Gonzales v. City of Bozeman, DA 08-0566.

• Decision Date: 24 August 2009
• Docket Number: No. DA 08-0566.,DA 08-0566.
• Parties: Leah GONZALES, Plaintiff and Appellant, v. CITY OF BOZEMAN, Montana; Bozeman Police Department; Kaycee Anderson, Greg Megargel, Gallatin County, Montana; Gallatin County Sheriff's Department; Jake Wagner and Don Peterson, and the Gallatin County 911 Communications Department, Defendants and Appellees.
• Court: Montana Supreme Court

217 P.3d 487

2009 MT 277

352 Mont. 145

Leah GONZALES, Plaintiff and Appellant, v. CITY OF BOZEMAN, Montana; Bozeman Police Department; Kaycee Anderson, Greg Megargel, Gallatin County, Montana; Gallatin County Sheriff's Department; Jake Wagner and Don Peterson, and the Gallatin County 911 Communications Department, Defendants and Appellees.

No. DA 08-0566.

Supreme Court of Montana.

Argued May 4, 2009.

Submitted May 20, 2009.

Decided August 24, 2009.

Rehearing Denied October 6, 2009.

For Appellant: Jennifer Wendt Bordy, P.C. (argued); Attorney at Law, Bozeman, Montana.

For Appellees: Harlan B. Krogh (argued); Crist, Krogh & Nord, LLC, Billings, Montana (for City of Bozeman and Bozeman Police Department); Pamela D. Bucy; Luxan & Murfitt, Helena, Montana (for Kaycee Anderson and Greg Megargel); Steven R. Milch; Crowley Fleck, PLLP, Billings, Montana (for Gallatin County, Montana; Gallatin County Sheriff's Department; Jake Wagner; Don Peterson and Gallatin County 911).

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Leah Gonzales appeals from the July 30, 2008, orders of the District Court of the Eighteenth Judicial District Court, Gallatin County, granting summary judgment to the defendants. We affirm.

¶ 2 Gonzales raises several issues on appeal that we restate as follows:

¶ 3 Issue One: Whether the District Court properly concluded that the public duty doctrine bars Gonzales' claims.

¶ 4 Issue Two: Whether Gonzales was unlawfully arrested.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 On the evening of April 3, 2005, Gonzales was the lone clerk at a Town Pump store on East Main Street in Bozeman, Montana. At 9:55 p.m. a man later identified as transient Jose Mario Gonzalez-Menjivar entered the store wearing a ski cap. He held a knife to Gonzales' throat and demanded money. Gonzales was able to surreptitiously dial 911 on her cell phone shortly after Menjivar entered the store but could not talk to anyone and never knew whether the call went through. In the meanwhile, Gonzales began removing money from the safe, which was limited by a security device to dispensing $100 every two or three minutes.

¶ 6 Gonzales' 911 call did go through to Gallatin County dispatch, and dispatchers heard enough on the open line to understand that there was a robbery in progress somewhere. Dispatch notified Bozeman Police that there was a robbery in progress somewhere in the city, and officers began checking open businesses. Meanwhile, dispatchers worked quickly to identify the location of the robbery. They used a law enforcement database called I/LEADS to determine that the call had been made from a cell phone number registered to Gonzales, and that her last known employment was a Town Pump. The system gave the telephone number of the Town Pump store where Gonzales was last known to work, but not its address. Dispatcher Pickering used a phone book to match the phone number in the I/LEADS system to the Town Pump on East Main Street. She "screamed it's the East Main Town Pump, turned around and highfived the chaplain" and notified officers of the probable location of the crime.

¶ 7 Officers responded to the East Main Town Pump and saw that the business was dark and appeared to be closed. Sgt. Megargel directed responding officers to begin establishing a perimeter around the building. An officer approached the building and determined that one of the doors was unlocked and then retreated, while other Bozeman Police and Gallatin County Sheriff's Department officers arrived. Officers approached the building again, saw a man inside wearing a hooded sweatshirt, and then withdrew to the perimeter. Officers saw shadowy figures of two people inside the store.

¶ 8 In the meanwhile, Menjivar had picked up Gonzales' cell phone from the counter and closed it, cutting off the connection with the dispatchers. Their calls back to Gonzales' cell phone were not answered. Dispatchers called the land line for the Town Pump store, and when the phone rang Menjivar picked it up, inadvertently pressed a "talk" command and placed the phone in his pocket. This left the line open. Dispatchers discerned a male and a female voice, but had difficulty hearing what was happening because the phone was in Menjivar's pocket.

