Anderson v. City of Pocatello

P.2d 171 ANDERSON, Michael

Plaintiff/Appellant/Cross-Respondent, POCATELLO, municipal cor-

CITY OF Black, individually

poration; Ron City public officer of the Poca- individually

tello; and Bruce Gentillon public City as a officer of

Pocatello, Defendants/Respon-

dents/Cross-Appellants.

No. 15703.

Supreme Court Idaho.

July 28, 1987. Rehearing Jan.

On

the defendant officers’ training, see infra, p. partial transcript plaintiff Anderson’s criminal trial. As thus consti- tuted, the record establishes the following factual setting disputes. approximately At during 1:30 a.m. morning of city October Pocatello police officers Ron Black and Bruce Gentil- investigating lon were an incident of al- leged vandalism at 1117 South Fifth Ave- They greeted nue in Pocatello. by were individuals, Nielson, the two Romriell and reported who had the incident. the offi- Romriell and Nielson related to following cers the events. Earlier evening they had had a confrontation with person they previ- with whom were not Anderson, ously acquainted, plaintiff who apartment in the basement of a lived house Suiter, Edwards & Dan Edwards adjacent apartment to the of Romriell and Gere, Eagle, plaintiff/appellant/cross- for Anderson, They reported Nielson. respondent. state, an intoxicated had threatened one of L. (argued) Robison and Charles Jesse C. apartment. They them outside their Johnson, Olson, Robison, Johnson, of Char- apartment their without claimed he entered Pocatello, defendants/respon- tered & They invitation. further claimed that when dents/cross-appellants. leaving they they Anderson for a told attempted to invite him- party, Anderson along, returning apartment self first to his BISTLINE, Justice. cigarettes. his Romriell and to retrieve Anderson commenced a tort action upon departure, added that his Nielson against defendants-respondents on the- way. they quickly went on their On their (afford- rights of violation of his civil ories apartment several hours return to their 1983), remedy ed under 42 assault U.S.C. § later, they the windows and screen found negligence. battery, The district Romriell and a friend door broken out. granted summary judgment court to the door without had knocked on Anderson’s respondents, granting denied attor- but receiving response. ney’s respondents. Anderson fees to holding; respondents appeals the former foregoing Upon the conclusion of the appeal We affirm the district the latter. narration, the officers checked the interior granting summary judgment court’s apartment pro- and then vandalized 1983 claim all counts save § leading stairwell ceeded genuine officers. As to count § apartment. They knocked on re- issue of material fact remains times, but received no an- his door several solved. deposition stated that swer. Anderson kicking by persons first

he was awakened I. pounding on his door without and later themselves, he did not identifying and that summary judgment proceedings, In the safety. for his answer at first out fear the record before the district court included testimony at the crimi- Anderson, in their affidavits of infra, p. see trial, identified father, claim to have 176 n. and his nal do not the affidavit of answer, Having no received concerning Lieutenant James H. Benham themselves. earlier, the officers exited the stairwell where As stated filed claims both 42 were met Romriell. under U.S.C. 1983 and state tort law. We first will address Anderson’s door, point, opened At this law 1983 claims and then state audibly shotgun, shell chambered a into his claims. emerged. Anderson claims carried self-defense, and chambered matter, preliminary As a re we coming the shell to announce that he was pertaining state the standards review respondents open out. The claim he kicked summary judgment. motions for A motion out, charged shouting. the door and summary judgment proper only is when genuine any “there is no issue toas materi they The officers claim scrambled for al fact and moving party is entitled cover. Anderson claims were in hid- judgment as a of law.” I.R. matter ing. point Anderson claims he did not 56(c). supported C.P. When the motion shotgun anyone. at claim he officers affidavits, by depositions or the adverse pointed fleeing it Romriell. Nielson party “may upon allega rest not the mere subsequent so testified at Anderson’s crim- pleadings, tions or denials of his but inal trial. Officer Black shouted “freeze” response, by pro affidavits or as otherwise to Anderson. The officers claim Anderson rule, specific vided in this must set forth then pointed turned and showing genuine facts that there is a issue Again, them. sup- Nielson’s 56(e). for trial.” re I.R.C.P. The latter ported this account. Anderson claims he however, quirement, change not does turning apartment. was to return to his applicable summary standards judg commanded, Gentillon “Drop it.” ment motion. Agency, Central Idaho Inc. drop did gun. Anderson not The offi- Turner, 306, 310, 442, v. 92 Idaho 442 P.2d cers claim Anderson continued the motion (1968). 446 require Those standards them, of pointing the shotgun at at which court, review, upon district and this Court time they both fired almost simultaneously, liberally construe the in facts the exist each firing three rounds. Anderson claims nonmoving record favor of the party, shot, that at the time he was he had turned and to draw all reasonable inferences toward his door with the shotgun pointed the record in of nonmoving party. favor straight up. twice, Anderson was struck 658, Ethington, v. 103 Anderson Idaho once in the left side and once the left 660, (1982). pro P.2d 925 651 buttocks. “totality cess the Court must look of Anderson continued to turn and ran back motions, affidavits, depositions, plead apartment. into his A few moments later ings, exhibits,” merely and attached not he shouted that he was wounded was portions of the record isolation. Central coming gun. out without his Anderson Agency, supra, Idaho 92 442 Idaho at was for aggravated upon arrested assault P.2d at 446. Circumstantial can evidence police 18-915, officers in violation of I.C. § genuine create a issue of material fact. transported hospital. and was to a Co., Petricevich v. Salmon River Canal 92 eventually acquitted 865, 868-69, Anderson Idaho 452 P.2d 365-66 aggravated upon police officers, (1969). assault doubts are to be resolved “[A]ll only “intentionally, moving was convicted party.” Ashby v. Hub aiming bard, without malice” a firearm at others 100 Idaho 593 P.2d 404 violation I.C. 18-3304.1 Such a vio- The motion must be denied “if the § punishable lation is a conflicting misdemeanor is such that evidence inferences maximum fine of Id. if $50. can be drawn therefrom and reasonable provides: 1. I.C. person guilty 18-3304 shall be of a misdemeanor subject to a Aiming Any shall fine of not more than person firearms others.— malice, intentionally, $50.00 who and not than $5.00. shall without less any or aim firearm at or toward other (1978); [people] might reach different conclu- L.Ed.2d 895 Maiorana Mac- Donald, (1st Cir.1979). sions." Id. F.2d 1072

Jordan v. Five Unnamed Police Offi- F.Supp. cers and Agents, II. (E.D.La.1981). ANDERSON’S CLAIMS UNDER perceive We two circumstances in which 42 U.S.C. summary judgment for defendant of- alleged complaint, In his appropriate. ficers The first would be law, under color state used good where officers acted with faith in against him. This con- unreasonable force clearly a manner not established as un- duct, alleged, “deprived the at the time of their actions. The lawful liberty property, and the plaintiff Supreme explained: United States Court immunity privileges a United States summary judgment, judge appro- On law, citizen, process due viola- without determine, priately may only the cur- tion of the Fourteenth Amendment of law, rently applicable but whether that Constitution, and 42 U.S.C. United States clearly law was established at the time R., alleged 4.p. 1983.” Anderson that If an action occurred. law at the that City “Defendant of Pocatello was further established, clearly time was not an offi- properly negligent their failure to expected cial could reasonably hire, screen, supervise police its train anticipate subsequent legal develop- R., We p. officers.” first turn ments, he fairly nor could be said to Anderson’s claims the officers.

