HomeMy WebLinkAbout2013 18_provide legal defense 13 CV 658 GKF TLW_2013.11.01sdPRO�DBYC
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TO: The Honorable Mayor and City Council
City of Owasso
FROM: Julie Trout Lombardi
City Attorney
SUBJECT: Authorization to provide a defense and retain an attorney in the litigation styled
as Smokey Davidson v. City of Owasso, Jarod Mitchell and Bobby Sordo, 13 -CV-
658-GKF-TLW and proposed Resolution 2013 -18
DATE: November 1, 2013
BACKGROUND:
On October 4, 2013, a lawsuit was filed by Smokey Don Davidson against the City of Owasso,
Officer Jarod Mitchell and Officer Bobby Sordo alleging a violation of civil rights arising out of Mr.
Davidson's arrest on or about October 4, 2011, by the Owasso Police Department. Staff has
determined that Officer Mitchell and Officer Sordo were at all times acting appropriately and
within the scope of their employment as police officers employed by the City of Owasso.
Accordingly, the City is required to provide a legal defense for the two named officers in this
litigation. Staff desires to retain Attorney Keith Wilkes with the firm of Newton, O'Connor, Turner &
Ketchum, PC, to represent the City of Owasso and the named officers in this litigation matter.
PROPOSED ACTION:
Approval of proposed Resolution 2013 -18 authorizing the City to provide a legal defense for
Officer Jarod Mitchell and Officer Bobby Sordo, and to retain Keith Wilkes to represent the City
of Owasso and the named officers in the above - styled litigation.
RECOMMENDATION:
Staff recommends the City Council authorize providing a defense for Officer Jarod Mitchell and
Officer Bobby Sordo in this matter, and additionally authorize staff to retain Keith Wilkes with the
firm of Newton, O'Connor, Turner & Ketchum, PC, to provide a defense for the City of Owasso
and the named officers in this ligation matter, through approval of proposed Resolution 2013 -18
memorializing the same.
ATTACHMENTS:
1. Resolution 2013 -18
2. Plaintiff's Complaint filed on October 4, 2013
Case 4:13 -cv- 00658 -GKF -TLW Document 2 Filed in USDC ND/OK on 10104(13 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(1) SMOKEY DAVIDSON, )
)
Plaintiff, )
}
V, )
)
(1) CITY OF OWASSO, )
(2) JAROD MITCHELL, )
(3) BOBBY SORDO, and }
Defendants. )
CASE NO. 13 -CV- 658 -OKF -TLW
JURY TRIAL DEMANDED
CQMPLAIAIT
a rv-1 - z[yR:1Uri- i
COMES NOW, Smokey Davidson ('Plaintiff'), by and through his attorneys of
record, and for his causes of action against the Defendants, alleges and states a follows:
JURISDICTION AND VENUE
The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1343 to
secure protection of and to redress deprivations of rights secured by the Fourth and
Fourteenth Amendment to the United States Constitution as enforced by 42 U.S.C. §
1983, which provides for the protection of all persons in their civil rights and the redress
of deprivation of rights under color of law.
The jurisdiction of this Court is also invoked under 28 U.S.C. § 1331 to
resolve a controversy arising under the Constitution and laws of the United States,
particularly the Fourth Amendment to the United States Constitution and 42 U.S.C. §
1983.
Case 4:13 -cv- 00658- GKF -TLW Document 2 Filed in USDC ND/OK on 10/04/13 Page 2 of 11
3. This Court has supplemental jurisdiction over the state law claims asserted
herein pursuant to 28 U.S.C. § 1367, since the claims form part of the same case or
controversy arising under the United States Constitution and federal law.
4. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of
the events or omissions giving rise to Plaintiff's claims occurred in this District.
PARTIES
S. Plaintiff, Smokey Davidson ( "Plaintiff'), is a resident of Tulsa County,
Oklahoma.
6. Defendant, City of Owasso ("City" or "Owasso'), is a municipality
incorporated as a city under the laws of the State of Oklahoma and is located in Tulsa
County and Rogers County, State of Oklahoma. Defendant City is authorized, pursuant
to Oklahoma statutory law and the charter of the City of Owasso, to establish, maintain
and supervise the operations of the Owasso Police Department ( "OPD "). The policies,
procedures, customs and actions of Defendant City which are alleged herein were
promulgated, implemented, ratified or otherwise sanctioned under color of the ordinances
of the City of Owasso and the laws of the State of Oklahoma, and therefore constitute
state action within the meaning of the Fourteenth Amendment to the United States
Constitution and 42 U.S.C. § 1983.
