Petition for Writ of Certiorari — James v. Boise, 136 S. Ct. 685 (2016) (No. 15-493)
Supreme Court brief2016
Ask Donna
What actually matters in this document.
Text
Jo-4$-3—
3n The
Supreme Court of the Anited States
Sf
MELENE JAMES,
Petitioner,
vV.
CITY OF BOISE, A POLITICAL SUBDIVISION
OF THE STATE OF IDAHO, STEVEN BONAS,
STEVEN BUTLER, AND TIM KUKLA,
Respondents.
S
On Petition For A Writ Of Certiorari
To The Idaho Supreme Court
SJ
PETITION FOR A WRIT OF CERTIORARI
¢
JOHN A. BUSH
Counsel of Record
199 N. Capitol Blvd., Suite 500
Boise, ID 83701
(208) 344-7700
jabush@comstockbush.com
RICHARD H. SEAMON
1297 Highland Dr.
Moscow, ID 83843
COCKLE LEGAL BRIEFS (800) 225-6964
WWW COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Both 42 U.S.C. § 1988 and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-5(k), authorize
a court, “in its discretion,” to award reasonable attor-
ney’s fees in specified proceedings. This Court inter-
preted those provisions, respectively, in Hughes uv.
Rowe, 449 U.S. 5 (1980), and Christiansburg Garment
Co. v. EEOC, 434 U.S. 413 (1978), to allow awards of
attorney's fees against a plaintiff only if the plaintiff’s
lawsuit is “frivolous, unreasonable, or without foun-
dation.”
The question presented is whether the Idaho
Supreme Court correctly concluded that Hughes and
Christiansburg do not bind state courts because this
Court “does not have authority to limit the discretion
of state courts where such limitation is not contained
in the statute.”
ii
PARTIES TO THE PROCEEDINGS
Petitioner, Melene James, was the plaintiff-appellant
below.
Respondents, City of Boise, Steven Bonas, Steven Butler,
and Tim Kukla, were the defendants-respondents be-
low.
Also named as a defendant in the complaint was
Rodney Likes; he was voluntarily dismissed at the
trial-court level, and was therefore not a party to the
proceeding before the Idaho Supreme Court.
ill
TABLE OF CONTENTS
Page
QUESTION PRESENTED..................0sceccessesseeeee i
PARTIES TO THE PROCEEDINGS ................... ii
TABLE OF AUTHORITIES .....................0c..0000e0e vi
PETITION FOR A WRIT OF CERTIORARI ....... 1
TTT AT a 1
Ee en 1
CONSTITUTIONAL AND STATUTORY PRO-
ee Be ee cccccscesercesecesccvessscesessossooss 1
SATE 3
STATEMENT OF THE CASE.................ccesseseeeees 4
REASONS FOR GRANTING THE WRIT ........... 13
I. The Idaho Supreme Court’s Decision
Conflicts with Decisions of this Court....... 13
A. The Idaho Supreme Court’s Decision
Conflicts with Hughes v. Rowe and
Christiansburg Garment Co. v. EEOC... 13
B. The Idaho Supreme Court’s Decision
Conflicts with Decisions of this Court
Establishing the Supremacy of this
Court’s Interpretation of Federal
SII scdcadladeacmtimcdanimitiiaddnimaamaiabani 18
Il. The Idaho Supreme Court’s Decision
Conflicts with Decisions of Other Lower
iV
TABLE OF CONTENTS -— Continued
Page
A. The Idaho Supreme Court’s Decision
Conflicts with Decisions of Other
State Supreme Courts That Follow
Hughes v. Rowe and Christiansburg
ES etre 24
B. The Idaho Supreme Court’s Decision
Conflicts with Decisions of Other
State Supreme Courts That Recog-
nize the Supremacy of this Court’s
Decisions Interpreting Federal Stat-
WD covevavccreccocsonseesticiontanmiiienianhioniidean 28
III. The Question Presented Has Surpassing
Importance for the Uniform Enforcement
of Federal Rights in State Courts ............. 30
IV. This Case Is An Appropriate Vehicle for
Review of the Question Presented ............ 32
A. The Question Presented Was Pressed
and Passed Upon Below ...................... 32
B. The Idaho Supreme Court’s Ruling on
the Question Presented Was Outcome-
ei cincccciecncdcctenenatatidennaiiadiae 34
C. The Question Presented Concerns the
Supremacy of this Court’s Decisions
in the Fundamentally Important and
Timely Context of the Enforcement of
Pearel Civil TAOS ...cccccccccosssccccccsccnes 37
Fe ccensscevescesssesesesnnsemiansensaniesanantennbinnia 39
Vv
TABLE OF CONTENTS — Continued
Page
APPENDIX
Idaho Supreme Court Opinion......................00000+ App. 1
Idaho District Court Memorandum Decision
and Order on Defendants’ Motion for Sum-
SE CTT App. 64
Idaho Supreme Court Order Awarding Costs
To oniraensemennnepnnemmnenennnenenett App. 131
Idaho Supreme Court Order Denying: Rehear-
Si eioiniieiddinnnenpinepnbstnatgnbenimmmenemnsssensssnneseeseunt App. 133
Excerpt of Respondent’s Brief on Appeal........ App. 135
Excerpt of Memorandum in Support of Petition
Ee App. 138
Excerpt of Memorandum in Opposition to Costs
| Te ae App. 145
vi
TABLE OF AUTHORITIES
Page
CASES
Adoptive Couple v. Baby Girl, 133 S. Ct. 2552
Ti cinssitiahbainniasinanietinnisitipiieteiaiinnbniintanmemmetiiageeel 23
Afzali v. State, 326 P.3d 1 (Nev. 2014) ................:000e- 29
Air Wisconsin Airlines Corp. v. Hoeper, 134
By ee ST snsicinisiesccniniatnbeneddiadiidinecueiuieiiaaual 23
Alley v. Taylor, 2001 Del. Super. LEXIS 119
(Del. Super. Ct. Mar. 30, 2001) ....................00000000000 25
Alyeska Pipeline Serv. Co., Inc. v. Wilderness
Society, et al., 421 U.S. 240 (1975) ..........ccccccesecneee 30
Astrue v. Ratliff, 560 U.S. 586 (2010) ....................000. 30
Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d
SETI: II iciietetpenseinnntsnnnrendinesccssinnmntinmsennessentl 27
Barstow v. State, 742 S.W.2d 495 (Tex. App.
Si cetocsusinpnnninanberndapbeeemmscmaaemmnaatniaenainaninaieamneas 29
Bitgood v. Allstate Ins. Co., 481 A.2d 1001 (R.I.
Si icietesincsisndeepeenenntnnisnniniisenamndintatslaesigaividiesenpesenimsinel 28
Burt v. Titlow, 134 S. Ct. 10 (2013).................cccceceeeee 32
California Correctional Peace Officers Assn. v.
Virga, 181 Cal. App. 4th 30 (Cal. App. Ist
SITE: HITTITE iiicisiniiniiieisiaiiati tapas arinipaaeitaaeatiinneennsgel 25
Casa Marie Hogar Geriatrico, Inc., et al. v.
Esther Rivera-Santos, et al., 38 F.3d 615 (1st
SEaED Saiiaa encrenisnsinttennentienbiennstantnidunetenmassentianidiiinssemneniees 10
Chenevert v. Hilton, 978 So. 2d 1078 (La. App.
EE Mii ccitensncnccnnsnscnsecictnctntanenteinatenssendineiianentons 26
vii
TABLE OF AUTHORITIES — Continued
Page
Christiansburg Garment Co. v. EEOC, 434 U.S.
ST iscicetiencinsiipaciitinbeieeaeaedaniapecmtiaaiel passim
City of Waco v. Hester, 805 S.W.2d 807 (Tex. Ct.
SI SET dcncicntaniiccnnsniiinuninaninnietndecmnennnemmbiniapeseneenel 28
Commonwealth v. Pon, 469 Mass. 296, 14
gS Eee 29
Commonwealth v. Tedford, 598 Pa. 639, 960
a essarereeaminciatbiegsil 29
Cuzze v. Univ. & Cmty. Coll. Sys., 172 P.3d 131
i ltchacedenatemeieneiletelamaiarraeti hil 27
Davidson v. Boone Cty., 745 N.E.2d 895 (Ind.
SI TTT scscstnnieriteiisatintinicsinaiieineasipmennsaiaeentinaiiia 26
DeNardo v. Municipality of Anchorage, 775
SEIT 24, 25
Dowd v. City of New Richmond, 405 N.W.2d 66
eileen etait 28
Elmendorf v. Taylor, 23 U.S. 152 (1825).................... 20
Est. of Bohn v. Scott, 915 P.2d 1239 (Ariz. App.
BE Tec nsinthinininesiiaraiaidanmneiitiaiinemnitdimmesatiiid 25
v. Prudential-Bache Sec., Inc., 495
SL Ten nee 29
Fox v. Vice, 563 U.S. 826 (2011) .............ccccccccceeeeeeeeees 30
Gardner v. Bd. of County Comm’rs of Wasatch
County, 178 P.3d 893 (Utah 2008).....................0000. 28
Gates v. Discovery Commce’ns, Inc., 34 Cal. 4th
679, 101 P.3d 552 (Cal. 2004) ................................. 29
viii
TABLE OF AUTHORITIES — Continued
Page
Grp. Dekko Servs. LLC v. Miller, 717 N.E.2d
I i crlliearenel 29
Haywood v. Alexander, 121 So. 3d 972 (Ala.
ESS AEE AS LENE nN BeNOR S A ee 29
Hebert v. Louisiana, 272 U.S. 312 (1926).................. 21
Hensley v. Eckerhart, 461 U.S. 424 (1983) ................ 26
Herndon v. Georgia, 295 U.S. 441 (1935) .................. 33
Howlett v. Rose, 496 U.S. 356 (1990) ................... 12, 22
Hughes v. Rowe, 449 U.S. 5 (1980) .................... passim
In re Fifth Third Bank, Nat. Ass’n, 216 N.C.
App. 482, 716 S.E.2d 850 (N.C. 2011).................... 29
James v. City of Boise 351 P.3d 1171 (2015)................ 1
Jaynes v. Commonwealth, 276 Va. 443, 666
TSE a cE 29
Johnson v. City of Mobile, ___ So. 3d ___, 2015
WL 5725089 (Ala. Sept. 30, 2015).......................ee 25
Johnson v. Fankell, 520 U.S. 911 (1997) ................... 18
Karr v. Bermeosolo, 129 P.3d 88 (Idaho 2005)........... 33
LaBarre v. Payne, 329 S.E.2d 533 (Ga. App.
EERIE” “SIDR Sees rae RTO O NOES 26
Lefemine v. Wiedman, 133 S. Ct. 9 (2012) ................. 30
Littlefield v. State, 480 A.2d 731 (Me. 1984).............. 29
Lucas v. Riverside Park Condo. Unit Owners
Ass’n, 776 N.W.2d 801 (N.D. 2009).......................-. 27
ix
TABLE OF AUTHORITIES — Continued
Page
M.S. v. People, 2013 CO 35, 303 P.3d 102 (Colo.
RSE EERSTE DSRS Sonor nate ete 29
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.)
ESSE er eae ONECART 22, 23
McCarthy v. Oregon Freeze Dry, Inc., 327 Ore.
185, 957 P.2d 1200 (Ore. 1998) ............0.eece cece eee 28
Miller v. Henderson, 322 S.E.2d 594 (N.C. Ct.
ST TIT iis caiicenat nbicetisnninianeinianledatapenuatetitiamasianaiel 27
Moran v. City of Lakeland, 694 So. 2d 886 (Fla.
SIN, TIT oiccricasiciniiginmniineniimiuaaniaenianial 26
Nation v. State, Dept. of Correction, 158 P.3d
SRST IEEE TASTE CE ET 33
Newman v. Piggie Park Enterprises, 390 U.S.
a a 21, 22
Nitro-Lift Technologies, L.L.C. v. Howard, 133
ii ial 18, 19, 20
Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158
EE SESE mas toresanan ven enn a en CoN eS Deva 23
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)............. 38
Octane Fitness, LLC v. ICON Health & Fitness,
i: ey ts Se ccttiticrtnninnnictieneciisarensncnes 30
Oklahoma Personnel Serv. v. Alternate Staff-
ing, Inc., 817 P.2d 1265 (Okla. 1991)...................... 27
Park v. Dept. of Corrections, 307 P.3d 503 (Or.
san UII cnccsniaintinciiiisinhinecinintedaindeuanbidiiinibtainnanitenmeet 27
Patsy v. Bd. of Regents of Florida, 457 U.S. 496
x
TABLE OF AUTHORITIES — Continued
Page
People v. Gillam, 479 Mich. 253, 734 N.W.2d
Ey Git cnrisnedbbiicnnctiinatinsneminimieetinneinnmmnpeninent 29
Peraica v. Riverside-Brookfield High Sch. Dist.
No. 208, 999 N.E.2d 399 (Ill. App. 1st Dist.
SI iacsunncisiadietnicinnpmemeinensebebnimsiaintbintababiiiommenneneds 26
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542
SEI dcncenctiescininsiesennisinandemnsdusieneniesianiaaibigainmaeimeianent 31
Provident Inst. for Savings v. Massachusetts,
| 4 | REEL SEs keene 21
Radio Station WOW v. Johnson, 326 U.S. 120
Sin iceicintncnsendetedsimainiiiiibdaninaumnmmnnmmninmene 34
Revering v. Ackerson, 1995 WL 130618 (Minn.
SEI UTED iciiiceinpninicinitnnleiniiaininiiniinninipineinitiieipiiendlipensvunpil 26
Riley v. Gibson, 338 S.W.3d 230 (Ky. 2011)................ 29
Rivers v. Roadway Express, Inc., 511 U.S. 298
STITT chiinmieeesslneeiabaiaebiahidhiaaiaitanhhanianinieeenitiiabiieiann 20
Rubio v. Carlsbad Mun. Sch. Dist., 744 P.2d
Be SU, IGE crernccscssnssssneneevmenmnenemneeee 27
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)....... 18
Santiago v. Municipality of Adjuntas, 741
F. Supp. 2d 364 (D.P.R. 2010) .0...........ccceececeeeeeeeeeees 10
Sebelius v. Cloer, 133 S. Ct. 1886 (2013) ................... 30
Shaw v. PACC Health Plan, Inc., 908 P.2d 308
SESTEnE: FEIT shicnsecipanincsistsniseesapeiiainiteinieadihlainiiniemnbiiaaiiainenintie 29
Shepherd v. Carbon County Bd. of Comm'rs, 46
TST RETR EOC 27
xi
TABLE OF AUTHORITIES — Continued
Page
Shields v. Carbone, 952 N.Y.S.2d 649 (N.Y.
i IEE SE ciccainteieisindinceimnemninmneenenenaieinaneemnes 27
Shuba v. Austintown Bd. of Educ., 1985 WL
10371 (Ohio Ct. App. 1985)...................ccccceeeeeeeeeeees 27
Simonian v. Town of Hull, 1993 Mass. Super.
LEXIS 17 (Mass. Super. Ct. 1993).....................000+8 26
Singhaviroj v. Bd. of Educ. of Town of Fair-
field, 17 A.3d 1013 (Conn. 2011)...................ccccceeeee 25
Smith v. City of Hemet, 394 F.3d 689 (9th Cir.
2005) (en banc), cert. denied, 545 U.S. 1128
ERIS TES RES SERIE EE ec Ie ee 36
South Carolina v. Bailey, 289 U.S. 412 (1933).......... 21
Sprague v. City of Burley, 710 P.2d 566 (Idaho
RATERS SR NARS ea Na SERRE SAS eee 20
State v. Coleman, 214 A.2d 393 (N.J. 1965)............... 29
State v. Golden’s Concrete Co., 962 P.2d 919
RESET REE Naan Le aa ae ea 25
State v. Maine State Troopers Ass’n, 491 A.2d
eit 26
State v. Mechtel, 499 N.W.2d 662 (Wis. 1993) ........... 29
State v. Radcliffe, 164 Wash. 2d 900, 194 P.3d
I liiiesiniamid 29
Stop the Beach Renourishment, Inc. v. Fla.
Dept. of Env. Protection, 560 U.S. 702 (2010)........ 33
Studio 45 Discotheque, Inc. v. City of Union,
2008 WL 583795 (N.J. Super. Ct. App. Div.
asian paella ibimimiiieeaiid 27
xil
TABLE OF AUTHORITIES — Continued
Page
Torres-Santiago v. Municipality of Adjuntas,
GES F.G SEO (lat Cle, BOER) ..ccccccccecccescecescccescccscccces 10
United States v. Gilbert Assocs., 345 U.S. 361
SITET hicsechidihaicieni nisin ieaeiekinhipliin 21
United States v. Lanier, 520 U.S. 259 (1997) ............ 35
Varney v. Genesee County Sheriff, 393 N.W.2d 1
SEI: SUITE iieiclicstnindceisadeisninincatdbacatiagniniblalinebdiednisintdiadinabendeveis 26
Varney v. O’Brien, 383 N.W.2d 213 (Mich. App.
RAR AR ESDP ESENE Sie oe PC Ee So SP ie ns RP e re nee ES 26
Washington State Republican Party v. Wash-
ington State Pub. Disclosure Commn., 4 P.3d
ET I eer er oe 28
Watkins v. City of Oakland, 145 F.3d 1087 (9th
_ g_ SERS eae e eveeE oee ene ne ea 35
Yellow Freight System, Inc. v. Saisie 494
i es 17
Youngbluth v. Youngbluth, 2010 VT 40, 4 16,
188 Vt. 53, 6 A.3d 677 (Vt. 2010)........... eee 29
CONSTITUTIONAL PROVISIONS
ees i MI, Gt EO, Ot no sncenscensetiinnsnbnnnbionies 22
ee LL IE, EU OE I dicccedenensecnsenndiommiinnubedasaumane 1,19
STATUTES
Individuals with Disabilities Education Act, 20
i cciiedineminionbided 31
xili
TABLE OF AUTHORITIES — Continued
Page
I le ae 1
Rehabilitation Act, 29 U.S.C. § 794a(b)...................4. 31
I IIIT hicntciscesennsicsvepnitiinigiateciianensndsniommies passim
FARE eae nnon arr eneaet are passim
Fair Housing Amendments Act of 1988, 4°
a I ts rnc aicinetnnantinainaiid 31
Americans with Disabilities Act, 42 U.S.C.
