LARRY W. MORRIS, JR., Plaintiff,
JAMES ZAGER, et al., Defendants.
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge.
Larry W. Morris, Jr., brings suit against James Zager and the Unified Government of Wyandotte County and Kansas City, Kansas (“Unified Government”). Under 42 U.S.C. § 1983, plaintiff asserts that Zager violated his right to be free from excessive force under the Fourth Amendment (Count I) and that the Unified Government is liable because it did not adequately train, supervise and counsel Zager regarding his use of deadly force (Count II). See Pretrial Order (Doc. #43) filed February 20, 2013 at 12-13. Plaintiff also asserts claims that the Unified Government is liable under the Kansas Tort Claims Act (“KTCA”), K.S.A. § 75.6101, et. seq. (Count III). Id. at 13. This matter comes before the Court on defendants’ Motion For Summary Judgment (Doc. #57) filed June 21, 2013. For reasons stated below, the Court overrules defendants’ motion.
I. Legal Standards
A. Summary Judgment
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits and other materials, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a), (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which he carries the burden of proof. See Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party’s evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250–51. In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52.
B. Qualified Immunity
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985). The doctrine of qualified immunity serves the goals of protecting officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Butz v. Economou, 438 U.S. 478, 506 (1978).
When defendant asserts a qualified immunity defense at the summary judgment stage, the burden shifts to plaintiff to show that defendant violated a constitutional right and that the constitutional right was clearly established at the time of the alleged violation. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1204 (10th Cir. 2008). To satisfy this burden, plaintiff must show facts which, when viewed in the light most favorable to plaintiff, demonstrate that (1) defendants’ conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If plaintiff does so, the burden shifts back to defendant to prove that no genuine issues of material fact exist and that defendant is entitled to judgment as a matter of law. See Olsen, 312 F.3d at 1312. If the record shows an unresolved issue of fact relevant to the qualified immunity analysis, the Court must deny the motion for summary judgment. See id.
The following facts are either undisputed or construed in the light most favorable to plaintiff.
A. Shooting On March 6, 2010
On March 6, 2010, plaintiff rode as a passenger in a red Pontiac Grand Am driven by his girlfriend, Shasta McCambry, in the 1900 block of North 5th Street in Kansas City, Kansas. As a convicted felon, plaintiff was prohibited from carrying a firearm. Nevertheless, he had a .40 caliber Smith and Wesson handgun in his waistband.
At 4:15 p.m., Officer Zager of the police department of Kansas City, Kansas activated his lights and sirens and stopped the Pontiac to investigate a window tint violation. At the time of the stop, the Pontiac was heading north on 5th Street between Parallel Avenue and Troup Avenue. Zager was in uniform and driving a marked patrol car. He stopped his car behind the Pontiac, advised the dispatcher that he was on a car stop and gave the dispatcher the Pontiac license tag number and his location.
Zager exited his patrol car and walked to the driver door of the Pontiac. He asked McCambry for her driver’s license and insurance, which she provided. Zager bent down and asked plaintiff his name. Plaintiff stated his name. Zager asked for identification and plaintiff produced his driver’s license.
Zager told McCambry that he had stopped her because the window tint on her car was dark. Zager put a tint meter on the car window and told McCambry that it was too dark. Plaintiff did not say anything.
Zager believed that he smelled a strong odor of marijuana coming from the car. He asked McCambry to step out of the car. Zager took McCambry back to his patrol car. There, he told her that he had smelled marijuana coming from her car and that he was going to search the car for marijuana. Because his patrol car did not have a cage, Zager handcuffed ...