Kebe v. Brown
| Decision Date | 12 September 2001 |
| Docket Number | No. DKC 2000-1772.,DKC 2000-1772. |
| Citation | 161 F.Supp.2d 634 |
| Parties | Alice Johnson KEBE v. Officer Parke BROWN, et al. |
| Court | U.S. District Court — District of Maryland |
John Christopher Belcher, Law office of John Christopher Belcher, Oxon Hill, MD, for plaintiff.
Laura J. Gwinn, Marc E. Curry, Prince George's County Office of law, Upper Marlboro, MD, for defendants.
Two motions are pending in this case alleging unreasonable search and seizure, excessive force, and defamation by police officers1. First, Plaintiff, Alice Johnson Kebe, on behalf of K.J., her minor daughter, has filed a motion for partial summary judgment on the issue of liability or, in the alternative, for the court to ascertain undisputed material facts. Second, Defendant Corporal Parke Brown has filed a motion for summary judgment based on qualified immunity and public official immunity. The issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6. For the reasons that follow, the court shall grant Plaintiff's Motion for Partial Summary Judgment on the issue of the legality of the stop, deny Defendants' Motion for Summary Judgment with respect to the § 1983 claim, and grant Defendant's Motion for Summary Judgment with respect to the state law claims for battery and defamation.
The following facts are undisputed. This case arises from an incident occurring on or about June 14, 1999. At approximately 4:00 pm, Defendant, Prince George's County Police Corporal Parke Brown and his partner, Officer Gerald Knight, responded to a dispatch call that a group of 4 or 5 black males, one of them allegedly wielding a chain as a weapon, were chasing another black male. Paper no. 18, Ex. H, 911 Call and Response of Units, at 6. One of the black males was described by the dispatcher as having corn-rows and wearing a white t-shirt. He was wielding a large chain as a weapon. Id. at 8. The dispatcher received this information from a tip called in by a woman living in the neighborhood who gave her address, but no other information. The dispatcher's description was, in fact, a misstatement of the original 911 call in which the tipster described separate black males, one with corn rows and another one with a white t-shirt who may have been the one carrying the chain. Additionally, the tipster did not claim that this youth was wielding the chain as a weapon. Id. At 5.
Defendant and his partner spotted Plaintiff's daughter, K.J., a 14 year old female, talking to a black male youth (her cousin). Immediately before the stop, Officers Brown and Knight witnessed two more black male youths running towards K.J. and her cousin from a school bus stop at the top of a hill 15 to 20 yards away. Paper no. 17, Deposition of K.J. at 13, Deposition of Knight at 12. One of these two youths allegedly fit the description of one of the males from the dispatch call. Id., Deposition of Defendant at 64, Deposition of Knight at 13.
When Officer Brown's cruiser pulled up next to K.J. and the other youths, the male who allegedly fit the dispatch description ran from the scene and ducked behind a van. Paper no. 17, Deposition of Knight at 16. Officer Knight pursued and detained this youth, frisked him, ran a background check, explained why he stopped him and released him. Id. Meanwhile, Defendant pulled his gun and ordered the other youths, including K.J., to lie on the ground. Paper no. 14, Ex. C, Deposition of Defendant at 46-47. K.J., who had been returning home from running an errand for her mother at a nearby apartment complex, was wearing silk boxer shorts, a tank top and ballerina shoes. Defendant had received no information indicating that a female was involved in the chase or armed. Id. at 64,65. It is undisputed that Defendant frisked the two males with K.J., checked the records of K.J. and the two males, found no evidence of criminal activity and released all three. The entire incident lasted ten minutes.
The only material factual issue still in dispute is whether Defendant also frisked K.J. during the stop. Although Defendant agrees that he stopped K.J. and had her lie face down on the ground along with the two males, he denies that he frisked K.J. Paper no. 17, Defendant's Answer to Plaintiff's Interrog. 9. Plaintiff alleges that Defendant frisked K.J., feeling her breasts and placing his hand between her legs and on her pubic area. Paper no. 14, Ex. A, Deposition of K.J. at 25-27.
On the basis of the undisputed facts recounted above, Plaintiff filed a motion for partial summary judgment urging the court to hold that, as a matter of law, the stop of K.J. violated her Fourth Amendment right against unreasonable searches and seizures. In response, Defendant filed a Motion for Summary Judgment on the ground that he possessed qualified immunity in stopping and detaining K.J. and that, as a result, Plaintiff cannot prevail with respect to those issues in her § 1983 action even taking the facts in the light most favorable to Plaintiff and assuming that he frisked K.J. In addition, Defendant avers that, as a matter of law, the doctrine of public official immunity bars Plaintiff's battery and defamation claims and Plaintiff has adduced no evidence supporting her defamation claim. The court will determine first whether on the facts Plaintiff made out a Fourth Amendment violation and then consider whether Defendant is qualifiedly immune.
A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Pulliam, 810 F.2d at 1286, citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979).
When ruling on a motion for summary judgment, the court must draw all reasonable inferences in favor of and construe the facts in the light most favorable to the non-moving party. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 437 (4th Cir. 1998). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
In Celotex, the Supreme Court stated:
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."
Celotex, 477 U.S. at 324, 106 S.Ct. 2548. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984), quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967). There must be Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Plaintiff contends that, even looking at the facts in the light most favorable to Defendant, Defendant's stop of K.J. violated her Fourth Amendment rights because it was not based on reasonable suspicion to justify an investigatory stop.2 Any frisk undertaken pursuant to an illegal stop would be unjustified.
The Fourth Amendment, in pertinent part, provides individuals the "right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. An individual is seized within the meaning of the Fourth Amendment when that person yields to any official "show of authority" that a reasonable person would interpret as a command to restrict his or her movement. California v. Hodari D., 499 U.S. 621, 627-28, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is undisputed that K.J. was seized within the meaning of the Fourth Amendment when she was stopped at gunpoint and told to lie on the ground. The court must determine whether that seizure was unreasonable and so a violation of the Fourth Amendment.
Under Terry, "[t]he police can stop and detain a person for investigative purposes `if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be...
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