Graves v. City of Coeur D'Alene

Decision Date01 August 2003
Docket NumberNo. 02-35119.,02-35119.
Citation339 F.3d 828
PartiesLori GRAVES; Jeffrey Kerns; Kenneth Malone, Plaintiffs, and Jonathan Crowell; Gary Bizek, Plaintiffs-Appellants, v. CITY OF COEUR D'ALENE; Coeur D'Alene Police Department; Coeur D'Alene City Attorneys Office; Jeffrey Jones; Ken Timmons, individually and in his professional capacity as a captain of the Coeur D'Alene Police Department; Carl Bergh, individually and in his professional capacity as a captain of the Coeur D'Alene Police Department; Defendants, and Greg Surplus, individually and in his professional capacity as a lieutenant of the Coeur D'Alene Police Department; D.C. Dixon, individually and in his professional capacity as an officer of the Coeur D'Alene Police Department; R. Turner, individually and in his professional capacity as a detective of the Coeur D'Alene Police Department, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Lawrence A. Hildes, Berkeley, CA, and Bernard Zahela, Wildlands Interstate Legal Defense Fund, Boise, ID, for the plaintiffs.

Randall R. Adams, Quane Smith L.L.P., Coeur d'Alene, ID, for the defendants.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-99-00138-EJL.

Before: CUDAHY,* O'SCANNLAIN, and GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Plaintiffs Jonathan Crowell and Gary Bizek were arrested while protesting an Aryan Nations parade in Coeur d'Alene, Idaho, on July 18, 1998. Crowell was arrested for obstruction of justice after he refused to consent to the search of his backpack. Bizek was arrested for possession of a deadly weapon after he aroused suspicion by wearing attire that covered his face and by walking without putting weight on the cane he carried. Crowell was prosecuted and tried by a jury for obstructing an officer on April 14 and 15, 1999, but was not convicted in this trial because of a hung jury.1 Bizek received a citation shortly after his arrest on July 18, 1998; his case was dismissed by the county prosecutor after arraignment.

Plaintiffs on April 7, 1999, filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the District of Idaho.2 Both Bizek and Crowell alleged, inter alia, claims of false arrest in violation of the Fourth Amendment. The defendants are law enforcement officers with the City of Coeur d'Alene: Defendant Daniel Dixon, Defendant Gregory Surplus, and Defendant Robert Turner.3 After a three-day jury trial of plaintiffs' civil rights claims, the jury returned a verdict for the defendants, finding no liability. Plaintiffs filed a post-trial motion for judgment notwithstanding the verdict pursuant to Fed. R.Civ.P. 50 and, in the alternative, a motion for a new trial pursuant to Fed. R.Civ.P. 59. The district court denied those motions, concluding that sufficient evidence was presented to the jury to support its verdict, that reasonable minds could differ on the evidence, and that the verdict was not contrary to the great weight of evidence. On appeal, the plaintiffs challenge the district court's denial of their motion for judgment notwithstanding the verdict and denial of their motion for a new trial.

Applying the standards for relief of judgment notwithstanding the verdict and new trial, to resolve this case we must consider the evidence that went to the jury and determine whether defendant Turner arrested Bizek; whether defendant Surplus, as a supervising officer, acted affirmatively to deprive Crowell of his constitutional rights; and whether defendant Dixon had the legal authority to search Crowell's backpack and therefore to arrest Dixon for obstruction of justice when Crowell refused to consent to the search. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.

I

Given the jury verdict for defendants, the defendants are "entitled to have the evidence viewed in a light most favorable to [them], resolving conflicts in [their] favor and giving [them] the benefit of reasonable inferences, to determine whether substantial evidence supported the verdict." Murphy v. F.D.I.C., 38 F.3d 1490, 1495 (9th Cir.1994).4 For this reason, the factual statement herein is based largely on the testimony of the defendants, even though their testimony was contradicted in part by Bizek and Crowell. See id.

Members of a group known as Aryan Nations planned a parade through the downtown streets of Coeur d'Alene for July 18, 1998. This group, which expressly adopts, champions, and advances Nazi principles and philosophy, was known by law enforcement officers in Coeur d'Alene to have a "propensity for violence."

