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Jacobson v. Mott: US District Court : 1983 - qualified immunuity; proabable cause vs. arguable probable cause

Richard Joseph Jacobson, Civil No. 07-4420 (DWF/RLE)
Dan Mott, Reed Bye, and
Joan Kunz,
Randall D. B. Tigue, Esq., Randall Tigue Law Office, PA, counsel for Plaintiff.
Jason M. Hiveley, Esq., and Jon K. Iverson, Esq., Iverson Reuvers, LLC, counsel for
Defendant Mott.
Marsha Eldot Devine, Assistant Attorney General, Minnesota Attorney Generals Office,
counsel for Defendants Bye and Kunz.
This matter is before the Court on separate Motions for Summary Judgment
brought by Defendants Dan Mott (Mott), Reed Bye (Bye) and Joan Kunz (Kunz).
For the reasons set forth below, the Court grants the motion of Defendants Troopers Bye
and Kunz, and grants in part and denies in part the motion of Defendant Deputy Mott.
Deputy Mott is a deputy sheriff for the Mille Lacs County Sheriffs Office.
Troopers Bye and Kunz are troopers with the Minnesota State Patrol. On June 18, 2005,
Deputy Mott learned that an arrest warrant existed for the arrest of Plaintiff
Richard Joseph Jacobson (Jacobson).1 At about 10:30 p.m. on June 18, 2005, Mott
went to Jacobsons workplace, Fat Jacks Cabaret (Fat Jacks) in Bock, Minnesota, to
arrest him. Defendants Bye and Kunz accompanied Mott to Fat Jacks to provide
assistance with the arrest.2
Upon their arrival, Deputy Mott entered Fat Jacks, where Jacobson was tending
bar. Deputy Mott asked Jacobson to come outside and Jacobson agreed. Once outside,
Mott informed Jacobson that he had a warrant for his arrest. Jacobson asked what the
warrant was for and, according to Jacobson, Deputy Mott replied that he did not know
what the warrant was for and did not have to tell Jacobson.3
The parties disagree about what happened next. According to Deputy Mott,
Jacobson refused to get into Deputy Motts squad car, and Jacobson indicated he wanted
to go back to work. According to Deputy Mott, he twice attempted to take Jacobson into
custody by grabbing Jacobsons left arm, but Jacobson pulled away both times.4
According to Jacobson, he did not physically resist being arrested. Jacobson claims that
he said, [t]his is bullshit, but disputes that he refused to get in the car and disputes that
1 The warrant was issued for driving under a cancelled license and all parties agree
that the warrant was valid.
2 Deputy Mott was also accompanied by an intern, who was riding in Deputy Motts
squad car.
3 In Minnesota, when an individual is arrested upon a warrant, the arresting officer
need not have the warrant in possession at the time of the arrest, but shall inform the
defendant of the existence of the warrant and of the charge. Minn. R. Crim. P. 3.03,
subd. 3.
4 Deputy Mott testified to these events at Jacobsons trial, and the prosecutor also
played a videotape of the arrest. The videotape was not submitted to this Court.
he pulled away from Mott. (Doc. No. 28 3, Ex. B at 28.) A witness to the event, Laura
Bekius (Bekius), also indicates that she saw the interaction between Jacobson and
Deputy Mott and that Jacobson did not pull away or resist arrest in any way. In any
event, Deputy Mott and Trooper Bye grabbed Jacobson and pushed him down on the
hood of a nearby car. Trooper Kunz had begun to walk away from the scene because she
believed that the other officers had the situation under control, but she turned back and
may have put her hand on [Jacobsons] back while he was pushed over the hood of the
car. (Doc. No. 31 6, 8.) Jacobson was handcuffed and placed in Deputy Motts squad
Jacobson was charged with one count of gross misdemeanor obstructing legal
process in violation of Minnesota Statute section 609.50, subds. 1(2) and 2(2), and the
criminal complaint alleged that Jacobson intentionally and unlawfully did obstruct,
resist, or interfere with a peace officer while the officer was engaged in the performance
of official duties, and the act was accompanied by force or violence or the threat thereof.
(Doc. No. 28 4, Ex. C at 2.) Jacobson was also charged with one misdemeanor count of
obstruction in violation of Minnesota Statute section 609.50, subds. 1(2) and 2(3). (Id.)
