United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
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.
an action for deprivation of rights under 42 U.S.C. §
1983 in connection with police conduct in responding to a
domestic dispute call.
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.
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.
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.
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.
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.
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.
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.
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. 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
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