Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cronin v. Peterson

United States District Court, D. Nebraska

January 24, 2018

CHRIS PETERSON, in his individual and official capacity, JAMES PESCHONG, in his individual and official capacity, BRIAN JACKSON, in his individual and official capacity, TONYA PETERS, in her individual and official capacity, WILLIAM KOEPKE, in his individual and official capacity, DAREN REYNOLDS, in his individual and official capacity, and CITY OF LINCOLN, Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiffs Timothy Cronin and Joshua Fullerton, who are both City of Lincoln police officers, bring this 42 U.S.C. § 1983 action against the City of Lincoln, several members of the Lincoln Police Department, and an assistant city attorney who is assigned to advise the police department. Plaintiffs seek to bring section 1983 claims against Defendants in their individual and official capacities under the Fourth, Fifth, and Sixth Amendments, as well as a retaliation claim stemming from Plaintiff Cronin's exercise of his First Amendment rights. (Filing No. 19, Amended Complaint.)

         Defendants have filed a Motion to Dismiss Plaintiffs' Amended Complaint (Filing No. 20) pursuant to Fed. R. Civ. P. 12(b)(6).[1] Defendants argue that Plaintiffs' claims against the City and the Defendants in their official capacities must be dismissed for failure to allege that a policy or custom caused violations of Plaintiffs' constitutional rights (Filing No. 21 at CM/ECF pp. 3-6, 11-12); that Plaintiffs' allegations do not state any constitutional claims (Filing No. 21 at CM/ECF pp. 6-9); that the Defendants in their individual capacities are entitled to qualified immunity from suit (Filing No. 21 at CM/ECF pp. 9-11, 12-14); and that Defendant Assistant City Attorney Tonya Peters is entitled to either absolute or qualified immunity (Filing No. 21 at CM/ECF pp. 14-15).


         Plaintiffs Timothy Cronin and Joshua Fullerton are police officers with the City of Lincoln Police Department (“LPD”). Defendant Chris Peterson is a LPD captain; James Peschong is the chief of the LPD; Brian Jackson is the assistant chief of the LPD; Tonya Peters is a City of Lincoln assistant city attorney who is assigned to the LPD as the police legal advisor; and William Koepke and Daren Reynolds are LPD sergeants. Plaintiffs allege that all of the Defendants are “vested by virtue of [their] position[s] with the City with the power and authority to formulate and enforce the custom and practices which resulted in violations of [P]laintiffs' constitutional rights . . . .” (Filing No. 19, Amended Complaint ¶¶ 3-19.)

         After having worked under Defendant Peterson's supervision in the LPD narcotics unit, Plaintiff Cronin moved to uniform patrol, where he continued to perform narcotics investigations. When Cronin began to “have success” with narcotics arrests and seizures, Peterson “began a pattern and practice of interference and harassment” against Cronin, including contacting his supervisors and attempting to stop his investigations. (Filing No. 19 ¶¶ 21-24.)

         Cronin first alleges that in July 2014, Peterson attempted to interfere with Cronin's application to attend specialized training called “Desert Snow” by privately contacting Defendant Peschong, chief of the LPD, and lobbying against Cronin attending the training after the selection committee had already informed Cronin that he had been selected to attend. (Filing No. 19 ¶¶ 25-31.)

         In August 2014, Cronin filed a complaint against Peterson with LPD's personnel sergeant based on Peterson's alleged discrimination, harassment, and creation of a hostile work environment, and the complaint was forwarded to the Lincoln Commission on Human Rights for investigation. Cronin claims that the City of Lincoln did not throughly investigate his claim against Peterson. (Filing No. 19 ¶¶ 32-33.)

         More than a year later-in September 2015-Defendant Jackson, assistant chief of the LPD, told Cronin he had received a complaint alleging that Cronin had interfered with an Ohio illegal-steroid investigation. Cronin had a friend from Powell, Ohio, who owned a nutrition and supplement store, and from whom Cronin had previously purchased nutritional supplements “in conjunction with lifting weights, working out, and overall fitness.” (Filing No. 19 ¶ 37.) Cronin's friend had been accused of selling illegal steroids, and Cronin had corresponded with him via text messages regarding the investigation and “reminding him of his rights in dealing with the police.” (Filing No. 19 ¶ 38.) As a result of these text messages, a member of the Powell, Ohio, police department told Jackson that Cronin was interfering with their investigation.

