Opinion
Case No. 2:04-CV-0344-DB.
February 23, 2005
ORDER and OPINION
I. INTRODUCTION
Plaintiff Todd F. Bovo ("Bovo") brings this action to recover against Defendants City of Orem Police Department ("Department"), Orem City police officers Healy, Bingham, Crook, Adams, Lieutenant Doug Edwards, Director of Public Safety Michael J. Larsen, and Orem City Prosecutor Robert Church. This action stems from a motor vehicle incident that led to Plaintiff's arrest. As a result of that incident, Plaintiff claims the defendants violated several of his constitutional rights. Plaintiff alleges wrongful arrest, violation of due process, unlawful detention, unlawful search, use of excessive force, and wrongful prosecution. Before the Court is Defendants' Motion for Summary Judgment on all claims. Having considered the parties' briefs and the relevant law, the Defendants' motion is GRANTED for the reasons set forth below.
II. BACKGROUND
On April 6, 2002, Bovo was driving his blue Honda in the city of Orem when he became upset at the female driver in front of him. Bovo apparently became agitated at the driver's slow rate of speed and he honked his horn, flashed his lights, drove on the right shoulder, and engaged in other erratic activity that made the driver nervous. Frightened, the driver called the police on her cellular phone to report Bovo's reckless driving. The police told the driver to follow Bovo's vehicle until the police arrived and could pull him over. When the police arrived, the officers pulled Bovo and the complainant over and ordered Bovo out of his vehicle. While the officers were speaking with the other driver, Bovo mouthed threats and made intimidating gestures toward her. Because the officers were facing the complainant with their backs to Bovo, they did not see Bovo make the threats. However, the officers believed that the complainant's allegations were credible and therefore arrested Bovo and cited him for disorderly conduct as well as reckless driving.
Bovo contested the citations by appearing in Utah's Fourth District Court. At his arraignment, Bovo requested a jury but the trial judge denied Bovo's request, stating that Bovo was in no jeopardy of being sentenced to prison. A bench trial was held and the trial judge found Bovo guilty on both charges and sentenced him to a six-month suspended prison sentence. On appeal, Bovo argued that (1) the trial court erred in finding that the Orem City police officers had probable cause to arrest him, and (2) the trial court erred when it denied him a jury trial. The appellate court affirmed the district court's decision that the officers had probable cause to arrest Bovo for reckless driving and disorderly conduct, but found the trial judge had erred in denying Bovo a jury trial. The case was remanded for further proceedings. On remand, Orem City dropped the charges against Bovo and terminated its prosecution.
III. DISCUSSION
After viewing the evidence and drawing all reasonable inferences in the light most favorable to Bovo, the Court finds that Bovo has failed to demonstrate a genuine issue of material fact in his allegations that the Defendants violated his constitutional rights. Therefore, summary judgment in favor of the Defendants is appropriate. "Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Bower v. Stein Eriksen Lodge Owners Ass'n., Inc., 201 F.Supp. 2d 1134, 1137 (D. Utah 2002) (quoting Fed.R.Civ.P. 56(c)). "In applying this standard, the court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party." Id (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1552 (10th Cir. 1997)).
Wrongful Arrest
In his complaint, Bovo asserts that he was wrongfully arrested for disorderly conduct and reckless driving. "A plaintiff may recover damages under § 1983 for wrongful arrest if [he] shows [he] was arrested without probable cause." Cottrell v. Kaysville City, Utah, 994 F.2d 730-34 (10th Cir. 1993); see also Franklin v. Thompson, 981 F.2d 1168, 1170 n. 3 (10th Cir. 1992). Bovo claims that his arresting officers lacked probable cause to arrest him for reckless driving and disorderly conduct. Bovo primarily argues that the officers inappropriately based their assessment of probable cause solely on a witness' account of his actions. Bovo argues that because the officers did not personally view either his erratic driving or the alleged threats he made to the driver of the other car, they lacked probable cause to arrest him. The Defendants argue, however, that it is already established through the principles of res judicata that Bovo's arresting officers had probable cause to arrest him. Res judicata "bars the relitigation by the parties or their privies of a claim for relief that was once litigated on the merits and resulted in a final judgment between the same parties or their privies." Reeder v. Kermit Johnson, Alphagraphics, Inc., 723 F. Supp. 1428, 1432 (D. Utah 1989) (quoting Penrod v. Nu Creation Crème, Inc., 669 P.2d 873, 875 (Utah 1983).
