Waldron v. Roark , 298 Neb. 26 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2017 09:13 AM CDT
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298 Nebraska R eports
WALDRON v. ROARK
Cite as 298 Neb. 26M arilyn Waldron, appellant, v. Lancaster County
Deputy Sheriff James Roark, individually
and in his official capacity, appellee.
___ N.W.2d ___
Filed October 13, 2017. No. S-16-676.
1. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
2. Summary Judgment: Immunity. When a defendant asserts qualified
immunity at the summary judgment stage, the plaintiff must produce
evidence sufficient to create a genuine issue of fact regarding whether
the defendant violated clearly established law.
3. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose no genuine issue regard-
ing any material fact or the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
4. ____. In the summary judgment context, a fact is material only if it
would affect the outcome of the case. If a genuine issue of material fact
exists, summary judgment may not properly be entered.
5. Immunity. Those entitled to qualified immunity hold more than a mere
defense to liability; they hold an entitlement not to stand trial or face the
other burdens of litigation.
6. ____. If a case is erroneously permitted to go to trial, then qualified
immunity is effectively lost.
7. Immunity: Public Officers and Employees. Qualified immunity
shields federal and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a statutory or consti-
tutional right and (2) that the right was clearly established at the time of
the challenged conduct.
8. ____: ____. In evaluating whether the right to qualified immunity
was clearly established, the question is not whether the very action in
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Cite as 298 Neb. 26question has previously been held unlawful, but whether the contours of
the right were sufficiently clear at the time of the challenged conduct
that every reasonable official would have understood that the challenged
conduct violates that right.
9. Immunity. In a qualified immunity analysis, the dispositive question is
whether the violative nature of particular conduct is clearly established.
This inquiry must be undertaken in light of the specific context of the
case, not as a broad general proposition.
10. Immunity: Public Officers and Employees. The clearly established
standard gives government officials breathing room to make reasonable
but mistaken judgments by protecting all but the plainly incompetent or
those who knowingly violate the law.
11. ____: ____. Even if a public official has engaged in unlawful conduct,
the clearly established prong of the qualified immunity analysis protects
him or her from suit so long as the official reasonably believed such
conduct to be lawful.
12. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. Under certain circumstances, an officer’s unannounced entry
into a home might be unreasonable under the Fourth Amendment.
13. ____: ____: ____. The Fourth Amendment’s flexible requirement of rea-
sonableness should not be read to mandate a rigid rule of announcement
that ignores countervailing law enforcement interests.
14. Police Officers and Sheriffs: Search and Seizure: Words and
Phrases. In order to justify a no-knock entry, the police must have
a reasonable suspicion that knocking and announcing their presence,
under the particular circumstances, would be dangerous or futile or that
it would inhibit the effective investigation of the crime, for example by
allowing the destruction of evidence.
15. Police Officers and Sheriffs: Search and Seizure. Police must have a
reasonable suspicion under the particular circumstances that one of the
grounds for failing to knock and announce exists, and this showing is
not high.
16. Immunity. Courts have discretion to decide which of the two prongs of
qualified immunity analysis to tackle first.
17. Immunity: Police Officers and Sheriffs. The dispositive inquiry in
determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his or her conduct was unlawful in the
situation he or she confronted.
18. Police Officers and Sheriffs: Arrests: Words and Phrases. Reasonable
force, which may be used by an officer making an arrest, is generally
considered to be that which an ordinarily prudent and intelligent person,
with the knowledge and in the situation of the arresting officer, would
deem necessary under the circumstances.
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Cite as 298 Neb. 2619. Police Officers and Sheriffs: Arrests. The inquiry into the reasonable-
ness of a use of force assesses reasonableness at the moment of the use
of force, as judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.
20. Constitutional Law: Civil Rights: Municipal Corporations.
Municipalities can be sued directly under 42 U.S.C. § 1983 (2012) for
monetary, declaratory, or injunctive relief where the action alleged to be
unconstitutional implements or executes a policy statement or custom of
the municipality.
21. Civil Rights: Municipal Corporations: Employer and Employee:
Liability. A municipality cannot be held liable under 42 U.S.C. § 1983(2012) on a respondeat superior theory.
22. Civil Rights: Public Officers and Employees. The government as an
entity is responsible under 42 U.S.C. § 1983 (2012), when execution of
its policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts
the injury.
23. Summary Judgment. Conclusions based upon guess, speculation, con-
jecture, or a choice of possibilities do not create material issues of fact
for purposes of summary judgment.
24. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Vincent M. Powers, of Vincent M. Powers and Associates,
for appellant.
Joe Kelly, Lancaster County Attorney, David A. Derbin and
Ryan M. Swaroff for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Per Curiam.
I. INTRODUCTION
Marilyn Waldron brought this action pursuant to 42 U.S.C.
§ 1983 (2012), alleging a violation of her Fourth Amendment
rights by Lancaster County Deputy Sheriff James Roark when
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Cite as 298 Neb. 26he entered Waldron’s home to serve a warrant on Waldron’s
grandson, Steven Copple. Waldron argues that in doing so,
Roark violated the knock-and-announce rule. Waldron also
argues that her arrest was unreasonable and unconstitutional
because there was no probable cause to arrest her and because
Roark used excessive force in handcuffing her.
In Waldron v. Roark (Waldron I),1 we found that material
issues of fact existed as to Waldron’s knock-and-announce
and excessive force claims and remanded the cause. On
remand, following additional argument on the issues of quali-
fied immunity and sovereign immunity, the district court
again granted Roark’s motion for summary judgment, on
the basis that Roark was entitled to qualified immunity. In
this appeal, we now analyze Waldron’s claims within the
framework of the affirmative defense of qualified immunity.
