Tanner v. Cowell et al

Filing 103

MEMORANDUM DECISION AND ORDER. Defendant Cowells Motion for Summary Judgment (Dkt. 72 ) is GRANTED. IDFG Defendants Motion for Summary Judgment (Dkt. 73 ) is GRANTED. This case is dismissed in its entirety and closed. 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 (alw)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
STEVE TANNER,
Case No. 2:18-cv-00456-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
IDAHO DEPARTMENT OF FISH AND
GAME DIRECTOR ED SCHRIEVER;
VIRGIL MOORE; LUCAS SWANSON;
JOSH STANLEY; BRIAN JOHNSON;
and WILLIE COWELL,
Defendants.

I. INTRODUCTION
Pending before the Court is Defendant Willie Cowell’s Motion for Summary
Judgment (Dkt. 72) and Defendants Idaho Department of Fish and Game Director Ed
Schriever, Virgil Moore, Lucas Swanson, Josh Stanley, and Brian Johnson’s (“IDFG
Defendants”) Motion for Summary Judgment (Dkt. 73). On July 15, 2020, the Court held
oral argument and took the motions under advisement. Upon review, and for the reasons
set forth below, the Court GRANTS both Motions.
II. BACKGROUND
The Idaho Department of Fish & Game (“IDFG”), a government agency, utilizes
wildlife check stations to manage Idaho’s wildlife resources. At these check stations, IDFG
officers stop all vehicles passing through and inquire if the driver and/or passengers have
been hunting, fishing, or trapping. If the answer is no, the officers ask no further questions

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and the vehicle proceeds on its way. These stops rarely last longer than a few seconds. If
the answer is yes, the officers spend a few minutes collecting data, receiving public input,
and, if necessary, enforcing state laws that pertain to the management and conservation of
wildlife resources.
During the daylight hours on November 18, 2017, Plaintiff Steve Tanner was
working at his residence when he saw multiple IDFG vehicles drive north past his house.
Tanner drove north, up Meadow Creek Road, and saw that IDFG had set up the Meadow
Creek game check station. Dkt. 72-2, ¶ 4. Tanner parked his vehicle north of the check
station and hiked the area trying to “investigate” and take photographs of the check station.
Dkt. 72-2, ¶ 5. Tanner returned to his vehicle and headed home. It was now early evening
and Tanner was travelling southbound on Meadow Creek Road in Boundary County,
Idaho. At that time, Defendants Swanson, Stanley, and Johnson—employees of IDFG—
were operating a wildlife check station on Meadow Creek Road in the southbound lane. As
Tanner approached the station, he bypassed it without stopping.
Swanson and Stanley pursued Tanner in their patrol vehicle for several miles with
their overhead lights activated. Tanner eventually pulled into a gas station. Subsequently,
Swanson placed Tanner in handcuffs and informed him that he was being placed under
arrest. Swanson then turned Tanner over to Defendant Cowell of the Bonner’s Ferry Police
Department. Cowell placed Tanner in a different set of handcuffs, frisked him, and loaded
him into his patrol vehicle. Swanson ultimately cited Tanner for failing to stop at the check
station and for eluding a law enforcement officer. Charges were brought against Tanner in
Idaho First Judicial Court, Magistrate Division, CR-2017-0001192, and were subsequently
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dismissed. No other charges were brought against Tanner. Specifically, Cowell did not
charge Tanner with any crime.
On September 24, 2018, Tanner filed a civil suit in Idaho state court. Tanner alleged
that the IDFG violated his constitutional rights when its police officers pulled him over and
arrested him after he failed to stop at a wildlife check station. On October 17, 2018,
Defendant Cowell removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1441(b),
and 1446(b). On November 20, 2018, Tanner filed his Amended Complaint. Dkt. 4.
On December 27, 2019, Cowell and IDFG Defendants filed motions for summary
judgment. Dkts. 72, 73. The day before, Tanner filed a motion to stay proceedings pending
his appeal of this Court’s denial of Tanner’s Motion for a Preliminary Injunction. Dkt. 71.
Before the Court could rule on Tanner’s Motion to Stay Proceedings, the Ninth Circuit
denied Tanner’s interlocutory appeal, Tanner v. Cowell, 792 F. App’x 545, 545–46 (9th
Cir. 2020), and the Court held Tanner’s Motion to Stay moot, (Dkt. 81). The Court then
ordered that summary judgment briefings resume. Dkt. 81.
On March 11, 2020, Tanner filed his opposition to both Cowell’s and IDFG
Defendants’ motions for summary judgment (Dkt. 85); IDFG Defendants filed their reply
on March 24, 2020 (Dkt. 88), as did Cowell (Dkt. 89).
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). This 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.”
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Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In considering
a motion for summary judgment, this 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, this 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
preclude summary judgment. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir.
2001).
IV. DISCUSSION
Tanner asserts four causes of action in his Amended Complaint. Dkt. 4. Tanner’s
first cause of action is a 42 U.S.C. § 1983 claim against Defendants Swanson, Stanley, and
Johnson for constitutional violations relating to his arrest after failing to stop at the IDFG
wildlife check station. Tanner’s second cause of action is a § 1983 claim against Defendant
Moore for establishing a policy that allows for the use of roadblocks for wildlife check
stations. Tanner’s third cause of action is a § 1983 claim against Defendant Cowell, also
relating to his arrest. Tanner’s fourth cause of action is for declaratory judgment and
injunctive relief; he seeks to enjoin Defendants from operating wildlife check roadblocks
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and to mandate that Defendants only stop fishermen, hunters, and trappers at wildlife check
stations, rather than the public at large.
All the causes of action concern, to at least some degree, whether IDFG’s wildlife
checkpoints violated the Fourth Amendment and/or Article 1 § 17 of the Idaho
Constitution. Much of the IDFG Defendants’ summary judgment arguments turn on
whether the use of check station roadblocks under Idaho Code § 36-1201 violates the
Fourth Amendment, the Idaho Constitution, or Idaho Code § 19-621. See generally Dkts.
72, 73. Thus, the Court will first evaluate whether the wildlife check stations violate federal
or state law before turning in detail to each of Tanner’s individual causes of actions.
A. Legality of IDFG Wildlife Checkpoints
1. Applicable State Law
First, the parties dispute which statute is applicable in reviewing the legality of
IDFG’s checkpoints. Tanner alleges that IDFG’s use of roadblocks at its wildlife
checkpoints violates state law. He contends that Idaho Code § 19-621 grants appropriate
executive branch officials the authority to establish roadblocks “only where it is reasonably
believed that persons have broken the law,” and roadblocks at routine wildlife checkpoint
violate this statute. Dkt. 85, at 18. The IDFG Defendants move to dismiss on the grounds
that that the wildlife checkpoints are “authorized by I.C. §§ 36-103(b), 36-1201(b), and
regulations established thereunder,” not § 19-621. Dkt. 73-1, at 6. The IDFG Defendants
assert that state courts have affirmed the legislature’s right to use routine check stations in
State v. Thurman, 996 P.2d 309, 314 (Idaho Ct. App. 1999), and State v. Medley, 898 P.2d
1093, 1097 (Idaho 1994).
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In Medley, the court determined the wildlife checkpoint stop at issue violated the
Fourth Amendment of the U.S. Constitution. Medley, 898 P.2d at 1099 (holding
unconstitutional a non-routine IDFG fish and game check station in which the IDFG officer
in charge of the station issued a “blanket invitation” to any additional law enforcement
agency that wished to participate so that violations of laws not pertaining to fish and game
(and in no way related to advancing the public’s interest in wildlife management) could be
detected). In its ruling, the Idaho Supreme Court noted, “[i]n State v. Henderson, 756 P.2d
1057 (Idaho 1988), we expressed no view as to whether fish and game roadblocks complied
with state constitutional requirements.” Medley, 898 P.2d at 1099. Thus, the Medley court
determined it, too, would express no view on whether the wildlife checkpoint stop
complied with state constitutional requirements, as it had already held it did not comply
with federal constitutional requirements. However, the Medley court did state that “the
legislature has provided statutory authority supporting the use of check stations maintained
by the Department for the purpose of checking fish and game licenses and lawful
possession of wildlife. I.C. § 36-1201” Id. at 1097. It cited to § 36-1201, not § 19-621, to
support its statement that IDGF was statutorily authorized to use wildlife check stations.
In Thurman, the Idaho Court of Appeals upheld the use of a wildlife checkpoint
station as constitutional under state and federal law. 996 P.2d 309. The Thurman court
began its analysis by definitively stating “[t]he Idaho legislature has provided statutory
authority to the Idaho Department of Fish and Game to conduct routine check stations. I.C.
§ 36–103(b); I.C. § 36–1201(b).” Thurman, 996 P.2d at 313. In that case, the IDFG check
station was set up “on a straight stretch of roadway” and the IDFG officer “parked his truck
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perpendicular to the roadway[.]” Id. at 314. While the Thurman court never used the term
“roadblock” in referring to the impromptu checkpoint, it positively cited to an Oregon case
upholding the use “where a fish and game roadblock was conducted to check hunters’
compliance with game laws.” Id. at 316 (citing State v. Tourtillott, 618 P.2d 423, 430 (Or.
1980)).
Idaho Code § 19-621 was enacted in 1957. S.L. 1957, ch. 31, § 2. Both Thurman
and Medley were issued decades after § 19-621’s enactment. Neither case offer any
indication that § 19-621 applies to IDFG check stations—roadblocks or otherwise. Rather,
they both assert that § 36-1201 is the controlling statutory authority governing the
implementation and use of such checkpoints. Therefore, the Court abides by Idaho
Supreme Court precedent and finds that wildlife checkpoints, whether “roadblocks” or
otherwise, maintained by IDFG are authorized by § 36-1201 for the purpose of checking
fish and game licenses and lawful possession of wildlife. Idaho Code § 19-621 is not
relevant in this case.
Finding § 36-1201 is the applicable law, the Court turns next to whether the way
IDFG operates the wildlife checkpoints under § 36-1201 is constitutional.
2. Constitutionality of the Wildlife Checkpoints Under the Fourth Amendment of
the U.S. Constitution
Idaho Code § 36-1201 states that “[n]o fisherman, hunter or trapper shall refuse or
fail to . . . [s]top and report at a wildlife check station encountered on his route of travel
when directed to do so by personnel on duty.” Tanner challenges the constitutionality of
IDFG’s use of check stations, arguing that utilizing roadblocks primarily for law