7. Defendant, Jared Mitchell ("Mitchell "), was, at all times relevant hereto,
acting under color of state law as an employee of the OPD.
S. Defendant, Bobby Sordo ( "Sordo'), was, at all times relevant hereto,
acting under color of state law as an employee of the OPD.
FACTUAL ALLEGATIONS
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Case 4:13 -cv- 00858- GKF -TLW Document 2 Filed in USDC ND /OK on 10/04/13 Page 3 of 11
9. Plaintiff re- alleges and incorporates by reference paragraphs i through 8,
as though fully set forth herein.
10. At all times relevant to this Complaint, Laura Pace ("Pace"} was employed
as a customer service manager at the Wal -Mart located at 12101 East 96h Street North,
Owasso, Oklahoma, in'rulsa County.
11. Pace, with Wal- Mart's knowledge and approval, had a practice of placing
posters around the store to show other Wal -Mart employees the items Wal -Mart sells that
can also be used in the manufacture of methamphetamine.
12. The posters featured photographs of packages of pseudoephedrine under
various brand names, bottles of Drano, plastic tubing, Coleman fuels, and Pyrex dishes
that are sold by Wal -Mart and are all perfectly legal to possess, but can be used is the
manufacture of methamphetamine.
13. If Pace suspected that a customer purchasing such products might use or
manufacture methamphetamine, she would call OPI7 and advise that the customer had
purchased ingredients used in the manufacture of methamphetamine. Pace would watch
the customers as they exited the store and got into their vehicles so that she could also
report to the OPD what kind of vehicle the customer was driving.
14. At all pertinent times, OPD had a policy or custom and established pattern
of relying on information from Pace to target citizens for pretextual stops for the purpose
of searching their vehicles and arresting them for possession of legal products which
OPD deemed to be methamphetamine "precursors This is precisely what happened to
Plaintiff in this case.
Case 4:13 -cv- 00658- GKF -TLW Document 2 Filed in USDC ND /OK on 10104113 Page 4 of 11
14. Pace frequently, and often mistakenly, accused customers of purchasing
these items with the intent that they be used to manufacture methamphetamine. Yet, the
OPD continued to rely on Pace.
15. On or about October 4, 2011, Plaintiff entered the Wal -Mart at 12101 East
96th Street North, Owasso, Oklahoma, to shop for groceries.
16. Plaintiff purchased a total of twenty (20) items: two (2) boxes of cereal,
trail mix, crackers, (2) jars of peanut butter, lunchmeat, (2) packages of breakfast
sandwiches, bread, (2) bottles of pop, strawberry preserves, milk, batteries, coffee filters,
multipurpose kitchen/bath cleaner, Drano, airline tubing, and toilet paper.
17. Pace was on duty that night and witnessed Plaintiff purchasing some of the
above - referenced items.
18. Pace, despite the complete and total lack of any evidence, whatsoever, that
Plaintiff was involved in illegal activity, contacted the OPD, accused Plaintiff of
purchasing items with the intent to manufacture methamphetamine, and described
Plaintiff and the car he was driving.
19. Based on that information, the OPD came to the area, identified Plaintiffs
vehicle, began following Plaintiff and ultimately affected a stop of Plaintiffs car.
20. OPD dispatched Officers Mitchell and Sordo to the area. Officer Mitchell
began following Plaintiff's vehicle in his squad car. Mitchell stopped Plaintiff for
speeding, though his true purpose was to arrest Plaintiff for possession of "precursors ".
Thus, the stop was pretexual.
4
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21. Sordo, a K -9 officer, arrived on the scene with Bony, a drug detection dog
owned and trained by OPD. Sordo's purpose was to search Plaintiff's vehicle based on
(he information from Pace.
22. Sordo has testified that lie "basically ... allowed the dog to run around the
vehicle and give [Sordo] any kind of alert that there may be any kind of illegal
contraband or drugs or anything inside the vehicle."
23. Sordo has additionally testified that Bony is trained to alert for anything
inside of vehicles.
24. Beny allegedly "alerted" on the driver's side and the passenger side of
Plaintiff's vehicle.
25. Based on this alleged "alert", Sordo conducted a warrantless search of the
vehicle. Sordo initiated the search by first "looking on the driver's side of the vehicle and
just kind of looking for any kind of contraband or anything that may have caused my dog
to alert on that vehicle, to confirm his alert."
26. Nonetheless, Sordo found no illegal substances whatsoever in Plaintiff's
vehicle.
