Harmon v. City of Pocatello et al
Filing
37
MEMORANDUM DECISION AND ORDER - Harmons Motion to Amend/Correct (Dkt. 29 ) is GRANTED. Harmons Motion to Strike (Dkt. 28 ) is DENIED. Harmons Motion for Partial Summary Judgment (Dkt. 22 ) is DENIED. Defendants Motion for Summary Judgment (Dkt. [ 21]) is GRANTED. The Court will enter a separate judgment in accordance with Federal Rule of Civil Procedure 58. 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 (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KERRY HARMON,
Case No. 4:17-cv-00485-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
CITY OF POCATELLO; POCATELLO
POLICE DEPARTMENT; and
SHANON BLOXHAM, BRANDON
VAIL, SHAUN WRIGHT, and RUSS
GUNTER in his and/or her individual
capacity as a police officer for the
Pocatello Police Department,
Defendants.
I. INTRODUCTION
Pending before the Court is Defendants, City of Pocatello, City of Pocatello Police
Department, Shannon Bloxham, Brandon Vail, Shaun Wright, and Russ Gunter’s
(collectively “Defendants”) Motion for Summary Judgment (Dkt. 21) and Plaintiff Kerry
Harmon’s Motion for Partial Summary Judgment (Dkt. 22). After these motions were
filed—and in response to assertions made in Defendants’ submissions—Harmon filed a
Motion to Strike (Dkt. 28) and a Motion to Amend/Correct Complaint (Dkt. 29).
The Court held oral argument on July 1, 2019, and took the motions under
advisement. For the reasons outlined below, the Court finds good cause to GRANT
Harmon’s Motion to Amend/Correct, DENY Harmon’s Motion to Strike, GRANT
Defendant’s Motion for Summary Judgment, and DENY Harmon’s Motion for Partial
MEMORANDUM DECISION AND ORDER - 1
Summary Judgment.
II. BACKGROUND
A. Factual Background
In October 2015, the Pocatello Police Department (“PPD”) began investigating a
complaint that Plaintiff Kerry Harmon had engaged in unlawful telephone harassment. As
a result of this investigation, Idaho State Magistrate Judge Steven Thomsen issued a
warrant on October 30, 2015, for Harmon’s arrest. In his order, Judge Thomsen set a bond
amount and initialed the arrest warrant for “nighttime execution”—meaning the warrant
could be served at night (i.e., after 8pm). No action was immediately taken as a result of
the warrant.
On February 27, 2016, PPD received a complaint from another individual, Cassie
Hughes, alleging that Harmon was harassing her via telephone. PPD tasked Officer
Brandon Vail with investigating the complaint.
Officer Vail called Harmon multiple times the evening of February 27, 2016, with
no response. Finally, Harmon answered the phone, indicated it was late, and told Vail that
she would talk to him at a more appropriate time. As part of his investigation, Office Vail
learned of the active warrant from October 2015 for similar conduct.
The next evening, February 28, 2016, Officer Vail and Officer Shannon Bloxham
went to Harmon’s house to follow up on the new complaint of telephone harassment and
to serve the outstanding arrest warrant obtained in the prior complaint. When Officers Vail
and Bloxham knocked on the door, Harmon’s husband, Doug Harmon, initially answered
and spoke with the officers. Harmon herself then came to the door, but insisted that she did
MEMORANDUM DECISION AND ORDER - 2
not want to speak to the officers.
At some point during the conversation, Harmon attempted to close the door. Both
Officers Vail and Bloxham placed a foot into the doorframe to prevent Harmon from
closing the door. According to Harmon, Officer Vail said that she “was going to be arrested
tonight,” and Officer Bloxham stated, “you’re going to jail tonight.” Dkt. 21-4, at 8. At this
point, Officer Bloxham reached out and grabbed Harmon’s wrist to place her in handcuffs.
Harmon pulled away.
Unbeknownst to Officers Vail and Bloxham, Harmon had recently undergone
surgery on her wrist for arthritis. Harmon claims that on the night in question she was
wearing a splint. Neither Officer Vail nor Officer Bloxham observed Harmon wearing any
type of splint on her wrist and contend that had Harmon been wearing such a device, they
would not have grabbed her wrist. Nonetheless, Harmon vehemently contends that she was
wearing the split at the time of the incident.1
During this same time period, Doug Harmon had called the family’s attorney, Greg
May. Doug Harmon came back to the door and asked Officer Vail if he would speak to
their attorney. Officer Vail declined. Kerry Harmon took the phone from her husband and
went into another room to speak to May. She returned, handed the phone to her husband,
and went upstairs. PPD Sergeant Derek Daniels then arrived at the scene, spoke with May,
1
There is also a minor dispute about precisely where Harmon was standing when the “arrest” took place.
Officers Vail and Bloxham testified that Harmon was outside her residence (i.e., she was on the porch or
landing) and that when they attempted to arrest her, she retreated back into her house. Dkt. 21-4, at 16, 22.
Harmon, on the other hand, contends that she was inside her house and that Officers Vail and Bloxham
reached into her house when they grabbed her arm. Dkt. 21-4, at 8. While a disputed background fact, this
disagreement is not material to any claim at issue in this case.
MEMORANDUM DECISION AND ORDER - 3
and made arrangements for Harmon to voluntarily meet law enforcement at the courthouse
the following day to sort out the issues. Officers Vail and Bloxham admonished Harmon
against communicating with Cassie Hughes—the complainant of the second telephone
harassment incident—and left the scene.
Harmon voluntarily presented herself the following day as agreed. The charge
stemming from the 2015 incident was ultimately dismissed by the prosecutor. Harmon was
also never charged with any crime pertaining to the 2016 complaint made by Cassie
Hughes.
B. Procedural Background2
On November 28, 2017, Harmon filed her complaint, alleging various civil rights
violations. Dkt. 1. On July 2, 2018, Harmon filed an Amended Complaint correcting a
typographical error of little significance. Dkt. 12. Defendants consented to the amendment
and the Court accepted the same. Dkt. 14.
In her Amended Complaint, Harmon alleges seven causes of action under 42 U.S.C.
§ 1983: (1) a Constitutional violation for unlawful entry, seizure, and arrest; (2) a
Constitutional violation for failing to communicate legal justification for an arrest; (3) a
Constitutional violation for use of excessive force; (4) a Constitutional violation for
malicious prosecution; (5) a Constitutional violation for failure to intervene; (6) a
Constitutional violation for failure to train; and (7) a Monell claim based on “widespread
2
The Court will address and analyze the substance of the individual motions later in this decision, however,
the parties’ arguments overlap between the various motions and are intertwined with the filing of yet other
motions (often filed simultaneously). Thus, the Court will outline the procedural history of theses motions
for clarity and to provide the context for the Court’s later discussions.
MEMORANDUM DECISION AND ORDER - 4
practices and/or policies” of the Pocatello Police Department.
On May 3, 2019, Defendants moved for summary judgment on all claims.
Defendants also asked as part of their motion that the Court dismiss Defendants Brandon
Vail, Shaun Wright, and Russ Gunter, asserting that Harmon had failed to allege any facts
against them.
On that same day, Harmon moved for partial summary judgment on three claims.
First, citing Monell, Harmon moved for summary judgment because “there are no genuine
issues of material fact that the City of Pocatello had implemented an unconstitutional policy
of having day officers (who had no knowledge of the facts) make affirmative
misrepresentations and/or omit material facts in probable cause affidavits to obtain
warrants.” Dkt. 22-1, at 2. Harmon also moved for summary judgment on her claim for
unlawful arrest (Claim 1), and her claim for malicious prosecution (Claim 4).
In response to Defendants’ Motion for Summary Judgment—aside from arguing
substantively against the arguments presented—Harmon agrees that the Court can dismiss
Russ Gunter as a defendant, but contends that she properly identified Brandon Vail and
Shaun White as defendants and that she has alleged sufficient facts against each of them to
justify their inclusion in this suit. As part of this argument, Harmon postures that even if
the Complaint is deficient as to these individuals, since Defendants are asking the Court to
dismiss these defendants, the Court should give her an opportunity to amend her Complaint.
In response to Harmon’s Motion for Partial Summary Judgment, Defendants firmly
reject Harmon’s characterization of the first “claim” for which she seeks summary
judgment—regarding PPD’s allegedly unconstitutional policy for obtaining warrants. In
MEMORANDUM DECISION AND ORDER - 5
their estimation, none of the seven claims identified in the complaint relate to a
constitutional violation pertaining to the method used to obtain the warrant for her arrest.
In other words, Defendants contend that Harmon is moving for summary judgment on a
claim that does not exist—a claim she never pled and that they never received notice of. In
support of their arguments, Defendants filed the affidavit of Office Shaun White—the
officer who executed the probable cause affidavit used to procure the arrest warrant back
in 2015—discussing the process and procedures PPD followed in obtaining warrants.
Defendants then explain that there were no widespread policies of abuse, let alone
constitutional violations, in the manner in which the department performed these tasks.3
In their Reply Memorandum to their own Motion for Summary Judgment filed the
same day, Defendants firmly reject the idea that Harmon can amend her Complaint at this
late stage (to plead additional facts against Vail and White) asserting that she has not shown
good cause to amend as required by Federal Rule of Civil Procedure 16(b).