In an order dated April 19, 2006, the gross misdemeanor charge was dismissed for lack of
probable cause. (Doc. No. 28 5, Ex. D.) The state court held that the gross
misdemeanor offense of obstruction requires that a defendant go beyond resistive
noncompliance with an arrest and actually become[] the aggressor in an intended assault
against the person of the officers conducting the arrest, such as by kicking an officer,
threatening the officer with a weapon, or throwing a punch at an officer. (Id. at 4.) The
state court concluded that Jacobsons alleged conduct did not rise to the level necessary
to satisfy the gross misdemeanor statute. (Id.) The court concluded that probable cause
existed for the misdemeanor obstruction charge, however, because a jury could conclude
that Jacobson resisted arrest by pulling away from Deputy Mott twice as Deputy Mott
attempted to arrest him. Jacobson was tried before a jury on the misdemeanor
obstruction charge and was acquitted. (Doc. No. 28 6, Ex. E.)
In this suit, Jacobson claims that the Defendants fabricated the factual basis for the
gross misdemeanor obstruction of legal process charge to punish him for questioning the
reason for his arrest. Jacobson contends that he could have bailed out on the existing
warrant on the night of his arrest, and had he only been charged with misdemeanor
obstruction, he would still have been released that night. Instead, as a result of the gross
misdemeanor obstruction charge, Jacobson was held in jail over the weekend until he
could be brought before a judge on Monday. Jacobson contends this detention was a
violation of his rights under the First, Fourth and Fourteenth Amendments. In addition,
Jacobson also asserts a claim for malicious prosecution.
I. Legal Standard
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy and inexpensive determination of every action. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d
at 747. The nonmoving party must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995). A party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials but must set forth specific facts
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
II. Claims Against Troopers Bye and Kunz
Troopers Bye and Kunz assert that summary judgment is warranted because
Jacobson has not pointed to any facts supporting his claims that they were involved in
any violation of his rights. The Court agrees.
Troopers Bye and Kunz were present for Jacobsons arrest at Fat Jacks only to
assist Deputy Mott. They indicate that they were not involved in any way in the decision
to charge Jacobson with a crime. (Doc. No. 30 10; Doc. No. 31 11.) Jacobson stated
in his deposition that Deputy Mott was the officer involved in charging him with an
offense, and also acknowledged, as far as he was aware, Troopers Bye and Kunz were not
involved in the decision. (Doc. No. 28 3, Ex. B at 59.)
Now, however, Jacobson asserts that Trooper Bye was an active participant in the
decision to falsely accuse Jacobson, and that Trooper Bye made a special trip to the jail
to taunt Jacobson about the charges. (Doc. No. 37 at 14.) According to Jacobsons
deposition testimony, Trooper Bye told Jacobson that he would be sitting in jail for the
weekend and indicated that Jacobson should have listened to Deputy Mott. (Doc. No. 28
3, Ex. B. at 43-44.) Jacobson does not identify any specific actions taken by Trooper
Kunz showing that she was involved in the decision to charge him. Jacobson also argues,
however, that whether or not the troopers directly participated in the decision to charge
him, both had a duty to intervene to prevent Deputy Mott from fabricating the charge
against Jacobson and failed to do so.
The Court concludes that Jacobsons claims against Troopers Bye and Kunz fail
for several reasons. First, there is no basis in the record to support Jacobsons claim that
Troopers Bye and Kunz participated in the decision to charge him with a crime. Even
viewing the facts and drawing all reasonable inferences in the light most favorable of
Jacobson, it is too great a leap to connect Trooper Byes statements at the jail with
participation in a decision to falsely accuse Jacobson of a criminal offense. This is
particularly true given that Jacobsons arguments regarding Trooper Bye directly
contradict Jacobsons deposition testimony. In addition, there are simply no facts in the
record suggesting that Trooper Kunz was involved in the decision to charge Jacobson in
any way.
Second, no duty to intervene existed for Troopers Bye and Kunz. Jacobsons
argument to the contrary relies on Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981). In
Putman, the plaintiffs were pre-trial detainees who alleged that they were beaten and
chained while in custody. 639 F.2d at 417-418. They also alleged that one officer was
present while they were assaulted, but failed to intervene to prevent them from being
beaten. Id. at 423. The Eighth Circuit Court of Appeals held that a police officer may
not fail to intervene when the officer sees or is aware of such abuse of a third person by
another officer. Id.
Putman is not applicable in this case, however. Putman is an excessive force case
and it is unclear that its reasoning would apply in other situations. See Michaud v.