Because we find that Waldron did not meet the burden of
showing that Roark violated a clearly established right in any
of Waldron’s claims, we affirm the district court’s grant of
qualified immunity.
II. BACKGROUND
In September 2013, Waldron filed a complaint against
Roark, alleging that Roark violated Waldron’s civil rights
under § 1983, resulting in her injuries. Forming the basis of
this action are the events that happened on February 22, 2012,
when Roark and his partner, Lancaster County Deputy Sheriff
Amanda May, went to Waldron’s home to serve an arrest war-
rant on Copple. The specific allegations regarding what hap-
pened during this event are set forth in more detail in Waldron I
and are discussed further in the analysis section below.
In November 2014, Roark filed a motion for summary
judgment. In December 2014, Waldron filed an amended com-
plaint against Roark, in his individual and official capacities.
The district court eventually granted the motion for summary
judgment, finding as a matter of law that the deputies’ entry
1
Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).
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Cite as 298 Neb. 26into Waldron’s home was proper, that Waldron obstructed the
work of the deputies, and that Roark’s use of force was objec-
tively reasonable.
On appeal in Waldron I, we reversed the district court’s order
and remanded the cause for further proceedings. We held that
summary judgment on Waldron’s § 1983 Fourth Amendment
claim was not proper because there were issues of material fact
as to (1) whether Roark properly displayed notice of his office
or authority when he entered Waldron’s home, (2) whether
Roark’s entry was reasonable, and (3) whether the force Roark
used was excessive.
Following the issuance of our opinion in Waldron I, the par-
ties again addressed Roark’s motion for summary judgment. In
its second order granting the motion, the district court found
that Roark was entitled to qualified immunity and that the
record was sufficiently developed to render a separate trial or
evidentiary hearing unnecessary. The court specifically found
that (1) Roark was entitled to qualified immunity on Waldron’s
knock-and-announce claim because sufficient exigent circum-
stances existed from Roark’s perspective to warrant his entry
without a proper announcement, (2) Roark was entitled to
qualified immunity on the excessive force claim because (a)
Roark had probable cause to arrest Waldron and (b) Waldron’s
right to be free of excessive force was not clearly estab-
lished, and (3) Roark was entitled to judgment in his favor
as to Waldron’s claims against him in his official capacity.
Waldron appeals.
III. ASSIGNMENTS OF ERROR
Waldron assigns, restated and consolidated, that the district
court erred in finding that (1) Roark was entitled to qualified
immunity on Waldron’s knock-and-announce claim, (2) Roark
was entitled to qualified immunity on Waldron’s unlawful arrest
claim because (a) Roark had probable cause to arrest Waldron
and (b) Waldron’s “right to be free of the excessive force used
by . . . Roark was not clearly established,” (3) there was no
evidence to support Waldron’s claim that a policy or custom
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Cite as 298 Neb. 26of Lancaster County caused her damages, and (4) Roark was
entitled to summary judgment in his official capacity.
IV. STANDARD OF REVIEW
[1,2] We review the district court’s grant of summary judg-
ment de novo, viewing the record in the light most favorable to
the nonmoving party and drawing all reasonable inferences in
that party’s favor.2 When a defendant asserts qualified immu-
nity at the summary judgment stage, the plaintiff must produce
evidence sufficient to create a genuine issue of fact regarding
whether the defendant violated clearly established law.3
V. ANALYSIS
[3,4] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.4 In the summary judgment
context, a fact is material only if it would affect the outcome
of the case.5 If a genuine issue of material fact exists, summary
judgment may not properly be entered.6
1. Qualified Immunity
[5,6] Both the U.S. Supreme Court and the Eighth Circuit
Court of Appeals have repeatedly “‘“stressed the importance
of resolving immunity questions at the earliest possible stage
in litigation.”’”7 This is because those entitled to qualified
2
Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).
3
Id.4
Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).
5
O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731(2014).
6
Id.7
O’Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir. 2007)
(quoting Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272(2001)). Accord Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 116 L. Ed.
2d 589 (1991) (per curiam).
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Cite as 298 Neb. 26i­mmunity hold more than a mere defense to liability; they
“hold ‘an entitlement not to stand trial or face the other bur-
dens of litigation.’”8 If a case is erroneously permitted to go to
trial, then qualified immunity is effectively lost.9
[7-11] Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts show-
ing (1) that the official violated a statutory or constitutional
right and (2) that the right was “‘clearly established’ at the
time of the challenged conduct.”10 In evaluating whether the
right was “clearly established,” the question is not whether
the very action in question has previously been held unlawful,
but whether “‘[t]he contours of [the] right [were] sufficiently
clear’” at the time of the challenged conduct that “every ‘rea-
sonable official would [have understood] that [the challenged
conduct] violates that right.’”11 A case does not need to be
directly on point, but existing precedent must have placed the
constitutional question beyond debate.12 The dispositive ques-
tion is “whether the violative nature of particular conduct is
clearly established.”13 This inquiry “‘“must be undertaken in
light of the specific context of the case, not as a broad gen-
eral proposition.”’”14 Put frankly, plaintiffs in a § 1983 action
have a steep burden of showing that a right is clearly estab-
lished.15 The “‘clearly established’” standard “‘gives govern-
ment officials breathing room to make reasonable but mistaken
8
Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed.
2d 411 (1985)).
9
Id.10
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d
1149 (2011).
11
Id. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034,
97 L. Ed. 2d 523 (1987)).
12
Ashcroft v. al-Kidd, supra note 10.
13
Id., 563 U.S. at 742 (emphasis supplied).
14
Mullenix v. Luna, ___ U.S. ___, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255(2015).
