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No. 99-476

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 101N

AMADO GERRY LOPEZ,

Plaintiff and Appellants,

v.
MUSSELSHELL COUNTY; MUSSELSHELL COUNTY
SHERIFF, G. PAUL SMITH, individually and in his official
capacity; MUSSELSHELL COUNTY ATTORNEY JOHN
BOHLMAN, individually and in his official capacity; and

MUSSELSHELL COUNTY SHERIFF'S DEPUTIES ORVILLE
"BUZZ" JONES; "DUTCH" VAN SYCKEL; WANDA
SPAULDING; and WOODROW "WOODY" WEITZEIL,
individually and in their official capacities,
Defendants and Respondents.

APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable John McKeon, Judge presiding.

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For Appellant:
Matthew J. Sisler; Sisler Law Firm, Missoula, Montana
For Respondents:
Steve R. Milch; Crowley, Haughey, Hanson, Toole & Dietrich,
Billings, Montana
James D. Walen; Stacey & Walen, Billings, Montana

Submitted on Briefs: December 9, 1999
Decided: April 20, 2000

Filed:

__________________________________________ Clerk Justice Karla M. Gray delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.

1. ¶2 Amado Lopez (Lopez) appeals from the Order entered by the Fourteenth Judicial District Court, Musselshell County, granting partial summary judgment to the defendants and dismissing several of his claims. We affirm. 2. ¶3 We rephrase the issues on appeal as follows: 3. ¶4 1. Did the District Court err in granting summary judgment to the defendant law enforcement agents and dismissing all 42 U.S.C. § 1983 claims against them related

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BACKGROUND

1. ¶9 In early 1995, law enforcement personnel in Musselshell County began receiving threats of bodily harm from Rodney Skurdal (Skurdal), a so-called "Freeman" who resided in a cabin south of Roundup, Montana. On February 22, 1995, FBI Special Agent Tommie Canady informed Musselshell County Sheriff G. Paul Smith that a "reliable source" told him an individual named Jacobi and others were planning to "kidnap and lynch a judge in Musselshell County." Sheriff Smith disseminated that information to his deputies, hired reserve deputies and placed law enforcement in Musselshell County on "heightened security." Sheriff Smith also increased security in the courthouse and assigned deputies to protect Judge Roy Rodeghiero and escort him to and from his residence. 2. ¶10 At approximately 4:00 p.m. on March 3, 1995, Reserve Deputy Mike Thomas observed a man in the Musselshell County Courthouse whom he believed was performing reconnaissance prior to a possible kidnaping. Deputy Thomas described the individual and what he observed to Deputy Orville Jones and stated that the individual left the courthouse, got into a white flat-bed truck with dual tires with another individual and drove south on Main Street. 3. ¶11 Deputy Jones located the flat-bed truck on Main Street and noticed it had no rear license plate. He stopped the vehicle and identified the driver as Dale Jacobi (Jacobi), who did not have a driver's license. Jacobi was arrested for no driver's license, no current registration, and no proof of liability insurance. 4. ¶12 Deputy Jones conducted a pat-down search of Jacobi and discovered a revolver. The passenger in the vehicle, Frank Ellena (Ellena), met the description of the person Deputy Thomas had observed in the courthouse. Deputy Jones discovered Ellena was in possession of a pistol and arrested both men for carrying concealed

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STANDARD OF REVIEW

1. ¶25 We review a district court's ruling on a motion for summary judgment de novo , using the same Rule 56(c), M.R.Civ.P., criteria applied by the district court. Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997 (citations omitted). Under Rule 56(c), M.R.Civ.P., summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as

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DISCUSSION

1. ¶27 1. Did the District Court err in granting summary judgment to the defendant law enforcement agents and dismissing all § 1983 claims against them related to the alleged unlawful arrest and false imprisonment of Lopez?

