Calvin v. Randall

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

GERRY CALVIN PLAINTIFF

v. Case No. 4:21-cv-00224-LPR

JOHN RANDALL, individually and in his

official capacity, et al. DEFENDANTS

ORDER

This is a police misconduct case. Plaintiff Gerry Calvin alleges both unconstitutional and

tortious acts were visited upon him by Menifee Police Chief John Randall.1 Mr. Calvin seeks

redress not just from Chief Randall, but also from the City of Menifee, the Mayor of Menifee, and

members of the Menifee City Council.2 Chief Randall disputes Mr. Calvin’s allegations of

misconduct,3 and all the Defendants dispute Mr. Calvin’s entitlement to redress from them.4

Before the Court are two motions for summary judgment, each filed by a different set of

Defendants.5 Between the two motions, the Defendants have asked for judgment in their favor

on all claims brought by Mr. Calvin.6

For the reasons discussed in the rest of this Order, the Court GRANTS IN PART and

1 Compl. (Doc. 2) at ¶ 1.

2 Id. at ¶¶ 4–10.

3 Chief Randall’s Answer (Doc. 8) at ¶ 16.

4 City of Menifee’s Answer (Doc. 5) at ¶ 34; Chief Randall’s Answer (Doc. 8); Individual Capacity Defs.’ Answer

(Doc. 22).

5 The Motion filed by the City of Menifee and the official-capacity Defendants addresses all the official-capacity

claims brought by Mr. Calvin. City of Menifee’s Mot. for Summ. J. (Doc. 36). The other Motion was filed by the

Defendants that were sued in their individual capacities. Unsurprisingly, it addresses the individual-capacity claims

brought by Mr. Calvin. Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39).

6 City of Menifee’s Mot. for Summ. J. (Doc. 36); Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39).

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DENIES IN PART both motions. Defendants are entitled to summary judgment on most claims.

But the following claims have genuine disputes of material fact that require proceeding to a jury:

(1) the individual-capacity § 1983 claim against Chief Randall based on Mr. Calvin’s Fourteenth

Amendment substantive due process rights; (2) the mirror-image ACRA claim; and (3) the assault

claims against Chief Randall and the City of Menifee.

Each of the surviving claims arises from one particular interaction between Chief Randall

and Mr. Calvin. And the historical facts surrounding this interaction are in hot dispute.

Mr. Calvin alleges that Chief Randall intentionally tried to hit Mr. Calvin with his truck,7 then

threatened multiple times to put a bullet in Mr. Calvin’s head, and then began to raise a firearm.8

Mr. Calvin has put forth enough facts to support these allegations such that a reasonable jury could

agree that this interaction occurred as Mr. Calvin alleged. Whether Mr. Calvin prevails at trial

depends on what the jury actually finds to have occurred as a matter of historical fact. But

Mr. Calvin has done enough for now to get to a jury on the three categories of claims set out above.

I. THRESHOLD ISSUES

Before diving into the facts, it is worth spending a few moments separating the wheat from

the chaff in this case. Mr. Calvin originally brought a large number of claims against a large

number of Defendants.9 But, in a March 2022 Order, the Court got rid of the individual-capacity

§ 1983 and ACRA claims against the City Council members.10 And, at the August 2023 summary

7 Chief Randall’s vehicle is referred to varyingly as a “car” or a “truck” throughout the record. It appears that Chief

Randall was driving a large SUV on the night of the incident. Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity

Defs.’ Mot. for Summ. J. (Doc. 39-6) at 129. The Court will refer to Chief Randall’s vehicle as a “truck.”

8 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 62.

9 Compl. (Doc. 2).

10 Order Granting in Part and Den. in Part Defs.’ Mot. to Dismiss (Doc. 15) at 14.

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judgment hearing, Mr. Calvin conceded that summary judgment should be granted to Defendants

on several other claims.11 Ultimately, as Mr. Calvin has acknowledged, the only still-live claims

are “a 1983 substantive due process claim against Randall” in his “individual capacity,” “an ACRA

substantive due process claim against Randall in his individual capacity,” “[a]nd . . . a bunch of

tort claims . . . against a bunch of different people including Randall but also others.”12

The § 1983 and ACRA individual-capacity claims against Chief Randall require further

discussion below. So do the intentional tort claims brought against Chief Randall and others.

But there are a set of tort claims that can be quickly disposed of on state law immunity grounds—

to wit, the negligence claims. In the Court’s March 2022 Order, the Court set forth a fairly

detailed explanation of Ark. Code Ann. § 21-9-301.13 Instead of repeating that legal discussion

here, the Court simply adopts that discussion by reference. Under this Arkansas statute and

associated Arkansas caselaw, Defendants are clearly immune from tort liability and damages with

respect to the negligence claims unless they have applicable liability insurance coverage.14

According to undisputed record evidence, none of the Defendants are covered by liability

insurance for any damages that might arise from the negligence claims in this case.15 So the

11 Mot. for Summ. J. Hr’g Tr. at 1:43:11–1:43:44, 1:58:52–2:00:28.

12 Id. at 1:59:40–2:00:28.

13 Order Granting in Part and Den. in Part Defs.’ Mot. to Dismiss (Doc. 15) at 10–13.

14 Ark. Code Ann. § 21-9-301(b); Smith v. Brt, 363 Ark. 126, 130, 211 S.W.3d 485, 489 (2005); Helena-W. Helena

Sch. Dist. v. Monday, 361 Ark. 82, 85–86, 204 S.W.3d 514, 516–17 (2005); Carlew v. Wright, 356 Ark. 208, 216, 148

S.W.3d 237, 242 (2004); Spears v. City of Fordyce, 351 Ark. 305, 308–10, 92 S.W.3d 38, 40–41 (2002).

