no. 15-35404 in the united states court of appeals for … · case: 15-35404, 12/28/2015, id:...

No. 15-35404

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHERRI ROBERTS,

Plaintiff-Appellant,

v.

RANDY ELLIOT, JIM SCOTT, HAWK HAAKANSON, and the UNITED STATES OF AMERICA,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

BRIEF FOR THE APPELLEES

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

MICHAEL W. COTTER United States Attorney

MATTHEW M. COLLETTE (202) 514-4214 JEFFRICA JENKINS LEE

(202) 514-5091 Attorneys, Appellate Staff Civil Division, Room 7537 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

Case: 15-35404, 12/28/2015, ID: 9806730, DktEntry: 22, of 59

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TABLE OF CONTENTS

STATEMENT OF JURISDICTION .................................................... 1

STATEMENT OF THE ISSUES ........................................................ 2

STATEMENT OF THE CASE ........................................................... 3

STATEMENT OF FACTS ................................................................. 4

A. Factual Background ....................................................... 4

1. The July 24, 2010 Arrest ............................................ 8

2. The February 19, 2011 Arrest .................................. 10

B. Proceedings Below ........................................................ 12

SUMMARY OF ARGUMENT .......................................................... 20

STANDARD OF REVIEW ............................................................... 23

ARGUMENT ................................................................................. 23

THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF ALL DEFENDANTS ............................. 23 A. The District Court Properly Ruled That The BIA Officers Are Entitled To Qualified Immunity As A Matter Of Law ...................................................... 23 1. The Officers’ Arrest of Roberts Did Not Violate Clearly Established Law ....................................... 24 2. There Is No Genuine Dispute As To Any Material Fact Concerning The Objective Legal


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Reasonableness Of The Officers’ Conduct ............. 32 B. The District Court Was Correct In Granting Summary Judgment To The United States On Roberts’ FTCA Claims Based On Her February 19, 2011 Arrest ............................................. 39 1. Roberts Cannot Sustain Her Claim Of False Arrest And Imprisonment Because She Was Arrested Pursuant To A Facially Valid Warrant .... 41 2. The District Court Correctly Dismissed Roberts’ Claim For Negligent Infliction Of Emotional Distress ............................................................... 44 CONCLUSION .............................................................................. 49 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) AND CIRCUIT RULE 32-1 CERTIFICATE OF SERVICE


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TABLE OF AUTHORITES Cases: Page Anderson v. Creighton, 483 U.S. 635 (1987) .................................. 27 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................... 32 Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) .............................................. 20, 21, 30, 34, 37, 38

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ....................................... 28

Ashcroft v. Igbal, 556 U.S. 662 (2009) ........................................... 31 Baker v. McCollan, 443 U.S. 137 (1979) ........................................ 26 Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971) ............................................ passim Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007) ........ 23 Conrad v. United States, 447 F.3d 760 (9th Cir. 2006) ............ 39, 40

Czajkowski v. Meyers, 172 P.3d 94 (2007) .................................... 46

Dolan v. USPS, 546 U.S. 481 (2006) .............................................. 39

Erdman v. Cochise Cty., 926 F.2d 877 (9th Cir. 1991) ............. 30, 35

FDIC v. Meyer, 510 U.S. 471 (1994) .............................................. 39

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........................ 24. 29, 38

Heck v. Humphrey, 512 U.S. 477 (1994) ....................................... 15


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Hope v. Pelzer, 536 U.S. 730 (2002) .............................................. 28

Hughes v. Pullman, 36 P.3d 339 (Mont. 2001) .............................. 41

In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010) ............ 33

Jones v. Williams, 297 F.3d 930 (9th Cir. 2002) ............................ 31

Kichnet v. Butte-Silverbow Cty., 274 P.3d 740 (Mont. 2012) ................................................ 40,41,42

Malley v. Briggs, 475 U.S. 335 (1986) ........................................... 25