TT isirt ict clita dcidniienlimeiennunnineaendatianiinendantd 31
ETE ye cece ean ane Oe ree 12
RESET ILESIION Na een O ee neon 12
STITUTE iiikacinsiahciiceihhiininibinicindacticaiandiiienindatdidsishtindiiboshana passim
OTHER AUTHORITIES
Ballotpedia, Local government responses to
Obergefell v. Hodges (Oct. 2, 2015)..................000000 38
Charles J. Dean, Moore: Gay marriage ‘not in
accordance with the Constitution’ (Mobile,
AL), Press-Register, July 1, 2015, at Al0.............. 38
S.Rep. No. 1011, 94th Cong., 2nd Sess. 4
(1976), reprinted in 1976 U.S. Code Cong. &
FERS aaa ren 24
Stephen M. Shapiro, et al., Supreme Court
Praction 196 (106i OG. BOTS) .....0scccccccccccccccesccccccosees 33
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Melene James, respectfully petitions
for a writ of certiorari to review the judgment of the
Idaho Supreme Court in this case.
«
OPINIONS BELOW
The opinion of the Idaho Supreme Court (App. 1-
63) is reported at 351 P3d 1171. The order of the
Idaho Supreme Court denying rehearing (App. 133,
134) is unreported. The memorandum decision and
order of the Idaho District Court for the Fourth
Judicial District on Defendants’ Motion for Summary
Judgment (App. 64-130) is also unreported.
S
JURISDICTION
The Idaho Supreme Court entered the judgment
on May 21, 2015. It denied rehearing on July 20,
2015. (App. 133). This Court’s jurisdiction rests on 28
U.S.C. § 1257(a).
°
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
A. The Supremacy Clause, U.S. Const., art. VI,
cl. 2, states:
This Constitution, and the Laws of the
United States which shall be made in
2
Pursuance thereof; and all treaties made, or
which shall be made, under the authority of
the United States, shall be the supreme Law
of the Land; and the Judges in every State
shall be bound thereby, any Thing in the
Constitution or Laws of any State to the
Contrary notwithstanding.
B. 42 U.S.C. § 1988 states in relevant part:
§ 1988. Proceedings in vindication of
civil rights
* * *
(b) Attorney’s fees
In any action or proceeding to enforce a
provision of sections 1981, 198la, 1982,
1983, 1985, and 1986 of this title, title IX of
Public Law 92-318, the Religious Land Use
and Institutionalized Persons Act of, title VI
of the Civil Rights Act of 1964, or section
13981 of this title, the court, in its discretion,
may allow the prevailing party, other than
the United States, a reasonable attorney's
fee as part of the costs, except that in any ac-
tion brought against a judicial officer for an
act or omission taken in such officer’s judi-
cial capacity such officer shall not be held li-
able for any costs, including attorney's fees,
unless such action was clearly in excess of
such officer’s jurisdiction.
* * *
Sf
3
INTRODUCTION
Petitioner was mauled by a police dog while she
was working one Sunday afternoon in the office from
which she runs a small business. The Boise (Idaho)
police loosed the dog on her because they mistook her
for a burglar. Petitioner sued the City of Boise and
the responsible police officers in Idaho state court,
asserting state-law claims as well as excessive-force
claims under 42 U.S.C. § 1983. The state trial-level
court dismissed her claims, and the Idaho Supreme
Court affirmed the dismissal. Petitioner does not con-
cede the correctness of that ruling, nor does petitioner
seek further review of it in this Court.
Petitioner does, however, seek review of the
Idaho Supreme Court’s decision awarding attorney’s
fees on appeal against petitioner under 42 U.S.C.
§ 1988. In seeking those fees, respondents recognized
that they had to show that petitioner’s appeal from
the dismissal of her § 1983 claim was “frivolous,
unreasonable, or without foundation” — as established
by this Court in Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978), for fee awards against
Title VII plaintiffs, and as extended by this Court in
Hughes v. Rowe, 449 U.S. 5 (1980), to fee awards
against § 1983 plaintiffs. But rather than follow
Christiansburg and Hughes, the Idaho Supreme
Court sua sponte held that neither it nor any other
state court is bound by them. In its view, “[aJlthough
the [U.S.] Supreme Court may have the authority to
limit the discretion of lower federal courts, it does not
have the authority to limit the discretion of state
4
courts where such limitation is not contained in the
statute.” (App. 55). In its written opinion, the Idaho
Supreme Court accordingly did not apply the Chris-
tiansburg/Hughes standard in awarding attorney's
fees against petitioner under § 1988.
In refusing to apply the Christiansburg/Hughes
standard, the Idaho Supreme Court not only misin-
terpreted important federal civil rights statutes but
also fundamentally misunderstood this Court’s au-
thority over state courts. The Idaho Supreme Court’s
error is neither inadvertent nor innocuous. To the
contrary, that court’s studied disregard of the control-
ling precedent of this Court significantly deters
plaintiffs from asserting federal rights in the Idaho
state courts. The Idaho Supreme Court’s decision
could also have a pernicious effect in a current na-
tional climate characterized by some deeply disturb-
ing instances of state-level resistance to the
supremacy of federal law.
¢
STATEMENT OF THE CASE
1. On December 26, 2010, petitioner Melene
James was a 49-year-old resident of Boise, Idaho, and
worked as a denturist. Clerk’s Record on Appeal (“R.”)
390, 700. She had just finished cooking a holiday
meal for her family when a friend called needing
emergency work on a denture. R. 394, 700. Ms. James
walked half a block to the building where she leased
space to run her small business, Renaissance Dental
5
Lab. R. 391, 394, 701. She entered the building with
her key and started work on the denture. R. 394, 702.
When she reached the point in her work where the
repaired denture needed 15 minutes to “cure,” she left
the building to smoke a cigarette. R. 395, 701. Then
she realized that she had locked herself out, having
left her purse with her keys and phone inside the
dental lab. R. 395, 701.
Ms. James did not want to leave the immediate
area to call her landlord because her equipment was
still running inside and posed a fire hazard. R. 396,
701. She accordingly went to a window that was
usually left unlocked to ventilate the dental lab. R.
396, 397, 701, 702. While trying to open the window,
her hand slipped, causing her elbow to hit the win-
dow and break it. R. 397, 702. As she started to climb
through the window, a neighbor, who had heard the
glass breaking, came over and asked her if she needed
help. R. 397, 702. Ms. James told him that she had
locked her keys inside. R. 397, 702.
The neighbor found Ms. James’ behavior peculiar
and called 911 at around 5:20 pm. R. 410, 703. He
told the 911 operator that a woman who’d claimed to
have left her keys inside the building was climbing in
through a broken window. R. 410, 801, 802. The
* Respondent, Steven Butler, was the first police officer on
the scene. In his narrative report, Butler did not mention the
neighbor reporting that Ms. James had left her keys inside the
building. Instead, Butler’s narrative said the dental office “was
reportedly being burglarized.” R. 414.
6
neighbor also reported that the woman appeared to
be “lethargic” and “totally out of it.” R. 410, 685. In
the meantime, Ms. James finished repairing the
denture. R. 397, 398, 702, 703. She planned to call
her landlord after she used the bathroom. R. 398,
702, 703. It was while she was in the bathroom that
she was attacked by the police dog. R. 555.
While Ms. James was inside resuming work on
the denture, outside the building, police began arriv-
ing. Respondent Steven Butler was the first officer on
the scene. R. 423. According to Officer Butler’s later
account, he spoke with the neighbor and then looked
around the outside of the building. R. 425, 426,
Through one of the windows, he could see Ms. James
standing inside a lighted room, about six to eight feet
away from the window. R. 428, 431. She was standing
at a work bench, holding a can of malt liquor in one
hand and dental tools in the other. R. 414, 429. Of-
ficer Butler did not call out to her or otherwise try to
get her attention. R. 431.
Officer Butler was joined at the scene by several
other officers, including respondent Tim Kukla. R.
410. Within ten minutes after the 911 call, the police
had established a perimeter around the building and
requested a K-9 unit. R. 410, 475, 705. A civilian at
the scene — whom one of the officers later referred to
only as the “cleaning lady” — told officers that a
woman worked inside the building. R. 575. As the
“cleaning lady” began to describe the woman, she was
cut off by the owner of the building, who had shown
up then. R. 575. The owner told the police that no one
7
should be in the building, especially if they had to
break a window to get in. R. 555.
Respondent Steven Bonas arrived with his police
dog at around 6:10 pm. R. 411, 706. About seven
minutes later, Bonas made the decision to use the
dog. R. 411, 708. An initial shouted warning was
issued upon entry to the building and another was
issued on the upstairs level while the officers
searched. R. 593, 594. A few minutes after initial
entry, Officer Bonas arrived at a stairwell leading to
the basement where another shouted warning was
given. R. 593, 594, 710. Bonas then let the dog loose
to the basement where he was out of sight of the
handler and on a different level of the building. R.
593, 710.’
The dog found Ms. James in the bathroom. R.
555. As the officers descended, it was noted that the
bathroom door was initially open a few inches but
then it closed, leaving Ms. James alone inside with
the dog. R. 594, 711. When the officers finally got the
bathroom door open, they found Ms. James lying on
the ground with her pants pulled down below her
knees. R. 648, 711. She was then handcuffed,
searched, and taken to the emergency room. R. 594,
711.
* Two officers claimed in their later accounts that, in
addition to the shouted warnings that the police gave after
éntering the building, they also gave one or more warnings,
while outside the building, through the public address system
atop one of the police cars. R. 432, 708.
8
At the emergency room, Ms. James was found to
have a broken arm and multiple puncture wounds on
her cheek, arm, and hand. R. 603, 604, 596-600. Her
blood alcohol content was 0.27. Ms. James later
admitted at her deposition that she had been drink-
ing while cooking the holiday meal and had drunk a
beer while at the dental lab. R. 394, 398. A later
medical evaluation reported that, besides the injuries
noted at the emergency room, Ms. James had a
fractured spine and suspected nerve damage. R. 603,
604, 712.
2. Ms. James sued the City of Boise and four
police officers in the District Court for the Fourth
Judicial District of Idaho. R. 6.° She asserted
excessive-force claims against all the defendants
under 42 U.S.C. § 1983, relying on the Fourth, Fifth,
and Fourteenth Amendments. R. 15. She also assert-
ed state-law claims of assault, battery, false arrest,
wrongful imprisonment, negligent supervision, and
intentional infliction of emotional distress. R. 14. The
district court granted summary judgment for defen-
dants and dismissed all of Ms. James’ claims. (App.
64).
3.a. The Idaho Supreme Court affirmed the
dismissal of petitioner’s claims, including her § 1983
* Plaintiffs conceded to the dismissal of one original defen-
dant, Officer Rodney Likes, when discovery revealed that his
involvement was post event only. R. 653.
9
claims against the individual respondents and the
respondent City of Boise. (App. 1-63).
The Idaho Supreme Court held that qualified
immunity barred Ms. James’ § 1983 claims against
the individual respondents. (App. 13-34). In so hold-
ing, the court relied on three Ninth Circuit decisions
rejecting excessive-force claims based on police dog
attacks. (App. 34). The court admitted that, of those
three Ninth Circuit cases, even the one that was
“most similar to” the present case involved “some
significant factual difference.” (App. 34).
b. Justice Jim Jones issued a concurring opin-
ion. He agreed that qualified immunity barred peti-
tioner’s § 1983 claims. “Had there been no qualified
immunity issue,” however, Justice Jones “would have
voted to vacate the * * * dismissal of James’ excessive
force claim.” (App. 57). That is because, in his view,
“there were triable issues of fact that would have
precluded summary judgment.” (App. 57).
Specifically, Justice Jones cited the affidavit of
petitioner’s expert, who had an advanced degree in
criminal justice and “52 years of experience in various
law enforcement positions,” including “work as a
canine instructor and supervisor.” (App. 58). His
affidavit “raised questions about the existence of
probable cause and the need for the use of the magni-
tude of force employed by the officers.” (App. 58).
Justice Jones concluded that the district court “had
no basis for discounting” the expert’s opinions. (App.
59-63).
10
c. In the Idaho Supreme Court, respondents
requested an award of the attorney’s fees that they
spent on the appeal. For petitioner’s § 1983 claim,
respondents based their fee request on 42 U.S.C.
§ 1988. For petitioner’s state-law claims, respondents
requested fees under two Idaho statutes.
In seeking fees under § 1988, respondents recog-
nized that they had to establish not only that they
were prevailing parties but also “that the plaintiff’s
suit was ‘totally unfounded, frivolous, or otherwise
unreasonable or that the plaintiff continued to liti-
gate after it clearly became so.’” (App. 136) (quoting
Santiago v. Municipality of Adjuntas, 741 F. Supp. 2d
364 (D.P.R. 2010), vacated and remanded sub nom.
Torres-Santiago v. Municipality of Adjuntas, 693 F.3d
230 (1st Cir. 2012)). The decision in Santiago, from
which respondents drew the latter requirement,
derived it, in turn, from this Court’s decision in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412
(1978), and a First Circuit decision citing Christians-
burg. See Santiago, 741 F. Supp. 2d at 370 (quoting
Christiansburg, 434 U.S. at 412, and Casa Marie
Hogar Geriatrico, Inc., et al. v. Esther Rivera-Santos,
et al., 38 F.3d 615, 619 (1st Cir. 1994)). Respondents
did not suggest in their fee request that the Idaho
Supreme Court could ignore the Christiansburg
standard in deciding whether to award fees under
§ 1988. (App. 136, 137).*
* See Plaintiff’s Memorandum in Opposition to Costs and
Attorney Fees at 2 n.3 (filed June 18, 2015) (noting that
(Continued on following page)
11
The Idaho Supreme Court awarded respondents
the attorney’s fees they incurred defending against
petitioner’s appeal of the dismissal of her § 1983
claim. (App. 55). The court acknowledged that in
Hughes v. Rowe, 449 U.S. 5 (1980), this Court relied
on Christiansburg to hold that “attorney fees could
not be awarded to a prevailing defendant in a case
brought pursuant to 42 U.S.C. section 1983 unless
the plaintiff’s action was frivolous, unreasonable, or
without foundation.” (App. 55) (quoting Hughes, 449
U.S. at 14). But the Idaho Supreme Court observed
that both Christiansburg and Hughes “were appeals
from cases in federal district courts.” (App. 55). In its
view, “[a]lthough the [U.S.] Supreme Court may have
the authority to limit the discretion of lower federal
courts, it does not have the authority to limit the
discretion of state courts where such limitation is not
contained in the statute.” (App. 55). “Therefore,” the
Idaho Supreme Court concluded, “in cases filed in the
Idaho state courts seeking to recover under 42 U.S.C.
section 1988, the [Idaho Supreme] [CJourt has discre-
tion in deciding to award attorney fees to the prevail-
ing party, whether the prevailing party is the plaintiff
or the defendant.” (App. 55).
“[rlespondents’ stated basis for attorney’s fees under 42 U.S.C.
§ 1988 was the standard imposed by the United States Supreme
Court and federal circuits which this Court has declined to
follow.”); id. at 1 n.1 (noting that, at the time plaintiff filed its
memo in opposition to costs and attorney fees, “(t]he [Idaho
Supreme] Court’s Order allowing attorney fees is subject to a
Petition for Rehearing”). (App. 142, 143).
12
Based on this conclusion, the court awarded fees
against petitioner under § 1988 on the ground that
“(i]t was clear that her [§ 1983] claim would be barred
by qualified immunity.” (App. 55, 56). In contrast, the
court denied fees under the Idaho statutes cited by
respondents. Fees were not available under Idaho
Code § 12-117, the court concluded, because it could
“not find that Plaintiff brought this appeal regarding
her state law claims without a reasonable basis in
fact or law.” (App. 56). The court further held that
fees were not available under Idaho Code § 12-121
“[blecause the appeal regarding Plaintiff’s claims
under state law was not brought or pursued frivolous-
ly, unreasonably or without foundation.” (App. 56).
Petitioner timely petitioned for rehearing on the
court’s award of fees under § 1988. (App. 138). Peti-
tioner argued that “[uJnder the Supremacy Clause of
the United States Constitution, it is a fundamental
notion that the decisions of the U.S. Supreme Court
interpreting federal statutes and determining con-
gressional intent are binding upon state courts.”
(App. 139) (citing Howlett v. Rose, 496 U.S. 356
(1990)). Petitioner explained that this fundamental
notion applies equally to the “construction and appli-
cation of § 1988 — a federal statute.” (App. 139). By
failing to follow this Court’s decisions interpreting
§ 1988, petitioner concluded, “the Idaho Supreme
Court improperly nullified federal law.” (App. 143).
The Idaho Supreme Court denied rehearing
without opinion. (App. 133).
°
13
REASONS FOR GRANTING THE WRIT
I. The Idaho Supreme Court’s Decision Con-
flicts with Decisions of this Court.
A. The Idaho Supreme Court’s Decision
Conflicts with Hughes v. Rowe and
Christiansburg Garment Co. v. EEOC.
This Court held in Christiansburg Garment Co. v.
EEOC that the prevailing defendant in a Title VII
case can recover attorney’s fees only “upon a finding
that the plaintiff’s action was frivolous, unreasona-
ble, or without foundation.” 434 U.S. 412, 421 (1978).
In Hughes v. Rowe, this Court “could perceive no
reason for applying a less stringent standard” for
awarding attorney's fees to prevailing defendants in
actions under 42 U.S.C. § 1983. 449 U.S. 5, 14 (1980).
In this case, however, the Idaho Supreme Court did
not apply the “frivolous, unreasonable, or without
foundation” standard in awarding fees to the prevail-
ing defendants on petitioner’s § 1983 claim. The
Idaho Supreme Court’s failure to do so squarely
conflicts with Christiansburg and Hughes.
The Idaho Supreme Court’s failure to apply the
standard established by this Court is deliberate and
obvious on the face of its opinion. Its reasoning pro-
ceeded in three steps:
1. Hughes and Christiansburg “were ap-
peals from cases in federal district
courts.” (App. 55).
2. Although this Court “may have authori-
ty to limit the discretion of lower federal
14
courts, it does not have the authority to
limit the discretion of state courts where
such limitation is not contained in the
statute.” (App. 55).