         Also in September 2015, Peschong “and/or” Jackson turned over the text messages to Peterson, who then used the texts to again harass, discriminate, and retaliate against Cronin for the complaint Cronin had filed against Peterson with the LPD personnel sergeant. Cronin claims that Peterson's actions based on “mere text messages were contrary to the past practice and usual and ordinary actions taken by the Lincoln Police Department based upon similar information.” (Filing No. 19 ¶ 44.) For example, Peterson failed to contact the DEA, conduct internet searches, or otherwise investigate whether the supplements at issue in Ohio were legal.

         In investigating Cronin, Peterson allegedly obtained the assistance of Defendants Peters, Koepke, and Reynolds. On September 28, 2015, Defendant Koepke detained Cronin in a conference room at the LPD's Center Team Station, where Koepke told Cronin he was being criminally investigated, but the interview was not recorded by audio or video, contrary to LPD policy. Cronin alleges that Koepke advised him that “he was not under arrest but he was not free to leave”; did not advise him of his Miranda rights; allowed Cronin to call his legal counsel, but refused to leave the room so Cronin could consult with counsel privately; and when Cronin's counsel arrived, he was not allowed to meet with Cronin. (Filing No. 19 ¶¶ 47-54.)

         Using statements obtained from Koepke's interview with Cronin, Peterson applied for search warrants for Cronin's home, vehicle, blood, urine, and cellular phone with “critical information omitted, ” such as Koepke's opinion that the substances referenced in the text messages were legal and Cronin's statement that he did not have any of the substances at issue at his house. Defendant Assistant City Attorney Peters, who allegedly knew or should have known that the information used in the search-warrant applications was obtained in violation of Miranda, assisted with the preparation of the search warrants. (Filing No. 19 ¶¶ 55-57.)

         Cronin alleges that several searches supported by warrants then occurred. First, as part of Koepke's six-hour detention of Cronin, Koepke transported him to a hospital for a test of his blood and urine, the latter of which was obtained by threatening Cronin with the insertion of a catheter into his penis if he did not comply. Next, without seeing a search warrant, Defendant Reynolds and “other officers” searched Cronin's house “with nothing illegal located.” Likewise, Reynolds executed a search warrant for Cronin's 2015 Toyota 4 Runner on a completely different vehicle-Cronin's 2009 Ford Escape-for which Reynolds had no probable cause or consent to search, and in which Reynolds found nothing. Officers also allegedly searched Cronin's police vehicle and locker, neither of which contained illegal substances. (Filing No. 19 ¶¶ 58-70.)

         On September 28, 2015 (the same day as Cronin's detention), Plaintiff “Fullerton was contacted at his home and voluntarily turned over the substances he had obtained through Cronin.” (Filing No. 19 ¶ 71.) The next day, Peterson contacted Fullerton to request an interview, during which Fullerton was not read his Miranda or Garrity[2] rights, was allowed to call counsel upon request, but was manipulated into talking to Peterson outside the presence of counsel.

         Plaintiffs allege that search warrants or subpoenas were also obtained for Cronin's and Fullerton's cellular phone records, Cronin's personnel records, and Cronin's personal financial information, and that Cronin's cellular phone was seized on September 28, 2015.

         On October 6, 2015, Cronin's blood and urine tests came back negative for illegal substances, and on October 8, 2015, the substances seized from Fullerton were determined to contain nothing illegal. On October 9, 2015-and without evidence that any of Cronin's text messages referred to illegal substances-members of the LPD “destroyed Cronin's phone in an alleged effort to extract any information card or chip within the device, ” thereby destroying Cronin's personal family photographs, including his newborn daughter, and other sensitive personal information. The phone chip was sent to an outside source for “potential extraction, ” but “no evidence was able to be obtained or extracted.” (Filing No. 19 ¶¶ 78-88.)

         Despite the fact that Peterson was unable to link Cronin to any illegal activities, he continued his investigation for the next several months, including a December 2015 trip to Powell, Ohio, to conduct a follow-up investigation which yielded no evidence of Cronin's involvement with illegal steroids. In January 2016, Peterson requested and received “items” that had been seized by the Powell, Ohio, police department and took them to the Nebraska State Laboratory to be tested for the presence of illegal substances. (Filing No. 19 ¶¶ 89-93.)

