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No. 15-35404 IN THE UNITED STATES COURT OF APPEALS FOR … · Case: 15-35404, 12/28/2015, ID:...
Transcript of No. 15-35404 IN THE UNITED STATES COURT OF APPEALS FOR … · Case: 15-35404, 12/28/2015, ID:...
No. 15-35404
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERRI ROBERTS,
Plaintiff-Appellant,
v.
RANDY ELLIOT, JIM SCOTT, HAWK HAAKANSON, and the UNITED STATES OF AMERICA,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA
BRIEF FOR THE APPELLEES
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MICHAEL W. COTTER United States Attorney
MATTHEW M. COLLETTE (202) 514-4214 JEFFRICA JENKINS LEE
(202) 514-5091 Attorneys, Appellate Staff Civil Division, Room 7537 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530
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TABLE OF CONTENTS
STATEMENT OF JURISDICTION .................................................... 1
STATEMENT OF THE ISSUES ........................................................ 2
STATEMENT OF THE CASE ........................................................... 3
STATEMENT OF FACTS ................................................................. 4
A. Factual Background ....................................................... 4
1. The July 24, 2010 Arrest ............................................ 8
2. The February 19, 2011 Arrest .................................. 10
B. Proceedings Below ........................................................ 12
SUMMARY OF ARGUMENT .......................................................... 20
STANDARD OF REVIEW ............................................................... 23
ARGUMENT ................................................................................. 23
THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF ALL DEFENDANTS ............................. 23 A. The District Court Properly Ruled That The BIA Officers Are Entitled To Qualified Immunity As A Matter Of Law ...................................................... 23 1. The Officers’ Arrest of Roberts Did Not Violate Clearly Established Law ....................................... 24 2. There Is No Genuine Dispute As To Any Material Fact Concerning The Objective Legal
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Reasonableness Of The Officers’ Conduct ............. 32 B. The District Court Was Correct In Granting Summary Judgment To The United States On Roberts’ FTCA Claims Based On Her February 19, 2011 Arrest ............................................. 39 1. Roberts Cannot Sustain Her Claim Of False Arrest And Imprisonment Because She Was Arrested Pursuant To A Facially Valid Warrant .... 41 2. The District Court Correctly Dismissed Roberts’ Claim For Negligent Infliction Of Emotional Distress ............................................................... 44 CONCLUSION .............................................................................. 49 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) AND CIRCUIT RULE 32-1 CERTIFICATE OF SERVICE
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TABLE OF AUTHORITES Cases: Page Anderson v. Creighton, 483 U.S. 635 (1987) .................................. 27 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................... 32 Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) .............................................. 20, 21, 30, 34, 37, 38
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ....................................... 28
Ashcroft v. Igbal, 556 U.S. 662 (2009) ........................................... 31 Baker v. McCollan, 443 U.S. 137 (1979) ........................................ 26 Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971) ............................................ passim Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007) ........ 23 Conrad v. United States, 447 F.3d 760 (9th Cir. 2006) ............ 39, 40
Czajkowski v. Meyers, 172 P.3d 94 (2007) .................................... 46
Dolan v. USPS, 546 U.S. 481 (2006) .............................................. 39
Erdman v. Cochise Cty., 926 F.2d 877 (9th Cir. 1991) ............. 30, 35
FDIC v. Meyer, 510 U.S. 471 (1994) .............................................. 39
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........................ 24. 29, 38
Heck v. Humphrey, 512 U.S. 477 (1994) ....................................... 15
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Hope v. Pelzer, 536 U.S. 730 (2002) .............................................. 28
Hughes v. Pullman, 36 P.3d 339 (Mont. 2001) .............................. 41
In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010) ............ 33
Jones v. Williams, 297 F.3d 930 (9th Cir. 2002) ............................ 31
Kichnet v. Butte-Silverbow Cty., 274 P.3d 740 (Mont. 2012) ................................................ 40,41,42
Malley v. Briggs, 475 U.S. 335 (1986) ........................................... 25
Martinez v. Stanford, 323 F.3d 1178 (9th Cir.2003) ...................... 23
Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574 1986) ......................................................................................... 33
Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) ...................... 38
Nurre v. Whitehead, 580 F.3d 1087 (9th Cir.2009) ........................ 23
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) ............. 26
Pearson v. Callahan, 555 U.S. 223 (2009) ................................ 25,30
Pellegrino v. United States, 73 F.3d 934 (9th Cir. 1996) ................ 31
Peschel v. City of Missoula, 664 F. Supp. 2d 1149 (D. Mont. 2009) ........................................................................... 46
Sacco v. High Country Indep. Press, Inc., 896 P.2d 411 (Mont. 1995) ....................................................................... passim
Saucier v. Katz, 533 U.S. 194 (2001)....................................... 25, 31
Smith v. Almada, 640 F.3d 931 (9th Cir. 2011) ............................. 35
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Strung v. Anderson, 529 P.2d 1380 (Mont. 1975) .......................... 43
Trenouth v. United States, 764 F.2d 1305 (9th Cir. 1985) .............. 40
United States v. Lara, 541 U.S. 193 (2004) ................................... 26
United States v. Lopez, 482 F.3d 1067 (9th Cir. 2007) .................. 42
Waggy v. Spokane Cty. Washington, 594 F.3d 707 (9th Cir. 2010) ........................................................................... 23
Whiteley v. Warden, 401 U.S. 560 (1971) .......................... 20, 24, 29
Wilson v. Layne, 526 U.S. 603 (1999) ........................................... 27
Constitution: Fourth Amendment ............................................................... passim Fifth Amendment .................................................................. passim
Statutes: 25 U.S.C. § 2802(a) ........................................................................ 8 25 U.S.C. § 2802(c)(1) ..................................................................... 8 25 U.S.C. § 2803(2)(B) .............................................................. 9, 37 28 U.S.C. § 1291 ............................................................................ 2 28 U.S.C. § 1331 ............................................................................ 1 28 U.S.C. § 1346(b) ...................................................................... 37 28 U.S.C. § 1346(b)(1) .................................................................... 1 28 U.S.C. § 1983 .................................................................... 26, 27 28 U.S.C. § 2401(b) ...................................................................... 17 28 U.S.C. § 2674 .......................................................................... 37 28 U.S.C. § 2675(a) ................................................................ 11, 14 28 U.S.C. § 2679(d)(1) ............................................................ 13, 14 28 U.S.C. § 2680(h) ...................................................................... 38
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Rules: Fed. R. App. P. 4(1)(B)(i) ................................................................. 2 Fed. R. App. P. 4(1)(B)(iv) ................................................................ 2 Fed. R. Civ. P. 56(a) ................................................................ 23, 32
Ninth Circuit R. 30-1.7 ................................................................... 5
Northern Cheyenne R. Crim. P. Code § (9)(B)(3) ..................... 5-6, 36 Regulations: 25 C.F.R. §12.22 ............................................................................ 8 28 C.F.R. § 15.4 ........................................................................... 14 Miscellaneous: Restatement (Second) of Torts § 46, cmt. j at 77-78(1965) ............ 45
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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 15-35404
SHERRI ROBERTS,
Plaintiff-Appellant,
v.
