Smith v. Kenny

• Decision Date: 24 July 2009
• Docket Number: No. CIV 08-0752 JB/RLP.,CIV 08-0752 JB/RLP.
• Citation: 678 F. Supp.2d 1093
• 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 1093

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.

July 24, 2009.

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

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

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

AMENDED MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Sandra Kukowski's Motion for Summary Judgment, filed February 27, 2009 (Doc. 16). The Court held a hearing on May 13, 2009. The primary issue is whether Defendant Sgt. Cassandra Kukowski enjoys qualified immunity for the actions she took at issue in this case. Resolution of that issue turns upon two sub-issues: (i) whether Kukowski seized Plaintiffs Matthew Smith and Linda Smith for purposes of the Fourth Amendment to the United States Constitution when she called on her cell phone and told them to leave the house where they were at the time of the encounter; and (ii) whether, if she conducted a seizure, exigent circumstances justified her doing so. The Court must also decide whether Plaintiff Nathan Smith has met his burden of putting evidence into the record to rebut Kukowski's statements that she did not meet or interview him at any time. Because Kukowski has not shown that the undisputed material facts demonstrate that no seizure occurred, the Court cannot say, as a matter of law, that there was no seizure. Furthermore, while the Court would normally analyze the allegation of exigent circumstances to determine whether, regardless of the dispute whether a seizure occurred, Kukowski might still enjoy qualified immunity, upon request of the parties, the Court will not, at this time, analyze exigent circumstances. Given that Kukowski has not shown, as a matter of law, that no seizure occurred, and given the parties' request for the Court to refrain from deciding the exigent-circumstances issue, the Court will deny the motion for summary judgment. The Court finds that summary judgment is not appropriate on Nathan Smith's unlawful-arrest claim against Kukowski, because there is evidence in the record that she participated in detaining and questioning him in the absence of a warrant, reasonable suspicion, or probable cause. Nathan Smith has not, however, established a factual issue that Kukowski used, or allowed other officers to use, excessive force against him in her presence.

FACTUAL BACKGROUND

Many of the material facts in this case are undisputed. Moreover, the allegations relevant to this motion for summary judgment arise out of two scenarios in which Kukowski allegedly participated. The first relevant set of allegations relates to the questioning and detainment that Nathan Smith experienced at the command center. The second set of allegations relates to the telephone call that Kukowski made to Matthew Smith's cellular phone at approximately 2:00 a.m.

1. The Twister's Event.

Kukowski is an officer for the Southeast Area Command in the Albuquerque Police Department. See Affidavit of Cassandra Kukowski ¶ 4, at 1 (executed February 27, 2009)(Doc. 17-2)("Kukowski Aff."). On October 22, 2007, Kukowski responded to a 311 call at the Twister's restaurant. See id. ¶ 7, at 2. During an interview of the Twister's employee, the employee told Kukowski that she had spotted Raymond Lollis, who was a homicide suspect. See id. ¶ 11, at 2. The employee told Kukowski that she was "certain it was Mr. Lollis because she had just read the newspaper where his picture was printed." Id. Furthermore, the employee "showed Kukowski the newspaper that the employee had been reading that clearly showed Mr. Lollis as wanted for suspected homicide." Id.

Dispatch from the 311 call relayed the information from the Twister's employee's call to Kukowski which contained a license plate number and a description of the suspect. See id. Kukowski traced the vehicle's license plate number to the Smiths' address on Cardenas St., where she placed a periodic watch on the address. See id. ¶ 8-9, at 2.

After placing the watch, Kukowski interviewed the Twisters employee who made the 311 call to confirm the details. See id. ¶ 10, at 2. Later that evening, Kukowski saw Sean Kenny's vehicle parked in a shopping center, where he was also the commanding officer on the scene for the periodic watch issued by Kukowski. See id. at ¶ 13, at 3.

2. Kukowski's Alleged Participation in the Detention and Questioning of Nathan Smith.

On October 23, 2007, at approximately 1:22 a.m., Defendant Officer Kevin Napoleone witnessed a white car arrive at the Smith's residence. See Deposition of Kevin Napoleone at 6:25 (taken March 25, 2009)("Napoleone Dep."). The driver of the car reportedly went into the home and then left at 1:30 a.m. See id. at 7:11-13. Kenny then ordered Defendant Casey McDonnell to stop the vehicle. See Deposition of Casey McDonnell at 6:1-16 (taken March 25, 2009)("McDonnell Dep."). McDonnell then stopped the vehicle pursuant to Kenny's command and confiscated Nathan Smith's cell phone and charger, and the keys to the car. See id. at 7:4-9; Deposition of Nathan Smith at 22:10-23:2 (taken May 27, 2009)("Nathan Smith Depo."). McDonnell then handcuffed Nathan Smith and placed him in the back of the police vehicle. See id. at 23:8-13; 24:17-20.

