Hall v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

JEFFREY HALL,

MEMORANDUM DECISION

Plaintiff, AND ORDER

v. Case No. 2:20-cv-674

Howard C. Nielson, Jr.

VAL BROWN, KEVIN MURRAY, and United States District Judge

SALT LAKE CITY,

FOR PUBLICATION

Defendants.

Plaintiff Jeff Hall sues Salt Lake Police Department Officers Val Brown and Kevin

Murray and the City of Salt Lake, asserting that Officers Brown and Murray deprived him “of

his rights protected under the First, Fourth, and Fourteenth Amendments to the United States

Constitution,” Dkt. No. 2 ¶¶ 98, 108, and that Salt Lake City failed to properly train its officers

and that its policies, practices, and customs violate the Constitution, see id. at ¶¶ 115–116. Mr.

Hall also raises claims under the Utah Constitution. See id. at ¶¶ 124. Both officers claim

qualified immunity and all defendants move for summary judgment. The court grants the motion.

I.

On December 16, 2017, at approximately 10:30 PM, the Salt Lake City Police

Department received two 911 calls about a violent male wedding guest, later identified as Mr.

Hall. See Dkt. Nos. 24-2; 24-3; 24-5 at 2. Dispatch sent Officers Brown and Murray to the scene,

informing them that there was a “domestic disturbance in progress,” and that the suspect was

“being violent with his wife and others” and possibly intoxicated. Dkt. No. 24-4 at 0:28–1:25

(Radio Dispatch Recording).1

Shortly after the two officers arrived at the wedding, Officer Brown spoke briefly to the

security guard, who had placed one of the 911 calls, and the guard pointed toward Mr. Hall’s

location in the parking lot. See Dkt. No. 24-7 at 0:00–0:19 (Officer Murray body camera).2 Both

officers then drove across the parking lot and parked approximately 60 feet from Mr. Hall. See

Dkt. No. 30 at 20. Mr. Hall immediately displayed his middle fingers to the officers. See Dkt.

No. 31-2 at 1. Officer Brown exited his vehicle and told Hall to “come here and talk to me for a

minute.” Dkt. No. 24-6 at 0:52–0:56 (Officer Brown body camera). Mr. Hall responded with

profanity. See id. It is undisputed that at this point, both officers concluded that Mr. Hall was

drunk. See Dkt. No. 30 at 20. Mr. Hall repeatedly (and profanely) told the officers to call his

brother, who he said was a Salt Lake City Police officer. See id. at 21.

Up to this point, the distance between Mr. Hall and Officer Brown ranged between ten

feet and approximately 20–30 feet. See Dkt. No. 24-7 at 1:01–1:31. Mr. Hall largely paced back

and forth, gradually increasing the distance between Officer Brown and himself. See id. Officer

Brown occasionally moved forward but never attempted to close the distance to less than ten

feet. See id. Officer Brown then told Mr. Hall, “Come here, buddy.” Id. at 1:28. Mr. Hall

1 The dispatch recording indicates that this information was provided over the radio to

units “Charlie 136” and “Charlie 144,” both of whom affirmatively responded after receiving

these details. See Dkt. No. 24-4 at 0:29–0:47. The dispatch log shows that Unit C136 was Officer

Brown and Unit C144 was Officer Murray. See Dkt. No. 24-5 at 3. Mr. Hall’s argument that

these officers may not have been aware of the dispatch report is thus foreclosed by

uncontroverted evidence.

2 Because the officers’ body cameras are set to preserve video for the 30 seconds before

an officer initiates audio recording, the first 30 seconds of the video here—which shows the

encounter between Officer Brown and the security guard—do not contain audio. See Dkt. No. 23

at 10 n.8.

immediately responded, “No,” and stated, “I’m not your f****** buddy, you piece of s***.” Id.

at 1:28–1:31. He then began an unmistakable—and, at least apparently, deliberate—advance

toward Officer Brown. Id. at 1:27–1:34. Immediately after Mr. Hall’s exclamation and as he

began to move toward Officer Brown, Officer Murray yelled, “Hey! Hey! Hey!” Id. at 1:30–

1:32. And Officer Brown repeatedly told Mr. Hall to “calm down” as Mr. Hall continued to

advance and to direct profanities at Officer Brown. Id. at 1:34–1:38.