In her Reply Memorandum to her Motion for Partial Summary Judgment, Harmon
first asserts that Defendants never technically answered her Amended Complaint and
therefore cannot move for summary judgment on any claims or to dismiss any defendants,
and that Defendants’ failure to Answer constitutes acquiescence on all claims. Harmon
then addresses the three causes of action that she seeks summary judgment on from the
Court.
3
It is not entirely clear, but it appears PPD has altered their practice for swearing out warrants since 2015.
There is no indication, however, that PPD implemented these new procedures to correct errors or
unconstitutional practices, but simply as a matter of routine policy and procedure improvement.
MEMORANDUM DECISION AND ORDER - 6
In conjunction with her Reply, Harmon also filed a Motion to Strike and a Motion
to Amend Complaint. In the Motion to Strike, Harmon alleges that Officer Shaun White’s
affidavit filed by Defendants in opposition to her Motion for Summary Judgment is a sham
affidavit that contradicts his prior deposition testimony. In her Motion to Amend, Harmon
rebuffs Defendants’ contention that her “how the warrant was obtained” claim is some type
of new claim, but, nonetheless, formally asks the Court for leave to Amend her Complaint
to add this additional claim. Harmon argues that while the details of how the probable cause
affidavit was obtained in 2015 did not come to light until recently, she has always asserted
that that Defendants obtained the warrant without legal justification. Further, since
Defendants never identified any confusion regarding her pleadings until summary
judgment, Harmon claims she was unaware that they considered the pleadings inadequate.
Finally, Harmon chastises Defendants for holding her feet to the fire in amending when
they themselves failed to Answer her Amended Complaint.
In response to Harmon’s Motion to Strike, Defendants claim that, in accordance
with the 2010 Amendments to Rule 56, it is unnecessary to file a separate motion to strike
material deemed improper at summary judgment, but that any such argument should simply
be included in moving papers for the motion itself. See Fed. R. Civ. P. 56 (c)(2) Committee
Notes. Defendants claim that because Harmon already exceeded the ten-page briefing
requirement in her reply brief, she needed another avenue to address this issue and
improperly chose to file a motion to strike. Defendants then substantively respond to
Harmon’s motion arguing that Officer White’s affidavit does not contradict his prior
statements, but merely clarifies them.
MEMORANDUM DECISION AND ORDER - 7
In response to Harmon’s Motion to Amend, Defendants reiterate that Harmon has
not met the requisite good cause standard to permit amendment. Additionally, Defendants
explain that when Harmon previously Amended her Complaint, it was to correct a
typographical error and because nothing substantive changed, Defendants determined
filing an Answer was unnecessary. Nevertheless, Defendants filed—the same day as this
response—an official Answer. Defendants’ Answer to the Amended Complaint is identical
to their previously filed Answer in response to Harmon’s original Complaint.
Harmon chose not to reply to her Motion to Strike Officer Wright’s Affidavit,
replied to her Motion to Amend by reiterating her same arguments, and filed an Objection
to Defendants Amended Answer claiming it is untimely.
All matters are now before the Court and the Court will consider each in due course.
Problematic here, is the simple fact that with so many motions, cross-motions, and issues—
all being taking up simultaneously and/or in response to other motions—organization is
difficult. Accordingly, the Court will address the procedural issues first and then discuss
the substance of the relevant Motions for Summary Judgment.
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). 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 non-moving
MEMORANDUM DECISION AND ORDER - 8
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).
The standard applicable to motions for summary judgment do not generally change
if the parties file cross motions. See, e.g., Cady v. Hartford Life & Accidental Ins., 930 F.
Supp. 2d 1216, 1223 (D. Idaho 2013). That said, the Court must evaluate each party’s
motion on its own merits. Fair Housing Council of Riverside Cty., Inc. v. Riverside Two,
249 F.3d 1132, 1136 (9th Cir. 2001).
IV. ANALYSIS
Defendants begin their Motion for Summary Judgment by asking the Court to
dismiss Defendants Vail, Wright, and Gunter. Defendants claim that Harmon has failed to
plead sufficient facts against each to support any of her causes of action. As for Russ
Gunter, Harmon agrees that the Court can dismiss him from the case. Dkt 23-1, at 2.
MEMORANDUM DECISION AND ORDER - 9
Accordingly, this portion of Defendants’ Motion is GRANTED and Russ Gunter is
DISMISSED as a defendant in this suit.
As for Wright and Vail, Harmon explains that while her Complaint is “admittedly
not a great work of art” she has “allege[d] facts which identify both Shaun Wright and
Brandon Vail.” Dkt. 23-1, at 4. She claims that Officer Wright is the Officer who swore
out the probable cause affidavit to obtain an arrest warrant for Harmon in 2015, and that
Officer Vail was one of the Officers who went to Harmon’s house the night of the incident
in 2016. Harmon claims that while the detailed roles Wright and Vail played in the case
have only recently come to light, the Defendants were squarely on notice of the claims
against these individuals.
The Court disagrees. While it is true that Wright and Vail are each mentioned eight
times in Harmon’s Amended Complaint, each of those references is to their relationship
with each other or to other defendants—broadly, they are some of the “Officers” or
“Defendants” involved in the case. Harmon, however, does not actually allege any specific
facts against either of them. Furthermore, to claim that recent depositions have confirmed
the roles these defendants played, or that “in context . . . in light of discovery and the
information provided to this court,” it is “clear that Plaintiff stated claims” against Wright
and Vail, is akin to post hoc analysis. Presumably, this is one of the reasons Harmon now
moves to Amend her Complaint to identify Wright 15 additional times and Vail 21
additional times, and explain their specific and detailed roles in the events at issue.
Harmon’s deficiencies aside, the Court finds itself in a quandary. Under wellestablished Ninth Circuit precedent, the Court must allow a party an opportunity to amend
MEMORANDUM DECISION AND ORDER - 10
when it grants a Motion to Dismiss unless it is clear the complaint’s failures cannot be
cured. Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (internal citation omitted)
(“Dismissal without leave to amend is improper unless it is clear that the complaint could
not be saved by any amendment.”). Here, it is clear Harmon could cure her Complaint—
after all, the Court has already seen the proposed Second Amended Complaint and it
accurately identifies Wright and Vail. Thus, should the Court Dismiss and allow
amendment just for the sake of the standard? This hardly seems necessary.
The Court does not look favorably on hindsight justification, but the fact is, the
parties pursued litigation knowing full well that Wright and Vail played a role in the events
although the extent of their involvement was fleshed out over time. Said differently, the
parties have pursued this litigation seemingly in sync—not in factual agreement of course,
but at least in scope (after all, Wright and Vail were both deposed during discovery)—but
now Defendants claim that Harmon’s pleadings are insufficient. To be sure, the Court does
not agree with Harmon that Defendants should have moved for a more definite statement
rather than a motion to dismiss. The burden was Harmon’s and she should have alleged
more detailed facts in her Complaint. That said, Defendants could have moved to dismiss
at any time prior to this point. The Court likely would have granted the motion and given
Harmon leave to amend. Harmon would then have filed an amended complaint (similar to
what is now before the Court), and the case would have ended up at this exact point all the
same—but arguing this now is too little too late and appears to be nothing more than an
ploy by Defendants to limit Harmon’s claims knowing full well that the people they seek
to dismiss play a critical role in the facts of this case.
MEMORANDUM DECISION AND ORDER - 11
As Harmon indicates—and the Court can confirm—it is not uncommon for a
Plaintiff to list “Does,” “Officers,” or other general categories of defendants in his or her
lawsuit. A Plaintiff may not know exactly who was involved, and how, until at least some
limited discovery has taken place. In this case, it appears that the parties did not take the
depositions of Wright and Vail until after the deadline to amend had already passed. There
was, therefore, no way for Harmon to Amend her Complaint within the prescribed
timeframe without seeking leave of the Court. Accordingly, the Court will GRANT
Harmon’s Motion to Amend to clarify the roles of Wright and Vail. In this manner, the
Court will avoid delay and be able to address all pending motions against all Defendants
ensuring the “just, speedy, and inexpensive determination of [this] . . . proceeding.” Fed.
R. Civ. P. 1.
For the sake of organization, the Court must jump briefly to Harmon’s Motion for
Partial Summary Judgment which addresses the second reason Harmon seeks to amend—
other than adding allegations against Wright and Vail—which is to officially add her “how
the warrant was obtained” claim.
In her Motion for Summary Judgment, Harmon suggests for the first time that the
City of Pocatello implemented an unconstitutional policy—referencing her Monell claim
(Claim 7)—“. . . of having day officers make affirmative misrepresentations and/or
omitting material facts in their probable cause affidavits.” Dkt. 22-1, at 3.
Defendants argue that this is not an official “claim” in Harmon’s Complaint because
there is not a “single sentence, statement, series of words, or other allegation” “pertaining
to the method used to obtain the warrant for her arrest.” Dkt. 24, at 4-5. Defendants position
MEMORANDUM DECISION AND ORDER - 12
is that Harmon has failed to plead this “claim” and that the Court should dismiss it outright.
The Court disagrees. Again, as noted above, Harmon could have been more detailed in her
Complaint; however, contrary to Defendants’ assertions, Harmon has plead this claim—or
at least this concept—to a sufficient degree that Defendants were on notice.
