Walker v. Peterson et al

Filing 47

ORDER denying 42 Motion for New Trial. Signed by U.S. District Judge Karen E. Schreier on 11/20/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CLAYTON WALKER,
Plaintiff,
vs.
SHAWN PETERSON and
BRIAN FRANKLIN, in their individual
capacity,
Defendants.

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CIV. 12-4078-KES

ORDER

Plaintiff, Clayton Walker, brought suit against defendants, Shawn
Peterson and Brian Franklin, alleging various § 1983 claims and state-law
claims. A jury trial commenced on May 14, 2013, and the jury was ultimately
instructed on three claims: (1) § 1983 excessive force; (2) § 1983 unlawful arrest;
and (3) trespass. The jury found in favor of defendants on the § 1983 excessive
force and trespass claims.
Walker’s § 1983 unlawful arrest claim depends on whether defendants
had probable cause to arrest Walker, which is a legal question for the court.
Defendants argue probable cause existed at the time of the arrest while Walker
argues it did not. Because the probable cause determination is dependent upon
the facts surrounding the arrest, the court had the jury determine certain facts
that were in dispute. The court now takes up the merits of Walker’s § 1983
unlawful arrest claim. After considering the jury’s determination of the facts and

the court’s application of the law to those facts, the court finds in favor of
defendants on Walker’s § 1983 unlawful arrest claim.
Walker also moves for a new trial based on alleged jury misconduct.
Defendants oppose the motion. For the following reasons, Walker’s motion for a
new trial is denied.
BACKGROUND
Walker is a resident of Brookings, South Dakota. Defendants are
Brookings city police officers.
On or about May 3, 2009, at 3 a.m., defendants were dispatched to an
apartment complex because of a noise complaint. Upon arriving at the
apartment complex, defendants heard loud music and followed the loud music
to its source, which was later determined to be Walker’s apartment.
Defendants knocked on the door of the apartment, and Walker answered.
After a brief discussion, defendants asked Walker to provide identification.
Walker initially produced a college ID. After defendants stated the college ID was
inadequate, Walker then produced an Oklahoma state driver’s license.
After conducting a records check, defendants informed Walker that they
were going to issue him a citation for disturbing the peace. Shortly thereafter,
Walker “forcibly remove[d] his driver’s license from defendant Peterson’s hand”
and then “use[d] the door to his apartment to forcibly exclude defendants

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Peterson and Franklin from his apartment.”1 Docket 30 at 2. Defendants reacted
by grabbing Walker’s arm, and a struggle ensued. Defendants subdued Walker
and placed him under arrest.
Walker was charged with disturbing the peace, obstructing a law
enforcement officer, disorderly conduct, resisting arrest, common nuisance, and
escape. During the state-court proceedings, a magistrate judge found probable
cause existed for the case to proceed to trial. All charges, with the exception of
disturbing the peace, were dismissed prior to trial. The judge presiding over the
trial on Walker’s disturbing the peace charge found there was insufficient
evidence to support a conviction and Walker was acquitted.
DISCUSSION
I.

§ 1983—UNLAWFUL ARREST
Walker claims defendants violated his constitutional rights when they

acted under color of state law2 and arrested him without probable cause or a
warrant.3 “It is well established that a warrantless arrest without probable cause
violates an individual’s constitutional rights under the Fourth and Fourteenth
Amendments.” Marksmeier v. Davie, 622 F.3d 896, 900 (8th Cir. 2010).

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These were findings of fact that the jury made on the verdict form.

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The parties agree defendants were acting under color of state law.

