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Hall v. Idaho Department of Fish and Game

United States District Court, Ninth Circuit

June 6, 2013

ROLAND HALL, Plaintiff,
IDAHO DEPARTMENT OF FISH AND GAME; RICK BOGAR, in his official and individual capacities; and, ROBERT SOUMAS, in his official and individual capacities, Defendants.


B. LYNN WINMILL, Chief District Judge.

Before the Court are cross-motions for summary judgment filed by Plaintiff Roland Hall (Dkt. 15) and Defendant Robert Soumas and Rick Bogar (Dkt. 19). Also pending before the Court is Plaintiff Hall's motion for leave to amend the Complaint to add a claim for punitive damages (Dkt. 14), as well Hall's motion to exclude Soumas and Bogar as expert witnesses (Dkt. 15). The Court heard oral argument on March 21, 2013, and took the matter under advisement.

This case involves a 42 U.S.C. § 1983 suit arising out of Defendant Robert Soumas' allegedly coercive interrogation and malicious prosecution of Plaintiff Roland Hall. The Court concludes that Soumas did not deprive Hall of a constitutional right, and Hall has chosen to dismiss the claims against Defendant Rick Bogar. The Court will therefore deny Hall's motion for summary judgment and grant Soumas and Bogar's motion for summary judgment with respect to the § 1983 claims. The Court will also dismiss Hall's remaining state law claims. The motion to amend the Complaint to add a claim for punitive damages and the motion to exclude expert witnesses are moot.


On Saturday, September 5, 2009 - the day before bow season for elk opened - Plaintiff Roland Hall and his friend, Dennis Liermann, went scouting for elk in the Tapper Creek drainage, north of Upper Priest Lake. Hall Dep. 20-21, Ex. A to Dinius Aff., Dkt. 16. Hall scouted the creek while Liermann scouted the ridge. Id. at 26:17-25. Later that day Hall received a radio call from Liermann, and Hall went to the ridge to meet him. Id. at 27:15-25. When Hall arrived on the ridge, he saw that Liermann had killed two bull elk with his bow. Id. at 30:12-14.

Two eye witnesses saw Liermann kill the elk and reported the incident to the Idaho Department of Fish and Game. Soumas Aff. ¶ 3, Dkt. 19-3. The eye witness recognized Liermann. Id. The eye witness also reported that he saw a second man come into view about five minutes after the second elk had been shot. Id. The eye witness did not know the second man.

The Department sent one of its officers, Defendant Robert Soumas, to investigate. Id. Soumas contacted Defendant Rick Bogar, another Fish & Game officer, and asked him to assist in the investigation. Id. Soumas located Hall's truck, which was parked across the road from where a family was camping. Id. ¶ 4. Members of the family told Soumas that two men had parked there, Hall had introduced himself, and the two men then left on foot. Id. The family only noticed that Hall carried a bow; they did not see Liermann's. Id.

Soumas and Bogar decided to wait for the men to return. Id. Soumas and Bogar bookended Hall's empty truck with their Fish and Game vehicles - Soumas parked his Fish and Game vehicle a little way past the truck in one direction on the road and Bogar did the same in the other direction. Id. ¶ 5.

When Hall and Liermann returned, they got into their truck and headed toward Soumas' vehicle. Id. ¶ 6. As Hall and Liermann approached, Soumas turned his headlights on low beam and activated his overhead emergency lights. Id. Bogar approached from behind the truck with his headlights on low beam; Bogar did not activate his emergency lights. Id.

Hall stopped his truck, and Soumas parked in front of it, slightly offset. Id. ¶ 7. Bogar parked his vehicle behind the truck and to the side so that his headlights would shine at the passenger compartment of the truck. Id. The stop occurred on a public road, about 100 yards from the campsite where the family was camping. Id. Hall said he felt "boxed in" by the two vehicles. Both Soumas and Bogar, however, reported that Hall left first, before Soumas and Bogar moved their vehicles, so apparently Soumas and Bogar left enough clearance on the road that Hall could pass by them. Id. ¶ 8.

After pulling Hall over, Soumas walked toward Hall's truck and observed both Liermann and Hall wore camouflage and had blood on their clothes. Report of Investigation at 3, Ex. 1 to Soumas Dep., Dkt. 13-5. Seeing the camouflage and the blood, Soumas asked Hall and Liermann "if they had been hunting." Soumas Dep. 33:23-25. When they answered yes, Soumas asked them to exit the truck. Id.

Soumas began questioning the two men together. Soumas Aff. ¶ 10; Bogar Aff. ¶ 10. He asked them to explain the blood on their clothing, and Liermann said he shot a bear that he had left "way the hell up there." Report of Investigation at 3. Soumas then "asked them if we ran DNA testing on their clothing would it come back as bear or elk and told them this was their opportunity to explain what happened." Report of Investigation at 3. Soumas suggested that DNA testing would be expensive. Soumas Dep. 44:6-22. Soumas also asked Hall and Liermann whether they preferred to talk to him on the side of the road "or down at the Bonner County jail." Id. at 46:12-15.

