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Christensen v. Bannock County Sheriff's Dep't

November 5, 2010

STEVE CHRISTENSEN, PLAINTIFF,
v.
BANNOCK COUNTY SHERIFF'S DEPT., BANNOCK COUNTY, DOUG ARMSTRONG, M.D. HART, TOM FOLZ, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Before the Court is the Defendants' motion for summary judgment (Dkt. 25). The Court heard oral argument on October 18, 2010, and took the motion under advisement. Following further review of the record, and otherwise being fully informed, the Court finds that the motion should be granted as to the unlawful arrest claim but denied as to the malicious prosecution claim. Probable cause supported Plaintiff's arrest on at least one charge, mooting any unlawful arrest claim. However, there is a disputed issue of fact as to whether the police officers acted with malice and this prevents the officers from relying upon a presumption of prosecutorial independence, which would otherwise preclude their claim of malicious prosecution.

BACKGROUND

On April 10, 2007, Bannock County Sheriff's Department Detective Doug Armstrong responded to an assistance request from a state probation officer. Armstrong Aff. ¶ 3, Dkt. 25-3. The probation officer had discovered a large quantity of firearms while conducting a residential search of a probationer who had tested positive for illegal drugs. Id. at ¶ 4-6. The firearms were discovered in Plaintiff Steve Christensen's bedroom, though it was Christensen's son, who was residing with him at the time, who was the sole subject of the probation search. Id. at ¶ 7-8.

Detective Armstrong checked Christensen's criminal history and discovered that he had been convicted of lewd and lascivious conduct in 1978. Id. at ¶ 9. Detective Armstrong contacted Christensen and informed him that he could not own firearms while his son, a probationer, was living with him, and that he may have committed an independent felony by possessing firearms, given his prior conviction. Id. at ¶ 10. Continuing the search, Detective Armstrong found a videotape containing child pornography hidden behind some boxes in Christensen's closet. Id. at ¶ 11-12. Detective Armstrong phoned Bannock County Prosecuting Attorney Cleve Colson for advice on how to proceed. Mr. Colson advised Detective Armstrong to continue the search and that he would make a determination whether to arrest Christensen. Id. at ¶ 13-14.

Christensen returned home, at which time Detective Armstrong identified himself and informed Christensen why the search was being conducted. Id. at ¶ 15-16. Christensen admitted that he had a previous felony conviction for lewd and lascivious conduct. Id. at ¶ 17. Detective Armstrong explained to Christensen that unless a judge restored his rights, Idaho law made it illegal for a convicted felon to own firearms.

Armstrong then asked Christensen if his rights had been restored. Id. at ¶ 18. There is a dispute as to how Christensen responded. Detective Armstrong alleges that Christensen indicated that he had previously asked his probation officer to restore his rights, but was unsure if restoration occurred. Deputy Report, p.4, Dkt. 34, Ex. A. Christensen claims that he specifically told Detective Armstrong that his rights had been restored, thereby permitting his ownership of firearms. In his deposition, Christensen testified as follows:

And Armstrong said, you know, you're a convicted felon, you can't own guns. And I said no, I'm not, I can own guns. And I told him why I can own guns.

Christensen Dep. 46:21-24, Dkt. 30, Ex. D. Christensen also indicated that he specifically told Armstrong that his probation officer had told him that his civil rights had been restored. Christensen Aff. ¶ 19-20, Dkt. 32-3. Specifically, Christensen testified at his deposition as follows:

I told him that my senior probation officer who was also a correctional officer at that time, Les Day, said all my rights were restored, go out and make a good life for yourself.

Christensen Dep. 47:1-4, Dkt. 30, Ex. D. Finally, Christensen claimed that he told Detective Armstrong that he had voted and sat on juries since being released from prison, and that he had confirmed, via the internet, that he could own firearms before moving to Pocatello from Alaska, at which time he checked baggage with the airline which contained firearms. Christensen Aff. ¶ 21-23, Dkt. 32-3. For purposes of this motion, the Court must accept Christensen's version of his response to Detective Armstrong's question.

Detective Armstrong read Christensen his Miranda rights. Armstrong Aff. ¶ 19, Dkt. 25-3. Christensen expressed understanding thereof and agreed to continue talking with Detective Armstrong. Id. Christensen admitted to possessing and viewing the videotape containing child pornography. Id. at ¶ 20-21.

Mr. Colson advised Detective Armstrong that Christensen should not yet be arrested. Id. at ¶ 22. Detective Armstrong prepared his report and transmitted it to Mr. Colson, along with the evidence retrieved from Christensen's home and a report regarding the contents of the videotape prepared by Detective Tom Foltz. Id. at ¶ 23; see also Deputy Report, pp. 7-9, Dkt. 34, Ex. A. The report indicated that Christensen had been convicted of lewd and lascivious conduct with a minor in the 1970's. Deputy Report, p. 2, Dkt. 34, Ex. A. The report also stated that Christensen told the officers that he had asked his probation officer to restore his civil ...


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