JACK CHRISTOPHER CARSWELL v. KYLE FERRARI
Case No. 1:23-cv-00468-BLW-REP
UNITED STATES DISTRICT COURT DISTRICT OF IDAHO
July 11, 2025
Raymond E. Patricco, Chief U.S. Magistrate Judge
Document 46, Filed 07/11/25
PROCEDURAL HISTORY
Plaintiff filed this civil rights lawsuit on October 19, 2023. (Dkt. 1.) Only one claim survived the initial screening process: a First Amendment retaliation claim alleging that a Nampa police officer – Defendant Kyle Ferrari – improperly charged Plaintiff with misdemeanor crimes of disturbing the peace for yelling “fuck the police” at a neighbor on three different occasions. (Dkt. 12.)
On April 28, 2025, Defendant Ferrari filed a motion for summary judgment, which asserted qualified immunity and asked the Court to dismiss Plaintiff‘s First Amendment claim with prejudice. (Dkt. 40.) To supрort this motion, Defendant submitted three affidavits. Id. Defendant also filed a motion for judicial notice, asking the Court to consider several state court
On June 9, 2025, the undersigned‘s staff attorney emailed Mr. Carswell to inquire about the missing summary judgment response. Mr. Carswell responded with an email indicating that he was no longer willing to participate in the case, because he believes that that the judges assigned to the matter have “refused to honor their Oaths of office to the Constitution” and have issued unfair, unjust, and incompetent rulings against him.1
When а litigant elects not to file a response to an evidentiary motion, like a motion to take judicial notice, “such failure may be deemed to constitute a consent to . . . the granting of said motion.” District of Idaho Local Civil Rule 7.1(e)(1). Here, Plaintiff has made a deliberate decision not to contest any of the facts that Defendant has presented in support of his motion for summary judgment. The undersigned, consequently, recommends that the Court grant the motion for judicial notice.
The Court may not take the same streamlined approach to Defendant‘s motion for summary judgment. Even when a litigant fails to file a response to a summary judgment motion, the Court must “independently evaluate the sufficiency of the motion.” Cristobal v. Siegel, 26 F.3d 1488, 1491 (9th Cir. 1994) (where a nonmoving party fails to respond to a motion for summary judgment, this alone does not provide authority to grant the motion); see also District of Idaho Local Rule 7.1(e)(2) (“In motions brought under
FACTUAL BACKGROUND
The following facts are undisputed. On the evening of October 10, 2023, Kyle Ferrari, a Nampa Police Department (NPD) officer, responded to a call regarding an alleged disturbance in Plaintiff Jack Christоpher Carswell‘s neighborhood. PC Aff. at 1 (Dkt. 41, pp. 3-4). The individual who reported the disturbance was a man named Thomas Chevallier. Id.; see also Ferrari Aff. ¶ 2 (Dkt. 40-3). Mr. Chevallier told Officer Ferrari the following:
In the beginning of September, Mr. Chevallier was outside in his front yard when a man driving a black truck stopped, rolled down his window, and yelled “Hey . . . fuck the police” at him. PC Aff. at 1 (Dkt. 41, pp. 3-4). At the time, Mr. Chevallier believed the driver was not from his neighborhood. Id. A few days later, however, Mr. Chevallier saw the black truck parked at a house a few streets away. Mr. Chevallier learned from another neighbor that the truck belonged to Mr. Carswell. Id.
On October 10, 2023, Mr. Carswell drove by Mr. Chevallier‘s house and yelled “fuck the police” again. This time, Mr. Chevallier‘s wife was inside the garage getting ready for a vacation. Id. According to Mr. Chevallier, Mr. Carswell‘s yelling startled and scared his wife and was so loud he could hear it from inside the home. Id. Mr. Chevallier immediately went to Mr. Carswell‘s house and spoke with Mr. Carswell through a “camera doorbell.” Id. According to Mr. Chevallier, Mr. Carswell began cussing at him and told him to get off his property or else he would shoot him. Id.
