Riggs v. Gibbs

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

MICAH B. RIGGS, )

Plaintiff, )

)

v. )

) No. 14-0676-CV-W-FJG

ROBERT GIBBS, et al., )

Defendants. )

ORDER

Pending before the Court are (1) Defendant Gary Majors’ Motion for Summary

Judgment (Doc. No. 158); (2) Motion for Summary Judgment for Defendants Kansas City

Missouri Board of Police Commissioners, Gibbs, Onik, Dumit, Whaley, Toigo, Taylor,

Barbour, Feagans and Martin (Doc. No. 160); and (3) Plaintiff’s Motion for Partial

Summary Judgment as to Defendants’ Liability (Doc. No. 156). As an initial matter,

plaintiff’s request for oral argument will be denied.

I. Background

Plaintiff filed the pending action on August 1, 2014. Plaintiff’s amended complaint

was filed on February 24, 2015 (Doc. No. 43). Plaintiff Micah Riggs is the former owner

of a business named “Coffee Wonk” located in midtown, Kansas City. On three separate

occasions, certain of defendants searched plaintiff’s business, allegedly finding synthetic

marijuana. Plaintiff was prosecuted in state court for (1) intent to create a controlled

substance; (2) possession of drug paraphernalia with intent to distribute; and (3)

possession with intent to distribute the controlled substance JWH-018. Prior to trial, the

possession of drug paraphernalia charge was dropped. Plaintiff was acquitted of

possession with intent to distribute JWH-018, and had a hung jury on intent to create a

controlled substance. The prosecutor’s office subsequently dropped the charge for

Defendants Alvin Brooks (hereinafter, “Commissioner Brooks”), Michael Rader

(hereinafter, “Commissioner Rader”), Angela Wasson-Hunt (hereinafter, “Commissioner

Hunt”), David Kenner (hereinafter, “Commissioner Kenner”), and Mayor Sly James

(hereinafter, “Commissioner James”) are sued in their official capacities as duly

appointed members of the Board of Police Commissioners of Kansas City, Missouri.

Defendant Gary Majors was at all relevant times the manager of Regulated Industries of

Kansas City, Missouri. Defendant Detectives Robert Gibbs, Chris Onik, Alan Whaley,

Teddy Taylor, and Christopher Toigo are sued in their individual and official capacities.

Defendant Sergeant Brad Dumit is sued in his individual and official capacities.

Defendant Officers Jason Martin, Michael Feagans, and David Barbour are sued in their

individual and official capacities.

Plaintiffs’ amended complaint contains seven counts: Count I: Claim Under 42

U.S.C. § 1983 for Malicious Prosecution, Illegal Search and Seizure, Filing of Falsified

Court Documents, and Forging Consent to Search Forms (Against Gary Majors and

Detectives Gibbs, Whaley, Onik, Dumit, Toigo, and Taylor, Officers Martin, Barbour, and

Feagans, and The Board of Police Commissioners of Kansas City, Missouri); Count II:

Claim Under 42 U.S.C. § 1983 for Conspiracy (Against Gary Majors and Detectives

Gibbs, Whaley, Onik, and Dumit, and Officer Martin); Count III: Claim Under 42 U.S.C. §

1983 for Conspiracy (Against Detectives Toigo and Taylor, and Officers Barbour and

Feagans); Count IV: Claim Under 42 U.S.C. § 1983 for Violative Policies, Practices and

Procedures (Against The Board of Police Commissioners of Kansas City, Missouri);

Count V: Claim Under Missouri Common Law for Malicious Prosecution (Against Gary

Majors and Detectives Gibbs, Whaley, Onik, Dumit, Toigo, and Taylor, Officers Martin,

Feagans, and Barbour, and The Board of Police Commissioners of Kansas City,

Onik, Dumit, and Martin); and Count VII: Negligent Infliction of Emotional Distress

(Against Detectives Whaley, Gibbs, Onik, Dumit, and Martin).

II. Facts

A. Introduction

Mr. Riggs brings this § 1983 claim against Defendants for violations of his Fourth

Amendment Rights, malicious prosecution, and various other claims. In 2009, Mr. Riggs

opened Coffee Wonk, a business at 3535D Broadway, Kansas City, MO 64111, which

sold coffee, herbal incense, and potpourri. Mr. Riggs owned another business, the Wonk

Exchange smoke shop, in the same building. Mr. Riggs also rented an office room, Suite

201, one floor above Coffee Wonk. On three separate occasions certain Defendants

searched Mr. Riggs’ businesses and seized his property. On September 27, 2010,

Detectives Christopher Toigo and Teddy Taylor seized Syn incense from Coffee Wonk.

That same day, Officers David Barbour and Michael Feagans entered and/or searched

Suite 201. On October 3, 2012, Sergeant Brad Dumit, Detectives Robert Gibbs and Chris

Onik raided Coffee Wonk without a warrant and seized all of Mr. Riggs’ inventory. On

February 11, 2013, Detective Gibbs obtained a search warrant for Coffee Wonk, which

was executed on February 12, 2013.

All of the raids involved allegations that Mr. Riggs was selling “K2”— which he

asserts he was not. “K2” is a slang term for several controlled substances. K2 is also a

brand name for a product that previously contained JWH- 018. K2 itself is not illegal under

the Missouri Revised Statutes. See R.S. MO. § 195.017.

B. The September 27, 2010, Incidents

i. Defendants Feagans and Barbour

a business at 3535 Broadway. Some office spaces had broken glass fronts, and there

was yellow powder everywhere from a fire extinguisher up and down the hallways. It

appeared also that other units were damaged, although plaintiff disputes that Suite 201

was damaged. When they arrived, they proceeded to Suite 200 and interviewed the

business owner, Julie Porter, who had reported the burglary. The officers investigated the

burglary and were unable to find the perpetrator. A short time later, they met Christopher

Long, the building manager for 3535 Broadway. After initially meeting Mr. Long, Officer

Barbour began to search the second floor of the office suite.

Plaintiff asserts that Barbour asked Mr. Long to unlock the door to Suite 201.

Defendants controvert this statement, saying that Mr. Long informed Officer Barbour that

the occupant that owned the location with the robbery rented a suite and wanted Mr. Long

to check on it. Plaintiff, on the other hand, argues that Mr. Long had made no statement to

the police that would indicate that Mr. Riggs wanted the police to check on Suite 201.

Plaintiff further states that he had not given permission to Mr. Long to open the door to the

suite. Regardless, Mr. Long opened the door to the suite.

When Mr. Long opened the door to Suite 201, Officer Barbour saw lab equipment.

Officer Barbour then contacted the Metro Meth Drug Task Force to process the lab. After

the Task Force arrived, Officer Barbour provided security to the suite. The task force did

not have plaintiff’s consent to search Suite 201.

Prior to Mr. Long opening Suite 201, there were no signs of entry. Officer Feagans

assumed that the burglar had left the office of Julie Porter. Officer Barbour had no specific

reason to believe that the burglar was still in the building. Officer Barbour did not have his

gun drawn during his search of the office complex with Mr. Long. When Officer Barbour

first observed the lab, he did not see anything that led him to believe that it was illegal or

cross-bone, and believed that they were dangerous, so he indicated he left the door open

to vent. Jason Kennedy, a chemist who responded with the Task Force, did not know

what type of a lab was in Suite 201.

Plaintiff does not dispute that the lab was not safe even though there were no open

flames or bottles. Most of the chemicals in suite 201 were very unsafe to not have in the

proper environment. There was a canister with a label that said it spontaneously ignited

with air. There were several solvents that were highly flammable, and toxic reagents

present, as well as others that if not handled properly would ignite if in contact with water

or the wrong substance. Officers Barbour and Feagans decided it was better to contact

somebody with more knowledge so they contacted Metro Meth. Items recovered from

suite 201 tested positive for JWH-018. JWH-018 was considered a controlled substance

(MO Statute §195.017).

ii. Defendants Toigo and Taylor

Also on September 27, 2010, Detective Toigo, who was assigned to the robbery

unit, received a call that a robbery had occurred at Coffee Wonk. When Detective Toigo

arrived, he interviewed the store clerk present for the robbery and began processing the

scene. Det. Toigo looked behind the counter for fingerprints, and along the path of where

the robbery suspect traveled. During his canvas, Detective Toigo went to the parking

garage adjacent to the building and encountered Syn incense that had been stolen.

