Hernandez v. Conde
| Decision Date | 24 July 2006 |
| Docket Number | No. 05-1103-JTM.,05-1103-JTM. |
| Parties | Pedro HERNANDEZ III; Carmen Hernandez; Enrique Hernandez; Yesenia Ramirez, and Selena Hernandez, a Minor Child, by and through her Parents and Next Friends, Enrique Hernandez and Yesenia Ramirez, Plaintiffs, v. Robert CONDE; Dean Akings; Rod Weber; Brian Dougherty; R. Scott Harper; and Chris Smee, Defendants. |
| Court | U.S. District Court — District of Kansas |
Michael S. Holland, Michael S. Holland, II Holland & Holland, Russell, KS, for Plaintiffs.
Brian D. Sheern, Kansas Attorney General, William Scott Hesse, Harry Kennedy, Office of Attorney General, J. Steven Pigg, Teresa L. Sittenauer, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.
This matter comes before the court on the defendants' Motion for Summary Judgment (Dkt. No. 74). After reviewing the parties' arguments, the court grants defendants' motion for summary judgment and qualified immunity.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgments as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all of the evidence in a light most favorable to the opposing party. Jurasek v. Utah State Hosp., 158 F.3d 506, 510 (10th Cir. 1998). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Baker v. Board of Regents, 991 F.2d 628, 630 (10th Cir.1993). The moving party need not disprove the nonmoving party's claim or defense; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).
The party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). The opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the opposing party must present significant admissible probative evidence supporting that party's allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Pedro Hernandez came to the United States from Mexico in 1998. Carmen Hernandez is married to Pedro. They have five adult children, including Martha, Baudilio, Esteban, Ovidio and Enrique.
On May 15, 2003, Pedro and Carmen lived at 340 Heizer in Great Bend. Enrique came to the United States from Mexico in 2000. He is an undocumented alien working under an assumed name. On May 15, 2003, Enrique lived at 340 Heizer with his parents, his wife Yesenia, and their baby Selena. Baudilio lives with his wife Manuela at 336 Heizer in Great Bend and has lived there for five years. 336 Heizer is located immediately next door to 340 Heizer.
Martha came to the United States from Mexico in 2002. Martha lives with her husband Manuel Tavarez at 301 Fruit in Great Bend. Their home backs up to the alley behind 340 Heizer. Manuel Tavarez owns the properties at 316, 328 and 340 Heizer. Martha and Manuel's son is Ivan Tavarez. Ivan Tavarez has lived with his parents at 340 Heizer in the past, as recently as the year 2000. In 2000, Tavarez moved to 328 Heizer, where he lives with his girlfriend. 328 Heizer is within sight distance of 340 Heizer.
Tavarez has a .357 magnum pistol, an SKS rifle and an AK-47. Tavarez is Pedro and Carmen Hernandez' grandson. He is Enrique and Yesenia's nephew.
Chief Dean Akings, Officer Scott Harper and Officer Rod Weber had been to the area in September 2001, arresting Ivan Tavarez during an investigation for aggravated assault for placing a handgun against the neck of Severo Ayala, threatening to kill him. Tavarez was arrested at 328 Heizer with an SKS assault rifle. He reported that he lived at 340 Heizer at that time.
The area around 340 Heizer in Great Bend is an area prone to violence and crime.
Terry Millard is a detective with the Great Bend Police Department and has been employed in that capacity since 1996. Millard called the KBI on May 15, 2003, to alert them to the possibility of using a woman by the name of Karen Byerly as a confidential informant in the Great Bend area. Millard did not engage Byerly to act as a confidential informant for the Great Bend Police Department. Instead, Millard brought Byerly to the KBI.
Robert Conde is a Special Agent with the KBI stationed in Great Bend. He has been so employed since January 2002. Kelly Ralston is a Special Agent in Charge of the special operations division of the KBI. He has been employed in that capacity since 1999.
On May 15, 2003, Ralston introduced Conde to Karen Byerly. Byerly said Conde could purchase drugs from Travis Underwood. Byerly and Conde met Underwood later that evening to buy drugs. Underwood got in the back seat of Conde's car and the three drove toward the southeast area of Great Bend.
Underwood directed Conde to drive to the parking lot of Peterson's Mechanical, a business at 705 Heizer. Conde gave Underwood money to purchase drugs. Underwood left the car and walked to a nearby trailer home. He was gone for 10 minutes. Underwood returned with cocaine and gave it to Conde.
Conde spoke with his supervisor, Ralston, about the details of the undercover buy. Ralston told Conde to apply for a search warrant for the residence where the buy occurred.
Following the transaction, Conde signed a search warrant application and supporting affidavit for the search of a residence at 340 Heizer, Great Bend, Kansas, on May 15, 2003.
On May 15, 2003, at 10:45 p.m., the District Court of Barton County, Kansas, issued a facially valid search warrant for 340 Heizer Street, Great Bend, Kansas, for cocaine and other controlled substances and drug transaction related items.
Dean Akings is the Chief of Police in Great Bend, Kansas. He has held that position for 23 years. Sometime around 1989 to 1990, Chief Akings came up with the idea to create a Great Bend SWAT team, called the Special Services Team (SST), to deal with dangerous search warrants, in particular the number of meth labs they were experiencing in Great Bend at the time. The decision as to whether to allow the SST to be used in order to perform a search warrant is the full province of Dean Akings and he is always consulted, if he is in town, prior to the use of the SST.
The SST was used primarily for execution of search warrants. The SST was also used in hostage situations. Team leader Harper testified that the SST is used when there are concerns about individuals within a residence subject to a search warrant, whether the concern is a large group of people within or that the layout of the residence to be searched is unknown.
Although the SST was originally intended only to execute dangerous search warrants, there are no specific factors or any written guidelines that are to be considered before authorizing the use of the SWAT team to execute a search warrant. However, defendants note that Chief Akings testified to several factors he takes into consideration when making the decision, including whether the occupants might have weapons, have an arrest record or other contact with law enforcement, or whether they are connected to a drug cartel. Chief Akings also considers the officer safety and public safety factors.
Prior to May 2003, the SST has been used over fifty times. Chief Akings authorizes the training procedures employed by the SST and is aware of the procedures and tactics employed by the SST as routine. Chief Akings testified that most of the time the SST attempts to execute the search warrant at night, but not always.
Although SST members attempt to execute the search warrant at night, they wait the same amount of time before forcibly entering a residence, knocking and announcing and waiting approximately twenty seconds, during both nighttime and daytime search warrants. The goal of the SST when executing a search warrant is to enter the residence as "unannounced as possible" in order to quickly subdue any individuals in the residence without allowing them time to react. Additionally, the SST members attempt to execute the search warrants during the night not only to allow them to be more concealed but also to allow a greater effectiveness for flash grenades. However, Chief Akings testified that the noise of the flash device is equally distracting during the day and during the night. Finally, the SST attempts to execute the search warrants at night in hopes of entering the residence unannounced and catching the occupants of the residence to be searched while they are still in bed, which is "the element of surprise."
When actually entering the residence, the SST follows the same procedure. They approach the residence in an attempt not to be discovered, knock on the door, the officer who knocked on the door counts to himself to twenty, the officer then knocks on the door and simultaneously announces "Police Search Warrant." If the officer hears nothing, the door is physically opened either by pry bar, batting ram or shotlock fired by a shotgun.
At times, the SST uses a flash device to distract the occupants of a structure to be searched. The flash device or flash grenade puts off a great deal of light, akin to shining a flashlight in...
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