Mr. Hall advanced to within two feet of Officer Brown before raising his left hand to

point at Officer Brown’s face. See id. at 1:38–1:40. Almost immediately after Mr. Hall raised his

hand, Officer Brown grabbed Mr. Hall’s left arm and initiated a take-down. See id. Mr. Hall

landed on his right side and shoulder before ending up on his back. See Dkt. No. 24-6 at 1:35–

1:38. Officer Brown attempted to gain control of Mr. Hall’s right arm while Officer Murray

grabbed his left arm. See id.; Dkt. No. 24-7 at 1:40–1:47. The entire struggle lasted only a few

seconds, but the officers struck Mr. Hall several times in the face during this time. See id.

The officers then handcuffed Mr. Hall and eventually moved him into a seated position.

His face was bleeding profusely, and blood had pooled on the ground. See Dkt. No. 24-6 at 2:00–

2:41. Officer Murray called in “medical, crime lab, and an arrest check.” Dkt. No. 30 at 27. Mr.

Hall was subsequently transported to LDS Hospital for treatment. See Dkt. No. 37 at 29. He

suffered “orbital skull fractures, facial lacerations, significant subconjunctival hemorrhaging, as

well as permanent vision impairments involving double-vision and photophobia” from the

incident. Id. at 28–29. Mr. Hall has no recollection of the events of that night. See Dkt. No. 30 at

30. During the incident, both officers were wearing gloves. Officer Brown was wearing gloves

with “high-density padded knuckle and finger protectors,” Dkt. No. 37 at 16, and Officer Murray

was wearing “Oakley Factory Pilot Gloves” that contained a “protective knuckle guard” and

were made of “goat skin, elastane, nylon, rubber, and 3% carbon,” Id. at 17.

The City subsequently filed a misdemeanor citation for public intoxication against Mr.

Hall on December 30, 2017, which was later dismissed without prejudice as untimely filed. See

Dkt. No. 31-11 at 1–2. On March 2, 2018, Mr. Hall met with the Internal Affairs department of

the Salt Lake City Police Department to discuss his desire to pursue a potential misconduct

complaint against the officers. See Dkt. No. 2 at 16. Three days later, the District Attorney for

Salt Lake County filed a four-count information against Mr. Hall. The information charged Mr.

Hall with assaulting a peace officer, resisting arrest, public intoxication, and disorderly conduct.3

On September 17, 2018, Mr. Hall entered into a plea agreement. See Dkt. No. 24-24 at 4.

As required by the agreement, Mr. Hall pled no contest to assaulting a peace officer, and his plea

was held in abeyance pursuant to Utah Code § 77-2a-1. See id. The other counts were dismissed

with prejudice. See id. As required by his plea in abeyance, Mr. Hall was placed on probation

and required to complete community service and continue treatment at the VA. See id. at 5. The

remaining count was subsequently dismissed with prejudice on April 7, 2021. See Dkt. No. 31-

12 at 7.

Mr. Hall filed this suit on September 25, 2020.

II.

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” A fact is material if it “might affect the outcome of the

3 The charge for assaulting a peace officer was based on an incident that later occurred at

the LDS Hospital: Mr. Hall allegedly attempted to kick another officer in the head. See Dkt. No.

24-23 at 2, 4.

suit under the governing law”; a “dispute about a material fact is ‘genuine’ . . . if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

When determining whether genuine disputes of material fact exist, a court “may not make

credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 150 (2000). Rather, “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Conversely,

“although the court should review the record as a whole, it must disregard all evidence favorable

to the moving party that the jury is not required to believe.” Reeves, 530 U.S. at 151. This

includes evidence “that is contradicted and impeached” and “evidence that comes from interested

witnesses.” Id. (cleaned up).

“Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.” McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018) (quotation omitted). The

nonmovant must “go beyond the pleadings and ‘set forth specific facts’ that would be admissible

in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (quoting FED. R. CIV. P.

56(a)).

III.

The court first addresses Mr. Hall’s federal claims against Officers Brown and Murray.

Mr. Hall asserts claims under the Fourth, First, and Fourteenth Amendments

A.

Both officers have invoked qualified immunity. Qualified immunity “shields public

officials from damages actions unless their conduct was unreasonable in light of clearly

established law.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (quotation

omitted). To overcome qualified immunity, “the plaintiff carries a two-part burden to show: (1)

that the defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that

the right was clearly established at the time of the defendant’s unlawful conduct.” Id. (quotation

omitted). The doctrine protects “all but the plainly incompetent or those who knowingly violate

the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quotation omitted).

A government official’s conduct violates clearly established law when, at the time of the

challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable

official would [have understood] that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640, (1987). There need not be “a case directly on point,” but “existing

precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft,

563 U.S. at 741. “[T]he legal principle [must] clearly prohibit the officer’s conduct in the

particular circumstances before him.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).

The plaintiff faces a “heavy burden” to overcome qualified immunity. Carabajal v. City of

Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017).

B.

Mr. Hall first claims that the officers employed excessive force during his arrest in

violation of the Fourth Amendment. This Amendment guarantees the “right of the people . . .

against unreasonable searches and seizures.” U.S. CONST. amend. IV. The Supreme Court has

held that an arrest is a seizure within the meaning of this Amendment. See Graham v. Connor,

490 U.S. 386, 394–95 (1989). As the adjective “unreasonable” suggests, the Fourth Amendment

does not prohibit law enforcement officers from using any force in connection with an arrest; to

the contrary, the “right to make an arrest or investigatory stop necessarily carries with it the right

to use some degree of physical coercion or threat thereof to effect it.” Id. at 396. The

Amendment does, however, prohibit “excessive force during an investigation or arrest.” Tolan v.

Cotton, 572 U.S. 650, 656 (2014); see also Graham, 490 U.S. at 395–96.

“Determining whether the force used to effect a particular seizure is reasonable under the

Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental interests at

stake.” Graham, 490 U.S. at 396 (cleaned up). This inquiry “requires careful attention to the

facts and circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Id.

But “the test of reasonableness under the Fourth Amendment is not capable of precise

definition or mechanical application.” Id. (quotation omitted). Rather, whether the use of force

complies with the Fourth Amendment turns on the “totality of the circumstances.” Tennessee v.

Garner, 471 U.S. 1, 8–9 (1985); see also Graham, 490 U.S. at 396 (citing Garner for this

proposition after outlining the three considerations quoted above); Thomson v. Salt Lake Cnty.,

584 F.3d 1304, 1318 (10th Cir. 2009) (“It is the totality of the circumstances that is the

touchstone of the reasonableness inquiry.”). Ultimately “the question is whether the officers’

actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397.

In Graham, the Supreme Court also emphasized that “[t]he ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Id. at 396. Drawing from Fourth Amendment

decisions in other contexts, the Court explained:

With respect to a claim of excessive force, the same standard of reasonableness at

the moment applies: Not every push or shove, even if it may later seem unnecessary

in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus

of reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is necessary in a particular

situation.

Id. at 396–97 (cleaned up). “If an officer reasonably, but mistakenly, believed that a suspect was

likely to fight back, for instance, the officer would be justified in using more force than in fact

was needed.” Saucier v. Katz, 533 U.S. 194, 205 (2001).

Here, the nature of the crime at issue may provide some support for Mr. Hall’s claim that

the officers used excessive force. Although the dispatch call described Hall as being “violent

with his wife and others,” Dkt. No. 24-4 at 0:28–1:25, assault is a class B misdemeanor under

Utah law. See Utah Code § 76-5-102. And under Tenth Circuit precedent, to evaluate the severity

of the crime at issue, the court focuses on the crime that the officers had probable cause to

believe that Mr. Hall had committed. See Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir. 2011).