Detective Taylor received a call from Detective Toigo, who informed Detective Taylor of

the robbery and the Syn incense. Detective Yale Acton responded to the scene with

Detective Taylor. At the scene, Detective Toigo showed Detective Taylor the packages of

Syn incense behind the counter at Coffee Wonk.

At some point, Mr. Riggs arrived on the scene, and he and Detective Toigo

Detective Toigo obtained a written consent to search from Mr. Riggs. Mr. Riggs asserts

he was told this consent was for Wonk Exchange, but argues that Toigo or Taylor added

“Suite 201” to the address after Mr. Riggs signed it. Defendants controvert that this is

what occurred. Plaintiff asserts that later on, Detectives Toigo and Taylor forged his

signature on a consent to search Wonk Exchange, misspelling his printed name as

“Michah Riggs.” Again, defendants controvert this argument, saying that defendant

Taylor filled out the form completely, and did not sign plaintiff’s name on the form. Taylor

testified he was standing next to plaintiff when plaintiff signed the consent to search form.

Detectives Toigo, Taylor, and Acton seized the Syn incense behind the counter. Plaintiff

Riggs argues he did not consent to the officers seizing all of the Syn behind the counter;

defendants, however, indicate that plaintiff signed the consent to search.

Before September 27, 2010, Detective Taylor had not received any training

regarding K2, had not seen it in the field, and had no experience with K2 in general.

Detective Taylor had never before encountered nor heard of Syn brand incense. It was

not immediately apparent to Detective Toigo that the Syn incense was illegal. Detective

Acton’s experience with K2 and synthetic marijuana at this time was limited. It was not

immediately apparent to Detective Acton that the Syn incense was illegal.

While searching Suite 201, the police encountered Philrey Pamatmat, a chemist

for plaintiff. Defendants indicate Mr. Pamatmat told Det. Acton that he was hired by

plaintiff to try to create a legal version of the analogue for K2 or synthetic cannabinoid;

plaintiff, however, indicates that he hired Pamatmat to test the products that were sold in

Coffee Wonk. Acton also indicated that Pamatmat told him that Coffee Wonk was selling

Syn incense, which led Acton to believe there was a possibility that the packets would

contain an illegal version of a synthetic cannabinoid. The information that Det. Acton had

growth, spraying chemical on it, packaging it up and distributing it.

Seth Cooper, a member of the task force that responded to Suite 201, attempted to

field test some Syn found in Suite 201. At the time, there was not a good field test for

those synthetic cannabinoids. This field test was not performed on the incense seized

from behind the counter. Mr. Cooper, however, recognized the packets behind the bar

as Syn brand, which he had been seeing in the Kansas City area. At the time, not all

synthetic cannabinoids were illegal, and alleged K2 packets did not consistently test

positive for controlled substances. The crime lab did not keep records of what types of

alleged K2 tested positive for controlled substances. Cooper had tested Syn packets

before, and most came back as containing JWH-018 and JWH -073. Plaintiff notes,

however, that on the date of the seizure, JWH-018 and JWH-073 had been controlled for

less than a month under Missouri law. Items recovered by Det. Acton from the Coffee

Wonk tested positive for JWH- 018.

C. The October 3, 2012 raid

On October 3, 2012, Detectives Gibbs and Onik and Sergeant Dumit seized

property from Coffee Wonk without a warrant. Sergeant Dumit was a supervisor in the

Vice section. Det. Onik was a vice detective assigned to Narcotics and Vice division. Det.

Whaley was a detective in the Vice unit. Det. Gibbs also was a detective in the Vice unit.

The vice unit investigates prostitution, gambling, alcohol and tobacco violations, human

trafficking and adult bookstores. Det. Gibbs was responsible for the investigation of

places that sold alcohol.

i. Defendant Gary Majors

Gary Majors was the manager of Regulated Industries, the city authority in charge

of regulating, among other things, liquor licenses. Defendant Majors served as the

Regulated Industries is a division of the City of Kansas City, Missouri’s Neighborhood and

Community Services Department. Regulated Industries works with the Kansas City

Police Department (hereinafter “KCPD”) and other law enforcement and regulatory

agencies. Majors received a tip from an acquaintance that a business at 35th and

Broadway with “coffee” in its name was selling K2. Defendant Majors did not directly

contact the KCPD; instead, he instructed the Regulated Industries Lead Investigator,

Gerald Countz to contact the KCPD regarding the tip. Defendant Majors searched the

electronic database maintained by Regulated Industries and determined that an

establishment named “Coffee Wonk” at 3535 Broadway had a liquor license. Thereafter,

on September 19, 2012, Gerald Countz emailed Detective Brad Dumit and Detective

Robert Gibbs at the KCPD regarding the tip received by Defendant Majors and that the

Coffee Wonk sold alcohol. At some later time, Defendant Majors determined that Coffee

Wonk did not have a liquor license. Defendant Majors admits that once it was

determined that the Coffee Wonk did not have a liquor license, he did not make an

attempt to correct the incorrect statement made in Gerald Countz’s September 19, 2012

email.

Detective Robert Gibbs, who received the complaint from Mr. Majors’s office, did

not independently check whether Coffee Wonk had a liquor license even though he had

the capability to do so. (Defendant Gibbs does not controvert this statement; however, he

indicates that to verify whether an establishment had a liquor license, Defendant Gibbs

would have contacted Regulated Industries, defendant Majors’ office.) Defendant Majors

was not present at the Coffee Wonk on October 3, 2012, the date of the controlled buy.

Defendant Majors did not participate in the controlled buy or subsequent investigation.

ii. The purpose of the search of Coffee Wonk

and Sergeant Dumit on Coffee Wonk. At the briefing, Detective Gibbs said they were

going to Coffee Wonk to attempt to find and/or buy K2. Defendants, however, argue that

there was a dual purpose to this search, and part of the purpose was a tavern check.

Detective Gibbs instructed Detective Whaley to enter Coffee Wonk and attempt to

purchase “Mr. Happy.”

The purpose of a tavern check is to check licenses and compliance with city

ordinances. Under liquor law licenses, officers are allowed to look anywhere where one

may store alcohol and check their licenses. City ordinances authorize police officers to go

into backrooms and stock rooms, and look in places where alcohol may be stored.

Missouri Code of Ordinances for Kansas City, Section 40-28(h) and Section 10-34(a)).

Defendants argue that checking the liquor license at the Coffee Wonk was one of the

primary purposes of the search, but that another reason they went to Coffee Wonk was to

investigate the complaints, making this a dual purpose search.

iii. The raid

On October 3, 2012, Detective Whaley entered Coffee Wonk to conduct the

controlled buy and asked for Mr. Happy or Mean Green. The clerk, Shon Ledbetter,

informed Detective Whaley that Coffee Wonk did not have either brand and instead sold

him a packet of Remix. After Detective Whaley purchased the packet of Remix, the rest of

the product was placed under the counter, out of sight. At that time, Det. Whaley had

some experience with the packaging of “K2” and how it was sold, including the one to

three gram packages that were decorative. Det. Whaley believed the item he purchased

was packaged exactly the same as contraband in his experience; plaintiffs dispute this

assertion, arguing that Whaley did not have enough experience to be able to tell

contraband from non-contraband. Defendants argue other factors that led Whaley to

After the purchase, Det. Whaley told the other officers where they could find the Remix.

Det. Whaley showed Det. Gibbs the packet he had purchased and told him that the

packet came from under the counter.

Officer Martin was assigned to Central Patrol in October 2012. Officer Martin met

up with Det. Gibbs because dispatch called him and told him to meet vice at a certain

location. Officer Martin was informed that they just did a buy and they wanted him

because he had his uniform on and would be identifiable to anybody. Det. Gibbs and Det.

Onik were wearing plain clothes and had their badges around their necks. Vice usually

likes a uniformed officer to be there when they do these things so they can keep the

peace and they want everybody to know that they are police. Officer Martin was only there

to secure the scene and make sure nothing went wrong.