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enforcement purposes violates the Fourth Amendment and its state counterpart—Article I,
Section 17 of the Idaho Constitution. Tanner claims that the plain language of § 36-1201
does not give IDFG authority to stop citizens, such as himself, who are not fishermen,
hunters, or trappers. Dkt. 85. As such, he believes that an unreasonable seizure occurs
whenever IDFG stops one of these “non-sportsmen” citizens at wildlife check stations.
Dkt. 85, at 2.
“The Fourth Amendment applies to all seizures of the person, including seizures
that involve only a brief detention short of traditional arrest.” U.S. v. Brignoni-Ponce, 422
U.S. 873, 878 (1975). “[S]topping an automobile and detaining its occupants constitute a
‘seizure’ within the meaning of [the Fourth] Amendment[], even though the purpose of the
stop is limited and the resulting detention is quite brief.” Delaware v. Prouse, 440 U.S.
648, 653 (1979). Thus, checkpoint station stops, such as the wildlife check station here,
constitute a seizure under the Fourth Amendment.
Not every seizure, however, violates the Fourth Amendment—only unreasonable
seizures do. The Ninth Circuit applies the following two-step analysis to determine
reasonableness applicable to Fourth Amendment checkpoint cases:
First, the court must determine whether the primary purpose of the
checkpoint was to advance the general interest in crime control. If so, then
the stop is per se invalid under the Fourth Amendment.
If the checkpoint is not per se invalid as a crime control device, then
the court must judge the checkpoint’s reasonableness, hence, its
constitutionality, on the basis of the individual circumstances. This requires
consideration of the gravity of the public concerns served by the seizure, the
degree to which the seizure advances the public interest, and the severity of
the interference with individual liberty.

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U.S. v. Fraire, 575 F.3d 929, 932 (9th Cir. 2009) (internal quotation marks and citations
omitted).
a. Primary Purpose of Wildlife Check Stations
First, the Court must determine whether the IDFG wildlife check stations are general
crime control devices. According to a policy statement issued by the IDFG, the purpose of
wildlife check stations is “[t]o effectively manage the state’s wildlife resources” by making
field contacts with sportsmen, collecting biological and harvest data to support wildlife
management plans, receiving public input, and enforcing state laws and rules. Dkt. 30-2,
at 1.
Tanner argues that the primary purpose of wildlife check stations “is
indistinguishable from the general interest in crime control . . . .” Dkt. 85, at 9. To support
his position, Tanner cites Indianapolis v. Edmond, 531 U.S. 32 (2000), in which the
Supreme Court held that the narcotics checkpoints at issue were per se unconstitutional
because the checkpoints’ primary purpose was crime control. “We cannot sanction stops
justified only by the generalized and ever-present possibility that interrogation and
inspection may reveal that any given motorist has committed some crime.” Edmond, 531
U.S. at 44 (emphasis added); see also Henderson, 756 P.2d, at 1063–64 (stating that absent
individualized suspicion of wrongdoing or prior legislative or judicial approval to establish
such roadblocks, “roadblocks established to apprehend drunk drivers cannot withstand
constitutional scrutiny”).
Tanner asserts that because (1) the wildlife check station on Meadow Creek Road

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was staffed by IDFG officers and not biologists;1 (Dkt. 85) (2) the officers detected a hunter
who killed a deer without the proper tag (Dkt. 31-2, ¶ 8); (3) Tanner was arrested for failing
to stop at the checkpoint, investigated for a DUI, and subsequently arrested for a DUI and
obstructing an officer in the line of duty (Dkt. 85); and (4) all of these “ordinary law
enforcement violations spring from the IDFGs [sic] enforcement game check stations
designed primarily for the interdiction of illegal hunting,” its primary purpose is for general
law enforcement purposes (Dkt. 85, at 10–11).
To the contrary, there is compelling authority that the primary purpose for wildlife
check stations is not for general law enforcement. In Fraire, the Ninth Circuit held that a
wildlife checkpoint stationed at the entrance to a national park was not per se invalid
because its primary goal was prevention of illegal hunting activity, not conducting arrests,
and that there was a “close connection between the checkpoint and the harm it was seeking
to prevent.” Fraire, 575 F.3d at 933. Though wildlife check stations may certainly lead to
the enforcement of criminal statutes, “the use of law enforcement techniques does not
automatically transform [them] into a crime control device for Fourth Amendment
purposes.” Id. Idaho courts have also held that routine IDFG wildlife check stations
primarily serve compelling state interests other than crime control. See Medley, 898 P.2d
at 1097 (holding the state of Idaho “has a compelling interest in the management and

1

Tanner claims IDFG operates two types of check stations: management check stations staffed by
biologists, and impromptu enforcement check stations staffed by conservation officers. Dkt. 85. The former,
he argues, primarily gather biological data to help manage wildlife, while the latter primarily enforces Idaho
wildlife laws. Id.

