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Marilyn Waldron, appellant, v. Lancaster County

Deputy Sheriff James Roark, individually

and in his official capacity, appellee.

___ N.W.2d ___

Filed October 13, 2017. No. S-16-676.

1. Summary Judgment: Appeal and Error. An appellate court reviews 

the district court’s grant of summary judgment de novo, viewing the 

record in the light most favorable to the nonmoving party and drawing 

all reasonable inferences in that party’s favor.

2. Summary Judgment: Immunity. When a defendant asserts qualified 

immunity at the summary judgment stage, the plaintiff must produce 

evidence sufficient to create a genuine issue of fact regarding whether 

the defendant violated clearly established law.

3. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from 

those facts and that the moving party is entitled to judgment as a matter 

of law.

4. ____. In the summary judgment context, a fact is material only if it 

would affect the outcome of the case. If a genuine issue of material fact 

exists, summary judgment may not properly be entered.

5. Immunity. Those entitled to qualified immunity hold more than a mere 

defense to liability; they hold an entitlement not to stand trial or face the 

other burdens of litigation.

6. ____. If a case is erroneously permitted to go to trial, then qualified 

immunity is effectively lost.

7. Immunity: Public Officers and Employees. Qualified immunity 

shields federal and state officials from money damages unless a plaintiff 

pleads facts showing (1) that the official violated a statutory or constitutional right and (2) that the right was clearly established at the time of 

the challenged conduct.

8. ____: ____. In evaluating whether the right to qualified immunity 

was clearly established, the question is not whether the very action in 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/03/2017 09:13 AM CDT
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question has previously been held unlawful, but whether the contours of 

the right were sufficiently clear at the time of the challenged conduct 

that every reasonable official would have understood that the challenged 

conduct violates that right.

9. Immunity. In a qualified immunity analysis, the dispositive question is 

whether the violative nature of particular conduct is clearly established. 

This inquiry must be undertaken in light of the specific context of the 

case, not as a broad general proposition.

10. Immunity: Public Officers and Employees. The clearly established 

standard gives government officials breathing room to make reasonable 

but mistaken judgments by protecting all but the plainly incompetent or 

those who knowingly violate the law.

11. ____: ____. Even if a public official has engaged in unlawful conduct, 

the clearly established prong of the qualified immunity analysis protects 

him or her from suit so long as the official reasonably believed such 

conduct to be lawful.

12. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure. Under certain circumstances, an officer’s unannounced entry 

into a home might be unreasonable under the Fourth Amendment.

13. ____: ____: ____. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement 

that ignores countervailing law enforcement interests.

14. Police Officers and Sheriffs: Search and Seizure: Words and 

Phrases. In order to justify a no-knock entry, the police must have 

a reasonable suspicion that knocking and announcing their presence, 

under the particular circumstances, would be dangerous or futile or that 

it would inhibit the effective investigation of the crime, for example by 

allowing the destruction of evidence.

15. Police Officers and Sheriffs: Search and Seizure. Police must have a 

reasonable suspicion under the particular circumstances that one of the 

grounds for failing to knock and announce exists, and this showing is 

not high.

16. Immunity. Courts have discretion to decide which of the two prongs of 

qualified immunity analysis to tackle first.

17. Immunity: Police Officers and Sheriffs. The dispositive inquiry in 

determining whether a right is clearly established is whether it would be 

clear to a reasonable officer that his or her conduct was unlawful in the 

situation he or she confronted.

18. Police Officers and Sheriffs: Arrests: Words and Phrases. Reasonable 

force, which may be used by an officer making an arrest, is generally 

considered to be that which an ordinarily prudent and intelligent person, 

with the knowledge and in the situation of the arresting officer, would 

deem necessary under the circumstances.
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19. Police Officers and Sheriffs: Arrests. The inquiry into the reasonableness of a use of force assesses reasonableness at the moment of the use 

of force, as judged from the perspective of a reasonable officer on the 

scene, rather than with the 20/20 vision of hindsight.

20. Constitutional Law: Civil Rights: Municipal Corporations. 

Municipalities can be sued directly under 42 U.S.C. § 1983 (2012) for 

monetary, declaratory, or injunctive relief where the action alleged to be 

unconstitutional implements or executes a policy statement or custom of 

the municipality.

21. Civil Rights: Municipal Corporations: Employer and Employee: 

Liability. A municipality cannot be held liable under 42 U.S.C. § 1983 

(2012) on a respondeat superior theory.

22. Civil Rights: Public Officers and Employees. The government as an 

entity is responsible under 42 U.S.C. § 1983 (2012), when execution of 

its policy or custom, whether made by its lawmakers or by those whose 

edicts or acts may fairly be said to represent official policy, inflicts 

the injury.

23. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact 

for purposes of summary judgment.

24. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

Appeal from the District Court for Lancaster County: Robert

R. Otte, Judge. Affirmed.

Vincent M. Powers, of Vincent M. Powers and Associates, 

for appellant.

Joe Kelly, Lancaster County Attorney, David A. Derbin and 

Ryan M. Swaroff for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Per Curiam.

I. INTRODUCTION

Marilyn Waldron brought this action pursuant to 42 U.S.C. 

§ 1983 (2012), alleging a violation of her Fourth Amendment 

rights by Lancaster County Deputy Sheriff James Roark when 
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he entered Waldron’s home to serve a warrant on Waldron’s 

grandson, Steven Copple. Waldron argues that in doing so, 

Roark violated the knock-and-announce rule. Waldron also 

argues that her arrest was unreasonable and unconstitutional 

because there was no probable cause to arrest her and because 

Roark used excessive force in handcuffing her.

In Waldron v. Roark (Waldron I),1 we found that material 

issues of fact existed as to Waldron’s knock-and-announce 

and excessive force claims and remanded the cause. On 

remand, following additional argument on the issues of qualified immunity and sovereign immunity, the district court 

again granted Roark’s motion for summary judgment, on 

the basis that Roark was entitled to qualified immunity. In 

this appeal, we now analyze Waldron’s claims within the 

framework of the affirmative defense of qualified immunity. 