15 Ex. 3 (Aff. of Terry Coleman in Official Capacity) to City of Menifee’s Mot. for Summ. J. (Doc. 36-3) at ¶ 3; Ex. 1

(Aff. of Chief Randall) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-1) at ¶¶ 3–4; Ex. 2 (Aff. of Terry

Coleman in Individual Capacity) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-2) at ¶ 3; Ex. 3 (Aff. of

Rita Davis) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-3) at ¶ 3; Ex. 4 (Aff. of Derrick Hammond) to

Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-4) at ¶ 3; Ex. 5 (Aff. of Ronnie Williams) to Individual

Capacity Defs.’ Mot. for Summ. J. (Doc. 39-5) at ¶¶ 3–4; Pl.’s Resp. to Individual Capacity Defs.’ Statement of

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statute, and its immunity, fully applies. Perhaps in recognition of this fact, Mr. Calvin did not

even address Defendants’ immunity arguments in his Responses to their Motions.16 Bottom line:

the negligence claims are out.17

With the underbrush of this case cleared away, we can now turn to the facts section that

will inform the legal analysis of the remaining claims.

II. BACKGROUND FACTS

On summary judgment, the Court is supposed to consider the record in a very particular

way. First, the Court adopts and considers all undisputed facts. Second, as to each genuinely

disputed fact that is material to the outcome of the case, the Court adopts and considers the version

of the fact that is most favorable to the non-moving party and the reasonable inferences from that

fact that are most favorable to the non-moving party—in this case, the Plaintiff.18 A fact is

genuinely disputed if a reasonable jury could decide the fact in favor of either a plaintiff or a

defendant.19 In light of the foregoing, the story presented below is the most Plaintiff-friendly

rendition of the facts that a reasonable jury could conclude occurred. It bears emphasizing that,

at trial, the jury might or might not agree with important parts of this rendition. And that could

Material Facts Not in Dispute (Doc. 48) at ¶ 12.

16 Br. in Supp. of Pl.’s Resp. to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 49) at 17–21; Br. in Supp. of Pl.’s

Resp. to City of Menifee’s Mot. for Summ. J. (Doc. 52) at 20–24.

17 In his summary judgment papers, Mr. Calvin seems to suggest he brought an “abuse of power” tort claim. Br. in

Supp. of Pl.’s Resp. to. City of Menifee’s Mot. for Summ. J. (Doc. 52) at 26. Even assuming such a claim exists in

Arkansas—which is quite an assumption—Mr. Calvin did not plead one. There is a single reference to “abuse of

power” in the Complaint. Compl. (Doc. 2) at ¶ 23. And in context that single reference cannot possibly be read as

making a stand-alone claim. In the tort section, Mr. Calvin expressly brings several tort claims; abuse of power is

not one of them. Id. at ¶¶ 29–33.

18 See Quinn v. St. Louis Cnty., 653 F.3d 745, 750 (8th Cir. 2011).

19 See Liberty Ins. Corp. v. HNTB Corp., 87 F.4th 886, 888 (8th Cir. 2023).

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well change the complexion of this case. But, for now, here’s the story.

On the evening of November 21, 2020, Mr. Calvin was hosting a sweet sixteen birthday

party for his cousin at his property.20 Mr. Calvin’s property contains a large metal building that

apparently also serves as Mr. Calvin’s home.21 The building can hold hundreds of people, and is

equipped with a sound system, wet bar, and stripper pole.22 The party was taking place in this

large metal building—that is, the party was taking place in Mr. Calvin’s home.23

Mr. Calvin’s property is located at 59 Cadron Creek Road, Plummerville, Arkansas.24 At

about 7:45 p.m. on the night in question, Chief Randall received a phone call concerning loud

music in the Cadron Creek area.25 After sending a different officer to investigate the noise

complaint, Chief Randall eventually drove to Mr. Calvin’s property to further investigate.26 (At

this point in time, the Menifee City Council had been dealing with an ongoing problem of loud

20 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 57–58. Whether the

party was really a sweet sixteen for a family member is genuinely disputed, although that dispute is perhaps not

material. Defendants have some evidence to show that Mr. Calvin rented out the property for parties. Ex. 8 (Second

Dep. of Gary Green) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-8) at 106–07. At these parties, there

often was a cover fee, alcohol, strippers, and up to 1500 people. Id. at 106–17. To locals, 59 Cadron Creek Road (the

address of Mr. Calvin’s property) was known by many names, including VIP Spot, Gabby’s Place, and Party Zone.

Id. at 107–08; Ex. 9 (Dep. of Chief Randall) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-9) at 85–87.

Chief Randall described Mr. Calvin’s property as a “club.” Ex. 9 (Dep. of Chief Randall) to Individual Capacity

Defs.’ Mot. for Summ. J. (Doc. 39-9) at 75, 87. Because the Court must adopt the most pro-plaintiff version of the

record that a reasonable jury could, the Court proceeds as if the party at issue was a family sweet sixteen and not a

more commercial and adult-oriented event. Indeed, because Mr. Calvin denies all of the foregoing by way of his

deposition testimony, the Court assumes for purposes of summary judgement that none of the facts in this footnote

(concerning the use of the property for commercial parties) are historically accurate.

21 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 117–18.

22 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 4. Again, see

supra note 20 for the other view of the so-called sweet sixteen.

23 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 57–58.

24 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 3.

