United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Before the court is defendants' Second Motion for Summary Judgment. Plaintiff Jacob Molina filed a Bivens action against defendants Greg Perez and Karl Timmons for Fourth Amendment violations after they detained plaintiff on his property while investigating an immigration warrant for an individual who was not on the premises. Defendants moved for Summary Judgment (Dkt. 18) shortly after initial discovery disclosures, which the court denied. Discovery is now closed and defendants have filed a Second Motion for Summary Judgment (Dkt. 59). Defendants' Motion is denied.
I. Undisputed Facts
Plaintiff Jacob Molina is a pastor who lives with his wife on Barron Road in Wichita, Kansas. The couple owns a home located at 2216 S. White Cliff Road, also in Wichita, where plaintiff's brother-in-law lives. The brother-in-law and plaintiff's father-in-law share the same name: Jose Florencio Flores-Euceda.
Defendant Perez has been employed by Immigration and Customs Enforcement ("ICE") and its predecessor agency, Immigration and Naturalization Service, since May 1997. He is currently a Deportation Officer (DO) under the ICE Office of Enforcement and Removal Operations (ERO). Defendant Timmons has been employed by ICE for approximately 19 years. He is currently employed as a DO with the ICE ERO, Fugitive Operations Team in Wichita. Both defendants have training on the proper use of force by law enforcement officers.
On July 1, 2011, defendants received information about an individual named Jose Antonio Flores-Hernandez (the "target"), a citizen of Honduras with an outstanding warrant of removal that was issued in August 2005. Through a search of available databases, Timmons determined that a male with the target's name and date of birth possibly resided at 2216 S. White Cliff Road, Wichita, Kansas 67207.
Timmons conducted surveillance at the target address twice in August 2011. He performed registration checks on the license plates of vehicles parked at the White Cliff residence and discovered who owned the vehicles. One of the license plates was registered to plaintiff at 9130 E. Barron Road, Wichita, Kansas 67207. Timmons learned from a records check that plaintiff had been arrested by the Wichita Police Department for unlawful discharge of a firearm on August 11, 1992, but the misdemeanor complaint had been dismissed. Timmons also checked driver's license photographs to determine whether the target was using "Jacob Molina" as an alias. Plaintiff's photograph established that he was not the target.
On August 17, 2011, Perez and Timmons went to the White Cliff address to conduct additional surveillance, hoping to locate and apprehend the target. At approximately 6:30 a.m., Timmons observed the gray Honda registered to plaintiff in the driveway of the White Cliff residence, along with a new vehicle: a green Honda SUV. Timmons called for a registration check on the green Honda; it was registered to a "Jose Flores" living at 2216 S. White Cliff Lane, Wichita, Kansas 67207. Timmons believed the information connected the target to the White Cliff residence, as suspected.
Defendants then decided to approach the house to talk with the occupants. Neither officer was wearing an official law enforcement uniform. Timmons was wearing civilian attire with his badge on a neck chain displayed outside his shirt and body armor. Perez was wearing trousers and a blue polo shirt. He also wore a tan vest over his body armor, which displayed a "POLICE" patch and a patch depicting an ICE badge, and his badge on a neck chain outside his vest.
Between 7:45 and 7:50 a.m., Timmons knocked on the front door of the residence and rang the doorbell. Nobody answered the door. He knocked and rang the doorbell again but received no answer. Two dogs came to the window and barked. Timmons stayed near the front door, periodically knocking and ringing the doorbell. He believed the occupants might still be asleep or just awakened and could be getting dressed.
At approximately 7:55 a.m., plaintiff's brother-in-law, Jose Florencio Flores-Euceda, answered the door but did not introduce himself. He stayed inside with the storm door closed and talked to Timmons through the glass. Timmons introduced himself as an ICE agent. Jose asked Timmons what he was doing there. Timmons looked at the target's photo and saw that the man who answered the door was not the target. Timmons said he was looking for Jose Flores, the man who drove the green SUV. Jose said that was his father. Timmons knew that the Jose Flores he was looking for was too young to be this man's father, so he asked the man in the doorway whether he was Jose Flores. The man said that he was not.
The dogs continued barking in the house. Timmons asked if the defendants could come in and talk with the man, and if he would put the dogs away. The brother-in-law responded that he would go put the dogs away and he shut the door. The defendants waited about ten minutes before Timmons knocked and rang the doorbell again, but no one responded.
Unbeknownst to defendants, the brother-in-law had called plaintiff after shutting the door and told him two men were at the house. Plaintiff immediately drove to the house, arriving at approximately 8:05 a.m. When plaintiff got out of his car, Timmons recognized him from the driver's license photograph.
Timmons identified himself as an ICE agent and called out the name "Jacob Molina." Plaintiff acknowledged that this was his name. Perez also introduced himself as an ICE agent and asked whether plaintiff lived at the White Cliff residence. Plaintiff replied that it was his property, but did not say that he lived at the residence.
Plaintiff asked the defendants why they were there, and they said that they were investigating. He asked them whether they had a warrant to search the property and the defendants replied that they did not. Plaintiff suggested that, as the property owner, he could tell them to leave if they did not have a warrant. The defendants did not have a warrant and ordered plaintiff to leave.
Plaintiff then took out his cell phone and called 9-1-1. He gave the dispatch operator the White Cliff address and said there were two individuals on his property. Before he could give any additional information, defendants approached plaintiff from behind, forced him to the ground and handcuffed him, leaving him face-down on the ground. As a result, plaintiff suffered a large welt and some bruising.
After helping plaintiff to a sitting position on the ground, Timmons called an assistant U.S. Attorney. They discussed whether defendants should obtain a search warrant. While Timmons was on the phone with the attorney, plaintiff's wife arrived. Timmons explained to plaintiff and his wife that the officers were looking for Jose Antonio Flores-Hernandez, and he showed a photograph of the suspect. Plaintiff and his wife stated that they did not know the suspect and that he did not live at the White Cliff residence. A short time later, an older Hispanic man approached the house on foot. Plaintiff's wife introduced the man as her father, Jose Florencio Flores-Euceda. This was not the Jose Flores the officers were looking for.
A pair of Wichita Police Department Officers arrived at 8:27 a.m., summoned by plaintiff's 9-1-1 call. Plaintiff was released from the handcuffs. He then wrote down defendants' names so he could file a complaint with their ICE supervisor. Plaintiff filed this Bivens action against Timmons and Perez, ...