15
See Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
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Cite as 298 Neb. 26judgments’ by ‘protect[ing] all but the plainly incompetent or
those who knowingly violate the law.’”16 Even if a public offi-
cial has engaged in unlawful conduct, the clearly established
prong of the qualified immunity analysis protects him or her
from suit so long as the official reasonably believed such con-
duct to be lawful.17 If a reasonable official could have believed
the conduct was lawful, the official’s conduct does not violate
clearly established law.18
First, we address whether Roark is entitled to qualified
immunity on Waldron’s knock-and-announce claim.
(a) Waldron’s Knock-and-Announce Claim
[12] The Fourth Amendment protects “[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures . . . .”19 Among the
factors to be considered in assessing the reasonableness of a
search or seizure is the “method of an officer’s entry into a
dwelling.”20 Under certain circumstances, “an officer’s unan-
nounced entry into a home might be unreasonable under the
Fourth Amendment.”21 The rule that officers should knock
and announce their purpose and be denied admittance prior
to entering a dwelling has been codified in Neb. Rev. Stat.
§ 29-411 (Reissue 2016).22
[13] The U.S. Supreme Court has made clear that not every
entry must be preceded by an announcement.23 “The Fourth
Amendment’s flexible requirement of reasonableness should
16
City and County of San Francisco v. Sheehan, ___ U.S. ___, 135 S. Ct.
1765, 1774, 191 L. Ed. 2d 856 (2015).
17
See Anderson v. Creighton, supra note 11.
18
Id.19
U.S. Const. amend. IV.
20
Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 131 L. Ed. 2d 976(1995).
21
Id.22
State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
23
Wilson v. Arkansas, supra note 20.
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Cite as 298 Neb. 26not be read to mandate a rigid rule of announcement that
ignores countervailing law enforcement interests.”24 “[I]f cir-
cumstances support a reasonable suspicion of exigency when
the officers arrive at the door, they may go straight in.”25
We view the evidence surrounding Roark’s entry into
Waldron’s home in the light most favorable to Waldron.
According to Waldron, she “cautiously opened the door” and
immediately noticed that “people were pushing on it.” Waldron
claims that she tried to, but could not, hold the door closed.
According to Waldron, it was only “after they got in[to]”
Waldron’s home that Roark announced that he and his partner,
May, were deputies and that they were looking for Copple.
Viewing the evidence in the light most favorable to Waldron,
we assume that Roark entered Waldron’s home without knock-
ing and announcing his purpose.
[14,15] In order to justify a “‘no-knock’” entry, the police
must have a reasonable suspicion that knocking and announc-
ing their presence, under the particular circumstances, would be
dangerous or futile or that it would inhibit the effective inves-
tigation of the crime, for example by allowing the destruction
of evidence.26 “[The Court] require[s] only that police ‘have a
reasonable suspicion . . . under the particular circumstances’
that one of these grounds for failing to knock and announce
exists, and . . . ‘[t]his showing is not high.’”27
As we noted in Waldron I, one possible exigency in this case
was that “Copple posed a threat to the safety of the deputies or
the public.”28 Roark testified that as he approached Waldron’s
home, he saw Copple inside, but that when he reached the
24
Id., 514 U.S. at 934.
25
United States v. Banks, 540 U.S. 31, 37, 124 S. Ct. 521, 157 L. Ed. 2d 343(2003).
26
Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 137 L. Ed. 2d
615 (1997).
27
Hudson v. Michigan, 547 U.S. 586, 590, 126 S. Ct. 2159, 165 L. Ed. 2d 56(2006).
28
Waldron I, supra note 1, 292 Neb. at 904, 874 N.W.2d at 863.
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Cite as 298 Neb. 26door, he could no longer see Copple. Roark testified that
Copple could be “a dangerous guy” and that he was “aware
[Copple] had lots of law enforcement contacts,” including
“prior . . . weapons offenses.”
Despite Roark’s undisputed testimony about Copple’s prior
weapons offenses, we found in Waldron I that there was a
material issue of fact as to whether exigent circumstances
existed in his attempt to arrest Copple. However, whether exi-
gent circumstances actually existed to justify Roark’s no-knock
entry is relevant only to the first prong of the qualified immu-
nity analysis, i.e., whether a statutory or constitutional right
has been violated.
[16] The U.S. Supreme Court has repeatedly held that
“courts have discretion to decide which of the two prongs
of qualified immunity analysis to tackle first.”29 Therefore,
in evaluating whether Roark is entitled to qualified immu-
nity against Waldron’s knock-and-announce claim, we exer-
cise our discretion to bypass the first prong of the qualified
immunity analysis and instead tackle the second prong first.
In so doing, we find that regardless of whether exigent cir-
cumstances actually existed to justify Roark’s no-knock entry
into Waldron’s home, Roark is entitled to qualified immunity
against Waldron’s knock-and-announce claim, because a rea-
sonable official could have believed that Roark’s no-knock
entry was lawful.
As noted above, Waldron bears the steep burden of proving
that her right was so clearly established that every reason-
able public official would have known that Roark’s conduct
violated the right. She has not met this burden. Instead,
Waldron simply argues that “[i]t has long been held . . . that
law enforcement must ‘knock and announce’ prior to serving
a warrant or [when] authorized to make an arrest without [a
warrant].”30 Though it is true that the knock-and-announce
29
Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 735 (citing Pearson v.
Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)).
30
Brief for appellant at 20.
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Cite as 298 Neb. 26rule is well established, Waldron ignores the fact that this rule
does not apply when exigent or countervailing circumstances
exist, and she makes no attempt to delineate the contours of
the “exigent circumstances exception.”31
In addition, Waldron relies solely on U.S. v. Lucht32 to sup-
port her assertion that the right at issue was clearly established.