“know” that the law forbade conduct not previously as identified unlawful. Until Against A. Section 1983 Claims Offi- immunity is question this threshold re- cers. solved, discovery should not be allowed. Sprague In 109 Idaho City Burley, v. established, clearly the law was If 656, 664, 566, (1985), 710 574 we ob- P.2d ordinarily immunity should defense served: reasonably pub- fail, competent since a police that officer It is well-established govern- lic know law should official damages for under 42 can be found liable Nevertheless, if ing conduct. unreason- U.S.C. 1983 for use of pleading official the defense claims ex- effecting force an able arrest. Schil- prove traordinary circumstances and can F.Supp. 540 619 Strangis, ler v. that he knew should have neither nor (D.Mass.1982); City v. Landrigan see standard, legal known the relevant Warwick, (1st F.2d 741-42 Cir. 628 again, defense should be sustained. But 1980); Butler, 421 F.2d Collum v. turn on primarily the defense would ob- (7th Cir.1970). jective Fitzgerald, Harlow v. factors. response they to the claim used that U.S. 818-19 [102 force, officers, unreasonable in their 2738-39, (1982) (empha- 73 L.Ed.2d 396] pleadings, good raised the defense of faith omitted). added) (footnote sis immunity. de- One court described that provides sugges- no record us The before fense as follows: here. tion this circumstance existed immunity, qualified defense where there The second circumstance is local, and fed- which available state dispute simply that the offi- no factual pro- eral law enforcement .would good acted faith belief based cers “with liability tect the officers from individual grounds the mea- upon reasonable that damages good they if with a acted Jordan, they necessary.” were upon sures took reasonable faith belief based F.Supp. at 511. It was this supra, grounds they that the measures took Economou, granted sum- that district court necessary. 438 basis Butz 478, 497-98, 2894, 2906, mary judgment. U.S. 98 S.Ct. certainly aiming an fire- sequently record contains abun- was convicted supporting arm at others.

dance of evidence the conten- tion that the officers’ was within conduct Nevertheless, gives a different the boundaries of this second circumstance. (with- account in his affidavit.2 He asserts The officers and witnesses Romriell and defendants) out contradiction Nielson all testified that Anderson sudden- night those confronted never identi- he apartment ly ran out toward them. fied as He al- themselves officers. Black and Officer Nielson both testified leges shotgun, he the shell into the racked pointed shotgun that Anderson at the and then walked —not ran —outside. He fleeing Romriell. After Officer Black pointing shotgun anyone denies ever yelled “freeze” and as Officer Gentillon Further, during the incident. claims it,” Black, yelled “drop Officer Officer Gen- alleged aiming that even if the had oc- curred, tillon Nielson all testified it had ceased before he was shot. immediately pointed out, turned and alleges He that as he walked someone gun point, “freeze,” the shot at them. At all shouted and that he turned to three testified that apartment officers fired return to his with stated, As port-arms (pointed Anderson. above position diagonally Anderson sub- They my preliminary 2.Anderson’s affidavit reads follows: me. admitted at hear- my they trial that had not identified I, Anderson, hereby depose Michael policemen, themselves as nor had worn state as follows: identifying insignias or other which had hats I early 1. On October in the morn- any opportunity to see. hours, ing asleep, I was at home in bed when trial, they my at 8. The officers testified as by trying someone awakened me to in kick here, pointed shotgun stated I that had at my person identify door. The did not him- deny Mr. Romriel. I this. But this was the respond, my self. I did not out of fear for my basis of for conviction a misdemeanor Later, safety. someone came and knocked charge pointing of a firearm at someone. I door, forcefully identifying on the without acquitted any was assault on the Finally, respond. himself. Still did I not officers. when rapped someone came a time third and alleged aiming gun of the at Mr. Rom- door, glass on the got of the in window the I riel, according testimony, to the officers had my shotgun myself stepped to defend and previously certainly posed I ceased. And no outside. to Mr. re- threat Romriel at time I was gun coming 2. I racked the before to out peatedly by the shot officers. coming thought announce that I was I out. 9. I never aimed a firearm the that, people police (though they if the firearm, discharged threatening a or made previously acting police), had not been like veteran, statements to the officers. As a I can they identify would themselves. No one re- state there was for that no reasonable basis sponded stepped as I outside. they the officers to believe that were in dan- outside, 3. person Once I I was saw one ger. running off to the left and did not easily 10. The officers could have dis- out, shotgun anyone. As I walked I heard my apartment, armed me as I came out shout, frightened, someone I "Freeze!” was they firing had not taken cover and assumed apartment. my and to turned walk back into positions instead. shouted, “Drop 4. Then someone it.” At 11. the officers had If identified them- point, my shotgun port-arms posi- that was at selves, certainly dropped I would have tion, i.e., pointed diagonally upwards. Since shotgun cooperated fully. identify speaker, the voice still did not possible not 12. It would have been for me one, attempted I saw no I to walk back into shotgun, accurately to fire at all from believe, my apartment safety. I did for not position they waist-level where claim I was believe, nor did I have to reason holding gun. policeman. person shouting at me was a shot, trying 13. At the time I was I was door, stepped I 5. As I toward moved nothing except my apartment. do reenter port straight arms toward foregoing 14. The are statements based up position. my personal knowledge and statements made point, 6. At that me Defendants fired at policemen my presence. the Defendant in times, numerous and I was shot in the side personal knowledge I have no as to the con- and back. training tent officer’s selection Later, process; Officer Black and ar- Gentillon and so cannot establish these facts discovery. rested me and admitted that had shot unless I am allowed to do someone, court, plaintiff of a or in alleges support then other upward). He defendant, upon analysis Anderson, “drop it” defense of a as shouted unseen employment It all an evidence. attempted to walk back towards the he claim back Anderson, The fact that Anderson sary was based on reasonable their belief that their actions ously conflicts with the officers’ claim straight door, and side. that he had turned back toward now with the up. the officers side Anderson’s account At this inferentially shot him in the back point, shotgun pointed was shot in the supports according were neces- quite grounds. obvi- Evidence ments as (1961); utive (emphasis original); ant tion Weinstein’s Evidence rather the or a of the aid, J. Weinstein defendant, Evidence, 46 Iowa on certain merits lending (Chadbourn rev.1972) of fact. accord, without and M. terms, to a claim- para. the court’s Note, 4 Wigmore, 803(22) L.Rev. Berger, investiga- Judg- exec- ^[01] estoppel general Collateral is a rule shot. The fact door at the time gen- Under the judicata.3 doctrine of res the officers never identified them- doctrine, judgment eral “the es- [former] supports his claim that the offi- selves also legal relitigating tablishes barriers reasonably. juryA cers had not acted Flem- the matters involved the action.” testimony, and could believe Anderson’s 11.1, Hazard, p. ing supra, 529. Un- testimony of others disbelieve the all estoppel, specific rule of collateral der the present. involving different than in actions claims Although not so the district court did judgment, those involved a former rule, argue the defendants that Anderson's judgment some circumstances the former aiming criminal misdemeanor conviction “operate[] estoppel can as an those operates collaterally a firearm at others controverted, points matters issue or asserting contrary in estop him from of which the find- upon the determination question this action. whether verdict rendered.” Cromwell [is] criminal can act as collat- prior conviction Sac, 4 County Otto preclusion, in estoppel, eral or issue a sub- 351, 353, (1877). 24 L.Ed. 195 Because this sequent question civil is a of first action estoppel of involves the ef- rule collateral impression Court. The closest before this prior subsequent judgment fect of a on a question was in this Court has come to the law, the action as a matter of substantive 591, 587, 92 448 Bryan, Mattson v. Idaho judgment admissibility prior of the itself in 201, (1968), in P.2d 205 which this Court question. is in subsequent action plea guilty held of to the crime of that a 318, Evidence, Cleary, E. McCormick § involuntary manslaughter is in admissible (3d 1984). p. turn now to the 894 ed. We involving a action the same factual civil of the rule of collateral question whether situation. applicable here. estoppel question a The of whether convic past, courts were reluctant to times in a estoppel can act as tion collateral to permit criminal convictions act as prior subsequent civil action is distinct from and subsequent in civil estoppel suits collateral question of a unaffected whether involving generally the same issues. See As guilty plea or conviction is admissible. Am.Jur.2d, pri- The Judgments, 46 Wigmore explained: Professor given mary reasons were the different judgments proof of of is not in criminal and civil theory the use standards of about; actions, mutuality dogmatized of in the lightly a and the absence matter to be estoppel. Chantangco yet operation of effect of the See it seems clear that the 35, 476, 34, Abaroa, 481, 31 S.Ct. it, 218 U.S. recognizing produced from an- when very judicata proceeds part claim which general to on all or doctrine of res is not 3. The Fleming and judica- subject J. specific was the of the former." be confused with the ta, rule of res 11.3, (2d Hazard, p. ed. preclusion, 532 G. Civil Procedure or claim which is "the effect Hazard, 1977) (hereinafter Fleming supra). judgment the former where the latter action