3. The “frivolous, unreasonable, or without
foundation” standard “is not contained
in” the text of § 1988; “[t]herefore,” the
Idaho Supreme Court “has discretion” to
award attorney’ fees to a prevailing
party without regard to that standard,
“whether the party is the plaintiff or the
defendant.” (App. 55).
The Idaho Supreme Court accordingly did not con-
clude in its opinion that petitioner’s appeal of her
§ 1983 claim was frivolous, unreasonable, or without
foundation. In contrast, the court did refuse fees
under one of the Idaho fee-shifting statutes because it
could not find that petitioner’s appeal of her state-law
claims was brought “frivolously, unreasonably or
without foundation.” (App. 56). Rather than apply
that same standard to petitioner’s appeal of her
§ 1983 claim, the court awarded fees against her on
the appeal of that claim because it believed that the
§ 1983 claim was “clear{ly]” barred by qualified
immunity. (App. 55). Although the court did not
explain that determination, its reasoning — coupled
with its explicit use of the “frivolous, unreasonable, or
without foundation standard” for applying an Idaho
fee-shifting statute — leaves no doubt that the court
stopped short of finding petitioner’s appeal of her
§ 1983 claim “meritless in the Christiansburg sense,”
15
as this Court required in Hughes, 449 U.S. at 15, for a
fee award against a § 1983 plaintiff.
This Court, however, said nothing in Christians-
burg or Hughes to suggest that its interpretation of
Title VII and § 1988 applies only in lower federal
courts. To the contrary, the Court’s reasoning applies
equally to suits in federal court and state court.
In Christiansburg, the Court addressed “under
what circumstances an attorneys fee should be
allowed when the defendant is the prevailing party in
a Title VII action.” 434 U.S. at 414. The Court reject-
ed both the defendant’s and the plaintiff’s proffered
interpretations of Title VII's fee-shifting provision.
The defendant (a garment company) argued that a
prevailing defendant should be entitled to an award
of fees under the same standard as a prevailing
plaintiff. The Court rejected that argument because
of “two strong equitable considerations” that justify
treating prevailing plaintiffs more favorably than
prevailing defendants in Title VII suits. Jd. at 418.
First, the plaintiff “is the chosen instrument of Con-
gress to vindicate a policy that Congress considered of
the highest priority.” Jd. Second, an award in favor of
a prevailing plaintiff is an award against “a violator
of federal law.” Jd. Those two considerations apply
tegardless whether the plaintiff sues in state court or
federal court.
_ The plaintiff EEOC argued in Christiansburg
that fees should be awarded to a prevailing defendant
if the plaintiff’s action was brought in bad faith.
16
The Court found this argument inconsistent with
congressional intent. The Court explained that it
would not lightly assume that Congress intended to
“distort” the adversary process by “giving the private
plaintiff substantial incentives to sue, while foreclos-
ing to the defendant the possibility of recovering his
éxpenses in resisting even a groundless action unless
he can show that it was brought in bad faith.” Jd. at
419. The Court found no evidence of congressional
intent to so distort the process. See id. at 420. Thus,
the Court’s rationale for rejecting the plaintiff
EEOC’s interpretation, like its rationale for rejecting
the defendant garment company’s interpretation,
drew no distinction between suits in federal court and
those in state court.
The Court in Christiansburg ultimately adopted
a standard for awarding fees to prevailing Title VII
defendants that appropriately accommodated “the
competing considerations” and reflected Congress’s
intent as best the Court could discern it. /d. at 420,
421. The Court in Hughes adopted the same stan-
dard, on the same basis, for prevailing § 1983 defen-
dants. See Hughes, 449 U.S. at 14. None of those
considerations varies depending on whether a plain-
tiff sues in federal or state court. Nor is it tenable
that Congress intended different standards for fee
awards, depending on whether a plaintiff sues in
federal or state court.
Although the Court in Christiansburg described
the standard that it adopted as the one that “should
inform a district court’s discretion” (id. at 417
17
(emphasis added)), that description does not limit the
applicability of the standard to lower federal courts.
The Court’s description simply reflected one or more
of three circumstances:
(1) the case before it arose in a district
court, id. at 415;
(2) the case presented a question “about
which the federal courts ha[d] expressed
divergent views,” id. at 414;
(3) the Court addressed the standard that
federal district courts should use be-
cause most Title VII actions were
brought in federal courts, rather than in
state courts, at the time of the Court’s
decision in 1978.°
Under these circumstances, coupled with the Court’s
reasoning (discussed above), the Court’s holding
in Christiansburg plainly is not limited to federal
courts.
This is not a situation in which a decision of this
Court does not bind a state court. Specifically, the
* This Court did not decide until 1990 that state and federal
courts have concurrent jurisdiction over Title VII actions. Yellow
Freight System, Inc. v. Donnelly, 494 U.S. 820, 823-826 (1990).
In Donnelly, this Court noted that at the time of its decision,
four federal courts of appeals had held that federal courts have
exclusive jurisdiction over Title VII actions, and that, in 1980,
the EEOC likewise had taken the position in this Court that
federal courts have exclusive jurisdiction over Title VII actions.
Id. at 822 n.2.
18
decisions in Christiansburg and Hughes do not inter-
pret a federal statute that applies only in the federal
courts. Cf. Johnson v. Fankell, 520 U.S. 911, 916
(1997). Nor do Christiansburg and Hughes rest on
this Court’s supervisory power over the lower federal
courts. See generally Sanchez-Llamas v. Oregon, 548
U.S. 331, 345, 346 (2006).
Rather, Christiansburg Garment and Hughes rest
on this Court’s conclusion that the “frivolous, unrea-
sonable, or without foundation” standard for fee
awards to prevailing defendants reflects the “correct”
interpretation of Title VII’s fee-shifting provision and
§ 1988. Christiansburg, 434 U.S. at 421 (emphasis
added); see also Hughes, 449 U.S. at 14. The Idaho
Supreme Court was bound by that interpretation.
B. The Idaho Supreme Court’s Decision
Conflicts with Decisions of this Court Es-
tablishing the Supremacy of this Court’s
Interpretation of Federal Statutes.
The Idaho Supreme Court’s decision conflicts
with the many decisions in which this Court has
made clear that state courts must follow this Court’s
interpretation of federal statutes.
The most recent such decision is Nitro-Lift Tech-
nologies, L.L.C. v. Howard, 133 8. Ct. 500 (2012) (per
curiam). There, the Court reviewed a decision of the
Oklahoma Supreme Court declaring two noncompeti-
tion agreements invalid under Oklahoma law. Al-
though those agreements had arbitration clauses, the
19
Oklahoma Supreme Court decided the validity of the
agreements itself, rather than leaving the issue to the
arbitrator. The Oklahoma Supreme Court “chose to
discount” decisions of this Court interpreting the
Federal Arbitration Act (FAA) to require an arbitra-
tor, not a court, to decide the validity of agreements
with valid arbitration clauses. Jd. at 502. The Okla-
homa Supreme Court “acknowledged” this Court’s
decisions, but concluded that “its [own] jurisprudence
controls this issue.’” Jd. at 503 (quoting Oklahoma
Supreme Court’s opinion; bracketed text inserted by
Court in Nitro-Lift).
This Court vacated the Oklahoma Supreme
Court’s judgment. This Court observed that “the
substantive law the [FAA] created [is] applicable in
state and federal courts.” /d. (internal quotation
marks omitted; first bracketed text added; second
bracketed text inserted by Court in Nitro-Lift). The
Court explained that this Court’s decisions interpret-
ing the FAA are, like the FAA itself, equally applica-
ble in and binding on the state courts:
[T]he Ok!ahoma Supreme Court must abide
by the FAA, which is “the supreme Law of
the Land,” U.S. Const., Art. VI, cl. 2, and by
the opinions of this Court interpreting that
law. “It is this Court’s responsibility to say
what a statute means, and once the Court
has spoken, it is the duty of other courts to
respect that understanding of the governing
rule of law.”
20
Nitro-Lift, 133 S. Ct. at 503 (quoting Rivers v. Road-
way Express, Inc., 511 U.S. 298, 312 (1994)).
The reasoning of Nitro-Lift applies equally here.
Section 1988 applies in state courts, like Idaho’s, that
entertain actions under § 1983. See, e.g., Sprague v.
City of Burley, 710 P.2d 566, 577-579 (Idaho 1985)
(reversing summary judgment for police officers in
action asserting excessive-force claim under § 1983).
In state-court actions where § 1988 applies, the state
courts must abide not only by § 1988 but also by this
Court’s decisions interpreting § 1988. Just as the
Oklahoma Supreme Court could not disregard this
Court’s decisions interpreting the FAA, the Idaho
Supreme Court could not ignore this Court’s decisions
in Christiansburg and Hughes.
Nitro-Lift accords with two centuries of prece-
dent. By the same token, the Idaho Supreme Court’s
decision conflicts with that same precedent by erro-
neously treating this Court’s interpretation of a
federal statute as separate from, and of a lower
status than, the statute itself. When this Court
construes a federal statute, that construction reflects
“the true construction” that binds all courts. Elmen-
dorf v. Taylor, 23 U.S. 152, 160 (1825) (per Marshall,
C.J.). State courts have no more discretion to “depart
from that construction, than to depart from the words
of the statute.” Jd. (making this statement with
reference to a court’s departure from the interpreta-
tion of another nation’s laws by the courts of that
nation). To the contrary, this Court’s interpretation
of a federal statute — like a state supreme court's
21
interpretation of a statute of that State — is as bind-
ing “as if written into the statute[]” itself. Hebert v.
Louisiana, 272 U.S. 312, 317 (1926) (making this
statement with reference to state supreme court's
interpretation of state statutes).
A state court cannot disregard this Court’s inter-
pretation of a federal statute just because, in the
state court’s estimation, this Court’s interpretation
“limit[s] the discretion of state courts” in a way that
“is not contained in the statute.” (App. 55). Were
state courts free to do so, they could ignore many
decisions in which this Court has interpreted 42
U.S.C. § 1988 and other federal fee-shifting statutes
to constrain the “discretion” expressly granted in
those statutes. For example, this Court interpreted a
discretionary fee-shifting provision in the Civil
Rights Act of 1964 to hold that a prevailing plaintiff
“should ordinarily recover an attorney’s fee unless
special circumstances would render such an award
unjust.” Newman v. Piggie Park Enterprises, 390 U.S.
400, 402 (1968) (per curiam). State courts cannot
* See also, e.g., United States v. Gilbert Assocs., 345 U.S.
361, 363 n.23 (1953) (“The Supreme Court of New Hampshire
freely concedes * * * , as it must, that the meaning of a federal
statute is for this Court to decide.”); South Carolina v. Bailey,
289 U.S. 412, 420 (1933) (“[I}t was the duty of [the state court) to
administer the law prescribed by the Constitution and statute of
the United States, as construed by this Court.”); Provident Inst.
for Savings v. Massachusetts, 73 U.S. 611, 628, 629 (1867)
(“[Tjhe decisions of this court in cases involving Federal ques-
tions are conclusive authorities in the State courts * * * .”).
22
ignore this interpretation — which “vindicate(s) a
policy that Congress considered of the highest priori-
ty,” id. — even though it constrains their discretion
and the Court did not tie its interpretation to explicit
statutory text. State courts have no more discretion
to ignore this Court’s decisions interpreting § 1988
and other fee-shifting statutes than they do to ignore
this Court’s decisions interpreting § 1983 and other
rights-protecting statutes. Cf Howlett v. Rose, 496
U.S. 356, 376 (1990) (“[S]ince th[is) Court has held
that municipal corporations and similar governmen-
tal entities are ‘persons,’ a state court entertaining a
§ 1983 action must adhere to that interpretation.”)
(citations omitted).
Most fundamentally, the Idaho Supreme Court’s
decision conflicts with decisions of this Court estab-
lishing its power to review state court decisions that
rest on federal law. Those decisions include Martin v.
Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), in
which the Court held that its appellate jurisdiction
under Article II], §2, clause 2, extends to cases
decided by state courts. 14 U.S. at 351. The Court
based this holding partly on its view of one of the
motives that induced the Constitution’s grant of
appellate jurisdiction over the state courts’ decisions:
That motive is the importance, and even ne-
cessity of uniformity of decisions throughout
the whole United States, upon all subject
within the purview of the Constitution.
Judges * * * in different states, might differ-
ently interpret a statute, or a treaty of the
23
United States, or even the constitution itself:
If there were no revising authority to control
these jarring 2nd discordant judgments, and
harmonize them into uniformity, the laws,
the treaties, and the constitution of the
United States would be different in different
states * * * . The public mischiefs that would
attend such a state of things would be truly
deplorable; and it cannot be believed that
they could have escaped the enlightened
convention which formed the constitution.
Id. at 347, 348 (emphasis in original).
This Court could not achieve the uniform inter-
pretation of federal statutes if its decisions interpret-
ing those statutes did not bind state courts. By
refusing to be bound by this Court’s decisions in
Christiansburg and Hughes, the Idaho Supreme
Court denied the premise of Martin v. Hunter’s Lessee
and this Court’s tradition of reviewing, and correct-
ing, state court decisions interpreting federal stat-
utes.’
" See, e.g., Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct.
852 (2014) (reversing Colorado Supreme Court decision inter-
preting federal Aviation and Transportation Security Act);
Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (reversing
South Carolina Supreme Court decision interpreting federal
Indian Child Welfare Act); Norfolk S. Ry. Co. v. Sorrell, 549 U.S.
158 (2007) (vacating and remanding Missouri Court of Appeals
decision interpreting Federal Employers’ Liability Act).
24
Ii. The Idaho Supreme Court’s Decision Con-
flicts with Decisions of Other Lower
Courts.
A. The Idaho Supreme Court’s Decision
Conflicts with Decisions of Other
State Supreme Courts That Follow
Hughes v. Rowe and Christiansburg
Garment Co. v. EEOC.
In DeNardo v. Municipality of Anchorage, 775
P.2d 515 (Alaska 1989), the Alaska Supreme Court
recognized its obligation to follow Hughes v. Rowe and
Christiansburg Garment Co. v. EEOC when it denied
a defendants request for attorney fees under § 1988.
The Alaska court recognized that, while the statute
did not speak explicitly to the propriety of awarding
attorney fees to prevailing defendants, there was
little doubt as to congressional intent:
[Plaintiffs] should not be deterred from
bringing good faith actions to vindicate the
fundamental rights here involved by the pro-
spect of having to pay their opponent’s coun-
sel fees should they lose. Such a party, if
a»successful, could be assessed his oppo-
nent’s fee only when it is shown that his suit
was clearly frivolous, vexatious, or brought
for harassment purposes. S.Rep. No. 1011,
94th Cong., 2nd Sess. 4 (1976) (citations
omitted), reprinted in 1976 U.S. Code Cong.
& Admin. News at 5912.
DeNardo, 775 P.2d at 518 (internal quotation marks
omitted). The Alaska court further noted that:
25
“(t]he United States Supreme Court has en-
forced this intent, holding that a civil rights
defendant may recover attorneys fees from
the plaintiff only if the court finds ‘that the
plaintiff’s action was frivolous, unreasonable
or without foundation, even though not
brought in subjective bad faith.’” Hughes v.
Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 178, 66
L.Ed.2d 163, 172 (1980) (quoting Christians-
burg Garment Co. v. EEOC, 434 U.S. 412,
422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648, 657
(1978)).
DeNardo, 775 P.2d at 518.
DeNardo is consistent with virtually every other
state appellate court where a reported decision can be
found. See, e.g., Johnson v. City of Mobile, __ So. 3d
__, 2015 WL 5725089, at *16-*17 (Ala. Sept. 30,
2015) (applying Christiansburg to fee request under
Title VII by prevailing defendant); Est. of Bohn v.
Scott, 915 P.2d 1239, 1249 (Ariz. App. 1st Div. 1996)
(applying Christiansburg to fee request by prevailing
defendant in ADA case); California Correctional Peace
Officers Assn. v. Virga, 181 Cal. App. 4th 30, 38
n.7 (Cal. App. ist Dist. 2010) (dicta stating that
Christiansburg applies to fee request by prevailing
defendants under § 1988); State v. Golden’s Concrete
Co., 962 P.2d 919, 926, 927 (Colo. 1998) (holding that
Hughes applied to fee request by prevailing defendant
under § 1988); Singhaviroj v. Bd. of Educ. of Town of
Fairfield, 17 A.3d 1013, 1022-1025 (Conn. 2011)
(applying Christiansburg and Hughes to fee request
under § 1988 by prevailing defendants); Alley v.
26
Taylor, 2001 Del. Super. LEXIS 119 (Del. Super. Ct.
Mar. 30, 2001) (same); Moran v. City of Lakeland, 694
So. 2d 886, 887 (Fla. 2d Dist. App. 1997) (in analyzing
prevailing defendant’s fee request under § 1988,
citing Hensley v. Eckerhart, 461 U.S. 424, 429 n.2
(1983), which cited Christiansburg); LaBarre uv.
Payne, 329 S.E.2d 533, 535, 536 (Ga. App. 1985)
(applying Hughes to fee request under § 1988 by
prevailing defendant); Peraica v. Riverside-Brookfield
High Sch. Dist. No. 208, 999 N.E.2d 399, 409 (Il.
App. 1st Dist. 2013) (same); Davidson v. Boone Cty.,
745 N.E.2d 895, 898 n.4, 899 n.6 (Ind. Ct. App. 2001)
(apparently using Christiansburg standard to fee
request under § 1988 by prevailing defendant);
Chenevert v. Hilton, 978 So. 2d 1078, 1086 (La. App.
3d Cir. 2008) (applying Christiansburg to fee request
under § 1988 by prevailing defendants); State v.
Maine State Troopers Ass’n, 491 A.2d 538, 544 (Me.
1985) (in analyzing prevailing defendant’s fee request
under § 1988, citing Hensley v. Eckerhart, 461 US.
424, 429 n.2 (1983), which cited Christiansburg);
Simonian v. Town of Hull, 1993 Mass. Super. LEXIS
17 (Mass. Super. Ct. 1993) (applying Hughes to fee
request under § i988 by prevailing defendant); Var-
ney uv. O’Brien, 383 N.W.2d 213, 216, 217 (Mich. App.
1985) (in analyzing prevailing defendants’ fee request
under § 1988, citing Hensley v. Eckerhart, 461 U.S.
424, 429 n.2 (1983), which cited Christiansburg),
remanded on other grounds sub nom. Varney v.
