RICHARD PIKE, Plаintiff-Appellee, v. J. BRAD HESTER, in his official and individual capacities, Defendant-Appellant, and SEAN MUNSON, in his official and individual capacities; RICK KEEMA, in his official and individual capacities; JIM PITTS, in his official and individual capacities; ELKO COUNTY SHERIFF‘S OFFICE, a government entity; ELKO COUNTY, Nevada, a government entity, Defendants.
No. 16-16764
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
June 6, 2018
D.C. No. 3:12-cv-00283-RCJ-VPC. Appeal from the United States District Court for the District of Nevada. Robert Clive Jones, Senior District Judge, Presiding. Submitted October 10, 2017. San Francisco, California.
FOR PUBLICATION
OPINION
Before: Diarmuid F. O‘Scannlain, A. Wallace Tashima, and Jay S. Bybee, Circuit Judges.
Opinion by Judge Tashima; Dissent by Judge O‘Scannlain
The panel unanimously finds this case suitable for decision without oral argument. See
SUMMARY**
Civil Rights
The panel affirmed the district court‘s summary judgment denying qualified immunity to a sheriff‘s sergeant in an action brought pursuant to
Prior to filing his
The panel held that issue preclusion did apply and that the panel was bound by the state justice‘s conclusion that the sergeant violated the Fourth Amendment. Applying Nevada issue preclusion law, the panel determined that: (1) the alleged Fourth Amendment violation was at issue in the state court proceeding; (2) the sergeant was a party; (3) the state justice‘s order extending the protective order was final for issue preclusion purрoses; and (4) the state justices actually and necessarily litigated the Fourth Amendment issue and found that the search was not lawful. The panel further held that it was clearly established at the time of the search that the sergeant‘s conduct violated plaintiff‘s rights.
Dissenting, Judge O‘Scannlain disagreed with the majority‘s holding that a two-month restraining order, granted by a state court of limited jurisdiction, has issue-preclusive effect with respect to a
COUNSEL
Katherine F. Parks, Brian M. Brown, and Kevin A. Pick, Thorndal Armstrong Delk Balkenbush & Eisinger, Reno, Nevada, for
OPINION
TASHIMA, Circuit Judge:
In 2011, J. Brad Hester, a sheriff‘s sergeant, conducted an after-hours dog search of Richard Pike‘s locked office. Pike successfully petitioned a state court for an order of protection against Hester. Pike later sued Hester in federal district court, claiming that the search violated his Fourth Amendment rights. In district court, Pike moved to preclude from relitigation certain issues he said the state court had already decided. The district court granted the motion in part. Pike later moved for offensive summary judgment on his Fourth Amendment claim. The district court granted the motion, concluding that Hester‘s search violated the Fourth Amendment and that Hester was not entitled to qualified immunity because Pike‘s right to be free from such a search was clearly established. Hester appealed.
We too conclude that Hester violated Pike‘s clearly established constitutional rights, although we depart from the district court‘s analysis in some respects. First, we hold that the state justice court‘s conclusion that Hester violated the Fourth Amendment is precluded from relitigation. Second, because it was clearly established at the time of the search that Hester‘s conduct violated Pike‘s rights, Hester is not entitled to qualified immunity. We affirm.
I. Factual Background
In 2011, Hester was a sergeant in the Elko County Sheriff‘s Office. Pike was the Elko County recreation director and the assistant high school football coach in the Elko County unincorporated town of Jackpot, Nevada. In his role as recreation director, Pike worked out of an office — shared with his assistant — at the Jackpot Recreation Center (the “Center“) in Jаckpot. Pike and Hester did not have a friendly relationship, which Hester attributed to Pike‘s alleged mistreatment of one of Hester‘s sons in 2007. Hester and Pike‘s relationship soured in October 2007, when, Hester alleges, Pike hit Hester‘s son, a high school football player, during a football game that Pike was coaching. Hester‘s son was then benched for the second half of the game and suspended for the following game for arguing with Pike.