Because we find that Waldron did not meet the burden of 

showing that Roark violated a clearly established right in any 

of Waldron’s claims, we affirm the district court’s grant of 

qualified immunity.

II. BACKGROUND

In September 2013, Waldron filed a complaint against 

Roark, alleging that Roark violated Waldron’s civil rights 

under § 1983, resulting in her injuries. Forming the basis of 

this action are the events that happened on February 22, 2012, 

when Roark and his partner, Lancaster County Deputy Sheriff 

Amanda May, went to Waldron’s home to serve an arrest warrant on Copple. The specific allegations regarding what happened during this event are set forth in more detail in Waldron I

and are discussed further in the analysis section below.

In November 2014, Roark filed a motion for summary 

judgment. In December 2014, Waldron filed an amended complaint against Roark, in his individual and official capacities. 

The district court eventually granted the motion for summary 

judgment, finding as a matter of law that the deputies’ entry 

1 Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).
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into Waldron’s home was proper, that Waldron obstructed the 

work of the deputies, and that Roark’s use of force was objectively reasonable.

On appeal in Waldron I, we reversed the district court’s order 

and remanded the cause for further proceedings. We held that 

summary judgment on Waldron’s § 1983 Fourth Amendment 

claim was not proper because there were issues of material fact 

as to (1) whether Roark properly displayed notice of his office 

or authority when he entered Waldron’s home, (2) whether 

Roark’s entry was reasonable, and (3) whether the force Roark 

used was excessive.

Following the issuance of our opinion in Waldron I, the parties again addressed Roark’s motion for summary judgment. In 

its second order granting the motion, the district court found 

that Roark was entitled to qualified immunity and that the 

record was sufficiently developed to render a separate trial or 

evidentiary hearing unnecessary. The court specifically found 

that (1) Roark was entitled to qualified immunity on Waldron’s 

knock-and-announce claim because sufficient exigent circumstances existed from Roark’s perspective to warrant his entry 

without a proper announcement, (2) Roark was entitled to 

qualified immunity on the excessive force claim because (a) 

Roark had probable cause to arrest Waldron and (b) Waldron’s 

right to be free of excessive force was not clearly established, and (3) Roark was entitled to judgment in his favor 

as to Waldron’s claims against him in his official capacity. 

Waldron appeals.

III. ASSIGNMENTS OF ERROR

Waldron assigns, restated and consolidated, that the district 

court erred in finding that (1) Roark was entitled to qualified 

immunity on Waldron’s knock-and-announce claim, (2) Roark 

was entitled to qualified immunity on Waldron’s unlawful arrest 

claim because (a) Roark had probable cause to arrest Waldron 

and (b) Waldron’s “right to be free of the excessive force used 

by . . . Roark was not clearly established,” (3) there was no 

evidence to support Waldron’s claim that a policy or custom 
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of Lancaster County caused her damages, and (4) Roark was 

entitled to summary judgment in his official capacity.

IV. STANDARD OF REVIEW

[1,2] We review the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to 

the nonmoving party and drawing all reasonable inferences in 

that party’s favor.2 When a defendant asserts qualified immunity at the summary judgment stage, the plaintiff must produce 

evidence sufficient to create a genuine issue of fact regarding 

whether the defendant violated clearly established law.3

V. ANALYSIS

[3,4] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue 

regarding any material fact or the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law.4 In the summary judgment 

context, a fact is material only if it would affect the outcome 

of the case.5 If a genuine issue of material fact exists, summary 

judgment may not properly be entered.6

1. Qualified Immunity

[5,6] Both the U.S. Supreme Court and the Eighth Circuit 

Court of Appeals have repeatedly “‘“stressed the importance 

of resolving immunity questions at the earliest possible stage 

in litigation.”’”7 This is because those entitled to qualified 

2 Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).

3 Id.

4 Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).

5 O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731 

(2014).

6 Id.

7 O’Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir. 2007) 

(quoting Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 

(2001)). Accord Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 116 L. Ed. 

2d 589 (1991) (per curiam).
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immunity hold more than a mere defense to liability; they 

“hold ‘an entitlement not to stand trial or face the other burdens of litigation.’”8

 If a case is erroneously permitted to go to 

trial, then qualified immunity is effectively lost.9

[7-11] Qualified immunity shields federal and state officials 

from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional 

right and (2) that the right was “‘clearly established’ at the 

time of the challenged conduct.”10 In evaluating whether the 

right was “clearly established,” the question is not whether 

the very action in question has previously been held unlawful, 

but whether “‘[t]he contours of [the] right [were] sufficiently 

clear’” at the time of the challenged conduct that “every ‘reasonable official would [have understood] that [the challenged 

conduct] violates that right.’”11 A case does not need to be 

directly on point, but existing precedent must have placed the 

constitutional question beyond debate.12 The dispositive question is “whether the violative nature of particular conduct is 

clearly established.”13 This inquiry “‘“must be undertaken in 

light of the specific context of the case, not as a broad general proposition.”’”14 Put frankly, plaintiffs in a § 1983 action 

have a steep burden of showing that a right is clearly established.15 The “‘clearly established’” standard “‘gives government officials breathing room to make reasonable but mistaken 

8 Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 

2d 411 (1985)).

9 Id.

10 Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 

1149 (2011).

11 Id. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 

97 L. Ed. 2d 523 (1987)).

12 Ashcroft v. al-Kidd, supra note 10.

13 Id., 563 U.S. at 742 (emphasis supplied).

14 Mullenix v. Luna, ___ U.S. ___, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 

(2015).

