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Agee v. Lima

United States District Court, D. Nebraska

October 21, 2019

STEVEN AGEE, Plaintiff,
v.
ERIC S. LIMA, COREY M. GORDEN, and THE CITY OF OMAHA, NEBRASKA, a Political Subdivision, Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE

         The 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 Omaha.[1]

         I. STANDARD OF REVIEW

         Summary 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.

         II. BACKGROUND

         On the 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.

         Fisher 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. Id.

         Fisher 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.

         The 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.

         The 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.

         After 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.

         The 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.

         III. DISCUSSION

         1. ...


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