A short time after Detective Whaley purchased the Remix, Detectives Onik and

Gibbs entered Coffee Wonk. At this time, Detectives Onik and Gibbs were unable to see

any Remix behind the counter. Detective Gibbs could not see the Remix until he was

behind the counter near the register. Defendants argue that based on the packaging and

his experience, Det. Gibbs believed this to be contraband. Plaintiff disputes, arguing that

Gibbs had only participate in eight to twenty prior alleged synthetic cannabinoid busts and

had not seen Remix before. Plaintiff also notes that Vice only ordered lab tests on

alleged synthetic cannabinoids if the suspects request their property back, and Mr. Riggs

was the only person who had asked for his property back. Thus, plaintiff argues, Gibbs,

without having confirmatory lab testing, would not be able to distinguish synthetic

cannabinoids from legal herbal incense, according to plaintiff. Gibbs seized all of the

Remix that he found behind the counter, along with other similar products. Detectives

Gibbs and Onik also searched an envelope full of money to find the money used to buy

Detective Gibbs then seized all of the money in that envelope. Det. Gibbs indicates he

believed that there was a liquor license at the Coffee Wonk, which would allow him to go

behind the counter. Plaintiff argues that Detective Gibbs could not have reasonably

believed that Coffee Wonk had a liquor license, given the facts of this case. Detective

Gibbs, moreover, observed bottles that he thought were alcohol bottles; however, plaintiff

indicates those bottle were coffee syrup bottles, which are easily distinguishable from

liquor bottles. Detective Gibbs indicates he looked for a liquor license and business

license behind the bar, and did not see either of them. Plaintiff disputes this fact,

however, indicating that Gibbs was not really looking for a liquor license, but was instead

just looking for alleged synthetic narcotics.

Meanwhile, Detective Onik searched a storeroom and seized all of the Remix he

found there. The storeroom that Detective Onik searched was behind the counter and not

part of the public space of Coffee Wonk. Detective Onik indicates that when he entered

the business, he could clearly see what he believed to be synthetic narcotics in the back

business room; plaintiff, however, indicates the general practice of Coffee Wonk was to

cover the storage room with a curtain during business hours, so the room contents would

not be in plain view. Det. Onik observed a scale, envelopes, stickers, and an iron, and

clear tubs containing what he thought was either marijuana or some type of synthetic

narcotic; plaintiff indicates, however, that the tubs did not contain marijuana or synthetic

cannabinoids. When Mr. Ledbetter tried to question the police, Detective Onik told him to

“shut his fucking mouth.” Detectives Gibbs and Onik did not leave an evidence receipt.

They did not arrest Mr. Ledbetter. Mr. Ledbetter was not arrested because, based on

Detective Gibbs’ training and knowledge at the time, there was not probable cause to do

so. The October 22, 2012 lab report indicated that several recovered items contained

Neither Detective Whaley nor Detective Gibbs had never encountered the Remix

brand before. It was not immediately apparent to Detective Onik that the Remix was

contraband. Sergeant Dumit had not received training on identifying K2. Before the

October 3, 2012, raid at Coffee Wonk, Detective Gibbs had participated in approximately

eight to 20 other alleged K2 raids. All of these previous raids were done without a warrant.

Detective Whaley had been involved in 10 to 12 other similar “buy busts” and cannot

recall a single instance where a search warrant was obtained. The normal procedure for

these searches was to seize product without a search warrant. For these previous raids,

the alleged K2 generally was not sent to the lab for testing to ensure the presence of a

controlled substance. For the lab tests that were performed, the alleged K2 did not

consistently test positive for controlled substances.

D. The February 11, 2013 search warrant

The Remix seized in 2012 was submitted for lab testing, which revealed that it

contained a chemical known as XLR-11. This testing did not happen until after Mr. Riggs

had lodged a complaint regarding the October 3, 2012, search of his business. On

February 6, 2013, Officer Schwalm bought a package of Speak Easy potpourri from

Coffee Wonk. Det. Gibbs applied for a search warrant based on the evidence obtained

from the October 3, 2012 search, the February 6 controlled buy and the lab reports from

February 7, 2013. In the application for the warrant, Gibbs wrote it was determined that

items recovered on October 3, 2012 contained XLR-11 or 5FUR-144; and that the leafy

substance obtained on February 6, 2013 contained XLR-11 or 5FUR-144. Detective

Gibbs, in the search warrant application, alleged that XLR-11 was a controlled substance

analogue of JWH-018.

discussed the results with chemists in the crime lab. The chemists told Detective Onik that

the Missouri Analogue Statute did not cover XLR-11. This information does not appear on

the search warrant application. Of his conversations with the chemists, Detective Onik

told Detective Gibbs only that “everything was fine.” Plaintiff argues that if Detective Onik

had instead relayed accurate information to Detective Gibbs regarding XLR-11’s legal

status, Detective Gibbs would not have applied for a search warrant because the affidavit

would have been inaccurate.

The KCPD crime lab had also issued a list of substances considered to be

analogues. This list did not include XLR-11. The list did not include XLR-11 because at

the time, the KCPD crime lab had no procedures to determine whether two substances

shared a substantially similar chemical structure. Nobody in the KCPD crime lab was

trained in the neurological effects of allegedly controlled substances. This information

does not appear in the search warrant application.

It appears, however, that Det. Onik checked not only with the crime lab, but also

with the DEA. Detective Onik testified the DEA told him that, as for their standards, they

considered XLR 11 to be illegal. Det. Gibbs also indicated he relied on a DEA memo

which he believes stated that XLR-11 was an analogue. Plaintiff indicates, however, that

the DEA memo does not call XLR-11 an analogue, but merely indicates that the DEA may

wish to consider pursuing analogue status as to that compound in the future.

A search warrant for 3535 Broadway was granted by Judge Byrn on February 11,

2013. Det. Onik was not involved in the execution of the warrant or the case with Coffee

Wonk. The warrant was executed on February 12, 2013.

E. Damages

Plaintiff’s expert report states that Plaintiff’s depressive symptoms are noted but

consistent with a normal level of anxiety. Plaintiff’s expert report states that a diagnosis

of PTSD is not supported.

F. Underlying State Criminal Cases

A suppression hearing was conducted in regards to Plaintiff’s underlying criminal

case on February 7, 2013 before the Hon. Edith L. Messina, in the Jackson County Circuit

Court, Division 12. The court denied Plaintiff’s (then Defendant) motion to suppress.

There are two Indictments against Riggs dated March 29, 2013 and June 7, 2013. (Ex

P-1, and P- 2). Ultimately, plaintiff was acquitted of possession with intent to distribute

JWH-018, and had a hung jury on intent to create a controlled substance. The

prosecutor’s office subsequently dropped the charge for intent to create a controlled

substance.

III. Standard

Summary judgment is appropriate if the movant demonstrates that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The facts and inferences are

viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–90 (1986). The moving party must carry the

burden of establishing both the absence of a genuine issue of material fact and that such

party is entitled to judgment as a matter of law. Matsushita, 475 U.S. at 586–90.

A nonmoving party must establish more than “the mere existence of a scintilla of

evidence” in support of its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

The nonmovant must do more than simply show that there is

some metaphysical doubt as to the material facts, and must

come forward with specific facts showing that there is a

party, there is no genuine issue for trial.

Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citations

and quotations omitted).

For qualified immunity cases, “once the predicate facts have been

established,…there is no such thing as a ‘genuine issue of fact’…The conduct was either

‘reasonable under settled law in the circumstances,’ or it was not… .” Pace v. City of Des

Moines, 201 F.3d 1050, 1056 (8th Cir. 2000) (quoting Hunter v. Bryant, 502 U.S. 224, 228

(1991)) (citation and alterations omitted). See also Scott v. Harris, 550 U.S. 372, 381 n.8

(2007). The “predicate facts” include only the relevant circumstances and the acts of the

parties: conclusions or arguments about the reasonableness of those circumstances or

actions are not genuine disputes of material fact that would preclude summary judgment.

Scott, 550 U.S. at 381 n.8; Pace, 201 F.3d at 1056.

IV. Discussion

A. Defendant Majors’ Motion for Summary Judgment (Doc. No. 158)

Defendant Majors is named as a defendant in Counts I, II, and V of the First

Amended Complaint. Count I is a Section 1983 claim for malicious prosecution, illegal

search and seizure, the filing of falsified court documents, and forging of consent to

search forms. Count II is a Section 1983 claim for conspiracy. Count V is a Missouri

common law claim for malicious prosecution against Majors and a variety of other

defendants. Defendant Majors indicates that his limited involvement in this action (by

forwarding a tip through one of his employees to the Vice squad) should not make him

liable for a violation of plaintiff’s rights under the cConstitution or otherwise.