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conservation of its natural resources, including wildlife”); Thurman, 996 P.2d at 314
(stating that wildlife is “a resource to be preserved, protected, perpetuated and managed . .
. ”).
Like the wildlife checkpoints in Fraire that were closely connected to the goal of
preventing illegal hunting, the IDFG check stations here are closely connected to the goal
of effectively managing the state’s wildlife resources. Even if biologists do not collect
biological data at these check stations, the check stations still advance the IDFG’s primary
purpose to “[m]ake field contact with anglers, hunters, and trappers to collect . . . harvest
data to support evaluation and development of wildlife management plans and programs.”
Dkt. 30-2, at 1. The fact that officials may use law enforcement techniques at these check
stations does not transform the check station’s primary goal of effective wildlife
management into crime control. Unlike the narcotics checkpoints in Edmond (or the drunk
driving checkpoints in Henderson) that were justified only by the possibility that an
inspection might reveal any given motorist has committed a crime, the IDFG wildlife check
stations’ primary justification is narrowly focused to advance the public’s interest in
wildlife preservation and management and not to advance general law enforcement. Thus,
the Court finds that the IDFG wildlife check stations are not general crime control devices
and that Idaho Code § 36-1201 is not per se invalid.
b. Reasonableness of Utilizing Wildlife Check Stations to Manage the
State’s Wildlife Resources
Next, the Court must determine the check station’s “reasonableness, hence, its
constitutionality, on the basis of the individual circumstances.” Fraire, 575 F.3d at 932

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(citation omitted). This considers “the gravity of the public concerns served by the seizure,
the degree to which the seizure advances the public interest, and the severity of the
interference with individual liberty.” Id. (quoting Illinois v. Lidster, 540 U.S. 419, 427
(2004)).
The first consideration is the gravity of public concerns served by wildlife check
stations. The Court finds that Idaho has a compelling interest in the management and
conservation of its natural resources, including wildlife. This interest is not only codified
in Idaho Code § 36-103, but has also been acknowledged by the Idaho Supreme Court. See
Medley, 898 P.2d at 1097 (“[F]ish and game violations are matters of grave public concern
which justify minimal intrusion into the public’s right of privacy.”).
The second consideration is the degree to which wildlife check stations advance the
public interest. The Idaho Supreme Court has stated, “Routine fish and game check stations
are indeed an effective method for advancing [public] interest . . . . Requiring conservation
officers, under these circumstances, to have probable cause before stopping suspected
violators would be an enormous burden.” Medley, 898 P.2d at 1097–98.
The Court agrees with both this conclusion and its reasoning. IDFG has operated a
check station at the same place on Meadow Creek Road on multiple occasions and when
hunters were often present. Dkt. 72-2, ¶ 1; Dkt. 73-3, ¶¶ 1, 4. These routine check stations
are designed to quickly and efficiently gather the necessary information to assist in
maintaining, protecting, and conserving Idaho’s wildlife. Dkt. 72, ¶ 3; Dkt. 73-3, ¶¶ 9–10.
The Court finds that the IDFG wildlife check stations advance the public interest to a

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significant degree.2
The third and final consideration is the degree to which the severity of the wildlife
check station interferes with individual liberty. This factor is broken into two subparts: an
objective part and a subjective part. Fraire, 575 F.3d at 934. The objective part focuses on
the “duration of the seizure and the intensity of the investigation.” Id. Here, the duration of
the stops at IDFG check stations vary from a few seconds if the passengers have not
engaged in hunting, fishing, or trapping (Dkt. 72-2, ¶ 3; Dkt. 73-3, ¶ 8), to a few minutes
if the passengers have engaged in such activities (Dkt. 73-3, ¶ 9).
Tanner does not dispute the duration of the stops were reasonable. Instead, he argues
that it is an invasion of privacy to stop non-sportsmen in order to “question hunters, check
their licenses, inquire about game taken, inspect game in hunters’ possession, and collect
biological data.” Dkt. 85, at 22. However, the IDFG check stations do not subject nonsportsmen to license checks, game inspections, or collecting biological data. The only
inquiry that occurs for non-sportsmen is whether the passengers have been hunting or
fishing. If the answer is no, “no further questions would be asked and the vehicle would be
sent on its way . . . .” Dkt. 73-3, ¶ 8. Without such questioning, it is unclear how IDFG
officials would be able to determine who are sportsmen subject to Idaho Code § 36-1201

2

Tanner does not dispute the effectiveness of the IDFG check stations at maintaining and protecting Idaho’s
wildlife but argues that the check stations “do not educate or take public input” and that they “do not
[disseminate] educational material” as was done at the wildlife checkpoint in Fraire. Dkt. 85, at 12. Even
if educating the public and receiving public input were required elements for advancing public interest, the
Court disagrees with Tanner’s assertion. At a minimum, these brief stops at IDFG check stations educate
both sportsmen and non-sportsmen about Idaho’s values and efforts to maintain and preserve wildlife in
the state.

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and who are not; IDFG distinguishes between the two categories quickly through a brief,
concise inquiry.
In this case, there technically was no seizure because Tanner bypassed the wildlife
check station.3 Had he stopped, the duration of the seizure likely would have been only a
few seconds because Tanner is not a hunter, fisher, or trapper, and was not engaged in such
activities that day. Tanner would only have needed to answer the officer’s first question in
the negative and he would have been sent on his way. Tanner has submitted no evidence
that non-sportsmen are delayed more than a few seconds to confirm they are not a “hunter,
fisher, or trapper” subject to the additional search and seizure procedures authorized under
Idaho Code § 36-1201. Therefore, the Court finds that the duration of the seizure and
intensity of the IDFG wildlife checkpoint investigation of non-sportsmen is minimal and
reasonable.
The second part of this factor—the subjective part—focuses on “the fear and
surprise engendered in law-abiding motorists by the nature of the stop.” Fraire, 575 F.3d
at 934. Tanner asserts that the manner in which the wildlife check station was operated was
unsafe, being located on a sharp curve, after sunset,4 and operated by officers who were

3

Tanner asserts in his response to the Motions for Summary Judgment that he had been stopped at similar
IDFG checkpoints on November 20, 2010, and November 8, 2014. Dkt. 85, at 2–3.

4

According to Tanner’s Second Amended Complaint, sunset occurred at 4:01 PM on the day in question,
and that Tanner drove around the IDFG check station at approximately 4:20 PM. Dkt. 66, ¶¶ 14–15.

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not wearing proper reflective safety apparel.5 Dkt. 85. According to Tanner:
[Tanner], driving south, approached the [check station] area, passing two
signs warning of a check station ahead. The signage did not warn of a stop
ahead, nor did the signage inform those persons who were required to stop at
the check station, as required by [Idaho Code] 19-622, and 36-1201. (Photo
Exhibit CC)6 [Tanner] continued slowing as he rounded the first corner when
a flashing blue light, located about 30 feet north of the roadway, was
activated for about 2-3 seconds. The curved section of the road precluded the
oncoming traffic from seeing the check station roadblock until they rounded
the corner about 300 feet away. [Tanner] continued to slow his vehicle, and
when he was about 150 feet from the sharp corner, the flashing blue light was
turned off. [Tanner] proceeded, at a safe speed . . . , around a stopped vehicle
in his lane and continued south. There was no lighting to light the area, no
one was directing traffic at this [check station], and no sign directed [Tanner]
to stop.
Dkt. 85, at 4.
As a general matter, “[t]he subjective intrusion from a checkpoint stop is
significantly less than other types of seizures, such as random stops.” Fraire, 575 F.3d at
934. In Fraire, the court held the subjective intrusion of the national park checkpoint was
minimal because “[t]he checkpoint was accompanied by signs announcing it, the rangers
operating it were uniformed, and all approaching vehicles were stopped.” Id. Similarly, in
Thurman, the Idaho Court of Appeals found that although some of the wildlife checkpoint
stops occurred in the dark, the reflective warning signs and blue flashing light alerted

5

Based on these assertions, it appears Tanner is making a separate “as-applied” challenge to § 36-1201 due
to the unsafe manner in which this particular wildlife check station was operated. Accordingly, the Court
does not consider these assertions as a separate constitutional attack, but only as evidence of the severity of
this wildlife check station’s subjective intrusion.