RANDY ELLIOT, JIM SCOTT, HAWK HAAKANSON, and the UNITED STATES OF AMERICA,
Defendants-Appellees.
BRIEF FOR THE APPELLEES
STATEMENT OF JURISDICTION
The district court had jurisdiction pursuant to 28 U.S.C. §
1331 over plaintiff’s action under the constitutional tort theory of
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), against Bureau of Indian Affairs law
enforcement officers Randy Elliot, Jim Scott, and Hawk Haakanson
in their individual capacities. Plaintiff also sought to invoke the
jurisdiction of the district court pursuant to the Federal Tort Claims
Act (FTCA), 28 U.S.C. § 1346(b)(1), on her claims against the United
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States alleging false arrest, false imprisonment, and negligent
infliction of emotional distress. The district court’s judgment in
favor of all defendants and against plaintiff was entered on March
19, 2015. (ER 3).1 Plaintiff’s notice of appeal, filed on May 18, 2015
(ER 1), therefore appears timely. See Fed. R. App. P. 4(1)(B)(i), (iv).
The jurisdiction of this Court is proper under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the district court correctly held that Bureau of
Indian Affairs officers sued in their individual capacities are entitled
to qualified immunity on plaintiff’s Fourth and Fifth Amendment
claims because the law was not clearly established at the time of
plaintiff’s arrests that the officers’ conduct was unlawful.
2. Whether the district court correctly entered judgment in
favor of the United States on plaintiff’s FTCA claims alleging false
arrest, false imprisonment, and negligent infliction of emotional
distress because plaintiff’s arrests were made pursuant to facially
1 “ER” refers to Appellant’s Excerpts of Record.
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valid warrants issued following a court’s determination of probable
cause.
STATEMENT OF THE CASE
The dispute in this case arises out of the arrests of plaintiff
Sherri Roberts pursuant to bench warrants issued by the Northern
Cheyenne Tribal Court after Roberts failed to appear at two court-
ordered status conferences. Roberts brought a Bivens action in the
District of Montana against three Bureau of Indian Affairs law
enforcement officers – Randy Elliot, Jim Scott, and Hawk
Haakanson – in their individual capacities, alleging that the officers
violated her Fourth and Fifth Amendment rights by arresting her.
Roberts also sued the United States under the FTCA, alleging false
arrest, false imprisonment, and negligent infliction of emotional
distress. The district court consolidated the actions, and defendants
moved for summary judgment as to all claims.
The court granted defendants’ motion, holding that the
individual federal officers are entitled to qualified immunity for
plaintiff’s constitutional tort claims because “they had a reasonable
basis to believe in the validity of the warrants and in the lawfulness
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of their actions in executing the warrants.” (ER 11). The court also
held that the United States was entitled to summary judgment on
Roberts’ common law tort claims because plaintiff’s two arrests
were effected pursuant to facially valid arrest warrants issued
following the tribal court’s determination of probable cause and
therefore she could not establish the unlawfulness of her restraint.
(ER 12-13).
STATEMENT OF FACTS
A. Factual Background
At all times relevant to this action, plaintiff Sherri Roberts, a
non-Indian, was a resident of Rosebud County, Montana, and lived
on the Northern Cheyenne Indian Reservation. Compl., ECF No. 1
¶1.2 In 2009, Roberts became involved in a dispute with the
Northern Cheyenne Tribe regarding the occupancy of tribal lands on
the Reservation, which eventually led to her being charged in a
2Unless otherwise indicated, “ECF” refers to the document number of the electronic case filing as assigned by the district court in Roberts v. Elliot, No. 1:13-cv-00026 (D. Mont. Feb. 19, 2013).
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criminal complaint in the Northern Cheyenne Tribal Court with
aggravated trespass on March 24, 2010. (SER 11).3 Roberts Dep.,
Exs. 1 & 2, ECF No. 41. Roberts was served with a copy of the
complaint and summons, and she was directed to appear before
the tribal court on April 26, 2010, to answer the complaint. Roberts
Dep., Ex. 2, ECF No. 41.
Roberts appeared in tribal court for the April 26, 2010
arraignment with her retained tribal court legal advocate. Roberts
Dep. 75:19-76:1-19, ECF No. 41. (ER 40-41). The presiding judge
was made aware that Roberts was a non-Indian and therefore
advised plaintiff of her right to assert lack of personal jurisdiction of
the tribal court over her in a criminal action. (ER 92-93 ¶ 3).
Pursuant to the Northern Cheyenne Rules of Criminal Procedure,4
3“SER” denotes Appellees’ Supplemental Excerpts of Record permitted by Circuit R. 30-1.7.
4The Northern Cheyenne Rules of Criminal Procedure Code
provide in pertinent part (1998 Law and Order Code of the Northern Cheyenne Tribe): continued on next page
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the tribal court judge also advised Roberts that she could elect to
waive the lack of personal jurisdiction, and the action would
proceed against her as if she were an Indian. (ER 93 ¶ 3). The judge
further advised plaintiff that if she elected not to waive the lack of
personal jurisdiction, the tribal prosecutor could decide to convert
the matter to a civil action to exclude her from the Reservation. Id.
However, Roberts does not recall any discussion at the April 26,
Rule 9: Arraignment . . . .
B. Procedure at Arraignment . . . . 3. If the defendant is a non-Indian, the Court shall explain his right to assert a lack of personal jurisdiction of the Court over the defendant in a criminal action. If the defendant affirmatively elects to waive personal jurisdiction, the action shall pro- ceed as if the defendant were an Indian. If the non-Indian defendant does not affirma- tively waive the lack of personal jurisdiction, the action shall become a civil action to ex- clude the defendant from the Reservation. . . .The defendant may assert or waive lack
of jurisdiction at any time prior to the start of trial.
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2010 arraignment about waiver of personal jurisdiction or
exclusion. Roberts Dep. 78:17-25; 80:2-19; 82:2-25, ECF No. 41.
Roberts entered a plea of not guilty and requested a jury trial.
Roberts Dep. 75:10-76:19, ECF No. 41 (ER 41-42). After Roberts
entered her plea, the tribal court judge made notations on the
bottom of the complaint and warrant indicating that Roberts had
waived the court’s lack of personal jurisdiction. (ER 80) (“Defendant
[Roberts] waived personal jurisdiction, works here, did not want to
be excluded. [signed] Judge Brady.”); (SER 11) (“4/26/10,
Defendant [Roberts] waived right to jurisdiction, works here.
[signed] Judge Brady.”).
Roberts was issued a pretrial notice to appear on May 4, 2010,
which she acknowledged by signing the notice. The notice warned
that “IF YOU FAIL TO APPEAR A BENCH WARRANT MY BE ISSUED
FOR YOUR ARREST AND/OR YOUR BOND MONEY MAY BE
FORFEITED.” (ER 81). Roberts was released on her own
recognizance in lieu of a $150 bond. (SER 11).
Roberts and her tribal court legal advocate attended the May
4, 2010 pretrial conference, after which a status conference was set
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for July 20, 2010. (SER 13). The pretrial conference memorandum
and order again cautioned that “[a] failure of the defendant or
defendant’s legal advocate to appear at status conference shall
result in defendant being declared a fugitive and a bench warrant
for the arrest of defendant being set.” Id.