For the Section 1983 claims, defendant Majors argues that the doctrine of qualified

immunity applies. “The doctrine of qualified immunity shields officials from civil liability so

(2015) (citations omitted). “A clearly established right is one that is ‘sufficiently clear that

every reasonable official would have understood that what he is doing violated that right.’”

Mullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658 (2012) (slip op., at

5) (internal quotation marks and alteration omitted)). This inquiry is judged by an objective

standard, and application to a defendant’s conduct is a question of law for a court to

determine well before trial. Swenson v. Trickey, 995 F.2d 132, 133 (8th Cir. 1993).

Here, defendant Majors argues he was exercising discretion in investigating and

directing staff to forward a tip regarding illegal activity onto the KCPD. Majors received a

tip from a fellow church member that an establishment located at 35th and Broadway was

selling synthetic marijuana – specifically K2. After receiving the tip, Defendant Majors

searched an electronic database maintained by Regulated Industries to determine if there

was a liquor permit for 3535 Broadway. Majors then argues that, as a result of that initial

search, he mistakenly believed that the Coffee Wonk, located at 3535 Broadway,

possessed a liquor license. Majors then directed Gerald Countz to contact KCPD

regarding this tip. Countz emailed Defendants Gibbs and Dumit on September 19, 2012,

in regards to a complaint of alleged K2 sales at the Coffee Wonk. Based on Defendant

Majors’ mistaken belief, that the location possessed a liquor permit, Countz also informed

Defendants Gibbs and Dumit that Coffee Wonk sold liquor. After the email had been sent,

Majors learned that his initial search was incorrect and that Coffee Wonk did not actually

possess a liquor license. Exhibit 3, 31:9-19, 47:1-17.

Majors argues that his activity of asking his subordinate to forward a tip to the

KCPD, even when part of that tip was mistaken, should be shielded by qualified immunity

because forwarding a tip of potentially illegal activities to the KCPD is reasonable, and

any alleged constitutional violation for failing to double check a search using different

established” to put Majors on notice that his actions were unlawful. See Pearson v.

Callahan, 555 U.S. 223, 242 (1999). This Court agrees. Plaintiff has pointed to no facts

showing that Majors’ act in forwarding a tip to the KCPD was based on anything but

Majors’ reasonable, but mistaken, belief. Thus, the Court finds that qualified immunity

applies as to Counts I and II against defendant Majors.

In addition, with respect to the merits of the allegations made in Count I, the Court

finds that, for the reasons stated by defendant Majors: (1) any malicious prosecution

claim must be dismissed because “The Eighth Circuit has uniformly held that malicious

prosecution is not punishable under § 1983 because it does not allege a constitutional

injury.” Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001); (2) with respect to

the alleged illegal search and seizure related to the October 3, 2012 search, there is no

indication that Majors knew or had reason to know that his forwarding of a tip would lead

to alleged constitutional violations; (3) there is no indication that Majors was responsible

for filing false court documents; and (4) there is no indication that Majors participated in

forging consent to search forms.

With respect to the claim under Section 1983 for conspiracy, made in Count II of

the amended complaint, the Court notes that in addition to qualified immunity, there are

no facts under which the Court can find a “meeting of the minds” sufficient to support a

conspiracy claim. To prove a § 1983 conspiracy claim, Plaintiff must prove: “(1) that the

defendant[s] conspired with others to deprive him of constitutional rights; (2) that at least

one of the alleged co-conspirators engaged in an overt act in furtherance of the

conspiracy; and (3) that the overt act injured [him].” White v. McKinley, 519 F.3d 806, 814

(8th Cir. 2008). “[T]he plaintiff must allege with particularity and specifically demonstrate

with material facts that the defendants reached an agreement.” City of Omaha

(emphasis added) (citations omitted). The bare, unsupported allegation that the

defendants had the opportunity to conspire “is obviously not sufficient to ‘nudge’ a

conspiracy claim ‘across the line from conceivable to plausible.’” Lawrence v. City of St.

Paul, 740 F. Supp. 2d 1026, 1050 (D. Minn. 2010) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “[A]llegations of a conspiracy must be pleaded with sufficient

specificity and factual support to suggest a ‘meeting of the minds.’” Deck v. Leftridge, 771

F.2d 1168, 1170 (8th Cir. 1985) (quoting Smith v. Bacon, F.2d 434, 436 (8th Cir. 1983)).

The evidence in this case is that defendant Majors communicated only with

members of his staff, directing Investigations Supervisor Countz to contact the KCPD with

the tip. Countz emailed the KCPD on September 19, 2012. Thus, plaintiff lacks evidence

demonstrating a meeting of the minds between Majors and any of the other alleged

conspirators. Thus, for these additional reasons, Majors’ motion for summary judgment

as to Count II must be GRANTED.

Finally, with respect to the claim for malicious prosecution under Missouri common

law (Count V), Majors asserts such claim is barred by the public duty doctrine, the

doctrine of official immunity, and by being unable to meet the elements of the claim under

Missouri law. Plaintiff does not respond to any of defendant’s arguments that the

malicious prosecution claim should be dismissed. Therefore, for the reasons stated by

defendant Majors, the Court will GRANT Majors motion for summary judgment as to

Count V, as well.

Accordingly, for all the foregoing reasons, defendant Majors’ Motion for Summary

Judgment is GRANTED IN FULL.

B. Defendants Kansas City Missouri Board of Police Commissioners,

Gibbs, Onik, Dumit, Whaley, Toigo, Taylor, Barbour, Feagans and

Martin’s Motion for Summary Judgment (Doc. No. 160)

federal claims against them, and that the state claims ought to be dismissed as well.

“Qualified immunity gives government officials breathing room to make reasonable but

mistaken judgments,” and it “protects all but the plainly incompetent or those who

knowingly violate the law.” Stanton v. Sims, 134 S.Ct. 3, 5 (U.S. 2013) (quotation marks

omitted). “[Q]ualified immunity analysis involves the following two step inquiry: (1)

whether the facts shown by the plaintiff make out a violation of a constitutional or statutory

right, and (2) whether that right was clearly established at the time of the defendant’s

alleged misconduct.” Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th Cir. 2014

(quotation marks omitted). For the second step of the inquiry “[a] right is clearly

established if its contours are sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Id. at 546 (emphasis added) (quotation marks

omitted).

In their analysis, Defendants look to the framework as to whether there was

probable cause to seize the items at issue in this case. The existence of probable cause,

“depends on whether, in the totality of the circumstances, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” United States v.

Solomon, 432 F.3d 824, 827 (8th Cir.2005) (quoting United States v. Murphy, 69 F.3d

237, 240 (8th Cir. 1995)). This determination is made “from the viewpoint of a reasonably

prudent police officer acting in the circumstance of the particular case.” United States v.

Reinholz, 245 F.3d 765, 776 (8th Cir.2001). Plaintiff, however, argues that the defendants

have skipped over a big step of the qualified immunity analysis: most of the searches

were done without a warrant, and plaintiff has set forth arguments as to each that they

were done without a valid exception to the warrant requirement. Warrantless searches

are presumptively unreasonable and presumptively unconstitutional. United States v.

reasonable only if it falls within a specific exception to the warrant requirement.” Riley v.

California, 134 S.Ct. 2473, 2482 (2014). Probable cause alone is not an exception to the

warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) (noting

that “no amount of probable cause can justify a warrantless search or seizure absent

exigent circumstances”).The Court will consider each of the separate search and seizure

events, below.

1. Count I - Search and seizure for Suite 201 in 2010

Defendants Barbour and Feagans indicate that, given the totality of the

circumstances, once they observed the chemicals and lab equipment through an open

door, they reasonably believed they had consent to search the premises. Defendants

Barbour and Feagans indicate that the building manager, Mr. Long, told them that a

tenant wanted him to check on his rented suite, #201. Defendant Barbour went with the

property manager when he checked on the building. Defendants indicate that when Mr.