Demarest, Civil No. 06-4362 ADM/JSM, 2008 WL 4057744 (Aug. 26, 2008) (noting
Putman holds that law enforcement officers may be held liable for the use of excessive
force even where they had no physical contact with the individual). Even if Putman
applied outside the context of excessive force cases, the Eighth Circuit held in Putman
that the officer who did not intervene would not be liable for failing to do so if he did not
see the abuse or did not have time to reach the other officer to stop the abuse. 639 F.2d at
424. Therefore, the duty to intervene established in Putman is only triggered when a law
enforcement officer witnesses or is aware of a violation of a constitutional right by
another law enforcement officer at the time the violation is occurring. It is axiomatic that
an officer cannot intervene to stop abusive conduct after the conduct has already
occurred. In this case, there is no evidence in the record that Trooper Kunz was aware of
the charges against Jacobson. With respect to Trooper Bye, the evidence viewed in the
light most favorable to Jacobson suggests that Trooper Bye was aware that Jacobson had
been charged, but not that he was present for or aware of Deputy Motts alleged
fabrication of the basis for a criminal charge without probable cause at the time the
charge was filed.
Jacobson also stated at his deposition that Troopers Bye and Kunz, along with
Deputy Mott, used excessive force in arresting him and that he was asserting an excessive
force claim in this case. (Doc. No. 28 3, Ex. B at 37.) Any such claims, however, were
not pleaded in Jacobsons complaint and, therefore, cannot be considered by this Court.
There is insufficient evidence in the record to support Jacobsons claims against
Troopers Bye and Kunz. As a result, the Court does not address the Troopers arguments
regarding the defenses of qualified and official immunity. The Court, therefore, grants
the summary judgment motion of Troopers Bye and Kunz as to all of Jacobsons claims.
III. Claims Against Deputy Mott
The core of Jacobsons allegations relate to Deputy Motts alleged conduct.
Jacobson alleges that Deputy Mott acted under color of state law in fabricating the factual
basis for a gross misdemeanor obstruction charge against him so that Jacobson would be
held in jail over the weekend. Jacobson contends Deputy Motts actions violated his
rights under the First, Fourth, and Fourteenth Amendments. Jacobson also asserts a claim
of malicious prosecution. Deputy Mott has denied the allegations and contends that he is
entitled to qualified immunity. Deputy Mott further argues that Jacobson cannot
maintain a claim against him for malicious prosecution.
A. Qualified Immunity
The defense of qualified immunity is available to a government employee sued in
his or her individual capacity.5 Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
(8th Cir. 1999). A defendant is shielded from civil liability if it is shown that his or her
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity is available to all but the plainly incompetent or those who
knowingly violate the law. Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir.
2004) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Therefore, liability does not
arise from an officials bad guess in a gray area, but instead flows only from the
transgression of a bright line. Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (quoting
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).
Whether qualified immunity shields a defendant is a question of law to be decided
by the district court. Littrell v. Franklin, 388 F.3d 578, 585 (8th Cir. 2004). On a motion
for summary judgment, the Court employs a three-part test to determine whether
qualified immunity exists. Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999). First, the
5 Jacobson argues that the defense of qualified immunity should not be available to
Minnesota public officials sued in their individual capacities because Minnesota law
provides for indemnification of such public officials up to a certain amount. According
to Jacobson, such officials are not in danger of personal liability and the policies
underlying the qualified immunity defense do not apply. The doctrine of qualified
immunity is a well developed legal principle. Further, other courts have held that
whether an official will be indemnified is irrelevant to determining immunity issues. See,
e.g., Luder v. Endicott, 253 F.3d 1020 (7th Cir. 2001) (considering indemnification
irrelevant for Eleventh Amendment immunity and citing cases).
plaintiff must assert a violation of a constitutional right. Id. Second, the alleged right
must be clearly established. Id. Third, taking the facts in the light most favorable to the
plaintiff, there must be no genuine issues of material fact as to whether a reasonable
official would have known that the alleged action violated the plaintiffs clearly
established rights. Id. If the Court determines that the facts, viewed in the light most
favorable to the injured party, do not establish a violation of a constitutional right, no
further inquiry is necessary. Saucier v. Katz, 533 U.S. 194, 201 (2001).
The Eighth Circuit has held that for a right to be clearly established, the contours
of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir.
2001). There is no requirement that the action complained of has been previously held
unlawful, but instead, in the light of pre-existing law, the unlawfulness must be apparent.
Id. If, on an objective basis, it is obvious that no reasonably competent officer would
have concluded that the defendant should have taken the disputed action, qualified
immunity does not apply. Samuelson v. City of New Ulm, 455 F.3d 871, 877 (8th Cir.
