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Oglesby v. Lesan

United States District Court, D. Nebraska

March 19, 2018

AMY LESAN and CHAD HEIN, Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff brings this 42 U.S.C. § 1983 action under the Fourth Amendment alleging that Lancaster County Sheriff's Deputy Amy Lesan and City of Lincoln Police Officer Chad Hein, in their individual capacities only, used excessive force in unreasonably seizing and arresting him on January 28, 2013. (Filing No. 66, Amended Complaint ¶¶ 2-3.) Lesan and Hein have both moved for summary judgment based on qualified immunity, the merits, and Heck v. Humphrey, 512 U.S. 477 (1994). (Filing No. 101; Filing No. 104.)


         Summary judgment should be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Schilf v. Eli Lilly & Co., 687 F.3d 947, 949 (8th Cir. 2012). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997).

         In order to withstand a motion for summary judgment, the nonmoving party must substantiate allegations with “‘sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.'” Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence is insufficient to avoid summary judgment.” Id. Essentially, the test is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

         A party opposing summary judgment “may not rest upon the mere allegation or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial, and must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 256-57 (quotation marks omitted)); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-60 (1970).


         In response to the Defendants' Motions for Summary Judgment, Plaintiff's counsel has filed a 111-page single-spaced brief (Filing No. 113) in which he spends 34 pages objecting to nearly every paragraph of the six affidavits[1] submitted in support of Defendants' motions, mainly for being “not in a form that could be admitted at trial” due to irrelevance and because Defendant Hein seized and arrested Plaintiff outside the city limits and, therefore, acted “without any lawful authority.” The next 64 pages of counsel's brief objects-in tabular form-to all but three of the Defendants' stated material facts. Counsel begins his “argument” on page 98, again focusing on Officer Hein's lack of authority to act because he seized Plaintiff “well outside the city limits of the City of Lincoln, Nebraska.” (Filing No. 113 at CM/ECF p. 100.)

         As an initial matter, all of Plaintiff's relevance objections to the affidavits submitted in support of Defendants' Motions for Summary Judgment are overruled because each paragraph contained in such affidavits either constitutes background information that is “universally offered and admitted as an aid to understanding” or contains “ultimate, intermediate, or evidentiary” facts that are “of consequence in the determination of the action.” Fed.R.Evid. 401 (Advisory Committee Notes) (Westlaw 2018). Further, Plaintiff's recurring objection that much of Defendants' evidence must be excluded because Officer Hein seized and arrested Plaintiff outside the city limits is overruled because the constitutional question raised by Plaintiff's § 1983 action is whether the Defendants' alleged seizure and arrest of Plaintiff violated the Fourth Amendment[2], not whether Hein's actions violated state law, a city ordinance, or a jurisdictional agreement between the City of Lincoln Police Department and the Lancaster County Sheriff's Office.

         The court finds that the following material facts, as stated in the Defendants' briefs and construed in the light most favorable to Plaintiff, are fully supported by the evidence cited, are not subject to Plaintiff's evidentiary objections, and/or have not been properly controverted by Plaintiff.

         1. Plaintiff Robert Oglesby is a resident of Lancaster County, Nebraska, and was residing at 3807 S.W. 16th Street, Lancaster County, Nebraska 68522 on January 28, 2013, the date of the incident giving rise to this case. (Filing No. 66 at CM/ECF p. 1 ¶ 1; Filing No. 1 at CM/ECF p. 2 ¶ 6.)

         2. The City of Lincoln is a political subdivision, primary class city, and municipal corporation of the State of Nebraska that provides law enforcement through police officers employed at the Lincoln Police Department (“LPD”). (Filing No. 66 at CM/ECF p. 1 ¶ 3; Filing No. 102-10 at CM/ECF p. 1.)

         3. Defendant Chad Hein is a police officer with the LPD. (Filing No. 66 at CM/ECF p. 1 ¶ 3; Filing No. 102-2 at CM/ECF p. 1 ¶ 3; Filing No. 68 at CM/ECF p. 1 ¶ 3.)

         4. Defendant Amy Lesan is a sheriff's deputy with the Lancaster County Sheriff's Office (“LSO”). (Filing No. 66 at CM/ECF p. 1 ¶ 2; Filing No. 102-3 at CM/ECF p. 1 ¶ 3; Filing No. 73 at CM/ECF p. 2 ¶ 2.)

         5. On January 28, 2013, at about 10:56 p.m., Deputy Lesan was on duty with the LSO when she was dispatched to the intersection of Hickman Road and South 68th in Hickman, Nebraska, based on a report of a suspicious female who had been standing around with some personal property for about 45 minutes. The female turned out to be Nina Salazar. (Filing No. 102-3 at CM/ECF p. 1 ¶¶ 4-6.)