Long opened the locked door to Suite 201, Officer Barbour could see inside the room, and

once he could see the lab equipment and chemicals, due to the potential safety hazard,

he contacted metro meth. Defendants Barbour and Feagans suggest that it was

reasonable for them to take the steps they took upon seeing the contents of Suite 201,

and that they had probable cause to take the measures they did.

Plaintiff, in response, notes that in general, landlords cannot give consent to

search a lawfully rented apartment. See Chapman v. United States, 365 U.S. 610, 616–

18 (1961) (finding unlawful a search where evidence was obtained without a warrant but

with the consent of the defendant’s landlord). Furthermore, plaintiff argues that

defendants have not presented the testimony of Mr. Long indicating what his tenant told

him; instead, plaintiff argues that Barbour and Feagans present only hearsay as to what

presents a credibility issue, as Mr. Riggs testified that he only spoke to Mr. Long in the

Coffee Wonk, and asked him about what happened upstairs, and he never told Long that

he wanted him to look into Suite 201 (which was locked with no signs of a break-in when

the door was opened by Mr. Long). Accordingly, plaintiff argues that fact issues preclude

summary judgment as to whether Long had permission from the tenant to open the door,

and whether the officers could have reasonably believed under the circumstances that

they had proper consent to search the premises of Suite 201.1 The Court concludes that

plaintiff has sufficiently demonstrated that questions of material fact exist as to whether

Long had plaintiff’s consent to open the door and whether the police officers could have

reasonably believed they had consent to search the premises; therefore, summary

judgment must be denied on this point.

2. Count I - Alleged illegal search and seizure of the Coffee Wonk

in 2010.

Defendants Acton, Toigo, and Taylor seized incense from behind the counter of

Coffee Wonk after the robbery investigation was over. These officers indicate they had

the consent of plaintiff to seize these contents; however, plaintiff indicates that his

signature on the consent forms was forged. For the reasons stated below in regards to

plaintiff’s forgery claim, the Court finds that material facts exist as to whether the officers

had the consent of plaintiff (or reasonably believed they had the consent of plaintiff) to

seize those items.

1 As noted by plaintiff, plain view doesn’t really answer the question presented. If the

officers had a reasonable belief they had consent to search (a question where material

facts remain), then once the door was open the contents are in plain view and they

following activities were likely reasonable under the law. However, if there was no

he observed it during his robbery investigation (and therefore the initial observation was

not unconstitutional), if one views the facts in the light most favorable to plaintiff, the later

seizure of the incense is potentially unconstitutional because Mr. Riggs refused to

consent to that seizure and any previous consent was revoked. See United States v.

Fletcher, 91 F.3d 48, 50 (8th Cir. 1996) (detention of bag without reasonable suspicion

violated the Constitution when criminal defendant revoked consent he previously had

given for police officers to detain bag).

Plaintiff also argues that none of the defendants had enough knowledge about K2

and other cannabinoid analogues to be able to form probable cause that the items seized

contained “synthetic cannabinoids” or were otherwise contraband. However, with

respect to the 2010 robbery investigation, Detective Acton spoke with plaintiff’s chemist,

Mr. Pamatmat, who told Acton that he was trying to create an analogue of synthetic

cannabinoid for plaintiff. Detective Acton indicates this led him to believe that the packets

found at Coffee Wonk possibly would contain an illegal version of synthetic cannabinoid.

The Court finds that the conversation with Mr. Pamatmat is sufficient to have given the

police officers arguable probable cause that the seized items were contraband. See

Ransom v. Grisafe, 790 F. 3d 804, 813 (8th Cir. 2015) (finding officers immune as long as

they had arguable probable cause, a mistaken but objectively reasonable belief that there

had been a criminal offense.). Accordingly, to the extent that plaintiff argues there was

no probable cause because defendants in the 2010 case could not identify the packets as

contraband, that argument is rejected.

Nonetheless, for the reasons stated above, plaintiff’s case may proceed to trial as

to whether consent was given for the seizure of the items behind the counter in 2010.

3. Alleged illegal search and seizure of the Coffee Wonk in 2012.

does not violate plaintiff’s constitutional rights, and at the very least Detective Whaley’s

actions in making that buy are covered by qualified immunity. Furthermore, the facts are

that Officer Martin’s only involvement in this incident was to provide uniformed security

during the other officers’ search of Coffee Wonk. Therefore, all claims against Officer

Martin are DISMISSED, and any claims related to Detective Whaley’s controlled buy are

DISMISSED.

The remaining actions by Det. Gibbs, Det. Onik, and Sgt. Dumit during the 2012

search are more questionable. Defendants argue that many of the items seized were in

plain view – however, there are questions of material fact as to whether the curtain to the

back room was open and whether any of the material behind the back counter was open

to defendants.

Gibbs, Onik, and Dumit also argue that they have qualified immunity because they

had a reasonable basis to believe they could go lawfully behind the counter and into the

back room of the establishment, as they were conducting a tavern check. “The

protection of qualified immunity applies regardless of whether the government official’s

error is a mistake of law, [or] a mistake of fact… .” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (emphasis added). The defendants argue that they went into Coffee Wonk with a

dual purpose: to recover illegal contraband, and to do a tavern check, which they

believed they were able to do because they had been told by regulated industries that

Coffee Wonk had a liquor license.

There are two problems with this argument. First, although the defendants may

have had a reasonable yet mistaken belief that Coffee Wonk had a liquor license prior to

conducting the search, at some point in time while conducting the search, that belief may

have become unreasonable due to the business having no alcohol on the premises and

defendants knew (or should have known) that Coffee Wonk had no alcohol on site, and

therefore the Court finds questions of material fact present that prevent summary

judgment in favor of or against either plaintiff or defendants. The second problem with

defendants’ argument is that plaintiff has presented substantial facts supporting his

argument that there was no real “dual purpose” for this search, but instead the

administrative search was a “pretext for obtaining evidence of violation of penal laws.”

See Whren v. United States, 517 U.S. 806, 811–12 (1996) (“we never held, outside the

context of inventory search or administrative inspection, that an officer's motive

invalidates objectively justifiable behavior under the Fourth Amendment”). There is no

administrative search exception “where the officer's purpose is not to attend to the . . .

investigation for which the administrative inspection is justified.” Ashcroft v. al-Kidd, 563

U.S. 731, 737 (2011). An administrative search which is a mere subterfuge for a criminal

investigation violates the Fourth Amendment. See United States v. Wallace, 102 F.3d

346, 348 (8th Cir. 1996) (“[a]s long as impoundment pursuant to the community

caretaking [or public safety] function is not a mere subterfuge for investigation, the

coexistence of investigatory and caretaking [or public safety] motives will not invalidate

the search”); Colorado v. Bertine, 479 U.S. 367, 372 (1987) (inventory search permissible

when “there was no showing that the police, who were following standardized

procedures, acted in bad faith or for the sole purpose of investigation”). Here, plaintiff

argues that several defendants have acknowledged that this was not a typical tavern

check, but that the search was carried out specifically to check for alleged K2. Assuming

facts in the light most favorable to plaintiff, plaintiff has sufficiently set forth a claim that

defendants Dumit, Onik, and Gibbs violated plaintiff’s constitutional rights, and the rights

were clearly established at the time of the alleged misconduct.

and the Court further finds that qualified immunity cannot preclude plaintiff’s claims given

that (1) questions remain for trial as to the purpose of the search; and (2) even if the

search had a proper “dual purpose,” questions remain as to when (or if) defendants’ belief

that Coffee Wonk had a liquor license was reasonable once the search began.

Defendants’ motion for summary judgment as to the claims against Gibbs, Onik, and

Dumit is DENIED.2

4. Count I - Alleged illegal search and seizure of the Coffee Wonk

in 2013 and alleged filing of falsified court documents.

At this search, defendants had obtained a warrant. In the context of a search with

a warrant, qualified immunity is only lost where the warrant application is so lacking in an

indicia of probable cause as top render official belief in its existence unreasonable.

George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir. 1994). The Supreme Court in Malley v.

Briggs, reiterated its strong support of the “preference to be accorded searches under a

warrant,” and “indicated that in a doubtful or marginal case a search under a warrant may

be sustainable where without one it would fall.” Malley v. Briggs, 475 U.S. 335, 35 n 7.,

(1986) (quoting Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735-736, 4

L.Ed.2d 697 (1960)).