A. The Search of Pike‘s Office
In August or September 2011, Hester activated the sirens on his patrol car to pull over Lynn Forsberg, the county director of public works and Pike‘s boss. Hester had a request for Forsberg. Hester told Forsberg that he believed that certain Center employees, including Pike, were “dealing drugs” out of the building.1 Hester asked Forsberg if he “would care” if
Soon thereafter, and without further talking to Forsberg, Hester led a nighttime search of the Center. Hester, who was off duty and in plainclothes, was accompanied by Deputy Sean Munson, K-9 Deputy Mike Moore, and Moore‘s drug dog. Hester used his key to unlock the Center. The dog searched the entire building in about ten minutes. As part of the search, Hester unlocked the door to Pike‘s office and entered with Moore and the dog. The dog did not alert to drugs anywhere in the office. The officers did not open any drawers or touch any items in the office. Hester asked Moore to have the dog sniff a file cabinet outside Pike‘s office a second time because the dog had scratched it on the first pass, but the dog did not alert on the second pass. The officers did not take any notes during the search and did not file a report afterward.
The animosity between Pike and Hester escalated. Pike learned of the search a few weeks later and filed a grievance with the sheriff‘s office. Some time after the search, Hester met with the high school athletic director, Kim Smith, to complain about Pike‘s conduct as a football coach. Hester also told Smith that Pike was “one of the biggest potheads in town.” When Pike learned about that conversation, he asked Smith to write a letter documenting her meeting with Hester. Pike then complained to a sheriff‘s office lieutenant a second time.
In January 2012, after an internal affairs investigation, the sheriff‘s officе suspended Hester without pay for 30 hours because the search of Pike‘s office was “conduct unbecoming” an officer. The letter informing Hester of the discipline did not mention the Smith meeting.
B. Justice Court Proceedings
On November 15, 2011, Pike petitioned the Elko County Justice Court for a temporary restraining order (“TRO“) because, he alleged, Hester was stalking him in violation of state law.
A person who, without lawful authority, willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, and that actually causes the victim to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, commits the crime of stalking.
Among the bases for Pike‘s TRO petition was Hester‘s search of Pike‘s office. Pike alsо claimed that after he had filed the second grievance, Hester “repeatedly drove by [Pike‘s] residence and/or stopped and stared at him.” Without holding a hearing, the justice court issued a TRO.
Pike then applied for a two-month extension of the protective order. The justice court held a hearing on December 12, 2011, at which Pike, Hester, Forsberg, and other witnesses testified. The court extended the protective order and explained its decision in an addendum. It was not
Neither party disputes that Hester directed a “dog sniff” search of the Jackpot Recreation Center without a warrant and outside the presence of Forsberg . . . .
Given Forsberg‘s testimony, and especiаlly given the animosity that existed between Pike and Hester at the time of the search, the court concludes that Hester did not have lawful authority to search Pike‘s office.
In a footnote, the court elaborated:
The court certainly cannot conclude that there was probable cause to search Pike‘s office on this record. On this record, the court concludes that Hester‘s desire to search was colored by his animosity toward Pike. At this point, the court cannot conclude that the search was either lawful under the Fourth Amendment . . . or done with NRS 200.571 “lawful authority.”
(Emphasis in original.)
The justice court extended the protective order once again in March 2012. Hester did not appeal from either justice court order.
C. District Court Proceedings
In May 2012, Pike sued Hester and other defendants in federal court, claiming, inter alia, that the office search violated the Fourth Amendment. Pike then moved the district court to apply issue preclusion basеd on the justice court‘s conclusions that “Forsberg did not give Defendant Hester authority to search the Jackpot Recreation Center outside of Mr. Forsburg‘s [sic] presence” and “Defendant Hester did not have lawful authority at the time of the search.” The district court granted the motion in part, explaining, “The justice court also found that ... ‘Hester did not have lawful authority to search Pike‘s office.’ ... These specific findings, except for the last finding insofar as it concerns an ultimate Fourth Amendment violation, are precluded from relitigation.” In a footnote, the district court clarified why it was not granting preclusive effect to the justice court‘s Fourth Amendment conclusions:
Although the alleged Fourth Amendment violation was not directly at issue in the justice court, the justice court does appear to have held that Hester exceeded his lawful authority as a Nevada peace officer to conduct the search. Still, because the ultimate issue (whether to issue an [extended protective order]) did not require a finding of a Fourth Amendment violation, that issue was not necessarily determined.
Pike then moved for offensive summary judgment on his Fourth Amendment claim. Initially, the district court granted the motion without the benefit of responsive briefing, as the court had concluded that defendants failed to timely respond. On appeal, this court vacated the order because the district court had miscalculated the due date of defendants’ opposition and remanded for the district court to consider Pike‘s motion in light of defendants’ brief. Pike v. Munson, 623 F. App‘x 887 (9th Cir. 2015).