Martinez v. Stanford, 323 F.3d 1178 (9th Cir.2003) ...................... 23

Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574 1986) ......................................................................................... 33

Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) ...................... 38

Nurre v. Whitehead, 580 F.3d 1087 (9th Cir.2009) ........................ 23

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) ............. 26

Pearson v. Callahan, 555 U.S. 223 (2009) ................................ 25,30

Pellegrino v. United States, 73 F.3d 934 (9th Cir. 1996) ................ 31

Peschel v. City of Missoula, 664 F. Supp. 2d 1149 (D. Mont. 2009) ........................................................................... 46

Sacco v. High Country Indep. Press, Inc., 896 P.2d 411 (Mont. 1995) ....................................................................... passim

Saucier v. Katz, 533 U.S. 194 (2001)....................................... 25, 31

Smith v. Almada, 640 F.3d 931 (9th Cir. 2011) ............................. 35


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Strung v. Anderson, 529 P.2d 1380 (Mont. 1975) .......................... 43

Trenouth v. United States, 764 F.2d 1305 (9th Cir. 1985) .............. 40

United States v. Lara, 541 U.S. 193 (2004) ................................... 26

United States v. Lopez, 482 F.3d 1067 (9th Cir. 2007) .................. 42

Waggy v. Spokane Cty. Washington, 594 F.3d 707 (9th Cir. 2010) ........................................................................... 23

Whiteley v. Warden, 401 U.S. 560 (1971) .......................... 20, 24, 29

Wilson v. Layne, 526 U.S. 603 (1999) ........................................... 27

Constitution: Fourth Amendment ............................................................... passim Fifth Amendment .................................................................. passim

Statutes: 25 U.S.C. § 2802(a) ........................................................................ 8 25 U.S.C. § 2802(c)(1) ..................................................................... 8 25 U.S.C. § 2803(2)(B) .............................................................. 9, 37 28 U.S.C. § 1291 ............................................................................ 2 28 U.S.C. § 1331 ............................................................................ 1 28 U.S.C. § 1346(b) ...................................................................... 37 28 U.S.C. § 1346(b)(1) .................................................................... 1 28 U.S.C. § 1983 .................................................................... 26, 27 28 U.S.C. § 2401(b) ...................................................................... 17 28 U.S.C. § 2674 .......................................................................... 37 28 U.S.C. § 2675(a) ................................................................ 11, 14 28 U.S.C. § 2679(d)(1) ............................................................ 13, 14 28 U.S.C. § 2680(h) ...................................................................... 38


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Rules: Fed. R. App. P. 4(1)(B)(i) ................................................................. 2 Fed. R. App. P. 4(1)(B)(iv) ................................................................ 2 Fed. R. Civ. P. 56(a) ................................................................ 23, 32

Ninth Circuit R. 30-1.7 ................................................................... 5

Northern Cheyenne R. Crim. P. Code § (9)(B)(3) ..................... 5-6, 36 Regulations: 25 C.F.R. §12.22 ............................................................................ 8 28 C.F.R. § 15.4 ........................................................................... 14 Miscellaneous: Restatement (Second) of Torts § 46, cmt. j at 77-78(1965) ............ 45


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 15-35404

SHERRI ROBERTS,

Plaintiff-Appellant,

v.

RANDY ELLIOT, JIM SCOTT, HAWK HAAKANSON, and the UNITED STATES OF AMERICA,

Defendants-Appellees.

BRIEF FOR THE APPELLEES

STATEMENT OF JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. §

1331 over plaintiff’s action under the constitutional tort theory of

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), against Bureau of Indian Affairs law

enforcement officers Randy Elliot, Jim Scott, and Hawk Haakanson

in their individual capacities. Plaintiff also sought to invoke the

jurisdiction of the district court pursuant to the Federal Tort Claims

Act (FTCA), 28 U.S.C. § 1346(b)(1), on her claims against the United


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States alleging false arrest, false imprisonment, and negligent

infliction of emotional distress. The district court’s judgment in

favor of all defendants and against plaintiff was entered on March

19, 2015. (ER 3).1 Plaintiff’s notice of appeal, filed on May 18, 2015

(ER 1), therefore appears timely. See Fed. R. App. P. 4(1)(B)(i), (iv).

