Borgman v. Kedley

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3272

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*

Jody Borgman, *

*

Plaintiff-Appellant, *

*

v. * Appeal from the United States

* District Court for the Southern

* District of Iowa.

Ryan Kedley; Wild Rose *

Clinton, L.L.C., *

*

Defendants-Appellees. *

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*

Submitted: May 12, 2011

Filed: July 19, 2011

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Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,1 District

Judge.

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MURPHY, Circuit Judge.

Ryan Kedley, an agent of the Iowa Division of Criminal Investigation,

arrested Jody Borgman for trespass when she entered the Wild Rose Casino after

having signed two voluntary exclusion forms at the casino's predecessor

establishment. After the charge against her was dropped, Borgman brought this

1

The Honorable Ralph R. Erickson, Chief Judge, United States District Court

for the District of North Dakota, sitting by designation.

action against Kedley and the Wild Rose Casino, alleging violations of her

constitutional rights under 42 U.S.C. § 1983 as well as state law claims for false

arrest and imprisonment. The district court2 granted summary judgment to Kedley

and the casino, and Borgman appeals. We affirm.

I.

In October 2002, Borgman voluntarily barred herself from entering a river

boat casino in Iowa named the Mississippi Belle II Casino (Mississippi Belle) by

signing a lifetime self exclusion form. The Mississippi Belle had created the self

exclusion form that was signed by Borgman to comply with an Iowa regulatory

requirement that casinos "adopt and implement policies and procedures designed to

. . . [a]llow persons to be voluntarily excluded for life from all facilities." Iowa

Admin. Code r. 491-5.4(12). The regulations also required casinos to have

"[p]rocedures for preventing reentry of problem gamblers." Id. The Mississippi

Belle's voluntary exclusion form provided:

I am barring myself from the Mississippi Belle II Casino, Clinton

Ia. I understand that this barrment is irrevocable. I hereby release,

indemnify and hold Mississippi Belle II Casino and it's [sic] agents,

officers, directors and employees [harmless] from any claims,

causes of action or liability of any kind arising from this request. . .

. I further understand that if I am found on the properties of the

Mississippi Belle II Casino, Clinton, Iowa, I may be considered a

trespasser set out in Chapter 716.7 of the State Code of Iowa and

subject to the penalties as provided by law.

Borgman returned to the Mississippi Belle casino on June 29, 2005, and won

a jackpot for approximately $1,400. This attracted the attention of casino

2

The Honorable Ross A. Walters, United States Magistrate Judge for the

Southern District of Iowa, sitting by agreement of the parties under 28 U.S.C. §

636(c).

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employees who approached Borgman and showed her signed 2002 self exclusion

form to her. Borgman asked if she could undo the exclusion, and she was told that

she could not. Casino employees asked her to sign a new self exclusion form in

order to receive her winnings. She agreed to do so, received her jackpot, and left

the premises. The new self exclusion form signed by Borgman generally included

similar terms to the original form.

Despite the fact that the form required Borgman to certify that she had

"taken the time to read and understand" its terms and agree that she was "legally

bound" by it, Borgman testified that she had not actually read the new form before

signing it. The form provided that if Borgman entered the casino, she "may be

arrested and prosecuted for trespassing and other violations of criminal law." It

also contained a release, which indicated that it applied to the casino and " all of its

. . . assigns."

I, for myself, my family members, heirs, and legal representatives

hereby release and forever discharge the Casino and all of its . . .

assigns . . . from any and all claims in law or equity that I now have

or may have in the future against any or all of the Released Parties

arising out of, or by reason of, the performance or non-performance

of this Self-Exclusion Request, or any other matter relating to it . . . .

In 2006, the Wild Rose Clinton, L.L.C. purchased the assets and properties

of the Mississippi Belle and assumed a number of its liabilities. The purchase

agreement between the parties assigned to Wild Rose Clinton "[a]ll books, files,

documents and records of any type, and in any format relating to the operation of

the Business." The Wild Rose Clinton then closed the Mississippi Belle riverboat

casino and reopened it as the Wild Rose Casino (Wild Rose) on land in June 2008.