1. The July 24, 2010 Arrest
When Roberts failed to appear at the July 20, 2010 status
conference, a bench warrant was issued for her arrest. (ER 43); see
Roberts Dep. 89:24-90:14, ECF No. 41. The warrant commanded
“ANY OFFICER OF THE NORTHERN CHEYENNE POLICE
DEPARTMENT” to arrest Roberts and bring her before the tribal
court to answer for failure to appear at the status conference
following “DULY BEING SERVED WITH NOTICE.” (ER 83).
Because there are no tribal police officers on the Northern
Cheyenne Reservation, law enforcement is provided by the Bureau
of Indian Affairs (BIA), an agency of the United States Department
of the Interior. Elliot Decl. ¶ 2, ECF No. 36. See 25 U.S.C. §§
2802(a), (c)(1); 25 C.F.R. § 12.22. Specifically, BIA law enforcement
officers may “execute or serve warrants, summonses, or other
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orders relating to a crime committed in Indian country and issued
under the laws of . . . an Indian tribe if authorized by the Indian
tribe.” 25 U.S.C. § 2803(2)(B).
BIA law enforcement officer Hawk Haakanson, acting
pursuant to his duty to execute and serve warrants issued by the
Northern Cheyenne Tribal Court, arrested Roberts on July 24,
2010. (ER 84). The arrest occurred at approximately 1:03 p.m. at a
park in Lame Deer, Montana. Id.; see also Roberts Dep. 91:11-18,
ECF No. 41 (ER 43). Roberts was then transported to the BIA
detention center in Lame Deer. Roberts Dep. 94:4-11, ECF No. 41
(ER 48). Officer Haakanson was “polite but firm” in executing the
arrest warrant. Roberts Dep. 97:3, ECF No. 41 (ER 48). After taking
Roberts to the detention center and determining that she was
eligible for bail, Officer Haakanson had no further involvement in
her detention. Roberts Dep. 96:10-13, ECF No. 41. (SER 2).
BIA law enforcement Officer Jim Scott was present at the
detention center when Roberts was brought in by Officer
Haakanson. Roberts Dep. 99:10-100:10, ECF No. 41. (ER 50-51).
However, Officer Scott had no involvement or participation in
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Roberts’ arrest or detention. Roberts Dep. 99:17-100:10, ECF No.
41. (ER 50-51).
Roberts posted a $250 bond and was released from custody at
2:30 p.m. (ER 85). Upon her release, Roberts was ordered to return
to tribal court on July 26, 2010. Id.
Roberts appeared in tribal court on July 26, without her legal
advocate. Roberts Dep. 108:24-109:13, ECF No. 41. She did not
object to the tribal court’s jurisdiction at that time. Roberts Dep.
109:20-110:2, ECF No. 41. (SER 3-4). Roberts does not recall
whether she was advised that her next appearance date was set for
October 19, 2010. Roberts Dep. 110:12-22, ECF No. 41. (SER 4).
She asked that the court send her duplicate copies of all documents
sent to her legal advocate. (ER 91).
2. The February 19, 2011 Arrest
Roberts did not appear at the status conference hearing on
October 19, 2010, and another bench warrant was issued for her
arrest. (ER 87). BIA law enforcement Officer Randy Elliot arrested
Roberts pursuant to the warrant at her home at 10:34 a.m., on
February 19, 2011. (ER 88); see also Roberts Dep. 117:22-118:7,
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ECF No. 41. Officer Elliot told Roberts that he was trying to make
the experience as painless as possible, but that he was going to
have to arrest her. Roberts Dep. 123:14-24, ECF No. 41. (SER 6).
Pursuant to Roberts’ request, Elliot transported Roberts to the
detention facility without handcuffs. Roberts Dep. 120:2-5, ECF No.
41. (SER 5). Upon arriving at the detention center, Officer Elliot
handcuffed Roberts with her hands in front of her body, and walked
her into the facility. Roberts Dep. 120:18-25, ECF No. 41 (SER 5).
Roberts was released from custody approximately one-half hour
later, at 11:10 a.m., after posting a $500 bond. (SER 15).
On April 19, 2011, a sentencing order was entered against
Roberts on the underlying charge of aggravated trespass (ER 89),
and her $750 bond was forfeited for failure to appear at a status
conference on the same date. (SER 16). She was also ordered to pay
$25 in court fees. (ER 89).
Roberts does not recall at any time during any of her court
appearances that she or her legal representative challenged the
tribal court’s jurisdiction over her. Roberts Dep. 161:12-20, ECF
No. 41.
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B. Proceedings Below
1. Roberts submitted an administrative claim under the FTCA
(see 28 U.S.C. § 2675(a)) to the Department of the Interior on
February 17, 2013, asserting “a claim of false arrest, false
imprisonment, and involvement in a malicious prosecution” for
“actions of BIA law enforcement officers taken in the scope of their
employment.” Sholar Decl., Ex. 1, ECF No. 18-1 at 3. She alleged
that she suffered “heart pain,” sleeplessness, fear, severe emotional
distress and damage to reputation, as a result of her false arrest.
Sholar Decl., Ex. 1, ECF No. 18-1 at 1. Roberts further alleged that
she forfeited “illegal Tribal bond payments” totaling $750, and that
she was unable to secure employment as a teacher “due to arrest
information in job applications.” Id. She sought $50,750 in personal
injury damages. Id.
Two days later, on February 19, 2013, Roberts filed a
complaint in the United States District Court for the District of
Montana, naming BIA Officers Elliot, Scott, and Haakanson as
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defendants in their individual capacities under a Bivens
constitutional tort theory,5 based on the same set of facts alleged in
her administrative claim. Count one of the complaint alleged that
the officers violated her rights under the Fourth and Fifth
Amendments when they arrested Roberts pursuant to the tribal
warrants because “it was well settled law that non-Indians are not
subject to the general criminal jurisdiction of the Northern
Cheyenne Tribe, before whom Defendants brought Plaintiff.” Compl.
¶ 21, ECF No. 1. The complaint also asserted claims for false arrest
(count two), false imprisonment (count three), and punitive
damages (count four). Id. at ¶¶ 24-36. The complaint further alleged
that as a direct and proximate result of the officers’ actions, Roberts
suffered serious emotional distress, heart pain, sleeplessness,
stress, fear and injury to dignity and reputation, humiliation and
public ridicule, forfeited illegal bond costs, and harm to her ability
to obtain employment. Id. at ¶¶ 23, 28, 33.
5 The complaint also named Jane Does 1-2 and John Does 1-2 as defendants. Compl., ECF No. 1.
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2. On August 7, 2013, the United States Attorney for the
District of Montana (as the Attorney’s General designee, 28 C.F.R. §
15.4) certified that Officers Elliot, Scott, and Haakanson were
employees of the United States acting within the scope of their
employment at the time of the events alleged in counts two and
three of the complaint. ECF No. 13; see 28 U.S.C. § 2679(d)(1).
Accordingly, the United States filed a notice that plaintiff’s causes of
action as to those counts should be deemed claims against the
government pursuant to 28 U.S.C. § 2679(d)(1) (commonly known
as the “Westfall Act”), and the United States should be substituted
as the party defendant as to those claims. ECF No. 14.
