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Kinkade v. City of Weiser

United States District Court, D. Idaho

January 23, 2018



          Hon. Candy W. Dale, United States Magistrate Judge


         In this case, Carrie Ann Kinkade alleges that two police officers employed by the City of Weiser, Brandon Hathorn and Jason Maxfield, are personally liable for excessive use of force and arrest without probable cause (false arrest) under 42 U.S.C. Section 1983 and the Idaho Tort Claims Act. Kinkade makes the same claims against the City of Weiser and Police Chief Greg Moon. (Second Amended Complaint, Dkt. 25.)

         Pending before the Court are two summary judgment motions.[1] First, Defendants filed a motion for partial summary judgment limited to the false arrest claim against the two officers. (Dkt. 41.) Defendants assert that collateral estoppel applies to bar the claim. In a state case related to the same incident, the State of Idaho filed criminal charges against Kinkade for disturbing the peace, a violation of Idaho Code Section 18-6409, and for battery upon certain personnel, a police officer, a violation of Idaho Code Section 18-915(3)(B). On June 3, 2014, a preliminary hearing was held on the matter. During the hearing, the state magistrate judge found probable cause for an arrest based on the battery charge. The charges against Kinkade were later dropped by the State. Defendants assert that, because the state magistrate judge found there was probable cause for the crime of battery upon a police officer, this Court is estopped from revisiting the probable cause question and should dismiss Kinkade's false arrest claim.

         Second, Defendants filed a motion for summary judgment on all claims alleged by Kinkade against the City of Weiser and Police Chief Moon. (Dkt. 55.) Defendants assert qualified immunity applies to these claims. They argue further that no constitutional violation was caused by Chief Moon's alleged failure to train and supervise or by the City's alleged failure to do the same. They argue there was no ratification of the conduct or like-conduct by a policymaker. Instead, they point to the police department's policy manual and to instances of training the officers received prior to the incident at issue.

         The motions are now ripe. Oral argument was held on the motions on December 7, 2017. Having fully reviewed and carefully considered the record, the parties' briefing, and the parties' arguments, and the relevant authorities, the Court issues the following report recommending that Defendants' motions be granted.


         On May 21, 2014, Weiser police officers Hathorn and Maxfield responded to a dispatch call to Legends Sports Pub & Grill in Weiser.[2] The owner of the business, Michael Kane, called to request police assistance regarding Kinkade, a customer, after she caused a disturbance by allegedly attempting to confront the cook on duty about a personal matter. (Dkt. 41-1 at 2 ¶ 1.)

         When the officers arrived, they discussed the situation with Kane, the cook, and the waitress who was serving Kinkade.[3] Once the officers first approached Kinkade, she was sitting at a table in the dining area of the restaurant with her boyfriend. Hathorn asked Kinkade and her boyfriend to step outside. They both complied. Once outside, Hathorn asked: “What's going on with all that?” Kinkade responded with the question, “All what?” Hathorn clarified, “with the cook back there.” Although the video is inaudible for a moment, when audio returns, Kinkade's boyfriend stated: “I can explain that. What happened was…” and Kinkade interjected, motioning for her boyfriend to stop talking. Kinkade next said, “No, I did not walk up to the counter.”[4] To which Hathorn responded, “Okay, then tell me what happened. Why am I here?” Kinkade responded by returning the question, “I don't know, why are you here?” At this point, the owner, Mr. Kane was also outside the restaurant and is visible on the video.

         Hathorn stated he was going to have the owner tell Kinkade and her boyfriend what he wanted. Next, Kane said: “I don't want you guys to come back anymore. I asked you to leave and you wouldn't leave.” Kinkade then lifted her right arm and pointed at Kane and responded, “You did not ask us to leave, you're a f[…]ing[5] liar.” Hatfield interjected and said, “Hey, he's asking you now, so you're done. You paid. Now you can leave.” Here Hathorn motioned with his arm down the road and continued, “If you go back in you will be arrested for trespass.” Kinkade's next clearly audible words were, “F[…] you.”

         Kinkade's boyfriend began stepping away from the scene. Hathorn also moved from his position. Hathorn had been standing several feet in front of Kinkade with her boyfriend to his right. He stepped in the direction of Kinkade, closer to her, and toward her right side, rather than squarely facing her. She turned toward him as he was moving and said, “I can say f[…] you all I want right?” As she said this, she remained standing where she had been during the encounter. As Kinkade spoke, she raised her right arm with her bicep and her forearm forming a 90-degree angle. Her right hand was held straight up toward the sky. With her arm and hand in this position, she bent her elbow, and moved her forearm forward in the direction of Hathorn's face. Neither her arm or hand came in contact with Hathorn's body. As she made the gesture, she again said, “F[…] you.” Before she finished uttering the phrase, Hathorn grabbed her gesturing right hand with his left hand and pulled it down tight toward the ground. As he did so, he also grabbed her chin with his right hand. Four of his fingers were on the right side of her face and his thumb wrapped tightly under her chin and toward the left side of her face. As he gripped her face he pushed her body in the direction opposite his and toward the street behind them.

