Opinion

Boston v. McCormick

Court: District Court, W.D. Arkansas
Filed: May 7, 2021
Cited by: 0 cases
Authority: More cited than 17.2%

“Claims premised under the Arkansas Civil Rights Act of 1993 are analyzed in the same manner as [federal] claims.” (citing Ark. Code Ann. § 16- 123-103(c)); see also Hess v. Ables, 714 F.3d 1048, 1054 (8th Cir. 2013

How later courts described this case

“Claims premised under the Arkansas Civil Rights Act of 1993 are analyzed in the same manner as [federal] claims.” (citing Ark. Code Ann. § 16- 123-103(c)); see also Hess v. Ables, 714 F.3d 1048, 1054 (8th Cir. 2013
holding that “because [the appellant] did not explain why [her] ACRA claims warranted separate analysis, the district court did not err in dismissing the ACRA claims alongside the § 1983 claims” (citing Lewis v. Jacks, 486 F.3d 1025, 1030 (8th Cir. 2007)

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

STEVE BOSTON PLAINTIFF

v. Case No. 6:19-cv-6029

SHERIFF MIKE McCORMICK,

in his official capacity;

CORPORAL TERRY THREADGILL,

in his individual and official capacity;

DEPUTY JON. F. LANE, SR., in his

individual and official capacity; and

CORPORAL JEREMY J. SIMPSON, in his

individual and official capacity. DEFENDANTS

ORDER

Before the Court is a Motion for Summary Judgment filed by Defendants. (ECF No. 32).

Plaintiff filed a response. (ECF No. 39). Defendants filed a reply. (ECF No. 42). The Court finds

the matter ripe for consideration.

I. BACKGROUND

On May 4, 2016, Plaintiff Steve Boston called the Garland County Sheriff’s Department

to report a trespasser on his property. (ECF No. 41, p. 1). When Defendants Deputy Jon Lane and

Corporal Jeremy Simpson arrived at Plaintiff’s property, they observed the purported trespasser,

Joseph Bernard Major (“Major”), by his vehicle. (ECF No. 41, p.1). Plaintiff states that Major’s

vehicle was entirely on his property. When Defendant Lane interviewed Major, he discovered that

Major was a private investigator and that he had placed a camera on a utility pole nearby. When

Major returned to retrieve the camera, it was no longer there.1 (ECF No. 41, p. 1). Plaintiff stated

1 Plaintiff stipulates that Major reported these facts to Defendant Lane but asserts that Major’s statements constitute

inadmissible hearsay. The United States Supreme Court has stated that Rule 56(e) permits a proper summary judgment

to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c). Celotex Corp. v. Catrett, 477 U.S. 317

(1986). However, the Eighth Circuit held that this statement “does not alter the rule that hearsay evidence alone may

not defeat a summary judgment motion.” Financial Timing Publications, Inc. v. Compugraphic Corp., 893 F.2d 936,

that he found Major’s camera and took it back to his home. (ECF No. 41, p. 1). Plaintiff told

Defendants Lane and Simpson that he was in possession of the camera and they would need to

contact his attorney to retrieve the camera. (ECF No. 41, p. 1). Both Defendants Lane and Simpson

left the scene and did not present any charges at that time. (ECF No. 41, p. 1).

When Defendant Lane returned to the Garland County Sheriff’s Department, he prepared

two reports of the above-mentioned incident. (ECF No. 41, p. 2). The first report was based on the

initial call by Plaintiff regarding trespassing, and the second report was based on Major’s allegation

of theft against Plaintiff. (ECF No. 41, p. 2). Defendant Lane’s reports were then referred to the

Garland County Sheriff’s Department Criminal Investigation Division (“CID”), which was the

custom of the Garland County Sheriff’s Department. Defendant Terry Threadgill, a CID Corporal,

called Defendants Lane and Simpson into his office to discuss the two reports following a

discussion with CID Captain, Gary Ashcraft. (ECF No. 41, p. 2). In this meeting, Defendant

Threadgill told Defendants Lane and Simpson to return to Plaintiff’s property and advise Plaintiff

that if he refused to turn over the camera, he would be charged with theft of property. (ECF No.

41, p. 2). Defendants state that this procedure was outside the normal custom and practice of the

Garland County Sheriff’s Department. In similar situations, the CID would determine whether

there were sufficient facts to lead to an arrest warrant. (ECF No. 41, p.2). If not, the CID would

decline to press charges. (ECF No. 41, p.2).

