Osborne v. Reger et al

Filing 76

Memorandum Opinion and Order denying 49 Motion for summary judgment. Defendant Appelhans is not entitled to qualified immunity. See Memorandum Opinion and Order for details. Judge Jack Zouhary on 12/20/2016. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Kevin P Osborne,

Case No. 3:15 CV 2721
Plaintiff,

MEMORANDUM
OPINION AND ORDER

-vsWood County, Ohio, et al.,

JUDGE JACK ZOUHARY
Defendants.
INTRODUCTION

Deputy Kevin Osborne sues fellow Deputy Kert Appelhans for false arrest, false
imprisonment, and malicious prosecution -- both state-law tort claims and constitutional claims under
42 U.S.C. § 1983 -- as well as intentional infliction of emotional distress, negligence per se,
defamation, and defamation per se (Doc. 23). He also sues Wood County under a theory of
respondeat superior liability (id.). Appelhans and Wood County move for summary judgment based
on qualified immunity (Doc. 49). Osborne opposes (Doc. 55).
UNDISPUTED MATERIAL FACTS
Osborne is a part-time police officer in the Village of Risingsun, Ohio (Doc. 58 at ¶ 1). On
July 24, 2015, while on duty, Osborne responded to a domestic dispute between Cody and Krystal
Albert (Doc. 51 at 21–22). Cody believed Krystal was having an affair with a man named Robert
Dean (Doc. 71 at 6). The following day, while off duty, Osborne encountered Krystal and Dean at
the Wayne County Jamboree (Doc. 51 at 13–14). Osborne confronted them and called Dean a “piece
of shit” (Doc. 71 at 7). On the evening of July 29, 2015, Osborne finished his shift at 6:00 PM.

Around that time, Cody informed Osborne that Dean and Krystal intended to “cause trouble” for
Osborne (Doc. 51 at 20–21; Doc. 72 at 5).
Following the end of his shift that evening, Osborne returned home. Around 9:50 PM,
Osborne noticed a red pickup truck with a “loud exhaust” pass his home repeatedly, rapidly
accelerating and then sitting at the stop sign for ten to fifteen seconds at a time (Doc. 51 at 24–25).
Osborne estimated the truck drove past his home at least fifteen times (id.; Doc. 58 at ¶ 3; Doc. 72 at
3). He thought he recognized the truck and suspected it was being driven by someone with a
suspended license (Doc. 51 at 33; Doc. 72 at 3).
Osborne took his personal vehicle and followed the red pickup. He was not wearing his
uniform or carrying any form of identification (Doc. 58 at ¶¶ 3, 5). He carried his loaded service
weapon on his lap (Doc. 72 at 4). Osborne called the Wood County Sheriff’s Dispatch (Doc. 72 at
3). He identified himself as a Risingsun police officer and asked Dispatch to run the pickup’s license
plate (id.). Dispatch advised the truck belonged to Robert Dean (id.). Osborne requested back-up,
and Defendant Deputy Kert Appelhans and Deputy Britni Aring were dispatched (id. at 6).
While Osborne was on the phone with Dispatch, Dean pulled over, got out of his truck, and
walked back to Osborne’s car (Doc. 72 at 4). Osborne identified himself as a Risingsun police officer,
advised Dean that the Sheriff was on the way, and instructed Dean to return to his truck and wait (id.
at 4, 6). Dean called 9-1-1 and told Dispatch he was driving around Risingsun, waiting for a friend,
when he noticed Osborne following him and pulled over (id. at 10). Dean asked Dispatch if he could
leave. Dispatch first instructed Dean to wait at the scene until the deputies arrived (id.). After
discussion with Sergeant Greg Panning, Appelhans and Aring’s supervisor, Dispatch advised Dean
he could leave (id. at 13–14). However, Aring arrived on the scene before Dean ended the call with

