Kleinschnitz v. Phares, et al

Filing 67

OPINION. Signed by Honorable Judge Myron H. Thompson on February 24, 2015. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

JACOB KLEINSCHNITZ,
Plaintiff,
v.
WILLIAM PHARES, in his
individual capacity,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
1:13cv209-MHT
(WO)

OPINION
Plaintiff

Jacob

Kleinschnitz

against

several

defendants,

William

Phares,

contending

brought

including
that

they

this

police

action
officer

violated

his

rights under federal and state law when Phares arrested
him.
v.

After several claims were dismissed, Kleinschnitz

Phares,

2013

WL

5797621

(M.D.

Ala.

2013),

the

defendants filed a motion for summary judgment as to
the remaining claims, and the magistrate judge entered
a recommendation that summary judgment be granted on
all claims.

This court adopted the recommendation with

respect

to

judgment

three

as

to

of

the

the

four

final

claims

claim.

but

withheld

Kleinschnitz

v.

Phares, 2015 WL 507341 (M.D. Ala. 2015).
Now

before

recommendation
remaining

the

court

that

claim,

is

judgment

the
be

Kleinschnitz’s

magistrate
granted

jurisdiction

over

to

the

malicious-prosecution

claim under Alabama law against Phares.
original

as

judge’s

The court had

Kleinschnitz’s

federal

claims pursuant to 28 U.S.C. § 1331 (federal question)
and accordingly has supplemental jurisdiction over the
remaining

state-law

§ 1367(a).

For

the

claim

pursuant

reasons

that

to

follow,

28
the

U.S.C.
court

declines to adopt the magistrate judge’s recommendation
and

instead

will

dismiss

the

malicious-prosecution

claim with leave to refile in state court.

I.

SUMMARY-JUDGMENT STANDARD

“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought. The court
2

shall grant summary judgment 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).

In construing the facts, the

court must view the admissible evidence in the light
most favorable to the non-moving party and draw all
reasonable

inferences

in

favor

of

that

party.

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).

II. FACTUAL BACKGROUND
In

May

2012,

around

midnight,

19-year-old

Kleinschnitz started his drive home after a late night
at work.
call.

Nearby, police were responding to a robbery
Phares,

a

police

officer

responding

to

the

robbery call, saw Kleinschnitz’s car driving at a speed
he estimated to be above the speed limit.

Lacking a

description of the vehicle used in the robbery or of
the suspects, Phares sped up to follow the car and

3

turned on his blue emergency lights when he caught up
to it.
Earlier,

in

March

or

April

2012,

Kleinschnitz’s

parents had shown him a video on Youtube.com in which
former defendant Dothan Police Chief Benton had issued
a

public

there

was

service
a

announcement

person

who

was

advising

people

impersonating

a

that

police

officer inducing people to pull over by driving in what
appeared to be an unmarked police car and flashing blue
lights behind them in traffic.

Benton advised people

that, if they were being pulled over and could see that
the vehicle was a marked police car, to go ahead and
pull

over.

If

visibility

was

low

because

it

was

nighttime, however, and drivers could not tell whether
a

real

police

vehicle

was

behind

them,

he

advised

people to find a safe, populated, well-lit location to
pull into before stopping.

He also said not to speed,

lest

that

the

officers

think

people

are

fleeing.

Finally, he said that officers are aware that people
may

respond

in

this

way,
4

and

in

fact,

that

this

contingency is written into the department’s procedural
orders.

YouTube.com, Dothan Police Chief Greg Benton’s

Advice on Blue Lights Behind You, uploaded on May 4,
2010,

http://www.youtube.com/watch?v=xSJxDCC9Qcw

visited Feb. 24, 2015).
police

department

at

(last

Phares worked for the Dothan

the

time

the

chief

made

this

announcement and presumably was among those bound by
the procedural order.1
Kleinschnitz--not wanting to evade an actual police
officer but concerned that the car behind might him not
be in fact a police car--slowed to below the speed
limit and waved out the window at Phares, attempting to
indicate that he was not fleeing but merely looking for
a place to pull over.

About a minute after turning on

his lights, Phares turned on his siren.

