Thomas v. Cassia County et al

Filing 70

MEMORANDUM DECISION AND ORDER. 1. The County and Heward's Motion for Summary Judgment (Dkt. 23 ) is GRANTED.2. Akers' Motion for Summary Judgment (Dkt. 24 ) is GRANTED in PART andDENIED in PART.3. The County and Heward's Motion to Strike (Dkt. 57 ) is GRANTED in PART andDENIED in PART. Signed by Judge David C. Nye. (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DEREK THOMAS,

Case No. 4:17-cv-00256-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CASSIA COUNTY, IDAHO, a political
subdivision of the State of Idaho, JAY M.
HEWARD, and MICHAEL AKERS,
Defendants.
I. OVERVIEW
There are three motions currently pending before the Court. First, is Defendants
Cassia County (“the County”) and Jay M. Heward’s (“Heward”) Motion for Summary
Judgment. Dkt. 23. Second, is Defendant Michael Akers’ (“Akers”) Motion for Summary
Judgment. Dkt. 24. Third, is the County and Heward’s Motion to Strike. Dkt. 57.
In the present case, Plaintiff Derek Thomas (“Thomas”) brings both state and
federal law claims. Specifically, Thomas brings claims under 41 U.S.C. § 1983, alleging
that Akers violated his First, Second, Fourth, Fifth, and Fourteenth Amendment rights.
Thomas brings related claims against Heward and the County, as well as claims under the
Idaho Tort Claims Act and Idaho common law. Oral argument was held on December 12,
2018, and the Court took all motions under advisement.

MEMORANDUM DECISION AND ORDER – 1

For the reasons set forth below, the Court now GRANTS the County and
Heward’s Motion for Summary Judgment (Dkt. 23), GRANTS in PART and DENIES in
PART Akers’ Motion for Summary Judgment (Dkt. 24), and GRANTS in PART and
DENIES in PART the County and Heward’s Motion to Strike (Dkt. 57).
II. FACTS
On December 31, 2016, Akers—then a deputy with the Cassia County Police
Department—responded to a hit and run call in Burley, Idaho. Akers had been a member
of the police department since 2010 and had completed all training required by the State
of Idaho. Dkt. 48-1, at 1-2.
The hit and run call to which Akers responded originated from a report made by
Thomas’ third-cousin, a fifteen-year-old boy referred to as “S.K.” Akers drove to S.K.’s
residence where he interviewed both S.K. and his grandfather, Harold Povlesen. S.K. told
Akers that, while he was riding his motorized bicycle, Thomas struck the back tire of his
bicycle with his pickup truck and drove off. Povlesen was able to partially corroborate
S.K.’s account, by explaining that—while sitting in his home—he could hear S.K.’s bike
approaching. Povlesen thought it sounded like S.K.’s bike “missed a beat” and then he
heard another vehicle accelerating. Dkt. 38-13, at 7. Povlesen stepped outside and saw
Thomas’ pickup truck driving away from S.K. Although Povlesen did not specifically see
Thomas as the driver, he was confident that it was Thomas’ truck because he was so
familiar with Thomas and his vehicle.
Akers then examined S.K.’s bike. The tire appeared ruptured, and green slime—
which is used to prevent flat tires by quickly filling small punctures—was sprayed along
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the back of the bicycle. The same slime was also sprayed on S.K.’s clothing, which Akers
believed further corroborated the allegation.
Prior to receiving this call, Akers had interacted with Thomas on numerous
occasions. Thomas worked as a tow-truck driver, and regularly interacted with police
officers in that capacity. Thomas also claims that on “several prior occasions,” Akers
“aggressively confronted” him and asserted that it was illegal for Thomas to openly carry
a firearm in public. Dkt. 6, at 2-3. On each of these occasions, Akers allegedly required
Thomas to remove his firearm and put it away. Id. Akers claims he complained to
Sherriff Heward regarding these encounters, but Heward did not punish Akers or do
anything to correct his behavior.
After speaking with S.K. and Povlesen, Akers drove to Thomas’ home, and was
invited inside by Thomas’ wife. She informed Akers that Thomas had been home for
about fifteen or thirty minutes. When Thomas came out of his bedroom, he told Akers
that he had been sleeping for two hours. Akers then asked Thomas about S.K.’s report
and Thomas denied the allegations. Following this denial, Akers told Thomas to get his
shoes because he was taking him into custody for a “hit and run.” Dkt. 38, ex. 15 (body
camera footage). As Thomas went to grab his shoes, he told Akers “you need to call Cole
[Blauer] because he was with me earlier. I’ve got a witness.” Id. Akers did not
immediately follow up with this claim, and instead, proceeded with the arrest.

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Pursuant to Cassia County policy,1 Akers handcuffed Thomas with Thomas’ arms
placed behind his back. At the time of the initial handcuffing, Thomas did not inform
Akers that he had a shoulder injury, nor did he say anything that would indicate the
handcuffs were causing pain or discomfort. However, as Akers attempted to place
Thomas in his patrol vehicle, Thomas complained of shoulder pain, and requested that
Akers instead handcuff him with his arms placed in front. Akers explained that—per
department policy—he could not handcuff him with his hands in front but could add a
second set of handcuffs to mitigate the shoulder pain. Akers proceeded to do so, and
Thomas was placed in the squad car without any further indication of pain or discomfort.
Thomas now claims that the manner in which Akers handcuffed him and placed him in
the patrol vehicle caused a shoulder injury that ultimately required surgery.
Thomas was taken to Cassia County jail. For a period of time immediately
following Thomas’ arrest, Akers accidentally left his body camera on. This camera
captured Akers discussing the arrest with fellow officers. Akers stated to one officer:
“Between you me and the walls, I don’t like Derek Thomas.” Dkt. 38, ex. 15. When
another officer asked Akers about the incident, Akers informed the officer that it was
S.K. who made the report, and stated: “Yeah, I know, [S.K.’s] kind of a turd himself.” Id.
Shortly thereafter, another officer asked, “is [S.K.] the one who’s got a mental
handicap?” to which Akers responded, “yeah.” Id.

1

It is Cassia County policy to handcuff suspects when they are transported in the back of police
cars. The policy requires suspects to be handcuffed with their arms placed behind their backs for
officer safety. Dkt. 48-1, at 3.