         For several months thereafter, Peterson asked unidentified prosecutors to bring charges against Cronin, but “[a]ll prosecutors declined to pursue charges because of a lack of evidence Cronin violated any laws or was ever involved in illegal steroids.” (Filing No. 19 ¶¶ 94-95.) After prosecutors refused to bring criminal charges, Defendants City of Lincoln, Peschong, and Jackson began an internal-affairs investigation of Plaintiffs Cronin and Fullerton. In a meeting between Cronin and Defendant Jackson regarding that investigation, Jackson allegedly told Cronin he would be “exonerated” if Cronin agreed not to pursue legal action and that Cronin should “let this go.” Jackson admitted to Cronin that “the investigation could have ‘been handled better.'” (Filing No. 19 ¶¶ 98-99.)

         Plaintiffs state in their Amended Complaint that Defendants have “made defamatory remarks to other officers, friends, and members of the public, claiming that Cronin and Fullerton are ‘dirty' or otherwise impugning their reputation.” (Filing No. 19 ¶ 104.)

         Plaintiffs allege that Defendants City of Lincoln, Peschong, and Jackson knew or should have known that the searching officers lacked probable cause, but instead actively assisted with “the investigation and illegal activities engaged in by Peterson, Koepke, and Reynolds in support of the pattern and practice of discrimination, harassment, and retaliation spearheaded by Peterson.” Further, Plaintiffs claim that Defendants City of Lincoln, Peschong, and Jackson knew or should have known that “the pattern and practice of conduct by Peterson was discriminatory and harassing, ” but they “failed to do anything to ensure Cronin was free from a hostile work environment and retaliation from the prior complaint.” Finally, Plaintiffs assert that all Defendants' actions “were done pursuant to the custom and practice formulated and enforced by Defendants and were within the course and scope of their respective positions as employees of the City of Lincoln and under color of law.” (Filing No. 19 ¶¶ 97, 100-01.)

         As a result of the stress caused by Peterson's investigation, harassment, and discrimination, Cronin alleges he suffered physical symptoms. Further, Defendants Peschong and Jackson have allegedly denied Cronin opportunities for career advancement and specialized positions.


         “[D]ismissal under Fed.R.Civ.P. 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). “The complaint must allege facts, which, when taken as true, raise more than a speculative right to relief.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008). The complaint must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557).


         Plaintiffs bring section 1983 claims against Defendants in their individual and official capacities under the Fourth, Fifth, and Sixth Amendments, as well as a retaliation claim stemming from Plaintiff Cronin's exercise of his First Amendment rights. Plaintiffs request money damages and declaratory relief.

         A. Individual-Capacity Claims

         Defendants argue that they are entitled to dismissal either because Plaintiffs have failed to state a claim upon which relief can be granted or because they are immune from suit in their individual capacities under the doctrine of qualified immunity. “Qualified immunity shields government officials from liability for civil damages and the burdens of litigation ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir. 2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Stated another way, qualified immunity shields a defendant from suit if he or she could have reasonably believed his or her conduct to be lawful in light of clearly established law and the information that the defendant possessed.” Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (internal quotation, bracketing, and citation omitted). “The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Id. (internal quotation and citation omitted).

         Qualified immunity requires a two-part inquiry at the Rule 12(b)(6) stage: (1) whether, on the face of the complaint, the facts alleged make out a violation of a constitutional right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct such that a reasonable officer would understand the unlawfulness of his conduct. Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009); Schatz Family ex rel. Schatz v. Gierer, 346 F.3d 1157, 1159 (8th Cir. 2003). “Courts may exercise their discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009). “If no reasonable factfinder could answer yes to both of these questions, the official is entitled to qualified immunity.” Nance, 586 F.3d at 609.

         “Clearly established” for purposes of qualified immunity “should not be defined at a high level of generality . . . [but] must be particularized to the facts of the case.” Lyons v. Vaught, 875 F.3d 1168, 1172 (8th Cir. 2017) (internal quotation and citation omitted). That is, “a case directly on point” is not required in order to be “clearly established, ” but “existing precedent must have placed the . . . constitutional question beyond debate” at the time the defendants acted. Id. (internal quotation and citation omitted).

         Finally, the doctrine of qualified immunity requires the court to analyze each defendant's actions individually because “a person may be held personally liable for a constitutional violation only if his own conduct violated a clearly established constitutional right.” Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017) (internal quotation and citation omitted; emphasis in original).

