The opinion
Cite as 2020 Ark. App. 297
Reason: I attest to the
accuracy and integrity of this ARKANSAS COURT OF APPEALS
document
Date: 2021-06-23 10:44:17 DIVISION II
Foxit PhantomPDF Version: No. CV-19-867
9.7.5
Opinion Delivered: May 13, 2020
JETTA ELLIOTT
APPELLANT
APPEAL FROM THE BOONE
V. COUNTY CIRCUIT COURT
[NO. 05CV-18-336]
DUSTY MORGAN, IN HIS OFFICIAL
CAPACITY AS A DEPUTY SHERIFF
OF BOONE COUNTY HONORABLE ANDREW S. BAILEY,
APPELLEE JUDGE
AFFIRMED
RITA W. GRUBER, Chief Judge
Jetta Elliott appeals the Boone County Circuit Court’s dismissal of her case against
Dusty Morgan in his official capacity as a deputy sheriff. Elliott filed a civil complaint against
Officer Morgan alleging various intentional torts and constitutional violations stemming
from his arrest of Elliott for public intoxication and domestic battery, charges which were
subsequently nolle prossed. On appeal, she contends that summary judgment was not
appropriate because disputed issues of material fact remain regarding whether Officer
Morgan had probable cause to arrest Elliott. We affirm the circuit court’s order.
This civil lawsuit arose from a domestic dispute on December 28, 2017, between
Elliott and her estranged husband, Keith Roberson. Roberson and Elliott had been married
for several months but had been living separately, allegedly due to Roberson’s continued
drug use. According to both Elliott and Roberson, on the evening of December 28,
Roberson and his mother came to the home where Elliott was living with her three
children. Elliott refused to let him in, so Roberson kicked in her door and entered.
Elliott said that she was sitting in the living room drinking a glass of wine where she
remained while Roberson cursed and went through drawers in her bedroom. She said there
was an open bottle of wine with only one glass poured from it and that she had drunk half
of the glass when Roberson got there. We note, however, that the results of a voluntary
breathalyzer test for Elliott registered .18%. Elliott said that she called 911 after Roberson
kicked in the door and remained on the phone with the operator until the police arrived.
According to Officer Morgan, after he arrived, Elliott told him that she and Roberson had
recently married but that she was not allowing him into the house because he had “a drug
problem.” She also told him that Roberson had kicked in the door to get inside. Officer
Morgan thought Elliott was intoxicated and testified that Elliott appeared to be “clearly
impaired” from the moment he saw her.
Roberson told Officer Morgan that he went to the house to get his clothes and to
check on his stepchildren because he and Elliott were “not getting along and [Elliott’s] being
drunk.” Roberson said that Elliott had hit him twice in the face while he was in the house,
which Elliott denied. Roberson’s mother confirmed Roberson’s account. Officer Morgan
testified that Roberson did not look or act impaired.
Officer Morgan arrested Elliott for domestic battery and public intoxication. The
prosecutor filed charges against her but then filed motions to nolle prosequi both charges in
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the spring of 2018. In September, Elliott filed a complaint against Officer Morgan1 alleging
claims of “malicious prosecution, false imprisonment, defamation, and abuse of process . . .
pursuant to the Arkansas Civil Rights Act [ACRA] Ark. Code Ann. § 16-123-105, Ark.
Const. art. 2, §§ 2, 8, 13, 24, and U.S. Const. amend. 14.” She claimed that Officer
Morgan’s arrest of her and his failure to arrest Roberson, who was the brother of the chief
deputy of Boone County, was an unlawful or unconstitutional act that deprived her of her
rights under the Arkansas and United States Constitutions.