About two and

a half minutes after starting to follow Kleinschnitz,
Phares received a description of the robbery suspects’

1. However,
order (doc. no.
issuing such a
public statement
at 8-13.

he denied having seen the procedural
35-2), at 63-64, and the chief denied
procedural order, contradicting his
preserved on YouTube (doc. no. 35-3),
5

vehicle; based on the description, it was clear that he
was not following the suspects’ vehicle.

Nonetheless,

Phares continued to pursue Kleinschnitz.

Kleinschnitz

called 911 and told the dispatcher that someone was
trying to pull him over, that he was not sure it was a
police officer, and that he was not fleeing but instead
looking for a safe, well-lit, and populated place to
pull over; the area was dark.

The dispatcher relayed

Kleinschnitz’s intentions to Phares, who continued to
pursue.

During

the

pursuit,

Kleinschnitz--though

driving under the speed limit--violated traffic laws.
While

following

the

dispatcher’s

instructions,

Kleinschnitz told herthat he planned to pull into a
particular

gas

station,

information to Phares.

and

she

relayed

this

When Kleinshnitz did pull over

at that station, Phares and several other officers who
had arrived on the scene ordered him out of the vehicle
and

arrested

him

for

obstructing

governmental

operations, a Class A misdemeanor in Alabama.

6

1975

Ala.

Code

ground,

§ 13A-10-2.2

Kleinschnitz

After
told

being

Phares

ordered

that

he

to

the

had

not

stopped immediately because he had been uncomfortable
stopping in the area.
The next day, Phares swore out a municipal-court
complaint
governmental

against

Kleinschnitz

operations

offenses.

In

Kleinschnitz

“refused

[to

Later,

in

stopping.”
contradicted
Plaintiff’s

that

but

this

Response

not

complaint,

sworn
to

for

give]
his

for

any

Phares
any

for

traffic

swore

reason

deposition,

statement.
Motion

obstructing

that

for

Phares

Attachment
Summary

not

to

Judgment

(doc. no. 35-7).
Kleinschnitz demanded a trial and was acquitted of
the charge.

He then brought suit in this court.

His

2. The statute provides, “A person commits the
crime of obstructing governmental operations if, by
means of intimidation, physical force or interference
or by any other independently unlawful act, he: (1)
Intentionally
obstructs,
impairs
or
hinders
the
administration of law or other governmental function;
or (2) Intentionally prevents a public servant from
performing a governmental function.”
1975 Ala. Code
§ 13A-10-2(a).
7

state-law

malicious-prosecution

claim

against

Phares

remains.

III. DISCUSSION
Phares

argues

that

he

is

entitled

to

summary

judgment on the claim for malicious prosecution because
he

had

probable

magistrate

judge

cause
did

to

arrest

Kleinschnitz.

The

not

decide

whether

had

Phares

probable cause for obstructing governmental operations,
instead apparently relying on its finding that he had
'arguable’

probable

cause

to

grant

Phares

immunity.3

Because these arguments do not resolve the case, and
due

to

unresolved

issues

of

state

law,

the

court

declines to adopt the recommendation.

A. Standard for Malicious Prosecution
To maintain an action for malicious prosecution,
the plaintiff must prove the following elements: “(1)
3. Although the recommendation does not state the
explicit basis for recommending dismissal of the
malicious-prosecution claim, the context suggests that
the basis was a finding of arguable probable cause.
8

institution

or

continuation

of

an

original

judicial

proceeding, either civil or criminal; (2) by or at the
instance

of

proceeding

the
in

defendant;

the

(3)

plaintiff's

termination
favor;

(4)

of

such

malice

in

instituting the proceeding; (5) want of probable cause
for the proceeding; and (6) injury or damage as the
result of the prosecution's complaint.”

Kroger Co. v.

Puckett, 351 So. 2d 582, 585 (Ala. Civ. App. 1977).
arrest

by

a

police

officer

without

probable

An

cause

may give rise to a malicious-prosecution action.

See

Franklin v. City of Huntsville, 670 So. 2d 848, 852-53
(Ala.