B. Constitutional Claims
Jacobson alleges violations of his rights under the First, Fourth, and Fourteenth
Amendments. The Court addresses each in turn.
1. First Amendment
Jacobson alleges that Deputy Motts actions occurred in retaliation for Jacobsons
exercise of his First Amendment rights. According to Jacobson, he questioned the basis
for the warrant, Deputy Mott refused to tell him the basis, and Jacobson responded by
saying: This is bullshit. (Doc. No. 28 3, Ex. B at 28.) As evidence that Deputy Mott
was motivated by retaliatory animus, Jacobson contends that, as he was in Deputy Motts
car being transported to the Mille Lacs County Jail, Deputy Mott said: Now Im putting
a charge on you so that you cant get out at all, you cant bail out. (Id. at 40, 90-91.)
A citizens right to exercise his or her constitutional freedom to speak . . . without
facing retaliation from government officials is clearly established. Kilpatrick v. King,
499 F.3d 759, 767 (8th Cir. 2007). In order to prevail on his retaliation claim, Jacobson
must show a causal connection between Deputy Motts retaliatory animus and the
injury suffered. See Hartman v. Moore, 547 U.S. 250, 259 (2006). Adverse action that
cannot be defended by any non-retaliatory explanation provides a basis for a reasonable
jury to find that defendants acted with improper motives. Kilpatrick, 499 F.3d at 768.
Jacobson must show, however, that he was singled out for prosecution while others
similarly situated [were not] prosecuted for similar conduct. Osborne v. Grussing, 477
F.3d 1002, 1006 (8th Cir. 2007).
Jacobson has failed to make the required showing. The link between Jacobsons
statement and his allegations regarding Deputy Motts conduct is tenuous and is
insufficient to establish the required but for causal connection. Further, the record
contains no evidence that Jacobson was singled out by Deputy Mott and treated in a
different way from other similarly situated persons. Therefore, the Court grants summary
judgment to Deputy Mott with respect to Jacobsons First Amendment claim.
2. Fourth Amendment
Jacobson does not contest that he was validly arrested upon an existing warrant.
Jacobson contends, however, that he was unconstitutionally deprived of his liberty
because, due to the allegedly fabricated gross misdemeanor obstruction charge, he was
held for 48 hours over the weekend while he waited to be brought before a judge.6
The Fourth Amendment guarantees an individuals right to be free from arrest
without probable cause. U.S. Const. amend. IV; Lambert v. City of Dumas, 187 F.3d
931, 935 (8th Cir. 1999). Jacobson has asserted a violation of a constitutional right,
meeting the first prong of the qualified immunity analysis. The Court also concludes that
the second prong is met because the requirement that probable cause exist to charge a
defendant with a crime is a clearly established constitutional right. Kukla v. Hulm, 310
F.3d 1046, 1049 (8th Cir. 2002).
The crux of this case rests upon the third prong of the qualified immunity analysis;
under this prong there must be no genuine issues of material fact as to whether a
reasonable official would have known that the alleged action violated the plaintiffs
clearly established rights. Goff, 173 F.3d at 1072. In connection with this inquiry, a
court examines whether officers actions are objectively reasonable in light of the facts
6 Jacobson contends that he would have been released on the night of his arrest had
he merely been charged with simple obstruction. The harm he alleges he suffered, and
ostensibly his claim for damages, arise from the imposition of the additional gross
misdemeanor charge. (Doc. No. 37 at 12.) The Court notes that as the facts are alleged
by Jacobson, he did not resist Deputy Motts attempt to arrest him by pulling away when
Deputy Mott attempted to grab his arm. Viewing the facts in the light most favorable to
Jacobson, this would call into question the simple obstruction charge as well. The Court
will not consider this argument for the reasons discussed below.
and circumstances confronting them, without regard for the underlying intent or
motivation. Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998) (quoting Graham v.
Connor, 490 U.S. 386, 397 (1989)). Thus, the issue is whether Deputy Mott reasonably
believed that probable cause existed to charge Jacobson with gross misdemeanor
obstruction of legal process.
Probable cause exists to charge a person with a crime if, at the moment the arrest
was made, the facts and circumstances within the officers knowledge and of which they
had reasonably trustworthy information were sufficient to warrant a prudent person in
believing that an offense had been committed. United States v. Rivera, 370 F.3d 730,
733 (8th Cir. 2004) (citing United States v. Wajda, 810 F.2d 754, 758 (8th Cir. 1987).