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The parties agree defendants did not have a warrant to arrest Walker.
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Defendants claim they are entitled to qualified immunity.4 “Qualified
immunity protects government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Small v. McCrystal, 708
F.3d 997, 1003 (8th Cir. 2013) (internal quotations omitted). An officer is
entitled to qualified immunity for a warrantless arrest if the arrest was
supported by probable cause or at least arguable probable cause. Joseph v.
Allen, 712 F.3d 1222, 1226 (8th Cir. 2013). Probable cause exists when the
totality of the circumstances at the time of the arrest is sufficient to lead a
reasonable person to believe that the arrested individual committed an offense.
Id. at 1226. “Arguable probable cause exists even where an officer mistakenly
arrests a suspect believing it is based on probable cause if the mistake is
‘objectively reasonable.’ ” Id. at 1226 (quoting Borgman v. Kedley, 646 F.3d 518,
522-23 (8th Cir. 2011)); see also Peterson v. City of Plymouth, 60 F.3d 469, 47374 (8th Cir. 1995) (“Officers are immune from liability if, in light of clearly
established law and the information known to the officers, a reasonable officer
could have believed the arrests were supported by probable cause.”). Whether

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Defendants also argue that the state magistrate judge’s finding of
probable cause invokes collateral estoppel. In other words, the issue of whether
defendants had probable cause to arrest Walker has already been decided by
the state magistrate judge and this court should respect that decision. Because
the court finds defendants had probable cause, or at least arguable probable
cause, to make the arrest, the court will not address the issue of collateral
estoppel.
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probable cause or arguable probable cause existed at the time of arrest is a
question of law. Joseph, 712 F.3d at 1226-27.
Under South Dakota law, a law enforcement officer may make an arrest
without a warrant “for a public offense, other than a petty offense, committed or
attempted in his presence.” SDCL 23A-3-2. A public offense is “any crime, petty
offense, violation of a city or county ordinance, or act prohibited by state or
federal law.” SDCL 22-1-2(29).
Walker contends defendants did not have probable cause, or arguable
probable cause, to arrest him. Walker claims that at the time of the arrest the
only crime that defendants could have reasonably believed occurred was
disturbing the peace, which Walker contends is a petty offense under the
Brookings city ordinance. Walker asserts that because it is a petty offense,
defendants lacked authority to arrest him.
Defendants, on the other hand, claim there was probable cause to arrest
Walker for obstructing a law enforcement officer under SDCL 22-11-6,
disorderly conduct under SDCL 22-18-35, and resisting arrest under SDCL 2211-4. Defendants also claim they were entitled to arrest Walker for resisting
service or refusal to give information under SDCL 23-1A-9.
Obstructing a law enforcement officer, which violates SDCL 22-11-6, is a
Class 1 misdemeanor. This offense occurs when an individual, “by using or
threatening to use violence, force, or physical interference or obstacle,

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intentionally obstructs, impairs, or hinders the enforcement of the criminal laws
or the preservation of the peace by a law enforcement officer . . . acting under
color of authority[.]” Id. The facts as found by the jury showed that while
defendants were attempting to issue a citation to Walker for disturbing the
police, Walker “forcibly remove[d] his driver’s license from defendant Peterson’s
hand” and used the “door to his apartment to forcibly exclude defendants
Peterson and Franklin from his apartment.” Docket 30 at 2. Grabbing his
driver’s license and using the door to forcibly exclude defendants from his
apartment while they were attempting to issue a citation could have caused
defendants to reasonably believe that Walker was intentionally obstructing,
impairing, or hindering defendants’ enforcement of criminal laws or the
preservation of the peace by using force, physical interference, or obstacle. See
Graham v. Harman, 78 F.3d 588, 1996 WL 91930, at *1 (8th Cir. Mar. 5, 1996)
(unpublished) (“Graham’s subsequent act in starting her car could have caused
the officer to reasonably believe that Graham was physically obstructing his
duties by attempting to flee before he could issue her a traffic citation.”). See
also State v. Sullivan, 673 N.W.2d 288, 293 (S.D. 2003) (conviction for
obstruction of justice conviction when defendant refused to allow law
enforcement officer to speak to her son for purposes of determining his identity
and maintaining the status quo while he obtained more information). Because
obstructing a law enforcement officer is a Class 1 misdemeanor and not a petty