25 Id. at ¶ 12.

26 Id. at ¶ 13; Ex. 1 (Aff. of Chief Randall) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-1) at 5.

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gatherings at this property.27) Upon entering the property, Chief Randall heard the loud music.28

Mr. Calvin’s property has a gate one must traverse to enter.29 The gate is generally open

during the day but closed at night.30 When closed, the gate only opens (1) if Mr. Calvin activates

it to let a car in, or (2) if a car already on the property approaches the gate to leave.31 In any event,

on the night in question, the gate was open.32 Chief Randall drove through the open gate onto the

property, and then continued driving down the private driveway.33

Chief Randall drove toward the large metal building (aka, Mr. Calvin’s home) and

observed a person drinking beer outside the building.34 He then drove around the building and

took pictures of vehicles parked near the building.35 Mr. Calvin took notice of this. Specifically,

he noticed Chief Randall’s black truck drive through the property’s gate and start to circle the

27 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 3.

28 Id. at ¶ 13.

29 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 59.

30 Id. at 129.

31 Id. at 59–61.

32 Id. at 61.

33 Id. at 60–61; Ex. 9 (Dep. of Chief Randall) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-9) at 62–63.

34 Ex. 9 (Dep. of Chief Randall) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-9) at 101–02. In one of

the Statements of Undisputed Fact, the Defendants assert Chief “Randall observed a person drinking beer outside and

three people quickly duck inside the building.” Individual Capacity Defs.’ Statement of Material Facts Not in Dispute

(Doc. 41) at ¶ 14. Mr. Calvin made a blanket denial of this assertion of fact, Pl.’s Resp. to Individual Capacity Defs.’

Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 14, but he did not explain precisely what he denied. Instead,

he pointed to his own deposition at page 131. Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for

Summ. J. (Doc. 39-6) at 131. But that portion of the deposition does not include evidence that would counter the

assertion that Chief Randall saw someone drinking. Id. Indeed, that portion of the deposition acknowledges that

there were women standing outside of the large metal building. Id. At most, this portion of the deposition counters

Chief Randall’s assertion that the people outside the building quickly ducked inside the building when they saw him

approach. Id.

35 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 15.

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property.36 Mr. Calvin went outside to see what was going on.37

As he rounded a corner of the building, Mr. Calvin saw Chief Randall (whom he knew

from prior interactions) outside of the black truck.38 At this moment, Chief Randall jumped back

into the truck, put it into gear with the door open, and drove it toward Mr. Calvin.39 It is not clear

how fast the vehicle was moving, but Mr. Calvin described it as “lung[ing]” toward him.40 Mr.

Calvin had to jump out of the way of the vehicle to avoid being hit by the open door.41 Indeed,

according to former Mayor Gary Green, who was watching this incident unfold over the security

cameras inside the metal building, Chief Randall actually swerved his vehicle toward Mr. Calvin.42

When asked if Chief Randall had to swerve to avoid hitting Mr. Calvin, Mr. Green explained that

Chief Randall “didn’t swerve to avoid him,” but instead “swerved toward him.”43 It was Mr.

Green’s impression that Chief Randall “was trying to scare” Mr. Calvin.44

This was not the end of the interaction. It is a reasonable inference from the record that

Chief Randall stopped the truck after Mr. Calvin jumped out of the way.45 Mr. Calvin then

hollered at Chief Randall, exclaiming “[h]ey, what are you doing?”46 Chief Randall responded

36 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 83; Pl.’s Resp. to

Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 17.

37 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 131.

38 Id. at 61–62, 130–131.

39 Id. at 62.

40 Id. at 84.

41 Id. at 70, 84.

42 Ex. 8 (Second Dep. of Gary Green) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-8) at 41–42.

43 Id. at 42.

44 Id.

45 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 62.

46 Id.

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by asking Mr. Calvin, “[d]o you want me to put a bullet in your head?”47 Chief Randall also

threatened to take Mr. Calvin to jail.48 Mr. Calvin retorted, “I’m just asking you, what are you

doing on private property?”49 Chief Randall then repeated (at least two more times) his seemingly

rhetorical question: “Do you want me to put a bullet in your head?”50

While asking this question, Chief Randall “reached down inside of the door panel and got

his gun and came up with it.”51 Mr. Calvin saw the gun.52 At this point, Mr. Calvin “turned

around and left.” 53 Accordingly, Mr. Calvin never saw whether Chief Randall actually pointed

the gun at him, and the record does not reveal whether Chief Randall actually pointed the gun at

Mr. Calvin.54

The entire incident—from the time Chief Randall drove through the gate to the time he

exited the property—lasted “five or six minutes.”55 Mr. Calvin acknowledges that this interaction

47 Id.

48 Id. at 63–64.

49 Id. at 62.

50 Id.

51 Id.

52 Id.

53 Id.

54 Id.; Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 21.

55 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 26. The Court

wishes to once again emphasize that this rendition of the facts is genuinely disputed. Defendants have presented

testimonial evidence that Chief Randall did not swerve his truck toward Mr. Calvin, but actually swerved away from

Mr. Calvin when Mr. Calvin was aggressively running at Chief Randall’s vehicle. Ex. 9 (Dep. of Chief Randall) to

Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-9) at 69. Defendants have also presented testimonial evidence

that Chief Randall’s threat to shoot Mr. Calvin was only in response to Mr. Calvin aggressively running at Chief

Randall’s truck, and that the threat was explicitly conditioned on Mr. Calvin not stopping his aggressive approach.

Id. at 69–70. The problem for Defendants—at this stage of the litigation—is the existence of testimony by both

Mr. Calvin and Mr. Green that directly controverts (1) the notion that Mr. Calvin was running (or otherwise

aggressively approaching) the truck, and (2) the assertion that Chief Randall was trying to swerve away from Mr.

