Petition for Writ of Certiorari — Samuel A. Cox, Petitioner v. Brian D. Thie, Individually and as Benewah County Prosecutor, et al.
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No. 25In the
Supreme Court of the United States
SAMUEL A. COX,
Petitioner,
v.
BRIAN D. THIE, INDIVIDUALLY AND AS BENEWAH
COUNTY PROSECUTOR; TRAVIS HUNTER AND
TRISHA HUNTER, HUSBAND AND WIFE,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Chris A. Montgomery
Counsel of Record
Montgomery Law Firm
287 East Astor Avenue
P.O. Box 269
Colville, WA 99114
(509) 684-2519
mlf@cmlf.org
390802
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
1. Whether the Franks v. Delaware requirement that
courts conduct a materiality analysis upon a substantial
preliminary showing that the affiant deliberately or
recklessly omitted material facts from a warrant affidavit
must be applied when the affiant is a prosecutor claiming
absolute immunity.
2. Whether a court may grant absolute prosecutorial
immunity without conducting the functional analysis
required by Buckley v. Fitzsimmons and Kalina v.
Fletcher to determine whether the prosecutor’s conduct
in certifying facts under oath, while deliberately or
recklessly withholding material information, constituted
an advocacy function or a witness function.
ii
INTRODUCTORY STATEMENT
This petition presents a question that transcends
any individual immunity claim: Whether lower courts
may enlarge prosecutorial immunity by declining to
perform the very analyses this Court designed to define
its boundaries. In this case, both courts below granted
absolute immunity without conducting either the Franks
v. Delaware materiality analysis or the Imbler/Buckley/
Kalina functional analysis. Both were squarely raised, fully
briefed, and supported by undisputed record evidence.
Both were silently ignored. The result is that a prosecutor
who personally investigated the underlying facts, withheld
material information from the issuing magistrate, and
certified under oath an incomplete warrant application,
received absolute immunity without any court examining
his conduct. Each time a court grants immunity without
performing these analyses, the boundaries of prosecutorial
immunity are effectively erased—not by any holding, but
by silence. If it can happen in one case, it can happen
every time a citizen is confronted with a claim of absolute
prosecutorial immunity.
iii
RELATED CASES
1.
Cox v. Thie and Hunter, No. 2:22-cv-199, U.S. District
Court for Idaho. Judgment entered September 3,
2024.
2.
Cox v. Thie and Hunter, No. No. 2:22-cv-00199-AKB,
Memorandum Decision Dismissing, October 24, 2025.
3.
Cox v. Thie and Hunter, No. No. 2:22-cv-00199-AKB,
Rehearing Denied, December 4, 2025.
4.
Trisha Hunter, Petitioner v. Samuel Cox, Respondent,
CV05-20-0060, First Judicial District, Benewah
County, Idaho,, Civil Protection Order, March 11,
2020.
iv
LIST OF ALL PARTIES
Petitioner Samuel A. Cox was the plaintiff-appellant
below.
Respondent Brian D. Thie, individually and as
Benewah County Prosecutor, was a defendant-appellee
below.
Respondents Travis Hunter and Trisha Hunter,
husband and wife, were defendants-appellees below.
No party is a corporation.
v
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
INTRODUCTORY STATEMENT . . . . . . . . . . . . . . . . . ii
RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
LIST OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . xiii
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BASIS FOR JURISDICTION . . . . . . . . . . . . . . . . . . . . . 1
CONST I T U T IONA L A N D STAT U T ORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1
I.
STATEMENT OF THE CASE . . . . . . . . . . . . . . 2
A. Factual Background . . . . . . . . . . . . . . . . . . . 2
1.
The protection order . . . . . . . . . . . . . . . . 2
2. The alleged violation and Deputy
Vannatter’s investigation . . . . . . . . . . . . 3
vi
Table of Contents
Page
3. T h e p r o s e c u t o r ’s p e r s o n a l
investigation and negotiated
resolution . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Cox repairs the Bypass Road . . . . . . . . 4
5.
An eight-day gap and the events
of May 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. The warrant presentation and
the prosecutor’s omissions . . . . . . . . . . . 6
7.
The arrest and its consequences . . . . . . 7
B. Proceedings Below . . . . . . . . . . . . . . . . . . . . . 7
1.
District Court . . . . . . . . . . . . . . . . . . . . . 7
2. Ninth Circuit . . . . . . . . . . . . . . . . . . . . . . 9
II. REA SONS FOR GR A N TING T HE
PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. T h i s C a s e I s A b o u t P r o c e s s :
The Lower Courts Disposed of a
Constitutiona l Cla i m Without
Conducting the Analyses This Court’s
Precedents Require . . . . . . . . . . . . . . . . . . . . 9
vii
Table of Contents
Page
B. The Lower Courts Were Required
to Conduct a Franks Materiality
Analysis and Failed to Do So . . . . . . . . . . . 10
C. The Lower Courts Were Required
to Conduct a Imbler/Buckley/Kalina
Functional Analysis and Failed to
Do So . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
D. The Undisputed Facts Make This
Case a Suitable Vehicle . . . . . . . . . . . . . . . . 17
E. The Unpublished Disposition Should
Not Preclude Review . . . . . . . . . . . . . . . . . . 18
F.
The Decision Below Has Significant
Practical Consequences . . . . . . . . . . . . . . . . 19
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
viii
TABLE OF APPENDICES
Page
A P PEN DI X A — M EMOR A N DU M OF
T H E U N I T ED S TAT E S C OU RT OF
APPEALS FOR THE NINTH CIRCUIT,
FILED OCTOBER 24, 2025 . . . . . . . . . . . . . . . . . . . 1a
A P P E N DI X B — DI S T R IC T C O U R T
M EMOR A N DU M DECI SION A N D
ORDER, FILED SEPTEMBER 3, 2024 . . . . . . . . . 5a
A PPENDI X C — J U DGMENT OF THE
UNITED STATES DISTRICT COURT
F OR T H E DI S T R IC T OF I DA HO,
FILED SEPTEMBER 3, 2024 . . . . . . . . . . . . . . . . 32a
A PPEN DI X D — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR T HE NIN T H CIRCU I T, FILED
DECEMBER 4, 2025 . . . . . . . . . . . . . . . . . . . . . . . . .34a
APPENDIX E — EXCERPTS OF DECLARATION
OF DEN N I S W. CL AY T ON, DAT ED
NOVEMBER 27, 2023 (ER 58–61) . . . . . . . . . . . . . 36a
A PPEN DI X F — EXCER P T S OF
A FFI DAV I T OF DEN N IS CL AY T ON
DAT ED M AY 19 , 2 0 2 0 A N D F I L ED
NOVEMBER 28, 2023 (ER 68–70) . . . . . . . . . . . . . 42a
APPENDIX G — EXHIBIT A TO CLAYTON
A F F I D AV I T- - P H O T O G R A P H S O F
POPLA R LA NE / ROA D CONDITION
(ER 74–76) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46a
ix
Table of Appendices
Page
APPENDIX H — EXCERPTS OF PLAINTIFF’S
RESPONSE OPPOSING MOTION FOR
S U M M A RY J U D GM EN T, DA T ED
NOVEMBER 27, 2023 (ER 115–117) . . . . . . . . . . . 49a
APPENDIX I — EXHIBIT 3 TO MONTGOMERY
DECLARATION DATED OCTOBER 20,
2 0 2 3 — EXCER P T S OF T R A NS CRI P T
OF BRIAN D. THIE DEPOSITION (ER
135–137) (ER 147–149) (ER 167–169) . . . . . . . . . . . . 54a
APPENDIX J — EXHIBIT 7 TO MONTGOMERY
DECLARATION DATED OCTOBER 20, 2023 -DISPATCH RECORDS (ER 209–211) . . . . . . . . . . 65a
APPENDIX K — EXHIBIT 9 TO MONTGOMERY
DECLARATION DATED OCTOBER 20,
2023 -- ARRAIGNMENT TRANSCRIPT
EXCERPTS (ER 225–227) . . . . . . . . . . . . . . . . . . . 69a
APPENDIX L — EXHIBIT 14 TO MONTGOMERY
DECLARATION DATED OCTOBER 20,
2023 -- DAVID COX DECLARATION AND
EXHIBITS (ER 247-252) . . . . . . . . . . . . . . . . . . . . . 73a
A P PEN DI X M — DEC L A R AT ION OF
SAMUEL COX, DATED OCTOBER 20, 2023
(ER 259–263) AND (ER 267–273) . . . . . . . . . . . . . . 82a
x
Table of Appendices
Page
A PPENDIX N — EXHIBIT 1 TO LAURA
K . M A RK H A M DECL A R ATION,
DAT ED S EP T EM BER 2 9 , 2 0 2 3 —
M AGI S T R AT E J U D GE D OUGL A S P.
PAYNE’S PROTECTION ORDER, DATED
MARCH 11, 2020 (ER 376–378) . . . . . . . . . . . . . . . 97a
A PPEN DI X O — DECL A R AT ION
OF BR A N D ON D. T H I E , DAT ED
SEPTEMBER 27, 2023 (ER 429–435) . . . . . . . . . 102a
A PPENDI X P — EX HIBIT 1 TO THIE
DE C L A R A T ION — E XC E R P T S OF
DEPOSITION TR A NSCRIP T OF
BRIAN D. THIE (ER 462–464) . . . . . . . . . . . . . . 111a
A PPENDI X Q — EX HIBIT 2 TO THIE
DECL A R ATION - - T HIE EM A IL T O
CLAYTON (ER 538–542) . . . . . . . . . . . . . . . . . . . . 133a
A PPENDI X R — EX HIBIT 6 TO THIE
DECL A R AT ION - - C OM M I T M EN T
A N D CON FIN EM EN T RECORDS
(ER 547–550) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138a
APPENDIX S — DECLARATION OF BRANDON
VANNATTER DATED SEPTEMBER 25, 2023
(ER 556–558, 560) . . . . . . . . . . . . . . . . . . . . . . . . . . 141a
xi
Table of Appendices
Page
APPENDIX T — EXHIBIT 1 TO VANNATTER
DECL A R AT ION - E XCER P T S OF
DEPOSITION OF BRANDON VANNATTER
(ER 585–587, 601) . . . . . . . . . . . . . . . . . . . . . . . . . . 146a
APPENDIX U — EXHIBIT 3 TO VANNATTER
DECLARATION - VANNATTER PROBABLE
CAUSE AFFIDAVIT (ER 606–611) . . . . . . . . . . . 151a
APPENDIX V — EXHIBIT 5 TO VANNATTER
DECLARATION -- ARREST WARRANT
AND RETURN (ER 627–629) . . . . . . . . . . . . . . . 160a
A PPEN DI X W — E X H I BI T 6 T O
JENNIFER FEGERT DECLA RATION
FILED SEPTEMBER 28, 2023 - ORDER
OF DI S M I S S A L BY HONOR A BL E
DOUGLAS P. PAYNE (ER 659–661) . . . . . . . . . . 163a
A PPENDI X X — THIE’ S A NS W ER TO
C OM PL A I N T F I L ED J U N E 6 , 2 0 2 2
(ER 737–740) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165a
APPENDIX Y — EXHIBIT 1 TO MONTGOMERY
DE C L A R A T ION — A ER I A L V I E W,
DISPUTE LOCATION, ECF NO. 35-2 . . . . . . . . 171a
APPENDIX Z — EXHIBIT 2 TO MONTGOMERY
DE C L A R A T ION — A ER I A L V I E W,
DISPUTE LOCATION, ECF NO. 35-2 . . . . . . . . 172a
xii
Table of Appendices
Page
APPENDIX AA — CRIMINAL COMPLAINT
IN THE DISTRICT COURT OF THE FIRST
JUDICIAL DISTRICT OF THE STATE
OF IDAHO, IN AND FOR THE COUNTY
OF BENEWA H, FILED M AY 6 , 2 0 2 0
(ER 650-651) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173a
A P P E N DI X A B — E XC E R P T F R O M
PLAINTIFF’S MEMORANDUM OPPOSING
THIE MOTION FOR SUMMARY, FILED
NOVEMBER 27, 2023 (ER 111-120) . . . . . . . . . . . 175a
APPENDIX AC — EXCERPT FROM APPELLANT’S NINTH CIRCUIT OPENING BRIEF . . . 190a
APPENDIX AD — EXCERPT FROM APPELLANT’S NINTH CIRCUIT RESPONSE
BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208a
xiii
TABLE OF CITED AUTHORITIES
Page
Cases
Buckley v. Fitzsimmons,
509 U.S. 259 (1993) . . . . . . . . . . . . . . . . . . 10, 14, 16, 19
Burns v. Reed,
500 U.S. 478 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Chism v. Washington,
661 F.3d 380 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . 8, 9
Ewing v. City of Stockton,
588 F.3d 1218 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . 11
Franks v. Delaware,
438 U.S. 154 (1978) . . . . . . . . . . . 8-11, 13, 14, 17, 18, 20
Illinois v. Gates,
462 U.S. 213 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Imbler v. Pachtman,
424 U.S. 409 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 10, 14
Jefferson v. Upton,
560 U.S. 284 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Kalina v. Fletcher,
522 U.S. 118 (1997) . . . . . . . . . . . . . . . . . 8, 10, 14-16, 19
xiv
Cited Authorities
Page
Liston v. County of Riverside,
120 F.3d 965 (9th Cir. 1997) . . . . . . . . . . . . . . . . 8, 9, 11
Pearson v. Callahan,
555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Saucier v. Katz,
533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Stanert,
762 F.2d 775 (9th Cir. 1985) . . . . . . . . . . . . . . . . 8, 9, 11
Waggy v. Spokane County,
594 F.3d 707 (9th Cir. 2010) . . . . . . . . . . . . . . . . . 15, 16
Constitutional Provisions
U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statutes and Other Authorities
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7
Ninth Circuit Model Jury Instruction § 9.17A . . . . . . . 11
Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1
OPINIONS BELOW1
The memorandum disposition of the United States
Court of Appeals for the Ninth Circuit (Pet. App. 1a-4a)
is unpublished. The memorandum decision and order of
the United States District Court for the District of Idaho
(Pet. App. 5a-31a) is unreported. The order of the Ninth
Circuit denying rehearing en banc was entered December
4, 2025. Pet. App. 34a.
BASIS FOR JURISDICTION
The United States Court of Appeals for the Ninth
Circuit entered its judgment on October 24, 2025. A timely
petition for rehearing en banc was denied on December
4, 2025. This Court has jurisdiction under 28 U.S.C.
§ 1254(1). This petition is filed within ninety days of the
denial of rehearing. See Sup. Ct. R. 13.1.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth A mendment to the United States
Constitution provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
1. See Petitioner’s briefing in the District Court, and Opening
and Response briefing before the 9th Circuit, at Pet. App. 175a,
190a, and 208a, respectively.
2
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress. . . .
I.
STATEMENT OF THE CASE
A.
Factual Background
1.
The protection order.
Petitioner Samuel Cox and respondents Travis and
Trisha Hunter are neighbors in a rural area south of
Fernwood, Idaho, where their properties are separated
by approximately 800 feet. Pet. App. 83a, ¶ 4; Pet. App.
171a-172a (aerial photos of parties’ properties). Access to
both properties is provided by mutual easement roads,
Poplar Drive and Sapling Lane, connecting to the main
road, Carpenter Creek Road. The Hunters also used a
secondary, non-easement road (the “Bypass Road”) as
an alternate route from Poplar Drive to their home. Pet.
App. 84a, ¶ 7.
3
On March 11, 2020, Magistrate Douglas Payne
issued a civil protection order prohibiting Cox from doing
anything to “interfere with [the Hunters’] ingress or
egress to their home” or to degrade their road access “to
any significant degree.” Pet. App. 100a, ¶ 9.
2.
T he a llege d v iolation a nd D eput y
Vannatter’s investigation.
On April 23, 2020, Cox cleared a drainage ditch
along Poplar Drive that rendered the Bypass Road
(secondary road) impassable. Hunters had filled in the
existing drainage ditch in order to create access to the
Bypass Road for use as a second, alternate route to their
home. 87a, ¶¶ 26-28. Mrs. Hunter reported Cox’s clearing
of the ditch to the Benewah County Sheriff’s Office.
Deputy Vannatter investigated and advised Cox he was
being investigated for possible violation of the protection
order. Cox’s restoration of the ditch rendered the Bypass
Road impassable. Pet. App. 142a-143a, ¶¶ 4-9. Vannatter
prepared a report, completed April 30, 2020, that included
a referral for charges. Pet. App. 156a.
3.
The prosecutor’s personal investigation
and negotiated resolution.
On April 24, Cox’s attorney, Dennis Clayton, contacted
Benewah County Prosecutor Brian Thie and suggested
they meet at the property to discuss a possible resolution.
Pet. App. 37a-38a, ¶¶ 12-17; Pet. App. 104a-105a, ¶¶ 6-10.
On April 28, Thie drove to the Cox and Hunter
properties, a round trip of thirty to forty miles. He met
with Cox and Clayton, walked the full distance of Poplar
4
Drive and the adjacent ditches, and personally observed
the road conditions, including the ditch Cox had dug across
the Bypass Road entrance. Pet. App. 39a, ¶¶ 18-23; Pet.
App. 105a-106a, ¶¶ 10-13. Thie then left to speak with
Travis Hunter at the Hunter residence. Upon returning,
Thie reported that Hunter had a PVC pipe available that
Cox could use as a culvert to repair the Bypass Road,
and that Hunter would provide the pipe if Cox agreed to
install it. Pet. App. 105a-106a, ¶ 13.
Cox agreed to make the repairs. Although Thie
disputes whether Cox agreed while Thie was present, Thie
acknowledges that by the time he returned to his office
on April 28, he was aware Cox had agreed to repair the
Bypass Road. Pet. App. 106a, ¶ 17.
Thie regarded himself as “an advocate for the
Hunters.” Pet. App. 55a.
On April 29, Thie and Clayton exchanged emails
regarding Cox’s progress. Thie wrote that he expected
a report from the Sheriff’s Office that would include a
“referral of charges, but hopefully these matters can be
taken care of and charges won’t need to be filed.” Pet.
App. 135a.
4.
Cox repairs the Bypass Road.
Cox installed the PVC pipe as a culvert and restored
access to the Bypass Road. Pet. App. 92a, ¶¶ 55. On May
3, 2020, Cox’s brother David photographed the completed
repair and emailed the photograph to Clayton that
evening. Pet. App. 80a, ¶¶ 16-17; Pet. App. 47a.
5
5.
An eight-day gap and the events of May 6.
As noted above, on April 29, Thie had written to
Clayton that he expected a referral of charges from the
Sheriff’s Office. Pet. App. 135a. Between April 28 and May
5, Thie received no complaints about Cox. Pet. App. 62a.
On the morning of May 6, Mrs. Hunter called the
sheriff’s dispatcher to report that five days earlier,
on May 1, Cox had fired gunshots into the air while
her sons and their friends were transporting the PVC
pipe to the Bypass Road. Pet. App. 74a-75a. That same
morning, Thie called Mrs. Hunter to check on the road’s
condition before filing a criminal complaint. From that
conversation, Thie learned that Cox had in fact placed
the culvert pipe and covered it with dirt. Pet. App. 59a.
Mrs. Hunter nonetheless reported the road was “still
impassable” and reported the gunshots. Pet. App. 108a,
¶¶ 23-24. However, David Cox’s photograph of May 3,
taken two days after the alleged gunshots and three
days before Thie’s call, shows the road repaired. Pet.
App. 80a, ¶¶ 16-17; Pet. App. 47a.
That same day, Thie called Clayton and reported
that Cox had fired gunshots while the Hunter boys were
delivering the pipe, that things had “gone too far,” and
that Cox was going to be arrested. Pet. App. 44a, ¶¶ 28-31.
Cox later explained that on May 1, he fired his gun several
times to scare a coyote away from his chicken coup. App.
Pet. 91a-92a, ¶¶ 52-4.
6
6.
The wa r ra nt present ation a nd the
prosecutor’s omissions.
