United States District Court, D. Alaska
LEONARD A. LAWSON, JR., Plaintiff,
v.
JEFFERY GREGG, et al., Defendants.
ORDER RE MOTION FOR SUMMARY JUDGMENT
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 108 is Defendants Jeffrey Gregg, Richard
Youngblood, Michael Dahlstrom, Monique Doll, and Nathaniel
Clementson's motion for summary judgment. Plaintiff
Leonard Lawson opposed at Docket 118. Defendants replied in
support of their motion at Docket 122. Oral argument was not
requested and was not necessary to the Court's decision.
BACKGROUND
The
underlying facts and procedural history in this case are set
forth in the Court's October 20, 2015 order on Mr.
Lawson's Motion for Summary Judgment and Defendants'
Motion to Dismiss Based on Qualified Immunity.[1] As explained in
that order, Mr. Lawson initiated this action in 2011 by
filing a Civil Rights Complaint alleging that Defendants
engaged in misconduct while entering and securing his
residence to retrieve a package containing
cocaine.[2] He filed a Second Amended Complaint
(“SAC”) on September 3, 2013.[3] The SAC alleges
two causes of action: (1) violation of Mr. Lawson's
Fourth Amendment right “to not be subjected to
unreasonable search and seizure, ” and (2) violation of
Mr. Lawson's Fourteenth Amendment due process rights. The
SAC alleges that on July 14, 2010, at approximately 3:45
p.m., Mr. Lawson was unlawfully arrested while standing on
his back porch. The SAC alleges that law enforcement then
conducted a “warrantless” search of Mr.
Lawson's home and seized property within the home,
including the shotgun that was used as evidence in Mr.
Lawson's criminal case.[4] The SAC alleges that prior to Mr.
Lawson's arrest, he “was not a person of interest
of any investigation, ” and law enforcement “did
not even know [his] name.”[5] The SAC asserts that Mr.
Lawson's arrest and the subsequent search of his home and
seizure of evidence were unlawful. The SAC also asserts that
Mr. Lawson's indictment was “a direct result of the
unlawful arrest, search and seizure” and therefore
violative of his due process rights. The SAC requests $100,
000 in compensatory damages, $1, 000, 000 in punitive
damages, “[a]n order requiring defendant(s) to possess
a valid warrant to search and or seize people or property
‘before' they enter a home or arrest a non-suspect,
” and “[a] declaration that it won't happen
again[.]”[6]
Mr.
Lawson filed a Motion for Summary Judgment on June 1, 2015,
and Defendants filed a Motion to Dismiss Based on Qualified
Immunity on August 10, 2015.[7] The Court addressed both motions
in its October 20, 2015 order, and concluded that each
Defendant was entitled to qualified immunity.[8] The Court
concluded that “even though Defendants violated Mr.
Lawson's constitutional rights [by entering Mr.
Lawson's home], Defendants are entitled to qualified
immunity for their actions in entering the home because
reasonable officials would not have realized they were
violating the law.”[9] The Court further concluded that
“Defendants are also entitled to qualified immunity for
Mr. Lawson's warrantless arrest” because
“Defendants had probable cause to make a warrantless
arrest under the circumstances.”[10] Finally, the
Court also “grant[ed] Defendants' Motion to Dismiss
with respect to Mr. Lawson's Fourteenth Amendment
Claims.”[11]
Mr.
Lawson filed a Notice of Appeal on November 19,
2015.[12] On May 7, 2018, the Ninth Circuit issued
a memorandum opinion addressing Mr. Lawson's
appeal.[13] The Ninth Circuit held that the Court
did not err in concluding that the officers were entitled to
qualified immunity as to their entry into Mr. Lawson's
home and their warrantless arrest of Mr.
