United States District Court, W.D. Kentucky, Louisville Division
YVETTE K. ALLEN, et al., Plaintiffs
JOSH THOMPSON, et al., Defendants
For Yvette K. Allen, Cherosco L. Brewer, Plaintiffs: Annie O'Connell, LEAD ATTORNEY, O'Connell Law Office, PLLC, Louisville, KY; Steven R. Romines, LEAD ATTORNEY, Romines Weis & Young, PSC, Louisville, KY; Theodore S. Shouse, LEAD ATTORNEY, Michael L. Goodwin, Louisville, KY.
For Josh Thompson, Police Officer, Defendant: Kent Wicker, Lesley A.S. Bilby, Dressman Benzinger LaVelle PSC, Louisville, KY.
For T. Grace, Police Officer, Defendant: Kent Wicker, LEAD ATTORNEY, Lesley A.S. Bilby, Dressman Benzinger LaVelle PSC, Louisville, KY.
For Thomas Grace, Defendant: Kent Wicker, LEAD ATTORNEY, Dressman Benzinger LaVelle PSC, Louisville, KY.
For Jefferson County Attorney's Office, Amicus: Kristie Alfred Daugherty, LEAD ATTORNEY, Jefferson County Attorney, Louisville, KY.
MEMORANDUM OPINION AND ORDER
Thomas B. Russell, Senior United States District Judge.
This matter is before the Court upon Defendants Josh Thompson and Thomas Grace's Motion for Summary Judgment. (Docket No. 53.) Plaintiffs Cherosco Brewer and Yvette Allen have responded, (Docket No. 56), and Defendants have replied, (Docket No. 59). This matter now is
ripe for adjudication. For the reasons that follow, Defendants' Motion will be GRANTED IN PART and DENIED IN PART.
This action arises from the Defendants' alleged violation of Plaintiffs' constitutional rights during a traffic stop on September 21, 2012. Defendant Thomas Grace, an officer with the Louisville Metro Police Department (LMPD), pulled Plaintiff Cherosco Brewer over just after 4 p.m. According to Brewer, he had spent about twenty minutes at his aunt's home prior to the stop and was on his way to work. Brewer was driving a rented vehicle with tinted windows and an Indiana license plate. Defendant Josh Thompson, another LMPD officer, arrived shortly after the stop began.
Grace approached the vehicle on the driver side and asked Brewer for his license, registration, and proof of insurance, which Brewer provided. Grace returned to his car and, upon running Brewer's information, learned that Brewer recently had been charged with trafficking cocaine.
Grace ordered Brewer out of the vehicle and did not immediately answer his question of why he had been stopped. Grace performed a Terry pat down. Brewer told Grace to stop searching further, but Grace reached into Brewer's pockets and removed loose money totaling between $1,500 and $2,000. Grace asked Brewer where the money came from, and Brewer replied that it was from his work paychecks. Grace instructed Brewer to sit on the curb in front of Thompson near the rear passenger-side wheel of Brewer's vehicle. At some point, Brewer called Plaintiff Yvette Allen, his fiancé e, and told her what was happening.
Grace radioed for a K-9 unit. He then asked Brewer if he could search the vehicle, and Brewer said " No." According to Plaintiffs, Grace entered Brewer's vehicle three times. First, Grace entered the car, claiming to prepare the vehicle for the K-9 unit; however, Grace did not turn on the ignition, roll the windows up or down, or turn on the air conditioning. Second, Grace again opened the driver-side door, reached down his side and grabbed something, and then leaned into the vehicle and reached under the driver's seat. Third, Grace again opened the driver-side door, leaned in, and, according to Brewer, retrieved something from under the driver's seat.
About thirty minutes after the traffic stop began, Grace learned that the K-9 unit was delayed in traffic. At that point, he decided to call off the K-9 unit and terminate the stop. Around that same time, Allen arrived and parked her vehicle one or two car lengths in front of Brewer's vehicle. Brewer told her not to come any closer and to use her cell phone to record a video of the Defendants' actions. Allen did not proceed closer than one and a half car lengths away from Brewer's vehicle.