¶ 9 At 10:12, Menjivar forced Gonzales into a restroom and during the next four minutes, raped her. Neither the dispatchers nor the officers at the scene knew that this was happening. The dispatchers testified that they would have immediately notified the officers if there had been any indication that Gonzales was being raped.

¶ 10 Sgt. Megargel believed that there could be a barricaded suspect with a hostage in the Town Pump. He requested a K-9 dog team and special response team. Menjivar and Gonzales left the bathroom and Gonzales continued to obtain money from the safe. The officers had not yet announced their presence at the scene. During the event Menjivar repeatedly threatened Gonzales with death and continued to hold a knife on her.

¶ 11 During these events the responding officers knew there were two people in the Town Pump but never knew whether there were more than two. From time to time they could see "shadows moving" in the dark building. Dispatch informed officers that there was a transient camp near the store and that persons from the camp could be inside the store. Officers investigated another report of a person moving on foot through the area who turned out to be a jogger. Officers did not know how many perpetrators or victims were involved or how any perpetrators were armed.

¶ 12 Menjivar left the store at 10:28 and was immediately arrested outside. Officers then shouted commands demanding that anyone else in the store come out. The deputy with the K-9 dog gave commands for anyone inside to come out or he would release the dog. Gonzales then came out of the store barefoot and wearing a Town Pump apron. She testified that officers directed her to show her hands and to lie on the ground and that she complied. Officer Kaycee Anderson, one of the defendants, handcuffed Gonzales and performed a pat-down search during which Gonzales said that she had been raped. Anderson immediately got Gonzales to her feet and walked her to a safe location at a police car and removed the handcuffs. Anderson asked Gonzales if she needed an ambulance, and Gonzales said that she did not because she was not hurt. Anderson drove Gonzales to the hospital for treatment. Gonzales confirmed Anderson's description of these events and testified that she was on the ground in handcuffs for about 30 seconds. Neither Menjivar nor Gonzales knew that law enforcement officers were on the scene prior to leaving the store.

¶ 13 While Anderson was dealing with Gonzales officers were moving in to secure the building, giving commands for anyone else to come out of the store. They secured the building without finding anyone else inside. Officers did not know that Gonzales had been raped until she came out and told Anderson.

¶ 14 Officers did not know that Gonzales was the female voice that had been heard by dispatchers in the store until she came out and was identified by Anderson based upon a prior contact. Anderson knew from the prior contact that Gonzales was pregnant, but there was no evidence that any of the other officers knew this or that they could determine the pregnancy from Gonzales' appearance.

¶ 15 While Officer Anderson suspected when Gonzales came out that she was the clerk in the store, officers could not immediately confirm this and the building was not yet secured. Sgt. Megargel explained why the officers at the scene could not assume that Gonzales was the victim in sole reliance on the information from dispatch that they had heard two voices:

Based on my training and experience in my almost 13 years of law enforcement, I could see why—we can't make assumptions. I mean, that what they told us that there was. But until I see what there is and until I know what there is, you know, I could assume in the back of my mind that the information is accurate and correct, but I would be doing myself an injustice to assume that there was only two people, and one male and one female. That would put me at risk, that would put my shift at risk, that would put the citizens at risk, it would put the victim at risk and it will put the suspect at risk. We didn't assume anything.

Therefore, they secured Gonzales and confirmed her identity and status as quickly as possible (about 30 seconds) after she came out of the store.

¶ 16 Gonzales sued Bozeman and Gallatin County law enforcement agencies, several officers individually, and Town Pump. The government defendants removed the action to United States District Court, where the court granted their motions for summary judgment and dismissed all of the claims brought under 42 U.S.C. § 1983. Gonzales then re-filed the action in state court and settled with Town Pump. The District Court granted summary judgment to the Bozeman and Gallatin County defendants and Gonzales appeals.

¶ 17 Menjivar was charged with and pled guilty to rape, robbery and aggravated kidnapping. In March, 2006, he was sentenced to a term of 180 years in the Montana State Prison.

STANDARD OF REVIEW

¶ 18 This Court reviews de novo a district court's decisions on summary judgment, applying the same criteria as the district court, found in M.R. Civ. P. 56. Watson v. Dundas, 2006 MT 104, ¶ 16, 332 Mont. 164, 136 P.3d 973.

DISCUSSION

¶ 19 Gonzales claims that the Bozeman and Gallatin County defendants negligently responded to the situation at the Town Pump, allowing Menjivar to rape her and that they then improperly arrested her when she came out of the store. A negligence claim depends upon establishment of a legal duty on the part of the defendant, breach of that duty, causation, and damages. Lopez v. Great Falls Pre-Release Services, 1999 MT 199, ¶ 18, 295 Mont. 416, 986 P.2d 1081. Determination of the existence of a duty is...