354 F.3d 1058 (9th Cir. 2004), 02-35516, Beier v. City of Lewiston

Docket Nº:02-35516
Citation:354 F.3d 1058
Party Name:Beier v. City of Lewiston
Case Date:January 14, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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354 F.3d 1058 (9th Cir. 2004)

Rafael D.O. BEIER, Dr., Plaintiff-Appellee,


LEWISTON, CITY OF; Jack Baldwin; John Doe; Jane Doe, in their official capacities as officials, employees and/or agents of the City of Lewiston, State of Idaho; Nez Perce County, a political subdivision of the State of Idaho; Jane Doe, in their official capacities as jailers, officials, employees and/or agents of Nez Perce County, Idaho; Randy S. Kingsbury, in his capacity as Sheriff of Nez Perce County, Idaho, Defendants,


Brad Mittendorf, in his capacity as a police officer of the city of Lewiston, Idaho; Joedy Mundell, in his capacity as a police officer of the City of Lewiston, Idaho, Defendants-Appellants.

No. 02-35516.

United States Court of Appeals, Ninth Circuit

United States Court of Appeals, Ninth Circuit

January 14, 2004.

Argued and Submitted Sept. 8, 2003.

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Bentley G. Stromberg, Clements, Brown & McNichols, Lewiston, ID, for the defendants-appellants.

Timothy K. Ford, MacDonald, Hoague & Bayless, and Richard K. Kuck, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-99-00244-EJL.

Before THOMPSON, HAWKINS, and BERZON, Circuit Judges.


BERZON, Circuit Judge.

Officer Joedy Mundell and Corporal Brad Mittendorf (collectively "the officers") arrested Rafael Beier for violating a temporary protection order the terms of which they had neither read nor ascertained from authorized personnel. Beier brought suit under 42 U.S.C. § 1983, asserting that the arrest was in violation of the Fourth Amendment. The officers appeal from the district court's denial of their motion, on qualified immunity grounds, for summary judgment. We affirm.


In June 1997, Beier and his wife, Susan Beier ("Susan"), were in the process of divorcing. Susan called the police after a dispute arose between Beier and their son, Joseph. Mundell, a member of the Lewiston Police Department, responded to the call. After Mundell interviewed Susan and Beier, Beier left the premises. Mundell then described to Susan the process for obtaining a civil protection order and gave her a pamphlet concerning such orders.

Shortly afterwards, Susan applied for and obtained a temporary protection order against Beier. The order provided, as here pertinent: 1

1. The Respondent [Beier] shall not commit, threaten to commit, or attempt to commit (either in person or through any other person) any act of physical injury, sexual abuse, or forced imprisonment upon the Petitioner [Susan Beier] and Minor Children [Dresden and Joseph Beier]


b. Respondent ... shall not harass or follow the other [Petitioner Susan Beier] and shall not contact or attempt to contact the other in person[,] in writing[,] by a third person[, or] by telephone.

c. Respondent shall not, EVEN IF INVITED BY THE PETITIONER, go within: 300 feet ... of Petitioner's residence ... and Petitioner's work place.... 2


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5. Temporary custody of the minor children ... Dresden (16)[and] Joseph (15) is awarded: to the Petitioner.

6. Parent without temporary custody[,] Respondent[,] shall NOT have visitation until further ordered by the Court.

A few days after obtaining the protection order, Susan attended church services. Beier appeared at the church with Benjamin, his infant son from another relationship. Beier had been a member of the congregation before he was excommunicated for reasons not pertinent here. He was nonetheless permitted--indeed encouraged--by the church to continue attending services there. Beier sat with Benjamin several rows behind Susan. Joseph and Dresden subsequently came to the church as well and informed Susan that Beier was present with Benjamin. Although Joseph and Dresden approached Beier and attempted to persuade him to leave, he refused.

Disturbed by Beier's presence, Susan consulted with Bishop Douglas Piper and, on his advice, called the Lewiston Police Department, asking specifically for Mundell. When Mundell returned her call, Susan told him that she had obtained a restraining order against Beier, and that Beier was violating the order.3 Mundell called the police dispatcher to confirm the issuance and service of the protection order but did not request information about the order's terms. Mundell then came to the church. When he arrived, Susan advised him that she had a copy of the order in her purse, which was in the church chapel.