Grace approached Allen on the sidewalk, grabbed her arm, and repeatedly told her to give him her phone or go to jail. Allen refused. Grace can be heard on the audio recording telling Allen, " Either give it to me or I'm going to take it."  When Allen said she didn't do anything wrong and continued to refuse to give Grace her phone, Allen says Grace twisted her arm, threw her into the fence along the sidewalk,
and forcefully pulled the phone away from her. During these events, Brewer was not permitted to get up off the curb.
Grace took Allen's phone back to his patrol car. The dash cam video shows that the Defendants initially permitted Allen to follow Grace back to his patrol car. Moments later, Grace can be heard telling Allen that she would be arrested if she did not get back in her car and leave. Shortly thereafter, Grace returned the cash removed from Brewer's pocket and instructed Brewer to get back in his vehicle. Grace then returned to his patrol car, turned off the audio on his in-car recording device in violation of LMPD policies and procedures, and contacted his sergeant, who instructed him to return the phone to Allen. Before returning the phone, Grace searched it, found the video Allen had made, and deleted it. Grace then had Thompson return the phone to Allen. Thompson asked Allen if she wanted to be arrested or wanted her phone back. Allen asked what she would be arrested for, but Thompson did not answer and simply returned her phone. Grace issued Brewer a citation for excessive window tint and no proof of insurance. The entire stop lasted approximately fifty minutes.
After the stop concluded, Brewer and Allen immediately went to LMPD to file a complaint against the officers. Allen later went to the hospital for injuries sustained during the traffic stop, where she received pain medication for bruises on her arms and strain to her right shoulder.
The LMPD's internal investigation found that Grace had violated LMPD procedures regarding searches, seizures, and use of force. During his deposition, Grace admitted to lying during the LMPD's investigation out of embarrassment and fear. (Docket No. 56-3, at 73.)
Defendants' version of the facts differs in several key regards. First, they maintain that Grace spotted a vehicle with an out-of-state license plate and saw its driver enter a residence where other officers had received information that narcotics were being sold. According to Grace, the driver entered the residence for only a short amount of time. Grace briefly followed the vehicle and then pulled it over for excessive window tint. After Grace asked Brewer to exit the vehicle, he asked Brewer if he could search Brewer's person. Grace claims that Brewer impliedly consented by lifting his arms and turning to place his hands on the trunk. During the pat down, Grace felt a lump in Brewer's pocket and recognized it as a large wad of cash. Based on Brewer's recent criminal history, his visit to the house, and the large wad of cash, Grace radioed for a K-9 unit. The windows in the car were originally rolled up, save for the front driver-side window, which Grace sought to roll up. To prepare for the K-9 unit, Grace opened Brewer's car door, leaned in, turned the key, and raised the driver-side window. Grace maintains that individuals from the K-9 unit had previously instructed him to prepare a vehicle by rolling up the windows but cracking one.
Around the time that Grace called off the K-9 unit, Allen arrived and began recording the Defendants' actions from a position they considered unsafe for the purposes of the traffic stop. Grace approached Allen and asked for the phone. When she refused, he took hold of her arm. Grace told her that he did not want to hurt her. When she continued to refuse, Grace took the phone from her. According to Grace, he entered the vehicle a second and final time to do a protective Terry sweep before Brewer reentered the vehicle. Grace then returned to his patrol car, turned off the audio on his microphone, and called his sergeant, who told him to return the phone. Before doing so,
Grace deleted the video " out of fear" upon learning that taking the phone was not allowed. ( See Docket No. 56-3, at 64-65.) Grace acknowledged that he did not perform his job correctly with regard to taking Allen's phone and turning his microphone off. (Docket No. 56-3, at 65-66.)
Summary judgment is appropriate where " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). " [N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co.,886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). " [T]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Still, " ...