The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
SHIRLEY GARNER and
MAXIE KEY PLAINTIFFS
No. 2:20-cv-50-DPM
VIRGIL GREEN, Individually and in his
Official Capacity as Chief of Police for the
City of Helena-West Helena, Arkansas;
CYNTHIA GAMBLE, Individually and in her
Official Capacity as a Police Officer for the
City of Helena-West Helena, Arkansas;
CARL VANN, in his Official Capacity as a
Police Officer for the City of Helena-West
Helena, Arkansas; and MICHAEL THOMAS,
in his Official Capacity as a Police Officer for
the City of Helena-West Helena, Arkansas DEFENDANTS
ORDER
1. Shirley Garner and her mother, Maxie Key, press many
claims under 42 U.S.C. § 1983, the Arkansas Civil Rights Act, and
Arkansas tort law. See Appendix A for particulars. The claims are
based on three separate incidents:
a. The Helena-West Helena city council voted to remove
Garner from her unpaid position as chair of the city’s civil
service commission because she refused to release police
promotion exams in advance of the examination to the city
council and former chief of police Virgil Green.
b. Chief Green obtained a warrant for Garner’s arrest
based on two Facebook posts that he wrongly assumed she
had made on her Facebook timeline about his and his son’s
criminal histories.
c. Officer Cynthia Gamble, Captain Carl Vann, and
Officer Michael Thomas participated in the investigation of
a dispute that took place near Key’s house involving
Garner’s son, her sister, and a gun. Garner intervened at the
scene twice and recorded parts of the encounter. Warrants
issued two days later for a search of Key’s house and for
Garner’s arrest for obstructing the investigation. Captain
Vann and Officer Thomas searched Key’s house. They
seized Garner’s pink handgun during that search, and it
hasn’t been returned to her. Officer Gamble simultaneously
arrested Garner at a different location.
Garner and Key say these incidents, viewed as a whole, demonstrate a
focused campaign by Chief Green to retaliate against and to humiliate
them and their family. Chief Green requests summary judgment, as do
the city and Gamble. Garner and Key seek a trial. Many of the material
facts are undisputed. Where some genuine dispute exists, the Court
takes the record in Garner’s and Key’s favor. Oglesby v. Lesan, 929 F.3d
526, 532 (8th Cir. 2019).
2. Garner claims her removal from the city’s civil service
commission violated the First Amendment and her due process rights
under the Fourteenth Amendment. Cities in Arkansas are not required
to have a civil service system, ARK. CODE ANN. § 14-51-102, but, if one
is in place, it must conform to the standards set out in ARK. CODE ANN.
§§ 14-51-201 through 14-51-212. Helena-West Helena had a civil
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service commission. The city council appointed Garner to the
commission in January 2014 and voted to remove her in August 2015.
The earliest Garner’s term could have ended was the first Monday in
April 2016. ARK. CODE ANN. § 14-51-201(b)(1). The city council’s
stated reason—that Garner’s term had expired—was untrue. Her
removal was improper.
First Amendment Retaliation. A solid retaliation claim in this
context requires Garner to show that she engaged in activity protected
by the First Amendment. Ackerman v. State of Iowa, 19 F.4th 1045, 1058
(8th Cir. 2021). Sometime in late 2014 or early 2015, John Huff (a city
council member) and Sandy Ramsey (the city clerk) asked Garner for a
copy of the civil service exam. Garner refused, saying it was illegal for
her to distribute copies of the exam before the exam date. A few months
later, in July 2015, Green joined the city’s police department as its chief.
Chief Green, through Huff and the city council, also asked for an
advance copy of the civil service exam. Garner again refused to release
it. With Huff’s help, Chief Green then began pushing for Garner’s
removal from the commission. The city council voted unanimously to
remove her in August.
Garner's effort to uphold the integrity of the civil service exam
was laudable. But her speech in that effort was not protected because
she didn’t speak as a citizen. Garcetti v. Ceballos, 547 U.S. 410, 421-22
(2006). As Helena-West Helena’s decision-making authority, the city
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council sought to exercise its control over the commission it had
created. And Garner’s refusal to release the exam was speech that
owed its existence to her professional responsibilities as chair of that
commission. Ibid. Garner commendably did what she thought was
right and required by her office. But the impropriety of her removal
doesn’t offend the First Amendment.