The United States also filed a motion to dismiss counts two
and three of the complaint for lack of subject matter jurisdiction, on
grounds that plaintiff failed to properly exhaust her administrative
remedies because she commenced her lawsuit before six months
had elapsed without final disposition of her claim by the
Department of the Interior. Br. in Supp. of Defs’ Mot. to Dismiss,
ECF No. 17; see 28 U.S.C. § 2675(a). The district court granted the
government’s motion, and dismissed counts two and three of the
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complaint in an order issued on October 15, 2013. Order, ECF No.
23.
3. Following dismissal of counts two and three of her original
complaint, plaintiff filed a new complaint against the United States
under the FTCA on February 18, 2014, asserting claims of false
arrest (count one), false imprisonment (count two), and negligent
infliction of emotional distress (count three). See Compl., Roberts v.
United States, No. 1:14-cv-00016 (D. Mont. Feb. 18, 2014), ECF No.
1. The Bivens action against the officers and the FTCA suit against
the United States were later consolidated by the district court for
decision. Order, ECF No. 31 (In re Roberts Litigation).
4. The individual defendants moved for summary judgment
arguing, inter alia,6 that plaintiff’s constitutional tort claims against
6 Officer Scott also argued that plaintiff’s claims against him were barred because plaintiff did not allege that he personally participated in her arrest or detention. Defs’ Br. in Support Mot. Summ. J. 21-22, ECF No. 33. In addition, the officers argued that plaintiff’s claims against them were barred because the underlying sentence ordered by the tribal court had not been set aside. Id. at 22-23, citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) continued on next page
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them in their individual capacities were barred by absolute or
qualified immunity because the arrests were made pursuant to
facially valid warrants issued by the tribal court. Defs’ Mot. for
Summ. J, ECF No. 32; Defs’ Br. in Supp. Mot. Summ. J. 7-17, ECF
No. 33. Similarly, the United States argued that because plaintiff
was arrested based on the execution of facially valid warrants, the
government was entitled summary judgment on plaintiff’s common
law tort claims of false arrest and imprisonment because she could
not establish, under Montana law, that her detention was unlawful.
Defs’ Br. in Supp. Mot. Summ. J. 26-29, ECF No. 33. The
government further argued that plaintiff could not establish a claim
of negligent infliction of emotional distress because her allegations
of injury did not satisfy the high standard of proof under Montana
law that the distress inflicted is so severe that no reasonable person
could be expected to endure it. Id. at 29-32.
(holding that in order to recover damages for an allegedly unconstitutional imprisonment, plaintiff must prove that the sentence has been invalidated). The district court did not address these arguments in its decision.
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5. The district court granted summary judgment in favor of all
defendants. (ER 4-14). Specifically, with respect to the Bivens
action, the court held that the officers are entitled to qualified
immunity because “[e]xisting law is not sufficiently clear to warrant
th[e] conclusion” that “a reasonable officer would have known that
the tribal court was wholly without jurisdiction and that he was
engaging in a null and void act.” Id. at 11. Thus, the court
reasoned, the officers are entitled to qualified immunity because
“[they] were presented with facially valid warrants, they were
charged with the responsibility to execute the warrants, and they
had a reasonable basis to believe in the validity of the warrants and
in the lawfulness of their actions in executing the warrants.” Id.
Turning to the FTCA claims against the United States, the
district court first noted that plaintiff conceded (correctly) that any
claims based on her July 24, 2010 arrest were barred by the statute
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of limitations, 28 U.S.C. § 2401(b). (ER 12).7 The court then ruled
that “[t]he United States likewise is entitled to summary judgment
on Roberts’ FTCA claims based on the arrest of February 19, 2011.”
Id. The court found that plaintiff could not establish a claim of false
arrest and imprisonment under Montana law because she could not
show the unlawfulness of her restraint. The court explained that
probable cause for an arrest is a complete defense to claims of false
arrest and false imprisonment under Montana law; “[t]herefore, an
arrest made under a warrant issued following a court’s
determination of probable cause is a complete defense to a false
imprisonment claim.” Id. at 2-13. And because plaintiff’s arrest on
February 19, 2011, followed the tribal court’s determination of
probable cause to arrest Roberts for failure to appear before the
court as ordered, Officer Elliot “had a reasonable belief in the
7Roberts makes the same concession in her brief on appeal in this Court. See Appellant’s Br. 23 n.4 (“Roberts’ claim involving her arrest and her incarceration on February 17, 2011 is the only claim that applies under the FTCA.”).
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validity of the warrant, and in the lawfulness of his actions in
executing the order.” (ER 13).
The district court also concluded that plaintiff could not
establish a claim of negligent infliction of emotional distress under
Montana law. The court explained that in order to establish such a
claim under Montana law, a plaintiff must prove she suffered
‘“serious or severe emotional distress’ as a ‘reasonably foreseeable
consequence of the defendant’s negligent or intentional act or
omission.’” (ER 13) (quoting Sacco v. High Country Indep. Press, Inc.,
896 P.2d 411, 418 (Mont. 1995)). Officer Elliot’s action in executing
the tribal court’s warrant was not a negligent or wrongful act or
omission, the court opined; rather, the officer “executed a facially
valid warrant consistent with his duty as a law enforcement officer.”
(ER 13).
The district court therefore granted summary judgment in
favor of all defendants (ER 3), and dismissed plaintiff’s claims in the
consolidated actions with prejudice. (ER 14). Roberts now appeals.
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SUMMARY OF ARGUMENT
A. It has been long established as a matter of federal
constitutional law that a law enforcement officer commanded to
execute an arrest warrant is entitled to assume the validity of the
warrant. See Whiteley v. Warden, 401 U.S. 560, 568 (1971); accord
Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985). The
district court was therefore correct in ruling on summary judgment
that the individual defendants are entitled to qualified immunity on
Roberts’ claims that her Fourth and Fifth Amendment rights were
violated when the BIA officers arrested her pursuant to bench
warrants issued by the Northern Cheyenne Tribal Court for failure
to appear at two court-ordered status conferences related to an
underlying criminal complaint.
There is no merit to Roberts’ suggestion that because the
officers knew or should have known that tribal courts have no
general criminal jurisdiction over non-Indian persons, and because
the officers allegedly knew that she was a non-Indian, they should
have refused to execute the warrants. Under its criminal procedure
code, the Northern Cheyenne Tribal Court may exercise jurisdiction
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over non-Indians by consent, and BIA law enforcement officers on
the Reservation are entitled to rely upon the facial validity warrants
issued by the tribal court. Thus, the district court correctly
concluded that the law was not sufficiently clear to place a
reasonable officer on notice that the tribal court acted in complete
absence of jurisdiction in issuing the warrants, and that in carrying
out the tribal court’s command to serve the warrants, reasonable
officers would have known they were engaging in an
unconstitutional act.