For purposes of determining whether Deputy Mott is protected by qualified immunity,
the relevant issue is not whether probable cause existed, but whether Deputy Mott had
arguable probable cause. Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir. 1989). Law
enforcement officers are not required to conduct a mini-trial before arrest, but probable
cause is not present for an arrest when a minimal further investigation would have
exonerated the suspect. Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008). Although
courts give substantial latitude to police officers to draw factual inferences from their
observations, such deference is not unlimited. See Kuehl v. Burtis, 173 F.3d 646, 651
(8th Cir. 1999) (affirming denial of summary judgment on qualified immunity to officer
in suit claiming criminal defendant was arrested for assault without probable cause where
arresting officer ignored plainly exculpatory evidence and failed to adequately
interview witnesses who saw the struggle between the defendant and an attacker, in
which the defendant hit the attacker).
Under Minnesota Statutes section 609.50, subd. 1(2), obstructing legal process
occurs when a person obstructs, resists, or interferes with a peace officer while the
officer is engaged in the performance of official duties. An alleged violator can be
charged with a gross misdemeanor obstruction crime if the act was accompanied by
force or violence or the threat thereof. Minn. Stat. 609.50, subd. 2(2). The words
force or violence or the threat thereof are to be construed according to common usage.
State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).
The Minnesota Supreme Court has held that the statute is directed at physical
obstruction and that physically obstructing or interfering with a police officer involves
not merely interrupting an officer but substantially frustrating or hindering the officer in
the performance of his duties. State v. Krawsky, 426 N.W.2d 875, 877 (Minn. 1988);
see also State v. Diedrich, 410 N.W.2d 20 (Minn. Ct. App. 1987) (upholding conviction
for obstruction using force or violence where defendant pushed against officers face,
head and shoulders with an open palm in attempt to escape police car); State v. Wilson,
No. C9-92-956, 1992 WL 366009 (Minn. Ct. App. Dec. 15, 1992) (upholding conviction
for obstruction using force or violence where defendant jumped on police officers back
during attempt to arrest her son). The statute does not apply to oral criticism of an
officer, but in limited circumstances can apply to fighting words or any other words
that by themselves have the effect of physically obstructing or interfering with a police
officer in the performance of his duties. Krawsky, 426 N.W.2d at 877, 878; see also
State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001) (holding evidence was insufficient to
sustain obstruction conviction where defendant lied to officers, lengthening the time it
took to apprehend suspects of investigation, but false statements did not physically
obstruct police from attempting to obtain evidence); State v. Clancy, No. C9-01-710,
2002 WL 233913 (Minn. Ct. App. Feb. 19, 2002) (upholding conviction for obstruction
using force or violence where defendant moved aggressively toward officer yelling
obscenities and telling the officer: Youre mine, causing officer to fear for his safety
and mace defendant, and where defendant rolled around with the officer on the ground
during officers attempt to handcuff defendant); State v. Wybierala, No. C2-95-1395,
1996 WL 5816 (Minn. Ct. App. Jan. 9, 1996) (conviction for obstruction of legal process
using force or violence upheld where defendant told police officer that officer would be
attacked by dogs if he entered property and defendant complied with officers request
that dogs be restrained only after officer drew his gun and threatened to shoot the dogs).
In this case, there are disputed issues of material fact as to what happened when
Jacobson was arrested. According to Jacobson, he did not resist arrest in any way.
According to Deputy Mott, Jacobson pulled away from him twice, said he would not get
in the car, needed to be restrained by two police officers for handcuffing, and pushed
back against the officers and continued to struggle with them as he was being handcuffed.
These unresolved factual issues prevent this Court from granting summary judgment to
Deputy Mott. See Kukla, 310 F.3d 1046, 1049 (noting that an officer is entitled to
qualified immunity if the officer alleges conduct giving rise to probable cause and the
charges are not disputed, but also that if the arrestee challenges the officers description
of the facts and presents a factual account that would not permit a reasonable officer to
make an arrest, then there is a material factual dispute precluding summary judgment).7
If the facts are as Jacobson alleges, arguable probable cause did not exist for the charge
of gross misdemeanor obstruction of legal process. If the facts are as Deputy Mott
alleges, it is possible that arguable probable cause did exist.8
This Court has reviewed the state courts decision in Jacobsons criminal case that
probable cause did not exist for the gross misdemeanor charge, but did exist for the
7 In this case, it is not the arrest itself that gives rise to the claim, but Deputy Motts
alleged fabrication of the factual basis for the gross misdemeanor charge against
Jacobson. The Court does not view this distinction as precluding Jacobsons claim. Even
if a law enforcement officer lawfully arrests a suspect, the existence of a valid arrest does
not permit the officer to subsequently lie about the suspects conduct to support criminal
charges for which there is no probable cause.
