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Thomas v. Cassia County, Idaho

United States District Court, D. Idaho

February 26, 2019

DEREK THOMAS, Plaintiff,
v.
CASSIA COUNTY, IDAHO, a political subdivision of the State of Idaho, JAY M. HEWARD, and MICHAEL AKERS, Defendants.

          MEMORANDUM DECISION AND ORDER

          David C. Nye, Chief U.S. District Court Judge

         I. OVERVIEW

         There are three motions currently pending before the Court. First, is Defendants Cassia County (“the County”) and Jay M. Heward's (“Heward”) Motion for Summary Judgment. Dkt. 23. Second, is Defendant Michael Akers' (“Akers”) Motion for Summary Judgment. Dkt. 24. Third, is the County and Heward's Motion to Strike. Dkt. 57.

         In the present case, Plaintiff Derek Thomas (“Thomas”) brings both state and federal law claims. Specifically, Thomas brings claims under 41 U.S.C. § 1983, alleging that Akers violated his First, Second, Fourth, Fifth, and Fourteenth Amendment rights. Thomas brings related claims against Heward and the County, as well as claims under the Idaho Tort Claims Act and Idaho common law. Oral argument was held on December 12, 2018, and the Court took all motions under advisement.

         For the reasons set forth below, the Court now GRANTS the County and Heward's Motion for Summary Judgment (Dkt. 23), GRANTS in PART and DENIES in PART Akers' Motion for Summary Judgment (Dkt. 24), and GRANTS in PART and DENIES in PART the County and Heward's Motion to Strike (Dkt. 57).

         II. FACTS

         On December 31, 2016, Akers-then a deputy with the Cassia County Police Department-responded to a hit and run call in Burley, Idaho. Akers had been a member of the police department since 2010 and had completed all training required by the State of Idaho. Dkt. 48-1, at 1-2.

         The hit and run call to which Akers responded originated from a report made by Thomas' third-cousin, a fifteen-year-old boy referred to as “S.K.” Akers drove to S.K.'s residence where he interviewed both S.K. and his grandfather, Harold Povlesen. S.K. told Akers that, while he was riding his motorized bicycle, Thomas struck the back tire of his bicycle with his pickup truck and drove off. Povlesen was able to partially corroborate S.K.'s account, by explaining that-while sitting in his home-he could hear S.K.'s bike approaching. Povlesen thought it sounded like S.K.'s bike “missed a beat” and then he heard another vehicle accelerating. Dkt. 38-13, at 7. Povlesen stepped outside and saw Thomas' pickup truck driving away from S.K. Although Povlesen did not specifically see Thomas as the driver, he was confident that it was Thomas' truck because he was so familiar with Thomas and his vehicle.

         Akers then examined S.K.'s bike. The tire appeared ruptured, and green slime- which is used to prevent flat tires by quickly filling small punctures-was sprayed along the back of the bicycle. The same slime was also sprayed on S.K.'s clothing, which Akers believed further corroborated the allegation.

         Prior to receiving this call, Akers had interacted with Thomas on numerous occasions. Thomas worked as a tow-truck driver, and regularly interacted with police officers in that capacity. Thomas also claims that on “several prior occasions, ” Akers “aggressively confronted” him and asserted that it was illegal for Thomas to openly carry a firearm in public. Dkt. 6, at 2-3. On each of these occasions, Akers allegedly required Thomas to remove his firearm and put it away. Id. Akers claims he complained to Sherriff Heward regarding these encounters, but Heward did not punish Akers or do anything to correct his behavior.

         After speaking with S.K. and Povlesen, Akers drove to Thomas' home, and was invited inside by Thomas' wife. She informed Akers that Thomas had been home for about fifteen or thirty minutes. When Thomas came out of his bedroom, he told Akers that he had been sleeping for two hours. Akers then asked Thomas about S.K.'s report and Thomas denied the allegations. Following this denial, Akers told Thomas to get his shoes because he was taking him into custody for a “hit and run.” Dkt. 38, ex. 15 (body camera footage). As Thomas went to grab his shoes, he told Akers “you need to call Cole [Blauer] because he was with me earlier. I've got a witness.” Id. Akers did not immediately follow up with this claim, and instead, proceeded with the arrest.

         Pursuant to Cassia County policy, [1] Akers handcuffed Thomas with Thomas' arms placed behind his back. At the time of the initial handcuffing, Thomas did not inform Akers that he had a shoulder injury, nor did he say anything that would indicate the handcuffs were causing pain or discomfort. However, as Akers attempted to place Thomas in his patrol vehicle, Thomas complained of shoulder pain, and requested that Akers instead handcuff him with his arms placed in front. Akers explained that-per department policy-he could not handcuff him with his hands in front but could add a second set of handcuffs to mitigate the shoulder pain. Akers proceeded to do so, and Thomas was placed in the squad car without any further indication of pain or discomfort. Thomas now claims that the manner in which Akers handcuffed him and placed him in the patrol vehicle caused a shoulder injury that ultimately required surgery.