While we cited Lucht to provide guidance as to whether exi-
gent circumstances existed in Waldron I, as noted above, that
was a first-prong analysis. We note that the applicability of
Lucht is limited in addressing the second prong of the quali-
fied immunity analysis. Unlike the case at hand, Lucht was
not a § 1983 case; rather, the Eighth Circuit’s holding applies
to the knock-and-announce requirement as it pertains to the
suppression of evidence. Moreover, as the district court stated,
“there are factual differences between the officer’s knowledge,
assumptions, and conduct in Lucht and those of [Roark] in
this case.”
Although we are aware that certain categories of exigent
circumstances have emerged (for example, when knocking
would be dangerous, futile, or might allow the destruction of
evidence33), we find no case law that so clearly establishes that
any law enforcement officer standing in Roark’s shoes would
have understood that the circumstances presented were not exi-
gent circumstances.
Even viewing the facts in the light most favorable to
Waldron, it would not have been “‘entirely unreasonable’ for
an officer to believe, in the particular circumstances of this
case,” that exigent circumstances existed.34 Nor do the facts
support a finding that Roark was “‘“plainly incompetent”’” or
“‘“knowingly violate[d] the law.”’”35 Thus, we conclude that
31
Waldron I, supra note 1, 292 Neb. at 897, 874 N.W.2d at 859.
32
U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994).
33
See Richards v. Wisconsin, supra note 26.
34
Messerschmidt v. Millender, 565 U.S. 535, 549, 132 S. Ct. 1235, 182 L.
Ed. 2d 47 (2012).
35
Id., 565 U.S. at 546.
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Cite as 298 Neb. 26Waldron has not met her burden to prove that her right was
clearly established. Nor has she shown that a material issue of
fact prevents judgment as a matter of law.36 As such, Waldron’s
first assignment of error is without merit.
(b) Waldron’s Claims of
Unlawful Arrest
Waldron makes two arguments as to why she believes Roark
is not entitled to qualified immunity for Waldron’s alleged
unlawful arrest. First, Waldron argues that Roark did not have
probable cause to arrest her; second, Waldron argues that
Roark used excessive force in arresting her. We address these
arguments separately below, disposing of both arguments under
the second prong of the qualified immunity analysis.
(i) Probable Cause
We again exercise our discretion to bypass the first prong of
the qualified immunity analysis and instead consider the sec-
ond prong first. In so doing, we find that regardless of whether
probable cause existed to justify Waldron’s arrest, Roark is
entitled to qualified immunity under the second prong because
the law is not so clearly established that every reasonable offi-
cial standing in Roark’s shoes would have believed that there
was no probable cause.
Waldron argues that her arrest was unlawful because Roark
did not have a warrant or probable cause to arrest her. On the
other hand, Roark argues that he had probable cause to believe
that Waldron violated or was violating Neb. Rev. Stat. § 28-901(Reissue 2016) (obstructing government operations). As noted
above, the text of the Fourth Amendment protects “‘against
unreasonable searches and seizures.’”37 Subsequent case law
establishes that a warrantless seizure of a person is reasonable
under the Fourth Amendment where there is probable cause to
36
See Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014).
37
Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537(2004).
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Cite as 298 Neb. 26believe that the person has committed or is committing a crimi-
nal offense.38
Section 28-901(1) provides, in relevant part, that “[a] person
commits the offense of obstructing government operations if
he intentionally obstructs, impairs, or perverts the administra-
tion of law or other governmental functions by force, violence,
physical interference or obstacle, breach of official duty, or any
other unlawful act . . . .”
Accordingly, the crime of obstructing government operations
has two elements. The person must have (1) “obstruct[ed],
impair[ed], or pervert[ed] the administration of law or other
governmental functions” and (2) intended to do so.39 On
appeal, Waldron does not challenge the district court’s find-
ing that “[she] was obstructing and hindering the deputies in
the commission of their duties.” Instead, Waldron asserts that
“she could not have intended to impede” a police investiga-
tion because she did not know that Roark and May were law
enforcement officers.40
Rather than impeding a police investigation, Waldron claims
her intent was to “protect [Copple] from what she thought
were intruders.”41 Although Waldron’s actual intent may be
relevant for purposes of determining her mens rea and whether
she actually violated § 28-901, it is not relevant in considering
whether Roark is entitled to qualified immunity. Instead, the
relevant question for purposes of our second-prong analysis
is whether the law is so clearly established that a reasonable
officer standing in Roark’s shoes could not have believed that
Waldron intended to impede a police investigation.42
Though Waldron attempts to establish that Roark violated
a statutory or constitutional right, she makes no argument as
38
Devenpeck v. Alford, supra note 37.
39
See § 28-901(1).
40
Brief for appellant at 15.
41
Id.
42
See Ashcroft v. al-Kidd, supra note 10.
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Cite as 298 Neb. 26to whether the right was clearly established at the time of the
challenged conduct. We acknowledge that “[t]hat one can-
not be arrested in the absence of probable cause” is clearly
established.43 But the U.S. Supreme Court has “repeatedly told
courts . . . not to define clearly established law at a high level
of generality. . . . The general proposition, for example, that an
unreasonable search or seizure violates the Fourth Amendment
is of little help in determining whether the violative nature of
particular conduct is clearly established.”44 Rather, for a court
to find that a violation of clearly established law has occurred,
a “more particularized” inquiry is required.45
Therefore, as noted above, if a reasonable official could
have believed the conduct under the particular circumstances
was lawful because there was no existing precedent that had
“placed the . . . constitutional question beyond debate,” the
official’s conduct does not violate clearly established law.46
Here, even viewing the evidence in the light most favorable
to Waldron, including her admission that she was obstructing
and hindering the deputies in the commission of their duties,
a reasonable officer could have believed Waldron’s arrest was
lawful. We make this finding because the facts were such that
Roark could have believed that Waldron knew he and May
were law enforcement officers. After all, Roark was acting pur-
suant to an arrest warrant and Waldron admits that Roark told
her that they were law enforcement officers looking for Copple
after they entered her residence.