In her Amended Complaint, as part of Claim 2 regarding unreasonable searches and
seizures, Harmon alleges that “Defendants acted under color of state law when they
violated Mrs. Harmon’s constitutional rights through conduct which included . . . arresting
Mrs. Harmon without providing or communicating any legal justification for the arrest.”
Dkt. 12, at 9.4 Additionally, under Claim 7 (the Monell Claim) Harmon reincorporates the
preceding paragraphs5 and alleges that the City of Pocatello’s “policies were the moving
force behind the violation of Mrs. Harmon’s federal[ly] protected rights.” Dkt. 12, at 13.
Again, while Harmon’s Complaint is not an outstanding example of clarity,
Defendants were sufficiently on notice that Harmon had a Monell claim and that the basis
of that claim related to practices and procedures touching upon the [alleged]
unconstitutionality of her arrest. While the language of Harmon’s Complaint is broad and,
at first glance, appears to apply more to how PPD executed the warrant, it is not a stretch
4
See also Dkt. 12, at 8 (Claim 1 asserting Defendants’ violated Harmon’s rights “without legal
justification”).
5
The Court only mentions this because, as the Court has explained before, under the principle of
incorporation, allegations in one area of a Complaint that support the individual causes of action (even if
not reiterated in each cause of action) are sufficient under Iqbal and Twombly. See Sagastume v. RG
Transportation, Inc., No. 4:18-CV-00361-DCN, 2019 WL 2218986, at *8 (D. Idaho May 21, 2019) (finding
that while Plaintiff had not stated a particular fact in a certain section of his complaint, this omission did
not warrant dismissal of that claim as it was stated elsewhere and Plaintiff had incorporated those
paragraphs in the relevant section).
MEMORANDUM DECISION AND ORDER - 13
to include the method for how PPD obtained the warrant—after all, the probable cause
affidavit is the basis for the arrest warrant itself. Defendants’ argument is further undercut
by the fact that discovery has already occurred on this very topic, depositions have been
taken, and they have thoroughly responded to Harmon’s Motion.
That said, Defendants felt the need to file an additional affidavit from Officer Wright
clarifying and expanding upon his prior testimony. This action supports the idea that
Harmon’s motion caught Defendants off guard. As already explained, however, even were
the Court to dismiss this “claim,” it would do so without prejudice, allow Harmon an
opportunity to Amend, and—full circle—the Court would be right back where it started:
determining if Summary Judgment is proper on this claim.
In short, the Court will GRANT Harmon’s Motion to Amend Complaint in order to
clarify the factual contentions supporting her Monell claim as well. While the deadline has
long since passed, Harmon has shown good cause to amend even at this late stage.
Defendants cannot show any real prejudice because they have already performed discovery
on these topics and responded substantively to the arguments raised. Part of the Court’s
rational for allowing amendment is to give Harmon the broadest possible base in support
of her claims, construing all factors in the light most favorable to her. Having considered
the allegations in the Second Amended Complaint, all of the evidence is now before the
Court and it can make a reasoned determination on all claims and issues the parties have
presented for adjudication.
A. Defendants’ Motion for Summary Judgment
Defendants seek summary judgment on all claims in Harmon’s Amended
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Complaint; however, they group their arguments together on some claims. Additionally,
there are sub-topics within certain claims that require special attention.
The Court will address each argument in turn—as that is how Defendants presented
them, and how Harmon responded—and will take up any ancillary issues along the way.
1. Valid Warrant (Claims 1, 2, 4)
First, Defendants argue that summary judgment is proper on Harmon’s claims of
unlawful entry, seizure, arrest, and malicious prosecution because they had a valid arrest
warrant establishing probable cause to initiate Harmon’s arrest (Claims 1, 2, 4).
The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. Amend. IV. A search and/or seizure is reasonable when probable cause is
established by a valid warrant. U.S. Const. Amend. IV. Probable cause for an arrest exists
where the facts and circumstances within the officer’s knowledge, and of which he has
reasonably trustworthy information, are sufficient to warrant a prudent person in believing
that the suspect has committed, or is committing, an offense. Hunter v. Bryant, 502 U.S.
224, 228 (1991).
Defendants begin by arguing that there was nothing improper about their behavior
against Harmon because they were in possession of a valid arrest warrant supported by
probable cause. Defendants then argue that they did not violate Harmon’s constitutional
rights because they never actually deprived her of her liberty since they never actually
arrested her.
MEMORANDUM DECISION AND ORDER - 15
a. Probable Cause
Defendants give little weight to the probable cause issue as they appeared to
believe—at the time they filed their original motion for summary judgment—that this was
not a contested issue. When Harmon filed her Motion for Summary Judgment, however,
outlining the issue of probable cause as her main concern, Defendants substantively
responded. The Court will, therefore, address this more fully below when discussing
Harmon’s motion.
Suffice it to say, the Court finds that Defendants did have probable cause to arrest
Harmon. Even if the Court were to find fault with the probable cause affidavit—leading to
the conclusion that Harmon had not committed any offense worthy of an arrest warrant—
the applicable standard is not whether a suspect actually committed an offense, but whether
a reasonable officer had probable cause to think the suspect could have committed the
offense. Blankenhorn v. City of Orange, 485 F.3d 463, 475 (9th Cir. 2007). In other words,
invalidating the warrant now would not invalidate the Defendants’ actions then. On the
evening in question, Defendants had, to the best of their knowledge, a valid arrest warrant
and were allowed to execute it.
In response to Defendants’ Motion for Summary Judgment on this claim, Harmon
asserts that not only did the Defendants lack probable cause for the warrant, but they also
failed to produce the actual warrant when she requested it and/or failed to explain why they
were placing her under arrest. Harmon contends that these failures also violated her rights.
b. “Show the Warrant”
MEMORANDUM DECISION AND ORDER - 16
Harmon suggests Officers Vail and Bloxham acted unconstitutionally because they
did not physically show her the warrant when she asked to see it.
Idaho Code outlines that “If the person making the arrest is acting under the
authority of a warrant, he must show the warrant, if required.” Idaho Code § 19-609.
Harmon’s reliance on this statute is complicated at best. First, the Idaho Supreme Court
has never interpreted this statute—specifically what the language “if required” means. It is
unclear whether the “requirement” to show the warrant comes from the warrant itself, the
nature of the underlying crime, or the person requesting it.6
The second problem with Harmon’s reliance on Idaho Code section 19-609 is that
the present case does not involve any state law claims. It is solely a Federal Civil Rights
case; therefore, substantive Idaho state law does not apply. Defendants (somewhat
ironically) allege that instead of Idaho Code section 19-609, Idaho Rule of Criminal
Procedure 4 should apply in this circumstance which states that: “The officer need not have
the warrant in possession at the time of the arrest, but the officer must show the warrant to
the defendant as soon as possible.” Idaho Rule Crim. P. 4(e)(3) (emphasis added).7 Harmon
6
For example, an Alaskan Territorial statute from almost 100 years ago read that officers “must also show
the warrant if required by the defendant.” United States v. Pappadementro, 6 Alaska 769, 770 (D. Alaska
1922) (emphasis added). Another reasonable interpretation, however, is that an officer is required to
produce the warrant if the validity of the arrest depends exclusively upon that specific warrant. See e.g.,
State v. Cook, 663 P.2d 20, 21 (Okla. 1983) (superseded by statute) (“where the validity of the arrest
depends upon a warrant, the [Oklahoma] legislature has clearly conferred upon the person the right to see
the written authority of the officer: ‘The officer must ... show the warrant if required.’”). By way of
illustration of this interpretation: if an officer making a routine traffic stop learns of an outstanding warrant
(for unrelated conduct), he need not wait for physical possession of the warrant to execute on it; however,
if an officer is arresting someone for the offense solely outlined in the warrant (and the person is compliant
and asks to see the warrant) he must present it. Other states have statutes similar to Idaho Code section 19609, but what little caselaw exists on these statutes is varied and ultimately inapplicable here.
7
Federal Rule of Criminal Procedure 4 is substantially similar:
MEMORANDUM DECISION AND ORDER - 17
counters that this rule is inapplicable as it is only a procedural rule during litigation—
specifically in criminal cases. While these observations may be true, that does not
necessarily preclude the rule’s application in a civil case that is based upon the underlying
failure to properly execute a warrant in a criminal case. This too is how Defendants justify
using an Idaho Rule in support of their argument, while condemning Harmon’s similar use
of an Idaho Statute: because the underlying actions of the officers themselves were related
to Idaho State criminal matters, Idaho State criminal rules would apply, whereas Idaho
Code section 19-609 does not apply because statutorily there are no Idaho State causes of
action in this case. These arguments may be missing the forest for the trees, but the Court
is somewhat persuaded by the language of Idaho Rule of Criminal Procedure 4. Ultimately,
however, neither side has convinced the Court as to the appropriate standard.8
Critically, it is not entirely clear that Harmon actually asked to see the warrant on
the night in question. Although, in her briefing, Harmon repeatedly suggests that she
Upon arrest, an officer possessing the original or a duplicate original warrant must show it
to the defendant. If the officer does not possess the warrant, the officer must inform the
defendant of the warrant’s existence and of the offense charged and, at the defendant’s
request, must show the original or a duplicate original warrant to the defendant as soon as
possible.