Officer Morgan filed a motion for summary judgment contending that all of Elliott’s
claims were barred by statutory immunity and failed on the merits. Specifically, he alleged
that the malicious-prosecution and false-imprisonment claims failed on the merits because
he had probable cause to arrest Elliott for public intoxication and domestic battery and that
the arrest was lawful even if probable cause existed for one charge but not the other. He
argued that the abuse-of-process claim failed because there is no evidence Officer Morgan
did anything to extort or coerce Elliott and that the defamation claim failed because Officer
Morgan did not publish any statement about her, defamatory or otherwise, and the
complaint did not identify an allegedly defamatory statement. Finally, Officer Morgan
alleged there was no evidence of a constitutional violation, and any such claim was barred
by qualified immunity. In support of the motion and attached to the motion and brief were
Officer Morgan’s affidavit and the depositions of Elliott and Officer Morgan. He also
included exhibits with his affidavit: discs containing his body-camera video from the
1
Her initial complaint also included the prosecutor as a defendant, but Elliott
nonsuited the prosecutor and filed an amended complaint against Officer Morgan only.
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incident, his incident report prepared a week after the incident, the signed statement of a
state trooper who accompanied Officer Morgan to the scene, and statements of Roberson
and his mother taken the night of the incident. Elliott’s response included no additional
evidence. Officer Morgan’s reply attached the affidavit of the risk management director for
the Association of Arkansas Counties Risk Management Services, who stated that Boone
County does not have insurance coverage for tort claims including malicious prosecution,
false arrest, false imprisonment, abuse of process, and defamation.
The circuit court granted Officer Morgan’s motion and dismissed Elliott’s complaint.
The court found on the undisputed facts that Officer Morgan had probable cause to arrest
Elliott for domestic battery and thus found no need to determine whether Officer Morgan
had probable cause to arrest Elliott for public intoxication. See Jones v. McLemore, 2014 Ark.
App. 147, 432 S.W.3d 668 (holding that if probable cause exists for an arrest on one offense,
it is immaterial whether there was probable cause for arrest on any other offenses). Roberson
told Officer Morgan that Elliott had hit him in the face; Roberson’s mother said she had
witnessed this incident; and Officer Morgan observed that Roberson’s ear was red where
he indicated he had been struck. The court found no evidence to support Elliott’s claim
that Officer Morgan arrested her because of Roberson’s brother’s employment at the Boone
County Sheriff’s Office. The court found Officer Morgan was entitled to summary
judgment on the claims of malicious prosecution and false imprisonment based on qualified
immunity and as a matter of law because probable cause defeats actions for malicious
prosecution and false imprisonment. See Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393
(2003); Mendenhall v. Skaggs Cos., 285 Ark. 236, 685 S.W.2d 805 (1985). The court found
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there was no evidence of defamation because Elliott failed to show that Officer Morgan
made any defamatory statement at all. Finally, the court found that there was no evidence
Officer Morgan had any postarrest interaction with Elliott or any impact on the criminal
proceedings against her after charges were filed; thus, the elements for an abuse-of-process
claim had not been met as a matter of law.
Summary judgment is appropriate when there are no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of law. Martin v. Hallum, 2010 Ark.
App. 193, at 10, 374 S.W.3d 152, 159. On appellate review, we determine whether
summary judgment was appropriate based on whether the evidentiary items presented by
the moving party in support of the motion leave a material question of fact unanswered.
City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006). We view the evidence in
the light most favorable to the party against whom the motion was filed, resolving all doubts
and inferences against the moving party. Id. Our review focuses not only on the pleadings
but also on the affidavits and other documents filed by the parties. Dodson v. Taylor, 346
Ark. 443, 57 S.W.3d 710 (2001). The issue of whether a party is immune from suit is
reviewed de novo on appeal. City of Fayetteville v. Romine, 373 Ark. 318, 284 S.W.3d 10
(2008). Whether summary judgment on grounds of immunity is appropriate on a particular
set of facts is purely a question of law. Gentry v. Robinson, 2009 Ark. 634, at 10, 361 S.W.3d
788, 794. Although the determination of whether there is a genuine issue of material fact is
a question of law under these circumstances, it is a legal question that sits near the law-fact
divide. Martin, 2010 Ark. App. 193, at 11, 374 S.W.3d at 159.
