Peak Alarm Co. Inc. v. Salt Lake City Corp.

Decision Date28 June 2010
Docket NumberNo. 20080918.,20080918.
PartiesPEAK ALARM COMPANY, INC., a Utah corporation; Jerry D. Howe, an individual; and Michael Jeffrey Howe, an individual, Plaintiffs and Appellants, v. SALT LAKE CITY CORPORATION, a Utah municipal corporation; Shanna Werner, an individual; Charles F. "Rick" Dinse, an individual; Scott Atkinson, an individual; James Bryant, an individual; and John Does I-X, individuals, Defendants and Appellees.
CourtUtah Supreme Court

Kenneth A. Okazaki, Stephen C. Clark, Arthur Fine, Kathleen E. McDonald, Salt Lake City, for plaintiffs.

J. Wesley Robinson, Salt Lake City, for defendants.

DURHAM, Chief Justice:


¶ 1 This case began with a telephone call for police assistance by a private alarm company. In time, this single call led to a misdemeanor prosecution and then this civil lawsuit. The call was made after a number of teenage girls set off burglar alarms at a Salt Lake City high school. Salt Lake City police concluded the caller, Michael Jeffrey Howe, violated a state statute criminalizing the making of a false alarm and charged him accordingly. Mr. Howe stated in the call that a Peak Alarm security guard had verified the break in. In reality it was a school employee who had confirmed the alarm and requested the alarm company summon police. The single-count criminal prosecution concluded with a directed verdict in Mr. Howe's favor in the Salt Lake City JusticeCourt. Following the acquittal, Mr. Howe sued Salt Lake City along with several police department employees and administrators.

¶ 2 This appeal concerns that civil litigation. Mr. Howe alleges the district court committed reversible error in ruling on three motions. First, Mr. Howe challenges the district court's rejection of his motion for partial summary judgment. Mr. Howe attempted to use the directed verdict in his criminal prosecution as a predicate for summary judgment on the issue of probable cause, which was part of several of his claims. The district court concluded that the directed verdict and surrounding circumstances failed to prove police acted without probable cause in charging Mr. Howe. Second, Mr. Howe asserts the district court erred in dismissing his state claims when it granted Salt Lake City's motion for summary judgment based on procedural requirements imposed by the Utah Governmental Immunity Act (UGIA). Finally, Mr. Howe argues the district court erred in granting Salt Lake City's motion for summary judgment on his claims of civil rights violations arising under federal law. In all, the district court dismissed seven independent claims arising in federal law on the basis of qualified immunity, pleading errors by Mr. Howe, and deficiencies in connecting Salt Lake City and several supervisors to any constitutional deprivation by individual officers and employees.

¶ 3 We affirm the district court's holding that the directed verdict in Mr. Howe's criminal trial is not conclusive evidence that the city acted without probable cause. Also, the district court correctly rejected Mr. Howe's alternative argument by holding that all the facts before the court did not prove Salt Lake City acted without probable cause. However, we reverse the district court's grant of summary judgment in favor of Salt Lake City on Mr. Howe's state law claims. Summary judgment arising under the UGIA was in error because Mr. Howe provided a sufficient and timely notice of claims. As to Mr. Howe's federal claims alleging civil rights violations, the district court erred in dismissing Mr. Howe's Fourth Amendment seizure claim because Mr. Howe presented facts that supported a claim that an unlawful seizure did occur and that officers lacked probable cause to support the seizure. We affirm the district court's dismissal of Mr. Howe's remaining six civil rights claims.


¶ 4 While this civil case is based on the events surrounding Mr. Howe's call to police on June 27, 2003, Mr. Howe alleges his prosecution was rooted in a long-standing acrimonious relationship between Peak Alarm and the Salt Lake City Police Department. The hostility, Mr. Howe alleges, began years earlier as the police department grew concerned over resources expended in responding to false alarms reported by private alarm companies. In response to police complaints that calls from private security firms were a waste of police resources, Salt Lake City officials enacted the verified response ordinance in December 2000. The ordinance precludes a police response to an "intrusion" alarm reported by a private security company without on-site verification from an alarm company employee. Salt Lake City Ordinance 5.08.095.