         Thomas was taken to Cassia County jail. For a period of time immediately following Thomas' arrest, Akers accidentally left his body camera on. This camera captured Akers discussing the arrest with fellow officers. Akers stated to one officer: “Between you me and the walls, I don't like Derek Thomas.” Dkt. 38, ex. 15. When another officer asked Akers about the incident, Akers informed the officer that it was S.K. who made the report, and stated: “Yeah, I know, [S.K.'s] kind of a turd himself.” Id. Shortly thereafter, another officer asked, “is [S.K.] the one who's got a mental handicap?” to which Akers responded, “yeah.” Id.

         In discussing the proper charge during a telephone conversation with a prosecutor, the camera captured Akers saying, “at a minimum it's a hit and run . . . [but] I'm thinking there is enough for ag[gravated] assault if you think there's enough there.” Id. Shortly thereafter, Akers said to a fellow officer, “the odds of us getting a conviction out of this are pretty slim. But it would be nice to get a conviction because then we could get his guns. . . . we're always getting reports of him making threats.” Id.

         Because of the three-day holiday weekend, Thomas spent four days in jail before going before a judge. After his initial appearance, he was released from jail on a $75, 000 bond.

         Cassia County Prosecutor, Douglas Abenroth, reviewed the evidence against Thomas on January 3, 2017. Following his review, he decided to charge Thomas with aggravated assault and to include a deadly weapon enhancement. These charges were later reduced to an infraction for improper equipment, to which Thomas pleaded guilty.

         Although Sherriff Heward did not conduct a formal investigation into Akers actions, he did review the relevant police reports, watched Aker's body camera videos, and discussed the matter with him. Heward concluded that, although he might have handled things differently, Akers' actions did not violate Cassia County policies, and no disciplinary action was taken.

         On June 12, 2017, Thomas filed the instant action.

         III. LEGAL STANDARD

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court's role at summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In considering a motion for summary judgment, the Court must “view[] the facts in the non-moving party's favor.” Id. To defeat a motion for summary judgment, the respondent need only present evidence upon which “a reasonable juror drawing all inferences in favor of the respondent could return a verdict in [his or her] favor.” Id. (citation omitted). Accordingly, the Court must enter summary judgment if a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or the pleadings to defeat a motion for summary judgment; rather, the respondent must set forth the “specific facts, ” supported by evidence, with “reasonable particularity” that precludes summary judgment. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).

         IV. ANALYSIS

         Thomas' Amended Complaint alleges Akers violated the First, Second, Fourth, Fifth, and Fourteenth Amendments. Akers has moved for summary judgment on all claims.

         A. Thomas' Causes of Action under §1983

         1. Unlawful Arrest

         Thomas claims that his warrantless arrest was unconstitutional. Specifically, he argues that Akers lacked a warrant and probable cause to make the arrest, thereby violating his Fourth Amendment rights.

         a. Applicable Law

         “A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification.” Dubner v. City & County of San Francisco, 266 F.3d 959, 964-64 (9th Cir. 2001). “An officer will not be held to have committed a violation of a defendant's Fourth Amendment right to be free from unlawful arrest if the arrest was carried out with probable cause.” Wilson v. City of Coeur D'Alene, (D. Idaho Nov. 19, 2010) (citing Grant v. City of Long Beach, 315 F.3d 1081, 1089 (9th Cir. 2002)).

         “Probable cause exists when, under the totality of the circumstances known to the arresting officers (or within the knowledge of the other officers at the scene), a prudent person would believe the suspect had committed a crime.” Dubner, 266 F.3d at 966. Importantly, an officer's subjective motivations for carrying out the arrest do not invalidate the arrest, “as long as the circumstances, viewed objectively, justify that action.” Whren v. United States, 517 U.S. 806, 813 (9th Cir. 1996).

         Additionally, “while States are free to regulate [warrantless] arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.” Virginia v. Moore, 553 U.S. 164, 176 (2008). Thus, even if an arrest violates state law, that does not automatically mean it violates the Fourth Amendment, as state law may provide enhanced protections. See Martinez-Medina v. Holder, 673 F.3d 1029, 1037 (9th Cir. 2011) (“Even though the officers violated state law when they arrested Moore, that state law violation did not constitute a Fourth Amendment violation.”); see also Moore, 553 U.S., at 175 (“Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected” in Atwater v. Lago Vista, 532 U.S. 318 (2001)).

         Accordingly, whether Idaho law permits warrantless arrests for misdemeanors committed outside of an officer's presence is immaterial here, because under federal law, warrantless arrests based upon probable cause can be legal even if the alleged crime was committed outside of the officer's presence. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990). “The requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment.” Id. “Thus, the vitality of [a] section 1983 action is not dependent on whether [an officer] was present when . . . the misdemeanor [was committed]. Rather, the crucial inquiry is whether [the officer] had probable cause to make the arrest.” Id.

