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Budd v. Unified Government of Wyandotte County

United States District Court, Tenth Circuit

January 13, 2014

Donald E. Budd, Jr., et al., Plaintiffs,
v.
Unified Government of Wyandotte County/Kansas City, Kansas, et al., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

Suspecting that a standing mower advertised on Craigslist was property stolen from a Missouri resident, several members of the Kansas City, Missouri Police Department (KCMoPD) conducted a sting operation in which they traveled to Kansas, posing as prospective buyers.[1] As a result of their operation, plaintiff Donald E. Budd, Jr., was detained, and the mower was taken into custody by officers of the Kansas City, Kansas Police Department (KCKPD), operating on behalf of the Unified Government of Kansas City, Kansas and Wyandotte County.[2] Budd has brought the present civil rights action against officers of both departments, as well as the Unified Government.

All of the defendants have moved for summary judgment. For the reasons provided herein, the court hereby grants the motion filed by the Unified Government and the KCKPD officers. The motion by the KCMoPD officers is granted in part and denied in part.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Findings of Fact

On May 6, 2011, Michael Green reported to Kansas City, Missouri police officer Bobbie Irvin that his Wright Stander mower had been stolen from a Wal-Mart parking lot. Green gave Irvin the mower’s serial number (29751), and Irving prepared an offense report.[3]

On May 27, 2011, Central Pawn, a licensed Kansas pawnbroker, bought a Wright Stander mower for $1300, from a man identified in the bill of sale as “JR Rodriguez.” Don Budd, Jr., the corporate officer of Central Pawn, took the mower to his residential property, and placed the mower in a storage shed.

Shortly thereafter, Central Pawn listed the mower as available for purchase in Craigslist for $4500. The ad does not mention Central Pawn, and gives only Budd’s cell phone number.

Green saw the listing, and telephoned KCMoPD Sgt. Ropka. Green told Ropka that he believed the mower was his, and that he could identify it by a unique bracket he had attached. Ropka called the number listed on the Craigslist ad, posing as an interested buyer, and made arrangements to inspect the mower within the next hour or two. Budd gave Ropka an address, which contains both Budd’s home and the storage building which held the mower.

Ropka then briefed Sgt. Gentry about the ad, the mower’s location, as well as identifying marks on the mower. Gentry had Officer Porter contact Green to discuss the identifying characteristics of the mower. Ropka and Gentry were unaware that the serial number for the mower was included in Irvin’s report, so Porter prepared a list of the mower’s unique characteristics. These included the custom bracket installed by Green, a partial tear on the left side of the standing pad, a new built pulley on the right side of the mowing deck, and another custom, tie-down bracket installed by Green on the mowing deck.

Gentry formed a squad of KCMoPD officers, who drove to Budd’s location. Gentry, Porter, and Butkovich drove in a Chevy Tahoe. Other officers drove in a blue Ford Crown Victoria, which held back in reserve.

At around 2:20 p.m., the officers in the Tahoe arrived at the place where Budd kept the mower. Gentry and Porter got out of the Tahoe and approached Budd, and told him they worked for a lawn servicing company and were interested in buying the mower.

Budd went into his storage building and pushed the mower out onto a concrete slab in front of the building. According to Budd, he became concerned because Gentry and Porter appeared evasive, and he could tell neither Gentry nor Porter knew how to start the mower or operate it. In addition, he saw a third person in the Tahoe, and became concerned he was about to be robbed.

In addition, Budd states that one of the Missouri officers entered the storage shed and began to look around. Budd asked him to get out, but the officer did not leave. Instead, another officer went into the building. Budd did not do anything threatening, and appeared polite and reasonable.

Porter looked at the mower and found noted four modifications by Green that were unique to his mower. The officers then called in a Kansas City, Kansas police officer stationed nearby. It is unclear how this occurred. There is some evidence that Gentry or Porter signaled to Butkovich that the mower was the one they were looking for, and Butkovich then made the radio call. Other evidence suggests that Gentry made the call.

Budd took about three steps toward his vehicle, which was then about twenty yards away, but stopped when Gentry and Porter pulled out their badges, identified themselves as KCMoPD officers. According to Budd, one of them also pulled out a weapon. (The officers deny any weapon was drawn.) The officers told Budd he was under arrest. At the time the gun was drawn, Butkovich was leaving or had just left the Tahoe, about 10 to 30 yards away.

Budd claims that he first believed the officers were imposters, since they were Missouri police officers in Kansas. He states that he felt “panicked” and was afraid “he could be shot or stabbed.” At some point, according to Budd, the Missouri officers told him that they had a videotape of him stealing the mower.

At approximately the same time, Officer Cheryl Purintin arrived in a Kansas City Kansas Police Department car, as well as additional KCMoPD officers in the Crown Victoria. Officer Deyaeghere got out of the Crown Victoria and met with the other Missouri officers.

At the request of Gentry and on his information, Purintin handcuffed Budd. She later removed the handcuffs and had Budd sit in the back of her vehicle.

The mower held by Central Pawn had the same serial number, 29751, as that on the mower stolen from Green. At some point, The Missouri officers discovered the serial number for Green’s mower, and found it matched the mower at Central Pawn. Ropka confirmed the mower’s serial number with an officer in Kansas, although it is unclear who this officer was.

Kansas officers took custody of the mower, and Budd understood the mower was being taken to the department’s property room. The evidence establishes that the Missouri officers (Moore, Johnson, Butkovich, Deyaeghere, Porter and Gentry) did not seize the mower or see any other KCMoPD officer seize it.

Budd does not allege that any of the Missouri defendants entered the storage shed other than Gentry, Porter, and Butkovich.

It is uncontroverted that defendants Moore, Johnson, Butkovich and Deyaeghere did not draw a weapon or use any physical force against Budd. Budd does allege that Butkovich did identify himself by flashing his badge. Budd alleges that during this time the Missouri officers told him, falsely, that the had videotape of him stealing the mower.

Budd stresses that the Missouri officers conducted their sting operation without first checking out the number in the ad, and did not conduct an investigation of the address he gave to Ropka over the phone. They knew nothing about Central Pawn. When they conducted the sting operation, they did not have an arrest warrant or a search warrant. There was no hot pursuit, or any exigent circumstances requiring immediate or forceful action. At least one of the Missouri defendants has admitted that the alleged crime was not particularly serious. Budd never took any threatening action against the officers.

Policies for the KCKPD are set by the chief of police and embodied in general orders, and the Department’s policy on found, safekeeping, and evidentiary property is set out in General Order No. 80.02. Under that Order, “[w]henever officers come into possession of any evidence or property, whether it be found or seized for safekeeping, they will immediately complete a Property Report explaining the facts under which they came into possession of such property.” Under Section III(G) of the General Order, “Officers will place all property in the property room or the after-hours property locker room before the end of their tour of duty.” In addition, “[i]f property is recovered after hours, which is of such unusual size, volume, or value that it renders the usefulness of the storage room impractical, a designee from the Property/Logistics Unit will be contacted to assist with securing the property.” Section XV of General Order controls the disposition of evidence and property:

A. Evidence and property should be disposed of in accordance with state statute KSA 22-2512 and/or other applicable laws.
1. Safekeeping and found property should be disposed of within six (6) months after the legal requirements pertaining to ...

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