants also argue there is no evidence that any of the City's customs or training policies were constitutionally inadequate.

Plaintiff claims he was arrested twice on charges initiated by Detective Bratt, and he argues that the arrests violated his Fourth Amendment rights because they were made in the absence of probable cause. He maintains that the State court's finding of probable cause does not prevent him from asserting a lack of probable cause for the arrests. Citing Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983). Plaintiff contends there are genuine issues of fact in dispute relating to the truth of statements contained in Bratt's affidavit, and he argues that questions about whether Bratt's actions were purposeful preclude a dismissal based...