The Tenth Circuit has repeatedly held that “the first Graham factor may weigh against the use of

significant force if the crime at issue is a misdemeanor.” Lee v. Tucker, 904 F.3d 1145, 1149

(10th Cir. 2018) (collecting cases).

The remaining considerations highlighted in Graham tip the scale significantly against

Mr. Hall’s claim, however. “The second Graham factor, whether the suspect posed an immediate

threat to the safety of the officers or others is undoubtedly the most important.” Pauly v. White,

874 F.3d 1197, 1215–16 (10th Cir. 2017). In this case, the court concludes that Officers Brown

and Murray had an objectively reasonable belief that they were in danger when they took Mr.

Hall to the ground and struck him several times during the brief ensuing struggle. See Saucier,

533 U.S. at 205.4

First, the officers had been informed by dispatch that Mr. Hall had been violent that night

with multiple people.5 Second, although Mr. Hall was visibly (and audibly) agitated from the

outset, the tenor of the incident turned more aggressive after Officer Brown told Mr. Hall,

“Come here, buddy.” Before that, Mr. Hall had maintained at least a ten-foot distance from the

officers, telling them not to approach him and to talk to his brother instead. After Officer

Brown’s remark, however, Mr. Hall started directing insults at the officers (as opposed to just

general profanity) and began an unmistakable advance toward Officer Brown that continued until

Mr. Hall was within two feet of the officer. And as he advanced, Mr. Hall verbally dismissed

defensive action the officers might take, stating, “Oh, what, you going to tase me?” Dkt. No. 24-

4 The court considers the reasonableness of the take down and the subsequent blows

together, given that they occurred within seconds of each other without any significant break in

the rapidly unfolding incident. Although the Tenth Circuit has at times analyzed officers’ use of

force in discrete segments, based on a perceived need to analyze the objective reasonableness of

the use of force at “the precise moment” that it occurred, Emmett v. Armstrong, 973 F.3d 1127,

1136 (10th Cir. 2020), other cases make clear that “strict reliance on the ‘precise moment’ factor

is inappropriate when the totality must be considered,” Thomson,584 F.3d at 1318. Whether or

not segmented analysis can in some circumstances be squared with the Supreme Court’s

controlling guidance in Graham, see Hinkley v. Salt Lake City Corp., 426 F. Supp. 3d. 1207,

1216–18 (D. Utah 2019), the court has no difficulty concluding that in this case it must consider

the totality of the circumstances that led to and occurred during the brief but uninterrupted use of

force at issue here.

5 Mr. Hall maintains that the security guard informed Officer Brown before the officers’

encounter with Mr. Hall that Mr. Hall had only “pushed” the guard and another guest and that

the guard did not wish to pursue charges. Mr. Hall argues that the officers thus knew that the

dispatch reports were overstated at the time they used force against him. The video recording,

however, shows that the conversation in which the security guard made these statements to

Officer Brown (or an identical one) took place after the officers’ altercation with Mr. Hall. See

Dkt. No. 24-6 at 11:00–12:08. Because the video recording of Officer Brown’s first interaction

with the guard has no audio, it is of course possible that the security guard conveyed the same

information to Officer Brown twice. But even if it was conveyed to Officer Brown before his

encounter with Mr. Hall, the security guard’s information still provided reason to believe that

Mr. Hall was willing to use physical force in his current state.

6 at 1:29–1:33. Third, once Mr. Hall was within striking distance of Officer Brown, he raised his

hand to point his finger at Officer Brown’s face. Although the video clearly shows that Mr. Hall

did not actually touch Officer Brown, it also shows that Officer Brown began the takedown

within a second of Mr. Hall raising his hand. Given what the officers had been told of Mr. Hall’s

earlier violence that evening, the escalating nature of the incident, Mr. Hall’s increasing hostile

words, Mr. Hall’s apparently deliberate movement to within two feet of Officer Brown, and the

sudden movement of his arm toward Officer Brown’s face, the court concludes that the officers’

“split second judgment” was objectively reasonable. Finally, the body camera video shows that

Mr. Hall landed on his right shoulder and then ended up on his back with his arms raised. See

Dkt. No. 24-6 at 1:36; Dkt No. 24-7 at 1:39.