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Dispatch (id.). Dean and Osborne had been waiting in their respective vehicles for about fifteen
minutes, from the time Dean pulled over until Aring’s arrival (id. at 7, 16–17).
Aring and Appelhans spoke with Osborne and Dean separately. Osborne told Appelhans he
became “leery” when he saw Dean’s pick-up drive past his house at least fifteen times (Doc. 71 at 5).
Based on his communications with Dispatch, Appelhans was aware of the domestic dispute at the
Alberts residence and related confrontation between Osborne and Dean at the Jamboree (Doc. 69 at
2–3; Doc. 72 at 9). He was also aware that Dean voluntarily pulled over and approached Osborne,
who identified himself as a police officer, and that Osborne called the Sheriff’s Dispatch and
requested assistance (Doc. 69 at 3; Doc. 72 at 7). Appelhans observed Osborne’s handgun in the
passenger seat of his car (Doc. 69 at 3). Osborne told both Aring and Dispatch about Dean’s threat
to “cause trouble” for him (Doc. 71 at 7; Doc. 72 at 5), though the parties dispute whether Osborne
directly informed Appelhans as well.
When Aring and Appelhans spoke with Dean, he informed them he was driving around the
neighborhood waiting to return Krystal’s phone charger (Doc. 50-7 at 1; Doc. 71 at 2–3). Dean
confirmed he pulled over when he noticed Osborne following him, and he approached Osborne’s
vehicle (id.). He also confirmed he knew Osborne was a police officer; he saw Osborne holding his
gun on his lap; and Osborne ordered him not to leave (Doc. 50-7 at 1–2). Dean also informed the
deputies that Osborne later attempted to approach him in his truck, but Dean rolled up his window and
called the Sheriff (id. at 2; Doc. 71 at 3). Dean claimed he felt threatened by Osborne’s actions (Doc.
50-7 at 2).
Appelhans spoke with Panning, who recommended Appelhans call Bowling Green Municipal
Prosecutor Matt Reger to discuss several potential charges against Osborne (Doc. 69 at 2). Appelhans

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called Reger, and they spoke for about eight and a half minutes (id. at 3–5). Based on their
conversation, Reger advised Appelhans he had probable cause for the aggravated menacing charge
(Doc. 53 at 72). However, Reger also told Appelhans he was unsure of the elements for unlawful
restraint and likewise could not offer advice on the improper firearm handling charge (id. at 73–75).
Reger asked whether Appelhans planned to arrest Osborne and offered to review the evidence and
arrest paperwork in the morning (Doc. 50 at 120). Appelhans responded, “I’m thinking we’re just
going to arrest him and get this thing taken care of” (Doc. 69 at 5). Appelhans was concerned the
confrontation between Osborne and Dean might re-escalate after the deputies left the scene.
Appelhans arrested Osborne and allowed Dean to leave (Doc. 50 at 121).
DISPUTED MATERIAL FACTS
Osborne claims Appelhans and Panning decided to arrest him before Appelhans arrived on
the scene, motivated by some sort of personal malice (Doc. 55 at 5; Doc. 58 at ¶ 15). He asserts
Appelhans and Panning had previously made derogatory comments about him, including in
conversation with other police officers, and Panning joked about Osborne’s arrest with Dispatch later
that evening (Doc. 55 at 5).
Osborne also contends he personally informed Appelhans of (1) his prior encounter with Dean
at the Jamboree, (2) Dean’s threat to “cause trouble” for Osborne, and (3) Dean’s allegedly erratic
driving, including revving the engine and squealing the tires as he drove past Osborne’s home (Doc.
55 at 3–4; Doc. 58 at ¶ 14). He notes Appelhans’ personal microphone was malfunctioning that
evening and did not record their conversation (Doc. 55 at 5). Appelhans acknowledges his
microphone was not working (Doc. 50 at 47–48) but contests Osborne’s description of their
discussion (Doc. 49 at 3–4; Doc. 50 at 51–53, 58).

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STANDARD OF REVIEW
Summary judgment is appropriate where there is “no genuine dispute as to any material fact,”
such that the moving party “is entitled to judgment as a matter of law.” Federal Civil Rule 56(a).
This Court must draw all inferences from the record in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This Court does
not weigh the evidence or determine the truth of any matter in dispute; rather, this Court evaluates
only whether the record contains sufficient evidence from which a jury could reasonably find for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
DISCUSSION
Qualified immunity protects state officials who perform discretionary functions from standing
trial for civil liability unless their conduct violates clearly established rights. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The plaintiff bears the burden of overcoming the qualified immunity
defense. Thompson v. City of Lebanon, 831 F.3d 366, 369 (6th Cir. 2016). The standard for qualified
immunity is “whether a reasonable official in the defendant’s position could have believed that his
conduct was lawful, judged from the perspective of the reasonable official on the scene.” Cochran
v. Gilliam, 656 F.3d 300, 306 (6th Cir. 2011) (citing Anderson v. Creighton, 483 U.S. 635, 640–41
(1987)). In evaluating the qualified immunity defense on summary judgment, this Court views the
facts “in the light most favorable to the party asserting the injury.” Parsons v. City of Pontiac, 533
F.3d 492, 500 (6th Cir. 2008) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
This Court must make two inquiries: first, whether the facts, viewed in the light most favorable
to Osborne, constitute a violation of a statutory or constitutional right; and second, whether that right
was “clearly established” at the time of the incident, such that a reasonable officer would have known