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Qualified immunity for a county sheriff derives from Arkansas Code Annotated
section 21-9-301, which provides as follows:
(a) It is declared to be the public policy of the State of Arkansas that all counties,
municipal corporations, school districts, public charter schools, special improvement
districts, and all other political subdivisions of the state and any of their boards,
commissions, agencies, authorities, or other governing bodies shall be immune from
liability and from suit for damages except to the extent that they may be covered by
liability insurance.
(b) No tort action shall lie against any such political subdivision because of the
acts of its agents and employees.
Ark. Code Ann. § 21-9-301 (Repl. 2016).
We apply the same analysis that is used when addressing the issue of qualified
immunity of state employees under Ark. Code Ann. § 19-10-305, which our supreme court
has held rests on the same principles as qualified immunity under federal law. Martin, 2010
Ark. App. 193, at 9, 374 S.W.3d at 158.
The purpose of qualified immunity is to allow public officers to carry out their
duties as they think right, rather than acting out of fear for their own personal
fortunes. Greiner v. City of Champlin, 27 F.3d 1346 (8th Cir.1994). Toward this end,
police officers have qualified immunity from liability in their individual capacity
unless they violate a clearly established right of which a reasonable person would
know. Harlow v. Fitzgerald, 457 U.S. 800 (1982). A motion for summary judgment
based upon qualified immunity is precluded only when the plaintiff has asserted a
constitutional violation, demonstrated that the constitutional right is clearly
established, and raised a genuine issue of fact as to whether the official would have
known that the conduct violated that clearly established right. Smith v. Brt, 363 Ark.
126, 211 S.W.3d 485 (2005).
Martin, 2010 Ark. App. 193, at 9–10, 374 S.W.3d at 158–59.
Elliott’s amended complaint asserts all her tort claims—malicious prosecution, false
imprisonment, defamation, and abuse of process—pursuant to ACRA and the Arkansas and
United States Constitutions. She contends that Officer Morgan deprived her of her “rights,
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privileges, property, and immunities secured by the Arkansas and United States
Constitutions.” The claims are based on her allegation that Officer Morgan lacked probable
cause to arrest her. She failed to assert a particular defamatory statement for her claim of
defamation and merely testified in her deposition that “the fact” that she was arrested for
being intoxicated in public and battering a spouse was “the defamatory statement.” On
appeal she argues that summary judgment was improper because a material issue of fact
existed regarding whether Officer Morgan had probable cause to arrest her.
The right not to be arrested or prosecuted without probable cause is a clearly
established constitutional right. Martin, 2010 Ark. App. 193, at 11, 374 S.W.3d at 159 (citing
Dunaway v. New York, 442 U.S. 200 (1979)). If, however, the arrest was objectively
reasonable and officers of reasonable competence could disagree on whether the probable-
cause test was met, an arresting officer is entitled to qualified immunity. Malley v. Briggs, 475
U.S. 335 (1986). Probable cause exists if “at the moment the arrest was made the facts and
circumstances within [a police officer’s] knowledge and of which [the officer] had reasonably
trustworthy information were sufficient to warrant a prudent man in believing” that the
person arrested committed the crime with which he was charged. Baldridge v. Cordes, 350
Ark. 114, 120–21, 85 S.W.3d 511, 515 (2002) (quoting Beck v. Ohio, 379 U.S. 89, 91
(1964)). As this standard makes clear, there need not be actual probable cause for an officer
to be shielded by qualified immunity; an objectively reasonable belief that there was
probable cause is enough. Baldridge, 350 Ark. at 121, 85 S.W.3d at 515. Further, once
probable cause exists for an arrest on one offense, it is immaterial whether there was probable
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cause for arrest on any other offenses. Martin, 2010 Ark. App. 193, at 12, 374 S.W.3d at
160.
Here, Officer Morgan attached to his motion for summary judgment his own
affidavit; his deposition; Elliott’s deposition; discs containing his body-camera video from
the incident, including his interviews with Roberson and Elliott; his report prepared a week
after the incident; the signed statement of a state trooper who accompanied Officer Morgan
to the scene; and statements of Roberson and his mother taken the night of the incident.
