Dwight Vogt v. City of Hays

          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. ...