Calvin. Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 70, 84; Ex. 8

(Second Dep. of Gary Green) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-8) at 41–42. The Court has

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did not result in any physical injuries.56 But he says the incident caused him mental and emotional

suffering.57 Specifically, he testified in his deposition that he “can’t sleep at night,” feels like he

has “to watch [his] back all the time,” and “has anxiety” because of this incident.58 In a December

2020 “citizen complaint” stemming from this November 2020 incident, Mr. Calvin noted that,

during the incident, he “was afraid for [his] life.”59

III. LEGAL ANALYSIS

The Court begins with the claims that fail at this stage and then moves to the claims that

proceed.

A. The Outrage and Invasion of Privacy Claims

Let’s take outrage first. In Arkansas, the elements of the tort of outrage are as follows: (1)

the defendant “intended to inflict emotional distress or knew or should have known that emotional

distress was the likely result of his conduct”; (2) the conduct was “extreme and outrageous,”

“beyond all possible bounds of decency,” and “utterly intolerable in a civilized community”; (3)

“the actions of the defendant were the cause of the plaintiff’s distress”; and (4) “the emotional

distress sustained by the plaintiff was so severe that no reasonable person could be expected to

endure it.”60 Even on the most pro-Plaintiff read of this record, Chief Randall—and thus all the

Defendants—are entitled to judgment as a matter of law on these claims. Here’s why.

no choice at this juncture but to assume the facts are as Mr. Calvin and Mr. Green assert.

56 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 86.

57 Id.

58 Id. at 86, 108–12.

59 Ex. 5 (Aff. of Ronnie Williams) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-5) at 8–10.

60 Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 957, 69 S.W.3d 393, 403–04 (2002).

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The only potentially extreme and outrageous conduct here was Chief Randall driving the

truck at Mr. Calvin such that Mr. Calvin had to jump out of the way of the open truck door.61

Although Chief Randall’s threats to shoot Mr. Calvin were unprofessional and undoubtedly

frightening (assuming Plaintiff’s version of events), recall that there is no evidence Chief Randall

pointed his gun at Mr. Calvin.62 Without such evidence, Chief Randall’s threats do not rise to the

level of extreme and outrageous conduct beyond all bounds of decency and utterly intolerable in a

civilized society.

So, the question becomes whether Chief Randall’s driving toward Mr. Calvin caused

Mr. Calvin emotional distress so severe that no reasonable person could be expected to endure it.

There is no evidence in the record from which a reasonable jury could answer this question in the

affirmative. It is true that Mr. Calvin says that, at the time of the incident in question, he was

scared for his life.63 It is also true that Mr. Calvin says that he now “can’t sleep at night,”

“watch[es] his back all the time,” and “has anxiety.”64 But recall the brevity of the interaction at

issue here.65 Being scared for one’s life for a few moments is not on its own sufficient to find

emotional distress severe enough that no reasonable person could be expected to endure it.66 And

Mr. Calvin’s vague and general comments about not being able to sleep at night and having to

61 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 70.

62 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 21.

63 Ex. 5 (Aff. of Ronnie Williams) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-5) at 8.

64 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 86, 108–12.

65 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 26.

66 See Schmidt v. Stearman, 98 Ark. App. 167, 171, 178–79, 253 S.W.3d 35, 39, 44–45 (2007) (holding that the

plaintiff did not sustain “emotional distress so severe that no reasonable person could be expected to endure it” despite

the plaintiff offering proof that he “feared for [his] li[fe].”).

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watch one’s back don’t supply the missing severity.67 There is no evidence that Mr. Calvin got

treatment from a doctor or specialist for emotional distress.68 Mr. Calvin has stated that he does

not take any medications for such distress, for his sleeping problems, or for anxiety.69 The Court

does not question (at this stage) whether Mr. Calvin had or has emotional distress from the incident

in question. But no reasonable jury could conclude that the distress was or is severe enough to

meet the fourth element of Arkansas’s tort of outrage.70

We move on to the invasion of privacy tort. While Arkansas recognizes four subspecies

of invasion of privacy, the only one potentially at issue here is intrusion upon seclusion.71 A

person commits this tort if he “intentionally intrudes, physically or otherwise, upon the solicitude

or seclusion of another . . . if the intrusion would be highly offensive to a reasonable person.”72

On this record, no reasonable jury could conclude that Chief Randall’s coming onto Mr. Calvin’s

property to address a noise complaint “would be highly offensive to a reasonable person.”73 Chief

67 See FMC Corp. v. Helton, 360 Ark. 465, 486, 202 S.W.3d 490, 505 (2005) (“While Appellees testified about

suffering sleep loss, loss of appetite, and anxiety, such distress is the type that reasonable people may be faced with

throughout their lives.”).

68 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 111–12.

69 Id.

70 One might ask why the Court is analyzing the fourth element of this tort when the individual-capacity Defendants

only challenged the second element of the tort. Br. in Supp. of Individual Capacity Defs.’ Mot. for Summ. J. (Doc.

40) at 15. It is because the Court reads the principal brief filed by the City of Menifee and the official-capacity

Defendants to challenge Plaintiff’s claim on all elements of the tort, including the fourth element. Br. in Supp. of

City of Menifee’s Mot. for Summ. J. (Doc. 37) at 25. That global challenge allows the Court to grant summary

judgment to all Defendants based on the Court’s conclusion that no reasonable jury could find the fourth element

satisfied on the record as it currently stands.