Although Elliott denied that she struck Roberson, these documents indicate that Roberson
told Morgan while on video that Elliott struck him in the face. Officer Morgan observed
that Roberson’s ear was red where he indicated he had been hit. Roberson’s mother gave
a statement that she was a witness to the incident. Officer Morgan’s report and his deposition
testimony confirm the video and his affidavit that Roberson told Officer Morgan that Elliott
hit him in the head and that Officer Morgan observed that Roberson’s left ear was red.2
There need not be actual probable cause for an officer to be shielded by qualified
immunity; an objectively reasonable belief that there was probable cause is enough.
Baldridge, 350 Ark. at 121, 85 S.W.3d at 515. In the event that a genuine dispute exists
2
We recognize Elliott’s general contention that Officer Morgan’s affidavit should
have been excluded because it contradicted his deposition testimony. Although he relies on
Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 757, 911 S.W.2d 586, 590 (1995), stating
that an affidavit that “is inherently and blatantly inconsistent with prior deposition testimony
may not be used to establish a question of fact” to defeat summary judgment, the affidavit
was not introduced in this case to defeat summary judgment but to support it, and Elliott
fails to mention the blatant inconsistency. Regardless of any alleged contradiction, however,
we reject her argument. The affidavit was not necessary in light of the body-camera video,
Officer Morgan’s report, the state trooper’s statement, and statements of Roberson and his
mother.
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concerning predicate facts material to the qualified-immunity issues, the defendant is not
entitled to summary judgment on that ground. Id. But once the predicate facts have been
established, for the purposes of qualified immunity there is no such thing as a “genuine issue
of fact” as to whether an officer “should have known” that his conduct violated
constitutional rights. Id. The conduct was either reasonable under settled law in the
circumstances, or it was not, and this is a question of law. Id. In this case, Roberson told
Officer Morgan at the scene that he had been struck, Officer Morgan observed that
Roberson’s ear was red where he said he had been struck, Roberson’s mother said she had
witnessed the incident, and Officer Morgan observed that Elliott appeared intoxicated and
extremely agitated. As a matter of law, Officer Morgan’s conduct in arresting Elliott for
domestic battery was objectively reasonable. Accordingly, we affirm the court’s grant of
summary judgment on qualified immunity.
While it is not clear that Elliott appeals the summary judgment based on the
defamation and abuse-of-process claims, we also affirm the court’s order on those claims.
Elliott provided no evidence to support a defamation claim and did not state in her
complaint, her response to the summary-judgment motion, or her initial brief to us which
statement of Officer Morgan’s constituted defamation. She did come up with an allegedly
defamatory statement in her reply brief, but we will not consider an argument made for the
first time in a reply brief. Bynum v. State, 2017 Ark. App. 41, at 1, 511 S.W.3d 860, 861.
We also agree with the circuit court that there is no evidence to support an abuse-
of-process claim against Officer Morgan.
Abuse of process is somewhat in the nature of extortion or coercion. The key is
improper use of process after issuance, even when issuance has been properly
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obtained. In the Smith & McAdams, Inc., case we stated, “The test of process abuse is
not whether the process was originally issued with malice and without probable
cause. The remedy in that situation would be an action for malicious prosecution
which was asserted in the case at bar.” [Smith & McAdams, Inc. v. Nelson, 255 Ark.
641, 644, 501 S.W.2d 769, 770 (1973).] In Cordes v. Outdoor Living Ctr., Inc., 301
Ark. 26, 781 S.W.2d 31 (1989), we reiterated that it does not matter, when
considering abuse of process, whether the legal procedure set in motion was indeed
founded upon probable cause because the second requirement is that the procedure
must have been perfected to accomplish an ulterior purpose for which it was not
designed.
Union Nat’l Bank of Little Rock v. Kutait, 312 Ark. 14, at 16–17, 846 S.W.2d 652, 654 (1993).
Elliott presented no evidence that Officer Morgan was involved in the prosecution of her
case. He arrested her. That act, without more, does not constitute abuse of process.
Affirmed.
SWITZER and HIXSON, JJ., agree.
Harry McDermott, for appellant.
Colin Jorgensen, Association of Arkansas Counties, for appellee.
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