McDowell v. Jefferson County et al

Filing 41

MEMORANDUM DECISION AND ORDER It is hereby ORDERED, that the motion for summary judgment filed by defendants (docket no. 27 ) is DENIED. The motion to strike (docket no. 33 ) is GRANTED IN PART AND DENIED IN PART. The motion for extension (docket n o. 36 ) is GRANTED IN PART AND DENIED IN PART. The motion to file sur-reply brief (docket no. 35 ) is DENIED as moot. The motion to dismiss all state law claims (docket no. 23 ) is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
PRESTON DALE MCDOWELL,
Plaintiff,

Case No. 4:15-CV-507-BLW

v.

MEMORANDUM DECISION AND
ORDER

JEFFERSON COUNTY, CITY OF RIGBY,
BLAIR OLSEN, STEVE ANDERSON, KEITH
HAMMON, ANTONIO GONZALES,
EMERSON PARSONS, and JOHN DOES I V,
Defendants.

INTRODUCTION
Plaintiff McDowell claims two police officers used excessive force when they
illegally arrested him in his home. He has sued (1) Jefferson County; (2) the City of
Rigby; (3) Steve Anderson, Sheriff of Jefferson County; (4) Keith Hammon, Chief of
Police for the Rigby Police Department; (5) Antonio Gonzales, a Deputy with the
Jefferson County Sheriff’s Office; and (6) Emerson Parsons, an Officer with the Rigby
Police Department. The defendants seek summary judgment on all claims.
FACTUAL BACKGROUND
On June 23, 2015, McDowell shattered the windshield of a jeep that had been
parked in his driveway, and then pushed the jeep into a neighbor’s fence. Witnesses
called the police, and Officers Gonzales and Parsons responded to the call. The officers
took statements from the witnesses and heard McDowell (1) apologize to his neighbor for
the damage done to the fence, and (2) yell at others that they better “get the rest of your
Memorandum Decision & Order – page 1

shit before I push it out there like I did the jeep” or words to that effect. See Gonzales
Deposition (Dkt. No. 30-2) at p. 52.
At this point, McDowell, obviously drunk, was standing his yard. Officer Parsons
activated his body camera, preserving a video and audio record of the events that night.
The officers asked to talk to McDowell, but he refused, cursed the officers, and
demanded that they get a warrant. Retreating to his front porch, McDowell continued
berating the officers, and then went inside his home. The officers responded by asking
McDowell to come out and talk with them. McDowell came out onto a covered porch
attached to the front of his mobile home, and, leaning out of the porch area, continued to
yell at the officers for trespassing on his property. After this outburst, McDowell walked
back into the covered porch area and then entered his home through his front door.
After a few moments, Officer Gonzalez walked up the two steps leading onto the
front porch. Officer Parsons was behind him and had not yet walked up onto the front
porch when he can be heard to ask “Are we taking him out?” See Gonzales Deposition,
supra, at p. 62 (confirming that Officer Parsons asked that question). Officer Gonzales
responded, “Yes”, and Officer Parsons can be heard radioing dispatch that they are going
to take McDowell “into custody.” In his deposition, Officer Gonzales explained that by
the time the officers walked onto the front porch, they had decided to arrest McDowell.
Id. at 63.
Officer Parsons then followed Officer Gonzalez onto the front porch. McDowell’s
front door was closed at this point. Officer Gonzales knocked on the door, and
McDowell opened it just a small amount to protest that the officers were trespassing and
Memorandum Decision & Order – page 2

should get off his property. Officer Gonzales, placing his right foot against the base of
the door to prevent McDowell from closing the door, asked McDowell several times to
come out of his home. But McDowell adamantly refused, continued to curse the officers
for trespassing, and demanded that they leave. Officer Gonzales recalled that McDowell
tried to close the door “with my foot in it.” See Gonzales Deposition, supra, at p. 77.
McDowell can be heard grunting on the video tape as he apparently tried to close the
door but was blocked by Officer Gonzales’ foot. The door then swings open further and
McDowell continued to protest.
At this point, McDowell was about two feet inside his home while Officer
Gonzales’ left foot was on the porch and his right foot was resting on the door’s
threshold, partly inside the home and jammed up against the door.1 Officer Parsons was
standing on the porch directly behind Officer Gonzales, continuing to record the incident
through his body camera.
After a few minutes of this back-and-forth verbal sparring, Officer Gonzales told
McDowell that he was under arrest, and asked him to put his hands behind his back.
McDowell refused.
About 50 seconds after telling McDowell that he was under arrest, Officer
Gonzales moved his left foot into the home so that he could grab McDowell who had
remained about two feet inside his home. Officer Gonzales gripped McDowell’s right

