Petition for Writ of Certiorari — Killeen v. Hallstrom

93-455 |

| preme coo,

vies

No.

SEP 2-1 1993

In The QAGE OF BE coRK

Supreme Court of the United States _

October Term, 1993

S

VAUGHN KILLEEN, MIKE ROBERTS AND

ADA COUNTY, IDAHO,

-

Petitioners,

SUE HALLSTROM,

Respondent

«

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

PETITION FOR A WRIT OF CERTIORARI

°

James J. Davis

Attorney at Law

960 Broadway, Suite 302

P. O. Box 8126

Boise, Idaho 83707

Telephone: (208) 336-3244

Counsel of Record for Petitioners

COCKLE LAW BRIEF PRINTING CO, (800) 225 6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Two questions are presented:

1. The broad question presented, which this Court

left unanswered in Harlow v. Fitzgerald, 457 U.S. 800, 818

n.32 (1982), is what constitutes “clearly established law”

for purposes of qualified immunity in a civil rights action

brought pursuant to 42 U.S.C. § 1983. The question of

what constitutes clearly established law typically

involves a situation where the defendant asserts there

was no Clearly established law governing his/her con-

duct. Here, the converse is true. The defendant asserting

qualified immunity acted in accordance with three local

United States District Court decisions which specifically

sanctioned the conduct. The Niith Circuit Panel, how-

ever, refused to consider the local United States District

Court precedent and held that it would only consider

Ninth Circuit Court of Appeals and Supreme Court pre-

cedent. Thus, the narrow question presented is: whether

local United States District Court decisions which a

defendant cites as controlling should be considered in

determining if the law is clearly established when quali-

fied immunity is asserted.

2. Whether the legal analysis employed by the panel

in denying qualified immunity is consistent with this

Court’s recent decisions in Anderson v. Cretghton, 483 U.S.

635 (1987), and Hunter v. Bryant, 502 U.S.

589, 112 S.Ct. ____ (1991).

, 116 L.Ed.2d

PARTIES TO THE PROCEEDINGS

IN THE COURT OF APPEALS

The parties to the proceedings in the United States

Court of Appeals for the Ninth Circuit, the Order of

which is here for rev‘ow, were:

1. Petitioners Vaughn Killeen, Mike Roberts and

Ada County, Idaho, Appellees in the Court of Appeals;

2. Sue Hallstrom, Appellant in the Court of

Appeals;

3. City of Garden City, Idaho, Randy W. Snapp, and

Sgt. Thurston, Appellees in the Court of Appeals; and

4. Robert C. Hallstrom, Appellant in the Court of

Appeals.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...........

PARTIES TO THE PROCEEDINGS IN THE COURT

ere a prea re ceberesoeyvesened. ii

i a COE csv sy cerecrerveeseeweserss iii

po Be OP gg et) eee \

esac e hit reehersetexereeeueres l

ee ia ery bad breve bawesw ert ee te os l

CONSTITUTIONAL AND STATUTORY PROVI-

AROS See er ee 2

EE, GE” CONES GINGES os ices recs vestveveners 3

EE III, Sp ose vss sec cetarvicevesevess 3

EB ge re 4

ARGUMENT FOR ALLOWANCE OF WRIT........ 6

1. The Ninth Circuit Panel erred when in determin-

ing clearly established law it rejected applicable

local United States District Court precedent.......7

ll. The Ninth Circuit Panel erred in its legal analysis

in determining whether Roberts was entitled to

soca yy veces se nes ¥ ced eeeuys 10

el Ti. k ae seseveenssed sys es 12

ee cca see etsaeeven ees App. 1

EDS App. 1

m Sepemom, April 12, 1995............-+--- App. 2

oe ea | eo App. 34

D.

G.

TABLE OF CONTENTS - Continued

Page

Order Granting Defendants’ Motions for Sum-

mary Judgment, May 3, 1991............ App. 35

Order, Mendoza v. Larson, et al., December 29,

en re Saar np ne ayrn or pe he App. 72

Order, Gibson v. Crowell, et al., September 13,

ee eT Sere errr ee mre ty App. 74

Order, Shaw v. Boise City, et al., September 12,

ee PE Or rrr rere rrr rrr rere Perec App. 77

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987)

19S aya ee ese ha eet eee i, 6, 8, 10, 11, 12

Harlow v. Fitzgerald, 457 U.S. 800 (1982)......... i. 7,

Hunter v. Bryant, 502 U.S. __, 116 L.Ed.2d 589, 112

“Ye eee oe i, 6, 10, 11, 12

Mitchell v. Forsyth, 472 U.S. 511 (1985) ............... 8

Procunier v. Navarette, 434 U.S. 555 (1978) ............ 7

Romero v. Kitsap County, 931 F.2d 624 (9th Cir.

| en en rm ry rewire rrr ara ss 7

United States v. Gouveia, 467 U.S. 180, 81 L.Ed.2d

166, 06 Bt Bie Cee oh hee ee 8

STATUTES

8 USC. 410M) 3 eee

@ USC-4 WS eee 2,4

RULES

Sup. Ct. B. WOT) ce cis ea cer eeee nee ee eee 6

Sep. Ct. TR. TOA ois odd eee cecvaet veces eran sees 6

Sep. ©t. BWA cisec dine eee

Sup. Ct. BR. 194 osc cevecevcdesaceaneteasseaeegeeee |

OTHER AUTHORITIES

Blum, K., 26 Indiana Law Review 187 (1993)........... 7

Gildin, G., 11 Hofstra Law Review 557 (Winter 1983)..... 7

Vi

TABLE OF AUTHORITIES — Continued

Page

Kinports, K., 23 Georgia Law Review 597 (Spring

5 | PEEP CEP ET OE TPCT TT Cle eee oer ee ee Pere

SJ]

Nahmod S., Civil Rights and Civil Liberties Litiga-

fot & G7 Ge OG. Terales ssancwceekwenstescseacens 7

Pursuant to Part III of the Supreme Court Rules,

Vaughn Killeen, Mike Roberts, and Ada County, Idaho

petition this Court to issue a writ of certiorari to the

United States Court of Appeals for the Ninth Circuit

OPINIONS BELOW

The Order of the United States Court of Appeals for

the Ninth Circuit denying the petition for rehearing and

rejecting the suggestion for rehearing en banc is attached

as Appendix A hereto. The Panel Opinion which among

other things reversed summary judgment on the issue of

qualified immunity is attached as Appendix B hereto. The

United States District Court for the District of Idaho's

Judgment and Order granting Defendants’ Motion for

Summary Judgment, which among other things granted

qualified immunity, are attached as Appendices C and D,

respectively, hereto.

JURISDICTION

The Court of Appeals entered its Order denying the

petition for rehearing and rejecting the suggestion for

rehearing en banc on June 23, 1993. This Petition for a

Writ of Certiorari is therefore timely under Sup. Ct. R.

13.1 and 13.4. This Court has jurisdiction to review the

Order of the Court of Appeals under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

FOURTH AMENDMENT

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated and no war-

rant shall issue, but upon probable cause, supported by

oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

FOURTEENTH AMENDMENT

. . . No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any person

of life, liberty, or property, without due process of

law. ...

42 U.S.C. § 1983

Every person who, under color of any statute, ordi-

nance, regulation, custom or usage of any State or Terri-

tory or the District of Columbia, subjects or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunity secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action of law, suit and equity, or other proper proceeding

for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District of

Columbia.

STATEMENT OF THE CASE

Factual Background

This case arises out of the arrest and detention of Sue

Hallstrom (“Hallstrom”) on June 19, 1987. Hallstrom was

arrested by law enforcement officers, who are not parties

to this petition, for several motor vehicle violations and

resisting and obstructing an officer. She was taken to a

County jail facility owned and operated by Petitioner

Ada County. Petitioner Vaughn Killeen (“Killeen”) was

the Ada County Sheriff and Petitioner Mike Roberts

(“Roberts”) was the captain in charge of the Ada County

Jail.

Once at the jail Hallstrom refused to submit to the

standard booking process. She refused to provide bio-

graphical information, be finger printed, or submit to

having her photograph taken. Her refusal was premised

upon her belief that her first “allegiance is to Higher

Moral Law, and any other allegiance is secondary.” Hall-

strom was placed in a cell and advised dozens of times

that she would be released from the jail if she would

submit to booking procedures. She refused until June 24,

1987 at which time she submitted to the booking process

and was released.

Hallstrom was not the first person who refused stan-

dard booking procedures at the Ada County Jail based

upon their “inalienable right to not submit to man-made

law.” Just a few years before Hallstrom was incarcerated,

in three separate incidents, three other individuals who

had been arrested and brought to the Ada County Jail,

were detained when they refused to be booked. Each of

them filed lawsuits in the United States District Court for

the District of Idaho. In each case the lawsuits were

dismissed on the basis that the plaintiffs did not have a

legal basis to resist booking procedures and they failed to

state a legal claim against Ada County or its officials for

detaining them until they submitted to the booking pro-

cess. Copies of the Orders granting Ada County or its

officials’ motions to dismiss or for summary judgment are

attached as Appendices E, F and G hereto.

Course of Proceedings

Hallstrom sued under 42 U.S.C. § 1983 alleging

numerous constitutional violations, including under the

Fourth and Fourteenth Amendments, for detaining her

until she submitted to booking. Petitioners Killeen,

Roberts and Ada County filed an Answer to Hallstrom’s

Complaint asserting a number of affirmative defenses

including that Roberts had qualified immunity in his

individual capacity. Killeen, Roberts and Ada County

then filed a Motion for Summary Judgment on all issues

raised by Hallstrom’s Complaint.

The United States District Court granted the motion

in its entirety. In so doing, consistent with its earlier

decisions, the Court held that Roberts justifiably detained

Hallstrom until she booked and that he was entitled to

qualified immunity therefor. Appendix D, pp. 18-19 and

21-25.

Hallstrom appealed. The Ninth Circuit Panel

reversed the District Court on the issue of qualified

immunity. While the Panel recognized “ . . . government

has a legitimate interest in orderly booking... ,” (Appen-

dix B, pages 22 n.20 and 31) it held that the District Court

had not properly decided the qualified immunity issue. It

rejected the three District Court cases which had sanc-

tioned Roberts’ conduct on the basis the decisions did not

constitute “clearly established law.” Instead, the Panel

held that the “objective reasonableness” standard of qual-

ified immunity required the Court to lc ok only to Ninth

Circuit and Supreme Court precedent. According to the

Panel: “Under the objective test, an official is charged

with knowledge of controlling Supreme Court and Ninth

Circuit precedent.” Appendix B, p. 26.

After rejecting the use of District Court precedent,

the Panel reversed Roberts’ summary judgment on the

qualified immunity issue on the basis that Hallstrom’s

Fourth Amendment constitutional right to be taken

immediately before a magistrate had been violated.

Appendix B, p. 27. The Panel remanded the case” . . . for

the award of compensatory damages...”,anda”... de-

termination as to whether any county official sued in his

individual capacity is liable for punitive damages.”

Appendix B, p. 27.

ARGUMENT FOR ALLOWANCE OF WRIT

This Petition should be granted for two reasons.

First, this Court should decide what law is to be consid-

ered in determining what is “clearly established law” for

purposes of qualified immunity in a § 1983 action. This

Court has previously left the question open which has

resulted in conflicts within and among the Circuit Courts

of Appeal.

Second, this Court should consider whether the

Ninth Circuit Panel’s legal analysis is consistent with this

Court’s precedents which instruct that the law to be

considered in determining whether a right has been vio-

lated must be particularized. The Panel, in reversing sum-

mary judgment on qualified immunity, did not cite and

apparently did not locate any cases which address the

narrow question whether Roberts could detain Hallstrom

until she submitted to booking. Rather, contrary to this

Court’s decision in Anderson, supra, the Panel looked to

law on the broader issue of the right to be taken imme-

diately before a magistrate. In so doing, it not only disre-

garded Anderson; it also failed to recognize the

appropriate inquiry: ” ... whether the [law enforcement

officer} acted reasonably under settled law in the circum-

stances, not whether another reasonable, or more reason-

able, interpretation of the events can be constructed five

years after the fact.” Hunter, supra, 116 L.Ed.2d at 596.

Thus, this case falls squarely within the criteria of Sup.

Ct. R. 10.1(a) and (c).

a

THE NINTH CIRCUIT PANEL ERRED WHEN IN

DETERMINING CLEARLY ESTABLISHED LAW IT

REJECTED APPLICABLE LOCAL UNITED STATES

DISTRICT COURT PRECEDENT.

This Court has expressly left open the question of

what constitutes clearly established law. Harlow v.

Fitzgerald, 457 U.S. 800, 818 n.32 (1982). As a result of the

question having been left open, there is a conflict within

and among the Circuit Courts of Appeal. Cf., Nahmod S.,

Civil Rights and Civil Liberties Litigation § 8.07 (3d ed.

1991); Kinports, K., 23 Georgia Law Review 597, 605 n.41

(Spring 1989); Blum, K., 26 Indiana Law Review 187,

199-205 (1993); and Gildin, G., 11 Hofstra Law Review 557,

591-592 (Winter 1983). Some circuits have taken the posi-

tion that only Supreme Court and Courts of Appeal deci-

sions will be considered. Some have held that even

Circuit Court of Appeal decisions from other circuits will

not be considered. Other circuits have held that “all avail-

able decisional law” will be considered. Blum, K., 26

Indiana Law Review 187, 203-204 (1993). Even within the

Ninth Circuit Court of Appeals, different panels have

taken different approaches. Unlike the Panel in this case

which refused to consider District Court opinions,

another Ninth Circuit panel in Romero v. Kitsap County,

931 F.2d 624, 629 (9th Cir. 1991) held United States Dis-

trict Court precedent should be considered.

Even though this Court in Harlow left open the ques-

tion what law should be considered clearly established

law, it has in fact utilized United States District Court

decisions in determining whether there was clearly estab-

lished law. In Procunier v. Navarette, 434 U.S. 555 (1978)

the Court noted that no matter whether Supreme Court,

Court of Appeals or “local district court” opinions were

utilized the particular rights asserted to have been vio-

lated had not been recognized. Further, in Mitchell v.

Forsyth, 472 U.S. 511 (1985) the Court examined a number

of district court cases to determine the “ .. . legitimacy of

warrantless national security wiretapping. ...” Id. at 533.

This Court’s utilization of United States District

Court cases to determine clearly established law is consis-

tent with the purposes supporting qualified immunity. As

this Court has noted on numerous occasions, utilizing the

“clearly established law” standard allows government

officials to know when their conduct may subject them to

liability. Cf, Anderson, supra, at 641. It would be inconsis-

tent with that purpose to ask government officials to

disregard existing United States District Court cases

which specifically sanction their conduct.

The importance, for these Petitioners, of utilizing

local District Court precedent is apparent. The very issue

raised by Hallstrom had been addressed by the local

United States District Court less than two years before

Hallstrom’s incarceration. The district court judge speci-

fically sanctioned detaining the Plaintiff until she agreed

to be booked.

However, the booking procedures utilized by

Ada County and the methods used to enforce

those procedures are not unconstitutional. There

is NO question that the right to counsel does not

arise as early as the time of booking. See United

States v. Gouveia, U.S. __, 81 L.Ed.2d 146

(1984). Nor does “incommunicado incarcera-

tion” of a person who refuses to comply with

booking procedures constitute a violation of

either substantive or procedural due process

under the fourteenth amendment. Booking pro-

cedures are necessary to the effective manage-

ment and administration of a detention facility.

Incarcerating a person until such time as they com-

ply with booking procedures is a reasonable measure

to ensure a legitimate government objective is

achieved. It is not unreasonable nor unconstitutional

for jailers to require that pretrial detainees comply

with booking procedures. Similarly, it is not unrea-

sonable for the jailers to incarcerate a person who

might otherwise be able to post bail subsequent to

booking, as a means of coercing that person into

compliance with the booking procedures.

Appendix G, pp. 78-79 (emphasis added).

The same issue was presented to another United

States District Court judge in Idaho, again less than two

years before Hallstrom’s detention. That judge also held

that it was not unconstitutional for Ada County to detain

an inmate until the inmate submitted to standard booking

procedures. Appendix F. Finally, the same issue was

addressed again in December of 1985 with the same

result. Appendix E.

Thus, when Roberts was confronted with Hallstrom’s

arbitrary refusal to submit to standard booking pro-

cedures, the decision to detain her was not made in a

vacuum. It was made upon existing law. His conduct had

specifically been approved three times by the United

States District Court for the District of Idaho not more

than two years before. It is untenable for the Ninth Cir-

cuit Panel to disregard those decisions in deciding that

10

Roberts did not have qualified immunity. For these com-

pelling reasons, this Court should grant the Petition and

issue a Writ of Certiorari to decide, the question it has left

open, what law is to be considered in determining clearly

established law.

Il.

THE NINTH CIRCUIT PANEL ERRED IN ITS LEGAL

ANALYSIS IN DETERMINING WHETHER ROBERTS

WAS ENTITLED TO QUALIFIED IMMUNITY.