71 Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 637, 590 S.W.2d 840, 844 (1979); Dunlap v. McCarty, 284 Ark.

5, 9, 678 S.W.2d 361, 363–64 (1984).

72 McMullen v. McHughes L. Firm, 2015 Ark. 15, 14, 454 S.W.3d 200, 209 (2015) (quoting Wal-Mart Stores, Inc. v.

Lee, 348 Ark. 707, 719, 74 S.W.3d 634, 644 (2002)).

73 Id.

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Randall was investigating a noise complaint.74 The front gate to Mr. Calvin’s property was

open.75 Chief Randall drove in and then drove along the driveway toward the principal building

on the property, which was also Mr. Calvin’s home.76 Nothing about a police officer coming to

one’s property, driving through an open gate, and driving up one’s driveway to one’s house in

order to discuss or investigate a noise complaint would be highly offensive to a reasonable

person.77

Mr. Calvin’s strongest argument here is that Chief Randall also took pictures of several

vehicles around the building.78 But recall that the entire episode lasted only five-to-six minutes.79

What that tells us is that the picture-taking was very brief. And it was not of people, or of the

interior of the building, or of the interior of any vehicles.80 Whether or not the picture-taking was

constitutionally appropriate, it was not such an egregious act of intrusion upon seclusion to be

highly offensive to the reasonable person.81 Consequently, Chief Randall and the other

Defendants are entitled to judgment as a matter of law on these claims.

74 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶¶ 12–13.

75 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 60.

76 Id. at 117–18; Ex. 9 (Dep. of Chief Randall) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-9) at 62–63.

77 See Burdyshaw v. State, 69 Ark. App. 243, 246–48, 10 S.W.3d 918, 920–21 (2000) (holding that an officer did not

violate the appellant’s rights when he entered the appellant’s property through an open gate, drove toward the

appellant’s home up a long driveway, and took photographs of tire tracks on the appellant’s property.).

78 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 15.

79 Id. at ¶ 26.

80 Id. at ¶ 15.

81 See Burdyshaw, 69 Ark. App at 247, 10 S.W.3d at 920–21 (“The presence of ‘no trespassing’ signs in this country

without a locked or closed gate make the entry along the driveway for the purposes above described not a

trespass . . . .”) (quoting United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982)).

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B. The § 1983, ACRA, and Assault Claims

Let’s start with the § 1983 and ACRA substantive due process claims against Chief Randall

in his individual capacity. As will become apparent in a few moments, the Court is letting the

§ 1983 claim move forward to trial. The ACRA claim is, at worst for Mr. Calvin, a mirror-image

claim.82 So it would move through as well, and the Court need not decide at this time whether

the ACRA substantive due process claim applies a less stringent test than the § 1983 substantive

due process claim.

Although the Court acknowledges that the incident at issue was not a high-speed chase,

the Court nevertheless concludes that the “intent-to-harm” standard set out in County of

Sacramento v. Lewis applies to Mr. Calvin’s § 1983 substantive due process.83 The Court believes

this to be the import of the en banc majority’s analysis in Terrell v. Larson.84 The incident in the

instant case arose in the context of on-scene police action and involved quick decision-making in

a fluid situation. Under Terrell, that’s reason enough for the Lewis standard to apply.85 So, to

get past summary judgment, Mr. Calvin must have provided evidence from which a reasonable

jury could conclude that (1) Chief Randall had an intent to cause harm to Mr. Calvin unrelated to

a legitimate law enforcement objective, and (2) Chief Randall’s conduct violated one of

Mr. Calvin’s fundamental rights that is “deeply rooted in this nation’s history and tradition . . . and

82 See Grayson v. Ross, 369 Ark. 241, 249, 253 S.W.3d 428, 434 (2007) (addressing whether the “conscious

indifference” standard or the more demanding federal standard applies to ACRA claims).

83 523 U.S. 833, 854 (1998).

84 See 396 F.3d 975, 978–79 (8th Cir. 2005), as corrected (Mar. 23, 2005) (“By contrast, the intent-to-harm standard

most clearly applies ‘in rapidly evolving, fluid, and dangerous situations which preclude the luxury of calm and

reflective deliberation.’”) (quoting Neal v. St. Louis County Bd. of Police Comm’rs, 217 F.3d 955. 958 (8th Cir.

2000)).

85 See id. at 978.

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implicit in the concept of ordered liberty . . . such that neither liberty nor justice would exist if they

were sacrificed.”86

This record contains such evidence. A reasonable jury could conclude based on

Mr. Calvin’s and Mr. Green’s testimonies—and reasonable inferences therefrom—that: (1) Chief

Randall saw Mr. Calvin slowly and passively walking toward him outside the large metal building

that served as Calvin’s home;87 (2) Chief Randall then got in his truck, left the door open and

intentionally drove at Mr. Calvin with some not-insignificant speed;88 and (3) Chief Randall

intended to hit Mr. Calvin with the still-open truck door. Point (1) and (2) come almost directly

from Mr. Calvin’s and Mr. Green’s testimonies. Point (3) can be inferred because there is

evidence that Mr. Calvin had to jump out of the way to avoid getting hit by the open truck door.89

To paraphrase from the Eighth Circuit Model Criminal Jury Instructions, a jury may but is not

required to infer that a person intends the natural and probable consequences of acts knowingly

done.90 Whether or not the Court thinks it would be the right way to interpret the evidence, a trial

jury would not be unreasonable for finding that Chief Randall intentionally tried to drive his truck

such that the open door would hit Mr. Calvin.91

86 Id. at 976, 978 n.1 (quoting Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002)).

87 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 61–62, 131; Ex. 8

(Second Dep. of Gary Green) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-8) at 41–42.