A warrant must be based on a truthful showing of acts that to establish probable

cause. Franks v. Delaware, 438 U.S. 154, 164-165 (1978). However, “[t]ruthful” only

means “that the information put forth is believed or appropriately accepted by the affiant

as true.” Id. An officer does not lose qualified immunity because of a mistaken, yet

reasonable belief, nor does he lose immunity because of a reasonable mistake regarding

2 The Court finds, however, that the defendants have demonstrated that they had

arguable probable cause to believe that the product they seized was contraband, given

that the various detectives had experience in seeing the packaging and sale of other

appropriate if there is any reasonable basis to conclude that probable cause existed.”

Cross v. City of Des Moines, 965 F. 2d 629, 632 (8th Cir. 1992).

Defendants argue that the warrant here was based on defendant Gibbs’

reasonable belief there was probable cause to obtain the warrant, and that search

warrant was issued by Judge Byrn. Defendants note that plaintiff does not deny that much

of the information in the warrant was actually true, such as that the items recovered in

October 2012, or as part of undercover buys in 2013, contained XLR- 11. Instead,

plaintiff bases his disagreement on Det. Gibbs’ reliance on a memo provided by another

law enforcement agency (the DEA) that indicated that XLR-11 should be considered an

analog of JWH-018, a synthetic cannabinoid specifically mentioned in the applicable

Missouri criminal statute.

Plaintiff contends that the warrant was misleading because it omitted the fact that

XLR-11 was not listed as a controlled substance analog at the time under Missouri law.

Defendants note this mis-states the 2013 statute, which defined a controlled substance

analogue as:

a substance the chemical structure of which is substantially similar to the

chemical structure of a controlled substance in Schedule I or II and: (a)

Which has a stimulant, depressant, or hallucinogenic effect on the central

nervous system substantially similar to the stimulant, depressant, or

hallucinogenic effect on the central nervous system of a controlled

substance included in Schedule I or II; or (b) With respect to a particular

individual, which that individual represents or intends to have a stimulant,

depressant, or hallucinogenic effect on the central nervous system

substantially similar to the stimulant, depressant, or hallucinogenic effect on

the central nervous system of a controlled substance included in Schedule I

or II.

RSMo §195.017 (2013) (emphasis added).

Plaintiff argues that the KCPD crime lab would not testify that XLR-11 fit the above

definition at that time, and that defendants should have included that information on their

only arbiter of what is or is not an analogue under Missouri’s controlled substances

statute. To obtain a conviction with this statute, a prosecutor would have to prove

beyond a reasonable doubt that XLR-11 met the criteria of this statute, requiring the

testimony of a properly qualified expert. But, for a search warrant, all the is required is

probable cause, based on a truthful showing. Franks v. Delaware, 438 U.S. 154,

164-165 (1978). And, “[t]ruthful” only requires “that the information put forth is believed or

appropriately accepted by the affiant as true.” Id. Here, defendants argue that the DEA

memo stating that XLR-11 is substantially similar to JWH-018, taken together with the

laboratory results and the facts known to the defendants at the time are sufficient for at

least arguable probable cause that XLR-11 is an analogue of a type of synthetic

cannabinoid. This Court agrees. Accordingly, because the Court finds that because

the DEA had found XLR-11 is substantially similar to JWH-018, defendants had arguable

probable cause supporting their application for search warrant. The Court, therefore,

GRANTS defendants’ motion for summary judgment as it relates to purportedly false

statements on the warrant application, as well as illegal search and seizure based on that

warrant.

5. Count I - Alleged forged consent to search form.

Defendants argue there is no evidence supporting plaintiff’s claim of a forged

consent form, other than plaintiff’s allegations. However, the Court finds that plaintiff’s

allegations of forgery are sufficient to cause a dispute of material fact. Defendants

attempt to argue that this issue was already decided at plaintiff’s suppression hearing in

state court, where the Circuit Court declined to suppress any evidence, including the

consent to search forms. However, as noted by plaintiff, his attorneys were allowed to

put on evidence at trial that the consent to search forms were forgeries, and ultimately

See In re Caranchini, 956 S.W.2d 910, 912 (Mo. 1997), as modified on denial of reh’g

(Dec. 23, 1997) (finding collateral estoppel bars a plaintiff from “relitigating issues of

ultimate fact that have previously been determined by a valid judgment.”); Figgins v.

State, 469 S.W.3d 469, 473 (Mo. App. W.D. 2015), reh’g and/or transfer denied (July 28,

2015), transfer denied (Sept. 22, 2015) (finding that a previous criminal judgment only

bars the relitigation of the specific facts and issues that were “unambiguously determined

by a previous jury.”).

Therefore, defendants’ motion regarding the alleged forged consent to search

form is DENIED.

6. Count I -Board liability

Defendants’ only argument on this point is that the Board cannot be liable where

the officers did nothing wrong and are entitled to qualified immunity. Given that this

Court has found that questions of material fact remain as to the police officer defendants’

actions, the Court cannot grant summary judgment in the board’s favor on this basis.

The Court, however, has questions as to whether plaintiff has otherwise pled a viable

complaint for Board liability under Section 1983. See analysis of Count IV, below. The

Court, therefore, ORDERS plaintiff to prepare an executive summary of his claim in Count

I against the Board, stating in five pages or less the essential elements of such a claim

and the facts on the record which support such a claim. Plaintiff’s executive summary is

due on or before OCTOBER 17, 2017. Defendants shall file a response to the executive

summary on or before OCTOBER 31, 2017, providing in five pages or less case law and

facts in opposition to plaintiff’s executive summary. Thereafter, the Court will rule on the

viability of a Section 1983 claim against the Board as pled in Count I of the Amended

Complaint.

As noted above with respect to Defendant Majors, a claim for malicious

prosecution under §1983 is not recognized in the Eighth Circuit, which has “uniformly held

that malicious prosecution by itself is not punishable under § 1983 because it does not

allege a constitutional injury.” Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir.

2001). Accordingly, summary judgment is GRANTED in defendants’ favor on plaintiff’s

claims for malicious prosecution under Section 1983.

8. Counts II and III - Conspiracy

Count II pleads a conspiracy claim related to the 2012 search, whereas Count III

pleads a conspiracy claim related to the 2013 search. Defendants move to dismiss both

claims because there is no evidence of an underlying constitutional deprivation. See

White v. McKinley, 519 F. 3d 806, 814-815 (8th Cir. 2008). However, as the Court has

found previously, questions of material fact remain as to both searches, and therefore

summary judgment cannot be granted on this basis.

Defendants also argue that the evidence does not show a finding of conspiracy on

Count II or Count III because there is no factual showing “suggesting a mutual

understanding between defendants to commit unconstitutional acts.” Smith v. Bacon, 699

F.2d 434, 436 (8th Cir. 1983) (emphasis added). Although the Court agrees with

defendants that plaintiff has provided nothing more than conclusory allegations of

conspiracy in relation to the 2010 incident, the Court finds that, viewing the case in the

light most favorable to plaintiff, the 2012 search could support a conspiracy claim as to

defendants Gibbs, Whaley, Onik, and Dumit.3 Plaintiff has set forth sufficient questions

of fact as to whether the meeting between Gibbs, Onik, Whaley, and Dumit prior to the

3 The Court finds plaintiff’s conspiracy claim against Martin fails because all Martin did

was serve as a uniformed guard at the time of the search, and there is no indication he

They discussed at this meeting the details of the buy/bust, planning to enter Coffee Wonk

without a warrant, conducting a controlled buy, and then seizing the property they found.

Plaintiff asserts that at this briefing, Gibbs did not even mention conducting a “license

check,” potentially supporting plaintiff’s position that this was not a dual purpose search,

but a pretextual search where the defendants attempted to cover by saying they were

conducting a tavern check.

Thus, for the foregoing reasons, defendants’ motion for summary judgment is

GRANTED as to Count III, as there is no evidence of a meeting of the minds between

defendants related to the 2010 search. Summary judgment is also GRANTED as to the

conspiracy claim asserted against Defendant Martin. Defendants’ motion for summary

judgment as to the remaining claims in Count II is DENIED.