Despite this Court’s decisions in Anderson and

Hunter, the Ninth Circuit Panel utilized a broad “level of

generality” in determining whether there was clearly

established law and misapplied the objective reasonable-

ness standard.

In Anderson this Court noted that the level of gener-

ality utilized in determining clearly established law can

drastically effect the inquiry. It rejected a broad inquiry as

bearing “no relationship to the ‘objective legal rea-

sonableness’ that is the touchstone of Harlow.” Id. at 639.

Thus, this Court held:

. 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 suffi-

ciently clear that a reasonable official would

understand that what he is doing violates that

right.

at 640.

The Ninth Circuit Panel over-generalized the clearly

established law inquiry. Rather than focusing on the more

11

particularized issue of Hallstrom’s “right” to not submit

to the booking process versus Ada County’s right to

detain her until she did submit, the Panel examined the

more general Fourth Amendment right to be taken

promptly before a magistrate.'! The Panel in defining the

issue as broadly as it did essentially converted the rule of

qualified immunity “ . . . into a rule of virtually unqual-

ified liability simply by [identifying] violation of

extremely abstract rights.” Anderson, supra, at 639. A

proper analysis of the issue, a more particularized one,

would yield the result reached by the District Court: Hall-

strom did not have a constitutional right to refuse book-

ing and her detention until she agreed to booking did not

violate her clearly established rights.

As problematic as the Panel’s approach is to defining

Hallstrom’s rights, so is its approach to defining the

actions of a reasonable officer. This Court summarily

rejected a Ninth Circuit Panel’s approach to that issue in

Hunter. There, this Court held:

. . . The court should ask whether the agents

acted reasonably under settled law in the cir-

cumstances, not whether another reasonable, or

more reasonable, interpretation of the events

can be constructed five years after the fact.

Id., 116 L.Ed.2d at 596.

Here, the Panel in reviewing Roberts’ actions did not

ask whether he “acted reasonably under settled law in

! Ironically, Hallstrom acknowledged in her brief to the

Ninth Circuit that her right to be taken before a magistrate was

not even an issue to be decided. The Panel took it upon itself to

frame the issue.

12

the circumstances.” Instead, the Panel asked whether

another reasonable interpretation could be constructed.

For instance, the Panel said there were other options,

including booking Hallstrom after a probable cause deter-

mination, doing a partial booking, or a “Doe booking.”

Appendix B, p. 21. If the Panel had followed this Court's

instruction in Hunter to judge Roberts’ actions against

reasonably settled law, it would have found no law sup-

porting Hallstrom’s position that she had an inalienable

right not to be booked; would have found no law clearly

establishing that Hallstrom could not be detained until

she booked; and would have found no law advising

Roberts that he may be subjected to compensatory dam-

ages and punitive damages for requiring Hallstrom to be

booked.

Because the Panel’s Order is inconsistent with this

Court’s decisions in Anderson and Hunter, this Court

should grant the Petition and issue a Writ of Certiorari.

¢

CONCLUSION

This Court should grant this Petition and issue a Writ

of Certiorari for the reasons set forth herein

Respectfully submitted this 20 day of September,

1993.

James J. Davis

960 Broadway, Suite 302

P. O. Box 8126

, Boise, Idaho 83707

(208) 336-3244

Attorney of Record for Petitioners

G.

INDEX TO APPENDIX

CORE, DG Dk PO ko abe were eccebveueuys App.

Opietion, ABT 12, TIPG. . soe sccscvvecscesss App.

FOGG, TORY D, To ihe vi cccdcccescccsavens App.

Order Granting Defendants’ Motions for Sum-

mary Judgment, May 3, 1991.............. App.

Order, Mendoza v. Larson, et al., December 29,

BUY ds <6 cee eed ckne ckectecsstesnnie App.

Order, Gibson v. Crowell, et al., September 13,

SW cdecckmekbecduauc boadnabsn tale > App.

Order, Shaw v. Boise City, et al., September 12,

POPPE eT eT ere UST eT Tee EC ree ee tee App

34

35

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUE HALLSTROM;

ROBERT HALLSTROM,

No. 91-35662

DC# CV-87-01360-HLR

ORDER

(Filed

June 23, 1993)

)

)

Plaintiffs-Appellants,

)

v. )

CITY OF GARDEN CITY: ?

RANDY W. SNAPP: )

SGT THURSTON:

VAUGHN KILLEEN: )

Sheriff; MIKE ROBERTS, :

)

)

)

et al.

Defendants-Appellees

Before: WRIGHT, FLETCHER and CANBY, Circuit

Judges

The panel as constituted in the above case has voted

to deny the petition for rehearing.

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has

requested a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sugges-

tion for rehearing en banc is rejected.

App. 2

APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SusAN HALLSTROM; ROBERT No. 91-35662

H ALLSTROM, D.C. No.

Plaintiffs-Appellants, CV-87-01360-HLR

V. OPINION

Snapp; Sct. THURSTON; VAUGHN

KILLEEN, SHERIFF; Mike ROBERTS, ET

AL.,

)

)

)

)

)

City oF GARDEN City; RANbDy W.

)

)

)

Defendants-Appellees. )

)

Appeal from the United States District Court

for the District of Idaho

Harold L. Rvan, District Judge, Presiding

Submitted September 15, 1992*

Seattle, Washington

Filed April 12, 1993

Before: Eugene A. Wright, Betty B. Fletcher

and William C. Canby, Jr., Circuit Judges.

Opinion by Judge Fletcher

* The panel unanimously finds this case suitable for deci-

sion without oral argument. Fed. R. App. P. 34(a): Ninth Circuit

Rule 34-4.

App. 3

SUMMARY

Individual Rights/Constitutional Rights

The court of appeals reversed in part a judgment of

the district court. The court held that delaying a

detainee’s appearance before an available magistrate for

more than three days because she refused to cooperate

with established booking procedures and incarcerating

her for the same reason for two additional days following

the court’s order that she be released on bail was a

violation of her civil rights.

Appellant Susan Hallstrom was stopped on a Friday

morning by a police officer of appellee City of Garden

City, Idaho, for a broken taillight on her vehicle. She

refused to show her driver’s license. Driving without a

license is a misdemeanor in Idaho. Hallstrom was

arrested at approximately 9:00 a.m. for failure to furnish

satisfactory evidence of her identity and transported to

appellee Ada County’s jail. Hallstrom requested presenta-

tion to a magistrate and refused to answer routine book-

ing questions or to permit fingerprinting or photo-

graphing, asserting that-such_questions—and procedures

violated her constitutional rights. A magistrate was on

call around the clock in the county, and the magistrate’s

office was in the same building as the county jail. Hall-

strom’s identity was ascertained from papers found in

her possession. She was charged with obstruction of jus-

tice for her failure to cooperate. She was then incarcer-

ated until such time as she would agree to submit to

booking procedures. She was arraigned at approximately

4:00 p.m. on Monday before a state court judge who

App. 4

ordered her released on bail. On that day, Halistrom’s

husband attempted to post bail, but it was not accepted,

and he was told that it would not be accepted until Hall-

strom submitted to the booking process. It was the policy

of the county not to take a prisoner before a magistrate,

and not to release an arrested individual, until booking

was accomplished. Hallstrom’s husband obtained a court

order requiring her to comply with booking procedures.

Hallstrom then did so. She was released on bail late

Wednesday afternoon.

Hallstrom filed a Section 1983 action, naming Ada

County, its sheriff in his official capacity, and its jail

commander in his official and individual capacities, as

well as the City and its arresting police officers. Hall-

strom alleged, among other things, that her right to be

timely taken before a magistrate was violated, that her

detainment after the court ordered her released on bail

amounted to false imprisonment, and that the conditions

of her confinement amounted to punishment and were

otherwise unconstitutional. The defendants moved for

summary judgment, which the district court granted. The

court also held that qualified immunity was appropriate

for the Ada County jail commander in his individual

capacity.

[1] The officers had a constitutional duty to take

Hallstrom before a judicial officer promptly after her

arrest. A judicial determination of probable cause within

48 hours of arrest will generally comply with this

promptness requirement. [2] After the lapse of 48 hours,

the burden shifts to the government to justify the delay

on the basis of a bona fide emergency or other extraordin-

ary circumstances. [3] The county made no showing of

App. 5

justification for the delay other than as a coercive meas-

ure to force her cooperation with the booking procedures.

[4] Refusal to cooperate with booking procedures cannot

excuse extended detention based solely on the arresting

officer’s assessment of probable cause. Four days of

incarceration was not a brief period. Hallstrom was in

custody for a prolonged period. Booking may not serve as

a threshold condition which can indefinitely suspend the

operation of the Fourth Amendment until it is met. [5] On

the record, Hallstrom established the liability of Ada

County, the sheriff in his official capacity, and the jail

commander in dual capacities.

[6] The jail commander’s qualified immunity

depends upon whether a reasonable officer could have

believed his conduct was lawful under governing law

which was Clearly established. No objectively reasonable

official could consider a four-day incarceration to be

brief, or Hallstrom’s arraignment to be prompt, or the

purpose of coercing compliance with booking procedures

to be sufficiently exigent to justify the delay. [7] The Ada

County jail commander was not shielded by qualified

immunity in his individual capacity. [8] The defendants

could not constitutionally coerce Hallstrom through con-

tinued confinement to comply with booking procedures

after the court had ordered her released on bail.

[9] A pretrial detainee who has had only a judicial

determination of probable cause may be subjected to the

restrictions and conditions of a detention facility as long

as they do not amount to punishment or are otherwise

unconstitutional. [10] Hallstrom was entitled at least to

the protections afforded pretrial detainees. [11] The

detention itself, or lack of access to a magistrate, or denial

App. 6

of release on bail, could have been punishment for Hall-

strom’s failure to cooperate. [12] Whether or not Hall-

strom established constitutional deprivations in

connection with the conditions of her confinement, her

claims were cognizable and not appropriate for summary

disposition.

COUNSEL

Robert C. Hallstrom, Susan Hallstrom, Boise, Idaho, pro

se, for the plaintiffs-appellants.

James J. Davis, Davis, Wright, Tremaine, Boise, Idaho,

and John L. King, Cantrill, Skinner, Sullivan & King,

Boise, Idaho, for the defendants-appellees.

OPINION

FLETCHER, Circuit Judge:

Susan and Robert Hallstrom appeal the dismissal on

summary judgment of their 42 U.S.C. § 1983 action. They

describe themselves as self-taught “legalists” active and

vocal in defending their constitutional rights. They claim

violations of their rights stemming from the conduct of

Ada County, Garden City, and each governmental entity’s

officers during the arrest of Mr. Hallstrom in March 1982

and the arrest and incarceration of Mrs. Hallstrom in June

1987. They also challenge the constitutionality of Idaho

Code § 18-705 (1987), which prohibits obstruction of jus-

tice. They seek declaratory, injunctive, and monetary

relief, including exemplary damages. The district court

——SS—____aaaaaaaa

App. 7

granted summary judgment for defendants, and denied

summary judgment to plaintiffs, finding that Mr. and

Mrs. Hallstrom were not deprived of any constitutional

rights. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Because we find that Susan Hallstrom’s right to be taken

before a magistrate in a timely fashion was violated, that

she was detained unjustifiably after a judge ordered her

released on bail, and that she raises cognizable constitu-

tional claims with respect to her conditions of confine-

ment, we reverse in part and affirm in part.

I. PROCEDURAL HISTORY

The Hallstroms filed a complaint naming the City of

Garden City, the arresting Garden City police officers,

Ada County, the Ada County Sheriff and Jail Com-

mander, the State of Idaho, the City of Boise, and other

unknown “Doe” officials as defendants. The Garden City

police officers were sued in their official and individual

capacities, as was the Ada County Jail Commander; the

sheriff was sued only in his official capacity. The City of

Boise filed a motion for judgment on the pleadings in

which the State of Idaho joined. Garden City and the

Garden City police officers filed a motion to dismiss. The

district court granted the motion for judgment on the

pleadings and dismissed the City of Boise and the State of

Idaho. The court initially denied the dismissal of the

Garden City defendants, but did dismiss the punitive

damages claims against Garden City. The Hallstroms do

not appeal these determinations. The Garden City defen-

dants and the Ada County defendants then separately

filed motions for summary judgment. The Hallstroms

filed a cross-motion for summary judgment against Ada

App. 8

County and its officials seeking declaratory relief only.

They did not file any motion with respect to the Garden

City defendants. The district court granted summary

judgment for the Garden City and Ada County defen-

dants against the Hallstroms, denied the plaintiffs’ cross-

motion, and entered a separate judgment dismissing the

action as to all defendants including the “Does.” Before

reaching the issues raised by the Hallstroms or consider-

ing the principal defenses of defendants, the court

decided three subsidiary issues. First, it found that the

Hallstrom’s state law claims were barred by failure to

comply with the procedural requirements of the Idaho

Tort Claims Act, thus entitling the Ada County defen-

dants to dismissal of all state claims. Second, it deter-

mined that the Ada County Jail Commander was shielded

by a qualified immunity defense with respect to his indi-

vidual liability.' And third, it dismissed the punitive

damages claim against Ada County. On appeal, the Hall-

stroms seek reversal of the district court’s summary judg-

ment in its entirety.

Il. FACTS

Mr. Hallstrom was arrested in 1982 for obstructing

justice by failing to produce identification upon request.

He was booked and released. At no time in the course of

the encounter was he imprisoned. The charges were dis-

missed in 1983.

' Later in the opinion, the district court held that all Ada

County defendants were immune.

aaa ca i i ae

App. 9

On a Friday morning in 1987, Mrs. Hallstrom’s vehi-

cle was stopped by an officer of the Garden City Police

Department for a broken taillight. When she refused to

show the officer her driver’s license or proof of liability

insurance coverage, she was arrested. She told the officer

that she did not believe Idaho law required her to carry a

license, and that, in any event, requiring her to carry one

violated her right to travel. Officer Snapp arrested her,

searched her car, and transported her to the Ada County

jail. Officer Thurston oversaw the impoundment of the

Car.

While in custody, Mrs. Hallstrom was cited for motor

vehicle violations.? She repeatedly requested presentation

to a magistrate and refused to answer routine booking

questions or to submit to routine booking procedures, on

the ground that such questions and procedures violated

her constitutional rights. Because of Hallstrom’s failure to

cooperate, the county officials charged her with obstruc-

tion of justice. They ignored her demands to be taken

before a magistrate, and simply incarcerated her until she

agreed to cooperate with county booking procedures.

Susan Hallstrom was held in Ada County jail for six days.

She was not taken before a judicial officer until Monday

afternoon, four days following her arrest, at which time

2 It is not clear from the record before us exactly what

citations Mrs. Hallstrom received prior to the effort to complete

her booking. Nor can we determine whether she also was

charged (rather than cited) with obstructing justice for failing to

produce the documentation requested at the site of the arrest.

For our purposes the charging history is not controlling.

According to appellees, it is Ada County’s “policy” to book

anyone arrested.

App. 10

she was arraigned before a state court judge and ordered

released on bail. Only after her husband obtained a court

order requiring her to comply with booking procedures

did she submit to answering questions, and allow finger-

prints and photographs to be taken. Late Wednesday

afternoon, two days after the state court judge had

ordered her released, the county officials released Mrs.

Hallstrom on bail.

III. MR. HALLSTROM’S CLAIMS

With respect to Mr. Hallstrom’s arrest, appellees

argue that any claims arising from events occurring in

1982 are time-barred. The applicable statute of limitations

for Section 1983 actions is the limitations period for per-

sonal injury actions in the state where the action arose.

Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Idaho, the

applicable statute is Idaho Code § 5-219(4) (1990), which

provides for a limitations period of two years from the

date the cause of action accrues. using the broadest inter-

pretation possible, the latest date that Mr. Hallstrom

could have become aware that his civil rights were vio-

lated was January, 1983, when the charges against him

were dismissed. The Hallstroms filed their complaint in

1987; therefore, Mr. Hallstrom’s claims are time-barred.

We affirm the district court’s dismissal of his claims.

IV. MRS. HALLSTROM’S ARREST & SEARCH

Mrs. Hallstrom contends that Officer Snapp illegally

arrested her and searched her car and personal effects

without probable cause in violation of her fourth Amend-

ment and other constitutional rights.

ee

App. 11

No one questions that Officer Snapp had probable

cause to stop her vehicle when he observed its broken

taillight. Idaho Code § 49-906 (1988); In re Griffiths, 744

P.2d 92 (Idaho 1987) (traffic offenses give police probable

cause to stop vehicle). Mrs. Hallstrom erroneously argues

that Idaho law does not require her to have a driver’s

license as a condition of driving a motor vehicle in Idaho.

To the contrary, Idaho law makes it a misdemeanor to

drive a vehicle without a driver’s license. Idaho, Code

§§ 49-316 (formerly § 49-319), 49-236 (1988 & Supp. 1992).

Operation of a motor vehicle is a “highly regulated activ-

ity, therefore the driver accepts the regulatory burden

along with the benefit of using the public roads.” State v.