"After some discussion and silence, with both men staring at each other, LIERMANN stated: - I shot an elk' - Just one' - Five by six, but it has little stickers on it.'" Report of Investigation at 3. Soumas then asked Hall if he shot anything, and he said: "-I did' - A six by six.'" Id. After some more discussion, Soumas asked: "No one shot two, " and Hall replied, "No." Id. Soumas asked whether their intent was to take elk early if they saw some, and Liermann said, "No, not really.... Usually the season opens earlier and they're not talking like that, but they were talking today." Id at 4.

Soumas had been questioning Hall and Liermann for less than an hour when they confessed to killing the elk. Soumas Dep. 48:15-18; Soumas Aff. ¶ 10.

Based on Hall and Liermann's statements that they had each shot an elk, Soumas issued misdemeanor citations to both men. Soumas Aff. ¶ 10. Soumas and Bogar then followed Hall and Liermann to their hunting camp at a warming hut. Id. ¶ 11. At the warming hut, Soumas seized Liermann's bloody shirt and Hall's bloody shirt and pants and issued them both receipts. Id. This took about 15 to 20 minutes. Soumas Dep. 48:22-23. Hall and Liermann agreed to meet Soumas the next day after the elk was packed out. Id.

Soumas never read Hall and Liermann their Miranda rights because Soumas did not believe they were in custody. Soumas Aff. ¶ 10. Soumas indicates that he never physically detained Hall or Liermann and never told either that he was under arrest. Id. Soumas, however, testified that Hall and Liermann were not free to leave. Soumas Dep. 36:13-14. And Hall testified that he felt the road was too narrow for two cars to pass side by side. Hall Dep. 37:15-25.

Bogar did not ask Hall or Liermann any questions. Bogar Aff. ¶ 9. Bogar acted only as a "cover officer, to intervene only if Soumas was threatened or in danger, " and Bogar never felt Soumas was in danger. Id. Nor did Bogar feel that Miranda warnings were necessary because the stop was relatively brief and ended with Hall and Liermann being allowed to leave. Id. ¶ 10.

Only Soumas met with Hall and Liermann the next day. Id. ¶ 12. The meeting occurred outside of the warming hut and lasted about 23 minutes. Id. Soumas seized the elk meat and antlers. Id.

Soumas left but then returned to the warming hut after meeting with the eye witnesses who reported seeing Liermann shoot both elk. Id. ¶ 13. Soumas explained that the witness said Liermann had killed both elk. The witnesses seemed "very sure" that Liermann killed both elk and they could even positively identify the green and white fletching on the arrows used by Liermann to kill the elk. Soumas Dep. 68:17-25; 69:1-3, 6-9. Both Hall and Liermann insisted, however, that they had each killed one elk. Id. Soumas then told Hall and Liermann to return the citations he had issued to them the night before. Id. He also seized their bow and arrows. Id. Soumas maintains that Hall and Liermann were free to leave at any point during this second meeting. Id.

A couple of weeks later, Soumas issued a report dated September 23, 2009. He described the investigated offense as: "Kill/possess two (2) bull elk within a twelve (12) month period with reimbursable assessment of more than one thousand dollars ($1000) 36-1401(c)(3) Felony"; "Take (two) bull elk during closed season 36-1101(a) Misdemeanor"; "Counsel, aid in commission of misdemeanor 18-305 Misdemeanor." The report detailed the events that occurred on September 5 and 6, 2009, including the call from the eye witness who reported seeing Dennis Liermann kill both elk, as well as Hall's statements that he had killed one elk. Soumas' report made clear the eye witnesses had seen Liermann shoot both elk.

On October 5, 2009, Soumas met with one of the eye witnesses, Mack Stevens. Soumas recorded the interview. During the interview, Stevens confirmed again that Liermann alone had killed both elk. Stevens also said that he did not see Hall kill or handle the elk in any way, and that when Hall arrived at the kill site, he gave Liermann a look like "what did you do this for." Audio Interview, Ex. E to Dinius Aff., Dkt. 13-8. This same audio recording revealed that Soumas had attempted to visit the kill site a couple of weeks after Liermann had killed the elk. It was raining, and Soumas did not find any evidence at the site, but he was not sure if he was in the right place.

Soumas later denied visiting the kill site during the suppression hearing, and he never gave this recording of the Stevens' interview to the Boundary County prosecutor, Jack Douglas. Douglas did not learn of the recording and the kill site visit until Soumas produced the recording at his deposition three years later. Douglas Aff. ¶¶ 8-9, Dkt. 13-12.