Genesee County Sheriff, 393 N.W.2d 1 (Mich. 1986);
Revering v. Ackerson, 1995 WL 130618, at *2 (Minn.
App. 1995) (applying Hughes and Christiansburg to
27
fee request under § 1988 by prevailing defendants);
Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998,
1010 (Miss. 1992) (applying Christiansburg to fee
request under §1988 by prevailing defendants);
Shepherd v. Carbon County Bd. of Comm’rs, 46 P.3d
634, 638 (Mont. 2002) (applying Hughes to fee request
by defendant who prevailed on § 1983 claim); Cuzze v.
Univ. & Cmty. Coll. Sys., 172 P.3d 131, 136 & n.17
(Nev. 2007) (applying Hughes in reviewing request
under § 1988 by prevailing defendants); Studio 45
Discotheque, Inc. v. City of Union, 2008 WL 583795,
at *7-*8 (N.J. Super. Ct. App. Div. Mar. 5, 2008)
(same); Shields v. Carbone, 952 N.Y.S.2d 649, 651
(N.Y. App. Div. 2012) (applying Christiansburg to fee
request under §1988 by prevailing defendants);
Rubio v. Carlsbad Mun. Sch. Dist., 744 P.2d 919, 923,
924 (N.M. App. 1987) (applying Christiansburg to fee
request under § 1988 by prevailing defendants);
Miller v. Henderson, 322 S.E.2d 594, 598 (N.C. Ct.
App. 1984) (same); Lucas v. Riverside Park Condo.
Unit Owners Ass’n, 776 N.W.2d 801, 813 (N.D. 2009)
(applying Christiansburg standard to fee request
under federal Fair Housing Act’s fee-shifting provi-
sion); Shuba v. Austintown Bd. of Educ., 1985 WL
10371, at *20 (Ohio Ct. App. 1985) (applying Chris-
tiansburg to fee request under § 1988, when both
parties agreed to its applicability); Oklahoma Person-
nel Serv. v. Alternate Staffing, Inc., 817 P.2d 1265,
1267 (Okla. 1991) (applying Christiansburg to fee
request by prevailing defendant on Title VII claim);
Park v. Dept. of Corrections, 307 P.3d 503, 508-510 &
n.3 (Or. Ct. App. 2013) (applying Christiansburg to
28
fee request by prevailing defendant on Title VII
claim, while noting, “We apply federal substantive
law to federal claims brought in state court.”); Mc-
Carthy v. Oregon Freeze Dry, Inc., 327 Ore. 185, 189,
190 n.3, 957 P.2d 1200 (Ore. 1998); Bitgood v. Allstate
Ins. Co., 481 A.2d 1001, 1008 (R.I. 1984) (dicta stating
Christiansburg governed fee request by prevailing
defendant on § 1983 claim); City of Waco v. Hester,
805 S.W.2d 807, 817 (Tex. Ct. App. 1990) (applying
Christiansburg to fee request under § 1988 by pre-
vailing defendant); Gardner v. Bd. of County Comm’rs
of Wasatch County, 178 P.3d 893, 906 (Utah 2008)
(same); Washington State Republican Party v. Wash-
ington State Pub. Disclosure Comman., 4 P.3d 808, 832
(Wash. 2000) (same); Dowd v. City of New Richmond,
405 N.W.2d 66, 78 (Wis. 1987) (same).”
B. The Idaho Supreme Court’s Decision
Conflicts with Decisions of Other State
Supreme Courts That Recognize the
Supremacy of this Court’s Decisions
Interpreting Federal Statutes.
The fundamental concept that state courts are
bound by United State Supreme Court decisions
construing federal law is plainly followed in virtually
all states. The Idaho Supreme Court’s statement that
it is not bound to follow this Court’s interpretation of
* Petitioners’ research has not identified a single state court
that refused to follow and apply the federal standard for an
award of attorney fees under § 1988.
29
a federal statute conflicts with the vast majority of
states who hold otherwise. See, e.g., Haywood uv.
Alexander, 121 So. 3d 972, 981 (Ala. 2013); Gates v.
Discovery Commce’ns, Inc., 34 Cal. 4th 679, 692, 101
P.3d 552, 560 (Cal. 2004); M.S. v. People, 2013 CO 35,
303 P.3d 102, 106 (Colo. 2013); Grp. Dekko Servs. LLC
v. Miller, 717 N.E.2d 967, 969 (Ind. Ct. App. 1999);
Littlefield v. State, 480 A.2d 731, 737 (Me. 1984);
Riley v. Gibson, 338 S.W.3d 230, 235 (Ky. 2011);
Commonwealth v. Pon, 469 Mass. 296, 308, 14 N.E.3d
182, 194 (Mass. 2014); Afzali v. State, 326 P.3d 1, 3
(Nev. 2014); State v. Coleman, 214 A.2d 393, 402 (N.J.
1965); Flanagan v. Prudential-Bache Sec., Inc., 495
N.E.2d 345, 348 (N.Y. 1986); Shaw v. PACC Health
Plan, Inc., 908 P.2d 308, 314 n.8 (Or. 1995); Barstow
v. State, 742 S.W.2d 495, 501 n.2 (Tex. App. 1987);
People v. Gillam, 479 Mich. 253, 261, 734 N.W.2d 585,
590 (Mich. 2007); In re Fifth Third Bank, Nat. Ass’n,
216 N.C. App. 482, 488, 716 S.E.2d 850, 855 (N.C.
2011); Commonwealth v. Tedford, 598 Pa. 639, 664,
960 A.2d 1, 15 (Pa. 2008); Jaynes v. Commonwealth,
276 Va. 443, 458, 666 S.E.2d 303, 311 (Va. 2008);
Youngbluth v. Youngbluth, 2010 VT 40, 4 16, 188 Vt.
53, 65, 6 A.3d 677, 684, 685 (Vt. 2010); State v. Rad-
cliffe, 164 Wash. 2d 900, 906, 194 P.3d 250, 253
(Wash. 2008); State v. Mechte!. 499 N.W.2d 662, 666
(Wis. 1993).
30
Ill. The Question Presented Has Surpassing
Importance for the Uniform Enforcement
of Federal Rights in State Courts.
In private actions to enforce federal rights, “the
circumstances under which attorneys’ fees are to be
awarded and the range of discretion of the courts in
making those awards are matters for Congress to
determine.” Alyeska Pipeline Serv. Co., Inc. v. Wilder-
ness Society, et al., 421 U.S. 240, 262 (1975). This
Court, in turn, has often granted certiorari to ensure
that the federal statutes authorizing such fees are
applied uniformly and consistently with Congress’s
intent.” The decision below threatens this Court’s
ability to fulfill that function.
The threat stems from the Idaho court’s view
that a decision of this Court interpreting a federal
statute cannot bind a state court if it imposes a
limitation on the state court’s discretion that is not in
the text of the statute. On this view, for example, a
state court could award fees against a § 1983 plaintiff
under circumstances that would not justify a fee
award in federal court. Indeed, that is what happened
here, as discussed in Part IV.B, infra. Likewise, a
state court could be less generous than federal courts
to plaintiffs seeking fees under the discretionary fee-
shifting provisions of Title VII and other statutes
* See, e.g., Octane Fitness, LLC v. ICON Health & Fitness,
Inc., 134 S. Ct. 1749 (2014); Sebelius v. Cloer, 133 S. Ct. 1886
(2013); Lefemine v. Wiedman, 133 S. Ct. 9 (2012); Fox v. Vice, 563
U.S. 826 (2011); Astrue v. Ratliff, 560 U.S. 586 (2010).
31
protecting federal rights.” State courts could thereby
effectively shut their doors to all but unwitting plain-
tiffs asserting federal rights.
The decision below poses risks to defendants, as
well as plaintiffs, in state-court actions to enforce
federal rights. That is because the decision below
allows state courts to be more, as well as less, gener-
ous to plaintiffs than the federal courts would be in
awarding fees under § 1988 and similar federal fee-
shifting statutes. For example, this Court has held
that only in “rare and exceptional circumstances” can
a court consider superior attorney performance when
awarding a plaintiff fees under § 1988. Perdue uv.
Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). But
since that “limitation” is “not contained in” the text of
§ 1988 (App. 55), the decision below would allow a
state court to ignore it by routinely enhancing fee
awards to plaintiffs under § 1988 for their attorneys’
superior performance.
In short, the decision below has great importance
because it deters plaintiffs from enforcing federal
rights in state courts. Perhaps its chief importance
lies in its threat to this Court’s ability to ensure that
federal fee-shifting statutes are applied correctly and
* See, eg., 20 U.S.C. § 1415(iX3XB) (discretionary fee-
shifting provision in Individuals with Disabilities Education
Act); 29 U.S.C. § 794a(b) (similar provision in Rehabilitation
Act); 42 U.S.C. § 3613(cX2) (similar provision in Fair Housing
Amendments Act of 1988); 42 U.S.C. § 12205 (similar provision
in Americans with Disabilities Act).
32
uniformly in the state courts as well as the federal
courts. That ability has surpassing importance given
the essential role that state courts play in enforcing
federal rights. Burt v. Titlow, 134 S. Ct. 10, 15 (2013).
IV. This Case Is An Appropriate Vehicle for
Review of the Question Presented.
This is an appropriate case, and this is an appro-
priate time, for the Court to review the question
presented. The question presented was properly
presented and passed upon below. The Idaho Su-
preme Court’s erroneous ruling on that question was
outcome-determinative. Finally, although the Idaho
Supreme Court’s error is obvious, its very obviousness
begs correction, coming, as it does, in an action to
enforce federal rights, and at a time of some disturb-
ing instances of state-level defiance of federal-law
supremacy.
A. The Question Presented Was Pressed
and Passed Upon Below.
In seeking fees against petitioner on her § 1983
claim, respondents acknowledged that they had to
satisfy the standard this Court established in Chris-
tiansburg and Hughes. (App. 136). The Idaho Su-
preme Court sua sponte determined that it was not
bound by that standard. (App. 55). The court thereby
injected into this case the question presented in this
petition. Petitioner had no opportunity to address
that question before its petition for rehearing. Under
33
those circumstances, petitioner timely raised the
federal question in the courts below. See, e.g., Stop
the Beach Renourishment, Inc. v. Fla. Dept. of Env.
Protection, 560 U.S. 702, 712 n.4 (2010).
Petitioner could not have foreseen that the Idaho
Supreme Court would deny the binding effect of
Christiansburg and Hughes. Indeed, in two earlier
cases, the Idaho Supreme Court applied the federal
standard in denying attorney’s fees to a prevailing
defendant under 42 U.S.C. § 1988. Nation v. State,
Dept. of Correction, 158 P.3d 953, 969 (Idaho 2007);
Karr v. Bermeosolo, 129 P.3d 88, 93 (Idaho 2005)." In
no prior decision had the Idaho Supreme Court said
or implied that the Christiansburg/Hughes standard
was not binding on it. Cf. Herndon v. Georgia, 295
U.S. 441, 442-446 (1935). It is therefore no surprise
that not even respondents questioned the applicabil-
ity of the Christiansburg/Hughes standard.
Because petitioner timely sought rehearing of the
Idaho Supreme Court’s surprising decision on the
question presented, that question is properly present-
ed to this Court. See Stephen M. Shapiro, et al.,
Supreme Curt Practice 195 (10th ed. 2013).”
" Petitioner cited and discussed these two prior Idaho Su-
preme Court cases in her rehearing petition. (App. 143, 144).
* Review by this Court is not barred by lack of finality. The
Idaho Supreme Court entered a separate order setting the
amount of attorney's fees payable by petitioner under § 1988
shortly after issuing its opinion affirming the dismissal of her
(Continued on following page)
34
B. The Idaho Supreme Court’s Ruling on
the Question Presented Was Outcome-
Determinative.
The Idaho Supreme Court’s decision on the
question presented affected the outcome. The Idaho
court would not have awarded fees against petitioner
under § 1988 if it had analyzed the respondents’
request for fees under the Christiansburg/Hughes
standard. Indeed, the Idaho court’s own opinion
proves the point. The court obviously believed that
the standard mattered. Otherwise, why would it go
out of its way — without benefit of briefing or argu-
ment — expressly to deny the applicability of that
standard?
Moreover, while petitioner does not seek further
review of the Idaho court’s conclusion that her exces-
sive-force claim was barred by qualified immunity,
petitioner must highlight weaknesses in the court’s
qualified-immunity analysis, to show that no reason-
able court could have found petitioner’s excessive-
force claim “meritless in the Christiansburg sense.”
Hughes, 449 U.S. at 15.
The Idaho Supreme Court’s qualified-immunity
analysis rested on three Ninth Circuit cases involving
excessive-force claims arising from police dog attacks.
(App. 12-34). The Idaho court thought these cases
“clear[ly]” established a defense of qualified immunity
claims and finding her eligible for those fees. (App. 131, 132);
cf. Radio Station WOW v. Johnson, 326 U.S. 120, 127 (1945).
35
in this case, even if “there was some significant
factual difference” between this case and Watkins v.
City of Oakland, 145 F.3d 1087 (9th Cir. 1998), the
Ninth Circuit case that was “most similar” to this
case. (App. 34). The Idaho court also believed that
at the time of the dog attack on petitioner in 2010,
“there [was] no clearly established controlling author-
ity” holding “that the use of a police dog to bite and
hold a suspect constitutes excessive force.” (App. 20).
This analysis has several defects. First, the Idaho
court assumed that the merits of an excessive-force
claim under § 1983 depends on whether the existence
of a qualified-immunity defense is clear in hindsight.
But that assumption is dubious. It implies that under
§ 1988 a court can award fees even against a § 1983
plaintiff who proves a constitutional violation, if the
violation was far from clear under established law.
Such awards, however, would punish a plaintiff for
asserting a meritorious (though novel) constitutional
claim, and would thus “distort” the litigation of
constitutional rights in a way that Congress could not
have intended. Cf. Christiansburg, 434 U.S. at 419.
Furthermore, the idaho court erred in relying on
the supposed absence of precedent holding “that the
use of a police dog to bite 1 hold a suspect consti-
tutes excessive force.” (A; 20). For one thing, it is
easy to imagine situations where the use of a police
dog to bite and hold a suspect — a suspected jaywalk-
er, for example — would violate clearly established law
even without precedent so holding. Cf. United States
v. Lanier, 520 U.S. 259, 271 (1997). In any event, the
36
Idaho court misunderstood the precedent. At the time
of the dog attack in the present case, the Ninth
Circuit had held that the use of a police dog to subdue
a suspect can constitute constitutionally excessive
force. See Smith v. City of Hemet, 394 F.3d 689, 700-
704 (9th Cir. 2005) (en banc), cert. denied, 545 U.S.
1128 (2005) (reversing summary judgment against
plaintiff on his claim that use of police dog involved
excessive force).
If the Idaho Supreme Court had properly applied
the Christiansburg/Hughes standard — and had
properly applied it to petitioner’s claim, as distin-
guished from respondents’ defense — the court could
not reasonably have awarded fees against petitioner.
That is so because of the evidence discussed in Jus-
tice Jones’ concurrence. (App. 57-63). That evidence
came from petitioner’s expert, who had extensive
education and experience in law enforcement, includ-
ing as a canine instructor and supervisor. As Justice
Jones explained, the expert’s evidence created triable
issues of whether the police had probable cause to
believe petitioner was a burglar, and, even if so,
whether their use of the police dog to bite and hold
her was excessive under the circumstances. (App. 58,
59).
In short, the question presented not only has
broad importance but also was dispositive in this
case.
37
C. The Question Presented Concerns the
Supremacy of this Court’s Decisions in
the Fundamentally Important and
Timely Context of the Enforcement of
Federal Civil Rights.
At first blush, the Idaho Supreme Court’s error
may seem so obvious as not to warrant further re-
view. But its very obviousness warrants correction
considering the context in which it occurs.
First, the state court’s refusal to be bound by
decisions of this Court occurs in the context of a
§ 1983 action to enforce federal civil rights. As this
Court said of § 1983’s precursor, “[a] major factor
motivating the expansion of federal jurisdiction
through §§ 1 and 2 of the [Civil Rights Act of 1871]
was the belief of the 1871 Congress that the state
authorities had been unable or unwilling to protect
the constitutional rights of individuals or to punish
those who violated these rights.” Patsy v. Bd. of
Regents of Florida, 457 U.S. 496, 505 (1982). The
unable or unwilling state authorities included “local
courts.” Id. (quoting legislative history). Under the
Idaho Supreme Court’s decision, however, state courts
would have discretion to treat § 1983 plaintiffs less
hospitably than their counterparts in federal court,
by awarding attorney's fees against them under
circumstances that would not trigger an award in
federal court. This inhospitable treatment of plain-
tiffs asserting federal rights presents precisely the
situation that Congress enacted § 1983’s precursor to
mitigate. See Patsy, 457 U.S. at 503, 506. Because
38
this case involves state-court adherence to this
Court’s decisions concerning the enforcement of
federal rights, it is an auspicious case for review of
the question presented.
This is also an auspicious time for review. Re-
cently there have been several disturbing instances
of state-level resistance to this Court’s decision in
Obergefell v. Hodges, 135 S.Ct. 2584 (2015). They
include a state supreme court justice’s declaration
that state court judges are not bound by decisions of
this Court that misinterpret the U.S. Constitution.”
The incidents also include the continued refusal of
many county officials to obey Obergefell.'* While
public debate is healthy, the outright refusal by state
and local officials to abide by this Court’s decisions
interpreting federal law corrodes federal-law suprem-
acy.
* Charles J. Dean, Moore: Gay marriage ‘not in accordance
with the Constitution’ (Mobile, AL), Press-Register, July 1, 2015,
at Al0.
‘ Ballotpedia, Local government responses to Obergefell v.
Hodges (Oct. 2, 2015):
As of October 2, 2015, Ballotpedia found 99.90 percent
of the U.S. population lived in a county where same-
sex marriage licenses are available; 0.10 percent lived
in counties where licenses were not being issued or
their status was unknown. Alabama had the highest
state population without access to same-sex licenses,
with 5.78 percent of its residents living in counties
known to be refusing to issue licenses at that time.
39
CONCLUSION
The petition for a writ of certiorari should be
granted. Petitioner suggests that summary disposi-
tion may be appropriate.
