Andrews v. Bonner County et al

Filing 104

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED: Defendants' Motion for Reconsideration (Dkt. 96 ) is DENIED.Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBIN D. JOHNSON,

Case No. 3:18-cv-00244-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
BONNER COUNTY; BONNER
COUNTY SHERIFF’S DEPARTMENT;
GARY MADDEN; SHAWN DEEM;
TED SWANSTROM; PHIL STELLA;
ROR LAKEWOLD; and MIKE
GAGNON, in their individual and
official capacities; and DOES 1-10,
Defendants.
I. INTRODUCTION
Before the Court is Defendants’1 Motion for Reconsideration (Dkt. 96) regarding
the Court’s recent Memorandum and Decision Order (Dkt. 93). Plaintiff opposes the
Motion. Dkt. 98.
Having reviewed the record and briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in the interest of avoiding further delay,
and because the Court finds that the decisional process would not be significantly aided by
oral argument, the Court will decide the pending motion on the record and without oral

1

The defendants here initially included Bonner County, Bonner County Sheriff’s Department, Bonner
County Undersheriff Ror Lakwold, Shawn Deem, Mike Gagnon, Gary Madden, Phil Stella, and Ted
Swanstrom. In the wake of the Court’s recent Memorandum and Decision Order (Dkt. 93), Deem and
Swanstrom are the only remaining defendants. The Court refers to them jointly as “the Defendants.”

MEMORANDUM DECISION AND ORDER – 1

argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). For the reasons outlined below, the Motion
is DENIED.
II. BACKGROUND
The Court’s previous Memorandum and Decision Order (the “Order”) (Dkt. 93)
thoroughly reviewed the factual background of this case. That factual background is
hereby incorporated by reference. In the Order, the Court denied Johnson’s renewed
request for sanctions and denied Defendants’ renewed Motion to Strike. Id. It also ruled
on the Parties’ cross-motions for summary judgment, denying Johnson’s motion in full
and granting Defendants’ motion on all counts except as to Johnson’s claim against
Swanstrom and Deem—the two snipers—whom Johnson claims used excessive force in
serving their arrest warrant on Craig. Id. Defendants now ask the Court to reconsider the
Order, arguing that because it is clearly established that Deem, and not Swanstrom, shot
Craig, Swanstrom should be dismissed as a party. Dkt. 96, at 2.
III. LEGAL STANDARD
A. Motions for Reconsideration
Rule 59(e) “permits a district court to reconsider and amend a previous order,” but
the Ninth Circuit instructs that the Rule offers an “extraordinary remedy, to be used
sparingly in the interests of finality and conservation of judicial resources.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting 12 James Wm. Moore et al., Moore’s
Federal Practice § 59.30[4] (3d ed. 2000)). Under Rule 59(e) “there are four limited
grounds upon which” a district court may grant a motion for reconsideration: “(1) the
motion is necessary to correct manifest errors of fact or law; (2) the moving party presents
MEMORANDUM DECISION AND ORDER – 2

newly discovered evidence; (3) reconsideration is necessary to prevent manifest injustice;
or (4) there is an intervening change in the law.” Coffelt v. Yordy, 2016 WL 9724059, at
*1 (D. Idaho Nov. 30, 2016) (citing Turner v. Burlington N. Sante Fe R.R. Co., 338 F.3d
1058, 1063 (9th Cir. 2003)). “[M]otions for reconsideration are generally disfavored, and
may not be used to present new arguments or evidence that could have been raised earlier.”
America Rivers v. NOAA Fisheries, 2006 WL 1983178, at *2 (D. Or. 2006) (citing Fuller,
950 F.2d 1437, 1442 (9th Cir. 1991)).
Defendants state that both Fed. R. Civ. P. 59(e) and Fed. R. Civ. P. 60(b) provide
grounds for a Motion for Reconsideration. Dkt. 96, at 3. However, Defendants’ arguments
are based entirely on claims of clear error and manifest injustice. Id. at 1. Because these
two factors are considered in a Rule 59(e) analysis and not in a Rule 60(b) analysis, the
Court understands Defendants’ Motion to arise exclusively out of Rule 59(e).
B. Liability Under § 1983
“A police officer need not have been the sole party responsible for a constitutional
violation before liability may attach” under section 1983. Nicholson v. City of Los Angeles,
935 F.3d 685, 691 (9th Cir. 2019). Instead, officer liability is based on whether an officer
was an integral participant or was personally involved in the alleged violation. See, e.g.,
Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002). On the other hand, officers who were
“merely present at the time of an unlawful search” will not be held liable. Bryan v. Las
Vegas Metropolitan Police Dept., 349 Fed. Appx. 132, 133 (9th Cir. 2009).
In Boyd v. Benton County, the Ninth Circuit clarified that 1983 liability “does not
require that each officer’s actions themselves rise to the level of a constitutional violation.”
MEMORANDUM DECISION AND ORDER – 3

