The opinion of the court was delivered by: K. Gary Sebelius U.S. Magistrate Judge
This matter comes before the court upon the parties' cross-motions for summary judgment and upon defendants' motion to strike plaintiff's affidavit. Plaintiff Rodney Joe Fillmore brings this civil rights action against defendants Osage City, Officer Larry J. Phillips, and Detective Robert T. Dunham stemming from an incident in which Osage City law enforcement officers stopped plaintiff's vehicle and subsequently arrested him. The court previously dismissed plaintiff's claims against April and Larry Thompson. Plaintiff asserts 42 U.S.C. § 1983 claims against Officer Phillips and Detective Dunham in their individual capacities for unreasonable seizure and arrest in violation of the Fourth Amendment and Fourteenth Amendment. He also asserts a Kansas state law claim against the defendant law enforcement officers and against Osage City for unlawful arrest. For the reasons explained below, both summary judgment motions are denied, and defendants' motion to strike is also denied.
I. Legal Standard Governing Summary Judgment Motions
Summary judgment is appropriate if the moving party demonstrates "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."*fn1 A "genuine dispute" exists if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."*fn2 A fact is "material" only if it "might affect the outcome of the suit under the governing law."*fn3 The court views the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmoving party.*fn4
The legal standard applied to summary judgment motions does not change if the parties file cross-motions for summary judgment. Each party bears the burden of establishing the lack of a genuine issue of material fact and entitlement to judgment as a matter of law.*fn5 To meet this standard, the moving party need not negate the claims of the opposing party; instead, the moving party can simply point out the absence of evidence for the opposing party on an essential element of that party's claim.*fn6
If the movant carries this initial burden, the non-movant that would bear the burden of persuasion at trial may not simply rest on its pleadings but must instead "set forth specific facts" that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the non-movant.*fn7 Sufficient evidence pertinent to the material issue "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."*fn8
As an initial matter, the court notes plaintiff's response to defendants' summary judgment motion fails to controvert any of the facts defendants set forth. Ordinarily, facts not specifically controverted by the party responding to a summary judgment motion will be deemed admitted.*fn9
In this case, however, plaintiff has also filed a summary judgment motion with a recitation of facts that, in some instances, find support in the record and properly controvert a number of facts set forth by defendants. Accordingly, the court will only deem defendants' facts admitted to the extent they find support in the record and are not controverted by plaintiff's recitation of facts that find support in the record. The court must also take up defendants' motion to strike portions of plaintiff's affidavit; however, for clarity, the court will address that motion after addressing the facts that give rise to this action.
Officer Larry J. Phillips testified that on July 27, 2008, he received a phone call from April Thompson, an Osage City resident known to Officer Phillips. According to Officer Phillips, Ms. Thompson informed him she was standing at the side of her house when she heard a vehicle stop in front of her home for a matter of seconds or minutes. Officer Phillips testified that Ms. Thompson told him the silver or gray car drove off when she walked to the front of her house. Based on this report, Officer Phillips testified he intended to find the vehicle to perform a "public safety stop." Detective Robert T. Dunham, who was coming on duty around the time Officer Phillips received the phone call, accompanied Officer Phillips to search for the vehicle.
What happened next is not entirely clear. At a minimum, it appears Ms. Thompson and her husband left their home in their vehicle in search of the car she had seen. At some point, the Thompsons found the vehicle believed to have been stopped in front of their home. The officers were also in the area at this time. Upon seeing them, Ms. Thompson either gestured to Officer Phillips or spoke to Officer Phillips in order to point out Mr. Fillmore's vehicle. The officers then pulled over Mr. Fillmore and approached his car.
Officer Phillips testified he asked for Mr. Fillmore's driver's license. Mr. Fillmore held up the license for a matter of seconds but did not hand it to Officer Phillips. According to Officer Phillips, he then asked Mr. Fillmore to show him the license again and hold it up long enough for Officer Phillips to take down the information on the license. Mr. Fillmore again held up the license but did not hand the license to Officer Phillips. The officers contend Mr. Fillmore did not display the license for a sufficient amount of time for Officer Phillips to copy the information contained on the license.
After Mr. Fillmore put down the license, Officer Phillips asked Mr. Fillmore to step out of his vehicle and walk to the back of the car. What happened next is disputed. Mr. Fillmore contends Officer Phillips asked him why he stopped in his car on 4th Street and stared at some child. Mr. Fillmore says he asked Officer Phillips if that was the only reason why he stopped him, and when Officer Phillips responded affirmatively, Mr. Fillmore said he was not going to answer any more questions. At that point, Mr. Fillmore says Officer Phillips informed him that he was under arrest. He contends Officer Phillips then asked him if he had any weapons. Mr. Fillmore says he told Officer Phillips he had a pocket knife clipped to his belt. According to Mr. Fillmore's version of events, Officer Phillips patted down Mr. Fillmore and the officers removed the knife and wallet from Mr. Fillmore's person and then placed handcuffs on Mr. Fillmore.
The officers contend that after Officer Phillips asked Mr. Fillmore to exit the vehicle, he then inquired about whether Mr. Fillmore had any needles, knives, or weapons on him. They say Mr. Fillmore informed them he had a pocket knife and contend Detective Dunham directed Mr. Fillmore to place the knife on the car. When Mr. Fillmore failed to do so, the officers say they arrested him.
The officers testified they originally arrested Mr. Fillmore for obstruction in violation of K.S.A. 21-3808(a). They contend the knife taken from Mr. Fillmore had a blade that was in excess of four inches in length and was concealed, in violation of K.S.A. 21-4201(a). However, the officers were unsure at the time of the arrest whether Mr. Fillmore had violated the concealed weapons statute. They discovered Mr. Fillmore possessed a concealed weapons permit from Arizona when the officers were in the process of locating Mr. Fillmore's driver's license. Officer Phillips testified he did not know whether the permit would allow Mr. Fillmore to carry the weapon in Kansas. Mr. Fillmore was never prosecuted, and consequently, never convicted of any of the alleged offenses stemming from the incidents that occurred during the stop.
As previously mentioned, defendants have moved to strike Mr. Fillmore's affidavit, which he has attached in support of his summary judgment motion. Defendants argue paragraphs two through five of Mr. Fillmore's affidavit directly contradict his prior sworn deposition testimony and the facts pled in his complaint. They argue the affidavit is an attempt to create sham issues of fact in order to avoid summary judgment.
The court may disregard portions of an affidavit that conflict with prior sworn statements if the court "concludes that the evidence is merely an attempt to create a sham fact issue."*fn10
When making this determination, the court considers the following factors: (1) whether the party was cross-examined during the prior testimony; (2) whether the party had access to relevant evidence at the time of the prior testimony, or whether the testimony presented in the affidavit was based on newly discovered evidence; (3) whether ...