27. bather, Sordo found a few empty boxes of cold medicine of the type that
contains pseudoephedrine. however, Sordo discovered no actual pseudoeplredrine, let
alone pseudoephedrine in an amount that violates any Oklahoma law. Further, Sordo did
not find any methamphetamine or any other illegal drug.
28. Still, without any actual evidence of any illegal activity, Sordo continued
to search Plaintiff's vehicle.
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29. Without a warrant or any probable cause, Sordo removed Plaintiffs back
seat. After illegally removing the back seat, Sordo fotuid digital scales,
30. Sordo then moved to the closed, locked tAunk of the vehicle to continue
the search where he recovered several items inside the Wal -Mart bags.
31. Officer Sordo specifically seized a pack of lithium batteries, cold packs,
coffee filters, a bag of charcoal, Ultra Duster, and a can of Drano. When questioned
during Plaintiffs preliminary hearing as to what items Beny is trained to detect, Officer
Sordo's response was that he's trained to detect a lot of items. However. Beny is not
trained to detect lithium batteries, coffee filters, Drano, charcoal, or Ultra Duster. When
Officer Sordo was asked if Beny was trained to detect metttamphetamhie, he answered
yes. When asked if there was any methamphetamine found in this vehicle, -officer Sordo
answered no, not to his knowledge. Officer Sordo could give no reasonable explanation
as to why Beny alerted him. While Sordo claims that Beny responded to "Sudafed ",
there was no Sudafed found in Plaintiff's vehicle.
32. Based on Sordo's illegal search and the recovery of legal household items
from Plaintiffs car, Mitchell and Sordo arrested Plaintiff for endeavoring to manufacture
methamphetamine and took him to the Owasso lockup.
33. On October 12, 2011, Plaintiff was charged by information with one (1)
felony count of Endeavoring to Manufacture Controlled Drugs — Methamphetamine.
34. On November 13, 2012, Judge Kurt Glassco sustained Plaintiffs motion
to suppress the illegal search, and the endeavoring count was dismissed with costs
assessed to the State.
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Case 4:13 -cv- 00658- GKF -TLW Document 2 Filed in USDC ND /OK on 10/04/13 Page 7 of 11
35. Plaintiff was incarcerated for more than four (4) months before his felony
charge was dismissed.
36, As a result of Defendants' violations of his constitutional rights, Plaintiff
was wrongfully incarcerated for a prolonged period, lost his business, his home, his
vehicle, and most devastating to him, the custody of his son. He experienced severe
emotional distress, suffered embarrassment, and lost weight.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
Unreasonable Search
37. Plaintiff rc- alleges and incorporates by reference paragraphs i through 36,
as though fully set forth herein.
38, Any finding of probable cause based on the alert of a drug detector dog is
contingent on the reliability of the alerting dog.
34. Here, Beny, the drug detector dog, was not reliable as he was Improperly
trained to alert as to nnylizing inside of a vehicle.
44. In the case at bar, due to the inadequate training and patent unreliability,
Beny alorted Sordo despite the fact that there was no contraband in Plaintiff's vehicle.
41. Because Beny was inadequately trained, Sordo did not have probable
cause to initiate a warrantless search of Plaintiffs vehicle.
42. In addition, once the search of Plaintiff's vehicle was initiated. Sordo
lacked probable cause to take the next steps of removing the back seat of Plaintiff s
vehicle or to search the trunk.
43. The search of Plaintiff's vehicle was objectively unreasonable.
7
Case 4;13 -cv- 00658- GKF -TLW Document 2 Filed in USDC ND /OK on 10/04/13 Page 8 of 11
44. This unreasonable search violated Plaintiffs Fourth Amendment (made
applicable to States under the Fourteenth Amendment) right to be free from unreasonable
searches.
45. This unreasonable search was a proximate cause of Plaintiff s prolonged
imprisonment, emotional distress, pain and suffering, and the damages as alleged herein.
SECOND CLAIM[ FOR RELIEF
Wrongful Arrest/Seizure
46. Plaintiff re- alleges and incorporates by reference paragraphs I through 45,
as though fully set forth herein.
47. On October 4, 2011, Mitchell and Sordo, under color of State law and as
agents of the City, made a warrantless and unreasonable arrest /seizure of Plaintiff in
violation of the Fourth and Fourteenth Amendments to the Constitution of the United
States.
48. Mitchell and Sordo relied upon faulty information from an unreliable
informant and wholly inadequate evidence to arrest Plaintiff.