         Accordingly, in reviewing the Defendants' Motion to Dismiss, the court will first examine whether the facts as alleged by Plaintiffs plausibly show that the individually-named Defendants have violated Plaintiffs' constitutional rights. If the alleged facts do not show a violation, the court need not proceed further with the qualified immunity analysis. Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007) (if an official did not deprive plaintiff of a constitutional or statutory right, the plaintiff “does not need qualified immunity, as he is not liable under § 1983”); Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007) (“[I]f the court finds no constitutional violation occurred, the analysis ends and the issue of qualified immunity is not addressed. . . . This is not to say, however, the defendant official is entitled to qualified immunity. Rather, if no constitutional violation occurred, plaintiff's claim fails as a matter of law because plaintiff did not prove an essential element of the § 1983 claim.” (citations omitted)). Alternatively, if there was no constitutional violation, each Defendant is entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 243-44 (2009) (“An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment.”); Kulkay v. Roy, 847 F.3d 637, 646 (8th Cir. 2017) (finding individual defendants entitled to qualified immunity when plaintiff failed to state Eighth Amendment claim).

         1. Fourth Amendment Claim

         The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         Plaintiff Cronin alleges that Defendants violated his Fourth Amendment rights by detaining him for an unreasonable period of time, arresting him, and illegally searching and seizing his home, vehicle, cell phone, and person when he was forced to supply bodily fluids. Plaintiff Fullerton claims that Defendants unlawfully detained him and kept his property for an unreasonable amount of time after no illegal substances were found. Both Plaintiffs allege that the Defendants failed to provide the court with complete information when applying for search warrants that were issued without probable cause. (Filing No. 19 at CM/ECF pp. 14-15.)

         a. Cronin's Detention & Arrest

         Cronin claims that Defendant Koepke violated his Fourth Amendment rights by detaining and interviewing him in a LPD conference room on September 28, 2015, telling Cronin that “he was not under arrest but he was not free to leave.” Defendant Peterson allegedly used the information gained during this detention to apply for search warrants for Cronin's vehicle, home, blood, urine, and cell phone. Cronin alleges that during this six-hour unlawful detention, he was transported to the hospital for forced blood and urine tests. (Filing No. 19 at CM/ECF p. 8.)

         The Fourth Amendment prohibits unreasonable “seizures.” A seizure occurs “‘if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'” United States v. Grant, 696 F.3d 780, 784 (8th Cir. 2012) (quoting INS v. Delgado, 466 U.S. 210, 215 (1984)). Here, Cronin alleges that Koepke specifically told him that he was not free to leave, thereby constituting a “seizure” within the meaning of the Fourth Amendment.

         The Amended Complaint in this case challenges two types of Fourth Amendment “seizures”: (1) an investigative detention and (2) an arrest. United States v. Davis, No. 8:10CR438, 2011 WL 1456147, at *6 (D. Neb. Mar. 15, 2011), findings and recommendation adopted, No. 8:10CR438, 2011 WL 1361052 (D. Neb. Apr. 11, 2011) (delineating investigative detentions and arrests as two types of seizures).

A law enforcement officer may detain a person for investigation without probable cause to arrest if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances.

United States v. Green, 691 F.3d 960, 963 (8th Cir. 2012) (internal quotations and citations omitted; citing Terry v. Ohio, 392 U.S. 1, 30 (1968)); see also United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985) (holding that customs inspectors' articulable suspicion of drug smuggling permitted inspectors to detain suspect for 16 hours to either verify or dispel their suspicion; noting that “[t]he ‘reasonable suspicion' standard has been applied in a number of contexts and effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause”); United States v. Eustaquio, 198 F.3d 1068, 1070 (8th Cir. 1999) (when encounter becomes a Fourth Amendment seizure, it must be supported by reasonable suspicion of criminal activity; applying “reasonable suspicion” standard to investigative detention in airport); United States v. Davis, No. 8:13CR85, 2013 WL 3753941, at *6 (D. Neb. July 15, 2013) (“Investigative detentions are seizures of limited scope and duration within the meaning of the Fourth Amendment and must be supported by a reasonable articulable suspicion of criminal activity.”); 2015 Winter AAJ-PAPERS 13, Police Misconduct Case Analysis: Terry v. Ohio, Graham v. Connor, and Tennessee v. Garner (2015) (“Terry v. Ohio applies to all states and to all criminal investigations, stops, detentions, and arrests.”).