In light of the rapidly unfolding events, the court concludes that it was objectively

reasonable for the officers to believe that Mr. Hall was attempting to assault Officer Brown and

then to fight off the officers after the takedown and thus represented a threat to their safety. It

follows, for the same reasons, that the officers could have also reasonably believed that Mr. Hall

was resisting arrest through these actions.

Measured against this backdrop, the court concludes that the amount of force employed

by the officer here—taking Mr. Hall to the ground and briefly delivering several blows that

objectively reasonable officers could have intended as compliance strikes to subdue a struggling

suspect and effectuate an arrest—does not amount to an unreasonable seizure within the meaning

of the Fourth Amendment. And the video further demonstrates that all use of force stopped as

soon as Mr. Hall was restrained. While the force used here may seem unnecessary when viewed

with the perspective of “20/20 hindsight found in the comfort of a judge’s chambers,” Thomson,

584 F.3d at 1318 (quotation omitted), the Court has repeatedly instructed that “[t]he

‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable

officer on the scene.” Graham, 490 U.S. at 396. After considering the totality of the

circumstances here from this perspective, the court concludes that Officer Brown and Murray

actions were objectively reasonable.6

The court rejects Mr. Hall’s contrary arguments. First, Mr. Hall argues that he never

touched Officer Brown and was never a threat to him. And he further argues that Officer Brown

knew this, as evidenced by his statement to Mr. Hall after the incident that the “next time you

deal with police, man, you don’t get in my face. You understand?” Dkt. No. 24-6 at 4:40–4:42.

But of course Mr. Hall has no memory of the events of the evening, so he is unable to offer

testimony that would support these assertions. And based on the video footage, the court

concludes that a reasonable officer would have believed that Mr. Hall constituted a threat as he

approached and moved his arm toward Officer Brown even though he had not at that point

touched him. In addition, Officer Brown’s subjective interpretation of these events is irrelevant

because “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer’s good intentions make an objectively

unreasonable use of force constitutional.” Graham, 490 U.S. at 397. In all events, Officer Brown

immediately continued, “you don’t have the right to get in my face and try to swing on me, bro.”

Dkt. No. 24-6 at 5:05–5:08. This contemporaneous statement confirms that Officer Brown

believed Mr. Hall was assaulting him, whether or not this belief was mistaken.

6 Mr. Hall argues that reasonableness is a factual determination for the jury. But this is

only true when reasonableness turns on “disputed questions of historical fact.” Cavanaugh v.

Woods Cross City, 718 F.3d 1244, 1254 (10th Cir. 2013) (citing Scott v. Harris, 550 U.S. 372,

386 (2007)). Because that is not the case here, it is proper for the court to “make the excessive

force determination on its own.” Id.

Next, Mr. Hall argues that he never resisted arrest and that the officer’s blows were

therefore unreasonable. Again, this is not eyewitness testimony based on Mr. Hall’s observations

and memory, but argument based on his interpretation of the video recording. In their

declarations, both officers describe Mr. Hall as rolling onto his back into a “guard position” after

reaching the ground. Dkt. No. 24-20 ¶ 4; Dkt. No. 24-21 ¶ 5. The officers assert that Mr. Hall

attempted to fight them off from this position and that this resistance justified the blows. See Dkt.

No. 24-20 ¶ 4; Dkt. No. 24-21 ¶ 5. By contrast, Mr. Hall argues that the video shows him landing

directly on his back, and that he thus never rolled into a “guard position” to fight off the officers.