Nathan Smith was then told that he was being taken to the Sergeant so the Sergeant could speak with him. See id. at 30:16-20. Nathan Smith alleges that he was taken about two blocks east to a parking lot where Kenny had set up a police command center. See id. at 31:2-9. Nathan Smith alleges seeing a "blonde, average height, female." Id. at 32:5-6. This woman was later identified as a sergeant. This female sergeant later questioned him about his home and about a picture of Raymond Lollis, the homicide suspect. See id. at 32:10-24. Smith also alleges that he saw both a sports-utility vehicle and a van at the command center where he was questioned. See id. 34:4-2; 35:1-25. After questioning, Smith was allowed to leave the command center area with his girlfriend. See id. at 42:23-25; 43:1-16.

Kukowski contends that she never met Nathan Smith or Matthew Smith during the night of October 22-23, 2007. See Deposition of Kukowski, at 24:1-6 (taken March 25, 2009)(Doc 45-7)("Kukowski Depo."); Kukowski Aff. ¶¶ 30-33, at 5. Kukowski further contends that her presence was limited to the calling of Matthew Smith's cellular phone. See Kukowski Aff. ¶¶ 20-33, at 4-5. Nevertheless, Kukowski admits she was the only female officer on sight that evening at the Cardenas address. See Deposition of Kukowski, at 27:8-12. Furthermore, she admits driving a "Tahoe, fully marked" SUV to the command center on October 22, 2009. Id. at 27:16-18.

3. The Incident at the Smith's Residence.

On October 23, 2007, at approximately 2:30 a.m., Kukowski offered to assist Kenny in the extracting the occupants of the residence on Cardenas Street. See Kukowski Aff. ¶¶ 17-18, at 3. Kukowski proceeded by calling a phone number that Kenny had provided. See id. ¶ 18, at 4. Kukowski states in her affidavit that she called the cellular phone at the Cardenas address and "told Matthew Smith he needed to come to the front door, bring any other occupants of the house with him, and make contact with the officers that were outside." Id. ¶ 18, at 3. Kukowski alleges in her affidavit that she "advised Matthew Smith to bring warm clothes and shoes," and that she had begun to give his safety instructions. Id. Kukowski also asserts that the phone call then became "muffled and Kukowski could hear that Matthew Smith had already gone outside." Id. Matthew Smith terminated the phone call shortly afterward. See id.

Matthew Smith tells a similar story. He contends that Kukowski at approximately 2:00 a.m. "ordered both of us Linda Smith and Matthew Smith to exit the house" after "identifying herself as an Albuquerque police officer." Affidavit of Matthew Smith ¶ 6-7, at 1 (executed March 10, 2009)(Doc. 27-2)("M. Smith Aff."). Matthew Smith avers that he and Linda Smith were then told to "surrender to officers waiting outside." Id. ¶ 8, at 1. Kukowski ordered the Linda and Matthew Smith to "leave the house with their hands in the air." Id. ¶ 9, at 2. Officer's were present with guns drawn to receive Linda and Matthew Smith when they left their home. See id. ¶¶ 10-12, at 2. The Albuquerque Police Officers then placed Linda and Matthew Smith in handcuffs. See id. ¶ 13, at 2.

Shortly after making the phone call, Kukowski went home. See id. ¶ 20, at 4. At no point did Kukowski see the house during or after the time that the extraction took place. See id. at ¶ 20, at 4. She did not touch or speak face-to-face with any of the residents, nor did she meet or question any of the detained individuals. See id. ¶¶ 26-28, at 4. Kukowski did not give orders or instructions during the events at issue in this motion. See id. ¶ 36, at 5.

PROCEDURAL BACKGROUND

The Smiths brought this lawsuit in federal court pursuant to 42 U.S.C. § 1983, alleging that Kukowski violated their civil rights. See Plaintiffs' Complaint at 1, filed August 18, 2008, (Doc. 1)("Complaint"). The Smiths allege that their rights under the Fourth and Fourteenth Amendment were violated as a result of an unlawful seizure, unlawful arrest, excessive force, and unreasonable search. See id. at 6-8. The Smiths allege that Kukowski violated their Fourth Amendment rights by unlawfully extracting Linda and Matthew Smith from their home at approximately 2:00...