After hearing this story, Officer Ferrari attempted to contact Mr. Carswell to issue him a misdemeanor summons for disturbing the peace, but Mr. Carswell did not answer his door. Id.
Later that evening, Officer Ferrari and another NPD officer went to Mr. Carswell‘s home. Once again, Mr. Carswell failed to answer the door. Ferrari Aff. ¶ 3 (Dkt. 40-3). Officer Ferrari spoke to the ring camera and told Mr. Carswell he would be seeking a warrant for his arrest for disturbing the peace. Id. Officer Ferrari also told Mr. Carswell to stop harassing his neighbors.2 Id.
Two days later, on October 18, 2023, Officer Ferrari signed a probable cause affidavit, charging Mr. Carswell with disturbing the peace under
On November 20, 2023, a judge in Washington County, Idaho issued a warrant for Mr. Carswell‘s arrest for failing to appear on an unrelated careless driving charge. See Bench Warrant (Dkt. 41, pp. 5-6). On January 17, 2024, NPD Officer J. Krohn went looking for Mr. Carswell to arrest him on this warrant. Krohn PC Aff. At 1 (Dkt. 41, pp. 7-8). During the arrest,
The day after the arrest, on January 18, 2024, the Canyon County prosecutor‘s office filed a criminal complaint charging Mr. Carswell with three counts of disturbing the peace for yelling “fuck the police” at the Chevallier home on September 5, October 10, and October 16, 2023. See Crim. Compl. (Dkt. 41, pp. 9-11). The Canyon County Clerk of Court issued a criminal summons ordering Plaintiff to appear on these charges. See Summons (Dkt. 11-1, pp. 16-18). But the summons was returned “non-found” by a Nampa police officer (who was not Officer Ferrari) the same day it was issued. Id.
Several months later, on March 7, 2024, Judge Debra Orr issued a warrant directing that Plaintiff be arrested on the disturbing the peace charges. See Arrest Warrant (Dkt. 41, pp. 12-16). NPD Officer Bobby Maddox executed the warrant on March 22, 2024. Id.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In deciding whether there is a genuine dispute of material fact, the Court must view the facts in the light most favorable to the nonmoving party. Id. at 255; Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (“Viewing evidence in the light most favorable to the nonmoving party, we must determine whether there any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.“) (citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)). The court is prohibited from weighing the evidence or resolving disputed issues in the moving party‘s favor. Tolan v. Cotton, 572 U.S. 650, 657 (2014).
QUALIFIED IMMUNITY
Qualified immunity shields law enforcement officials from liability for harm caused by reasonable mistakes, protecting all but the “plainly incompetent or those who knowingly violate the law.” Easley v. City of Riverside, 890 F.3d 851, 856 (9th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). Thе qualified immunity inquiry involves two steps. When a defendant asserts qualified immunity, the Court must evaluate: (1) whether the defendant violated a constitutional right, and (2) whether the constitutional right was clearly established at the time of the defendant‘s conduct, i.e., whether the contours of the right were sufficiently well developed that a reasonable official should have known his conduct was unlawful. Id. Unless the answer to both questions is “yes,” the defendant is entitled to immunity. Id.
In conducting this inquiry, the Court adopts the plaintiff‘s version of the facts. Tolan, 572 U.S. at 655-656; Easley, 890 F.3d at 856 (evaluating a qualified immunity summary judgment motion by drawing factual inferences in the light most favorable to the plaintiff, the nonmoving party).
The Court maintains the discretion to address either prong of the qualified immunity analysis first. Easley, 890 F.3d at 856.
The First Amendment prohibits the government from punishing individuals for criticizing the police. Houston v. Hill, 482 U.S. 451, 461 (1987); see also Duran v. Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (“The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state.“). If an “official takes adverse action against someone” based on such criticism, therefore, “and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019). There are three basic elements to such a claim. Ariz. Students’ Ass‘n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). First, the plaintiff must show that he engaged in constitutionally protected activity. Id. Second, the defеndant must have subjected the plaintiff to an adverse action that would “chill a person of ordinary firmness” from continuing to engage in the protected activity. Id. Third, the protected activity must have been a substantial motivating factor in the defendant‘s conduct. Id.
