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.

103a

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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Petition for Writ of Certiorari — Samuel A. Cox, Petitioner v. Brian D. Thie, Individually and as Benewah County Prosecutor, et al. | Frix