942 n. 6 (8th Cir.1990), declined to follow on other grounds, Chicago Ins. Co. v. Farm Bureau Mut. Ins. Co. of

Arkansas, Inc., 929 F.2d 372 (8th Cir.1991). As stated in Defendants’ Statement of Undisputed Material Facts, Major

had placed a camera on a utility pole, which was no longer there. (ECF No. 41, pp. 1-2). If Major were called to testify

at trial, his testimony could possibly constitute hearsay because the statement to Defendant Lane tends to prove the

truth of the matter asserted—that Major placed a camera on a utility pole and could not find it. However, there are

other potential reasons this testimony may be used at trial that do not constitute hearsay and have not been addressed

by Defendants at this time. Accordingly, the Court notes Plaintiff’s objection to this testimony, but will not render a

decision on its admissibility.

On May 5, 2016, Defendants Lane and Simpson went back to Plaintiff’s business property

and told Plaintiff that if he did not return the camera, he would be charged with theft. (ECF No.

41, p. 2). Defendants state that Plaintiff became irate, refused to cooperate, and was subsequently

arrested for disorderly conduct based on his conduct of yelling, cursing, and swinging his arms

about wildly. (ECF No. 34, p. 3). Plaintiff disputes this characterization of his behavior and states

that he was not irate and did not swing his arms around wildly. (ECF No. 41, p. 2).2 Plaintiff argues

that Defendants Lane and Simpson did not have probable cause to arrest him for disorderly conduct

on his private business property. Defendants argue that they had probable cause to arrest Plaintiff

for disorderly conduct, but even if they did not, they had probable cause to arrest Plaintiff for theft.

On March 5, 2019, Plaintiff filed the present action seeking relief pursuant to Title 42

U.S.C. § 1983. Plaintiff alleges that Defendants Lane and Simpson abused the legal process and

unlawfully arrested him at the direction of Defendant Threadgill. Plaintiff brings claims for

violation of his First, Fourth, and Fourteenth Amendment rights, violations of the Arkansas Civil

Rights Act, Civil Conspiracy, Abuse of Process, and Malicious Prosecution.

On March 17, 2021, Defendants filed the instant Motion for Summary Judgment. (ECF

No. 32), asserting that they are entitled to summary judgment on the basis of qualified immunity.

Defendants also assert that no genuine dispute of material fact exists regarding Plaintiff’s official

capacity claim and remaining state law claims.

II. LEGAL STANDARD

The standard for summary judgment is well established. When a party moves for summary

judgment, “[t]he court shall grant summary judgment if the movant shows that there is no genuine

2 Plaintiff provided the Court with a video showing the end of this encounter where Plaintiff appears to be in the

process of being arrested. In that moment, Plaintiff appears to be calm, but the moments leading up to the arrest were

not shown. In any event, the Court must view the facts in the light most favorable to Plaintiff.

dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). This is a “threshold

inquiry of . . . whether there is a need for trial—whether, in other words, there are genuine factual

issues that properly can be resolved only by a finder of fact because they reasonably may be

resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A

fact is material only when its resolution affects the outcome of the case. Id. at 248. A dispute is

genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either

party. Id. at 252.

In deciding a motion for summary judgment, the Court must consider all the evidence and

all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving

party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The

moving party bears the burden of showing that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747

(8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the

record that create a genuine issue for trial. Krenik, 47 F.3d at 957. However, a party opposing a

properly supported summary judgment motion “may not rest upon mere allegations or denials . . .

but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477

U.S. at 256.

III. DISCUSSION

Plaintiff brings claims for violation of his First, Fourth, and Fourteenth Amendment rights,3

violations of the Arkansas Civil Rights Act,4 Civil Conspiracy, Abuse of Process, and Malicious

Prosecution. The Court will address each in turn.

A. Constitutional Violations5

Plaintiff asserts that Defendants conducted a warrantless arrest that violated his First,

Fourth, and Fourteenth Amendment rights. Plaintiff brings this claim against Defendants

Threadgill, Lane, and Simpson in their individual and official capacities as well as Defendant

Sheriff Mike McCormick in his official capacity.

1. Individual Capacity Claims

Plaintiff claims that the warrantless arrest conducted by Defendants Lane, Simpson, and

Threadgill violated his First, Fourth, and Fourteenth Amendment rights. Defendants assert that

they are entitled to summary judgment on these claims because they are entitled to qualified

immunity.