"A federal court asked to determine whether a claim before it is precluded by a previous state court decision must look first to preclusion principles of the state wherein the rendering state court resides. . . ."Id. at 1431. Under Utah law, a party asserting collateral estoppel as a defense must show:
(1) the issue decided in the prior adjudication must be identical to the one presented in the action in question; (2) there must be a final judgment on the merits; (3) the party against whom the plea is asserted must be a party in privity with a party to the prior adjudication; and (4) the issue in the first action must be completely, fully, and fairly litigated.Career Services Review Bd. v. Utah Dept. of Corrections, 942 P.2d 933, 939 (Utah 1997) (citing Searle Bros. v. Searle, 588 P.2d 689, 691 (Utah 1978).
The Defendants maintain that Bovo's wrongful arrest claim is barred by the Utah Court of Appeals' ruling that the officers had probable cause to arrest him for the crimes charged. Orem City v. Bovo, 76 P.3d 1170, 1173-74 (Utah Ct.App. 1993). That issue was decided by the trial judge and upheld upon review. Because Bovo did not appeal the ruling by the court of appeals, the Defendants argue that the court's determination became a final judgment on the merits and bars the issue from further litigation.
The court of appeals held that "the officers acted upon statements from credible witnesses that Defendant committed reckless driving and disorderly conduct. Thus the officers acted reasonably and Defendant's arrest was proper." Bovo, 76 P.3d at 1173.
Bovo, however, argues that the principles of res judicata do not apply to his wrongful arrest claim. In the original lawsuit, Orem City brought criminal charges against Bovo. Bovo asserts that because he is bringing a civil tort claim against the Defendants, the two are separate cases, and are therefore not subject to issue preclusion. In addition, Bovo claims that the present case involves additional and different parties than the original lawsuit. In his criminal case, only the City of Orem was listed as a party whereas in this civil suit, Bovo brings charges not only against the City, but also against the Orem City Police and its officers and the Orem City Prosecutor. Therefore, Bovo argues the probable cause issue is not precluded because there lacks privity between the parties in the two cases. Finally, Bovo contends that there was not a final judgment on the merits insofar as the Utah Court of Appeals found that the "trial court erred by denying [Bovo] a jury trial." Bovo argues "every finding was wiped clean from the trier of fact" as a result of the appeals court decision.
The court finds that the Utah Court of Appeals ruling bars Bovo from asserting a wrongful arrest claim against Orem City or its agents because it prevents him from proving that the officers lacked probable cause to arrest him, which is an essential element to establishing such a claim. Bovo appealed his trial court's conviction to the court of appeals arguing that (1) the trial court erred in denying him a jury trial, and (2) the officers did not have probable cause to arrest him. The appeals court ruled that the trial court improperly denied Bovo of a trial by jury and therefore reversed the trial court's decision. Bovo, 76 P.3d at 1173. However, the court of appeals also held that Bovo's arresting officers had probable cause to arrest him for reckless driving and disorderly conduct. Id. While Bovo was successful in arguing that he was denied a jury trial, the court of appeals conclusively affirmed the trial court's finding of probable cause, which Bovo did not appeal. Therefore, that ruling is made final and bars this court from relitigating the issue. See Laborers' International Union of North Americal v. Foster Wheeler Corp., 26 F.3d 375, 397 n. 23 (3rd Cir. 1994) ("If an appeal is taken from only part of the judgment, the remaining part is res judicata.").
Furthermore, the requirement of privity does not require that both cases involve identical parties. See e.g., Procter Gamble Co. v. Haugen, 158 F.Supp.2d, 1286, 1297 (D. Utah 2001). Bovo was a party in the original lawsuit where the issue of probable cause was fully litigated and decided. Because the same issue of probable cause is now being asserted against Bovo, who was a party in the earlier litigation, the privity requirement is satisfied.
There is also no evidence indicating that Bovo was not provided with a full and fair opportunity to litigate the probable cause issue in the original suit. He appeared and argued before both the trial and appellate courts and submitted evidence on his behalf. Because Bovo failed to appeal the ruling finding probable cause, that ruling "result[s] in a final judgment between the same parties or their privies," and Bovo is barred, as a matter of law, from asserting his wrongful arrest claim.
Due Process
Bovo claims Defendants violated his right to due process in arresting and prosecuting him. However, Bovo fails to state facts in his complaint to support a cause of action. Although Bovo was improperly denied a jury trial by the trial court, that decision was reversed by the court of appeals. See Bovo, 76 P.3d at 1172-73.
Unlawful Detention
Bovo claims he was unlawfully detained in violation of the Fourth Amendment. Bovo argues that the arresting police officer had neither articulable suspicion to pull him over nor probable cause to conduct a lawful arrest. Bovo argues that the police officers never actually witnessed him commit any criminal behavior that would justify his detention on the charge of disorderly conduct.