6

Exhibit CC as provided by Tanner is an undated photograph of an IDFG sign that reads, “STOP IDAHO
DEPT OF FISH & GAME CHECK STATION.” Dkt. 85-10, at 2. No affidavit accompanies the photograph
attesting to where or when the photograph of the sign was taken or who took it.

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travelers to the check station’s presence, and that “the subjective potential for causing fear
at checkpoints was low because motorists can see visible signs of authority, including
uniformed officers.” Thurman, 996 P.2d at 315 (emphasis added) (citing Mich. Dep’t of
State Police v. Sitz, 496 U.S. 444, 452–53 (1990).
In the present case, Tanner stated in his affidavit that while driving south on
Meadow Creek Road, he “passed two ground-mounted signs stating, ‘SLOW, IDAHO
DEPT OF FISH & GAME, CHECK STATION.’” Dkt. 85-3, (“Plaintiff’s Affidavit”), at
9. As he neared the check station, Tanner saw “a flashing blue light . . . activate[] for about
two to three seconds.” Plaintiff’s Affidavit, at 10. In response to these signs and the flashing
blue light, “[Tanner] continued to slow his vehicle, and when about 150 feet from a vehicle
stopped in the southbound lane, the flashing blue light was turned off.” Plaintiff’s
Affidavit, at 10.
Tanner states that after seeing the warning and flashing blue lights, he proceeded
“at a safe speed of about 15 miles per hour.” Plaintiff’s Affidavit, at 10. Upon approaching
the check station, Tanner testified there was “a vehicle blocking the southbound lane,” and
he drove around it, into the northbound lane, continuing south as he bypassed the check
station. Dkt. 73-2, Tanner Depo., at 25–26; see also Plaintiff’s Affidavit, at 10 (“Tanner
pulled to the left of a vehicle stopped in the southbound lane and proceeded around the
sharp curve, passing the [check station] area at a safe speed of about 15 miles per hour.”).
As he drove by the check station, Tanner stated that “it was obvious to [him] that it was an
Idaho Fish & Game check station.” Dkt. 85-7, Tanner Depo., at 45. Additionally, he asserts
that “[t]he curved section of road precluded the oncoming traffic from seeing the check
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station roadblock until they rounded the corner about 300 feet away.” Dkt. 85, at 4
Like the wildlife checkpoint in Fraire, the IDFG check station was accompanied by
multiple reflective signs announcing the check station ahead, the officers operating it were
uniformed, and another vehicle that had approached the check station was stopped.7 The
question, then, is whether the fact that the check station was operated after sunset, in the
dark, without proper lighting, and by officers without reflective attire is material such that
a reasonable juror could return a verdict in Tanner’s favor.
Like the court in Thurman, this Court finds that although the check station was
operated after sunset, in the dark, without lighting, and by officers without reflective attire,
these are not facts that are material to the outcome of this case. The visible signs of
authority that Tanner saw within the IDFG check station area—including the reflective
warning signs, a blue flashing light, and uniformed officers—decreases the subjective
potential for causing fear in unsuspecting motorists because it would also be “obvious” to
them, as it was to Tanner (Dkt. 85-7, Tanner Depo., at 45), that it was an IDFG check
station.
The Court finds that no reasonable juror, considering these facts, could conclude

7

Tanner attempts to distinguish this case by emphasizing that the checkpoint in Fraire was located at a
national park entrance where visitors would expect to briefly stop, while the IDFG check station was located
along a curved road. However, the Fraire court noted that the checkpoint’s location at the national park
entrance was “not a dispositive point.” Fraire, 575 F.3d at 934. Likewise, this Court notes, as a nondispositive factor, that the IDFG check station was located along a road frequented by hunters near potential
hunting areas. See Dkt. 73-3, ¶ 4. Non-sportsman travelers on Meadow Creek Road, although perhaps not
expecting to be stopped at that very place, would not be afraid or surprised by the nature of the stop because,
as Tanner stated, the stops occurred “at a time and location when hunters would be returning from their
hunts.” Dkt. 85, at 13.

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that the location of this check station would cause fear and surprise in law-abiding
motorists sufficient to interfere with individual liberty to any significant degree. The
location of the check station was announced by two reflective signs with the words,
“SLOW, IDAHO DEPT OF FISH & GAME, CHECK STATION,” and a blue flashing
light was visible to southbound traffic from over 150 feet from the check station. Oncoming
traffic could also see the check station from 300 feet away, giving plenty of time for drivers
to react in a safe manner to the unexpected check station, even though it was operated along
a “sharp” curve. Tanner himself felt the section of road where the check station was located
was safe enough for him to drive slowly around the stopped vehicle in the oncoming
traffic’s lane. Although Tanner could not see a visible “stop” sign as he drove by the check
station, the multiple “slow” signs, blue flashing lights, uniformed officers, and stopped
vehicles in his lane would not reasonably cause anxiety or alarm in unsuspecting motorists
to any significant degree. Thus, the Court finds that the subjective intrusion of the IDFG
wildlife check station in this case was minimal.
c. Conclusion
The Court finds that no reasonable juror, drawing all inferences in favor of Tanner,
could return a verdict in his favor. In this case, the public concern for wildlife management
was high, the check station significantly advanced this public interest, and the objective
and subjective interference with individual liberty was minimal and reasonable. It follows
that the check station was reasonable under the Fourth Amendment. Even if the check
station were operated under the conditions Tanner described, he has not met his burden to
respond with specific facts, supported by evidence, with reasonable particularity, to
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establish a dispute of fact exists that precludes the Court from issuing summary judgment
on this claim.
Tanner has not offered any evidence that would allow a reasonable juror, drawing
all inferences in Tanner’s favor, to conclude that IDFG wildlife check stations violate the
Fourth Amendment.
3. Constitutionality of the Wildlife Checkpoints Under Article I, Section 17 of the
Idaho Constitution
“Article I, § 17 of the Idaho Constitution provides no greater protection in these
situations than does the Fourth Amendment to the United States Constitution.” State v.
Thurman, 996 P.2d 309, 315 (Idaho Ct. App. 1999) (declining to hold that Idaho’s
Constitution provides greater protection to the hunting public in wildlife checkpoint stops
than does the Fourth Amendment of the U.S. Constitution).
As routine IDFG wildlife checkpoint stops such as the one before the Court are
constitutional under the Fourth Amendment of the U.S. Constitution, they are likewise
constitutional under Article I, section 17 of the Idaho Constitution.
B. Tanner’s First Cause of Action
Tanner’s first cause of action against Defendants Swanson, Stanley, and Johnson is
brought pursuant to 42 U.S.C. § 1983. In general, “[t]o establish § 1983 liability, a plaintiff
must show both: (1) deprivation of a right secured by the Constitution and laws of the
United States; and (2) that the deprivation was committed by a person acting under color
of state law.” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)
(citing Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). “Dismissal of a § 1983

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claim is proper if the complaint is devoid of factual allegations that give rise to a plausible
inference of either element.” Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015).
Courts treat the “under color of law” requirement of § 1983 cases as identical to the
“state action” requirement of the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S.
830, 838 (1982). No party disputes the individual Defendants in this case were acting under
color of state law. Thus, the only question is whether they deprived Tanner of his
Constitutional rights.
Tanner essentially alleges two constitutional violations. He asserts that his arrest by
Defendants Swanson and Stanley for failing to stop at the checkpoint was unconstitutional
as they lacked probable cause. He also contends that Defendants Swanson, Stanley, and
Johnson violated his First Amendment rights by specifically targeting his car in retaliation
to his complaints to state representatives (as well as other public officials and entities)
about the IDFG checkpoints. He alleges Defendants Swanson, Stanley, and Johnson knew
that Tanner was not a hunter, fisherman, or trapper, and the stop was pretextual.
In his Complaint, it appears that Tanner also takes issue with the officers’ failure to
follow procedure during the night of the incident. It is unclear if Tanner is alleging that
Defendants Swanson and Stanley violated his Fifth Amendment rights by failing to read
him his Miranda rights upon arrest and/or if he is alleging Defendants Swanson, Stanley,
and Johnson’s operation of the wildlife checkpoint station at Meadow Creek Road violated
state law and federal regulation. Reading his pro se Complaint liberally, the Court will
construe his complaint as alleging two additional constitutional claims against Defendants.