We recognize that there is a factual dispute as to whether
Roark showed his badge to Waldron. Waldron testified that
Roark announced he was a deputy but refused to show his
badge. In contrast, Roark testified that upon entering Waldron’s
home, he “verbally and physically” identified himself “with
43
Williams v. Baird, supra note 15, 273 Neb. at 987, 735 N.W.2d at 392.
44
Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 742 (citations omitted).
45
Anderson v. Creighton, supra note 11, 483 U.S. at 640.
46
Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 741.
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Cite as 298 Neb. 26[his] badge,” and May testified that when she entered the living
room, she saw Roark “already had [his badge] out” and “was
showing it” to Waldron. But we conclude this factual dispute is
not material to our determination of whether Roark is entitled
to qualified immunity under these particular circumstances.
Waldron cites no case law, and we find no case law, clearly
establishing that these facts support a finding that Roark should
have known that Waldron was unaware that Roark and May
were law enforcement officers. Thus, even if the facts were as
Waldron claims, it would not have been entirely unreasonable
for an officer, while in plain clothes and faced with a person
who was impeding an arrest pursuant to a warrant, to con-
clude probable cause existed to arrest Waldron for obstructing
government operations. In other words, Waldron has failed to
prove the right was clearly established.
Because Roark is entitled to qualified immunity on
Waldron’s claim that Roark arrested her without probable
cause, it is not necessary for this court to address the State’s
argument that completing a diversion program bars Waldron’s
§ 1983 claim that Roark lacked probable cause under Heck
v. Humphrey.47
(ii) Excessive Force
[17] Next, we address Waldron’s claim that “[t]he right
to be free from excessive or deadly force is a clearly estab-
lished right under the Fourth Amendment’s prohibition against
unreasonable seizures.”48 We agree with the general proposi-
tion that every citizen should be free from excessive force.
However, the framework required by the U.S. Supreme Court
for analyzing qualified immunity requires a more particular-
ized inquiry. The “‘dispositive inquiry in determining whether
a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in
47
Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383(1994).
48
Brief for appellant at 13.
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Cite as 298 Neb. 26the situation he confronted.’”49 Therefore, we particularize
our inquiry to the situation that Roark confronted and we
address, when viewing the facts in the light most favorable to
Waldron, whether it would have been “‘entirely unreasonable’
for an officer to believe, in the particular circumstances of this
case,” that his behavior was lawful.50
An arrest may be deemed unreasonable in violation of
the Fourth Amendment if the manner in which the arrest is
executed is unreasonable, e.g., if the police used excessive
force.51 Here, Waldron argues that Roark used excessive force
in effecting her arrest and that Roark is not entitled to quali-
fied immunity.
We view the evidence regarding Roark’s use of force in
the light most favorable to Waldron. According to Waldron,
Roark, followed by May, went down the stairs to look for
Copple. When Waldron began to follow the deputies down the
stairs, she was instructed not to follow them and to instead
“‘[s]tay in the kitchen.’” Waldron admits that she did not
obey the deputies’ instructions and instead continued to follow
May down the stairs. Waldron admits that when May stopped
halfway down the stairs and put her leg across the stairwell
to prevent Waldron from going down the stairs, Waldron
pushed on May’s leg with her body, attempted to go over her
leg, and somehow eventually made her way down the stairs
before May.
Waldron testified that after she arrived downstairs, she
saw Copple’s friend. Waldron claims that this “friend” in her
basement was a “stranger,” and she started screaming at the
friend to “[g]et out of my house.” There is no evidence that
the deputies were aware Waldron did not know or recognize
49
Hernandez v. Mesa, ___ U.S. ___, 137 S. Ct. 2003, 2007, 198 L. Ed. 2d
625 (2017) (emphasis supplied).
50
Messerschmidt v. Millender, supra note 34, 565 U.S. at 549.
51
See, Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 85 L. Ed. 2d 1(1985) (“reasonableness depends on not only when a seizure is made, but
also how it is carried out”).
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Cite as 298 Neb. 26Copple’s friend; nor was there any evidence that the depu-
ties knew that Waldron was screaming at the friend and not
at them. In fact, Waldron testified that she thought Roark
might have thought she was screaming at him. When asked
what Waldron was “hollering,” Waldron indicated that she was
“[p]robably still [hollering at the friend] to get out of [her]
house. And probably to the — and asking — still asking Roark
if he had a warrant.”
According to Waldron, Roark turned around to handcuff her.
She had “no idea” if Roark told her he was going to handcuff
her, but she claims that he did not tell her that she was under
arrest. According to Waldron, Roark “slapped” one cuff on
her left arm, and when Roark started to bring her right hand
around, Waldron asked him not to do so and indicated that
she had had surgery on her right shoulder. Waldron testified
that when Roark tried to bring her right hand around behind
her back, she resisted by stiffening her arm and holding it out
away from her body, “making a right angle with [her] arm and
[her] body.” According to Waldron, Roark then “put his knee
in [her] back and pulled [her], and [she] fell” forward and
broke her eyeglasses. Roark did not make any other contact
with Waldron’s body as he handcuffed her. Once Waldron was
on the ground, Roark was able to cuff her right hand. Waldron
did not know if Roark ever asked her to put her hands behind
her back.
After she was handcuffed, Roark left Waldron on the floor
and continued the search for Copple. Waldron admits that she
eventually got up from the floor and slipped her right hand out
of the cuff. When Roark turned around and saw that Waldron
was up and her hand was out of the cuff, he handcuffed her
again. This time, Waldron tried to prevent Roark from hand-
cuffing her by stiffening her left arm and holding it out away
from her body. Waldron testified that Roark pulled on her left
arm to try to get it behind her back and that Waldron fell. She
testified, “I don’t think he pushed me down . . . I fell back-
wards.” When she fell backwards, Waldron hit a couch and
“bounce[d] off” onto the floor. According to Waldron, she hurt
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Cite as 298 Neb. 26her left shoulder when she hit the floor. Waldron was then
handcuffed a second time, and someone (Waldron was not sure
who) took her upstairs.