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his behavior was unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009). This Court may consider
these two prongs in either order. Id. at 236. Appelhans is entitled to qualified immunity “[o]nly if
the undisputed facts or the evidence viewed in the light most favorable to [Osborne] fail to establish
a prima facie violation of clear constitutional law.” Cochran, 656 F.3d at 300 (quoting Berryman v.
Rieger, 150 F.3d 561, 563 (6th Cir. 1998)). In other words, if this Court concludes Osborne’s
evidence “would reasonably support a jury’s finding that [Appelhans] violated a clearly established
right, it must deny summary judgment.” Thompson, 831 F.3d at 370.
Probable Cause
“[I]t is well established that any arrest without probable cause violates the Fourth
Amendment.” Crockett v. Cumberland College, 316 F.3d 571, 580 (6th Cir. 2003). To create
probable cause for arrest, “the ‘facts and circumstances within the officer’s knowledge [must be]
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing or is about to commit an offense.’” Thacker
v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003) (quoting Crockett, 316 F.3d at 580) (alteration
in original). Once an officer has probable cause, he is under no obligation to search for exculpatory
evidence or otherwise continue to investigate. Crockett, 316 F.3d at 581 (citing cases). However, he
may not “turn a blind eye” to potentially exculpatory information presented to him. Ahlers v. Schebil,
188 F.3d 365, 372 (6th Cir. 1999).

Instead, the officer must consider the “totality of the

circumstances” within his knowledge, including both inculpatory and exculpatory evidence.
Courtright v. City of Battle Creek, 839 F.3d 513, 521 (6th Cir. 2016) (quoting Wesley v. Campbell,
779 F.3d 421, 429 (6th Cir. 2015)). “The existence of probable cause is a jury question, unless there

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is only one reasonable determination that is possible.” Thacker, 328 F.3d at 255; see also Parsons,
533 F.3d at 501.
Appelhans contends he had probable cause to charge -- and therefore to arrest -- Osborne for
unlawful restraint, aggravated menacing, and improper handling of a firearm. This Court considers
each of those charges in turn.
Unlawful Restraint. Ohio law provides “[n]o person, without privilege to do so, shall
knowingly restrain another of the other person’s liberty.” OHIO REV. CODE § 2905.03(A). A
“privilege” is a right conferred by law or arising out of status, position, office, or relationship. Id.
§ 2901.01(A)(12). For example, a police officer may briefly detain someone for investigation based
on “a reasonable, articulable suspicion that [they] may be involved in criminal activity.” Loza v.
Mitchell, 766 F.3d 466, 476 (6th Cir. 2014). The investigatory stop must be both “justified at its
inception” and “reasonably related in scope to the circumstances which justified the interference in
the first place.” Id.
A reasonable suspicion of criminal activity must be based on “particularized and objective”
facts. United States v. Shank, 543 F.3d 309, 313 (6th Cir. 2008) (quoting Weaver v. Shadoan, 340
F.3d 398, 407 (6th Cir. 2003)). This is a lesser standard than required for probable cause. Id.
(“[R]easonable suspicion ‘can arise from evidence that is less reliable than what might be required
to show probable cause.’”) (citation omitted). An “ill-defined hunch” is insufficient, but an officer
may “draw on [his] own experience and specialized training to make inferences from and deductions
about the cumulative information available to [him].” Id. at 313, 315. The officer’s “actual subjective
motivations” for conducting the stop are irrelevant to its validity, if the stop is justified by sufficient
objective facts. Id. at 313.