Lawson.[14] The Ninth Circuit also held, however,
that the Court “did err in granting the officers
qualified immunity with respect to the protective sweep:
[The protective sweep] was not a “quick and limited
search of [the] premises . . . to protect the safety of
police officers or others.” Any reasonable officer in
the Defendants-Appellees' position would have known he
was violating clearly established Fourth Amendment
jurisprudence because the Defendants-Appellees took 64
photographs, obtained luggage tag and computer information,
and recovered a black container hidden behind the computer
during the protective sweep.[15]
Accordingly,
the Ninth Circuit “reverse[d] the [Court's] grant
of qualified immunity with regard to the protective
sweep” and remanded for further proceedings consistent
with that disposition.[16]
On
August 23, 2018, Defendants filed a motion for summary
judgment as to all claims, along with declarations describing
“[D]efendants' individual actions with respect to
the items the Ninth Circuit mentioned in its
opinion.”[17] Defendants contend that the declarations
show that none of the Defendants violated Mr. Lawson's
constitutional rights.[18]
LEGAL
STANDARD
I.
Jurisdiction and Applicable Law
The
Court has jurisdiction over Mr. Lawson's 42 U.S.C. §
1983 claim pursuant to its 28 U.S.C. § 1331 federal
question jurisdiction.
II.
Law of the Case Doctrine and Rule of Mandate
“The
law of the case doctrine provides that ‘a court is
generally precluded from reconsidering an issue previously
decided by the same court, or a higher court in the identical
case.'”[19] “The rule of mandate is similar
to, but broader than, the law of the case doctrine. A
district court, upon receiving the mandate of an appellate
court cannot vary it or examine it for any other purpose than
execution. Thus, a district court could not refuse to dismiss
a case when the mandate required it, and a district court
could not revisit its already final determinations unless the
mandate allowed it.”[20] “The ‘mandate
rule,' under which a district court has no power or
authority to deviate from a mandate of the Court of Appeals,
is a more powerful version of the law-of-the-case doctrine,
which prevents courts from reconsidering issues that have
already been decided in the same case.”[21]
III.
Scope of Protective Sweep
“A
‘protective sweep' is a quick and limited search of
premises . . . conducted to protect the safety of police
officers or others.”[22] The Fourth Amendment permits
protective sweeps, provided that searching officers
“‘possess[] a reasonable belief based on specific
and articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant[] the officer
in believing that the area swept harbored an individual
posing a danger to the officer or
others.”[23] However, a protective sweep “is
not a license to search every nook and cranny of a house, but
is subject to two significant limitations: it
‘extend[s] only to a cursory inspection of those spaces
where a person may be found' and lasts ‘no longer
than it takes to complete the arrest and depart the
premises.'”[24]
IV.
Summary Judgment Standard
Motions
for summary judgment are governed by Rule 56 of the Federal
Rules of Civil Procedure.[25] Rule 56(a) directs a court to
“grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” When
considering a motion for summary judgment, a court must
accept as true all evidence presented by the nonmoving party
and draw “all justifiable inferences” in the
non-moving party's favor.[26] The burden of showing the
absence of a genuine dispute of material fact initially lies
with the moving party.[27] If the moving party meets this
burden, the non-moving party must present specific evidence
demonstrating the existence of a genuine issue of
fact.[28] The nonmoving party may not rely on mere
allegations or denials. To reach the level of a genuine
dispute, the evidence must be such “that a reasonable
jury could return a verdict for the non[-]moving
party.”[29] If the evidence provided by the
non-moving party is “merely colorable” or
“not significantly probative, ” summary judgment
to the moving party is appropriate.[30]
“Materials
from a proceeding in another tribunal are appropriate for
judicial notice.”[31] Here, the Court will take judicial
notice of testimony from the evidentiary hearing held in
January and February 2011 on the motions to suppress filed in
Mr. Lawson's criminal case and the affidavit submitted in
support of the search warrant for Mr. Lawson's
residence.[32]
DISCUSSION
1.