Henderson, 756 P.2d 1057, 1070 (Idaho 1988) (Walters, J.,

dissenting). The laws requiring drivers to carry proof of

insurance and registration are valid laws enacted by the

state of Idaho. Idaho Code § 49-1232 (formerly § 49-245)

(1988 & Supp. 1992); see state v. Gibson, 697 P.2d 1216, 1218

(Idaho App. 1985); State v. Reed, 686 P.2d 842 (Idaho App.

1984). Under Idaho Code § 49-1407 (1988), an officer has

the option of taking the person “without unnecessary

delay” before a magistrate rather than issuing a traffic

citation, “[w]hen the person does not furnish satisfactory

evidence of identity or when the officer has reasonable

and probable grounds to believe the person will disre-

gard a written promise to appear in court.” Because Mrs.

Halistrom failed to identify herself? and, by her actions,

* Hallstrom now contends she carried other identification

but did not produce it because the officer requested only her

license. Her failure to volunteer information which would serve

as identification, in combination with her misdemeanor

offenses, gave Officer Snapp sufficient reason to arrest her.

App. 12

demonstrated that she was likely to continue driving

without a license, Officer Snapp did not violate her rights

under Idaho law or the Constitution by making the arrest.

Nor did the officer violate Mrs. Hallstrom’s Fourth

Amendment rights in searching the car and items in it

within her reach. Searches incident to lawful arrest con-

stitute a well-established exception to the warrant

requirement of the Fourth Amendment. United States v.

Robinson, 414 U.S. 218, 224 (1973); see also New York v.

Belton, 453 U.S. 454, 460 (1981); United States v. Lorenzo,

867 F.2d 561, 562 (9th Cir. 1989). Because she committed a

misdemeanor in Officer Snapp’s presence, he had proba-

ble cause to arrest her. His subsequent search of the

vehicle and its contents was proper and reasonable.+ We

4 Mrs. Hallstrom argues that Officer Snapp violated her

due process rights by arranging for her vehicle to be towed from

the parking !ot where she had pulled in off the road. It does not

appear that the officer impounded the car in order to search it

since he already had conducted the search incident to her arrest.

United States v. Feldman, 788 F.2d 544, 553 (9th Cir. 1986) (dis-

cussing unlawful motivation for impounding and inventorying

vehicle), cert. denied, 479 U.S. 1067 (1987). His decision to direct

its removal under the supervision of another officer is consis-

tent with an independent “community caretaking function.”

Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Under South Dakota

v. Opperman, 428 U.S. 364, 369 (1976), “[t]he authority of police

to seize and remove from the streets vehicles impeding traffic or

threatening public safety and convenience is beyond chal-

lenge.” See also United States v. Griffin, 729 F.2d 475, 480-81 (7th

Cir.), cert. denied 469 U.S. 830 (1984). In discharging their com-

munity caretaking functions, it was not unreasonable for the

arresting officers to protect the car from vandalism or theft by

having it towed. United States v. Johnson, 734 F.2d 503, 505 (10th

Cir. 1984); United States v. Griffin, 729 F.2d at 480.

App. 13

affirm the district court’s dismissal of Mrs. Hallstrom’s

Fourth Amendment claims with respect to the arrest and

search.

V. MRS. HALLSTROM’S ADDITIONAL CLAIMS

Mrs. Hallstrom contends that the county and city

officials violated her right to be taken before a magistrate

without undue delay, her right to be released upon a

court order, and her right to conditions of confinement

commensurate with her status as a person awaiting pre-

sentation to a judicial officer and due for release on minor

traffic citations. We address each of those contentions

below. Because we reverse the district court’s grant of

summary judgment against Mrs. Hallstrom and remand

the case on other grounds, we do not reach Mrs. Hal-

Istrom’s additional constitutional claims including the

constitutionality of the Idaho obstruction of justice stat-

ute.° The record is not entirely clear as to what deter-

minations the state court made regarding the obstruction

charges.© Because an obstruction charge is not necessary

to support either the initial arrest or booking under a

general booking policy, we decline to review any rulings

in this regard.

° Hallstrom also charges defendants with violating her

right to remain silent, her right of free speech, her right to

counsel and her right to be free from cruel and unusual punish-

ment.

© See supra note 2.

App. 14

A. Delayed Hearing Before a Magistrate

Two provisions of the Idaho Code spell out postarrest

procedures. Where an arrest is made without a warrant,

“the person arrested must, without unnecessary delay, be

taken before the nearest or most accessible magistrate.”

Idaho Code § 19-615 (1987). Where an arrest is made for

“any misdemeanor violation of the [motor vehicle laws]”

and the arrested person “does not furnish satisfactory

evidence of identity,” the arresting officer has the option

of issuing a traffic citation (and releasing the offender) or

taking her “without unnecessary delay before the proper

magistrate as specified in section 49-1411...” Idaho

Code § 49-1407 (1988). THE DISCRETION is very narrow:

the arrested person either must be released or taken

before a magistrate.”

[1] In addition to their duties under state law, the

officers were subject to a constitutional duty to ensure

that Mrs. Hallstrom be taken before a judicial officer

7 In case these provisions leave any doubt, another section

clarifies the nature of this discretion: “Whenever a person is

halted by a peace officer for a misdemeanor traffic violation and

is not taken before a magistrate as required . . . the officer shall

issue a citation.” Idaho Code § 49-1409 (1988); see also Idaho

Code § 49-1411 (1988) (“[a] person shall be taken before a magis-

trate or given a traffic citation and the charge subsequently

processed, as provided by rule of the supreme court”). Idaho

Crim.R.5(b) (1992) provides in relevant part:

A defendant arrested, whether or not pursuant to a

warrant, shall be taken before a magistrate in that

judicial district without unreasonable delay. In no

event shall the delay be more than twenty-four (24)

hours following the arrest excluding Saturdays, Sun-

days, and holidays.

——=—_—_~”

App. 15

“promptly after arrest.” Gerstein v. Pugh, 420 U.S. 103, 125

(1975).8 All we must decide is whether they or the county

officials? to whom they delivered Hallstrom complied

8 Mrs. Hallstrom does not allege that the officers should

have exercised their discretion to release her on a traffic citation.

She only insists that they be held to their statutory and constitu-

tional duty to provide for a prompt hearing before a magistrate.

Thus, Higbee v. City of San Diego, 911 F.2d 377 (9th Cir. 1990),

relied on by Garden City, is inapposite. There the plaintiffs

argued that the officers’ decision not to issue them a field

release citation, as they had done ona previous occasion, consti-

tuted impermissible punishment. Three plaintiffs were released

from custody within three hours, the fourth within eight hours.

The opinion does not indicate whether a hearing before the

magistrate precipitated the releases.

® The district court determined that the Ada County defen-

dants were entitled to dismissal of all state law claims. We agree

that Susan Hallstrom failed to comply with procedures set forth

by the Idaho Tort Claims Act. Idaho requires that actions against

political subdivisions (including counties and cities) or their

employees be filed within a 180-day period of limitations. Idaho

Code § 6-906 (1990). While the Hallstroms’ federal complaint

was filed within approximately six months of Mrs. Hallstrom’s

arrest and detention, the Ada County supervisor, responsible

for maintaining a record of all tort claims against the county,

certified that no claim had been filed by the Hal!stroms against

Ada County within the requisite period. Mrs. Hallstrom makes

no argument that the statute of limitations should be tolled

under state law; her state law claims against the county are

clearly time-barred. On appeal Hallstrom admits that she did

not file a charge against any of the defendants in compliance

with state procedural requirements. All charges asserting state

law claims are consequently time-barred. Ortega v. O'Connor,

764 F.2d 703, 707 (9th Cir. 1985), reversed on other grounds, 480

U.S. 709 (1987).

That is not to say that Susan Hallstrom may not assert

federal claims based on the defendants’ failure to comply with

state law. We recognize Section 1983 actions grounded on claims

App. 16

with this obligation. Recently the Supreme Court indi-

cated that a jurisdiction which “provides judicial deter-

minations of probable cause within 48 hours of arrest

will, as a general matter, comply with the promptness

requirement of Gerstein.” County of Riverside v.

McLaughlin, 111 S. Ct. 1661, 1670 (1991).

[2] The underlying rationale for according an

arrested individual a prompt probable cause hearing

before a magistrate is set forth in Gerstein:

[A] policeman’s on-the-scene assessment of

probable cause provides legal justification for

arresting a person suspected of crime, and for a

brief period of detention to take the administra-

tive steps incident to arrest. Once the suspect is

in custody, however, the reasons that justify dis-

pensing with the magistrate’s neutral judgment

evaporate. There no longer is any danger that

the suspect will escape or commit further crimes

while the police submit their evidence to a mag-

istrate. And, while the State’s reasons for taking

summary action subside, the suspect’s need for

a neutral determination of probable cause

increases significantly. The consequences of pro-

longed detention may be more serious than the

interference occasioned by arrest. .. . When the

stakes are this high, the detached judgment of a

neutral magistrate is essential! if the Fourth

Amendment is to furnish meaningful protection

from unfounded interference with liberty.

of the deprivation of state-created liberty or property interests.

See infra note 22; see also Davis v. Sherer, 468 U.S. 183, 193 n.11

(1984).

nena

App. 17

420 U.S. at 113-14. Concerned that local government

should have some flexibility and latitude, the McLaughlin

Court created a burden of pruof mechanism by which to

evaluate claims of delay. A person taken before a judicial

officer within the 48-hour period may still challenge the

arresting officials for unreasonable delay, but she bears

the burden of proving that “her probable cause deter-

mination was delayed unreasonably.” 111 S. Ct. at 1670.

The Court gave as examples of reasonable delays:

“unavoidable delays in transport[ation],”1° “late-night

bookings where no magistrate is readily available,” !! lack

of availability of arresting officer,!2 and “other practical

realities.”13 Id. Examples of unreasonable delays include

10 See e.g., United States v. Alvarez-Sanchez, 975 F.2d 1396,

1400 (9th Cir. 1992) (delay viewed “in light of the available

means of transportation” or “the logistics involved”) (interpret-

ing 18 U.S.C. § 3501).

'" See, e.g., United States v. Doe, 701 F.2d 819, 824 (9th Cir.

1983) (“[t]he particular facts in this case persuade us that the

delay here was reasonable. The government made a good faith

effort to arraign Doe as soon as possible, but no magistrate was

available until the morning”) (interpreting 18 U.S.C. § 5033

(1976)).

12 See, v.g., Doe, 701 F.2d at 824 (“[t]he agents were

extremely busy the day Doe was taken into custody, and they

had to give priority to more urgent cases, including a woman in

late pregnancy”).

'8 The Ninth Circuit has resisted creating a per se rule for

evaluating the reasonableness of delay. Kanekoa v. City and

County of Honolulu, 879 F.2d 607, 610 (9th Cir. 1989), cert. denied,

111 S. Ct. 2055 (1991). Instead, it has looked to the existence of

“exigent circumstances” to justify delay. See, e.g., United States v.

Doe, 701 F.2d 819, 824 (9th Cir. 1983); Bernard v. City of Palo Alto,

699 F.2d 1023, 1024 (9th Cir. 1983). For a definition of “exigent

circumstances,” see Fuller v. M.G. Jeu elry, 950 F.2d 1437, 1455

App. 18

delays “for the purpose of gathering additional evidence

to justify the arrest, a delay motivated by ill will against

the arrested individual,'* or delay for delay’s sake.” Id.

After a 48-hour period has elapsed, “the burden shifts to

the government to demonstrate the existence of a bona

fide emergency or other extraordinary circumstance.” /d.

The Court specifically excluded justification based on

difficulties consolidating pretrial proceedings or inter-

vening weekends and holidays. Id.

Mrs. Hallstrom was arrested on Friday morning at

approximately 9:00 a.m. Although she repeatedly

demanded to see a magistrate, she was not taken before a

judge until approximately 4:00 p.m. on Monday after-

noon, some seventy-nine hours later, despite the fact that

a magistrate is on call twenty-four hours a day in Ada

County, and despite the location of the magistrate’s office

s

(9th Cir. 1991) (Hall, J., concurring) Includes prevention of

physical harm or the destruction of evidence or escape, or

“some other consequence improperly frustrating legitimate law

enforcement efforts”). One “practical reality” held to amount to

circumstances which reasonably occasion delay is the insobriety

of the arrested individuals. See Kanekoa, 879 F.2d at 611 (intox-

ication caused delay). McLaughlin does not displace this method

of analysis except as it places the burden of proof on the

detainee to establish the lack of “exigent circumstances” if held

for less than forty-eight hours. McLaughlin, 111 S. Ct. at 1670.

4 See, e.g., United States v. Jernigan, 582 F.2d 1211, 1213-14

(9th Cir.), cert. denied, 439 U.S. 991 (1978) (where arresting offi-

cer failed to take defendant to magistrate on demand and stated

that defendant “would have a long weekend to think about the

matter” in jail, court persuaded that agent “deliberately delayed

arresting [defendant] until a time when, as he well knew,

[defendant] would not be able to go before a magistrate”).

‘cai

App. 19

in the same building as the Ada County jail.!5 Hallstrom

indicates that her arraignment was conducted by video, a

technique which presumably affords magistrates and

judges more ready access to pretrial detainees. Neverthe-

less, she alleges that upon demanding a hearing before

the magistrate, she was told “demand all you want, court

is at 3 p.m. Monday.” Plaintiff’s “Asseveration” at 5 con-

tained in Addendum to ER, Hallstrom v. City of Garden City

(D. Idaho 1991) (No. 87-1360).'°

[3] To justify delay beyond the 48-hour period man-

dated by the Court, defendants must establish that an

emergency or extraordinary circumstances occasioned the

delay in bringing Susan Hallstrom before the judge.

Mindful that McLaughlin was decided after the detention

at issue in this case, we also analyze the justification for

delay in terms of the then prevailing “exigent circum-

stances” standard. See, e.g., Kanekoa v. City & County of

Honolulu, 879 F.2d 607, 611 (9th Cir. 1989), cert. denied, 111

S. Ct. 2055 (1991); United States v. Doe, 701 F.2d 819, 824

(9th Cir. 1983); Bernard v. City of Palo Alto, 699 F.2d 1023,

1024 (9th Cir. 1983). Under either analysis, the defen-

dants’ justification fails. The only reason given by Ada

County for delaying Susan Hallstrom’s hearing is that she

refused to comply with all elements of the booking pro-

cedure, including furnishing the police with satisfactory

1S See United States v. Jernigan, 582 F.2d at 1213 (noting the

proximity of the DEA office to the U.S. Courthouse).

16 All citations to the district court record (“DCR”) or the

excerpts of record (“ER”) are part of the record in this case.

App. 20

evidence of her identity.!7 The county defendants have

made no showing that this delay was justified by reason-

able and prompt administrative procedures, or that the

delay was anything other than a coercive measure

imposed after it became clear that she was not going to

answer booking questions without a court order and was

not going to change her mind. Indeed, the county defen-

dants ascertained Susan Hallstrom’s identity relatively

promptly from papers found in her possession.

The defendants and the district court appear to

believe that the constitutional duty to ensure that an

arrested individual receives a prompt probable cause

hearing before a judicial officer is displaced indefinitely

by the right to book arrested individuals in accordance

with county policy. The district court’s holding that the

right to book a person lawfully arrested justified detain-

ing her without limit (and without access to a magistrate

to pass on the lawfulness of the arrest) in order to

“coerce” compliance with booking, Order Granting

Defendants’ Motions for Summary Judgment at 23, con-

tained in ER, is simply wrong. While the booking process

itself (and its attendant fingerprinting and photograph-

ing) may be entirely proper, it does not trump the Fourth

Amendment proscription against over-long detention

based solely on a probable cause determination made by

the arresting officer.

[4] An arresting officer’s determination of probable

cause justifies only a “brief period of detention to take

'7 Notably, this deficiency is the very one which Idaho law

makes clear triggers the need to take an individual before a

magistrate. Idaho Code § 49-1407(1) (1988).

App. 21

the administrative steps incident to arrest.” Gerstein, 420

U.S. at 114. The Court attached special significance to the

shifting calculus of interests from the state to the individ-

ual “in custody,” especially one in custody for a “pro-

longed” period. It emphasized the “high stakes” involved

for individuals’ liberty interests and undertook to ensure

“meaningful” Fourth Amendment protection. Under Ger-

stein, refusal to cooperate with booking procedures can-

not excuse extended detention based solely on the

arresting officer’s assessment of probable cause. We note

that the officials had other options including completing

the booking after the probable cause determination or

completing a partial or “Doe” booking; they could have

completed booking after the probable cause determina-

tion'® or completed a partial’? or “Doe” booking. Four

days of incarceration is not a “brief period.” All of the

concerns raised by the Court in Gerstein are implicated

here. Susan Hallstrom was in custody for a prolonged

period. The county’s interest in booking her, after reason-

able attempts to do so have proven futile, does not out-

weigh her constitutional right to be taken before a

magistrate. Booking may not serve as a threshold condi-

tion which, if not satisfied, indefinitely suspends the

18 See, e.g., Amsler v. United States, 381 F.2d 37, 46 (9th Cir

1967) (appellant taken before judicial officer for arraignment

and setting of bail before undergoing booking).