1995)

(reversing

summary

judgment

in

favor

of

arresting officer because disputed facts existed as to
whether there was probable cause for the arrest).
Phares argues that he had probable cause to arrest
Kleinschnitz
The

court

for
finds

obstructing
it

governmental

questionable

that

operations.
Phares

had

probable cause to arrest Kleinschnitz for obstruction
of government operations.

One element of this offense

is that the person charged had to have intended to
9

obstruct, impair or hinder the administration of law or
other

governmental

§ 13A-10-2(a).

function.

The

1975

information

Ala.

available

Code.
to

the

officer suggested strongly that Kleinschnitz did not
intend to do so:

Kleinschnitz attempted to wave at

Phares and signal that he was not fleeing; he slowed to
below the speed limit; he called 911 and informed the
dispatcher of his intent to find a safe, populated,
well-lit place to pull over; and he did in fact pull
into the gas station where he told the dispatcher he
was going to stop.

It is therefore, at the very least,

questionable that Phares had a sound basis upon which
to

arrest

Kleinschnitz

for

obstructing

government

operations.
However, under Alabama law, an arrest is valid even
if there was no probable cause to arrest an individual
for the particular offense for which the person was
actually arrested, so long as probable cause existed to
arrest the individual for some offense at that time.
Powell v. State, 548 So. 2d 590, 600-03 (Ala. Crim.
10

App. 1988) (quoting United States v. Saunders, 476 F.2d
5, 7 (5th Cir. 1973) (“When an officer makes an arrest,
which is properly supported by probable cause to arrest
for a certain offense, neither his subjective reliance
on an offense for which no probable cause exists nor
his verbal announcement of the wrong offense vitiates
the arrest.”)).

Phares argues that, even if he lacked

probable cause to arrest Kleinschnitz for obstructing
governmental
because

it

operations,
was

supported

the
by

arrest

was

probable

still

cause

valid

for

the

traffic offenses Phares saw Kleinschnitz commit.4

In

this respect, the court agrees with Phares.

B. Unresolved Issue of Criminal Complaint
The conclusion that Phares had probable cause to
arrest

Kleinschnitz

does

not

resolve

the

case,

for

Phares went beyond simply arresting Kleinschnitz:

he

4. It is not disputed that Kleinschnitz
more than one traffic law while looking for a
pull over safely. A police officer can arrest
for even minor traffic offenses.
Atwater v.
Lago Vista, 532 U.S. 318, 354 (2001).
11

violated
place to
a driver
City of

also

swore

out

a

criminal

complaint

against

Kleinschnitz, and arguably lied in that complaint by
saying

that

Kleinschnitz

stopping sooner.

gave

no

reason

for

not

This presents the question of whether

a malicious-prosecution claim against a police officer
may be based on the institution of a criminal complaint
without

probable

cause

after

an

arrest

supported

by

probable cause.
Alabama law makes clear that a private individual
may

be

sued

for

filing

a

criminal

complaint.

See

Johnson v. Haynie, 414 So. 2d 946, 949 (Ala. 1982)
(filing of a criminal complaint by a private citizen or
entity

without

probable

malicious-prosecution

cause

action).

could
In

be

basis

for

addition,

a
an

individual may be held liable for malicious prosecution
under Alabama law not only for initiating a complaint,
but also for continuing to prosecute or encouraging or
assisting with such prosecution.
“A cause of action for malicious
prosecution is not limited to the
situation where the present defendant
initiated the prior proceeding; it
12

also arises in the situation where the
present defendant continued the prior
proceeding without probable cause, and
one can be held liable for malicious
prosecution when he takes some active
part in the instigation or encouraging
of the prosecution.
‘Tak[ing] some
active part’ includes advising or
assisting another person to begin the
proceeding and actively directing or
aiding in the conduct of it.”
Poff

v.

Hayes,

763

So.

2d

234,

241

(Ala.

2000)

(internal citations and quotation marks omitted); see
also Laney v. Glidden Co., 194 So. 849, 851 (Ala. 1940)
(“A suit for malicious prosecution may lie, not only
for the commencement of the original proceeding, but
for its continuance as well.”).

