Skogen et al v. Kosola et al

Filing 23

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim; adopting Findings and Recommendations re 18 Findings and Recommendations. Signed by Judge Dana L. Christensen on 10/10/2017. Copy of Order mailed to Plaintiffs. (DED)

FILED
OCT 1 0 2017
IN THE UNITED STATES DISTRICT COURT c1erk. u.s rnatrictCourt
FOR THE DISTRICT OF MONTANA
Distri~i~:~~ntana
HELENA DIVISION

LARRY SKOGEN and JACE
SKOGEN,

CV 16-50-H-DLC-JTJ

Plaintiffs,

ORDER

vs.
DAVID KOSOLA, AUSTIN HECKER,
STEVE HADDON, and STATE OF
MONTANA,
Defendants.
United States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on June 12, 2017, recommending that Defendants'
motion to dismiss Counts 1 and 2 be denied, and further recommending that
Defendants' motion to dismiss Counts 3, 4, 5, and 6 be granted. Plaintiffs Larry
Skogen ("Larry") and Jace Skogen ("Jace") timely filed an objection to the
Findings and Recommendations, and so are entitled to de novo review of those
findings and recommendations to which they specifically object. 28 U.S.C.
§ 636(b )(1 )(C). This Court reviews for clear error those findings and

recommendations to which no party objects. See McDonnell Douglas Corp. v.

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Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). Clear error exists if the Court is left with a
"definite and firm conviction that a mistake has been committed." United States v.

Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
Notwithstanding the above, "[w]here a petitioner's objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for
clear error." Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21,
2014) (citations omitted).

