Smith v. Kenny

• Decision Date: 18 November 2009
• Docket Number: No. CIV 08-0752 JB/RLP.,CIV 08-0752 JB/RLP.
• Citation: 678 F. Supp.2d 1124
• Parties: Linda SMITH, Matthew Smith, and Nathan Smith, Plaintiff, v. Sean KENNY, John Friedfertig, Cassandra Kukowski, Casey McDonnell, Kevin Napoleone, Andrew Vocasek, in their individual capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

678 F.Supp.2d 1124

Linda SMITH, Matthew Smith, and Nathan Smith, Plaintiff, v. Sean KENNY, John Friedfertig, Cassandra Kukowski, Casey McDonnell, Kevin Napoleone, Andrew Vocasek, in their individual capacities, Defendants.

No. CIV 08-0752 JB/RLP.

United States District Court, D. New Mexico.

November 18, 2009.

Grieta A. Gilchrist, Attorney at Law, Albuquerque, NM, Paul J. Kennedy, Mary Y.C. Han, Darin M. Foster, Minal P. Unruh, Kennedy & Han, P.C., Albuquerque, NM, Attorneys for the Plaintiffs.

Robert M. White, Stephanie M. Griffin, Albuquerque City Attorney's Office, Albuquerque, NM, Attorneys for Defendants Sean Kenny, Casey McDonnell, Kevin Napoleone, and Andrew Vocasek.

Phillip W. Cheves, Minerva C. Camp, Butt Thornton & Baehr, P.C., Albuquerque, NM, Attorneys for Defendant Cassandra Kukowski.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiffs' Motion for Summary Judgment, filed July 2, 2009 (Doc. 45); (ii) the Defendants' Motion and Memorandum for Summary Judgment Requesting Dismissal of Plaintiffs' Complaint, filed July 6, 2009 (Doc. 47); and (iii) Defendant Cassandra Kukowski's Motion for Summary Judgment to Dismiss Plaintiffs Linda and Matthew Smith's Excessive Use of Force Claims, filed September 18, 2009 (Doc. 61). The Court held a hearing on October 28, 2009. The primary issues are: (i) whether Defendant Cassandra Kukowski, a Sergeant in the Albuquerque Police Department ("APD"), unlawfully seized Plaintiffs Matthew Smith and Linda Smith in their home when she called M. Smith's cellular telephone, and instructed L. Smith and M. Smith to come outside; (ii) whether Defendant Andrew Vocasek, an APD officer, unlawfully seized L. Smith and M. Smith once they exited their home at the behest of Kukowski; (iii) whether Defendant Casey McDonnell, an APD officer, unlawfully seized Plaintiff Nathan Smith; (iv) whether any of the Defendants used excessive force in the seizure of any of the Smiths; (iv) whether Defendant Sean Kenny, a Sergeant in the APD, as the officer in command on the scene of these events, can be held liable for the actions of any of the other Defendants. The Court will grant the Smiths' motion for summary judgment as to the following claims: (i) N. Smith's claims of unlawful arrest and unlawful search (Counts II and IV) against McDonnell and Kenny; and (ii) L. Smith's and M. Smith's claims of unlawful arrest (Count II) against Vocasek, Napoleone, and Kenny. The Court will grant the Defendants' motions for summary judgment as to the following claims: (i) all of the Smiths' remaining claims for excessive use of force (Count III); (ii) N. Smith's claim of unlawful extraction (Count I) against all Defendants; (iii) L. Smith's and M. Smith's claims of unlawful extraction (Count I) against Vocasek, Napoleone, and McDonnell; (iv) N. Smith's claim of unlawful seizure and unlawful search (Counts II and IV) against Vocasek and Napoleone; (v) L. Smith's and M. Smith's claims for unlawful search (Count IV) against Kukowski and McDonnell; and (vi) N. Smith's claim of unlawful search (Count IV) against Kukowski. The Court finds that factual issues exist as to damages on all claims, and as to liability on the following claims: (i) all of the Smiths' claims of state-law tort liability (Count V) against all Defendants; (ii) L. Smith's and M. Smith's claims of unlawful extraction (Count I) against Kukowski and Kenny; (iii) N. Smith's claim of unlawful seizure (Count II) against Kukowski; (iv) L. Smith's and M. Smith's claims of unlawful search (Count IV) against Vocasek, Napoleone, and Kenny; (v) L. Smith's and M. Smith's claims of unlawful arrest (Count II) against Kukowski; and (vi) L. Smith's and M. Smith's claims for unlawful arrest (Count II) against McDonnell.

FACTUAL BACKGROUND

Many of the material facts in this case are undisputed. The Court has, however, commented on the factual disputes that appear significant to the parties' respective theories. Notwithstanding those disputes, the Court believes it can decide many of these issues in this case as a matter of law.

1. The Twisters Incident.

Kukowski is an officer in the Southeast Area Command for the APD. See Affidavit of Cassandra Kukowski ¶ 4, at 1 (executed February 27, 2009)(Doc. 17-2)("Kukowski Aff."). On October 18, 2007, a warrant was issued for the arrest of Raymond Lollis. Lollis was wanted for "Murder (Open Count); Shooting at or from a Motor Vehicle (Great Bodily Harm); Aggravated Assault Deadly Weapon (Firearm Enhancement) 2 Counts." Criminal Complaint—Arrest Warrant Affidavit at 1 (dated October 18, 2007), filed July 6, 2009 (Doc. 47-2).