183 purposes (1910); estoppel 1B “of 54 see Collateral serves generally L.Ed. 1116 (2d litigants burden of re- para. protecting from the Moore’s Practice Federal 0.418[1] an with the same 1984). litigating identical issue ed. privy[,] promoting judicial party or his times, However, of more recent litigation,” by preventing needless economy recognize fallacy to courts have come 326, Hosiery, supra, 439 U.S. at Parklane Moore of these concerns. As Professor 649; Blonder-Tongue 99 S.Ct. at see also explains regarding vary the concern over Laboratories, University Inc. v. Illinois in proof, standards of the defendant a Foundation, 328-29, 313, 402 U.S. 91 S.Ct. resulting in criminal action conviction “is 1434, 1442-43, (1971), 28 788 L.Ed.2d safeguards by greater surrounded than decisions, preventing inconsistent and of litigation, proof civil the standard to encouraging adjudications. reliance on Al- higher____” complainant which the is held is 90, 94, 101 McCurry, len v. S.Ct. sup Practice, B 1 Moore’s Federal 411, 414, (1980). permit 66 L.Ed.2d 308 To ra.4 relitigation fully of an issue that mutuality The doctrine of in this context prior a fairly litigated and lost in action doctrine, equally Under illfounded. purposes the worthwhile undermines party prior judgment “neither use a could estoppel serving any collateral rule without estoppel against as an the other unless recognizable good purpose. other This is parties both judgment.” bound particularly sought true party when the Co., Shore, Hosiery Parklane Inc. v. 439 prior estopped was the defendant a 322, 326-27, 645, 649, U.S. 99 58 S.Ct. conviction, resulting criminal action L.Ed.2d premise 552 safeguards proof where the and burden was that “it is somehow unfair to allow Allen, supra. favored the defendant. See party judgment prior use a when appropriate The more for whether test bound____” himself would so not be Id. at estoppel apply collateral should includes 327, 99 S.Ct. at 649. This “provid- doctrine following: (1) “against Did party ed party litigated who had and lost whom earlier decision is asserted ... previous opportunity relitigate action an opportunity litigate have a ‘full fair parties.” identical issues with new Id. ” Allen, issue the earlier case.’ Courts and commentators have generally supra, 449 U.S. at S.Ct. at 101 criticized and discarded the doc- mutuality States, citing v. United 440 Montana U.S. Hall, DeWitt, trine. E.g., B.R. Inc. v. 970, 973, L.Ed.2d N.Y.2d 278 N.Y.S.2d 225 (1979) supra, Blonder-Tongue, 195, (1967) estop- N.E.2d 198 (mutuality of 328-29, (2) U.S. 91 S.Ct. at 1442-43. at letter.”). “is pel Traynor a dead As Justice litigation in prior Was the issue decided observed: with the in presented “identical one satisfactory No Bernhard, has question?” rationalization supra, action in been requirement 895, advanced for the 122 in quoted P.2d at Blonder- mutuality. why 323, party supra, Just a who was 402 Tongue, U.S. at 91 S.Ct. at (3) not by previous actually bound a action Was the should be 1440. issue decided in precluded asserting litigation? may judica prior depend- it as res This ta party deciding a who was it is ent bound on whether the issue was prior] difficult comprehend. “necessary judgment.” to See 7 Bemt to Al- [the Works, Ed., len, 414; Bowring’s 94,101 ham’s supra, 171. Bern 449 U.S. at S.Ct. at Montana, 153, hard v. U.S. at citing supra, Bank America Nat. Trust & 440 99 973; Ass’n, 807, Savings Rajspic 19 Cal.2d 122 P.2d S.Ct. at v. Nationwide Mutu- 892, (1942). Co., 662, 665, 895 al 104 Idaho 662 Insurance Conversely, judgment judgment acquittal only Consequently, dem- action. a in a civil 4. heavy prosecution acquittal onstrates failed does not conclude issues to civil its Id.; 130, proof beyond liability. Taylor Taylor, burden of a reasonable doubt. v. 275 N.C. 125 373, proof satisfy might lighter The same S.E.2d 375 burden

184 940-43, 105, (1973); N.E.2d 107-08 Industrial (1983); 298 Pocatello 534, 537 P.2d Inc., Sacco, 783, 471, West, Read v. 101 Idaho 49 A.D.2d 375 N.Y.S.2d Park v. Steel (“In 399, (1980) 371, (1975); for generally see Moore’s Fed- 786, order P.2d 402 374 621 apply, 1984). estoppel (2d to eral Practice para. of collateral ed. the doctrine 0.418[1] actually have question in must specifically the issue sub- This is the case when the prior resolved in the litigated and been sequent pursuant action is 1983. civil original; in citations (Emphasis Allen, supra. suit.” omitted.)). (4) judgment final “Was there a party against Whether or not the Bernhard, supra, 122 on the merits?” attempted had a full and estoppel whom Blonder-Tongue, 895; quoted P.2d at litigate the issue which opportunity fair 323, 1440. supra, 402 U.S. at 91 S.Ct. at subject estoppel ques comes into plea is the (5)“Was party against whom the involved was minor.5 privity or in with tion when the offense party is asserted a Bern involving criminal party prior adjudication?” Defendants actions hard, quoted in 895, supra, may 122 P.2d at infractions misdemeanors or traffic supra, 402 U.S. at 323- Blonder-Tongue, vigorously defend. lack incentive 24, McCormick, supra, pp. 894-95. The re 91 S.Ct. at may derive from sulting conviction thus modern and with the accordance Id. For this litigation. a full and fair view, are constrained hold better we reason, in a conviction most circumstances above, col described under the conditions as a relatively minor matter such for a relitigation of an estoppel bars the lateral infraction, misdemeanor, traffic lesser proceeding criminal determined issue import should not act as matter of like sought estopped to be party in which the civil estoppel subsequent in a ac collateral litigate opportunity to had a full and fair 52, supra, 441 N.Y.S.2d Gilberg, tion. Allen, supra, 449 See issue. U.S. (conviction petit for of 423 N.E.2d at 810 419-21; Emich Motors 102-05, 101 S.Ct. estop defend harassment does not fense of Corp., Motors 340 Corp. v. General U.S. subsequent denying ant from assault 408, 413, 95 L.Ed. 534 71 S.Ct. Korseberg, 247 Kirkendall v. action); civil denied, 341 U.S. 906, (1951), reh. 71 S.Ct. 418, (1967) 75, (judgment 427 P.2d 419 Or. 610, (“It 1345 is well established 95 L.Ed. citation inadmis forfeiting bail after traffic may conviction work prior that a criminal personal for subsequent civil action in a sible in estoppel an in favor of Government Schmelzer, 421 Pa. injuries); Loughner v. Fontneau subsequent proceeding.”); civil States, (1st (conviction 8, 768, (1966) for 283, F.2d 10 Cir. v. United 654 218 A.2d 769 Publishing McNally v. Pulitzer 1981); right high half of failure to drive on Cir.1976), Co., cert. 69, (8th subsequent 532 F.2d 76 civil ac way is inadmissible 150, denied, 855, 97 50 though felony 429 U.S. personal injuries, tion for Pennsylva Stirone, States v. 131; United be); L.Ed.2d Hurtt v. 416 conviction would Police, 9, (E.D. F.Supp. 13 nia State 548 cert. (1965), A.2d Pa. Harvey, Pa.1982); Engleman denied, 85 S.Ct. (E.D.Mo.1981); Securities F.Supp. offense, (conviction minor L.Ed.2d 684 v. Everest Exchange Commission mis and lesser including traffic violations 167, Corp., 466 F.Supp. 172- Management subsequent not conclusive demeanors is Baker, v. (S.D.N.Y.1979); 444 73 action). Wolfson civil (M.D.Fla.1978), affd, 1124, F.Supp. 1127 case, although Anderson was denied, In this (5th Cir.1980), cert. 1074 623 F.2d misdemeanor, he was 1483, of a 966, 101 convicted 67 L.Ed.2d 615 450 S.Ct. U.S. felony the of for Grand, charged with and tried City Inc. v. New (1981); S.T. police offi- on York, 300, 938, aggravated assault fense of N.Y.2d 344 N.Y.S.2d 32 285, Barbieri, nation, Gilberg N.Y.2d 53 thorough the various see a discussion of 5. For 807, 49, 51-53, N.E.2d 809-10 423 concerning party a 441 N.Y.S.2d whether a had full factors litigate prior opportunity determi- fair 185 cers, expected alleging would to have a from he does the that officers strong resisting for the action. good motive acted without a faith belief based fact, vigorously defend Anderson did upon grounds reasonable that the mea- against charge, felony the and also the they necessary. sures took were Pocatello aiming lesser offense of a firearm included Park, 786, supra, Industrial 101 Idaho at Tr., 136, someone, pp. at which he denied. 621 P.2d at 402. Clearly he a full was afforded Because con against the evidence renders opportunity fair to defend that inferences, genuine charge, flicting it. issue of mate and utilized The criminal action jury in a final rial as to judg- culminated verdict and fact remains whether the officers upon ment of conviction on the merits. good That acted with a faith belief based appealed. conviction was not grounds reasonable that the measures necessary. Ashby, supra, took were question key before isus what the 100 Idaho at 593 at P.2d 404. Some prior judgment import decided and the doubt remains as to whether the officers the instant civil action which was actions, grounds had reasonable for their decided at the criminal trial. What was and all doubts are to be resolved upon decided “must be determined an ... moving party. Accordingly, Id. we record, including examination of the reverse must the district court on this is submitted, pleadings, the evidence the in- sue. structions under which the jury arrived at verdict,