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Appelhans contends he had probable cause to arrest Osborne for unlawful restraint because
Osborne lacked a “reasonable, articulable suspicion” for following and detaining Dean. The record,
viewed in the light most favorable to Osborne, suggests otherwise. Appelhans identifies three primary
pieces of potentially inculpatory evidence that he believes support a probable cause finding: (1)
Osborne was off duty at the time of the incident; (2) Osborne ordered Dean to return to his truck and
to stay put (i.e., he did in fact detain Dean); and (3) Dean felt threatened because he knew Osborne
was armed.
Appelhans particularly emphasizes the first of these facts -- that Osborne was off duty when
he decided to follow and ultimately detained Dean. But an off-duty law enforcement officer, “[a]s
a matter of public policy and statutory mandate,” is still required to enforce the law and prevent
criminal activity. Luketic v. Univ. Circle, Inc., 134 Ohio App. 3d 217, 222–23 (1999); see also State
v. Clark, 10 Ohio App. 3d 308, 309 (1983) (“The question of whether the officer was on or off duty
is irrelevant.”); State v. Glover, 52 Ohio App. 2d 35, 38 (1976) (“A duly commissioned police officer
holds a public office upon a continuing basis.”). Thus, Osborne’s duty status is irrelevant to whether
he properly conducted the investigatory stop, and by extension cannot support a finding of probable
cause.
Furthermore, Appelhans was required to consider the exculpatory evidence presented to him
at the scene. For example, Osborne told Appelhans he became “leery” when he saw Dean’s truck
drive past his house not just a few times, but at least fifteen times (Doc. 71 at 5). Appelhans was
aware of the earlier domestic dispute and related confrontation between Osborne and Dean at the
Jamboree (Doc. 69 at 2–3; Doc. 72 at 9). He also was aware that this was not a typical traffic stop;
rather, Dean voluntarily pulled over and approached Osborne, who identified himself as a police

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officer, and Osborne was the one who initially called Dispatch and requested assistance (Doc. 69 at
3; Doc. 72 at 7). Dean and Osborne then waited in their vehicles for about fifteen minutes until Aring
and Appelhans arrived (Doc. 72 at 7, 16–17). The parties dispute whether Osborne directly informed
Appelhans about Dean’s threat to “cause problems” for Osborne1 -- though he did discuss it with both
Aring and Dispatch (see Doc. 71 at 7; Doc. 72 at 5) -- or Dean’s allegedly aggressive and erratic
driving. At this stage of the proceedings, this Court accepts Osborne’s version of the story and
assumes he did communicate this information to Appelhans.
In short, Osborne identified specific facts -- the potential threat by Dean, the repeated drivebys, and the aggressive driving -- which, informed by his training and experience, support a
reasonable suspicion that Dean was trying to harass him or otherwise cause him harm at the time of
the incident. Appelhans cites no evidence contradicting Osborne’s version of the events. For
example, he did not ask Dean whether he knew where Osborne lived, whether he had in fact
threatened to “cause problems” for Osborne, or whether he had been driving aggressively through the
neighborhood. Thus, based on facts known to Appelhans, a reasonable jury could conclude Osborne’s
detention of Dean was lawful, and Appelhans lacked probable cause to arrest Osborne for unlawful
restraint.
Improper Handling of a Firearm. Ohio law prohibits knowingly transporting “a loaded
firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any
passenger without leaving the vehicle.” OHIO REV. CODE § 2923.16(B). This provision does not
1