Due Process. A key ingredient is missing from Garner’s due
process claim as well: a constitutionally protected liberty or property
interest. Kroupa v. Nielson, 731 F.3d 813, 818-19 (8th Cir. 2013). Garner
likens her removal to a loss of public employment. Arkansas law
authorized the city council to remove Garner from the commission only
for cause. ARK. CODE ANN. § 14-51-210(a). In the ordinary case, a
plaintiff can show a protected property interest if state law imposes a
for-cause standard as a condition for her firing. Preston v. City of
Pleasant Hill, 642 F.3d 646, 651 (8th Cir. 2011). To receive constitutional
protection, however, the property interest must be more than de
minimis. Versarge v. Township of Clinton, 984 F.2d 1359, 1370
(3d Cir 1993); Auchinleck v. Town of LaGrange, 30 Fed. Appx. 640, 642
(7th Cir. 2002) (unpublished per curiam). Garner received no pay and
no benefits for her role on the commission. Her property interest in
continued service on the commission is therefore not constitutionally
protected. And the city council’s reason for removing Garner didn’t
involve allegations of “dishonesty, immorality, criminality, racism, and
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the like,” so she has also failed to establish a constitutionally recognized
liberty interest. Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir.
2008).
Even if Garner’s interests warranted protection, she received due
process in her successful post-deprivation appeal to the mayor. Clark
v. Kansas City School District, 375 F.3d 698, 702 (8th Cir. 2004). The city
council’s actions had no basis in Arkansas law; Garner’s removal was
unauthorized and random. Ibid. The mayor found the removal
improper and sought Garner's reinstatement. It’s unclear whether
Garner appealed formally—as a matter of some legal right—or
informally. But the parties agree that the mayor had the authority and
intention to reinstate Garner to her position as chair of the commission.
Before he could do so, however, the city council abolished the
commission. This abolition complied with Arkansas law. City of Pine
Bluff v. Southern States Police Benevolent Ass'n, 373 Ark. 573, 578, 285
S.W.3d 217, 221 (2008). Garner's post-deprivation remedy proved
unsuccessful because her reinstatement was impossible, not because
the process itself was inadequate or unavailable.
3. Garner next presses First Amendment retaliation claims
based on a restraining order entered against her in early 2016. These
claims also fail because she didn’t engage in protected activity.
Reacting to two Facebook posts that appeared on Garner’s Facebook
timeline about his and his son’s criminal histories, Chief Green sought
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and received a warrant for Garner’s arrest. Garner says she didn’t make
the posts. She believes that her sister-in-law did. Garner was never
arrested. Instead, after the judge issued the arrest warrant, a Helena-
West Helena police officer served a no-contact order on Garner at her
house. The order banned Garner from contacting or harassing Chief
Green.
Garner did not engage in any protected activity. She
acknowledges this. She argues that the Supreme Court’s decision in
Heffernan v. City of Paterson, 578 U.S. 266 (2016) nevertheless applies to
save her claims. Heffernan, as here, involved a state actor's belief that
the plaintiff had engaged in some form of speech. As here, the plaintiff
hadn’t. And, as here, the state actor took retaliatory action against the
plaintiff because of the mistaken belief. The Supreme Court allowed
Heffernan’s claim to go forward, focusing on the government's
motivation instead of Heffernan’s actions. While the factual similarities
are strong, the Court concludes as a matter of law that Heffernan’s reach
does not extend beyond its narrow _ context: public
employment/ political activity cases. Heffernan’s application to the
broader spectrum of First Amendment retaliation doctrine is, as best
this Court can tell, uncharted in this or any circuit. And the targeted
language of Heffernan’s central holding — employer, employee, political
activity —counsels against extension. 578 U.S. at 273. Garner's claim
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fails because she did not engage in any activity that the First
Amendment protects. In re Kemp, 894 F.3d 900, 906 (8th Cir. 2018).
4, In August 2016, some members of Garner’s family were
involved in a domestic dispute on the street where Key lived. Garner’s
son, sister, and nephew each had a role. The dispute escalated into a
gun fight. The Helena-West Helena police department received two
anonymous calls about the incident. Both Garner’s son (Andrew
Crawford) and her sister (Delphena Qasim) were reported to be among
the shooters. Officer Gamble, Captain Vann, Officer Thomas, and
others responded to the calls. Officers arrested Garner’s nephew.