8 The Court notes that, if the facts are as Deputy Mott contends and arguable
probable cause did exist for the charge of gross misdemeanor obstruction, it exists only
by the slimmest of margins. Ultimately, resolution of this issue will depend on the
degree of force Jacobson exerted in pushing against the officers and struggling as he was
being handcuffed. The Court has examined a number of cases involving similar conduct
and misdemeanor obstruction of legal process appears to be, by far, the more valid
charge. See State v. Olson, 634 N.W.2d 224, 227, 229 (Minn. Ct. App. 2001) (probable
cause existed for misdemeanor obstruction of legal process where defendant twisted,
turned, and pulled away from deputy and subsequently struggled more violently); State
v. Occhino, 572 N.W.2d 316 (Minn. Ct. App. 1997) (defendant committed misdemeanor
obstruction of legal process by engaging in repeated verbal interruptions of officer and by
pulling his arms away from officer and pushing himself backwards into her, and where
additional officers were required to subdue defendant); State v. Coleman, No. C1-00-691,
2000 WL 1693633 (Minn. Ct. App. Nov. 14, 2000) (gross misdemeanor charge of
obstruction dismissed for lack of probable cause where defendant resisted and struggled
with an officer and the officer was required to strike the defendant to obtain compliance
with command that defendant put his hands behind his back). At the same time, the
Court is well aware that its view from the bench, sometimes long after an event
transpired, is quite different from the view of a trained and experienced law enforcement
officer confronted with circumstances in the field as they are unfolding.
charge of simple obstruction. Both of the parties make arguments based upon the state
courts decision. The Court concludes, however, that the state courts order is not
determinative of the issues presented here.
First, while the state court considered whether probable cause existed for the gross
misdemeanor charge and found it lacking, it did not consider the issue before this Court,
that of whether arguable probable cause existed for the charge. Further, the state courts
decision does not collaterally estop Jacobson from asserting the precise issue presented
here. In Crumley v. City of St. Paul, Minn., 324 F.3d 1003, 1006-1007 (8th Cir. 2003),
the Eighth Circuit held that a plaintiff alleging probable cause was lacking for her arrest
was collaterally estopped from raising the issue in a proceeding under 42 U.S.C. 1983
because the issue had been litigated and decided against her in her criminal proceeding.
Here, however, Jacobsons case is based not upon the misdemeanor obstruction charge
for which the state court found probable cause existed, but upon the gross misdemeanor
charge for which the state courts decision favored Jacobson.9 Finally, Deputy Mott
argues that because the state court found that probable cause existed for the misdemeanor
obstruction charge, arguable probable cause necessarily existed for the arrest. The arrest
itself, however, is not the basis for Jacobsons suit. Rather Jacobson bases his request for
9 Based upon the reasoning in Crumley, Jacobson would be barred from litigating
whether probable cause existed for the simple obstruction charge. Though the standards
courts apply in probable cause hearings are different from those applied to summary
judgment motions, the ultimate issue of whether probable cause existed for that charge
has been litigated and determined against Jacobson. The Court will not revisit the issue
relief on the consequences of the additional gross misdemeanor charge levied against him
based upon Deputy Motts activities.
The Court concludes that material issues of disputed fact exist regarding whether
Deputy Mott had arguable probable cause to charge Jacobson with gross misdemeanor
obstruction of legal process. Upon the record before the Court at this time, and viewing
the facts in the light most favorable to Jacobson, the Court declines to grant Deputy Mott
qualified immunity with respect to Jacobsons Fourth Amendment claim regarding the
gross misdemeanor obstruction charge.10 The Court, therefore, denies Deputy Motts
request for summary judgment as to this claim.
3. Fourteenth Amendment
With respect to Jacobsons claim under the Fourteenth Amendment, the Court
concludes summary judgment is properly granted to Deputy Mott. Though Jacobson
mentions the Fourteenth Amendment in passing in his complaint, his submissions to this
Court fail to discuss the basis for his claim of a Fourteenth Amendment violation.
Notwithstanding that, the Court will address Jacobsons Fourteenth Amendment and
determines that it fails to meet the standard required for asserting such claims.
The Fourteenth Amendment guarantees due process of law. U.S. Const. amend.
