Watson v. City of Kansas City, Kan.

• Citation: 857 F.2d 690
• Decision Date: 14 September 1988
• Docket Number: No. 86-2501,86-2501
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: Nancy WATSON; and Jason Fitch by Nancy Watson, Next Friend, Plaintiffs- Appellants, v. The CITY OF KANSAS CITY, KANSAS; the Kansas City Kansas Police Department; Alan Meyers; Officer Roger Golubski; Sergeant Robert Wilkerson; Officer Henry Callahan; Officer Rick Armstrong; Acting Sergeant Gregory Bradley; Officer Richard Hartzfeld; Sergeant Melvin Cheek; Sergeant Donald Woolery; Detective Sands; and Officer G, Defendants-Appellees.

Page 690

857 F.2d 690

57 USLW 2183

Nancy WATSON; and Jason Fitch by Nancy Watson, Next Friend Plaintiffs- Appellants, v. The CITY OF KANSAS CITY, KANSAS; the Kansas City Kansas Police Department; Alan Meyers; Officer Roger Golubski Sergeant Robert Wilkerson; Officer Henry Callahan; Officer Rick Armstrong; Acting Sergeant Gregory Bradley; Officer Richard Hartzfeld; Sergeant Melvin Cheek; Sergeant Donald Woolery; Detective Sands; and Officer G, Defendants-Appellees.

No. 86-2501.

United States Court of Appeals Tenth Circuit.

Sept. 14, 1988.

Lynne J. Bratcher (G. Spencer Miller, of Miller & Dougherty, and Linda Dycus, Kansas City, Mo., with her on the briefs), of Miller & Dougherty, Kansas City, Mo., for plaintiffs-appellants.

Daniel B. Denk, of McAnany, Van Cleave & Phillips, P.A., Kansas City, Kan., for defendants-appellees.

Before McKAY, TACHA, and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

This case involves claims arising out of the alleged failure to provide police protection to a victim of domestic violence and her son. The plaintiff, Nancy Watson, filed a federal civil rights action against the City of Kansas City, Kansas (City), its police chief, and a number of officers. She also alleged state law violations. The district court granted the defendants' motion for summary judgment on all claims and denied plaintiff's motion for reconsideration. ¹ Plaintiff appeals. We affirm in part and reverse in part.

This case involves a long history of domestic violence. Because the record must be viewed in the light most favorable to the nonmoving party, Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970), we present, briefly, the plaintiff's version of the facts. Nancy and Ed Watson, Jr., were married for the first time on August 9, 1979. At that time, Nancy Watson already had a son, Jason Fitch, who was three years old. Nancy and Ed Watson had a daughter, Andrea, born on December 7, 1979. Ed Watson was a police officer with the Kansas City, Kansas Police Department (Police Department) from September 4, 1973, until his death on January 20, 1984. The Watsons experienced marital difficulties during their marriage, and Ed Watson physically abused his wife. Nancy Watson filed for divorce on January 6, 1981, and obtained a restraining order against Ed Watson. In February, 1981, Nancy Watson dismissed the divorce proceedings, but the Watsons were ultimately divorced on November 20, 1981.

Nancy Watson did not report to the police all of the incidents of abuse that occurred during this period. She did, however, report at least one incident. A few days before the divorce, Ed Watson shook a knife at her. She ran next door and called the police. Captain Hooks and some other officers responded. According to Nancy Watson, Captain Hooks told her, "Mrs. Watson, if you ever call the police again, I will see to it that you are arrested and you'll never see those two kids again."

On September 10, 1981, shortly before he and his wife were divorced, Ed Watson received severe head and facial injuries in a motorcycle accident. After the accident, his coworkers noticed and reported that he suffered from memory loss and confusion, and experienced periods where he seemed to be in a daze. As a result of these reports, the police department ordered Ed Watson to undergo psychological evaluation. He was approved to return to full-time work as a patrolman.

In July, 1982, Nancy and Ed Watson began seeing each other again. During this period, Ed Watson was not abusive; he maintained that he had reformed. On August 9, 1982, Nancy and Ed Watson were remarried. The first instance of physical abuse during the second marriage occurred on February 7, 1983. After that, Ed Watson went to their home many times while he was on duty and abused Nancy Watson.

On October 29, 1983, Ed Watson severely beat Nancy Watson with a flashlight. She required inpatient treatment at the University of Kansas Medical Center. She did not report this beating to the police immediately because she was afraid her children would be taken away from her as Captain Hooks had threatened.