9. Count IV – Section 1983 against the Defendant Board -

policies, practices, and procedures of the Board

The, the Board indicates it can only be held liable where its employees’ actions are

“pursuant to official municipal policy” or custom. Monell v. Department of Social Services

of City of New York, 436 U.S. 658, 691 (1978). Here, defendants argue plaintiff cannot

show that there were widespread constitutional violations to which the board was

deliberately indifferent to, or tacitly authorized. Therefore, Count IV of plaintiff’s complaint

against the Board must fail.

Plaintiff responds that the Board’s customs, policies, and procedures are

unconstitutional. Plaintiff states that the board has an official policy of refusing to

discipline officers for Fourth Amendment violations, indicating that the Board’s corporate

representative testified that the Office of Community Complaints (OCC) refused to

determine whether a warrantless search violated the Fourth Amendment, and the OCC

discipline officers for Fourth Amendment violations. However, as discussed by

defendants in their reply, this argument relies on a logical fallacy: just because the OCC

does not review the appropriateness of warrantless searches does not mean that those

searches are not reviewed by someone else with the KCPD. Plaintiff has not shown an

official municipal policy or custom which would subject the defendant Board to liability

with respect to disciplining officers for Fourth Amendment violations.

Additionally, plaintiff argues that the Vice division’s custom regarding synthetic

cannabinoid offenses was unconstitutional, in that Vice Division never obtained a warrant

before engaging in raids similar to those at the Coffee Wonk,4 engaged in searches

attempting to use a license search excuse as subterfuge, and failed to test products after

their seizure unless the owner demanded the product back. Plaintiff asserts that these

customs were widespread, persistent, and permanent enough to establish liability to the

Board. The problem with plaintiff’s argument here is that there is no evidence that the

Board knew of this conduct. There certainly is no evidence that this was an official policy.

And plaintiff has not shown there was “deliberate indifferent to or tacit authorization of

[unconstitutional] conduct” by the Board “after official notice to the officials of that

misconduct” and “proof that the custom was the moving force behind [a] constitutional

violation.” Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1998). Therefore, the

Court finds that defendants’ motion for summary judgment must be GRANTED as to

Count IV of the Amended Complaint.

10. State Law Claims (Malicious Prosecution, Intentional Infliction

of Emotional Distress, Negligent Infliction of Emotional

Distress)

4 The Court notes, however, that the facts of this case demonstrate that Vice “never”

Claim Under Missouri Common Law for Malicious Prosecution (Against Gary Majors and

Detectives Gibbs, Whaley, Onik, Dumit, Toigo, and Taylor, Officers Martin, Feagans, and

Barbour, and The Board of Police Commissioners of Kansas City, Missouri); Count VI:

Intentional Infliction of Emotional Distress (Against Detectives Gibbs, Onik, Dumit, and

Martin); and Count VII: Negligent Infliction of Emotional Distress (Against Detectives

Whaley, Gibbs, Onik, Dumit, and Martin).

With respect to all three claims, defendants indicate they are entitled to official

immunity and are shielded from liability under the public duty doctrine. They also argue

that plaintiff cannot demonstrate the essential elements of all three claims. Finally, with

respect to the claims against the Board in Count V, defendants argue that sovereign

immunity applies and that the Board cannot be held liable on a theory of respondeat

superior.

a. Official Immunity

The official immunity doctrine shields public officers sued in their individual

capacity from civil liability for discretionary acts or functions performed in the exercise of

official duties. Clay v. Scott, 883 S.W.2d 573, 576 (Mo. Ct. App. 1994). Whether an

official’s acts were discretionary “depends on the ‘degree of reason and judgment

required’ to perform the act.” Davis v. Lambert, 193 S.W.3d 760, 763 (Mo. 2006) (quoting

Kanagawa, 685 S.W2d at 836). A discretionary act requires “the exercise of reason in the

adaptation of means to an end, and discretion in determining how or whether an act

should be done or a course pursued.” Bachmann v. Welby, 860 S.W.2d 31, 33 (Mo. Ct.

App. 1993) (quoting Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. 1984)). Official

immunity applies to discretionary acts absent malice or bad faith. See Schmidt v. City of

Bella Villa, 557 F.3d 564, 575 (8th Cir.2009).

to accomplish them are discretionary acts. State ex rel. Boshers v. Dotson, 879 S.W.2d

730 (Mo. Ct. App. 1994). Defendants state that their investigations into plaintiff and were

clearly discretionary activities, and therefore they would be entitled to official immunity.

Plaintiff argues, however, that the officers do not have official immunity for

ministerial functions—if he was “required to perform upon a given state of facts, in a

prescribed manner, in obedience to the mandate of legal authority, without regard to his

own judgment or opinion concerning the propriety of the act to be performed.” Rustici v.

Weidemeyer, 673 S.W.2d 762, 768–69 (Mo. 1984) (defendant not entitled to official

immunity on false arrest claim). Plaintiff argues that the requirement that officers provide

only truthful information in warrant applications and indictments is just as prescribed, and

official immunity should not be applied to the claims in this case at all.

This Court finds, however, that plaintiff’s claims that the defendants provided

untruthful information in the warrant applications and indictments fail on their merits.

That leaves only plaintiff’s claims regarding the alleged violations of his Fourth

Amendment rights in the various searches and seizures from 2010 and 2012. With

respect to those claims, the Court finds that those claims fall under the official immunity

doctrine, which protects discretionary acts, but does not protect ministerial functions.

“[A] ministerial function involves clerical duties which a public officer is required to perform

upon a given state of facts, in a prescribed manner, in compliance of legal authority,

without regard to the public officer's own judgment or opinion on the appropriateness of

the act.” Clay v. Scott, 883 S.W.2d 573, 576 (Mo.App. E.D. 1994) (citing Kanagawa, 685

S.W.2d at 836). Although if one looks at the 2010 and 2012 searches and seizures

broadly they might be covered by official immunity, the Court finds that for the same

reasons that summary judgment was denied as related to those searches, that questions

malice or bad faith. For instance, if one were to believe that officers in 2010 forged

consent to search forms and had the building manager open suite 201 which otherwise

they did not have probable cause to search, one could find such actions to have been

taken in bad faith. Additionally, if one were to believe that the 2012 tavern check was

performed for the sole purpose of checking for synthetic cannabinoids, and that the

officers did not have a reasonable basis for believing that Coffee Wonk had a liquor

license, those actions too could be considered to have been taken in bad faith.5

The Court, therefore, finds that official immunity does not apply to the

aforementioned conduct.

b. Public duty doctrine.

“The public duty doctrine states that a public [officer] is not civilly liable for the

breach of a duty owed to the general public, rather than [to] a particular individual.”

Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. 2008). In cases involving the

responsibilities of police officers, the meaning of “public duty” is broadly construed.

Cooper v. Planthold, 857 S.W.2d 477, 479 (Mo. Ct. App. 1993). However, as noted by

plaintiff, the public duty doctrine applies to negligence claims, not intentional torts.

Southers, 263 S.W.3d at 611. Accordingly, it does not apply to plaintiff’s claims for

malicious prosecution and intentional infliction of emotional distress. However, the Court

finds that the public duty doctrine would apply to plaintiff’s claims for negligent infliction of

emotional distress, and for that reason (and for the additional reasons stated below),

summary judgment must be granted in defendants’ favor as to Count VII of the amended

complaint.

5 Similar to its analysis of Count I, however, the Court finds that the claims against

“Missouri law is clear that Board members who are sued in their official capacities

are entitled to sovereign immunity.” Johnson v. Bd. Of Police Comm’rs, No. 4:06CV605

CDP, 2007 WL 3171444, at *1 (E.D. Mo. Oct.29, 2007). Under Missouri law, sovereign

immunity applies to the operation of the Kansas City Police Department, unless the

General Assembly has waived sovereign immunity with respect to the subject claim.

Fantasma v. Kansas City, Mo., Bd. of Police Comm’rs, 913 S.W.2d 388, 391 (Mo. App.

W.D. 1996). The General Assembly has waived sovereign immunity only with respect to:

1) where a Plaintiff’s injury arises from a public employee’s negligent operation of a motor

vehicle; and 2) where the injury is caused by a dangerous condition on government

property. RSMo § 537.600. Neither of those conditions have occurred here. Plaintiff

does not respond to this argument, and for the reasons stated by defendants, plaintiffs’

state law claims against the defendant Board fail due to sovereign immunity.

d. Respondeat superior

Because plaintiff’s state law claims against the Defendant Board have already

been dismissed (see above), the Court does not need to reach this issue.

e. Count V - malicious prosecution.