The video clearly does show that Mr. Hall landed on his right shoulder and eventually ended up

on his back with his arms free. See Dkt. No. 24-6 at 1:36; Dkt No. 24-7 at 1:39. But the video

does not clearly show how Mr. Hall ended up on his back or whether Mr. Hall was simply

flailing in reaction to the officers’ use of force or attempting to use a “guard position” to fight off

the officers. Accepting Mr. Hall’s interpretation of the video recording to the extent the

recording is unclear, the court concludes that, given the context of a physical altercation lasting

only seconds, the video evidence and Mr. Hall’s reported conduct earlier that evening, the

officers’ belief that Mr. Hall was resisting arrest was objectively reasonable, whether or not it

was mistaken. See Saucier, 533 U.S. at 205.

Mr. Hall’s argument that he could not have resisted arrest because he was never told he

was under arrest misreads precedent. Although Mr. Hall relies on Cavanaugh v. Woods Cross

City, the court in that case explained that Ms. Cavanaugh “had little reason to believe that the

officers were responding to a crime.” 625 F.3d 661, 665 (10th Cir. 2010). Likewise, the Tenth

Circuit explained in Casey v. City of Federal Heights that “[t]he absence of any warning—or of

facts making clear that no warning was necessary—makes the circumstances of this case

especially troubling.” 509 F.3d 1278, 1285 (10th Cir. 2007) (emphasis added). These cases are

readily distinguishable from the circumstances here. Mr. Hall knew, or should have known, that

the officers were at the scene responding to his conduct. And his actions towards the officers

made clear that no warning was necessary. For example, Officer Murray yelled, “Hey! Hey!

Hey!” as the situation grew more volatile and Mr. Hall began to move toward Officer Brown,

Dkt. No. 24-7 at 1:30–1:32, and Officer Brown repeatedly told Mr. Hall to “calm down” as he

continued his advance, id. at 1:34–1:38. Mr. Hall was thus on notice that his actions were

escalating the situation.

Last, Mr. Hall argues that the officer’s blows were unreasonable because they were

wearing protective gloves. The evidence does show that the gloves contained some protective

elements, but nothing in the record supports Plaintiff’s suggestion that these gloves could have

caused significantly more harm than bare knuckles. The court thus cannot conclude that the mere

fact that the officers wore gloves specifically marketed to law enforcement officers to protect

their hands rendered their otherwise reasonable use of force unlawful.7

C.

Mr. Hall next contends that Officer Brown and Officer Murray used force against him in

retaliation for his protected speech. “‘[T]he First Amendment prohibits government officials

from subjecting an individual to retaliatory actions’ for engaging in protected speech.” Nieves v.

Bartlett, 139 S. Ct. 1715, 1722, (2019) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)).

7 In addition, Mr. Hall has identified no authority holding or suggesting that the use of

protective gloves to deliver otherwise permissible compliance strikes to an individual reasonably

believed to be resisting arrest is a constitutional violation. Even if Mr. Hall can establish that the

use of force here was unconstitutional, he has thus failed to show a violation of a clearly

established right as is required to overcome the officers’ qualified immunity. See Wesby, 138 S.

Ct. at 590.

“If an official takes adverse action against someone based on that forbidden motive, and ‘non-

retaliatory grounds are in fact insufficient to provoke the adverse consequences,’ the injured

person may generally seek relief by bringing a First Amendment claim.” Id. (quoting Hartman,

547 U.S. at 256). Applying this rule, the Supreme Court has held that probable cause to execute

an arrest defeats a claim of a retaliatory arrest because the non-retaliatory grounds are sufficient

to “provoke the adverse consequences.” Id. at 1722, 1724.8

Although Nieves involved an arrest rather than the use of force, the court concludes that

the same rule applies here. Because the court concludes that Officers Brown and Murray’s use of

force was reasonable under the Fourth Amendment, it follows that they had a sufficient non-

retaliatory justification for their actions and that Mr. Hall therefore cannot prevail on this claim.

And Mr. Hall has not identified evidence that could support a finding that this case falls within

Nieves’s narrow exception for cases in which officers have sufficient justification to take such

action, “but typically exercise their discretion not to do so.” Id. at 1727.

D.

Finally, Mr. Hall asserts a claim against Officers Brown and Murray for “fabrication of

evidence,” Dkt. No. 48 at 2, contending that the officers “made deliberate, material falsehoods

for the purpose of generating or influencing subsequent criminal charges against [Mr. Hall]” and

that “[t]he prosecution relied on those falsehoods in filing criminal charges against [Mr. Hall].”