Further, contrary to Roberts’ arguments, there is no genuine
issue of material fact in dispute that precluded the district court’s
grant of summary judgment in favor of the officers. The bench
warrants were facially valid; and, the officers had no constitutional
obligation to take issue with the considered judgment of the judicial
officers who issued them. See Arnsberg, 757 F.2d at 981. Thus, it is
not material whether Roberts in fact consented to the jurisdiction of
the tribal court, or that the district court misstated the date the
second bench warrant was issued, or whether Officer Elliot was
aware of Roberts’ status as a non-Indian. Simply stated, the district
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court correctly held that the officers are entitled to qualified
immunity in these circumstances.
B. The district court was similarly correct in granting
summary judgment in favor of the United States on Roberts’
common law tort claims. As the district court found, Roberts cannot
sustain a claim of false arrest and imprisonment under Montana
law because she was arrested and detained pursuant to a facially
valid bench warrant. See Kichnet v. Butte-Silverbow Cnty., 274 P.3d
740 (Mont. 2012).
Further, Roberts’ generalized claim the she suffered emotional
distress because “[b]eing arrested was extremely traumatic” falls far
short of satisfying the Montana Supreme Court’s stringent test for
proving negligent infliction of emotional distress. See Sacco, 896
P.2d at 418.
* * * * * * *
For all of the foregoing reasons, the district court’s judgment
should be affirmed.
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STANDARD OF REVIEW
This Court reviews a district court’s grant of summary
judgment de novo. Waggy v. Spokane Cty. Washington, 594 F.3d
707, 710 (9th Cir. 2010). “Likewise, a grant of summary judgment
on the ground of qualified immunity is also reviewed de novo.”
Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007);
see Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003). In
doing so, the Court views the evidence in the light most favorable to
the non-moving party. Nurre v. Whitehead, 580 F.3d 1087, 1092
(9th Cir. 2009). Summary judgment is appropriate if “there is no
genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and
the district court correctly applied the substantive law. Waggy, 594
F.3d at 710.
ARGUMENT
THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF ALL DEFENDANTS A. The District Court Properly Ruled That The BIA Officers
Are Entitled To Qualified Immunity As A Matter Of Law.
Roberts’ Bivens claims against BIA Officers Elliot, Scott, and
Haakanson fail from the outset. She argues that the officers violated
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her Fourth and Fifth Amendment rights when they arrested her, a
non-Indian person, pursuant to the tribal court bench warrants
because the tribal court lacked criminal jurisdiction to prosecute a
non-Indian. As discussed below, the district court correctly held
that the officers’ good faith execution of facially valid warrants
cannot be characterized as unreasonable under the circumstances
in this case. See Whiteley, 401 U.S. at 568 (a police officer called
upon to execute an arrest warrant is entitled to assume the validity
of the warrant).
1. The Officers’ Arrest of Roberts Did Not Violate Clearly Established Law.
Qualified immunity shields government officials “from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The doctrine “balances two important interests – the need to
hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties
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reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The
protection of qualified immunity applies regardless of whether the
government official’s error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.” Id. (citations
and internal quotation marks omitted); see also Malley v. Briggs,
475 U.S. 335, 341 (1986) (Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.”).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
established a two-step sequence for courts to use in resolving
qualified immunity claims by government officials. First, a court
must decide whether the facts alleged by a plaintiff make out a
constitutional violation at all. Id. at 201. If so, the court then must
determine whether the right at issue was “clearly established” at the
time of the defendant’s alleged misconduct. Id. More recently, in
Pearson, supra, the Supreme Court retreated from Saucier’s
mandatory protocol, stating that lower court judges “should be
permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at hand.”
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555 U.S. at 236. Here, the district court found that the officers are
entitled to qualified immunity under the second prong of the
analysis. (ER 10). “That is, the law was not clearly established at
the time of Roberts’ arrest that the officer[s’] conduct was unlawful.”
Id.
As the district court explained, the bench warrants for
Roberts’ arrests “were facially valid when issued and delivered to
the officers for execution.” (ER 10). Indeed, each of the warrants,
which had been signed by a judicial officer of the Northern
Cheyenne Tribal Court, commanded the officers to arrest Roberts
and bring her before the court for failure to appear at two court-
ordered conferences. Id. Hence, the court concluded, the officers
were duty-bound to execute the warrants. Id.
Relying on Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
(1978), superseded by statute on other grounds, see United States v.
Lara, 541 U.S. 193, 205-07 (2004), Roberts argues, however, that at
the time of the officers’ actions in 2010 and 2011, the law had been
clearly established for over thirty years that tribal courts have no
criminal jurisdiction over non-Indians. Appellant’s Br. 20. In
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Oliphant, the Supreme Court held that tribes may not exercise their
inherent criminal jurisdiction to try and to punish non-Indians. 541
U.S. at 212. Thus, plaintiff maintains, “Oliphant is the controlling
authority in this case with respect to the lack of criminal
jurisdiction over Roberts, a non-Indian,” (Appellant’s Br. 20), and
“[a] reasonably competent law enforcement officer who is employed
on an Indian Reservation should be charged with this knowledge of
the criminal law.” Id. at 21. Roberts misapprehends the qualified
immunity analysis.
The qualified immunity inquiry turns on the “objective legal
reasonableness of the [official’s] action, assessed in light of the legal
rules that were clearly established at the time it was taken.” Wilson
v. Layne, 526 U.S. 603, 614 (1999) (citation and internal quotation
marks omitted). In Anderson v. Creighton, the Supreme Court
explained that “clearly established” for qualified immunity purposes
means that “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing
violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in question
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has previously been held unlawful, . . . but it is to say that in the
light of pre-existing law the unlawfulness must be apparent.” 483
U.S. 635, 640 (1987) (citation omitted). Accord Ashcroft v. al-Kidd,
563 U.S. 731, 131 S. Ct. 2074, 2083 (2011) (qualified immunity
protection attaches unless “every reasonable official” would have
understood that his actions were unlawful) (internal quotation
marks and citation omitted); see Hope v. Pelzer, 536 U.S. 730, 739
(2002) (“[Q]ualified immunity operates to ensure that before they
are subjected to suit, officers are on notice their conduct is
unlawful.”) (citation and internal quotation marks omitted).
As the district court stated in rejecting Roberts’ argument
below, Roberts “fails to take into account the Northern Cheyenne
Tribal Court’s claim of capacity to exercise jurisdiction over non-
Indians by consent.” (ER 11). Explaining further, the court found it
unnecessary to decide whether a tribal court may exercise such
jurisdiction because, for purposes of the qualified immunity
analysis (id.):
the issue is whether the law was so clearly established at the time of Roberts’ arrests that a reasonable officer would have known
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that the tribal court was wholly without jurisdiction and that he was engaging in a null and void act. Existing law is not sufficiently clear to warrant that conclusion. The jurisdictional issue remains. To reiterate, Officers Haakanson and Elliot were presented
with facially valid warrants signed by a tribal court judge
commanding them to arrest Roberts and bring her “FORTHWITH,
BEFORE THIS COURT TO ANSWER TO” her failure to appear for
status conferences on July 20, 2010, and October 19, 2010. (ER 83,
84, 87, 88). They thus had a reasonable basis for believing in the
validity of the warrants and in the lawfulness of their actions in
executing the warrants. See Baker v. McCollan, 443 U.S. 137, 144-
45 (1979) (no actionable violation under 28 U.S.C. § 1983 in false
imprisonment case where detention was pursuant to a valid
warrant and was not unduly long);8 Whiteley, 401 U.S. at 568 (a
police officer called upon to execute an arrest warrant is entitled to
8The Supreme Court’s decisions equate the qualified immunity of state officials sued under 28 U.S.C. § 1983 with the immunity of federal officers sued directly under the Constitution in a Bivens action. See e.g., Harlow, 457 U.S. at 818 & n.30.