The same day Soumas interviewed Mack Stevens, Soumas signed under oath a criminal complaint against Hall, charging him with unlawfully killing two bull elk within a 12-month period. Soumas did not draft the complaint. The Boundary County prosecutor Jack Douglas did. Douglas, however, in his affidavit states: "If I had knowledge of the testimony of CI2 [Stevens], I would not have charged Roland Hall in Boundary County Case CR-2009-1419." Id.

On October 6, 2009, Soumas testified at a telephonic probable cause hearing. Soumas referenced Hall's confession of killing one elk but explained that the two eyewitnesses saw Liermann kill both elk. After Soumas' testified, the judge questioned how Hall could be charged with killing the same two elk the eyewitnesses saw Liermann kill. Probable Cause Hearing Tr. at 9. Soumas responded that both Hall and Liermann were in possession of the two elk, and "possession means both actual and constructive possession..." Id. at 9-10. Apparently accepting Soumas' explanation, the judge found probable cause to charge both Liermann and Hall:

COURT: Alright. I'm-obviously the-it-from the testimony they were both hunting. We've got, uh, they admit killing the two. They say they each killed one, but it-that doesn't sound like that's what- what happened. They were take-they were taking-both taking steps to conceal and take the meat so I'll go ahead and find probable cause to charge each and I'll sign the complaints and summons and I will fax them back.

Id. at 10.

Right after Hall was charged, on October 15, 2009, the Department of Fish and Game issued a press release, which discussed the charges against Hall. The article, which appeared in the Bonners Ferry Herald, stated that "Two Boundary County men have been charged with felonies after each killed a bull elk one day before the archery season opened on September 5." Oct. 15, 2009 Article, Dinius Aff., Ex. F. It identified Hall as one of the two men. And it quoted Soumas as follows:

These two legitimate sportsmen really helped make this case by carefully recording what they witnessed and reporting it right away.... That gave officers the opportunity for a timely response. By unlawfully taking the two bulls before season, Hall and Liermann not only cheated their fellow hunters out of the opportunity to legally hunt these elk, they also gave a black eye to the whole hunting community.


Both Soumas and Bogar maintain that they did not prepare the press release, or aid in its preparation. On February 2, 2010, the Idaho Department of Fish and Game distributed another press release, which again recounted the allegations. Soumas had input drafting the second release and the opportunity to make changes before it was sent to the media. Soumas Dep. 72:7-25; 73:1-5.

About a month after the first complaint and press release were issued, the charges against Hall were amended. The charge was changed to aiding and abetting Dennis Liermann in unlawfully killing two elk in violation of Idaho Code § 36-1049(c)(3). Soumas Dep. Ex. 5, Dkt. 13-5. And then a week later, on November 20, 2009, the charge was changed a second time to unlawfully killing and possessing two bull elk within a twelve-month period. Id. at Ex. 6.

On June 28, 2010, the state district court granted Hall's motion to suppress all statements Hall made "during the custodial interrogation" on September 5, 2009. The court found that Soumas's questioning of Hall on September 5 was a custodial interrogation, and Hall therefore was entitled to a Miranda warning. After the court's ruling, the prosecutor amended the charge a third time to aiding and abetting in taking/possessing bull elk during closed season. Soumas Dep., Ex. 7, Dkt. 13-5. The prosecutor then dismissed all charges against Hall on October 14, 2010, because of insufficient proof of criminal intent.

Hall served his Notice of Tort Claim on the Secretary of State on December 10, 2010. He filed his Complaint on December 12, 2011, alleging five cause of action: (1) civil rights violations under 42 U.S.C. § 1983 against the Idaho Department of Fish & Game for alleged defects in the training, supervision, and discipline of employees, and the setting of policy regarding training, supervision, and discipline of employees, and for deliberate indifference; (2) Negligence and Gross Negligence in violating Hall's constitutional rights; (3) Intentional/Negligent Infliction of Emotional Distress; (4) Malicious Prosecution/Malicious Use of Process; and (5) Slander. Since the filing of the original Complaint, the Court dismissed the Idaho Department of Fish & Game and the civil rights claims against Bogar and Soumas in their official capacities based on lack of jurisdiction.

Bogar and Soumas maintain that neither of them was "responsible for establishing, promoting and enforcing the policies of the State of Idaho' regarding the training, supervision, or discipline of employees." They also say that neither of them harbored any malice or criminal intent toward Hall - they did not even know Hall prior to September 5, 2009, and they regarded their contact with him "as routine and uneventful." Soumas Aff. ¶18; Bogar Aff. ¶ 15.

Hall and Defendants Soumas and Bogar have filed cross-motions for summary judgment. Hall moves for summary judgment on his § 1983 claims and his malicious prosecution claim. Soumas and Bogar ...

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