Someone at the scene called Garner and told her what was happening.
She arrived minutes later. As the officers searched for Crawford,
Qasim, and the gun, Garner recorded and repeatedly interrupted their
investigation. The department’s investigation concluded at Key’s
house when she told officers that Qasim had left the scene. Crawford
and Qasim were not apprehended.
Garner’s Arrest. Two days after the incident near Key’s house,
Officer Gamble executed two warrants and arrested Garner for
hindering apprehension of another and obstructing governmental
operations. Garner claims her arrest violated the First and Fourth
Amendments, the ACRA, and Arkansas tort law. Garner’s civil rights
claims against Chief Green fail because she doesn’t allege his personal
involvement in her arrest. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);
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Heartland Academy Community Church v. Waddle, 595 F.3d 798, 806 (8th
Cir. 2010). The deep issue is whether Officer Gamble had arguable
probable cause for the arrest and is therefore entitled to qualified
immunity. Quraishi v. St. Charles County, 986 F.3d 831, 836 (8th Cir.
2021).
Officer Gamble had arguable probable cause to believe Garner
hindered the apprehension of Qasim and obstructed the department's
investigation. When Garner arrived at the scene, officers were in hot
pursuit of Crawford and Qasim. Garner placed herself in the middle
of everything and refused to leave when asked. Even considering her
explanation that she was taken ill and couldn’t obey the officers’
commands, her actions could reasonably be interpreted as a purposeful
distraction that allowed Qasim to evade custody. ARK. CODE ANN.
§ 5- 54-105(a)(3).* She also hindered the ongoing investigation, and, in
the circumstances, it was reasonable to believe that she did so
*(a) A person commits an offense under this section if, with purpose to
hinder the apprehension, prosecution, conviction, or punishment of
another person for an offense, he or she:
(3) Prevents or obstructs anyone from performing an act
which might aid in the discovery, apprehension, or
identification of the other person by means of force or
intimidation or the threat of force or intimidation, or by
means of deception|.]
ARK. CODE ANN. § 5-54-105(a)(3).
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knowingly. ARK. CODE ANN. § 5-54-102(a)(1).~ Officer Gamble
personally witnessed at least some of this. Lieutenant John Bailey Jr.,
who isn’t named as a defendant in this case, recounted these events and
signed the affidavit supporting the warrants for Garner’s arrest. A
Phillips County district judge issued the warrants after a probable
cause hearing. Doc. 36-11. In the circumstances, and regardless
whether there was actual probable cause, it was objectively reasonable
for Officer Gamble to believe that Garner had committed a criminal
offense. McCabe v. Parker, 608 F.3d 1068, 1078-79 (8th Cir. 2010).
Arguable probably cause existed.
Garner also presses Fourth Amendment claims for malicious
prosecution based on her arrest. The Eighth Circuit has never
recognized a stand-alone claim for malicious prosecution under § 1983.
Robinson v. Norling, 25 F.4th 1061, 1063 (8th Cir. 2022). The Supreme
Court, however, recently defined the contours of this kind of claim.
Thompson v. Clark, 142 S. Ct. 1332, 1337-38 (2022). It is unclear whether
arguable probable cause would entitle an officer to qualified immunity
on the claim. There is a hint in the cases that it would. Shimota v.
“ (a) A person commits the offense of obstructing governmental
operations if the person:
(1) Knowingly obstructs, impairs, or hinders the
performance of any governmental function[.]
ARK. CODE ANN. § 5-54-102(a)(1).
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Wegner, 759 Fed. Appx. 539, 541 (8th Cir. 2019) (unpublished per
curiam). If it does, then Officer Gamble is entitled to qualified immunity
because she had arguable probable cause to arrest Garner. If it does
not, then the Court concludes that Garner’s constitutional right against
malicious prosecution was not clearly established at the time of her
arrest. Quraishi, 986 F.3d at 835.
Officer Gamble is entitled to qualified immunity. And Garner’s
§ 1983 claims, and her parallel ACRA claims, therefore fail.