On May 6, Thie reviewed Vannatter’s report and
probable cause affidavit. Pet. App. 108a-109a, ¶¶ 23-26.
Vannatter’s affidavit was technically true: It described
the ditch Cox had cleared/dug, as he had observed on
April 23. The report contained no mention of Thie’s April
28 site visit, his meetings with Cox, Clayton, and Hunter,
the negotiated repair plan, Cox’s agreement to make
repairs, or the fact that Cox had placed the PVC pipe as
agreed. Pet. App. 152a-156a. Prior to submitting his report
requesting criminal charges against Cox, Vannatter was
not aware that Thie had met with Cox. Pet. App. 144a-145a,
¶ 20.
Thie signed the criminal complaint under oath.
He has acknowledged that his signature constituted a
“certification of probable cause.” Pet. App. 168a, ¶ 140.
Thie presented the complaint and Vannatter’s affidavit
to Magistrate Payne. He described his standard process
in his deposition: “I go in. Judge swears me in and I sit
down in case he has any questions. If he has no questions,
I make no further statements. I don’t volunteer anything.”
Pet. App. 126a.
It is undisputed that Thie did not inform Magistrate
Payne of any of the following: (1) his April 28 visit to the
Cox and Hunter properties; (2) his personal observation
of the road conditions; (3) his meetings and conversations
with Cox, Clayton, and Hunter; (4) the negotiated repair
plan under which Hunter would provide pipe and Cox
would install it; (5) Cox’s agreement to make the repairs,
7
or (6) Cox’s actual placement of the PVC pipe. Pet. App.
129a-130a.
7.
The arrest and its consequences.
Cox was arrested on May 6, 2020, at approximately
5:30 p.m., within hours of Thie’s telephone conversation
with Mrs. Hunter. Pet. App. 162a.
At Cox’s arraignment the follow ing morning,
Magistrate Payne stated: “That complaint was signed by
Brian Thie on the 6th of May. As a result of that complaint,
a warrant was issued for your arrest and bail was set in
the amount of $25, 000.” Pet. App. 71a.
Cox’s bail was subsequently raised to $200,000. Pet.
App. 15a. He was involuntarily committed for psychiatric
evaluation and treatment, and remained confined for
approximately sixty days. Pet. App. 139a; Pet. App. 93a,
¶¶ 60-65. The charge was dismissed on December 4, 2020.
Pet. App. 163a-164a.
B. Proceedings Below
1.
District Court.
Cox filed this action on May 4, 2022, asserting claims
under 42 U.S.C. § 1983 against Thie, and a state-law
malicious prosecution claim against Mrs. Hunter. Cox
alleged that Thie obtained the arrest warrant through
judicial deception by omitting material facts from
Magistrate Payne, and that Mrs. Hunter’s false report to
Thie on May 6 that the Bypass Road remained impassable
caused Cox’s prosecution.
8
Cox’s opposition to Thie’s summary judgment motion
raised two grounds for denying absolute immunity. First,
citing Kalina v. Fletcher, 522 U.S. 118 (1997), Cox argued
that Thie functioned as a complaining witness, not an
advocate, when he signed the complaint under oath and
certified probable cause. Pet. App. 176a-178a. Second,
citing Liston v. County of Riverside, 120 F.3d 965 (9th
Cir. 1997), Chism v. Washington, 661 F.3d 380 (9th Cir.
2011), and United States v. Stanert, 762 F.2d 775 (9th Cir.
1985), Cox argued that Thie engaged in judicial deception
by omitting material facts—facts within his personal
knowledge—from the warrant presentation. In his
briefing, Cox identified the specific facts omitted, argued
they were material to the probable cause determination,
and quoted Thie’s own deposition testimony regarding
his practice of not volunteering information to Magistrate
Payne. Pet. App. 178a-183a.
The district court granted summary judgment to
both defendants. On the immunity question, the court
distinguished Kalina, reasoning that Thie “did not
personally attest to the facts giving rise to probable cause”
but instead “relied on Deputy Vannatter’s . . . probable
cause affidavit.” Pet. App. 22a. 2 The court did not address
the judicial deception argument. It did not conduct a
materiality analysis under Franks v. Delaware, 438 U.S.
154 (1978), or its Ninth Circuit progeny. It did not discuss
Liston, Chism, or Stanert, all of which were cited in Cox’s
briefing. Pet. App. 5a-31a.
2. Pet. App. 175a to 189a constitutes an excerpt of the
Plaintiff’s briefing filed in response to Thie’s Motion For Summary
Judgment. Therefore, the “ER” designations at the bottom of each
page can be disregarded.
9
2.
Ninth Circuit.
The Ninth Circuit affirmed in an unpublished
memorandum disposition, without oral argument. Pet.
App. 1a-4a. The panel (Judges Fletcher, Christen, and
Hurwitz) disposed of the immunity question in a single
paragraph, holding that Thie “was acting squarely within
the scope of his prosecutorial duties in signing and
submitting the complaint” and was “therefore entitled
to absolute immunity regarding his decision to pursue
criminal charges.” Pet. App. 3a.
The panel did not address the judicial deception
argument. It did not mention Franks, Liston, Chism, or
Stanert. It did not conduct a materiality analysis. It did not
address the undisputed facts regarding Thie’s personal
investigation, his negotiated repair plan, Cox’s compliance,
or Thie’s omission of these facts from Magistrate Payne.
Rehearing en banc was denied on December 4, 2025. Pet.
App. 35a.
II. REASONS FOR GRANTING THE PETITION
A.
This Case Is About Process: The Lower
Courts Disposed of a Constitutional Claim
Without Conducting the Analyses This Court’s
Precedents Require
This case does not ask the Court to decide whether
prosecutor Brian Thie is entitled to absolute immunity.
It asks the Court to decide whether the lower courts
here, and lower courts in the future, can be permitted
to grant absolute immunity without first performing two
analyses that this Court’s precedents require: the Franks
10
v. Delaware materiality analysis that determines whether
a judicial deception claim is supported by a preliminary
showing, and the functional analysis required by Buckley
v. Fitzsimmons and Kalina v. Fletcher that determines
whether the prosecutor’s specific conduct qualifies for
absolute or qualified immunity. Both courts below skipped
both analyses. They granted blanket immunity and never
addressed the judicial deception claim that was squarely
presented at every level of this litigation.
The result is that a prosecutor who personally
investigated the underlying facts, personally acquired
material information bearing on probable cause, certified
the warrant application under oath while deliberately
withholding that information from the magistrate, and
whose own testimony establishes materiality, received
absolute immunity without any court examining what
he actually did. That is not how this Court’s immunity
framework is supposed to operate. The functional
approach established in Imbler v. Pachtman, 424 U.S. 409
(1976), Buckley v. Fitzsimmons, 509 U.S. 259 (1993), and
refined in Kalina, 522 U.S. 118 (1997), requires courts to
analyze the prosecutor’s conduct act by act. The Franks
doctrine, 438 U.S. 154 (1978), requires courts to analyze
the materiality of omissions from a warrant application
when a substantial preliminary showing of deliberate or
reckless falsehood has been made. Neither analysis was
performed here.
B. The Lower Courts Were Required to Conduct
a Franks Materiality Analysis and Failed to
Do So
Under Franks v. Delaware, 438 U.S. 154, 171-72 (1978),
when a defendant makes a substantial preliminary showing
11
that the affiant deliberately, or with reckless disregard for
the truth, included a false statement or omitted material
facts from a warrant affidavit, the defendant is entitled
to a hearing on the question of materiality. The court
must determine whether the affidavit, once corrected and
supplemented, would still establish probable cause. That
determination is not discretionary; according to Franks,
it is constitutionally required.
Every circuit has extended Franks to material
omissions. The Ninth Circuit’s own formulation asks
whether “the affidavit, once corrected and supplemented,
establishes probable cause.” Ewing v. City of Stockton, 588
F.3d 1218, 1224 (9th Cir. 2009); see also Liston v. County
of Riverside, 120 F.3d 965, 972-74 (9th Cir. 1997); United
States v. Stanert, 762 F.2d 775, 782 (9th Cir. 1985). The
Ninth Circuit’s model jury instruction for judicial deception,
Instruction 9.17A, requires materiality as an element. The
panel below ignored its own circuit’s framework.
The substantial preliminary showing was made
here—and it was made on undisputed facts. Thie testified
that on April 28, 2020, he drove to the Cox and Hunter
properties, walked the roads, observed the conditions, met
with Cox and his attorney Clayton, met with Hunter, and
participated in devising a plan under which Cox would
repair the Bypass Road. Pet. App. 55a-56a. He testified
that by the time he returned to his office that day, he was
aware Cox had agreed to perform the repairs. Pet. App.
106a, ¶ 17. He testified that on April 29, he and Clayton
exchanged emails regarding Cox’s progress. Pet. App.
107a, ¶ 18. He testified that on May 6, before filing the
criminal complaint, he called Mrs. Hunter and learned
that Cox had in fact placed the culvert pipe and covered
12
it with dirt. Pet. App. 59a; Pet. App. 62a (“It had been
placed. It had dirt placed over it.”). He testified that he
made this call because he “wanted to get information on
whether the roadway had been restored before filing a
criminal complaint.” Pet. App. 108a, ¶ 23. If the road’s
condition was material to the prosecutor’s own charging
decision, it was necessarily material to the magistrate’s
probable cause determination. Illinois v. Gates, 462 U.S.
213, 240 (1983).
It is undisputed that none of this information was
presented to Magistrate Payne. Pet. App. 129a-130a. The
substantial showing is not based on contested testimony
or inferences drawn against the prosecutor. It is based on
what the prosecutor himself said, under oath, and chose
not to disclose. Illinois v. Gates, 462 U.S. 213, 240 (1983)
(inferences are to be drawn by neutral and detached
magistrates). Thie withheld from Magistrate Payne the
fact that he had personally investigated the matter, met
with the parties, negotiated a repair plan, learned that the
defendant had agreed to comply, and received evidence
that the repairs were underway or complete. None of this
information appeared in Vannatter’s affidavit, and Thie
did not supplement it.
The materiality of Thie’s omissions becomes vivid
when one considers what a truthful complaint might have
looked like. Rather than the bare recitation that Cox “on
or about April 23, 2020 . . . violated the protection order,”
a truthful and complete presentation should have included
language such as:
FURTHER, BRIAN D. THIE says: I met
and conferred with Mr. Cox, his attorney Mr.
13
Clayton, and Mr. Hunter on April 28, 2020,
at which time a plan was devised, that was
agreed to by Mr. Hunter and Mr. Cox, that the
bypass road to the Hunters would be restored.
Mr. Clayton and I continued to discuss the
road restoration by email, and David Cox
subsequently reported that the road had been
restored. I called Mrs. Hunter on May 6, 2020,
to ask whether the road had been restored, and
she told me she did not know if the road had
been restored.
Pet. App. 200a-201a. Had Magistrate Payne received this
or a similar truthful rendition, it would have put him “on
notice of the possibility, if not the probability, that the
Bypass Road problem had been resolved in the 13 days
between the alleged offense and the warrant application.”
The protection order prohibited Cox from degrading
the Hunters’ road access “to any significant degree.”
That language describes a condition, not a single past act.
Whether the condition persisted as of May 6 was central to
probable cause. A magistrate informed that the defendant
had agreed to repair the road, that a repair plan had been
devised, and that evidence of repair had been submitted
would have had, at minimum, material questions to ask
before issuing the warrant. The Franks analysis requires
asking whether the omitted facts would have been material
to the probable cause determination. Neither court below
discussed, much less asked, that question.
No decision of this Court holds that absolute
prosecutorial immunity excuses a court from conducting
the Franks materiality analysis. No circuit has so held in a
14
published opinion. Yet that is precisely what occurred here.
The lower courts treated the immunity determination
as dispositive of the entire case, including the judicial
deception claim, without examining whether the omitted
facts were material. Without guidance from this Court,
every circuit remains free to use absolute immunity to
bypass Franks—effectively enlarging prosecutorial
immunity by declining to perform the analysis this Court
designed to define its limits.
C.
The Lower Courts Were Required to Conduct
a Imbler/Buckley/Kalina Functional Analysis
and Failed to Do So
This Court’s prosecutorial immunity doctrine
requires a functional analysis before determining which
form of immunity applies. Imbler, 424 U.S. at 430-31;
Buckley v. Fitzsimmons, 509 U.S. at 269; Kalina, 522 U.S.
at 127 (immunity depends on “the nature of the function
performed, not the identity of the actor who performed
it”). The analysis examines what the prosecutor actually
did, act by act, and asks whether each act was an advocacy
function (absolute immunity) or something else (qualified
immunity). Neither court below performed this analysis.
Kalina is directly on point. There, a prosecutor who
personally prepared a certification of probable cause
and swore to the truth of the facts therein lost absolute
immunity because she was “performing the function
of a witness,” not an advocate. 522 U.S. at 129-31. The
same analysis applies here. Thie signed the criminal
complaint under oath. He acknowledged that his signature
constituted a “certification of probable cause.” Pet. App.
168a, ¶ 140. He certified probable cause while personally
15
knowing that the factual basis for the complaint was
materially incomplete. And that substantial events had
occurred between the alleged offense and the warrant
application that were nowhere reflected in the warrant
materials presented to the magistrate.
The district court distinguished Kalina on the
ground that Thie “did not personally attest to the facts
giving rise to probable cause” but instead “relied on
Deputy Vannatter’s . . . probable cause affidavit.” Pet.
App. 22a. That distinction does not withstand factual
scrutiny under Kalina’s functional approach. Thie did
not merely forward Vannatter’s affidavit as a ministerial
act. He personally reviewed the affidavit knowing it was
incomplete. He possessed material facts, acquired through
his own actions, that contradicted the affidavit’s implicit
premise that the road remained impassable. He signed the
complaint under oath and certified probable cause. Under
Kalina, a prosecutor who certifies facts under oath while
personally knowing those facts are materially incomplete
is performing the function of a witness, not an advocate.
The lower courts were required to conduct this functional
analysis before granting absolute immunity: They did not.
The district court’s reliance on Waggy v. Spokane
County, 594 F.3d 707, 713 (9th Cir. 2010), further
illustrates the failure to realistically engage with the facts.
In Waggy, the Ninth Circuit found absolute immunity
where a prosecutor submitted a bench warrant application
based on “facts alleged in supporting affidavits prepared
by others.” The critical distinction is one the district court
overlooked regarding Cox: in Waggy, the information
flowed from the affiant witnesses to the prosecutor. The
witnesses possessed the facts; the prosecutor presented
16
them. Here, the flow ran somewhat in the opposite
direction. Thie possessed material facts that Vannatter
did not. When Thie presented Vannatter’s affidavit to
the magistrate as sufficient, he was not relaying facts
developed by others: He was withholding facts developed
by himself. Waggy does not support absolute immunity
under these circumstances; It distinguishes them.
Thie’s investigative activity reinforces the need for
functional analysis. His April 28 site visit—traveling
to the parties’ properties, walking the roads, observing
conditions, interviewing parties on both sides, and
negotiating a resolution—was investigative activity, not
advocacy. Buckley, 509 U.S. at 273; see also Burns v.
Reed, 500 U.S. 478, 492-96 (1991). When a prosecutor
acquires material facts through such investigative work
and then withholds them during a subsequent warrant
presentation, the functional analysis must account for both
phases of the prosecutor’s conduct. A blanket grant of
immunity based solely on the advocacy label of the warrant
presentation ignores the investigative conduct that
preceded it, the certification under oath that accompanies
it, and distorts the advocacy conduct that follows it. The
lower courts’ error was not in applying the functional
approach incorrectly but, rather, in failing to apply it at all.
Describing the overall activity—presenting a warrant—
and assigning it the label “advocacy” is not the act-by-act
functional analysis that Buckley and Kalina require.
The functional approach demands disaggregation of the
prosecutor’s conduct: Each act must be independently
classified. When the lower courts treated Thie’s conduct
as a single undifferentiated transaction called “advocacy,”
they applied a label where the law requires an analysis.
17
D.
The Undisputed Facts Make This Case a
Suitable Vehicle
The Court may be concerned that this case involves
factual disputes that would make it a poor vehicle for
addressing the legal questions presented. That concern
is unwarranted. The facts that matter to the questions
presented are undisputed, established by Thie’s own
deposition and declaration testimony, and his verified
Answer to the Complaint.
The only significant factual dispute is whether
Thie promised Cox he would not be arrested if repairs
were made, and resolution of that dispute is clearly not
necessary to the judicial deception claim. What matters
under Franks is not whether a promise was made but
whether material facts were withheld from the magistrate.
That they were withheld is undisputed.
Furthermore, Thie’s own Answer to the Complaint
admits, in response to each of the four § 1983 counts, that
“the right to be free from unreasonable seizure is a clearly
established constitutional right that was in existence at
the times alleged.” Pet. App. 167a, ¶ 137. This concession
is significant. Under Pearson v. Callahan, 555 U.S. 223
(2009), courts have discretion to bypass the constitutional
merits in qualified immunity cases when the “clearly
established” prong disposes of the claim. But where the
defendant has conceded the right is clearly established,
Pearson’s rationale for bypassing the merits—that is,
judicial economy when the alternative ground resolves
the case—has no application. The courts below had no
alternative ground for disposing of the judicial deception
claim. They were required to address it.
18
E. The Unpublished Disposition Should Not
Preclude Review
The Ninth Circuit’s designation of its decision as
unpublished does not diminish the importance of the
questions presented. This Court has on occasion granted
certiorari to review unpublished lower court decisions
where important questions of federal law are at stake.
See, e.g., Jefferson v. Upton, 560 U.S. 284 (2010) (per
curiam) (vacating unpublished Eleventh Circuit decision
and remanding where the court of appeals applied an
incorrect analytical framework).
Indeed, the unpublished nature of lower courts’
dispositions of immunity issues is part of the problem.
Dismissing prosecutorial immunity and judicial deception
claims through unpublished opinions that contain no
analysis has the practical effect of expanding immunity
sub silentio. No circuit split can become visible because
the expansion occurs not through holdings that can be
reviewed, but through the silence of courts that simply
do not perform the analyses this Court designed to
define immunity’s boundaries. The Franks framework
becomes a dead letter for prosecutorial omissions—not
because any court has held it inapplicable, but because
no court is required to apply it. Moreover, unpublished
dispositions are unlikely to be reviewed at all—their very
nature discourages citizens from seeking certiorari and,
realistically, increases the skepticism with which such
petitions are received by this Court.
T h is Cou r t ha s recog n i zed the da nger that
constitutional law stagnates when courts resolve cases
on immunity grounds without addressing underlying
19
constitutional questions. In Saucier v. Katz, 533 U.S. 194,
201 (2001), the Court required lower courts to address
the constitutional merits before reaching the immunity
question, reasoning that failure to do so would prevent
the law from developing. While Pearson v. Callahan,
555 U.S. 223 (2009), relaxed Saucier’s rigid sequencing,
it reaffirmed the concern: Courts that routinely bypass
constitutional analysis deprive the law of necessary
development, and deprive citizens of constitutional
protections without analyzing the applicable constitutional
framework established by this Court. Here, both courts
below went further than Pearson permits. Rather than
exercising Pearson discretion to bypass a merits question
in an immunity case, both courts declined to conduct any
analysis at all of a claim that determines whether absolute
immunity applies in the first instance.
F.
The Decision Below Has Significant Practical
Consequences
If the decisions below are correct—which they are
not—a prosecutor may conduct a personal investigation,
acquire material information bearing on probable cause,
and then withhold that information from the magistrate,
all without risk of liability, because absolute immunity
attaches to the act of presenting the warrant even before
the court has examined what the prosecutor actually did.
Such a sequencing of the analytical framework regarding
immunity avoids examining what the prosecutor or officer
actually knew or failed to disclose.
That result would effectively eliminate the Buckley/
Kalina exception in any case where the prosecutor
possesses personal knowledge but does not draft
20
the affidavit himself. A prosecutor could investigate,
negotiate, observe, and learn material facts—then walk
into a magistrate’s chambers, present a stale and/or
incomplete affidavit prepared by someone else, certify
probable cause under oath, and claim absolute immunity
for the entire transaction because the act of presenting
the warrant was advocacy.