[18,19] “‘Reasonable force,’” which may be used by an offi-
cer making an arrest, is generally considered to be that which
an ordinarily prudent and intelligent person, with the knowl-
edge and in the situation of the arresting officer, would deem
necessary under the circumstances.52 The inquiry assesses rea-
sonableness at the moment of the use of force, as judged from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.53 This allows for the fact
that “‘police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.’”54
On these facts, in Waldron I we found that there was “a
material question of fact whether . . . the force [Roark] used
was excessive.”55 However, this finding is relevant only to the
first prong of the qualified immunity analysis, i.e., whether
a statutory or constitutional right has been violated. Because
Waldron must plead facts to support both prongs, we turn to
the second prong, i.e., whether the right alleged to have been
violated was clearly established.
Again, Waldron bears the steep burden of proving that this
right was so clearly established that every reasonable officer
would have known that Roark’s conduct under the particular
circumstances violated the right. We again find that Waldron
has not met this burden.
Waldron argues that her rights are clearly established under
Copeland v. Locke,56 wherein the Eighth Circuit found that
52
Waldron I, supra note 1, 292 Neb. at 906, 874 N.W.2d at 864.
53
Id.
54
Id. at 906-07, 874 N.W.2d at 864.
55
Id. at 911, 874 N.W.2d at 866.
56
Copeland v. Locke, 613 F.3d 875 (8th Cir. 2010).
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Cite as 298 Neb. 26there was a material issue of fact as to whether an officer’s
use of force on a 67-year-old man was excessive. However,
the amount of force reasonably depends on the particular
facts and circumstances of each independent case. The facts
of Copeland do not directly align with those in this case, and
they are far more egregious. In determining whether a right is
clearly established, the question is not whether the very action
in question has previously been held unlawful.57 Instead, the
question is whether the contours of the right were sufficiently
clear at the time of the challenged conduct that “every ‘reason-
able officer’ would have understood that [the conduct at issue]
violates that right.”58
We conclude that under these facts, the contours of what
constitutes reasonable force are not clearly defined. Courts may
consider certain factors, such as “‘“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.”’”59 But
these factors are not exhaustive.60
We think that an officer could reasonably, even if mistak-
enly, conclude that the amount of force Roark used was lawful
given the circumstances. Roark was not in a calm situation in
which he was dealing one-on-one with a cooperative Waldron.
Rather, at the time Roark used force to arrest Waldron, Waldron
had been screaming “get out of my house” while Roark was
still trying to assess whether Copple’s friend was a danger and
while Copple was still at large. Waldron had repeatedly refused
to listen to the officers’ instructions. At the moment that Roark
used force, Waldron was actively resisting arrest.
57
See, Hernandez v. Mesa, supra note 49; Ziglar v. Abbasi, ___ U.S. ___,
137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017); Blazek v. City of Iowa City,
761 F.3d 920 (8th Cir. 2014).
58
Ashcroft v. al-Kidd, supra note 10, 563 U.S. at 741. Accord Anderson v.
Creighton, supra note 11.
59
Waldron I, supra note 1, 292 Neb. at 907, 874 N.W.2d at 864.
60
Id.
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Cite as 298 Neb. 26Waldron contends that the “manner in which [the arrest] was
performed was objectively unreasonable given [her] age and
size.”61 However, even considering her age and size, Waldron
repeatedly ignored the officers’ instructions to stay in the
kitchen, was strong enough to push her way past a deputy and
proceed down the stairs, and was nimble enough to work her
hands out of the handcuffs.
Even viewing the facts in the light most favorable to
Waldron, we conclude that the boundaries of reasonable force
that can be applied were not clearly established in this circum-
stance. Therefore, Roark is entitled to qualified immunity and
to summary judgment in his favor.
Before moving to Waldron’s next assignment of error, we
pause to recognize that our findings in this opinion are slightly
nuanced from those in Waldron I. In Waldron I, we were eval­
uating whether Waldron’s constitutional and statutory rights
were violated, and as such, our holding in Waldron I is rel-
evant to the first prong of our qualified immunity analysis.
Furthermore, in Waldron I, we were not faced with the issue
of qualified immunity and therefore did not deal with the ques-
tion of whether the rights alleged to have been violated were
clearly established.
In finding that the rights here were not clearly established
and that Roark is entitled to qualified immunity, we follow
the law set forth in recent U.S. Supreme Court cases. The
law has consistently broadened the parameters within which
law enforcement officers facing § 1983 claims can operate.62
For example, in the 2017 U.S. Supreme Court case White v.
Pauly,63 an officer arrived late to an ongoing police action.
61
Brief for appellant at 16.
62
See, White v. Pauly, ___ U.S. ___, 137 S. Ct. 548, 196 L. Ed. 2d 463(2017); City and County of San Francisco v. Sheehan, supra note 16;
Ashcroft v. al-Kidd, supra note 10; Pearson v. Callahan, supra note 29;
United States v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432(1997); Anderson v. Creighton, supra note 11.
63
White v. Pauly, supra note 62.
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Cite as 298 Neb. 26After witnessing shots being fired by one of several individ­
uals, the officer shot and killed an armed individual without
first giving a warning. In analyzing whether the officer vio-
lated a clearly established right, the Court stated:
In the last five years, this Court has issued a number
of opinions reversing federal courts in qualified immu-
nity cases. . . . The Court has found this necessary both
because qualified immunity is important to “‘society as a
whole,’” . . . and because as “‘an immunity from suit,’”
qualified immunity “‘is effectively lost if a case is errone-
ously permitted to go to trial’” . . . .