The Wild Rose installed a new database system to record problem gamblers

on a computerized list before reopening in June 2008, but it did not enter voluntary

self exclusion forms like those Borgman had signed into that system until

sometime between August and September 2008. The Wild Rose also created a

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procedure for casino staff to follow when any banned individual entered the casino.

Floor employees were to contact casino security personnel if a person on the

computerized list tried to cash a check. Casino security was then to check the

person's name against statewide and property specific trespass lists. If the name

appeared on one of the lists, a casino manager was to approach her, properly

identify her, and escort her to the security office to be readvised of her excluded

status.

In August 2008, Borgman cashed several checks at the Wild Rose, but on

those occasions she was not identified as an excluded person because the Wild

Rose's database had not yet been fully updated. On September 26, 2008, Borgman

attempted to cash another check at the casino. This time her name came up on the

computerized list as a trespasser to the property. A security supervisor located the

self exclusion forms Borgman had signed in 2002 and 2005 and approached her on

the casino floor.

The security supervisor requested Borgman's license and, after confirming

her identification, advised her that she was barred from the casino. He asked that

she go with him to sign a form readvising her that she was barred from the casino.

Borgman refused, stating that she had cashed checks there before and that she had

not signed an exclusion form for the Wild Rose. The security supervisor told her

that the Mississippi Belle exclusion carried over and applied to the Wild Rose. He

again asked her to sign a readvisement form, and Borgman again refused.

The security supervisor used a radio to call Kedley about the incident with

Borgman. Kedley was an agent of the Iowa Division of Criminal Investigation

who was stationed at the casino by the state; he was not a casino employee.

Kedley went out on the casino floor where he was briefed on what had occurred

and given the 2005 self exclusion form previously signed by Borgman. Security

staff had previously informed him that the forms were applicable at the new casino.

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After Kedley was briefed on the situation, he asked Borgman to sign a

readvisement form or be faced with an arrest for trespass. Because she had been

excluded from the casino, Kedley testified that he told her that "[h]er options were

to accompany [him] to sign a re-advisement form . . . or she would be charged with

criminal trespass." Borgman asked that he return her license and checks instead.

She said that she would leave the casino and not come back. Kedley told her that

he could not let her go, saying "right now you're breaking the law, ma'am, because

you are on a property that you're not supposed to be at." When she again refused

to sign the form, he asked her to accompany him outside, where he placed her

under arrest for trespassing and interference with official acts. Borgman was taken

to jail and stayed there for about two hours until she made bail. She was charged

with a simple misdemeanor for criminal trespass in violation of Iowa Code §

716.7. The county attorney dismissed the charge before the case went to trial.

Borgman filed this action against agent Kedley and the Wild Rose Clinton,

alleging that they both had violated her First, Fourth, and Fourteenth Amendment

rights under 42 U.S.C. § 1983 when they acted in concert to have her arrested

without probable cause. Borgman also claimed that both Kedley and the Wild

Rose violated state law by falsely arresting and imprisoning her. The district court

determined that Borgman had abandoned her false arrest and imprisonment claim

against Kedley, a conclusion that she does not appeal.

The district court granted summary judgment in favor of Kedley and the

Wild Rose, concluding that Kedley was entitled to qualified immunity because he

had an objectively reasonable belief that Borgman was trespassing and that the

Wild Rose had been released from any liability. Borgman appeals, arguing that

Kedley is not entitled to qualified immunity for his Fourth and Fourteenth

Amendment violations and that the Wild Rose was not released from liability.

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II.

Borgman appeals the district court's determination that Kedley was entitled

to qualified immunity for her Fourth and Fourteenth Amendment claims. We

review de novo a grant of summary judgment on the basis of qualified immunity,

viewing the evidence in the light most favorable to Borgman. Amrine v. Brooks et

al., 522 F.3d 823, 830–31 (8th Cir. 2008).