its any opinions courts.” Motors, supra, Emich at 71 U.S. B. Against City Section 1983 Claims S.Ct. 414. An at examination of the tran- Pocatello. script of Anderson’s trial demonstrates City Under U.S.C. of Poca- that the reasonableness of the conduct of tello cannot be held liable for the actions issue, was put officers and hence upon the officers theory respondeat was not necessarily decided. The factual superior. Sprague, supra, 109 Idaho at issue decided in the criminal trial was that 710 P.2d at citing Monell Newv. pointed Anderson had shotgun at some- Services, City Department York Social one, at some in time. That much he 658, 691, should be held estopped denying. (1978). However, L.Ed.2d In the criminal trial there alleges city’s liability flowed from that Anderson had pointed shotgun screen, negligent its properly “failure to persons direction of all present, and hire, supervise train and its offi- there was Anderson’s contrary testimony R., p. cers.” 5. As we noted under identi- shotgun he had not aimed the any- at in Sprague: cal circumstances one, although may accidentally have Hence, his claim did not rest on the mere pointed Thus, it at at point. someone some employees fact that the officers were or jury could have determined that agents City but prem- rather was initially pointed shotgun had City ised on the assertion that the itself officers, at Romriell but that he had had, through its allegedly inadequate pointing shotgun ceased anyone training of its created the situa- the time the Clearly, officers shot it him. proximately tion that his injuries. caused cannot be said jury necessarily may pleading This be sufficient notice decided that pointing Anderson was Monell, requirement meet set out anyone at the time he was shot. plaintiff allege that a the constitutional Accordingly, conviction hav- statement, “policy harm was caused shotgun aimed his at someone at some ordinance, regulation, estop promul- does not him or decision denying, from as affidavit, by” he in his gated adopted municipality. does or was not the pointing 662, anyone the at Sprague, supra, at the time 109 Idaho at the shot estopped original). him. Nor is he 572 (emphasis P.2d at officers summary qualifications which a “N.R.A.” support its motion for include

In of course, course, city submitted the affidavit short a stress and a judgment, the metal Benham, in Gentillon, the lieutenant target prior of James H. course. Officer to charge training City of for the Pocatello issue, completed the occurrence last Department. Lieutenant Benham Police re-qualification depart- the for the course testified: 1981, having September ment in of re- training my years

2. Included within duties the ceived POST several be- monitoring police training of all the The fore incident issue. officer training regarding keeping record the passed all tests. police officers. employed 8. Ron Black was Officer police All are re- 3. Pocatello officers Department the Pocatello Police on (Police Offi- quired to “POST” become 27,1981. July explained City He was the Academy) Training cers Standards and procedures by police Steve Pocatello year their first of em- certified within 28, Wilkey July on 1981. City ployment with the Pocatello Police August 9. 1981 to October From In order POST Department. to become 2,1981, assigned Black officer certified, the officers must attend the in Academy Post Boise. While Boise ap- academy in Boise which lasts course regarding he received instruction there proximately five weeks. deadly firearms and use of force. use An cannot POST 4. officer become pass required was also Officer Black completed has certified until he the police department’s examination re- the year has on program spent POST on garding use of firearm police Included within the force. firing range. instruc- training are courses and POST properly in- 10. Both officers were firing weapons regarding tion use of structed and trained their job. deadly use on the force force, deadly firearms and the use of as addition, In City 5. of Pocatello City are all in the Pocatello Po- officers gives instruction to Department Police Department. lice deadly its officers not to use force unless short, testified In Lieutenant Benham

necessary or oth- to defend officers trains, thoroughly police department injury. Each officer is ers serious tests, in the its officers use supervises City given copy of the entire Manual deadly force. regarding police procedures officer employment. nothing the time of their offers to contra did His affidavit employed police dict this account. 6. While officers Pocatello, way allegations to his con officer is City for the each relate hiring, screening, training train required cerning negligent to attend numerous on-going single on an basis to increase incident ing, supervising. seminars performing support skills their enough the officers’ is not standing by itself year During duties. Poca- had an official city an inference ap- City completed Police Officers tello practice to Anderson’s which led policy 6,500 in-ser- total hours of proximately Tuttle, City v. Oklahoma injuries. City of approxi- training. This amounted to vice 2435-36, 105 S.Ct. mately training eighty hours in-service L.Ed.2d police department. officer in per brief, reply Anderson related specifically named in 7. officers following: academy this lawsuit both received POST discovery sought engage Plaintiff training prior to the incident at issue. underlying this the facts to establish received his Officer Bruce Gentillon denied, However, discovery was claim. training from October POST the individual November, year on the basis through Each out their been dismissed department officers had required officers are meet Appel- judgment good immunity summary proper- faith defense. motion for was ly granted. Id. Brief, Reply pp. 7-8. lant’s Inexplicably, Anderson failed to raise as an Battery Against B. Claim Assault appeal discovery the denial of his issue the Officers. motion. stated claim assault Moreover, the record does not contain battery against the officers.6 The district of the denial motion. claim court ruled that his was barred contained, Anderson’s motion is as is the 6-904(4), provides: I.C. which § order, protective defendants' motion for a governmental Exceptions to liabili- disposition court but the district ty its em- entity Governmental —A appellant has the initial bur- absent. “The ployees acting while within course presenting den of to record sufficient scope employment of their and with- appellate an to enable court decide out or criminal shall malice intent not be Hodges case.” rel. v. Hodges, State ex which: liable for claim (1982). Here, Idaho 653 P.2d 1177 Anderson failed his burden. This Court is assault, battery, 4. Arises out of false to error an unable find order arrest, imprisonment, false malicious which district court is not in the record. prosecution, libel, process, abuse slan- knows, For all this Court the denial of der, deceit, misrepresentation, or inter- discovery might have justified. been well rights. with ference contract resulting The provides record uncontro- no allegation There is that the officers city negli- verted evidence was not scope acted outside course and of their gent alleged. as This Court bound employment, or with criminal intent. existing appeal. record on ap- There brief, argues only that wheth- pearing genuine negli- no as issue er the officers acted with malice is a jury gence city, summary the motion for question. presence of malice would judgment city properly favor was inapplicable render battery the assault and granted. Hodges, As in the absence “[i]n exception. I.C. 6-904. § record, adequate of an or a rea- sufficient The term malice has been vari record, son for produce the failure to we ously defined. 52 Am. generally See affirm the trial court.” Id. 653 P.2d Jur.2d, Malice, minimum, At a malice § at 1178. involves the intentional commission of a