On remand, the district court granted Pike‘s motion for summary judgment against Hester. In so doing, the district court noted that in its earlier issue preclusion order it had concluded that the “ultimate issue of a Fourth Amendment violation had not been directly litigated” and was not precluded. The district court then assessed, on the merits, whether Hester‘s search violated the Fourth Amendment. The court determined that Pike had a
II. Standard of Review
We have jurisdiction under
We review questions of issue preclusion de novo. Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992).
III. Discussion
We are asked to decide whether Hester is entitled to qualified immunity for his search of Pike‘s office. A government official is entitled to qualified immunity if his “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Our inquiry thus has two steps: “(1) whether the defendant violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” Isayeva v. Sacramento Sheriff‘s Dep‘t, 872 F.3d 938, 945 (9th Cir. 2017). A court may address either step first. Pearson, 555 U.S. at 236.
A. Constitutional Violation & Issue Preclusion
We first assess whether Hester violated Pike‘s Fourth Amendment rights. The Fourth Amendment prohibits “unreasonable searches and seizures” by government officials.
On appeal, Hester challenges Pike‘s Fourth Amendment claim on multiple substantive grounds.4 We decline to
Hester contends that the district court‘s grant of summary judgment for Pike should be reversed because, at least in part, the court wrongly applied issue preclusion to Pike‘s Fourth Amendment claim based on the justice court‘s finding that Pike was entitled to an extended protective order. In fact, the district court expressly disclaimed doing so in both its original order applying preclusion and in the summary judgment order on remand, explaining that the “ultimate issue of a Fourth Amendment violation” was not precluded. The district court instead granted Pike summary judgment on the merits. However, on appeal we conclude — contra the district court — that issue preclusion resolves whether Hester violated the Fourth Amendment.
Issue preclusion, or collateral estoppel, precludes relitigation of an issue already litigated and determined in a previous proceeding between the same parties. Clark, 966 F.2d at 1320. A federal court applying issue preclusion “must give state court judgments the preclusive effect that those judgments would enjoy under the law of the state in which the judgment was rendered.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 993 (9th Cir. 2001). In this case, because we examine the preclusive effect of a Nevada state court decision, we apply Nevada issue preclusion law.
Under Nevada law, issue preclusion applies when four elements are met: the issues in both cases are identical, the first ruling was “on the merits and . . . final,” the party against whom preclusion is sought was a party to or in privity with a party to the previous case, and “the issue was actually and necessarily litigated” in the previous case. Corp. v. Ruby” cite=“194 P.3d 709” pinpoint=“713” court=“Nev.” date=“2008“>Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008). The party seeking to apply issue preclusion bears the burden of proving that it applies. Bower v. Harrah‘s Laughlin, Inc., 215 P.3d 709, 718 (Nev. 2009). Issue preclusion applies equally to issues of fact or law. Univ. of Nev. v. Tarkanian, 879 P.2d 1180, 1191 (Nev. 1994).
First, we ask whether the Fourth Amendment was at issue in the justice court. The issues in two cases may be identical “even though the causes of action are substantially different, if the same fact issue is presented.” LaForge v. Nev., Univ. & Cmty. Coll. Sys. of Nev., 997 P.2d 130, 134 (Nev. 2000). Thus it does not matter that Pike‘s cause of action in the first case was for stalking, while in this case he claims a Fourth Amendment violation.
Under the Nevada stalking statute, a person stalks another only if, among other things, he lacks “lawful authority” for his actions.
Second, Hester contends that the parties to the justice court action were not identical to those before the district court because, in federal court, Pike sued additional officers and Elko County entities. However, Nevada law only requires that the party against whom preclusion is sought have been a party to the first proceeding. Five Star Capital, 194 P.3d at 713. Hester, against whom Pike seeks to apply preclusion, was a party to the justice court case.