It would also render the Franks framework inapplicable
to prosecutors as a practical matter. Franks requires
that the warrant application present a truthful picture
to the magistrate. If the prosecutor controls the flow of
information to the magistrate but absolute immunity
prevents inquiry into what information the prosecutor
withheld, the “truthful showing” requirement has no
enforcement mechanism when the person withholding
facts is a prosecutor rather than a police officer.
The consequences for individuals are concrete. Samuel
Cox spent approximately sixty days in confinement,
including involuntary psychiatric commitment, on the
basis of a warrant issued by a magistrate who was never
told that the prosecutor had personally negotiated a
resolution to the underlying dispute, that the defendant
had agreed to comply, and that there was sound evidence
the defendant had in fact complied. The charge against
Cox was ultimately dismissed.
No court has properly evaluated whether Thie was
functioning as a witness, whether Cox made a substantial
showing meriting a materiality analysis, or whether, had
Magistrate Payne been fully informed, he would have
issued the warrant. Such a situation needs correction, not
21
only for Cox, but for citizens in the future confronted with
claims of absolute prosecutorial immunity.
III.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Chris A. Montgomery
Counsel of Record
Montgomery Law Firm
287 East Astor Avenue
P.O. Box 269
Colville, WA 99114
(509) 684-2519
mlf@cmlf.org
March 4, 2026
APPENDIX
i
TABLE OF APPENDICES
Page
A P PEN DI X A — M EMOR A N DU M OF
T H E U N I T ED S TAT E S C OU RT OF
APPEALS FOR THE NINTH CIRCUIT,
FILED OCTOBER 24, 2025 . . . . . . . . . . . . . . . . . . . 1a
A P P E N DI X B — DI S T R IC T C O U R T
M EMOR A N DU M DECI SION A N D
ORDER, FILED SEPTEMBER 3, 2024 . . . . . . . . . 5a
A PPENDI X C — J U DGMENT OF THE
UNITED STATES DISTRICT COURT
F OR T H E DI S T R IC T OF I DA HO,
FILED SEPTEMBER 3, 2024 . . . . . . . . . . . . . . . . 32a
A PPEN DI X D — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR T HE NIN T H CIRCU I T, FILED
DECEMBER 4, 2025 . . . . . . . . . . . . . . . . . . . . . . . . .34a
APPENDIX E — EXCERPTS OF DECLARATION
OF DEN N I S W. CL AY T ON, DAT ED
NOVEMBER 27, 2023 (ER 58–61) . . . . . . . . . . . . . 36a
A PPEN DI X F — EXCER P T S OF
A FFI DAV I T OF DEN N IS CL AY T ON
DAT ED M AY 19 , 2 0 2 0 A N D F I L ED
NOVEMBER 28, 2023 (ER 68–70) . . . . . . . . . . . . . 42a
APPENDIX G — EXHIBIT A TO CLAYTON
A F F I D AV I T- - P H O T O G R A P H S O F
POPLA R LA NE / ROA D CONDITION
(ER 74–76) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46a
ii
Table of Appendices
Page
APPENDIX H — EXCERPTS OF PLAINTIFF’S
RESPONSE OPPOSING MOTION FOR
S U M M A RY J U D GM EN T, DA T ED
NOVEMBER 27, 2023 (ER 115–117) . . . . . . . . . . . 49a
APPENDIX I — EXHIBIT 3 TO MONTGOMERY
DECLARATION DATED OCTOBER 20,
2 0 2 3 — EXCER P T S OF T R A NS CRI P T
OF BRIAN D. THIE DEPOSITION (ER
135–137) (ER 147–149) (ER 167–169) . . . . . . . . . . . . 54a
APPENDIX J — EXHIBIT 7 TO MONTGOMERY
DECLARATION DATED OCTOBER 20, 2023 -DISPATCH RECORDS (ER 209–211) . . . . . . . . . . 65a
APPENDIX K — EXHIBIT 9 TO MONTGOMERY
DECLARATION DATED OCTOBER 20,
2023 -- ARRAIGNMENT TRANSCRIPT
EXCERPTS (ER 225–227) . . . . . . . . . . . . . . . . . . . 69a
APPENDIX L — EXHIBIT 14 TO MONTGOMERY
DECLARATION DATED OCTOBER 20,
2023 -- DAVID COX DECLARATION AND
EXHIBITS (ER 247-252) . . . . . . . . . . . . . . . . . . . . . 73a
A P PEN DI X M — DEC L A R AT ION OF
SAMUEL COX, DATED OCTOBER 20, 2023
(ER 259–263) AND (ER 267–273) . . . . . . . . . . . . . . 82a
iii
Table of Appendices
Page
A PPENDIX N — EXHIBIT 1 TO LAURA
K . M A RK H A M DECL A R ATION,
DAT ED S EP T EM BER 2 9 , 2 0 2 3 —
M AGI S T R AT E J U D GE D OUGL A S P.
PAYNE’S PROTECTION ORDER, DATED
MARCH 11, 2020 (ER 376–378) . . . . . . . . . . . . . . . 97a
A PPEN DI X O — DECL A R AT ION
OF BR A N D ON D. T H I E , DAT ED
SEPTEMBER 27, 2023 (ER 429–435) . . . . . . . . . 102a
A PPENDI X P — EX HIBIT 1 TO THIE
DE C L A R A T ION — E XC E R P T S OF
DEPOSITION TR A NSCRIP T OF
BRIAN D. THIE (ER 462–464) . . . . . . . . . . . . . . 111a
A PPENDI X Q — EX HIBIT 2 TO THIE
DECL A R ATION - - T HIE EM A IL T O
CLAYTON (ER 538–542) . . . . . . . . . . . . . . . . . . . . 133a
A PPENDI X R — EX HIBIT 6 TO THIE
DECL A R AT ION - - C OM M I T M EN T
A N D CON FIN EM EN T RECORDS
(ER 547–550) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138a
APPENDIX S — DECLARATION OF BRANDON
VANNATTER DATED SEPTEMBER 25, 2023
(ER 556–558, 560) . . . . . . . . . . . . . . . . . . . . . . . . . . 141a
iv
Table of Appendices
Page
APPENDIX T — EXHIBIT 1 TO VANNATTER
DECL A R AT ION - E XCER P T S OF
DEPOSITION OF BRANDON VANNATTER
(ER 585–587, 601) . . . . . . . . . . . . . . . . . . . . . . . . . . 146a
APPENDIX U — EXHIBIT 3 TO VANNATTER
DECLARATION - VANNATTER PROBABLE
CAUSE AFFIDAVIT (ER 606–611) . . . . . . . . . . . 151a
APPENDIX V — EXHIBIT 5 TO VANNATTER
DECLARATION -- ARREST WARRANT
AND RETURN (ER 627–629) . . . . . . . . . . . . . . . 160a
A PPEN DI X W — E X H I BI T 6 T O
JENNIFER FEGERT DECLA RATION
FILED SEPTEMBER 28, 2023 - ORDER
OF DI S M I S S A L BY HONOR A BL E
DOUGLAS P. PAYNE (ER 659–661) . . . . . . . . . . 163a
A PPENDI X X — THIE’ S A NS W ER TO
C OM PL A I N T F I L ED J U N E 6 , 2 0 2 2
(ER 737–740) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165a
APPENDIX Y — EXHIBIT 1 TO MONTGOMERY
DE C L A R A T ION — A ER I A L V I E W,
DISPUTE LOCATION, ECF NO. 35-2 . . . . . . . . 171a
APPENDIX Z — EXHIBIT 2 TO MONTGOMERY
DE C L A R A T ION — A ER I A L V I E W,
DISPUTE LOCATION, ECF NO. 35-2 . . . . . . . . 172a
v
Table of Appendices
Page
APPENDIX AA — CRIMINAL COMPLAINT
IN THE DISTRICT COURT OF THE FIRST
JUDICIAL DISTRICT OF THE STATE
OF IDAHO, IN AND FOR THE COUNTY
OF BENEWA H, FILED M AY 6 , 2 0 2 0
(ER 650-651) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173a
A P P E N DI X A B — E XC E R P T F R O M
PLAINTIFF’S MEMORANDUM OPPOSING
THIE MOTION FOR SUMMARY, FILED
NOVEMBER 27, 2023 (ER 111-120) . . . . . . . . . . . 175a
APPENDIX AC — EXCERPT FROM APPELLANT’S NINTH CIRCUIT OPENING BRIEF 190a
APPENDIX AD — EXCERPT FROM APPELLANT’S NINTH CIRCUIT RESPONSE
BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208a
1a
A
APPENDIX A —Appendix
MEMORANDUM
OF THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED OCTOBER 24, 2025
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-5997
D.C. No. 2:22-cv-00199-AKB
SAMUEL A. COX,
Plaintiff-Appellant,
v.
BRIAN D. THIE, INDIVIDUALLY AND AS
BENEWAH COUNTY PROSECUTOR, HUSBAND
AND WIFE, AND THE MARITAL COMMUNITY
THEREOF; TRAVIS HUNTER, HUSBAND AND
WIFE, AND THE MARITAL COMMUNITY
COMPRISED THEREOF; TRISHA HUNTER,
HUSBAND AND WIFE, AND THE MARITAL
COMMUNITY COMPRISED THEREOF,
Defendants-Appellees,
and
JANE DOE THIE, HUSBAND AND WIFE, AND
THE MARITAL COMMUNITY THEREOF,
Defendant.
2a
Appendix A
Filed October 24, 2025
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Amanda K. Brailsford, District Judge, Presiding
Submitted October 22, 2025**
Portland, Oregon
Before: W. FLETCHER, CHRISTEN, and HURWITZ,
Circuit Judges.
Samuel Cox appeals from the district court’s summary
judgment in favor of defendants Brian Thie, Trisha
Hunter, and Travis Hunter. We have appellate jurisdiction
under 28 U.S.C. § 1291. “We review a district court’s
grant of summary judgment de novo and may affirm on
any ground supported by the record.” CFPB v. Gordon,
819 F.3d 1179, 1187 (9th Cir. 2016). We affirm.
1. Cox brought four claims under 42 U.S.C. § 1983
against Benewah County Prosecutor Brian Thie, alleging
unreasonable seizure, false arrest, malicious prosecution,
and false imprisonment in violation of the Fourteenth
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
3a
Appendix A
Amendment. The district court correctly found these
claims barred by absolute prosecutorial immunity.
It is undisputed that Trisha Hunter secured a state
court protective order against Cox in March 2020,
forbidding him from interfering with the Hunters’
“ingress or egress to their home.” In April 2020, despite
the order, Cox resumed ditching the roads near the
Hunters’ property, including the Bypass Road. Cox
concedes on appeal that his ditch “rendered the Bypass
Road impassable,” and admits that by April 28, 2020,
“[i]t was obvious that Mr. Cox had violated the protection
order.” On May 6, 2020, Thie submitted a signed criminal
complaint against Cox alleging violation of the protective
order to Benewah County Magistrate Judge Douglas
Payne.
Thie was acting squarely within the scope of his
prosecutorial duties in signing and submitting the
complaint. He is therefore entitled to absolute immunity
regarding his decision to pursue criminal charges. See
Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir. 2009)
(“A state prosecuting attorney enjoys absolute immunity
from liability under § 1983 for his conduct in ‘pursuing a
criminal prosecution’ insofar as he acts within his role as
an ‘advocate for the State’ and his actions are ‘intimately
associated with the judicial phase of the criminal process.’”
(quoting Imbler v. Pachtman, 424 U.S. 409, 410, 430, 431
n.33 (1976))). Thie’s immunity precludes all of Cox’s § 1983
claims against him.
4a
Appendix A
2. The district court was also correct to reject Cox’s
claim of malicious prosecution against Trisha Hunter,
acting on behalf of the marital community consisting of
herself and her husband, Travis Hunter. Under Idaho
law, a malicious prosecution claim requires, inter alia, a
showing that there was no probable cause for claimant’s
prosecution. Berian v. Berberian, 483 P.3d 937, 944-45
(Idaho 2020). Here, the record clearly shows that there
was probable cause for Cox’s arrest and prosecution due to
his violation of the protective order. Thie’s complaint was
accompanied by an affidavit of probable cause by Deputy
Brandon Vannatter describing the damage Cox had done
to the roads leading to the Hunters’ residence in violation
of his protective order. Upon receipt of the complaint and
affidavit, Judge Payne found probable cause and issued a
warrant for Cox’s arrest that same day. As noted above,
Cox concedes on appeal that it was “obvious” that he had
violated the protective order. The existence of probable
cause is fatal to the malicious prosecution claim.
The judgment of the district court is therefore
AFFIRMED.
5a
Appendix
B
APPENDIX B
— DISTRICT
COURT
MEMORANDUM DECISION AND ORDER,
FILED SEPTEMBER 3, 2024
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 2:22-cv-00199-AKB
SAMUEL A. COX,
Plaintiff,
v.
BRIAN D. THIE, INDIVIDUALLY AND
AS BENEWAH COUNTY PROSECUTOR;
TRAVIS HUNTER AND TRISHA HUNTER,
HUSBAND AND WIFE, AND THE MARITAL
COMMUNITY COMPRISED THEREOF,
Defendant.
Filed September 3, 2024
MEMORANDUM DECISION AND ORDER
This case arises from two arrests of Plaintiff
Samuel A. Cox, in Benewah County, Idaho, the first
occurring in May 2020 and the second in August 2020.
Cox alleges he was arrested and jailed without probable
cause based on Defendant Trisha Hunter’s complaints
and that Defendant Benewah County Prosecutor Brian
6a
Appendix B
Thie engaged in judicial deception to prosecute Cox.
Cox asserts the arrests violated his constitutional
rights and alleges 42 U.S.C. § 1983 claims against Thie
in his capacity as a prosecutor for the State of Idaho.
In support, Cox contends the criminal complaints Thie
filed omitted key facts and led to Cox’s arrest without
probable cause. Cox also brings a state law claim for
malicious prosecution against Mrs. Hunter1 based on her
complaints about him to the Benewah County Sheriff’s
Department.
Both Thie and Mrs. Hunter move for summary
judgment. The Court finds oral argument would not
significantly aid its decision-making process and
decides the motions on the parties’ briefing. Dist.
Idaho Loc. Civ. R. 7.1(d)(1)(B). See also Fed. R. Civ.
P. 78(b) (“By rule or order, the court may provide for
submitting and determining motions on briefs, without
oral hearings.”). For the reasons discussed below, the
Court grants both Thie’s and Mrs. Hunter’s summary
judgment motions.
1. Cox only asserts claims against Trisha Hunter, acting
on behalf of the marital community comprising herself and
her husband, Travis Hunter. Cox, however, does not allege any
individual claims against Mr. Hunter.
7a
Appendix B
I.
BACKGROUND
A.
Factual Background2
1.
2020 Civil Protection Order
The Hunters reside in Fernwood, Idaho with their
sons, including D.H., who is a minor. (Dkt. 28-4, T. Hunter
Decl. ¶ 2). In 2018, Cox acquired property adjacent to the
Hunters’ property. Around the same time, Cox’s brother
also acquired property adjacent to the Hunters’ property.
(Dkt. 35-4 at p. 2, D. Cox. Decl. ¶ 2). The parties access
their respective properties via mutual easements across
Poplar Drive, Sapling Lane, and the East Bypass Road.
In early 2020, a conflict arose between Cox and the
Hunters concerning the use and maintenance of the
roads subject to the mutual easements. (Dkt. 28-4, T.
Hunter Decl. ¶ 5). Cox contends he was attempting to
improve drainage on the roads by clearing ditches and
raising the roadbeds to reduce flooding. (Dkt. 35-4 at p.
30, 03/09/2020 S. Cox Decl. ¶ 8). He claims “[t]he purpose
and effect of his efforts was to eliminate flooding of the
easement roads.” (Dkt. 35 at p. 2). The Hunters, on the
2. Thie asks the Court to take judicial notice of court-certified
documents filed in connection with the criminal complaints against
Cox in the First Judicial District of the State of Idaho, in and for
the County of Benewah. (Dkt. 27-1 at pp. 4-5). See State of Idaho
v. Samuel Allen Cox, CR05-20-332; CR05-20-575. The Court
finds these documents meet the criteria for judicial notice under
Rule 201 of the Federal Rules of Evidence and grants Thie’s
request to judicially notice them.
8a
Appendix B
other hand, characterize Cox’s conduct as “a pattern of
agitating [them] and the neighboring property owners.”
(Dkt. 28-4, T. Hunter Decl. ¶ 8).
The conflict escalated between Cox and the Hunters,
and in February 2020, Mrs. Hunter filed a sworn petition
for a protection order, in which she asserted that “[Cox]
is our neighbor and he is causing problems with our legal
easement of the road leading to our residence.” (Dkt.
28-3 at p. 22). In this same petition, Mrs. Hunter outlined
a series of incidents involving Cox and his “run-ins”
with the Hunters and his other neighbors. Some of the
allegations included that: (1) in April 2019, Cox threatened
the Hunters’ children while they were four-wheeling; (2)
in January 2020, Cox threatened Mr. Hunter based on
the Hunters’ use of the Sapling Road; (3) in January 2020,
Cox “menacingly” drove by the school where Mrs. Hunter
works; (4) in February 2020, Cox “followed” Mrs. Hunter
from the school to a local pharmacy; (5) in February 2020,
Cox sicced his dog on a neighbor, who was walking her
dogs with her children; and (6) in February 2020, Cox told
another neighbor Cox would “kill” the Hunters if he saw
them working on or using the Poplar Drive and Sapling
Lane roads. (Id. at p. 6, T. Hunter Dep. 33:12-19).
Cox denies that he threatened the Hunters’ children
or Mr. Hunter, “menacingly” drove by the school where
Mrs. Hunter works, or followed her to the local pharmacy.
(Dkt. 35-4 at 30-32, 03/09/2020 S. Cox Decl. ¶¶ 7-16). Cox
admits, however, that he did attempt to sic his dogs on a
neighbor and frightened her. (Id. at p. 6, ¶ (v)). Regarding
his statement that he would “kill” anyone who messed with
9a
Appendix B
the roads, Cox does not recall saying it, but if he did, “it
was totally meant as a figure of speech [he] would have
used to describe [he] was upset.” (Id. at p. 30, ¶ 5).
In March 2020, a Benewah County Magistrate Judge,
the Honorable Douglas Payne, entered a protection order
against Cox after a full hearing. The protection order
prohibited Cox from interfering with the Hunters’ ingress
and egress to their property; in relevant part, it ordered
that “[Cox] shall not do anything to interfere with [the
Hunters’] ingress or egress to their home and shall not
do anything to the road they use for that purpose which
degrades their access to any significant degree.” (Dkt.
28-3 at p. 37, Trisha Hunter Deposition; Dkt. 27-4 at p.
7, Exhibit 1 to Fegert Declaration). Further, the order
prohibited Cox from going within 100 feet of the Hunters
and their children, except for “incidental, unintentional
contact . . . so long as in the ordinary course and not
intentionally extended or used to communicate.” (Id.).
2.
May 2020 Arrest
In April 2020, Cox dug ditches along both sides of the
East Bypass Road, piled dirt on the road, and plugged
culverts along the roadway. Mrs. Hunter reported Cox’s
conduct to the Sheriff’s Department, and Benewah
County Sheriff’s Deputy Brandon Vannatter responded
to Mrs. Hunter’s report. (Dkt. 27-3 at p. 2, Vannatter
Decl. ¶¶ 4, 5). Deputy Vannatter was familiar with Cox
“from responding to numerous previous incidents and
other complaints” from the Hunters, other neighbors, and
surrounding businesses. (Id. ¶ 7). According to Deputy
10a
Appendix B
Vannatter, the issues with Cox and his neighbors “had
been ongoing for several years.” (Id.).
In response to Mrs. Hunter’s report, Deputy
Vannatter initially spoke with Mrs. Hunter. (Id. at ¶ 5).