During the initial screening process, the district judge who was originally assigned to the case - Judge Amanda K. Brailsford – reviewed Officer Ferrari‘s probable cause affidavit and determined that the information set forth therein satisfied each of these elements. Fourth Screening Order at 5-7 (Dkt. 12.) The only challenge Defendant raises to this reasoning is that Plaintiff‘s speech should be classified as unprotected fighting words. For the reasons set forth in detail below, this argument is uncompelling. The undisputed evidence supports Plaintiff‘s claim that Officer Ferrari charged him with a crime for shouting a political message – “fuck the police” at a neighbor who found this message unwelcome.
A. Fighting Words
Defendant‘s primary contention on summary judgment is that Plaintiffs statements constitute “fighting words.” In other words, Defendant maintains that Plaintiffs criticism of the police was not constitutionally protected. The undersigned disagrees. Fighting words are one of a few limited categories of speech that the Supreme Court has permitted states to outlaw. See United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (listing the “traditional categories” of speech that are not considered part of “the freedom of speech“). In her Fourth Screening Order, Judge Brailsford addressed the applicability of the “fighting word” exception to this case and held that it did not apply. Fourth Screening Order at 5-6 (Dkt. 12.) While this decision was summary in nature and was made without the benefit of briefing, it is indictive of the weakness of Defendant‘s position.
Fighting words are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent
Saying “fuck the police” in response to someone displaying a thin blue line flag – i.e. to someone showing support for the police – does not satisfy either of these requirements. See Cohen, 403 U.S. at 20 (wearing a jacket that said “Fuck the Draft” to a courthouse could not be considered fighting words) and State v. Suiter, 138 Idaho 13, 16 (Idaho 2002) (telling a detective to “fuck off” may be “vulgar and impolite,” but cannot be charactеrized as fighting words, under Cohen and Chaplinsky, because it is a relative common phrase that does not demean or abuse the person to whom it is directed); see also Poocha, 259 F.3d at 1081 (explaining that “[i]t is a
The only action Plaintiff took before October 18, 20234 that could be characterized as a personal insult was to point his middle finger at Mr. Chevallier once, on October 16, 2023. Like saying “fuck off,” this is a relatively common expression of frustration. See Hackbart v. City of Pittsburgh, No. 2:07CV157, 2009 WL 10728584, at *4 (W.D. Pa. Mar. 23, 2009) (“the middle finger gesture - like the f-word - has become part of the American vernacular,” appearing “on streets and highways, in schools, shopping malls, concert venues, stadiums, courts, execution chambers, in advertisements and on magazine covers, and even on the hallowed floors of legislatures“) (citing Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1407-1410 (2008)). Defendant does not argue that Plaintiff‘s use of this gesture transforms what would otherwise be protected political speech into fighting words.
In short, Plaintiff‘s behavior is a far cry from the statements that courts have treated as fighting words. See Gower v. Vercler, 377 F.3d 661, 670 (7th Cir. 2004) (where a man called his father-in-law a “fat son-of-a-bitch” and a coward and repeatedly said, “fuck you” to his in-laws after brandishing a butcher knife at them the night before, his speech taken together represented fighting words) and United States v. Stagno, 839 F. App‘x 112, 115-116 (9th Cir. 2020) (unpublished) (a defendant‘s conduct qualified as “fighting words” where the defendant at a medical facility used racial epithets, “challenged both another patient and the clinic security guard to fights” and gave clinic staff the middle finger).5 The Court should hold that Plaintiff‘s statements are protected by the First Amendment.