wrongful legal jus or unlawful act without excuse, III. tification or whether or not the Colwell, injury v. was intended. Tinker ANDERSON’S STATE LAW CLAIMS 485-86, 24 L.Ed. 754 This is referred to as Negligence A. Against City Claim Malice, “legal” Am.Jur.2d, malice. 52 1.§ Pocatello. However, the disjunctive the use of term just explained, As the city offered phrase “or” in “without malice crimi testimony negligent that it was its nal intent” indicates that malice as used training supervision of its qualitatively here differs from criminal in which Anderson failed contra to 6-904. closely tent. I.C. Criminal intent allege dict. Anderson further failed to equates “legal” to the above definition motion, discovery error the denial of his Thus, malice. malice as used in term containing and failed present a record 6-904 refer more mere must than “le any basis for this gal” Court consider malice. Malice here must refer Accord, disposition discovery “actual malice.” motion. Ladnier Mur- Rather, alleged mately injuries. alleged 6. Anderson conduct also the officers’ cause negligent battery battery. inju- as well as assault and intentional assault and caused his an so, proxi- negligence Even if this is such did not ries. BAKES, Justice, (D.C.Md. concurring in the result: F.Supp. 549-50 ray, 572 1983), part grounds, reversed in on other matter, in the result in this I concur Cir.1985). (4th “Actual” mal F.2d 195 this case was briefed recognizing that since meaning of encompasses the common ice Supreme argued to this Court and word, ill will. 52 Am. which connotes has substantial- of the United States Court Jur.2d, Malice, 1. We conclude and hold § proving a ly changed the standard for malice, “actual” that malice here means action under U.S.C. 1983 the cause of commis we define as the intentional which Williams, 474 U.S. case of Daniels v. act, wrongful or unlawful without sion of a (1986). It 88 L.Ed.2d 662 106 S.Ct. and with ill legal justification or excuse reargued if and be better we briefed would will, injury was intended. whether or not issuing opinion. If prior matter an this An examination of the record be signif- case is counsel feel that Daniels allegation of mali complaint’s bare lies case, evaluating the facts of this icant in alleged facts It is true that Anderson ce.7 it. may we well need to rehear concerning circumstances of the shoot question of whether ing which make the officers’ actions were based reason ON REHEARING grounds jury. issue of fact for the able an Rehearing for hav- Respondents’ Petition H.A., However, Anderson part supra.

See granted, argument and oral hav- ing been affidavit, nothing in his nor did he alleges Donaldson, Bistline, heard, trial, been criminal testify anything at his JJ., reasonably infer Huntley, one could continue to adhere to from which part on the of the officers. ill will majority opinion expressed views dispute that the of record reflects without July 1986. (reasonably or un responding ficers were evolving reasonably) rapidly to a situation HUNTLEY, JJ., DONALDSON danger. In imminent apparent with concur. record, Anderson was the face of upon allegation of mal entitled to rest BISTLINE, Justice, concurring. pleadings required but was ice showing separately that there I to offer a few brief specific “set forth facts write 56(e). genuine issue for trial.” I.R.C.P. is a on the dissent of Justice observations having regard, failed in this arguments I his two Bakes. will address granted the motion properly district court in order. the assault summary judgment as to for 6- battery pursuant claim to I.C. § I. 904(4). Accordingly, the district court is affirmed on this issue. necessarily obliged is Justice Bakes to. case High Court’s Daniels rely of the district court is on the judgment respects save the opin- affirmed in all in his first briefly mentioned which he is against That claim claim the officers. precipitated the spring, and which ion last to the district court. remanded barring rehearing, petition police offi- against claim Anderson’s of costs or attor- There shall be no award admits, Daniels As Bakes ney’s fees. cers. Justice on 42 U.S.C. 1983 only actions based bars C.J., HUNTLEY, DONALDSON, negligence. grounded in What which are J., concur. see, does not but what Bakes Justice obvious, Anderson’s so is that nevertheless SHEPARD, J., dissents without ground- officers claim opinion. fact, itself. required generous malice construction it allegation pleadings to derive

189 misconduct, Aydelotte well as him fell ed in intentional as backwards. ground gun fired, fatally the former of which Daniels time

negligence, at which the bar. wounding does not Dunster.” James Id. at 1518. explained: The Court plain- analysis Bakes’ “careful Justice court, plaintiffs the the district con- complaint” quote is seen tiff’s fails to and Aydelotte tended that Officer and Dade virtually ignore allegation following to County violated the negligently de- therefrom: right process ceased’s to due under the October, day about the 18th On Fourteenth Amendment. The district Pocatello, city in the the defend- charged jury negligence court on Gentillon, Black and course of ants special interrogatories to submitted duty conducting their and the of an in- based on jury negligence. It vestigation, did inten- deliberately and clear, however, negligent now con- tionally shoot plaintiff with hand- give duct of officials cannot to state rise thereby guns, causing him suffer a valid Fourteenth Amendment claim. R., physical injuries. p. and emotional 3 Williams, 106 Daniels v. U.S. added).1 (emphasis (1986); 88 L.Ed.2d 662 David- carefully Bakes relegates Justice his dis- Cannon, son v. 106 S.Ct. allegation, of this cussion which is fatal to 88 L.Ed.2d 677 Because the There, argument, his to his footnote no. 2. plaintiffs’ premised theory case on a argument self-destructs with this ad- negligence, jury verdict cannot be readily mission: “It is all conceded sustained under the Fourteenth Amend- officers did shoot intentionally (emphasis original, ment. at 1518 Id. Precisely Anderson.” question so. The omitted). footnote trial, however, be answered is whether reasonably. or not did so officers were instant not knocked down, point guns discharged. at which their attempts Justice Bakes in- equate They aiming tree, nearby were not at a act of shooting tentional the officers of point leaped which into their line Anderson with an intentional act such as Anderson, They intentionally of fire. shot speeding which unintentionally results in as “readily Justice Bakes conceded.” injury an to another. The circum- two such “premised is not Anderson’s case on a theo- readily distinguishable. stances are Simply id.', ry negligence,” premised it is put, it cannot denied an inten- that it is deliberate and intentional use of excessive tional tort to justification without aim at claims, ought “readily force. as Such to be another, her, intending pull to shoot him or conceded,” not barred are Daniels. the trigger, and wound If person. id.; Mosti, E.g., v. Waggoner F.2d 595 ensued, showing death absent a of reason- (6th Cir.1986); New Minneapolis, v. justification, able conduct in law criminal Cir.1986); (8th F.2d 724 Fernandez it be a would homicide. Leonard, (1st Cir.1986). F.2d 1209 perhaps Justice Bakes wishes the facts more resembled those of v. Metro Dunster II. politan (11th County, Dade 791 F.2d 1516 Cir.1986). There, an off-duty officer be The remainder Justice Bakes’ dissent came involved attempt barroom brawl. He consists of a remarkable to draw pistol. cocked drew and “At this all inferences resolve all doubts deceased, Dunster, James moving summary who was not not party vision, Aydelotte’s alleg judgment. line of does Justice Never Bakes de- [Officer] edly jumped Aydelotte into procedure and knocked vote himself to what the rules of Thus, Clearly allegation, together this with force. of unreasonable Justice Bakes' ac- allegations "erroneously Anderson's actions had officers’ cusation that we assertfed]” battery complaint alleged an constituted assault and violat- which that Anderson’s had unrea- rights, equates inconsequential. ed his constitutional the use false as well with sonable force is do, record,

