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8th Circuit dismisses KCPD appeal.

Byline: Jessica Shumaker

A lawsuit filed by a Kansas man who alleged that Kansas City Police Department officers unlawfully searched and seized items from his businesses and rented suite may proceed after a federal appeals court dismissed the officers' mid-case appeal.

In its May 8 ruling, a three-judge panel from the 8th U.S. Circuit Court of Appeals found that it lacked jurisdiction because material disputes of fact remain in the case.

The plaintiff in the suit is Micah B. Riggs, of Overland Park, Kansas, who in 2014 filed several civil-rights claims against several officers in their individual and official capacities and the Board of Police Commissioners in the U.S. District Court for the Western District of Missouri.

The officers in the appeal include Detectives Robert Gibbs, Chris Onik, Teddy Taylor, Christopher Toigo and Alan Whaley; Sergeant Brad Dumit; and Officers David Barbour and Michael Feagans.

Riggs alleges in his suit that the officers unlawfully searched and seized items from his suite and his businesses, Coffee Wonk and Wonk Exchange, in three separate instances in 2010 and 2012. Riggs rented two spaces on the first-floor level of 3535 Broadway Kansas City, as well as a second-floor suite in the same building, according to court records.

In his suit, Riggs alleges that in 2010, police entered the suite without consent during one search and unlawfully seized incense from Coffee Wonk in a separate search during the same day.

Riggs alleges police again searched his business in October 2012 under the guise of a "tavern check," even though he did not have a liquor license for Coffee Wonk. Officers also seized incense, believing it to be contraband, and an envelope containing money during that search.

His civil-rights suit was allowed to proceed against the officers when U.S. District Judge Fernando Gaitan Jr. denied in part the officers' motion for summary judgment in September 2017. The state appealed to the 8th Circuit.

Judge Jane Kelly wrote the opinion, with Judges Raymond W. Gruender and L. Steven Grasz concurring.

Kelly separated the opinion into four incidents involving the officers, but she came to the same conclusion for each: that the court was unable to hear the appeal.

In regards to the raid of the suite, which involved Barbour and Feagans, she said questions of material fact exist as to whether the building manager had obtained Riggs' consent to open the door to his suite and whether police officers could have reasonably believed they had consent to search it.

Kelly said Toigo and Taylor, who took part in the 2010 search of Coffee Wonk, argued they are entitled to qualified immunity because the incense they seized was in plain view.

Kelly said the parties don't dispute that the incense seized in the 2010 raid would have been in plain view when Toigo first passed behind the business' counter. They also agree that an employee gave consent to investigate a previous robbery in the building, giving Toigo lawful right of access to the area.

"But Detective Toigo did not seize the Syn incense during his initial search, and the factual circumstances surrounding the later seizure of the Syn incense are heavily disputed," Kelly said.

In the matter of the 2012 raid, Dumit, Whaley, Gibbs and Onik argued they are entitled to immunity because Riggs "did not make a substantial showing that the administrative-search exception does not apply," Kelly wrote.

She said a warrantless administrative search is constitutional if the rules governing the search offer an adequate substitute for the Fourth Amendment requirement for a warrant.

"However, the officers concede that this exception does not apply when the administrative search is a mere subterfuge for criminal investigation," she said.

Henry T. Bell of Bell Law in New York City is representing Riggs. He said he and his client are happy with the ruling.

"They really followed the law, and it's unfortunate how long Mr. Riggs has had to wait to see his day in court, but hopefully soon we'll have a trial date," he said.

The Missouri Attorney General's Office is representing the officers. A spokesman did not respond to a message seeking comment.

The case is Riggs v. Gibbs et al., 17-3388.

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Publication:Missouri Lawyers Media
Date:May 23, 2019
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