She told him the Hunters had a protection order against
Cox prohibiting him from interfering with the ingress
or egress to their property. (Id.). Mrs. Hunter further
explained Cox had been digging ditches along both sides of
the road leading to their property and piling dirt on road.
(Id.). Then, Deputy Vannatter viewed and photographed
“the roads [Cox] had been damaging.” (Id. ¶ 6). In Deputy
Vannatter’s view, Cox had made both Sapling Lane and
the East Bypass Road impassable. (Id. at p. 44, Vannatter
Dep. 53:2-20). Deputy Vannatter also spoke with Cox.
According to Deputy Vannatter, Cox refused to speak
with him in a civil manner and “became uncooperative
and aggressive.” (Dkt. 27-3 at p. 3, Vannatter Decl. ¶ 5).
Based on Deputy Vannatter’s independent investigation
into Mrs. Hunter’s complaint, Deputy Vannatter
concluded Cox had violated the protection order. He
prepared an incident report regarding his investigation
and Cox’s violation of the protection order. (Dkt. 27-3
at p. 2, Vannatter Decl. ¶ 9). In his report, Deputy
Vannatter requested that charges be brought against
Cox for violating the protection order. In support, Deputy
Vannatter also prepared a probable cause affidavit. (Id.).
On April 28, 2020, Dennis Clayton, an attorney who
represented Cox, contacted Thie. (Dkt. 27-2 at p. 2,
Thie Decl. ¶ 6). Clayton asked Thie if he would meet to
11a
Appendix B
discuss the conflict with the Hunters before charging Cox
with any crimes. (Id.). Thie agreed to meet on-site with
Cox and Clayton to observe first-hand the conditions of
the roads and the Hunters’ ingress and egress. Thie’s
understanding of the meeting’s purpose was to gather
information to determine whether to make a charging
decision. (Id. ¶¶ 7, 10).
Thie met with Clayton to briefly discuss the issues
involving Cox and the Hunters before proceeding to the
property to meet with Cox and his mother. (Dkt. 27-2 at
p. 2, Thie Decl. ¶ 6). While there, Thie observed Cox “had
severely ditched along both sides of Poplar Road, cutting
off access to the Hunters’ secondary access road, and
piled mud onto the roadway”; the road “had been ditched
out crudely and deeply and there was deep mud along the
sides of the road”; and the cattleguard at the intersection
of Poplar and Big Carpenter Creek was packed full of dirt
and rock. (Id. at ¶ 11). After observing the roads, Thie
discussed with Clayton ways to restore the East Bypass
Road to the Hunters’ residence. (Id. at ¶ 12).
Then Thie spoke with Mr. Hunter about his discussion
with Clayton. (Dkt. 27-2 at p. 4, Thie Decl. ¶ 13). Mr.
Hunter offered to provide PVC pipe for a culvert if Cox
agreed to install the culvert and repair the road, and
Thie conveyed this offer to Clayton. (Id. ¶ 14). According
to Thie, by the conclusion of his visit, nothing had been
decided, and Cox had neither agreed nor offered to
restore the road, except for spreading rock and gravel.
(Dkt. 27-2 at p. 4, Thie Decl. ¶ 15). Thie described Cox
as “uncooperative, agitated and aggressive” during the
12a
Appendix B
visit and said Cox “refused to have anything to do with
cleaning up the mess he had made, putting in the culvert
or cleaning out the cattleguard.” (Id.). Conversely, Cox
contends he eventually agreed to fix the road. (Dkt. 39,
Clayton Decl. ¶ 26). Regardless, when Thie returned to
his office, he found a note stating Clayton had called to
report Cox would install the PVC pipe if the Hunters
provided it. (Dkt. 27-2 at p. 2, Thie Decl. ¶ 17). Thereafter,
Thie exchanged emails with Clayton indicating Thie was
expecting Deputy Vannatter’s report; it would include a
referral for charges; but Thie hoped the matter could be
resolved without charging Cox. (Id. at p. 113).
On or about May 6, 2020, Thie received Deputy
Vannatter’s incident report and probable cause affidavit
stating Cox interfered with the Hunters’ ingress and
egress. (Id. at p. 5, Thie Decl. ¶ 20; Dkt. 35-2 at p. 12326, Vannatter Report). Deputy Vannatter’s report also
included several complaints by other individuals, about
which Thie had previously been unaware, including
complaints that Cox had damaged the roads and that
he had harassed his neighbors and their children. (Dkt.
35-2 at p. 123-26, Vannatter Report). The report also
stated Deputy Vannatter believed Cox had violated the
order, requested that Cox be charged with violating the
protective order, and requested a warrant for Cox’s arrest
issue. (Id.). Deputy Vannatter testified he made this
decision without any input from Thie. (Dkt. 27-3 at p. 16,
Vannatter Dep. 17:3-23).
Between meeting with Clayton and Cox and receiving
Deputy Vannatter’s report, Thie did not receive any
13a
Appendix B
information from Clayton or Cox about the status of the
road repair. (Dkt. 27-2 at p. 5, Thie Decl. ¶ 22). After
reviewing Deputy Vannatter’s report and probable
cause affidavit, Thie evaluated the case for charges
and determined probable cause existed to file criminal
charges. (Id. at p. 6, Thie. Decl. ¶ 23).
Thie then contacted Mrs. Hunter to get information
regarding the road’s condition. (Id. at p. 6, Thie Decl. ¶ 23).
Mrs. Hunter reported the road was still impassable; the
rocks had not been placed over the culvert; the intersection
of Poplar and Sapling had not been graded: and there
was more dirt in the cattleguard. (Id.). Mrs. Hunter also
reported that when her son and his friends had taken the
PVC pipe to the road, Cox stood on his property, while
looking at them, and fired several gunshots into the air.
(Dkt. 27-2 at p. 6, Thie Decl. ¶ 24).
Later that same day, on May 6, 2020, Deputy Vannatter
provided Thie with a supplemental report regarding Mrs.
Hunter’s complaint about Cox’s gunfire. (Id. ¶ 25). Thie
maintains this supplemental report did not play a role in
his decision to file charges against Cox because Thie had
already determined probable cause existed to believe
Cox had violated the protection order. (Id. at ¶ 26) Thie
did not speak with Cox, who maintains that he had fixed
the East Bypass Road and that it was passable by May 3.
(Dkt. 35-3, David Cox, Decl. ¶¶ 16-17).
Based on Deputy Vannatter’s initial report and his
probable cause affidavit, Thie filed a criminal complaint
against Cox for violating the protection order. (Dkt. 27-2
14a
Appendix B
at p. 6, Thie Decl. ¶ 26). Although Thie had talked with
Clayton about Cox’s repairing and restoring the roads,
Thie maintains he could not ignore the protection order.
(Id. ¶ 27). Judge Payne received the criminal complaint
after it was filed, but Thie did not inform Judge Payne that
Thie had met with Cox and his attorney or that Cox had
agreed to restore the road. (Id. at p. 77, Thie Deposition,
113:5-8;117:1-14). After reviewing Deputy Vannatter’s
probable cause affidavit and the complaint, Judge Payne
found probable cause to issue an arrest warrant and set
bail in the amount of $25,000. The criminal complaint did
not contain any charges related to Cox’s gunfire near the
Hunter children.
3.
Cox’s Arraignment, Competency Evaluation,
Commitment and Release
On May 6, 2020, Deputy Vannatter arrested Cox
pursuant to the arrest warrant, and on May 7, Judge
Payne arraigned him. During the arraignment, Cox
launched into an expletive-laced tirade because he felt he
“was ordered by the prosecuting attorney to do a physical
crime.” (Dkt. 35-2 at p. 106, Tr. 30-33). Cox called Judge
Payne a “dickhead,” a “cocksucker,” and a “motherfucker”;
told Judge Payne to “[s]tick it up [his] ass” when Judge
Payne asked if Cox understood his rights; threatened to
sue Judge Payne; and concluded his rant by saying, “Fuck
you, this conversation’s over . . . talk to my fucking lawyer,
asshole.” (Id. at pp. 105-06, Tr. 9, 34-53). Cox attributes
his “obnoxious” behavior at the arraignment to “Thie’s
having apparently reneged on the Agreement struck April
28, 2020.” (Dkt. 1 at ¶ 74).
15a
Appendix B
At the hearing’s conclusion, Judge Payne set Cox’s bail
at $200,000. (Dkt. 35-2 at p. 107, Tr. 54-56). Additionally,
Judge Payne entered an order modifying the protection
order to prohibit Cox from going “within 1000’ [feet] of any
of the protected persons [the Hunters and their children]
or their home unless necessary for the sole purpose of
ingress or egress to his own home or while in it.” (Dkt.
28-3 at p. 40).
Approximately, two weeks later, Thie and Cox’s
attorney, Michael Palmer, appeared before Judge Payne
on Cox’s motion to reduce his bond. At the hearing,
Palmer reported to Judge Payne that the parties had
reached a settlement agreement regarding bail and a civil
compromise. Judge Payne rejected the parties’ proposed
settlement agreement, however. In doing so, Judge Payne
expressed concern about Cox’s “out of control” conduct, his
“mental status,” and “public safety.” (Dkt. 27-2). Instead,
Judge Payne signed an order for a competency evaluation
of Cox and suspended all proceedings against Cox. (Id. at
p. 8). After the evaluation, Judge Payne signed an order
committing Cox to a State hospital for mental health
treatment. (Id. at p. 122-23). A month later, Judge Payne
ordered Cox released on his own recognizance and into the
custody of his mother or brother. Cox returned to his home
next to the Hunters upon his release. (Id. at p. 125-26).
4.
August 2020 Arrest
On August 12, 2020, the Hunters’ minor son, D. H.,
and his friend were driving to the Fernwood Mercantile
on a four-wheeler when Cox followed them in his vehicle
16a
Appendix B
for several miles and approached within six feet of the
four-wheeler. When the boys arrived at the Fernwood
Mercantile, they entered the store, as did Cox. D. H.
reported Cox stared at him and his friend while in the
store - although the store’s surveillance footage shows
Cox was only in the store for eleven seconds while the
boys were there. (Dkt. 28-3 at p. 54, D. Hunter Dep. 42:79). Later that day, Mrs. Hunter reported the incident to
Sheriff’s Department. (Dkt. 28-3 at p. 12-15, T. Hunter
Deposition, 75:5-25; 78:18).
Benewah County Sherriff’s Deputy Brad Hampton
responded to Mrs. Hunter’s report, visited with the
Hunters at their home, and spoke to D. H. The next day,
Deputy Hampton prepared an incident report requesting a
warrant for Cox’s arrest for his violating protection order
and for reckless driving. In support, Deputy Hampton
submitted his probable cause affidavit. Deputy Hampton
did not interview Cox about the incident, however, before
submitting his warrant request. (Dkt. 27-2 at p. 9, Thie
Decl., ¶¶ 39-40; Dkt. 27-4 at pp. 29-32).
On August 19, 2020, Thie filed a criminal complaint
against Cox for reckless driving and violating the
protection order again, and Judge Payne signed a probable
cause order and issued a warrant for Cox’s arrest. Deputy
Hampton arrested Cox at his home on August 21. (Dkt.
27-2 at p. 9, Thie Decl., ¶ 41; Dkt. 27-4 at pp. 34-40). Three
weeks later, on September 10, Mrs. Hunter contacted Thie
regarding the August 12 incident to report she had video
evidence of Cox tailgating the children. Thie asked Mrs.
Hunter for a copy of the video. Around the same time,
17a
Appendix B
Cox’s attorney, Palmer, contacted Thie to report Palmer
had surveillance video from the boys’ August 12 encounter
with Cox at the Fernwood Mercantile. Thie asked for a
copy of that video too. (Dkt. 27-2 at p. 9, Thie Decl., ¶ 42).
After Thie reviewed both the videos, he concluded he
could not prove beyond a reasonable doubt that Cox drove
recklessly during the April 12 incident. (Dkt. 27-2 at p.
10, Thie Decl., ¶ 44; Dkt. 27-2 at pp. 96-101, Thie Dep.,
153:19-25; 154:1-2; 155:5-12; 157:1-14; 157:20-25; 158:117). Eventually, Thie and Cox’s attorney negotiated to
resolve the issues between the State and Cox. Ultimately,
the matters against Cox were dismissed per the parties’
stipulation. On December 4, 2020, Judge Payne signed
orders of dismissal in both criminal matters. (Dkt. Thie
Decl., ¶ 44; Dkt. 27-2 at 100, Thie Dep., 157:16-18).
B. Procedural History
On May 4, 2022, Cox brought this action, alleging
(1) claims against Thie under 42 U.S.C. § 1983 and
asserting civil rights violations for unreasonable search
and seizure, false arrest, malicious prosecution, and false
imprisonment; and (2) a state law claim for malicious
prosecution against Mrs. Hunter. Both Thie and Mrs.
Hunter move for summary judgment. In his motion, Thie
argues he has absolute immunity, or in the alternative,
qualified immunity. Mrs. Hunter argues Cox cannot prove
any of the elements of malicious prosecution.
II. LEGAL STANDARD
Summary judgment is appropriate where a party can
show that, as to any claim or defense, “there is no genuine
18a
Appendix B
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Material facts are those that may affect the outcome of
the case, and a dispute about a material fact is genuine if
there is sufficient evidence for a reasonable jury to return
a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986). The mere existence of a scintilla of
evidence is insufficient. Id. at 252. Rather, “there must be
evidence on which the jury could reasonably find for the
[nonmoving party].” Id.
In deciding a summary judgment motion, the court
may consider evidence that can be judicially noticed under
Rule 201 of the Federal Rules of Evidence. Under Rule 201,
courts may take judicial notice of a fact which is not subject
to reasonable dispute either because it: (1) is generally
known within the trial court’s territorial jurisdiction, or
(2) can be accurately and readily determined from sources
whose accuracy cannot be reasonably questioned. Fed. R.
Evid. 201(b). The Court may take judicial notice of matters
of public record and government documents available from
reliable sources. Lee v. City of Los Angeles, 250 F.3d 668,
689 (9th Cir. 2001). A court may also take judicial notice
of another court’s opinion, “not for the truth of the facts
recited therein, but for the existence of the opinion, which
is not subject to reasonable dispute over its authenticity.”
Id. at 690.
19a
Appendix B
III. ANALYSIS
A.
Thie’s Summary Judgment Motion
Thie contends he is immune from liability under the
doctrine of absolute immunity. Prosecutors are entitled
to absolute immunity for their actions in “pursuing
criminal conduct” if they were acting as “advocates for
the state” and their conduct is “intimately associated
with the judicial phase of the criminal process.” Waggy
v. Spokane Cnty. Wash., 594 F.3d 707, 710 (9th Cir. 2010)
(quoting Cousins v. Lockyer, 568 F.3d 1063 (9th Cir. 2009)).
Absolute immunity protects against claims of malicious
prosecution, use of perjured testimony, and suppression of
material evidence. Imbler v. Pachtman, 424 U.S. 409, 430,
96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). “Without the promise
of immunity from suit, a prosecutor would be distracted
from his duties and timid in pursuing prosecutions rather
than exercising the independent judgment and discretion
that his office requires.” Lacey v. Maricopa Cnty., 693
F.3d 896, 912 (9th Cir. 2012). “At the same time, absolute
immunity is an extreme remedy, and it is justified only
where any lesser degree of immunity could impair the
judicial process itself.” Id. (internal quotation marks
omitted) (quoting Kalina v. Fletcher, 522 U.S. 118, 127,
118 S. Ct. 502, 139 L. Ed. 2d 471 (1997)).
Determining whether conduct is prosecutorial in
nature is an “inexact science.” Lacey, 693 F.3d at 912.
Courts take a “functional approach” to determine whether
conduct is prosecutorial, Buckley v. Fitzsimmons, 509
U.S. 259, 269, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993),
20a
Appendix B
and consider the “nature of the function performed, not
the identity of the actor who performed it.” Forrester
v. White, 484 U.S. 219, 229, 108 S. Ct. 538, 98 L. Ed. 2d
555 (1988). Under this approach, the Supreme Court has
held that prosecutorial conduct includes “initiating a
prosecution and . . . presenting the State’s case.” Imbler,
424 U.S. at 431. As a result, absolute immunity can protect
actions taken outside the courtroom and preliminary to
trial. Buckley, 509 U.S. at 272; see also Burns v. Reed,
500 U.S. 478, 486, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991)
(recognizing “the duties of the prosecutor in his role as
advocate for the State involve actions preliminary to the
initiation of a prosecution and actions apart from the
courtroom”).
Absolute immunity may protect many activities taking
place before a prosecution is officially instituted. Imbler,
424 U.S. at 431 n.33. For example, appearing in court in
support of an application for a search warrant, presenting
evidence at a hearing, evaluating evidence, interviewing
witnesses, and preparing charging documents are all acts
subject to the protection of absolute immunity. Kalina, 522
U.S. at 130-31; Buckley, 509 U.S. at 273; Burns, 500 U.S.
at 492. Giving legal advice to law enforcement, however,
is not. Burns, 500 U.S. at 496. Rather, a prosecutor
enjoys only qualified immunity, not absolute immunity, for
investigatory, administrative, or investigative functions
such as “gathering physical evidence and conducting
interrogations to determine whether a crime has been
committed and whether probable cause exists to arrest a
suspect.” Broam v. Bogan, 320 F.3d 1023, 1031 (9th Cir.
2003). Likewise, “a prosecutor sheds absolute immunity
21a
Appendix B
when she acts as a ‘complaining witness’ by certifying
that the facts alleged within an affidavit are true.” Waggy,
594 F.3d at 711 (citing Kalina, 522 at 132 (Scalia, J.,
concurring)).
Here, Cox asserts Thie is a “complaining witness,” not
a prosecutor, when he sought and procured the warrants
for Cox’s arrest. Citing the Supreme Court’s decision
in Kalina, Cox contends that “a prosecutor who signs a
criminal complaint under oath is functioning as a witness,
and not a prosecutor.” (Dkt. 35-1, p. 13). This assertion,
however, misconstrues the holding in Kalina.
In Kalina, the prosecutor initiated a criminal
proceeding by filing three documents, each based on
false facts: an information charging burglary; a motion
for an arrest warrant; and a probable cause certification
summarizing the evidence supporting the charge. 522 U.S.
at 120-21. The Supreme Court held that absolute immunity
protected the prosecutor’s “activities in connection with
the preparation and filing of” the information and the
motion for an arrest warrant. Id. at 129. It explained
these activities were “the work of an advocate and [were]
integral to the initiation of the prosecution.” Id. at 130.
“Indeed,” the Court further explained, “except for [the
prosecutor’s] act in personally attesting to the truth of
the averments in the certification, it seems equally clear
that the preparation and filing of the third document in
the package was part of the advocate’s function as well.”
Id. at 129.
Regarding the prosecutor’s personal attestation to the
facts alleged in the probable cause certification, however,
22a
Appendix B
the Court found the prosecutor was functioning as a
witness, not as an advocate:
Testifying about facts is the function of the
witness, not of the lawyer. No matter how brief
or succinct it may be, the evidentiary component
of an application for an arrest warrant is a
distinct and essential predicate for a finding
of probable cause. Even when the person who
makes the constitutionally required ‘Oath or
affirmation’ is a lawyer, the only function that
she performs in giving sworn testimony is that
of a witness.
Id. at 130-31. At common law, absolute immunity did not
protect the function of the complaining witness. Id. at
127. Because the prosecutor was acting as a “complaining
witness” when she personally vouched for the veracity of
the statements contained in the certification, the Court
held the prosecutor did not have absolute immunity.
Here by contrast, Thie did not function as a
“complaining witness” when he signed the criminal
complaints against Cox. Unlike the prosecutor in Kalina,
Thie did not personally attest to the facts giving rise to
probable cause. Instead, Thie relied on Deputy Vannatter’s
and Deputy Hampton’s probable cause affidavits and their
reports, which were submitted to Judge Payne with the
criminal complaints, to establish probable cause and
to procure the arrest warrants. When Thie filed the
two criminal complaints against Cox and presented the
deputies’ probable cause affidavits, he functioned in his
23a
Appendix B
traditional role as an advocate initiating and presenting
the State’s case. He is, therefore, entitled to absolute
immunity on all claims. Id. at 129; see also Waggy, 594
F.3d at 713 (concluding prosecutor acted “as a judicial
advocate before the court” when she submitted “a motion
for a bench warrant to the court applying the law to facts
alleged in supporting affidavits signed by witnesses” and
was entitled to absolute immunity); Tanner v. Heise, 879
F.2d 572, 578 (9th Cir. 1989) (concluding prosecutor had
absolutely immunity for instituting prosecution).