Respectfully submitted,
JOHN A. BUSH
Counsel of Record
199 N. Capitol Blvd., Suite 500
Boise, ID 83701
(208) 344-7700
jabush@comstockbush.com
RICHARD H. SEAMON
1297 Highland Dr.
Moscow, ID 83843
October 15, 2015
App. 1
IN THE SUPREME COURT
OF THE STATE OF IDAHO
Docket No. 42053-2014
MELENE JAMES, ) Boise, April
Plaintiff-Appellant, =) 7015 Term
= ) 2015 Opinion No. 49
CITY OF BOISE, a ) Filed: May 21, 2015
political subdivision of ) Stephen W. Kenyon,
the State of Idaho; ) Clerk
STEVEN BONAS, )
STEVEN BUTLER, )
and TIM KUKLA, )
Defendants-Respondents. ‘
Appeal from the District Court of the Fourth Ju-
dicial District of the State of Idaho, in and for
Ada County. Hon. Steven J. Hippler, District
Judge.
The judgment of the district court is affirmed.
John A. Bush, Comstock & Bush, Boise, argued
for appellant.
Kelly K. Fleming, Assistant City Attorney, Boise,
argued for respondents.
EISMANN, Justice.
This is an appeal from a judgment dismissing
the plaintiff’s claims seeking to recover damages
App. 2
resulting from being bitten by a police dog when she
was mistaken for a burglar. We affirm the judgment
of the district court.
I.
Factual Background.
On Sunday, December 26, 2010, at about 5:22
p.m., a citizen made a 911 telephone call to report a
breaking and entering at a dental office in Boise. The
citizen told the operator that he was at his family’s
house and heard glass breaking at the dental office
across the street. When he went to investigate, he
saw a woman about halfway through a window. He
stated: “I talked to the lady, and she’s trying to get
her keys out of the building. She looks like she’s, uh,
under the influence of either drugs or major alcohol
or something.” When asked how the woman broke in,
the citizen stated that he heard breaking glass, he
was across the street, and she was halfway through
the glass. He then said, “She’s really lethargic, and I
think she’s probably under the influence of some alc-
er, uh, some drugs.” Later in the conversation, he
said: “I asked her if she’s okay, and she kinda looked
at me kinda crazy, and she’s not like really anger [sic]
or anything, but she’s like totally out of it. She’s
saying she’s trying to get her keys out of there.” The
operator asked if the woman was still in the building,
and the citizen answered: “I believe so, yes. She’s
kind of in the down basement part, and if she was to
come back out, I would be able to see her.” At about
App. 3
5:25 p.m., Boise police officers were dispatched to the
location of the dental office.
The first to arrive was Officer Butler, who ar-
rived at the scene at about 5:30 p.m. The building
was a single story office building with a basement.
The basement had windows to the outside and long
window wells, each of which served multiple base-
ment windows. There were wrought iron railings to
keep people from falling into the window wells.
Officer Butler met with the citizen, who was
standing on the north side of the building. He re-
ported that he had seen a woman break the window
and enter the building and that he believed she was
still in the downstairs part of the building. The officer
walked to the northeast corner of the building to a
point where he could see that a north-facing base-
ment window had been broken out. He then relayed
that information to the other responding officers.
As Officer Butler was looking for suspects, he
saw a woman through an east-facing basement win-
dow at the northeast corner of the building. She was
standing with her right side toward the window, and
she had a large can of a malt liquor beverage in her
left hand and what appeared to be a knife with a 4-5
inch blade in her right hand. She appeared to be rum-
maging through things on a workbench or table.’ He
‘ In his report, Officer Butler wrote that the woman was
“holding a Steele Reserve Malt liquor can in her left hand and
manipulating several sharp dental instruments including a
(Continued on following page)
App. 4
observed her briefly, and she then walked out of view.
The entire building was dark except the room in
which he had seen her standing.
Officer Barber and Sergeant Kukla arrived a few
minutes after Officer Butler. Officer Butler told them
what he had seen, that the suspect was still in the
building, and that she was armed with some kind of
an edged weapon. After additional officers arrived,
they established a perimeter around the building.
Officer Barber telephoned one of the dentists who
owned the building. The dentist came to the scene,
and Officer Barber heard him state that no one
should be in the building, especially no one who
entered by breaking a window. The cleaning lady also
came to the scene, and she told Officer Barber that
a woman worked in the building. When she began
to describe the woman, the dentist reiterated that
knife in her right hand.” The Plaintiff testified that she did not
have knives that she used or sharp instruments that look like
knives. The citizen who called 911 testified in his deposition that
he walked over to the window with Officer Butler when he ar-
rived and he stood by Officer Butler at the window ten or fifteen
seconds. During that time, the citizen stated that the woman
was simply standing there drinking from a 24-ounce can of beer,
that there was other beer on the countertop, and that he did not
see anything else in her hands. The citizen said that he then
walked away from the window because other officers were ar-
riving and one had come up to Officer Butler. The citizen stated
that he stood in the parking lot for about two minutes and then
walked back to his grandfather’s house.
App. 5
anyone who had to break into the building was not
supposed to be there, so the conversation ended.
At about 5:40 p.m., Sergeant Kukla requested a
patrol canine. Officer Bonas, a police officer who was
a canine handler, was told of that request when he
came on duty at 6:00 p.m. He was informed that there
was a request for a patrol canine for a burglary in
progress at a dental office. He arrived at the dental
office at about 6:10 p.m. and spoke with Officers
Barber and Butler and Sergeant Kukla. Lieutenant
Schoenborn was also there. Officer Bonas was in-
formed that a witness had seen a woman force entry
into the dental office by shattering a downstairs
window. Officer Butler stated that he had seen the
woman through a window and that she was armed
with a knife. Sergeant Kukla and Officer Barber
stated that the owner of the business was there and
informed them that no one should be inside the
building. Officer Bonas went to the northeast corner
of the building and saw the broken window. He also
observed that the entire upstairs and the majority of
the downstairs were dark. He then decided that the
use of a police dog was reasonable and necessary and
the safest way to search for the suspect in the build-
ing.
Officer Bonas made the initial decision to use a
police dog to find the suspect or suspects in the build-
ing. The factors he considered were: that the crime
involved was burglary, a felony; burglaries at other
local dental offices had occurred that month; one
suspect had been seen armed with a knife; dental
App. 6
offices contain nontraditional weapons; the suspect(s)
would have the tactical advantage of concealment and
could be lying in wait in the dark; Officer Butler had
used the public address system in a police car to
announce to the suspect inside the building that they
were police officers, that if the suspect did not sur-
render they would use a police dog, and that they
may be bitten;’ and that using a police dog would
be safer than having officers search the building,
because the officers would have their guns drawn,
increasing the danger to all parties involved. Lieu-
tenant Schoenborn, as watch commander, discussed
* Officer Bonas testified that Officer Butler used the public
address system in a patrol car to make the announcement before
the entry team walked up to the front door of the building.
Officer Butler testified that he made the announcement from his
patrol car and that he thought he did so at least ten minutes
before the dog entered the building. Officer Barber testified that
he moved his patrol car from where he had initially parked it so
that the public address system in the car could be used to make
an announcement, but he did not specifically recall whether
the announcement was made. Officer Harr testified that she
thought Officer Butler made an announcement using the public
address system of his patrol car prior to entry into the building.
The citizen who called 911 testified that he did not hear any an-
nouncements from his grandfather’s house, which was apparently
across the street, but his grandfather had installed very expen-
sive windows to decrease the sound because he lived on a very
busy street. He testified that he could hear sirens inside his
grandfather’s house, but there was no evidence that the decibel
rating of the patrol car’s public address system was comparable
to the decibel rating of a siren, which is required to be “a decibel
rating of at least one hundred (100) at a distance of ten (10)
feet.” I.C. § 49-623(3).
App. 7
the use of the dog with Sergeant Kukla, and then
authorized Officer Bonas to deploy the dog.
Officer Bonas then took the dog out of his car and
proceeded to the front door of the building, accompa-
nied by Sergeant Kukla and Officers Barber, Rapp,
Butler, and Harr. Officer Barber unlocked the door
using a key that had been obtained from either the
dentist or the cleaning lady. Officer Bonas announced
in a loud voice through the open door: “Suspect in the
building. Boise Police canine calling out. Surrender. If
you do not surrender — [barking]. Heel. If you do not
surrender a police dog will be sent. When he finds
you, he will bite you. This is your final warning
(barking].” There was no response from inside the
building, so the officers entered and began searching
the ground floor.
After about two minutes, they stopped near the
top of the stairs going to the basement. Officer Bonas
then made a second announcement, stating in a loud
voice: “Attention in the building. Boise Police canine
calling out. Surrender. If you do not surrender, a
police dog will be sent, and when he finds you he will
bite you. This is your final warning.” There was no
response.
They then continued searching the ground floor
part of the building, which took about six minutes.
They again stopped at the top of the stairs going to
* Officer Bonas had an audio recording device on his person.
App. 8
the basement. Officer Bonas made a third announce-
ment, stating in a loud voice: “Suspect downstairs.
Boise Police canine calling out. Surrender. If you do
not surrender. a police dog will be sent. When he
finds you, he wll bite you. This is your final warn-
ing.” There was no response.
Officer Bonas then decided to send the police dog
down the stairs into the basement. He could tell that
there was a light on downstairs and that the sides of
the stairs were walled, not open, so there was a blind
corner at the bottom of the stairs. He released the
dog from his leash, and the dog went down the stairs.
The officers remained at the top of the stairs. After
a while, the dog began barking, indicating that he
smelled the odor of a human. Because the human
odor could be carried by air movement up a wall,
across the ceiling, and down on the other side of a
room, locating the odor would not mean that the
person was located. Officer Bonas then gave the dog a
command to bite, which would cause the dog to use
his eyes and ears to find a person. After a few sec-
onds, Officer Bonas heard a female screaming from
the basement.
He headed down the stairs with the other officers
following him. At the bottom of the stairs he turned to
the left and saw a bathroom door that was open about
seven or eight inches. The screams were coming from
the bathroom, and he could see a human torso and
the police dog inside the bathroom. The bathroom
door then closed. Officer Rapp, who had a shield that
he could use for protection, pushed the door open. The
App. 9
interior of the bathroom was dark without any light
on, but Officer Bonas could see that the police dog
was biting the woman’s right arm. She was lying on
the floor. He yelled at her to show her hands, but she
did not comply. He then commanded the dog to re-
lease and lie down, and he did. Once the dog released,
Officer Bonas left the bathroom and moved with the
dog to a hallway where he could cover the other
officers.
Officer Harr, a female officer, was behind Officer
Bonas when the bathroom door was opened. She saw
a female lying on the floor. Her pants were pulled
down past her knees, and she was wearing a T-shirt.
Officer Harr helped pull the woman’s pants up. She
described the woman as being “completely out of it.
Intoxicated.” She stated that the woman “was com-
pletely lethargic, just slumped over, like completely
out of it.” After the woman was removed from the
bathroom, Officer Harr, Officer Bonas, and other of-
ficers continued searching the remainder of the base-
ment, but found no other suspects. The woman was
taken first to paramedics who were posted nearby
and then to the hospital. Testing at the hospital re-
vealed that she had a blood alcohol content of 0.27.
The woman was later identified as Melene James, the
Plaintiff.
The basement of the building had been leased to
a man who operated a dental laboratory making
crown bridges. Beginning on January 1, 2010, the
Plaintiff began using a small corner of the lab pursu-
ant to an oral agreement with the man that she
App. 10
would help him as needed in exchange for him per-
mitting her to use the laboratory to make orthodontic
appliances in her own business. The Plaintiff lived in
an apartment located about one-half block from the
dental building. At about 4:00 p.m. on December 26,
2010, a neighbor had called her, told her that a tooth
had fallen out of his denture and that he had an
important meeting the next day, and asked if she
could repair the denture that day. She agreed to do
so. He gave her the denture, and she walked to the
dental building to make the repairs. There was a
cement stairway outside the building providing ac-
cess to the basement. She had a key to the door, and
she walked down those stairs, unlocked the door, and
entered the basement. It took her about 20 to 30
minutes to make the repairs, but she then had to let
the acrylic cure for about 30 minutes. While it was
curing, she walked out the basement door to have a
cigarette. Once she was ready to return to her work,
she realized that the door had locked behind her and
her keys and cell phone were inside the building.
There was a basement window that was sometimes
left unlocked, so she walked up the stairs to where
that window was and climbed over the wrought-iron
railing and down into the window well. As she was
trying to open the window, she accidently broke it.
She had equipment running that could be a fire haz-
ard, and so she decided to crawl through the broken
window. While she was doing so, the citizen ap-
proached and asked if she needed any help. Once
inside the building, she did not telephone the man
who was permitting her to use the basement because
App. 11
she was afraid he would become upset and not allow
her to use the laboratory any more. She opened the
refrigerator to get some water and saw the can of
malt liquor. She decided to drink it in order to calm
down before calling him. She also did not attempt to
contact either of the dentists who owned the build-
ing.‘ She began doing the work to finish repairing the
dentures, and then went to the bathroom. She closed
the door, but may not have latched it. That is the last
thing she remembers. She did not hear the officers,
the announcements to surrender or she would be
bitten by a dog, or the dog barking in the basement
just before it bit her.
On October 4, 2012, the Plaintiff filed this action
against Officers Bonas and Butler, and Sergeants
Kukla and Likes (herein “the Police”) and City of
Boise. Sergeant Likes had not been at the scene and
had no involvement in what occurred, but he was the
patrol supervisor for the four patrol dogs. The Plain-
tiff alleged that the Defendants violated the Idaho
Tort Claims Act by committing the torts of assault,
battery, false arrest, wrongful imprisonment, and in-
tentional infliction of emotional distress and by neg-
ligently failing to train, supervise, and control the
* The Plaintiff testified in her deposition that she did not
know the dentists’ telephone numbers, but she did not testify
that she made any attempt to locate their numbers. Officer
Barber testified in his deposition that he telephoned the dentist
who later arrived at the scene and that he obtained the dentist’s
telephone number from the side of the building.
App. 12
police dog, allowing him to repeatedly bite Plaintiff.
She also alleged a claim under 42 U.S.C. § 1983, as-
serting that the Defendants violated her rights under
the Fourth, Fifth, and Fourteenth Amendments to the
Constitution of the United States by entering and
searching the laboratory where she worked, by seiz-
ing her, and by using excessive force in arresting her.
The Defendants moved for summary judgment,
and, after the motion was briefed and argued, the dis-
trict court issued a memorandum decision and order
granting the motion. It held that the Defendants were
entitled to qualified immunity with respect to the
federal claims; that pursuant to Idaho Code section 6-
904 they were not liable under the Idaho Tort Claims
Act for the alleged intentional torts; and that the
Plaintiff had failed to present evidence showing a
negligent failure to train, supervise, or control the
police dog. The court entered a judgment dismissing
all of the Plaintiff’s claims with prejudice. She filed a
motion for reconsideration and later a notice of ap-
peal. After briefing and argument on the motion, the
court entered an order denying the motion for recon-
sideration.
Il.
Did the District Court Err in Holding
that the Police Were Entitled to Qualified
Immunity with respect to the Federal Claims?
The Plaintiff sued under 42 U.S.C. § 1983, which
supplies a remedy for the deprivation under color of
App. 13
state law of federally protected rights. By the time
of the hearing on the motion for summary judgment,
the Plaintiff stated that her federal claim was that
the Police unconstitutionally used excessive force by
using a police dog to seize her.
This case was decided by the district court grant-
ing the Defendants’ motion for summary judgment. In
an appeal from a summary judgment, this Court’s
standard of review is the same as the standard used
by the trial court in ruling on a motion for summary
judgment. Infanger v. City of Salmon, 137 Idaho 45,
46-47, 44 P.3d 1100, 1101-02 (2002). All disputed facts
are to be construed liberally in favor of the non-
moving party, and all reasonable inferences that can
be drawn from the record are to be drawn in favor of
the non-moving party. Jd. at 47, 44 P.3d at 1102.
Summary judgment is appropriate if the pleadings,
depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Id. If the
evidence reveals no disputed issues of material fact,
then only a question of law remains, over which this
Court exercises free review. Id.
The district court granted summary judgment
with respect to the claim under 42 U.S.C. § 1983 on
the ground that there was no constitutional violation
because, under the circumstances in this case, the use
of a police dog to find and seize the Plaintiff was
objectively reasonable. The court also held that even
if there was a constitutional violation, the Police were
App. 14
entitled to qualified immunity because using a police
dog to find and seize the Plaintiff did not violate a
constitutional right that was clearly established on
the date of this incident.
“Qualified immunity shields federal and state of-
ficials from money damages unless a plaintiff pleads
vacts showing (1) that the official violated a statutory
or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged
conauct.” Ashcroft v. al-Kidd, __ U.S. ; , 131
S.Ct. 2074, 2080 (2011). “[Cjourts have discretion to
decide which of the two prongs of qualified-immunity
analysis to tackle first.” Id. Addressing the second
prong first is consistent with the general rule of
avoiding constitutional questions when the case can
be decided on other grounds. Pearson v. Callahan,
555 U.S. 223, 241 (2009). Therefore, we will address
the second prong.
In the district court, the Plaintiff asserted that
“(t]he clearly established right at issue here is a
citizen’s right ‘to be free from excessive use of force
under the facts and circumstances presented in this
case.’” She argued that “no force was necessary be-
cause had the officers evaluated the totality of cir-
cumstances it was highly likely that they would have
discovered who she was and why she was there.” Re-
lying upon our decision in Miller v. Idaho State Pa-
trol, 150 Idaho 856, 252 P.3d 1274 (2011), the district
court held that the Plaintiff defined the clearly estab-
lished law at issue too generally. As we stated in
Miller:
App. 15
The first component of this analysis is
defining the relevant legal rule at stake. The
Court should not define the right too gener-
ally, as doing so would essentially vitiate the
qualified-immunity doctrine. Here, for ex-
ample, it would not be helpful to simply
ask whether police must not execute unrea-
sonable searches or, as Appellants suggest,
whether the police can obtain bodily fluid
from a person reasonably suspected of driv-
ing under the influence. Warrantless blood
draws and voluntary urine samples are sig-
nificantly less intrusive than warrantless
forcible catheterizations. Instead, the ques-
tion should reflect the factual specifics in this
case.
