Borgman v. Kedley

• Decision Date: 19 July 2011
• Docket Number: No. 10–3272.,10–3272.
• Citation: 646 F.3d 518
• Parties: Jody BORGMAN, Plaintiff–Appellant,v.Ryan KEDLEY; Wild Rose Clinton, L.L.C., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

646 F.3d 518

Jody BORGMAN, Plaintiff–Appellant,

v.Ryan KEDLEY; Wild Rose Clinton, L.L.C., Defendants–Appellees.

No. 10–3272.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2011.Filed: July 19, 2011.

Erie D. Johnson, argued, Stephen T. Fieweger, on the brief, Moline, IL, for appellant.Patrick McNulty, argued, James W. Bryan, on the brief, Des Moines, IA, for appellee Wild Rose Clinton, L.L.C. Jeffrey C. Peterzalek, AAG, argued, Des Moines, IA, for appellee Ryan Kedley.Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,¹District Judge.MURPHY, Circuit Judge.

Ryan Kedley, an agent of the Iowa Division of Criminal Investigation, arrested Jody Borgman for trespass when she entered the Wild Rose Casino after having signed two voluntary exclusion forms at the casino's predecessor establishment. After the charge against her was dropped, Borgman brought this action against Kedley and the Wild Rose Casino, alleging violations of her constitutional rights under 42 U.S.C. § 1983 as well as state law claims for false arrest and imprisonment. The district court ² granted summary judgment to Kedley and the casino, and Borgman appeals. We affirm.

I.

In October 2002, Borgman voluntarily barred herself from entering a river boat casino in Iowa named the Mississippi Belle II Casino (Mississippi Belle) by signing a lifetime self exclusion form. The Mississippi Belle had created the self exclusion form that was signed by Borgman to comply with an Iowa regulatory requirement that casinos “adopt and implement policies and procedures designed to ... [a]llow persons to be voluntarily excluded for life from all facilities.” Iowa Admin. Code r. 491–5.4(12). The regulations also required casinos to have “[p]rocedures for preventing reentry of problem gamblers.” Id. The Mississippi Belle's voluntary exclusion form provided:

I am barring myself from the Mississippi Belle II Casino, Clinton Ia. I understand that this barrment is irrevocable. I hereby release, indemnify and hold Mississippi Belle II Casino and it's [sic] agents, officers, directors and employees [harmless] from any claims, causes of action or liability of any kind arising from this request.... I further understand that if I am found on the properties of the Mississippi Belle II Casino, Clinton, Iowa, I may be considered a trespasser set out in Chapter 716.7 of the State Code of Iowa and subject to the penalties as provided by law.

Borgman returned to the Mississippi Belle casino on June 29, 2005, and won a jackpot for approximately $1,400. This attracted the attention of casino employees who approached Borgman and showed her signed 2002 self exclusion form to her. Borgman asked if she could undo the exclusion, and she was told that she could not. Casino employees asked her to sign a new self exclusion form in order to receive her winnings. She agreed to do so, received her jackpot, and left the premises. The new self exclusion form signed by Borgman generally included similar terms to the original form.

Despite the fact that the form required Borgman to certify that she had “taken the time to read and understand” its terms and agree that she was “legally bound” by it, Borgman testified that she had not actually read the new form before signing it. The form provided that if Borgman entered the casino, she “may be arrested and prosecuted for trespassing and other violations of criminal law.” It also contained a release, which indicated that it applied to the casino and “ all of its ... assigns.”

I, for myself, my family members, heirs, and legal representatives hereby release and forever discharge the Casino and all of its ... assigns ... from any and all claims in law or equity that I now have or may have in the future against any or all of the Released Parties arising out of, or by reason of, the performance or non-performance of this Self–Exclusion Request, or any other matter relating to it....

In 2006, the Wild Rose Clinton, L.L.C. purchased the assets and properties of the Mississippi Belle and assumed a number of its liabilities. The purchase agreement between the parties assigned to Wild Rose Clinton “[a]ll books, files, documents and records of any type, and in any format relating to the operation of the Business.” The Wild Rose Clinton then closed the Mississippi Belle riverboat casino and reopened it as the Wild Rose Casino (Wild Rose) on land in June 2008.