15 See Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
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judgments’ by ‘protect[ing] all but the plainly incompetent or 

those who knowingly violate the law.’”16 Even if a public official has engaged in unlawful conduct, the clearly established 

prong of the qualified immunity analysis protects him or her 

from suit so long as the official reasonably believed such conduct to be lawful.17 If a reasonable official could have believed 

the conduct was lawful, the official’s conduct does not violate 

clearly established law.18

First, we address whether Roark is entitled to qualified 

immunity on Waldron’s knock-and-announce claim.

(a) Waldron’s Knock-and-Announce Claim

[12] The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures . . . .”19 Among the 

factors to be considered in assessing the reasonableness of a 

search or seizure is the “method of an officer’s entry into a 

dwelling.”20 Under certain circumstances, “an officer’s unannounced entry into a home might be unreasonable under the 

Fourth Amendment.”21 The rule that officers should knock 

and announce their purpose and be denied admittance prior 

to entering a dwelling has been codified in Neb. Rev. Stat. 

§ 29-411 (Reissue 2016).22

[13] The U.S. Supreme Court has made clear that not every 

entry must be preceded by an announcement.23 “The Fourth 

Amendment’s flexible requirement of reasonableness should 

16 City and County of San Francisco v. Sheehan, ___ U.S. ___, 135 S. Ct. 

1765, 1774, 191 L. Ed. 2d 856 (2015).

17 See Anderson v. Creighton, supra note 11.

18 Id.

19 U.S. Const. amend. IV.

20 Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 131 L. Ed. 2d 976 

(1995).

21 Id.

22 State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).

23 Wilson v. Arkansas, supra note 20.
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not be read to mandate a rigid rule of announcement that 

ignores countervailing law enforcement interests.”24 “[I]f circumstances support a reasonable suspicion of exigency when 

the officers arrive at the door, they may go straight in.”25

We view the evidence surrounding Roark’s entry into 

Waldron’s home in the light most favorable to Waldron. 

According to Waldron, she “cautiously opened the door” and 

immediately noticed that “people were pushing on it.” Waldron 

claims that she tried to, but could not, hold the door closed. 

According to Waldron, it was only “after they got in[to]” 

Waldron’s home that Roark announced that he and his partner, 

May, were deputies and that they were looking for Copple. 

Viewing the evidence in the light most favorable to Waldron, 

we assume that Roark entered Waldron’s home without knocking and announcing his purpose.

[14,15] In order to justify a “‘no-knock’” entry, the police 

must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be 

dangerous or futile or that it would inhibit the effective investigation of the crime, for example by allowing the destruction 

of evidence.26 “[The Court] require[s] only that police ‘have a 

reasonable suspicion . . . under the particular circumstances’ 

that one of these grounds for failing to knock and announce 

exists, and . . . ‘[t]his showing is not high.’”27

As we noted in Waldron I, one possible exigency in this case 

was that “Copple posed a threat to the safety of the deputies or 

the public.”28 Roark testified that as he approached Waldron’s 

home, he saw Copple inside, but that when he reached the 

24 Id., 514 U.S. at 934.

25 United States v. Banks, 540 U.S. 31, 37, 124 S. Ct. 521, 157 L. Ed. 2d 343 

(2003).

26 Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 137 L. Ed. 2d 

615 (1997).

27 Hudson v. Michigan, 547 U.S. 586, 590, 126 S. Ct. 2159, 165 L. Ed. 2d 56 

(2006).

28 Waldron I, supra note 1, 292 Neb. at 904, 874 N.W.2d at 863.
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door, he could no longer see Copple. Roark testified that 

Copple could be “a dangerous guy” and that he was “aware 

[Copple] had lots of law enforcement contacts,” including 

“prior . . . weapons offenses.”

Despite Roark’s undisputed testimony about Copple’s prior 

weapons offenses, we found in Waldron I that there was a 

material issue of fact as to whether exigent circumstances 

existed in his attempt to arrest Copple. However, whether exigent circumstances actually existed to justify Roark’s no-knock 

entry is relevant only to the first prong of the qualified immunity analysis, i.e., whether a statutory or constitutional right 

has been violated.

[16] The U.S. Supreme Court has repeatedly held that 

“courts have discretion to decide which of the two prongs 

of qualified immunity analysis to tackle first.”29 Therefore, 

in evaluating whether Roark is entitled to qualified immunity against Waldron’s knock-and-announce claim, we exercise our discretion to bypass the first prong of the qualified 

immunity analysis and instead tackle the second prong first. 

In so doing, we find that regardless of whether exigent circumstances actually existed to justify Roark’s no-knock entry 

into Waldron’s home, Roark is entitled to qualified immunity 

against Waldron’s knock-and-announce claim, because a reasonable official could have believed that Roark’s no-knock 

entry was lawful.

As noted above, Waldron bears the steep burden of proving 

that her right was so clearly established that every reasonable public official would have known that Roark’s conduct 

violated the right. She has not met this burden. Instead, 

Waldron simply argues that “[i]t has long been held . . . that 

law enforcement must ‘knock and announce’ prior to serving 

a warrant or [when] authorized to make an arrest without [a 

warrant].”30 Though it is true that the knock-and-announce 

29 Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 735 (citing Pearson v. 

Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)).

30 Brief for appellant at 20.
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rule is well established, Waldron ignores the fact that this rule 

does not apply when exigent or countervailing circumstances 

exist, and she makes no attempt to delineate the contours of 

the “exigent circumstances exception.”31

In addition, Waldron relies solely on U.S. v. Lucht32 to support her assertion that the right at issue was clearly established. 

While we cited Lucht to provide guidance as to whether exigent circumstances existed in Waldron I, as noted above, that 

was a first-prong analysis. We note that the applicability of 

Lucht is limited in addressing the second prong of the qualified immunity analysis. Unlike the case at hand, Lucht was 

not a § 1983 case; rather, the Eighth Circuit’s holding applies 

to the knock-and-announce requirement as it pertains to the 

suppression of evidence. Moreover, as the district court stated, 

“there are factual differences between the officer’s knowledge, 

assumptions, and conduct in Lucht and those of [Roark] in 

this case.”