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In discussing the proper charge during a telephone conversation with a prosecutor,
the camera captured Akers saying, “at a minimum it’s a hit and run . . . [but] I’m thinking
there is enough for ag[gravated] assault if you think there’s enough there.” Id. Shortly
thereafter, Akers said to a fellow officer, “the odds of us getting a conviction out of this
are pretty slim. But it would be nice to get a conviction because then we could get his
guns. . . . we’re always getting reports of him making threats.” Id.
Because of the three-day holiday weekend, Thomas spent four days in jail before
going before a judge. After his initial appearance, he was released from jail on a $75,000
bond.
Cassia County Prosecutor, Douglas Abenroth, reviewed the evidence against
Thomas on January 3, 2017. Following his review, he decided to charge Thomas with
aggravated assault and to include a deadly weapon enhancement. These charges were
later reduced to an infraction for improper equipment, to which Thomas pleaded guilty.
Although Sherriff Heward did not conduct a formal investigation into Akers
actions, he did review the relevant police reports, watched Aker’s body camera videos,
and discussed the matter with him. Heward concluded that, although he might have
handled things differently, Akers’ actions did not violate Cassia County policies, and no
disciplinary action was taken.
On June 12, 2017, Thomas filed the instant action.
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.
MEMORANDUM DECISION AND ORDER – 5

Civ. P. 56(a). The 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.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In
considering a motion for summary judgment, the Court must “view[] the facts in the nonmoving 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, the 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 precludes
summary judgment. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir.
2001).
IV. ANALYSIS
Thomas’ Amended Complaint alleges Akers violated the First, Second, Fourth,
Fifth, and Fourteenth Amendments. Akers has moved for summary judgment on all
claims.
A. Thomas’ Causes of Action under §1983
1. Unlawful Arrest

MEMORANDUM DECISION AND ORDER – 6

Thomas claims that his warrantless arrest was unconstitutional. Specifically, he
argues that Akers lacked a warrant and probable cause to make the arrest, thereby
violating his Fourth Amendment rights.
a. Applicable Law
“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 & County of San Francisco, 266 F.3d 959, 964-64 (9th Cir.
2001). “An officer will not be held to have committed a violation of a defendant’s Fourth
Amendment right to be free from unlawful arrest if the arrest was carried out with
probable cause.” Wilson v. City of Coeur D’Alene, (D. Idaho Nov. 19, 2010) (citing
Grant v. City of Long Beach, 315 F.3d 1081, 1089 (9th Cir. 2002)).
“Probable cause exists when, under the totality of the circumstances known to the
arresting officers (or within the knowledge of the other officers at the scene), a prudent
person would believe the suspect had committed a crime.” Dubner, 266 F.3d at 966.
Importantly, an officer’s subjective motivations for carrying out the arrest do not
invalidate the arrest, “as long as the circumstances, viewed objectively, justify that
action.” Whren v. United States, 517 U.S. 806, 813 (9th Cir. 1996).
Additionally, “while States are free to regulate [warrantless] arrests however they
desire, state restrictions do not alter the Fourth Amendment’s protections.” Virginia v.
Moore, 553 U.S. 164, 176 (2008). Thus, even if an arrest violates state law, that does not
automatically mean it violates the Fourth Amendment, as state law may provide
enhanced protections. See Martinez-Medina v. Holder, 673 F.3d 1029, 1037 (9th Cir.
MEMORANDUM DECISION AND ORDER – 7

2011) (“Even though the officers violated state law when they arrested Moore, that state
law violation did not constitute a Fourth Amendment violation.”); see also Moore, 553
U.S., at 175 (“Incorporating state-law arrest limitations into the Constitution would
produce a constitutional regime no less vague and unpredictable than the one we
rejected” in Atwater v. Lago Vista, 532 U.S. 318 (2001)).
Accordingly, whether Idaho law permits warrantless arrests for misdemeanors
committed outside of an officer’s presence is immaterial here, because under federal law,
warrantless arrests based upon probable cause can be legal even if the alleged crime was
committed outside of the officer’s presence. See Barry v. Fowler, 902 F.2d 770, 772 (9th
Cir. 1990). “The requirement that a misdemeanor must have occurred in the officer’s
presence to justify a warrantless arrest is not grounded in the Fourth Amendment.” Id.
“Thus, the vitality of [a] section 1983 action is not dependent on whether [an officer] was
present when . . . the misdemeanor [was committed]. Rather, the crucial inquiry is
whether [the officer] had probable cause to make the arrest.” Id.
Although the existence of probable cause is highly dependent on the facts of each
case, “whether a reasonable officer could have believed probable cause . . . existed to
justify a search or an arrest is an essentially legal question that should be determined by
the district court at the earliest possible point in the litigation.” Peng v. Hu, 335 F.3d 970,
979-80 (9th Cir. 2003) (citations and punctuation omitted). Accordingly, “where the
material, historical facts are not in dispute, and the only disputes involve what inferences
properly may be drawn from those historical facts, it is appropriate for th[e] court to
decide whether probable cause existed at the time [of the arrest].” Id.
MEMORANDUM DECISION AND ORDER – 8

b. Analysis
At the time of Thomas’ arrest, Akers informed him that he was taking him into
custody for a hit and run violation. Presumably Akers was referring to Idaho Code
section 49-1301, which states:
“The driver of any vehicle involved in an accident, either on public or private
property open to the public, resulting only in damage to a vehicle which is
driven or attended by any person shall immediately stop the vehicle at the
scene of the accident, or as close as possible, and shall immediately return
to, and in every event shall remain at, the scene of the accident until he has
fulfilled the requirements of law. . . . Any person failing to stop or to comply
with the requirements under these circumstances shall be guilty of a
misdemeanor.”
It should be noted that “[b]ecause the probable cause standard is objective,
probable cause supports an arrest so long as the arresting officers had probable cause to
arrest the suspect for any criminal offense, regardless of their stated reason for the arrest.”
United States v. Struckman, 603 F.3d 731, 741 (9th Cir. 2010). However, the officer’s
stated reason for the arrest is a good place to begin this inquiry. Akers told Thomas that
he was arresting him for hit and run, and based upon the undisputed facts of the case, the
Court finds that he had probable cause to do so.
In viewing the totality of circumstances known to Akers at the time of the arrest, a
prudent officer could have believed Thomas was guilty of leaving the scene of an
accident. First, S.K. told Akers that Thomas hit him with his truck. This account was
corroborated by S.K. grandfather, who told Akers that he saw Thomas’ truck speeding
away from the scene. Akers also examined S.K.’s bike, which had a damaged tire. He

MEMORANDUM DECISION AND ORDER – 9

also observed green tire slime on the back of S.K,’s clothing, which was consistent with
S.K.’s account of his bike being hit from behind.
Akers then went to Thomas’ house and was informed by Thomas’ wife that he had
only been home for 15-30 minutes. Shortly thereafter, Thomas contradicted his wife’s
statement by claiming he had been home (and asleep) for two hours. This further
supported Akers’ suspicions that S.K.’s allegation was true because such an
inconsistency could reasonably be viewed as Thomas trying to falsify an alibi.
Admittedly, the fact that Thomas’ truck was not splattered with green tire slime
perhaps undermines S.K.’s story. However, there are plausible theories that could explain
the lack of green slime besides Thomas not being involved in the incident (e.g. Thomas
wiped any green slime off his truck once he returned home). This oddity, standing alone,
is not enough to overcome a finding of probable cause.
Thomas also asserts that at the time of S.K.’s report, Akers was aware that S.K.
had a reputation for untruthfulness and a strained relationship with Thomas, which
undercuts his claim that probable cause existed. The Court, however, finds this argument
unconvincing. While Akers was at least somewhat familiar with S.K. and Thomas prior
to the events in question—and may have even known of their strained relationship2—that

2

For example, during his deposition, S.K. explained that when Akers’ responded to his call, S.K.
recognized him from prior interactions stemming from “other problems that I’ve had with
[Thomas].” Dkt. 38-11, at 17. Akers also believed that S.K. had some sort of mental and/or
behavioral deficiency. Shortly after Thomas’ arrest, Akers’ body cam captured him telling
another individual that S.K. is a “turd.” He also replied “yeah” when another officer asked him if
S.K. had a mental handicap.

