United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye, Chief U.S. District Court Judge
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.
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
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).
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.
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.
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
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
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.
to Cassia County policy,  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.
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,
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.
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.
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.
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
12, 2017, Thomas filed the instant action.
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
Amended Complaint alleges Akers violated the First, Second,
Fourth, Fifth, and Fourteenth Amendments. Akers has moved for
summary judgment on all claims.
Thomas' Causes of Action under §1983
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.
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)).
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).
“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)).
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.”
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
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,
“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.”
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.
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.
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.
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.
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-that does not automatically delegitimize
his finding of probable cause. S.K.'s reliability was
simply one relevant consideration in Akers'
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.
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
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. Nor did he fail to examine the scene or
relevant items for physical evidence that could corroborate
S.K.'s allegation. As recounted above, his investigation was
much more thorough than that.
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.
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.
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.