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1. Fourth Amendment: False Arrest
Tanner asserts Defendants Swanson, Stanley, and Johnson are liable for false arrest.
“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 & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause exists when
there is a fair probability or substantial chance of criminal activity.” United States v.
Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004) (quoting United States v. Bishop, 264
F.3d 919, 924 (9th Cir. 2001)) (internal quotation marks omitted). “It is well-settled that
‘the determination of probable cause is based upon the totality of the circumstances known
to the officers at the time of the search.’” Id. (quoting Bishop, 264 F.3d at 924).
To maintain an action for false arrest against Defendants Swanson, Stanley, and
Johnson, Tanner must plead facts that would show they ordered or otherwise participated
in the arrest and the arrest was without probable cause. There is no relevant dispute of fact
here; Tanner does not deny that he failed to stop at the wildlife check station. Defendants
Swanson, Stanley, and Johnson knew, at the time they pursued and arrested him, that
Tanner had failed to stop at the station as required.
In the District Court of the First Judicial District of the State of Idaho, in and for the
County of Boundary Magistrate Division, CR-2017-1192, the magistrate judge found the
officers lacked probable cause to stop Tanner. Dkt 85-14, Transcript of January 11, 2018
Pretrial Conference, at 48. In so ruling, the magistrate judge reviewed the plain text of
Idaho Code § 36–1201. Given that the statute only stated that fishermen, hunters, and
trappers may be stopped at wildlife checkpoints, the magistrate judge held the officers
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exceeded their statutory authority in attempting to stop everyone, even for a few seconds.
Dkt 85-14, Transcript of January 11, 2018 Pretrial Conference, at 45. In response to the
prosecutor’s point that interpretation of the statute would essentially allow all fishermen,
hunters, and trappers to drive past wildlife checkpoint stations unless they had a deer
hanging up in plain sight, the magistrate judge said the officers should “profile[ motorists]
and it happens all the time.” Id. at 47.8
Regardless of what the magistrate judge held in the criminal case, this Court has the
responsibility to independently review whether there was probable cause in deciding
Tanner’s civil claim that the officers violated his constitutional rights. Setting aside the fact
that a pickup truck bypassing the check station when all other vehicles stop might be
sufficient to raise reasonable suspicion, the magistrate judge’s interpretation is not
consistent with Idaho Court of Appeals’ interpretation of § 36–1201(b) in Thurman. In
Thurman, the court acknowledged that IDFG’s “impromptu check station guidelines
additionally provide that ‘no check stations will be established and operated in a manner

8

As a general note, the Ninth Circuit rejects broad profiling as a way of establishing reasonable suspicion.
United States v. Wrobel, 295 F. Supp. 3d 1127, 1136 (D. Idaho 2018) (“The Ninth Circuit explicitly rejected
officers’ reliance on such broad profiles to create reasonable suspicion, because they sweep in innocents
along with criminals, and lack any ‘particular, individualized, and objectively observable factors which
indicate that [a] person is engaged in criminal activity.’”) (quoting United States v. Rodriguez, 976 F.2d
592, 596 (9th Cir. 1992) (rejecting “profile[s] of specific behavior very likely to sweep many ordinary
citizens into a generality of suspicious appearance merely on a hunch.”); see also Sialoi v. City of San
Diego, 823 F.3d 1223, 1235 (9th Cir. 2016) (“[R]easonable suspicion may not be ‘based on broad profiles
which cast suspicion on entire categories of people without any individualized suspicion of the particular
person to be stopped.’”) (quoting United States v. Sigmond–Ballesteros, 285 F.3d 1117, 1121 (9th Cir.
2001) (alterations in original).

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that will detain non-hunters or non-fishermen unnecessarily.’ Generally, anything other
than quickly determining whether the vehicle occupants have been hunting or fishing could
be considered unnecessary delay.” 996 P.2d at 314 (emphasis added). After acknowledging
those guidelines, the Thurman court went on to hold that when the officer “quickly
determine[d] if vehicle occupants had been fishing or hunting. . . . [he] acted reasonably
pursuant to statutory authority and in substantial conformance with IDFG policy
guidelines.” Id. (emphasis added). Thus, the Court respectfully disagrees with the
magistrate judge’s interpretation of § 36-1201; the officers had the statutory authority
under § 36-1201 to stop all vehicles in order to quickly determine if they had been fishing
or hunting, though it could not unnecessarily delay non-sportsmen.
The Court finds Defendants Swanson, Stanley, and Johnson had probable cause,
based on the totality of the circumstances, to believe Tanner may have violated § 36-1201.
The Court dismisses Tanner’s claim for unlawful arrest under § 1983 as his seizure was
not a result of a violation of the Fourth Amendment.
2. First Amendment Retaliation
Tanner alleges he had previously complained about the constitutionality of the
IDFG fish and game checkpoints to his representatives; that Defendants Swanson, Stanley,
and Johnson knew that he had complained; and that said Defendants pursued him for his
failure to stop at the IDFG checkpoint in order to retaliate against his prior complaints. In
essence, Tanner alleges Defendants Cowell, Stanley, and Swanson arrested him for
exercising his First Amendment rights.
“Official reprisal for protected speech ‘offends the Constitution [because] it
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threatens to inhibit exercise of the protected right[’;] . . . the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions, including
criminal prosecutions, for speaking out.” Lacey v. Maricopa Cty., 693 F.3d 896, 916–19
(9th Cir. 2012) (alterations in original) (quoting Hartman v. Moore, 547 U.S. 250, 256
(2006)).
In Nieves v. Bartlett, the Supreme Court held that a plaintiff pursuing a First
Amendment retaliatory arrest claim must generally plead and prove the absence of
probable cause for the arrest. –– U.S. ––, 139 S. Ct. 1715 (2019) (abrogating Ford v.
Yakima, 706 F.3d 1188 (9th Cir. 2013) (per curiam)). The Nieves Court noted, however,
“[a]lthough probable cause should generally defeat a retaliatory arrest claim, a narrow
qualification is warranted for circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do so.” Id. at 1727. Thus, “the noprobable-cause requirement should not apply when a plaintiff presents objective evidence
that he was arrested when otherwise similarly situated individuals not engaged in the same
sort of protected speech had not been.” Id.
During oral argument, Tanner stated he had no record of IDFG letting other people
bypass the check station without stopping them; nor did he believe that such an event had
ever occurred. He does not know of any other individual that went past the wildlife
checkpoint station without stopping. Thus, Nieves’s no-probable-cause requirement
applies. Tanner has not presented objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech had not
been. In other words, Tanner has not presented sufficient facts that individuals who had
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not critiqued IDFG for their wildlife checkpoint stations were allowed to bypass the IDFG
roadblock without being stopped.
Here, there was probable cause to arrest Tanner. He bypassed the IDFG wildlife
checkpoint. He was pursued, arrested, and cited based on his failure to stop at the check
station. As there was probable cause, the Court grants IDFG Defendants motion for
summary judgment on Tanner’s First Amendment retaliation claim.
3. Fifth Amendment: Failure to Read Miranda Rights
Tanner suggests that Stanley, Swanson, and Crowell’s failure to read him his
Miranda rights prior to arresting him gives rise to a viable § 1983 claim. Dkt. 4, ¶¶ 27, 31.
Stanley and Swanson both admit they did not read Tanner his Miranda rights, asserting it
was because they did not question Tanner. Dkt. 85-4, at 58, 78.
In Chavez v. Martinez, a plurality of the Supreme Court said “an officer’s failure to
read Miranda warnings to a plaintiff does “not violate [plaintiff’s] constitutional rights and
cannot be grounds for a § 1983 action.” 538 U.S. 760, 772 (2003) (citing Connecticut v.
Barrett, 479 U.S. 523, 528 (1987) (Miranda’s warning requirement is “not itself required
by the Fifth Amendmen[t] . . . but is instead justified only by reference to its prophylactic
purpose”); see also Michigan v. Tucker, 417 U.S. 433, 445 (1974) (Miranda’s safeguards
“were not themselves rights protected by the Constitution but were instead measures to
insure that the right against compulsory self-incrimination was protected”). Thus, “an
officer’s failure to read Miranda warnings to a defendant before interrogation . . . [is] not
actionable under § 1983.” Soo Park v. Thompson, 851 F.3d 910, 926 (9th Cir. 2017).
To the extent that Tanner is alleging a § 1983 action against Stanley and Swanson
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(or Crowell) due to their failure to read him Miranda warnings, the Court dismisses the
claim.
4. State Law or Federal Regulation
It is unclear if Tanner seeks to assert a § 1983 claim against any of the IDFG
Defendants for violating state law or federal regulation.9 “[Section] 1983 does not provide
a cause of action for alleged violations of state law.” Pototsky v. Napolitano, 210 F. App’x
637, 637 (9th Cir. 2006). Additionally, § 1983 claim may only be asserted for violating a
right secured by the Constitution and laws of the United States; it does not allow a cause
of action simply for failure to abide by federal policy manuals.10
Ultimately, Tanner may not assert a § 1983 claim against any of the Defendants for
violating state law or federal regulation generally. To the extent he is trying to do so, such
claim is dismissed.