Hester contends that the third element of issue preclusion is not satisfied because the justice court‘s decision was not final. “[T]he initial ruling must have been on the merits and become final.” Id. Nevada courts have not confronted the precise question of whether an extended protective order is final for issue preclusion purposes. In developing the state‘s prеclusion law, the Nevada Supreme Court has sought guidance from the Restatement of Judgments. See, e.g., Tarkanian, 879 P.2d at 1191. That authority counsels, “that the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal, are factors supporting the conclusion that the decision is final for the purpose of preclusion.” Restatement (Second) of Judgments § 13 (1982). All those factors are present in this case. The justice court held a hearing,7 reached the merits of Pike‘s stalking claim, and issued an order explaining its decision. Hester had a statutory right to appeal the justice court‘s extended order, although he did not do so. See Nev.
Lаstly, we assess whether the Fourth Amendment issue was “actually and necessarily litigated” in the justice court. The justice court‘s decision of the issue must have been “necessary to the judgment.” Alcantara ex rel. Alcantara v. Wal-Mart Stores, Inc., 321 P.3d 912, 918 (Nev. 2014) (emphasis omitted) (quoting Tarkanian, 879 P. 2d at 1191). If the deciding court could have reached its conclusion without resolving the disputed issue, the issue was not necessary to the judgment. Frei ex rel. Frei v. Goodsell, 305 P.3d 70, 73 (Nev. 2013). In addition, the party against whom preclusion is sought must have actually litigated the issue. Howard v. Sandoval (In re Sandoval), 232 P.3d 422, 424 (Nev. 2010). For example, “[w]hen a default judgment is entered where an answer has not been filed, the issue presented was not actually and necessarily litigated[.]” Id. at 425.
In the protective order proceeding, the justice court concluded that the search was not “lawful under the Fourth Amendment.” The court concluded that Hester lacked probable cause for the search and that “[g]iven Forsberg‘s testimony,” Hester did not have permission to search the building. To determine that Hester lacked probable cause and consent, the justice
In this case, the district court concluded — without explanation — that the “ultimate issue of a Fourth Amendment violation” was not precluded from relitigation because it was not essential to the justice court‘s ruling. At the same time, the district court held that the justice court‘s conclusion that “Hester did not have lawful authority to search Pike‘s office” was precluded from relitigation. However, the justice court‘s two conclusions necessarily go hand-in-hand, both were essential to the judgment. The court could only have issued the protective order if it concluded that Hester lacked lawful authority — meaning the search was not “protected or authorized by constitutional or statutory law,” such as the Fourth Amendment — to take the actions in question. See
Moreover, the justice court‘s conclusion that the search was conducted without lawful authority was essential to the judgment. Although the search was one of three factual bases for Pike‘s protective order petition, the justice court discussed only the search at any length. The justice court also explicitly tethered Hester‘s search to the Nevada statute at issue, concluding that Hester “did not have lawful authority to search Pike‘s office.” See
The issue was also actually litigated. Both Pike and Hester presented witness testimony at a one-day hearing. Forsberg and Hester testified about whether Forsberg consented to Hester‘s search. The justice court found that Forsberg was credible and rejected Hester‘s version of the events.
Finally, Hester had an incentive to litigate in the justice court. See Restatement (Second) of Judgments § 28 (1982). Although the dissent seizes on Pike‘s attorney‘s statement in the justice court that “there was no Fourth Amendment rights violated here,” Pike‘s attorney went on to emphasize that “[t]he question is what was the basis for the search” and to contend that Hester lacked Forsberg‘s consent. As the dissent acknowledges, “whether Hester had permission to search is critical to this case.” Dissent at 32. Setting aside whether Pike‘s attorney‘s statement bears on Hester‘s incentive to litigate, it is clear that whether Hester had consent to search — and thus whether he violated the Fourth Amendment — was at issue in the justice court and that Hester had every incentive to litigate it.8
B. Clearly Established Law
The conclusion that Hester violated Pike‘s constitutional rights does not end our qualified immunity inquiry. We must also ask whether Hester‘s conduct violated clearly established law. If the right was not clearly established, Hester is entitled to qualified immunity.