         Kinkade responded by pushing Hathorn's right arm away with her left hand. This action removed his hand from her face and pushed his arm above his head. She also released her right hand from the grasp of his left hand and after doing so, used both hands and arms to strike Hathorn several times on his upper body and head area. As this was happening, she said, “You [don't] f[…]ing touch me like that again, f[…]er.” Hathorn then moved toward Kinkade, wrapped his right arm around her upper-chest and neck area and dropped her to the ground on the asphalt roadway.[6] The video does not show what happened directly after the take down. However, seconds later, the camera pans back to Kinkade and Hathorn. The video shows her on her stomach with Hathorn pulling her arms behind her back to handcuff her. Hathorn said to her, “you don't put your hand in a cop's face.” Kinkade responded, mentioning something about how he touched her first.

         Kinkade next was walked down the block and around the corner to the parking lot behind the restaurant. She was not wearing shoes because they fell off during the preceding altercation. Kinkade was handcuffed. She was talking to Hathorn and was visibly and audibly upset. She exclaimed, “If you f[…]ing pull my ass like that up again, I'll f[…]ing turn your ass f[…]ing in.”[7] To which Hathorn responded, “You keep walking or you're going to go on the ground.”

         Once at the car, Hathorn positioned her against the rear right passenger side, facing the vehicle. Hathorn directed Kinkade to spread her feet. Kinkade refused. He directed her to do so again. She again refused. Then, Maxfield said, “Put her on the ground if she is not going to do it.” Hathorn took her to the ground immediately after the comment.[8] With Kinkade on the ground, Maxfield directed: “Spread your feet.” Hathorn searched her and he questioned: “How many times did I ask you to spread your feet and you said no?” Hathorn then rolled her around on the ground while he performed the search. Hathorn told her to stand back up and helped pull Kinkade to her feet. Maxfield said: “Ma'am we've given you options, you're the one who is not complying with anything we are doing right now.” Kinkade responded with “F[…] you, ” and continued to verbally insult the officers. Hathorn then forced Kinkade into the backseat of the patrol car.[9] There was a brief struggle in the car as the officers secured her seatbelt.

         Maxfield drove Kinkade to the Weiser Police Department building's sally port. When Maxfield exited the car, he had a brief exchange with another employee who had entered the sally port when the car arrived. Explaining the situation, Maxfield commented and repeated once: “She's drunk and wants to play.”

         The next interaction between Maxfield, Hathorn, and Kinkade occurred when Hathorn opened the rear door to the police car. The first thing Kinkade said was: “I want another officer.” She repeated this demand and also said, “get the f[…] away from me. I want another officer.” This was repeated a number of times.[10] Meanwhile, officer Hathorn held the rear passenger side door open and instructed Kinkade to get out of the car. Maxfield then said: “Ma'am I am going to give you two options. Option one: you walk out of the car. Option two: you get drug [sic] out of the car.” Kinkade's response was, “F[…] off.” Maxfield said, “ok” and then moved in toward her on the right side.

         The video shows both of Maxfield's hands holding tightly to her hair and pulling her out of the car using that grip. His hands then appear to slide down near her neck and shoulders. Meanwhile, the video shows Hathorn on the other side of the car, pushing Kinkade on her backside. Kinkade, still in handcuffs, spilled out of the car and landed face-first on the concrete floor. She did not appear to be moving at all upon impact. It is not possible to tell from the video if she was momentarily knocked unconscious from the blow as she asserts.[11] Maxfield then instructed her to sit up. The video shows her left leg is bleeding from an injury near her knee area. The officers stand her up and walk her into the building.

         Once inside, Kinkade is placed in a chair and restraints are applied. The verbal exchanges continue. She requested that photos be taken of her injuries. Maxfield took photos. She was offered medical care for her injuries. She refused the care.

         Hathorn issued Kinkade a misdemeanor citation that day for disturbing the peace. Noting she was “intoxicated and enticing [the cook].” (Idaho Uniform Citation No. 27448, Weiser Police Department, May 21, 2014, Dkt. 4-3 at 7.) When she was booked into the jail the incident report, number PD140500352, indicates the disturbing the peace charge, in violation of Idaho Code Section 18-6409, and an additional charge of battery upon a certain personnel, a police officer, in violation of Idaho Code Section 18-915(3)(B).


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