9

IDFG Defendants posit Tanner may be doing so given the following allegation in his Amended
Complaint:
Defendants Swanson, Stanley and Johnson, under the color of law, operated the roadblocks
on a sharp comer of Meadow Creak Road in an unsafe and dangerous way that violated the
state and federal laws as to proper signage, and signage placement, and without a
continuous flashing blue light at the roadblock as required by Idaho Code 19-622 (2)-(4).
In addition, these Defendants operated the roadblocks without proper illumination of the
area at night and without wearing high visibility safety apparel as required by the Federal
Transportation Manual on Uniform Traffic Control Devices. (as required by MUTCD §
6G.19 paragraph 10 and 6D.03 paragraph 06 and 6E.02 paragraph 03.)

Dkt. 4, at ¶ 61 (emphasis added).
10

Policy setting and/or following may be an aspect that bolsters a § 1983 claim (Monell v. Dep’t of Social
Services of the City of New York, 436 U.S. 658 (1978)) but must be tied to an overarching claim of a
deprivation of a right secured by the Constitution and laws of the United States; it cannot independently
give rise to a § 1983 claim.

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5. Conclusion
The Court need not address Defendants Swanson, Stanley and Johnson’s qualified
immunity defenses. The Court dismisses Tanner’s claims pursuant to § 1983 against them
because the Court finds they did not deprive Tanner of a Constitutional right.
C. Tanner’s Second Cause of Action
Tanner’s second cause of action is a § 1983 claim against Defendant Moore for
establishing IDFG Policy No. E-7 Section H and J that allows for the use of roadblocks for
wildlife check stations. Tanner alleges the policy is unconstitutional in that it violates the
Fourth Amendment and Article 1, section 17 of the Idaho Constitution.
Tanner has not provided evidence that any of the particular checkpoints he
encountered, or any other check stations operated by IDFG pursuant to this policy, have
been operated in an unconstitutional or unlawful manner. See supra. Thus, the Court does
not find Defendant Moore’s establishment of such a policy unconstitutional. The Court
grants IDFG Defendants summary judgment on Tanner’s Second Cause of Action.
D. Tanner’s Third Cause of Action
Tanner’s third cause of action is a § 1983 claim against Defendant Cowell. He
argues Cowell’s frisk of Tanner was unreasonable and Cowell’s subsequent placement of
him in the patrol vehicle caused pain and suffering, violating his Fourth Amendment rights.
Further, he alleges that Cowell punished him by conducting a “false arrest” when Tanner
“exercise[d] his right to be remain silent.” Dkt. 4, ¶¶ 74, 76. Cowell argues that he did not

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violate Tanner’s Fourth, Fifth, or Fourteenth Amendment rights.11
1. Fourth Amendment: Frisk
Tanner was under arrest when Cowell arrived at the scene but had not yet been
frisked (or searched). Upon transfer, Cowell placed Tanner in a different set of handcuffs,
frisked him, and loaded him into his patrol vehicle. Cowell later removed Tanner from the
patrol vehicle and investigated him for any signs of DUI. Cowell found none and declined
to issue a citation. Dkt. 87, ¶¶ 33–34 (citing Dkt. 73-2, Tanner Depo., at 43).
Defendants assert such a frisk was warranted because Tanner may have been armed
and dangerous. Tanner responds that this argument is a farce as Defendants had no probable
cause to believe he was armed and dangerous. The Court takes no position on this issue,
however, as its resolution is inapplicable to the Court’s analysis today.
Tanner was under arrest when frisked. “The Supreme Court and [the Ninth Circuit]
have already held that a search incident to a lawful arrest is not limited to simple pat-down
of the suspect and can ‘involve a relatively extensive exploration’ of the areas within the
arrestee’s immediate control.” United States v. Williams, 846 F.3d 303, 312 (9th Cir. 2016)
(quoting United States v. Robinson, 414 U.S. 218, 227 (1973)); see also United States v.
Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010). “Those areas include the arrestee’s person
and the inside pockets of the arrestee’s clothing.” Williams, 846 F.3d at 312. Here, the

11

Cowell also argues that any state law claims against him should be dismissed due to failure to comply
with Idaho Code § 6-908, which mandates plaintiffs must file a notice of tort claims. Tanner only alleged
that Cowell violated his Fourth and Fifth Amendment rights. See generally Dkt. 4. As he did not allege any
tort against Cowell, the Court cannot dismiss such a cause of action.