The elements of malicious prosecution under Missouri law are: “[1]

commencement of prosecution of proceedings against present plaintiffs; [2] its legal

causation or instigation by present defendant; [3] its termination in favor of present

plaintiff; [4] absence of probable cause for such proceeding; [5] presence of malice

therein; and [6] damage by reason thereof. Stafford v. Muster, 582 S.W.2d 670 (Mo.

1979). Defendants argue that, at a minimum, Plaintiff is unable to make out the fourth and

fifth elements of this claim. The Court will examine only the fourth element, finding that

an examination of the fifth element is unnecessary under the circumstances.

the manner in which the charge originated, because if the charge is initiated by indictment

by a grand jury or by a prosecuting attorney on his sworn information and belief, either

amounts to a prima facie showing that probable cause did exist for the prosecution.”

Hamilton v. Krey Packing Co., 602 S.W.2d 879, 882 (Mo. Ct. App. 1980) (quoting Moad v.

Pioneer Finance Co., 496 S.W.2d 794, 798 (Mo.1973). This prima facie showing of the

presence of probable cause is conclusive unless rebutted by evidence that “false

testimony was the basis of the charge and that the falsity, if so, was discoverable upon

reasonable investigation.” Moad 496 S.W.2d at 799. In this matter, plaintiff was indicted

on two separate occasions, by a prosecuting attorney. Neither indictment resulted in a

conviction; however, courts have noted that, “ ‘while dismissal of defendants' action

against plaintiff was some evidence of a lack of probable cause, that alone is not sufficient

basis for a conclusion of a lack of probable cause’”. Haswell v. Liberty Mut. Ins. Co., 557

S.W.2d 628, 633 (Mo. 1977) (quoting Jones v. Phillips Petroleum Co., 186 S.W.2d 868,

875 (Mo.App.1945)). Defendants argue that there is no evidence that false testimony

was the basis of these charges. Plaintiff, on the other hand, argues that the first

indictment against plaintiff included a claim that Riggs sold drug paraphernalia, even

though plaintiff asserts the officers found there was no evidence of illegal activity when

they had searched. Moreover, plaintiff argues that the second indictment alleged that

XLR-11 was a controlled substance analogue, and plaintiff states that Gibbs and Onik

obtained the indictment on false information because they knew that XLR-11 was not a

controlled substances analogue.

The Court finds that plaintiff has not demonstrated the fourth element, lack of

probable cause. With respect to the second search warrant, just because XLR-11 did

not appear on a list of substances the crime lab was willing or able to testify were

memo discussed earlier in this Order With respect to the first indictment, the Court notes

that although the charges related to the drug paraphernalia were dropped prior to trial,

defendant Toigo testified at plaintiff’s state trial that he personally saw a variety of

smoking utilities, such as bongs, throughout plaintiff’s shop. See Doc. No. 170-6, trial

transcript, at 66:23-67:13. Plaintiff has presented no evidence that false testimony was

the basis of the charges against him. Summary judgment, therefore, is GRANTED as to

Count V.

f. Count VI - Intentional infliction of emotional distress.

Defendants argue that plaintiff has failed to establish a claim for intentional

infliction of emotional distress. Defendants state he has failed to demonstrate that “(1)

the defendant's conduct was extreme and outrageous; (2) the defendant acted in an

intentional or reckless manner; and (3) the defendant's acts caused plaintiff severe

emotional distress that resulted in bodily harm.” St. Anthony's Medical Center v. H.S.H.,

974 S.W.2d 606, 611 (Mo.Ct.App.1998). Additionally, the plaintiff's emotional distress

“must be medically diagnosable and must be of sufficient severity so as to be medically

significant.” Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo.1983).

Plaintiff has provided expert reports from physicians, indicating that he has an

adjustment disorder resulting from his treatment in this matter. Although defendants

argue that plaintiff does not have clinically significant depression, that no evidence

supports a diagnosis of PTSD, and that plaintiff has normal levels of anxiety, the Court

cannot conclude that plaintiff’s adjustment disorder is not medically significant based on

the evidence before it.

However, as noted by the Missouri Court of Appeals, “it is essential that the

conduct be intended only to cause emotional distress to the victim. Conway v. St. Louis

officers shot plaintiff’s son who was swinging a sword at them, that the evidence did not

support the conclusion that the officer’s actions in shooting and killing plaintiff’s son were

done solely to cause plaintiff emotional distress). The conduct must be intended only to

cause emotional distress to the victim. K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. 1996).

Here, plaintiff argues that there is a fair inference on the record that detectives Onik,

Gibbs, Whaley, and Dumit solely intended to cause Mr. Riggs emotional distress because

plaintiff argues these defendants generally did not present their synthetic cannabinoid

cases for prosecution, and that plaintiff’s case was the only one. See Gibbs Depo., Doc.

No. 157-14, 115:6-11 (answering “How many synthetic marijuana cases have you

presented for prosecution?” with “I think this is the only one. As I said before, most of the

time you go into the places, take the stuff, nobody ever came and asked for their illegal

product back.”). Defendants state, conversely, that the record does not support the

finding of an intention by any defendant to cause plaintiff harm, and instead only supports

the intention of the defendants to investigate potential illegal narcotics.

The Court concurs with defendants that the evidence presented in this matter does

not support the inference that defendants acted solely with the intent of causing plaintiff

emotional distress. Even considering that certain of defendants’ actions could be

viewed as violating the Fourth Amendment when viewing the facts in the light most

favorable to plaintiff, the conclusion that the actions were taken in order solely to cause

plaintiff emotional distress does not follow. Accordingly, defendants’ motion for

summary judgment as to the claims for intentional infliction of emotional distress is

GRANTED.

g. Count VII - Negligent infliction of emotional distress.

from liability for this claim. “The threshold requirement to establish tort liability… is the

existence of a legal duty on the part of the defendants to conform to a certain standard of

conduct to protect others against risks.” Lawhon v. City of Smithville, 715 S.W.2d 300,

302 (Mo. App. W.D. 1986) (internal quotations omitted). The plaintiff must show that the

officers owed a duty to him directly. Martin v. City of Washington, 848 S.W.2d 487, 493

(Mo. 1993). Police officers engaged in official business typically owe a duty of care only to

the general public, not to individuals. Plaintiff has demonstrated no reason to vary from

the public duty doctrine in this instance; therefore, plaintiff’s claims for negligent infliction

of emotional distress fail. Summary judgment is GRANTED in defendants’ favor on

Count VII of the amended complaint.

C. Plaintiff’s Motion for Partial Summary Judgment as to Defendants’

Liability (Doc. No. 156).

The Court finds questions of material fact exist as to all remaining issues raised in

plaintiff’s motion for partial summary judgment as to defendants’ liability. Therefore,

plaintiff’s motion (Doc. No. 156) is DENIED.

V. Conclusion

Accordingly, for all the reasons stated herein, (1) Defendant Gary Majors’ Motion

for Summary Judgment (Doc. No. 158) is GRANTED; (2) Motion for Summary Judgment

for Defendants Kansas City Missouri Board of Police Commissioners, Gibbs, Onik, Dumit,

Whaley, Toigo, Taylor, Barbour, Feagans and Martin (Doc. No. 160) is GRANTED IN

PART as to the malicious prosecution claims, filing of false court document claims, and

claims related to the 2013 warrant in Count I, as well as the claims against defendants

Martin and Whaley in Count I; the claims against defendant Martin in Count II; and all

claims in Counts III through VII, and DENIED IN PART in all remaining aspects; and (3)

plaintiff’s claims in Count I against the defendant Board, as detailed on page 28 of this

Order. Plaintiff’s executive summary is due on or before OCTOBER 17, 2017.

Defendants’ response to the executive summary is due on or before OCTOBER 31,

2017.

IT IS SO ORDERED.

/S/ FERNANDO J. GAITAN, JR.

Fernando J. Gaitan, Jr.

United States District Judge

Dated: September 29, 2017

Kansas City, Missouri