United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN
W. BROOMES UNITED STATES DISTRICT JUDGE.
Before
the court are Plaintiff's motion for partial summary
judgment (Doc. 85) and Defendant's motion for summary
judgment (Doc. 87). The motions are fully briefed and the
court is prepared to rule. (Docs. 86, 88, 93, 97, 100, 101.)
For the reasons stated herein, Plaintiff's motion (Doc.
85) is DENIED; Defendant's motion (Doc. 87) is GRANTED.
I.
Background
Plaintiff
brought this action for damages under 42 U.S.C. § 1983,
claiming Defendant violated Plaintiff's Fifth Amendment
right not to be compelled to be a witness against himself in
a criminal case. The claim relates to statements by Plaintiff
that led to the filing of felony charges and a preliminary
hearing against him in Ellis County District Court. The
charges were dismissed following the preliminary hearing. In
2015, the Hon. Monti L. Belot dismissed Plaintiff's
§ 1983 claim, relying on case law that said the
privilege against self-incrimination was a trial right that
did not apply in pretrial proceedings. (Doc. 29.) On appeal,
the Tenth Circuit reversed that ruling, concluding the
privilege applies at preliminary hearings as well as criminal
trials.[1] (Doc. 37.) The United States Supreme Court
granted a writ of certiorari and heard arguments on the
issue, but it subsequently dismissed the writ as
improvidently granted, leaving the Tenth Circuit's
mandate as a final ruling. City of Hays, Kan. v.
Vogt, 138 S.Ct. 1683 (Mem) (May 29, 2018).
II.
Facts
The
court finds the following facts to be uncontroverted for
purposes of summary judgment.
Defendant
is a municipal corporation in Ellis County, Kansas, and is
duly organized under the laws of Kansas. Don Scheibler is the
Chief of the City of Hays Police Department (HPD). His duties
include supervising HPD employees. Brandon Wright is a
lieutenant for the HPD. His duties include supervising patrol
officers (including Plaintiff) and conducting internal
investigations. (Doc. 86 at 1-2.)
Plaintiff
was employed as a police officer with the HPD for eight
months in 2007, and then again from November 1, 2009, until
his resignation on January 2, 2014. During that time,
Plaintiff came into possession of a knife while on a criminal
damage call on East 16th Street in Hays.
Plaintiff
applied for a job with the City of Haysville Police
Department in October 2013. The application process required
a polygraph examination, which Plaintiff agreed to take. In
the course of that examination, Plaintiff disclosed that he
had gone “on a call and found a Smith and Wesson
folding knife but he didn't turn it in as found property
because he needed a knife so he took it home and kept
it” and “still [had] the knife in his
possession.” (Doc. 88 at 4.)
The
polygraph examination was followed by an interview with
Haysville Chief of Police Jeff Whitfield. Whitfield extended
a conditional job offer to Plaintiff, saying he could have
the job provided he resolved the knife matter by disclosing
his retention of the knife and turning it over to the HPD.
Whitfield indicated Haysville would need to verify
Plaintiff's compliance with that condition. (Doc. 86 at
3.)
Two
days later, on December 11, 2013, Plaintiff met with HPD
Chief Scheibler to advise him of his intention to take the
job with Haysville. Plaintiff told Scheibler he had been
given a job offer and was resigning. He told Scheibler of
Haysville's condition that he disclose his retention of
the knife and turn it over. He informed Scheibler that
Haysville told him he had to “make that right”
with HPD and that Haysville would contact Scheibler to make
sure he had done so. Plaintiff told Scheibler he found the
knife somewhere in the gutter while working for HPD and kept
it as his duty knife. (Doc. 88 at 2-3.)
Scheibler
took the knife and instructed Plaintiff to “cut a case,
” meaning to prepare a found property report about the
knife. Plaintiff wrote a report on December 11 that stated,
“A black Smith and Wesston [sic] folding pocket knife
was located in the 100 blk. E. 16th while investigating
another call.” Plaintiff was aware that under
departmental policies, he was not supposed to keep any
property found on the job. (Id.; Doc. 88 at 3.)