On November 20, 1983, Ed Watson came home while he was on a break and brought with him an order from a fast food restaurant. Jason Fitch ate some of the food and vomited. Ed Watson struck his stepson several times and forced him to eat the regurgitated food. He also struck Nancy Watson. After Ed Watson left, Nancy Watson called the Police Department. She informed Sergeant Wilkerson of what had happened. She also informed him of the October 29th incident when Ed Watson had beaten her with a flashlight. She asked that Ed Watson be arrested. Ed Watson was not arrested, but Officer Golubski took an offense report.

On November 21, 1983, Nancy Watson gave a statement to Detective Sands concerning the events of the previous day as well as the October 29 attack with the flashlight. She also signed a formal complaint against Ed Watson. The offense report and Nancy Watson's statement were referred to the Internal Affairs Unit of the Police Department, and an investigation was begun. According to the Police Department's Internal Investigation Procedures, a Criminal Investigation Unit in the detective division is to investigate alleged violations of criminal laws. The Internal Affairs Unit is to investigate complaints not amounting to violation of criminal laws. On approximately December 15, 1983, the Internal Affairs Unit delivered its file to the Wyandotte County District Attorney's Office for possible criminal action. The Police Department took no disciplinary action during the investigation.

Mark Frey of the Kansas Social and Rehabilitation Service was assigned to investigate the child abuse charges. The Police Department told him not to contact Ed Watson.

On November 28, 1983, Nancy Watson filed for divorce. The court issued an order providing that Nancy Watson was to have the use, occupancy, and control of the parties' residence and restraining the parties from molesting or interfering with the privacy of the other.

On December 15, 1983, Ed Watson went to the family's residence where he held Nancy Watson and the children until December 18. On December 18, Nancy Watson called the police and requested assistance because Ed Watson had forced his way into the house, put a gun to her head, and threatened to kill both her and himself. Several police officers responded to the call shortly after Ed Watson returned to the house. Nancy Watson told the officers about the restraining order and requested that Ed Watson be arrested. Although Sergeant Cheek maintains that Nancy Watson did not request that Ed Watson be arrested, Officer Bradley testified that she wanted to press charges. Also, despite the existence of physical evidence, Bradley testified that he made no investigation of forced entry. He testified that an officer normally investigates the scene but that he did not do so because he was there "investigating a domestic disturbance, it was not classified as a forced entry...." The officers took no action and were preparing to leave when Nancy Watson called an abuse hotline. She described the situation and gave the names of the officers present. The officers then made a report but refused to arrest Ed Watson or order him to leave. When, after two hours, it became apparent that the officers would take no further action, Nancy Watson requested that she and her children be taken to a shelter for battered women. Nancy Watson later moved back home and had the locks changed.

On the evening of January 19, 1984, Nancy Watson and the children were driving home from the grocery store when they noticed Ed Watson following them. Nancy Watson drove directly to the police station and honked for assistance. Sergeant Woolery came out, and Nancy Watson told him that Ed Watson was following her. She asked Woolery to detain her husband so that she and the children could get home, and Sergeant Woolery told her that he would detain him. Woolery was aware of the Internal Affairs investigation. Nancy Watson drove directly home. However, when she and the children arrived, Ed Watson was already there. He forced the family into the house, locked deadbolt locks, and ripped out the telephones. He locked the children in their room and raped Nancy Watson. After the rape, he beat and stabbed her. When the knife he was using broke, he left her to go to the kitchen to get another one. While he was in the kitchen, Nancy Watson tried unsuccessfully to get out of the house through the front door. She then jumped through a picture window onto the front lawn. Ed Watson followed her through the window. A neighbor heard the disturbance and called the police. Ed Watson left in his car. One officer who responded to the call said to Nancy Watson that the whole situation was her fault because she had married Ed Watson. Three hours later it was discovered that Ed Watson had committed suicide at his brother's home. After Watson's death, Lieutenant Miller, the Police Department's public information officer and Ed Watson's former supervisor, told a Kansas City Star reporter that Ed Watson "was like a time bomb waiting to go off."

Nancy Watson filed suit under 42 U.S.C. Sec. 1983 claiming that the Police Department and the various individual police officers violated her right to equal protection under the law. She also filed suit under the Kansas Tort Claims Act.

I. Section 1983

In considering whether summary judgment was appropriate in the present case we begin by noting that the plaintiff's and defendants' versions of the events are significantly different. The presence of factual disputes, however, will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We must look to substantive law to identify which facts are material. Id.

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