The jurisdiction of this Court is proper under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the district court correctly held that Bureau of

Indian Affairs officers sued in their individual capacities are entitled

to qualified immunity on plaintiff’s Fourth and Fifth Amendment

claims because the law was not clearly established at the time of

plaintiff’s arrests that the officers’ conduct was unlawful.

2. Whether the district court correctly entered judgment in

favor of the United States on plaintiff’s FTCA claims alleging false

arrest, false imprisonment, and negligent infliction of emotional

distress because plaintiff’s arrests were made pursuant to facially

1 “ER” refers to Appellant’s Excerpts of Record.


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valid warrants issued following a court’s determination of probable

cause.

STATEMENT OF THE CASE

The dispute in this case arises out of the arrests of plaintiff

Sherri Roberts pursuant to bench warrants issued by the Northern

Cheyenne Tribal Court after Roberts failed to appear at two court-

ordered status conferences. Roberts brought a Bivens action in the

District of Montana against three Bureau of Indian Affairs law

enforcement officers – Randy Elliot, Jim Scott, and Hawk

Haakanson – in their individual capacities, alleging that the officers

violated her Fourth and Fifth Amendment rights by arresting her.

Roberts also sued the United States under the FTCA, alleging false

arrest, false imprisonment, and negligent infliction of emotional

distress. The district court consolidated the actions, and defendants

moved for summary judgment as to all claims.

The court granted defendants’ motion, holding that the

individual federal officers are entitled to qualified immunity for

plaintiff’s constitutional tort claims because “they had a reasonable

basis to believe in the validity of the warrants and in the lawfulness


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of their actions in executing the warrants.” (ER 11). The court also

held that the United States was entitled to summary judgment on

Roberts’ common law tort claims because plaintiff’s two arrests

were effected pursuant to facially valid arrest warrants issued

following the tribal court’s determination of probable cause and

therefore she could not establish the unlawfulness of her restraint.

(ER 12-13).

STATEMENT OF FACTS

A. Factual Background

At all times relevant to this action, plaintiff Sherri Roberts, a

non-Indian, was a resident of Rosebud County, Montana, and lived

on the Northern Cheyenne Indian Reservation. Compl., ECF No. 1

¶1.2 In 2009, Roberts became involved in a dispute with the

Northern Cheyenne Tribe regarding the occupancy of tribal lands on

the Reservation, which eventually led to her being charged in a

2Unless otherwise indicated, “ECF” refers to the document number of the electronic case filing as assigned by the district court in Roberts v. Elliot, No. 1:13-cv-00026 (D. Mont. Feb. 19, 2013).


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criminal complaint in the Northern Cheyenne Tribal Court with

aggravated trespass on March 24, 2010. (SER 11).3 Roberts Dep.,

Exs. 1 & 2, ECF No. 41. Roberts was served with a copy of the

complaint and summons, and she was directed to appear before

the tribal court on April 26, 2010, to answer the complaint. Roberts

Dep., Ex. 2, ECF No. 41.

Roberts appeared in tribal court for the April 26, 2010

arraignment with her retained tribal court legal advocate. Roberts

Dep. 75:19-76:1-19, ECF No. 41. (ER 40-41). The presiding judge

was made aware that Roberts was a non-Indian and therefore

advised plaintiff of her right to assert lack of personal jurisdiction of

the tribal court over her in a criminal action. (ER 92-93 ¶ 3).

Pursuant to the Northern Cheyenne Rules of Criminal Procedure,4

3“SER” denotes Appellees’ Supplemental Excerpts of Record permitted by Circuit R. 30-1.7.

