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Yankton v. City of Lincoln and Lancaster County

United States District Court, D. Nebraska

September 9, 2019

LEONARD JOSEPH YANKTON, Natural Person; Plaintiff,
CITY OF LINCOLN AND LANCASTER COUNTY, LINCOLN POLICE DEPARTMENT, GREGORY CODY, OFC, individually and in his official capacity as OFC#830 Lincoln Police Department Officer; and AARON PETH, OFC, individually and in his official capacity as OFC#1724 Lincoln Police Department Officer; Defendants.



         This matter is before the Court on cross-motions for summary judgment filed by the plaintiff, Filing No. 28, and by defendants Gregory Cody and Aaron Peth, Filing No 36.[1]

         This is an action for deprivation of rights under 42 U.S.C. § 1983 in connection with police conduct in responding to a domestic dispute call.

         I. BACKGROUND

         In his pro se amended complaint, the plaintiff, a Native American, alleges that Officer Peth and Officer Cody violated his rights in three ways: conducting an illegal search and seizure by wrongfully arresting him, using excessive force to effectuate that arrest, and treating him in a discriminatory manner based on his Native American race. The plaintiff's allegations are summarized in the Court's earlier Memorandum and Order on the defendants' motion to dismiss and need not be repeated here. See Filing No. 14, Memorandum and Order at 1-2.

         Defendants Cody and Peth move for summary judgment based on qualified immunity. They contend both officers' actions were reasonable. Further, they claim the plaintiff has failed to provide proof sufficient to support his allegations. In support of their motion, the defendants submit several affidavits and attached exhibits. Filing Nos. 37-1 to 37-5.

         Undisputed evidence shows that on August 23, 2017, Autumn Hallowhorn called 911 to report an assault by her boyfriend Lavay Yankton at her home located at 935 “A” Street in Lincoln, Nebraska. Filing No. 37-1, Affidavit of Mayde McGuire (“McGuire Aff.”) at 1; Ex. A, Incident History Log; Ex. B, Transcript of Incident. Dispatchers routinely ask about defining physical characteristics of an assailant. Filing No. 37-1, McGuire Aff. at 2. The dispatcher taking the report inquired as to the race of the assailant and were told he was Native American. Id.

         Lincoln Police Department Officers Gregory Cody and Aaron Peth were dispatched to the scene. Id. Other officers also responded. Id. at 2. Officer Cody states in his affidavit that he reviewed the alleged assailant's prior criminal history while being dispatched to the scene of the assault and determined that the alleged assailant had previous convictions for assault. Filing No. 37-3, Affidavit of Greg Cody (“Cody Aff.”) at 1-2. He therefore treated the matter as a felony investigation. Id. at 2. Officers Cody and Peth both testified by affidavit that they and other LPD officers investigated the alleged felony domestic assault and attempted to locate Yankton. Id. at 2-3; Filing No. 37-2, Affidavit of Aaron Peth (“Peth Aff.”) at 2-3.

         At the scene, Hallowhorn told officers she did not know where her assailant was, indicating he may have been in the shed in the backyard or possibly in the house at 935 “A” Street. Filing No. 37-1, Cody Aff. at 2; Filing No. 37-2, Peth Aff. at 2. In an attempt to locate Yankton, LPD officers knocked on the door at 935 “A” and received no response. Id. LPD officers walked into the backyard of 935 “A” and looked in the shed but did not locate Yankton there. Filing No. 37-3, Cody Aff. at 2. Officers observed an unknown female come out of the back door of 935 “A” who indicated she knew who Yankton was and that he was not in the residence. Id. The officers observed that someone locked the back door of 935 “A” from the inside after the woman had exited the residence. Filing No. 37-2, Peth Aff. at 2.

         Officer Peth states that he and other officers asked the victim if it was her residence and she responded affirmatively. Id. at 3. The officers then obtained verbal consent from Hallowhorn to enter and search 935 “A, ” and they entered the premises through an unlocked door. Id. They found Joseph Yankton, the assailant's brother and a 14-year-old girl in the home. Id. Both individuals were taken outside of the home. Id.

         As Officer Peth left the home, he saw a male, later identified as the plaintiff, talking loudly to Officer Cody. Id. The plaintiff told Officer Cody he could not talk to the girl who had been in the home. Id. at 3. The plaintiff stated he lived next door at 937 “A” Street and asked who had told the officers they could enter 935 A street. Filing No. 37-3, Cody Aff at 3. Also, the plaintiff told Joseph Yankton not to talk to the police. Id. at 3-4. Officer Cody asked the plaintiff to stop interfering with the investigation and to leave. Id. at 4. The officer gave specific commands to the plaintiff to either go into his home or leave the area and he refused to do so. Id.

         The officers state they had probable cause to believe the plaintiff was violating Lincoln Municipal Code 9.08.050 when the plaintiff failed to comply with Officer Cody's request to leave the area and stop interfering with the investigation.[2] Id. at 5; Filing No. 37-2, Peth Aff. at 4. Officer Cody informed the plaintiff he was being placed under arrest and handcuffed him, pursuant to LPD policy and for safety. Filing No. 37-3, Cody Aff. at 5, Ex. A, LPD General Order 1550. Unrefuted evidence shows the plaintiff was arrested and handcuffed and then issued a citation and released. Filing No. 37-3, Cody Aff. at 5-6, Ex. B, Police Report. The charge against the plaintiff was later dismissed.

         The plaintiff responds with largely conclusory arguments. He alludes to an audio recording that would contradict the officers' affidavits but does not submit any affidavits or other evidence in support of that allegation. He also contends the evidence submitted by the officers is inherently contradictory. Further, he submits a newspaper article on criminal ...

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