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officers had probable cause to arrest Tanner; Cowell performed a valid search incident to
arrest upon transfer of custody after Tanner was lawfully apprehended for failing to stop at
the check station. The frisk, therefore, was constitutional.
2. Excessive Force
Tanner alleges in his Complaint the way Cowell handcuffed him and belted him in
the patrol vehicle caused him “severe pain.” Dkt. 4 at ¶ 30. See also id. at ¶ 73. He provides
no further detail on how he was injured.
“The Fourth Amendment’s requirement that a seizure be reasonable prohibits more
than the unnecessary strike of a nightstick, sting of a bullet, and thud of a boot.” Fontana
v. Haskin, 262 F.3d 871, 878 (9th Cir. 2001). Under the Fourth Amendment, police may
use only such force as is objectively reasonable under the circumstances. Graham v.
Connor, 490 U.S. 386, 397 (1989); White v. Pierce County, 797 F.2d 812, 815 (9th Cir.
1986). Determining whether force used in making an arrest is excessive or reasonable
“requires careful attention to the facts and circumstances of each particular case, including
the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Graham, 490 U.S. at 396.
“It is well-established that overly tight handcuffing can constitute excessive force.”
Wall v. Cty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (citing Meredith v. Erath, 342
F.3d 1057, 1061, 1063–64 (9th Cir. 2003) (holding that “to place and keep [a person] in
handcuffs that were so tight that they caused her unnecessary pain violated her Fourth
Amendment right to be free from an unreasonable seizure”); LaLonde v. County of
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Riverside, 204 F.3d 947, 960 (9th Cir. 2000) (“A series of Ninth Circuit cases has held that
tight handcuffing can constitute excessive force.”).
The Ninth Circuit has held, however, that “conclusory allegations” of injury from
handcuffing which are “unsupported by factual data are insufficient to defeat” a motion for
summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th
Cir. 2001). In Arpin, the plaintiff alleged that she suffered injury as a result of being
handcuffed by an officer. The Ninth Circuit held that the plaintiff’s failure to provide
medical records or other evidence to support her claim of injury was insufficient to support
a claim that the force used was unreasonable and excessive. Id. Similarly, in an unpublished
Ninth Circuit opinion, the court held that it had previously found handcuffing to be an
unreasonable application of force where “the plaintiffs either suffered damage to their
wrists as a consequence of the handcuffs or the plaintiffs complained to the officers about
the handcuffs being too tight.” Liiv v. City of Coeur D’Alene, 130 F. App’x 848, 852 (9th
Cir. 2005). In Liiv, because there was no “evidence of a physical manifestation of injury
and notification to the police that the handcuffs were too tight,” the Ninth Circuit held that
the plaintiff could not establish that the officer had unreasonably tightened the handcuffs.
Id.
Yet in a more recent unpublished Ninth Circuit decision, the court held that a
plaintiff need not support a claim of excessive force due to tight handcuffs with proof of
visible physical injury. An allegation that the handcuffs caused “unnecessary pain,” is
sufficient. See Thompson v. Lake, 607 F. App’x 624, 625–26 (9th Cir. 2015) (first citing
Meredith v. Erath, 342 F.3d 1057, 1060, 1062–63 (9th Cir. 2003); then citing LaLonde v.
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County of Riverside, 204 F.3d 947, 952, 960 (9th Cir. 2000)). In LaLonde, the Ninth Circuit
held that a plaintiff’s allegations that officers tightly handcuffed him and refused to loosen
the handcuffs when he complained, was sufficient to defeat summary judgment for the
defendant. 204 F.3d at 960.
At least two courts in this circuit have noted that the decisions in Arpin and
Thompson appear to conflict. See Smith v. Sergent, No. 215CV0979GEBDBP, 2017 WL
4284659, at *6 (E.D. Cal. Sept. 27, 2017); Chambers v. Steiger, No. C14–1678–JCC–
MAT, 2015 WL 9872531, at *8 (W.D. Wash. Oct. 29, 2015), rep. and reco. adopted, 2016
WL 235764 (W.D. Wash. Jan. 20, 2016). In Arpin, the Ninth Circuit required medical or
other evidence of injury beyond the plaintiff’s own claims. 261 F.3d at 922. In Thompson,
the Ninth Circuit held that a plaintiff’s claims of unnecessary pain were enough. 607 F.
App’x at 625. Both Smith and Chambers found Arpin controlling and declined to follow
the unpublished decision in Thompson. See Smith, No. 215CV0979GEBDBP, 2017 WL
4284659, at *6 (“It appears that most courts in this circuit have held that a plaintiff
attempting to prove excessive force must show either a demonstrable injury or that he
complained about the handcuffs being too tight and was ignored.”) (first citing Candler,
2015 WL 2235674, at *8; then citing Dillman v. Tuolumne County, No. 1:13–CV–0404
LJO SKO, 2013 WL 1907379, at *8 (E.D. Cal. 2013)); Weldon v. Conlee, No. 1:13–cv–
0540–LJO–SAB, 2015 WL 1811882, at *14 (E.D. Cal. Apr. 21, 2015), aff’d, 684 F. App’x
612 (9th Cir. 2017); Gause v. Mullen, No. CV 12–1439–PHX–RCB(MEA), 2013 WL
5163245, at *9 (D. Ariz. Sept. 12, 2013); Nguyen v. San Diego Police Dept., No.
11cv2594–WQH–NLS, 2013 WL 12114518, at *9 (S.D. Cal. Aug. 15, 2013); Bashkin v.
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San Diego County, No. 08cv1450–WQH–WVG, 2010 WL 2010853, at *7 (S.D. Cal. May
20, 2010); cf. LaLonde, 204 F.3d at 952; Palmer v. Sanderson, 9 F.3d 1433, 1434–36 (9th
Cir. 1993)).
As noted above, Tanner’s allegation that the way Cowell handcuffed him and belted
him in the patrol vehicle caused him severe pain is sparse. In his response to Defendants’
Motion for Summary Judgment, Tanner provides more information on what he is alleging:
Cowell then belted Tanner in a position that caused pain and suffering,
making deep marks on his wrists. Tanner has a right not to be subjected to
pain and suffering at the hands of the Defendants. Cowell, Swanson, and
Stanley's actions to arrest, handcuff and place in a confined area caused the
Plaintiff “a lot of grief.” Plaintiff was in severe pain due to the handcuffs and
the position in which he was belted into the patrol vehicle.
Dkt. 85, at 30. In support of his allegations, he provided a copy of Officer’s Cowell’s body
camera recording of that night, which he titles “PV--Police Video Recording” (Dkt. 85, at
iv) on a USB drive.12 The body camera video starts when Tanner was already handcuffed
and placed in the back seat of Officer Cowell’s vehicle. Cowell is assisting Tanner in
getting out of the vehicle.
Around twenty-eight seconds into the body camera video, Tanner—still in the
process of exiting the vehicle—can be heard saying, “Oh, it’s killing my hands.” PV, at
00:28. Cowell promptly responds, “I’m gonna, I’m gonna adjust those handcuffs when you
get out. In fact, I’m gonna take them off of you here for a – there we go.” Id. A few seconds
later, when Tanner is out of the vehicle, Cowell can be heard asking Swanson on the scene,

12

The file name for the recording is PICT0004-2017.11.18_16-36.08.