19 The defendants possessed several identity cards and a

passport from which they could have extracted much of the

information required for booking.

App. 22

operation of the Fourth Amendment. McLaughlin admon-

ishes that “the police should make every attempt to mini-

mize the time a presumptively innocent individual

spends in jail.” 111 S. Ct. at 1670.

We are not persuaded by the reasoning of the district

court:

Defendants are certainly entitled to a prompt

appearance before a magistrate. However, where

as here, Sue Hallstrom attempted to thwart the

administrative steps incident to her arrest, she

cannot later declare that constitutional depriva-

tions occurred.

Order Granting Defendants’ Motions for Summary Judg-

ment at 21 n.9 contained in ER; see also Shaw v. Boise City,

No. 84-1088 (D. Idaho, Sept. 12, 1985) (Ryan, J.); Gibson v.

Crowell, No. 84-1475 (D. Idaho, Sept. 13, 1985)

(McNichols, J.). The fact that the booking process may be

constitutional, Higbee v. City of San Diego, 911 F.2d 377,

380 (9th Cir. 1990), does not mean that a city or county

constitutionally may incarcerate a person indefinitely

until she voluntarily submits to booking. Were we

reviewing the propriety of a short delay to allow tempers

to cool, and the opportunity for calm reconsideration, we

might have a different result. In this case, however, the

district court allowed a constitutional right to be held

hostage for four days to a routine booking practice or

policy.?°

20 Nor do we mean to give license to those who would seek

to frustrate the booking process or other administrative steps

incident to arrest. As we acknowledge, infra at 3598, the govern-

ment has a legitimate interest in orderly booking.

a

App. 23

[5] We conclude that on this record the plaintiff has

established the liability of Ada County,?! the sheriff in his

official capacity, and the jail commander, both in his

official and individual capacities. As to Garden City and

its arresting officers, however, we remand to the district

court to determine liability. On remand, the court should

consider whether the arresting police officers acted con-

sistently with their statutory22 and constitutional duties

- to ensure that Hallstrom be presented promptly to a

judicial officer when they delivered her to the Ada

County jail for booking prior to presentation.

Turning to the question of damages, we affirm the

district court’s holding that Ada County is not liable for

punitive damages. City of Newport v. Fact Concerts, Inc.,

21 The county has never disputed that its insistence on

booking before the prisoner is taken to a magistrate is a policy of

the county. See Monell v. Department of Social Servs., 436 U.S. 658,

690-91 (1978). Instead, it has argued, here and in similar actions

in district court, that its policy is justified. See infra, at 3595-96.

22 This court has held that “a violation of state .. . law can

serve as the basis of a [S]ection 1983 action ‘[w]here the viola-

tion of state law causes the deprivation of rights protected by

the Constitution.’ ” Draper v. Coombs, 792 F.2d 915, 921 (9th Cir.

1986) (quoting Wirth v. Surles, 562 F.2d 319, 322 (4th Cir. 1977),

cert. denied, 435 U.S. 933 (1978)). In addition, the laws of Idaho

guaranteeing timely presentation to a magistrate, e.g., Idaho

Code §§ 19-615, 49-1407, 49-1409, 49-1411, “place[ ] substantive

limitations on official discretion” and contain “explicitly man-

datory language” sufficient to create a liberty interest protected

by the Fourteenth Amendment and actionable under Section

1983. Mendoza v. Blodgett, 960 F.2d 1425, 1428-29 (9th Cir. 1992),

cert. denied, 113 S. Ct. 1005 (1993); sec also Haygood v. Younger, 769

F.2d 1350, 1355 (9th Cir. 1985) (en banc), cert. denied. 478 U.S.

1020 (1986).

App. 24

453 U.S. 247 (1981). However, we reverse its determina-

tion that the defense of qualified immunity shielded the

Ada County defendants. The court held that the jail com-

mander benefited from the qualified immunity defense of

“ ‘objectively reasonable reliance on existing law.’ [Ken-

tucky v. Graham, 473 U.S. 159,] 166-67 [(1985)].” Order

Granting Defendants’ Motions for Summary Judgment at

18 contained in ER. It stated that in the light of previous

decisions and “because it cannot be said that the actions

of the Ada County Defendants were ‘apparently’ unlaw-

ful, the defense of quatified immunity applies. Anderson v.

Creighton, 483 U.S. 635, 640 (1987). See, e.g., Malley v.

Briggs, 475 U.S. 335, 341 (1986).” Order Granting Defen-

dants’ Motions for Summary Judgment at 23 contained in

ER.

[6] The district court erroneously included Ada

County and the officials sued in their official capacities

among the Ada County defendants for which a defense of

qualified immunity is available. A municipality (and its

employees sued in their official capacities) may not assert

a qualified immunity defense to liability under Section

1983. Owen v. City of Independence, 445 U.S. 622, 638

(1980); Kentucky v. Graham, 473 U.S. 159, 165-68 (1985).

Whether the qualified immunity defense applies to the

officials of Ada County sued in their individual capacities

turns on “the ‘objective legal reasonableness’ of the

action assessed in light of legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v.

Creighton, 483 U.S. at 639 (citing Harlow v. Fitzgerald, 457

U.S. 800, 818 & 819 (1982)); see also Davis v. Scherer, 468

U.S. 183, 191 (1984) (“[w]hether an official may prevail in

<x

App. 25

his qualified immunity defense depends upon the ‘objec-

tive reasonableness of [his] conduct as measured by refer-

ence to clearly established law’ ”) (quoting Harlow, 457

U.S. at 818). A two-part analysis is required: “(1) Was the

law governing the official’s conduct clearly established?

(2) Under that law, could a reasonable officer have

believed the conduct was lawful?” Act Up!/Portland v.

Bagley, No. 90-35888, slip op. at 1076-77 (9th Cir. Feb. 10,

1993). At the time of Mrs. Hallstrom’s incarceration,

Supreme Court precedent clearly established that an

arrested individual must be taken before a magistrate

“promptly after arrest.” Gerstein v. Pugh, 420 U.S. at 125.

The Court at that time did not set out any specific period

of time which could be considered presumptively

“prompt.” It indicated that an arresting officer’s deter-

mination of probable cause justifies only a “brief period

of detention to take the administrative steps incident to

arrest.” Id. at 114. The law was clearly settled that Mrs.

Hallstrom had a constitutional right to “prompt” presen-

tation to a judicial officer.27 We find that no “objectively

reasonable” official could consider the initial four-day

period of incarceration “brief,” or Mrs. Hallstrom’s -pre-

sentation to the state court judge “prompt.”?4

23 The Ninth Circuit’s law was also clearly established. It

employed an “exigent circumstances” test to evaluate compli-

ance with Gerstein. See supra note 13.

4 Because Gerstein contemplates a balancing of interests,

an “objectively reasonable” decision depends in part on the

factual circumstances of the case. Mrs. Hallstrom, arrested for

minor traffic violations (none of which ultimately were pur-

sued), and held for obstruction of justice (either for failure to

produce her traffic license or for failure to voluntarily comply

with booking) was kept incommunicado for several days

App. 26

[7] The fact that prior to its detention of Mrs. Hal-

Istrom, Ada County had been granted summary judg-

ment against other plaintiffs asserting constitutional

claims colorably similar to those asserted in this case, see

Shaw v. Boise City, No. 84-1088 (D. Idaho, Sept. 12, 1985)

(Ryan, J.); Gibson v. Crowell, No. 84-1475 (D. Idaho, Sept.

13, 1985) (McNichols, J.), does not alter the result.25 In

neither case did the district court consider Gerstein or

analyze the Ada County defendants’ actions in light of

clearly established Ninth Circuit and Supreme Court law.

While at one level it may seem harsh not to allow law

enforcement officers to rely on local judicial officers’

opinions, the Supreme Court requires what is essentially

an artificial test, one that specifically looks to objective,

not subjective, reasonableness. A judicial officer’s mis-

judgment will not obviate or excuse another official's

obligation to act with objective reasonableness. See Malley

v. Briggs, 475 U.S. at 345-46 & n.9; Bergquist v. County of

Cochise, 806 F.2d 1364, 1368 (9th Cir. 1986), overruled on

other grounds by City of Canton v. Harris, 489 U.S. 378

(1989). Under the objective test, an official is charged

with knowledge of controlling Supreme Court and Ninth

Circuit precedent. This is not a case where the underlying

facts are unclear or in dispute. Cf. Act Up!/Portland v.

without access to a magistrate. The only explanation for delay

was to coerce voluntary compliance with booking procedures.

No “objectively reasonable” official could view this concern as

sufficiently exigent to hold Mrs. Hallstrom for four days.

25 These decisions are unpublished and indicate none of the

underlying facts. For example they are silent on the length of the

delay before the arrested individuals were presented to a magis-

trate.

enti cinaenineeeaemen eel

App. 27 —

Bagley, No. 90-35888, slip op. at 1079 (9th Cir. Feb. 10,

1993) (although law as to strip searching misdemeanor

detainees clearly established, remanded for “an inquiry

as to the facts and circumstances within [the defendants]

knowledge”). Defendants acknowledge Mrs. Hallstrom

was detained for four days prior to her presentation to a

judicial officer. We reverse the district court’s determina-

tion that the jail commander had qualified immunity

from personal liability, and that he and the other Ada

County defendants sued in their official capacities were

shielded by qualified immunity.

B. Continued Detention after Judicial Order Releasing

on Bail

Hallstrom alleges that her continued detention after

the Monday appearance in court when she was ordered

released on bail by the state court judge amounted to

false imprisonment. It does not appear that the judge

conditioned his order on Hallstrom’s compliance with

booking. Defendants admit that on that same day Robert

Hallstrom attempted to post bail but that it was not

accepted and would not be accepted until Susan Hall-

strom submitted to the booking process. They offer as

justification for this continued detention that it is the

policy of Ada County jail not to release an arrested indi-

vidual until she has submitted to the booking process.

Neither the defendants nor the district court address

this second period of incarceration as a distinct and sep-

arable event. The defendants deny, without elaboration,

Hallstrom’s charge of false imprisonment. The district

court justifies all six days of incarceration on the same

App. 28

rationale without addressing the effect of the intervening

court order to release Hallstrom on the fourth day:

““(I]ncommunicado incarceration’ of a person who

refuses to comply with booking procedures constitutes

neither a violation of substantive or procedural due pro-

cess under the fourteenth amendment.” Order Granting

Defendants’ Motions for Summary Judgment at 22 con-

tained in ER.

[8] As we have pointed out with respect to the

prepresentation period of detention, the question is not

whether Ada County has a right to book Susan Hall-

strom, or whether the booking procedures themselves are

constitutional. The question is whether the county consti-

tutionally may “coerce” Susan Hallstrom to comply with

booking procedures once a judicial officer has ordered

her released on bail. If the defendants wished to book her

before release, among available options were partially

booking her on the basis of information gleaned-+trom the

identification cards and passport found in her purse or

seeking an order from the magistrate directing her to

comply with booking. They did not have the right to

continue her detention in a “battle of wills” when the

detention was allegedly based on the “position . . . that

she can stay there forever; she will not leave until the

fingerprints are taken.” Dep. of Robert Hallstrom at 22-23

contained in DCR.*6

26 The county apparently intended to outwait Hallstrom.

She relates: “I asked if | was serving a life sentence. They said |

was unless | submit[ted] to booking (waiving my rights) and

that | would give up long before they do.” Plaintiff's “ Assevera-

tion” at 15-16 contained in Addendum to ER.

App. 29

C. Cognizable Conditions of Confinement Claims

The district court preserved Hallstrom’s “conditions

of confinement” claims in an earlier order but failed-to

address them when it granted summary judgment. These

claims are cognizable under the Fourteenth Amendment.

See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979); Redman

v. County of San Diego, 942 F.2d 1435, 1440 n.7 (9th Cir.

1991) (en banc), cert. denied, 112 S.Ct. 972 (1992).

[9] Bell v. Wolfish sets out the standard by which to

judge claims of unconstitutional conditions of confine-

ment for pretrial detainees who have “only [had] a ‘judi-

cial determination of probable cause as a prerequisite to

[the] extended restraint of [their] liberty following

arrest.’ ” Bell, 441 U.S. at 536 (quoting Gerstein v. Pugh,

420 U.S. at 114). The Court held that the government may

subject such a detainee to “the restrictions and conditions

of the detention facility so long as those conditions and

restrictions do not amount to punishment, or otherwise

violate the Constitution.” Id. at 536-37. A court ruling on

these claims, “must decide whether the disability is

imposed for the purpose of punishment or whether it is

but an incident of some other legitimate governmental

purpose.” Id. at 538. With respect to the first prong of this

test, intent to punish may be discerned if (1) “an alterna-

tive purpose to which [the restriction] may rationally be

connected is assignable for it” or (2) if the restriction

“appears excessive in relation to the alternative purpose

assigned [to it]” or, as restated later, “the condi-

tions . . . [are] employed to achieve objectives that could

be accomplished in so many alternative and less harsh

methods.” Id. at 538, 539 n.20. As to the second prong of

the test, the Court indicated that the government has a

App. 30

legitimate interest in “ensuring a detainee’s presence at

trial,” “maintaining jail security,” and in “the effective

management of the detention facility once the individual

is confined.” Id. at 540. Justice Stevens pointed out these

considerations should be examined in the light of the

“individual and personal” due process guarantee which

“mandates that an innocent person be treated as an indi-

vidual human being and be free of treatment which, as to

him, is punishment.” Id. at 584 (Stevens J., dissenting).

[10] Since the Bell Court was at pains to point out

that a probable cause hearing had taken place for the

detainees in question and thus that it did not find itself in

a Gerstein context, id. at 533-34, 536, we conclude that

Hallstrom is entitled at least to the protections afforded

pretrial detainees. Notably, during the first period of her

incarceration, Susan Hallstrom had not been accorded a

probable cause hearing and, during the second period,

she was detained despite a court order requiring her

release. Justice Stevens focussed on “(t]he pretrial

detainees whose rights are at stake” as “innocent men

and women who have been convicted of no crimes.” /d. at

579 (Stevens J., dissenting). Susan Hallstrom, however

difficult to deal with, qualifies for this status.

[11] Hallstrom should not be foreclosed from pre-

senting evidence that might establish liability under Bell.

The defendants used detention as means to “coerce” com-

piiance with booking procedures. The detention itself

(and her lack of access to a magistrate or release on bail)

could be punishment for failing to cooperate. Especially

given the alternatives available (including booking over

her objections, requesting a booking order, partial book-

ing), six days’ incarceration is “excessive” in relation to

App. 31.

its purpose. While the government has a legitimate inter-

est in orderly booking, it does not command as high a

priority, for example, as ensuring presence at trial or

maintaining jail security. “Effective management” might

have been achieved by choosing not to confine Hallstrom

(and releasing her on the citations or the bail set by the

judge) or by employing the alternative available to effec-

tuate booking without detention.

[12] Hallstrom makes a numbe; of claims detailing

the inadequacy of the “conditions of confinement”,

including lack of access to a telephone, lack of hygienic

conditions and privacy, lack of fresh air and exercise, lack

of adequate food and liquids which she could eat and

drink,?” and restrictions on her religious expression (both

as to diet and attendance at services).28 Whether or not

Hallstrom is ultimately successful in establishing consti-

tutional deprivations, we find these are cognizable claims

not appropriate for summary disposition.29

27 In response to questioning about her diet, Susan Hall-

strom explained “[w]e’ve studied - we have arrived at our

conclusions on diet by reading medical materials and consulting

the Bible as to what foods are permissible and which are forbid-

den and by reading reports about contamination of food and the

contamination of water.” Dep. of Susan Hallstrom at 40 con-

tained in DCR. “For religious reasons,” she relates, “I do not eat

pig or things cooked in lard or with lard in them, and | do not

drink water with sodium fluoride (rat poison), asbestos, and

other chemicals in it.” Plaintiff’s “Asseveration” at 6 contained in

Addendum to ER.

28 Defendants denied these claims in their Answers but

admitted the underlying facts in response to requests for admis-

sion.

29 Similar complaints were raised on appeal by the Bell

petitioners and noted by the Court. 441 U.S. at 527 n.7 (inade-

App. 32

In Redman v. County of San Diego, 942 F.2d 1435 (9th

Cir. 1991) (en banc), we determined that in the context of

providing for personal security, “[t]he requirement of

conduct that amounts to ‘deliberate indifference’ pro-

vides an appropriate balance of the preirial detainees’

right to not be punished with the deference given to

prison officials to manage the prisons.” Id. at 1443. We

noted that this standard would “protect against the delib-

erate, but arbitrary, choices by government.” Id. We

remand to the district court for its determination on the

merits, guided by standards at least as solicitous as those

applied to pretrial detainees.