B. Mrs. Hunters’ Summary Judgment Motion
Cox also asserts claims of malicious prosecution
against Mrs. Hunter, alleging that “Mrs. Hunter’s sole
purpose in calling the Sheriff’s dispatcher about shots
fired by [Cox] five days earlier was to maliciously and
intentionally cause [Cox] to have more involvement with
law enforcement authorities, and thereby cause him
mental anguish.” (Dkt. 40 at p. 3). Cox further alleges
Mrs. Hunter’s conversation with Thie on May 6, 2020,
was also “motivated by malice.” In response, Mrs. Hunter
argues Cox cannot prove any of the elements necessary
to establish malicious prosecution.
Malicious prosecution is a tort which “runs counter
to obvious policies of the law in favor of encouraging
proceedings against those who are apparently guilty,
and letting finished litigation remain undisturbed and
unchallenged.” Prosser & K eeton, Torts (5th ed.), § 119,
p. 876. The interests of persons wrongfully prosecuted,
however, must also be protected. Balancing these interests,
24a
Appendix B
actions for malicious prosecution have historically been
limited by restrictions making such claims difficult to
maintain. See Badell v. Beeks, 115 Idaho 101, 765 P.2d 126,
127 (Idaho 1988) (“Actions for malicious prosecution are
not favored in law and, thus are limited by requiring the
plaintiff to establish several elements.”); Clark v. Alloway,
67 Idaho 32, 170 P.2d 425, 427 (Idaho 1946) (explaining
“actions for malicious prosecution are not favored in
law, hence have been hedged about by limitations more
stringent than in the case of almost any other act causing
damage to another”).
To recover for malicious prosecution under Idaho law,
a plaintiff must prove that: (1) there was a prosecution;
(2) it terminated in favor of the plaintiff; (3) the defendant
was the prosecutor; (4) the defendant acted with malice;
(5) probable cause was lacking; and (6) the plaintiff
sustained damages. Berian v. Berberian, 168 Idaho 394,
483 P.3d 937, 944-45 (Idaho 2020). “To sustain an action
for malicious prosecution, there must be a concurrence
of malice and want of probable cause. Neither, however
clearly established, will support an action in the absence
of the other.” Berian, 483 P.3d at 995 (quoting Clark, 170
P.2d at 428).
Cox contends Mrs. Hunter acted as “the prosecutor”
by “complain[ing] to law enforcement.” (Dkt. 38, 5:12-13).
Although the Idaho Supreme Court has never expressly
defined the term “prosecutor,” it has suggested the
“prosecutor” must somehow cause the plaintiff’s arrest.
Berian, 483 P.3d at 944. (“Galust and Julia asserted claims
of malicious prosecution, alleging that Ovanes made a false
25a
Appendix B
police report that caused the two to be arrested.”); see also
Moore v. United States, 213 F.3d 705, 710, 341 U.S. App.
D.C. 348 (D.C. Cir. 2000) (“In order to find that a defendant
procured a prosecution, the plaintiff must establish ‘a
chain of causation’ linking the defendant’s actions with
the initiation of criminal proceedings.”).
The Restatement (Second) of Torts § 653, comment g
provides additional guidance for determining whether a
private individual may be subject to liability for malicious
prosecution for providing statements to law enforcement
authorities:
A private person who gives to a public
official information of another’s supposed
criminal misconduct, of which the official is
ignorant, obviously causes the institution of
such subsequent proceedings as the official
may begin on his own initiative, but giving
the information or even making an accusation
of criminal misconduct does not constitute a
procurement of the proceedings initiated by
the officer if it is left entirely to his discretion
to initiate the proceedings or not. When a
private person gives to a prosecuting officer
information that he believes to be true, and
the officer in the exercise of his uncontrolled
discretion initiates criminal proceedings based
upon that information, the informer is not liable
. . . even though the information proves to be
false and his belief was one that a reasonable
man would not entertain. The exercise of the
26a
Appendix B
officer’s discretion makes the initiation of the
prosecution his own and protects from liability
the person whose information or accusation has
led the officer to initiate the proceedings.
If, however, the information is known by
the giver to be false, an intelligent exercise of
the officer’s discretion becomes impossible, and
a prosecution based upon it is procured by the
person giving the false information.
Restatement (Second) of Torts § 653, cmt. g (1977).
Thus, comment g distinguishes between situations in
which a private individual merely provides information
to an official who may initiate charges in his discretion
versus those in which a private individual either provides
knowingly false statements to an official or directs or
pressures an official to initiate charges, thereby making
the officer’s intelligent exercise of discretion impossible.
Id. See also Dickerson v. Monroe Cnty Sheriff’s Dep’t,
114 F. Supp. 2d 187, 190 (W.D.N.Y.2000) (“It is true that
civilians who merely report a crime are generally shielded
from liability for the tort of malicious prosecution.”).
In this case, Mrs. Hunter did nothing to bring about
Cox’s prosecution other than truthfully report in April
2020 that Cox had unilaterally ditched the roads and
interfered with their ingress and egress in violation of the
protection order. Deputy Vannatter independently viewed
the roads’ conditions and concluded Cox’s conduct violated
the protection order. Deputy Vannatter testified that he—
not Mrs. Hunter—made the decision to request charges
27a
Appendix B
against Cox in May 2020. (Dkt. 27-3 at p. 44, Vannatter
Dep. 51:4-18). Additionally, Thie independently concluded
probable cause existed to arrest Cox for violating the
protection order.
By contrast, both Deputy Vannatter and Thie
expressly disavowed that Mrs. Hunter’s May 6, 2020,
report of Cox’s gunfire resulted in Cox’s prosecution.
Rather, Deputy Vannatter requested that charges be
brought against Cox for violating the protection order in
his April 30, 2020 report – a week before Mrs. Hunter’s
report of Cox’s gunfire. Similarly, Thie testified he made
the decision to file criminal charges against Cox after he
reviewed Deputy Vannatter’s report and probable cause
affidavit. According to Thie, “Deputy Vannatter’s report
established probable cause to believe Cox was in violation
of the Court’s protective order.” (Dkt. 27-2 at p. 6, Thie
Decl. ¶ 26). In other words, Thie did not file charges
against Cox for violating the protection order based on
Mrs. Hunter’s report of Cox’s gunfire. Accordingly, Cox
fails to provide any evidence Mrs. Hunter knowingly
made any materially false statements resulting in his
prosecution.
Cox also fails to establish Mrs. Hunter acted with
malice for purposes of malicious prosecution. “[M]alice
refers to ‘the intentional commission of a wrongful or
unlawful act, without legal justification or excuse and
with ill will, whether or not injury was intended.’” Bliss
v. Minidoka Irrigation Dist., 167 Idaho 141, 468 P.3d 271,
286 (Idaho 2020) (quoting Beco Constr. Co. v. City of Idaho
Falls, 124 Idaho 859, 865 P.2d 950, 955 (Idaho 1993)). In
28a
Appendix B
Bliss, the Idaho Supreme Court found the plaintiff failed
to prove malice where “there were no materially false
statements made to the Sheriff’s office which affected the
crime charged.” Bliss, 468 P.3d at 286.
Likewise, here, Cox does not identify any materially
false statements Mrs. Hunter made to the Sheriff’s
Department that “affected the crime charged,” and
Cox fails to show Mrs. Hunter’s report of Cox’s gunfire
“affected the crime charged.” See id. To the contrary, as
noted above, Thie denied Mrs. Hunter’s report of gunfire
caused him to file criminal charges against Cox. Rather,
both Thie and Deputy Vannatter concluded that probable
cause existed to arrest and charge Cox for violating the
protection order based on their independent investigation
of Cox’s ditching the road in April 2020.
Even assuming Mrs. Hunter’s report of gunfire
caused Cox’s arrest, Cox cannot show Mrs. Hunter made
any material misrepresentations. The record shows that
Deputy Vannatter interviewed Mrs. Hunter with her
sons, who were present when Cox discharged his firearm.
Mrs. Hunters’ sons described to Deputy Vannatter what
occurred - not Mrs. Hunter. D. H. corroborated Mrs.
Hunter’s report and testified he was “alarmed” and “kind
of scared” due to Cox’s conduct. Moreover, Cox admits he
discharged his firearm “several” times on his property to
“scare” a coyote. Based on this evidence, Cox cannot prove
Mrs. Hunter materially misrepresented her report of
gunfire. Accordingly, Cox has failed to show Mrs. Hunter
acted with malice.
29a
Appendix B
Finally, Cox’s malicious prosecution claim fails
because he cannot show that the prosecutions against him
were initiated without probable cause. “[P]robable cause
consists of a belief in the charge or facts alleged, based on
sufficient circumstances to reasonably induce such belief
in a person of ordinary prudence in the same situation.”
Berian, 483 P.3d at 945 (quoting Clark v. Alloway, 67
Idaho 32, 170 P.2d 425, 428 (Idaho 1946)). Under Idaho
law, a magistrate judge’s independent finding of probable
cause, which was based on a full disclosure of the facts,
precludes, as a matter of law, a finding in a malicious
prosecution case that no probable cause existed. Berian,
483 P.3d at 945.
Here, Judge Payne found probable cause existed
to issue the May and August 2020 warrants for Cox’s
arrest. Despite Judge Payne’s probable cause finding,
Cox contends that “on May 6, 2020, [Mrs. Hunter] had
no reason to believe, and it can be reasonably inferred
that she did not believe, that there was probable cause to
think Mr. Cox firing gunshots five days earlier presented
a potential danger or threat to her, her family, or her
neighbors.” (Dkt. 40 at p. 8). But, as Cox admits, Judge
Payne did not consider Mrs. Hunter’s report of gunfire to
find probable cause to issue a warrant to arrest Cox for
violating the protection order. Cox, therefore, cannot show
there was any prosecution resulting from Mrs. Hunter’s
report of gunfire. Because Cox has failed to establish
the requisite elements for a malicious prosecution claim
against Mrs. Hunter, the Court grants Mrs. Hunter’s
summary judgment motion.
30a
Appendix B
C.
Attorney Fees
Both Thie and the Hunters request an award of
attorney fees and costs under Idaho Code § 12-121,
arguing Cox failed to advance a legitimate claim for relief.
Section 12-121 provides in relevant part:
In any civil action, the judge may award
reasonable attorney’s fees to the prevailing
party or parties, provided that this section shall
not alter, repeal or amend any statute which
otherwise provides for an award of attorney’s
fees.
Idaho courts have held that § 12-121 and Rule 54(e)
(1) of the Idaho Rules of Civil Procedure provide for
an award of attorney fees if the Court finds a party
“frivolously, unreasonably or without foundation” pursued
or defended against a claim. Ortiz v. Reamy, 115 Idaho
1099, 1101, 772 P.2d 737 (Ct. App. 1989). Whether to
award attorney fees under § 12-121 is within the trial
court’s discretion. Management Catalysts v. Turbo West
Corpac, Inc., 119 Idaho 626, 809 P.2d 487 (Idaho 1991). In
this case, the Court does not find Cox brought this action
frivolously, unreasonably, or without foundation and denies
Defendants’ request for fees.
IV. ORDER
IT IS ORDERED that:
1. Defendant Brian Thie’s Motion for Summary Judgment
(Dkt. 27) is GRANTED.
31a
Appendix B
2. Defendant Travis Hunter and Trisha Hunter’s Motion
for Summary Judgment (Dkt. 28) is GRANTED.
DATED: September 03, 2024
/s/ Amanda K. Brailsford
Amanda K. Brailsford
U.S. District Court Judge
32a
Appendix C OF THE UNITED
APPENDIX C — JUDGMENT
STATES DISTRICT COURT FOR THE DISTRICT
OF IDAHO, FILED SEPTEMBER 3, 2024
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 2:22-cv-00199-AKB
SAMUEL A. COX,
Plaintiff,
v.
BRIAN D. THIE, INDIVIDUALLY AND AS
BENEWAH COUNTY PROSECUTOR; TRAVIS
HUNTER AND TRISHA HUNTER, HUSBAND
AND WIFE, AND THE MARITAL COMMUNITY
COMPRISED THEREOF,
Defendants.
In accordance with this Court’s September 3, 2024,
Memorandum Decision and Order granting Defendant
Brian Thie’s Motion for Summary Judgment (Dkt. 27)
and Defendant Travis Hunter and Trisha Hunter’s Motion
for Summary Judgment (Dkt. 28), IT IS HEREBY
ORDERED, A DJUDGED, A ND DECREED that
judgment be entered in Defendants’ favor and that this
case is DISMISSED WITH PREJUDICE.
33a
Appendix C
DATED: September 03, 2024
/s/ Amanda K. Brailsford
Amanda K. Brailsford
U.S. District Court Judge
34a
Appendix
D UNITED STATES
APPENDIX D — ORDER
OF THE
COURT OF APPEALS FOR THE NINTH CIRCUIT,
FILED DECEMBER 4, 2025
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-5997
D.C. No. 2:22-cv-00199-AKB District of Idaho, Boise
SAMUEL A. COX,
Plaintiff-Appellant,
v.
BRIAN D. THIE, INDIVIDUALLY AND AS
BENEWAH COUNTY PROSECUTOR, HUSBAND
AND WIFE, AND THE MARITAL COMMUNITY
THEREOF; et al.,
Defendants-Appellees,
and
JANE DOE THIE, HUSBAND AND WIFE, AND
THE MARITAL COMMUNITY THEREOF,
Defendant.
Filed December 4, 2025
35a
Appendix D
ORDER
Before: W. FLETCHER, CHRISTEN, and HURWITZ,
Circuit Judges.
Appellant filed a petition for rehearing or rehearing
en banc on November 7, 2025 (Dkt. 55). The panel
has unanimously voted to deny the petition for panel
rehearing. Judge Christen has voted to deny the petition
for rehearing en banc, and Judge W. Fletcher and Judge
Hurwitz have so recommended.
The full court has been advised of the petition for
rehearing en banc, and no judge of the court has requested
a vote on whether to rehear the matter en banc. Fed. R.
App. P. 40.
The petition for rehearing or rehearing en banc is
DENIED.
36a
AppendixOF
E DECLARATION OF
APPENDIX E — EXCERPTS
DENNIS W. CLAYTON, DATED NOVEMBER 27, 2023
(ER 58–61)
***
(2) I am an attorney, licensed to practice law in the State
of Washington.
(3) In 2019, I was contacted by David and Sam Cox about
legal problems involving their recently purchased
property in Benewah County, Idaho. I conferred
with them and referred them to Idaho attorney Chris
Montgomery.
(4) In February, 2020, a Petition for Protection Order
was filed against Sam Cox by his neighbor, Trisha
Hunter.
(5) Mr. Montgomery entered a notice of appearance and
represented Sam Cox in that dispute, and I assisted
Mr. Montgomery.
(6) On March 11, 2020, Magistrate Douglas Payne
granted Trisha Hunter’s petition. Defendants’ Joint
Statement of Material Facts, ¶ 11.
(7) In relevant part, the Protection Order provided that:
Respondent [Sam Cox] shall not do anything
to interfere with Protected persons ingress or
egress to their home and shall not do anything
37a
Appendix E
to the road they use for that purpose which
degrades their access to any significant degree.
Id.
(8) On May 6, 2020, Mr. Cox was arrested for violation
of the protection order entered by Magistrate Payne
on March 11, 2020. A few days after Mr. Cox was
arraigned (May 7, 2020) Coeur d’ Alene attorney
Michael Palmer entered a notice of appearance on
behalf of Mr. Cox.
(9) The following paragraphs reflect in large part a
Declaration I prepared the week of May 18, 2020,
at the request of Michael Palmer.
(10) From conversations with Mr. Palmer, it was my
understanding he planned on using my declaration
for Sam’s bond hearing before Magistrate Payne
on May 20,2020. See Exhibit 1, attached hereto,
Declaration of Dennis W. Clayton, which is a true
and correct copy of the declaration I provided Mr.
Palmer on or about May 19, 2020. Exhibit 1 was
provided to defense counsel as part of Plaintiff’s
Initial Disclosures.
(11) For reasons of which I am not aware, it is my
understanding that the Declaration was not used by
Mr. Palmer, and a bond was not set at the hearing.
(12) Early in the morning on April 24, 2020, I received
a call from Jackie Tomsha, the mother of Sam Cox,
38a
Appendix E
who advised me that Sam had been contacted by
Deputy Vannatter, who told him that he was being
investigated for violation of the Protection Order
entered by Magistrate Payne on March 11, 2020.
(13) In response, I called Sheriff Resser to inquire about
the problem. We briefly discussed the matter, and he
referred me to Benewah County Prosecutor Brian
Thie.
(14) I called Mr. Thie on April 24, right after talking to
Sheriff Resser. Mr. Thie advised me that Deputy
Vannatter had taken a report from Trisha Hunter on
April 23, 2020, regarding damage Sam had allegedly
done to the roads used by Mr. and Mrs. Hunter to
get to and from their home from Carpenter Creek
Road.
(15) Mr. Thie advised me that, based on the foregoing
matters, Deputy Vannatter determined that he would
seek a warrant for the arrest of Sam Cox.
(16) Mr. Thie advised me that his plan at the moment was
to have Sam arrested. He said his most immediate
concern was to make sure this whole conflict between
Mr. Cox and the Hunters didn’t result in somebody
being injured.
(17) I suggested that he and I meet with Sam Cox at
his property, to inspect the scene and see if some
alternative could be reached. We agreed to meet the
following week.
39a
Appendix E
(18) On April 28,2020,1 met Mr. Thie at his office, and
after a brief conversation we proceeded to Sam’s
property south of Femwood.
(19) Mr. Thie and I looked at the ditching along each side
of Poplar Drive and the roadway surface, including
the ditching in front of Hunters’ secondary road, as
well as the cattleguard near the Carpenter Creek
Bridge at the east end of Poplar Drive.
(20) It appeared that shortly before Mr. Thie and I
arrived, 2 to 3-inch rock had been delivered and
spread on Poplar Drive.
(21) We also looked at various survey markers located
along the south border of Sam’s property, near the
Potlatch bypass, trying to understand the probable
location of boundary lines – which we were not able
to do. Then Mr. Thie left us and drove up Sapling
Lane to talk with the Hunters.
(22) Fifteen or twenty minutes later, Mr. Thie returned,
having just spoken to Mr. Hunter.
(23) Standing at the east end of Poplar Drive with Mr.
Thie, he advised me that Mr. Hunter had a PVC pipe
available to place at the intersection of the secondary
easement and Poplar Lane, which could be buried at
the secondary road where it intersects with Poplar
Drive in order to restore access to the Hunters’
secondary road.
40a
Appendix E
(24) Mr. Thie and I decided to tell Mr. Cox what Mr.
Hunter had said, and waived at him to join us from
where he was standing at the other end of Poplar
Drive, which he did.
(25) At this point, Mr. Thie, Mr. Cox and I were standing
together within a conversational distance. Thie
Declaration, ¶ 16.
(26) Mr. Thie and I asked Sam if he would place and
cover the PVC pipe if Mr. Hunter brought it to the
site, if he would repair the Potlatch bypass, and if
he would agree to do nothing more to the roads or
ditches without first getting permission from Mr.
Thie and me. Mr. Cox briefly opposed fixing the
secondary bypass, firmly expressing some concern
about federal wetlands policy, and said he wouldn’t
do it because he did not want to violate federal law.
(27) Mr. Thie said if Sam did not fix the Hunters’
secondary access, he would be arrested. I urged
Sam to reconsider, and while the three of us were
standing on Poplar Drive, Sam agreed to fix Hunters’
secondary road. See Exhibit 1, attached hereto,
¶¶ 21-23.