MEMORANDUM DECISION AND ORDER – 10

does not automatically delegitimize his finding of probable cause. S.K.’s reliability was
simply one relevant consideration in Akers’ investigation.
Importantly, Akers did not rely solely on S.K.’s statement to establish probable
cause. He also interviewed Povlesen, who informed him that he saw Thomas’ truck
speeding away from the scene. He then examined S.K.’s clothing and bicycle and found
physical evidence that corroborated the allegation. He then spoke with Thomas and his
wife, who contradicted each other regarding how long Thomas had been home. Even
construing the facts in the light most favorable to Thomas (and presuming Akers’ had
reasons to doubt S.K.’s reliability), Akers’ investigation still uncovered sufficient
corroborating material to bolster S.K.’s credibility and establish probable cause.
Thomas, however, argues that Akers’ pre-arrest investigation was insufficient, and
that a finding of probable cause is improper because there was so much more Akers could
have done to investigate S.K.’s report. It is true that—in various cases—the Ninth Circuit
has found that probable cause had not been established because there was “much else the
officers could have done.” See, e.g., Frunz v. City of Tacoma, 468 F.3d 1141, 1146 (9th
Cir. 2006).
However, after reviewing the relevant case law, the Court finds that Akers’ prearrest investigation was sufficient to establish probable cause. He did not simply rely on
the claim of one citizen witness.3 Nor did he fail to examine the scene or relevant items

3

As discussed in Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991).

MEMORANDUM DECISION AND ORDER – 11

for physical evidence that could corroborate S.K.’s allegation.4 As recounted above, his
investigation was much more thorough than that.
There will likely always be something more that officers can do when
investigating an alleged crime, but the probable cause standard simply requires enough
evidence to allow a prudent person to believe there is “a fair probability that the suspect
committed a crime.” United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984).
While Thomas’ guilt was by no means firmly established, the evidence Akers uncovered
during his investigation was enough to establish probable cause.
Finally, Thomas argues that even if probable cause existed, the arrest was still
unconstitutional because he was arrested inside of his home without a warrant. It is true
that the Fourth Amendment “generally prohibits the warrantless entry of a person’s
home, whether to make an arrest or to search for specific objects,” Illinois v. Rodriguez,
497 U.S. 177, 181 (1990). However, this prohibition “does not apply to situations in
which voluntary consent has been obtained, either from the individual whose property is
searched, or from a third party who possesses common authority over the premises.” Id.
(citations omitted). Here, Akers was invited inside by Thomas’ wife, thereby obviating
the need for a warrant to enter the home.
In sum, the Court finds that—based upon the information known to Akers at the
time—a reasonable officer could have found probable cause to arrest Thomas for hit and
run. While the Court is not convinced that Akers’ motivations were pure when he decided

4

As discussed in Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009).

MEMORANDUM DECISION AND ORDER – 12

to arrest Thomas, probable cause is an objective standard, and Akers’ subjective
motivations are irrelevant to this inquiry. Accordingly, Thomas’ arrest was not unlawful,
and the Court GRANTS Akers’ Motion for Summary Judgment on this claim.
2. Excessive Force
a. Applicable Law
This Court recently discussed the law that applies to excessive force claims:
When an arrestee “alleges excessive force during an investigation or arrest,
the federal right at issue is the Fourth Amendment right against unreasonable
seizures.” Tolan v. Cotton, 134 S. Ct. 1861, 1865, 188 L. Ed. 2d 895 (2014).
That amendment requires that officers use only an amount of force that is
“objectively reasonable in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Graham v.
Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)
(internal quotation marks omitted). Importantly, police officers are not
required to use the least amount of force necessary to arrest a suspect. Luchtel
v. Hagemann, 623 F.3d 975, 982 (9th Cir. 2010). . . . [W]hether an officer’s
use of force was objectively reasonable is based on the totality of the
circumstances. Graham, 490 U.S. at 396 (internal quotation marks and
citation omitted). The objective reasonableness inquiry requires “balancing
the nature and quality of the intrusion on a person’s liberty with the
countervailing governmental interests at stake.” Davis, 478 F.3d at 1053-54
(internal quotation marks omitted).
When analyzing excessive force claims, courts consider several
factors in this balancing test. First, the “quantum of force” used by the police
must be assessed. Id. at 1054. Second, the governmental interests at stake
must be analyzed in light of the following factors: (1) the severity of the
crime for which the plaintiff was arrested; (2) whether the plaintiff posed a
threat to the safety of the officers or others; (3) whether the plaintiff was
actively resisting arrest or attempting to flee; and (4) the availability of
alternative methods of subduing the plaintiff. Id.; see also Graham, 490 U.S.
at 396. . . .
Of these governmental interest factors, whether the suspect posed a
threat is the “most important single element.” Smith v. City of Hemet, 394
F.3d 689, 702 (9th Cir. 2005) (internal quotation marks omitted). If an
arrestee has “not in any way threatened [an officer or others] or indicated any
MEMORANDUM DECISION AND ORDER – 13

propensity for violent behavior,” it is likely that the use of substantial force
will be objectively unreasonable. Young, 655 F.3d at 1166.
If—after balancing “the gravity of the intrusion on the individual
against the government's need for that intrusion,” Espinosa v. City & Cty. of
S.F., 598 F.3d 528, 537 (9th Cir. 2010)—the reviewing court determines that
the force applied was objectively reasonable, summary judgment in favor of
the officers is appropriate. Contrarily, if the evidence, when viewed in the
light most favorable to the plaintiff, could reasonably support a finding that
the force used was objectively unreasonable, then the officers are not entitled
to summary judgment. Smith, 394 F.3d at 701.
Moore v. City of Boise, No. 1:16-cv-00346-BLW, *37-40 (D. Idaho March, 26, 2018).
“Determining whether a police officer’s use of force was reasonable . . . requires
careful attention to the facts and circumstances of each particular case and a careful
balancing of an individual’s liberty with the government’s interest in the application of
force.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (internal citations and
punctuation omitted). “Because such balancing nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit
has] held on many occasions that summary judgment or judgment as a matter of law in
excessive force cases should be granted sparingly.” Id. That said, defendants “can still
win on summary judgment if the district court concludes, after resolving all factual
disputes in favor of the plaintiff, that the officer’s use of force was objectively reasonable
under the circumstances.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1997).
b. Analysis
Thomas argues that Akers “cuffed [him] with such force that it tore [his] shoulder
tendons” and that any use of force was unreasonable in this case because Thomas’ arrest
was unconstitutional. Dkt. 52, at 11. However, since the Court has now determined that
MEMORANDUM DECISION AND ORDER – 14

Akers did, in fact, have probable cause to arrest Thomas, this argument (that any use of
force was unreasonable) is unavailing. Accordingly, some level of force may have been
reasonable, and the Court’s analysis moves on to the balancing test set forth above.
The Court first examines the “quantum of force” used. The Ninth Circuit has
found that “[i]t is well-established that overly tight handcuffing can constitute excessive
force.” Wall v. County of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004). However,
Thomas’ claim that Akers handcuffed him with excessive force is hard to accept—
particularly in light of the footage captured by Aker’s body camera. This footage is
significant because the Supreme Court has explained that “[a]t the summary judgment
stage, facts must be viewed in the light most favorable to the nonmoving party only if
there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372 (2007)
(quoting Fed. Rule Civ. Proc. 56(c)). Due to the clear video evidence available to the
Court, there is no genuine dispute as to the facts related to Thomas’ excessive force
claims, and the Court will view the relevant facts in the light depicted by the videotape.
See Scott, 550 U.S. at 380-81.
The video shows nothing more than a routine, non-violent handcuffing, carried out
in a reasonable manner. During this routine handcuffing, Thomas did not give any
indication of pain or discomfort. In fact, the video shows nothing that would have alerted
a reasonable officer that Thomas was experiencing pain until Akers attempted to place
Thomas in his patrol vehicle.5 When that occurred, Akers immediately allowed Thomas

5

Importantly, there is no indication in the record (nor does Thomas claim) that Akers was aware
that Thomas had a pre-existing shoulder injury before placing him in handcuffs.

