Schreiner v. Hodge

• Decision Date: 09 November 2017
• Docket Number: No. 117,034,117,034
• Parties: Mark T. SCHREINER, Appellant, v. Chad S. HODGE and Danny Smith, Appellees.
• Court: Kansas Court of Appeals

55 Kan.App.2d 50

407 P.3d 264

Mark T. SCHREINER, Appellant,

v.Chad S. HODGE and Danny Smith, Appellees.

No. 117,034

Court of Appeals of Kansas.

Opinion filed November 9, 2017

Mark T. Schreiner, appellant pro se.

Christopher L. Heigele, of Coronado Katz LLC, of Kansas City, Missouri, for appellees.

Before Hill, P.J., Atcheson and Schroeder, JJ.

Hill, J.:

In this lawsuit for damages, the plaintiff, Mark Schreiner, complains about the actions of two Mission, Kansas, police officers—one who was investigating a concerned citizen's complaint about a strange truck parked near her home and the second, a supervising sergeant, called to the scene at the plaintiff's request. The district court granted summary judgment to the two officers, essentially ruling the officers had good reason to investigate and the 25-minute encounter was reasonable under the circumstances. The court went on to hold the officers were immune from Schreiner's claims for damages. We agree.

The facts are undisputed.

While Schreiner does not dispute the facts, he does challenge the legal conclusions drawn from the facts. In other words, this case boils down to a question of law. See Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013).

The police receive two phone calls, a month apart, about the same truck.

In May 2014, the Mission, Kansas, police received a call concerning a suspicious vehicle. The caller told the police that a man had parked his white truck with a Missouri license plate near Broadmoor Street, got out of the truck, and ran into a nearby wooded area. Officer Roy Castle went to that location and found the truck. It was locked. Castle talked to the man who had called. After a brief investigation of the vehicle and after making a quick search of the surrounding area for any signs of break-ins or burglaries in nearby homes, which revealed nothing suspicious, Castle concluded his investigation.

About two weeks later, concerned citizen Mary Cranor, who lives on Broadmoor Street near the location of the first report, called the Mission police. Cranor reported that a suspicious vehicle was parked outside of her home and she saw a man get out and enter the nearby woods. Officer Chad Hodge went to investigate the report. Before reaching the truck's location, Hodge was told about the prior report concerning this truck, including the fact that the individual had left the truck and entered the woods. Hodge's report was included in the documents supporting the joint motion for summary judgment. It narrates what happened.

While Hodge was investigating, Schreiner came out of the woods and walked towards the truck. Hodge met Schreiner on the street before Schreiner got to the truck and asked Schreiner if the truck belonged to him. Schreiner refused to answer. Hodge followed Schreiner and again asked him if the truck belonged to him. Schreiner replied, "Am I under arrest or not?" Schreiner told him that he was not under arrest and he asked Schreiner to stop walking away. Schreiner did not comply and got in the truck. Hodge approached Schreiner and "took control of his left arm" while Schreiner was seated in the driver's seat. Hodge then ordered Schreiner out of the vehicle and told him he was being temporarily detained until Hodge finished his investigation of a report of a suspicious truck.

Schreiner complied and got out of his truck but started to walk away. Hodge "took control of his right arm" and again told him that he was not under arrest, but he was not free to leave until Hodge completed his investigation. Schreiner then yelled, "If I'm not free to leave then I'm under arrest." Schreiner, unasked, then stretched out face-down on the street. Hodge told Schreiner to sit on the curb, and he did so. Schreiner gave Hodge his driving license when the officer asked for it. Schreiner asked Hodge to call his supervisor and told Hodge that he would no longer speak to him.

Hodge made the call and Mission Police Sergeant Danny Smith, a supervisor, soon arrived along with some other officers. After their arrival, Hodge checked with the dispatcher to see if the truck was reported stolen and if there were any warrants for Schreiner's arrest. While this was going on, Schreiner gave various reasons to Smith why he had parked his truck at that spot. He told Smith he was having an affair with a woman and they met in a nearby park because he did not want his wife to find out. Schreiner also said he parked under the shady trees and then walked to the Hy-Vee grocery store. Officer Hodge testified that Hy-Vee is located over a half-mile from where Schreiner parked his truck.