Today, it is again necessary to reiterate the longstanding
principle that “clearly established law” should not be
defined “at a high level of generality.” . . . As this Court
explained decades ago, the clearly established law must
be “particularized” to the facts of the case. . . . Otherwise,
“[p]laintiffs would be able to convert the rule of qualified
immunity . . . into a rule of virtually unqualified liability
simply by alleging violation of extremely abstract
rights.” . . .
....
. . . [The majority] recognized that “this case presents
a unique set of facts and circumstances” in light of [the
officer’s] late arrival on the scene. . . . This alone should
have been an important indication to the majority that
[the officer’s] conduct did not violate a “clearly estab-
lished” right.64
As noted earlier, this is a § 1983 action; we are inter-
preting a federal statute, not a Nebraska statute; and we
must follow U.S. Supreme Court precedent. Although we
understand the concerns anytime a citizen is injured dur-
ing an arrest, U.S. Supreme Court precedent establishes that
qualified immunity for § 1983 purposes “‘gives government
officials breathing room to make reasonable but mistaken
64
Id., 137 S. Ct. at 551-52 (citations omitted).
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Cite as 298 Neb. 26judgments’ by ‘protect[ing] all but the plainly incompetent
or those who knowingly violate the law.’”65 After applying
U.S. Supreme Court precedent to the instant circumstances,
we conclude Roark is entitled to qualified immunity on
the above claims.
2. Policy and Customs of
Lancaster County
We next turn to Waldron’s assignment that the district court
erred in finding there was no evidence to support her claim
that a policy or custom of Lancaster County caused her dam-
ages. Waldron argues that “[d]espite the County’s official
written policies, it is reasonable to infer that Roark’s beliefs
are premised on the County’s unofficial custom of permitting
officers to engage in such actions . . . .”66 We disagree.
[20-23] Municipalities can be sued directly under § 1983
for monetary, declaratory, or injunctive relief where the action
alleged to be unconstitutional implements or executes a policy
statement or custom of the municipality.67 However, a munici-
pality cannot be held liable solely because it employs a tort-
feasor.68 In other words, “a municipality cannot be held liable
under § 1983 on a respondeat superior theory.”69 “Instead,
it is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible
under § 1983.”70 Conclusions based upon guess, speculation,
65
City and County of San Francisco v. Sheehan, supra note 16, 135 S. Ct. at
1774.
66
Brief for appellant at 25.
67
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978).
68
Id.69
Id., 436 U.S. at 691.
70
Id., 436 U.S. at 694.
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Cite as 298 Neb. 26c­ onjecture, or a choice of possibilities do not create material
issues of fact for purposes of summary judgment.71
Waldron contends that the deputies’ acts of “forcing their
way into a home without showing a badge, refusing to show
either [a] badge or a warrant despite repeated requests, and
then subjecting the resident to physical force despite the
knowledge that she had an injury” amount to official policy by
the county.72 However, the Lancaster County sheriff’s office’s
standard operating procedures contained in the record do not
condone any of these actions.
Waldron fails to provide any basis as to why Roark’s alleged
acts “may fairly be said to represent official policy.”73 Rather,
she merely speculates that it is “reasonable to infer that Roark’s
beliefs are premised on the County’s unofficial custom.”74 As
evidence of “Roark’s beliefs,” she relies only on his alleged
actions during the events of February 22, 2012. We conclude
that this evidence is not sufficient for a jury to infer that
Roark’s actions that night were an implementation of a custom
or an unofficial policy. Waldron’s third assignment of error is
without merit.
3. Liability in Official Capacity
[24] Finally, Waldron assigns that the district court erred
in finding that Roark was entitled to summary judgment in
his official capacity. However, Waldron does not argue this
assignment in her brief. To be considered by an appellate
court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error.75 Though it is assigned, Waldron does not o­therwise
71
Stones v. Sears, Roebuck & Co., 251 Neb. 560, 558 N.W.2d 540 (1997).
72
Brief for appellant at 25-26.
73
Monell v. New York City Dept. of Social Services, supra note 67, 436 U.S.
at 694.
74
Brief for appellant at 25.
75
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
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Cite as 298 Neb. 26argue this assertion. As such, we decline to consider it
on appeal.
VI. CONCLUSION
We do not endorse the kind of officer behavior that Waldron
claims she experienced; however, U.S. Supreme Court prec-
edent controls our interpretation of § 1983 and our determi-
nation of qualified immunity. Based upon the framework set
forth by the U.S. Supreme Court, Waldron has not proved that
under these particular circumstances, the rights that she asserts
were clearly established.
Accordingly, we conclude that the district court did not err
in finding that Roark was entitled to qualified immunity on
Waldron’s knock-and-announce claim, nor erred in finding
that Roark was entitled to qualified immunity on Waldron’s
unlawful arrest claim. Additionally, the district court did not
err in finding that there was no evidence to support a claim
that a policy or custom of Lancaster County caused Waldron’s
damages. Finally, we do not address whether the district court
erred in finding that Roark was entitled to summary judgment
in his official capacity, because Waldron does not argue this
assignment in her brief.
A ffirmed.
Cassel, J., concurring.
I join the court’s opinion in full. It soundly applies qualified
immunity jurisprudence1 to all of Waldron’s claims. Moreover,
even if the court’s analysis was somehow flawed regarding prob-
able cause for her arrest, the end result would not change. In my
opinion, her acceptance and completion of pretrial diversion—in
exchange for dismissal of criminal charges—bar that claim.2
1
See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565(2009).
2
See Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383(1994).