(28) Mr. Thie said that if he did so, Sam would not be
arrested.
(29) Mr. Cox was somewhat loud when asked if he would
fix the access to Hunters’ secondary road, expressing
some sort of concern regarding federal wetlands
41a
Appendix E
policy. Other than that, Mr. Cox was not loud and
obstinate during the viewing of the roadways on
April 28, 2020. Nor was he acting in any way that
could reasonably be interpreted as aggressive. Mr.
Thie again said to me, while Mr. Cox was standing
next to us, that if he did not fix the access to Hunters’
secondary road, he would be arrested. At that point
I reminded Mr. Cox that he would not want to go to
jail when he could avoid it by fixing the access to the
secondary road, and at that point he agreed to fix it
if Mr. Hunter would provide the PVC culvert pipe.
(30) On May 1, 2020, the Hunters’ boys and some of
their friends transported the culvert pipe to the
intersection of Poplar Lane and the secondary road.
Montgomery Declaration, Exhibit 8, Dakota Hunter
Deposition, pp. 22-25.
(31) On the evening of May 1, 2020, Sam Cox covered
the pipe with dirt, making Hunters’ secondary road
accessible. Sam Cox Declaration, ¶ 55.
(32) Dave Cox was visiting Sam that weekend, and I asked
Dave to take pictures of the site, showing the covered
pipe, and email them to me as soon as possible. Dave
Cox Declaration, ¶17; Exhibit 1, attached hereto,
¶¶ 26-27.
***
42a
Appendix FOF AFFIDAVIT OF
APPENDIX F — EXCERPTS
DENNIS CLAYTON DATED MAY 19, 2020 AND
FILED NOVEMBER 28, 2023 (ER 68–70)
***
17. On April 28, I met Mr. Thie at his office, and we
proceeded to Sam’s property south of Fernwood,
located just off of Big Carpenter Creek Road, where
we met up with Sam and his mother, Jackie Tomsha,
18. Mr. Thie and I inspected the ditching along each side
oof Poplar Lane and the roadway surface, including
the ditching in front of Hunters’ secondary easement
road, as well as the cattle guard near the Carpenter
Creek Bridge.
19. With Sam and his mother, we also inspected the
portion of a turn-out that PotlatchDeltic had installed,
which Sam had excavated as part of his drainage ditch
project, as to which PotlatchDeltic had complained to
law enforcement officials. We also inspected various
survey markers located along the south border of
Sam’s property, near the PotlatchDeltic turn-out,
trying to decipher the probable location of boundary
lines.
20. Mr. Thie had learned that Mr. Hunter had a culvert
pipe available to place at the intersection of his
secondary easement and Poplar Lane, which could be
buried at the intersection. thus providing a continuing
drainage path coinciding with the drainage ditch Sam
had dug in front of the secondary easement.
43a
Appendix F
21. Mr. Thie and I asked Sam if he would place and cover
the culvert pipe if Mr. Hunter brought it to the site,
thereby providing passage over the ditch and onto
Hunters’ secondary easement. Sam agreed to do that.
22. Mr. Thie and I also asked Sam if he would agree to
smooth out the surface of the turn-out near the south
boundary of his property, so that it would again be
suitable for vehicles to travel over. Sam agreed to do
that.
23. Mr. Thie and I asked Sam if he would commit to
making absolutely no additional alterations or
excavations on or near the easement mads, pending
further discussions with interested property owners.
Sam agreed to that.
24. In our initial telephone conversation, Mr. Thie had
mentioned other things he wanted done, such as
cleaning out the cattle guard. I asked him to email
to me a list of those things, which he did a day and a
half later.
25. The following weekend, the Hunters’ boys transported
the culvert pipe (eight-inch PVC sewage pipe) to
the intersection of Poplar Lane and the secondary
easement.
26. On either Saturday or Sunday, Sam placed the pipe
and covered it with dirt. Sam’s brother Dave was
present when this was done, and I had asked Dave to
take pictures of the site, showing the covered PVC
pipe, and send them to me as soon as possible.
44a
Appendix F
27. He sent a picture of the buried PVC pipe to my email
address, as requested, the evening of May 3, 2020.
See Exhibits G. I was relieved to see that Sam had
fulfilled that part of the agreement, and that
28. On May 6, 2020, I received a call from Mr. Thie,
advising me that although Sam had buried the pipe,
as agreed, he did not Jay gravel underneath it, and
so it was sinking.
29. Mr. Thie further advised me that when the Hunters’
boys and some of their friends were down by the
Carpenter Creek Bridge, delivering the PVC pipe
to the ditch for Sam to bury, Sam was firing multiple
gunshots from his property (approximately 800 feet
away).
30. Finally, Mr. Thie said things had now just gone too far,
and he was having Sam arrested, and just wanted to
give me a heads-up. I thanked him for the information.
31. Sam was arrested May 6, 2020.
32. I called Chris Montgomery and advised him that Sam
was going to be arrested, and asked if be would enter
a notice of appearance on Sam’s behalf.
33. Due to his caseload, Chris was unable to enter a notice
of appearance on Sam’s behalf, and I referred him to
Michael Palmer.
34. Based on Mr. Thie’s statements, I envisioned Sam
physically intimidating the Hunters’ boys and their
45a
Appendix F
friends, and/or staring at them menacingly while
firing his gun, or engaging in some similar conduct
to frighten and harass the boys.
35. Upon reading the Supplemental Report of Deputy
Vannatter, reflecting his conversations with the
Hunter family on May 6, 2020, it was clear that Sam
was not harassing or intimidating the Hunters boys or
their friends, and that they apparently had no issues
with Sam and did not believe the gunshots were fired
for the purpose of harassment or intimidation.
36. It is my impression that the acute factors precipitating
Sam’s arrest are those facts summarized in paragraphs
28 and 29, above.
37. On May 12, 2020, I went to the property myself to
inspect and photograph the condition of the passage
way from Poplar Lane onto the Hunters secondary
easement, as well as the PotlatchDeltic turn-out. See
Exhibits C, D, and E.
38. I drove over the passage from Poplar Lane to
Hunters’ secondary easement with no problem. It
is my impression that the passage had been further
smoothed out after Sam placed and covered the PVC.
39. I drove over the PotlatchDeltic turn-out, and it
too was passable, although it could use additional
smoothing and leveling.
***
46a
G A TO CLAYTON
APPENDIX G —Appendix
EXHIBIT
AFFIDAVIT--PHOTOGRAPHS OF POPLAR LANE /
ROAD CONDITION (ER 74–76)
47a
Appendix G
48a
Appendix G
49a
Appendix H OF PLAINTIFF’S
APPENDIX H — EXCERPTS
RESPONSE OPPOSING MOTION FOR SUMMARY
JUDGMENT, DATED NOVEMBER 27, 2023
(ER 115–117)
***
The foregoing principles discussed in Chism and
Stanert are applicable to and determinative of the issue
of judicial deception in this case.
First, Mr. Thie apparently believed that resolving the
dispute between Mr. Cox and the Hunters was of sufficient
importance to travel thirty or forty miles roundtrip to and
from the disputants’ property, talk with them, and devise
a plan they agreed with.
Second, on May 6, 2020, Mr. Thie reported to
Magistrate Payne such facts as existed on April 23, 2020
– at the time of Deputy Vannatter’s talk with Mrs. Hunter
and Mr. Cox – but omitted facts as they existed on April
28, 2020, or at the time he appeared before Magistrate
Payne seeking an arrest warrant, that is, those facts set
forth at PSOMF, ¶ 21.
Third, Mr. Thie knew that Deputy Vannatter’s
affidavit of probable cause – which was submitted by Mr.
Thie to Magistrate Payne along with the complaint and
the arrest warrant his office prepared – did not contain
any reference to Mr. Thie’s interaction with Mr. Cox, Mr.
Hunter and Mr. Clayton on April 28, 2020. Based on the
record developed so far in this case, as between Deputy
Vannatter, Magistrate Payne and Mr. Thie, only Mr. Thie
50a
Appendix H
knew of his interaction with Mr. Cox, Mr. Hunter, and
Mr. Clayton.
Fourth, like WSP Officer Gardner in the Chism case,
the facts omitted by Mr. Thie in the course of pursuing a
warrant for the arrest of Mr. Cox were facts of which he
had personal, first-hand knowledge.
Fifth, not disclosing to Magistrate Payne his
interactions on April 28, 2020 with Mr. Cox, Mr. Hunter,
and Mr. Clayton guaranteed that Magistrate Payne would
not ask questions.
Based on the foregoing principles and facts, Mr. Cox
has made a substantial showing that Mr. Thie’s conduct
amounted to an intentional or reckless disregard for the
truth.
As stated by the Court in Chism, Mr. Cox must also
demonstrate that the omitted facts were material to
Magistrate Payne’s decision regarding probable cause. In
that regard, the Supreme Court has instructed magistrate
judges to determine probable cause by considering the
“totality-of-the-circumstances.” Illinois v. Gates, 462
U.S. 213, 235 (1983) (citing Spinelli v. United States, 393
U.S. 410, 419 (1969).
Full disclosure to Magistrate Payne of material
facts would have disclosed the facts as alleged by Deputy
Vannatter in his probable cause affidavit as of April 23,
2020 and the facts as experienced by Mr. Thie on April
28, 2020. That is, Magistrate Payne would have been
51a
Appendix H
informed of the omitted facts listed in PSMOF ¶ 21. It may
be reasonably concluded that fully informing Magistrate
Payne of the omitted facts would have apprised him of the
“totality-of-circumstances,” and have led him to ask “If
Mr. Cox agreed to fix things, and Mr. Hunter provided the
culvert, at this time do you really believe there is probable
cause to believe he is violating the protection order?” Or
“Shouldn’t you have a deputy go out and see if Mr. Cox
fixed things, just in case Mrs. or Mr. Hunter might not
tell the truth about it?”
It is clear that Magistrate Payne placed importance,
at least to some significant degree, on the complaint
submitted by Mr. Thie, explaining to Mr. Cox at his
arraignment as follows:
That complaint was signed by Brian Thie on
the 6th of May. As a result of that complaint,
a warrant was issued for your arrest and bail
was set in the amount of twenty five thousand
dollars.
Montgomery Declaration, Exhibit 9, p. 2, lines 24-27.
By omitting material facts from Magistrate Payne’s
consideration, Mr. Thie assumed for himself the task of
determining probable cause, and deprived Magistrate
Payne of the opportunity to function as a neutral and
detached decision-maker. See United State v. Barnes,
845 F.3d 1194, at 1199: (discussing judicial abandonment
– not asserted in the present case – but explaining the
important function of neutral and detached magistrates
in determining probable cause).
52a
Appendix H
Had Mr. Thie fully informed Magistrate Payne of the
facts (see PSOMF ¶ 21), it can be reasonably concluded that
he would not have signed the arrest warrant presented by
Mr. Thie for his signature.
1.
QUALIFIED IMMUNITY
Mr. Thie is entitled to qualified immunity unless: (1)
Mr. Cox has “ma[de] out a violation of a constitutional
right,” and (2) “the right at issue was ‘clearly established’
at the time of [the officers’] alleged misconduct.” Pearson
v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v.
Katz, 533 U.S. 194, 201(2001)). Thus, do the facts alleged
by Mr. Cox, taken in a light most favorable to him as the
party asserting the injury, show that Mr. Thie’s conduct
violated a constitutional right? Mr. Cox alleges that Mr.
Thie’s conduct violated his right to be free from seizure
pursuant to a warrant obtained through judicial deception.
A seizure conducted pursuant to a warrant obtained by
judicial deception violates the Fourth Amendment. Butler
v. Elle, 281 F.3d 1014, 1024 (9th Cir.2002). Evidence
presented by Mr. Cox demonstrates that Mr. Thie was the
functional proponent and moving force behind Magistrate
Payne’s issuance of the arrest warrant on May 6, 2020,
and in the course of obtaining the warrant, Mr. Thie
intentionally or recklessly failed to apprise Magistrate
Thie of material facts.
Finally, the right to be free from unreasonable
seizure was a clearly established right in 2020. Chism v.
Washington, 661 F.3d, at 383. Therefore, Mr. Thie is not
entitled to qualified immunity.
53a
Appendix H
2.
Plaintiff Cannot Prove All Elements of
a 42 U.S.C. SECTION 1983 Malicious
Prosecution Claim.
As discussed above, Mr. Thie is entitled to neither
absolute nor qualified immunity.
a.
Plaintiff Can, In Fact, Show That Prosecutor
Thie Acted With Malice
Regarding the first arrest, Mr. Thie failed to fully
disclose material facts regarding his interactions with
Mr. Cox, Mr. Hunter and Mr. Clayton, as well as the fact
that Mr. Cox agreed to restore, and did restore, access
to the secondary road and the Potlatch bypass. Mr. Cox
contends he had an agreement with Mr. Thie, that is,
if he restored access to the secondary road and fixed
the Potlatch bypass road he would not be arrested. Mr.
Thie denies there was any such agreement. In any event,
the eight days following his meeting with Mr. Cox were
uneventful. Within a matter of hours after Mrs. Hunter
called in a complaint about Mr. Cox firing gunshots that
occurred five days earlier, Mr. Thie called her to get her
views of things, and Mr. Cox was in jail by early evening
on May 6, 2020.
***
54a
Appendix
I MONTGOMERY
APPENDIX I — EXHIBIT
3 TO
DECLARATION DATED OCTOBER 20, 2023—
EXCERPTS OF TRANSCRIPT OF BRIAN D. THIE
DEPOSITION (ER 135–137) (ER 147–149) (ER 167–169)
Brian D. Thie—March 23, 2023
2:22-cv-199
***
[11] recognize the topography of Exhibit No. 2. And I see
on Exhibit No. 1 you have Fernwood marked.
Q. Correct. And it shows Highway 3.
A. Yes.
Q. So you’re generally familiar with that area?
A. Yes.
Q. Would you say more or less than Exhibit 2, in terms
of your familiarity?
A. I don’t understand what your question is.
Q. Let me rephrase it. Are you more or less familiar
with Exhibit 1 versus Exhibit 2?
A. This is the first time I’ve seen either exhibit. So
I’m not more familiar with one or the other. Although I
recognize the content on Exhibit 2 more than the content,
of which there’s less, on Exhibit 1.
55a
Appendix I
Q. Okay.
A. In other words, it’s easier for me to orient myself
on Exhibit 2 than it is on Exhibit 1.
Q. In the course of investigating this case, I’ve come
across a number of names. And I’d like to know which
names sound familiar with you—that you just recognize
and then which names of people you are acquainted with
and then the context in which you are familiar with any
of them. So I’m just going to go
***
[25] Q. And what is your recollection?
A. It was the date that I met Dennis Clayton out at
their property at Dennis Clayton’s invitation. And after
Dennis Clayton and I talked for a while, walked around,
looked around, I went up to the Hunters’ house and
spoke with Travis Hunter. So in relationship to the April
incident, that was the first time I spoke to the Hunters
that I recall.
Q. And what was the nature of your discussion with
Mr. Hunter?
A. My nature of my discussion with him would have
been as what you might call victim’s advocate, my role
as victim’s advocate, to get his view on what was going
on out at the property in regards to the violation of a nocontact order.
56a
Appendix I
Q. And what was your understanding of his perception?
A. He wasn’t very happy with Sam Cox.
Q. Well, did he come—did you and he come up with
any sort of plan of action after you spoke with him?
A. With?
Q. Mr. Hunter.
A. No.
Q. So your purpose of speaking to him was what?
[26] A. To get his input.
Q. Okay. And other than him being upset with—
A. Oh, one plan of action, yes. And that was for him
to deliver—possibly deliver a piece of—not conduit—but
culvert. That was the only plan of action that we would
have—that he would have done. Otherwise, I was just
interested in what his views of the situation were, to see
if I could—or to see what I could do in the case to get it
resolved one way or the other.
Q. Before that date had you ever gone out to the
Hunters’ residence to talk with Trisha or Travis Hunter
about Sam Cox?
A. Nope. That date that I went out there with Dennis
Clayton was the first and only time I’ve been out there.
57a
Appendix I
Q. So in April of 2020, either before or after April
23rd, had you discussed Sam Cox with Sheriff Resser—is
it Resser or Resser?
A. In January of ’20—
Q. No. April.
A. I don’t believe so.
Q. Well, I did ask you either before or after April. So
were you—did I interrupt you?
A. I spoke with him in January. He told me he
***
[80] Q. The 4th?
A. I don’t believe so.
Q. And the 5th?
A. Somewhere around the 5th or 6th is when I got
some complaints.
Q. In what form?
A. From Trisha Hunter. It was around the 5th or
6th. And it was right at the time when I was filing the
complaint—when I was filing the criminal complaint in
the matter.
58a
Appendix I
Q. So you had already made the decision to file the
criminal complaint before you got the contact from Mrs.
Hunter?
A. No.
Q. So was her contact with you before or after you
made the decision to file a complaint?
A. It was at the time I was making the decision to file
the complaint.
Q. So it was before you actually filed it? You were in
the thought process of—
A. I believe so.
Q. And in your e-mail to Clayton, Exhibit 4, on April
30th you said you were hopeful that charges won’t need
to be filed.
A. Mm-hmm.
[81] Q. The morning of May 6, you were contacted
regarding Sam Cox?
A. On or around the 6th.
Q. And by whom?
A. I believe I contacted Mrs. Cox—sorry—Mrs.
Hunter.
59a
Appendix I
Q. And what was the nature of that conversation?
A. To see what the nature of the road was. At that point
I already had, at that point, my visit, my observations, the
reports from Deputy Vannatter. And I wanted to get one
final chat with her about what the conditions of the road
were.
Q. And what was your understanding from speaking
with her?
A. That at that time the—he had put down a culvert
and he put some dirt over it. It was impassable. The
intersection of Sapling and Poplar still had large—very
large rocks in it making it somewhat impassable. That
there was more dirt in the cattle guard than there was
before. And that Sam had been shooting a gun into the
air while the kids were down putting the culvert—laying
it in that area.
Q. What was your understanding on the shooting?
A. That while the kids were down dragging the culvert
down on the road for Mr. Cox to at some point [82] get
buried out there, that he was up on the hillside. They
could see him, and he was not shooting at them, but he
was shooting up into the air.
(Whereupon, Deposition Exhibit No. 6 was marked
for identification.)
60a
Appendix I
BY MR. MONTGOMERY:
Q. Handing you Exhibit 6. I’m going to also give you
6.1. And 6.1 is the transcript of the dispatcher log.
A. Okay.
(Whereupon, Deposition Exhibit No. 6.1 was marked
for identification.)
(Witness examining exhibits.)
THE WITNESS: Okay. I’ve reviewed 6.1 and 6.
BY MR. MONTGOMERY:
Q. Did somebody bring or transmit Exhibit 6 to you
the morning of May 6?
A. Exhibit 6?
Q. Yes.
A. It was in my file. I don’t know when it was brought.
It would have had to been after May 6—on or after May 6.
Q. Did you discuss Sam Cox with Sheriff Resser on
May 6?
A. I don’t recall.
***
61a
Appendix I
[129] complaint on the shooting of the gun.
Q. Okay. So based on the substance of the supplemental
report, can you see any reason for Trisha Hunter to
wait five days and then call law enforcement about the
gunshots?
MS. FEGERT: Objection, calls for speculation. Go
ahead.
THE WITNESS: Speculative. I don’t know. I suppose
you’d have to ask her that.
BY MR. MONTGOMERY:
Q. So to recap, you met with Sam on April 28th. He
agreed to fix the secondary road entrance and the Potlatch
turnout?
A. He stated he would. The agreement gets into kind
of a fuzzy territory. He stated he would.
Q. And to the best of your knowledge he did that?
A. To the best of my knowledge—are we talking the
culvert?
Q. And fixing the bypass. Yes.
A. I don’t know about the bypass. That really wasn’t
on my radar. As far as the culvert goes, when I filed the
complaint it had not been restored by Sam Cox.
62a
Appendix I
Q. And when you say that, you mean—is that based
on what Trisha Hunter had told you?