BACKGROUND
In June 2013, Larry and Jace were attending Headwaters Country Jam, a
three-day music festival in Jefferson County, Montana, when they were arrested.
The arrests lead to the charges in this case. Attendees to Headwaters Country Jam
purchase wristbands to obtain entry into the festival for the desired number of days
of which they are attending. J ace possessed a wristband allowing entry for all
three days of the festival. Larry, Larry's son, Jace, and Larry's wife, Kathy,
attended the festival, along with one of Jace's friends and two of Larry's nephews.
(Doc. 1 at 2.)
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On the first evening of the festival, June 28, 2013, Jefferson County Reserve
Deputy Austin Hecker approached a camp site where Jace, his friend SM, and
Larry's nephews TS and JR were hanging out with other festival attendees.
Deputy Hecker ordered everyone to stay at the camp site, called for backup, and
then began requesting breath samples from the minors at the campsite. Deputy
Hecker requested JR and TS provide a breath sample and both refused. Deputy
Hecker cited JR and TS for obstructing a peace officer and minor-in-possession of
alcohol. Around this time, other Jefferson County Deputies arrived at the
campsite. Jace was then requested to provide a breath sample, but refused.
Deputy Hecker arrested him, cited him for obstructing a peace officer and minorin-possession of alcohol, and then placed him in a patrol car until he was released
to his mother. Upon release to his mother, Deputy Hecker used a pocket knife to
cut off Jace's three-day concert wristband. (Id.)
While Jace was in the patrol car, a deputy asked SM for his identification.
SM informed the deputy that his ID was in his car parked at the edge of the
campground. As two deputies escorted SM to his car, Larry noticed and asked the
deputies what was happening. The officers explained that SM had been at a
campsite where there appeared to be minors drinking alcohol and they were going
to obtain SM' s ID and then request a breath sample. Larry informed the officers
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that SM had the right to refuse the breath test and further relayed to the officers
that he would contact SM' s parents to determine how SM should proceed. The
deputies then invited Larry to go back to the campsite with them.
After returning back to the campsite with the deputies, Larry noticed an
officer attempting to give his nephew, ER, a breath test. (Id. at 3.) Larry told ER
he did not have to take the test. An officer then told Larry to leave the campsite.
Larry informed Jefferson County Deputy David Kosola that the deputies were
violating ER' s constitutional rights and that ER was his nephew so he would
advise him on how to handle the situation. Deputy Kosola then arrested Larry for
obstructing a peace officer.
Larry was tried and convicted in Justice Court for Jefferson County,
Montana, on the charge of obstructing a peace officer in violation of Montana
Code Annotated§ 45-7-302. Larry appealed his conviction to the Montana Fifth
Judicial District Court. Larry was offered a plea agreement in District Court, to
which he refused. The District Court dismissed the charge on June 4, 2014.
Jace entered a plea of not guilty to the charge of obstructing a peace officer
in violation of Montana Code Annotated§ 45-7-302, and possession of
intoxicating substance in violation of Montana Code Annotated§ 45-5-624. The
Justice Court for Jefferson County dismissed the obstructing a peace officer
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charge. Jace appeared in the Montana Fifth Judicial District Court on the
possession of intoxicating substance charge. The District Court ultimately
dismissed this charge, as well.
Larry and Jace Skogen (collectively "the Skogens") filed a Complaint under
42 U.S.C. § 1983 alleging that Defendants committed multiple constitutional
violations. (Doc. 1.) In Count 1, the Skogens allege that Deputy Kosola violated
their First Amendment rights when arresting Larry for telling his nephew that he
did not have to provide a breath sample and arresting Jace for saying that he would
not provide a breath sample. (Doc. 1 at 2.) In Count 2, the Skogens allege that
Deputy Hecker violated Jace's Fourth Amendment rights by unlawfully arresting
him, and that Deputy Kosola violated Larry's Fourth Amendment rights by
unlawfully arresting him. The Skogens further allege that Deputy Hecker' s arrest
of Jace also violated Larry's rights because it violated the Montana Youth Court
Act. In Count 3, the Skogens allege that Deputy Hecker violated Jace's Fifth
Amendment rights by unlawfully arresting him, which also violated Larry's rights
under the Montana Youth Court Act. In Count 4, Jace alleges that Deputy Hecker
violated his Fifth Amendment rights by cutting off his concert wristband when he
released him from custody. (Doc. 1 at 5.) In Count 5, Jace alleges that Deputy
Hecker violated his Sixth Amendment rights by not allowing him to speak with his
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mother before being questioned after his arrest for obstruction. (Doc. 1 at 5.)
Lastly, the Skogens seek a declaration from this Court that Montana Code
Annotated§ 45-7-302 is unconstitutional. Judge Johnston's finding and
recommendation on this issue is the bases for the Skogens' subsequent objection.
(Doc. 21.) Defendants did not object to the Findings and Recommendations, but
filed a response to the Skogens' objection. (Doc. 22)
STANDARD

The Federal Rules of Civil Procedure allow for dismissal when the
allegations in the pleading "fail[] to state a claim upon which relief can be
granted." Fed. R. Civ. P. 12(b)(6). Thus, in order to survive a motion to dismiss,
the "complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations and quotation marks omitted). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements do not
suffice." Id., 556 U.S. at 678. "[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not 'shown'-'that the pleader is entitled to relief."' Id., 556
U.S. at 679, quoting Fed. R.Civ. P. 8(a)(2). "While legal conclusions can provide
the framework of a complaint, they must be supported by factual allegations." Id.,
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556 U.S. at 664. Nonetheless, a court may dismiss a complaint if it lacks a
cognizable legal theory." SmileCare Dental Group v. Delta Dental Plan of

California, Inc., 88 F.3d 780, 782-783 (9th Cir. 1996). "All allegations of
material fact are taken as true and construed in the light most favorable to the
plaintiff." Id.

DISCUSSION
I.

