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Reed v. Lieurance

United States District Court, D. Montana

December 11, 2017

ANTHONY PATRICK REED, Plaintiff,
v.
DOUG LIEURANCE, in his individual capacity; BRIAN GOOTKIN, in his individual capacity; GALLATIN COUNTY SHERIFF'S OFFICE, a department of Gallatin County; and GALLATIN COUNTY, Defendants.

          OPINION AND ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE

         In May 2012, Defendant Doug Lieurance ("Deputy Lieurance") cited Plaintiff Anthony Reed ("Reed") for obstructing a bison[1] herding operation outside of Yellowstone National Park ("the Park"). Reed is a volunteer with the Buffalo Field Campaign ("Campaign"), a § 501(c)(3) non-profit conservation organization that sends volunteers to observe and document the herding or "hazing" of bison in or near the Park. Reed v. Lieurance, 863 F.3d 1196, 1201 (9th Cir. 2017). Pursuant to an interagency agreement, government personnel from a number of state and federal agencies carry out hazing operations as many as four or five times per week between December and July. Id. The Campaign provides video footage and information about the hazing to news outlets and government agencies. Id.

         Reed brought this action pursuant to 42 U.S.C. § 1983, alleging that Deputy Lieurance's conduct violated Reed's First and Fourth Amendment rights and related Montana constitutional rights, and that Gallatin County, the Gallatin County Sheriffs Office, and Sheriff Brian Gootkin failed to train officers on Montana's obstruction statute and the First and Fourth Amendments. (Doc. 1.)

         Factual Background

         The facts as outlined below are those the parties have agreed to, (see Addt'l Stip. Facts, Doc. 147), and those viewed in the light most favorable to Reed, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam).

         I. Bison Hazing Operations

         At all times relevant to this case, Agent Rob Tierney, a Bison Program Specialist from the Montana Department of Livestock ("Livestock Department"), was responsible for overseeing bison management operations outside of the Park. ((Doc. 147 at ¶¶ 1, 2.) Operations within the Park were the responsibility of the National Park Service ("Park Service"). (Id.) At that time, and in accordance with the Operating Procedures agreed to as part of the Bison Management Plan, the Livestock Department frequently requested law enforcement assistance from the Gallatin County Sheriffs Office ("Sheriffs Office"). (Id. at ¶ 3.) When the Livestock Department planned a bison hazing operation, a briefing was held between officers of the Department, the Sheriffs Office, and any other agencies that had personnel involved in the operation. (Id. at ¶ 4.) At the briefing, the Livestock Department officer in charge of the operation, typically Agent Tierney, explained the planned operation and the approximate location, (id.), and the Sheriffs Office would coordinate haze-related law enforcement, (id. at ¶ 5).

         II. The Incident

         On May 23, 2012, there was a hazing operation which involved moving bison from the area of the Madison Arm Resort eastward and then across U.S. Highway 191, and back into the Park. (Id. at ¶ 6.) Reed and Kasi Craddock-Crocker were in a vehicle driving ahead of the operation as it headed east on Madison Arm Road. (Id. at ¶ 7.) Reed left the operation and drove to the junction of Highway 191, Madison Arm Road, and Conservation Lane and parked near that junction. (Id. at ¶ 8.) While Reed was parked in that spot, Agent Tierney approached Reed's vehicle and spoke with Reed. (Id. at ¶ 9.) After speaking with Agent Tierney, Reed drove north of the Madison River and parked on a gravel road that runs parallel to Highway 191. (Id. at ¶ 10.) Tierney then radioed Deputy Lieurance. (Id. at ¶ 11.) Lieurance in turn radioed to the riders with the operation and told them to stop moving the bison, (id. at ¶ 12), which they did, (id. at ¶ 13). Deputy Lieurance drove to Reed's location and after speaking with Reed, cited him for misdemeanor obstruction, Mont. Code Ann. § 45-7-302. (Id. at ¶¶ 14, 15.) On July 10, 2012, the county prosecutor moved to voluntarily dismiss the citation. (Doc. 154-4 at 2.)

         III. The Recording

         The parties dispute the specifics of Reed's conversations with Agent Tierney and Deputy Lieurance, primarily the nature of the directions Agent Tierney gave them when he initially told them to move their car as well as how exactly they were obstructing the haze. There is a 22-minute recording of the second portion of Deputy Lieurance's stop, recorded by Craddock-Crocker. (See DVD, Ex. D, Doc. 151-4.). The recording begins after the initial conversation between Lieurance and Reed. Reed and Craddock-Crocker discuss the stop. Craddock-Crocker then has brief interaction with law enforcement, where law enforcement insists she and Reed "failed to follow directions" and she insists the directions were not clear. Reed and Craddock-Crocker repeatedly refer to the "selective enforcement" of the law based on the other vehicles driving on the highway and even note they could probably sue if Reed were to be arrested. The video shows Reed's citation being issued. At that point, Deputy Lieurance explains that Reed is being cited for obstruction, which, according to Deputy Lieurance, is basically "doing something you were told not to do" or "stopping an operation of some sort." (Id. at 15:40.) Lieurance further explains Reed's obligation to contact the court. At one point, Lieurance asks Craddock-Crocker, who is filming, to take a step back. Reed clarifies that he is receiving a ticket. After the citation is issued, Craddock-Crocker again asks why they are being "selectively enforced against, " and Deputy Lieurance states that he is not going to argue about it, and that they can either leave or he can take them to jail. (Id. at 18:10.) After a bit more back and forth, Reed and Craddock-Crocker drive away.