         Although the existence of probable cause is highly dependent on the facts of each case, “whether a reasonable officer could have believed probable cause . . . existed to justify a search or an arrest is an essentially legal question that should be determined by the district court at the earliest possible point in the litigation.” Peng v. Hu, 335 F.3d 970, 979-80 (9th Cir. 2003) (citations and punctuation omitted). Accordingly, “where the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts, it is appropriate for th[e] court to decide whether probable cause existed at the time [of the arrest].” Id.

         b. Analysis

         At the time of Thomas' arrest, Akers informed him that he was taking him into custody for a hit and run violation. Presumably Akers was referring to Idaho Code section 49-1301, which states:

“The driver of any vehicle involved in an accident, either on public or private property open to the public, resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident, or as close as possible, and shall immediately return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of law. . . . Any person failing to stop or to comply with the requirements under these circumstances shall be guilty of a misdemeanor.”

         It should be noted that “[b]ecause the probable cause standard is objective, probable cause supports an arrest so long as the arresting officers had probable cause to arrest the suspect for any criminal offense, regardless of their stated reason for the arrest.” United States v. Struckman, 603 F.3d 731, 741 (9th Cir. 2010). However, the officer's stated reason for the arrest is a good place to begin this inquiry. Akers told Thomas that he was arresting him for hit and run, and based upon the undisputed facts of the case, the Court finds that he had probable cause to do so.

         In viewing the totality of circumstances known to Akers at the time of the arrest, a prudent officer could have believed Thomas was guilty of leaving the scene of an accident. First, S.K. told Akers that Thomas hit him with his truck. This account was corroborated by S.K. grandfather, who told Akers that he saw Thomas' truck speeding away from the scene. Akers also examined S.K.'s bike, which had a damaged tire. He also observed green tire slime on the back of S.K, 's clothing, which was consistent with S.K.'s account of his bike being hit from behind.

         Akers then went to Thomas' house and was informed by Thomas' wife that he had only been home for 15-30 minutes. Shortly thereafter, Thomas contradicted his wife's statement by claiming he had been home (and asleep) for two hours. This further supported Akers' suspicions that S.K.'s allegation was true because such an inconsistency could reasonably be viewed as Thomas trying to falsify an alibi.

         Admittedly, the fact that Thomas' truck was not splattered with green tire slime perhaps undermines S.K.'s story. However, there are plausible theories that could explain the lack of green slime besides Thomas not being involved in the incident (e.g. Thomas wiped any green slime off his truck once he returned home). This oddity, standing alone, is not enough to overcome a finding of probable cause.

         Thomas also asserts that at the time of S.K.'s report, Akers was aware that S.K. had a reputation for untruthfulness and a strained relationship with Thomas, which undercuts his claim that probable cause existed. The Court, however, finds this argument unconvincing. While Akers was at least somewhat familiar with S.K. and Thomas prior to the events in question-and may have even known of their strained relationship[2]-that does not automatically delegitimize his finding of probable cause. S.K.'s reliability was simply one relevant consideration in Akers' investigation.

         Importantly, Akers did not rely solely on S.K.'s statement to establish probable cause. He also interviewed Povlesen, who informed him that he saw Thomas' truck speeding away from the scene. He then examined S.K.'s clothing and bicycle and found physical evidence that corroborated the allegation. He then spoke with Thomas and his wife, who contradicted each other regarding how long Thomas had been home. Even construing the facts in the light most favorable to Thomas (and presuming Akers' had reasons to doubt S.K.'s reliability), Akers' investigation still uncovered sufficient corroborating material to bolster S.K.'s credibility and establish probable cause.

         Thomas, however, argues that Akers' pre-arrest investigation was insufficient, and that a finding of probable cause is improper because there was so much more Akers could have done to investigate S.K.'s report. It is true that-in various cases-the Ninth Circuit has found that probable cause had not been established because there was “much else the officers could have done.” See, e.g., Frunz v. City of Tacoma, 468 F.3d 1141, 1146 (9th Cir. 2006).

         However, after reviewing the relevant case law, the Court finds that Akers' pre-arrest investigation was sufficient to establish probable cause. He did not simply rely on the claim of one citizen witness.[3] Nor did he fail to examine the scene or relevant items for physical evidence that could corroborate S.K.'s allegation.[4] As recounted above, his investigation was much more thorough than that.

         There will likely always be something more that officers can do when investigating an alleged crime, but the probable cause standard simply requires enough evidence to allow a prudent person to believe there is “a fair probability that the suspect committed a crime.” United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984). While Thomas' guilt was by no means firmly established, the evidence Akers uncovered during his investigation was enough to establish probable cause.

         Finally, Thomas argues that even if probable cause existed, the arrest was still unconstitutional because he was arrested inside of his home without a warrant. It is true that the Fourth Amendment “generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects, ” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). However, this prohibition “does not apply to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises.” Id. (citations omitted). Here, Akers was invited inside by Thomas' wife, thereby obviating the need for a warrant to enter the home.

         In sum, the Court finds that-based upon the information known to Akers at the time-a reasonable officer could have found probable cause to arrest Thomas for hit and run. While the Court is not convinced that Akers' motivations were pure when he decided to arrest Thomas, probable cause is an objective standard, and Akers' subjective motivations are irrelevant to this inquiry. Accordingly, Thomas' arrest was not unlawful, and the Court GRANTS Akers' Motion for Summary Judgment on this claim.

         2. Excessive Force

         a. ...


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