However, officers may detain and question an individual they reasonably suspect has committed a crime. Terry v. Ohio, 392 U.S. 1 (1968). The officers had reasonable suspicion to detain and question Bovo. The police relied upon a complainants' telephone call reporting Bovo's reckless driving and disorderly conduct. It is well established that statements from eyewitnesses may be relied upon by police officers when making probable cause determinations. See U.S. v. Morrison, 58 Fed. Appx. 381, 383 (10th Cir. 2003). In addition, the Utah Court of Appeals already established that the Orem police officers had probable cause to arrest Bovo for both reckless driving and disorderly conduct. Bovo, 76 P.3d at 1173-74. The officers had both reasonable suspicion and probable cause to detain Bovo and question him.
First Amendment
Bovo fashions what appears to be a First Amendment challenge to Utah's disorderly conduct statute. Bovo argues that the statute ignores his right to express ideas or even "invite dispute" by mouthing threats to a driver with whom he had engaged in a traffic dispute. According to Bovo, the statute is overbroad because it criminalizes lawful speech and is not narrowly tailored to reach only unprotected activity. Bovo alleges, "The Orem Police officers routinely arrest citizens under the disorderly conduct statute. Whenever they intercept a message they do not like they simply arrest the individual. They use [the statute] as a vague guise to unlawfully arrest, as they did to Mr. Bovo." Bovo contends that his words and actions did not convey to the officers or others present at the scene an "imminent breach of peace" or "a direct personal insult or an invitation to exchange in fisticuffs." Bovo argues that the First Amendment protected his conduct and thus his conviction was not constitutionally supported.
Utah Code Annotated section 77-7-2 states, in relevant part:
(1) A person is guilty of disorderly conduct if:
(a) he refuses to comply with the lawful order of the police to move from any public place, or knowingly creates a hazard or physically offensive condition, by any act which serves no legitimate purpose; or
(b) intending to cause a public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
(i) engages in fighting or in violent, tumultuous, or threatening behavior
The Court finds that Bovo's arrest and prosecution for disorderly conduct did not violate his First Amendment rights. "[T]he unconditional phrasing of the First Amendment was not intended to protect every utterance." Roth v. U.S., 354 U.S. 476, 483 (1957). "[A]reas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content. . . ." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, (1992). A statute will not be considered facially overbroad "merely because it is possible to conceive of a single impermissible application." City of Houston, Tex. v. Hill, 482 U.S. 451, 458 (1987). Rather, the statute must proscribe "a substantial amount of constitutionally protected speech." Id (internal quotation marks omitted). "[P]articularly where conduct and not merely the speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 631 (1973).
Utah's disorderly conduct statute is clearly worded and does not specifically target speech. It is reasonably tailored to prohibit disorderly conduct. The fact that the statute creates a specific intent requirement significantly limits the statute's breadth. The statute punishes only those who " knowingly create a hazardous or physically offensive condition" or " intend to cause public inconvenience, annoyance, or alarm" by engaging in "fighting or in violent, tumultuous, or threatening behavior." Utah Code Ann. § 77-7-2 (emphasis added). Thus, the statute specifically defines and limits the type of behavior that is proscribed.
The statute was not unconstitutionally applied to Bovo. Bovo was not, as he asserts, "prosecuted for the expression of just an idea;" he was prosecuted for making personal threats, driving dangerously, and making obscene gestures. The court of appeals described Bovo's actions as "belligerent and aggressive." Bovo was not prosecuted merely for mouthing the words "You're going to pay" to the complainant; he was prosecuted for his overall boorish and threatening behavior, which does not qualify for First Amendment protection.
Unlawful Search or Seizure
Bovo claims he was unlawfully searched. However, Bovo fails to plead facts showing that he was searched by any of the Orem police officers. Bovo argues only that his arrest was unlawful. There is no evidence before the court that Bovo or his belongings were searched by the Defendants and the Utah Court of Appeals has already affirmed the legality of the police officers' arrest. Therefore, his claim fails as a matter of law.
Excessive Force
Bovo claims the Defendants used excessive force against him by arguing that a "wrongful arrest is per se excessive force." Bovo's arresting officers, however, did have probable cause to arrest him and there are no facts showing that any force was used against Bovo by the police officers. The application of force is a prerequisite to a claim excessive force. See Graham v. Conner, 490 U.S. 386, 394 (1989). The fact that the police officers ordered Bovo out of his vehicle, questioned, and then arrested him, does not amount to a sustainable claim of excessive force. Therefore, his claim fails as a matter of law.