Officer Clementson
Officer
Clementson's declaration is attached to Defendants'
motion.[33] It describes his conduct during the
protective sweep. Officer Clementson states that while
sweeping the music room in Mr. Lawson's residence, he saw
“a fairly large, flat-screen computer monitor, and that
[he] saw that it displayed a FedEx tracking
screen.”[34] Officer Clementson asserts that he
“[does] not remember touching the computer, desk or
mouse.”[35] He also states that he “saw a
black ceramic . . . candle holder . . . . on the shelf area
behind the computer, ” which he “could see . . .
without looking behind the computer.”[36] Finally,
Officer Clementson states that he “saw luggage . . . .
sitting in the middle of the room in plain view, ” and
“noticed that the luggage tag indicated a connection
with California.”[37]Defendants contend that Officer
Clementson's declaration proves that “his sweep of
the room was quick, and his discovery of the three objects
was incidental.”[38] Defendants assert that Officer
Clementson “swept for about a minute and did not touch
any of the three objects to see them, ” that
“[t]he objects were not hidden, ” and that
Officer Clementson “never retrieved the [candle holder]
during the sweep.”[39]
Officer
Clementson's declaration does not demonstrate the absence
of genuine factual disputes. The Ninth Circuit concluded that
Defendants violated the Fourth Amendment by
“obtain[ing] luggage tag and computer
information” and “recover[ing] a black container
hidden behind the computer during the protective
sweep.”[40] Officer Clementson acknowledges that he
made observations about what was displayed on the computer
screen and on the luggage tags during the
sweep.[41] This information was later included in
Officer Gregg's “Affidavit in Support of
Application for Search Warrant” for Mr. Lawson's
residence.[42] The additional details included in
Officer Clementson's declaration do not foreclose the
possibility that Officer Clementson violated the Fourth
Amendment during the protective sweep. The Court also notes
that the assertions in Officer Clementson's declaration
and in Defendants' motion are at direct odds with the
Magistrate Judge's findings in Mr. Lawson's criminal
case.[43] Based on the evidence presented at the
suppression hearing, including Officer Clementson's
testimony at that time, the Magistrate Judge noted that
“the government does not explain by evidence how the
computer screen could reveal the web page for FedEx tracking
without the ‘mouse' being moved, ” and found
that “[m]oving the mouse was beyond the scope of a
lawful protective sweep.”[44] On that basis, these
items were all suppressed in Mr. Lawson's criminal
trial.[45] Defendants nevertheless now assert that
“Clementson saw all three objects without touching or
moving them.”[46]
Because
undisputed facts do not establish that Officer Clementson is
entitled to judgment as a matter of law, Defendants'
motion for summary judgment as to the Fourth Amendment claims
against Officer Clementson will be denied.
2.
Officers Doll and Gregg
Officer
Doll's declaration states that she “was only in the
[music] room for approximately 8-10 seconds” and that
she did not “see the luggage tags, a computer screen,
or any items behind a computer screen” while in the
room.[47] She further states that following the
sweep, she returned to the DEA office to assist Officer Gregg
in writing an application for a search warrant and
subsequently drove to the courthouse to apply for the
warrant.[48] Officer Doll's current declaration
states that she “was not aware” that the items
described in the Ninth Circuit opinion “had been
observed prior to the second search warrant for the residence
being obtained until [she] read” the Ninth
Circuit's decision.[49] Officer Gregg's declaration
states that he “did not participate in the sweep,
” and that he left Mr. Lawson's residence shortly
after arriving in order “to work on the affidavit for
the search warrant.”[50] Defendants contend that these
declarations show that Officers Doll and Gregg “deserve
a grant of summary judgment on the
sweep.”[51]
Officer
Doll and Officer Gregg's recent declarations do not show
that summary judgment in their favor is warranted. The
declarations suggest that both Officer Doll and Officer Gregg
participated in applying for the second warrant for Mr.