At approximately 7:00 p.m. on October 22, 2007, Kukowski received a tip from a worker at the Twisters fast-food restaurant at 425 Eubank Blvd. in Albuquerque, New Mexico. See Kukowski Aff. ¶ 7, at 2. The worker said that she "was positive" that she had seen Lollis. See id. The worker described Lollis, described the vehicle in which she thought she had seen him—a Jeep Cherokee—and provided a license plate number. See id. At approximately 7:44 p.m. on October 22, 2007, based on the registration information for the license plate number, Kukowski placed a periodic watch on 1704 Cardenas Dr. NE, in Albuquerque, 87108, the address to which the vehicle was registered. See id. ¶¶ 8, 9, at 2. Kukowski also put a city-wide locate on the vehicle and went to the address on Cardenas to see if the vehicle was currently there. See Kukowski Depo. at 6:9-15 (Doc. 47-3). The vehicle was not at the Cardenas residence at that time. The police dispatch issued the following bulletin regarding the periodic watch:

CHECK 20 LOCATION FOR POSSIBLE 27-8 SHOOTING OFNDR WAS JUST SEEN @ TWISTERS EUBANK & CHICO APPROX 1900 HRS., UNKNOWN DOT DIRECTION OF TRAVEL, ABOVE 20 LOCATION IS 26 AUTO REGISTRATION 20 LOCATION FOR LINDA & MATTHEW SMITH ON A '93 JEEP GRAND CHEROKEE NM 387NWP, 27-8 SHOOTING OFNDR IS RAYMOND CARL LOLLIS DOB 012185 WMA SSN REDACTED 5'9 130 REDDISH BLN HAI,, BLU EYES,, BAD COMPLEXION,, TATTOO DEMON LEFT ARM,, TRIBAL ON RT ARM,, HEAVY METH USER,, 48 USE CAUTION

Affidavit of Kevin Napoleone ¶ 4, at 1 (executed May 20, 2009), filed July 6, 2009 (Doc. 47-4)("Napoleone Aff.").

At approximately 10:00 p.m. on October 22, 2007, Kukowski returned to the Albuquerque Police Department Substation. See id. ¶ 12, at 3. The Smiths contend that Kukowski returned to the substation to brief the graveyard shift officers. See id. The Defendants dispute that Kukowski briefed graveyard shift officers. See Defendants' Response to Plaintiffs' Motion for Summary Judgment Doc. 45 at 2, filed July 16, 2009 (Doc. 51)("Defendants' Response"). Kukowski's affidavit states: "Kukowski returned to the Southeast substation for the October 22, 2007 10:00 p.m. graveyard shift briefing to inform Sergeant Sean Kenny of the Twisters call and periodic watch she had placed on the 1704 Cardenas Dr. NE address." Kukowski Aff. ¶ 12, at 3. What Kukowski did at the briefing remains unclear, but the Court does not believe what she did at the briefing is relevant.

2. The Surveillance of 1704 Cardenas.

At about 1:00 a.m., over five hours after the Kukowski placed the periodic watch on 1704 Cardenas, Napoleone, who was conducting the watch, spotted the suspect vehicle parked at the residence. See Deposition of Kevin Napoleone at 4:11-19 (taken March 25, 2009), filed July 2, 2009 (Doc. 45-3); Napoleone Aff. ¶¶ 2-6, at 1-2. After verifying that the Jeep Cherokee was the same vehicle in which Lollis had been seen, he positioned himself near 1704 Cardenas and called other officers to come to the scene and assist. See Napoleone Aff. ¶ 6, at 2. After receiving notification from Napoleone regarding the presence of the suspect Jeep Grand Cherokee at 1704 Cardenas, Kenny established a command post nearby where he assumed overall control as the incident commander. See Deposition of Sean Kenny at 6:4-16, 33:19-21 (taken April 1, 2009), filed July 2, 2009 (Doc. 45-5); Affidavit of Sean Kenny ¶ 5, at 2 (executed May 26, 2009), filed July 6, 2009 (Doc. 47-5)("Kenny Aff."); id. ¶ 10, at 3.

At 1:22 a.m., Napoleone witnessed a white car arrive at the residence. The driver of the car—an unidentified male— entered the house for a short time, returned to the car at approximately 1:30 a.m., and left again. See Napoleone Depo. at 6:25-7:5, 7:11-13. At 1:30 a.m., Napoleone advised Kenny that the white car was leaving the residence. See Napoleone Depo. at 8:1-8. Because Kenny found it suspicious that a vehicle would arrive at 1:22 a.m., remain for only eight minutes, and then leave, he ordered that the vehicle be stopped. See Kenny Aff. ¶¶ 13-14, at 3. McDonnell, then posted at the corner of Cardenas and Summer, complied with Kenny's order and stopped the vehicle. See Kenny Depo. at 9:2-8; Deposition of Casey McDonnell at 5:12, 6:1-16 (taken March 25, 2009), filed July 1, 1009 (Doc. 45-4).

3. The Alleged Detention of N. Smith and His Property.

The Smiths allege that, after McDonnell stopped the white car, he confiscated N. Smith's cellular telephone, phone charger, and the keys to the car. See McDonnell Depo. at 7:4-9; Deposition of Nathan Smith at 22:10-23:2 (taken May 27, 2009), filed July 2, 2009 (Doc. 45-6). McDonnell then allegedly informed N. Smith that he was taking the items to protect N. Smith's safety. See N. Smith Depo. at 17:13-19. The Defendants insist that nothing was "confiscated;" rather, either McDonnell or N. Smith placed the keys and cellular phone on the roof of the car during the encounter. See McDonnell Depo. at 7:5-19. N. Smith was eventually—though considerably later—allowed to depart the scene in his car. See N. Smith Depo. at 44:23-45:18 (Doc. 51-3).¹ Kenny testified that taking N. Smith's cellular phone and detaining him was to keep N. Smith from leaving or contacting Lollis to warn him that the police were setting up a perimeter. See Kenny Aff. ¶ 16, at 4. Only after...