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“Do you mind if I pull him out of handcuffs?” to which Swanson responds “sure.” PV, at
00:54; Dkt. 85-14, at 15. Cowell proceeds to remove the handcuffs from Tanner. In sum,
within one minute of Tanner voicing his complaint that the handcuffs were painful, Cowell
had removed them. Cowell did not ignore Tanner’s complaints of pain.
As Cowell was removing the handcuffs, Tanner asks, “You see that?” PV, at 01:33.
Cowell responded, “I do.” Tanner then seemingly asks someone else “Do you see it?” Id.
It is not clear from the video what the parties are referring to. However, Tanner affirms that
he was showing Cowell marks on his wrists from the handcuffs. Dkt. 85-1, at 8 (citing
Plaintiff Affidavit, ¶ 101). Officer Swanson also remembers Tanner mentioning marks on
his wrists and thinking Tanner was in some kind of pain. Dkt. 85-7, at 108. Cowell does
not dispute that he was shown marks on Tanner’s wrists from the handcuffs.
After being asked if Cowell “[saw that],” Cowell allowed Tanner to hold his hands
“up here,” in front of his body rather than be in handcuffs. PV, at 01:43. Tanner mentioned
it was difficult for him to do that as he had a bad shoulder, and so Cowell allowed Tanner
to hold his hands against his chest instead while Cowell asked Tanner if he understood why
he was stopped. Tanner then stated he had the right to remain silent and he had a right to
attorney. Cowell acknowledged both before proceeding to ask about whether Tanner was
impaired or driving under the influence. Tanner objected to the additional questioning,
stating he had already invoked his Fifth Amendment rights. Cowell continued to question
Tanner. At the end of Cowell’s questioning, he placed Tanner back in handcuffs, but
handcuffed him with his arms in front, rather than behind his back. PV, at 03:36.
Tanner has not provided evidence of demonstrable injury from the way he was
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handcuffed or belted. In his deposition, Tanner said he was claiming no medical expenses
due to the November 18, 2017 incident. Dkt. 73-2, at 62:10–13.
Upon Tanner informing Cowell the handcuffs pained him, Cowell promptly
removed them. As Tanner does not show a demonstrable injury or allege that he
complained about the handcuffs causing him pain and was ignored, the Court dismisses his
claim of excessive force. See also Thomas v. Cassia Cty., Idaho, No. 4:17-CV-00256DCN, 2019 WL 938385, at *8 n.6 (D. Idaho Feb. 26, 2019), adhered to on reconsideration,
No. 4:17-CV-00256-DCN, 2019 WL 5270200 (D. Idaho Oct. 17, 2019) (“The Court’s
decision to grant summary judgment is further supported by [plaintiff’s] failure to produce
any medical documentation that proves his claimed injuries.”); Law v. City of Post Falls,
772 F. Supp. 2d 1283, 1300 (D. Idaho 2011) (“Furthermore, like the plaintiff in Arpin, in
this case Plaintiff has not produced any medical evidence in response to Defendants’
motion for summary judgment that the handcuffing resulting in damage to his wrists or
hands.”).
3. False Arrest
Tanner alleges in his Amended Complaint that Defendant Cowell “false[ly]
arrest[ed]” him. Dkt. 4, at ¶ 76.
IDFG officers had already arrested Tanner prior to Cowell arriving on the scene.
Cowell assisted the IDFG officers but never independently arrested Tanner. Cowell
reiterated during oral arguments that he never issued any citation to Tanner, whether
relating to DUI, obstruction, or otherwise. Tanner has not provided any evidence that
Cowell arrested him or cited him for any offense.
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As Tanner was only arrested once on November 17, 2017—and the arrest occurred
prior to Cowell arriving on the scene—the Court finds that Cowell did not participate in a
“false arrest” of Tanner.
4. Fifth Amendment: Right to Remain Silent
Cowell asserts that “the Fifth Amendment applies only to the acts of the federal
government and therefore [Tanner’s claim in this respect] must be dismissed against” him.
Dkt. 72-1, at 12; Dkt. 89, at 7 (citing Spies v. People of the State of Illinois, 123 U.S. 131,
(1887)).
While technically correct, the Court emphatically disagrees with Cowell’s
argument. The Fifth Amendment privilege of the right to remain silent is secured against
state officers through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964)
(“The Fourteenth Amendment secures against state invasion the same privilege that the
Fifth Amendment guarantees against federal infringement—the right of a person to remain
silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer
no penalty, as held in Twining, for such silence.”). Tanner, as a pro se plaintiff, may have
unartfully articulated that he was bringing his Fifth Amendment claim against state officers
through the Fourteenth Amendment, but his intent was clear. The Court will construe his
claim as such.
The Fifth Amendment provides that no person “shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. “Where the initial request to
stop the questioning is clear, ‘the police may not create ambiguity in a defendant’s desire
by continuing to question him or her about it.’” Anderson v. Terhune, 516 F.3d 781, 790
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(9th Cir. 2008) (quoting Barrett, 479 U.S. at 535 n. 5, 107 (Brennan, J., concurring)).
Where the police “parse[ an arrestee’s] invocation into specific subjects, ‘the police
fail[] to honor a decision of a person in custody to cut off questioning, either by refusing
to discontinue the interrogation upon request or by persisting in repeated efforts to wear
down his resistance and make him change his mind.’” Id. (quoting Mosley, 423 U.S. 96,
105–06 (1975)). The net result is that “such follow-up questions allow the officer to avoid
honoring the Fifth Amendment and, as in a right to counsel situation, enable[] ‘the
authorities through ‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or
unintentional—[to] wear down the accused and persuade him to incriminate himself.’” Id.
(quoting Smith v. Illinois, 469 U.S. 91, 98 (1984)).
However, the Supreme Court held, in a fractured opinion, that coercive police
questioning does not violate a suspect’s Fifth Amendment right against compelled selfincrimination unless and until the compelled statement is “used” against the suspect in a
“criminal case.” Chavez v. Martinez, 538 U.S. 760, 766 (2003) (Thomas, J., joined by
Rehnquist, C.J., O’Connor, J., and Scalia, J.); id. at 777–78 (Souter, J., joined by Breyer,
J.). Applying Chavez, the Ninth Circuit has held that a statement has been “used in a
criminal case” if government officials relied on the incriminating statement “to initiate or
prove a criminal charge.” Stoot v. City of Everett, 582 F.3d 910, 925 n.15 (recognizing that
plaintiff’s Fifth Amendment rights were not violated until the prosecutor used his coerced
statements in an affidavit and at arraignment).
Here, Tanner fails to allege which, if any, of his statements were used to initiate or
prove a criminal charge. He alleges that Cowell arrested him for drunk driving and
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obstructing an officer as punishment for asserting his right to remain silent. As stated
previously, Tanner has provided no evidence that he was arrested by Cowell at all, let alone
for those two charges. Additionally, there is no record illustrating that any statements
Tanner made to Cowell, or other officers, that night were used against him in any criminal
proceeding.13 Absent such evidence, the Court holds Tanner’s Fifth Amendment right
against compelled self-incrimination was not violated—despite Cowell’s failure to honor
a decision of a person in custody to cut off questioning. As there is no constitutional
violation, the Court dismisses Tanner’s Fifth Amendment claim under § 1983 against
Cowell.
5. Conclusion
The Court finds Cowell did not violate Tanner’s constitutional rights. Thus, it does
not review Cowell’s qualified immunity claims prior to dismissing Tanner’s § 1983 against
Cowell.
6. Tanner’s Fourth Cause of Action
Tanner’s fourth cause of action is for declaratory judgment and injunctive relief. He
seeks to enjoin Defendants from operating wildlife checkpoint roadblocks and to mandate
that Defendants only stop fishermen, hunters, and trappers at wildlife check stations, rather
than the public at large. As the Court has already held that the routine IDFG wildlife
checkpoint roadblocks which briefly stop the public for the purpose to effectively manage

13

The prosecutor dismissed the two counts (failing to stop and report at a check station and eluding a police
office) brought by the State of Idaho against Tanner at his pre-trial conference. Dkt 85-14, Transcript of
January 11, 2018, Pretrial Conference, at 48.

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the state’s wildlife resources are both constitutional and statutorily authorized, such relief
would be inappropriate. The Court dismisses Tanner’s Fourth Cause of Action.
7. Tanner’s Motion to Strike
During oral arguments, Tanner moved to strike Cowell’s affidavit on the grounds
that Cowell lacked personal knowledge of events that occurred prior to his arrival at the
gas station. Specifically, Tanner argues that Cowell cannot testify to the events that
occurred at the wildlife check point.
The Court has reviewed Cowell’s affidavit. Dkt. 72-4. In it, Cowell testifies that he
overheard a radio call from the Boundary County Communication Police Dispatch
(“dispatch”) that a driver had failed to yield. Id. ¶ 6. He further testifies that Officer
Swanson was the individual who advised dispatch that the driver refused to pull over,
despite the fact that the pursuing officer’s vehicle had its lights and sirens activated. Based
on the information from dispatch, he determined it was a “high risk” situation. Id. ¶ 7.
Cowell is not testifying as to the truth of what dispatch or Officer Swanson asserted.
Rather, he is providing foundation for his own opinion. In other words, what Tanner alleges
are facts asserted are actually part of Cowell’s opinion. The Court will give Cowell’s
opinion the weight it deems appropriate. The Court denies Tanner’s motion to strike.14

14

The Court notes that it did not rely on Cowell’s affidavit concerning the events that occurred prior to
his arrival on the scene in determining whether to grant Defendants’ Motions for Summary Judgment.

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V. ORDER
The Court HEREBY ORDERS:
1. Defendant Cowell’s Motion for Summary Judgment (Dkt. 72) is GRANTED.
2. IDFG Defendants’ Motion for Summary Judgment (Dkt. 73) is GRANTED.
3. This case is dismissed in its entirety and closed.
4. The Court will enter a separate judgment in accordance with Federal Rule of

Civil Procedure 58.

DATED: September 9, 2020
_________________________
David C. Nye
Chief U.S. District Court Judge

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