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assume the validity of the warrant); Erdman v. Cochise Cty., 926
F.2d 877, 882 (9th Cir. 1991) (arrest was not a constitutional
violation because it was pursuant to a facially valid bench warrant).
Thus, there is no merit to Roberts’ suggestion (Appellant’s Br.
18-19) that because the officers allegedly knew that she was a non-
Indian, they should have refused to execute the arrest warrants. At
best, Roberts’ status would merely suggest that consent to personal
jurisdiction is required for the tribal court to issue a valid warrant.
But there is no constitutional requirement for an arresting officer to
second-guess the legal assessment of probable cause by the judicial
officer who issued an arrest warrant. See Arnsberg, 757 F.2d at
981. Qualified immunity shields an officer from personal liability
when he reasonably could have believed that his conduct complied
with the law. See Pearson, 555 U.S. at 243. And here, the officers
were entitled to rely upon the tribal court’s determination that it
had jurisdiction over Roberts.
Because the law was not clearly established at the time of
Roberts’ arrests that the officers’ conduct in this case was unlawful,
the district court correctly granted summary judgment in their favor
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based on their claim of qualified immunity. See Saucier, 533 U.S. at
202 (“If the law did not put the officer on notice that his conduct
was clearly unlawful, summary judgment based on qualified
immunity is appropriate.”).
Furthermore, Roberts’ claims against Officer Scott were barred
because he had no personal involvement in either of Roberts’
arrests, or in her detainment. Doc. 41 at 99:17-25, 100:1-10.9 It is
well-settled that Bivens liability is premised on proof of direct
personal involvement of a defendant in the alleged constitutional
deprivation. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);
Pellegrino v. United States, 73 F.3d 934, 936 (9th Cir. 1996); Jones
v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Because Officer
Scott did not arrest Roberts and had no involvement in her
9Although the district court did not address the issue, defendants argued in their motion for summary judgment that plaintiff’s claim against Officer Scott was barred because of his lack of participation in her arrest and detention. Defs’ Br. in Supp. Mot. Summ. J. 21-22, ECF No. 33; Fed. Defs’ Reply in Supp. Mot. Summ. J. 7, ECF No. 45.
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detention – as Roberts admitted (Roberts Dep. 99:17-25, 100:1-10,
ECF No. 41) – he could not be subject to Bivens liability.
2. There Is No Genuine Dispute As To Any Material Fact Concerning The Objective Legal Reasonableness Of The Officers’ Conduct.
Roberts also argues that the district court erred in granting
summary judgment to the officers based on their claim of qualified
immunity because material issues of fact exist concerning the
objective legal reasonableness of the officers’ conduct. Appellant’s
Br. 14-17. Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)
(emphasis added). Material facts are those that “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Where the moving party has
met its initial burden of proving the absence of a genuine issue of
material fact for trial, the non-moving party must show more than
the mere existence of a scintilla of evidence. Id. at 252. In other
words, the non-moving party must do more than show there is
some “metaphysical doubt” as to the material facts at issue.
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Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586
(1986); see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th
Cir. 2010).
Plaintiff appears to suggest that a genuine dispute exists
concerning a number of material facts, namely: (a) whether Roberts
waived the tribal court’s lack of personal jurisdiction over her at the
time of her arraignment (Appellant’s Br. 14); (b) the date that the
second bench warrant was issued (id. at 16); and (c) whether Officer
Elliot was aware of Roberts’ non-Indian status (id. at 16-17). As
discussed below, however, the disputed facts identified by Roberts
either are not “material” or are nonexistent.
a. First, any dispute about whether Roberts waived the tribal
court’s personal jurisdiction over her is not material. Whether or
not Roberts consented to the tribal court’s jurisdiction is not
relevant to the question of the objective legal reasonableness of the
officers’ arrest of Roberts because the arrests were made pursuant
to facially valid warrants issued by the tribal court. As discussed
earlier, the officers were not required to question the validity of the
warrants. “The Constitution does not require that allocation of law
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enforcement duties.” Arnsberg, 757 F.2d at 981. Indeed, “[i]t would
be plainly unreasonable to rule that the arresting officers . . . must
take issue with the considered judgment of . . . a [judicial officer in
issuing an arrest warrant]. Not only would such a rule cause an
undesirable delay in the execution of warrants, but it would also
mean that lay officers must at their own risk second-guess the legal
assessments of trained lawyers.” Id. Thus, whether Roberts
consented to the tribal court’s jurisdiction is not material because
the officers were entitled to assume the validity of the bench
warrants.
b. Nor is the district court’s misstatement when reciting the
undisputed facts that the second bench warrant was issued on
October 19, 2010 (the date of the second missed status conference),
rather than on October 21, 2010 (the date of its actual issuance),
material. (ER 7 ¶18). Roberts claims that this “clear error of fact” is
“pertinent” because the warrant was issued one day after a letter
was sent by her private counsel to the tribal prosecutor objecting to
the tribal court’s jurisdiction. Appellant’s Br. 16; see ER 108.
According to Roberts, the date of her attorney’s letter and timing of
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the bench warrant “pertain[] to the objective reasonableness of the
Officers’ actions.” Appellant’s Br. 16. There are several flaws in
plaintiff’s reasoning.
First, the bench warrant appears to have been issued sua
sponte by a tribal court judge after Roberts failed to appear at a
status conference. Although Roberts contends that her attorney
challenged the court’s jurisdiction in a letter to the tribal
prosecutor, she does not allege that either she or her legal
representative ever raised the jurisdictional issue before the tribal
court. Roberts Dep.161:10-20, ECF No. 41. Further, Roberts does
not allege that the arresting officer, Officer Elliot, who had no role in
procuring the warrant, was aware of her attorney’s letter at the time
he executed the arrest warrant. More importantly, as already
discussed, the arresting officer had no obligation, constitutional or
otherwise, to question the validity of the warrant; but, he had every
reason to believe in the lawfulness of his actions in executing it. See
Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011) (if the arrest
warrant is facially valid, the arresting officer generally enjoys
qualified immunity); Erdman, 926 F.2d at 882 (the Constitution
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does not require an officer executing an arrest warrant to
independently investigate every claim of a defense).
c. Finally, it is simply not relevant whether Officer Elliot, or the
other individual defendants for that matter, knew of Roberts’ status
as a non-Indian. See Appellant’s Br. 16-17. Under Roberts’ theory,
because the officers “knew or should have known” that tribal courts
lack criminal jurisdiction to prosecute non-Indians, and because
the officers “clearly knew” from previous interactions with her that
she was a non-Indian, they should have been able to tell from “[j]ust
a glance” at the warrants that they were facially deficient. Id. at 18.