Count 1
The Defendants argue that the claims brought under Count 1 are barred

because the officers had probable cause to arrest Jace and Larry, or in the
alternative, that even if probable cause did not exist for the arrests, they are
protected by qualified immunity because they reasonably believed the arrests of
both Larry and J ace were lawful. If qualified immunity does not protect the
officers, the Defendants argue that Larry and Jace fail to state a viable claim for a
violation of their First Amendment rights. (Doc. 18 at 10, 14.)
A claim under § 1983 based upon an alleged unlawful arrest is barred if
probable cause existed for the arrest. Dubner v. City and County ofSan

Francisco, 266 F.3d 959, 964-65 (9th Cir. 2001). Even if a court determines that
probable cause did not exist, the doctrine of qualified immunity bars a claim if the
officers had a reasonable belief that probable cause existed. Harlow v. Fitzgerald,
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457 U.S. 800, 818 (1982). Thus, ifthe Court determines that the deputies had
probable cause, or at least a reasonable belief of probable cause to arrest Larry and
Jace, the Court must grant Defendant's motion to dismiss Count 1.
Under Montana law, a person obstructs a peace officer when he knowingly
"obstructs, impairs, or hinders the enforcement of the criminal law, the
preservation of peace, or the performance of a government function ... " Mont.
Code Ann. 45-7-302 (2015). The Skogens allege that Deputy Hecker arrested
Jace for obstructing a peace officer after he refused to provide a breath sample.
(Doc. 1 at 2.) The Court does not find any additional allegations that would cause
a reasonable person to believe that Jace's conduct had obstructed a peace officer
or hindered the deputies from their ability to perform their duties. Thus, Deputy
Hecker did not have probable cause to arrest Jace.
The Skogens also allege that Deputy Kosola arrested Larry for obstructing a
peace officer after Larry told his nephew that he did not have to provide a breath
sample to the deputies and after telling the deputies they were violating the
campers' rights. (Doc. 1 at 2.) The Defendants argued that they had probable
cause to believe Larry was violating the obstruction of a peace officer statute
because Larry was "forcefully tell[ing] other [persons] not to cooperate with the
deputies." (Doc. 11 at 15.) However, the Complaint does not contain any
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allegations that Larry's speech resulted in campers actually refusing to cooperate
with the investigation, nor did the allegations contend that the speech prevented
the deputies from conducting and performing their investigative duties. Based on
the allegations in the Complaint, Deputy Kosola did not have probable cause to
arrest Larry.
Further, based on the allegations in the Complaint, a reasonable person
would not have believed that probable cause existed for the Skogens' arrests.
While qualified immunity protects police officers from a reasonable mistake as to
the legality of their actions, it was not reasonable for the deputies to believe they
could arrest Larry and Jace for speaking.
Judge Johnston concluded that the deputies did not have probable cause to
arrest the Skogens and, further, that it was unreasonable to believe they could
arrest the Skogens forthe mere act of speaking. (Jd. at 12-13, 14-15.) The First
Amendment provides people with the freedom of speech. U.S. Const. amend. I.
Defendants argue that no legitimate free speech interest is implicated by the arrest
under Montana's obstruction of a peace officer statute because the "charge of a
violation of§ 45-7-302 was not due to the act of speaking, rather the arrest and
charge were obviously based upon the content of the speech." (Doc. 11 at 17.)
Defendants argue that because "it was the nature of the speech, not the act of
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speaking, that generated the arrest and charge, no legitimate free speech interest
was implicated." Id.; United States v. Fulbright, 105 F. 3d 443, 452 (9th Cir.
1997); see also, State v. Carter, 2002 WL 1485347, *1 (Ct. App. Ohio 2002). The
cases Defendants cite to for support relate to the validity of a similar statute, not
Montana Code Annotated§ 45-7-302. Thus, because the Court finds that the
officers did not have probable cause to arrest the Skogens under Montana law, the
validity of the similar statute does not factor into the Court's reasoning. This
Court agrees with Judge Johnston's findings that the officers arrested the Skogens
for the mere act of speaking. This Court finds that the deputies did not have
probable cause to arrest the Skogens and, consequently, the doctrine of qualified
immunity does not protect the deputies. Jace's claim against Deputy Hecker and
Larry's claim against Deputy Koso la are sufficient to survive the 12(b)(6) motion.
Therefore, Defendants' motion to dismiss Count 1 is denied.
II.