Although we are aware that certain categories of exigent 

circumstances have emerged (for example, when knocking 

would be dangerous, futile, or might allow the destruction of 

evidence33), we find no case law that so clearly establishes that 

any law enforcement officer standing in Roark’s shoes would 

have understood that the circumstances presented were not exigent circumstances.

Even viewing the facts in the light most favorable to 

Waldron, it would not have been “‘entirely unreasonable’ for 

an officer to believe, in the particular circumstances of this 

case,” that exigent circumstances existed.34 Nor do the facts 

support a finding that Roark was “‘“plainly incompetent”’” or 

“‘“knowingly violate[d] the law.”’”35 Thus, we conclude that 

31 Waldron I, supra note 1, 292 Neb. at 897, 874 N.W.2d at 859.

32 U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994).

33 See Richards v. Wisconsin, supra note 26.

34 Messerschmidt v. Millender, 565 U.S. 535, 549, 132 S. Ct. 1235, 182 L. 

Ed. 2d 47 (2012).

35 Id., 565 U.S. at 546.
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Waldron has not met her burden to prove that her right was 

clearly established. Nor has she shown that a material issue of 

fact prevents judgment as a matter of law.36 As such, Waldron’s 

first assignment of error is without merit.

(b) Waldron’s Claims of 

Unlawful Arrest

Waldron makes two arguments as to why she believes Roark 

is not entitled to qualified immunity for Waldron’s alleged 

unlawful arrest. First, Waldron argues that Roark did not have 

probable cause to arrest her; second, Waldron argues that 

Roark used excessive force in arresting her. We address these 

arguments separately below, disposing of both arguments under 

the second prong of the qualified immunity analysis.

(i) Probable Cause

We again exercise our discretion to bypass the first prong of 

the qualified immunity analysis and instead consider the second prong first. In so doing, we find that regardless of whether 

probable cause existed to justify Waldron’s arrest, Roark is 

entitled to qualified immunity under the second prong because 

the law is not so clearly established that every reasonable official standing in Roark’s shoes would have believed that there 

was no probable cause.

Waldron argues that her arrest was unlawful because Roark 

did not have a warrant or probable cause to arrest her. On the 

other hand, Roark argues that he had probable cause to believe 

that Waldron violated or was violating Neb. Rev. Stat. § 28-901 

(Reissue 2016) (obstructing government operations). As noted 

above, the text of the Fourth Amendment protects “‘against 

unreasonable searches and seizures.’”37 Subsequent case law 

establishes that a warrantless seizure of a person is reasonable 

under the Fourth Amendment where there is probable cause to 

36 See Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014).

37 Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 

(2004).
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believe that the person has committed or is committing a criminal offense.38

Section 28-901(1) provides, in relevant part, that “[a] person 

commits the offense of obstructing government operations if 

he intentionally obstructs, impairs, or perverts the administration of law or other governmental functions by force, violence, 

physical interference or obstacle, breach of official duty, or any 

other unlawful act . . . .”

Accordingly, the crime of obstructing government operations 

has two elements. The person must have (1) “obstruct[ed], 

impair[ed], or pervert[ed] the administration of law or other 

governmental functions” and (2) intended to do so.39 On 

appeal, Waldron does not challenge the district court’s finding that “[she] was obstructing and hindering the deputies in 

the commission of their duties.” Instead, Waldron asserts that 

“she could not have intended to impede” a police investigation because she did not know that Roark and May were law 

enforcement officers.40

Rather than impeding a police investigation, Waldron claims 

her intent was to “protect [Copple] from what she thought 

were intruders.”41 Although Waldron’s actual intent may be 

relevant for purposes of determining her mens rea and whether 

she actually violated § 28-901, it is not relevant in considering 

whether Roark is entitled to qualified immunity. Instead, the 

relevant question for purposes of our second-prong analysis 

is whether the law is so clearly established that a reasonable 

officer standing in Roark’s shoes could not have believed that 

Waldron intended to impede a police investigation.42

Though Waldron attempts to establish that Roark violated 

a statutory or constitutional right, she makes no argument as 

38 Devenpeck v. Alford, supra note 37.

39 See § 28-901(1).

40 Brief for appellant at 15.

41 Id.

42 See Ashcroft v. al-Kidd, supra note 10.
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to whether the right was clearly established at the time of the 

challenged conduct. We acknowledge that “[t]hat one cannot be arrested in the absence of probable cause” is clearly 

established.43 But the U.S. Supreme Court has “repeatedly told 

courts . . . not to define clearly established law at a high level 

of generality. . . . The general proposition, for example, that an 

unreasonable search or seizure violates the Fourth Amendment 

is of little help in determining whether the violative nature of 

particular conduct is clearly established.”44 Rather, for a court 

to find that a violation of clearly established law has occurred, 

a “more particularized” inquiry is required.45

Therefore, as noted above, if a reasonable official could 

have believed the conduct under the particular circumstances 

was lawful because there was no existing precedent that had 

“placed the . . . constitutional question beyond debate,” the 

official’s conduct does not violate clearly established law.46

Here, even viewing the evidence in the light most favorable 

to Waldron, including her admission that she was obstructing 

and hindering the deputies in the commission of their duties, 

a reasonable officer could have believed Waldron’s arrest was 

lawful. We make this finding because the facts were such that 

Roark could have believed that Waldron knew he and May 

were law enforcement officers. After all, Roark was acting pursuant to an arrest warrant and Waldron admits that Roark told 

her that they were law enforcement officers looking for Copple 

after they entered her residence.

