United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE
plaintiff, Steven Agee, brings this action, alleging in his
second amended complaint civil rights violations pursuant to
42 U.S.C. § 1983 for false arrest and the unlawful
seizure of his property. The individual defendants, Eric Lima
and Corey Gorden, are City of Omaha police officers. The
officer defendants in their individual capacity have moved
for summary judgment on the basis of qualified immunity. The
City and the officers in their official capacity have moved
for summary judgment alleging that there is an absence of
evidence supporting a claim for municipal liability. For the
reasons that follow, the Court will deny the defendants'
motion regarding the individual capacity claims against Lima
and Gorden, and sustain the motion with respect to the
official capacity claims against the officers and the City of
STANDARD OF REVIEW
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a). On a motion for summary judgment, facts
must be viewed in the light most favorable to the nonmoving
party only if there is a genuine dispute as to those facts.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc). Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the evidence are jury functions, not those of
a judge. Id.But the nonmovant must do more than
simply show that there is some metaphysical doubt as to the
material facts. Id. In order to show that disputed
facts are material, the party opposing summary judgment must
cite to the relevant substantive law in identifying facts
that might affect the outcome of the suit. Quinn v. St.
Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The
mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be
evidence on which the jury could conceivably find for the
nonmovant. Barber v. C1 Truck Driver Training, LLC,
656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
night of January 2, 2017, the plaintiff and his roommate,
Jason Fisher, got into an argument about money. Filing 47-1,
filing 47-3 at 41. Fisher was the son of the plaintiff's
friend, and had worked with the plaintiff at a jobsite until
Fisher was fired. Filing 47-3 at 40. After losing his job,
Fisher could not afford his apartment. The plaintiff agreed
to let Fisher stay in the plaintiff's rented house on the
condition that they would split expenses. Filing 47-3 at 41.
On the night of the argument, the plaintiff said that Fisher
was three or four months behind on his share of rent, and
that the plaintiff had paid other expenses for Fisher,
expecting to be paid back. When Fisher came home from a party
with his girlfriend, the plaintiff confronted him and told
Fisher that things were not working out and he needed to find
another place to live. Filing 47-3 at 41. Fisher said he did
not have any other place where he could go, but the plaintiff
responded that he did not care. Fisher then said he was going
to call the police and tell them that the plaintiff had a
handgun sitting on the coffee table. Filing 47-3 at 42.
made the call, telling the 911 operator that he was having a
disturbance with his roommate. Filing 47-1; filing 47-2.
Officers Lima and Gorden were dispatched to respond to
Fisher's call, and were told that Fisher said the
plaintiff was armed with a handgun. Id. On the way
to the plaintiff's house, the officers were informed that
the plaintiff was a concealed carry permit holder, and that
the plaintiff had been served with a protection order on
April 20, 2016. Id. Fisher met the officers upon
their arrival and spoke with them outside. Filing 47-1. The
officers asked Fisher whether the plaintiff had threatened
him. Id. Fisher said no, but that he was just scared
because the plaintiff kept handguns hidden throughout the
house, and that on a prior occasion the plaintiff had
discharged one of his firearms outside the house.
gave the officers permission to enter the house, and once
inside, the officers found the plaintiff sitting on a couch
in the living room, but without a handgun. Filing 47-1;
filing 47-3 at 43. The plaintiff told the officers that after
learning that Fisher had called the police, he took the
handgun that was on the coffee table upstairs to his bedroom
and placed it in a drawer. Filing 47-2. The plaintiff also
told the officers that he always keeps a handgun nearby
because of the area he lives in. Fisher had told the officers
that the plaintiff usually carried a handgun with him in the
house. Filing 47-1. The officers asked the plaintiff how many
firearms were in the house, and the plaintiff identified two
rifles, a shotgun and several handguns. Filing 47-1. The
plaintiff told the officers that he did not mean to be
threatening by always keeping a firearm nearby. Filing 47-1.
officers asked the plaintiff whether he knew he was the
subject of a protection order. According to the officers, the
plaintiff said he knew that a previous girlfriend had filed
one, but he believed that it was not currently active. Filing
47-1. Also, according to the officers, when they told the
plaintiff that the protection order prohibited him from
possessing firearms, the plaintiff said that he was unaware
of the prohibition, and that had he known of the prohibition,
he would have happily given his firearms to his son or
another person. Filing 47-1; filing 47-2. The plaintiff said
he was pretty sure he told the officers that the protection
order was a harassment protection order. Filing 47-3 at 43.
In fact, the plaintiff was subject to a harassment protection
order dated April 19, 2016, prohibiting the plaintiff from
contacting or otherwise disturbing the peace of his former
girlfriend for one year. Filing 52-5.
officers confirmed through the police information channel
that the protection order was current and active.
Id. The plaintiff does not recall whether the
officers referred to the protection order as a harassment
protection order, but recalls that the officers told him he
was a "prohibited person" because there was a
protection order against him. Filing 47-3 at 45. The officers
do not report whether they confirmed the type of protection
order entered against the plaintiff, but believed that the
protection order in force against the plaintiff made him a
person prohibited from possessing firearms. As such, the
officers placed the plaintiff under arrest for possession of
a firearm by a prohibited person. Filing 47-1; filing 47-2.
the plaintiff was told he was under arrest, the officers
asked him to lead them to all of his firearms. Officer Lima
reported that the plaintiff was extremely cooperative and
directed the officers to all of the firearms in his house.
Filing 47-1. The plaintiff's firearms were collected and
booked into property by Officer Gorden. Filing 47-1; filing
47-2. The officers booked the plaintiff into Douglas County
Corrections that night, and the plaintiff remained confined
for the next twenty-one days before being released. Filing 22
at 2. The plaintiff's confiscated firearms were returned
to him on April 17, 2017. Filing 48 at 3.
plaintiff testified in his deposition that Fischer told his
father that one of the officers told the other officer,
"I think we're f**king up here" because the
plaintiff was not a convicted felon. Filing 47-3 at 45. In
answers to the plaintiff's requests for admission, Lima
admitted that at the time of the plaintiff's arrest, he
did not verify the type or nature of the protection order
issued against the plaintiff, and that he did not know the
difference between a domestic violence protection order and a
harassment protection order. Filing 52-1. Officer Gorden
admitted that he did not verify the type of the protection
order at the time of the plaintiff's arrest, but denied
that he did not know there was a difference between a
domestic violence protection order and a harassment
protection order. Filing 52-2.