Wellman v. St. Louis Cnty.

• Decision Date: 08 June 2017
• Docket Number: Case No. 4:15 CV 1907 RWS.
• Citation: 255 F.Supp.3d 896
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Mark WELLMAN, Plaintiff, v. ST. LOUIS COUNTY, et al., Defendants.

255 F.Supp.3d 896

Mark WELLMAN, Plaintiff,

v.ST. LOUIS COUNTY, et al., Defendants.

Case No. 4:15 CV 1907 RWS.

United States District Court, E.D. Missouri, Eastern Division.

Signed June 8, 2017

Matthew H. Hearne, Hearne and Bendick, LLC, St. Louis, MO, for Plaintiff.

Michael E. Hughes, St. Louis County Counselor's Office, Clayton, MO, for Defendants.

MEMORANDUM AND ORDER

RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

This 42 U.S.C. § 1983 case arises from the St. Louis County Police Department's seizure and retention of Plaintiff Mark Wellman's firearms. Wellman claims the warrantless seizure and retention of his firearms violated his Fourth Amendment and due process rights, among others. Both parties move for summary judgment. For the reasons that follow, I will grant Defendants' motion.

LEGAL STANDARD

In ruling on a motion for summary judgment, I must view the facts and inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in its pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(c)(1), (e). "Where parties file cross-motions for summary judgment, each summary judgment motion must be evaluated independently to determine whether a genuine dispute of material fact exists and whether the movant is entitled to judgment as a matter of law." Jaudes v. Progressive Preferred Ins. Co. , 11 F.Supp.3d 943, 947 (E.D. Mo. 2014).

FACTS

The following facts are undisputed unless otherwise indicated.

Wellman is a firefighter with the City of Hazelwood fire department. On December 25, 2014, Wellman was involved in a domestic violence incident with his wife that resulted in the police being called to Wellman's home. On December 28, 2014, Wellman was "down in the dumps" and felt very depressed. He testified that his wife had moved out of their home temporarily and he was concerned they may not resolve their problems. Wellman called his co-worker and friend, Gerard Hagedorn. During their conversation, Hagedorn expressed concern for Wellman and told Wellman he would send a police officer over to the house to check on him. Wellman testified he told Hagedorn not to send the police to his house as "nothing good" would come of it. Wellman told Hagedorn that if he sent the police to Wellman's house, he would see Wellman on the news that night being carried out in a body bag.

Wellman's fire chief, David Radel, called 911 and reported that Wellman was home alone, probably very drunk, and wanted to commit suicide. Radel also reported that Wellman had several weapons in the home and had warned that no one had better call the police. Radel and Hagedorn gathered near Wellman's home with a couple other friends and co-workers of Wellman's.

The St. Louis County police were dispatched to Wellman's home. Sergeant Erich Von Almen spoke to Wellman on the phone for 10–15 minutes. During the conversation, Wellman's speech was slurred and he sighed a lot. Wellman and Sergeant Von Almen discussed the fact that Wellman owned firearms. Wellman told Sergeant Von Almen he knew the police would come in and take all his guns.

Wellman eventually came out of the house. Another officer on the scene, Jason Whiteside, observed that Wellman appeared intoxicated and exhibited mood changes. See Whiteside Deposition at 23, ECF No. 18–2 (explaining that Wellman "went from anger to crying, to anger to crying, to being completely normal in mood"). Officer Whiteside heard Wellman say, "I'm just not in my right mind; I haven't slept in a couple days." Def.'s Statement of Facts ¶ 64, ECF No. 25.

Wellman cooperated with the police and eventually agreed to go to the hospital for a mental health evaluation. Wellman told Sergeant Von Almen that there were two guns by his chair in his living room. The parties disagree about whether Wellman gave consent to Sergeant Von Almen to enter his home. Sergeant Von Almen testified he did not think it was suitable to ask Wellman to sign a written consent form given his condition.

Wellman was taken to the hospital by ambulance and committed for a mental health evaluation. At Wellman's apparent request, one of his friends, Jim Mangan, stayed at his house and waited for Wellman's wife to arrive. After Wellman left for the hospital, Sergeant Von Almen entered Wellman's home and found two firearms sitting out by some chairs, as Wellman had described. Sergeant Von Almen testified that he made a judgment call and decided to take those firearms based on the reports of threats Wellman had made against himself. Sergeant Von Almen explained he did not know if Wellman would be released from the hospital immediately and was concerned about what might happen if he was released and still had the firearms. The firearms were taken by another officer to the station to be packaged for safekeeping.