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offense, thereby making it an arrestable offense,5 defendants had at least
arguable probable cause to arrest Walker. Defendants are therefore entitled to
qualified immunity.
Even if defendants did not have arguable probable cause to arrest Walker
for obstructing a law enforcement officer, they certainly had probable cause to
arrest Walker for a violation of SDCL 23-1A-9. SDCL 23-1A-9 makes it a Class 2
misdemeanor for “any person who resists the service of a petty offense
complaint and summons or who refuses to give a law enforcement officer the
information necessary to complete a petty offense summons and complaint.” By
forcibly removing his driver’s license from defendant Peterson’s hand before
defendants had issued the citation, defendants reasonably could have believed
Walker was refusing to give information necessary to complete the citation. Also,
by using his door to forcibly exclude defendants from his apartment, defendants
reasonably could have believed Walker was resisting the service of a petty
offense complaint and summons. Because a violation of SDCL 23-1A-9 is a
Class 2 misdemeanor and an arrestable offense, defendants had probable cause
or arguable probable cause to arrest Walker.
Defendants had at the very least arguable probable cause to arrest Walker
for either obstructing a law enforcement officer or violating SDCL 23-1A-9.

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“Petty offenses are not crimes. A misdemeanor, whether Class 1 or
Class 2, is a crime.” Planned Parenthood, Sioux Falls Clinic v. Miller, 860 F.
Supp. 1409, 1420 (D.S.D. 1994), aff’d 63 F.3d 1452 (8th Cir. 1995).
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Therefore, defendants are entitled to qualified immunity and to a finding in their
favor on Walker’s § 1983 unlawful arrest claim.
II.

NEW TRIAL
Walker argues he is entitled to a new trial because of juror misconduct

under Federal Rule of Civil Procedure 59. On the second day of the trial before
deliberations, Walker heard a juror say to another juror in the jury room, “You
take those kids anywhere but your house.” Walker claims this violated
Preliminary Instruction No. 8, which instructed the jurors not to talk among
themselves about the case until deliberations. Walker claims this comment
prejudiced his case and right to a fair trial.
Defendants claim Walker waived his objection to juror misconduct by
failing to bring the alleged misconduct to the court’s attention before entry of the
verdict. In the alternative, defendants claim the juror’s statement did not
prejudice Walker’s case or right to a fair trial.
Under Rule 59, the court may grant a new trial “for any reason for which
a new trial has heretofore been granted in an action at law in federal court.”
Fed. R. Civ. P. 59(a)(1)(A). With regard to the timeliness of Walker’s objection,
the Eighth Circuit Court of Appeals has held that “by not bringing the question
of juror misconduct to the attention of the trial court before the verdict was
returned,” one waives his right to a new trial. United States v. Dean, 667 F.2d
729, 734 (8th Cir. 1982).

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Here, Walker overheard the juror’s statement before the jury began
deliberations. He had plenty of time to apprise the court of the statement and
allow the court to fashion a proper remedy (e.g., additional instructions) if one
was necessary. By not bringing the alleged juror misconduct to the court’s
attention before the verdict was returned, Walker waived his right to a new trial.
Moreover, Walker has not explained how the statement prejudiced his
case or his right to a fair trial. Instead, he simply assumes that it did. A baseless
statement of alleged prejudice is not enough to justify a new trial.
In the alternative, Walker request the court grant a hearing so that four
jurors can be interviewed by the court. Because Walker waived his right to a
new trial based on juror misconduct by not bringing the issue to the court’s
attention during the trial, having a hearing on the issue would be futile. Thus,
Walker’s request for a hearing is denied.
CONCLUSION
Defendants had at least arguable probable cause to arrest Walker for
obstructing a law enforcement officer or for violating SDCL 23-1A-9. Defendants
are therefore entitled to qualified immunity from Walker’s § 1983 unlawful
arrest claim. Separately, Walker waived his right to request a new trial based on
juror misconduct by not bringing the alleged misconduct to the court’s attention
during the trial. Accordingly, it is

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ORDERED that judgment is granted in favor of defendants on Walker’s
§ 1983 unlawful arrest claim. Judgment in favor of defendants on all of Walker’s
claims will be entered.
IT IS FURTHER ORDERED that plaintiff’s motion for a new trial (Docket
42) is denied.
Dated November 20, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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