Qualified immunity shields a government official from liability and the burdens of

litigation unless the official’s conduct violates a clearly established constitutional or statutory right

3 The Court interprets Plaintiff discussing his Fourth and Fourteenth Amendment Claims interchangeably as Plaintiff

is using his claim for violation of his Fourteenth Amendment rights as a vehicle for his allegation that Defendants

violated his Fourth Amendment rights. The Fourth Amendment’s prohibition against unreasonable searches and

seizures applies to the states through the Fourteenth Amendment. Soldal v. Cook County, Illinois, 506 U.S. 56, 61

(1992). Thus, the Court will address Plaintiff’s Fourteenth Amendment Claim in conjunction with his Fourth

Amendment claim.

4 The Arkansas Civil Rights Act (ACRA) directs Arkansas courts to “look for guidance to state and federal decisions

interpreting the Civil Rights Act of 1871, as amended and codified in 42 U.S.C. § 1983.” Ark. Code Ann. § 16-123-

105(c). We therefore analyze Plaintiff's federal and ACRA claims co-extensively using federal

standards. See Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 n.3 (8th Cir. 2000) (“Claims premised under the

Arkansas Civil Rights Act of 1993 are analyzed in the same manner as [federal] claims.” (citing Ark. Code Ann. § 16-

123-103(c)); see also Hess v. Ables, 714 F.3d 1048, 1054 (8th Cir. 2013) (holding that “because [the appellant] did

not explain why [her] ACRA claims warranted separate analysis, the district court did not err in dismissing the ACRA

claims alongside the § 1983 claims” (citing Lewis v. Jacks, 486 F.3d 1025, 1030 (8th Cir. 2007)).

5 Plaintiff does not distinguish between Defendants so the Court will refer to Defendants collectively.

of which a reasonable person would have known. Truong v. Hassan, 829 F.3d 627, 630 (8th Cir.

2016) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Evaluating whether a government

official is entitled to qualified immunity requires a two-step inquiry: (1) whether the facts shown

by the plaintiff make out a violation of a constitutional or statutory right; and (2) whether that right

was clearly established at the time of the defendant’s alleged misconduct. Pearson v. Callahan,

555 U.S. 223, 232 (2009). Unless the answer to both of these questions is yes, the defendants are

entitled to qualified immunity. Ehlers v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir. 2017)

(quoting Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)). Qualified immunity is a legal

question for the court, not the jury, to decide in the first instance based either on the allegations or,

if material facts are in dispute, on the facts found by the jury. Luckert v. Dodge County, 684 F.3d

808, 817 (8th Cir.2012). See also Littrell v. Franklin, 388 F.3d 578, 584-85 (8th Cir.2004).

a. Fourth Amendment Claim

Constitutional Violation

Plaintiff alleges that Defendants unlawfully arrested him because he was arrested without

a warrant and without probable cause. The Fourth Amendment to the Constitution protects the

right of people to be “secure in their persons . . . against unreasonable searches and seizures.” U.S.

Const. amend. IV. The Fourth Amendment includes the right to be free from arrest without

probable cause. Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999).

Defendants argue that they are entitled to qualified immunity because the arrest was

supported by probable cause, meaning that “the totality of the circumstances at the time of the

arrest [were] sufficient to lead a reasonable person to believe that [Plaintiff] [had] committed . . .

an offense.” Hoyland v. McMenomy, 869 F.3d 644, 652 (8th Cir. 2017) (internal quotation marks

omitted). Further, Defendants argue that qualified immunity “gives government officials breathing

room to make reasonable but mistaken judgments.” Carroll v. Carman, 574 U.S. 13, 16

(2014) (per curiam) (internal quotation marks omitted).

A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable

cause, and an officer is entitled to qualified immunity if there is at least arguable probable cause.

Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2017). Probable cause to make a warrantless

arrest exists “when the totality of the circumstances at the time of the arrest ‘are sufficient to lead

a reasonable person to believe that the defendant has committed or is committing an offense.’”

Ehlers, 846 F.3d at 1009. “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.

In the present case, Defendants Lane and Simpson returned to Plaintiff’s business property

and told him that he must return the camera to Major or else he would be issued a citation for theft

of property. Plaintiff told Defendants that the camera was in the possession of his attorney. (ECF

No. 32-3, p. 25-27). Defendants then proceeded to ask Plaintiff for his information in order to issue

a citation for theft. (ECF No. 32-3, p. 30, 11-23). When asked, Plaintiff refused to give Defendants

any information needed for a citation. Id. Plaintiff states that there was no need to provide this

information as he had already provided it in his initial complaint of trespass to the police. (ECF

No. 41, p. 2). When Plaintiff refused to give Defendants the camera or his information, Defendant

Lane placed a call to Defendant Threadgill who instructed him to arrest Plaintiff. (ECF No. 32-3,

p. 32-33). Defendants allege that Plaintiff became irate and refused to cooperate, so they arrested

him for theft and disorderly conduct. (Ex. 2, p. 20, 22, 23, 24, 25, 27). Plaintiff disputes this and

states that he did not wave his arms or use foul language. (Ex. Boston’s Dep, p. 38, 11-21).