XIV (containing the Due Process Clause stating nor shall any State deprive any person
of life, liberty, or property, without due process of law). The Fourteenth Amendment
does not itself create protectable interests, but protects rights derived from independent
10 The Court anticipates that it may revisit this issue at trial after a full presentation
of the facts regarding the circumstances of Jacobsons arrest.
sources. Hughes v. Whitmer, 714 F.2d 1407, 1417 (8th Cir. 1983). The right asserted by
Jacobson is one provided by the Fourth Amendment and, therefore, the Court must
consider Jacobsons Fourteenth Amendment claim in connection with his claim asserted
under the Fourth Amendment.11 The Eighth Circuit has noted that the standards that
must be met to establish a Fourteenth Amendment due process claim are seemingly
more burdensome, and clearly no less burdensome than the standards applied to Fourth
Amendment claims. Wilson v. Spain, 209 F.3d 713, 716 (8th Cir. 2000).
The Due Process Clause protects against the denial of fundamental procedural
fairness (procedural due process) and against the arbitrary and oppressive exercise of
power by the government (substantive due process). County of Sacramento v. Lewis, 523
U.S. 833, 845-846 (1998). The protections of the Due Process Clause are triggered when
government officials conduct was conscience-shocking and violates one or more
fundamental rights that are deeply rooted in this Nations history and tradition, and
implicit in the concept of ordered liberty, such that neither liberty nor justice would exist
if they were sacrificed. Davis, 375 F.3d at 718 (quoting Moran v. Clarke, 296 F.3d 638,
651 (8th Cir. 2002)); see also Hawkins v. Holloway, 316 F.3d 777 (8th Cir. 2003) (no due
process violation where sheriff touched or fondled the genitals of male employees while
making vulgar comments and question of fact existed as to whether sheriff violated due
process rights by pointing weapon at employees and threatening to shoot them,
11 The Court does not consider any implication of Jacobsons First Amendment
claim in relation to the analysis of the Fourteenth Amendment because the Court has
determined Jacobsons First Amendment claim lacks merit.
depending on whether sheriffs conduct was a serious threat of violence or a joke).
Generally, an officials conduct must be intended to inflict harm to be conscience
shocking in the constitutional sense. Hawkins, 316 F.3d at 788. The determination of
whether an officials conduct shocks the conscience is a question of law. Hayes v.
Faulkner County, Ark., 388 F.3d 669, 675 (8th Cir. 2004).
Jacobson was lawfully arrested and taken to jail in connection with the existing
warrant, but alleges he was unlawfully held for the weekend to be brought before a judge,
when without the gross misdemeanor charge he contends he would have been released
the night of his arrest. In Hayes, the Eighth Circuit considered whether a 38-day
detention before an arrestees initial appearance violated the Due Process Clause. Id. at
673-674. The Court noted that the Supreme Court has held that [t]he consequences of
prolonged detention may be more serious than the interference occasioned by arrest.
Pretrial confinement may imperil the suspects job, interrupt his source of income, and
impair his family relationships. Id. at 673 (quoting Gerstein v. Pugh, 420 U.S. 103, 114
(1975)). Thus, the Court determined that the 38-day detention shocked the conscience
and violated the plaintiffs constitutional rights. Id. at 675.
A shorter extended detention, however, has been held not to violate the Due
Process Clause. In Luckes v. County of Hennepin, Minn., the plaintiff was arrested
pursuant to a valid bench warrant for failing to pay traffic fines and was subjected to
processing delays that extended his detention so that he was held for 24 hours. 415 F.3d
936, 938 (8th Cir. 2005). During his extended detention, the plaintiff was placed in
overcrowded cells with persons arrested for violent crimes, and he endured threats,
intimidation and mockery regarding his speech impediment by other detainees. Id. The
Eighth Circuit stated that the Due Process Clause of the Fourteenth Amendment protects
an individuals liberty interest from unlawful state deprivation, such as where the state
detains the individual after he is entitled to release, and noted that deliberate indifference
to such a right may sufficiently shock the conscience to create a violation of the
Fourteenth Amendment. Id. at 939. The Eighth Circuit concluded, however, that while
the plaintiff may have raised an issue of material fact as to whether he was entitled to
immediate release, his 24-hour detention did not shock the conscience.12 Id.
The Court concludes that Jacobsons detention from late Saturday night until
Monday does not shock the conscience sufficiently to establish a violation of the Due
Process Clause. Jacobson contends that over the weekend he spent in jail he missed
several family events that were important to him, but he has not shown that his family
relationships were impaired as a result. Jacobson suffered no adverse employment
consequences and did not lose any wages as a result of his extended detention.