The Wild Rose installed a new database system to record problem gamblers on a computerized list before reopening in June 2008, but it did not enter voluntary self exclusion forms like those Borgman had signed into that system until sometime between August and September 2008. The Wild Rose also created a procedure for casino staff to follow when any banned individual entered the casino. Floor employees were to contact casino security personnel if a person on the computerized list tried to cash a check. Casino security was then to check the person's name against statewide and property specific trespass lists. If the name appeared on one of the lists, a casino manager was to approach her, properly identify her, and escort her to the security office to be readvised of her excluded status.

In August 2008, Borgman cashed several checks at the Wild Rose, but on those occasions she was not identified as an excluded person because the Wild Rose's database had not yet been fully updated. On September 26, 2008, Borgman attempted to cash another check at the casino. This time her name came up on the computerized list as a trespasser to the property. A security supervisor located the self exclusion forms Borgman had signed in 2002 and 2005 and approached her on the casino floor.

The security supervisor requested Borgman's license and, after confirming her identification, advised her that she was barred from the casino. He asked that she go with him to sign a form readvising her that she was barred from the casino. Borgman refused, stating that she had cashed checks there before and that she had not signed an exclusion form for the Wild Rose. The security supervisor told her that the Mississippi Belle exclusion carried over and applied to the Wild Rose. He again asked her to sign a readvisement form, and Borgman again refused.

The security supervisor used a radio to call Kedley about the incident with Borgman. Kedley was an agent of the Iowa Division of Criminal Investigation who was stationed at the casino by the state; he was not a casino employee. Kedley went out on the casino floor where he was briefed on what had occurred and given the 2005 self exclusion form previously signed by Borgman. Security staff had previously informed him that the forms were applicable at the new casino.

After Kedley was briefed on the situation, he asked Borgman to sign a readvisement form or be faced with an arrest for trespass. Because she had been excluded from the casino, Kedley testified that he told her that “[h]er options were to accompany [him] to sign a re-advisement form ... or she would be charged with criminal trespass.” Borgman asked that he return her license and checks instead. She said that she would leave the casino and not come back. Kedley told her that he could not let her go, saying “right now you're breaking the law, ma‘am, because you are on a property that you're not supposed to be at.” When she again refused to sign the form, he asked her to accompany him outside, where he placed her under arrest for trespassing and interference with official acts. Borgman was taken to jail and stayed there for about two hours until she made bail. She was charged with a simple misdemeanor for criminal trespass in violation of Iowa Code § 716.7. The county attorney dismissed the charge before the case went to trial.

Borgman filed this action against agent Kedley and the Wild Rose Clinton, alleging that they both had violated her First, Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 when they acted in concert to have her arrested without probable cause. Borgman also claimed that both Kedley and the Wild Rose violated state law by falsely arresting and imprisoning her. The district court determined that Borgman had abandoned her false arrest and imprisonment claim against Kedley, a conclusion that she does not appeal.

The district court granted summary judgment in favor of Kedley and the Wild Rose, concluding that Kedley was entitled to qualified immunity because he had an objectively reasonable belief that Borgman was trespassing and that the Wild Rose had been released from any liability. Borgman appeals, arguing that Kedley is not entitled to qualified immunity for his Fourth and Fourteenth Amendment violations and that the Wild Rose was not released from liability.

II.

Borgman appeals the district court's determination that Kedley was entitled to qualified immunity for her Fourth and Fourteenth Amendment claims. We review de novo a grant of summary judgment on the basis of qualified immunity, viewing the evidence in the light most favorable to Borgman. Amrine v. Brooks et al., 522 F.3d 823, 830–31 (8th Cir.2008).

Qualified immunity protects police officers from civil liability for any action that does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Young v. Selk, 508 F.3d 868, 871 (8th Cir.2007) (citation omitted). The immunity allows “officers to make reasonable errors,” Habiger v. City of Fargo et al., 80 F.3d 289, 295 (8th Cir.1996), and provides “ample room for mistaken judgments.” Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The defense protects public officials unless they are “plainly incompetent” or “knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (citation omitted). When determining whether a state official is entitled to qualified immunity, we decide whether the alleged facts demonstrate that his conduct...