require quite possible is to draw inferenc- infer from us to which must, His following: es resolve doubts for Anderson. as we door, efforts on behalf officers suc- immediately walked out his arranging inferred into only ceed facts figures aimed his he could fragile Moreover, house of cards. identify as who iden- did not quicksand, is house of cards built on in that officers, tify and themselves as then ceased ruling his contortions fall short of out rea- aiming. These unidentified individuals supporting sonable inferences Anderson’s yelled at him to “freeze” and “drop it.”4 allegations of force. excessive He apartment turned to his then to return gun pointed upright with the when he was The us record does not inform of all the point shot in the left At this was side. he Anderson, charges against nor of how the door, south, facing away toward his and jury charges. was instructed as to those elapsed from the officers. The time from Nevertheless, quite willing is Justice Bakes emergence aiming point his to and the uncertainty against non- to resolve this the facing away which he was shot while moving in party order to conclude that the officers and toward his door could have Anderson must have been convicted been close to fifteen seconds. This con- aiming shotgun his the officers. It is facts, the accepting struction of Justice Justice Bakes who would “recast” the assumptions, Bakes’ errant but otherwise record. resolving through arrived at doubts and conflicting testimony contains record drawing other inferences favor of the shotgun. as to when Anderson aimed the nonmoving party, paints picture own, The testimony includes Anderson’s police using officers force. unreasonable affidavit, through aiming the that had alleges merely far more than he ceased at the time was shot. Neverthe- identify that the officers failed to them- less, ignores testimony Bakes that Justice and that never aimed offi- selves he at the against and these inconsistencies resolves alleges they He him with- cers. that shot nonmoving party making the his own out justification under the circumstances appellate that factual determination existing. then have the Anderson must aimed at officers course, only split-second shot.2 before was Of and other officers may dispute these vigorously witnesses vague Anderson’s record contains “facts,” assuming persists in the testimony oral at trial on the location of his juryA will whom believe. suit. decide to wounds, physical augmented by a demon- usurp majority A of this will not Court However, record con- stration. also jury’s function. testimony through tains his affidavit that he was shot in the back.3 Justice BAKES, Justice, dissenting: willing

Bakes is to conclude that he was not in the back. shot originally At the time that this case was Court, argued to this the con- accepting, arguendo,

Even briefed Justice authority interpreting a 42 argument preclud- trolling Bakes’ federal that Anderson case 1983 cause of action was the denying ed from he aimed at U.S.C. § side, only Taylor, he was shot in the left it Parratt U.S. that required Contrary suggestion, officers were 2. Bakes’ 4.We do not assume the to Justice However, gun identify one Justice to Bakes, themselves. unlike "pointing" undisputed in the direction the officers recognize fact we do equate does an admission that he not with supports did not relevant Again, aimed it at them. Justice Bakes resolves acted the officers Anderson’s contention doubts Anderson. unreasonably shooting con- him. Anderson themselves, “If the officers had identified tends: apparently 3. Justice Bakes failed read the certainly dropped the I would have misrepre- in his haste accuse us of affidavit fully.” cooperated sentation. (1981), accepted police failed to stan- 68 L.Ed.2d which conform to negligent including, held that mere conduct on the dards the im- ways ... ... implicate could part police officers proper awakening plaintiff manner of However, provisions remedial investiga- aprizing him the [sic] case, following argument but tion, ... the failure of officers prior opinion, our initial to the release of indentify themselves in the [sic] Court, Supreme United States two nature, investigation course of an of this very significant opinions, reversed the rul- negligent shooting ... and wound- ing in the Parratt case and concluded that plaintiff, and similar acts and negligence implicate pro- mere does negligence. omissions which constitutes granted visions of U.S.C. 1983. We § City Defendant of Pocatello was further rehearing permit parties to brief and in negligent properly their failure to reargue the effect that these two recent screen, hire, supervise police train and its cases, Supreme United Court States Dan- added.) (Emphasis officers.” Williams, 327, iels v. 474 U.S. 106 S.Ct. in appeal, And his brief on Anderson’s ar- 662, (1986); 88 L.Ed.2d 662 and Davidson gument solely focused on his assertion Cannon, 344, v. 474 U.S. 106 S.Ct. 88 “[n]egligence state a that: can 1983 § (1986), ap- L.Ed.2d 677 have on the should Taylor, claim. Parratt vs. pellant’s majority claim in this case. The (1981) 101 S.Ct. 1908 L.Ed.2d ... 420] [68 of this Court now concludes that these two negligence Here there is an issue in the of cases do change the result which we investigation pre-dawn of a minor officers’ in original opinion arrived at our in this misdemeanor, identify their failure to case, asserting plaintiff themselves, and their and over-reaction use complaint alleges negligence more than a 4 Appellant’s excessive Brief at of (emphasis added). force.” However, cause of analy- action. a careful plaintiff’s sis of complaint, and the In the of recent case Daniels v. support opposition submissions in of and in Williams, 474 106 U.S. S.Ct. 88 to the motion summary judgment, for (1986), L.Ed.2d 662 the United States Su- clearly plaintiff’s establish that the claim is preme holding Court reversed the of the basically negligent conduct which does negligence support Parratt case that will not reach necessary to the level to consti- cause of action under 1983 where the § tute a cause of action under 42 U.S.C. rights are constitutional involved those recently interpreted most in § found in the amendment. The fourteenth reason, Daniels and For that Davidson. I remedy in court Daniels found no existed dissent. of under Due Process Clause the Four- injuries teenth Amendment inflicted “for I. by governmental negligence____” In complaint before the trial court Thus, ap- S.Ct. at 666. to the extent that Court, and in his appeal brief on to this pellant 1983 claim Anderson asserts § Anderson asserts a 1983 cause of action § premised negligence, on his claim must fail against both City of Pocatello and the failing majority errs in hold. so individual in officers involved shooting Supreme incident at issue this case. He As the noted in Court Daniels asserts that Williams, the conduct of the officers and supra, companion city deprived Cannon, him his supra, of constitutional of case Davidson v. rights guaranteed by the fourteenth 1983 action is to purpose served a § documents, amendment. both those “requir[e] government appro- to follow premised theory claim is on a agents procedures decide priate when its negligence. complaint, In his life, al- ‘deprive liberty, prop- or any person of leges as follows: Williams, erty’____” Daniels v. [police remedy provided “The under conduct in at 665. The officers] investigation prevent

their abuses negligent serves to affirmative governmental power; prevent “it serves to ilar acts and omissions which constitutes governmental power being negligence.” ‘used for (Emphasis added.) ” purposes oppression.’ Id. The hold- only allegation regarding use of exces- ings Supreme Court the Daniels sive force is that found in Anderson’s brief effectively require cases Davidson and, appeal1 again, it is solely cast plaintiff appellant such as Anderson to al- negligence. terms of “Here there is an lege governmental officials’ ac- issue negligence in the pre- officers’ tions him constituted an abuse of investigation dawn of a minor misdemean- governmental power, or that the officers’ or, themselves, their identify failure to appropriate conduct did not conform to their over-reaction and use excessive standards, governmental practices pro- or At no alleged has Anderson force.” cedures; short, that the officers acted present that the officers in the case inten- with “deliberate or callous indifference to” tionally callously disregarded violated or rights. constitutional Davidson v. that, “appropriate procedures” regard- Cannon, supra. Anderson has failed utilized, procedures less of the officers allege complaint such conduct either in his governmental power used purposes “for or in his in opposition affidavit to the mo- most, oppression.” At Anderson has al- summary judgment. tion for In both those leged that the officers’ actions amounted to documents, particularly in his com- a lack of due care under the circumstanc- plaint, merely alleges Anderson that However, es.2 Supreme as the Court held officers’ actions evidenced a lack of due Daniels, allegations such do not state a care under por- the circumstances. In that cause of action under 1983. § complaint tion of his regard- where issues discussed, police procedure are II. allegations Anderson’s solely are couched plaintiff in a 1983 action bears a negligence. terms of pleading proof. difficult burden of His [police “The conduct of defendants may greater required burden than that in their investigation was negli- officers] ordinary of him in an tort action. As the gent accepted and failed to conform to Supreme United States held in Court Har- standards, police practices, procedures, 800, 819, Fitzgerald, v. low 457 U.S. 102 ways including, necessarily but [sic] (1982): S.Ct. 73 L.Ed.2d 396 to, limited improper manner of Economou, 478, “In Butz awakening plaintiff aprizing [v. [sic] 2894, (1978)], 57 L.Ed.2d 895 we investigation, him of the ... the failure admonished that ‘insubstantial’ suits indentify officers to them- [sic] against high public