Fed. R. Crim. P. 4(c)(3)(A)
8
While both parties cite cases in support of their varying interpretations, the Court notes that some
assertions are taken out of context, some are blatantly wrong, and most are simply inapplicable. Broadly
and pragmatically speaking, however, it would often be difficult to require that an officer must show a
defendant an arrest warrant before executing on it. First, an Officer may not have a way to get a copy of the
warrant (for example, in the routine traffic stop that alerts Officers to outstanding warrants from other
jurisdictions). More importantly, however, for safety reasons, Officers may not be able to show a copy of
the warrant to an individual until he or she in custody and either in a vehicle or at a police station. As will
be explained below, the Court does not make a conclusive ruling on this issue at this time.
MEMORANDUM DECISION AND ORDER - 18
“clearly asked to see the warrant” (Dkt. 23-1, at 12) and “asked if they had a warrant” (Dkt.
22-1, at 13) there is little support for this in the record. Harmon does not cite to an affidavit
or any other specific evidence to support this assertion, but instead points broadly to one
part of her deposition—page 64. Her statement there reads in full:
They demanded to talk to me. Again, I refused, at which point the elbows
went in to the open door jamb on both sides. I was getting very frustrated. I
said, “you don’t have a warrant. This is ridiculous. I’m not going to talk to
you now. You need to come back at a more appropriate time.”
Dkt. 22-2, at 6, ll. 15-20 (emphasis added).9 Although she does not cite such testimony,
also of note is Harmon’s response in her deposition on cross-examination:
Q. You didn’t mention this earlier when you went through your description
of what occurred between you and the police officers, but I know that it’s in
your complaint that you allege that you asked to see a warrant and were
refused. Is that not the case?
A. That is the case, yes.
Q. You’re saying that you did request to see a warrant?
A. Yes.
Q. And what was the response that you got?
A. That there wasn’t one.
Q. Who told you that?
A. Vail.
9
Harmon also claims the officers never even told her there was a warrant until after they tried to arrest her.
The testimony on this issue is conflicting. It appears these specific events (explaining there was an
outstanding warrant and trying to make an arrest) occurred in a manner of seconds, with multiple people
shouting and moving about. Regardless, even if Harmon had asked to see the warrant, officers were not
required to show it to her before attempting to arrest her. See, e.g., State v. Layman, 42 P.2d 201, 202 (N.M.
1935) (“It is beyond question that, in making an arrest by virtue of a warrant, the officer cannot be required
to show the warrant, or state the substance of it, until the arrest is accomplished.”). After exhaustively
reviewing all deposition testimony, it appears that following an initial investigation into the telephone
harassment allegations, Officers told Harmon there was an active warrant and tried to arrest her as she was
retreating into her house and saying “No, I don’t [have an arrest warrant].” Dkt. 23-3, at 66, 78, 116. Harmon
then asked what the warrant was for, to see the warrant, and the Officers explained the basis for the warrant.
Id. at 105, 116.
MEMORANDUM DECISION AND ORDER - 19
Dkt. 23-3, at 181. Interestingly, it is Officer Bloxham’s testimony that offers a better
picture of these events. Officer Bloxham states in her deposition that “they [the Harmons]
didn’t start demanding to see the warrant until they were told she had a warrant and that
she was going to be placed under arrest.” Dkt. 22-2, at 41, 43. Officer Vail does not recall
whether the Harmons asked to see the warrant. Dkt. 23-3, at 114.
Simply put, Harmon argues that she asked to see the warrant, but it is unclear that
actually happened.10 If Harmon did not ask to see the warrant, Officers Bloxham and Vail
would have been under no obligation to show it to her. See, e.g., Carlisle v. State, 319
N.E.2d 651, 653 (Ind. App. 1974) (finding the police were under no obligation to show
warrant when defendant “did not request that he be permitted to view the warrant”); accord
People v. Thomas, 318 P.2d 780, 782 (Cal. App. 1957).
However, even assuming Harmon asked to see the warrant, the Court need not
definitively rule on whether Officers Vail and Bloxham were required to have it in their
physical possession and show it to Harmon for two reasons. First—as will be explained in
the following section—an arrest did not occur here. Accordingly, it is not clear that Idaho
Code section 19-609 or Idaho Rule of Criminal Procedure 4 are even relevant as both apply
to actions when making an arrest. Second, and most importantly, Officers Bloxham and
Vail are entitled to qualified immunity.
10
The Court is not calling into question Harmon’s credibility—it will construe this fact in her favor—
however, it seems if there were clear evidence of this, Harmon would have pointed it out in her briefing.
MEMORANDUM DECISION AND ORDER - 20
The purpose of the doctrine of qualified immunity is to shield public officials “from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To
determine whether an officer is entitled to qualified immunity, a court must evaluate two
independent questions: (1) whether the officer’s conduct violated a constitutional right, and
(2) whether that right was clearly established at the time of the incident. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Qualified immunity is designed to give government
officials “breathing room to make reasonable but mistaken judgments about open legal
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).
Here, Harmon has not met her burden in proving that she had a constitutional right
to see a copy of the warrant and that this right was clearly established. In light of the
differing state statutes and rules, and the outstanding question of their applicability in this
case, the Court finds that Defendants did not violate a “clearly established right” by failing
to show Harmon the warrant. The Officers actions were not egregious or unconstitutional
and each is entitled to qualified immunity on this difficult question.
c. “Explain Arrest”
In a similar vein, Harmon contends that Defendants failed to explain the purpose,
or basis, for the arrest warrant and that this failure also violated her constitutional rights.
The Court finds this argument unpersuasive.
Idaho Code section 19-608 outlines that “The person making the arrest must inform
the person to be arrested of the intention to arrest him, of the cause of the arrest, and the
MEMORANDUM DECISION AND ORDER - 21
authority to make it . . .” Again, the applicability of Idaho State Statutes is questionable,
but importantly, under federal precedent from the Ninth Circuit, the Fourth Amendment
does not provide a suspect the right to be informed of the reason for arrest until the
government has committed itself to prosecution. See e.g. Coulson v. Washoe Cty., 69 F.3d
543 (9th Cir. 1995) (citing Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987)).
That said, in the instant case, Officers Vail and Bloxham did actually tell Harmon
what she was going to be arrested for—albeit not in great detail. Dkt. 23-3, at 67, 116. For
these two reasons, the Court will dismiss this argument.
d. “Under Arrest”
Many of Harmon’s arguments hinge on her assertion that she was unlawfully placed
under arrest. For their part, Defendants contend that although they unsuccessfully
attempted to initiate an arrest, they did not actually do so and that Harmon was never
deprived of any of her rights. Under the circumstances, the Court must agree.
As previously noted, the Fourth Amendment protects the “right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. Amend. IV. “A person is seized by the police and thus entitled to
challenge the government’s action under the Fourth Amendment when the officer by means
of physical force or show of authority terminates or restrains his freedom of movement
through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007).
Harmon alleges that she was under arrest (i.e. “seized” for purposes of Fourth
Amendment analysis) when Officer Bloxham tried to grab her arm and she (Harmon)
pulled away. Harmon admits that Bloxham was the only officer she came in physical
MEMORANDUM DECISION AND ORDER - 22
contact with and that Bloxham “grabbed [her] wrist” and “attempt[ed] to pull [her] through
the door.” Dkt. 23-3, at 182.
For her part, Officer Bloxham claims that she “grabbed at her. I would imagine there
was probably a brushing. But at no point did I have positive control of her arm.” Dkt. 233, at 66. The following exchange from Officer Bloxham’s deposition expounds upon the
circumstances:
Q. So you did make contact with and grab the wrist?
A. Yes. I’ve already said yes to that.
Q. And then she pulled back?
A. Yes.
Q. And so what you’re saying by “control” is that she was simply able to get
away from your grip; correct?
A. Yes.
Dkt. 23-3, at 69.
Relying on the United States Supreme Court in Brower v. Cty. Of Inyo, 489 U.S.
593 (1989), Defendants argue that a “violation of the Fourth Amendment requires an
intentional acquisition of physical control.” Id. at 596. Defendants point out that when
Officer Bloxham reached out to arrest Harmon, she pulled away, retreated to a back room
of her home, and then ultimately went upstairs without their interference. In their
estimation, these actions demonstrate that the Officers had not restrained Harmon’s
movement and there was thus no arrest nor seizure.
Harmon, on the other hand, cites to a United States Supreme Court case from two
years later in which the high Court found that “[A]n officer effects an arrest of a person
whom he has authority to arrest, by laying his hand on him for the purpose of arresting
him, though he may not succeed in stopping and holding him.” California v. Hodari D.,
MEMORANDUM DECISION AND ORDER - 23
499 U.S. 621, 624, (1991). Defendants take issue with this citation asserting that it is
merely dicta; that the Supreme Court was quoting an 1862 Massachusetts State Supreme
Court case (Whitehead v. Keyes, 85 Mass. 495, 501 (1862)) but that the United States
Supreme Court did not actually accept or adopt this reasoning. The Court disagrees—at
least in form.
The Supreme Court in Hodari began this particular discussion by noting that “for
most purposes at common law, the word [seizure] connoted not merely grasping, or
applying physical force to, the animate or inanimate object in question, but actually
bringing it within physical control.” Id. Critically, however, the Court then went on to say
that in order to “constitute an arrest, however—the quintessential ‘seizure of the person’
under our Fourth Amendment jurisprudence—the mere grasping or application of physical
force with lawful authority, whether or not it succeeded in subduing the arrestee, was
sufficient.” Id. (emphasis added). Ironically, it was only then that the Court cited
Whitehead. In short, the Court disagrees that this concept was merely dicta, as Defendants
assert. It appears clear that Hodari held that even a failed arrest would constitute an arrest.