We recognize that there is a factual dispute as to whether 

Roark showed his badge to Waldron. Waldron testified that 

Roark announced he was a deputy but refused to show his 

badge. In contrast, Roark testified that upon entering Waldron’s 

home, he “verbally and physically” identified himself “with 

43 Williams v. Baird, supra note 15, 273 Neb. at 987, 735 N.W.2d at 392.

44 Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 742 (citations omitted).

45 Anderson v. Creighton, supra note 11, 483 U.S. at 640.

46 Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 741.
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[his] badge,” and May testified that when she entered the living 

room, she saw Roark “already had [his badge] out” and “was 

showing it” to Waldron. But we conclude this factual dispute is 

not material to our determination of whether Roark is entitled 

to qualified immunity under these particular circumstances. 

Waldron cites no case law, and we find no case law, clearly 

establishing that these facts support a finding that Roark should 

have known that Waldron was unaware that Roark and May 

were law enforcement officers. Thus, even if the facts were as 

Waldron claims, it would not have been entirely unreasonable 

for an officer, while in plain clothes and faced with a person 

who was impeding an arrest pursuant to a warrant, to conclude probable cause existed to arrest Waldron for obstructing 

government operations. In other words, Waldron has failed to 

prove the right was clearly established.

Because Roark is entitled to qualified immunity on 

Waldron’s claim that Roark arrested her without probable 

cause, it is not necessary for this court to address the State’s 

argument that completing a diversion program bars Waldron’s 

§ 1983 claim that Roark lacked probable cause under Heck 

v. Humphrey.

47

(ii) Excessive Force

[17] Next, we address Waldron’s claim that “[t]he right 

to be free from excessive or deadly force is a clearly established right under the Fourth Amendment’s prohibition against 

unreasonable seizures.”48 We agree with the general proposition that every citizen should be free from excessive force. 

However, the framework required by the U.S. Supreme Court 

for analyzing qualified immunity requires a more particularized inquiry. The “‘dispositive inquiry in determining whether 

a right is clearly established is whether it would be clear 

to a reasonable officer that his conduct was unlawful in 

47 Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 

(1994).

48 Brief for appellant at 13.
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the situation he confronted.’”49 Therefore, we particularize 

our inquiry to the situation that Roark confronted and we 

address, when viewing the facts in the light most favorable to 

Waldron, whether it would have been “‘entirely unreasonable’ 

for an officer to believe, in the particular circumstances of this 

case,” that his behavior was lawful.50

An arrest may be deemed unreasonable in violation of 

the Fourth Amendment if the manner in which the arrest is 

executed is unreasonable, e.g., if the police used excessive 

force.51 Here, Waldron argues that Roark used excessive force 

in effecting her arrest and that Roark is not entitled to qualified immunity.

We view the evidence regarding Roark’s use of force in 

the light most favorable to Waldron. According to Waldron, 

Roark, followed by May, went down the stairs to look for 

Copple. When Waldron began to follow the deputies down the 

stairs, she was instructed not to follow them and to instead 

“‘[s]tay in the kitchen.’” Waldron admits that she did not 

obey the deputies’ instructions and instead continued to follow 

May down the stairs. Waldron admits that when May stopped 

halfway down the stairs and put her leg across the stairwell 

to prevent Waldron from going down the stairs, Waldron 

pushed on May’s leg with her body, attempted to go over her 

leg, and somehow eventually made her way down the stairs 

before May.

Waldron testified that after she arrived downstairs, she 

saw Copple’s friend. Waldron claims that this “friend” in her 

basement was a “stranger,” and she started screaming at the 

friend to “[g]et out of my house.” There is no evidence that 

the deputies were aware Waldron did not know or recognize 

49 Hernandez v. Mesa, ___ U.S. ___, 137 S. Ct. 2003, 2007, 198 L. Ed. 2d 

625 (2017) (emphasis supplied).

50 Messerschmidt v. Millender, supra note 34, 565 U.S. at 549.

51 See, Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 85 L. Ed. 2d 1 

(1985) (“reasonableness depends on not only when a seizure is made, but 

also how it is carried out”).
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Copple’s friend; nor was there any evidence that the deputies knew that Waldron was screaming at the friend and not 

at them. In fact, Waldron testified that she thought Roark 

might have thought she was screaming at him. When asked 

what Waldron was “hollering,” Waldron indicated that she was 

“[p]robably still [hollering at the friend] to get out of [her] 

house. And probably to the — and asking — still asking Roark 

if he had a warrant.”

According to Waldron, Roark turned around to handcuff her. 

She had “no idea” if Roark told her he was going to handcuff 

her, but she claims that he did not tell her that she was under 

arrest. According to Waldron, Roark “slapped” one cuff on 

her left arm, and when Roark started to bring her right hand 

around, Waldron asked him not to do so and indicated that 

she had had surgery on her right shoulder. Waldron testified 

that when Roark tried to bring her right hand around behind 

her back, she resisted by stiffening her arm and holding it out 

away from her body, “making a right angle with [her] arm and 

[her] body.” According to Waldron, Roark then “put his knee 

in [her] back and pulled [her], and [she] fell” forward and 

broke her eyeglasses. Roark did not make any other contact 

with Waldron’s body as he handcuffed her. Once Waldron was 

on the ground, Roark was able to cuff her right hand. Waldron 

did not know if Roark ever asked her to put her hands behind 

her back.

After she was handcuffed, Roark left Waldron on the floor 

and continued the search for Copple. Waldron admits that she 

eventually got up from the floor and slipped her right hand out 

of the cuff. When Roark turned around and saw that Waldron 

was up and her hand was out of the cuff, he handcuffed her 

again. This time, Waldron tried to prevent Roark from handcuffing her by stiffening her left arm and holding it out away 

from her body. Waldron testified that Roark pulled on her left 

arm to try to get it behind her back and that Waldron fell. She 

testified, “I don’t think he pushed me down . . . I fell backwards.” When she fell backwards, Waldron hit a couch and 

“bounce[d] off” onto the floor. According to Waldron, she hurt 
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her left shoulder when she hit the floor. Waldron was then 

handcuffed a second time, and someone (Waldron was not sure 

who) took her upstairs.