374 F.3d 773, 780 (9th Cir. 2004). Instead, a reviewing court should look to whether the
officer had a fundamental role in the conduct that allegedly caused the violation. Nicholson,
935 F.3d at 691. “Thus, under [Ninth Circuit] case law, an officer could be held liable
where [he or she] is just one participant in a sequence of events that gives rise to a
constitutional violation,” so long as his or her participation is fundamental, integral, or
personal. Id. at 692.
IV. ANALYSIS
As an initial matter, the Court notes this is the first time Defendants have argued for
Swanstrom’s dismissal on the grounds he was insufficiently involved in the shooting of
Craig2 to be found liable under section 1983. No new evidence has been introduced since the
issuance of the Order. Accordingly, this argument could have been raised with Defendants’
Motion for Summary Judgment. It was not. It is, therefore, inappropriate for Defendants to
raise it now, after the motion has been decided. See, e.g. Carroll, 342 F.3d at 945; Fuller,
950 F.2d at 1442.
Even on its merits, Defendants’ argument does not warrant a reconsideration of the
Order. Because both sides acknowledge that Swanstrom did not fire the bullets that
ultimately killed Craig, Defendants assert the Court’s failure to dismiss Swanstrom
constitutes clear error and creates manifest injustice. Dkt. 96, at 3. It does not.
The Ninth Circuit has made clear that an officer who was an integral participant, or
who was personally involved, in an encounter that ultimately resulted in the violation of

2

As the Court has done previously, see Dkt. 93, at 2 n.2, it will refer to Plaintiff Robin Johnson as “Johnson”
and Craig Johnson as “Craig” to avoid confusion.

MEMORANDUM DECISION AND ORDER – 4

constitutional rights may face liability under section 1983. See, e.g., Jones, 297 F.3d at 936.
Here, it is undisputed that: (1) Swanstrom stood up from his initial strategic position and
yelled at Craig multiple times to “drop [his] gun;” (2) Deem could not see Craig until
Swanstrom stood up and tried to engage Craig; (3) Swanstrom raised his own gun in
preparation to shoot Craig; (4) “[Swanstrom’s] finger was almost to the trigger when he
heard two shots and [Craig] fell to the ground; and (5) Swanstrom subsequently saw Craig
moving and told him not to move. Dkt. 67, at 7–8.
The Ninth Circuit has “yet to define the minimum level of involvement for liability
under the integral-participant doctrine.” Reynaga Hernandez v. Skinner, 969 F.3d 930 (9th
Cir. 2020). However, upon a review of Ninth Circuit case law, the Court is confident that
Swanstrom’s involvement in the altercation that resulted in Craig’s death clears the
minimum threshold—wherever that threshold may be. For example, in Blankenhorn v. City
of Orange, after finding that the use of hobble restrains on a suspect constituted excessive
force, the Ninth Circuit held that an officer who handcuffed a suspect and allowed another
officer to place hobble restraints on the suspect was integrally involved in the violation of
the suspect’s rights. 485 F.3d 463 (9th Cir. 2007).
Likewise, in Boyd, armed officers who stood in a doorway while another officer
conducted an unlawful search were found to be integral participants in the search. 374 F.3d
at 773. On the other hand, in Hopkins v. Bonvicino, the Ninth Circuit found that an officer
who stood in the yard and interviewed witnesses while other officers were conducting an
unlawful search was not an integral participant in any constitutional violation later alleged.
573 F.3d 752, 770 (9th Cir. 2009).
MEMORANDUM DECISION AND ORDER – 5

While none of these cases maps perfectly on to the facts of the present case, it
would certainly not constitute clear error for the Court to conclude that Swanstrom’s
actions were more similar to those of the officers in Boyd and Blankenhorn than they
were to the actions of the officer in Hopkins. Therefore, the Court declines to grant
Defendants’ Motion for Reconsideration.
V. CONCLUSION
Because Defendants raised for the first time in this Motion an argument that was
previously available to them, and because it is not clear error for the Court to find that
Swanstrom was an integral participant in the shooting of Craig and could be held liable,3
the Court DENIES Defendants’ Motion for Reconsideration.
VI. ORDER
IT IS HEREBY ORDERED:
1. Defendants’ Motion for Reconsideration (Dkt. 96) is DENIED.

DATED: October 11, 2023
_________________________
David C. Nye
Chief U.S. District Court Judge

3

The Court’s denial of Defendants’ Motion for Summary Judgment does not mean Swanstrom (or Deem)
are liable or that damages are appropriate. Those questions are left for trial. The Court simply found there
were disputed facts precluding summary judgment.

MEMORANDUM DECISION AND ORDER – 6