Lawson's residence.[52] The officers' affidavit for the
search warrant includes information about items found in the
music room:
In a downstairs recreation room a computer screen was
observed, the screen was on and a web page for Fed Ex
tracking was observed. Also in the same room a black ceramic
container which appears identical to the one seized from the
Fed Ex parcel today minus the wax contents. . . . Suitcases
bearing luggage tags from California were observed in a
downstairs room.[53]
The
Ninth Circuit held that this Court erred “in granting
the officers qualified immunity with respect to the
protective sweep.”[54] The Circuit Court based that ruling
on its finding that “[a]ny reasonable officer in the
Defendants-Appellees' position would have known he was
violating clearly established Fourth Amendment jurisprudence
because the Defendants-Appellees . . . obtained luggage tag
and computer information, and recovered a black container
hidden behind the computer during the protective
sweep.”[55] In light of this language, Defendants
have not established that the putting of this information in
the warrant did not constitute a constitutional
violation.[56]
Furthermore,
Officer Doll and Officer Greggs' declarations are
difficult to reconcile with one another and with the
affidavit submitted in support of the warrant application.
Officer Doll contends that she was “not aware” of
the items described in the search warrant until she read the
Ninth Circuit's decision.[57] However, she also contends
that she assisted Officer Gregg in drafting the application
for a search warrant that described the items from the music
room.[58]
Officer
Doll and Officer Greggs' declarations also demonstrate
genuine issues regarding Officer Gregg's potential
liability for other officers' acts during the protective
sweep. Officer Gregg does not address whether or not he
ordered the protective sweep. However, Officer Doll contends
that “[a]t no time did [she] make any decisions
independent of TFO Gregg or GS
Youngblood.”[59] Section 1983 suits do not allow for the
imposition of vicarious liability.[60] However, a supervisor can
be held liable in his or her individual capacity under §
1983 where there is a “sufficient causal connection
between the supervisor's wrongful conduct and the
constitutional violation.”[61] If Officer Gregg had
actual supervisory authority over the officers who
participated in the unconstitutional aspects of the
protective sweep, Officer Gregg may be personally liable for
constitutional violations that occurred during the
sweep.[62] On the current record - with all
reasonable inferences drawn in Mr. Lawson's favor
-triable issues of fact remain that bear on this question.
For the
foregoing reasons, Defendants' motion for summary
judgment as to the remaining Fourth Amendment claims against
Officers Doll and Gregg will be denied.
3.
Officer Youngblood
Officer
Youngblood's declaration states that he arrived at Mr.
Lawson's residence after the protective sweep had been
conducted, and that he remained at the residence until the
search warrant was issued.[63] Defendants contend that the
declaration shows that Officer Youngblood “deserve[s] a
grant of summary judgment on the sweep.”[64]
Officer
Youngblood's declaration does not show that summary
judgment in his favor is warranted. As noted above, while
§ 1983 suits do not allow for the imposition of
vicarious liability, a supervisor may be held liable in
individual capacity if there is a “sufficient causal
connection between the supervisor's wrongful conduct and
the constitutional violation” and the supervisor has
actual supervisory authority over the government actor who
committed the alleged violations.[65] Here, Officer Youngblood
asserts that officers entered Mr. Lawson's residence
“without [his] expressed
authorization.”[66] However, Officer Doll contends that
“[a]t no time did [she] make any decisions independent
of TFO Gregg or GS Youngblood, ” and Officer Gregg does
not indicate that he ordered the sweep.[67] Furthermore,
during the evidentiary hearing held on the motions to
suppress filed in Mr. Lawson's criminal case, Officer
Clementson testified that Officer Youngblood “made the
decision that we were going to enter the residence and
attempt to retrieve the parcel.”[68] Triable
issues of fact preclude summary judgment as to Mr.
Lawson's Fourth Amendment claims against Officer
Youngblood.[69]Accordingly, Defendants' motion for
summary judgment as to those claims against Officer
Youngblood will be denied.
3.
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