Qualified immunity protects police officers from civil liability for any action

that does not violate "clearly established statutory or constitutional rights of which

a reasonable person would have known." Young v. Selk, 508 F.3d 868, 871 (8th

Cir. 2007) (citation omitted). The immunity allows "officers to make reasonable

errors," Habiger v. City of Fargo et al., 80 F.3d 289, 295 (8th Cir. 1996), and

provides "ample room for mistaken judgments." Malley v. Briggs, 475 U.S. 335,

343 (1986). The defense protects public officials unless they are “plainly

incompetent” or “knowingly violate the law.” Hunter v. Byrant, 502 U.S. 224, 229

(1991) (citation omitted). When determining whether a state official is entitled to

qualified immunity, we decide whether the alleged facts demonstrate that his

conduct violated a constitutional right and whether that right was clearly

established at the time of the violation. See Saucier v. Katz, 533 U.S. 194, 201

(2001). The court has discretion to decide which element of the qualified

immunity defense to address first. Pearson v. Callahan, 129 S. Ct. 808, 818

(2009).

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." Walker v. City of Pine Bluff, 414 F.3d

989, 992 (8th Cir. 2005) (citation omitted). An officer has probable cause to make

a warrantless arrest 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." Fisher v. Wal-Mart Stores, Inc. et al., 619

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F.3d 811, 816 (8th Cir. 2010) (citation omitted). Arguable probable cause exists

even where an officer mistakenly arrests a suspect believing it is based in probable

cause if the mistake is "objectively reasonable." Amrine, 522 F.3d at 832.

Borgman was arrested for criminal trespass. Under Iowa law, a person

commits criminal trespass if she enters the property of another after being notified

or requested not to enter the property. Iowa Code § 716.7(2)(b). Kedley can only

make out his qualified immunity defense if he can show that a reasonable officer

could have had arguable probable cause that Borgman was improperly on the

property of the Wild Rose and that she knew it. Amrine, 522 F.3d at 832. The

district court determined that arguable probable cause existed. It concluded that

"[r]easonable persons in Agent Kedley's position could both believe or not believe

that Ms. Borgman knowingly committed the crime of trespass."

We conclude that the district court did not err in determining that a

reasonable officer could have believed that Borgman was barred from the Wild

Rose. He was entitled to rely on what he was told by casino security. Officers

may "rely on the veracity of information supplied by the victim of a crime. . . ."

Fisher, 619 F.3d at 817 (citation omitted); see Granito v. Tiska et al., 120 F. App'x

847, 849 (2d Cir. 2005). Arguable probable cause in a trespassing case may be

based at least in part on explanations given by internal security officers, such as the

security supervisor at the Wild Rose. Blankenhorn v. City of Orange et al., 485

F.3d 463, 475 (9th Cir. 2007). In considering information given by a victim of a

crime, an officer need not conduct a "mini-trial" before effectuating an arrest

although he cannot avoid "minimal further investigation" if it would have

exonerated the suspect. Kuehl v. Burtis et al., 173 F.3d 646, 650 (8th Cir. 1999)

(citations omitted). Thus, there was no arguable probable cause in Kuehl because

the officer there had spoken with the suspect for only twenty seconds, ignored

exculpatory evidence, and disregarded an eyewitness account. Id. When an officer

is faced with conflicting information that cannot be immediately resolved,

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however, he may have arguable probable cause to arrest a suspect. Amrine, 522

F.3d at 832–33.

Here, the undisputed facts show that the Wild Rose had alerted Kedley that

Borgman was barred from the property and was not cooperating with casino

security officers. Casino personnel told Kedley that Borgman had signed two self

exclusion forms with the Mississippi Belle and that the forms applied to the Wild

Rose as a successor casino. A reasonable officer would be entitled to rely on the

representations made by the casino personnel and could infer from the

circumstances that the self exclusion form was applicable. He would not have

been required to conduct a "mini-trial" before placing Borgman under arrest as it

would have taken more than "minimal further investigation" to sort out any

inconsistencies between the statements by casino security personnel and Borgman.

See Amrine, 522 F.3d at 832–33. And even if a reasonable officer would have

done additional investigation, the 2005 self exclusion form could have reasonably

been understood to bar Borgman from the Wild Rose because it represented that

Borgman would not "attempt to gain access to this Casino" and referenced its

"assigns," which would include the Wild Rose under the terms of the purchase

agreement between the Mississippi Belle and Wild Rose Clinton.