88 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 62; Ex. 8 (Second Dep.

of Gary Green) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-8) at 42.

89 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 70.

90 Eighth Cir. Model Criminal Jury Instr. § 7.05.

91 The fact that Chief Randall subsequently threatened (three times) to shoot Mr. Calvin in the head could be

considered by the jury to be evidence of Chief Randall’s intent to harm Mr. Calvin by driving into him. Of course,

that’s only on a very pro-Plaintiff (but not unreasonable) read of the record. In any event, and to be crystal clear, the

threats to shoot Mr. Calvin are not themselves conscience-shocking behavior under Lewis.

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The foregoing is enough to establish a conscience-shocking intent to harm. To be clear,

attempting to drive a truck at some pace into a non-aggressive citizen is so outrageous and

egregious as to be conscience-shocking enough to meet the first prong of the Lewis test.92 But

what about the second prong of the test? Did this conduct violate a fundamental right of the kind

set out in Glucksberg?93 The Court need not address this question at this time. Neither set of

Defendants argued in their summary judgment motions that this second prong was a barrier to Mr.

Calvin’s claim. The Court is not an advocate and will not develop arguments that the parties

either intentionally or unintentionally overlooked.94

It is true that, on Page 9 of their opening brief, the individual-capacity Defendants set out

the two prongs of the substantive due process test—one of the prongs being “that Chief Randall

violated one of [Mr. Calvin’s] fundamental rights.”95 But these Defendants never analyze that

Glucksberg-related prong.96 Instead, these Defendants aim their fire at the other prong—whether

“[Chief] Randall’s conduct ‘shocks the conscience.’”97 It is thus no surprise that these Defendants

conceded the Glucksberg-related prong at oral argument.98

92 See Lewis, 523 U.S. at 854.

93 See id. at 847 n.8.

94 Cooper v. First Gov’t Mortg. & Invs. Corp., 238 F. Supp. 2d 50, 62 (D.D.C. 2002) (“The court is not an advocate,

and thus may not fill in the argument where the plaintiffs’ motion fails to do so.”).

95 Br. in Supp. of Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 40) at 9.

96 Id. at 9–10.

97 Id.

98 Mot. for Summ. J. Hr’g Tr. at 1:23:49–1:24:38. (“Again, the plaintiff’s going to have to show the violation of some

fundamental right and behavior that shocks the conscience. I think he gets there to the extent that hitting someone

with a vehicle is deadly force and so he’s managed to hit on a right to life as a right. It’s at least implicit in the [B]ill

of [R]ights. So then the question becomes whether this shocks the conscience and whether on the record there really

is a fact question about whether Chief Randall that night was meaning to actually run over [Mr.] Calvin or even just

make him think he was going to run over him.”).

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The City of Menifee and the official-capacity Defendants did not even mention the

Glucksberg fundamental rights prong in their opening brief.99 At Page 8 of the Reply Brief, these

Defendants note that one of the two prongs of the applicable substantive due process test requires

an analysis of whether the right asserted by a plaintiff is within the Glucksberg fundamental rights

rubric.100 But a new argument cannot be raised in a party’s Reply Brief.101 And even putting

that aside, these Defendants merely state the Glucksberg-related prong; they do not do any analysis

of how the prong applies to Mr. Calvin’s claims, nor do they suggest that the claims fail because

of this prong.102 These Defendants did not mention the Glucksberg-related prong at oral

argument, and they did not take issue with the individual-capacity Defendants’ concession of that

prong.103

Defendants’ final argument for summary judgment on the § 1983 and ACRA claims is a

qualified immunity argument.104 The argument goes something like this. Even assuming Chief

Randall’s conduct turned out to be a substantive due process violation, he is protected from suit

and liability by the doctrine of qualified immunity unless it was clearly established—at the time

99 Br. in Supp. of City of Menifee’s Mot. for Summ. J. (Doc. 37) at 9–10.

100 Reply Br. to Resp. to City of Menifee’s Mot. for Summ. J. (Doc. 56) at 8.

101 Mahaney v. Warren Cnty., 206 F.3d 770, 771 n.2 (8th Cir. 2000) (“[W]e generally do not consider issues raised

for the first time . . . in a reply brief.”).

102 Reply Br. to Resp. to City of Menifee’s Mot. for Summ. J. (Doc. 56) at 7–10. To the extent Defendants are trying

to say that the requirement of a Glucksberg right logically limits the applicable analysis to the Fourth Amendment,

that argument runs contrary to Eighth Circuit precedent. The Eighth Circuit is quite clear that Lewis-type substantive

due process claims are appropriate where Fourth Amendment claims would have been appropriate except for the

absence of a seizure. See Helseth v. Burch, 258 F.3d 867, 872 n.4 (8th Cir. 2001); Slusarchuk v. Hoff, 346 F.3d 1178,

1181 (8th Cir. 2003).