49. No contraband was ever found in Plaintiff's possession, and Plaintiff
never expressed any intent to manufacture methamphetamine.
50. The arrest was based on unreasonable suspicion and Plaintiff's possession
of tawfut household products. Plaintiff's possession of these household items did not
violate any "precursor" statute, or any other law.
51. This wrongful arrest, was devoid of probable cause as required by the
Fourth Amendment, as applied to the States by the Fourteenth Amendment. This
wrongful arrest violated Plaintiff's Fourth Amendment right to be secure against
0
Case 4:13 -cv- 00658- GKF -TLW Document 2 Filed in USDC ND /OK on 10104/13 Page 9 of 11
unreasonable seizure, and violated Plaintiffs Fourth Amendment- protected sense of
security and individual dignity.
52. This wrongful arrest was a proximate cause of Plaintiff's prolonged
imprisonment, economic and personal losses, emotional distress, pain and suffering, and
the damages as alleged herein.
THIRD CLAIM FOR RELIEF
Municipal Liability
53. Plaintiff re- alleges and incorporates by reference paragraphs i through 52,
as though fully set forth herein,
54. There is an affirmative Tank between the deprivation of Plaintiffs
constitutional rights and policies, practices and /or customs which the City promulgated,
created, implemented and /or possessed responsibility for.
55. Such policies, practices and/or customs include, but are not limited to:
a. The failure to adequately train drug detector dogs to be reliably detect only
contraband and illegal substances;
b. Inadequate training of OPD officers as to the metbamphetamine precursor
laws and when probable cause exists to search and arrest for possession of
methamphetamine precursors;
c. Inadequate policies and practices as to methamphetamine precursors and
the laws regarding methamphetamine precursors; and
d. A custom or practice of relying on an unreliable informant (Pace) for the
purpose of making pretexual stops and warrantless searches and arrests
that lack probable cause.
91
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56. The City knew, had constructive knowledge and /or it was obvious that the
maintenance of the aforementioned policies, practices and /or customs were substantially
likely to result in the violation of citizens' constitutional rights.
57. The City tacitly encouraged, ratified, and /or approved of the
unconstitutional acts and/or omissions alleged herein.
58. As a direct and proximate result of the aforementioned policies, practices
and/or customs Plaintiff suffered prolonged imprisonment, economic and personal losses,
emotional distress, pain and suffering, and the damages as alleged herein.
FOURTH CLAIM TOIL RFLIF,F
Violation of Article 11 § 30 of the
Constitution of the State of Oldahoma
59. Plaintiff re- alleges and incorporates by reference paragraphs 1 through 58,
as though fully set forth herein.
60. The Oklahoma Constitution provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects against unreasonable searches or
seizures shall not be violated," Okla. Const, art. II, § 30
61. Mitchell and Sordo, while acting within the scope of their employment,
violated Plaintiff's right to be free from unreasonable searches or seizures in violation of
Okla. Const. art. 11, § 30
62. The City is vicariously liable for the violations of Plaintiff's rights under
the Oklahoma Constitution,
63. As a direct and proximate result of the violation of Plaintiffs rights under
the Oklahoma Constitution, Plaintiff suffered prolonged imprisonment, economic and
personal losses, emotional distress, pain and suffering, and the damages as alleged herein.
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PUNITIVE DAMAGES
64. Plaintiff re- alleges and incorporates by reference paragraphs I through 63,
as though fully set forth herein.
65. Plaintiff is entitled to punitive damages on his claims as Defendants'
conduct, acts and omissions alleged herein constitute reckless or callous indifference to
Plaintiff s rights.
WHEREFORE, based on the foregoing, Plaintiff prays that this Court grant the
relief sought, including, but not limited to, damages in excess of Seventy -Five Thousand
Dollars ($75,000.00), with interest accruing from date of filing of suit, punitive damages
in excess of Seventy -Five Thousand Dollars ($75,000.00), reasonable attorney fees, and
all other relief deemed appropriate by this Court,
Respectfully submitted by,
SMOLEN, SMOLEN & ROYTMAN, PLLC
w.
Donald E. Smo en,.. (OBA #19944)
Laura Lauth (OBA 922619)
Robert M. Blakemore, OBA #18656
701 South Cincinnati Avenue
Tulsa, OTC 74119
(918) 585 -2667
(918) 585 -2669 (Fax)
donslesmolenQIgsrok.wm
lauralauth@ssrok.com
bobblakemore@ssrok.com
Attorneys for Plaintiff
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