In viewing these facts in the light most favorable to Plaintiff, Plaintiff told Defendants that

he had taken possession of the camera that was allegedly stolen from Major and gave it to his

attorney. Even though a dispute remains as to whether Plaintiff was calm or irate before the arrest,

it is reasonable for Defendants to believe that probable cause existed to arrest Plaintiff for theft.

Pursuant to A.C.A. § 5-36-103, a person commits theft of property if he or she knowingly: (1)

takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the

property of another person with the purpose of depriving the owner of the property; or (2) obtains

the property of another person by deception or by threat with the purpose of depriving the owner

of the property. Ark. Code. Ann. § 5-36-103 (2013). It is objectively reasonable for Defendants to

interpret Plaintiff’s statements that he was in possession of the camera and refused to return it as

an admission of theft in violation of A.C.A. § 5-36-103. Additionally, Plaintiff told the officers

during their visit that he had given the camera in question to his attorney. Even if Defendants’

finding of probable cause was mistaken, a reasonable officer in the position of either Defendant

would consider Plaintiff’s statements and interpret them to mean that Plaintiff had committed theft.

Thus, Defendants had arguable probable cause to arrest Plaintiff for theft in violation of A.C.A. §

5-36-103. The facts remain in dispute as to whether Defendants had probable cause or arguable

probable cause to arrest Plaintiff on the charge of disorderly conduct, but that dispute is not

material because Defendants had at least arguable probable cause to arrest Plaintiff for theft.

Accordingly, Plaintiff’s Fourth Amendment right against unreasonable searches and

seizures was not violated when Defendants arrested him for theft. However, even if the Court

concluded a constitutional violation was present, Plaintiff’s claim would fail because the

constitutional right was not clearly established.

Clearly Established Right

In determining whether Plaintiff’s constitutional right was clearly established at the time

of Defendants’ alleged misconduct, the Court looks to the objective legal reasonableness of the

defendants’ actions, assessed in light of the legal rules that were clearly established at the time it

was taken. Snider v. City of Cape Girardeau, 752 F.3d 1149, 1155 (8th Cir. 2014) (citing Anderson

v. Creighton, 483 U.S. 635, 639 (1987)). A constitutional or statutory right is clearly established

if “[t]he contours of the right [were] sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. at 640. In order to

overcome qualified immunity, Plaintiff must prove “in the light of pre-existing law the

unlawfulness [of Defendants’ conduct was] apparent. Id. A legal principle must have a sufficiently

clear foundation in then-existing precedent. Johnson v. City of Minneapolis, 901 F.3d 963, 971

(8th Cir. 2018)(quoting District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018)). While the case

need not be “directly on point, existing precedent must place the lawfulness of the particular arrest

beyond debate.” Wesby, 138 S.Ct. at 590.

In Johnson v. City of Minneapolis, the Eighth Circuit held that in order for a constitutional

right to be clearly established for purposes of overcoming qualified immunity, case law must be

established at the time of the alleged violation. Johnson, 901 F.3d at 971. The Court interprets this

to mean that outside of an obvious constitutional violation, identifying a case where an officer

acted under similar circumstances and was held to have violated a constitutional right is crucial.

Here, Plaintiff has not pointed the Court to a case where an officer acted under similar

circumstances and was held to have violated a constitutional right. Thus, even if the Court found

a constitutional violation, the Court cannot find that the right was clearly established at the time

the alleged violation occurred.

Thus, Defendants are entitled to qualified immunity on this claim and its associated state

claims. Accordingly, Defendants are entitled to summary judgment regarding Plaintiff’s Fourth

and Fourteenth Amendment claims brought against them in their individual capacities.

b. First Amendment Claim

Plaintiff argues that his First Amendment rights were violated because he was engaged in

protected speech and was subsequently arrested. Defendants argue that they are entitled to

qualified immunity. As previously mentioned, the Court must evaluate (1) whether the facts shown

by the plaintiff make out a violation of a constitutional or statutory right; and (2) whether that right

was clearly established at the time of the defendant’s alleged misconduct. Pearson v. Callahan,

555 U.S. 223, 232 (2009). Unless the answer to both of these questions is yes, the defendants are

entitled to qualified immunity. Ehlers v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir. 2017)

(quoting Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)).