But, as the district court pointed out, Roberts’ theory ignores
the fact that the Northern Cheyenne Tribal Court claims the
authority to exercise criminal jurisdiction over non-Indian
defendants by consent. See Northern Cheyenne R. Crim. P. Code §
(9)(B)(3) (supra, n.4). When presented with a warrant to arrest a
person “clearly” known to him to be a non-Indian, a BIA law
enforcement officer would not necessarily know whether the person
had consented to the jurisdiction of the tribal court. Moreover, BIA
officers have no discretion to pick and choose which warrants to
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execute; they are duty-bound to carry out the orders of the tribal
court. See 25 U.S.C. § 2803(2)(B). In this case, even if all three
officers knew that tribal courts generally do not have jurisdiction
over non-Indians in criminal matters, and even if all three officers
did know that Roberts was a non-Indian, none of the officers would
have known whether or not she had consented to the jurisdiction of
the tribal court. And plaintiff makes no allegation that they did.
In Arnsberg, this Court encountered a plaintiff’s similar
argument that Internal Revenue Service agents executing a material
witness warrant should have known that the warrant was invalidly
issued and therefore the agents should have refused to execute it.
757 F.2d at 980-81. Although the Court held that the arrest
warrant was indeed invalid, the panel concluded that the agents
could not be held liable under a Bivens theory because the
invalidity of the warrant was not obvious since “[r]easonable
attorneys could disagree with [the court’s] probable cause
assessment.” Id. at 981. The Court opined that it would be “plainly
unreasonable” to require the agents to question the considered
judgment of the Assistant United States Attorney who requested the
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warrant and the federal magistrate who issued it. Id. The panel
thus concluded that the arresting officers committed no Fourth
Amendment violations and rejected the plaintiff’s argument that a
material issue of fact precluded the district court from entering
summary judgment in favor of the agents. Id. In so ruling, the
Arnsberg Court declared that, “[u]nder the established facts, the
agents are insulated from liability by a qualified immunity because
‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Id. (quoting Harlow, 457 U.S. at 818). See also
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (fact that
neutral magistrate issued warrant is clearest indication that law
enforcement officers acted in objectively reasonable manner).
Analogously here, it would be “plainly unreasonable” for the
Court to rule that the BIA officers were required to take issue with
the tribal court’s probable cause determination in issuing the bench
warrants. Hence, whether the officers “clearly knew” Roberts’ status
is not material. The district court was therefore correct in granting
summary judgment in favor of the officers.
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B. The District Court Was Correct In Granting Summary Judgment To The United States On Roberts’ FTCA Claims Based On Her February 19, 2011 Arrest.
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” FDIC v. Meyer, 510 U.S.
471, 475 (1994); accord Conrad v. United States, 447 F.3d 760, 764
(9th Cir. 2006) (“The United States can be sued only to the extent
that it has waived its sovereign immunity.”). The FTCA provides a
limited waiver of sovereign immunity for torts committed by federal
employees acting within the scope of their employment, “under
circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b); see also
id. § 2674 (where the FTCA applies, the United States may be liable
for certain torts “in the same manner and to the same extent as
a private individual under like circumstances . . . .”); Dolan v.
USPS, 546 U.S. 481, 484 (2006). This limited waiver of sovereign
immunity extends to suits for certain intentional torts such as false
arrest and false imprisonment if the conduct of federal law
enforcement officers is involved. See 28 U.S.C. § 2680(h). In
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assessing the liability of the United States under the FTCA, courts
apply the law of the state in which the alleged tort occurred. See
Conrad, 447 F.3d at 67; Trenouth v. United States, 764 F.2d 1305,
1307 (9th Cir. 1985). In this case, Montana law applies because the
events from which plaintiff’s false arrest, false imprisonment and
negligent infliction of emotional distress claims arise occurred
within the exterior boundaries of the Northern Cheyenne
Reservation in Montana.
Roberts argues that the district court erred in granting
summary judgment in favor of the United States on her FTCA
claims because her claims can be sustained under Montana law.
Appellant’s Br. 23. But as we discuss below, Roberts cannot
establish her claim of false arrest and imprisonment because she
was arrested and detained pursuant to a facially valid warrant. See
Kichnet v. Butte-Silverbow Cty., 274 P.3d 740, 754 (Mont. 2012).
Nor can she sustain her claim for negligent infliction of emotional
distress because general allegations that “[b]eing arrested was
extremely traumatic” and that she was “scared to death”
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(Appellant’s Br. 10) do not rise to the level of injury required under
Montana law. See Sacco, 896 P.2d at 418.
1. Roberts Cannot Sustain Her Claim Of False Arrest And Imprisonment Because She Was Arrested Pursuant To A Facially Valid Warrant.
The Montana Supreme Court has explained that the
“gravamen of a false imprisonment claim is the deprivation of liberty
of movement or freedom to remain in the place of one’s lawful
choice.” Hughes v. Pullman, 36 P.3d 339, 343 (Mont. 2001). To
establish the claim under Montana law, a plaintiff must
demonstrate two elements: “the restraint of an individual against
his will, and the unlawfulness of the restraint.” Kichnet, 274 P.3d at
745. As the district court properly found, “Roberts cannot establish
the second element” (ER 12) because Officer Elliot acted pursuant
to a facially valid warrant in arresting plaintiff.
In Montana, “[i]t is well-settled that a court’s determination of
probable cause is a complete defense to a claim of false arrest or
imprisonment.” Kichnet, 274 P.3d at 745. Thus, an arrest made
under a warrant issued following a court’s determination of
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probable cause is a complete defense to a false arrest and
imprisonment claim. (ER 12-13) (citing Kichnet, 274 P.3d at 745).
Roberts argues, however, that the district court “fails to show
where in the record the finding of probable cause exists for” the
October 21, 2010 warrant. Appellant’s Br. 24. Quoting from this
Court’s decision in United States v. Lopez, 482 F.3d 1067, 1072 (9th
Cir. 2007), a case involving a warrantless arrest, plaintiff observes
that ‘“[p]robable cause to arrest exists when officers have knowledge
or reasonably trustworthy information sufficient to lead a person of
reasonable caution to believe that an offense has been or is being
committed by the person being arrested.”’ Appellant’s Br. 24.
Roberts then maintains that “[i]t is unknown how an officer with
knowledge of Roberts being a non-Indian and with knowledge of the
lack of criminal jurisdiction could reasonably believe there was
probable cause to bring Roberts before a Tribal Court that had no
jurisdiction over her.” Id. These contentions are meritless because
the bench warrant issued by the tribal court supplied the probable
cause for Roberts’ arrest.
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Roberts’ arrest on February 19, 2011, was made pursuant to
the tribal court’s determination that there was probable cause for
the issuance of a warrant based on the plaintiff’s failure to appear
as ordered. (ER 87, 88). Because the warrant was valid on its face, a
law enforcement officer executing the warrant cannot be held liable
under Montana law for false arrest or imprisonment, even if the
warrant is subsequently determined to be invalid. See Strung v.
Anderson, 529 P.2d 1380, 1381 (Mont. 1975).