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Cite as 298 Neb. 26Although I recognize there is a split of authority on the issue,
I agree with those courts finding that completion of a diversion
program in which the charge is dismissed bars a § 1983 chal-
lenge to probable cause.3
3
See, e.g., Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005); Roesch v. Otarola,
980 F.2d 850 (2d Cir. 1992); Cabot v. Lewis, 241 F. Supp. 3d 239 (D.
Mass. 2017) (contrasting competing rationales); Elphage v. Gautreaux,
969 F. Supp. 2d 493 (M.D. La. 2013).
Wright, J., dissenting.
I respectfully dissent. In my opinion, no reasonable law
enforcement officer would believe that it is lawful to forcibly
enter a residence while in plain clothes to arrest a resident
without providing any evidence of authority to do so.
As Marilyn Waldron answered her door one evening, a
stranger shoved his way past her, into her home, his gun
drawn. Another stranger soon followed. They were looking for
her grandson. They claimed to be law enforcement officers, but
were not in uniform. These strangers were unable or unwilling
to produce a badge or a warrant to justify their claim to author-
ity for their intrusion. As instructed to do by her late husband,
a captain in the Nebraska State Patrol, Waldron demanded to
see a badge and a warrant.
When Waldron, a 78-year-old woman whose right shoulder
was tender from a prior surgery, did not immediately comply
with the man’s order to put her right hand behind her back to
be handcuffed, she was pulled to the ground, a knee stuck in
her back. Her glasses broke, and her face was bruised. With
her shoulder in severe pain, Waldron slipped her right hand
out of the handcuffs. The man came at her again. As her
arm was wrenched around by the man, the 78-year-old fell
backward onto the couch and then to the ground, injuring her
other shoulder.
In my opinion, any reasonable law enforcement officer
should know that such conduct would violate Waldron’s
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Cite as 298 Neb. 26constitutional rights. I respectfully disagree with the majority’s
conclusion that Roark is entitled to qualified immunity.1
Of particular concern to me is the majority’s conclusion that
a reasonable officer could have concluded that there was prob-
able cause to arrest Waldron for obstructing government opera-
tions. It is, of course, no crime to obstruct an intruder into your
home. It is unlawful only if you know that the person you are
obstructing is in fact a law enforcement officer.2
The majority gives two reasons for why Roark could have
reasonably believed that Waldron knew he and May were
police officers: (1) They were acting pursuant to an arrest war-
rant, and (2) “Waldron admits that Roark told her that they
were law enforcement officers.” The first reason is irrelevant;
the fact that Roark and May were acting pursuant to an arrest
warrant for Copple—which they were not able or willing to
produce when asked by Waldron—has no bearing on whether
Waldron knew they were law enforcement officers.
The second reason the majority offers to show that Roark
could have reasonably believed that Waldron knew he was a
law enforcement officer is that he told her he was. But this
verbal claim does not satisfy the requirement that an officer
must display his authority. Citizens are not subject to criminal
liability for obstructing an unidentified stranger in plain clothes
that barges into their home simply because the intruder ver-
bally claims to be the police. Any common burglar can claim
to be a police officer. Common sense dictates that citizens not
be put to the choice of submitting to an armed home intruder
with no evidence of authority beyond a bald verbal claim to
be the police and facing the prospect of arrest and criminal
prosecution. When a law enforcement officer enters a citizen’s
home in plain clothes, he must give some evidence of authority
1
See, generally, Claire L. Hillan, The Not-So-Clearly Established Qualified
Immunity Doctrine, The Nebraska Lawyer, March/April 2017, at 15
(discussing history and details of qualified immunity doctrine).
2
Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).
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Cite as 298 Neb. 26beyond his mere word in order to have probable cause to arrest
the resident for obstructing government operations.
Because I believe that Roark is not entitled to qualified
immunity, I respectfully dissent.
For the sake of completeness, I note that the concurring
opinion has expressed the view that Waldron’s claim that she
was arrested without probable cause is barred by her participa-
tion in a pretrial diversion program under Heck v. Humphrey.3
My reading of Heck, and that of many other courts,4 is to the
contrary. Therefore, in my view, Waldron’s participating in pre-
trial diversion does not bar her claim.
Miller-Lerman, J., joins in this dissent.
3
Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 129 L. Ed. 2d
383 (1994) (holding that “a § 1983 suit” is barred when “a judgment in
favor of the plaintiff would necessarily imply the invalidity of his [or her]
conviction or sentence”).
4
Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir. 2009); S.E. v. Grant
County Bd. of Educ., 544 F.3d 633 (6th Cir. 2008); McClish v. Nugent,
483 F.3d 1231 (11th Cir. 2007) (pretrial intervention program); Magana
v. County of San Diego, 835 F. Supp. 2d 906 (S.D. Cal. 2011); Medeiros
v. Clark, 713 F. Supp. 2d 1043 (E.D. Cal. 2010); Butts v. City of Bowling
Green, 374 F. Supp. 2d 532 (W.D. Ky. 2005). Cf., Uboh v. Reno, 141 F.3d
1000 (11th Cir. 1998) (voluntary dismissal of charges by prosecutor);
Adams v. Soyka, No. 11-CV-00399-LTB-MEH, 2011 WL 4915492 at
*3 (D. Colo. Oct. 14, 2011) (holding “Heck bar,” see Heck, supra note
3, inapplicable in case involving “Alford plea” and stipulated deferred
judgment). See, also, Wallace v. Kato, 549 U.S. 384, 392-94, 127 S. Ct.
1091, 166 L. Ed. 2d 973 (2007) (holding that “Heck bar,” see Heck, supra
note 3, which tolls the accrual of the statute of limitations for Ҥ 1983
. . . claims” until “favorable termination” when applicable, does not apply
unless there is “an extant conviction which success in that tort action
would impugn”).