         6. Salazar informed Deputy Lesan that she was waiting for a ride, and shortly thereafter Plaintiff pulled up to pick up Salazar. (Filing No. 102-3 at CM/ECF p. 2 ¶¶ 7-9.) Plaintiff claims that Lesan was not present when he arrived to pick up Salazar. (Filing No. 112-2 ¶¶ 6-8.) In any event, it is undisputed that Plaintiff picked up Salazar and her luggage from Hickman.

         7. Deputy Lesan recognized Plaintiff from his past extensive contacts with the LSO. Plaintiff's name had come up frequently during “lineup” (daily briefings) due to his contacts with the LSO, and Lesan had received information that Plaintiff had threatened to kill law enforcement the month before and was known to have access to weapons. (Filing No. 102-3 at CM/ECF p. 2 ¶¶ 9, 14; Filing No. 112-4 at CM/ECF pp. 16, 35.) Plaintiff denies that he made such a threat and that he had access to weapons on the relevant date.[3] (Filing No. 112-2 at CM/ECF ¶¶ 19, 21.)

         8. According to Plaintiff, Lesan asked him to produce his driver's license, vehicle registration, and proof of registration, which he did. Lesan then directed Plaintiff to stay put while she “ran” his information. (Filing No. 112-2 ¶¶ 11-13.)

         9. Deputy Lesan “ran” Plaintiff's name from her LSO vehicle and found that Plaintiff was the subject of a LPD “broadcast.” A “broadcast” refers to the situation in which “a person in law enforcement . . . wants to contact and speak with a person but they've been unable to locate them.” The broadcast regarding Plaintiff indicated he should be cited for an offense, which indicated to Lesan that “there's probable cause to arrest.” (Filing No. 102-3 at CM/ECF p. 2 ¶ 10; Filing No. 112-4 at CM/ECF pp. 22-27.) Lesan did not arrest Plaintiff at that time because she feared for her safety and because protocol dictated that the entity issuing the broadcast-here, the LPD-“will take care of it.” (Filing No. 112-4 at CM/ECF pp. 27-29.)

         10. Deputy Lesan then returned Plaintiff's documents to him and informed him that the LPD had a bulletin or broadcast for him. Lesan perceived that Plaintiff became instantly angry and aggressive, insisting there was no such broadcast. Lesan claims that Plaintiff changed his posture in response to this information and appeared to be getting ready to fight. Plaintiff denies that he became angry or aggressive, that he changed his posture, and that he was preparing to fight.[4] (Filing No. 102-3 at CM/ECF p. 2 ¶¶ 11-12; Filing No. 102-5 at CM/ECF pp. 1-2, RFA No. 4; Filing No. 112-2 ¶¶ 12-14.) Plaintiff asked whether he was under arrest, and Deputy Lesan told him he was not. (Filing No. 112-2 ¶ 14.)

         11. Plaintiff told Deputy Lesan that if the LPD wanted to speak to him, they could call him. Lesan twice questioned Plaintiff about where he was heading, and Plaintiff twice told her “it was none of her business.” After confirming with Lesan that he could leave the scene, Plaintiff told Lesan he was going home, and Lesan stated that she would follow him. Lesan thought Plaintiff might be more cooperative at his residence and there would be more law enforcement in the area if she needed to call for assistance. (Filing No. 102-3 at CM/ECF p. 2 ¶ 14.) Plaintiff denies that he was being uncooperative.[5] (Filing No. 112-2 ¶ 14.)

         12. While following Plaintiff's vehicle to his residence at 3807 S.W. 16th Street, Lancaster County, Nebraska 68522, Deputy Lesan called dispatch to ensure a LPD officer was sent there. (Filing No. 102-3 at CM/ECF p. 3 ¶¶ 16-17; Filing No. 102-2 at CM/ECF p. 1 ¶ 4; Filing No. 102-5 at CM/ECF p. 2, RFA No. 7.)

         13. At about 11:34 p.m., LPD Officer Hein was dispatched to meet Deputy Lesan at the residence to take care of the LPD broadcast. (Filing No. 102-2 at CM/ECF pp. 1-2 ¶¶ 4, 6.)

         14. Officer Hein was informed by dispatch that the individual to be cited was Plaintiff Robert Oglesby. Officer Hein had not met Plaintiff, but he was familiar with the name due to numerous dangerous-person bulletins and alerts during LPD lineup. These bulletins and alerts led Officer Hein to believe that Plaintiff was a dangerous person with several weapons at his disposal who had made comments about being violent toward law enforcement and his own family. Hein was also aware of bulletins that dealt with Plaintiff having protection orders issued against him by his ex-wife or ex-girlfriend. (Filing No. 102-2 at CM/ECF pp. 2-3 ¶¶ 7-8, 12.) Plaintiff denies being dangerous, having weapons at his disposal, and making comments about being violent to law enforcement or his family.[6] (Filing No. 112-2 at CM/ECF ¶¶ 19-22.)