Count 2

In Count 2, similar to Count 1, the Defendants again argue that they had
probable cause to arrest the Skogens and did not violate their Fourth Amendment
rights. In the alternative, Defendants argue that even if probable cause did not exist
for the arrest of Jace and Larry, Defendants are protected by qualified immunity
because they reasonably believed the arrests were lawful. (Doc. 11 at 18.)
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Defendants also argue that Larry's claims against Deputy Hecker fail to allege
more than just a bald assertion that Deputy Hecker violated Larry's rights under the
Montana Youth Court Act.
This Court agrees with Judge Johnston's finding that Larry's allegation fails
to state a claim upon which relief may be granted because he does not provide any
allegations or support that Deputy Hecker violated his rights under the Montana
Youth Court Act. 1
However, as analyzed under Count 1, the deputies did not have probable
cause to arrest the Skogens and the doctrine of qualified immunity does not protect
the deputies. Thus, Jace's Fourth Amendment claim against Deputy Hecker and
Larry's Fourth Amendment claim against Deputy Kosola are sufficient to survive
the 12(b)(6) motion. However, Larry's claim against Officer Hecker alleging a
violation of his rights under the Montana Youth Court Act is dismissed.
Therefore, Defendant's motion to dismiss Count 2 is denied in part regarding
Larry's and Jace's Fourth Amendment claims against Deputy Kosola and Deputy

1

Pursuant to the Complaint the Skogens state "Officer Hecker violated ... Larry's rights
for arresting Jace due to the statutory language of the Montana [Y]outh [C]ourt [A]ct." (Doc. 1
at 4.) Defendants argue that the claim "does not give Defendants the requisite 'fair notice' of
what Mr. Skogen's claim is and the grounds on which it rests and thus cannot survive a Motion
to Dismiss. (Doc. 11 at 19) Defendant's further contend that if the "rights" Mr. Skogen is
referring to are those rights afforded by § 41-5-3 31, the right belongs to the youth, not the
parents. (Id)
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Hecker, respectively, and is granted in part regarding Larry's claim that Deputy
Hecker violated his rights under the Montana Youth Court Act.
III.

Count 3

Defendants argue in Count 3 that Larry's claim that Jace's arrest violated his
own right under the Montana Youth Court Act and Jace's claim that his own arrest
violated his Fifth amendment rights do not state actual claims for which relief can
be sought. The Fifth Amendment protects against self incrimination. U.S. Const.
amend. V. No violation of the Fifth Amendment occurs until statements or
evidence police obtain prior to advising the person of this right is used against a
person at trial. US. v. Patane, 542 U.S. 630, 641 (2004).
Here, the Skogens do not allege that any statements Jace made while
detained were later used against him at trial. Further, Larry's claim that Jace's
arrest violated his Fifth Amendment rights because Deputy Hecker did not notify
Larry of Jace's arrest fails as a matter of law. Larry's right to notification under
the Montana Youth Court Act is not violated here as Jace's mother was notified of
the arrest. Thus, as a matter of law, Jace has not alleged a proper Fifth
Amendment violation, and Larry's rights were not violated by the arrest of Jace.
Thus, Count 3 is dismissed.

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IV.

Count 4
Regarding Count 4, Defendants argue that Jace's Fifth Amendment claim

fails as a matter of law because the Montana Tort Claims Act provides Jace a
meaningful post-deprivation remedy for a loss of property. Under the Fifth
Amendment, the government may not deprive a person of property without due
process. U.S. Const. amend. V. When an officer intentionally deprives a person
of his property, it does not violate the procedural requirements of the Due Process
Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for
the loss is available. Hudson v. Palmer, 468 U.S. 517, 532 (1984). Under the
Montana Tort Claims Act, government entities are liable for their torts and those
of their employees acting within the scope of their employment. Mont. Code Ann.
2-9-102 (2015).
Although Judge Johnston concluded that Deputy Hecker deprived Jace of
the value of the wristband without due process, Jace's claim fails because he has a
meaningful post-deprivation remedy under the Montana Tort Claims Act. Thus,
because J ace can recover the full value of his wristband by filing a claim under the
Tort Act, his§ 1983 action against Deputy Hecker fails as a matter of law. Count
4 is dismissed.

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V.

