Mark T. Schreiner, Appellant,
Chad S. Hodge and Danny Smith, Appellees.
governmental entity or an employee acting within the scope of
the employee's employment shall not be liable for damages
resulting from any claim based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a governmental
entity or employee, whether or not the discretion is abused
and regardless of the level of discretion involved.
Without making an arrest, a law enforcement officer may stop
any person in a public place whom such officer reasonably
suspects is committing, has committed, or is about to commit
a crime and may demand of the name and address of such
suspect and an explanation of such suspect's actions.
decision to stop a person upon a belief of reasonable
suspicion is, thus, a discretionary act because it is a
decision that is based largely on the officer's training
extending immunity, our Supreme Court has enacted a policy
that police officers should be vested with the necessary
discretionary authority to act in a manner which they deem
appropriate without the threat of potentially large tort
judgments against the city, if not against the officers
from Johnson District Court; James F. Vano, judge. Affirmed.
T. Schreiner, appellant pro se.
Christopher L. Heigele, of Coronado Katz LLC, of Kansas City,
Missouri, for appellees. Before Hill, P.J., Atcheson and
lawsuit for damages, the plaintiff, Mark Schreiner, complains
about the actions of two Mission, Kansas, police officers-one
who was investigating a concerned citizen's complaint
about a strange truck parked near her home and the second, a
supervising sergeant, called to the scene at the
plaintiff's request. The district court granted summary
judgment to the two officers, essentially ruling the officers
had good reason to investigate and the 25-minute encounter
was reasonable under the circumstances. The court went on to
hold the officers were immune from Schreiner's claims for
damages. We agree.
facts are undisputed.
Schreiner does not dispute the facts, he does challenge the
legal conclusions drawn from the facts. In other words, this
case boils down to a question of law. See Martin v.
Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013).
police receive two phone calls, a month apart, about the same
2014, the Mission, Kansas, police received a call concerning
a suspicious vehicle. The caller told the police that a man
had parked his white truck with a Missouri license plate near
Broadmoor Street, got out of the truck, and ran into a nearby
wooded area. Officer Roy Castle went to that location and
found the truck. It was locked. Castle talked to the man who
had called. After a brief investigation of the vehicle and
after making a quick search of the surrounding area for any
signs of break-ins or burglaries in nearby homes, which
revealed nothing suspicious, Castle concluded his
two weeks later, concerned citizen Mary Cranor, who lives on
Broadmoor Street near the location of the first report,
called the Mission police. Cranor reported that a suspicious
vehicle was parked outside of her home and she saw a man get
out and enter the nearby woods. Officer Chad Hodge went to
investigate the report. Before reaching the truck's
location, Hodge was told about the prior report concerning
this truck, including the fact that the individual had left
the truck and entered the woods. Hodge's report was
included in the documents supporting the joint motion for
summary judgment. It narrates what happened.
Hodge was investigating, Schreiner came out of the woods and
walked towards the truck. Hodge met Schreiner on the street
before Schreiner got to the truck and asked Schreiner if the
truck belonged to him. Schreiner refused to answer. Hodge
followed Schreiner and again asked him if the truck belonged
to him. Schreiner replied, "Am I under arrest or
not?" Schreiner told him that he was not under arrest
and he asked Schreiner to stop walking away. Schreiner did
not comply and got in the truck. Hodge approached Schreiner
and "took control of his left arm" while Schreiner
was seated in the driver's seat. Hodge then ordered
Schreiner out of the vehicle and told him he was being
temporarily detained until Hodge finished his investigation
of a report of a suspicious truck.
complied and got out of his truck but started to walk away.
Hodge "took control of his right arm" and again
told him that he was not under arrest, but he was not free to
leave until Hodge completed his investigation. Schreiner then
yelled, "If I'm not free to leave then I'm under
arrest." Schreiner, unasked, then stretched out
face-down on the street. Hodge told Schreiner to sit on the
curb, and he did so. Schreiner gave Hodge his driving license
when the officer asked for it. Schreiner asked Hodge to call
his supervisor and told Hodge that he would no longer speak
made the call and Mission Police Sergeant Danny Smith, a
supervisor, soon arrived along with some other officers.