Malicious Prosecution
Bovo claims Defendants wrongfully prosecuted him. Bovo argues that he was prosecuted for disorderly conduct even though the City lacked evidence to pursue a conviction. Bovo claims that because the City lacked probable cause, it should have terminated its prosecution against him. Moreover, Bovo maintains that the Defendants initiated the prosecution against him primarily for vindictive purposes. To support his claim, Bovo argues that the City continued its prosecution against him even though he had never previously faced criminal charges and notwithstanding that he acted "courteous and respectful of the court, the clerks and the prosecutor." Bovo also claims that the City prosecutor was annoyed that he refused to plead guilty to the charges against him. Bovo alleges that the prosecutor left a "harassing" message on his voice mail and that, during trial, he "incessantly objected to every scrap of imperfection in [Bovo's] attempt to present his case." According to Bovo, the prosecutor "pursued [him] for sport and pleasure and not for the pursuit of justice."
In order "to succeed on [a claim of malicious prosecution], a plaintiff must establish a violation of the Fourth Amendment as well as the common-law elements of malicious prosecution." Haywood v. Nye, 999 F.Supp. 1451 (D. Utah 1998) (citing Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996). The elements of malicious prosecution include:
(1) defendant initiated or procured the prosecution against an innocent plaintiff; (2) defendant did not have probable cause to initiate the prosecution; (3) defendant initiated the prosecution primarily for a purpose other than that of bringing an offender to justice; and (4) the prosecution terminated in favor of the plaintiff.Id.
Bovo cannot escape the finding that the Defendants did have probable cause to initiate his prosecution. Bovo, 76 P.3d at 1173-74. Moreover, the evidence before the court demonstrates that Bovo was in fact driving in a manner that endangered others. According to the Utah Court of Appeals, Bovo behaved "belligerent[ly] and aggressive[ly]" and he "made an obscene gesture toward the Complainants and mouthed the threat, `You'll pay for this.'" Bovo, 76 P.3d at 1171. Bovo cannot show that he was an innocent plaintiff or that the City lacked probable cause to initiate his prosecution. A prosecutor's alleged irritable nature does not amount to a wrongful prosecution claim. To sustain a claim, the plaintiff must show that the prosecutor lacked probable cause to prosecute him. In this case, Bovo cannot, and therefore his wrongful prosecution claim fails as a matter of law.
Municipal Liability
Bovo claims Orem City is liable for the unlawful actions of its officers. Bovo alleges that the "Orem City Police routinely allows officers to criminalize noncriminal behavior." Bovo suggests that an officer submitted a police log and findings of his arrest to the local newspaper without reviewing its accuracy. As a result, Bovo claims, the newspaper published erroneous allegations regarding the incident that lead to his arrest which placed Bovo in a false light. Thus, Bovo argues, because the municipality knew of the errors of its officers but refused to rectify the problem, the City should be held liable.
"A municipality may not be held liable where there was no underlying constitutional violation by any of its officers." Hinton v. City of Elwood, Kansas, 997 F.2d 774, 782 (10th Cir. 1993). "To establish municipal liability, a plaintiff must show 1) the existence of a municipal policy or custom, and 2) that there is a direct causal link between the policy or custom and the [constitutional] injury alleged." Id.
Bovo, however, has failed to specify any facts giving rise to a bonafide constitutional violation by the City's police officers. Bovo's bare assertion that the City "routinely allows officers to criminalize noncriminal behavior" is insufficient to sustain a claim of municipal liability. In addition, there is no evidence before the court that the police report was erroneous or that it placed Bovo in false light or was otherwise injurious. No evidence supports Bovo's claim that the police officer's actions were improper. Therefore, Bovo's claim for municipal liability fails to survive summary judgment.
Supervisory Liability
Bovo also asserts a claim for supervisory liability. Bovo argues that Lieutenant Doug Edwards and Director of Public Safety Michael Larsen "knew of the illegal behavior of their officers" and that instead of intervening they "complicated and compounded the problem."
"A supervisor is not liable under section 1983 unless an affirmative link exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988) (internal quotations omitted). A plaintiff must allege and prove that a supervisor actually knew and ratified the unconstitutional behavior or failed to intervene to prevent such misconduct.
Bovo does not explain what "illegal behavior" the police officers engaged in or how their supervisors "complicated or compounded that problem." Nevertheless, Bovo's claim of supervisor liability fails because he cannot establish a valid constitutional claim against the police officers. The legality of Bovo's arrest has already been established. Because the arresting officers cannot be held liable for any constitutional violations surrounding Bovo's arrest, the officers' supervisors cannot be held liable either. Moreover, Bovo's complaint that the police caused to be published an inaccurate police report that placed him in false light is also insufficient to prevail on his claim. There are no facts that support such a proposition and even if Bovo was able to prove as much, it is not a constitutional claim. Therefore, supervisory liability does not be apply.
IV. CONCLUSION
For the reasons stated above, the court GRANTS Defendants' Motion for Summary Judgment.
IT IS SO ORDERED.