Count 5

Regarding Count 5, Defendants argue that Jace's Sixth Amendment right
was not violated during his arrest because Deputy Hecker released him to his
mother before obtaining any information from him. Further, Defendant's argue
that a request to speak to one's parent is not the legal equivalent of a request to
speak to an attorney.
The Sixth Amendment gives a person the right to assistance of counsel in all
federal criminal prosecutions that may result in imprisonment. U.S. Const. amend.
VI. The Fourteenth Amendment makes this right obligatory in state criminal
prosecutions. Gideon v. Wainwright, 372 U.S. 335 (1963). Further, the Sixth
Amendment right to counsel does not attach at the time of arrest, but rather
attaches in the critical stages of the criminal prosecution once the State has begun
judicial proceedings against a person either by way of a "formal charge,
preliminary hearing, indictment, information, or arraignment." United States v.

Gouveia, 467 U.S. 180, 190 (1984); see also, Brewer v. Williams, 430 U.S. 387
(1977). The Complaint alleges that after Jace refused Deputy Reeker's request for
a breath sample, Deputy Hecker placed him in the back of a patrol car until Deputy
Hecker returned with his mother. This Court finds that Jace had no Sixth

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Amendment right to counsel at the time he was arrested. Thus, Count 5 is
dismissed.
VI.

The Skogens' failure to properly serve the State of Montana to
challenge the constitutionality of Montana Code Annotated § 45--7-302.

The Skogens seek a declaration from this Court that Montana Code
Annotated§ 45-7-302 is unconstitutional because it is "vague and over broad on
its face and/or as applied to the Skogens." (Doc. 1 at 5.) The Skogens named the
State of Montana as a Defendant in this action. However, they did not properly
serve the State pursuant to Rule 5.1 of the Federal Rules of Civil Procedure. At
oral argument, the Skogens conceded that they failed to serve the State within the
required time frame. (Doc. 16.) The only objection made by the Skogens relates
to Judge Johnston's finding and recommendation to dismiss their challenge to the
constitutionality of Montana Code Annotated § 2-9-305(3). (Doc. 21.)
In their objection, the Skogens argue that because Defendants David Kosola
and Austin Hecker work for a political subdivision of the State, they believed that
"Defendants would notify the appropriate people under MCA 2-9-305(3) and that
this would satisfy rule 5.1." (Doc. 21at2.) The Skogens further argue that "the
State may not have to be a "necessary party" to a constitutional challenge to a
statu[t]e." Id.
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Rule 5.1 requires a party challenging the constitutionality of a state statute
to file a notice of constitutional question and serve the notice on Montana's
Attorney General. Fed. R. Civ. P. 5.1. A plaintiff has ninety days from the day a
complaint is filed to serve a party. Fed. R. Civ. P. 4(m). When the Attorney
General does not receive proper notice of the challenge, the party asserting the
challenge to the statute's constitutionality has failed to meet the mandates of Rule
5.1. The Skogens' contention that Defendants would notify the appropriate
persons as provided by Montana Code Annotated§ 2-9-305(3) does not apply, as
that statute only requires an employee receiving a summons and complaint in a
noncriminal action against an employee to "give written notice to the employee's
supervisor" and does not require the necessary notice to the Montana's Attorney
General. Mont. Code Ann.§ 2-9-305(3). Serving the State of Montana and
giving notice to the Attorney General are necessary to this action and the Skogens'
failure to serve the State is fatal to their claim. Thus, Count 6 is dismissed.
Analyzing the remainder of Judge Johnston's Findings and
Recommendations for clear error, and finding none,
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 18) is ADOPTED IN FULL. The Defendants' motion to dismiss is
GRANTED IN PART and DENIED IN PART. Count 1 remains in full. Count 2
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remains as it relates to Larry's and Jace's Fourth Amendment right violations.
Count 2 is dismissed in part as it relates to the alleged violation of Larry's rights
for the arrest of Jace under the Montana Youth Court Act. Count 3, 4, 5, and 6 are
dismissed.
DATED this I oUaay of October, 20 7.

Dana L. Christensen, Chief Jud e
United States District Court

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