Id. at 865, 252 P.3d at 1283 (citation omitted; empha-
sis added). The district court held that “the inquiry
should be whether a reasonable police officer would
have known as of December of 2010 that it was
unlawful to utilize a police dog to search for and bite
and seize a hidden and potentially armed suspect
during a burglary in progress.” Citing three decisions
from the Ninth Circuit Court of Appeals, the district
court held that there was no clearly established law
prohibiting the use of a police dog to find and seize a
burglary suspect.
The court first cited Chew v. Gates, 27 F.3d 1432
(9th Cir. 1994), in which, during the early afternoon
on September 4, 1988, a suspect stopped for a traffic
violation fled on foot into a scrapyard, where he hid.
Id. at 1436. Upon discovering that there were three
App. 16
outstanding warrants for the suspect’s arrest, the
officer radioed for assistance. Jd. The police set up a
perimeter around the scrapyard, and a helicopter and
canine units were called to assist in the search. Jd.
About one and one-half hours after the suspect had
fled, a police dog was unleashed into the scrapyard to
find him. Jd. at 1442. About thirty minutes later, the
dog found and bit the suspect, but there was a factual
dispute as to whether the suspect attempted to sur-
render prior to being bitten. Jd. The court of appeals
held that the defendants were entitled to qualified
immunity with respect to the policy authorizing “the
use against all concealed suspects of dogs trained to
search for and apprehend persons by biting and
seizing them.” Jd. at 1446. The court stated:
When the incident that led to the filing
of this lawsuit occurred [September 4, 1988],
the use of police dogs to search for and ap-
prehend fleeing or concealed suspects consti-
tuted neither a new nor a unique policy. The
practice was long-standing, widespread, and
well-known. No decision of which we are
aware intimated that a policy of using dogs
to apprehend concealed suspects, even by bit-
ing and seizing them, was unlawful. At the
time of the incident in question, the only re-
ported case which had considered the con-
stitutionality of such a policy had upheld
that practice. See Robinette v. Barnes, 854
F.2d 909 (6th Cir.1988) (holding that use of
police dog trained to bite a suspect’s arm or
other available limb to apprehend a burglary
App. 17
suspect hiding in a darkened building was
constitutional).
Id. at 1447.
The court next cited Watkins v. City of Oakland,
145 F.3d 1087 (9th Cir. 1998). In Watkins, on Novem-
ber 20, 1993, officers responding to a silent alarm at a
commercial building released a police dog to find and
bite the burglary suspect after announcing twice that
the suspect should give up or the police dog would be
released and the dog would find and bite the suspect.
Id. at 1090. The suspect later sued, and the court of
appeals held that the defendants were entitled to
qualified immunity regarding the use of police dogs to
bite and hold suspects.
Following our prior decision in Chew, we
agree with appellants that Oakland’s “bite
and hold” policy did not violate clearly estab-
lished law concerning the use of excessive
force at the time of the incident. . . . Although
Chew was based on the law as it existed in
September of 1988, there had been no change
in the law that would have alerted [the ca-
nine officer] that his use of a police dog to
search and bite was unconstitutional.
Id. at 1092.
The third case cited by the court was Miller v.
Clark County, 340 F.3d 959 (9th Cir. 2003). In Miller,
during the night of January 21, 2001, an officer used
a police dog to find and bite a suspect who had fled at
night from his parents’ house across their large rural
App. 18
property into some dense, dark, wooded terrain. Jd. at
960-61. The suspect was wanted for the felony of
fleeing from police by driving a car with a wanton or
willful disregard of the lives of others. Jd. at 960. The
court of appeals held that “use of a police dog to bite
and hold Miller until deputies arrived on the scene
less than a minute later was a reasonable seizure
that did not violate Miller’s Fourth Amendment
rights.... Notwithstanding the serious injuries to
Miller, there was no use of excessive force under the
circumstances.” Jd. at 968 (citation omitted).
Based upon these opinions, the district court held
that “there was no clearly established law proscribing
the use of police dogs under circumstances presented
to the officers here.” It therefore held that the Police
were entitled to qualified immunity.
On appeal, the Plaintiff argues that “(t]he district
court was critica of [the Plaintiff] for failing to artic-
ulate a narrowly and clearly defined constitutional
right of which objectively reasonable police officers
would be aware.” According to the Plaintiff, “That, of
course, is a self-defeating proposition for any litigant,
plaintiff or defendant, because it forces the litigant
to guess what the court deems specifically narrow
enough to fit whatever undefined parameter it will
ultimately use.” Thus, she asserts that the clearly
established right at issue should be that she “had the
basic and fundamental right not to be attacked by a
police dog simply because she was mistaken for a
burglar by overzealous police officers.” This formula-
tion of the issue is clearly wrong. It assumes that the
App. 19
Police knew that the Plaintiff was “mistaken for a
burglar.” The circumstances are not to be judged
“with the 20/20 vision of hindsight.” Graham ov.
Connor, 490 U.S. 386, 396 (1989). There is no consti-
tutional right not to be mistaken for a criminal. “The
Constitution does not guarantee that only the guilty
will be arrested.” Baker v. McCollan, 443 U.S. 137,
145 (1979). “The Fourth Amendment is not violated
by an arrest based on probable cause, even though
the wrong person is arrested.” Graham, 490 U.S. at
396.
The issue in this case is the use of a police dog to
find and subdue by biting a suspected burglar in a
dark basement after the suspect failed to respond to
police announcements stating to surrender or a police
dog would be sent that would find and bite him or
her. The clearly defined law has to focus upon the use
of the police dog under the circumstances of this case.
For example, in Watkins the Ninth Circuit Court of
Appeals stated:
Although the use of excessive force in ef-
fecting an arrest is a clearly established vio-
lation of the Fourth Amendment, Watkins’
legal right cannot be so general as to allow
him to “convert the rule of qualified im-
munity ... into a rule of virtually unqual-
ified liability simply by alleging violation
of extremely abstract rights.”
145 F.3d at 1092.
App. 20
As shown above, in Chew the Ninth Circuit Court
of Appeals stated, “No decision of which we are aware
intimated that a policy of using dogs to apprehend
concealed suspects, even by biting and seizing them,
was unlawful.” 27 F.3d at 1447. In Watkins, the Ninth
Circuit held, “Although Chew was based on the law as
it existed in September of 1988, there had been no
change in the law that would have alerted [the canine
officer] that his use of a police dog to search and bite
was unconstitutional.” 145 F.3d. at 1092. Finally, in
Miller the Ninth Circuit held that “use of a police dog
to bite and hold Miller until deputies arrived on the
scene less than a minute later was a reasonable
seizure that did not violate Miller’s Fourth Amend-
ment rights.” 340 F.3d. at 968. The Plaintiff has not
cited any authority to the contrary, and the decisions
of the ninth circuit on this issue are the controlling
authority unless the Supreme Court decides other-
wise. It is not sufficient merely to say that the use of
a police dog to bite and hold a suspect constitutes
excessive force, because there is no clearly estab-
lished controlling authority so holding.
The Supreme Court has made it clear that the
clearly established law at issue must take into ac-
count the factual circumstances facing the officers. In
Anderson v. Creighton, 483 U.S. 635 (1987), the de-
fendant and other state and federal law enforcement
officers conducted a warrantless search of the plain-
tiffs’ home because they thought that a man who had
committed a bank robbery earlier in the day was
there. Id. at 637 at 528-29. The plaintiffs sued, and
App. 21
the defendant moved to dismiss on the ground that
the plaintiffs’ claim was barred by qualified immu-
nity. Id. The federal district court dismissed the case
on the ground that there was probable cause to
believe the bank robber was there and that exigent
circumstances justified the warrantless search. Id.
On appeal, the court of appeals reversed, holding that
there were issues of fact as to whether the search was
supported by probable cause and exigent circum-
stances and that the defendant was not entitled to
qualified immunity because “the right of persons to
be protected from warrantless searches of their home
unless the searching officers have probable cause and
there are exigent circumstances — was clearly estab-
lished.” Id. at 637-38.
The Supreme Court vacated the opinion of the
court of appeals because it had misapplied the law
with respect to identifying the applicable clearly
established law for determining whether there was
qualified immunity. The Court explained why the
“clearly established law” could not be so general that
it would eliminate the rule of qualified immunity. It
stated:
For example, the right to due process of law
is quite clearly established by the Due Proc-
ess Clause, and thus there is a sense in
which any action that violates that Clause
(no matter how unclear it may be that the
particular action is a violation) violates a
clearly established right. Much the same
could be said of any other constitutional or
App. 22
statutory violation. But if the test of “clearly
established law” were to be applied at this
level of generality, it would bear no relation-
ship to the “objective legal reasonableness”
that is the touchstone of Harlow [v. Fitzger-
ald, 457 U.S. 800 (1982)]. Plaintiffs would be
able to convert the rule of qualified immuni-
ty that our cases plainly establish into a rule
of virtually unqualified liability simply by al-
leging violation of extremely abstract rights.
Harlow would be transformed from a guar-
antee of immunity into a rule of pleading.
Id. at 639.
The Court explained that “the right the official is
alleged to have violated must have been ‘clearly
established’ in a more particularized, and hence more
relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Id. In deciding whether an action violated clearly
established law, the focus must be whether the offi-
cials objectively reasonably believed that their action
was lawful under the circumstances of the particular
situation. The Court stated that the error made by
the court of appeals was that it “specifically refused
to consider the argument that it was not clearly
established that the circumstances with which [the
defendant] was confronted did not constitute probable
cause and exigent circumstances.” Jd. at 640-41. The
Court stated that the relevant question in the case
was, for example, “the objective (albeit fact-specific)
question whether a reasonable officer could have
App. 23
believed [the defendant’s] warrantless search to be
lawful, in light of clearly established law and the
information the searching officers possessed.” Id. at
641 (emphasis added).
Likewise, in Pearson v. Callahan, 555 U.S. 223
(2009), officers conducted a warrantless search of the
plaintiff’s house after an undercover informant,
whom the plaintiff had voluntarily admitted into the
house, signaled them that he had just purchased
methamphetamine from the plaintiff. Jd. at 227. The
district court held that the officers were entitled to
qualified immunity because they reasonably believed
that they could lawfully enter pursuant to the “‘con-
sent-once-removed’ doctrine, which permits a war-
rantless entry by police officers into a home when
consent to enter has already been granted to an
undercover officer or informant who has observed
contraband in plain view.” Jd. at 229. On appeal, the
court of appeals reversed, holding that the clearly
established law at issue was “‘the right to be free in
one’s home from unreasonable searches and arrests’”
and that “under the clearly established precedents of
[the Supreme] Court and the Tenth Circuit, ‘warrant-
less entries into a home are per se unreasonable
unless they satisfy the established exceptions.’” Jd. at
230. The court of appeals then held that the officers
could not reasonably have believed that their conduct
was lawful because they knew they did not have a
warrant, the plaintiff had not consented to their
entry, and his consent to the informant’s entry could
App. 24
not reasonably be interpreted to include the officers.
Id.
On appeal, the Supreme Court reversed, holding
that the officers were entitled to qualified immunity
because their conduct did not violate clearly estab-
lished law. Id. at 243. The Court held that “[wJhen
the entry at issue here occurred in 2002, the ‘consent-
once-removed’ doctrine had gained acceptance in the
lower courts,” which consisted of three federal courts
of appeals and two state supreme courts. /d. at 244. It
had been accepted by each of those courts, and the
seventh circuit had approved application of the doc-
trine in cases in which private citizens were acting as
confidential informants. Jd. The Court held that the
officers were entitled to rely upon those cases even if
their own federal circuit had not yet ruled upon the
“consent-once-removed” doctrine. Id.
Whether the law is clearly established is a ques-
tion of law to be resolved de novo on appeal. Miller v.
Idaho State Patrol, 150 Idaho at 865, 252 P.3d at
1283. A plaintiff has the burden of establishing that
the law was well established at the time of the viola-
tion. Id. “(W]hether an official protected by qualified
immunity may be held personally liable for an alleg-
edly unlawful official action generally turns on the
‘objective legal reasonableness’ of the action, assessed
in light of the legal rules that were ‘clearly estab-
lished’ at the time it was taken.” Anderson, 483 U.S.
at 639 (citation omitted).
App. 25
The decision as to whether the facts, viewed from
the standpoint of an objectively reasonvble police
officer, amount to probable cause is reviewed de novo
on appeal. Ornelas v. United States, 517 U.S. 690, 696
(1996). In the instant case, the officers had probable
cause to believe that there was a burglary in progress
in the dental office.
A woman was seen crawling through a broken
basement window into the building just after sunset
on a Sunday, when the office was closed. A citizen
witness stated that the woman appeared to be under
the influence of alcohol or drugs and claimed to be
retrieving her keys. An owner of the building arrived
later and stated that no one should be in the building,
especially anybody who had to break a window to
enter. During the approximate forty minutes while
the police were at the building, there was no indica-
tion that anyone attempted to contact the owner to
report an accidental breakage of the window, and the
woman inside the building did not respond to a police
announcement using the public address system in a
patrol car. The dental building had a ground floor and
a basement. The interior of the ground level was
dark, as was most of the basement. The woman had
been seen in the lit portion of the basement very
briefly, and then walked out of sight. Before com-
mencing the search of the building, Officer Bonas
announced in a loud voice at the open front door that
they were the police, commanded the person inside to
surrender, and warned that if the person did not sur-
render they would send in a police dog that would
App. 26
find and bite the person. There was no response. Af-
ter searching the ground floor for about two minutes,
Officer Bonas made another similar announcement in
a loud voice. When doing so, he happened to be at the
top of the stairs going down to the basement. Once
the officers completed their search of the ground floor,
they again stopped at the top the stairs. Officer
Bonas made his third announcement in a loud voice,
and there was no response from the suspected bur-
glar. The stairwell down to the basement had walls
on both sides. Although the landing at the bottom of
the stairs was lit, Officer Bonas could not see whether
there was anyone standing out of sight at the bottom
of stairs. At that point, he decided to release the
police dog to find the suspected burglar. The dog went
down the stairs and soon started barking, indicating
that he smelled human odor. There was no sound
from the basement indicating that the person down
there wanted to surrender. At that point, Officer
Bonas gave the command for the dog to find and bite
the suspect.
The Plaintiff was not subjected to any force while
the officers were searching the ground floor of the
building. She was not seized until Officer Bonas gave
the command for the dog to find and bite the suspect
after the dog had smelled human odor while search-
ing the basement. Therefore, the relevant issue is
whether there was clearly established law that would
have prohibited Officer Bonas from commanding the
dog to find and bite the suspected burglar in the dark
basement who had failed to respond to the calls to
App. 27
surrender. The Plaintiff does not cite any authority so
holding. As the Ninth Circuit Court of Appeals stated
in Chew, in 1988 the use of police dogs to search for
and apprehend fleeing or concealed suspects was a
long-standing, widespread, and well-known practice.
27 F.3d at 1447. The court stated, “No decision of
which we are aware intimated that a policy of using
dogs to apprehend concealed suspects, even by biting
and seizing them, was unlawful.” Jd. Thus, there was
no clearly established law holding that the Police
conduct in this case constituted the use of excessive
force.
The Plaintiff alleges that the officers violated
department policy by not ascertaining whether there
were any tenants in the building before entering it
with the police dog and by failing to give an an-
nouncement while in the basement rather than from
the top of the stairs. In making this argument, she
cites Brooks v. City of Seattle, 599 F.3d 1018 (2010).
In Brooks, the police tased a pregnant woman driver
three times (on her thigh, shoulder, and neck) within
a one-minute period of time after she refused to sign
a traffic citation for speeding in a school zone and
resisted police attempts to remove her from her car.
Id. at 1020-21. The district court denied dismissal on
the ground of qualified immunity, and the officers
appealed. Jd. at 1021. The three-judge panel of the
court of appeals held that the officers had not used
excessive force. In so holding, the panel stated as a
consideration: “Here, there has been no departmental
determination that the Officers could have used
App. 28
alternative methods. Indeed, the Officers followed the
SPD’s Use of Force Training Guideline, applying pain
compliance techniques (of which drive-stun Taser use
was one) to control an actively resisting suspect.” Jd.
at 1029-30.
The Brooks court’s consideration of whether the
police followed department policy in their use of force
is not relevant here for two reasons. First, that was a
factor considered by the court in determining that
“the Officers’ behavior did not amount to a constitu-
tional violation.” Jd. at 1031. It was not a factor in
determining whether there was clearly established
law that their conduct violated a constitutional right.
Indeed, the policies or guidelines adopted by the
Boise Police Department do not give rise to a claim
under 42 U.S.C. § 1983. “[T]he statute creates no
substantive rights; it merely provides remedies for
deprivations of rights established elsewhere.” City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).
“Section 1983 imposes liability for violations of rights
protected by the Constitution, not for violations of
duties of care arising out of tort law.” Baker v.
McCollan, 443 U.S. 137, 146 (1979).
Second, after the three-judge panel issued its
opinion, the court of appeals heard the Brooks case en
banc along with Mattos v. Agarano, another case
involving the police use of a taser. In Brooks, the en
banc panel came to a different conclusion than did
the three-judge panel and held that “[a] reasonable
fact-finder could conclude, taking the evidence in the
light most favorable to Brooks, that the officers’ use of
App. 29
force was ‘unreasonable and therefore constitutionally
excessive.” Mattos v. Agarano, 661 F.3d 433, 446 (9th
Cir. 2011). In reaching that decision, the en banc
panel stated that it “must examine the totality of the
circumstances and consider ‘“whatever specific fac-
tors may be appropriate in a particular case, whether
or not listed in Graham [v. Connor, 490 U.S. 386
(1989)].”’” Id. at 445. The appropriate factors that
the en banc panel considered did not include any pol-
icies or guidelines adopted by the police department.
That panel obviously did not consider them relevant
in determining whether or not the officers used ex-
cessive force in violation of the Constitution.