1. ¶The District Court concluded, on the basis of the undisputed facts, that the defendant law enforcement agents had probable cause to arrest and detain Lopez, rather than a mere suspicion of criminal activity. It expressly determined that "these trained officers had facts and circumstances sufficient to warrant a reasonable person to believe an offense or offenses were being committed. One of the offenses reasonably believed committed included conspiracy or the planning to kidnap and perhaps kill a judge." 2. ¶A peace officer may arrest a person without a warrant if probable cause exists to believe the person is committing, or has committed, an offense and existing circumstances require immediate arrest. Section 46-6-311(1), MCA. [P]robable cause is established if the facts and circumstances within an officer's personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that another person is committing or has committed an offense. A probable cause determination must be based on an assessment of all relevant circumstances, evaluated in light of the knowledge of a trained law enforcement officer. Mere suspicion on the officer's part is not enough to establish probable cause to believe a person has committed an offense.

State v. Williamson , 1998 MT 199, ¶ 21, 290 Mont. 321, ¶ 21, 965 P.2d 231, ¶ 21 (citations omitted).

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Moreover, if probable cause existed for Lopez's arrest, it is "an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution." See Schertz v. Waupaca County (7th Cir. 1989), 875 F.2d 578, 582.

1. ¶In support of their summary judgment motion, the defendant law enforcement agents submitted the following deposition testimony which they contended established the absence of genuine issues of material fact relating to probable cause to arrest Lopez. Agent Canady informed Sheriff Smith of a tip from a reliable source that someone named Jacobi and others were planning to "kidnap and lynch a judge in Musselshell County." In response, Sheriff Smith hired reserve officers, placed his department on heightened security, increased security at the courthouse and assigned deputies to escort Judge Rodeghiero to and from his home. 2. ¶Jacobi and Ellena were arrested--in possession of SKS assault rifles, ammunition, flex-cuffs, pepper spray and sophisticated radio equipment--after conducting what appeared to Deputy Thomas to be a reconnaissance of the courthouse. Shortly thereafter, telephone inquiries about the arrests began. 3. ¶Within two hours, two vehicles--containing five men--arrived and parked at opposite ends of the sheriff's office parking lot. One was backed into a parking space in what Deputy Van Syckel believed to be "preparation for a quick get-away." James, Stramer and Lopez entered the sheriff's office, requested the return of a radio seized from Jacobi and Ellena and asked why the arrests had been made. Deputy Van Syckel saw the bottom of a holster protruding from one of their jackets and a .45 semi-automatic pistol in a holster worn by another. At this point, Deputies Jones and Van Syckel arrested James, Stramer and Lopez. 4. ¶Based on this testimony, we conclude the defendant law enforcement agents established the absence of genuine issues of material fact relating to probable cause to arrest Lopez. The information within their personal knowledge and relayed by a reliable source constituted sufficient facts and circumstances to lead a reasonable person to believe an offense, such as conspiracy to kidnap or kill a judge, was being committed. See § 46-6-311(1), MCA; Williamson , at ¶ 21. 5. ¶Lopez contends, however, that Agent Canady and Sheriff Smith's testimony regarding the tip from a reliable source that a plan was afoot to "kidnap and lynch a judge in Musselshell County" was lacking in documentation. He urges this lack of documentation creates a factual issue as to whether or not the defendant law enforcement agents had knowledge of the tip. His reliance is misplaced. 6. ¶Agent Canady and Sheriff Smith's sworn testimonies are sufficient to establish the absence of an issue of fact relating to the tip. The burden then shifted to Lopez to come forward with material and substantial evidence, rather than conclusory or

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1. ¶The District Court granted partial summary judgment to Bohlman and dismissed Lopez's claims arising out of Bohlman's prosecutorial function as the Musselshell County Attorney based on prosecutorial immunity. On appeal, Lopez asserts error only as to the court's application of the doctrine of prosecutorial immunity to his claims against Bohlman in Bohlman's official--not individual--capacity. He cites to two cases for the proposition that immunities such as prosecutorial immunity are personal to the individual and, therefore, can be applied only to claims against a person in her or his individual capacity and not to official capacity claims which are, in essence, claims against the employing governmental units. 2. ¶The problem with Lopez's argument is that, as the defendants point out, he did not present it in the District Court. There, Lopez's one-paragraph response to Bohlman's contention that he was entitled to prosecutorial immunity was simply that Bohlman's "request is without merit." No legal authorities or analyses whatsoever were