103 Mot. for Summ. J. Hr’g Tr. at 1:08:39–1:21:33, 2:01:38–2:01:46.

104 Br. in Supp. of Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 40) at 10–11.

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he committed the purportedly bad acts—that his conduct was violative of the Constitution.105 The

point of the qualified immunity doctrine is to confine liability to only those government officials

who intentionally violate the Constitution or are so grossly incompetent that they fail to follow

clear constitutional dictates.106 A constitutional rule is clearly established in the Eighth Circuit if

there is—at the time of the officials’ purportedly bad acts—on-point Supreme Court precedent,

on-point Eighth Circuit precedent, or a consensus of on-point precedent from other circuits that

identifies the rule and makes clear it applies to the situation at hand.107 The fit between the

precedent and the circumstances in the case at bar does not need to be perfect.108 But it needs to

be close enough that all but the most incompetent officials would be on notice that the rule applies

to the conduct in which they purportedly engaged.109 This analysis cannot take place at too high

a level of generality, but it need not take place at the finest level of granularity.110

Given the disputed historical facts in this case, and the requirement at this stage to adopt

the most pro-Plaintiff version of the facts that could be found by a reasonable jury, Chief Randall

only gets qualified immunity if it was not clearly established by November 21, 2020, that he

violated the Constitution by intentionally trying to drive his truck at a not-insignificant speed into

a person suspected of violating a noise ordinance (and maybe running a club without a business

105 Id.

106 See Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

107 Hanson as Tr. for Layton v. Best, 915 F.3d 543, 548 (8th Cir. 2019).

108 See D.C. v. Wesby, 583 U.S. 48, 64 (2018).

109 See id. (“existing precedent must place the lawfulness of the particular arrest ‘beyond debate.’”) (quoting Ashcroft,

563 U.S. at 741).

110 See id.

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license) while that person was passively and non-aggressively walking toward his truck.111 The

Court concludes that Lewis, Terrell, and Helseth v. Burch are enough to defeat qualified immunity

at this stage. Those cases (and the cases cited by those cases) clearly establish that a government

official cannot constitutionally commit an act in which he intends to harm a person with his vehicle

where the purpose to cause harm is entirely unrelated to any legitimate law enforcement

purpose.112 On the most pro-Plaintiff view of the record that is exactly what happened here.113

To be clear, the Court’s conclusion does not forever foreclose the application of qualified

immunity to this case. All the Court is saying now is that there are genuine disputes of historical

fact which must be decided by a jury before the Court can make its ultimate qualified immunity

decision. The Eighth Circuit has, on numerous occasions, explained the proper way forward in

such circumstances.114 At the end of the trial, the Court will first ask (by way of special

interrogatories) the jury to settle genuine disputes of fact that are material to the qualified immunity

question. Once the jury settles the genuinely disputed and material historical facts, the Court will

then render a qualified immunity decision. If the Court grants qualified immunity at that time,

the § 1983 and ACRA claims will not go the jury. If the Court denies qualified immunity at that

time, the § 1983 and ACRA claims will go to the jury. It is worth noting—for the benefit of both

111 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 84; Ex. 8 (Second

Dep. of Gary Green) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-8) at 41–42; Pl.’s Resp. to Individual

Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶¶ 12–13; Ex. 9 (Dep. of Chief Randall) to

Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-9) at 75.

112 See Lewis, 523 U.S. at 836; Terrell, 396 F.3d at 976; Helseth v. Burch, 258 F.3d 867, 871 (8th Cir. 2001). The

fortuity that Mr. Calvin wasn’t killed or physically injured—because he managed to jump out of the way fast enough—

doesn’t affect whether Chief Randall knew the Constitution frowned on attempting to drive a truck into Mr. Calvin.

113 Defendants’ qualified immunity arguments did not encompass the Glucksberg-related prong of the substantive due

process test. Br. in Supp. of Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 40) at 10–11.

114 Littrell v. Franklin, 388 F.3d 578, 585 (8th Cir. 2004); Lampkins v. Thompson, 337 F.3d 1009, 1014 (8th Cir.

2003); Ellison v. Lesher, 796 F.3d 910, 918 (8th Cir. 2015).

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parties—that the Court envisions many ways in which the jury might reasonably settle the

historical facts that would give the Defendants a very strong basis for qualified immunity. But

that must await an actual jury doing its actual work. The Court can’t make those decisions for the

jury now.

Finally, we come to the assault claims. The elements of this tort are as follows: (1) the

defendant acted in such a manner as to create a reasonable apprehension of immediate harmful or

offensive contact upon the plaintiff; (2) the defendant intended to cause that apprehension; and (3)

the plaintiff was actually put in that apprehension.115 Before getting to the merits, however,

there’s a threshold question raised by some of the Defendants: did Mr. Calvin sufficiently plead

an assault claim?116

In the “Tort Claims” section of the Complaint, Mr. Calvin expressly pled the tort of

negligence, the tort of invasion of privacy, and the tort of outrage.117 But he did not plead the tort

of assault.118 Still, he did state in this section that he “adopt[ed] by reference the allegations

contained in” all previous paragraphs.119 And earlier in the Complaint he had adverted to a claim

for the tort of assault.120 Specifically, in the first numbered paragraph of his Complaint,

Mr. Calvin expressly stated that he was bringing a claim for the “common law tort of . . .

assault.”121 Then, in paragraph 23, Mr. Calvin expressly stated that Chief Randall’s actions

115 Ark. Model Jury Instr., Civil AMI 417.

116 Reply Br. to Resp. to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 57) at 9.

117 Compl. (Doc. 2) at ¶¶ 29–33.

118 Id.

119 Id. at ¶ 29.

120 Id. at ¶¶ 1, 23.

121 Id. at ¶ 1.

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“amounted to . . . assault.”122 Under the notice pleading standards in the Federal Rules of Civil

Procedure, Mr. Calvin did enough (just barely) to bring an assault claim against Chief Randall in

his individual and official capacities.123 (And, of course, the official-capacity claim is, in reality

and by operation of law, a claim against the City of Menifee.124)

On the merits of the assault claims, the City’s and official-capacity Defendants’ sole

argument in their opening summary judgment brief was that Chief Randall’s threats to shoot