1

These measurements and position descriptions are estimates based the police camera video. In
finding McDowell to be about two feet inside his home, the Court means that McDowell was about 2 feet
from the threshold of the front door.
Memorandum Decision & Order – page 3

arm and pulled him out of the house and onto the porch. He put McDowell in an “arm
bar position to get him to go down [to] the ground.” See Probable Cause Affidavit (Dkt.
No. 30-2, Exhibit 2) at ¶ 15. Both officers commanded McDowell to “get on the ground”
but he did not obey. Officer Gonzales then changed his hold “from an arm bar to an armover-arm bar position to get him to go down to the ground.” Id. When McDowell
continued to stand, Officer Parsons placed the Taser on McDowell’s thigh and tasered2
him for just over 2 seconds. McDowell fell to the porch floor, at which point the officers
handcuffed him and took him to the Jefferson County jail. They charged McDowell with
malicious injury to property, resisting arrest, and obstructing an officer, each a
misdemeanor. He eventually pled guilty to “disturbing the peace” under Idaho Code
§ 18-6409, a misdemeanor.
LEGAL STANDARDS
Qualified Immunity – Legal Standards
The defendants ask the Court to hold as a matter of law that they are entitled to
qualified immunity. The doctrine of qualified immunity “protects government officials
from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity gives government
officials “breathing room to make reasonable but mistaken judgments about open legal

2

The device used by Officer Parsons was a Taser used in a “drive-stun mode.” See Gonzales
Deposition, supra, at pp. 68-69. In that mode, it did not shoot darts but rather was applied directly to the
body to deliver an electric current designed to stun the suspect into submission. Id.
Memorandum Decision & Order – page 4

questions. When properly applied, it protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v. al–Kidd, 563 U.S. 731, 743 (2011).
In determining whether an officer is entitled to qualified immunity, the Court must
determine (1) whether there has been a violation of a constitutional right; and (2) whether
that right was clearly established at the time of the officer’s alleged misconduct. Lal v.
California, 746 F.3d 1112, 1116 (9th Cir. 2014). Consequently, at summary judgment, an
officer may be denied qualified immunity in a Section 1983 action “only if (1) the facts
alleged, taken in the light most favorable to the party asserting injury, show that the
officer’s conduct violated a constitutional right, and (2) the right at issue was clearly
established at the time of the incident such that a reasonable officer would have understood
his or her conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d
1119, 1123 (9th Cir. 2011).
Qualified Immunity for Arrest – Analysis
The law at the time of McDowell’s arrest was clearly established: The police
needed a warrant to enter McDowell’s home to arrest him, unless exigent circumstances
existed. Payton v New York, 445 US 573, 583-90 (1980). Exigent circumstances
include instances where (1) the police are in hot pursuit of a suspect, U.S. v Santana, 427
US 38, 42 (1976); (2) the police have probable cause to think that the suspect will destroy
evidence, Welsh v Wisconsin, 466 US 740, 749-50 (1984); (3) the safety of police or
others is at risk, U.S. v. Nora, 765 F.3d 1049, 1055 (9th Cir. 2014); or (4) the defendant
voluntarily exposes himself to the police presence without being coerced or deceived.
U.S. v Vaneaton, 49 F3d 1423 (9th Cir 1995).
Memorandum Decision & Order – page 5

Examining the facts in a light most favorable to McDowell, did Officers Gonzales
and Parsons violate this law? The video shows that Officer Gonzales, without a warrant,
entered McDowell’s home to effectuate his arrest of McDowell on misdemeanor charges.
This would be a Fourth Amendment violation unless there were exigent circumstances.
Did exigent circumstances exist here?
The defense argues that their strongest case for finding exigent circumstances is
Vaneaton. There, officers entered the suspect’s motel room to arrest him without a
warrant. After equating the motel room with a home, the Circuit approved the arrest
because (1) the officers stood in a public place (the motel hallway) when they knocked on
the suspect’s door, (2) the officers did not “resort to subterfuge or a ruse” to entice the
suspect to open the door, and (3) the suspect opened the door without protesting the
officers’ presence and “voluntarily exposed himself to warrantless arrest.” Vaneaton, 49
F.3d at 1427.
None of those elements is present here. Officers Gonzales and Parsons were not
standing in a public area when they placed McDowell under arrest – they were standing
on McDowell’s front porch, a “classic exemplar” of the “curtilage” of the home, Florida
v. Jardines, 133 S.Ct. 1409, 1415 (2013), which is treated as “part of [the] home itself for
Fourth Amendment purposes.” Oliver v. U.S., 466 U.S. 170, 180 (1984). Moreover, the
officers here were engaged in a subterfuge when they knocked on McDowell’s door:
They had already decided to arrest him, but instead of revealing that intent, they asked
McDowell to come out so they could talk to him about the jeep incident. And perhaps
most importantly, McDowell’s act in opening the door was anything but a voluntary
Memorandum Decision & Order – page 6