The Plaintiff also contends that the district court
failed to properly consider the affidavit of the Plain-
tiff’s law enforcement expert.’ The expert was critical
* The Plaintiff’s expert assumed that the Police “learned
that there was a tenant relationship where persons other than
the building owner had access and the right to be in the build-
ing.” Officers Butler, Barber and Bonas were asked during their
depositions whether they knew the basement was a dental lab
prior to entering the building, and they testified that they did
not. Sergeant Kukla testified in his deposition that he did not
remember being told that the person had been seen in a dental
lab prior to the police dog entering the building. Lieutenant
Schoenborn testified in his deposition that he knew there was a
dental lab in the basement before the police dog went into the
building, but he stated that he did not recal] how he received
that information and was not advised that the person in the
basement may have worked in the dental lab. There is nothing
in the record indicating that the Police knew before entering the
building that the basement had been leased to a tenant. The
Plaintiff’s expert was also critical of not having the cleaning
(Continued on following page)
App. 30
of the conduct of the police in this case, but the ex-
pert’s opinion is not clearly established law, even if
that opinion had been given prior to the incident in
this case. The clearly established law must be “con-
trolling authority” in the jurisdiction or “a robust
‘consensus of cases of persuasive authority.’” Ashcroft,
__ U.S. at __, 1381 S.Ct. at 2084.
Although the Brooks decision did not address
whether the officers violated any clearly established
right when they tased Ms. Brooks, the Mattos deci-
sion did address that issue and held that “although
Brooks has alleged an excessive force claim, the law
was not sufficiently clear at the time of the incident
to render the alleged violation clearly established.”
661 F.3d at 448. Its analysis in arriving at that con-
clusion is instructive. It stated, “We begin our inquiry
into whether this constitutional violation was clearly
established by looking at the most analogous case law
that existed when the officers tased Brooks in No-
vember 2004.” Id. at 446.
The first case it considered was Russo v. City of
Cincinnati, 953 F.2d 1036 (6th Cir.1992). In Russo,
the police were called to help the family of Thomas
Bubenhofer return him to a psychiatric institute.
Mattos, 661 F.3d at 446. The call over the police radio
lady give a description of the woman who worked in the build-
ing, but there is no evidence of what description she would have
given and whether her description would have indicated that the
Plaintiff may have been that woman.
App. 31
described Bubenhvfer as a walk-away from the psy-
chiatric institute “‘who was “suicidal, homicidal, and
a hazard to police.”’” Id. at 447. When the officers
tried to get Bubenhofer out of his apartment, he
threatened to kill anyone who entered his apartment
and then opened the door and threatened the officers
with two knives he was holding, one in each hand. Jd.
An officer tased him several times, to no avail, and he
charged the officers while still holding the knives. Jd.
Ultimately, he was tased a final time while he lay at
the bottom of the stairwell and posed no immediate
threat to the officers. Jd. The Sixth Circuit held that
the initial use of the taser did not violate any clearly
established law and that the subsequent tasings did
not constitute excessive force. Jd.
The second case that the Mattos court considered
was Hinton v. City of Elwood, 997 F.2d 774, 782 (10th
Cir. 1993). In that case, Hinton was initially stopped
by the police for disturbing the peace, a misdemeanor,
but he then pushed an officer after declining the
officer’s request to speak to him. Mattos, 661 F.3d at
447. When the officers informed Hinton that he was
under arrest, he struggled by kicking his feet, flailing
his arms, and biting the officers. Jd. The officers tased
him, and the Tenth Circuit held that Hinton failed to
demonstrate that the officers’ conduct amounted to a
violation of the law. Jd.
The third case that the Mattos court considered
was Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).
In that case, a lone officer stopped a tractor-trailer
truck at night because its tag light was not properly
App. 32
illuminated. Mattos, 661 F.3d at 447-48. During the
traffic stop, the driver acted in an agitated and con-
frontational manner, paced back and forth, and yelled
at the officer. Jd. at 448. After refusing the officer’s
fifth request to produce certain documents, the officer
tased him. Jd. The Eleventh Circuit held that the use
of the taser to effectuate the arrest did not constitute
excessive force. Jd.
The Mattos court noted that the conduct of the
persons tased in those three cases was significantly
different from the conduct of Ms. Brooks. It was
obvious that the circumstances in those cases were so
dissimilar to those in Brooks that the decisions au-
thorizing the use of a taser in those cases would not
justify the use of a taser on Ms. Brooks. Unlike
Bubenhofer in Russo, Ms. Brooks was not a paranoid
schizophrenic, did not make suicidal and homicidal
threats to the police, and did not overcome the effects
of being tased multiple times in order to approach the
officers with knives in her hands. Id. at 447. Unlike
the plaintiff in Hinton, Ms. Brooks did not shove,
kick, and bite the officers. Jd. Unlike the circum-
stances in Draper, Ms. Brooks was immobile in her
car during daylight and was outnumbered by the
officers three to one. Id. at 448.
Even though the circumstances in each of those
three cases were clearly factually distinguishable
from the circumstances in which Ms. Brooks was
tased, the court of appeals held that there was no
clearly established law showing that what the officers
did to Ms. Brooks constituted excessive force. The
App. 33
court of appeals stated, “We cannot conclude, how-
ever, in light of these existing precedents, that ‘every
“reasonable official would have understood” ... be-
yond debate’ that tasing Brooks in these circumstances
constituted excessive force.” Jd. The court added,
“Moreover, the violation was not so obvious that we
can ‘define clearly established law at a high level of
generality,’ finding that Graham [v. Connor, 490 U.S.
386 (1989)] alone renders the unconstitutionality
of Brooks’s tasing clearly established.” Id. The court
concluded “that, although Brooks has alleged an
excessive force claim, the law was not sufficiently
clear at the time of the incident to render the alleged
violation clearly established.” Jd.
The existing case that is most similar to this case
is Watkins, where officers responded to a silent alarm
at ea commercial warehouse. 145 F.3d at 1090. The
officers saw someone running within the building,
and they established a perimeter around the building.
Id. There was no evidence as to whether the person
was armed. Id. The officers decided to use a police
canine to find, bite, and hold the suspect, and before
doing so the canine officer twice announced: “This is
the Oakland Police Department canine unit. Give
yourself up or I'll release my dog who is going to find
you and he is going to bite you.” Jd. When the suspect
did not respond, the officer released the dog. The dog
ran out of sight and then found and bit the suspect.
Id. With respect to qualified immunity, the court of
appeals held that there was no clearly established
App. 34
law that the officer’s “use of a police dog to search and
bite was unconstitutional.” Jd. at 1092.
Even if there was some significant factual dif-
ference between Watkins and the present case, the
Mattos case shows that the Police in this case were
entitled to qualified immunity. In light of the Ninth
Circuit decisions of Chew, Watkins, and Miller, it
cannot be concluded that every reasonable official
would have understood beyond debate that the con-
duct of the Police in this case violated a clearly estab-
lished right of the Plaintiff. The Plaintiff has not cited
a single case holding that the use of a police dog ta
find and subdue by biting a suspected burglar in a
building constitutes excessive force. Absent a decision
on the issue from this Court ur the United States
Supreme Court, the clearly established law is that of
the Ninth Circuit, which holds that it does not. The
district court did not err in granting summary judg-
ment dismissing Plaintiff’s claim under 42 U.S.C.
§ 1983 on the ground that the officers were entitled to
qualified immunity.
ITI.
Did the District Court Err in Dismissing
the Federal Claims Against City of Boise?
The district court dismissed the federal claims
against City of Boise also. In Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978), the United States Su-
preme Court held that while a municipality could not
be held liable in an action brought pursuant to 42
App. 35
U.S.C. § 1983 for the actions of its employees under
the doctrine of respondeat superior, a municipality
could be held liable under that statute if “official
municipal policy of some nature caused a constitu-
tional tort.” Id. at 691.
During oral argument on the Defendants’ motion
for summary judgment, their counsel argued, in
response from a question by the district court, that
the Plaintiff had not alleged a claim against City of
Boise. When the district court asked the Plaintiff’s
counsel about that, he answered:
Yeah. Your Honor, I heard that, and I
don’t know what I pled. I don’t have the
complaint in front of me. Actually, I didn’t
even draft the complaint. I will tell you that I
noted that in the summary judgment that
there was not a Monell claim argued, and I
didn’t really think of that question one way
or the other.
In its decision granting summary judgment, the
district court stated that the Plaintiff “did make one
passing allegation in her Complaint that might be
read to encompass a Monell claim,” but if such a
claim was made it must be dismissed because there
was no constitutional violation by the Police. In a
footnote in its memorandum decision, the district
court stated:
In resisting the City of Boise’s motion for
summary Judgment [sic], plaintiffs [sic] of-
fered no Monell analysis or argument what-
soever. While James did make one passing
App. 36
allegation in her Complaint that might be
read to encompass a Monell claim, it was
so vague and devoid of factual support and
context specific to that claim such that it
made it virtually impossible for Boise to
meaningfully prove the absence of a question
of fact relative to such a claim. Neither in the
complaint nor at summary judgment has
James pointed to an uncorrected repeated
course of conducted [sic] depriving citizens of
their right to be free from excessive force, nor
did James identify how Boise has “imple-
menti[ed] or execute[d] a policy, statement,
ordinance, regulation, or decisions officially
adopted and promulgated by that body’s of-
ficer.” However, because the Court has found
no constitutional! violation, it need not de-
termine whether a Monell claim against the
City otherwise survives summary judgment.
In her motion for reconsideration, the Plaintiff did
not contend that she had a Monell claim that the
district court failed to recognize or consider.
In her brief on appeal, the Plaintiff asserts, “The
District Court Erred in Dismissing Plaintiff’s § 1983
Excessive Force (‘Monell Claim’) against the City of
Boise.” Her entire argument on that issue is as fol-
lows:
Even though it acknowledged that the
defer ‘ant’s [sic] had not moved for summary
judgment as to whether there was a Monell
Claim against the City of Boise, the district
court granted summary judgment anyway.
Whether or not Plaintiff’s complaint asserted
App. 37
a Monell Claim against the City of Boise
was never at issue. Parties are not required
to respond to issues which are not raised by
the opposing party.
The Plaintiff does not contend that her complaint
alleges a Monell claim against the city, nor does
she point to any such alleged claim in her complaint.
“We will not consider assignments of error not sup-
ported by argument and authority in the opening
brief.” Hogg v. Wolske, 142 Idaho 549, 559, 130 P.3d
1087, 1097 (2006). Therefore, we will not consider
this issue.
IV.
Did the District Court Err in
Dismissing the State Law Claims?
The Plaintiff alleged in her complaint that the
actions of the Police constituted assault, battery, false
arrest, wrongful imprisonment, and intentional in-
fliction of emotional distress. As a general rule, the
Idaho Tort Claims Act provides that a governmental
entity is liable for money damages arising out of the
negligent or otherwise wrongful acts of its employees
committed in the course and scope of their employ-
ment or duties if a private person would be liable for
such acts under the laws of this state. I.C. § 6-903(1).
A. Assault, battery, false arrest, and wrong-
ful imprisonment. A governmental entity and its
employees acting within the course and scope of their
employment are not liable for any claim which arises
App. 38
out of assault, battery, false arrest, or false impris-
onment if they were acting without malice or criminal
intent. I.C. § 6-904. The district court held that the
Defendants were not liable for these claims because
there was no evidence that they acted with malice or
criminal intent. On appeal, the Plaintiff contends
that there is sufficient evidence that the Police acted
with criminal intent.
The first issue to determine is the meaning of
criminal intent in the Idaho Tort Claims Act. Idaho
Code section 6-904(3) states:
A governmental entity and its employees
while acting within the course and scope of
their employment and without malice or
criminal intent shall not be liable for any
claim which:
3. Arises out of assault, battery, false
imprisonment, false arrest, malicious prose-
cution, abuse of process, libel, slander, mis-
representation, deceit, or interference with
contract rights.
The Idaho Tort Claims Act applies only to tor-
tious conduct — “negligent or otherwise wrongful acts
or omissions.” I.C. § 6-903(1). Therefore, Idaho Code
section 6-904(3) lists types of conduct giving rise to
tort liability, not criminal offenses. However, types of
conduct listed in section 6-904(3) that could consti-
tute a tort may also constitute a crime. For example,
App. 39
assault, battery, and false imprisonment are also
crimes. I.C. §§ 18-901, 18-903, 18-2901.°
The Tort Claims Act does not define the term
“criminal intent,” and that phrase is not a term of art.
It has various meanings, including the intent to do
wrong; the mens rea for a particular crime, which
may include criminal negligence; and the intent to
violate the law, which implies knowledge of the law
violated. Black’s Law Dictionary 380-81 (7th ed.
1999).
This Court first addressed the meaning of that
term in Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238
* Idaho Code section 18-901 defines the crime of assault as:
(a) An unlawful attempt, coupled with apparent
ability, to commit a violent injury on the person of an-
other; or
(b) An intentional, unlawful threat by word or act to
du violence to the person of another, coupled with an
apparent ability to do so, and doing some act which
creates e well-founded fear in such other person that
such violence is imminent.
Idaho Code section 18-903 defines the crime of battery as:
(a) Willful and unlawful use of force or violence upon
the person of another; or
(b) Actual, intentional and unlawful touching or strik-
ing of another person against the will of the other; or
(c) Unlawfully and intentionally causing bodily harm
to an individual.
Idaho Code section 18-2901 defines the crime of false imprison-
ment as “the unlawful violation of the personal liberty of an-
other.”
App. 40
(1986). Several female students had filed lawsuits seek-
ing damages from Durtschi, a fourth grade teacher,
and the school district. Jd. at 468-69, 716 P2d at
1240-41. They alleged that Durtschi had sexually
molested them during school hours and while con-
ducting or supervising school activities. Jd. at 469,
716 P.2d at 1241. Durtschi filed a cross-claim against
the school district seeking indemnification. Jd. The
school district moved for summary judgment on
Durtschi’s cross-claim, and the district court granted
the motion and entered judgment for the school
district. Jd. Durtschi then appealed. Jd.
On appeal, this Court upheld the dismissal of
Durtschi’s cross-claim on the ground that he had
acted with criminal intent. Id. 471, 716 P.2d at 1243.
In addressing the meaning of “criminal intent,” we
stated:
The “criminal intent” provision “is satis-
fied if it is shown that the defendant know-
ingly performed the proscribed acts... .”
State v. Gowin, 97 Idaho 766, 767-68, 554
P.2d 944, 945-46 (1976); see also, e.g., State v.
Sisneros, 631 P.2d 856, 858 (Utah 1981) (“A
person acts with intent when it is his con-
scious objective or desire to engage in the
conduct or to cause the result.”). Ordinarily,
criminal intent would be a question for the
trier of fact. However, in this case Durtschi
has left no doubt that he acted with criminal
intent.
Durtschi admitted to performing the lewd
and lascivious acts on the minor plaintiffs.
App. 41
He specifically named each of the minor
plaintiffs as the objects of his actions. He ex-
pressly stated that he acted intentionally. In
the face of the school district’s arguments
that he acted with criminal intent, Durtschi
made no denials. In fact, he pled guilty to re-
lated criminal charges of lewd and lascivious
conduct. Every indication points to Durtschi
knowingly and consciously performing crim-
inal acts. We find nothing from which we can
infer at all, much less reasonably infer, that
Durtschi acted in any way but with criminal
intent.
Id. at 470-71, 716 P.2d at 1242-43.
The definition of “criminal intent” stated in the
above-quoted passage from Durtschi is not clear.
First, the Court quoted the part of a sentence from
State v. Gowin, 97 Idaho 766, 554 P.2d 944 (1976),
that defines general criminal intent. The entire sen-
tence was, “A general criminal intent requirement is
satisfied if it is shown that the defendant knowingly
performed the proscribed acts, but a specific intent
requirement refers to that state of mind which in part
defines the crime and is an element thereof.” Jd. at
767-68, 554 P.2d at 945-46 (internal citation omitted).
The Gowin case involved a crime that required a spe-
cific intent, “fraudulent intent,” and the Court held
on appeal that there was insufficient evidence for the
jury to find that the defendant possessed such intent.
App. 42
Id. at 767, 716 P.2d at 945.’ However, the Durtschi
Court also quoted the Utah Supreme Court’s state-
ment from State v. Sisneros that “[a) person acts with
intent when it is his conscious objective or desire to
engage in the conduct or to cause the result.” 631 P.2d
‘t 858. The Utah court made that statement when
addressing whether there was sufficient evidence for
a jury to find that an intoxicated defendant had the
specific intent to commit a larceny when he broke
inte and entered a building at night in order for him
to have committed the crime of burglary. Immediately
following the quoted statement, the Utah court said,
“Obviously, it is difficult to prove directly what is in a
defendant’s mind,” id. at 858-59, and it concluded by
stating, “Although defendant was under the influence
of alcohol at the time of the commission of the offense,
the jury could reasonably conclude that defendant
maintained the requisite intent to burglarize the prem-
ises,” id. at 860. Thus, the Durtschi Court quoted
statements regarding both general intent and specific
intent in defining “criminal intent.” Finally, it stated:
“Every indication points to Durtschi knowingly and
consciously performing criminal acts. We find nothing
’ The criminal statute at issue stated:
Every clerk, agent or servant of any person who
fraudulently appropriates to his own use, or secretes
with a fraudulent intent to appropriate to his own
use, any property of another which has come into his
control or care by virtue of his employment as such
clerk, agent, or servant, is guilty of embezzlement.
I.C. § 18-2405 (1948).
App. 43
from which we can infer at all, much less reasonably
infer, that Durtschi acted in any way but with crimi-
nal intent.” 110 Idaho at 471, 716 P.2d at 1243. The
criminal acts committed by Durtschi required a spe-
cific criminal intent — “the intent of arousing, appeal-
ing to, or gratifying the lust or passions or sexual
desires of such person or of such minor or child.”
Thus, when stating that Durtschi’s conduct consti-
tuted “knowingly and consciously performing crimi-
nal acts,” did the Durtschi Court mean that he knew
that he was violating the law?
Most recently, in Miller v. Idaho State Patrol, 150
Idaho 856, 252 P3d 1274 (2011), we addressed
whether the Idaho Tort Claims Act afforded immunity
to an officer, who had a nurse obtain a urine sample
by the involuntary warrantless catheterization of a
person arrested for driving under the influence of
alcohol, despite the plaintiff’s claim that the invol-
untary catheterization constituted a battery under
Idaho Code section 6-904(3). In holding that it did, we
* The statute provided:
Any person who shall willfully and lewdly commit
any lewd or lascivious act or acts upon or with the
body or any part or member thereof of a minor or child
under the age of sixteen years, with the intent of
arousing, appealing to, or gratifying the lust or pas-
sious or sexual desires of such person or of such minor
or child, shall be guilty of a felony and shall be im-
prisoned in the state prison for a term of not more
than life.
Ch. 1, § 1, 1973 Idaho Sess. Laws 1, 1.