That said, in 2007, the United States Supreme Court took up Brendlin v. California,
a case in which it determined that “[a] police officer may make a seizure by a show of
authority and without the use of physical force, but there is no seizure without actual
submission; otherwise, there is at most an attempted seizure, so far as the Fourth
Amendment is concerned.” 551 U.S. 249, 254 (2007) (emphasis added).
MEMORANDUM DECISION AND ORDER - 24
Some courts have addressed this seeming disconnect in Supreme Court case law.11
In Brooks v. Gaenzle, a plaintiff brought a § 1983 action against officers alleging
unreasonable seizure and excessive force when officers shot him as he fled the scene of a
violent crime. The Tenth Circuit ultimately determined a seizure had not occurred because
although the plaintiff had been shot, he continued to flee and was not stopped by the
officers. 614 F.3d 1213 (10th Cir. 2010). In Brooks, the Tenth Circuit rejected the
Plaintiff’s argument that Hodari stood for the proposition that a suspect is seized merely
because physical force, though unsuccessful, was applied. In discussing Hodari, the Tenth
Circuit outlined a critical qualifying statement from the Hodari decision:
We have consulted the common-law to explain the meaning of seizure….
[and] neither usage nor common-law tradition makes an attempted seizure a
seizure. The common law may have made an attempted seizure unlawful in
certain circumstances; but it made many things unlawful, very few of which
were elevated to constitutional proscriptions.
Id. at 1221 (quoting Hodari, 499 U.S. at 626 n. 2). Ultimately, the Tenth Circuit determined
that “when read in context and its entirety, Hodari clarifies that a seizure cannot occur
unless a show of authority results in the suspect’s submission.” Id. “[A] seizure requires
‘intentional acquisition of physical control’ and occurs when ‘a person [is] stopped by the
very instrumentality set in motion or put in place in order to achieve that result.” Id.
11
The Supreme Court itself has clarified its holding in Hodari noting that in the Hodari case, the Court was
focused on the proposition that “a police pursuit in attempting to seize a person does not amount to a
‘seizure’ within the meaning of the Fourth Amendment” and that its common law discussion in that case
regarding what may or may not constitute a seizure merely illustrated the principle that “attempted seizures
of a person are beyond the scope of the Fourth Amendment.” Cty. of Sacramento v. Lewis, 523 U.S. 833,
845 (1998).
MEMORANDUM DECISION AND ORDER - 25
(quoting Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010)). There simply is no
seizure without submission and termination of movement, and the Fourth Amendment may
“not be stretched to cover attempted seizures . . . .” Id. at 1222. The Court finds the Tenth
Circuit’s analysis helpful and its reasoning persuasive in the present case.
Importantly, the Ninth Circuit has also ruled that “[a] seizure occurs either when a
suspect is physically forced to stop or when the suspect submits to the officer’s show of
authority.” United States v. Hernandez, 27 F.3d 1403, 1406 (9th Cir. 1994) (citing Hodari),
as amended (Sept. 21, 1994).
Thus, Hodari and Brendlin are not incongruent, but work together to illustrate that
while it is true a mere touching or grasping could be considered a seizure under the Fourth
Amendment, it is only so if the action actually accomplishes the task of submission. In
other words, a touch, grasp, or brushing is not a seizure unless it subjects a person to
“governmental termination of freedom of movement through means intentionally applied”
(Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97 (1989)) or in some way restrains his or her
physical liberty (Terry v. Ohio, 392 U.S. 1, 19 (1968)). See also Farrell v. City of New
York, No. 15 CIV. 8401 (PAE), 2018 WL 944400, at *8 (S.D.N.Y. Feb. 15, 2018) (finding
that “although ‘mere grasping or application of physical force’ may constitute an arrest,
Hodari D, 499 U.S. at 624, such contact does not necessarily rise to that level”); cf.
Graham v. Connor, 490 U.S. 386, 396 (1989) (“Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.” (internal citation and quotation marks omitted)).
MEMORANDUM DECISION AND ORDER - 26
Numerous circuits since Hodari have also clarified and interpreted “Supreme Court
precedent as requiring intentional termination of movement or acquisition of physical
control in flight situations, regardless of the force applied.” Brooks, 614 F.3d at 1221–22
(further clarifying that “ none of our holdings suggest the mere use of physical force or
show of authority alone, without termination of movement or submission, constitutes a
seizure.”); United States v. Bradley, 196 F.3d 762, 768 (7th Cir.1999) (holding “there must
be either a show of authority or a use of force” which “must have caused the fleeing
individual to stop attempting escape”); United States v. Hernandez, 27 F.3d 1403, 1405,
1406–07 (9th Cir.1994) (determining no seizure occurred when officer grabbed suspect, a
struggle ensued, and suspect fled, as he “was not seized because he never submitted to
authority, nor was he physically subdued” and further holding “[a] seizure does not occur
if an officer applies physical force in an attempt to detain a suspect but such force is
ineffective”).
In the present case, even though Officer Bloxham made physical contact with
Harmon, she did not effectuate an arrest. Harmon retreated into her house, moved about
freely, called her attorney, and eventually went to bed. At no time was Harmon under the
control—either physically, or by yielding to a show of authority—of the officers. Officer
Bloxham never restrained Harmon’s movement, nor her liberty. Under the circumstances,
the Court finds that an arrest did not occur. Summary judgment is appropriate on this claim.
e. Malicious prosecution
Similarly, Harmon cannot support a claim for malicious prosecution because she
was never actually prosecuted. To succeed on a claim for malicious prosecution, a plaintiff
MEMORANDUM DECISION AND ORDER - 27
must show “that the defendants prosecuted her with malice and without probable cause,
and that they did so for the purpose of denying her equal protection or another specific
constitutional right.” Lacey v. Maricopa Cty., 693 F.3d 896, 919 (9th Cir. 2012) (citing
Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995).
Here, Harmon’s claim of malicious prosecution fails because she was never
prosecuted with respect to Cassie Hughes’ complaint. No citation was issued, and no
charges were ever filed against Harmon based on Hughes’ 2016 complaint of telephone
harassment. Furthermore, while it is true the Officers went to speak with Harmon about
Hughes’ complaint, they did not attempt to initiate an arrest based on Hughes’ complaint,
but rather attempted an arrest pursuant to the outstanding warrant from the 2015 allegations
of telephone harassment. Prosecutors ultimately dropped those charges as well.
All of Harmon’s allegations in this lawsuit arise from the Officers’ investigation of
Hughes’ complaint. Consequently, because Harmon was not prosecuted in any way based
on Hughes’ complaint, she cannot possibly have a claim for malicious prosecution.
Moreover, even if Harmon had alleged a claim for malicious prosecution with
respect to her prior charge for telephone harassment—stemming from the original arrest
warrant in the 2015 case, as will be explained in greater detail below, she cannot establish
a lack of probable cause. This is fatal to Harmon’s malicious prosecution claim.
Specifically, with respect to the 2015 charges, there was a valid warrant establishing
probable cause to arrest Harmon for telephone harassment. The fact that those charges were
later dismissed does not signify any type of malicious prosecution, but only that the
prosecutor decided to drop the charges.
MEMORANDUM DECISION AND ORDER - 28
Harmon counters that Defendants are missing the mark in their arguments and that
“prosecution” is not simply formal prosecution in the court system, but prosecution in the
general sense of the word—including everything that leads up to formal court proceedings.
According to Harmon, the deficient affidavit, officers coming to her house, the attempted
arrest, and the surrounding events all fall under the “prosecution” umbrella. Harmon does
not provide caselaw to support this proposition and the Court is unaware of any.
The Court is not saying Harmon’s argument is wholly without basis, because there
are cases which appear to broaden “prosecution” as widely as Harmon suggest. See, e.g.,
Van Audenhove v. Perry, 11 Cal. App. 5th 915, 922 (Ct. App. 2017), as modified (June 14,
2017), review denied (Aug. 9, 2017) (“Malicious prosecution is procuring the arrest or
prosecution of another under lawful process, but from malicious motives and without
probable cause. An arrest warrant constitutes criminal process.” (internal citations and
quotations omitted)).
Other courts, however, have determined the lines do not blur as much as Harmon
suggests:
A false arrest claim, which is based on the Fourth Amendment, “provide[s]
remedies only for detention that occurs before formal charges kick off an
actual prosecution.” Julian, 732 F.3d at 846–47; see also Wiley v. City of
Chicago, 361 F.3d 994, 998 (7th Cir.2004) (“[T]he scope of a Fourth
Amendment claim is limited up until the point of arraignment; ‘the interest
in not being prosecuted groundlessly is not an interest that the Fourth
Amendment protects.’”). On the other hand, a malicious prosecution claim,
which is based on the denial of the right to procedural due process protected
by the Fourteenth Amendment, “provides a remedy for a deprivation of
liberty pursuant to legal process.” Serino v. Hensley, 735 F.3d 588 (7th
Cir.2013)
MEMORANDUM DECISION AND ORDER - 29
Starks v. Moore, No. 1:12-CV-1008-WTL-DML, 2015 WL 1825905, at *3 (S.D. Ind. Apr.