A. That’s correct.
[130] Q. But in fact he had installed it; it just wasn’t,
based on her conversation with you, passable yet?
A. It had been placed. It had dirt placed over it. And
it was not passable on the 6th—or that—at the moment
that I was filing the complaint.
Q. But there weren’t any complaints about Sam on
April 29th, 30th, May 1st, 2nd, 3rd, 4th or 5th. We went
over that before.
A. What days?
Q. From April 29th through May 5th, the day before
you did this.
A. I told you I wasn’t aware of any. That doesn’t
mean there weren’t any. I think you’re misstating what I
answered before.
Q. And at 8:46 a.m. on May 6, Trisha Hunter calls the
sheriff’s dispatcher and complains about gunshots?
A. Are you referring to an exhibit?
Q. Exhibit 6.1. It’s the narrative—the transcript of
the call to the dispatcher.
63a
Appendix I
MS. MARKHAM: It’s also reflected in the event detail
in Exhibit 6 as well.
MS. FEGERT: If you have questions in regard to the
document, please ask him to read the specific part of the
document into the record that you’re
***
[143] A. It doesn’t appear that he was interviewed.
Q. According to that report, Dakota Hunter told
Deputy Hampton that Sam Cox tailgated him and was
driving his—as he was driving his four-by-four on
Carpenter Creek Road?
A. That’s correct.
Q. Also according to that report, Dakota told him that
while he, Dakota, was in the Fernwood Mercantile Sam
Cox was also in the store and stared at Dakota the entire
time he was in the store?
A. That’s correct.
Q. Do you recall when you first saw this report?
A. I do not.
Q. Do you know whether or not it was within a few
days of it being prepared of—I think we’ve established a
date of August 13th?
64a
Appendix I
A. I don’t know what day I received a report.
Q. Did you talk to Deputy Hampton about the report?
A. I don’t believe I did.
Q. Did you have any conversations with Deputy
Hampton regarding this report?
A. I don’t believe I did. I don’t remember any.
Q. So does it appear to you, based on Deputy
Hampton’s report, that Deputy Hampton never did
***
65a
Appendix7 J
APPENDIX J — EXHIBIT
TO MONTGOMERY
DECLARATION DATED OCTOBER 20, 2023 -DISPATCH RECORDS (ER 209–211)
Trisha Hunter - February 18, 2023
Case No. 22:22-cv-199
***
[69]gunshots to you?
A.
I’m trying to find the paper that I . . .
(Witness examining documents.)
MS. MARKHA M:
response.
There the supplemental
(Witness examining document.)
THE WITNESS: So it looks like in the report it
said Shaun stated when they were done, he and one friend
rode the four-wheeler up into the rock pit and heard
approximately six rapid gunshots coming from the Cox
residence.
BY MR. MONTGOMERY:
Q. And none of the kids who had been down by
the bridge delivering the PVC pipe were frightened or
alarmed by the gunshots, correct?
MS. MARKHAM:
She was --
66a
Appendix J
THE WITNESS: I wasn’t there. How am I going
to know? They came up to the house after.
BY MR. MONTGOMERY:
Q. Well, you were there when they came up. Were
they expressing -A. Well, I called the sheriff. So I was probably
alarmed, myself, for my children.
Q. Okay. So you don’t know about the kids. But you
were; is that correct?
A.
Wouldn’t you be?
[70]Q.
A.
Exhibit 7. Is that the one you’re on?
7.5.
Q. Yeah. We need the page before. Does that say 7?
See the circled area? Could you read that. Tell me when
you’re done.
A.
(Complying.) Okay.
Q. So according to the sheriff’s dispatcher’s log from
May 6, 2020, there’s an entry at 8:51 indicating that you
called in and reported that your son and about seven high
school kids were delivering a pipe to fix the road, at which
time Sam decided to start shooting rounds into the air but
didn’t aim it at the kids. Is that what that says?
67a
Appendix J
A.
Yes.
Q.
Is that correct to the best of your recollection?
A.
Yes.
Q. Looking at the same Exhibit 7, did Deputy
Vannatter previously tell you to call if you had any
problems, as it reflects in the dispatcher log?
A.
Well, it’s said in there. So I guess yes.
Q. Okay. And the 7.5 which is the next one. And you
read that already, correct?
A.
Yes.
Q. And you didn’t find any misstatements [71]in
there; is that correct?
If you want to read it again, that’s fine.
(Witness examining document.)
THE WITNESS: Yeah. Looks . . .
BY MR. MONTGOMERY:
Q. So no mistakes that you can identify relative to
anything you might have said?
A.
Not that I can see.
68a
Appendix J
Q. So in your view, what was the problem that you
were calling in to report to the sheriff?
A. I feel that Mr. Cox was trying to intimidate my
children.
Q. And as had happened in the past, you expected
to law enforcement would respond to your report on May
6, 2020, correct?
A.
place.
order.
That’s they’re job to . . .
MS. MARKHAM:
There’s a protection order in
THE WITNESS:
Yeah. A 300-foot protection
BY MR. MONTGOMERY:
Q. Well, I think the original protection order was a
hundred feet. And then you had it modified to a thousand,
correct?
A.
Not until August I thought was a thousand.
***
69a
Appendix9KTO MONTGOMERY
APPENDIX K — EXHIBIT
DECLARATION DATED OCTOBER 20, 2023 -ARRAIGNMENT TRANSCRIPT EXCERPTS
(ER 225–227)
Filed: 12/23/2022 09:55:31
First Judicial District, Benewah County
Deanna Bramblett, Clerk of the Court
By: Deputy Clerk - Weaver, Sheena
IN THE DISTRICT COURT OF THE FIRST
JUDICIAL DISTRICT OF THE STATE OF IDAHO,
IN AND FOR THE COUNTY OF BENEWAH
Case No. CR05-20-332
STATE OF IDAHO,
Plaintiff,
vs.
SAMUEL COX,
Defendant.
Filed November 27, 2023
TRANSCRIPT OF ARRAIGNMENT HEARING
Transcript of the Arraignment Hearing in the aboveentitled matter, taken before the Honorable Douglas
Payne, Magistrate on May 07, 2020, at the Courthouse,
City of St. Maries, County of Benewah, State of Idaho,
commencing at the hour of 09:33 a.m.
70a
Appendix K
APPEARANCES:
DOUGLAS PAYNE, Judge
SAMUEL COX, Defendant
October 07, 2020
9:33 A.M.
PROCEEDINGS
JUDGE:
COX:
Yeah.
JUDGE:
COX:
All right, uh Mr. Cox can you hear me?
Can you see, can you see a camera?
I can see you just fine, dickhead.
JUDGE:
All right Mr. Cox.
COX: I’m not gonna be nice to ya, you broke my
fucking constitutional rights.
JUDGE: Mr. Cox you’re here in case number CR0520-332 entitled State versus Samuel Allen Cox, that case
was initiated by criminal complaint from the prosecutor’s
office. That complaint reads as follows; it’s alleged that
you committed the crime of violating a protection order,
a misdemeanor, a violation of Idaho Code 18 7907 uh, sub
paragraph 8. And that you on or about the 23rd of April,
2020 in Benewah County Idaho did then and there
having been restrained by a civil protection order dated
71a
Appendix K
March 11th 2020 and have you given, been given notice of
that hearing, of that order that you violated that order by
ditching across your neighbor, the Hunter’s road which
is contrary to the statute in such case and against the
peace and dignity of the people of the state of Idaho. That
complaint was signed by Brian Thie on the 6th of May.
As a result of that complaint, a warrant was issued for
your arrest and bail was set in the amount of twenty five
thousand dollars. First of all, do you have any questions?
I’m not- I’m not asking you to admit it or deny it but do
you have any uh- do you understand what the charge is
against you?
COX: Yeah, I- I was ordered by the prosecuting
attorney to do a physical crime. I was ordered to do that.
I was ordered by prosecuting attorney to dig that out and
put back all that dirt like that so if it’s already on- that’s
on the prosecuting attorney.
JUDGE: All right, before you respond, let me
explain your rights to you a little bit. First of all, have
you read the rights form that explains the rights to you?
COX: I don’t give a fuck about my rights. All I
know about my rights is that they were violated by you
cocksuckers when I have not broken one fucking law yet,
you mother fucker.
JUDGE:
rights form?
COX:
All right so uh Mr. Cox, did you read the
Stick it up your ass.
72a
Appendix K
JUDGE: All right well Mr. Cox I’m going to explain
your rights to you.
COX: You will be sued by my lawyer right now for
fucking what you have done, you cock sucker.
JUDGE: Uh, Mr. Cox you have a right to an attorney
if you can’t afford one, I’ll be glad to appoint one for you.
COX: I don’t need to be given (inaudible yelling) I
will give you no fucking respect, you gave me no respect.
You fucking violated my constitutional rights.
JUDGE:
All right so-
COX: Fuck you, this conversations over. You want
to talk to somebody, talk to my fucking lawyer, asshole.
***
73a
Appendix14LTO MONTGOMERY
APPENDIX L — EXHIBIT
DECLARATION DATED OCTOBER 20, 2023 -DAVID COX DECLARATION AND EXHIBITS
(ER 247-252)
EXHIBIT 14
05/06/2020 08:55:52
CAD023
COUNTY SHERIFF
Event #:
PAGE 1 Status:
BENEWAH
117215
CLOSED
EVENT DETAIL
Nature of Call: MALICIOUS INJURY
Reported Date/Time: 01/02/2020 16:46:24
NOC Type: MALICIOUS INJ
Location:
123 SAPLING LN FERNWOOD
Reported By: HUNTER, TRAVIS RODNEY
Cross St:
123 SAPLING LANE
District:
Phone 1: (208)582-3753
Reported to: MWARNER Phone 2: (208)862-3763
Respond to:
Disposition: BCSO REPORT TAKEN
Event Names
HUNTER, TRAVIS RODNEY
REPORTING
PARTY
COX, SAMUEL ALLEN
SUSPECT
POTLATCH LAND & LUMBER, LLC
OTHER
DICKISON, RYAN ROBERT
OTHER
---------------------
74a
Appendix L
Event Remarks
RP ADV HIMSELF AND THE NEIGHBORS HAS AN
EASEMENT THROUGH EMERALD CREEK TO GET
TO THEIR RESIDENCES. THE NEIGHBOR SAM
COX DESTROYED THE ROAD. ADV HE HAS PUT
SO MUCH MUD ON THE ROAD HE CANT EVENT
GET IN AND OUT WITH HIS 4 WHEEL DRIVE
PICKUP AND NEW TIRES. ADV NO WAY CAN THE
KIDS GET OUT TO THE BUS AND NO EMERGENCY
VEHICLES WOULD BE ABLE TO GET IT. ADV HE
SPOKE TO EMERALD CREEK AND THEY ADV HIM
TO CONTACT THE SO. ADV IF THE DEPUTY NEEDS
THEY CAN CONTACT EMERALD CREEK AS WELL
REP ADV HE IS NOT AT HOME HE WILL BE IN
TOWN FOR WORK TONIGHT AND CAN RECEIVE
A CALL BACK AT THE BELOW NUMBER ONLY
WHEN HES IN TOWN
****SEE EVENT 118938***.. CPUGH
04/24/2020 @0940 DENNIS CLAYTON CALLED. ADV
HE IS COX LAWYER.
ADV HE WOULD LIKE TO KNOW WHAT ALL
IS GOING ON OUT THERE. ADV THE DEPUTY
HANDLING IS NOT ON DUTY AT THE MOMENT
BUT THE SHERIFF MIGHT BE ABLE TO ASSIST
HIM. 509-994-9482. TRANSFERED CLAYTON TO
20G/DERESSER. MWARNER
5/6/2020 @0851 TRISHA HUNTER CALLED AND ADV
2011 TOLD HER TO CALL WITH ANY PROBLEMS.
ADV HER SON AND ABOUT 7 HIGH SCHOOL KIDS
WERE PUTTING PIPE IN THE ROAD THAT HER
HUSBAND BOUGHT TO FIX THE ROAD. ADV SAM
75a
Appendix L
WAS WATCHING THEM AND THEN DECIDED
TO START SHOOTING ROUNDS INTO THE AIR.
ADV HE DIDN’T AIM IT AT THE KIDS BUT WAS
SHOOTING IN THE AIR. ADV SHE WOULD LIKE
2011 ADV AND IF HE NEEDS CALL AND LEAVE
HER A VOICEMAIL AND SHE WILL CALL WHEN
SHE CAN. MWARNER
------------------------------------------------------------Event Agencies
Notified
BENEWAH
COUNTY
SHERIFF
2000 RESSER,
DAVE
2010 PETERSON,
ANTHONY
2011 VANHATTER,
BRANDON
On Scene
Clear
04/24/2020
22:30
04/24/2020 04/24/2020
14:11
14:27
04/23/2020 04/24/2023
17:07
17:15
02/20/2020 02/20/2020
15:10
15:13
Dispatched
Parents
76a
Appendix L
Officer/Unit Date
2000
04/24/2020
Time
14:11:31
Activity
23
04/24/2020
04/24/2020
04/24/2020
2010
04/23/2020
04/23/2020
2011
02/20/2020
02/20/2020
14:21:52
04
14:37:34 08
22:39:33
OS
17:07:35
23
17:15:17
08
10:47:33
20
10:52:10
08
Location \ Comments
123 SAPLING LN FERNWOOD
TAKING PICTURES OF THE ROAD
123 SAPLING LN FERNWOOD
123 SAPLING LN FERNWOOD
2000 ADV HE SPOKE WITH PROSECTUUTOR
AND COX’S ATTORNEY TODAY
123 SAPLING LN FERNWOOD
123 SAPLING LN FERNWOOD
SAM COX RESIDENCE
SAM COX RESIDENCE
NEG CONTACT
77a
Appendix L
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
No: 2:22-cv-199
SAMUEL A. COX,
Plaintiff,
vs.
BRIAN D. THIE, INDIVIDUALLY AND AS
BENEWAH COUNTY PROSECUTOR; BRIAN D.
THIE AND JANE DOE THIE, HUSBAND AND
WIFE, AND THE MARITAL COMMUNITY
THEREOF; TRAVIS HUNTER AND TRISHA
HUNTER, HUSBAND AND WIFE, AND THE
MARITAL COMMUNITY COMPRISED THEREOF,
Defendants.
Filed November 27, 2023
DECLARATION OF DAVID G. COX
I, David G. Cox, declare under penalty of perjury
under the laws of Idaho that the following statements are
true and correct.
(1) I am over the age of 18 years, competent to testify
herein, and do so based on personal knowledge of
the matters stated.
78a
Appendix L
(2) I am aware that Sam Cox has been accused by Mr.
and Mrs. Hunter of working on Poplar Drive just
to harass and irritate them. I want to explain the
reasons we (Sam mostly) have done work on Poplar
Drive – in an effort to improve it.
(3) In 2018 my brother, Sam Cox, and I purchased
two parcels of land south of Fernwood, Idaho, each
one being approximately five acres, identified by the
Benewah Assessor’s office as Tract 4 and Tract 11.
See Exhibit 1, attached hereto: Certified copy of
Assessor’s Map, SE ¼ of Section 24, Township 43
North, Range 1 WBM.
(4) Each parcel is labeled by the Assessor’s office as to
the tract number, e.g., “Tr. 1” and so on.
(5) The two tracts we originally purchased are Tract 4
and Tract 11. In late 2020, we conveyed these tracts
to the Cox Living Trust.
(6) Travis and Trisha Hunter own Tract 7.
(7) In 2020 and 2021, I purchased from Emerald
Creek Gamet Corporation (ECG) and Bud McCall
a portion of the surrounding properties, those being
Tracts 8-10 and Tracts 12- 23.
(8) The mutual easement roads by which we and the
Hunters and other neighbors access their tracts
from Carpenter Creek Road are known as Poplar
Drive and Sapling Lane.
79a
Appendix L
(9) The relative locations of the Tracts and surrounding
environs can be seen on Exhibits 1 and 2 of the
Montgomery Declaration.
(10) When the snow began to melt in early 2019, Sam
and I noticed that the easement road (Poplar Drive)
leading from big Carpenter Creek Road to our
property was flooded, and had deep ruts, appearing
to be caused by vehicle travel. See Exhibits 2 and
3, attached hereto, which are pictures I took of
Poplar Drive on January 9, 2019, which show the
poor condition Poplar Drive.
(11) In buying the two parcels (Tract 4 and Tract 11), it
was our plan to develop our retirement home there,
and to do so we would need to move heavy equipment
onto our parcels.
(12) It was clear that Poplar Drive, in the condition it was
in in 2019, could not very well handle the weight of
big trucks, a bulldozer or a large excavator - all of
which we were planning on using to build a home
and outbuildings.
(13) We decided to clear and enlarge what appeared
to be the existing but overgrown and caved-in
ditches along Poplar Drive, so that in the following
year or two there would be sufficient drainage into
Carpenter Creek to prevent water flooding over
Poplar Drive.
80a
Appendix L
(14) Additionally, we planned to raise the level of Poplar
Drive and put down 3” rock and gravel to provide
a firm, stable surface, able to withstand the weight
of heavy equipment, while also providing a good
roadway for smaller vehicles as well.
(15) Since 2019, I have purchased thousands of dollars
of rock and gravel, and the surface of Poplar Drive
has been greatly improved, as reflected in photos
taken by Dennis Clayton on May 12, 2020. See, e.g.,
Clayton Declaration, Exhibit 1, Exhibit B thereof.
Poplar Drive has been greatly improved even since
2020.
(16) On May 3, 2020 (Sunday), I visited Sam at the
property. He had fixed the access to Hunters’
secondary road on Friday, and fixed the Potlatch
bypass road on Saturday, May 2. Both were passable
by vehicle when I was there on May 3, 2020.
(17) Dennis Clayton asked me to take a photo of the
repair of Hunters’ secondary road and email a copy
to him, which I did on the evening of May 3, 2020.
That photo is attached to the Clayton Declaration,
Exhibit 1, as Exhibit G thereof.
(18) Additionally, the ditches are now well developed
and kept cleaned out, so that winter runoff goes
into Carpenter Creek instead of over the surface
of Poplar Drive.
81a
Appendix L
(19) So, those are the reasons Sam was doing maintenance
on Poplar Drive. It is regrettable that actions
we hoped would be helpful to our project and the
neighborhood have led to such conflict.
SIGNED this 27th day of November, 2023, at Spokane,
Washington.
/s/ David G. Cox
David G. Cox
82a
Appendix M
APPENDIX M — DECLARATION
OF SAMUEL
COX, DATED OCTOBER 20, 2023 (ER 259–263) AND
(ER 267–273)
***
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
No: 2:22-cv-199
SAMUEL A. COX,
Plaintiff,
vs.
BRIAN D. THIE, INDIVIDUALLY AND AS
BENEWAH) COUNTY PROSECUTOR; BRIAN
D. THIE AND JANE DOE THIE, HUSBAND
AND WIFE, AND THE MARITAL COMMUNITY
THEREOF; TRAVIS HUNTER AND TRISHA
HUNTER, HUSBAND AND WIFE, AND THE
MARITAL COMMUNITY COMPRISED THEREOF,
Defendants.
DECLARATION OF SAMUEL A. COX
I, Samuel A. Cox, declare under penalty of perjury
under the laws of Idaho that the following statements are
true and correct.
83a
Appendix M
(1) I am over the age of 18 years, competent to testify
herein, and do so based on personal knowledge of
the matters stated.
A. FIRST ARREST
(2) In 2018 my brother, Dave Cox, and I purchased two
parcels of land approximately four miles southwest
of Fernwood, Idaho. These two parcels are referred
to as Tracts 4 and Tract 11 on the County Assessor’s
records. See Dave Cox Declaration, Exhibit 1, 2, 3,
which provide a visual perspective of the area.
(3) I live in a camper on Tract 11, where I also have a
dog kennel, a chicken coop, and our construction
equipment, such as a bulldozer, an excavator, a
tractor, snow removal implements/attachments for
the tractor, and trucks.
(4) Tract 11 is about 800 feet from the property of Mr.
and Mrs. Hunter (Tract 7) where they live with their
two teenage sons, Shaun and Dakota.