After Sergeant Von Almen left Wellman's home, Mangan called the police and said he and Wellman's wife had located more guns and wanted the police to come back and take them. Officer Whiteside returned to the house. The parties disagree about who collected and stacked up Wellman's firearms, but they agree the firearms were stacked when Officer Whiteside arrived. Wellman's wife told Officer Whiteside that she was worried about her husband's safety and her safety. Officer Whiteside testified that he removed the weapons at the direction of Mrs. Wellman and Mangan. Mrs. Wellman swears in an affidavit that she did not gather the firearms up or consent to police removing them from her home, though Mr. Wellman admits that Officer Whiteside acted upon the wishes of Mrs. Wellman. The police gave Mrs. Wellman a receipt detailing all the firearms that were seized sometime before Mr. Wellman was discharged from the hospital.

Wellman was released from the hospital after a few days. His employer advised him to go to an employee assistance program and required him to go to a doctor for an evaluation before he could return to work. Wellman testified that the doctor determined he was not a threat to himself or others and that he was allowed to return to work a few weeks after he was released from the hospital.

At some point, Wellman began trying to get his firearms back. The St. Louis County Police Department has a policy, Special Order 11–334 (the Special Order), that states that if a firearm has been seized in circumstances such as these, the owner must produce a writ of replevin or a medical letter from a treating physician stating the person is no danger to himself or others before the firearms will be released. The relevant portion of Special Order 11–334, titled "Release of Firearm Evidence," reads:

If the firearm was seized pursuant to a suicide or the person was voluntarily or involuntarily committed to a mental health facility for evaluation following a suicide intervention wherein a firearm was seized, a Writ of Replevin (a court order from a judge advising the Department to release the firearm) needs to be completed to authorize the release of the firearm. The Writ of Replevin is necessary unless the person from whom the firearm was seized produces a notarized written statement from a treating psychiatrist or a treating psychologist that states the health care provider is currently treating the person and that the person is in no danger to himself or to others and that the firearm should be returned to the person. Prior to the release of any firearm pursuant to either a Writ of Replevin or a medical letter from a treating psychiatrist/psychologist, approval will be received from the St. Louis County Counselor's Office.

Special Order 11–334 ¶ III.B.5, ECF No. 18–4. The Special Order also states that "[i]f there is any question in determining whether or not to authorize the release of a firearm, officers should contact a supervisor or the Property Control Unit for clarification." Id. ¶ III.B.6.

While the parties disagree about all of the steps Wellman took to try to get his firearms back, Wellman admits he knew about the requirements of the Special Order but refused to comply because he believes the policy is unconstitutional.¹ Rather than providing the police department with a letter from a psychologist or psychiatrist stating he is not a danger to himself or others, Wellman filed this lawsuit, seeking the return of his property plus damages and attorney's fees.

CLAIMS

Wellman's complaint alleges violations of his rights in seven counts: (1) Fourth Amendment unreasonable search and seizure; (2) due process; (3) conspiracy; (4) Second Amendment right to keep and bear arms; (5) Fifth Amendment taking; (6) Missouri Revised Statute § 21.750 ; and (7) Article I, Section 23 of the Missouri Constitution. Wellman sues St. Louis County and Jon Belmar, Chief of Policy of St. Louis County, in his individual capacity.²

Both parties moved for summary judgment.³ Wellman did not brief a number of his claims. At the March 23, 2017 status conference held in this case, Wellman confirmed that he had fully briefed the relevant issues in the case and had abandoned his Second Amendment and conspiracy claims. Wellman did not brief his claim under Article I, Section 23 of the Missouri Constitution —which also deals with the right to keep and bear arms—and I will consider that claim abandoned. Wellman mentioned his Fifth Amendment taking claim in his summary judgment motion, but he did not develop the argument in any meaningful way that would allow me to address it, so I will also consider that claim abandoned.⁴ As a result, I will only address Wellman's first, second, and sixth counts.

At an April 6, 2017 status...