[18,19] “‘Reasonable force,’” which may be used by an officer making an arrest, is generally considered to be that which 

an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would deem 

necessary under the circumstances.52 The inquiry assesses reasonableness at the moment of the use of force, as judged from 

the perspective of a reasonable officer on the scene, rather than 

with the 20/20 vision of hindsight.53 This allows for the fact 

that “‘police officers are often forced to make split-second 

judgments—in circumstances that are tense, uncertain, and 

rapidly evolving—about the amount of force that is necessary 

in a particular situation.’”54

On these facts, in Waldron I we found that there was “a 

material question of fact whether . . . the force [Roark] used 

was excessive.”55 However, this finding is relevant only to the 

first prong of the qualified immunity analysis, i.e., whether 

a statutory or constitutional right has been violated. Because 

Waldron must plead facts to support both prongs, we turn to 

the second prong, i.e., whether the right alleged to have been 

violated was clearly established.

Again, Waldron bears the steep burden of proving that this 

right was so clearly established that every reasonable officer 

would have known that Roark’s conduct under the particular 

circumstances violated the right. We again find that Waldron 

has not met this burden.

Waldron argues that her rights are clearly established under 

Copeland v. Locke,

56 wherein the Eighth Circuit found that 

52 Waldron I, supra note 1, 292 Neb. at 906, 874 N.W.2d at 864.

53 Id. 

54 Id. at 906-07, 874 N.W.2d at 864.

55 Id. at 911, 874 N.W.2d at 866.

56 Copeland v. Locke, 613 F.3d 875 (8th Cir. 2010).
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there was a material issue of fact as to whether an officer’s 

use of force on a 67-year-old man was excessive. However, 

the amount of force reasonably depends on the particular 

facts and circumstances of each independent case. The facts 

of Copeland do not directly align with those in this case, and 

they are far more egregious. In determining whether a right is 

clearly established, the question is not whether the very action 

in question has previously been held unlawful.57 Instead, the 

question is whether the contours of the right were sufficiently 

clear at the time of the challenged conduct that “every ‘reasonable officer’ would have understood that [the conduct at issue] 

violates that right.”58

We conclude that under these facts, the contours of what 

constitutes reasonable force are not clearly defined. Courts may 

consider certain factors, such as “‘“the severity of the crime 

at issue, whether the suspect poses an immediate threat to 

the safety of the officers or others, and whether he is actively 

resisting arrest or attempting to evade arrest by flight.”’”59 But 

these factors are not exhaustive.60

We think that an officer could reasonably, even if mistakenly, conclude that the amount of force Roark used was lawful 

given the circumstances. Roark was not in a calm situation in 

which he was dealing one-on-one with a cooperative Waldron. 

Rather, at the time Roark used force to arrest Waldron, Waldron 

had been screaming “get out of my house” while Roark was 

still trying to assess whether Copple’s friend was a danger and 

while Copple was still at large. Waldron had repeatedly refused 

to listen to the officers’ instructions. At the moment that Roark 

used force, Waldron was actively resisting arrest.

57 See, Hernandez v. Mesa, supra note 49; Ziglar v. Abbasi, ___ U.S. ___, 

137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017); Blazek v. City of Iowa City, 

761 F.3d 920 (8th Cir. 2014).

58 Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 741. Accord Anderson v. 

Creighton, supra note 11.

59 Waldron I, supra note 1, 292 Neb. at 907, 874 N.W.2d at 864.

60 Id.
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Waldron contends that the “manner in which [the arrest] was 

performed was objectively unreasonable given [her] age and 

size.”61 However, even considering her age and size, Waldron 

repeatedly ignored the officers’ instructions to stay in the 

kitchen, was strong enough to push her way past a deputy and 

proceed down the stairs, and was nimble enough to work her 

hands out of the handcuffs.

Even viewing the facts in the light most favorable to 

Waldron, we conclude that the boundaries of reasonable force 

that can be applied were not clearly established in this circumstance. Therefore, Roark is entitled to qualified immunity and 

to summary judgment in his favor.

Before moving to Waldron’s next assignment of error, we 

pause to recognize that our findings in this opinion are slightly 

nuanced from those in Waldron I. In Waldron I, we were evaluating whether Waldron’s constitutional and statutory rights 

were violated, and as such, our holding in Waldron I is relevant to the first prong of our qualified immunity analysis. 

Furthermore, in Waldron I, we were not faced with the issue 

of qualified immunity and therefore did not deal with the question of whether the rights alleged to have been violated were 

clearly established.

In finding that the rights here were not clearly established 

and that Roark is entitled to qualified immunity, we follow 

the law set forth in recent U.S. Supreme Court cases. The 

law has consistently broadened the parameters within which 

law enforcement officers facing § 1983 claims can operate.62

For example, in the 2017 U.S. Supreme Court case White v. 

Pauly,

63 an officer arrived late to an ongoing police action. 

61 Brief for appellant at 16.

62 See, White v. Pauly, ___ U.S. ___, 137 S. Ct. 548, 196 L. Ed. 2d 463 

(2017); City and County of San Francisco v. Sheehan, supra note 16; 

Ashcroft v. al-Kidd, supra note 10; Pearson v. Callahan, supra note 29; 

United States v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 

(1997); Anderson v. Creighton, supra note 11.

63 White v. Pauly, supra note 62.
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After witnessing shots being fired by one of several individuals, the officer shot and killed an armed individual without 

first giving a warning. In analyzing whether the officer violated a clearly established right, the Court stated:

In the last five years, this Court has issued a number 

of opinions reversing federal courts in qualified immunity cases. . . . The Court has found this necessary both 

because qualified immunity is important to “‘society as a 

whole,’” . . . and because as “‘an immunity from suit,’” 

qualified immunity “‘is effectively lost if a case is erroneously permitted to go to trial’” . . . .