Officer Ferrari also asserts qualified immunity as a defense to Plaintiff‘s First Amendment claim. Qualified immunity shields officers from civil liability unless every reasonable officer in the defendant‘s position would have understood that his behavior violated the right at issue. Perez v. City of Fresno, 98 F.4th 919, 924 (9th Cir. 2024). While this does not require a case directly on point, “existing рrecedent must have placed the statutory or constitutional question beyond debate.” Id.
As the prior discussion illustrates, it is well-settled that criticism of the police is protected speech, no matter how profanely worded the criticism may be. Cohen, 403 U.S. at 20; Poocha, 259 F.3d at 1082 (“Criticism of the police, profane or otherwise, is not a crime.“); see also Ballentine, 28 F.4th at 63 (a protestor who chalked anti-police messages, such as “FUCK PIGS!” and “FUCK THE COPS” on the sidewalk was engaged in protected speech). It is also well-settled that using “fuck” to express generalized anger or frustration during a heated exchange is not speech that can be criminalized as “fighting words.” Suiter, 138 Idaho at 16. Taken together, these cases, and others like them, make it clear that it is unlawful to criminally charge a plaintiff for simply for saying “fuck the police” to a neighbor who is flying a thin blue line flag.6 In other words, it was clearly unconstitutional for Officer Ferrari to charge Plaintiff with a
But there is sufficient evidence for a jury to find that this is exactly what happened. According to his probable cause affidavit, Officer Ferrari attempted to cite Plaintiff for disturbing the peace on October 10, 2023, simply because Plaintiff yelled “fuck the police” at his neighbor twice. To explain this decision, Officer Ferrari noted, among other things, that Plaintiff‘s “statеments alone” and his “foul language” were making the Chevalliers uncomfortable. To the extent a jury finds that Officer Ferrari charged Plaintiff based on the content of his statements or his “foul language,” Officer Ferrari is not entitled to qualified immunity. See Ballentine, 28 F.4th at 59 (explaining that it is clearly established that “an arrest supported by probable cause but made in retaliation for protected speech violates the First Amendment“).
C. The Nieves Requirements
Having determined that a jury could find for Plaintiff on the three traditional elements of a First Amendment retaliation claim, the undersigned must now consider whether Plaintiff has proved the absence of probable cause or presented evidence of differential treatment as required by Nieves. The undersigned will address each issue in turn.
1. Probable Cause
To determine whether an officer had probable cause for an arrest, the court examines “the totality of circumstances known to the arresting officer[]” and asks whether these circumstances would have caused “a prudent person” to conclude “that there was a fair probability” that the suspect was committing or had committed a crime. United States v. Price, 980 F.3d 1211, 1225 (9th Cir. 2020). “Probable cause is not a high bar.” District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (internal citation omitted). It only requires “a probability or substantial chance of criminal activity, not an actual showing of such activity.” Id.
Idaho has adopted a disturbing the peace statute that makes it a crime to “maliciously and willfully disturb[] the peace or quiet of any neighborhood, family or person,” by
- loud or unusual noise;
- tumultuous or offensive conduct;
- threatening;
- traducing;
- quarreling;
- challenging to fight; or
- fighting.
Here, Defendant argues that he had probable cause to charge Plaintiff with disturbing the peace because Plaintiff‘s statements constituted “fighting words.” Defendant also maintains that Plaintiff engaged in сonduct that is prohibited under
i. Quarreling
In Poe, the Idaho Supreme Court explained that quarreling is prohibited under
ii. Loud or Unusual Noise
As set forth above, Idaho law makes it a crime to “maliciously and willfully disturb[] the peace or quiet of any neighborhood, family or person, by loud or unusual noise.”
Here, Plaintiffs statements were clearly purposeful, and there was probable cause to believe they were intended to annoy his neighbors. The only question is whether they were sufficiently loud to warrant the filing of criminal charges. The Idaho Supreme Court‘s Suiter decision is instructive in answering this question.