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1. ¶The District Court granted Bohlman summary judgment and dismissed Lopez's claims for excessive use of force in assisting the defendant law enforcement agents in arresting Lopez. The court explained the undisputed facts are that . . . at the direction of the law enforcement officers, Bohlman guarded the three Plaintiffs on the floor of the Sheriff's Department briefly while Deputies Jones and Van Syckel went to investigate the two men waiting outside in the vehicle. In the course of guarding these Plaintiffs, [Bohlman] may have pointed [a weapon] at Plaintiffs. In light of the probable cause to arrest for commission of a conspiracy offense and with other men waiting outside, such use of force, without more, is entirely reasonable. Plaintiffs failed to present any facts to show additional actions by [Bohlman] during their arrest. As a matter of law, [Bohlman] did not use excessive force in the arrest of Plaintiffs. See Courson v. McMillian , 939 F.2d 1479, 1493 (11th Cir. 1991).

The District Court also dismissed Lopez's tort claims against Bohlman relating to Bohlman's actions in assisting the deputies based on the immunity set forth in § 46-6-402 (2)(b), MCA.

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1. ¶Lopez primarily contends that Bohlman is not entitled to prosecutorial immunity for his role in Lopez's arrest. As set forth above, however, the District Court did not grant summary judgment on these claims on the basis of prosecutorial immunity. 2. ¶Lopez also argues Bohlman was not justified in pointing a loaded firearm at his head. In this regard, he contends Bohlman was engaged in a conspiracy to deprive him of his constitutional right to due process of law, probable cause to arrest was lacking and, in any event, Bohlman's action was unreasonable. 3. ¶Claims for excessive use of force in the course of an arrest are analyzed under the Fourth Amendment's "reasonableness" standard. Graham v. Connor (1989), 490 U. S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443, 454. "[T]he 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham , 490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456 (citation omitted). 4. ¶We need not reiterate the facts set forth above which were sufficient to establish probable cause to believe that Lopez was involved in a conspiracy to kidnap or kill a judge and which set the stage for Bohlman's actions of "covering" or even pointing a weapon at Lopez. In light of those facts and the circumstances facing Bohlman, his actions were objectively reasonable. 5. ¶Moreover, a peace officer making a lawful arrest may command the aid of other persons and, in such an event, the person "is not civilly liable for any reasonable conduct in aid of the officer." Sections 46-6-402(1) and (2)(b), MCA. In this case, Deputy Jones gave Bohlman a weapon and directed him to cover the suspects while they were searched and placed in a holding cell. Bohlman's conduct in aiding the deputy at the deputy's direction was reasonable under the circumstances. Therefore, the District Court did not err in concluding that Bohlman is immune from civil liability pursuant to § 46-6-402(2)(b), MCA. 6. ¶We hold the District Court properly granted summary judgment to Bohlman and dismissed all claims related to his role in assisting law enforcement agents in arresting Lopez. 7. ¶ 4. Did the District Court err in granting partial summary judgment to the defendants on Lopez's conspiracy claims?

1. ¶The defendants moved for summary judgment on, and dismissal of, all the conspiracy claims against them. They relied on the determination by the Seventh Circuit Court of Appeals in Kunik v. Racine County (7th Cir. 1991), 946 F.2d 1574,

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1. ¶After a trial on Lopez's remaining claims, the jury returned a verdict on April 27, 1999, in the defendants' favor. The defendants filed and served a memorandum of costs and disbursements two days later and Lopez objected to the costs on May 10, 1999. The District Court subsequently awarded the defendants their costs. 2. ¶Lopez contends that the defendants defended against the claims of six plaintiffs in this case and that the case was intertwined with a related action by Trochmann. We need not address Lopez's contention, however, because the record is clear that his objections to costs were not timely filed under § 25-20-502, MCA. Accordingly, Lopez waived his right to object to the defendants' claimed costs. 3. ¶We hold the District Court did not err in awarding the defendants costs. 4. ¶Affirmed.

/S/ KARLA M. GRAY
We concur:

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

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/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

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