After their arrival, Hodge checked with the dispatcher to see
if the truck was reported stolen and if there were any
warrants for Schreiner's arrest. While this was going on,
Schreiner gave various reasons to Smith why he had parked his
truck at that spot. He told Smith he was having an affair
with a woman and they met in a nearby park because he did not
want his wife to find out. Schreiner also said he parked
under the shady trees and then walked to the Hy-Vee grocery
store. Officer Hodge testified that Hy-Vee is located over a
half-mile from where Schreiner parked his truck.
dispatcher told Officer Hodge that there were no warrants for
Schreiner and the truck was not stolen. Once the police had
this information, they released Schreiner. The entire
encounter lasted about 20 to 25 minutes.
the benefit of an attorney, Schreiner, in his amended
petition, sued Officer Hodge and Sergeant Smith, seeking
damages for assault, battery, false arrest, and false
imprisonment. The officers moved for summary judgment,
arguing that Hodge had reasonable suspicion to stop Schreiner
based upon the circumstances and both were entitled to
discretionary function immunity under K.S.A. 2016 Supp.
conclusion of its hearing on the motion, the district court
noted that Schreiner was evasive, erratic, and nervous with
the police. Schreiner does not dispute this finding. The
court ruled that reasonable suspicion supported
Schreiner's stop and Officer Hodge and Sergeant Smith
were entitled to discretionary function immunity under the
law. Schreiner appeals, arguing that since there was no
evidence of any crime being committed and no evidence that he
was involved in any criminal activity, the officers had no
right to detain him and the court erred by granting summary
confronted with one legal question to answer. Are the police
officers entitled to judgment as a matter of law, as the
district court ruled? We begin with an examination of the
pertinent statutes and then turn to the cases to establish
the framework we must use to reach our decision. As it so
frequently does in matters of law, we find our question comes
down to a question of reasonableness.
statute, K.S.A. 2016 Supp. 75-6104(e), describes governmental
immunity that arises from discretionary acts:
"A governmental entity or an employee acting within the
scope of the employee's employment shall not be liable
for damages resulting from:
"(e) any claim based upon the exercise or performance or
the failure to exercise or perform a discretionary function
or duty on the part of a governmental entity or employee,
whether or not the discretion is abused and regardless of the
level of discretion involved."
Officer Hodge and Sergeant Smith are both employees of
Mission, Kansas, and were, at all times pertinent to this
lawsuit, engaged in the performance of their official duties.
We turn now to the statute dealing with police officers
stopping and questioning people.
22-2402(1) sets out what an officer may do:
"Without making an arrest, a law enforcement officer may
stop any person in a public place whom such officer
reasonably suspects is committing, has committed or is about
to commit a crime and may demand of the name, address of such
subject and an explanation of such suspect's
points arise from reading this statute. The first phrase,
"[w]ithout making an arrest, " implies that there
is more to the police function in our society than making
arrests. This law implicitly recognizes that to do their job,
the police must investigate. Obviously, that is what Officer
Hodge was doing-investigating a citizen's complaint.
second point relates to the statute's verb. Clearly, by
using the word may in the statute, the Legislature
leaves the decision to stop a person up to the discretion of
the officer. By the language of the statute, the officer is
not required to stop a person on the street but may
do so when the officer reasonably suspects criminal activity
is occurring. The decision to stop a person upon a belief of
reasonable suspicion is, thus, a discretionary act because it
is a decision that is based largely on the officer's
training and experience. See Thomas v. Board of Shawnee
County Comm'rs, 293 Kan. 208, 234-35, 262 P.3d 336
(2011). Then, in State v. Walker, 292 Kan. 1, 8, 251
P.3d 618 (2011), the court clarified that determining whether
an officer has reasonable suspicion must be viewed in light
of all the circumstances and from the viewpoint of ...