Appelhans suggests Osborne’s reliance on Dean’s alleged threat cannot support a reasonable
suspicion of criminal activity. He contends Osborne could not reasonably infer a threat of physical
harm or criminal conduct from Cody Alberts’ “warning,” in light of the specific language used and
Alberts’ emotional state at the time. For purposes of evaluating the qualified immunity defense on
summary judgment, this Court views all facts and draws all inferences in favor of Osborne.
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apply to individuals carrying a valid concealed carry license, id. § 2923.16(F)(5)(a), or to law
enforcement officers acting within the scope of their duties, id. § 2923.16(F)(1)(a).
Appelhans asserts that because Osborne was off duty, without any form of identification, he
had probable cause to arrest Osborne for improper handling. He further asserts that the federal Law
Enforcement Officers Safety Act (“LEOSA”) requires law enforcement officers to carry their agencyissued photo ID in order to carry a concealed firearm. 18 U.S.C. § 926B(a) (“Notwithstanding any
other provision of the law of any State or any political subdivision thereof, an individual who is a
qualified law enforcement officer and who is carrying the identification required by subsection (d)
may carry a concealed firearm that has been shipped or transported in interstate or foreign
commerce”). Appelhans appears to argue the LEOSA preempts state law, to the extent the two
conflict -- in other words, even if Osborne was otherwise acting within the scope of his duties as a law
enforcement officer, the exception under Section 2923.16(F)(1)(a) does not apply because he was not
carrying the identification required by federal law.
Osborne admits he was not carrying any identification at the time of the arrest but contends
the Ohio improper handling statute does not apply because he was acting within the scope of his
duties as a law enforcement officer, even though he was off duty. See Luketic, 134 Ohio App. 3d at
222–23; Clark, 10 Ohio App. 3d at 309; Glover, 52 Ohio App. 2d at 38. Further, he counters that the
LEOSA does not apply when a law enforcement officer carries a firearm (1) intrastate, as opposed to
across state lines, and (2) openly, as opposed to concealed.
As to the first point concerning the LEOSA, it is not clear the scope of the statute is limited
to officers carrying firearms during interstate travel. Neither party cites authority addressing this
question, but the more logical interpretation of the “interstate” language is that it provides the

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jurisdictional hook required for federal gun regulations by specifying that the regulated firearm at
some point moved through interstate commerce. Cf. United States v. Lopez, 514 U.S. 549, 561–62
(1995). Regardless, Osborne’s second point is well taken. The plain language of the LEOSA
authorizes and regulates concealed carry, and it is undisputed Osborne was openly carrying his service
weapon at the time of the incident. Thus, the LEOSA is inapplicable here, and this Court returns to
the question of whether Osborne violated the Ohio statute. As discussed in more detail above, the
facts viewed in the light most favorable to Osborne suggest he was acting within the scope of his
duties as a law enforcement officer when he followed and ultimately detained Dean. As such, he was
not subject to the restrictions of Section 2923.16, and a reasonable jury could find Appelhans
therefore lacked probable cause for the arrest.
Aggravated Menacing. “No person shall knowingly cause another to believe that the offender
will cause serious physical harm to the person or property of the other person.” OHIO REV. CODE
§ 2903.21(A). Appelhans contends he had probable cause to arrest Osborne because Osborne caused
Dean to believe he might use his firearm against him by telling Dean he was armed and ordering Dean
to return to his vehicle and stay there. Osborne contests this characterization and denies intentionally
announcing to Dean that he was armed. Instead, he speculates Dean must have overheard him inform
Dispatch he was carrying his handgun and insists the gun could not have been visible to Dean from
where he was standing (see Doc. 51 at 49–50; Doc. 58 at ¶ 10).
Dean prepared a witness statement at the scene of the incident (Doc. 50-7). In that statement,
Dean reported he discovered Osborne was armed because he could see the handgun on his lap when
he approached Osborne’s vehicle (id. at 1). He did not claim Osborne announced he was armed or
brandished his weapon (see id.) (“As I approached him he then told me to not go anywhere with his

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hand on his gun on his lap”). Nor does the transcript of Dean’s conversation with Aring include any
such allegation, and Aring’s supplemental report confirmed Dean observed Osborne’s hand on the
gun in his lap “which scared him and made him feel threatened” (Doc. 53-6 at 1). In other words, the
record is devoid of evidence suggesting Appelhans had reason to believe Osborne intentionally
announced or displayed his firearm to threaten Dean with physical harm. A reasonable jury could find
that the information available to Appelhans thus did not establish probable cause.
Qualified Immunity
Osborne has established a prima facie case for a violation of a constitutional right. The inquiry
now becomes whether the “contours of the right” were “sufficiently clear that a reasonable official
would understand” his behavior violated that right. Anderson, 483 U.S. at 640. “This inquiry turns
on the ‘objective legal reasonableness of the action,’” Pearson, 555 U.S. at 244 (citation omitted), and
“must be undertaken in light of the specific context of the case, not as a broad general
proposition . . . .” Saucier, 533 U.S. at 201. Accordingly, the issue is “whether [Appelhans’]
actions—as described by [Osborne’s] evidence—were objectively unreasonable, and whether the law
clearly established that unreasonableness at the time of the incident.” Thompson, 831 F.3d at 371–72.
It is clearly established that arresting an individual without probable cause violates the Fourth
Amendment. Crockett, 316 F.3d at 580. Further, “a reasonably competent public official should
know the law governing his conduct.” Harlow, 457 U.S. at 819. Thus, a reasonable police officer
is presumed to know both the standard for probable cause and the elements of the statutes he is
charged with enforcing. Crediting Osborne’s version of events, a reasonable officer would have
known: (1) Osborne had a reasonable suspicion sufficient to temporarily detain Dean; (2) Osborne
was acting within the scope of his duties as a law enforcement officer; (3) the Ohio improper handling