22, 2015).
Regardless of how broadly or narrowly the Court approaches the subject of
malicious prosecution, the fact remains that not only was Harmon not prosecuted for either
charge, she was not arrested on either charge as well. She was merely investigated.
Additionally, as the Court will explain below, Officers were justified in their actions and
did not pursue Harmon “with malice,” “without probable cause,” and “for the purpose of
denying [her] equal protection or another specific constitutional right.” Awabdy v. City of
Adelanto, 368 F.3d 1062, 1066 (9th Cir.2004). Summary judgment is, therefore,
appropriate on this claim.
2. Excessive Force (Claim 3)
Defendants next allege that summary judgment is appropriate on Harmon’s
excessive force claim because she cannot establish the force used was unreasonable.
Simply put, Harmon alleges that Defendants used unreasonable force in their arrest
attempts in light of the fact that she was wearing a splint on her wrist from a recent surgery
dealing with arthritis.
Harmon testified that following this incident, she had to wear splints on her wrist
for longer than she was expecting (approximately 8 additional weeks) and that she took
some medications and participated in physical therapy.12 Dkt. 23-3, at 184. Harmon did not
require any further surgeries. Id.
12
It is not entirely clear, but it appears Harmon was already attending physical therapy and taking
medications, but that this incident “exacerbated” her condition. Dkt. 23-3, at 184.
MEMORANDUM DECISION AND ORDER - 30
Courts use the reasonableness test of the Fourth Amendment when analyzing a
claim of excessive force incident to an arrest. Graham v. Connor, 490 U.S. 386, 394 (1989).
When weighing an excessive force claim, summary judgment is appropriate if the Court
“concludes, after resolving all factual disputes in favor of the plaintiff, that the officer’s
use of force was objectively reasonable under all circumstances.” Scott v. Henrich, 39 F.3d
912, 915 (9th Cir. 1994) (emphasis added). When considering this question, the Court must
be cognizant that all determinations of unreasonable force “must embody allowance for the
fact that police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 914 (quoting Graham, 490 U.S. at 396-97) (internal
quotations omitted). “The right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat thereof to effect it.”
Graham, at 396.
Painful handcuffing, without more, is not excessive force in cases where the
resulting injuries are minimal. Brissett v. Paul, 141 F.3d 1157 (4th Cir.1998); Foster v.
Metropolitan Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir.1990) (same); Martin v.
Gentile, 849 F.2d 863, 869–70 (4th Cir.1988) (same). Moreover, even if serious injuries
result from normal handcuffing techniques due to a preexisting condition, there can be no
constitutional violation unless officers knew of the condition. Rodriguez v. Farrell, 280
F.3d 1341, 1351–53 (11th Cir. 2002).
In Rodriguez, the evidence established that officers “grabbed plaintiff’s arm, twisted
it around plaintiff’s back, jerking it up high to the shoulder and then handcuffed plaintiff
MEMORANDUM DECISION AND ORDER - 31
as plaintiff fell to his knees screaming that [the Officer] was hurting him.” Id.
Unfortunately, the plaintiff had recently undergone elbow surgery, and as a result of the
handcuffing, the plaintiff experienced “loosening of the internal surgical hardware . . . .
The resulting complications included more than twenty-five subsequent surgeries and
ultimately amputation of the arm below the elbow.” Id. Although the plaintiff in Rodriguez
experienced serious injury from his arrest, with respect to his claim of excessive force, the
Eleventh Circuit determined that:
. . . Rodriguez’s earlier surgery made what otherwise would be a common
non-excessive handcuffing technique (that ordinarily would be painful but
cause minimal injury) a maneuver that caused severe injury and tragic
results. This distinction, however, is not important legally and does not
preclude a conclusion that Rodriguez has shown no constitutional violation:
no evidence has been presented that Sgt. Farrell knew of plaintiff’s recent
elbow surgery or, more important, knew that handcuffing plaintiff would
seriously aggravate plaintiff’s preexisting condition. We do not use hindsight
to judge the acts of police officers; we look at what they knew (or reasonably
should have known) at the time of the act. What would ordinarily be
considered reasonable force does not become excessive force when the force
aggravates (however severely) a pre-existing condition the extent of which
was unknown to the officer at the time.
Id. (emphasis added).
Similarly, this Court recently dismissed a plaintiff’s claim of excessive force when
he alleged that he was “cuffed with such force that it tore [his] shoulder tendons.” See
Thomas v. Cassia Cty., Idaho, No. 4:17-CV-00256-DCN, 2019 WL 938385, at *7 (D.
Idaho Feb. 26, 2019). In that case, the Court determined the use of force amounted to a
“non-violent handcuffing, carried out in a reasonable manner” and that there was no
indication the officer was aware of a preexisting shoulder condition when they placed the
Plaintiff in handcuffs. Id. “Simply placing an arrestee in handcuffs to be transported to the
MEMORANDUM DECISION AND ORDER - 32
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.” Id. at *8 (citing LaLonde v. County of Riverside, 204 F.3d 947, 964 (9th Cir.2000)
(“Handcuffing an arrestee is standard practice, everywhere.”)).
In this case, Officer Bloxham used minimal force when attempting to initiate
Harmon’s arrest. Officer Bloxham reached out to grab Harmon’s arm to secure her arrest,
but Harmon pulled away and Bloxham was unable to gain positive control of her. Dkt. 214, at 22. Harmon testified that when Officer Bloxham grabbed her wrist, “I, of course,
knee-jerk reaction, pulled back . . . .” Dkt. 21-4, at 8. Unfortunately, Harmon had recently
undergone surgery on her wrist for arthritis, but neither Officer Vail nor Bloxham knew of
Harmon’s preexisting condition nor did they observe a splint on her wrist. Officer Bloxham
testified that Harmon was not wearing a splint that night (Dkt. 23-3, at 66-67) and that she
would have avoided grabbing at Harmon had she seen any medical device on Harmon’s
wrist (Dkt. 23-3, at 77). Officer Vail testified that he was able to get a “full view” of
Harmon’s arm that night, that she was not wearing a splint, and that as an Arrest Control
Tactics Instructor it wouldn’t have been appropriate to grab someone’s wrist while wearing
a splint. Dkt. 23-3, at 113. However, Harmon claims the splint was on that night. Dkt. 233, at 182.
Even assuming arguendo that Harmon was wearing a splint on her wrist that
evening, Officer Bloxham’s actions in reaching out to grab Harmon’s arm were
“objectively reasonable under [the] circumstances.” Scott v. Henrich, 39 F.3d 912, 915 (9th
MEMORANDUM DECISION AND ORDER - 33
Cir. 1994. Harmon was not violent or aggressive and Bloxham responded in kind. Her
actions were not violent or overbearing, but tailored to the circumstances.
Further, even if some “minimal injuries” occurred as a result of the routine task of
handcuffing—which didn’t even occur in this case—such injury does not support an
excessive force claim. See, e.g., Graham, 490 U.S. at 396 (“Not every push or shove, even
if it may later seem unnecessary in the peace of a judge’s chambers’ violates the Fourth
Amendment.” (internal citation and quotation marks omitted)).
Here, upon the record, the Court finds that Officer Bloxham’s actions were
appropriate and “objectively reasonable under all circumstances.” Scott v. Henrich, 39 F.3d
912, 915 (9th Cir. 1994). The Court grants summary judgment on Harmon’s excessive
force claim.
3.
Qualified Immunity
In addition to the individual arguments discussed herein, Defendants also assert they
are entitled to qualified immunity because they did not violate any clearly established right.
The Court agrees.
As discussed infra (see Section A(1)(b)), the purpose of the doctrine of qualified
immunity is to shield public officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights.” Harlow, 457
U.S. at 818. While the purpose of 42 U.S.C. § 1983 is to deter state actors from using the
badge of their authority to deprive individuals of their federally guaranteed rights and to
provide relief to harmed parties, Wyatt v. Cole, 504 U.S. 158, 161 (1992), to state a claim
under § 1983, a plaintiff must allege facts which show a deprivation of a right, privilege,
MEMORANDUM DECISION AND ORDER - 34
or immunity secured by the Constitution or federal law by a person acting under color of
state law. Id. Acting under color of state law is “a jurisdictional requisite for a § 1983
action.” West v. Atkins, 487 U.S. 42, 46 (1988). In this case, it is undisputed that the
Officers were acting under color of state law when they were performing their duties in
this case. The question, therefore, is whether the Officers deprived Harmon of a right,
privilege, or immunity secured by the Constitution or federal law.
To determine whether an officer is entitled to qualified immunity, a court must
evaluate two independent questions: (1) whether the officer’s conduct violated a
constitutional right, and (2) whether that right was clearly established at the time of the
incident. Pearson, 555 U.S. at 232.
First, Defendants did not violate any constitutional right because they were
authorized to arrest Harmon based upon a warrant supported by probable cause. In addition,
even if the Court were to determine—now, after the fact—that the warrant was invalid, the
Court’s analysis would not change. “A police officer acting in good faith on an invalid
arrest warrant is not liable for his actions.” Coulson, 69 F.3d at 543 (citing United States v.
Hensley, 469 U.S. 221, 232 (1985)).