For qualified immunity purposes, a right is clearly established if “[t]he contours of that right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Calabretta v. Floyd, 189 F. 3d 808, 812 (9th Cir. 1999) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1984)). An exact factual match is not required; rather, “the unlawfulness must be apparent.” Id.; see also Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006) (holding that preexisting law must provide “fair warning“). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
Hester first contends that no single case has held that “a consensual K-9 sniff-sweep of a public employee‘s shared office” is unlawful. However, the justice court concluded the search was not consеnsual. The relevant question is whether a no-consent dog search of a public employee‘s office was clearly unlawful in 2011, when the search occurred. Supreme Court and Ninth Circuit precedent easily resolve that question
in the affirmative. See Chappell v. Mandeville, 706 F.3d 1052, 1056 (9th Cir. 2013) (stating that a court should look first to binding precedent to determine if a right is clearly established).9
In O‘Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court held that “[s]earches . . . by government employers or supervisors of the private property of their employees . . . are subject to the restraints of the
The fact that Hester‘s search involved a dog does not affect that conclusion. In 2011, it was clearly established that dog sniff searches are exempt from
Accordingly, it was clearly established in 2011 that a dog search of a public employee‘s private office violates the
* * *
The judgment of the district court is
AFFIRMED. The case is REMANDED to the district court for a trial or other determination of damages on Pike‘s
O‘SCANNLAIN, Circuit Judge, dissenting:
The majority holds that a two-month restraining order, granted by a state court of limited jurisdiction, has issue-preclusive effect with respect to a
I
A
The saga began in the Elko County Justice Court (Justice Court), which has jurisdiction to issue protective orders against “a person alleged to be committing the crime of stalking, aggravated stalking or harassment.”
On November 15, 2011, Richard Pike, an Elko County recreation director and assistant high school football coach, applied for a temporary restraining order against Elko County sheriff‘s sergeant J. Brad Hester. Pike applied on behalf of himself and his two children, and the application rested on several bases.
First, he alleged that Hester made false statements about Pike to others. Hester apparently told Kim Smith, the high school athletic director, that Pike was “one of the biggest potheads in town.”
Second, Pike alleged that Hester improperly searched his office. See Majority Op. Part I.A. The genesis of this dispute dates back to August 2011, when Hester and two deputies conducted a search of the Jackpot Recreation Center (Center), which included walking a drug dog through Pike‘s office in the Center. The search of
Third, Pike alleged that on at least several occasions, Hester drove by Pike‘s house and glared at him and his family. Pike also claims that Hester drove by his place of employment in a similar manner. This final incident prompted Pike to file an application for a restraining order against Hester.
The Justice Court issued an ex parte temporary restraining order (TRO) against Hester on November 15, 2011. The TRO was converted into a two-month extended order of protection (EOP) on December 14, 2011. In granting the EOP, the Justice Court explained that it could not “conclude that the search was either lawful under the
B
Pike later filed this suit against Hester and other defendants in the District of Nevada, alleging, inter alia, that Hester violated the
Pike moved the district court to give issue-preclusive effect to several of the Justice Court‘s findings. The district court, while granting issue preclusion on some findings, declined to grant issue preclusion on Pike‘s constitutional clаim, since “the ultimate issue (whether to issue an EOP) did not require a finding of a
Pike later moved for summary judgment on the question of qualified immunity. The court granted summary judgment in favor of Pike, finding that there was no genuine question of material fact that Hester‘s search violated clearly established
Pike does not argue that the district court erred by refusing to grant issue-preclusive effect to the Justice Court‘s
On appeal, Hester instead challenges the merits of the district court‘s order granting summary judgment to Pike on the issue of qualified immunity. Nonetheless, the majority, fashioning an argument that Pike declines to raise, affirms the district court‘s summary judgment order by stretching the issue preclusion doctrine to
II
A
Federal courts “can give the state proceedings no greater preclusive effect than the state courts would.” Shaw v. State of Cal. Dep‘t of Alcoholic Bev. Control, 788 F.2d 600, 607 (9th Cir. 1986) (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 386 (1985)). Thus, in determining whether the EOP should be preclusive in the instant action, we are bound by Nevada law. See Allen v. McCurry, 449 U.S. 90, 96 (1980).
Under Nevada law, the following four factors are necessary for the application of issue preclusion: “(1) the issue decided in the prior litigation must be identical to the issue presented in the current action; (2) the initial ruling must have been on the merits and have become final; (3) the party against whom the judgment is asserted must have been a party or in privity with a party to the prior litigation;’ and (4) the issue was actually and necessarily litigated.” Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008) (alterations omitted) (quoting Univ. of Nevada v. Tarkanian, 879 P.2d 1180, 1191 (Nev. 1994)). The burden to make this showing falls on Pike. See Bower v. Harrah‘s Laughlin, Inc., 215 P.3d 709, 718 (Nev. 2009).