App. 44
stated: “Criminal intent ‘is satisfied if it is shown that
the defendant knowingly performed the proscribed
acts.’ ... No shred of evidence suggests that [the
officer] acted with malice or criminal intent.” Jd. at
870, 252 P.3d at 1288.
There is no difference between the intent neces-
sary to commit the tort of battery and the intent
necessary to commit the crime of battery. We stated
in Miller, “Civil battery consists of an intentional
contact with another person that is either unlawful,
harmful, or offensive. Lack of consent is a critical
element of battery.” Jd. at 869, 252 P.3d at 1287
(internal citation omitted). The crime of battery can
be committed by the “[a]ctual, intentional and unlaw-
ful touching ... of another person against the will of
the other.” I.C. § 18-903(b). Our statement that there
was not a shred of evidence suggesting criminal
intent must have meant that criminal intent was
more than the mens rea necessary to commit the
crime of battery.
Holding that “criminal intent” means only the
mens rea of a crime comparable to the alleged tort
would not be consistent with excluding from liability
the torts of assault, battery, and false imprisonment.
Therefore, “criminal intent” must mean something
different from the mens rea for the comparable crime.
In Anderson v. City of Pocatello, 112 Idaho 176, 731
P.2d 171 (1986), we stated that legal malice “involves
the intentional commission of a wrongful or unlawful
act without legal justification or excuse, whether ur
not the injury was intended” and that “[cjriminal
App. 45
intent closely equates to the above definition of ‘legal’
malice.” Jd. at 187, 731 P.2d at 182. We hold that
“criminal intent” as used in the Idaho Tort Claims Act
means the intentional commission of what the person
knows to be a crime.
The district court correctly held that there is no
evidence showing that the Police acted with criminal
intent in this case. Therefore, the court did not err in
dismissing the tort claims of assault, battery, false
arrest, and wrongful imprisonment.
Intentional infliction of emotional distress.
In order to establish a claim of intentional infliction
of emotional distress, the plaintiff must prove that:
(1) the defendant’s conduct was intentional or reck-
less; (2) the defendant’s conduct was extreme and out-
rageous; (3) there was a causal connection between
the defendant’s wrongful conduct and the plaintiff’s
emotional distress; and (4) the emotional distress was
severe. Edmondson v. Shearer Lumber Prods., 139
Idaho 172, 179, 75 P.3d 733, 740 (2003). The district
court granted summary judgment against the Plain-
tiff on this claim on two alternative grounds: (1) “Noth-
ing about Defendants’ conduct could be considered
extreme or outrageous in this context” and (2) “Surely
the liability that James seeks to impose for inten-
tional infliction ‘arose out of’ the conduct constituting
the alleged false imprisonment, assault and battery.
Simply ‘changing the legal theory on which the claim
for recovery’ is based does not eviscerate the immu-
nity otherwise provided.”
App. 46
On appeal, the Plaintiff challenges the first
ground, but not the second. “[I]f an appellant fails to
contest all of the grounds upon which a district court
based its grant of summary judgment, the judgment
must be affirmed.” AED, Inc. v. KDC Invs., LLC, 155
Idaho 159, 164, 307 P.3d 176, 181 (2013). However,
we note that a tort claim need only “arise out of” the
type of conduct listed in Idaho Code section 6-904,
which means it must originate or stem from such
conduct. Woodworth v. State ex rel. Idaho Transp. Bd..,
154 Idaho 362, 365, 298 P.3d 1066, 1069 (2013). Im-
munity under the statute is not abrogated by chang-
ing the legal theory upon which a claim for recovery
is sought. Intermountain Constr., Inc. v. City of Am-
mon, 122 Idaho 931, 933, 841 P.2d 1082, 1084 (1992).
Idaho Code section 25-2808. The Plaintiff also
sought to recover under Idaho Code section 25-2808,
which states:
Neither the state of Idaho, nor any city
or county, nor any peace officer employed by
any of them, shall be criminally liable under
the provisions of section 25-2805, Idaho
Code, or civilly liable in damages for injury
committed by a dog when: (1) the dog has
been trained to assist in law enforcement;
and (2) the injury occurs while the dog is
reasonably and carefully being used in the
apprehension, arrest or location of a sus-
pected offender or in maintaining or control-
ling the public order.
App. 47
The district court held that the police dog was
reasonably and carefully being used in this case when
the dog located and bit the Plaintiff. She contends
that the district court erred in so finding under the
facts in the record. Plaintiff reads this statute as
holding that the State of Idaho, a city or county, or
a peace officer employed by any of them, could be
civilly liable for damages for injury committed by a
police dog assisting law enforcement in the apprehen-
sion, arrest, or location of a suspected offender, or in
maintaining or controlling public order, if the dog is
not “reasonably and carefully being used.” She con-
tends that there is an issue of fact as to whether the
police dog in this case was being reasonably and
carefully used. We affirm the judgment of the district
court, but on a different ground.
The interpretation of a statute is a question of
law over which we exercise free review. City of Poca-
tello v. Idaho, 152 Idaho 830, 838, 275 P.3d 845, 853
(2012). It must begin with the literal words of the
statute, giving them their plain, obvious, and rational
meaning, Thomson v. City of Lewiston, 137 Idaho 473,
478, 50 P.3d 488, 493 (2002); those words must be
given their plain, usual, and ordinary meaning; and
the statute must be construed as a whole, State v.
Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). If
the statute is ambiguous, then it must be construed
to mean what the legislature intended for it to mean.
Miller v. State, 110 Idaho 298, 299, 715 P.2d 968, 969
(1986). To determine that intent, we examine not
only the literal words of the statute, but also the
App. 48
reasonableness of proposed constructions. Lopez v.
State, Indus. Special Indem. Fund, 136 Idaho 174,
178, 30 P.3d 952, 956 (2001).
The Plaintiff’s interpretation of section 25-2808
would mean that an officer who uses a police dog to
subdue a suspect in order to make the arrest would
be subject to greater liability than an officer who shot
the suspect in order to subdue him. The former would
be subject to liability if the dog was not reasonably
and carefully used, while the latter would only be
subject to liability if the officer acted with malice or
criminal intent. There is no logical reason why the
legislature would intend that result. Likewise, the
Plaintiff’s interpretation would result in section 25-
2808 impliedly amending the provisions in Idaho
Code section 6-904(3) regarding assault and battery
when a police dog is being used. One standard (malice
or criminal intent) would apply to a claim based upon
an alleged assault or battery by peace officers who did
not use a police dog and another standard (reason-
ably and carefully being used) would apply if the
officers had used a police dog to subdue the suspect.
Amending a statute by implication is disfavored and
will not be inferred absent clear legislative intent.
Wilkins v. Fireman’s Fund American Life Ins. Co., 107
Idaho 1006, 1008, 695 P.2d 391, 393 (1985).
Idaho Code section 25-2808 expressly refers to
section 25-2805, and the proper interpretation of sec-
tion 25-2808 requires consideration of that section,
which states:
App. 49
(1) Any person, who, after complaint
has been made by any person to the sheriff,
who shall serve a copy of said notice upon
such person complained of, willfully or negli-
gently permits any dog owned or possessed
or harbored by him to be, or run, at large
without a competent and responsible at-
tendant or master, within the limits of any
city, town, or village or in the vicinity of any
farm, pasture, ranch, dwelling house, or cul-
tivated lands of another, or who willfully ox
negligently fails, neglects or refuses to keep
any such dog securely confined within the
limits of his own premises when not under
the immediate care and control of a compe-
tent and responsible attendant or master,
shall be guilty of an infraction punishable as
provided in section 18-113A, Idaho Code.
(2) Any dog which, when not physically
provoked, physically attacks, wounds, bites
or otherwise injures any person who is not
trespassing, is vicious. It shall be unlawful
for the owner or for the owner of premises on
which a vicious dog is present to harbor a vi-
cious dog outside a secure enclosure. A secure
enclosure is one from which the animal can-
not escape and for which exit and entry is
controlled by the owner of the premises or
owner of the animal. Any vicious dog re-
moved from the secure enclosure must be re-
strained by a chain sufficient to contro] the
vicious dog. Persons guilty of a violation of
this subsection, and in addition to any liabil-
ity as provided in section 25-2806, Idaho
Code, shall be guilty of a misdemeanor. For a
App. 50
second or subsequent violation of this sub-
section, the court may, in the interest of pub-
lic safety, order the owner to have the vicious
dog destroyed or may direct the appropriate
authorities to destroy the dog.
The violation of section 25-2805 by a dog’s owner
or handler could possibly result in the owner or
handler being held to be negligent per se, which
would conclusively prove the first two elements for a
cause of action in negligence, leaving only causation
and damages to be proved by the injured person.
Obendorf v. Terra Hug Spray Co., Inc., 145 Idaho 892,
898, 188 P.3d 834, 840 (2008). A peace officer whose
use of a police dog allegedly violated the statute could
also risk being held negligent per se and also being
held criminally liable. That is the obvious reason for
the adoption of section 25-2808. It begins by stating
that “[nJeither the state of Idaho, nor any city or
county, nor any peace officer employed by any of
them, shall be criminally liable under the provisions
of section 25-2805, Idaho Code.” That provision elim-
inates the risk of criminal liability. The remainder of
section 25-2808 states that the state of Idaho, any
city or county, and any peace officer employed by any
of them are not “civilly liable in damages for injury
committed by a dog” when two conditions are met.
First, the dog must have been trained to assist in law
enforcement. Second, the injury must occur “while the
dog is reasonably and carefully being used in the
apprehension, arrest or location of a suspected of-
fender or in maintaining or controlling the public
order.” I.C. § 25-2808. This provision eliminates the
App. 51
application of negligence per se for a violation of
section 25-2505 by the state of Idaho, any city or
county, and any peace officer employed by them. “[A)
statute that creates a civil cause of action cannot be
the basis of a negligence per se claim. The statute
creating the cause of action defines the conduct
constituting the tort and the applicable standard of
care.” Steed v. Grand Teton Council of the Boy Scouts
of America, Inc., 144 Idaho 848, 853, 172 P.3d 1123,
1128 (2007).
There is no indication that the legislature in-
tended to eliminate the use of police dogs to bite and
hold suspects. Indeed, if subsection (2) of section 25-
2505 were applied to police dogs, it would permit
peace officers to use each dog only once to find, bite,
and hold a criminal suspect. Once a police dog bit a
suspect, the dog could not be released from a chain to
find or pursue another suspect. Considering that the
use of police dogs to search for and apprehend fleeing
or concealed suspects by biting them is neither a new
or unique policy and that such policy can reduce the
risk of injury to police in subduing suspects in order
to arrest them, the legislature would have been clear
had it intended to eliminate that policy. In fact, the
statute contemplates the use of police dogs. Thus, the
provisions regarding civil liability were apparently
intended by the legislature to apply to persons other
than the suspect who may be injured by a police dog.
Because the Plaintiff was the suspected offender who
the Police were using the police dog to locate and
apprehend so that they could arrest, Idaho Code
App. 52
sections 25-2805 and 25-2808 do not apply to this
case.
Negligent failure to train. In her complaint,
the Plaintiff alleged that the Defendants negligently
failed to train, supervise, and control the police dog.
In support of their motion for summary judgment, the
Defendants offered the testimony of Officer Randy
Arthur, who was certified as a canine trainer for both
detection dogs and patrol dogs in 2003 by Idaho Peace
Officer Standards and Training (POST). Officer
Arthur was POST certified as a canine trainer for
both drug detection dogs and patrol dogs in 2003, and
at the time of the motion for summary judgment he
was certified by POST through December 31, 2014, as
trainer and evaluator for both drug detection and
patrol dogs. He stated that the Boise Police Depart-
ment canine unit trains every Tuesday and exceeds
the industry standard of four hours of training per
week and that he trained Officer Bonas and his
canine in the use and application of department
policies and procedures, which are within industry
standards. Officer Bonas and his canine were certi-
fied by POST on March 4, 2010, passing all tests.
Pursuant to Idaho Code section 19-5107, POST Coun-
cil has promulgated rules for certifying patrol dogs,
which is how the dog in this case was trained. The
dog has to be trained to apprehend a suspect without
contact and with contact. IDAPA 11.11.01.223.01 & .02.
For apprehension without contact, the handler must
release the dog to pursue a fleeing suspect, who then
stops and stands still. The dog must, as predetermined
App. 53
by the handler, either return to the handler or stay
and guard the suspect. IDAPA 11.11.01.223.01. For
apprehension with contact, the handler must release
the dog to pursue a fleeing suspect, who does not
stop. The handler must send the dog to physically
apprehend the suspect, and the dog must hold the
suspect until verbally called off by the handlers.
IDAPA 11.11.01.223.02. Officer Bonas’s canine passed
both tests. The district court granted summary judg-
ment on the Plaintiff’s claim of negligent training.
On appeal, the Plaintiff contends that the district
court erred in rejecting the opinion of the Plaintiff’s
expert, who stated that in his opinion police depart-
ments should use the “bark and hold” method rather
than the “bite and hold” method. POST made a policy
decision to permit dogs to be trained and certified in
the “bite and hold” method. The City of Boise police
department made a policy decision to use only the
“bite and hold” method. In answers to interrogatories,
the City stated:
The Boise Police Department Canine
Unit trains its dogs and handlers under the
“Handler Controlled” (HC) method, as op-
posed to the “Bark and Hold” (BH) method.
Under the HC method, the police dogs are
trained to bite or bark based on the direction
of the handler. The Boise Police Department
Canine Unit believes that the HC method
is safer for the public, suspects, and our
handler/officers.
App. 54
There is a difference of opinion as to which
method is the best policy. The Boise Police Depart-
ment made a policy decision not to use the “bark and
hold” method because it determined that the “bite
and hold” method was safer for the public, suspects,
and the dog handlers. Idaho Code section 6-904(1)
exempts from liability any claim “based upon the
exercise or performance or the failure to exercise or
perform a discretionary function.” “The discretionary
function exception applies to governmental decisions
entailing planning or policy formation.” Dorea Enter-
prises, Inc. v. City of Blackfoot, 144 Idaho 422, 425,
163 P.3d 211, 214 (2007). The purpose of this exemp-
tion is “to limit judicial re-examination of basic policy
decisions properly entrusted to other branches of
government.” Id. Therefore, that the Plaintiff’s expert
believes that the police department should have
chosen the “bark and hold” method rather than the
“bite and hold” method is irrelevant to the Defen-
dants’ liability in this case.
V.
Are the Defendants Entitled to an
Award of Attorney Fees on Appeal?
The Defendants seek an award of attorney fees
on appeal pursuant to 42 U.S.C. section 1988 and
Idaho Code sections 12-117 and 12-121. We will ad-
dress each statute individually.
42 U.S.C. section 1988. 42 U.S.C. section 1988
provides that in an action brought pursuant to 42
App. 55
U.S.C. section 1983, “the court, in its discretion, may
allow the prevailing party, other than the United
States, a reasonable attorney's fee as part of the
costs.” The Plaintiff contends that attorney fees
cannot be awarded under this statute unless the
action was frivolous, unreasonable, or without foun-
dation at the time the complaint was filed. The stat-
ute does not contain any such limitation. It permits
the award of attorney fees to the prevailing party in
the discretion of the court.
In Hughes v. Rowe, 449 U.S. 5 (1980), the Su-
preme Court held that attorney fees could not be
awarded to a prevailing defendant in a case brought
pursuant to 42 U.S.C. section 1983 unless the plain-
tiff’s action was frivolous, unreasonable, or without
foundation. Jd. at 14. However, Hughes and Chris-
tiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978),
upon which it was based, were appeals from cases in
federal district courts. Although the Supreme Court
may have the authority to limit the discretion of
lower federal courts, it does not have the authority to
limit the discretion of state courts where such limita-
tion is not contained in the statute. Therefore, in
cases filed in the Idaho state courts seeking to recover
under 42 U.S.C. section 1988, the court has discretion
in deciding to award attorney fees to the prevailing
party, whether the prevailing party is the plaintiff or
the defendant.
In this case, we will award attorney fees against
the Plaintiff on her claim based upon 42 U.S.C.
section 1988. It was clear that her claim would be
App. 56
barred by qualified immunity under the clearly estab-
lished law of the ninth circuit, and the Plaintiff did
not cite any law to the contrary.
Idaho Code section 12-117. The Defendants
seek an award of attorney fees under Idaho Code sec-
tion 12-117(1), which provides that “in any ... civil
judicial proceeding involving as adverse parties a state
agency or political subdivision and a person, ... the
court ... shall award the prevailing party reasonable
attorney's fees ... if it finds that the nonprevailing
party acted without a reasonable basis in fact or law.”
Because we have clarified the meaning of criminal
intent under the Tort Claims Act and Idaho Code
section 25-2508, we do not find that the Plaintiff
brought this appeal regarding her state law claims
without a reasonable basis in fact or law. Therefore,
we will not award attorney fees under this section.
Idaho Code section 12-121. The Defendants
seek an award of attorney fees under Idaho Code
section 12-121. In normal circumstances, attorney
fees will only be awarded under this statute when
this court is left with the abiding belief that the
appeal was brought, pursued or defended frivolously,
unreasonably or without foundation. Minich v. Gem
State Developers, Inc., 99 Idaho 911, 918, 591 P.2d
1078, 1085 (1979). Because the appeal regarding the
Plaintiff’s claims under state law was not brought or
pursued frivolously, unreasonably, or without founda-
tion, we will not award attorney fees under that stat-
ute.
App. 57
VI.
Conclusion.
We affirm the judgment of the district court. We
award respondents costs on appeal and attorney fees
in defending the claim under 42 U.S.C. § 1983.
Chief Justice BURDICK, Justice HORTON and
Justice Pro Tem KIDWELL CONCUR.
J. JONES, Justice, specially concurring.
I concur in the Court’s opinion. Because we hold
that qualified immunity supported the dismissal on
summary judgment of James’ claim under 42 U.S.C.
§ 1983, it was not necessary to consider the merits of
that claim. Had there been no qualified immunity
issue, I would have voted to vacate the district court’s
dismissal of James’ excessive force claim. In my view,
there were triable issues of fact that would have
precluded summary judgment.
In its 48 page memorandum decision, the district
court did a commendable job of analyzing and decid-
ing the issues presented, with the exception of the
excessive force claim. Instead of drawing inferences
in favor of James, the court essentially discounted
portions of her expert’s opinion testimony and ex-
pressed disag
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.