Plaintiff insists, however, that the warrant here was facially
invalid because it compelled a non-Indian to appear before the
tribal court. Appellant’s Br. 24. The Montana Supreme Court
rejected nearly identical claims in Strung. There, plaintiffs argued
“that from the very face of the warrant, it was obvious the justice of
the peace had exceeded his jurisdiction in issuing the warrant and
that respondent peace officers were bound to know that such a
search warrant was void and that if they executed the same they
did so at their peril.” Strung, 529 P.2d at 1381. The state supreme
court roundly dismissed that argument, holding that the officers
were not liable on plaintiffs’ false arrest and false imprisonment
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claims because the warrant appeared valid on its face at the time it
was executed. Id. Explaining its reasoning, the court opined that “it
would put too great a burden on law enforcement officers to make
them subject to damages every time they miscalculated in what a
court of last resort would determine constituted an invasion of
constitutional rights.” Id.
In sum, contrary to plaintiff’s assertions (Appellant’s Br. 25-
26), there are no genuine issues of material fact as to Officer Elliot’s
belief concerning the validity of the warrant. Thus, the district court
properly granted summary judgment to the United States on
Roberts’ false arrest and false imprisonment claims.
2. The District Court Correctly Dismissed Roberts’ Claim For Negligent Infliction Of Emotional Distress.
Under Montana law, “[a] cause of action for negligent infliction
of emotional distress will arise under circumstances where serious
or severe emotional distress to the plaintiff was the reasonably
foreseeable consequence of the defendant’s negligent act or
omission.” Sacco, 896 P.2d at 425. In the explaining the reasoning
behind this test, the Montana Supreme Court stated that the
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requirement that the emotional distress suffered be “serious’ or
severe’ ensures that only genuine claims will be compensated.” Id.
Further, “the necessity of demonstrating that plaintiff’s serious or
severe emotional distress was the reasonably foreseeable
consequence of defendant’s negligen[ce],” mitigates the concern
“over seeming unlimited liability for defendants.” Id. Severe or
serious emotional distress is proven ‘“only where the distress
inflicted is so severe that no reasonable [person] could be expected
to endure it.”’ Id. at 426 (brackets in original) (quoting Restatement
(Second) of Torts § 46, cmt. j at 77-78 (1965)). In view of this
standard, the district court was also correct in holding that the
United States is not liable with respect to Roberts’ negligent
infliction of emotional distress claim. (Doc. 54 at 10; ER 13).
Roberts’ attempt to show that she suffered serious or severe
emotional distress falls far short of meeting the Sacco test. Indeed,
plaintiff’s conclusory allegations that she “experienced serious
emotional distress caused by the actions of the BIA officers,” that
“[b]eing arrested was extremely traumatic,” and that she “was
scared to death” (Appellant’s Br. 27-28) do not rise to an actionable
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level, as made plain by the facts of the cases she cites in her brief.
See id. at 27.
For instance, in Czajkowski v. Meyers, 172 P.3d 94 (2007), the
Montana Supreme Court upheld the trial court’s finding of
actionable emotional distress where the plaintiffs proved that, over
a period of four years, they endured an unrelenting barrage of
obscene gestures, verbal abuse, and the ongoing surveillance of
their outdoor activities by their neighbors. See Appellant’s Br. 27.
And in Peschel v. City of Missoula, 664 F. Supp. 2d 1149 (D. Mont.
2009), a federal district court applying Montana law concluded that
plaintiff’s deposition testimony that he suffered emotional distress
manifested by ‘“significant worry that he suffered from amyotrophic
lateral sclerosis,’ broke out with shingles, and ground his teeth so
much that it irritated his tongue,” coupled with plaintiff’s assertion
that “he suffered fright, humiliation, worry, [and] embarrassment,”
was consistent with the definition of serious or severe emotional
distress adopted in Sacco. 664 F. Supp. 2d at 1172. The court
therefore concluded that there was sufficient evidence upon which a
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jury could find plaintiff suffered serious or severe emotional
distress. Id.
In contrast here, Roberts’ claim of emotional distress is clearly
insufficient to satisfy the Sacco standard. Roberts testified in her
deposition that during her arrest on February 19, 2011, Officer
Elliot told her that he was trying to make her arrest as painless as
possible. Roberts Dep. 123:14-24, ECF No. 41. (SER 6). In
accordance with Roberts’ request, Officer Elliot transported plaintiff
to the detention facility without handcuffs. Roberts Dep. 120:2-5,
ECF No. 41 (SER 5). Upon arriving at the detention center, Officer
Elliot handcuffed Roberts with her hands in front of her body, and
walked her into the facility. Roberts Dep. 120:18-25, ECF No. 41
(SER 5). Roberts was released from custody approximately one-half
hour later after posting bond. (SER 15); see also Roberts Dep.
124:23-125:8, ECF No. 41. (SER 7-8) Certainly Officer Elliot’s polite
and professional treatment of Roberts during the arrest, along with
her brief restraint and detention, did not result in emotional
distress “so severe that no reasonable person could be expected to
endure it.” See Sacco, 896 P.2d at 426.
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Moreover, aside from discussing her situation with two friends
who were social workers, Roberts did not seek any care or
treatment for her alleged emotional distress. Roberts Dep. 25:12-
26:7, ECF No. 41. (ER 21). She has not taken any medication to
relieve the symptoms of her alleged emotional distress. Roberts Dep.
24:8-10, ECF No. 41. (ER 21). She also has not lost any time from
work or suffered any loss of earning because of her alleged
emotional distress. Roberts Dep. 132:25:-133:2, ECF No. 41. (SER
9-10). In short, she simply cannot meet the high standard for
proving an independent action for negligent infliction of emotional
distress under Montana law.
Additionally, as the district court concluded (ER 13), Officer
Elliot’s action in executing the second bench warrant was not a
negligent or wrongful act or omission. See Sacco, 896 P.2d at 418.
Rather, the officer had a “reasonable basis to believe that the
warrant and his actions were valid and lawful.” (ER 13).
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CONCLUSION
For the foregoing reasons, the district court’s order granting
summary judgment in favor of all defendants should be affirmed.
Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
MICHAEL W. COTTER United States Attorney MATTHEW M. COLLETTE (202) 514-4214 /s/Jeffrica Jenkins Lee JEFFRICA JENKINS LEE (202) 514-5091 Attorneys, Appellate Staff
Civil Division, Room 7537 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001
DECEMBER 2015
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STATEMENT OF RELATED CASES
Counsel for the appellees are not aware of any related
cases as defined in Circuit Rule 28-2.6.
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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF
OF APPELLATE PROCEDURE 32(A) AND CIRCUIT RULE 32-1
Pursuant to Fed. R. App. P. 32(a)(7)(B), (C) and Circuit Rule
32-1, I certify that the attached Brief for the Appellee has been
prepared in 14-point Bookman Old Style, a proportionally spaced
font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8,874
words, excluding the parts of the brief exempted under Rule
32(a)(7)(B)(iii), according to the count of Microsoft Word.
/s/Jeffrica Jenkins Lee JEFFRICA JENKINS LEE ATTORNEY FOR THE APPELLEES
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CERTIFICATE OF SERVICE
I hereby certify that on December 28, 2015, I electronically
filed the foregoing brief with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system, which constitutes service on all parties
under the Court’s rules.
/s/ Jeffrica Jenkins Lee JEFFRICA JENKINS LEE ATTORNEY FOR THE APPELLEES
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