MEMORANDUM DECISION AND ORDER – 15

to stand up, and added a second set of handcuffs to alleviate Thomas’ discomfort. Once
Akers’ did so, Thomas gave no further indication of pain or discomfort. Accordingly, the
quantum of force used was extremely low.
Next, the Court analyzes the government interests at stake in light of the following
factors: (1) the severity of the crime for which the plaintiff was arrested; (2) whether the
plaintiff posed a threat to the safety of the officers or others; (3) whether the plaintiff was
actively resisting arrest or attempting to flee; and (4) the availability of alternative
methods of subduing the plaintiff. See Davis, 478 F.3d at 1053-54.
Admittedly, the results of this analysis do not warrant the use of much force.
Leaving the scene of an accident is a misdemeanor and does not warrant heightened
force. Likewise, at the time of the arrest, Thomas did not pose a threat to the safety of
Akers or anyone else. He was compliant throughout the entire handcuffing and arrest
process, and never attempted to resist or flee.
That said, Akers hardly used any force at all. Simply placing an arrestee in
handcuffs to be transported to the police department—even when the arrestee is being
compliant—is a reasonable safety precaution that the government has an interest in
performing to protect themselves and others. See LaLonde v. County of Riverside, 204
F.3d 947, 964 (9th Cir.2000) (“Handcuffing an arrestee is standard practice,
everywhere.”). The manner in which Akers carried out the handcuffing was routine and
non-violent, and his reaction to Thomas’ expression of pain was swift and reasonable.

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The Court, therefore, GRANTS Akers’ Motion for Summary Judgment on this claim.6
3. Malicious Prosecution
To prevail on a malicious prosecution claim brought under §1983, Thomas must
show that (1) the defendants prosecuted him with malice, (2) the defendants lacked
probable cause, (3) the prosecution was done for the purposes of denying equal protection
or other constitutional rights and (4) that the underlying criminal case was terminated in
Thomas’ favor. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066, 1068 (9th Cir. 2004).
Since the Court has now determined that Akers had probable cause to arrest
Thomas, Thomas cannot establish the required elements of malicious prosecution.
Accordingly, the Court GRANTS summary judgment on this claim. See Beck v. City of
Upland, 527 F.3d 853, 865 (9th Cir. 2008) (“[I]t is necessary, if not sufficient, that a
plaintiff seeking to sue non-prosecutorial officials alleged to be responsible postcomplaint for the arrest or prosecution show the absence of probable cause.”).
4. First Amendment Claim
Thomas claims that Akers arrested and imprisoned him in retaliation for his past
challenges to Akers’ authority when Akers sought to prevent him from openly carrying
firearms in public. Although Defendants do not agree with Thomas regarding the nature

6

The Court’s decision to grant summary judgment is further supported by Thomas’ failure to
produce any medical documentation that proves his claimed injuries. See Arpin v. Santa Clara
Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (“Because Arpin failed to meet her
burden of proof of providing specific facts to show that the force used was unreasonable or that
she sustained actual injuries, the district court did not err in granting summary judgment to the
County Defendants.”) (emphasis added).

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of these prior interactions, for purpose of these summary judgment motions, the Court
construes the facts in the light most favorable to Thomas.
“[T]he First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987).
“[C]riticism of the police for what [an individual] perceived to be an unlawful [use of
authority] falls squarely within the protective umbrella of the First Amendment and any
action to punish or deter such speech . . . is categorically prohibited by the Constitution.”
Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990).
While an individual’s critical comments may be “provocative and challenging,”
they are “nevertheless protected against censorship or punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest.” Id. (quoting Terminiello v. City of Chicago, 337
U.S. 1, 4 (1949)). In fact, “[t]he freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the principal characteristics by
which we distinguish a free nation from a police state.” Id. at 462-63.
An individual has a right “to be free from police action motivated by retaliatory
animus but for which there was probable cause.” Skoog v. County of Clackamas, 469
F.3d 1221, 1235 (9th Cir. 2006). As such, even if Akers had probable cause to arrest
Thomas, he may have still violated Thomas’ First Amendment rights if the arrest was
actually made in retaliation for Thomas’ protected speech.7 Thus, the First Amendment

7

The Supreme Court of the United States heard oral argument on November 26, 2018, in a case
challenging the Ninth Circuit’s holding that a plaintiff can still prevail on a retaliatory arrest

MEMORANDUM DECISION AND ORDER – 18

analysis differs from the probable cause analysis conducted above, because Akers’
subjective motivations become relevant.
In order to establish a claim of retaliation in violation of the First Amendment,
Thomas must show two things: first, “that the officers’ conduct would chill a person of
ordinary firmness from future First Amendment activity,” and second, “that the officers’
desire to chill his speech was a but-for cause of their allegedly unlawful conduct.” See
Lacey v. Maricopa County, 693 F.3d 896, 916-17 (9th Cir. 2012) (en banc).
i.

Chilled Speech

In Ford v. City of Yakima, the Ninth Circuit examined a First Amendment
retaliation claim, and found that “a person of ordinary firmness would be chilled from
future exercise of his First Amendment rights if he were booked and taken to jail in
retaliation for his speech.” 706 F.3d 1188. Clearly, if—as Thomas claims—Akers’
decision to arrest him was made with retaliatory animus, such action would chill a person
of ordinary firmness from challenging improper police conduct in the future.
Accordingly, Thomas has satisfied the first element.
ii.

Causation

To satisfy the second element, Thomas must present sufficient evidence to
establish that Akers’ desire to chill his speech was a but-for cause of his conduct. In other
words, the Court must ask whether Akers would have arrested and sought to bring

claim even if the officers had probable cause to make the arrest. Nieves v. Bartlett, 138 S. Ct.
2709 (2018). A decision has not yet been issued, but the outcome of that case could very well
affect the outcome of this case. However, as the Ninth Circuit’s holding remains good law as of
now, the Court adheres to the existing standard.
MEMORANDUM DECISION AND ORDER – 19