The Search of Key’s Home. On the same day that Officer Gamble
arrested Garner, the Helena-West Helena police department executed
a warrant authorizing a search of Key’s home for Crawford, Qasim, and
a handgun. During the search, the department seized a pink handgun.
The officers involved in the search included Captain Vann, Officer
Thomas, and others. Key says the search violated her rights under the
Fourth Amendment. She challenges the validity of the search warrant
and claims that the search resulted in unnecessary and unreasonable
damage to her property. Garner says that the pink handgun belonged
to her; that she repeatedly asked for it back; that it was never returned;
and that it has since been lost. She presses claims under the Fourteenth
Amendment and Arkansas law.
First, the warrant to search Key’s home was valid. Judge Porter
considered Captain Vann’s affidavit and issued the warrant. The
affidavit included enough information for a reasonable person to
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conclude that Crawford, Qasim, ora gun used ina crime -—or all three —
could be found at Key’s house. The warrant particularly described the
place to be searched and the persons and things to be seized. That's all
the Fourth Amendment requires. Dalia v. United States, 441 U.S. 238,
255 (1979); Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998).
Second, Key hasn’t offered sufficient proof to support a verdict
that any of the named defendants caused unnecessary or unreasonable
damage to her property during the search. The record evidence shows
general disorder, not, as Key alleges, damage or destruction. Even
assuming that some evidence of damage could be presented, the Fourth
Amendment’s prohibition against property damage is limited because
damage is sometimes necessary for an effective search. Cook v. Gibbons,
308 Fed. Appx. 24, 28 (8th Cir. 2009) (unpublished per curiam). To be
unconstitutional, the damage must be unreasonable in the
circumstances. Ibid. On this record, no reasonable juror could find that
Chief Green, Officer Gamble, Captain Vann, or Officer Thomas
unreasonably damaged Key’s property.
Third, the seizure of Garner’s pink handgun was consistent with
the search warrant’s limits. Walden, 156 F.3d at 873. The warrant
described a handgun that was allegedly used illegally during the
domestic dispute. A reasonable officer could have believed that
Garner’s handgun was the one to be seized. To the extent Garner
presses a Fourth Amendment claim for the seizure of her gun, it fails.
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Garner’s Fourteenth Amendment claims also fail. Garner asked
Chief Green to return her handgun many times after the valid seizure.
Chief Green refused to release the gun even after it was made clear to
him that it had no use in any ongoing investigations. Doc. 36-2 at 162.
The gun has never been returned. It has been lost. Losing the gun
didn’t violate Garner’s due process rights; negligence and gross
negligence are not actionable under § 1983. S.S. v. McMullen, 225 F.3d
960, 964 (8th Cir. 2000). Neither did Chief Green’s decision to hold onto
the gun during the department’s investigation of the domestic dispute.
Rodgers v. Knight, 781 F.3d 932, 941 (8th Cir. 2015). The gun should have
been returned, though, when Garner requested it after the investigation
had ended. Walters v. Wolf, 660 F.3d 307, 314 (8th Cir. 2011). Garner’s
informal post-investigation requests to Chief Green and his successor,
however, did not satisfy her obligation to seek a post-deprivation
administrative remedy under state law. Crawford v. Van Buren County,
678 F.3d 666, 670 (8th Cir. 2012). She never sought relief under Rule
15.2 of the Arkansas Rules of Criminal Procedure by petitioning the
court that issued the search warrant. There was no due process
violation if an adequate and meaningful post-deprivation state law
remedy is existed, as it did here. Mickelson v. County of Ramsey, 823 F.3d
918, 928-29 (8th Cir. 2016).
5. | The remaining claims are all state law matters. Consistent
with precedent, the Court declines to exercise supplemental
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jurisdiction over those claims. 28 U.S.C. § 1367(c)(3); Streambend
Properties II, LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003, 1016-17
(8th Cir. 2015).
The defendants’ motions for summary judgment, Doc. 35 & 38, are
mostly granted and partly denied. All of Garner’s and Key’s federal
and state civil rights claims will be dismissed with prejudice. Garner’s
state law claims for abuse of process, malicious prosecution, and
conversion will be dismissed without prejudice.
So Ordered.
D.P. Marshall Jr.
United States District Judge
17 Tune 2020-
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