         15. From his mobile data terminal in his LPD cruiser, Officer Hein ran Plaintiff's name through the LPD database and found a “very strong” caution indicator for Plaintiff that had been issued on December 11, 2012-a little over a month before the incident at issue-stating that Plaintiff was the subject of an open threat-assessment case, with Plaintiff being classified as “Dangerous.” It also stated, “Large amount of weapons in home. States if SWAT is called out, he would take out several SWAT members in the process.” (Filing No. 102-2 at CM/ECF pp. 2-3 ¶¶ 9 & 11, p. 29 & Ex. D, p. 15 & Ex. A, ACI No.3.) Plaintiff denies that he is dangerous, had any weapons in his home on January 28, 2013, and that he threatened to “take out” SWAT members.[7] (Filing No. 112-2 ¶¶ 19-22.)

         16. Through the LPD database, Officer Hein learned that the “broadcast” for which Plaintiff was to be cited related to a disturbance that had occurred in Lincoln, Nebraska. The reports indicated that Plaintiff had threatened his ex-girlfriend's new boyfriend, stating that the next time they met, the new boyfriend would be eating through wires for months. Plaintiff then allegedly made a motion to his jaw with his finger. The boyfriend called the LPD and stated he was fearful for his life. The threatening nature of the conversation was verified by an independent witness. (Filing No. 102-2 at CM/ECF p. 2 ¶ 9 & pp. 12-13, Ex. A; Filing No. 102-4 at CM/ECF pp. 3-4, Ex. A.) Plaintiff denies that he has ever acted in a threatening manner toward any of his ex-girlfriend's boyfriends.[8] (Filing No. 112-2 ¶ 20.)

         17. From these reports, Officer Hein determined he had sufficient probable cause to issue a citation to Plaintiff for the disturbance that had occurred in Lincoln. (Filing No. 102-2 at CM/ECF p. 2 ¶ 10.)

         18. Officer Hein believed he had authority to issue a citation to Plaintiff in Lancaster County outside the geographical limits of the City of Lincoln through mutual aid agreements between the LPD and LSO and Neb. Rev. Stat. §§ 15-326 and 29-215. (Filing No. 102-10 at CM/ECF p. 2; Filing No. 102-2 at CM/ECF p. 3 ¶ 16.)

         19. Officer Hein arrived at the residence before Deputy Lesan and Plaintiff, parking his LPD cruiser on the west side of Southwest 16th Street. There were “multiple” LPD vehicles also parked near Plaintiff's residence. (Filing No. 112-2 ¶ 17.) Officer Hein had been able to prepare the complete citation prior to Plaintiff's arrival at the residence, including the court dates and case number. (Filing No. 102-2 at CM/ECF p. 3 ¶¶ 14-15; Filing No. 102-3 at CM/ECF p. 3 ¶ 20.)

         20. A few minutes later, Plaintiff arrived and pulled his car up the driveway next to the residence. Officer Hein originally thought Plaintiff was being transported by Deputy Lesan, but when Officer Hein saw Plaintiff exit his vehicle not in custody, he became concerned due to reports of Plaintiff's alleged statements that he wanted to harm law enforcement officers and had weapons in the residence. (Filing No. 102-2 at CM/ECF pp. 3-4 ¶¶ 17-24; Filing No. 102-3 at CM/ECF p. 3 ¶¶ 21-22.)

         21. Plaintiff exited his vehicle, hopped a fence that was between the driveway and the back door, and started quickly walking toward the back door of the residence, wanting to get inside the house as soon as possible in order to avoid any confrontation. (Filing No. 112-2 ¶ 18.)

         22. Meanwhile, Officer Hein started walking up the driveway to speak with Plaintiff, repeatedly ordering Plaintiff to stop moving and to come where Hein was standing to talk with him. Plaintiff asked Hein if he had a warrant, to which Hein replied that he did not need one. Plaintiff claims that Officer Hein did not initially identify himself or his purpose in speaking with Plaintiff, although Hein claims he asked Plaintiff to stop and talk so he could take care of the LPD broadcast and citation. Officer Hein claims he raised up his ticket book and waved it at Plaintiff. (Filing No. 102-2 at CM/ECF pp. 4-5 ¶¶ 25-28; Filing No. 102-3 at CM/ECF p. 3 ¶¶ 22-25; Filing No. 112-2 ¶ 18.)

         23. Plaintiff told Officer Hein that he was outside his jurisdiction and was trespassing. Plaintiff claims it was at this point that Hein “said something about a citation or ticket and ask[ed] the plaintiff to sign it, ” but he did not have anything in his hands for Plaintiff to sign. In response to Plaintiff's inquiry, Officer Hein told Plaintiff he was not under arrest. Plaintiff claims that Hein would not tell him what the citation was for-Hein “just asked [the plaintiff] to come to where he was and sign it and . . . he would then be on his way.” (Filing No. 112-2 ¶ 18.)

         24. Plaintiff refused Officer Hein's repeated requests to sign the citation, stating he would not do so until Hein told him “what this was all about.” Hein eventually told Plaintiff the citation was related to an incident at the filling station by the “501” bar. Plaintiff continued to refuse to sign the citation, reminding ...

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