Second, as previously noted in relation to Harmon’s “show the warrant” argument,
Harmon has not proven any other “clearly established right” that Defendants violated. She
was not entitled to see the warrant or to have it explained to her; she was not maliciously
prosecuted; Defendants did not use excessive force; and as will be explained shortly,
Defendants did not need to intervene, nor was there a policy or custom affecting her rights.
In short, Harmon cannot meet either prong of the qualified immunity test.
MEMORANDUM DECISION AND ORDER - 35
What’s more, even were the Court to find some minor error or flaw in Defendants’
behavior, such would likely still not be sufficient to defeat summary judgment on any
particular claim. Qualified immunity is designed to give government officials “breathing
room to make reasonable but mistaken judgments about open legal questions. When
properly applied, it protects all but the plainly incompetent or those who knowingly violate
the law.” Ashcroft 563 U.S. at 743. In this case, Defendants acted reasonably in all respects
and the Court finds no clear violation of the law. Accordingly, the Court finds that
Defendants are entitled to qualified immunity on the previously discussed claims. This is
a second, independent reason supporting summary judgment.
4. Practices or Policies “Monell” Claim (Claim 7)
Next, Defendants contend that the City of Pocatello is not liable under any theory
of respondent superior because Harmon cannot establish a genuine issue of fact based upon
direct liability. The law is clear that governmental entities cannot be vicariously liable in §
1983 claims. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978).
Harmon’s claims under § 1983 against the City of Pocatello are premised upon the alleged
actions and/or conduct of Pocatello Police Department Officers. Here, Harmon is
attempting to hold the City of Pocatello liable for the alleged actions and/or conduct of its
employees, which is improper:
In Monell v. Department of Social Services of New York City, 436 U.S. 658,
56 L.Ed.2d 611, 98 S. Ct. 2018 (1978), the Supreme Court held that a local
governmental entity cannot be sued under § 1983 on a theory of respondeat
superior. . . . Congress did not intend for counties to be held liable under a
respondeat superior theory – a county will not be liable solely because it
employs a tortfeasor.
MEMORANDUM DECISION AND ORDER - 36
Limbert v. Twin Falls County, 955 P.2d 1123, 1126 (1998) (citations omitted).
Under Monell, the only time a party can seek liability against a municipality is if he
or she establishes that (1) he or she was deprived of a constitutional right; (2) the
municipality (or entity) had a policy or custom; (3) the policy or custom amounted to
deliberate indifference to his or her constitutional right; and (4) the policy or custom was
the moving force behind the constitutional violation. See Mabe v. San Bernardino Cty.,
Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir. 2001) (citing Van Ort v. Estate
of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (internal quotation marks omitted)).
An unwritten policy or custom must be so “persistent and widespread” that it
constitutes a “permanent and well settled city policy.” Monell, 436 U.S. at 691. “Liability
for improper custom may not be predicated on isolated or sporadic incidents; it must be
founded upon practices of sufficient duration, frequency, and consistency that the conduct
has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911,
918 (9th Cir. 1996). A municipality’s “continued adherence to an approach that they know
or should know has failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action—the deliberate indifference—
necessary to trigger municipal liability.” Board of Comm’rs of Bryan County v. Brown, 520
U.S. 397, 410 (1997) (internal quotation marks and citation omitted). “Deliberate
indifference is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61.
The only allegation that could potentially meet the deliberate indifference standard
in this case is Harmon’s argument that the City had a policy or custom of having day
MEMORANDUM DECISION AND ORDER - 37
officers make affirmative misrepresentations and/or omit material facts in probable cause
affidavits to obtain warrants. As the Court will explain below,13 however, Harmon has not
established the City had such a policy.
Furthermore, even if Harmon could show that in this case PPD mistakenly or
recklessly obtained the affidavit and/or warrant, it would not be sufficient to support a
Monell claim. The Supreme Court has held that a single incident of bad conduct does not
create an issue of fact under Monell. City of Oklahoma City v. Tuttle, 471 U.S. 808, 821
(1985). “At the very least there must be an affirmative link between the policy and the
particular constitutional violation alleged.” Id. at 823.
Here, the Court has already found that Defendants did not violate any of Harmon’s
clearly established rights. There is therefore no basis within the prior claims to support a
Monell claim. Turning more broadly to Harmon’s allegations that the whole premise of her
warrant and attempted arrest in this case is an indication of failures within the Pocatello
Police Department, the Court finds it cannot accept this argument either. Besides Harmon’s
almost bare allegation regarding how PPD obtains warrants, she has not made any “link”
between a custom or course of conduct of the City and the attempted arrest in this case. In
sum, Harmon’s Monell claim fails and summary judgment is appropriate.
5. Failure to Train / Failure to Intervene (Claims 5, 6)
Finally, similar to the preceding topic, Defendants argue that there is no link
between any action taken by Defendants and any policy or custom illustrating that the City
13
See Section IV(B)(1).
MEMORANDUM DECISION AND ORDER - 38
of Pocatello failed to train and/or supervise its Officers. For her part, Harmon re-alleges
that the entire incident is evidence of the City’s failure to adequately train its police officers.
Insofar as the court has determined that Officer Bloxham and Officer Vail acted
appropriately under the circumstances, it cannot find that the City of Pocatello or the
Pocatello Police Department failed to adequately train and/or supervise its employees
(Claim 6). Summary judgment is appropriate on this claim.
In like manner, because Harmon’s fifth claim is based on other officers’ purported
failure to intervene against Officer Bloxham when they “observed and had reason to know
that excessive force was being used against Mrs. Harmon,” and observed other “illegal
actions” (such as not stating the cause of the arrest or showing the warrant)—claims which
the Court has already found do not survive summary judgment—it similarly finds that
summary judgment is appropriate on Harmon’s failure to intervene claim.
B. Plaintiff’s Motion for Partial Summary Judgment (Dkt. 22)14
In her Motion for Partial Summary Judgment, Harmon focuses on three
claims/issues. As eluded to numerous times, Harmon’s first argument regarding the City
and PPD’s liability under Monell has morphed into one of the largest, most critical issues
in this case. Because the Court has granted Harmon’s Motion to Amend Complaint, this
issue is now fully before the Court.
14
While the Court has already discussed each of Harmon’s claims, such was framed against the backdrop
of Defendants’ Motion for Summary Judgment. Harmon separately moved for Summary Judgment, but
only as to three claims. As the Court noted at the outset, because these motions overlap, it is simply easiest
to take them up in order. Thus, while there will be some limited repetition, it is organizationally more
effective to address them as separate motions even though the subject matter intersects.
MEMORANDUM DECISION AND ORDER - 39
1. Unlawful Policy for Probable Cause Affidavits (revised Claim 7)15
In her Motion for Summary Judgment, Harmon begins by alleging that the City of
Pocatello had an unconstitutional policy of having day officers make affirmative
misrepresentations and/or omit material facts in probable cause affidavits to obtain
warrants.
As already explained, a municipality is only liable under § 1983 where the
municipality itself causes a constitutional violation. “It is only when the ‘execution of the
government’s policy or custom . . . inflicts the injury’ that the municipality may be held
liable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Springfield
v. Kibbe, 480 U.S. 257, 267 (1987)). Here, Harmon alleges that the process used to obtain
arrest warrants by Defendants is unconstitutional.
A misrepresentation in an affidavit constitutes a violation of the Fourth Amendment
if the misrepresentation is material. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978).
Misrepresentations
can
be
affirmative
or
based
on
omission.
Affirmative
misrepresentations are material only if there is no probable cause absent consideration of
the misrepresented facts. Id.
A misrepresentation based on an omission is material when the omitted facts “cast
doubt on the existence of probable cause.” United States v. Garza, 980 F.2d 546, 551 (9th
15
In granting Harmon’s Motion to Amend Complaint (Dkt. 29), the Court accepts Harmon’s Amended
Complaint (Dkt. 29-3) which expounds substantially upon the prior Claim 7, a general Monell claim. The
Court has already rejected the original Claim 7. See infra Section IV(A)(4). In the Second Amended
Complaint, Claim 7 is more geared towards how the PPD swears out affidavits. Accordingly, while
somewhat confusing, the Court is essentially analyzing Claim 7 twice, as the Monell issues has been brought
broadly (as originally plead) and then more specifically as to the affidavit process (as amended and
expounded in Dkt. 29-3).
MEMORANDUM DECISION AND ORDER - 40
Cir. 1992) (internal quotation marks omitted). If a plaintiff can demonstrate that a warrant
was issued as the result of a material misrepresentation, a police officer will not be granted
qualified immunity if the plaintiff can also demonstrate that the police officer deliberately
falsified information presented to the magistrate or recklessly disregarded the truth. Crowe
v. Cty. of San Diego, 608 F.3d 406, 435 (9th Cir. 2010) (quoting Hervey v. Estes, 65 F.3d
784, 789 (9th Cir. 1995)).
In this case, Harmon alleges that the City of Pocatello created an unconstitutional
policy within its police department by having day officers make affirmative
misrepresentations and/or material omissions in their Affidavits of Probable Cause on
behalf of their fellow night officers. According to Harmon, the policy, custom, and/or
practice implemented by PPD involved having the dayshift officers fill out a generic
affidavit form with false statements, attach the night officer’s report (which might include
hearsay), personally appear before the judge, and then have the judge sign it. For example,
Harmon argues that because day officers were “swearing” to facts in affidavits they had no
personal knowledge of, they were affirmatively misrepresenting and misleading judges.