V. CONCLUSION

Since we hold that Susan Hallstrom was deprived of

her constitutional right not to be subjected to unreason-

able delay in coming before a magistrate, and was held

impermissibly after the judge directed her release on bail,

we conclude that the Ada County defendants are liable.

We affirm the district court’s decision that Ada County is

not subject to punitive damages. However, we reverse its

determination that Ada County and its officials have

qualified immunity from either official or personal lia-

bility. We remand for the award of compensatory dam-

ages against Ada County, the sheriff in his official

capacity, and the jail commander in his official and indi-

vidual capacities. We also remand for a determination as

quate phone service, unsanitary conditions, inadequate and

unsanitary food, improper restrictions on religious freedom); id.

at 529 n.10 (phone service and special diets for Muslim inmates

not before the Court).

App. 33

to whether any county official sued in his individual

capacity is liable for punitive damages.%

As to the Garden City defendants, we remand to the

district court for its determination of liability on the

merits. Should the court find the Garden City defendants

liable, it should make a determination as to damages

attributable to the city and to the arresting officers.

On remand, the district court should also determine

the merits of Mrs. Hallstrom’s claims of unconstitutional

conditions of confinement and, if liability is found, any

damages assessable against the Ada County defendants.3!

Mrs. Hallstrom is entitled to costs on appeal,52 The

appellees’ request for attorneys’ fees on appeal is denied.

The decision below is AFFIRMED in part, REVERSED

in part, and REMANDED to the district court for further

proceedings consistent with this opinion.

%© The city and county officials are not shielded from puni-

tive damages under City of Newport v. Fact Concerts, Inc., 453 U.S.

247, 271 & n.32 (1981).

*! Under Idaho law, Susan Hallstrom is entitled to name

unknown parties in her pleadings and amend the complaint

when the “true name[s]” of the parties are discovered. Idaho R.

Civ. P. 10(a)(4); see also Idaho R. Civ.P. 15(c) (setting forth

requirements for relation back of amendments). On the record,

we cannot determine whether any discovery has been taken or

pursued with respect to the Doe defendants named in the com-

plaint. We make no determination as to her capacity under state

law to amend her pleadings to reflect the true names of these

defendants.

%? We find Hallstrom’s additional requests for declaratory

and injunctive relief either moot or lacking in merit.

App. 34

APPENDIX C

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SUE HALLSTROM and ROBERT C.

'4;ALLSTROM,

ais CIVIL NO.

Plaintiffs, 87-1360

V. JUDGMENT

CITY OF GARDEN CITY, ID., (Filed

RANDY W. SNAPP, SGT May 3, 1991)

CAPTAIN MIKE ROBERTS,

COUNTY OF ADA COUNTY, CITY

OF BOISE, STATE OF IDAHO, and

DOES | through X inclusive,

)

)

)

)

)

)

)

THURSTON, SHERIFF KILLEEN,

)

)

)

Defendants.

)

Based upon this court’s Order Granting Defendants’

Motions for Summary Judgment, dated May 3rd, 1991,

and the court being fully advised in the premises,

IT IS ORDERED AND ADJUDGED that plaintiffs

take nothing against the defendants, and that this action

be dismissed.

DATED this 3rd day of May, 1991.

/s/ Harold L. Ryan

HAROLD L. RYAN

UNITED STATES

DISTRICT COURT

——————

oe

App. 35

APPENDIX D

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

CIVIL NO.

87-1360

ORDER GRANTING

DEFENDANTS’

MOTIONS FOR

SUE HALLSTROM and )

)

)

)

)

CITY OF GARDEN CITY, SUMMARY JUDGMENT

)

)

)

)

ROBERT C. HALLSTROM,

Plaintiffs,

V.

ID., et al., (Filed

Defendants. May 3, 1991)

I. FACTS AND PROCEDURE

This suit was brought pursuant to 42 U.S.C. § 1983 by

Mr. Robert C. Hallstrom and Mrs. Sue Hallstrom. In addi-

tion to challenging the constitutionality of Idaho Code

§ 18-705,! which prohibits resisting, delaying and/or

obstructing police officers, Mr. and Mrs. Hallstrom allege

a number of civil rights violations stemming from the

conduct of the named defendants which occurred during

' Idaho Code § 18-705 (1987) provides as follows:

Resisting and obstructing officers. - Every person

who wilfully resists, delays or obstructs any public

officer, in the discharge, or attempt to discharge, of

any duty of his office or who knowingly gives a false

report to any peace officer, when no other punish-

ment is prescribed, is punishable by a fine not exceed-

ing one thousand dollars ($1,000), and imprisonment

in the county jail not exceeding one (1) year.

App. 36

an arrest of Mr. Hallstrom on March 24, 1982, and an

arrest of Mrs. Hallstrom on June 19, 1987. The facts sur-

rounding both arrests are briefly stated as follows.

According to the Complaint, on March 24, 1982, Mr.

Hallstrom was attending arraignments at Ada County

Traffic Court. He was allegedly approached by a police

officer for no apparent reason and was asked to identify

himself. When he refused to do so, he was searched and

ultimately arrested for violating Idaho Code § 18-705. Mr.

Hallstrom was released on the same day as his arrest. On

January 23, 1983, the charge against Robert Hallstrom

was dismissed.

More than four years later, on a Friday morning, June

19, 1987, Mrs. Hallstrom was stopped while driving

through Garden City, in Ada County, Idaho, by a Garden

City Police Officer named Randy Snapp. The reason for

the stop was that the car Hallstrom was driving had a

burned-out taillight. Mrs. Hallstrom happened to have a

spare taillight in her trunk, which she and the officer

installed. In the course of the stop, Mrs. Hallstrom was

asked to produce a driver’s license and proof of liability

insurance, which Idaho law requires drivers to carry. She

did not produce a license, but instead stated that she

believed she was not required to have a license by Idaho

law and that requiring her to have a license violated her

liberty to travel guaranteed by the United States Consti-

tution. Mrs. Hallstrom was arrested, taken into custody,

and driven to the Ada County Jail, where she was issued

citations for the motor vehicie violations and charged

with violating Idaho Code § 18-705.

SS ——————————

App. 37

While in custody, Mrs. Hallstrom refused to partici-

pate in the booking procedures, again stating that she

was acting on the basis of her constitutional rights.

Because she refused to submit to the booking procedures,

Mrs. Hallstrom was also charged by Ada County with

violating Idaho Code § 18-705. Throughout the time Mrs.

Hallstrom refused to submit to booking procedures and

was being held in custody, she demanded to be taken

before a magistrate. Mrs. Hallstrom alleges that during

this time she was unable to make any telephone calls. On

the afternoon of Monday, June 22, 1987, Mrs. Hallstrom

was taken before a magistrate, and on June 24, 1987, she

was released from custody. All charges against Mrs. Hall-

strom were eventually dropped.

Based upon their experiences, Mr. and Mrs. Hall-

strom brought this action naming Garden City Police

Officer Randy W. Snapp, Sergeant Thurston and the City

of Garden City (hereinafter the Garden City Defendants);

as well as the Sheriff of Ada County Vaughn Killeen, Ada

County Police Captain Mike Roberts, and Ada County

(hereinafter the Ada County Defendants).? The gist of the

Complaint is that the Ada County Defendants’ arrest of

Mr. Hallstrom in 1982 was improper; that the Garden City

Defendants’ arrest of Mrs. Hallstrom in 1987 was also

improper; that the statute prohibiting resisting, delaying,

and/or obstructing is unconstitutional; and that the Ada

County Defendants’ jailing of Mrs. Hallstrom, based on

2 The City of Boise and State of Idaho were also named

defendants; however, they were previously dismissed by this

court. See Memorandum Opinion & Order, dated May 13, 1988,

at 8.

NR

App. 38

her refusal to submit to booking procedures, was

improper.

Mr. and Mrs. Hallstrom jointly pray for four different

forms of declaratory relief: (1) for a declaratory judgment

that Idaho Code § 18-705 is unconstitutional on its face as

applied to the plaintiffs’ conduct in this case; (2) for an

injunction directing the Garden City Chief of Police to

assure this court that any order entered is read and

understood by every present and future law enforcement

officer; (3) for an injunction concerning the time frame in

which prisoners at the Ada County Jail are allowed

phone calls; and (4) for permanent mandatory injunctions

directing Garden City to expunge all records of Mrs. Hall-

strom’s arrest from the records of the Garden City Police

Department, Ada County Jail, and any other state or

federal agencies. Also, Mrs. Hallstrom, individually,

prays for monetary relief, including the costs of the action

as authorized by 42 U.S.C. § 1988; $60,000 from each

defendant for the six days of her incarceration; $10,000

for each separate civil rights violation; and for punitive

damages in the amount of $100,000 from each defendant.

On September 5, 1990, after some difficulties in

scheduling, the court entertained oral argument on the

Ada County Defendants’ Motion for Summary Judgment

and the Garden City Defendants’ Motion for Summary

Judgment. The day before such motions came on for

hearing, plaintiffs filed a cross-motion for summary judg-

ment against the Ada County Defendants only. Finding

that further oral argument would not aid the decision-

making process, and finding that the plaintiffs’ motion

has been fully briefed, it too is ripe for consideration at

this time.

|

App. 39

Thus, having thoroughly considered all the arguments

presented herein, based on the analysis to follow, this

court finds that defendants’ motions for summary judg-

ment should be granted; plaintiffs’ cross-motion should

be denied; and this action should be dismissed.

Il. ANALYSIS OF PENDING MOTIONS

Because of the distinctly different time frames

involved, in analyzing the issues herein, Robert Hall-

strom’s claims shall be treated separately from those of

Sue Hallstrom. Then, once the claims of each plaintiff are

analyzed in relation to the named defendants, the court

will turn to plaintiffs’ challenge regarding the constitu-

tionality of Idaho Code § 18-705.

A. Robert Hallstrom’s Claims

In their motions for summary judgment, both the

Garden City Defendants and the Ada County Defendants

contend that Robert Hallstrom’s claims are barred by the

applicable Idaho statute of limitations.* This court agrees.

In Wilson v. Garcia, 471 U.S. 261, 275 (1985), the

Supreme Court held that “the borrowing principle con-

tained in § 1988 . . . is fairly construed as a directive to

select, in each State, the one most appropriate statute of |

limitations for all § 1983 claims.” Later, the Supreme

3 Additionally, the Garden City Defendants maintain that

Robert Hallstrom has no standing to remain in this lawsuit as a

plaintiff because there is no case or controversy between him

and these defendants.

App. 40

Court discussed its holding in Wilson and stated that

“based upon the legislative history of § 1983 and the wide

array of claims now embraced by that provision, that

§ 1983 ‘confer[s] a general remedy for injuries to personal

rights.” Owens v. Okure, 488 U.S. 235, 240 (1989). And,

the Court expressly acknowledged having previously

held that, “[b]ecause ‘§ 1983 claims are best characterized

as personal injury actions’ . . . a State’s personal injury

statute of limitations should be applied to all § 1983

claims.” Id. at 240-41 (emphasis added).

Consistent with the holding in Wilson, actions

brought pursuant to 42 U.S.C. § 1983 in Idaho must meet

the two-year statute of limitations for personal injury

actions which is set forth in Idaho Code § 5-219(4). Hen-

derson v. State, 110 Idaho 308, 715 P.2d 978, cert. denied, 477

U.S. 907 (1986). Federal law dictates that the time of

accrual of a civil rights claim is when plaintiff knows or

has reason to know of the injury which is the basis for the

action. Giving that standard a broad interpretation, based

on the record, the latest date on which Robert Hallstrom

could be considered to have known (or to have reason to

have known) of his alleged civil rights violations was

January 23, 1983, the date on which the charge against

him was dropped.

Robert Hallstrom did not commence this action

within two years of January 23, 1983, but instead waited

almost four years, until December 22, 1987. Therefore, to

the extent this action states claims by Mr. Hallstrom

against the Garden City Defendants and the Ada County

ance aaa

App. 41

Defendants, such claims are barred by Idaho Code

§ 5-219(4).4

B. Sue Hallstrom’s Claims

Mrs. Hailstrom filed her claims against both defen-

dants within two years of the events at issue. There is no

statute of limitations problem with Mrs. Hallstrom’s

claims. Thus, the court turns to the merits.

In order to establish liability under 42 U.S.C. § 1983,

a plaintiff must prove two essential elements: (1) that the

conduct complained of was committed by a person under

color of state law, and (2) that the conduct resulted ina

deprivation of rights, privileges, or immunities secured

by the Constitution or the laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535 (1981). In this case, the

actions of the defendants were clearly taken under color

of state law. However, in their motions for summary

judgment, the defendants contend that Mrs. Hallstrom

has failed to state a case under 42 U.S.C. § 1983. Thus, the

critical question for this court to determine is whether or

not Mrs. Hallstrom was deprived of any of her constitu-

tional rights as a result of the conduct of the Garden City

~ Defendants and/or the Ada County Defendants.

Mrs. Hallstrom’s claims against each defendant shall

be addressed in turn.

4 Consequently, the remainder of this decision addresses

only the claims raised by Plaintiff Sue Hallstrom.

App. 42

1. Claims Against the Garden City Defendants.

As previously noted, Mrs. Hallstrom was arrested in

Garden City after being stopped by a police officer for

driving with a burned-out taillight. Mrs. Hallstrom was

asked to produce her license and proof of insurance, and

she did not do so. Mrs. Hallstrom contends that her arrest

-violates her right to free speech, and that she was

arrested not for violating any law, but for saying she had

a constitutional right to drive without a license.

With respect to her action against the Garden City

Defendants, Mrs. Hallstrom challenges her arrest under

Idaho Code § 18-705,5 which prohibits willfully resisting,

delaying and/or obstructing police officers, and essen-

tially attempts to tie rights of free speech arising under

the First Amendment (as well as rights under the Fourth

and Fourteenth Amendments) with her alleged right to

drive without a license and/or to refrain from identifying

herself upon being stopped for a traffic infraction. She

contends that because she has a constitutional right to

drive without a license, she cannot be arrested for resist-

ing, delaying and/or obstructing an officer when she has

done so. This court does not agree.

The court first examines Mrs. Hallstrom’s contention

that she was improperly arrested. Idaho Code § 48-316

(formerly § 49-319) (1988 and Supp. 1990) provides the

following:

Driver’s License to be carried and exhibited on

demand. - Every licensee shall have his driver’s

license in his immediate possession at all times

> See supra note 1.

App. 43

when operating a motor vehicle and shall, upon

demand, surrender the driver’s license into the

hands of a peace officer for his inspection. How-

ever, no person charged with a violation of the

provisions of this section shall be convicted if a

driver’s license issued to the person and valid at

the time of his arrest is produced in court.

And, Idaho Code § 49-301 (1988 and Supp. 1990), pro-

vides, in pertinent part, that: “No person, except those

expressly exempted by the provisions of this chapter, shall

drive any motor vehicle upon a highway unless the per-

son has a valid driver’s license” (emphasis added). Thus,

the law in Idaho provides that those who use the high-

ways must have valid licenses. In her Complaint, Mrs.

Hallstrom contests this fact by stating:

Defendants maliciously charged Plaintiff

Sue with the crime of failure to show an opera-

tor’s license when Idaho [C]ode specifically

states that only licensed operators are required

to show licenses. Defendants made this mali-

cious charge knowing that Plaintiff was not a

licensee. Police officers cannot require that

which is impossible as the law does not require

the impossible.

Complaint, filed Dec. 22, 1987, at 12 | 42. However, such

reasoning misstates the law since it focuses only on the

first sentence of Idaho Code § 48-316 and completely

ignores the existence of Idaho Code § 49-301.

There is nothing in the record to suggest that Mrs.

Hallstrom was “expressly exempted” from carrying a

driver’s license, nor that she indicated such to Officer

Snapp at the time of the traffic stop. Rather, Mrs. Hall-

strom contends that:

App. 44

Defendant Snapp arrested Plaintiff Sue merely

because she was an annoyance to Defendant and

charged Plaintiff with a crime of not providing

identification upon demand (i.e., obstructing

and delaying), when identification other than an

operator’s license was never demanded, and

without giving Plaintiff any opportunity to pro-

vide other identification, rendering compliance

with Defendant’s charge a physical impos-

sibility there by denying Plaintiff her liberty

without due process of law, and making a false

charge (i.e., not producing identification, even if

the demand has been made, does not constitute

obstructing and delaying).

Complaint, filed Dec. 22, 1987, at 12 | 43.

At the time Officer Snapp stopped Mrs. Hallstrom on

June 19, 1987, she had no valid driver’s license or proof

of insurance with her, and demonstrated no ability to

produce such (i.e., that they had been forgotten at home,

or in another vehicle, etc.); accordingly, Mrs. Hallstrom

was committing misdemeanors in Officer Snapp’s pres-

ence in violation of Idaho Code § 49-236. In support cf

the Garden City Defendants’ motion for summary judg-

ment, Officer Snapp states:

[That he] asked Sue Hallstrom for her driver’s

license, registration and proof of insurance. Sue

Hallstrom responded, “I am not required to

have a driver’s license.” [He] explained that

Idaho law required any person operating a

motor vehicle on the highways of the State of

Idaho to have a valid operator’s license in their

possession. Sue Hallstrom responded, “That is

not according to the Constitution.”