consent – he was opening the door to protest that the officers were trespassers. Officer
Gonzalez ensured that McDowell could not close the door by jamming it open with his
right foot. There was nothing at all voluntary about McDowell’s opening of his front
door. See generally, Hadley v. Williams, 368 F.3d 747, 750 (7th Cir. 2004)(J. Posner)
(holding that “[t]he fact that a person answers a knock at the door doesn’t mean that he
agrees to let the person who knocked enter”).
No other type of exigent circumstance exists here. Unlike the officers in Santana,
Officers Gonzales and Parsons were not in hot pursuit of a suspect who was fleeing.
Officer Gonzales testified that he did not consider McDowell to be fleeing. See Gonzales
Deposition, supra, at p. 75. Unlike the suspect in Welsh, McDowell had not retreated
into his home to destroy evidence. Officer Gonzales testified that he was not concerned
that McDowell would destroy any evidence. See Gonzales Deposition, supra, at p. 77.
The defense responds that the officers were concerned about the safety of those
persons involved in the jeep incident. Defense counsel pointed to McDowell’s
belligerent and drunken demand, discussed above, that certain persons should “get the
rest of your shit before I push it out there like I did the jeep,” or words to that effect. See
Gonzales Deposition (Dkt. No. 30-2) at p. 52. Evaluating the facts in a light most
favorable to McDowell, his threat appears directed at property, not persons. There is no
evidence that he had any weapons. Indeed, he was apparently harmless enough that the
officers were willing to allow his wife to stay with him so she could calm him down. Id.
at p. 44.

Memorandum Decision & Order – page 7

“When an officer undertakes to act as his own magistrate, he ought to . . . justify it
by pointing to some real immediate and serious consequences if he postponed action to
get a warrant.” Welsh, 466 U.S. at 751. This is especially true when the suspected crime
is a mere misdemeanor because “an exigency related to a misdemeanor will seldom, if
ever, justify a warrantless entry into the home.” U.S. v. Nora, 765 F.3d 1049, 1055 (9th
Cir. 2014).
Thus, Officers Gonzales and Parsons must explain the immediate and serious
consequences that would ensue if McDowell’s arrest was postponed to get a warrant.
See United States v. Robertson, 606 F.2d 853, 859 (9th Cir.1979) (holding exigent
circumstances exist where “a substantial risk of harm to the persons involved or to the
law enforcement process would arise if the police were to delay a search until a warrant
could be obtained ” (emphasis added)). For example, where there was no showing that a
telephone warrant was unavailable or impracticable, the Circuit refused to find that a
safety risk exigency existed. U.S. v. Alvarez, 810 F.2d 879, 883 (9th Cir. 1987).
When Officer Gonzales was asked in his deposition whether there was anything
that prevented him from obtaining a warrant, he answered, “No.” See Gonzales
Deposition, supra, at p. 79. When asked for the reasons they did not get a warrant,
Officer Gonzales stated, “He [McDowell] was not being very compliant. He was
refusing to speak with me on the matter.” Id. But this cannot constitute grounds by
itself for finding exigent circumstances. LaLonde v. City of Riverside, 204 F.3d 947, 958
at n. 16 (holding that officers may not “enter the person’s home and seize him simply

Memorandum Decision & Order – page 8

because he is unwilling to step into the public domain for questioning, even if probable
cause exists to believe that some offense has been committed”).
Once again evaluating the facts in a light most favorable to McDowell, there are
no facts (1) establishing how long it would take to get a warrant, (2) why that period of
delay posed an “immediate and serious” danger to the officers or other persons, and (3)
why the only option was an immediate arrest. Under these circumstances, the Court
cannot find as a matter of law that exigent circumstances allowed the police to enter the
home without a warrant to make a misdemeanor arrest. Any reasonable officer would
have realized, under the circumstances of this case, that the warrantless entry into the
home violated McDowell’s Fourth Amendment rights. The Court therefore finds as a
matter of law that Officers Gonzalez and Parsons are not entitled to qualified immunity
for their arrest of the defendant.
Qualified Immunity for Excessive Force -- Analysis
The use of force violates the Fourth Amendment if “it is excessive under objective
standards of reasonableness.” Graham v. Connor, 490 U.S. 386, 388 (1989). The
analysis must be based on “the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Id. at 396.
In Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003), the Circuit affirmed the
District Court’s refusal to grant summary judgment on qualified immunity grounds,
holding that it was objectively unreasonable for an officer to throw the plaintiff to the
ground and twist her arm while handcuffing her when the plaintiff was only verbally
resisting, and had not attempted to leave. Id.
Memorandum Decision & Order – page 9