On the way to retrieving Susan's purse from the chapel, Mundell encountered Beier, who was standing in the foyer with Joseph and Dresden. Mundell repeatedly asked Beier to leave, but he refused. At some point, the parties moved outside, and Mundell informed Beier that he was in violation of the protection order. According to Beier, Joseph, and Dresden, Beier informed Mundell that he was not in violation of any restraining order and asked Mundell to read the order for himself. According to Joseph, Mundell responded that he had not read the order and did not know the details of the order, but that Beier would be arrested if he did not leave the church.

Mittendorf later arrived at the scene to assist Mundell. After the dispute continued for some time and Beier persisted in refusing to leave, Mittendorf placed Beier under arrest for violating a civil protection order. Dresden attempted to intervene on his father's behalf, and a scuffle ensued involving Mittendorf, Beier, Mundell, and Dresden.

The record contains conflicting evidence with regard to the tone of the discussion. The officers claim that they attempted to reason with Beier while he was being verbally abusive and hostile. Beier claims that he stayed calm throughout the discussion, but that Mundell addressed him in a degrading manner. While some aspects of

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this emotionally charged interaction are, as noted, disputed, the critical point is not: Neither Mundell nor Mittendorf had read the protection order, or had its terms read or recounted to them, prior to Beier's arrest. Instead, Mundell and Mittendorf knew nothing about the terms of the order other than what, if anything, Susan told them.

Beier was charged with violation of a civil protection order, resisting arrest, and malicious injury to property.4 All charges against Beier were subsequently dismissed by the county prosecutor.

Beier thereupon brought a 42 U.S.C. § 1983 action against Mundell, Mittendorf, the City of Lewiston, Nez Perce County, and other officials alleging, among other causes of action, false arrest and excessive force in violation of the Fourth Amendment. The officers moved for summary judgment as to Beier's claims against them for false arrest and excessive force, but the district court denied the motion. The officers now appeal the denial of summary judgment, on qualified immunity grounds, as to the false arrest claim only.

With regard to the false arrest claim, the magistrate judge determined that the officers acted unreasonably in failing to review the terms of the protection order even though they had reason to question its scope and applicability, and even though the procedures of the Domestic Violence Crime Protection Act, codified at Idaho Code § 39-6301 et seq., imposed a requirement upon them to review the order before enforcing it. The district court, upon review of the magistrate's Report and Recommendation, agreed that if Beier's version of the facts is credited, (1) no reasonable officer could believe that he possessed sufficient knowledge regarding the terms of the protection order to establish probable cause that it had been violated; and (2) under the circumstances, a reasonable officer would have, at minimum, consulted a copy of the order to ascertain its terms and thereby determine whether a violation had occurred. The district court therefore concluded that the officers were not entitled to prevail on summary judgment on their qualified immunity defense.


A district court's denial of qualified immunity is an appealable final decision within the meaning of 8 U.S.C. § 1291 to the extent it turns on a question of law. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Even where disputed issues of fact remain, an appellate court may review the qualified immunity ruling by taking the facts in the light most favorable to the non-moving party. See Jeffers v. Gomez, 267 F.3d 895, 905-06 (9th Cir. 2001).

Beier contends, however, that this is not the usual qualified immunity appeal, because the officers must stand trial on his Fourth Amendment excessive force claim in any case. The two Fourth Amendment claims are so closely related, Beier maintains, that they are not separable for purposes of the collateral order doctrine. 5

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We reject this contention. Although an excessive force claim is subject to a "reasonableness" standard under the Fourth Amendment as is a false arrest claim, the two claims require quite different inquiries. See, e.g., Barlow v. Ground, 943 F.2d 1132, 1135-36 (9th Cir. 1991) (considering unlawful arrest and excessive force claims separately). To evaluate an excessive force claim, we consider "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To evaluate whether the police had probable cause to make an arrest, in contrast, we consider the nature and...

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