App. 45

[He] again requested to see her driver’s license

and Sue Hallstrom refused to give [him] a

driver’s license. Sue Hallstrom also refused to

identify herself. She then started to get back in

her vehicle.

[Officer Snapp] then explained to Sue Hallstrom

that if she would not identify herself or produce

a driver’s license, she would be placed under

arrest for resisting and delaying an officer. Sue

Hallstrom then advised [Officer Snapp] that not

having a driver’s license was not an arrestable

offense.

Since she would not identify herself, [Officer

Snapp] placed Sue Hallstrom under arrest. . . .

Affidavit of Randy Snapp, filed May 26, 1988, at 2-3.

Contrary to the position taken by Mrs. Hallstrom,

“[a] police officer is permitted to arrest without a warrant

if a misdemeanor or a felony is committed in the officer’s

presence.” Higbee v. City of San Diego, 911 F.2d 377, 379

(9th Cir. 1990) (citing United States v. Watson, 423 U.S. 411,

418, 421-24 (1976)). And, as recently recognized by the

Ninth Circuit Court of Appeals, “[t]his practice has never

been successfully challenged and stands as the law of the

land.” Higbee v. City of San Diego, 911 F.2d at 379 (footnote

omitted). The Idaho Court of Appeals has recognized that

“upon request by a police officer, a driver must manually

surrender his driver’s license, I.C. § 49-319 (redesignated

as § 49-316), and provide proof of liability insurance, I.C.

§ 49-245 (redesignated as § 49-1232).” State v. Simmons,

115 Idaho 877, 879 n.1, 711 P.2d 541, 543 n.1 (Ct. App.

1989). Moreover, in discussing the purpose of drivers

licenses and the constitutionality of the statute requiring

App. 46

proof of liability insurance, the Idaho Court of Appeals

acknowledged that:

Individuals must sacrifice part of their “liberty”

in order to empower a government to regulate,

through passage and enforcement of laws neces-

sary for the general public welfare. John Locke,

the English Philosopher who wrote of govern-

ment and freedom, said: “Where there is no law,

there is no freedom.”

State v. Gibson, 108 Idaho 202, 203, 697 P.2d 1216, 1217 (Ct.

App. 1985) (citation omitted).

In opposition to defendants’ motion, Mrs. Hallstrom

boldly asserts that she would have identified herself if

given the chance, “but [she] was never asked for or

afforded the opportunity to provide any other form of

identification.” Response to Motion for Summary Judge-

ment [sic], filed March 16, 1989, at 6. Despite such conten-

tions, Mrs. Hallstrom’s conduct suggests otherwise. In

fact, Mrs. Hallstrom fails to indicate anywhere within her

voluminous briefing that during the course of the stop

she offered Officer Snapp an alternate form of identifica-

tion. On the contrary, her briefs suggest only that, as a

strong constitutionalist, Mrs. Hallstrom believes she had

a right not to carry a driver’s license and also a right to

remain silent on the issue. As her brief indicates: “The

right to free speech inherently includes the right not to

speak.” Memorandum in Support of Answer to Motion

for Summary Judgement [sic] (Obstruction), filed April 4,

1989, at 12.

Nothing in the record suggests that Mrs. Hallstrom

made any effort to cooperate with Officer Snapp or to

comply with the law. On the contrary, “[b]ecause she

ee

App. 47

would not offer any degree of cooperation, [Officer

Snapp] had no way to complete a citation or no belief that

she would appear [in court].” Affidavit of Randy Snapp,

filed May 26, 1988, at 5. Accordingly, Officer Snapp

believed his “only recourse was to place her in custody

for obstructing and delaying.” Id. at 6. It is apparent that

Officer Snapp had a reasonable basis to believe that Mrs.

Hallstrom would not appear if she were merely issued a

citation, and therefore, Mrs. Hallstrom’s arrest was

appropriate. Cf. Tanner v. Heise, 879 F.2d 572, 579 (9th Cir.

1989) (complaint alleged police officers believed defen-

dant, who drove without a drivers license, would appear in

court). Moreover, given that Mrs. Hallstrom later admit-

ted not knowing whether or not the car she was driving

was insured, the officer may have been subjected to civil

liability for negligent entrustment if the officer had per-

mitted Mrs. Hallstrom to drive from the scene of the stop

in Garden City knowing that she failed to carry a license

or proof of insurance. See, e.g., Ransom v. Garden City, 113

Idaho 202, 743 P.2d 70 (1987).

Mrs. Hallstrom’s claims against the Garden City

Defendants incorporate a challenge under the fourth

amendment as it pertains to the search of her personal

“papers and effects . . . and the vehicle [she] was using.”

Complaint, filed Dec. 22, 1987, at 11. The Fourth Amend-

ment requires that police officers have probable cause

prior to making an arrest. Beck v. Ohio, 379 U.S. 89, 91

(1964). In Michigan v. DeFillippo, 443 U.S. 31 (1979), the

Supreme Court noted that probable cause for a warrant-

less arrest arises when the facts and circumstances within

the officer’s knowledge are sufficient to warrant a pru-

dent person to believe “that the suspect has committed, is

App. 48

committing, or is about to commit an offense.” Id. at 37.

Searches incident to a lawful arrest constitute a tradi-

tional exception to the warrant requirement of the Fourth

Amendment. United States v. Robinson, 414 U.S. 218, 224

(1973).

When considering whether probable cause existed

for a warrantless search, the Supreme Court established

an objective standard based upon the beliefs of a reason-

able officer given clearly established law and the infor-

mation which he possessed. Anderson v. Creighton,-483 —

U.S. 635, 641 (1987). Although the existence of probable

cause is generally a factual question, summary judgment

is appropriate, where, as here, no reasonable jury could

find that probable cause for the arrest did not exist.

McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984).

Since Officer Snapp made a lawful custodial arrest of

Mrs. Hallstrom as the occupant of the automobile, he

could, as a contemporaneous incident of that arrest,

search the passenger compartment of that automobile |

and examine the contents of any closed containers within |

the passenger compartment. New York v. Belton, 453 U.S. |

454, 460 (1981). Moreover, the validity of a full custody |

arrest and search incident to that arrest for minor traffic |

offenses has been upheld on more than one occasion.

Gustafson v. Florida, 414 U.S. 260, 266 (1973); United States

v. Franklin, 728 F.2d 994, 997 (8th Cir. 1984).

In light of the foregoing, the court finds that Officer

Snapp could have reasonably concluded that Mrs. Hall-

strom was “wilfully resisting, delaying and/or obstruct-

ing” his attempts to discharge his duty in getting her to

relinquish her driver’s license, proof of insurance and/or

her identity. Therefore, Mrs. Hallstrom’s arrest, and the

App. 49

search incident thereto, were not improper. Indeed, to

have allowed Mrs. Hallstrom to drive from the scene

would have been an abandonment of Officer Snapp’s

duties.

The Garden City Defendants maintain further that all

of Officer Snapp’s conduct was validly within his duties,

and that Mrs. Hallstrom would have been arrested for

failing to have a driver’s license and failing to identify

herself, whether or not she was charged with violating

Section 18-705. Moreover, the Garden City Defendants

point out that their involvement ended when Mrs. Hall-

strom was left at the Ada County Jail, and that if Mrs.

Hallstrom had simply cooperated with the booking pro-

cess at the Ada County Jail, she would have been imme-

diately released. Memorandum in Support of Motion for

Summary Judgment, filed Feb. 27, 1989, at 13. Therefore,

“[hler damages, if any, were caused by her own choice

not to cooperate with standard jail procedure.” Id.

Based on the entire record, and the undisputed facts

herein, this court is unable to conclude that Mrs. Hall-

strom has met her burden as a nonmoving party under

Rule 56 of the Federal Rules of Civil Procedure. Indeed,

in response to the Garden City Defendants’ motion for

summary judgment, Mrs. Hallstrom and her husband

essentially concede that they are “victims of their own

behavior.” Response to Motion for Summary Judgement

[sic], filed March 16, 1989, at 19. This court finds that Mrs.

Hallstrom is not entitled to recover from the Garden City

Defendants pursuant to 42 U.S.C. § 1983 because her

arrest was proper and any deprivation which she suffered

was not the result of her speech but the result of her

conduct in failing to comply with the Idaho law. Therefore,

App. 50

the Garden City Defendants are entitled to summary

judgment under 42 U.S.C. § 1983.

2. Sue Hallstrom’s Claims Against the Ada

County Defendants

As the facts stated above reveal, after her arrest in

Garden City, Mrs. Hallstrom was taken to the Ada

County Jail to be booked. She refused to submit to the

booking procedure, demanding instead to be taken before

a magistrate. In Idaho, a defendant is normally booked

prior to arraignment before a magistrate. When Mrs.

Hallstrom refused to cooperate with the booking process,

she was charged by the Ada County Defendants with

resisting, delaying and obstructing in violation of Idaho

Code § 18-705 and was taken into custody.

—

With respect to her claims against the Ada County

Defendants, Mrs. Hallstrom contends that she was again

arrested for exercising her right to free speech. She fur-

ther contends that Ada County violated her right to

remain silent, her right to counsel®, her right to be taken

before a magistrate, and her right to be protected from

crue! and unusual punishment.”

Before reaching the threshold issues raised by plain-

tiff’s complaint, the court will address three tangential

© United States v. Gouveia, 467 U.S. 180 (1984) (right to coun-

sel attaches once judicial proceedings initiated).

? Notably, the Supreme Court has held that the Eighth

Amendment protects only those who have been convicted of a

crime. Ingraham v. Wright, 430 U.S. 651, 664 (1977).

es

App. 51

issues which were raised by the Ada County Defendants

and largely unrefuted by Mrs. Hallstrom.

First of all, the Ada County Defendants maintain that

Mrs. Hallstrom’s state law claims are barred because she

failed to file a tort claims notice as required by the Idaho

Tort Claims Act for claims against governmental entities.

The Ninth Circuit has held that where there are pen-

dent state law claims against governmental entities,

plaintiffs must comply with the procedural requirements

set forth by the relevant state statutes regarding tort

claims against such entities. Ortega v. O'Connor, 764 F.2d

703, 707 (9th Cir. 1985). Mrs. Hallstrom did not file a tort

claim as specified by the Idaho Tort Claims Act. Affidavit

of Thelma E. Nichols in Support of Motion for Summary

Judgment, filed March 14, 1989, at 2. Accordingly, this

court agrees that the Ada County Defendants are sum-

marily entitled to judgment with respect to all state law

claims.

Secondly, to the extent that Captain Mike Roberts is

sued in his individual capacity, the Ada County Defen-

dants maintain that he is entitled to summary judgment

based on the decision of Kentucky v. Graham, 473 U.S. 159

(1985). In Graham, the Supreme Court addressed the dis-

tinctions between actions brought against people in their

official versus personal and/or individual capacities.

“Personal capacity suits seek to impose personal liability

upon a government official for actions he takes under

color of state law.” Id. at 165. “To establish personal lia-

bility in a § 1983 action, it is enough to show that the

official, acting under color of state law, caused the depri-

vation of a federal right.” Id. at 166. When it comes to

eeeneenmaetnneeee

App. 52

raising defenses to liability, depending on the person’s

position, he may be able to assert “personal immunity

defenses, such as objectively reasonable reliance on the

existing law.” Id. at 166-67 (citations omitted). Based on

the allegations in the complaint and in light of previous

decisions entered in this district (i.e., regarding deten-

tions pending compliance with booking procedures)®,

Mrs. Hallstrom has failed to demonstrate that Captain

Roberts had no reasonable basis for relying on existing law

by detaining her until she submitted to the booking pro-

cess. Consequently, this court agrees that Captain

Roberts, as an individual, should be exempt from this suit

and summary judgment on this issue is warranted.

Thirdly, the Ada County Defendants argue that the

punitive damages allegations against Ada County should

be dismissed. Pursuant to the reasoning in City of Newport

v. Fact Concerts, Inc., 453 U.S. 247 (1981), a municipality

may not be sued for punitive damages under 42 U.S.C.

§ 1983. Accordingly, the punitive damages allegations

asserted against Ada County shall be dismissed.

The court will now turn to the crux of Mrs. Hall-

strom’s charges under 42 U.S.C. § 1983 against the Ada

County Defendants. Subsequent to Mrs. Hallstrom’s

arrest by the Garden City Defendants, the Ada County

Defendants were responsible for taking certain adminis-

trative steps, including subjecting Mrs. Hallstrom to the

standard booking procedures. Ada County was effec-

tively serving in a custodial capacity.

8 See infra at 22-23.

App. 53

Mrs. Hallstrom contends that Ada County unjustifia-

bly refused to bring her before a magistrate before book-

ing her. The Constitution requires a state to provide “ ‘a

fair and reliable determination of probable cause’ by a

judicial officer prior to the imposition of ‘any significant

pretrial restraint of liberty’ other than ‘a brief period of

detention to take the administrative steps incident to [a

warrantless] arrest.’” Ingraham v. Wright, 430 U.S. 653,

698-99 (1977) (citation omitted). The Supreme Court has

gone on to recognize that “[t]his ‘practical compromise’ is

made necessary because ‘requiring a magistrate’s review

of the factual justification prior to any arrest .. . would

constitute an intolerable handicap for legitimate law

enforcement.’” Id. at 699 (emphasis added) (citation

omitted).

In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme

Court held that the Fourth Amendment requires a judicial

determination of probable cause as a “condition for any

significant pretrial restraint of liberty.” Id. at 125. As the

Court explained, “a policeman’s on-the-scene assessment

of probable cause provides legal justification for arresting

a person suspected of crime, and for a brief period of

detention to take the administrative steps incident to

arrest.” Id. at 113. The Ninth Circuit Court of Appeals has

construed Gerstein to afford police departments flexibility

in processing different suspects and has noted that

“administrative steps incident to a particular arrest will

necessarily vary with geographical factors and with local

police and court system practices as well as with innu-

merable factual exigencies.” Kanekoa v.. City & County of

App. 54

Honolulu, 879 F.2d 607, 611 (9th Cir. 1989) (citation omit-

ted). Certainly, Mrs. Hallstrom’s refusal to submit to the

booking procedures classifies as a “factual exigency.”

Ada County attempted to take the administrative

steps necessary to book Mrs. Hallstrom so that she could

be taken before a magistrate. The length of Mrs. Hall-

strom’s detention was dictated by her own refusal to take

part in the county’s standard administrative steps. Cf.

Bernard v. City of Palo Alto, 699 F.2d 1023, 1025 (9th Cir.

1983) (detention for less than 24 hours without probable

cause hearing would violate the Constitution in a particu-

lar case if circumstances were such that administrative

steps leading to a magistrate’s determination reasonably

could have been completed in less than 24 hours)’. The

record is clear that all Ada County wanted was to have its

administrative procedures complied with. If these defen-

dants had delayed taking Mrs. Hallstrom before a magis-

trate because they wanted to interrogate her, such

certainly would not pass constitutional muster under Ger-

stein. United States v. Wilson, 838 F.2d 1081, 1085 (9th Cir.

® While this court notes that the underlying facts in this

case may cause one to pause, refusals to comply with the book-

ing processes cannot be condoned. Defendarits are certainly

entitled to a prompt appearance before a magistrate. However,

where as here, Sue Hallstrom attempted to thwart the adminis-

trative steps incident to her arrest, she cannot later declare that

constitutional deprivations occurred. Indeed, if defendants

were encouraged to dictate which administrative procedures

they would participate in and which they would not, the book-

ing process would be chaotic. And, if allowed, the delay fos-

tered by such behavior would be certain to have an unfair

impact on other defendants entitled to prompt completion of the

administrative steps incident to their arrests.

App. 55

1988). However, in this case, there is no allegation that

defendants wanted to do anything more than complete

the booking process. See, e.g., Gladden v. Roach, 864 F.2d

1196, 1198 (Sth Cir. 1989) (seeking biographical informa-

tion for booking purposes does not constitute interroga-

tion or its functional equivalent in violation of the Fifth

Amendment).

It is well settled in this district and elsewhere that

defendants may constitutionally be required to submit to

the booking process before being taken before a judicial

officer. The Ada County Defendants contend that they

had the right to submit Mrs. Hallstrom to the booking

process. Defendants cite to several decisions from this

district which hold that the booking process is constitu-

tional. This court has previously held that “incom-

municado incarceration” of a person who refuses to

comply with booking procedures constitutes neither a

violation of substantive or procedural due process under

the fourteenth amendment. Ada County Defendants’

Motion for Summary Judgment, filed March 14, 1989,

Exhibit A [Shaw v. Boise City, Civil No. 84-1088 (D.Idaho,

Order filed Sept. 12, 1985) at 2]. Moreover, it has been

recognized in this district that:

Booking procedures are necessary to the effec-

tive management and administration of a deten-

tion facility. Incarcerating a person until such

time as they comply with booking procedures is

a reasonable measure to ensure a legitimate gov-

ernment objective is achieved. It is not unrea-

sonable nor unconstitutional for jailers to

require that pretrial detainees comply with

booking procedures. Similarly, it is not unrea-

sonable for the jailers to incarcerate a person

App. 56

who might otherwise be able to post bai] subse-

quent to booking, as a means of coercing that

person into compliance with the booking pro-

cedures.

