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Koven v. Lewis

United States District Court, Eighth Circuit

January 9, 2014

LEROY LEWIS, Plattsmouth Police Officer, and DAVID MURDOCH, Plattsmouth Police Chief, Defendants.


F.A. GOSSETT, Magistrate Judge.

This matter is before the Court following a non-jury trial held on November 5 and 6, 2013. Pursuant to Fed.R.Civ.P. 52, the Court makes the following findings of fact and conclusions of law.


Plaintiff David Koven ("Mr. Koven") and his wife, Roxanne Koven ("Ms. Koven") (collectively referred to herein as "Plaintiffs"), filed this action against the City of Plattsmouth, Nebraska ("the City"), as well as several members of the City's police department in their individual capacities. (Filing 1.) These officers included Todd Hammond ("Hammond"), Leroy Lewis ("Lewis"), David Murdoch ("Murdoch"), Robert Sorenson ("Sorenson"), Andrew Kennan ("Kennan") and David Walker ("Walker"). Plaintiffs alleged that Defendants were liable under 42 U.S.C. ยง 1983 for violating their constitutional rights. In particular, Plaintiffs asserted that the defendant officers illegally searched their home ("Count I"), unconstitutionally seized their children ("Count II"), unconstitutionally seized Mr. Koven ("Count III") and conspired to violate Plaintiffs' constitutional rights. ("Count IV"). Plaintiffs also maintained that the City's policies, practices, and customs caused the alleged violations of their constitutional rights ("Count V").

On April 6, 2012, the Court granted, in part, a motion for summary judgment filed by Defendants. (Filing 45.) The Court dismissed Counts II, IV, and V of the Complaint with prejudice, and dismissed the City of Plattsmouth from the suit. The Court also dismissed Count III as it pertained to Defendants Walker and Kennan. The Court found genuine issues of fact remained as to Counts I and III which precluded the entry of summary judgment as to those claims at that time.

Trial in this matter commenced on November 5, 2013, with Plaintiffs proceeding pro se. At the close of Plaintiffs' evidence, Defendants moved to dismiss Plaintiffs' claims, arguing that Plaintiffs failed to met their initial burdens of proof. The Court granted Defendants' motion, in part, dismissing Defendants Hammond, Sorenson, Kennan and Walker from the suit. The Court concluded that Plaintiffs had failed to establish a prima facie case as to those Defendants. The Court found, however, that Plaintiffs had established a prima facie case on Count I as to Lewis, and on Court III as to Murdoch. Accordingly, Lewis and Murdoch are the only Defendants remaining in this suit.


Having considered the evidence presented, and taking into account the credibility of all witness testimony and the weight to be given to that testimony, the Court makes the following findings of fact:

1. On the evening of June 27, 2009, Mr. Koven was home alone with his two minor children, ages eight and three. Ms. Koven, who was deployed out of state with the Army National Guard, had been out drinking that evening and had made numerous attempts to contact Mr. Koven by telephone, but had been unable to reach him. Consequently, Ms. Koven contacted her neighbor, Cindy Burke ("Burke"), and requested that Burke check on her family. Burke testified that Ms. Koven told her over the phone that Mr. Koven was suicidal. Ms. Koven testified that she contacted Burke because she was worried about her husband, but that she does not recall telling Burke that Mr. Koven was suicidal. Ms. Koven admitted, however, that she was aware of a past suicide attempt by her husband at the time she contacted Burke.

2. Rather than going to the Koven home, Burke contacted police. Burke informed the police that Ms. Koven had advised her that Mr. Koven was suicidal.

3. Following receipt of Burke's call, police officers Murdoch, Hammond, Lewis and Sorenson traveled to the Koven home. When the officers arrived, they approached Mr. Koven outside his home and told him that they were there to conduct a health and welfare check. The officers informed Mr. Koven that they received a report that he was suicidal and that they needed to speak with him or they would have to take him into emergency protective custody ("EPC"). Mr. Koven denied being suicidal or having threatened suicide and allowed the officers to see his children, who, upon examination, appeared to be fine. Mr. Koven testified that at the time the officers arrived, they seemed very concerned about the situation.

4. Mr. Koven refused to answer questions asked by Murdoch, the officer in charge. Hammond testified that Mr. Koven was agitated, combative, belligerent, and refused to speak to the officers. Likewise, Sorenson testified that Mr. Koven was uncooperative and belligerent. Lewis also testified that Mr. Koven was agitated and refused to answer basic questions. Because Mr. Koven refused to answer questions and was uncooperative, Murdoch ordered the officers to place Mr. Koven into EPC. Mr. Koven was then hand-cuffed and placed in the back of a police cruiser. While in the cruiser, Mr. Koven kicked the passenger door, which resulted in damage to the vehicle's window.

5. Mr. Koven testified that he was cooperative with the officers, but he acknowledged that he told Murdoch he did not want to speak to him and told Murdoch to leave. Mr. Koven further testified that he did not know what Murdoch meant by "EPC." He stated that he had known what that meant, he probably would have slammed the door to his home and made the officers kick the door down.

6. After Mr. Koven was taken into custody, Sorenson transported him to the Lasting Hope mental health facility in Omaha, Nebraska. Mr. Koven stayed at ...

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