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.
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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
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