The dispatcher told Officer Hodge that there were no warrants for Schreiner and the truck was not stolen. Once the police had this information, they released Schreiner. The entire encounter lasted about 20 to 25 minutes.

Without the benefit of an attorney, Schreiner, in his amended petition, sued Officer Hodge and Sergeant Smith, seeking damages for assault, battery, false arrest, and false imprisonment. The officers moved for summary judgment, arguing that Hodge had reasonable suspicion to stop Schreiner based upon the circumstances and both were entitled to discretionary function immunity under K.S.A. 2016 Supp. 75-6104(e).

At the conclusion of its hearing on the motion, the district court noted that Schreiner was evasive, erratic, and nervous with the police. Schreiner does not dispute this finding. The court ruled that reasonable suspicion supported Schreiner's stop and Officer Hodge and Sergeant Smith were entitled to discretionary function immunity under the law. Schreiner appeals, arguing that since there was no evidence of any crime being committed and no evidence that he was involved in any criminal activity, the officers had no right to detain him and the court erred by granting summary judgment.

We are confronted with one legal question to answer. Are the police officers entitled to judgment as a matter of law, as the district court ruled? We begin with an examination of the pertinent statutes and then turn to the cases to establish the framework we must use to reach our decision. As it so frequently does in matters of law, we find our question comes down to a question of reasonableness.

The statute, K.S.A. 2016 Supp. 75-6104(e), describes governmental immunity that arises from discretionary acts:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:

....

"(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved."

Obviously, Officer Hodge and Sergeant Smith are both employees of Mission, Kansas, and were, at all times pertinent to this lawsuit, engaged in the performance of their official duties. We turn now to the statute dealing with police officers stopping and questioning people.

K.S.A. 22-2402(1) sets out what an officer may do:

"Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such subject and an explanation of such suspect's actions."

Two points arise from reading this statute. The first phrase, "[w]ithout making an arrest," implies that there is more to the police function in our society than making arrests. This law implicitly recognizes that to do their job, the police must investigate. Obviously, that is what Officer Hodge was doing—investigating a citizen's complaint.

The second point relates to the statute's verb. Clearly, by using the word may in the statute, the Legislature leaves the decision to stop a person up to the discretion of the officer. By the language of the statute, the officer is not required to stop a person on the street but may do so when the officer reasonably suspects criminal activity is occurring. The decision to stop a person upon a belief of reasonable suspicion is, thus, a discretionary act because it is a decision that is based largely on the officer's training and experience. See Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 234-35, 262 P.3d 336 (2011). Then, in State v. Walker, 292 Kan. 1, 8, 251 P.3d 618 (2011), the court clarified that determining whether an officer has reasonable suspicion must be viewed in light of all the circumstances and from the viewpoint of a trained law enforcement officer. So, our inquiry now becomes, were these two police officers performing a discretionary function? We think so. But to answer the question properly, a review of the pertinent cases is helpful.

We can see that this subject of what is a discretionary function has been the focus of several appellate cases. In analyzing what constitutes a discretionary function, the Kansas Supreme Court instructs that the "nature and quality of the discretion exercised" is the subject of the inquiry. Robertson v. City of Topeka, 231 Kan. 358, 362, 644 P.2d 458 (1982). Simply utilizing judgment "is not the hallmark of the exception." Soto v. City of Bonner Springs, 291 Kan. 73, 79, 238 P.3d 278 (2010).

"The more a judgment involves the making of policy the more it is of a ‘nature and quality’ to be recognized as inappropriate for judicial review." Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 365, 819 P.2d 587 (1991).

Furthermore, also relevant to the inquiry of whether an action is discretionary is whether the actor must use some expertise, either based on education or experience, in deciding if and how to act. See Thomas, 293 Kan. at 234-35, 262 P.3d 336 ; Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 623, 731 P.2d 314 (1987).

Clearly, we must focus on the actions of police. Because of the nature of police work, the Robertson court made it clear that agency guidelines are not...