charges against Thomas but for his desire to punish Thomas for his speech. Here, despite
Akers having probable cause to arrest Thomas, some of his subsequent statements cast
doubt over his motivations. Particularly concerning to the Court is the video evidence that
shows Akers’ admitting he did not like Thomas, that he thought the odds of getting a
conviction on the aggravated assault charge were “slim,” and admitting that he would like
to get a felony conviction in order to get Thomas’ guns taken away from him.
In light of these statements, a genuine issue for trial exists on this claim. A
reasonable jury could find that—despite the existence of probable cause—Akers had a
retaliatory motive that was a but-for cause of his actions. Accordingly, the Court
DENIES Akers’ Motion for Summary Judgment on this claim.
5. Second Amendment Claims
Thomas’ Amended Complaint appears to contain two Second Amendment claims:
a retaliation claim, and an attempted deprivation claim. First, Thomas contends that
Akers’ decision to arrest him was motivated by the desire “to retaliate against and punish
[him] for his prior exercise of his Second Amendment right to openly carry a sidearm on
his own property.” Dkt. 6, at 5. Next, Thomas claims that Akers’ actions were also
motivated by a desire to “prevent [him] from similarly exercising his . . . Second
Amendment rights in the future.” Id. The Court considers each claim in turn:
a. Second Amendment Retaliation
“The Government is prohibited from retaliating for the lawful exercise of
constitutional rights.” Louisiana Pac. Corp. v. Beazer Materials & Servs., Inc., 842 F.
Supp. 1243, 1256 (E.D. Cal. 1994). However, “[s]ection 1983 retaliation claims are
MEMORANDUM DECISION AND ORDER – 20

usually based on First Amendment activities.” Horn v. City of Covington, No. CV 14-73DLB-CJS, 2018 WL 3865377, at *8 (E.D. Ky. Aug. 14, 2018). As a result, case law
addressing Second Amendment retaliation claims is sparse, and the Court is not aware of
a case in which the Ninth Circuit has directly analyzed a Second Amendment retaliation
claim. However, a brief examination of the analytical frameworks applied to retaliation
claims throughout the country, including within the Ninth Circuit, is instructive.
The Sixth Circuit has explained that “[r]etaliation claims arise in any number of
contexts. The essence of such a claim is that the plaintiff engaged in conduct protected by
the Constitution . . . the defendant took an adverse action against the plaintiff, and this
adverse action was taken (at least in part) because of the protected conduct.” Thaddeus-X
v. Blatter, 175 F.3d 378, 386-87 (6th Cir. 1999). The Third Circuit analyzes
constitutional retaliation claims under a similar three-part test. See Eichenlaub v. Twp. of
Ind., 385 F.3d 274, 282 (3d Cir. 2004) (“Plaintiff must prove (1) that he engaged in
constitutionally-protected activity; (2) that the government responded with retaliation;
and (3) that the protected activity caused the retaliation.”).
These frameworks closely resemble the Ninth Circuit’s approach to retaliation
claims in other settings. The Court already laid out the Ninth Circuit’s general test for
First Amendment retaliation claims above. Similarly, to establish a First Amendment
retaliation claim in the student speech context, a plaintiff must show that “(1) he was
engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a
person of ordinary firmness from continuing to engage in the protected activity and (3)
the protected activity was a substantial or motivating factor in the defendant’s
MEMORANDUM DECISION AND ORDER – 21

conduct.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006) (citations
omitted). In the realm of employment law, “[t]o make out a prima facie case of
retaliation, an employee must show that (1) he engaged in a protected activity; (2) his
employer subjected him to an adverse employment action; and (3) a causal link exists
between the protected activity and the adverse action.” Ray v. Henderson, 217 F.3d 1234,
1240 (9th Cir. 2000) (citation omitted).
These cases demonstrate that—in any context—retaliation claims are analyzed in a
similar manner within the Ninth Circuit and throughout the country. As such, the Court
finds that drawing from, and adapting, the Ninth Circuit’s approach to First Amendment
retaliation claims is appropriate here. Thus, for Thomas to succeed on his Second
Amendment retaliation claim, he must establish three things: (1) that he engaged in a
constitutionally protected activity, (2) that Akers’ actions would chill a person of
ordinary firmness from engaging in future Second Amendment activity, and (3) the
protected activity was a but-for cause of Akers’ conduct.
Under the first two factors, Thomas has set forth sufficient allegations to survive
summary judgment. Thomas claims that on multiple occasions prior to his arrest, Akers
“aggressively confronted” him while he was openly carrying a firearm in public, and
asserted that it was illegal for Thomas to do so. On each of these occasions, Akers
allegedly required Thomas to remove his firearm and put it away. Dkt. 6, at 2-3. Since
these alleged altercations, the Ninth Circuit has clarified that the right to openly carry a
firearm for self-defense is protected by the Second Amendment. Young v. Hawaii, 896
F.3d 1044 (9th Cir. 2018). As such, these allegations are enough to show that Thomas
MEMORANDUM DECISION AND ORDER – 22

was engaged in a constitutionally protected activity.8 Likewise, if—as Thomas claims—
Akers’ decision to arrest him was made with retaliatory animus, such action would chill a
person of ordinary firmness from engaging in future Second Amendment activity.
Additionally, the Court finds that a genuine issue for trial exists on whether a butfor cause of Akers’ decision to arrest Thomas was a desire to retaliate for Thomas’ prior
exercise of his Second Amendment rights. This finding is supported by Akers’ alleged
aggressive confrontations with Thomas in which he required Thomas to put away his
firearms, as well as his unintentionally recorded statements indicating that he does not
like Thomas, that he thought the odds of getting a conviction on the aggravated assault
charge were “slim,” and that he would like to get a felony conviction in order to get
Thomas’ guns taken away from him.
Akers’ contends that he is entitled to qualified immunity on Thomas’ Second
Amendment claim because the Ninth Circuit did not clearly establish that the right to
openly carry a firearm for self-defense was protected by the Second Amendment until
July 24, 2018, in Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018). The Court disagrees.

8

Akers argues that Thomas may not have had a right to possess a firearm in the first place,
because he was convicted of a felony in 2011. It is true that convicted felons do not have a
constitutional right to bear arms (see United States v. Vongxay, 594 F.3d 1111, 1117-18 (9th Cir.
2010)), and there is nothing in the record that clarifies whether Thomas’ felony conviction was
expunged prior to the events in question. However, under Idaho law (and subject to limited
exceptions that do not apply here), a convicted felon’s full rights of citizenship are generally
restored at the conclusion of their sentence. Idaho Code §§ 18-310(1), (2). Because there is
nothing in the record to indicate otherwise, the Court presumes for purposes of the pending
motions that Thomas’ sentence stemming from his felony conviction had run its course, and that
the state of Idaho had fully restored his rights—including his right to possess firearms.

MEMORANDUM DECISION AND ORDER – 23

“Qualified immunity is ‘an entitlement not to stand trial or face the other burdens
of litigation.’” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)). It protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights about which a reasonable person would have known. Mattos v.
Agarano, 661 F.3d 433, 440 (9th Cir. 2011).
Akers is entitled to such relief only if the facts alleged and evidence submitted,
resolved in Thomas’ favor and viewed in the light most favorable to him, show that the
offending conduct did not violate a federal right; or, if it did, the scope of that right was
not clearly established at the time. See, e.g., Beier v. City of Lewiston, 354 F.3d 1058,
1064 (9th Cir. 2004). If no violation of a constitutional right is found, Thomas cannot
prevail. “On the other hand, if there is a violation (or if there is a triable question of fact
in that regard), then [the Court] must determine whether that constitutional violation was
clearly established at the time.” Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th
Cir. 2007).
Here, Akers’ qualified immunity argument misses the mark. Although “there is
something particularly unfair about holding officials liable for conduct that they did not
(and could not) know was unlawful at the time they decided to act,” (Rhodes v. Robinson,
408 F.3d 559, 570 (9th Cir. 2005) (emphasis in original)), that is not the case here.
Thomas is not seeking to hold Akers liable for the act of requiring him to put his guns
away. Thomas is seeking to hold Akers liable for the act of retaliation. Thus, Akers is
only entitled to qualified immunity if it was not clearly established that retaliating for the
MEMORANDUM DECISION AND ORDER – 24