Mr. Calvin in the head plus the Chief’s concurrent retrieval of the gun from his truck door did not

place Mr. Calvin in reasonable apprehension of immediate harmful or offensive contact.125 In the

Reply Brief, the official-capacity Defendants use more capacious language, such as “Mr. Calvin

was not placed in apprehension by the events of November 21, 2020” and “the undisputed evidence

fails to show that Mr. Calvin was ever placed in apprehension by anything Chief Randall did on

November 21, 2020.”126 But the Reply clearly ties these general statements to its discussion and

analysis of the purported threat to shoot Mr. Calvin.127

122 Id. at ¶ 23.

123 See Shurgard Storage Centers v. Lipton-U. City, LLC, 394 F.3d 1041, 1046 (8th Cir. 2005) (“Under the liberal

notice pleading standards of the Federal Rules of Civil Procedure, [the plaintiff] was only required to give ‘a short and

plain statement of the claim showing that the pleader is entitled to relief.’”) (quoting Fed. R. Civ. P. 8(a)).

124 Furlow v. Belmar, 52 F.4th 393, 406 (8th Cir. 2022) (“When a public employee is sued in his official capacity, the

plaintiff is suing ‘only the public employer and therefore must establish the municipality’s liability for the alleged

conduct.’”) (quoting Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th Cir. 2016)).

125 Br. in Supp. of City of Menifee’s Mot. for Summ. J. (Doc. 37) at 24.

126 Reply Br. to Resp. to City of Menifee’s Mot. for Summ. J. (Doc. 56) at 22–23.

127 The Reply brief also argues that the City (including the official-capacity Defendants) are immune from suit and

liability for assault under Ark. Code. Ann. § 21-9-301. Reply Br. to Resp. to City of Menifee’s Mot. for Summ. J.

(Doc. 56) at 22–23 (citing Williams v. Mannis, 889 F.3d 926 (8th Cir. 2018)). The Court acknowledges that the

Arkansas Supreme Court (and the Arkansas Court of Appeals) has been less than fully consistent on the question

whether immunity under this law applies to any intentional torts. See Tort Immunity for Arkansas Cities and Towns,

Their Officials and Employees, Arkansas Municipal League (November 2021), available at

(https://static.ark.org/eeuploads/arml/TortImunity_Nov2012_WEB.pdf) (last checked March 29, 2024), at 6–7

(collecting and analyzing cases). Still, the weight of the precedent from the Arkansas Supreme Court strongly

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The Court agrees, for the reasons set out in the briefing just discussed, that Chief Randall’s

threats to shoot Mr. Calvin aren’t enough to make out a tort claim for assault. If Mr. Calvin had

evidence that Chief Randall pointed the gun at him, things would be different. But there’s no

such evidence in this record.128 Still, that doesn’t completely end the matter. Recall that a

reasonable jury could conclude from this record that Chief Randall intentionally drove his truck at

Mr. Calvin such that Mr. Calvin had to jump out of the way to avoid being hit by the still-open

truck door.129 That sequence of events easily meets all the prongs of the assault test.130 It is true

that Mr. Calvin did not say all this in his Responsive Briefs, but that omission can be attributed to

the Defendants’ original challenge focusing on the shooting threat.131

So, to be clear, the claims for the tort of assault proceeds against Chief Randall in his

individual and official capacities. That means the corresponding claim also proceeds against the

City of Menifee. But the claim does not proceed against any of the other Defendants. There is

no evidence to suggest the other Defendants took any part in or played any role leading to the

purported assault.

suggests the law only applies to non-intentional torts, despite the fact that the language of the law contains no such

limitation. See id.; Battle v. Harris, 298 Ark. 241, 245, 766 S.W.2d 431, 433 (1989); Doe v. Baum, 348 Ark. 259,

272, 72 S.W.3d 476, 483 (2002); W. Memphis Sch. Dist. No. 4 of Crittenden Cnty. v. Cir. Ct. of Crittenden Cnty., 316

Ark. 290, 295, 871 S.W.2d 368, 371 (1994).

128 Pl.’s Resp. to Individual Capacity Defs.’ Statement of Material Facts Not in Dispute (Doc. 48) at ¶ 21.

129 Ex. 6 (Dep. of Gerry Calvin) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-6) at 70, 84; Ex. 8 (Second

Dep. of Gary Green) to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 39-8) at 41–42.

130 See Ark. Model Jury Instr., Civil AMI 417.

131 The individual-capacity Defendants did not challenge the assault tort claim at all in their opening Summary

Judgment Brief. Br. in Supp. of Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 40). But assuming the Court

nonetheless took note of their Reply arguments on the assault claim, those arguments are unavailing. Reply Br. to

Resp. to Individual Capacity Defs.’ Mot. for Summ. J. (Doc. 57) at 9–10. The only new argument that would be

added to the mix is a qualified immunity argument. But the answer there is the same answer the Court gives above

on the § 1983/ACRA qualified immunity question. See discussion supra at 16–19. Defendants may ultimately

prevail on qualified immunity grounds. But first the jury needs to settle important questions of historical fact.

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CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART both

motions for summary judgment. Defendants are entitled to summary judgment on all claims

discussed in this Order except: (1) the individual-capacity § 1983 claim against Chief Randall

based on Mr. Calvin’s Fourteenth Amendment substantive due process rights; (2) the mirror-image

ACRA claim; and (3) the assault claims against Chief Randall and the City of Menifee.

IT IS SO ORDERED this 29th day of March 2024.

4 = ~

LEE P. RUDOFSKY

UNITED STATES DISTRICT JUDGE

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