4The Northern Cheyenne Rules of Criminal Procedure Code

provide in pertinent part (1998 Law and Order Code of the Northern Cheyenne Tribe): continued on next page


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the tribal court judge also advised Roberts that she could elect to

waive the lack of personal jurisdiction, and the action would

proceed against her as if she were an Indian. (ER 93 ¶ 3). The judge

further advised plaintiff that if she elected not to waive the lack of

personal jurisdiction, the tribal prosecutor could decide to convert

the matter to a civil action to exclude her from the Reservation. Id.

However, Roberts does not recall any discussion at the April 26,

Rule 9: Arraignment . . . .

B. Procedure at Arraignment . . . . 3. If the defendant is a non-Indian, the Court shall explain his right to assert a lack of personal jurisdiction of the Court over the defendant in a criminal action. If the defendant affirmatively elects to waive personal jurisdiction, the action shall proceed as if the defendant were an Indian. If the non-Indian defendant does not affirmatively waive the lack of personal jurisdiction, the action shall become a civil action to exclude the defendant from the Reservation. . . .The defendant may assert or waive lack

of jurisdiction at any time prior to the start of trial.


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2010 arraignment about waiver of personal jurisdiction or

exclusion. Roberts Dep. 78:17-25; 80:2-19; 82:2-25, ECF No. 41.

Roberts entered a plea of not guilty and requested a jury trial.

Roberts Dep. 75:10-76:19, ECF No. 41 (ER 41-42). After Roberts

entered her plea, the tribal court judge made notations on the

bottom of the complaint and warrant indicating that Roberts had

waived the court’s lack of personal jurisdiction. (ER 80) (“Defendant

[Roberts] waived personal jurisdiction, works here, did not want to

be excluded. [signed] Judge Brady.”); (SER 11) (“4/26/10,

Defendant [Roberts] waived right to jurisdiction, works here.

[signed] Judge Brady.”).

Roberts was issued a pretrial notice to appear on May 4, 2010,

which she acknowledged by signing the notice. The notice warned

that “IF YOU FAIL TO APPEAR A BENCH WARRANT MY BE ISSUED

FOR YOUR ARREST AND/OR YOUR BOND MONEY MAY BE

FORFEITED.” (ER 81). Roberts was released on her own

recognizance in lieu of a $150 bond. (SER 11).

Roberts and her tribal court legal advocate attended the May

4, 2010 pretrial conference, after which a status conference was set


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for July 20, 2010. (SER 13). The pretrial conference memorandum

and order again cautioned that “[a] failure of the defendant or

defendant’s legal advocate to appear at status conference shall

result in defendant being declared a fugitive and a bench warrant

for the arrest of defendant being set.” Id.

1. The July 24, 2010 Arrest

When Roberts failed to appear at the July 20, 2010 status

conference, a bench warrant was issued for her arrest. (ER 43); see

Roberts Dep. 89:24-90:14, ECF No. 41. The warrant commanded

“ANY OFFICER OF THE NORTHERN CHEYENNE POLICE

DEPARTMENT” to arrest Roberts and bring her before the tribal

court to answer for failure to appear at the status conference

following “DULY BEING SERVED WITH NOTICE.” (ER 83).

Because there are no tribal police officers on the Northern

Cheyenne Reservation, law enforcement is provided by the Bureau

of Indian Affairs (BIA), an agency of the United States Department

of the Interior. Elliot Decl. ¶ 2, ECF No. 36. See 25 U.S.C. §§

2802(a), (c)(1); 25 C.F.R. § 12.22. Specifically, BIA law enforcement

officers may “execute or serve warrants, summonses, or other


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orders relating to a crime committed in Indian country and issued

under the laws of . . . an Indian tribe if authorized by the Indian

tribe.” 25 U.S.C. § 2803(2)(B).