exercise of constitutionally protected activities was prohibited. Clearly that is not the
case, because—long before the events in question—the Ninth Circuit specifically stated
that “the prohibition against retaliatory punishment is clearly established law . . . for
qualified immunity purposes.” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)
(punctuation omitted). Accordingly, the Court DENIES Akers’ Motion for Summary
Judgement as it relates to Thomas’ Second Amendment retaliation claim.
b. Attempted Deprivation
Thomas contends that in addition to his retaliatory animus, Akers actions were
motivated by a desire to deprive Thomas of his guns, and “prevent him from exercising
his . . . Second Amendment rights in the future.” Dkt. 6, at 5. In his Memorandum in
Opposition to Summary Judgment, he states that Akers wanted to “‘get [Thomas’] guns
taken away from him.’ All of them. All the time. Regardless of his location in or outside
his home. That is exactly what would have happened had Akers been successful in his
plot.” Dkt. 52, at 15 (emphasis added). This argument, however, is not enough to sustain
a Second Amendment deprivation claim.
In order to state a viable cause of action under 42 U.S.C. § 1983, Thomas “must
show the actual deprivation of [his] rights—an attempted deprivation alone is
insufficient.” Bari v. Held, 1992 U.S. Dist. LEXIS 13634, *22 (N.D. Cal. Aug. 31, 1992)
(citing Andree v. Ashland County, 818 F.2d 1306, 1311 (7th Cir. 1987)); see also Yan Sui
v. Marshack, No. SACV 13–1607 JAK (AJW), 2015 WL 1637424, at *5 (C.D. Cal. Feb.
4, 2015) (“[P]laintiffs have cited no authority for the proposition that an ‘attempted’
violation of their Fifth Amendment or section 1983 rights is actionable, and the Court has
MEMORANDUM DECISION AND ORDER – 25

found no authority for the existence of liability for an attempted violation of those
rights.”).
Here, even if Akers intended to deprive Thomas of his Second Amendment rights,
no deprivation actually occurred as a result of his actions.9 Accordingly, the Court
GRANTS Akers’ Motion for Summary Judgment as it relates to Thomas’ Second
Amendment deprivation claim.
6. Fifth and Fourteenth Amendment Claims
As an initial matter, “[t]hat the Fifth Amendment applies only to the acts of the
federal government is settled beyond doubt.” Johnston v. Earle, 245 F.2d 793, 796 n.5
(9th Cir. 1957). As there are no federal actors involved here, the Fifth Amendment is
inapplicable. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due
Process Clause of the Fifth Amendment prohibits the United States, as the Due Process
Clause of the Fourteenth Amendment prohibits the States, from depriving any person of
property without due process of law.”). Accordingly, the Court considers only Thomas’
Fourteenth Amendment claim.
Unfortunately, the nature of this claim is not well defined in Thomas’ Amended
Complaint. At the very least, Thomas seems to contend that Akers violated the
Fourteenth Amendment when he (Akers) arrested Thomas without a warrant or probable

9

Thomas’ Concealed Weapons Permit was revoked at some point after the incident in question.
However, the permit was revoked pursuant to a civil protection order that, according to Thomas,
was entered in June of 2017. Dkt. 38-2, at 5-6. The issuance of that order was so far removed
from Akers’ conduct and Thomas’ December 31, 2016, arrest that it cannot sustain Thomas’
Second Amendment deprivation claim.
MEMORANDUM DECISION AND ORDER – 26

cause, thereby leading to four days of imprisonment. However, because Akers had
probable cause to arrest Thomas, this claim is without merit.
Additionally, Thomas’ Memorandum in Opposition to Summary Judgment does
not include any argument in support of his Fourteenth Amendment claim, nor did he
make such arguments at the motion hearing held on December 12, 2018. Accordingly,
Thomas has abandoned his Fourteenth Amendment claim. See Shakur v. Schriro, 514
F.3d 878, 892 (9th Cir. 2009) (explaining “a plaintiff . . . abandoned . . . claims by not
raising them in opposition to [the defendant’s] motion for summary judgment”) (quoting
Jenkins v. Cty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005)); Knowles v.
Hawai’i Pac. Univ., Civ. No. 1600678ACKKSC, 2018 WL 3370520, at *7 (D. Haw. July
10, 2018) (“By failing to make any argument regarding the claim, Plaintiff has
abandoned it.”). As such, there is no genuine issue for trial, and the Court GRANTS
summary judgment on Thomas’ Fifth and Fourteenth Amendment claims.
7. Municipal Liability
Thomas’ Amended Complaint claims that the County had an official policy or
custom that permitted law enforcement officers “to make warrantless arrests without
probable cause of individuals and to make false or unsupported criminal allegations,
charges and prosecutions against citizens in order to punish them for exercising their First
Amendment rights to express their disagreement with its officers and to unlawfully
deprive them of their firearms.” Dkt. 6, at 5. Since the Court has now determined that
Akers had probable cause to arrest Thomas, and that Thomas was not unlawfully

MEMORANDUM DECISION AND ORDER – 27

deprived of his firearms, the Court need only consider this claim as it relates to Thomas’
constitutional retaliation claims.
a. Applicable Law
“Municipalities, their agencies, and their supervisory personnel cannot be held
liable under section 1983 on a theory of respondeat superior. They can, however, be held
liable for deprivations of constitutional rights resulting from their policies or customs.”
Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir. 1986)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978)).
The Ninth Circuit has explained that a section 1983 plaintiff may establish
municipal liability in one of three ways:
First, the plaintiff may prove that a city employee committed the alleged
constitutional violation pursuant to a formal governmental policy or a
longstanding practice or custom which constitutes the standard operating
procedure’ of the local governmental entity. . . .
Second, the plaintiff may establish that the individual who committed the
constitutional tort was an official with “final policy-making authority” and
that the challenged action itself thus constituted an act of official
governmental policy. . . .
Third, the plaintiff may prove that an official with final policy-making
authority ratified a subordinate’s unconstitutional decision or action and the
basis for it.
Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (internal citations and
punctuation omitted). That Akers did not have final policy-making authority is not in
dispute, and the Court need not consider it here.
Importantly, municipalities are not immune from liability for “good faith
constitutional violations.” Owen v. City of Independence, Mo., 445 U.S. 622, 650 (1980).
MEMORANDUM DECISION AND ORDER – 28

Similarly, a “municipality may not assert the good faith of its officers or agents as a
defense to liability under § 1983,” because “municipalities have no immunity from
damages liability flowing from their constitutional violations.” Id. at 638, 657.
Accordingly, although Akers and Heward may assert qualified immunity as a defense, the
County cannot.
b. Analysis
i.