¶ 5 In addition to instituting the verified response policy within Salt Lake City, Shanna Werner, the department's alarm administrator, was occasionally quoted in trade publications as well as local and national media reports about the city's efforts to manage alarm company calls. Ms. Werner also spoke to city officials in other Utah communities about the program. As part of her public comments on the issue, Ms. Werner criticized the alarm industry as earning profits without providing any services, wasting public resources, and for preying on the fears of potential customers. Mr. Howe became part of this public debate as well. Most notably, in 2003 he became chair of a committee formed by the Utah Alarm Associationto lobby against the adoption of the verified response policy by other cities in Utah.


¶ 6 In the early morning hours of June 27, 2003, the lunchroom staff arrived at West High School and began preparing meals for a summer lunch program. A supervisor turned off the security alarm in the lunchroom, cafeteria, and an adjacent hallway. She left the motion-activated alarms on in the rest of the school. Shortly before 9 a.m. the still-activated alarms went off. Two staff members reported two girls had entered the school and gone up to the second level. The supervisor called Peak Alarm. She asked Peak Alarm to send police because she "wanted to make sure [the girls] weren't up to some mischief" and no one on the lunchroom staff was "trained to deal with intruders." In an affidavit submitted in this case, the supervisor stated police never questioned her about the girls and what transpired in the school, but focused only on the information she gave to Peak Alarm.

¶ 7 Following a telephone conversation with the supervisor, a Peak Alarm employee called the Salt Lake City Police dispatch and requested police respond to a "burglar alarm." The police dispatcher refused to send officers to the school and added police would only be sent after school employees "called us from the school and asked us to help remove them." The Peak Alarm employee's subsequent attempts to contact the supervisor and other school officials were unsuccessful. The Peak Alarm employee apprised Mr. Howe, who was the alarm company's central station manager, of the situation. Mr. Howe then called police dispatch himself. The following conversation ensued:

Mr. Howe: Hey, we have an actual burglar alarm going off at West High, and I guess my dispatcher just called up and said you guys weren't going to go on an actual burglar alarm?
Police dispatch: No, we don't go on burglar-we haven't gone on burglar alarms for two years.
Mr. Howe: This is an actual burglary in progress, it's been verified.
Police dispatch: No, [the Peak Alarm employee] didn't say that, she said it was an alarm.
Mr. Howe: ... We actually have people inside and my guard is asking for police assistance.
Police dispatch: Okay, that's what I needed.
Police dispatch: Okay, and how many, how many?
Mr. Howe: They said two or three kids.
Police dispatch: Where at?
Mr. Howe: Didn't get that information just the alarm's coming from the second floor, but they're running throughout the whole building.
Police dispatch: And where do we meet your guard at?
Mr. Howe: Just in front of the school.
Police dispatch: Is he in uniform or she?
Mr. Howe: Yes, he is.

¶ 8 Over the course of the day, there were a number of additional conversations between Mr. Howe and dispatchers and a police officer to clarify what information had been conveyed to Peak Alarm, whether this was a panic alarm or a burglary alarm, and the status of the security guard. In these subsequent conversations, Mr. Howe readily acknowledged that he had assumed that a security guard from Peak Alarm had confirmed the unauthorized entry and that it was the guard who had requested police assistance. The most significant of these later conversations came in two interviews conducted by Salt Lake City Police Officer Shaun Wihongi. In the first interview, Officer Wihongi reported Mr. Howe claimed he was led "tobelieve" the school employees "were in imminent danger" and he was unhappy that police refused to go to the scene after the initial call for police assistance. When asked why he made the specific statements about the security guard, Mr. Howe told Officer Wihongi, "[W]hatever it takes, I thought this was a panic alarm." In the second interview-which Officer Wihongi recorded-Mr. Howe reiterated that he believed school employees were in danger because "they had unauthorized people within the building that should not have been in there.... [S]omeone's life could potentially be in danger." Mr. Howe also stated, "If we're even charged for a false alarm, I don't care. I was just-hey, charge us if you have to, we'll be glad to pay it."


¶ 9 Over the next few weeks, Mr. Howe attempted to contact Ms. Werner to discuss the police response to the high school. Ms. Werner did not return Mr. Howe's calls and felt "listening to more rhetoric was unnecessary." It wasn't until July 14, 2003, when Sgt. James Bryant met with Ms. Werner, that police began considering criminal charges against Mr. Howe. In...

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