The Court also determines that the alleged fabrication of the factual basis for the
obstruction using force or violence charge does not rise to the level of a Fourteenth
12 The length of time one is detained is not the only factor analyzed and, in some
instances, a shorter detention has been held to shock the conscience, such as in
circumstances in which the arrestee was subjected to other mistreatment. See, e.g., Young
v. City of Little Rock, 249 F.3d 730 (8th Cir. 2001) (plaintiff, who was mistaken for
another person when arrested, was detained from Saturday afternoon until Monday
morning, even though arresting officer told his supervisor he believed he had arrested the
wrong person, was strip searched, and after magistrate determined that she was not the
person identified by the arrest warrant, was chained to other detainees and again strip
searched before being processed for release). No such mistreatment is alleged here.
Amendment violation. The Eighth Circuit has held that a law enforcement officer who
falsifies evidence to procure a conviction violates a suspects due process rights. Wilson
v. Lawrence County, 260 F.3d 946, 954 (8th Cir. 2001) (constitutional violation where
officers coerced confession from mentally handicapped suspect by lying to him,
threatening him, and providing details regarding crime in a leading fashion, and used the
coerced statement to convict defendant). In this case, however, even if Jacobsons
conduct does not satisfy the arguable probable cause standard for the gross misdemeanor
obstruction charge, Deputy Motts alleged conduct is not so conscience shocking as to
support a Fourteenth Amendment claim.
Therefore, the Court concludes that Jacobson has not established a claim under the
Fourteenth Amendment. The Court grants summary judgment to Deputy Mott as to
Jacobsons Fourteenth Amendment claim.
C. Malicious Prosecution
Jacobson asserts a claim of malicious prosecution based on the criminal case
against him. The elements of a claim for malicious prosecution are: (1) the suit in
question must have been brought without probable cause and with no reasonable ground
on which to base a belief that the plaintiff would prevail on the merits; (2) the suit must
have been instituted and prosecuted with malicious intent; and (3) the suit must have
ultimately terminated in favor of the defendant. Stead-Bowers v. Langley, 636 N.W.2d
334, 338 (Minn. Ct. App. 2001) (citing Jordan v. Lamb, 392 N.W.2d 607, 609 (Minn. Ct.
App. 1986)). Viewing the record in the light most favorable to Jacobson, he has arguably
established the first factor and has established the third factor. The record before the
Court does not, however, show that Jacobsons criminal case meets the second criteria.
Jacobson claims that Deputy Mott fabricated the factual basis for the gross
misdemeanor charge. He has not claimed or shown, however, that the prosecutor who
pursued this charge was also tainted by malicious intent. Though he acknowledges this
fact, Jacobson contends that prosecutors rely on statements and reports given to them by
law enforcement officers. Jacobson argues that if the law enforcement officer
manufactures evidence, then the entire prosecution is tainted whether or not the
prosecutor was aware of the manufactured evidence.13
An officers fabrication standing alone may lead to a constitutional claim, as
discussed above, but it does not also establish a state law malicious prosecution claim
unless the prosecutor is involved. This is true because, while a law enforcement officers
statements to a prosecutor may certainly influence the direction of a case, such statements
do not overshadow the independent judgment applied to criminal prosecutions by the
prosecuting authority. Particularly, to establish a malicious prosecution claim, Jacobson
must show that the suit was both initiated and prosecuted with malicious intent.
Jacobson has not made this showing. The Court, therefore, grants summary judgment to
Deputy Mott with respect to Jacobsons malicious prosecution claim.
13 As noted above, the fabrication of evidence by a law enforcement officer may give
rise to a constitutional violation. A prosecutors fabrication of evidence and use of such
evidence at trial also is a constitutional violation. Zahrey v. Coffey, 221 F.3d 342, 344,
349 (2d Cir. 2000).
Accordingly, IT IS HEREBY ORDERED that:
1. The Motion for Summary Judgment of Defendants Reed Bye and Joan
Kunz (Doc. No. 24) is GRANTED and all claims against them are DISMISSED WITH
2. The Motion for Summary Judgment of Defendant Dan Mott (Doc. No. 21)
a. Defendant Motts Motion for Summary Judgment is
GRANTED as to Plaintiff Richard Joseph Jacobsons claims under the
First Amendment and Fourteenth Amendment, and as to his state-law claim
for malicious prosecution and such claims are DISMISSED WITH
b. Defendant Motts Motion for Summary Judgment is
DENIED as to Plaintiffs claim under the Fourth Amendment.
Dated: January 15, 2009 s/Donovan W. Frank
Judge of United States District Court


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