Kansas City Police won't respond to calls as retaliation against DeValkenaere verdict, lawsuit says
Daniel Fox alleges that police refused to investigate a break-in next door to his house and later intimidated him into deleting a Twitter post critical of the police's alleged inaction.
In the early morning hours of July 15, Daniel Fox heard a loud noise coming from his neighbor’s house on 53rd and Rockhill Road. When he went outside to investigate, he discovered someone had kicked in the door.
Fearful for his family’s safety — he has two small children — Fox called the Kansas City Police Department. While waiting for the police, he looked over at his neighbor’s house and could see an intruder inside.
At 1:33 a.m., two officers responded. After talking with Fox, they left 10 minutes after they’d arrived. They never entered the neighbor’s house.
Alarmed, Fox called KCPD a few minutes after they left to ask why the neighbor’s house was still open and why the police had done nothing. One of the initial responding officers called him back and informed him that “their hands were tied.”
So Fox stayed awake the rest of the night on a couch, gun cradled in his lap, in case the intruder came to his house. The next morning he posted a video on Twitter recounting what happened and asking that the KCPD’s inaction be brought to the attention of the mayor’s office or the KCPD.
That evening, a captain at Metro Patrol left him a phone message. The captain, whom Fox later learned was James Gottstein, said that, since the DeValkenaere verdict, the police no longer searched abandoned houses without a search warrant.
Gottstein was referring to the conviction by a Jackson County judge last year of former KCPD Detective Eric DeValkanaere in the killing of Cameron Lamb, a Black man who was backing into his garage. The judge found DeValkenaere guilty of involuntary manslaughter and armed criminal action and sentenced him to six years in prison.
DeValkenaere and his partner had entered Lamb’s property without a search warrant while investigating a high-speed car chase that had occurred earlier in the day.
“I’m sorry you had that experience,” Gottstein told Fox in his voicemail message, “but many citizens are going to have that same experience but it’s kind of out of the police’s hands until that judgment is overturned on appeal so that we can go back to our business to keep citizens safe, you take care, buh-bye.”
Just before 10 p.m. the same day Gottstein left that voicemail message, two KCPD officers showed up at Fox’s house. One of them wore a tactical chest vest adorned with weapons.
Fox’s wife answered the door. The officers told her they wanted to “stop by and talk to” Fox and left a business card. Later, Fox listened to Gottstein’s voicemail and was shocked at its tone, feeling it was meant to intimidate him.
Or as he alleges in a federal lawsuit he filed last week against the police department as well as Gottstein and the two officers who showed up at his door, Fox “felt afraid and believed the true intentions of KCPD and its officers were not to help him, but to intimidate and retaliate against him for his critical Twitter post.”
Fox’s lawsuit, from which the description of what happened was drawn, seeks unspecified damages for violations of the First Amendment and conspiracy to violate his constitutional rights. It also asks the court to rule that the KCPD's alleged policy of “hands-off policing” since the DeValkenaere verdict “is contrary to the public interest.”
“The balance of harms weighs heavily in favor of returning to the policy and practice of responding to reported crimes in place before the DeValkenaere ruling, where officers were not indiscriminately prohibited from entering personal residences with probable cause or exigent circumstances,” Fox’s lawsuit states.
Asked to comment on the lawsuit, police spokeswoman Donna Drake said in an email, "While we do not generally comment on or speak about details of pending civil litigation to ensure fairness for all sides involved, we want to assure the public that we take any complaints about our members very seriously. And we want the citizens of Kansas City to feel safe in bringing any concerns about an officer’s conduct to our attention, whether it is done through the Office of Community Complaints or brought directly to our department."
Drake also posted a link to the department's search and seizure procedures at KCPD.org.
Asked about the lawsuit, Jackson County Prosecuting Attorney Jean Peters Baker said she had heard of other cases where Kansas City police officers refused to act on a 911 call, claiming their hands were tied by DeValkenaere’s conviction.
Baker said that was a misunderstanding of the law and contrary to KCPD training. She said that even if the officers believed they couldn’t enter the midtown property next to Fox's, they should have stayed, set up a perimeter and waited for the intruder to exit.
Fox, a game designer, said this week in a phone interview that he felt unsafe and unprotected after the incidents in question.
“And I think I’m probably not the only person to feel this,” he said. “I’m sure that these things have happened too with other people in the community.”
Fox said he believed the police were clearly trying to intimidate him, “and I shudder to think if I was somebody who was marginalized what their response would have been instead.”
Sarah Duggan, Fox’s attorney and a former police officer herself with the Tonganoxie, Kansas, Police Department, said she thought Fox is one of many residents who have been victimized by KCPD's alleged unwillingness to take appropriate action when responding to residential calls.
“This leaves the community and its citizens at risk,” she said.
The lawsuit says that hands-off police “stems from a gross misinterpretation of the facts and ruling” in the DeValkenaere case.
In that case, Jackson County Circuit Judge Dale Youngs found that DeValkenaere had no probable cause to believe a crime had been committed by Lamb. Nor, Youngs ruled, were there exigent circumstances justifying DeValkenaere's presence on Lamb’s property.
Police are allowed to enter private property without a search warrant if people are in imminent danger, if it’s necessary to prevent physical harm to people or the police themselves, if relevant evidence is threatened with destruction or if a criminal suspect might escape.
“I don’t think I’m the only person who has experienced this with the Kansas City Police Department,” Fox said. “And if this [lawsuit] helps, and if other people are willing to speak out after hearing my story, then that’ would be great.”