selves in the officials not investigation course of an should nature, negligent proceed ... be allowed to to trial. 438 shooting U.S. 507, (Citation and wounding plaintiff, and sim- 98 S.Ct. 2911. omit- majority erroneously 1. The readily by asserts ís conceded all that the officers did alleged complaint Nevertheless, in his that the offi- intentionally shoot Anderson. in- cers used unreasonable force him. Ante necessarily equate tentional acts do not with an complaint completely 175. Anderson’s instance, intentional tort. For an individual any allegation devoid of of “unreasonable may intentionally posted drive in excess allegation appellant’s force.” That brief on limit; yet speed not make his subse- this does court, appeal was not before the trial and there- quent intentional tort. See auto accident an allegation fore even if the was sufficient to raise 235, Schmidt, v. 110 Idaho 715 P.2d 905 Griffith a claim under 42 U.S.C. it would not be (1986) (violation speed posted limit consti- entitled to appeal. factual consideration on this se). Though negligence per negligence tutes often arises as the result inadvertence, heedlessness or negli- may "it also arise where the Though arguing appeal not the issue on in his gent party possible brief, has considered the conse- allege complaint Anderson did in his carefully, However, quences and has exercised his own intentionally the officers shot him. Keeton, whole, judgment.” reading complaint best Prosser & Keeton when W. as Torts, (1984). allegations Anderson's of intentional acts are 31§ negligence theory. inconsistent with It ted.) We reiterate this In- recognize admonition. fails to properly and then ana- substantial lawsuits undermine effec- lyze alleged cause of action un- government tiveness of contemplated higher der this and more difficult burden of structure, our constitutional and ‘firm pleading proof. application of the Federal Rules of Civil only allegations made fully Procedure’ is warranted in such regarding the officers’ failure to follow cases. 438 U.S. at 98 S.Ct. at 2911.” “appropriate procedures,” regarding any Several federal courts have held that this governmental power, abuse center on requires additional burden plaintiff (1) Anderson’s contentions that the officers prove the good absence of faith on the (2) never identified themselves and that he part officers or that their actions were never aimed his firearm at the officers. unreasonable. Smiddy Varney, See v. 665 However, allegations these cannot with- (9th Cir.1981) (“Thus, F.2d to re- scrutiny stand close even when examined plaintiff cover the must clear two hurdles: summary under the judgment standard of probable cause must be shown not to have construing permissible all inferences in fa- existed; the officers must be shown not to non-moving vor of the party. Anderson’s reasonably have good believed in faith that contention, first the officers never probable exist.”); cause did Whitley v. Sei- themselves, identified meaningless un- bel, (7th Cir.1980) (“The 613 F.2d less it is shown that such identification was proof burden of plaintiff ... is on the required under clearly established state prove the good officer’s lack of faith or law or federal Sprague constitutional law. reasonable cause to believe he acting City Burley, 109 Idaho 710 P.2d unconstitutionally.”). Zeigler v. Jack- Cf. Both majori- Anderson and the son, (11th Cir.1983) (once 716 F.2d 847 de- ty assume, opinion citing without any to fendant has shown acting that he was with- supporting authority, that the officers were in scope of his discretionary authority required identify to themselves under the allegedly occurred,3 when wrongful acts facts and circumstances of this case.4 In the plaintiff burden shifts to to show lack specific allegations absence of that the good faith); of Norman, Barker v. officers’ failure identify (5th Cir.1981) (“Once F.2d themselves con- stituted an intentional or disregard official has shown callous acting that he was in his capacity “appropriate governmental official procedures” and within scope of his discretionary authority, merely and negligent not burden shifts failure to follow plaintiff any procedures, breach the such official’s im- Anderson fails to munity by showing that the official lacked state a cause of action under 1983.5 The ‘good ”). faith.’ majority The in this case majority failing errs in to so conclude. important It is to note holding that Supreme Anderson in his of the United States Court in complaint specifically alleged Fitzgerald, that the acts supra, taken Harlow plaintiffs that a by the scope officers were within the of their § 1983 claim cannot withstand a motion for i.e., employment, scope within summary judgment of their au- clearly unless he asserts thority. interesting It is also challenged to note "clearly that the conduct was unlaw- only ful,”,I.e., concerning evidence in the record whether that the conduct was in direct violation (i.e., authority officers acted clearly within their statutory established constitutional or Thus, that their actions policy) police were in accord with identify law. the officers' failure to them- father, is the affidavit of only Anderson’s sub- they required by selves is clearly relevant were if support mitted in opposition of Anderson's statutory established state law or federal affidavit, defendants’ motion to dismiss. In that identify constitutional law to so themselves. majority father testifies that special concurring opinions he heard the and Pocatello Chief of Police very state that the officers they espouse, fail to follow rule of law department had policy. acted within ante at 174. majority special concurring 4. Both the 5.In contrast to Anderson’s assertions that the opinions erroneously assert the officers’ officers never identified themselves stands the identify failure to themselves is somehow police rele- uncontradicted of the officer vant to Anderson's opin- § 1983 claim. accompanied Both hospital who Anderson to the af- ions, however, recognize express fail shooting, ter the Officer Scott. That officer contention, trial, ney Anderson’s second that he at the criminal nothing was short police never aimed his firearm the offi- pointed of an admission that he his firearm cers, disposed easily by application police the direction of the officers. particu- the doctrine judicata, of res “Q. possible Is it position in the estoppel. lar the doctrine of collateral Fac- in, you knowing now that there was necessarily tual issues decided in another someone on those stairs by party action to which Anderson may chimney, positions occupied by Offi- [the short, relitigated. factual infer- cers Black and that the muzzle Gentillon] “permissible” ences are not inferences for gun may of that pointed have been purposes summary judgment where con- their direction? sideration of such is barred the doctrine pointed “A. It was in that direction.” estoppel. of collateral The majority’s At no did testify, as the analysis estoppel of the collateral issue is asserts, majority ante at that “he and, indeed, misleading internally inconsist- may accidentally pointed have it at some- correctly majority, ent. As noted point.” one at some Anderson’s own testi- charged aggravated Anderson was “for as- mony directly majority’s contradicts the as- upon police sault officers in violation of aiming “someone,” only sertion of 18-915.” Ante Idaho Code § jury directly verdict contradicts the as- ultimately guilty Anderson was found aiming sertion that the was “accidental.” the lesser included intentionally offense of majority’s attempts to recast the facts others, aiming a firearm at I.C. 18-3304. which were found at Anderson’s criminal Anderson defended himself trial constitutes an unfounded collateral at- officers, charge assaulting police and tack proceedings. on those jury’s verdict that he intentionally Anderson also except testified that aimed his firearm at “others” is clearly a re-entry apartment into his the barrel of verdict that Anderson aimed his firearm at gun pointed upward. was not only were the “Q. you At time did raise the stock charged “others” whom he was with as- gun perhaps to level it or lowered Thus, saulting. inference which the barrel? draw, Anderson would have this Court position, only “A. From this the time draws, majority opinion implicitly which the get that I raised the barrel was to i.e., that Anderson did not aim his firearm jamb my apart- barrel under the door in police impermissible at the is an ment to walk down the stairs.” inference. collaterally Anderson is es- Furthermore, testimony the uncontroverted topped asserting that he did not aim of Anderson at his criminal trial estab- shotgun police his at the in officers position lished in that he was a crouched Though civil action. properly stating the holding while the firearm and that he estoppel, rule of collateral majority shotgun degree aimed the in a “360 radi- special concurrence fail to properly apply it testimony under us.” The uncontroverted present the facts of the that case. The majority’s port-arms posi- trial also indicates that the assertion that Anderson’s crimi- only position nal conviction tion establishes that he describes a where Anderson is ignores holding gun aimed the firearm at “someone” barrel of with left testimony, right the record. Anderson’s own hand while his hand is on the stock of by gun, holding trigger elicited on direct examination his attor- near to or (which, hospital according testified that while at the would-be Anderson, assailants asked Scott who shot him. thought When the officer people is what he outside replied investigation, that the matter was under were) apartment order their victims to promptly responded Anderson that, that he knew "Drop "Freeze” and to it”? Anderson’s assertion cops "It was the who shot me.” That that he never knew the were involved is possessed knowledge, such even by belied Officer Scott’s uncontradicted testimo- themselves, though the officers never identified ny and common sense. all, hardly astounding. many is After how only trial mechanism. Anderson admitted at other inference which the ma- jority permissible deems as shotgun firing position in and which al- was legedly supports Anderson’s assertion apartment. when he exited his the officers’ actions were unreasonable is important Another fact adduced at the allegedly that Anderson was shot in the in question criminal trial is that the events However, majority back. misstates the place extremely in this case took an brief facts established the record. There is no period of time. The uncontradicted and support for the assertion that Anderson testimony uncontroverted of Officers Black was shot in the “back.” Anderson’s own anywhere and Gentillon is that from 5 to 15 testimony at the criminal trial belies elapsed seconds from the time Anderson contention that he was shot in the back. apartment first exited his until the first “Q. you Mike, up, Could stand shots testimony were fired. Even elicited places you by where hit by from Officer Gentillon Anderson’s attor- the bullets? ney during regarding cross examination right “A. I was hit here. This bullet possibility turning that Anderson was across, straight put went three nicks in away from the officers at the time the intestine, my stopped small on this side. shots were fired indicates that the time right I hip. was hit here in the differential firing between the of the shots “Q. Okay. you Which one hit first? possible and Anderson’s movement back apartment toward his constituted fractions I “A. don’t recall which one hit me first. of a second. just sharp pains I felt my two side.”