The district court did not err by concluding that a reasonable officer could

have determined that Borgman knew that she was not permitted to be at the Wild

Rose. An officer can rely on "the implications of the information known to him"

when assessing whether a suspect possessed the state of mind required for the

crime. Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989). It is usually not

possible for an officer to be certain about a suspect's state of mind at the time of a

criminal act, id.; see also Floyd v. Farrell, 765 F.2d 1, 5–6 (1st Cir. 1985), but he

need not rely on an explanation given by the suspect. Wright v. City of

Philadelphia et al., 409 F.3d 595, 603 (3d Cir. 2005) (explanation by the subject of

the investigation not dispositive on whether a reasonable officer would have

believed that an actionable trespass was occurring). Moreover, a suspect's

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subjective belief that she is not violating the law may be "irrelevant to [the]

qualified immunity analysis." Hutton v. Strickland, 919 F.2d 1531, 1540 (11th Cir.

1990).

The fact that the Wild Rose was an assign of the Mississippi Belle was

known to the security personnel and agents working at the casino, and a reasonable

officer could have inferred broader public knowledge of that relationship. It would

be particularly reasonable for an officer to assume that Borgman would have

known that she was not allowed at the Wild Rose after he had been alerted that she

had signed not one, but two forms barring herself from casino premises. That

Borgman repeatedly told the casino staff and Kedley that she did not know that the

exclusion forms carried over to the Wild Rose is not determinative. Viewing the

facts in the light most favorable to Borgman means only that the court must accept

that she emphatically denied knowing that she was trespassing, but it does not

mean that a reasonable officer would have believed her. As far as Kedley knew

from what he had been told by casino personnel, Borgman had voluntarily signed

two exclusion forms that barred her from the premises. We conclude that arguable

probable cause existed for Kedley to arrest Borgman for trespass.

Borgman argues that Kedley is not entitled to qualified immunity on her

Fourth Amendment claim because his actual motivation for arresting her was that

she refused to sign the readvisement form, not that he believed that she was

trespassing. Kedley testified, however, that he told Borgman that "right now you're

breaking the law, ma'am, because you're on a property that you are not supposed to

be at," which supports that he arrested her for trespass. In any event, Kedley's

subjective motivations in arresting Borgman are irrelevant to the qualified

immunity analysis. Devenpeck v. Alford, 543 U.S. 146, 153 (2004); McCabe v.

Parker et al., 608 F.3d 1068, 1077–78 (8th Cir. 2010). For that reason, even if

Kedley had been subjectively motivated to arrest her for refusing to sign the

readvisement form, it would not affect the arguable probable cause analysis.

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Borgman also contends the district court ignored her claim that Kedley

violated her clearly established Fourteenth Amendment right to contract by giving

her an ultimatum that she either sign the readvisement form or face arrest.

Borgman argues that Kedley violated her Fourteenth Amendment rights by

attempting to coerce her into signing a contract with the Wild Rose. See Bd. of

Regents v. Roth, 408 U.S. 564, 572 (1972) (the right to contract is protected by the

Fourteenth Amendment). In support of this claim, Borgman relies on Kedley's

testimony that he told her that "[h]er options were to accompany [him] to sign a re-

advisement form . . . . or she would be charged with criminal trespass."

Borgman has not established that the right to contract which she asserts was

clearly established at the time of her arrest. See Saucier, 533 U.S. at 201. That

inquiry is fact intensive and must be "undertaken in light of the specific context of

the case, not as a broad general proposition." Samuelson v. City of New Ulm et

al., 455 F.3d 871, 875 (8th Cir. 2006) (citations omitted). Borgman relies only on

Grosch v. Tunica Cnty., No. 2:06CV204-P-A, 2008 WL 114773, at *8 (N.D. Miss.

Jan. 8, 2008), and Bacquie et al. v. City of New York, No. 99 Civ. 10951, 2000

WL 1051904, at *1-3 (S.D.N.Y. July 31, 2000), to meet her burden. These cases

are inapplicable because they do not discuss the right to contract, but rather focus

on whether qualified immunity existed in the context of either an unreasonable

seizure or a false arrest.