Dkt. 22-1, at 5. In like manner, Harmon argues that because day officers did not actually
speak to the night officers who wrote the underlying reports, they were passing along
hearsay information, not corroborating investigations, and deceiving judges by saying the
affidavits were true, accurate, and made “to the best of their knowledge.” Id.
Caselaw is clear that officers need not have personal knowledge of the criminal
investigation to execute an affidavit of probable cause—as long as they don’t claim that
they have personal knowledge of things they do not truly know. Said differently, officers
MEMORANDUM DECISION AND ORDER - 41
are permitted to rely on the facts learned from their fellow officers to prepare a truthful
affidavit. See, e.g., United States v. Ventresca, 380 U.S. 102, 110-11, (1965)
(“Observations of fellow officers of the Government engaged in a common investigation
are plainly a reliable basis for a warrant applied for by one of their number.”); United States
v. Davis, 714 F.2d 896, 899 (9th Cir. 1983) (officers are allowed to “rel[y] on the facts
learned from [] subordinates to prepare a truthful affidavit”); United States v. Steed, 465
F.2d 1310, 1315 (9th Cir. 1972) (other officers are a reliable source for determining
information to include in an affidavit).
Given such authority and the facts of this case, the Court cannot find the City or
PPD had an unlawful policy. Specifically, Officer Wright outlined the standard procedures
for PPD and how those procedures allowed for reliance on other officers and information
while still striving to ensure the most accurate information would be presented to the state
Magistrate Judge. He then explained that he followed those procedures when he filled out
the affidavit of probable cause and obtained the arrest warrant in this case.
Importantly, each time a PPD officer fills out a probable cause affidavit, the officer
must state whether he or she knows the information personally or is relying upon other
officer’s reports and investigations. In this case, when obtaining the October 20, 2015,
arrest warrant, Officer Wright attached the relevant police report from the night before and
specifically noted that he “personally know[s] the author of that [attached] report to be a
law enforcement officer whom I believe to be credible and reliable.” Dkt. 24-1, at 7.
Accordingly, it would have been abundantly clear to anyone looking at the affidavit that
multiple officers were involved in the case. The fact that an officer “swears” or attests to
MEMORANDUM DECISION AND ORDER - 42
the truthfulness of the matters, “to the best of his or her knowledge,” is appropriate—
regardless of whether the officer obtained that information personally or from another
officer.
The Eleventh Circuit has summarized this process well:
Observations of fellow officers of the Government engaged in a common
investigation are plainly a reliable basis for a warrant applied for by one of
their number. To comply with the requirement of particularity and to enable
the magistrate to make an independent probable cause evaluation, however,
the agent must state in the affidavit that he is relying upon other officers. We
caution that this requirement should not be viewed in a hypertechnical, rather
than a common-sense, manner. It is sufficient if the affidavit recites at the
outset, or if it is clear from reading the affidavit as a whole, that it is based in
part upon information obtained from other law enforcement officers.
United States v. Kirk, 781 F.2d 1498, 1505 (11th Cir. 1986) (internal quotations and
citations omitted). The Court has reviewed Officer Wright’s affidavit of probable cause
and agrees that in all material respects, the actions were appropriate.
As this point, the Court must digress briefly to address Harmon’s Motion to Strike
(Dkt. 28). Harmon has moved to strike the aforementioned affidavit (Dkt. 24-1) of Shaun
Wright filed in conjunction with Defendants’ Response to [Harmon’s]Motion for Partial
Summary Judgment alleging that it is a sham affidavit because it contradicts Wright’s prior
deposition testimony. Defendants responded16 to Harmon’s Motion and outlined how each
of Officer Wright’s statements does not contradict his prior testimony but further clarifies
and/or expounds upon what he previously said. The Court has reviewed Wright’s affidavit,
as well as his prior testimony, and finds that while there are nuances between the two, the
16
Harmon never replied to Defendants’ Response.
MEMORANDUM DECISION AND ORDER - 43
recent affidavit does not contradict Wright’s prior testimony but instead develops it. For
these reasons, the Court DENIES Harmon’s Motion to Strike and will give Wright’s
affidavit the weight it deems appropriate.
Returning to Harmon’s arguments, the Court finds that even were it to determine
there was a false or misleading statement in the affidavit of probable cause, under Franks,
the false statement must have been made either intentionally or with reckless disregard for
the truth and been necessary to the finding of probable cause in order for it to render the
warrant invalid. Franks, 438 U.S. at 155-56; See also Crowe v. Cty. of San Diego, 608 F.3d
406, 435 (9th Cir. 2010) (“Even if a plaintiff is able to demonstrate that a warrant was
issued as the result of a material misrepresentation, a police officer defendant may still be
entitled to summary judgment on qualified immunity grounds, unless the plaintiff can also
demonstrate that the police officer deliberately falsified information presented to the
magistrate or recklessly disregarded the truth.”) (citing Hervey v. Estes, 65 F.3d 784, 789
(9th Cir.1995)).
Here, Harmon alleges that had Officer Wright investigated the claims himself when
filing out the affidavit, and that, if he had looked at the text messages in question, he would
have realized that there was no telephone harassment and consequently that there was no
basis for the warrant. Harmon claims that this lackadaisical behavior is indicative of
“reckless disregard for the truth.” Dkt. 22-1, at 11. As noted, however, Officers are allowed
to rely on facts obtained from other officers and are not required to conduct an independent
investigation. Second, it is not entirely clear that the outcome Harmon suggests—that an
investigation would have shown that the text messages from Harmon were not directed at
MEMORANDUM DECISION AND ORDER - 44
the individual claiming harassment, and/or were not harassing in nature—would have been
the automatic result. This is pure speculation and because Harmon cannot point to any
objective or reckless behavior on Wright’s part, the Court finds it difficult to accept that a
constitutional violation has occurred. Critically, “omissions or misstatements in a search
warrant affidavit, although negligent, are fatal only if reckless and made with intent to
deceive the court. Omissions or misstatements resulting from negligence or good faith
mistakes will not invalidate an affidavit which on its face establishes probable cause.”
United States v. Botero, 589 F.2d 430, 433 (9th Cir. 1978) (citing Franks, 438 U.S at 171).
Here, while it does appear (in hindsight) that the affidavit contained information
that likely wouldn’t lead to an arrestable offense, based upon the evidence in the Wright’s
possession
at
the
time—and
finding
no
deliberate
indifference,
objective
misrepresentation, or reckless action on his part—the Court is not persuaded by Harmon’s
argument. Accordingly, Wright is afforded qualified immunity in this instance because
there is no evidence of a deliberate falsification or reckless disregard for the truth.
Broadening this concept beyond the confines of the instant case, Harmon has also
not provided sufficient evidence to support the allegation that Defendants City of Pocatello
or PPD engaged (then or now) in any unconstitutional policy or custom under Monell.
Harmon’s Motion for Summary Judgment on this claim is, therefore, DENIED.
2. Unlawful Arrest
Next, Harmon alleges there is no dispute of fact that Harmon was unlawfully
arrested. Dovetailing into the above discussion, Harmon first alleges that her Fourth
Amendment rights were violated because a warrant was issued without probable cause.
MEMORANDUM DECISION AND ORDER - 45
First, as the Court just found, a lawfully obtained warrant was issued for Harmon
and Defendants were within their rights to act upon it. Second, as was discussed in the prior
section, Harmon was never under arrest because Officers Bloxham and Vail never had
physical control over her, nor had she acquiesced to their authority. Consequently,
Harmon’s request for summary judgment on this claim must be DENIED.
3. Malicious Prosecution
Correspondingly, relying on the idea that no probable cause existed in the first
instance, Harmon asserts that malice can be inferred in this case and that all Defendants
action—from the initial “false” affidavit all the way to the dismissal of the charges—are
evidence they “prosecuted” her in an unreasonable manner.
Because the Court finds that Defendants had probable cause and a valid warrant and
that Harmon was never actually prosecuted, this claim fails. The individual actions taken
by officers throughout the process were valid, justified, and legal. Each is also entitled to
qualified immunity. The Court thus DENIES Harmon’s motion for summary judgment on
this claim.
V. CONCLUSION
After an exhaustive review of the facts of this case, the deposition testimony, the
parties’ briefs, and all relevant caselaw, the Court finds that Harmon’s individual
circumstances do not give rise to any colorable Fourth Amendment cause of action.
Furthermore, there is no evidence to support the broader allegations that Defendants
engaged in a widescale unconstitutional policy or practice. Summary Judgment is,
therefore, properly granted in favor of Defendants on each of Harmon’s claims.
MEMORANDUM DECISION AND ORDER - 46
VI. ORDER
IT IS HEREBY ORDERED:
1. Harmon’s Motion to Amend/Correct (Dkt. 29) is GRANTED.
2. Harmon’s Motion to Strike (Dkt. 28) is DENIED.
3. Harmon’s Motion for Partial Summary Judgment (Dkt. 22) is DENIED.
4. Defendants’ Motion for Summary Judgment (Dkt. 21) is GRANTED.
5. The Court will enter a separate judgment in accordance with Federal Rule of
Civil Procedure 58.
DATED: January 7, 2020
_________________________
David C. Nye
Chief U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 47
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