Today, it is again necessary to reiterate the longstanding 

principle that “clearly established law” should not be 

defined “at a high level of generality.” . . . As this Court 

explained decades ago, the clearly established law must 

be “particularized” to the facts of the case. . . . Otherwise, 

“[p]laintiffs would be able to convert the rule of qualified 

immunity . . . into a rule of virtually unqualified liability 

simply by alleging violation of extremely abstract 

rights.” . . .

. . . .

. . . [The majority] recognized that “this case presents 

a unique set of facts and circumstances” in light of [the 

officer’s] late arrival on the scene. . . . This alone should 

have been an important indication to the majority that 

[the officer’s] conduct did not violate a “clearly established” right.64

As noted earlier, this is a § 1983 action; we are interpreting a federal statute, not a Nebraska statute; and we 

must follow U.S. Supreme Court precedent. Although we 

understand the concerns anytime a citizen is injured during an arrest, U.S. Supreme Court precedent establishes that 

qualified immunity for § 1983 purposes “‘gives government 

officials breathing room to make reasonable but mistaken 

64 Id., 137 S. Ct. at 551-52 (citations omitted).
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judgments’ by ‘protect[ing] all but the plainly incompetent 

or those who knowingly violate the law.’”65 After applying 

U.S. Supreme Court precedent to the instant circumstances, 

we conclude Roark is entitled to qualified immunity on 

the above claims.

2. Policy and Customs of

Lancaster County

We next turn to Waldron’s assignment that the district court 

erred in finding there was no evidence to support her claim 

that a policy or custom of Lancaster County caused her damages. Waldron argues that “[d]espite the County’s official 

written policies, it is reasonable to infer that Roark’s beliefs 

are premised on the County’s unofficial custom of permitting 

officers to engage in such actions . . . .”66 We disagree.

[20-23] Municipalities can be sued directly under § 1983 

for monetary, declaratory, or injunctive relief where the action 

alleged to be unconstitutional implements or executes a policy 

statement or custom of the municipality.67 However, a municipality cannot be held liable solely because it employs a tortfeasor.68 In other words, “a municipality cannot be held liable 

under § 1983 on a respondeat superior theory.”69 “Instead, 

it is when execution of a government’s policy or custom, 

whether made by its lawmakers or by those whose edicts or 

acts may fairly be said to represent official policy, inflicts 

the injury that the government as an entity is responsible 

under § 1983.”70 Conclusions based upon guess, speculation, 

65 City and County of San Francisco v. Sheehan, supra note 16, 135 S. Ct. at 

1774.

66 Brief for appellant at 25.

67 Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct. 

2018, 56 L. Ed. 2d 611 (1978).

68 Id.

69 Id., 436 U.S. at 691.

70 Id., 436 U.S. at 694.
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conjecture, or a choice of possibilities do not create material 

issues of fact for purposes of summary judgment.71

Waldron contends that the deputies’ acts of “forcing their 

way into a home without showing a badge, refusing to show 

either [a] badge or a warrant despite repeated requests, and 

then subjecting the resident to physical force despite the 

knowledge that she had an injury” amount to official policy by 

the county.72 However, the Lancaster County sheriff’s office’s 

standard operating procedures contained in the record do not 

condone any of these actions.

Waldron fails to provide any basis as to why Roark’s alleged 

acts “may fairly be said to represent official policy.”73 Rather, 

she merely speculates that it is “reasonable to infer that Roark’s 

beliefs are premised on the County’s unofficial custom.”74 As 

evidence of “Roark’s beliefs,” she relies only on his alleged 

actions during the events of February 22, 2012. We conclude 

that this evidence is not sufficient for a jury to infer that 

Roark’s actions that night were an implementation of a custom 

or an unofficial policy. Waldron’s third assignment of error is 

without merit.

3. Liability in Official Capacity

[24] Finally, Waldron assigns that the district court erred 

in finding that Roark was entitled to summary judgment in 

his official capacity. However, Waldron does not argue this 

assignment in her brief. To be considered by an appellate 

court, an alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

error.75 Though it is assigned, Waldron does not otherwise 

71 Stones v. Sears, Roebuck & Co., 251 Neb. 560, 558 N.W.2d 540 (1997).

72 Brief for appellant at 25-26.

73 Monell v. New York City Dept. of Social Services, supra note 67, 436 U.S. 

at 694.

74 Brief for appellant at 25.

75 State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
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argue this assertion. As such, we decline to consider it 

on appeal.

VI. CONCLUSION

We do not endorse the kind of officer behavior that Waldron 

claims she experienced; however, U.S. Supreme Court precedent controls our interpretation of § 1983 and our determination of qualified immunity. Based upon the framework set 

forth by the U.S. Supreme Court, Waldron has not proved that 

under these particular circumstances, the rights that she asserts 

were clearly established.

Accordingly, we conclude that the district court did not err 

in finding that Roark was entitled to qualified immunity on 

Waldron’s knock-and-announce claim, nor erred in finding 

that Roark was entitled to qualified immunity on Waldron’s 

unlawful arrest claim. Additionally, the district court did not 

err in finding that there was no evidence to support a claim 

that a policy or custom of Lancaster County caused Waldron’s 

damages. Finally, we do not address whether the district court 

erred in finding that Roark was entitled to summary judgment 

in his official capacity, because Waldron does not argue this 

assignment in her brief.

Affirmed.

Cassel, J., concurring.

I join the court’s opinion in full. It soundly applies qualified 

immunity jurisprudence1 to all of Waldron’s claims. Moreover, 

even if the court’s analysis was somehow flawed regarding probable cause for her arrest, the end result would not change. In my 

opinion, her acceptance and completion of pretrial diversion—in 

exchange for dismissal of criminal charges—bar that claim.2

1 See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 

(2009).