B
Additionally, the application of issue preclusion is premised on the widely recognized understanding that the precluded party “have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.” Restatement (Second) of Judgments § 28 (Am. Law. Inst. 1982).1
This fundamental exception to the issue preclusion doctrine has roots in Nevada law, as issue preclusion “is based upon the sound public policy of limiting litigation by preventing a party who had one full and fair opportunity to litigate an issue from again drawing it into controversy.” Bower, 215 P.3d at 718 (internal quotations omitted) (emphasis added). And “[t]he most general independent concern reflected in the limitation of issue preclusion by the full and fair opportunity requirement goes to the incentive to litigate vigorously in the first action.” 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4423 (3d ed. 2017) (emphasis added). Therefore, Nevada‘s requirement that a party have a “full and fair opportunity to litigate,” Bower, 215 P.3d at 718, recognizes the common law concern that, in some instances, “[t]he stakes in the first action may be so small that extensive effort is not reasonable.” 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4423 (3d ed. 2017).
Appreciating this concern, the Supreme Court has cautioned that “[i]ssue preclusion may be inapt if ‘the amount in controversy in the first action was so small in relation to the amount in controversy in thе second that preclusion would be plainly unfair.‘” B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1309 (2015) (alterations
Following this course, every federal court of appeals considers one‘s incentive to litigate in the collateral estoppel context. See, e.g., Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295, 306 (D.C. Cir. 2015); DeGuelle v. Camilli, 724 F.3d 933, 935 (7th Cir. 2013); Kosinski v. Comm‘r, 541 F.3d 671, 677 (6th Cir. 2008); Maciel v. Comm‘r, 489 F.3d 1018, 1023 (9th Cir. 2007); Jean Alexander Cosmetics, Inc. v. L‘Oreal USA, Inc., 458 F.3d 244, 250 (3d Cir. 2006); Salguero v. City of Clovis, 366 F.3d 1168, 1174 (10th Cir. 2004); Simmons v. O‘Brien, 77 F.3d 1093, 1095 (8th Cir. 1996); In re Belmont Realty Corp., 11 F.3d 1092, 1097 (1st Cir. 1993); Sun Towers, Inc. v. Heckler, 725 F.2d 315, 322 n.7 (5th Cir. 1984); Cotton States Mut. Ins. Co. v. Anderson, 749 F.2d 663, 666 (11th Cir. 1984); Wickham Contracting Co. v. Bd. of Educ. of City of New York, 715 F.2d 21, 28 (2d Cir. 1983); Prosise v. Haring, 667 F.2d 1133, 1141 (4th Cir. 1981).
C
I respectfully suggest that the majority‘s failure to consider this foundational principle of collateral estoppel is fatal to its conclusion.
First, and most importantly, the
Second, the Justice Court is designed to resolve small claims in an efficient and prompt manner. See
Moreover, the application of issue preclusion in this setting is especially unwise, as it threatens to turn Justice Court proceedings—tailored to the prompt resolution of small claims and other disputes—into full-blown trials tasked with uncovering whether or not a purported search violated the
Collateral estoppel “is an equitable doctrine,” not an inexorable command. 46 Am. Jur. 2d Judgments § 469 (2018). Pike‘s counsel conceded that the
III
Instead of giving preclusive effect to the Justice Court‘s
A
Forsberg testified that he told Hester, “if [Hester] wanted to search the recreation center, he could call me, I would come up and let him in.” Hester, on the other hand, testified that Forsberg told Hester he could conduct a search “[a]nytime, day or night.”3
As the non-moving party, evidence must be сonstrued in the light most favorable to Hester. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (“Our qualified-immunity cases illustrate the importance of drawing inferences in favor of the nonmovant.“). Yet, the district court utterly ignored Hester‘s testimony—not even bothering to construe it at all, let alone in a favorable light—and simply adopted wholesale Forsberg‘s recollection of events. Yet, Hester offered a completely different version of their conversation, which creates a genuine dispute of fact as to whether Hester was authorized to search Pike‘s office.4
B
And, indeed, whether Hester had permission to search is critical to this case. Anderson, 477 U.S. at 248 (holding that a factual dispute is material if it “might affect the outcome of the suit“). If Hester received consent from Forsberg to search Pike‘s office, there was likely no
IV
I would reverse the district court‘s grant of summary judgment and remand to the district court for further proceedings. Whether a