This rule applies to

both criminal and civil proceedings.
2d

at

585

(noting

malicious-prosecution

that
action

the
in

Kroger, 351 So.
elements

Alabama

of

include

a
the

“institution or continuation of an original judicial
proceeding,

either

civil

or

criminal;”

and

“want

of

probable cause for the proceeding”) (emphasis added).
Under Alabama law, then, it appears likely that,
not only a private person, but an officer may be held
13

liable for the filing of a criminal complaint after the
arrest.5
any

However, this court has been unable to find

published

question.

Alabama

The

case

court

is

squarely

hesitant

addressing

to

resolve

the
this

important question of state law.

C. Discretionary-Function Immunity
Phares

has

raised

the

discretionary-function

immunity

What

to

standard

applies

the

defense

of

Alabama

law.

under
filing

of

a

criminal

complaint, however, is unclear.
As the magistrate judge noted, Alabama law provides
for

immunity

discretionary

from

suit

by

functions.

state
1975

agents

Ala.

performing

Code

§ 6-5-338

(“Every peace officer ... shall have immunity from tort
liability

arising

out

of

his

or

her

conduct

in

5. In this case, the validity of Phares’s arrest
was saved by the presence of probable cause to arrest
Kleinschnitz for traffic offenses. However, Phares did
not obtain a criminal complaint based on the traffic
offenses that had justified the arrest, so those
offenses could not provide probable cause to support
the criminal complaint.
14

performance of any discretionary function within the
line and scope of his or her law enforcement duties.”);
see also Ex parte Cranman, 792 So. 2d 392 (Ala. 2000).
However, “a State agent shall not be immune from civil
liability in his or her personal capacity ... when the
State agent acts willfully, maliciously, fraudulently,
in bad faith, beyond his or her authority, or under a
mistaken interpretation of the law.”

Ex parte Butts,

775 So. 2d 173, 178 (Ala. 2000) (emphasis in original).
With

regard

discretionary-immunity

to

the

standard

is

arrest,
clear:

a

the
police

officer is immune from tort liability so long as he had
“arguable probable cause” to make an arrest.
probable

cause

exists

“if

officers

of

Arguable
reasonable

competence in the same circumstances and with the same
knowledge would disagree as to whether probable cause
existed.”

Borders v. City of Huntsville, 875 So. 2d

1168, 1179 (Ala. 2003).

While the magistrate judge

concluded that Phares had arguable probable cause to
arrest

Kleinschnitz

for

obstructing
15

governmental

operations, the court has its doubts.

As discussed

above, one element of the offense of obstruction of
government operations is intent to obstruct, impair, or
hinder administration of law; and, viewing the facts
known to the officer in the light most favorable to the
plaintiff, as the court must at the summary-judgment
stage, the court is hesitant to conclude that “officers
of reasonable competence in the same circumstances and
with the same knowledge would disagree as to whether
probable cause existed.”
In any case, it is not clear that the ‘arguable
probable cause’ standard is the correct one to apply to
Phares’s filing of a criminal complaint.
found

only

two

Alabama

cases

The court has

containing

the

phrase

“arguable probable cause,” and both apply that standard
to

determine

tort

criminal complaint.
(rejecting
also

finding

liability

for

an

arrest,

not

a

See Borders, 875 So. 2d at 1179-81
of

arguable

probable

cause);

see

Greene v. Byrd, 897 So. 2d 1107, 1116 (Ala. Civ.

App. 2003) (finding jury question existed as to whether
16

the officer had arguable probable cause to arrest the
plaintiff, but not addressing whether standard applied
to filing of criminal complaint).

Again, the court is

hesitant to wade into this unresolved area of state
law.

IV. CONCLUSION
This court “may decline to exercise supplemental
jurisdiction over a claim” if “the district court has
dismissed

all

jurisdiction
addition,

claims
....”

federal

over
28

which

U.S.C.

courts

should

it

has

original

§ 1367(c)(3).
avoid

In

“[n]eedless

decisions of state law. . . both as a matter of comity
and to promote justice between the parties....”

United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725-26
(1966).

Because of the ambiguities of state law the

court has identified, the court declines to exercise
supplemental jurisdiction over the claim for malicious
prosecution.

17

An appropriate judgment will be entered.
DONE, this the 24th day of February, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE

18