United States District Court, D. Montana
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE
2012, Defendant Doug Lieurance ("Deputy Lieurance")
cited Plaintiff Anthony Reed ("Reed") for
obstructing a bison 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.
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.)
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).
Bison Hazing Operations
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).
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.)
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.
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.
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.
appealed. 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.
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), 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.
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
Motion for Summary Judgment A. Legal
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.
Failure to Train
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.
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
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).
"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 ...