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statute does not apply to law enforcement officers acting within the scope of their duties; and (4) there
is no evidence suggesting Osborne knowingly caused Dean to fear physical harm. Against this
backdrop, a reasonable official would understand that arresting Osborne would violate his
Constitutional rights.
Nevertheless, Appelhans argues his actions were objectively reasonable because he relied on
the advice of city prosecutor Reger, who confirmed he had probable cause for the arrest. The Sixth
Circuit has recognized that reliance on the advice of counsel could constitute an “extraordinary
circumstance” entitling a defendant to qualified immunity despite violation of a clearly established
right. York v. Purkey, 14 F. App’x 629, 633 (6th Cir. 2001). Yet “a law enforcement officer’s phone
call to a county or district attorney for general guidance when confronted with a situation where there
is no legal basis for the contemplated actions does not automatically convert unreasonable actions into
reasonable actions.” Cochran, 656 F.3d at 309 (6th Cir. 2011); see also V-1 Oil Co. v. Wyoming
Dep’t of Envtl. Quality, 902 F.2d 1482, 1488 (10th Cir. 1990) (“[R]eliance [on advice of counsel] is
not inherently extraordinary, for few things in government are more common than the receipt of legal
advice.”). In evaluating whether an “extraordinary circumstance” exists, this Court considers (1)
whether the advice was unequivocal and specifically tailored to the particular facts giving rise to the
controversy; (2) whether complete information was provided to the advising attorney; (3) the
prominence and competence of the advice attorney; and (4) how soon after the advice was received
the disputed action was taken. York, 14 F. App’x at 633; see also Lewis v. Weck, 2012 WL 8887824,
at *6 (N.D. Ohio 2012).
In Appelhans’ favor, he arrested Osborne immediately after conferring with Reger, which
supports an inference he relied upon the advice. The record offers no reason to doubt Reger’s

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competence, and his prominence is likely not a decisive factor. Cf. V-1 Oil, 902 F.2d at 1489 (finding
extraordinary circumstances based on advice from “fully informed, high-ranking government
attorneys” regarding a new statute). On the other hand, Reger’s advice cannot be described as
“unequivocal,” and Osborne contends Appelhans did not provide Reger with complete information.
The audio recording did not pick up Reger’s side of the conversation with Appelhans (see
Doc. 69). However, the transcript is clear that Appelhans did not tell Reger about Dean’s alleged
threat toward Osborne, nor did he mention the number of times Dean drove by Osborne’s home or
his aggressive driving tactics. And according to Reger’s recollection of the discussion (Doc. 53 at
31–32):
. . . [W]e had a discussion about what [Appelhans] believed was happening and what the
facts were, and we had a discussion about what offenses. He asked me about aggravated
menacing, we talked about what facts would support that, I said, it does sound like you
have probable cause for that, he asked me about unlawful detainer, I said, I don’t have
those elements in front of me, I don’t know what the elements are, I believe he looked
at the elements and said something to me about the elements, I said, it sounds like it’s
possible. And then he wanted to know about the firearms charge and I said that I did not
believe that I could answer that, that was a felony and I didn’t believe I could answer any
questions related to that . . . .
Reger also told Appelhans he was “more than willing” to review his report in the morning, if
Appelhans wanted to “send the people on their way” without making an arrest (id. at 33). In other
words, Reger ultimately left the ball in Appelhans’ court to use his judgment as a law enforcement
officer in deciding how to proceed. This is not the type of extraordinary circumstance sufficient to
resurrect qualified immunity in the face of a violation of clearly established law.
CONCLUSION
Defendant Appelhans is not entitled to qualified immunity. The Motion (Doc. 49) is denied.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
December 20, 2016
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