8 To whatever extent Mr. Hall seeks to assert a retaliatory arrest claim, this bright line

rule bars his claim. Because the court concludes that Officer Brown could have reasonably

believed that Mr. Hall had attempted to assault him, Officers Brown and Murray had probable

cause by the time of the arrest to believe that Mr. Hall had committed an assault against a peace

officer in violation of Utah Code § 76-5-102.4(2)(a)—a class A misdemeanor. And Utah law is

clear that “[a] peace officer . . . may, without warrant, arrest a person . . . when the peace officer

has reasonable cause to believe a felony or a class A misdemeanor has been committed and has

reasonable cause to believe that the person arrested has committed it.” Utah Code § 77-7-2(2).

Dkt. No. 2 ¶¶101, 101. To prevail on a fabricated-evidence claim, the plaintiff must show that:

“(1) the defendant knowingly fabricated evidence, (2) the fabricated evidence was used against

the plaintiff, (3) the use of the fabricated evidence deprived the plaintiff of liberty, and (4) if the

alleged unlawfulness would render a conviction or sentence invalid, the defendant’s conviction

or sentence has been invalidated or called into doubt.” Truman v. Orem City, 1 F.4th 1227, 1236

(10th Cir. 2021) (footnotes omitted).9 In addition to reciting these elements, the Tenth Circuit

explained that the defendant “necessarily must possess knowledge of the evidence's falsity.” Id.

The Tenth Circuit also recognized that when, as here, “the alleged fabrication of evidence was

performed by a member of the executive branch,” “the deprivation violates due process only

when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional

sense.’” Id. at 1236 n.4 (quoting Crowson v. Washington Cnty., 983 F.3d 1166, 1190 (10th Cir.

2020)).

9 It is of course well settled that a criminal defendant can “not bring his fabricated-

evidence claim under § 1983 prior to favorable termination of his prosecution.” McDonough v.

Smith, 139 S. Ct. 2149, 2156 (2019). But to make this showing, “[a] plaintiff need only show that

criminal prosecution ended without conviction.” Thompson v. Clark, 142 S. Ct. 1332, 1341

(2022) (explaining the requisite showing for a Fourth Amendment malicious prosecution claim).

Here, Mr. Hall’s prosecution ended without a conviction after his charges were ultimately

dismissed. Defendants seek to distinguish Thompson on the ground that it addressed a malicious

prosecution claim and did not consider the effect of a no-contest plea. See Dkt. No. 52 at 4–5.

But Defendants make no effort to reconcile Thompson with McDonough’s equation of a

“fabricated-evidence claim to the common-law tort of malicious prosecution.” McDonough, 139

S. Ct. at 2156. And given that the court ultimately rejects Mr. Hall’s fabricated evidence claim

on other grounds, it need not determine the proper treatment, under Thompson, of a no-contest

plea that is held in abeyance. In all events, under Truman, the requirement that a “defendant’s

conviction or sentence has been invalidated or called into doubt” applies only “if the alleged

unlawfulness would render a conviction or sentence invalid.” Truman, 1 F.4th at 1236. Here, Mr.

Hall never received a conviction or sentence so there is nothing that the alleged unlawfulness

could render invalid. Cf. id. at 1236 n.5 (“Although a plaintiff's conviction based in part on the

presentation of fabricated evidence at trial is evidence that he or she was deprived of a fair trial,

it is not crucial to a § 1983 fabrication of evidence claim. An acquitted plaintiff may have been

deprived of liberty due to fabricated evidence if there is a reasonable likelihood that without the

fabricated evidence, the plaintiff would not have been criminally charged.”).