There was community controversy in the days leading up to the parade. Law enforcement agencies had gathered intelligence regarding groups that might come to Coeur d'Alene to support or protest the Aryan Nations.5 The Jewish Defense League, a self-described "controversial" group that condones the use of "strength, force, and violence," indicated through its chairman, Irv Rubin, that the Jewish Defense League would protest and warned explicitly that the streets would "run red with blood." Other groups and individuals were also expected to protest. Plaintiffs Bizek and Crowell, who did not previously know each other, were among several hundred people gathering in Coeur d'Alene on July 18, 1998, to protest the Aryan Nations group and its hate-filled message.6 The law enforcement community was apprehensive about the march and protest. City police, state troopers, and other law enforcement personnel were worried that they and members of the public were at risk and would be injured before the day was done.

Law enforcement agencies also had received intelligence in a teletype that explosives had been stolen from a construction site in Ada County a few days before the parade.7 Although Ada County is in southern Idaho and Coeur d'Alene is in northern Idaho, about 300 miles away, the Ada County Sheriff's Office put northern Idaho agencies on notice of the theft of the explosives.8 And while the record does not show that defendants Surplus and Dixon knew the type of explosives stolen, their testimony shows that they were concerned with protecting the crowd from the threat of explosive disruption and injury. Thus, fear and apprehension about the parade and protest were intensified. With this background, we turn to further facts particular to the claims of plaintiffs Bizek and Crowell.

A

Plaintiff Gary Bizek injured his knee a few weeks before the parade and carried a cane to help him walk in Coeur d'Alene. On the day of the parade, Bizek wore a T-shirt with a confrontational message that said "Take your f[ ]ing race war and shove it up your [ ]." (expletives deleted). Bizek also covered his face with a T-shirt because he did not want to be recognized by the "media or other skinheads."

Defendant Turner was assigned as a detective with the Interagency Drug Task Force on the day of the parade. He was dressed in civilian clothes and was responsible for observing and reporting suspicious activity. Turner described himself as engaged in "surveillance eyes and ears," to be "unseen, unheard of unless [he] saw something to be pointed out." When Turner reported suspicious activity of any individual, a uniformed officer was then to contact the described individual for further investigation. Turner testified that his job was not to make arrests, because that would thwart his undercover role.

Before the parade began, Turner while serving undercover noticed Bizek in a group and became suspicious that Bizek's cane might be a weapon:

Well, I immediately noticed their attire. There was a group of at least four individuals dressed the same. I noticed the chains around their waists, ankles and a couple of them had their faces covered. And then the writing on the back of the shirt and so that immediately I recognized that as something suspicious to me.... I noticed walking behind him that he was not using the cane, leaning on it at all, he wasn't putting any weight on it.

Turner called in a description of Bizek over the radio and said that Bizek was suspicious. Other officers stopped Bizek. Turner confirmed the identification and then walked away. Turner did not tell anyone to arrest Bizek, did not place handcuffs on Bizek, did not tell Bizek he was under arrest, and did not help transport Bizek to jail.9 After he was "contacted," Bizek was arrested and taken to the holding facilities. He was not told why he was arrested and he could not identify the officer who arrested him.

After the parade and protest, another deputy told Turner that Turner was listed on the booking sheet as the arresting officer in Bizek's arrest. Turner went to the jail, talked to Bizek, and then issued Bizek a citation after consulting with Turner's sergeant. Turner cited Bizek for possession with intent to assault with a deadly weapon, his cane, under Idaho Code § 18-3301. Bizek signed his citation and was released. Turner wrote the police report.

B

On the morning of July 18, 1996, Crowell drove to Coeur d'Alene from Moscow, Idaho, with a group of about 50 people who planned to demonstrate against the Aryan Nations parade. Crowell carried a sign that said "Earth first, hatred last." He also carried a heavy backpack. Crowell testified that "[i]t was definitely loaded with stuff. I carry a very heavy backpack."

When Crowell first approached the parade area, several officers asked the crowd: "Has anybody checked your backpack yet?" Crowell was aware that some people opened their bags voluntarily, while others kept walking. Crowell did not open his backpack because felt he had a right not to be searched and he kept walking without stopping for the officers.

Later, as Crowell and some friends within his group continued to make their way toward the parade, Trooper Lind from the Idaho State...

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