Proof of Policy or Custom

To prevail on this theory, Thomas must prove “the existence of a widespread
practice that . . . is so permanent and well settled as to constitute a ‘custom or usage’ with
the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (internal quotations
omitted). Additionally, “a section 1983 plaintiff may attempt to prove the existence of a
custom or informal policy with evidence of repeated constitutional violations for which
the errant municipal officials were not discharged or reprimanded.” Gillette, 979 F.2d, at
1349.
Here, Thomas has not shown that the constitutional violations Akers allegedly
committed against him were widely practiced within the County, or so well-settled as to
constitute a custom. In fact, Thomas has not alleged a single instance of similar conduct
being carried out by employees other than Akers.
However, Thomas correctly contends that the offending policy can be one of
inaction. See City of Canton v. Harris, 489 U.S. 377-78 (1989) (failure to train), Oviatt v.
Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (“The need for different procedures was so
obvious that [the Sherriff’s] adamant refusal to take action amounted to deliberate
MEMORANDUM DECISION AND ORDER – 29

indifference to the detainees’ constitutional rights.”). Under an “inaction” policy claim,
“a plaintiff can allege that through its omissions the municipality is responsible for a
constitutional violation committed by one of its employees.” Long v. County of Los
Angeles, 442 F.3d 1178, 1185-86 (9th Cir. 2006).
“To impose liability against a county for its failure to act, a plaintiff must show:
(1) that a county employee violated the plaintiff’s constitutional rights; (2) that the county
has customs or policies that amount to deliberate indifference; and (3) that these customs
or policies were the moving force behind the employee’s violation of constitutional
rights.” Long, 442 F.3d at 1186. Here, the Court has already determined that a genuine
issue for trial exists regarding Thomas’ constitutional retaliation claims. As such, Thomas
has satisfied the first element of an “inaction” policy claim.
In Canton, the Supreme Court held that a municipality’s failure to train its
employees can constitute the requisite inaction by the municipality. 489 U.S. at 392. “In
order to prevail on such a claim, [Thomas] must show that [the County’s] failure to train
amounted to deliberate indifference.” Canell v. Lightner, 143 F.3d 1210, 1214 (9th Cir.
1998).
To establish deliberate indifference, Thomas must allege facts showing the County
“disregarded the known or obvious consequence that a particular omission in their
training program would cause [municipal] employees to violate citizens’ constitutional
rights.” Connick v. Thompson, 563 U.S. 51, 60 (2011). Generally, a pattern of similar
constitutional violations by untrained employees is necessary to meet this requirement.
Id. at 62. Here, Thomas has not shown such a pattern, and as already noted, he has not
MEMORANDUM DECISION AND ORDER – 30

alleged a single instance of similar conduct being carried out by employees other than
Akers.10
Thus, even though “[w]hether a local government entity has displayed a policy of
deliberate indifference is generally a question for the jury,” Oviatt, 954 F.2d at 1478, the
Court finds that Thomas’ allegations—even if true—are not enough to allow a reasonable
jury to find that the County acted with deliberate indifference towards its officers’
training.
Additionally, even if the Court were to assume, arguendo, that the County had
acted with deliberate indifference, there is nothing to suggest that the County’s custom or
policy was “the moving force behind [Akers’] violation of constitutional rights.” Long,
442 F.3d at 1186. For a policy to be the moving force behind the deprivation of a
constitutional right, “the identified deficiency in the policy must be closely related to the
ultimate injury. . . . The plaintiff’s burden is to establish that the injury would have been
avoided had proper policies been implemented.” Id. at 1190 (citations and punctuation
omitted).
Once again, Thomas comes up short. At this point, his only potentially viable
claims involve constitutional retaliation. However, he has provided no logical nexus

10

Likewise, even though the County cannot raise qualified immunity as a defense, if Thomas’
contention is that the County should have provided training regarding the Second Amendment
right to openly carry a firearm in public, the consequences of such a deficiency in their training
program could not reasonably be considered “known or obvious” in 2016 because the Ninth
Circuit had not clearly established that the Second Amendment included that right until 2018.

MEMORANDUM DECISION AND ORDER – 31

connecting the County’s policies or customs to Akers’ alleged retaliation. In fact, in
support of his “inaction” theory, Thomas states:
The County’s policies caused or materially contributed to Mr. Thomas’
constitutional deprivations in several respects. Mr. Thomas had complained
to Sheriff Heward before December 26, 2016 about Akers, on three or four
prior occasions, when Akers disarmed him in violation of his legal rights. . .
. Defendant Heward took no action to correct Akers’ conduct, provided no
training to his deputies, and implemented no policies that to ensure the
protection of County residents’ gun rights.
Dkt. 53, at 5.
The problem for Thomas, however, is that his remaining claims for which the
County could be held liable (i.e. the “ultimate injury” at issue here) are constitutional
retaliation claims—not a deprivation of Thomas’ Second Amendment right to bear arms.
Thus, even if his allegations are true, he has provided no basis for finding that the
County’s policies and procedures were the moving force behind Akers’ alleged
constitutional retaliation. Accordingly, the Court finds that Thomas cannot establish
municipal liability via a policy or custom promulgated by the County.
ii.

Ratification

Ratification by an official policymaker can trigger municipal liability. Gillette, 979
F.2d at 1348. In fact, a “single decision by a municipal policymaker may be sufficient to
trigger section 1983 liability under Monell, even though the decision is not intended to
govern future situations. There must, however, be evidence of a conscious, affirmative
choice.” Id. at 1347. “Municipal liability under section 1983 attaches only where ‘a
deliberate choice to follow a course of action is made from among various alternatives by
the official or officials responsible for establishing final policy with respect to the subject
MEMORANDUM DECISION AND ORDER – 32

matter in question.’” Id. (quoting  Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84
(1986).
Thomas argues that holding the County liable for Akers’ conduct is proper
because “[n]either [Heward] nor anyone else ever told Akers he had done anything wrong
or [violated] Cassia County policy. . . . [and] decided that no disciplinary action against
Akers was warranted.” Dkt. 53-1, at 24-25. Thomas further claims that Heward
“specifically approved of Akers’ arrest of Mr. Thomas for hit and run and for allegedly
giving false information . . . despite the overwhelming evidence to the contrary.” Id.
However, this argument misconstrues Heward’s conduct, and is not enough to establish
municipal liability.
First, for municipal liability to attach, an official policymaker must make a
deliberate choice from among various alternatives to follow a particular course of action.
Pembaur, 475 U.S. at 483-84. That is not the case here. Heward simply reviewed Akers’
conduct after Thomas had already been arrested. He did not direct Akers to arrest
Thomas, nor did he approve of that decision before it occurred.
Second, a policymaker must approve of a subordinate’s decision and the basis for
it before he will be deemed to have ratified the subordinate's discretionary decision. See
Bouman v. Block, 940 F.2d 1211, 1231 (9th Cir.) Again, that is not the case here. Heward
did not “approve” of Akers’ conduct, nor did he cast his decision to not discipline Akers
in the form of a policy statement. He simply stated that, although he would have done
things differently, Akers had not violated County policies (because he had probable cause
to arrest Thomas) and therefore was not subject to discipline. The Court finds that no
MEMORANDUM DECISION AND ORDER – 33

reasonable juror could find that Heward ratified Akers’ alleged misconduct. Accordingly,
the Court GRANTS the County and Heward’s Motion for Summary Judgment on this
claim.
8. Supervisorial Liability
Thomas claims that “Sheriff Heward failed to properly train, supervise and control
Akers regarding Plaintiff’s First and Second Amendment[] [rights] which guaranteed and
protected Plaintiff’s right to openly carry a sidearm and to express his right to do so, but
instead approved, affirmed and ratified Akers’ misconduct.” Dkt. 6, at 5. While the nature
of this claim closely resembles Thomas’ claim against the County, it differs in that this
claim is brought against Heward individually.
Heward can be held liable in his individual capacity “‘for his own culpable action
or inaction in the training, supervision, or control of his subordinates; for his
acquiescence in the constitutional deprivation; or for conduct that showed a reckless or
callous indifference to the rights of others.’” Watkins v. City of Oakland, 145 F.3d 1087,
1093 (9th Cir. 1998) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.
1991)). Heward’s liability “hinges on whether he ‘set in motion a series of acts by others,
or knowingly refused to terminate a series of acts by others, which he knew or reasonably
should have known, would cause others to inflict the constitutional injury.’” Watkins, 145
F.3d, at 1093 (quoting Larez, 946 F.2d, at 646).
The most concerning allegation against Heward is his failure to do anything after
Thomas allegedly complained about Akers’ confronting him for openly carrying his