Id., Exhibit A at 2-3. See also Gibson v. Crowell, Civil No.

84-1475 (D.Idaho, Order filed Sept. 13, 1985 (J.

McNichols)). Moreover, because it cannot be said that the

actions of the Ada County Defendants were “apparently”

unlawful, the defense of qualified immunity applies.

Anderson v. Creighton, 483 U.S. 635, 640 (1987). See, e.g.,

Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immu-

nity protects “all but the plainly incompetent or those

who knowingly violate the law”).

Mrs. Hallstrom challenges the fact that she was

detained for three days before being brought before a

magistrate. Despite such contentions, however, the record

is clear that Mrs. Hallstrom controlled her own destiny

and was responsible for the very delay’? about which she

10 This court is fully aware of Idaho statutes requiring that

those detained by a police officer must be taken before a magis-

trate. Idaho Code § 49-1406 (1988) (formerly Section 49-1110)

provides:

49-1406. When person must be taken immediately

before a magistrate. - Whenever any person is halted

by a peace officer for any violation of the provisions

of this title not amounting to a misdemeanor and

demands an immediate appearance before a magis-

trate, he shall be taken without unnecessary delay

before the proper magistrate as specified in section

49-1411, Idaho Code. (emphasis added)

And, Idaho Code § 49-1407 (1988) (formerly Section 49-1111)

provides, in part:

49-1407. When peace officer has option to take person

before a magistrate. - Whenever any person is halted

App. 57

complains. She simply refused to comply with the book-

ing procedures.

Based on the foregoing, this court finds that once in

the custody of the Ada County Defendants, any depriva-

tion suffered by Mrs. Hallstrom occurred as the result of

Mrs. Hallstrom’s failure to comply with the booking pro-

cedures. Mrs. Hallstrom was told repeatedly that if she

complied with the booking procedures, she could be

taken before a magistrate and/or released on bail. It was

Mrs. Hallstrom’s refusal to submit to the booking process,

not her utterances, which resulted in the citation being

issued under Idaho Code § 18-705. Thus, this is one case

where it definitely can be said that the prisoner held the

keys to her jail cell. The Ada County Defendants are

entitled to summary judgment under 42 U.S.C. § 1983.

C. Constitutionality of Idaho Code § 18-705

As set forth previously herein, Idaho Code § 18-705

provides as follows:

by a peace officer for any misdemeanor violation of

the provisions of this title and is not required to be

taken before a magistrate, the person shall, in the

discretion of the officer, either be given a traffic cita-

tion or be taken without unnecessary delay before the

proper magistrate as specified in section 49-1411, Idaho

Code, in the following case:

(1) When the person does not furnish satisfac-

tory evidence of identity or when the officer has rea-

sonable and probable grounds to believe the person

will disregard a written promise to appear in court.

(emphasis added)

App. 58

Resisting and obstructing officers. - Every per-

son who wilfully resists, delays or obstructs any

public officer in the discharge, or attempt to

discharge, of any duty of his office or who

knowingly gives a false report to any peace

officer, when no other punishment is prescribed,

is punishable by a fine not exceeding one thou-

sand dollars ($1000), and imprisonment in the

county jail not exceeding one (1) year.

In this action, among other things, Mrs. Hallstrom

challenges the constitutionality of Idaho Code § 18-705 on

“its face” and “as applied” to her by the Garden City

Defendants and the Ada County Defendants.'! Each con-

stitutional theory will be addressed in turn.

1. Facial challenge to Section 18-705.

This action is based, in large part, upon the case of

City of Houston v. Hili, 482 U.S. 451 (1987), which was

decided just four days before Mrs. Hallstrom drove

through Garden City with a burned out taillight.

In Hill, a Houston, Texas, municipal code section was

declared unconstitutionally vague and overbroad because

it allowed the police discretion to make arrests selectively

on the basis of the content of speech. The ordinance at

issue in Hill provided the following:

'! Having concluded that Mr. Hallstrom’s claims are barred

by the statute of limitations, this analysis focuses on Mrs. Hall-

strom’s constitutional challenges to Idaho Code § 18-705.)

App. 59

Sec. 34-11. Assaulting or interfering with policemen.

(a) It shall be unlawful for any person to

assault, strike or in any manner oppose, molest,

abuse or interrupt any policeman in the execu-

tion of his duty, or any person summoned to aid

in making an arrest.

Id. at 455 (citing Code of Ordinances, City of Houston,

Texas, § 3411(a) (1984)) (emphasis added). The Houston

police arrested an average of a thousand people per year

using that ordinance. Id. at 470, n.19.

In Hill, the Supreme Court acknowledged that “[i]n a

facial challenge to the overbreadth and vagueness of a

law, a court’s first task is to determine whether the enact-

ment reaches a substantial amount of constitutionally pro-

tected conduct.” Id. at 458 (citing Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982), and

Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983)) (emphasis

added). Indeed, as it reversed a district court decision,

the Fifth Circuit Court of Appeals concluded that the

ordinance was “substantially overbroad” and found that

“[a] significant range of protected speech and expression

[was] punishable and might be deterred by the literal

wording of the statute.” Id. at 456-57 (quoting Hill v. City

of Houston, 789 F.2d 1103, 1110 (5th Cir. 1986). Affirming

that decision, the Supreme Court recognized further that

since other Texas penal statutes already covered obstruc-

tive conduct that went beyond mere words, the “enforce-

able portion of the [Houston] ordinance deals not with

core criminal conduct, but with speech. . . . [because it

exists to] prohibit[] verbal interruptions of police offi-

cers.” City of Houston v. Hill, 482 U.S. at 460-61 (emphasis

added) (footnote oniitted). And, since the language of the

App. 60

ordinance prohibited speech that “in any manner .. . in-

terrupt[ed]” an officer, the Court characterized the lan-

guage of the Houston ordinance as “sweeping.” Id. at 462.

Previously, this court found that Mrs. Hallstrom had

standing to challenge the Garden City Defendants and

Ada County Defendants under Idaho Code § 18-705.

Memorandum Opinion & Order, filed May 13, 1988, at 5.

Nevertheless, at this juncture, this court seriously ques-

tions whether Mrs. Hallstrom has standing to launch a

facial challenge against Idaho Code § 18-705. Mrs. Hall-

strom asserts that the situation presented in Hill is suffi-

ciently analogous to this situation so as to provide her

with standing. In Hill, a “gay” activist had been arrested

four times for violating the Houston ordinance; the last

arrest involved only a verbal “interference” with police

conduct. Hill sought an order permanently enjoining

enforcement of the ordinance and the Supreme Court

concluded that Hill had demonstrated a “genuine threat

of enforcement” of the ordinance against his future activ-

ities. City of Houston v. Hill, 482 U.S. at 459-60 n.7. Despite

Mrs. Hallstrom’s attempt to equate herself with Hill and

urge this court to find that she was arrested because she

was “verbally challenging police questioning,” this court

finds that Mrs. Hallstrom’s conduct went beyond verbal

challenges. Having found that Mrs. Hallstrom «vas prop-

erly arrested under Section 18-705 because of her unlaw-

ful conduct and not because of her speech, unlike Hill,

she has not elevated herself to the role of “citizen pro-

vocateur.” Id.!2 And even assuming, arguendo, that Mrs.

'2 Where, as here, the plaintiff is found to have engaged in

conduct which is clearly proscribed by Idaho Code § 18-705,

App. 61

Hallstrom does have standing, this court finds that her

facial challenge must fail.

Mr. and Mrs. Hallstrom’s Motion for Summary Judg-

ment, which was filed principally against the Ada County

Defendants, reveals that more arrests occur per year

under the Idaho statute than under the Houston ordi-

nance. Motion for Summary Judgment, filed Sept. 4, 1990,

at 5-6. Based on this fact, Mrs. Hallstrom urges this court

to find that Section 18-705 is unconstitutional on its face.

Such reasoning, however, completely discounts a critical

difference between the Houston ordinance and the Idaho

Statute: The Houston ordinance is essentially duplicated

under similar provisions contained in the Texas Penal

Code and, as applied to Mr. Hill, in the absence of a

violation of law, the ordinance could be and was being

used to arrest solely for the exercise of free speech.

Clearly, “[c]riminal statutes must be scrutinized with

particular care . . . those that make unlawful a substantial

amount of constitutionally protected conduct may be

held facially invalid even if they also have legitimate

application.” City of Houston v. Hill, 482 U.S. at 459 (cita-

tions omitted). In “scrutinizing” the language of Section

18-705, this court fully embraces the concept recognized

in Hill that: “The freedom of individuals verbally to

oppose or challenge police action without thereby risking

arrest is one of the principal characteristics by which we

Mrs. Hallstrom cannot complain of the vagueness of the law as

applied to the conduct of others. United States v. Doremus, 888

F.2d 630, 634 (9th Cir. 1989), cert. denied, __ U.S. ____, 112 L.Ed.2d

772 (1991) (citing Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494-95 (1982)).

App. 62

distinguish a free nation from a police state.” id. at

462-63. However, the Houston ordinance is further distin-

guished from Idaho Code Section 18-705, since it does not

use the term “interrupt” and, on its face, the statute does

not implicate mere “speech” or reach a “substantial”

amount of constitutionally protected conduct.

This court would expect that based on reasoning

contained in Hill, officers operating under an obstruction

of justice statute in Idaho, and throughout the nation,

would certainly comply with the following directive:

“(I]n the face of verbal challenges to police action, officers

and municipalities must respond with restraint.” City of

Houston v. Hill, 482 U.S. at 471. Indeed, a “certain amount

of expressive disorder not only is inevitable in a society

committed to individual freedom, but must itself be pro-

tected if that freedom would survive.” Id. at 472.

Yet, in ruling in this area, courts must be mindful that

facial challenges are not countenanced in the ordinary

course because “it can seldom be appropriate . . . to

exercise any such power of prior approval or veto over

the legislative process.” Younger v. Harris, 401 U.S. 37, 53

(1971). Moreover, where the courts of a state could adopt

a construction of a statute that eliminates the constitu-

tional defects, federal courts should defer. IDK. Inc. v.

Clark County, 836 F.2d 1185, 1191 (9th Cir. 1988) (citing

Time. Inc. v. Hill, 385 U.S. 374, 397 (1967); Harrison v.

NAACP, 360 U.S. 167, 176-77 (1959)).

This court notes that unlike the Houston ordinance

which had not been subjected to judicial review, the

Idaho appellate courts have had an opportunity to review

the language of Idaho Code § 18-705, and such review has

App. 63

taken place since the decision handed down in Houston v.

Hill. See, e.g., State v. Wilkerson, 114 Idaho 174, 755 P.2d

471 (Ct. App.), aff'd 115 Idaho 357, 766 P.2d 1238 (1988).

Although the circumstances presented in the Wilkerson

case differ markedly from the case at bar, it is significant

that the appellate courts of the State of Idaho did not

strike down Idaho Code § 18-705 as facially overbroad or

vague. !3

Instead, in analyzing Section 18-705, the Idaho Court

of Appeals acknowledged that “an individual cannot be

convicted of a crime for failing to obey a police officer’s

command if that command itself is violative of the United

States Constitution.” State v. Wilkerson, 114 Idaho at 178,

755 P.2d at 475 (citations omitted). The court held that

“where an individual refuses to obey an order or

obstructs an act of a public officer which is contrary to

law, be it a statute or constitution, that individual does

not violate I.C. § 18-705.” Id. at 180, 755 P.2d at 477. In

reaching this conclusion, the court interpreted the word

“duty” as used in Section 18-705 “to encompass only

those lawful and authorized acts of a public officer.” Id.

Thus, if Officer Snapp was not acting within his duty

when he demanded that Mrs. Hallstrom present a

driver’s license and proof of insurance or if such demand

could be considered violative of the state laws or the

Constitution, Mrs. Hallstrom could not have been

8 And having compared the language contained in the

Statute at issue in Hill to the Idaho statute, it seems reasonable

that Idaho courts would not strike down that statute despite the

disposition in Hill.

App. 64

charged under Section 18-705. Correspondingly, if requir-

ing an arrestee to submit to booking procedures prior to

taking them before a magistrate violated state law or the

Constitution, then Mrs. Hallstrom could not be charged

with failing to submit to the booking process under Sec-

tion 18-705. In this case, it cannot be said that Officer

Snapp and the Officers at Ada County Jail were acting

outside their duties. Therefore, Mrs. Hallstrom’s disobe-

dience of these officers violated Idaho Code § 18-705. Cf.

State v. Wilkerson, 114 Idaho at 181, 755 P.2d at 478 (Burn-

ett, J., dissenting).

Under our constitutional system, “courts are not rov-

ing commissions assigned to pass judgment on the val-

idity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U.S.

601, 610-11 (1973) (citation omitted). Absent a finding that

Idaho Code § 18-705 implicates a “substantial amount of

constitutionally protected conduct,” this court finds that

striking down Section 18-705, based on a facial vagueness

review, would be improper. Cf. Village of Hoffman Estates

v. Flipside, Hoffman Estates, Inc., 455 U.S. at 494.

Facial invalidation is “strong medicine” which

should be used “sparingly and only as a last resort.” Broad-

rick v. Oklahoma, 413 U.S. at 613. Based on the record, this

court concludes that Section 18-705 does not reach a

sufficient amount of activities protected by the Constitu-

tion to justify a dose of that medicine.'4 Accordingly,

4 Notwithstanding a finding that Mrs. Hallstrom’s “facial

challenge” fails, this court does not go so far as to hold that the

statute is completely incapable of unconstitutional application.

Therefore, this decision should not be considered to immunize

App. 65

Summary judgment in favor of defendants appears

appropriate. _-

2. “As Applied” Challenge to Idaho Code

§ 18-705.

Pursuant to the reasoning in City of Houston v. Hill,

482 U.S. 451 (1987), Mrs. Hallstrom also requests this

court to find Idaho Code § 18-705 unconstitutional as

applied to her. To successfully challenge a statute “as

applied,” Mrs. Hallstrom must demonstrate that although

the application of the statute is sometimes valid, its appli-

cation was not valid under the circumstances presented

in this case. However, as much as Mrs. Hallstrom urges

this court to conclude that the actions of the defendants

violated her right to free speech, this court is unable to do

SO.

Having previously found, as a matter of law, that

Mrs. Hallstrom’s arrests by the Garden City Defendants

and the Ada County Defendants were lawful, this court

must also conclude that Mrs. Hallstrom did not have a

constitutional right to immediate liberty. Higbee v. City of

San Diego, 911 F.2d 377, 379 (9th Cir. 1990). The Ada

County Defendants were permitted to detain her,

whether a misdemeanor arrestee or a felony arrestee, for

the usual post-arrest Procedures, including booking. Id.

Moreover, the Ninth Circuit Court of Appeals has

expressly acknowledged that “[t]o require that those

likely to continue to break the law be Processed in a

Section 18-705 from future challenges to its application. Cf. IDK,

Inc. v. Clark County, 836 F.2d 1185, 1191 (9th Cir. 1988).

App. 66

custodial manner certainly seems rational.” Id. “Indeed, it

would border on the irrational to require the release in

the field of those arrested for a public offense who

showed promise of continuing immediately to engage in

their illegal conduct.” Id. at 379-80. Given Mrs. Hall-

strom’s statement at the time of the stop by Officer Snapp

and her continuing claims that she is not required to

carry a driver’s license, the reasoning in Higbee militates a

finding that Mrs. Hallstrom’s arrest was warranted and

proper.!>

With respect to the Garden City Defendants as well

as the Ada County Defendants, Mrs. Hallstrom has failed

to establish that merely her speech, and not her conduct,

precipitated her arrest and citation under Section 18-705.

United States v. Austin, 902 F.2d 743, 744 (9th Cir. 1990).

On the contrary, her conduct in failing to present a

driver’s license and failure to present proof of insurance

15 To the extent Mrs. Hallstrom challenges the municipal

policies of Ada County and Garden City in terms of allowing

their officers to arrest and detain persons pursuant to Idaho

Code § 18-705, Mrs. Hallstrom fails to state a viable constitu-

tional claim. True, in a case challenging the validity of policies

related to arrests for misdemeanor traffic offenses, the Ninth

Circuit Court of Appeals has acknowledged that a municipality

may be found liable under Section 1983, where a plaintiff proves

that a municipal employee was not adequately trained and that

the constitutional wrong was caused by a failure to train. Tanner

v. Heise, 879 F.2d 572, 582 (9th Cir. 1989) (citation omitted).

However, based on the record, Mrs. Hallstrom has given no

basis upon which this court can conclude that there existed in

Garden City or Ada County any inadequacy of training which

amounted to ” ‘deliberate indifference’ to the rights of persons

with whom the [defendants’ employees came] into contact.” Id.

at 583 (citation omitted).

