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Ultra Group of Companies, Inc. v. Dekalb County

United States District Court, N.D. Georgia, Atlanta Division

August 13, 2014



RICHARD W. STORY, District Judge.

This case is before the Court on Defendants Officer McCown, Officer Jones, DeKalb Chief of Police and DeKalb County's ("Moving Defendants")[1] Motion for Summary Judgment [37]. After reviewing the record and the Parties' submissions, the Court enters the following Order.


Plaintiff has lease agreements to rent space for coin-operated amusement machines at the S&N Superette/Lotto ("S&N Store"), the Chevron Food Mart ("Chevron Store"), and the Texaco Food Mart ("Texaco Store"). Nizar Damani, Plaintiff's CEO, testified that during the relevant time period, Plaintiff had placed nine amusement machines at the S&N Store, eight machines at the Chevron Store, and nine machines at the Texaco Store. To play the "touch screen" machines, patrons insert bills into a money acceptor and redeem their winning points with the store operator.

Assistant Police Chief Annette Williams testified that in 2010 and 2011, the DeKalb County Police Department ("DCPD") received numerous complaints about illegal gambling activities at area convenience stores, gas stations, and other establishments. Captain A.T. Mears, testifying as DeKalb County's 30(b)(6) witness, described the DCPD's process for investigating alleged illegal gambling on amusement machines. (Mears Depo., [38] at 57 of 70.) He stated that once an investigation is opened, vice detectives visit the alleged illegal gambling location and play the machines or ask an informant to play the machines. (Id.) If the detectives or their informants receive a payout over $5.00, they place the payout into evidence and log it in their case notes. (Id.) If they receive multiple payouts over $5, the detectives prepare a search warrant for the location and arrest warrants for the individuals who paid them. (Id.) Once a search warrant is issued, the supervising sergeant arranges for execution of the warrant with "uniform presence" from the SWAT team or DCPD officers. (Id.) Following execution of the warrant, any evidence collected is secured and inventoried. (Id.)

The search warrants obtained by the DCPD in this case authorized officers to seize cash from the amusement machines at all three stores. (Mears Depo., [52-2] at 7 of 38.) With respect to officers' procedure for collecting money from amusement machines, Captain Mears stated that officers first try to obtain a key from the store clerk. If the clerk does not have a key, officers contact the store owner and give him a reasonable amount of time to deliver a key. If a key is not produced by the store owner, officers force open the machines and retrieve the cash. Sergeant Thomas testified that if officers have to open machines themselves, it is normal practice for Strike Force officers to open them with rams and Halligans. (Thomas Depo., [52-4] at 9 of 48.)

Captain Mears testified that he does not think officers receive training on using force to open amusement machines, but stated that the protocol - communicated to vice unit officers - is to "be the least invasive just to go in and get the money, the minimum amount of damage possible to make entry." (Mears Depo., [52-2] at 9 of 38.) He stated that officers "don't try to damage the machine in any way. [They] try to go in the most, the least invasive way to get to the [bills]." (Id. at 6 of 38.) When shown a picture of the damage done to a machine in this case, including a missing video screen, Captain Mears testified that he'd "never seen a machine in this state" and would "want to know why we had that amount of damage." (Id. at 8 of 38.) Invoices show that $9, 815 in damage was done to the S&N Store machines and $13, 190 in damage was done to the Texaco Store machines. ([45-5] Ex.s 6, 7.) Plaintiff claims that $9, 940 in damage was done at the Chevron Store.

Plaintiff does not dispute that receiving cash payouts from winning points constitutes gambling. Plaintiff admits that at the S&N location, officers were paid cash in excess of $5.00. (Mears Depo., [38] at 63-64 of 70.) At the Chevron and Texaco stores, however, officers were paid in items valued at more than $5.00. (Id.) Captain Mears testified that it was his understanding, based on DCPD policy, that "if you get something of value from a store of over $5, ... that was commercial gambling." (Mears Depo., [52-2] at 14 of 38.)