In any event, no right to contract was implicated here because Borgman

cannot show that the readvisement form that casino personnel and Kedley asked

her to sign was a contract that would have created obligations for the casino and

Borgman. See Compiano v. Kuntz, 226 N.W.2d 245, 249 (Iowa 1975). Indeed,

Borgman had already signed two forms that instructed the casino that she was to be

permanently excluded from the property and allowed for her arrest if she chose to

reenter. Kedley's request that Borgman sign a readvisement form complied with

the regulatory requirement that casinos have procedures that "prevent . . . [the]

reentry of problem gamblers." Iowa Admin. Code r. 491-5.4(12). Because

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Borgman has not shown that the readvisement form would have altered the parties'

obligations or that the Kedley's request that she sign it was improper under

applicable regulations, she cannot sustain her Fourteenth Amendment claim.

Since the record evidence supports the conclusion that Kedley arrested

Borgman for trespassing on casino property, we conclude that the district court did

not err in finding that Kedley was entitled to qualified immunity.

III.

Borgman also appeals the district court's grant of summary judgment to the

Wild Rose on her claims that the casino had acted in concert to arrest her without

probable cause and arrest and falsely imprison her. The district court granted

summary judgment to the Wild Rose because the 2005 self exclusion form released

the casino from liability. The form released the Mississippi Belle casino as well as

its "assigns" from "any and all [present or future] claims . . . arising out of, or by

reason of, the performance or non-performance of this Self-Exclusion Request, or

any other matter relating to it . . . ." The 2005 form was assigned to the Wild Rose

as part of the acquisition.

Releases are valid and enforceable contracts under Iowa law. See Grabill v.

Adams Cnty. Fair & Racing Ass'n, 666 N.W.2d 592, 596 (Iowa 2003). Iowa courts

routinely permit a party to release future assigns. Id. at 595; Huber v. Hovey et al.,

501 N.W.2d 53, 54 (Iowa 1993). Wild Rose qualifies as an "assign" under the

2005 form because the relevant agreements assigned certain assets and liabilities

from the Mississippi Belle to the Wild Rose, including this property specific

exclusion form.

Borgman argues that the release was signed under coercion, lacked

consideration, and could not be enforced. She first argues that the release was not

valid because she had not read the form before signing it. Under Iowa law,

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however, "failure to read a contract before signing it will not invalidate the

contract." Huber, 501 N.W.2d at 55. Because Borgman has alleged neither fraud

nor mistake, her failure to read the release does not negate its effect. See id.

She also contends that she was coerced into signing the release because the

casino would not give her the approximately $1,400 in jackpot winnings she had

won until she signed the new self exclusion form and release. This argument also

fails. The casino was not required to pay Borgman the jackpot because she was

already an excluded person as a result of her 2002 self exclusion. See Blackford v.

Prairie Meadows Racetrack & Casino, Inc., 778 N.W.2d 184, 189–90 (Iowa 2010).

Moreover, Borgman had a reasonable alternative. She could forgo the jackpot to

which she was not legally entitled or sign the exclusion and release. She chose the

latter.

Borgman next argues that the release was not supported by consideration.

Under Iowa law, there is a general presumption that a "written and signed

agreement is supported by consideration." Margeson v. Artis et al., 776 N.W.2d

652, 656 (Iowa 2009). Borgman has not presented anything to overcome that

presumption. It is undisputed that the casino gave Borgman the jackpot, to which

she was not otherwise legally entitled, in exchange for signing the exclusion and

release. This was a benefit to Borgman that satisfies the consideration

requirement. See Hubbard Milling Co. v. Citizens State Bank, 385 N.W.2d 255,

258 (Iowa 1986).

Finally, Borgman argues that the Wild Rose should have been estopped from

enforcing the release because she had cashed checks at the casino twice before she

was stopped by the security staff. The parties agree that the excluded persons list

was not added to the casino database until between August and September 2008.

The first time Borgman attempted to cash a check after the database was updated,

security personnel stopped her and she was confronted by a security supervisor.

Under Iowa law estoppel or abandonment of a contract can only occur upon an

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"unequivocal and decisive" act evidencing a party's intention to abandon. Iowa

Glass Depot, Inc. v. Jindrich, 338 N.W.2d 376, 380 (Iowa 1983). Wild Rose did

not unequivocally and decisively relinquish its rights under the release. The

release contained in the 2005 form was therefore valid and enforceable, and it

absolved the Wild Rose of any liability from Borgman's constitutional and state

law claims.

For the foregoing reasons we affirm the judgment of the district court.

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