         “It is well settled that, under the Fourth Amendment, [t]he scope of a detention must be carefully tailored to its underlying justification and that the investigatory methods employed [during a detention] should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.” El-Ghazzawy v. Berthiaume, 636 F.3d 452, 459 (8th Cir. 2011) (internal quotations and citations omitted). In justifying an investigative detention, “an officer may rely on information provided by other officers and all the information known to a team of officers involved in the investigation.” United States v. Ortiz-Monroy, 332 F.3d 525, 529 (8th Cir. 2003). “Reasonable suspicion does not, however, exist solely on the basis of an officer's hunch.” United States v. Griffith, 533 F.3d 979, 984 (8th Cir. 2008).

         “An investigative detention may turn into an arrest if it lasts for an unreasonably long time or if it is too intrusive.” Seymour v. City of Des Moines, 519 F.3d 790, 796 (8th Cir. 2008) (internal quotations and citations omitted). If a seizure escalates into an arrest, the arrest must be supported by probable cause. United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir. 1994). A seizure may become a de facto arrest when a law-enforcement officer's conduct is more intrusive than necessary; the detention involves delay unnecessary for legitimate investigation; police conduct engenders fear and humiliation; or the officer transports the suspect to another location, isolates him from others, confines him to a police car, handcuffs him, or subjects the suspect to unnecessary delays. United States v. Maltais, 403 F.3d 550, 556 (8th Cir. 2005) (investigative detention may become de facto arrest if officers use unreasonable force or if “it lasts for an unreasonably long time, but there is no rigid time limit on an investigatory detention”); United States v. Bloomfield, 40 F.3d 910, 916-17 (8th Cir. 1994).

         According to the allegations in the Amended Complaint, at the time Officer Koepke detained Cronin in the LPD conference room, the Defendants allegedly knew that the assistant chief of the LPD had received a complaint alleging that Cronin had interfered with an Ohio illegal-steroid investigation; Cronin had a friend from Powell, Ohio, who owned a nutrition and supplement store, and from whom Cronin had purchased nutritional supplements; Cronin's friend had been accused of selling illegal steroids in Ohio; Cronin had corresponded with his Ohio friend via text messages regarding that investigation and had counseled him regarding his rights in dealing with the police; and as a result of these text messages, a member of the Powell, Ohio, police department told the assistant chief of the LPD that Cronin was interfering with their investigation. Before Cronin was detained, Cronin's text messages had been given to Defendant Peterson, but Peterson failed to contact the DEA, conduct internet searches, or otherwise investigate whether the supplements at issue in Ohio were legal.

         The question for qualified-immunity purposes is not whether reasonable suspicion for Cronin's detention in fact existed, but whether a reasonable officer facing the same circumstances could believe it was lawful to detain Cronin for six hours in the LPD conference room (which was Cronin's place of employment) in order to investigate Cronin's possible interference with the Ohio illegal-steroid investigation and Cronin's own possession of illegal steroids.

         Certain steroids are controlled substances under Nebraska's Uniform Controlled Substances Act, Neb. Rev. Stat. § 28-405, Schedule III(d) (Westlaw 2018), which may not be dispensed without a “medical order.” Neb. Rev. Stat. § 28-414.01(1) (Westlaw 2018). It is a felony for a person to knowingly or intentionally possess such a controlled substance with intent to manufacture, distribute, deliver, or dispense that substance. Neb. Rev. Stat. § 28-416 (Westlaw 2018).

         Considering the information collectively known by the Defendants regarding Cronin's possible involvement with the interstate purchase and possession of steroids which could subject Cronin to felony charges under Nebraska law, it was objectively reasonable for Koepke to believe there was reasonable suspicion to detain Cronin in order to verify or dispel his suspicion. See Montoya de Hernandez, 473 U.S. at 541; Green, 691 F.3d at 963; Eustaquio, 198 F.3d at 1070. Thus, Cronin's investigative detention did not violate his Fourth Amendment right to be free from unreasonable seizures, and the Defendants' Motion to Dismiss must be granted for failure to state a 42 U.S.C. ยง 1983 claim under the Fourth Amendment on this ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.