In Suiter, the Idaho Supreme Court considered whether a man who became “agitated and critical of the sheriff‘s office” while talking to a detective in the records division at the courthouse was properly convicted of disturbing the peace after telling that detective to “fuck off.” Suiter, 138 Idaho at 14-15. According to the witnesses who overheard the dispute, the
That holding controls the outcome here. According to Officer Ferrari‘s probable cause affidavit, on October 10, 2023, Plaintiff yelled so loudly at the Chevaillers home that Mr. Chevailler could hear him from inside the house and the shouting scared his wife inside the garage. Under Suiter, such yelling can be loud enough to support a conviction for disturbing the peace.
2. Differential Treatment
Because Officer Ferrari possessed probable cause to cite Plaintiff for disturbing the peace by loud or unusual noise, Plaintiff‘s First Amendmеnt claim can only proceed if Plaintiff presents “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech [would not have] been.” Ballentine, 28 F.4th at 62. In 2024, the Supreme Court clarified that this standard does not require “specific comparator evidence.” Gonzalez v. Trevino, 602 U.S. 653, 658 (2024). A plaintiff alleging a retaliatory arrest may satisfy the Nieves exception in a variety of ways, including by producing statistical data regarding law enforcement‘s use of the relevant criminal statute, identifying other
Here, Plaintiff has elected not to present any evidence in support of his case and has failed to satisfy his burden under Nieves. The Court, accordingly, has little choice but to grant summary judgment in favor of Officer Ferrari.
The undersigned is not entirely comfortable with this outcome. As outlined above, Officеr Ferrari‘s affidavit suggests that Plaintiff was not charged based on the volume of his voice, but on the content of what he said. It troubles the undersigned to overlook this evidence. The Supreme Court, however, has held that “the statements and motivations of the particular arresting officer are irrelevant” to the application of the Nieves exception. Nieves, 587 U.S. at 407. In her Nieves dissent, Justice Sotomayor foreshadowed some of the problems with this standard. As she explained, “direct admissions may often be the best available evidence of unconstitutional motive.” Nieves, 587 U.S. at 428 (Sotomayor, J., dissenting). Excluding such evidence from consideration can, in some cases, “have the strange effect of requiring courts to blind themselvеs to smoking-gun evidence while simultaneously insisting upon an inferential sort of proof that, though potentially powerful, can be prohibitively difficult to obtain.” Id.
Here, for example, Officer Ferrari‘s own statements would be sufficient for a jury to find that he charged Plaintiff with a crime because Plaintiff said “fuck the police” to a retired police
While this test has shortcomings, it is worth noting that it does not categorically foreclose claims like the one Plaintiff brings here. Plaintiff had been afforded an opportunity to request discovery regarding how the Nampa police have enforced the disturbing the peace statute against other individuals. The undersigned suspects that diligent engagement with this process could have generated sufficient evidence to satisfy Nieves. Plaintiff, however, has elected to stop prosecuting his case. And, the Court cannot assume that task for him. Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A district court lacks the power to act as a party‘s lawyer, even for pro se litigants.“). The undersigned, accordingly, recommends that the Court grant Officer Ferrari‘s motion for summary judgment.
CONCLUSION
This lawsuit raises serious concerns about the constitutionality of the Nampa police department‘s interactions with Plaintiff. Based on the information presented in the probable cause affidavit and the corroborating affidavits, a reasonable juror could find that Officer Ferrari charged Plaintiff with disturbing the peace because Plaintiff expressed negative views about the
RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
- The Court grant Defendant‘s Moton to Take Judicial Notice (Dkt. 41);
- The Court grant Defendant‘s Motion for Summary Judgment (Dkt. 40);
- The Court dismiss the case with prejudice.
Written objections to this Report and Recommendation must be filed by August 1, 2025. See District of Idaho Local Civil Rule 72.1(b)(2) (permitting the Court to expand the objection рeriod). Failure to file an objection may waive the right to raise factual and/or legal objections to the United States Court of Appeals for the Ninth Circuit.
DATED: July 11, 2025
Raymond E. Patricco
Chief U.S. Magistrate Judge