Defendant McCown, a vice detective, investigated complaints of gambling at the S&N store. While working undercover, McCown played the amusement machines on several occasions, and on at least two occasions he received cash payouts over $5.00. He also personally observed an informant play the machines and receive a cash payout. Relying on evidence he obtained during his investigation, McCown obtained a search warrant from the Magistrate Court for the entire S&N store premises. The search warrant described the property subject to search as follows: "Computers and related devices, ... any gambling devices, as defined in O.C.G.A. § 16-12-20(2), including video gambling devices, ... [and] items of value such as currency or other items such as electronics, vehicles and all items that are subject to forfeiture under Georgia Law...."

On February 19, 2011, DCPD SWAT Strike Force officers executed the search warrant at the S&N Store. Sergeant Thomas supervised the warrant's execution. The Strike Force officers used a ram to force open the amusement machines because the store operator would not provide a key. Defendant McCown stayed outside during the warrant execution to preserve his undercover status. Sergeant Thomas took possession of the money seized from the S&N Store machines and DCPD's vice unit prepared a seizure report indicating that $8, 633 had been recovered.

Defendant Rose, a vice unit detective, was the lead investigator of gambling complaints at the Chevron Store. Defendant Jones, a uniform officer, assisted Defendant Rose and other detectives investigating that location. Defendant Jones worked undercover by playing the machines and redeeming her winning points for store merchandise valuing more than $5.00. Defendant Rose obtained the search warrant for the Chevron Store. On March 12, 2011, Defendant McCown, Sergeant Thomas, and SWAT Strike Force officers executed the warrant; Defendant Jones only observed. Again, Strike Force officers used a ram to open the machines after the store operator refused to provide a key. The officers seized a printer, a receipt/ticket machine and U.S. currency. DCPD's vice unit prepared a seizure report indicating that $4, 491 was seized at the Chevron Store.

In early 2011, Defendant Rose began investigating gambling at the Texaco Store. He obtained a search warrant from the Magistrate Court for that location after Defendant Jones, again working undercover, played the machines and redeemed her winning points for $8.00 in store credit, which she turned in for store merchandise. On or about March 4, 2011, several detectives and SWAT Strike Force officers executed the search warrant at the Texaco Store. Sergeant Thomas supervised execution of the warrant. After the store clerk refused to provide a key, officers used rams to open nine machines and Thomas took possession of the money recovered. DCPD's seizure report indicated that $7, 206 was seized from the Texaco Store.

Captain Mears testified that practices and procedures for obtaining and executing search warrants are covered in DCPD's 24-week basic training, but not in-depth. (Mears Depo., [52-2] at 3 of 38.) He elaborated, "we cover what is required to get a search warrant and how to obtain a search warrant, but [we] don't actually do a practical or anything like that." (Id. at 4 of 38.) Captain Means did not recall receiving basic training on how to do inventory following execution of a search warrant. (Id.) He testified, however, that DCPD's written Standard Operating Procedures, included in the employee manual, contain information about criteria for obtaining search warrants, parameters for executing search warrants, and how to conduct inventory and return search warrants. (Id.)

During the relevant time period, Lieutenant Dickerson was commander of the vice unit. He testified that he and his staff trained officers on how to investigate complaints of illegal gambling and how to obtain search warrants for establishments under investigation. Dickerson instructed officers that they had to receive at least two cash payouts or prizes valuing more than $5.00 before applying for a search warrant.


Plaintiff alleges that "the decision to search, seize, damage and/or destroy the machines and seize the cash in the machines was unreasonable and in violation of [Plaintiff's] Fourth and Fourteenth Amendment rights to the U.S. Constitution and the laws of the State of Georgia."[3] (Compl., [1] ¶ 16.) Moving Defendants argue (1) that Defendants McCown and Jones are entitled to qualified immunity against Plaintiff's § 1983 claims because they committed no constitutional violations; and (2) that Defendants DeKalb Police Chief and DeKalb County are entitled to summary judgment because Plaintiff cannot show that the harm complained of was caused by any municipal policy.

I. Officer Defendants and ...

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