         Neither parties' story is "blatantly contradicted" by the recording. See Scott v. Harris, 550 U.S. 372, 380 (2007). While the video does not depict all of the events at issue, it does show the relative distance from the haze area and numerous other cars and trucks driving by on the highway during the stop.

         Procedural Background

         In March 2013, Reed filed suit, asserting that Deputy Lieurance's conduct violated Reed's First and Fourth Amendment rights and related Montana constitutional rights, and that Gallatin County, the Sheriffs Office, and Sheriff Gootkin failed to train officers regarding Montana's obstruction statute and the First and Fourth Amendments. (See Doc. 1.) The parties filed cross-motions for summary judgment and motions in limine. On July 23, 2014, the Court granted the defendants' motion for summary judgment on Reed's unreasonable seizure and failure-to-train claims, denied summary judgment on the First Amendment claims, and excluded Reed's police practices expert witness. On August 20, 2014, Reed moved to amend his complaint; that motion was denied on October 6, 2014. A jury trial was held in January 2015 on Reed's First Amendment claims. After Reed presented his case, the defendants moved for judgment as a matter of law under Fed.R.Civ.P. 50, which was granted as to all remaining claims.

         Reed appealed.[2] On appeal, the Ninth Circuit held that: (1) the defendants were not entitled to summary judgment as to Reed's unlawful seizure claim; (2) it was improper to sua sponte dismiss Reed's failure-to-train claim under Rule 12(b)(6); (3) the wrong legal standard was applied in excluding Reed's expert witness; and, (4) the defendants were not entitled to judgment as a matter of law as to Reed's First Amendment claims. See Reed, 863 F.3d at 1204-12. The case was remanded and reassigned. See Id. at 1213.

         Following remand, Reed filed a First Amended Complaint, alleging six causes of action, including: Count I (unreasonable seizure - Fourth Amendment), Count II (unreasonable restriction - First Amendment), Count III (retaliation - First Amendment), Count IV (failure to train - Monell[3]), Count V (privacy - Mont. Const, art. II, sections 10 and 11), and Count VI (unreasonable restriction - Mont. Const, art. II, sections 6 and 7). (Doc. 146.) Two defense motions are currently pending: (1) a motion for summary judgment as to Reed's failure-to-train claim, (Doc. 150) and (2) a motion to exclude the expert testimony of Reed's police practices expert, Timothy Longo, (Doc. 144). Having considered the parties' briefing and oral argument, both motions are denied.

         Summary Conclusion

         The defendants argue that summary judgment is appropriate as to Reed's failure-to-train claim because the undisputed evidence shows that Deputy Lieurance was trained and Reed fails to identify a "specific inadequacy" in the training deputies receive. However, there exists a genuine dispute of material fact as to: (1) whether the training received by deputies on Montana's obstruction statute, the First Amendment, and the Fourth Amendment was adequate; (2) whether there was an obvious or recurring need for more or better training; and (3) whether there is a causal link between a deficiency in training and the alleged constitutional harm. Drawing all reasonable inferences in favor of Reed, Tolan, 134 S.Ct. at 1866, a jury could find that the defendants' failure to train amounts to a "deliberate indifference to the rights of persons with whom [its] employees come into contact, " Connick v. Thompson, 563 U.S. 51, 61 (2011) (internal quotation marks and alteration omitted). Additionally, because the testimony of Reed's police practices expert, Timothy Longo, is reliable and relevant to that failure-to-train claim, Fed.R.Evid. 702, it is not excluded.

         Analysis

         I. Motion for Summary Judgment A. Legal Standard

         A party is entitled to summary judgment if it can demonstrate 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). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248.

         B. Failure to Train

         The defendants seek summary judgment as to Reed's Monell claim, which alleges failure to train as to the First and Fourth Amendments and Montana's obstruction statute. (Doc. 150.) They previously moved for summary judgment on this claim, (see Doc. 13), but Reed's claim was dismissed sua sponte under Rule 12(b)(6). The Ninth Circuit reversed, holding that it was error not to provide proper notice and not give Reed an opportunity to amend. Reed, 863 F.3d at 1207-08. The Ninth Circuit further declined to consider Plaintiffs failure-to-train claim under Rule 56, "affording the district court a chance to consider this question." Id. at 1208 n.5.

         Reed alleges that the defendants "do not provide adequate training for sheriffs deputies on the elements, meaning, and lawful application of Montana's obstruction statute, or on the constitutional rights of members of the public, namely the Fourth Amendment right to be free from unreasonable seizure and First Amendment rights under the U.S. Constitution." (Doc. 146 at ¶ 147.) He further alleges that the defendants "have an unconstitutional policy that allows sheriffs deputies to use the Montana obstruction statute to arrest individuals who are engaged in constitutionally protected conduct." (Id. at ¶ 148.)

         "[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Flores v. Cnty. of L.A., 758 F.3d 1154, 1158 (9th Cir. 2014) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Because "a municipality can be liable under § 1983 only where its policies are the moving force behind the constitutional violation, " City of Canton, 489 U.S. at 388 (quotation marks and alteration omitted), Reed "must demonstrate a conscious or deliberate choice on the part of the defendants, Flores, 758 F.3d at 1158 (quotation marks omitted). He must allege facts showing the defendants "disregarded the known or obvious consequence that a particular omission in their training program would cause [county] employees to violate citizens' constitutional rights." Id. at 1159 (quoting Connick, 563 U.S. at 62).

         Although "a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference, " id., the Supreme Court has "not foreclose[d] the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability, " Bd ...


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