“Q. you actually So fired before—he gunshot Both wounds were inflicted on spinning was still you at the time fired or Anderson’s left side. The wounds are en- tirely turning? consistent with the facts established at the criminal trial. The uncontroverted may “A. possible. That have been He facts established trial already position in a to where he testimony Anderson’s own are as follows. could have fired weapon at us. It’s apart- Anderson exited the stairwell to his there, you so fast say can’t where standing top landing ment and when on the person going one to fire and another facing to the stairwell he was north. With person going might just fire. It (barrel port-arms position split mean thousandths of seconds dif- —I hand) held Anderson’s left ference, which is nothing.” almost body roughly parallel was at all times This was uncontroverted at the words, gun barrel. other the end of criminal trial and remains uncontroverted the barrel and the left side of Anderson’s allegations found Anderson’s affi- body always would face the same direction. majority’s davit. The assertion that (Anderson’s testimony own was that criminal action did not necessarily decide gun port-arms position never left the ex- “that pointing Anderson was shotgun cept reentering apartment.) when his anyone shot,” at the time he was ante at top landing, Once on the Anderson saw short, In entirely unwarranted. (or west). person someone to his left That present district court in the case cor- was Mark Romriell. rectly concluded that “under the total cir- “Q. you When top ... came out of the cumstances and the brief in which all [time] stairs, you of the saw your someone to place, relevant events took as the officers left? were shotgun faced with a reasonably “A. Yes. known to them to firing be loaded and in “Q. you Were able to determine who position; gun and with turning toward that was? port them in a position arms or lower after “A. No. otherwise, ordered their actions ... “Q. cannot right. be said All (Em- to be You now know unreasonable.” based on phasis added.) testimony who it was? Thus, port-arms firearm in the Mark Romriell.” with the

“A. Yes. It was position pointed at Officers Black and heard, (or right Anderson then off Gentillon, Anderson’s left side would have east) the command from Officer Black officer, i.e., in facing been the line also partially he turned in that “freeze” and (As earlier, of fire. indicated direction. n admittedthat he pointed at the “Q. happened next that Okay. What where Officers Black and Gentillon sites you recall? located, which was to the east of the right, I “Freeze” off to the “A. heard top stairway. only The time this right. I and turned to gun in possible have been with the would

port-arms position was when Anderson was like Okay. “A. I turned to the north south, i.e., facing facing when he was Okay. I looking at the tree. was stairway.) Gentillon then ordered looking “Drop it.” after this at the tree. Anderson to Seconds order, positioned both who were “Q. Why you did look at the tree? other, nearly one fired simulta- behind thought I “A. that’s where Because testimony own com- neously. Anderson’s from was the tree.” ‘Freeze’ come in the ports with the fact that he was shot “freeze,” hearing After the command to left side. When the shots were fired then, according testimony, to his (The turning uncontra- was to face south. to turn back towards the stairwell started Gentillon, dis- dicted of Officer (or south). point It was at this earlier, elapsed time cussed was gun pointed positions of Officers firing turning to- from to Anderson’s back Black and Gentillon. ward the stairwell fractions of a sec- was “Q. anything right. you All Did hear ond.) At that the barrel of the shot- after that [command ‘freeze’]? gun, port-arms position, would have been No, I just I did not. I “A. left, facing placing east his left side —turned. and headed back to turned back around directly in the line of fire Officers here, I got I about doorway. When Anderson’s own testi- Black and Gentillon. heard a ‘Hold it.’ three feet mony that he was two to when the doorway from the to the stairwell Now, there, “Q. how far from the about fired. shots were your apartment, the stair- entryway to way 1 short, facts, as established at the testimony, by Anderson’s own criminal trial I I is about five feet. So “A. think this Anderson was turn- clearly indicate that as might gone two feet have about another stairway leading to his back toward the back, taking step when I heard— one aiming his firearm at the apartment he was “Q. you’re probably still Okay. So held that this jury verdict officers. doorway? three feet from the accidental, as asserted aiming was not probably I closer “A. think it was intentional. majority, that it was but doorway. two feet from the facts, at the criminal as established testimony), (indeed own trial got “Q. you when Where were you aiming at clearly indicate that Anderson’s shot? the shots ceased when the officers had not feet from “A. I think I was about two no conclusion There can be were fired. got the door when I shot. Anderson intentional- except appellant you “Q. Okay. What direction were ly aimed facing you got when shot? the officers’ actions therefore reasonable. “A. South. “Q. your Towards door prove Anderson to was on The burden —the

stairway ? not reason- conduct was that the officers’ good faith. able or not taken added.) “A. (Emphasis That’s correct.” in this The alle- has failed burden. factual

gations support which he asserts legally

claim both are insufficient estop- of collateral

barred doctrine

pel.6 majority in its less than The errs analysis

careful of the facts on the record us, properly

before its failure to

analyze the two most recent decisions Supreme dis- United States Court. The

trict summary judgment court’s should

affirmed.

SHEPARD, C.J., concurs.

731 P.2d 192 SIVAK,

Lacey Petitioner-Appellant, M. Idaho, Respondent. STATE

No. 15864.

Supreme Court Idaho.

Nov. 1986.

Rehearing Denied Jan. special ignores 6. The concurrence and his effect affidavit sworn at criminal estoppel upon allegations very application collateral has trial underscore the need for special estoppel. found in Anderson’s affidavit. As the above doctrine collateral indicates, ignore discussion the facts established at the us concurrence would have testimony criminal trial Anderson's own are criminal own trial and contrary allegations directly jury’s finding intentionally contained in aimed his affidavit. The conflict between at the firearm officers.

Case Details

Case Name: Anderson v. City of Pocatello

Court Name: Idaho Supreme Court

Date Published: Jan 28, 1987

Citation: 731 P.2d 171

Docket Number: 15703

Court Abbreviation: Idaho