To determine whether this claim survives summary judgment, the court must thus assess

whether any allegedly fabricated evidence was used against Mr. Hall and whether any such use

violated due process. Here, the declaration of probable cause filed by Officer Coles in connection

with the Information relied on Officer Brown’s statement. See Dkt. No. 24-23 at 3. In pertinent

part, the declaration of probable cause states that

Officer Brown attempted to speak with the defendant from a distance. The

Defendant told Officer’s to “f*ck off” and gestured to them with his middle

fingers. Defendant became more aggressive and walked towards Officer Brown

coming within one foot of him, the defendant threw his hands up with balled fists

and stated, “What are you going to do, tase me?” Defendant then attempted to

poke Officer Brown in his chest with his finger. Due to the defendant’s aggressive

actions, Officer Brown and Officer Murray attempted to gain control of the

defendant and took him to the ground. Defendant was resisting and rolled onto his

back in a “guard position” as the officers were trying to restrain him.

Id. at 3–4.

There are at most minor discrepancies between this statement and what is clearly

depicted in the body cam video. For example, it is unclear whether Mr. Hall came within one

foot of Officer Brown or two; the video does not depict Mr. Hall balling his fists when he stated

“[w]hat are you going to do, tase me?”; it does not appear that Mr. Hall was attempting to poke

Officer Brown in the chest when he raised his finger toward him; and it is unclear how Mr. Hall

ended up on his back and whether he was actively resisting or simply flailing. Although Mr. Hall

argues that the officers knew that these assertions were false, he has no independent recollection

of the events of the evening and thus his statements reflect his arguments regarding what is

depicted in the body cam video; they are not actual eyewitness testimony or any other sort of

competent evidence.

But even assuming that reasonable jury could agree with Mr. Hall that any minor

discrepancies between Officer Brown’s statement and what is depicted on the body cam video

constitute deliberate falsehoods rather than imperfect recollection of some of the details of an

event that transpired nearly three months earlier, the court concludes that as a matter of law any

slight mischaracterization here cannot be described “as arbitrary, or conscience shocking, in a

constitutional sense.’” Truman, 1 F.4th at 1236 n.4. To meet this standard here, Mr. Hall “must

do more than show that the government actor intentionally or recklessly caused injury to the

plaintiff by abusing or misusing government power.” Uhlring v. Harder, 64 F.3d 567, 574 (10th

Cir. 1995). Instead, he must show that Officer Brown’s conduct manifest “a degree of

outrageousness and a magnitude of potential harm that is truly conscience shocking.” Id. “[O]nly

the most egregious official conduct” meets this standard. County of Sacramento v. Lewis, 523

U.S. 833, 846 (1998). After all, the statement depicts a version of events that, while favoring the

officers, is largely consistent with body camera footage in the record. It is not so flagrantly

divorced from reality as to shock to the conscience.

Officers Brown and Murray thus did not violate the Due Process Clause of the Fourteenth

Amendment.

IV.

The court next considers the claim for municipal liability asserted against Salt Lake City.

See Dkt. No. 2 ¶¶ 115–121. “It is well settled that a municipality may not be held liable under

Section 1983 where there was no underlying constitutional violation by any of its officers.”

Hinkley, 426 F. Supp. 3d at 1220 (cleaned up). Because Officers Brown and Murray did not

violate the Constitution, “Defendant Salt Lake City Corporation cannot be held liable under

Section 1983.” Id. (cleaned up).

V.

“The Tenth Circuit has explained that when all federal claims have been dismissed, the

court may, and usually should, decline to exercise supplemental jurisdiction over any remaining

state claims.” Reyes v. N.A.R. Inc., 546 F. Supp 3d 1031, 1042 (D. Utah 2021) (cleaned up); see

also 28 U.S.C § 1367(c)(3). Because the court has determined that the Defendants are entitled to

summary judgment on all of Mr. Hall’s federal claims, it will follow the Tenth Circuit’s

guidance and dismiss Mr. Hall’s state law claims without prejudice.

For the foregoing reasons, the court GRANTS Defendants’ motion for summary

judgment with respect to all of Plaintiff's claims that allege violations of the United States

Constitution. Plaintiffs state-law claims are DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.

DATED this 29th day of August, 2022

LA ABN

“HowardC.Nielson,Jr0

United States District Judge

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