MEMORANDUM DECISION AND ORDER – 34

firearm in public. However, the Court finds this failure to act understandable under the
qualified immunity analysis.
As noted above, “[q]ualified immunity is ‘an entitlement not to stand trial or face
the other burdens of litigation.’” Katz, 533 U.S. at 200. It protects government officials
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights about which a reasonable person would have
known. Mattos, 661 F.3d at 440 (emphasis added).
Here, the Court finds that, since the Ninth Circuit had not clearly established that
the Second Amendment includes an individual right to openly carry a firearm in public
until 2018, it was reasonable for a person in Heward’s position to not know Akers
misunderstood the law, or that his officers needed additional Second Amendment
training. Accordingly, even if Thomas’ allegations are true, Heward’s failure to correct
Akers’ behavior, or implement training to educate officers about the Second Amendment
right to openly carry a firearm in public, is excusable under the qualified immunity
analysis.
Additionally, there is nothing in the record that suggests inadequate training
regarding citizens’ First Amendment rights, or that Heward approved of Akers’ alleged
retaliation against Thomas. He simply reviewed the incident after the fact and found
that—because probable cause existed for the arrest—no violation of County policies
occurred, and no discipline was required. This is not enough to hold Heward liable.
Accordingly, the Court GRANTS the County and Heward’s Motion for Summary
Judgment on this claim.
MEMORANDUM DECISION AND ORDER – 35

B. Thomas’ State Law Claims
Thomas also brings claims under the Idaho Tort Claims Act (“ITCA”) and Idaho
common law. However, Thomas’ Amended Complaint does not specify what his Idaho
common law claims are, nor has he provided any argument in defense of those claims. As
such, he has abandoned them, and the Court GRANTS summary judgment on his
common law claims. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir.
2009) (“Plaintiff] abandoned his state law claims by not addressing them in either his
Motion for Partial Summary Judgment or his Opposition to Defendants’ Motion
for Summary Judgment.”).
As a result, only Thomas’ ITCA claim remains. ITCA subjects government
entities to liability for an entity’s own negligent or wrongful acts, or the negligent or
wrongful acts of its employees where a private person would also be liable. See Idaho
Code § 6-903(1). However, the Act states that a “governmental entity may refuse a
defense or disavow and refuse to pay any judgment for its employee if it is determined
that the act or omission of the employee was not within the course and scope of his
employment or included malice or criminal intent.” Idaho Code § 6-903(3) (emphasis
added).
In Sprague v. City of Burley, 710 P.2d 566 (1985), the Idaho Supreme Court
explained that ITCA “specifically exempts governmental entities from liability where the
employees act with malice.” Id. at 579. As a result, the Court found that “[s]ince
Sprague’s amended complaint alleged that the officers acted with malice . . . it is clear
that as a matter of law Sprague could not recover from the City of Burley. Hence, the
MEMORANDUM DECISION AND ORDER – 36

district court properly granted the City’s motion for summary judgment as to Sprague’s
state law claims against the City.” Id. at 579-80.
Here, Thomas contends that Akers acted with malice. He has stated that “AKERS
ACTED WITH MALICE AND THEREFORE IS NOT ENTITLED TO IMMUNITY
UNDER THE ITCA.” Dkt. 52, at 16 (capitalization in original). He continues that “[t]he
same overwhelming evidence of Akers’ personal animus and malice against Mr. Thomas
[used to support Thomas’ other claims] is more than sufficient on summary judgment to
establish malice under Idaho Code § 6-904(3).” Id.
It is clear that Thomas’ ITCA claim is primarily supported by his contention that
Akers acted with malice. Accordingly, as a matter of law, Thomas cannot recover from
the County for Akers’ allegedly unlawful acts. Additionally, the Court finds no basis for a
valid ITCA claim based upon the County’s own conduct, or the conduct of Heward. The
Court, therefore, GRANTS the Defendants’ Motions for Summary Judgment on this
claim.
C. Motion to Strike
Finally, the County and Heward ask the Court to strike the Amended Declaration
of Derek Thomas and other documents. Dkt. 57. They argue that a video (Dkt. 52-23, ex.
2), and photograph (Dkt. 37, ex. 1) were not produced until after discovery had closed.
and should therefore be stricken from the record.
Under Federal Rule of Civil Procedure 37(c), a party that fails to provide
information as required by Rule 26(a) or (e) is not allowed to use that information to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
MEMORANDUM DECISION AND ORDER – 37

justified or is harmless. Fed. R. Civ. P. 37(c); see also Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Failure to follow the requirements
of Rule 26 can result in sanctions under Rule 37(c)(1), which include the exclusion of an
exhibit.
Here, Thomas has not shown that his failure to produce these items during
discovery was substantially justified or harmless. Accordingly, the Court strikes these
exhibits ((Dkt. 52-23, ex. 2; Dkt. 37, ex. 1) for purposes of the motions discussed in this
order but refrains from deciding at this time whether those exhibits may be used at trial.11
Defendants also ask the Court to strike Thomas’ combined statement of material
facts for exceeding the page limitations set by Local Rule of Civil Procedure 7.1, as well
as Dkt. 54 and Dkt. 55 for being untimely filed. The Court declines to do so. The County
and Heward’s Motion to Strike (DKt. 57) is, therefore, GRANTED in PART and
DENIED in PART.
V. ORDER
1. The County and Heward’s Motion for Summary Judgment (Dkt. 23) is
GRANTED. As there are no surviving claims against the County or Heward, they
are both DISMISSED from this case.
2. Akers’ Motion for Summary Judgment (Dkt. 24) is GRANTED in PART and
DENIED in PART. As set forth above, only Thomas’ First and Second
Amendment Retaliation claims against Akers survive summary judgment.

11

If this case proceeds to trial, Akers (if he so desires) must still file a proper motion in limine
asking the Court to exclude these exhibits.
MEMORANDUM DECISION AND ORDER – 38

3. The County and Heward’s Motion to Strike (Dkt. 57) is GRANTED in PART and
DENIED in PART. The Court strikes Dkt. 52-23, ex. 2, and Dkt. 37, ex. 1 for
purposes of the motions discussed in this order but refrains from deciding at this
time whether those exhibits may be used at trial.

DATED: February 26, 2019

_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER – 39