Plaintiff
turned in a resignation letter to Scheibler on December 12,
2013, formally notifying Chief Scheibler that he had accepted
an offer of employment with the Haysville Police Department
and was offering his resignation to the HPD, effective
January 2, 2014. (Doc. 88-6.)
Scheibler
assigned Lt. Wright to do a professional standards
investigation (PSI), the purpose of which is to find out if
an officer has violated a departmental policy. Scheibler
intended to have the PSI completed to provide documentation
to Haysville that Plaintiff had “made this
right.”
Wright
reviewed Plaintiff's found property report. He then
called Plaintiff in for an interview on December 17, 2013.
Plaintiff was on duty at the time. The interview was
recorded. Wright did not give Plaintiff a Miranda
warning or a Garrity warning.[2] The door to
Wright's office was closed. Wright told Plaintiff his
report was “simple and vague” and said he needed
details about the case. Wright asked if Plaintiff was willing
to do that. Plaintiff indicated he was but asked the purpose
of the investigation. Wright said he was investigating an
internal policy violation. According to Plaintiff, he
believed he would be terminated for insubordination if he did
not answer Wright's questions, because he perceived that
the HPD was a paramilitary organization where insubordination
was not tolerated. Plaintiff told Wright he had been
dispatched on a criminal damage call one-and-a-half or two
years earlier, and that after taking a report on 16th Street,
he found the knife in the gutter while walking back to his
car. Plaintiff said he picked it up, noted it was rusted and
torn up, and said he later cleaned it and used it on duty
because he did not have a good pocket knife. He said he
believed the knife was not involved in the property damage
offense because it was covered by leaves and had been in the
gutter for some time. (Doc. 86 at 5-7; 88 at 4-6; 93-5.)
Wright
told Plaintiff that he could not tell him what would happen,
indicating that Plaintiff's actions were a violation of
policy. He said he wanted to get Plaintiff's report
completed more accurately and would see if he could find the
owner of the knife. Plaintiff asked what details Wright
wanted in the report. Wright instructed Plaintiff to add the
approximate time and location where he found the knife to his
report. Plaintiff added a sentence to the report stating,
“The knife was found in the south gutter with the blade
closed approximately in the middle of the block, ” and
added that the incident occurred between May 1, 2010, and May
30, 2010. (Id.)
Wright
told Chief Scheibler what he learned from his interview.
Scheibler was able to identify the criminal investigation in
which Plaintiff obtained the knife by performing a computer
search using the following information: (1) the incident was
in the 100 block of East 16th; (2) there was a criminal
damage report; and (3) it involved Plaintiff. Plaintiff had
first disclosed that he acquired the knife in the course of a
criminal damage call when he answered Wright's questions.
There was only one such criminal damage report. It involved a
pickup truck with its tires slashed and paint scratched.
Wright reviewed that case and called the victim, Ian Mabb.
Wright asked Mabb if the incident involved a knife. Mabb said
he had handed a knife that he found to the officer.
Plaintiff's narrative report of the incident on April 28,
2012, did not mention a knife. There was an audio recording
of Plaintiff's encounter with Mabb in HPD's records
indicating Plaintiff received the knife from Mabb. Wright
reported these findings to Scheibler, who told him to stop
the PSI investigation because the matter would be referred
for a criminal investigation. Wright submitted his PSI report
to Scheibler on December 18, 2013. (Docs. 86 at 7; 88 at
7-9.)
Scheibler
referred the matter to the Kansas Bureau of Investigation
(KBI) for a criminal investigation.[3] Scheibler and Wright told
KBI Agent Mark Kendrick what they knew about the case and
gave Kendrick the information they had gathered in their
investigation. Scheibler informed the Hays city manager that
the PSI investigation revealed the knife was likely turned
over to Plaintiff in the course of a felony damage
investigation in 2012. ...