App. 67

as well as her conduct in failing to participate in the

booking procedures, prompted charges under the chal-

lenged statute. Mrs. Hallstrom can produce no authority

which stands for the proposition that, once validly

stopped, an individual has a constitutional right not to

present a driver’s license or proof of insurance when

demanded by a police officer, nor that an individual, once

arrested, has a constitutional right to refuse to comply

with the booking process incident to an arrest.

The Ada County Defendants appropriately state that

Mrs. Hallstrom has mischaracterized the rights she

attempts to assert in this lawsuit as rights of free speech

arising under the First Amendment. Indeed, Mrs. Hall-

strom has not cited any authority which suggests that the

Ada County Defendants did not have a right to book her

or that she had a constitutional right to resist being

booked. And, with respect to the delay associated with

bringing Mrs. Hallstrom before a magistrate, the Ada

County Defendants maintain that any delay was associ-

ated with Mrs. Hallstrom’s refusal to be booked. As pre-

viously shown, Mrs. Hallstrom resisted the booking

process and was issued a citation for her refusal. There-

fore, this court finds that Idaho Code § 18-705 was consti-

tutionally applied to Mrs. Hallstrom.

In summary, as much as Mrs. Hallstrom would like

this court to strike down Idaho Code § 18-705, under an

analysis similar to Houston v. Hill, based on the undis-

puted facts and the applicable law, this court finds that

such would not be appropriate.

App. 68

D. The Summary Judgment Standard

Summary judgment is appropriate only if no genuine

issues of material fact exist. Amaro v. Continental Can Co.,

724 F.2d 747, 749 (9th Cir. 1984). This court must view all

facts in the record and all inferences drawn from them in

the light most favorable to the Hallstroms. Wood v.

Ostrander, 879 F.2d 583, 586-87 (9th Cir. 1989), cert. denied,

___ U.S. __, 112 L.Ed.2d 305 (1990). In Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986), the Supreme Court

noted that summary judgment is not appropriate “if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” However, “the adverse

party ‘must set forth specific facts showing that there is a

genuine issue for trial.’” Jd. at 250. Additionally, the

court noted that “[o]nly disputes over facts that might

affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.”

Id. at 248. “Factual disputes that are irrelevant or unnec-

essary will not be counted.” Id. If the factual context

renders them implausible, a party must present more per-

suasive evidence to support the claim than would be

otherwise necessary. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

It is well settled that a party, in defending against a

motion for summary judgment, may not simply rest upon

the bare pleadings.'® As the Ninth Circuit stated in United

16 See also Fed. R. Civ. P. 56(e), which provides in part:

When a motion for summary judgment is made and

supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of

the adverse party’s pleading, but the adverse party’s

App. 69

States v. Allen, 578 F.2d 236, 237 (9th Cir. 1978): “In order

successfully to oppose a motion for summary judgment, a

party may not rely solely on conclusory allegations in the

pleadings .. . but must, instead, offer some evidence at

least outlining a factual dispute” (citations omitted). Rule

56(e) required Mrs. Hallstrom to go beyond the pleadings

and by affidavits, or by depositions, or by answers to

interrogatories or admissions on file designate specific

facts showing there is an issue for trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The mere assertion that

some facts remain disputed is insufficient to survive a

motion for summary judgment. There must be sufficient

evidence upon which a jury could reasonably find for the

plaintiff.

Based on the circumstances presented in this case,

together with the governing law, a reasonable jury could

not return a verdict in favor of the Hallstroms. Therefore,

pursuant to the standard delineated above, summary

judgment in favor of the defendants is warranted.

E. Conclusion

This court notes that plaintiffs seem to consider

themselves “constitutionalists” who are “extremely active

response, by affidavits or as otherwise provided in

this rule, must set forth specific facts showing that

there is a genuine issue for trial. If the adverse party

does not so respond, summary judgment, if appropri-

ate, shall be entered against the adverse party.

U.S.C.S. Court Rules, Federal Rules of Civil Procedure, Rule

56(e) (Law. Co-op. 1987 & Supp. 1990).

App. 70

and vocal in pointing out abuses in government.” Com-

plaint, filed Dec. 22, 1987, at 8. The Hallstroms have

expended much personal effort to establish constitutional

violations in this case. Mindful of these efforts and the

fact that plaintiffs are not formally trained in the law, this

court has made every effort to construe the pleadings

liberally and has given careful consideration to the argu-

ments of these pro se litigants. See Bretz v. Kelman, 773

F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc).

Notwithstanding such consideration, however, based

on the applicable law and the circumstances presented in

this case, this court finds that Mr. and Mrs. Hallstrom

were not deprived of any rights secured by the Constitu-

tion and laws, and therefore, they are not entitled to any

type of relief —- declaratory, monetary or otherwise. Baker

v. McCollan, 443 U.S. 137, 140 (1979). Summary judgment

in favor of the defendants is warranted, and Mr. and Mrs.

Hallstrom’s Section 1983 action must be dismissed.

Ill. ORDER

Based on the foregoing and the court being fully

advised in the premises,

IT IS HEREBY ORDERED that the Garden City

Defendants’ Motion for Summary Judgment should be,

and is hereby, GRANTED.

IT IS FURTHER ORDERED that the Ada County

Defendants’ Motion for Summary Judgment should be,

and is hereby, GRANTED.

App. 71

IT IS FURTHER ORDERED that plaintiffs’ Motion for

Summary Judgment, should be, and is hereby, DENIED,

and that this action shall be DISMISSED.

DATED this 3rd day of May, 1991.

/s/ Harold L. Ryan

HAROLD L. RYAN

UNITED STATES

DISTRICT JUDGE

App. 72

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

BILL MENDOZA, CIVIL NO.

85-1003

ORDER

(Filed

)

Plaintiff,

)

)

) Dec. 27, 1985)

)

)

)

)

)

)

V.

DON LARSON, CHUCK PALMER,

MIKE ROBERTS, PAT COWLES,

RON LATTON, LOREN

WELLMAN, and All Unknown

Others,

Defendants.

On December 23, 1985, the court heard oral argument

on Defendant Larson’s motion for reconsideration and

the Ada County defendants’ Motion for Summary Judg-

ment. For the reasons stated from the bench, and the

court being fully advised in the premises,

IT IS HEREBY ORDERED that Defendant Larson’s

motion for reconsideration should be, and is hereby,

DENIED.

IT IS FURTHER ORDERED that the Motion for Sum-

mary Judgment of Defendants Palmer, Roberts, Cowles,

Latton, and Wellman should be, and is hereby, GRANTED

in all respects. All claims against those defendants should

be, and are hereby, DISMISSED.

IT IS FURTHER ORDERED that a jury trial in this

matter on the remaining claim against Defendant Larson

App. 73

is set to commence April 2, 1986, at 9:30 a.m., in Boise,

Idaho. Said jury trial is expected to run one (1) day.

DATED this 29 day of December, 1985.

/s/ Harold L. Ryan

HAROLD L. RYAN

UNITED STATES

DISTRICT JUDGE

App. 74

APPENDIX F

R. B. Kading, Jr.

James J. Davis

Gregory W. McAleenan

EBERLE, BERLIN, KADING, TURNBOW

& GILLESPIE, CHARTERED

300 North Sixth Street

P. O. Box 1368

Boise, Idaho 83701

Telephone: (208) 344-8535

Attorneys for Defendants, E. C. Palmer,

Lt. Robert Hope, Sgt. Ian Ishiama,

Sgt. Walter Scharf, Cpl. Richard

DeLeonard, Cpl. Patrick Cowles, Paul

Carrera, Randy Folwell, Dieter Bayer,

Mike Vajda, Scott Campbell and Ada County

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

STEPHEN P. GIBSON,

—_ Civil No.

Plaintiff, 84-1475

sins ORDER

RAY CROWELL, individually and

: (Filed

as a police officer, Boise City,

Idaho, JOHN CHURCH,

individually and as Chief of

Police, Boise City, Idaho, BOISE

CITY, E. C. PALMER, individually

and as sheriff, Ada County, Idaho,

LT ROBERT HOPE, individually

and as a deputy sheriff, Ada

County, Idaho, SGT IAN

ISHIAMA, individually and as a

Sept. 13, 1985)

ee eee eee ee”

App. 75

deputy sheriff, Ada county, Idaho,

SGT WALTER SCHARF,

individually and as a deputy

sheriff, Ada County, Idaho, CPL

FIRST NAME UNKNOWN

DeLEONARD, individually and as

a deputy sheriff, Ada County,

Idaho, CPL PATRICK COWLES,

individually and as a deputy

sheriff, Ada County, Idaho, PAUL

CARRERA, individually and as a

deputy sheriff, Ada County, Idaho,

RANDY FOLWELL, individually

and as a deputy sheriff, Ada

County, Idaho, DONALD FISHER,

individually and as a deputy

sheriff, Ada County, Idaho, FIRST

NAME UNKNOWN BORAH,

individually and as a deputy

sheriff, Ada County, Idaho,

DIETER BAYER, individually and

as a deputy sheriff, Ada County,

Idaho, MIKE VAJDA, individually

and as a deputy sheriff, Ada

County, Idaho, JOHN DOE #1,

individually and as a deputy

sheriff, Ada County, Idaho, JOHN

DOE #2, individually and as a

deputy sheriff, Ada County, Idaho,

JOHN DOE #3, individually and

as a deputy sheriff, Ada County,

Idaho, JOHN DOE #4, individually

and as a deputy sheriff, Ada

County, Idaho, SCOTT CAMPBELL,

individually and as a deputy

county prosecuting attorney, Ada

County, Idaho, and ADA COUNTY,

Defendants.

Ne eee ee ee ee ae ae Ne Ne Ne Ne Ne a a a a a a a Ne a Ne a a a Ns Ne ee Ns Nes Ses Ses ee ee Ge

App. 76

The Motion to Dismiss of the Defendants, E. C. Pal-

mer, Lt. Robert Hope, Sgt. lan Ishiama, Sgt. Walter Scharf,

Cpl. Richard DeLeonard, Cpl. Patrick Cowles, Paul Car-

rera, Randy Folwell, Dieter Bayer, Mike Vajda, Scott

Campbell and Ada County, having regularly come before

the Court on September 9, 1985, the Court having

reviewed the memoranda on file and heard argument,

and good cause appearing therefor,

IT IS ORDERED AND THIS DOES HEREBY ORDER

that Defendants, E. C. Palmer, Lt. Robert Hope, Sgt. lan

Ishiama, Sgt. Walter Scharf, Cpl. Richard DeLeonard, Cpl.

Patrick Cowles, Paul Carrera, Randy Folwell, Dieter

Bayer, Mike Vajda, Scott Campbell and Ada County’s,

Motion to Dismiss is granted in all respects on the basis

that Plaintiff’s detention in the Ada County Jail resulted

from Plaintiff’s own unjustified refusal to submit to stan-

dard booking procedures and not from any unconstitu-

tional act or omission by the Defendants.

DATED this 13th day of September, 1985.

RAY McNICHOLS

RAY McNichols

U. S. District Judge

App. 77

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

PEGGY SHAW,

Plaintiff,

CIVIL NO.

v. 84-1088

BOISE CITY, et als., ADA ORDER

COUNTY, et als., DAVID M. (Filed

SMITH, CLIFFORD MORGAN,

CHARLES PALMER, WAYNE P.

WILLIS, LARRY RICHARDS,

LINDA EVANS, RICHARD

DeLEONARD, JOHN(s) DOE ONE

THROUGH TEN, JANE(s) DOE

ONE THROUGH TEN,

Defendants.

Sept. 12, 1985)

ee eee See Sea ae Sag aie ae? Senne ines Sgt Qi Wee Seal Sa ee

Defendants Ada County, Charles Palmer, Larry Rich-

ards, Linda Evans, and Richard DeLeonard, and Defen-

dants Boise City, David Smith, and Clifford Morgan have

each moved from summary judgment on all of plaintiff's

claims. The court heard oral argument on defendants’

Motions for Summary Judgment on September 4, 1985.

Having considered the arguments of counsel and the

evidentiary record before the court, the court makes the

following findings.

rr ——

App. 78

A. Claims Against Ada County and Boise City

All claims against Ada County and Boise City, except

one, should be dismissed on the grounds that the Com-

plaint fails to allege the conduct complained of was exe-

cuted pursuant to government policy or custom as

required by the United States Supreme Court’s decision

in Monell v. Department of Social Services of the City of New

York, 436 U.S. 658 (1978). The booking procedure

employed by the Ada County Sheriff’s Department is, by

the defendants’ own admission, official county policy.

Consequently, Monell does not mandate dismissal of

those claims which arise from Shaw’s failure to submit to

the booking procedures.

However, the booking procedures utilized by Ada

County and the methods used to enforce those pro-

cedures are not unconstitutional. There is no question

that the right to counsel does not arise as early as the

time of booking. See United States v. Gouveia, Us...

81 L.Ed.2d 146 (1984). Nor does “incommunicado incar-

ceration” of a person who refuses to comply with book-

ing procedures constitute a violation of either substantive

or procedural due process under the fourteenth amend-

ment. Booking procedures are necessary to the effective

management and administration of a detention facility.

Incarcerating a person until such time as they comply

with booking procedures is a reasonable measure to

ensure a legitimate government objective is achieved. It is

not unreasonable nor unconstitutional for jailers to

require that pretrial detainees comply with booking pro-

cedures. Similarly, it is not unreasonable for the jailers to

incarcerate a person who might otherwise be able to post

_ |

App. 79

bail subsequent to booking, as a means of coercing that

person into compliance with the booking procedures.

B. Section 1985 Claims

The plaintiff’s claims based upon 42 U.S.C. § 1985(2)

and (3) should be dismissed as they fail to allege racial or

otherwise class-based discriminatory intent.

C. Ada County Defendants Charles Palmer, Larry Rich-

ards, Linda Evans, and Richard DeLeonard

Plaintiff’s allegations against these Ada County

defendants fall into three basic categories. First, she

alleges confinement without just cause based upon her

failure to comply with booking procedures. Second,

plaintiff. contends she was entitled to the presence and

advice of counsel at her interview with the jail legal

representative; and third, she alleges she was denied

proper medical care during her incarceration. As noted

previously, Shaw’s confinement for failure to comply

with booking procedures does not constitute constitu-

tional deprivation, nor does the record establish that the

jail officials demonstrated a deliberate indifference to any

illness or injury the plaintiff may have suffered. Indeed, it

appears from the record that Shaw’s medical needs were

adequately provided for.

With regard to Shaw’s argument that she was entitled

to the presence and advice of counsel during an interview

with jail legal representatives, the court finds that even if

the interview could be considered a custodial interroga-

tion requiring Miranda rights (the record does not reflect

App. 80

whether these rights were given and, if so, whether they

were waived), the court finds that the plaintiff can estab-

lish no damage which resulted from any such a denial.

Consequently, this claim must also be dismissed. In addi-

tion, none of the alleged constitutional deprivations con-

stitutes the violation of clearly established rights of which

a reasonable person would have known. Hence, these

defendants’ are shielded by 2 qualified good-faith immu-

nity. Harlow v. Fitzgerald, 42° J.S. 800 (1982).

D. Boise City Defendants David Smith and Clifford

Morgan

Plaintiff makes two claims against these arresting

officers. Shaw claims she was falsely arrested because

there was no probable cause for the arrest, and second,

that the officers used excessive force during the arrest

and during her transportation to the jail. There is no

dispute of fact that the plaintiff did not have current

license plate tags, and therefore, the police had probable

cause to stop and arrest Shaw on those charges. The

constitutional claim of false arrest must be dismissed.

The affidavits submitted by the arresting officers

detailing the circumstances surrounding the stop and

arrest of Shaw are essentially uncontroverted. While

Shaw has alleged that the officers used more force than

was necessary, it appears from the record that the officers

acted reasonably in attempting to stop Shaw’s moving

vehicle and in removing her from that vehicle. Shaw’s

due process claim that excessive force was used must also

be dismissed.

App. 81

Shaw has appeared pro se throughout this case. The

Complaint and Proposed Amended Complaint are inart-

fully drafted and the court has made considerable effort

in attempting to formulate all possible constitutional

claims which might be presented based upon the factual

allegations made in either pleading. The court was unable

to formulate any such claims which might withstand the

defendants’ Motions for Summary Judgment.

Based upon the foregoing and for the reasons stated

from the bench,

IT Is THEREFORE ORDERED that Defendants Ada

County, Charles Palmer, Larry Richards, Linda Evans,

and Richard DeLeonard’s Motion for Summary Judgment

should be, and is hereby, GRANTED.

IT Is FURTHER ORDERED that Defendants Boise

City, David Smith and Clifford Morgan’s Motion for Sum-

mary Judgment should be, and is hereby, GRANTED.

IT IS FURTHER ORDERED that all claims against all

defendants should be, and are hereby, DISMISSED.

DATED this 12 day of September, 1985.

/s/ Haroid L. Ryan

HAROLD L. RYAN

UNITED STATES

DISTRICT JUDGE