(5) Access from Big Carpenter Creek Road (hereafter
referred to simply as Carpenter Creek Road) to my
home and that of the Hunters is by a mutual easement
road, which the County has designated as Poplar
Drive, which comes immediately off of Carpenter
Creek road onto Poplar Drive, which leads westerly
to my home driveway.
84a
Appendix M
(6) Before Poplar Drive reaches my driveway, however,
it forks to the right in a northerly direction, becoming
what is called Sapling Lane. About 500 feet up
Sapling Lane is the driveway leading to the home of
Mr. and Mrs. Hunter, as well as the home of Terry
(Brock) Rodriguez and Lawrie Davis – just northerly
of the Hunters’ property.
(7) Also, as a secondary route to their home, Hunters
used an alternate road, frequently referred to in
this litigation as the “secondary road” or, as the
Defendants have recently designated it, the “East
Bypass Road.” See Defendant’s Joint Statement of
Material Facts, ¶¶ 3-4.
(8) In early 2019, during the winter snowmelt, I (and my
brother) saw that Poplar Drive was flooded over in
places, because it’s elevation was level with the lowlying surface of the meadow which it crosses. See
Exhibit 1, attached hereto, which is a photo I took
on March 4, 2020, showing the elevation of Poplar
Drive in relation to the surface of the meadow it
passes through, as well as pools of standing water
on the roadway.
(9) My brother and I planned to bring heavy equipment
to our properties in the near future, which would be
difficult if the surface of Poplar Drive wasn’t raised
and the ditches alongside were not restored, in order
to build a solid roadbed.
85a
Appendix M
(10) For that reason, we planned to clear the ditches
along Poplar Drive, raise its surface, and put down
layers of 3-inch rock, covered by gravel and, over
time resulting in a solid roadbed.
(11) In early January of 2020, I was excavating a ditch
adjacent to Poplar Drive with our tractor, and I was
approached by Mr. Hunter (Travis), who was angry
and asked me “What the hell are you doing?”
(12) We had a brief argument which lasted a minute or
two, and that was the end of it. I didn’t threaten him,
and he didn’t threaten me.
(13) Over the following weeks I continued to work on
cleaning out and reconstructing the ditches, by
removing dirt, which I would then deposit on the
surface of the road and spread out, this being done
from the junction of Poplar Drive and Sapling Lane,
eastward the length of Poplar Drive toward Big
Carpenter Creek Road.
(14) In February 2020, Mrs. Hunter filed a petition for
protection order, alleging that I was harassing her
by:
(a) Creating mud on Poplar Drive and the Poplar
Drive/Sapling Lane junction, and
(b) Digging a ditch that prevented her family
from using the secondary road to get to and
from their home, and
86a
Appendix M
(c) Harassing her by following her as she drove
through St. Maries and parked at a pharmacy,
and
(d) Harassing her by driving by the school where
she worked.
(15) In response, my attorney, Chris Montgomery, filed
my declaration, a true and correct copy of which is
attached hereto as Exhibit 3.
(16) Again, the reason I was working on the ditches and
road was to try and improve drainage and build up
the road surface, and I definitely was not doing it to
harass the Hunters.
(17) On March 11, 2020, Magistrate Douglas Payne
granted Mrs. Hunter’s petition, ordering in relevant
part as follows:
Respondent [Sam Cox] shall not do
anything to interfere with Protected
persons ingress or egress to their home
and shall not do anything to the road
they use for that purpose which degrades
their access to any significant degree.
(18) The protected persons included Mr. and Mrs. Hunter,
and their two teenage sons, Shaun Hunter and Travis
Dakota Hunter. Additionally, the order stated that
I was not to be any closer than 100 feet from the
Hunters or their residence. Fegert Declaration,
Exhibit 1, at pp 11-14.
87a
Appendix M
(19) Mr. and Mrs. Hunter reported to the Benewah
County Sheriff’s Department that my work on the
roads and ditches prevented them from getting to
and from their residence simple solution to that
problem would have been to clean the cattleguard,
not call the Sheriff.
(26) Also, Mrs. Hunter alleged that I had dug a ditch
across the entry from Poplar Drive to the “East
Bypass Road” (secondary road) which they used as
an alternate route to get to their home – and that
the ditch prevented them from using it.
(27) What I had done was clear existing ditches on both
sides of Poplar Drive, including across the front of
the secondary road, so that water could flow into
Carpenter Creek instead of overflowing onto Poplar
Drive.
(28) Additionally, I was preparing the Poplar easement
roadbed and the Poplar/Sapling intersection for the
delivery of 2-3 inch rock in the next few days, which
my brother, Dave had bought, to take care of any
problems with mud and as part of our ongoing plan
to stabilize and build up Poplar Drive.
(29) I believe Hunters broke down the walls of their
secondary road by driving their vehicles over/
through it and blocking the drainage ditch, or also by
just filling the drainage ditch with dirt and rocks so
they could cross from Poplar Drive to the secondary
road. But at no time was Sapling Lane “degraded”
88a
Appendix M
to the point that Hunters or the neighbors north of
them, Rodriguez and Davis, were ever unable to use
Sapling Drive.
(30) Deputy Vannatter’s report dated April 30, 2020,
states that Sapling Lane was “almost” impassable.
Montgomery Declaration, Exhibit 13.
(31) I have seen photos taken by Deputy Vannatter
on April 23, 2020, which were provided by the
defendants, although the photos are in black and
white and so no detail showing mud on the road can
be seen in those photos. Montgomery Declaration,
Exhibit 4 (Vannatter photos taken April 23, 2020).
(32) On April 23, 2020, I took several photos of the
easement roads, which show Poplar Drive (including
the intersection of Poplar Drive and Sapling Lane),
because I was going to visit my mother the next
day and wanted to show her (and my brother) the
progress made on the road and improving the
drainage ditches. See Exhibit 2, attached hereto,
which are true and correct copies of photos I took
on the afternoon of April 23, 2020.
(33) Again, it had rained the night of April 22, 2020, so
there was mud on the easement roads, but they were
certainly passable by vehicle.
(34) On April 23, 2020, Deputy Vannatter contacted me at
my home and advised me that he was investigating
89a
Appendix M
a possible violation of the Protection Order signed
by Magistrate Payne on March 11, 2020.
(35) On the evening of April 23, 2020, I called my mother,
Jackie Tomsha, who lives in Spokane. I asked her to
call my attorneys, Chris Montgomery and/or Dennis
Clayton, and let them know that Deputy Vannatter
had told me he was investigating whether I had
violated the protection order entered on March 11,
2020. She called Dennis Clayton the next morning.
(36) Some time the next day, I spoke with Dennis Clayton,
who told me he had talked to Sheriff Resser and the
Prosecutor, Brian Thie, and that as things presently
stood, I was probably going to be arrested for
violation of the Protection Order.
(37) He asked me if I would be willing to meet with him
and the Benewah County Prosecutor, Brian Thie, at
my property to see if we could find a solution to the
problems between me and Mr. and Mrs. Hunter. I
told him I would be glad to do that.
(38) On the morning of April 28, 2020, my mother came
to my place, and in the afternoon Mr. Clayton and
Mr. Thie arrived.
(39) Mr. Clayton, Mr. Thie and I, along with my mother
from time to time, looked at various survey markers
and tried to figure out where property lines were
near the south end of my and Tract 11 (west end
90a
Appendix M
of Poplar Drive), near a bypass Potlatch had
constructed (Potlatch bypass).
(40) After that, Mr. Thie went up to the Hunters’ house
to speak with the Hunters.
(41) When he returned fifteen or twenty minutes later, Mr.
Clayton and Mr. Thie walked eastward on Poplar
Drive down to the place where the secondary road
(East Bypass Road) connects with Poplar Drive.
After several minutes, they waived at me to come
join them, which I did.
(42) Mr. Clayton said that he and Mr. Thie had been
talking and wanted to know if I would agree to do
some things in order to resolve the issues between
me and Mr. and Mrs. Hunter. I said I would.
(43) Mr. Thie, Mr. Clayton and I were standing about five
to six feet apart – within a conversational distance.
(44) Mr. Clayton told me that Mr. Hunter had a plastic
pipe that could be used for a culvert to fill in the ditch
and provide access to the secondary road, then he
asked if Mr. Hunter brought the pipe from his house
down to the ditch, would I be willing to place it in the
ditch and cover it in order to provide passage onto
the secondary road (East Bypass Road).
(45) I objected to placing the pipe and covering it, and told
Mr. Clayton and Mr. Thie that if I did that I would
91a
Appendix M
be violating federal wetlands laws, and so I wouldn’t
do it.
(46) Mr. Thie said that if I did not do it, I would be
arrested for violating the protection order, and Mr.
Clayton said I really should do it.
(47) Therefore, I said I would do it if Mr. Hunter brought
the pipe down to the ditch.
(48) Mr. Clayton also asked me if I would be willing to
repair Potlatch’s bypass down by the south end of
my Tract 11, and I said I would do that also.
(49) Mr. Clayton also asked me if I would be willing to
leave the easement roads alone and not do anything
more without clearing it with him and Mr. Thie and
I agreed to that.
(50) Mr. Thie said if I was agreeing to fix the culvert, he
would call Mr. Hunter and have him bring it down
to the ditch. I again said I would do it.
(51) Mr. Thie was standing right with me and Mr. Clayton
while Mr. Clayton was asking me to place and bury
the culvert, fix the Potlatch bypass and leave the
easement roads alone. Mr. Thie said if I would fix the
roads and leave them alone, I would not be arrested.
(52) On Friday, May 1, while standing on my property up
by my camper, about 700 or 800 feet from where the
secondary road (East Bypass Road) meets Poplar
92a
Appendix M
Drive, I heard what sounded like a couple of ATV’s,
but I didn’t go to look to see who it was.
(53) A few minutes after I heard what sounded like ATV’s,
I heard what I thought to be a coyote in the brush
around the chicken coop. I looked and saw that there
was a coyote there.
(54) I went to my camper, got my gun and shot at the
coyote several times to scare it away. Where I was
shooting from in the bushes near the chicken coop
is not visible from Poplar Drive.
(55) In the early evening on May 1, 2020, I was walking
my dog on Poplar Drive and saw that there was a
PVC pipe in the ditch. I finished walking the dog, got
my tractor and went down to the ditch and covered
the pipe, making the secondary road so Hunters
could use it.
(56) The next day, I also filled in the drainage ditch I had
dug near the Potlatch bypass, so that it was restored
and passable.
(57) On Sunday, May 3, 2020, my brother, Dave, came
down to our property from Spokane to visit and to
do repair work on some of our machinery.
(58) Over the next five days or so, everything was fine.
(59) Then, on the afternoon of May 6, 2020, Deputy
Vannatter came out to the property and arrested
me for violation of the Hunters’ protection order.
93a
Appendix M
(60) I was shocked for Vannatter to be there to arrest me,
because Mr. Thie had said that if I fixed the culvert
at the Hunters’ secondary road and the Potlatch
bypass and did nothing more to the easement roads,
he would not have me arrested. And that is why I had
quickly done the repair work.
(61) After being arrested and put in jail, I was really
angry and confused because I had done what I
had been asked and told to do, including not doing
anything more with the easement roads.
(62) When I appeared on video before Magistrate Payne
I was extremely angry and confused, because I had
done what Mr. Thie and Mr. Clayton had asked me
to do, and I yelled and swore at Magistrate Payne.
I couldn’t understand why I was arrested when I’d
done what the prosecutor told me to do. Montgomery
Declaration, Exhibit 9 (May 7, 2020, transcript of
proceedings).
(63) Over the next many days, I went in and out of a
mental breakdown, experiencing hallucinations,
night-horror nightmares and really bad depression.
(64) Judge Payne ordered that I have a mental health
competency evaluation. Thie Declaration, Exhibit 5.
(65) On June 3 or 4, 2020, Judge Payne had me committed
to Idaho Hospital North for mental health treatment.
Thie Declaration, Exhibit 6.
94a
Appendix M
(66) Around the first week of July it was decided that
I was recovered enough to be released, and was
released from hospital custody on July 6, 2020. Thie
Declaration, Exhibit 7.
(67) My mother picked me up on at the hospital on July
8th and I went to Spokane and stayed with her for
3 or 4 days, then a few days later I went back to my
home on our property near Fernwood.
(68) On December 4, 2020, the protection order violation
charge of May 6, 2020, was dismissed. Fegert
Declaration, Exhibit 6.
B. SECOND ARREST
(69) On August 12, 2020, I decided to go to the Fernwood
Mercantile to have my propane tank refilled.
(70) As I proceeded a little way on Carpenter Creek
Road heading for Fernwood, I came up behind a
four-wheeler with a driver and one passenger. I could
not tell who was on the four-wheeler.
(71) I followed about 40 or 50 feet behind the four-wheeler,
and we were going approximately 15 to 20 mph at
most. I did not tailgate the four-wheeler, nor did I
get any closer than 40 or 50 feet to it.
(72) When the four-wheeler and I got to Highway 3 we
both stopped, then the four-wheeler proceeded
across Highway 3 and into the residential area of
95a
Appendix M
Fernwood. I took a left and went on to the Fernwood
Mercantile and parked my truck near the propane
refilling station.
(73) I then went inside the Mercantile and asked the lady
at the counter if she would have somebody help me
refill my propane tank. I was only in the Mercantile
for a few seconds, then returned to the propane
refilling station. Montgomery Declaration, Exhibit 3,
Thie Deposition, 150:7-17; Montgomery Declaration,
Exhibit 12 (surveillance video inside Fernwood
Mercantile, August 12, 2020).
(74) While I was in the Mercantile to get assistance, I did
not see Mr. and Mrs. Hunters’ teenage son, Dakota
Hunter.
(75) After ten or fifteen minutes, when my propane tank
was filled, I went back into the store and paid for the
propane. I did not see Dakota Hunter then either.
(76) On Friday, August 21, 2020, I was again arrested
and jailed, charged with violation of the protection
order entered by Judge Payne on March 11, 2020,
and also charged with reckless driving for allegedly
tailgating the four-wheeler driven by D. Hunter that
was ahead of me on my way to the Fernwood.
(77) At no time during his “investigation” of the tailgating
and harassment complaints by Hunters – before my
arrest – did Deputy Hampton talk to me or try to
find out from me what really happened.
96a
Appendix M
(78) I did not tailgate the four-wheeler driven by Dakota
Hunter, I didn’t know he was driving it, and I did
not even see him at the Fernwood Mercantile, much
less stare at him while he was there.
(79) I remained in jail until Monday, August 24, 2020,
when I was released on personal recognizance.
***
97a
Appendix
N 1 TO LAURA
APPENDIX N —
EXHIBIT
K. MARKHAM DECLARATION, DATED
SEPTEMBER 29, 2023 — MAGISTRATE JUDGE
DOUGLAS P. PAYNE’S PROTECTION ORDER,
DATED MARCH 11, 2020 (ER 376–378)
***
3.
Move-out Order and /or Law enforcement
assistance. Does Not Apply
[03] Respondent is ordered to move from the residence
at
immediately
upon service of this order and take from the
residence only items needed for employment and
necessary personal effects (at peace officer’s discretion).
Law enforcement officers are ordered to:
Remove the Respondent from the residence
listed above upon service of this order.
Place the Protected Person in possession of the
residence at
Supervise the removal of Protected Person’s
Respondent’s items (at peace officer’s discretion)
from the residence.
Peace officers are instructed to enforce this Court
order by all necessary means, including arrest.
4. Child custody. Does Not Apply
[09] Respondent shall NOT have the child/ren until
further order of the Court.
OR
Custody of the minor child/ren is awarded:
98a
Appendix N
[06] as provided in the existing child custody order/
divorce decree (Case #, County, Judge, Date
Entered):
as follows:
Name of Child (first,
middle initial, last)
Birth Date Sex Custody
Awarded To
Protected Person
Respondent
shall have the child/ren as follows (list days,
times and conditions):
supervised by:
neutral drop off/pick up location:
child/ren to be transported by:
Neither party shall remove the child/ren
from
5.
Other:
Conflicting Orders.
If any term of another civil or criminal order
conflicts with any term of this order you must follow
the more restrictive term. Dismissal of any other
order will not result in a dismissal of this order.
99a
Appendix N
6.
7.
Order on Renewal. Does Not Apply
IT IS FURTHER ORDERED that i f
Respondent wants a hearing to object to the
renewal of this order, Respondent must file
a request for such a hearing with the Court
within 14 days.
Treatment/Counseling.
Attend an approved Domestic Violence
Offender Intervention Program
Attend counseling that focuses on
Within
days of this order, Respondent
shall report to
and participate and complete
all scheduled treatment or counseling. A
written report shall be submitted to the
Court within
days of this order.
8.
Change in Address and Future Service.
The parties shall, at all times, keep the Court
informed of their current mailing addresses.
Petitioner has waived the right to personal
service and agreed that all future notices of
hearing, orders, or modifications may be served by
certified mail Protected Person
Respondent has waived the right to personal
service and agreed that all future notices of
hearing, orders, or modifications may be served
by certified mail.
100a
Appendix N
9. Other. Respondent shall not do anything to
[07] interfere with Protected persons ingress or
[08] egress to their home and shall not do anything
to the road they use for that purpose which
degrades their access any significant degree. .
10. Order to [Illegible].
It is further ordered that the clerk of the court shall
forward a copy of this order to the Sheriff’s Office
In the county in which this order was originally
issued, or
, for immediate
entry into record systems and to facilitate service
in the jurisdiction in which the Respondent resides
if not previously served. The clerk shall deliver or
mail a copy of this order to the Petitioner.
Dated: Signed 3/11/2020 03 54 PM
Signed: /s/ Judge Douglas P. Payne
Judge Douglas P. Payne
NOTICE:
It is a misdemeanor under Idaho Code § 39-6312 for
the Respondent, after notice of this order, to violate the
provisions of this order. Further, it is a crime under Idaho
Code §18-204 for any person to aid and abet a crime, or,
not being present, to advise and encourage a crime. In
addition, under Idaho Code §18-304, any person who
counsels, aids, solicits or incites another to commit a
misdemeanor is guilty of a misdemeanor. Therefore, it may
be a crime for any person to encourage or invite contact
between the Respondent and the Petitioner, except such
contact as is expressly permitted by the above order.
101a
Appendix N
I have received a copy of this order, advisory notice,
and warning.
Signed: /s/ Trisha Hunter
Petitioner
Date: 3/11/2020
Signed: /s/ Sam Cox
Respondent
Date: 3/11/20
[Handwritten Illegible]
ATTENTION: Keep a copy of this order in your possession
at all times in order to assist peace officers. Immediately
report any violation of this order to law enforcement.
STATE OF IDAHO } ss
County of Benewah
This is to certify that the foregoing
is a true copy of the original now on
file or record in the office.
Sealed on this 11th day of March, 2020
Deanna Bramblett, Clerk, of the District
Court by [Illegible] Deputy
102a
Appendix O OF BRANDON D.
APPENDIX O — DECLARATION
THIE, DATED SEPTEMBER 27, 2023 (ER 429–435)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 2:22.cv-199-AKB
SAMUEL COX,
Plaintiff,
vs.
BRIAN D. THIE AND JANE DOE THIE,
INDIVIDUALLY AND AS BENEWAH COUNTY
PROSECUTOR; TRAVIS HUNTER AND TRISHA
HUNTER, HUSBAND AND WIFE, AND THE
MARITAL COMMUNITY COMPRISED THEREOF,
Defendants.
Dated September 27, 2023
DECLARATION OF BRIAN D. THIE
I, BRIAN D. THIE, make the following declaration
under the penalty of perjury and pursuant to the laws
of the State of Idaho, and state as follows:
1. I am a named defendant in the above-entitled
matter. I am over the age of eighteen (18) and I am
competent to testify as a witness in this matter.
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Appendix O
2. At all times relevant to this matter, I was the
Benewah County Prosecutor and was acting within the
course and scope of my employment and in the capacity
as the prosecutor. I began working as the prosecutor
for Benewah County in October 2015, and I served in that
ca
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