Here, the video appears to show that McDowell (1) was continuing to be verbally
abusive, and (2) was not complying with the officers demand to get down on the ground.
What is not clear is the extent to which McDowell was physically resisting the officers’
attempt to place handcuffs on him, given that all facts must be construed in favor of
McDowell. It is also unclear whether the Taser was needed to ensure compliance.
Moreover, the legality of the arrest remains to be resolved. For these reasons, the Court
cannot find that the officers have, as a matter of law, qualified immunity from the
excessive force allegations. Accordingly, the Court will deny this portion of the motion.
Claims against Defendants City of Rigby & Jefferson County
McDowell claims that his constitutional violations were caused by policies or
customs of defendants Jefferson County and the City of Rigby. These defendants filed a
motion for summary judgment, arguing that any constitutional violation was not caused
by their policies or customs.
“[A] municipality cannot be held liable solely because it employs a tortfeasor – or,
in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Department of Social Services of New York, 436 U.S. 658,
691 (1978). Rather, to prevail on a § 1983 claim against a city, a plaintiff must prove that
the constitutional injury was inflicted pursuant to city policy, regulation, custom, or
usage. Id. “City policy causes an injury where it is the moving force behind the
constitutional violation, or where the city itself is the wrongdoer.” Chew v. Gates, 27
F.3d 1432, 1444 (9th Cir. 1994).

Memorandum Decision & Order – page 10

The Jefferson County Sheriff’s Office Policy Manual states that “[e]xigent
circumstances permitting entry into premises without a warrant or valid consent generally
include any of the following . . . (b) [s]erious damage to property . . . .” See ¶ 322.3.3(b)
(Dkt. No. 30-6) at p. 11. The phrase is not defined in the Manual. This was the official
policy of both Jefferson County and the City of Rigby. The defendants cite no case
holding that serious damage to property, without more, would constitute exigent
circumstances, and the Court can find none.
Defendants argue that this policy could not be the “moving force” behind the
arrest because the officers did not refer or depend on the policy in making that arrest. But
defendants cite no case that this is required when an unconstitutional policy is in effect
and covers precisely what the officers actually did – arrested McDowell on a malicious
injury to property charge, using his threat to damage property as the basis for finding
exigent circumstances.
Under these circumstances the Court will deny summary judgment to Jefferson
County and the City of Rigby.
Other Motions
The defendants seek to strike McDowell’s response brief for being a day late –
actually three hours late as it was filed at 3:00 a.m. the day after it was due. They also
seek to strike McDowell’s motion for partial summary judgment for being 30 days late.
There is good cause for the late filing of the response brief as McDowell’s counsel
encountered technical problems with the e-filing system. The brief was only three hours

Memorandum Decision & Order – page 11

late and there was no prejudice as a result of the late filing. The Court will deny the
motion to strike the response brief.
McDowell offers no reason, however, for filing his motion for partial summary
judgment 30 days late. Accordingly, the motion to strike that motion will be granted.
Correspondingly, McDowell’s motion for extension of time will be granted in part and
denied in part – it will be granted as to the response brief but denied as to the motion for
partial summary judgment (which was contained in a portion of the response brief).
Defendants filed a motion to dismiss any state law claims, and McDowell
conceded that the motion should be granted. The Court will therefore grant the motion to
dismiss all state law claims.
McDowell’s motion to file sur-reply brief is denied as moot.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for summary
judgment filed by defendants (docket no. 27) is DENIED.
IT IS FURTHER ORDERED, that the motion to strike (docket no. 33) is
GRANTED IN PART AND DENIED IN PART as set forth above.
IT IS FURTHER ORDERED, that the motion for extension (docket no. 36) is
GRANTED IN PART AND DENIED IN PART as set forth above.
IT IS FURTHER ORDERED, that the motion to file sur-reply brief (docket no.
35) is DENIED as moot.

Memorandum Decision & Order – page 12

IT IF FURTHER ORDERED, that the motion to dismiss all state law claims
(docket no. 23) is GRANTED.

DATED: January 18, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 13