2 See Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 

(1994).
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Although I recognize there is a split of authority on the issue, 

I agree with those courts finding that completion of a diversion 

program in which the charge is dismissed bars a § 1983 challenge to probable cause.3

3 See, e.g., Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005); Roesch v. Otarola, 

980 F.2d 850 (2d Cir. 1992); Cabot v. Lewis, 241 F. Supp. 3d 239 (D. 

Mass. 2017) (contrasting competing rationales); Elphage v. Gautreaux, 

969 F. Supp. 2d 493 (M.D. La. 2013).

Wright, J., dissenting.

I respectfully dissent. In my opinion, no reasonable law 

enforcement officer would believe that it is lawful to forcibly 

enter a residence while in plain clothes to arrest a resident 

without providing any evidence of authority to do so.

As Marilyn Waldron answered her door one evening, a 

stranger shoved his way past her, into her home, his gun 

drawn. Another stranger soon followed. They were looking for 

her grandson. They claimed to be law enforcement officers, but 

were not in uniform. These strangers were unable or unwilling 

to produce a badge or a warrant to justify their claim to authority for their intrusion. As instructed to do by her late husband, 

a captain in the Nebraska State Patrol, Waldron demanded to 

see a badge and a warrant.

When Waldron, a 78-year-old woman whose right shoulder 

was tender from a prior surgery, did not immediately comply 

with the man’s order to put her right hand behind her back to 

be handcuffed, she was pulled to the ground, a knee stuck in 

her back. Her glasses broke, and her face was bruised. With 

her shoulder in severe pain, Waldron slipped her right hand 

out of the handcuffs. The man came at her again. As her 

arm was wrenched around by the man, the 78-year-old fell 

backward onto the couch and then to the ground, injuring her 

other shoulder.

In my opinion, any reasonable law enforcement officer 

should know that such conduct would violate Waldron’s 
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constitutional rights. I respectfully disagree with the majority’s 

conclusion that Roark is entitled to qualified immunity.1

Of particular concern to me is the majority’s conclusion that 

a reasonable officer could have concluded that there was probable cause to arrest Waldron for obstructing government operations. It is, of course, no crime to obstruct an intruder into your 

home. It is unlawful only if you know that the person you are 

obstructing is in fact a law enforcement officer.2

The majority gives two reasons for why Roark could have 

reasonably believed that Waldron knew he and May were 

police officers: (1) They were acting pursuant to an arrest warrant, and (2) “Waldron admits that Roark told her that they 

were law enforcement officers.” The first reason is irrelevant; 

the fact that Roark and May were acting pursuant to an arrest 

warrant for Copple—which they were not able or willing to 

produce when asked by Waldron—has no bearing on whether 

Waldron knew they were law enforcement officers.

The second reason the majority offers to show that Roark 

could have reasonably believed that Waldron knew he was a 

law enforcement officer is that he told her he was. But this 

verbal claim does not satisfy the requirement that an officer 

must display his authority. Citizens are not subject to criminal 

liability for obstructing an unidentified stranger in plain clothes 

that barges into their home simply because the intruder verbally claims to be the police. Any common burglar can claim 

to be a police officer. Common sense dictates that citizens not 

be put to the choice of submitting to an armed home intruder 

with no evidence of authority beyond a bald verbal claim to 

be the police and facing the prospect of arrest and criminal 

prosecution. When a law enforcement officer enters a citizen’s 

home in plain clothes, he must give some evidence of authority 

1 See, generally, Claire L. Hillan, The Not-So-Clearly Established Qualified 

Immunity Doctrine, The Nebraska Lawyer, March/April 2017, at 15 

(discussing history and details of qualified immunity doctrine).

2 Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).
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beyond his mere word in order to have probable cause to arrest 

the resident for obstructing government operations.

Because I believe that Roark is not entitled to qualified 

immunity, I respectfully dissent.

For the sake of completeness, I note that the concurring 

opinion has expressed the view that Waldron’s claim that she 

was arrested without probable cause is barred by her participation in a pretrial diversion program under Heck v. Humphrey.

3

My reading of Heck, and that of many other courts,4 is to the 

contrary. Therefore, in my view, Waldron’s participating in pretrial diversion does not bar her claim.

Miller-Lerman, J., joins in this dissent.

3 Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 129 L. Ed. 2d 

383 (1994) (holding that “a § 1983 suit” is barred when “a judgment in 

favor of the plaintiff would necessarily imply the invalidity of his [or her] 

conviction or sentence”).

4 Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir. 2009); S.E. v. Grant 

County Bd. of Educ., 544 F.3d 633 (6th Cir. 2008); McClish v. Nugent, 

483 F.3d 1231 (11th Cir. 2007) (pretrial intervention program); Magana 

v. County of San Diego, 835 F. Supp. 2d 906 (S.D. Cal. 2011); Medeiros 

v. Clark, 713 F. Supp. 2d 1043 (E.D. Cal. 2010); Butts v. City of Bowling 

Green, 374 F. Supp. 2d 532 (W.D. Ky. 2005). Cf., Uboh v. Reno, 141 F.3d 

1000 (11th Cir. 1998) (voluntary dismissal of charges by prosecutor); 

Adams v. Soyka, No. 11-CV-00399-LTB-MEH, 2011 WL 4915492 at 

*3 (D. Colo. Oct. 14, 2011) (holding “Heck bar,” see Heck, supra note 

3, inapplicable in case involving “Alford plea” and stipulated deferred 

judgment). See, also, Wallace v. Kato, 549 U.S. 384, 392-94, 127 S. Ct. 

1091, 166 L. Ed. 2d 973 (2007) (holding that “Heck bar,” see Heck, supra

note 3, which tolls the accrual of the statute of limitations for “§ 1983 

. . . claims” until “favorable termination” when applicable, does not apply 

unless there is “an extant conviction which success in that tort action 

would impugn”).