BIA law enforcement officer Hawk Haakanson, acting

pursuant to his duty to execute and serve warrants issued by the

Northern Cheyenne Tribal Court, arrested Roberts on July 24,

2010. (ER 84). The arrest occurred at approximately 1:03 p.m. at a

park in Lame Deer, Montana. Id.; see also Roberts Dep. 91:11-18,

ECF No. 41 (ER 43). Roberts was then transported to the BIA

detention center in Lame Deer. Roberts Dep. 94:4-11, ECF No. 41

(ER 48). Officer Haakanson was “polite but firm” in executing the

arrest warrant. Roberts Dep. 97:3, ECF No. 41 (ER 48). After taking

Roberts to the detention center and determining that she was

eligible for bail, Officer Haakanson had no further involvement in

her detention. Roberts Dep. 96:10-13, ECF No. 41. (SER 2).

BIA law enforcement Officer Jim Scott was present at the

detention center when Roberts was brought in by Officer

Haakanson. Roberts Dep. 99:10-100:10, ECF No. 41. (ER 50-51).

However, Officer Scott had no involvement or participation in


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Roberts’ arrest or detention. Roberts Dep. 99:17-100:10, ECF No.

41. (ER 50-51).

Roberts posted a $250 bond and was released from custody at

2:30 p.m. (ER 85). Upon her release, Roberts was ordered to return

to tribal court on July 26, 2010. Id.

Roberts appeared in tribal court on July 26, without her legal

advocate. Roberts Dep. 108:24-109:13, ECF No. 41. She did not

object to the tribal court’s jurisdiction at that time. Roberts Dep.

109:20-110:2, ECF No. 41. (SER 3-4). Roberts does not recall

whether she was advised that her next appearance date was set for

October 19, 2010. Roberts Dep. 110:12-22, ECF No. 41. (SER 4).

She asked that the court send her duplicate copies of all documents

sent to her legal advocate. (ER 91).

2. The February 19, 2011 Arrest

Roberts did not appear at the status conference hearing on

October 19, 2010, and another bench warrant was issued for her

arrest. (ER 87). BIA law enforcement Officer Randy Elliot arrested

Roberts pursuant to the warrant at her home at 10:34 a.m., on

February 19, 2011. (ER 88); see also Roberts Dep. 117:22-118:7,


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ECF No. 41. Officer Elliot told Roberts that he was trying to make

the experience as painless as possible, but that he was going to

have to arrest her. Roberts Dep. 123:14-24, ECF No. 41. (SER 6).

Pursuant to Roberts’ request, Elliot transported Roberts to the

detention facility without handcuffs. Roberts Dep. 120:2-5, ECF No.

41. (SER 5). Upon arriving at the detention center, Officer Elliot

handcuffed Roberts with her hands in front of her body, and walked

her into the facility. Roberts Dep. 120:18-25, ECF No. 41 (SER 5).

Roberts was released from custody approximately one-half hour

later, at 11:10 a.m., after posting a $500 bond. (SER 15).

On April 19, 2011, a sentencing order was entered against

Roberts on the underlying charge of aggravated trespass (ER 89),

and her $750 bond was forfeited for failure to appear at a status

conference on the same date. (SER 16). She was also ordered to pay

$25 in court fees. (ER 89).

Roberts does not recall at any time during any of her court

appearances that she or her legal representative challenged the

tribal court’s jurisdiction over her. Roberts Dep. 161:12-20, ECF

No. 41.


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B. Proceedings Below

1. Roberts submitted an administrative claim under the FTCA

(see 28 U.S.C. § 2675(a)) to the Department of the Interior on

February 17, 2013, asserting “a claim of false arrest, false

imprisonment, and involvement in a malicious prosecution” for

“actions of BIA law enforcement officers taken in the scope of their

employment.” Sholar Decl., Ex. 1, ECF No. 18-1 at 3. She alleged

that she suffered “heart pain,” sleeplessness, fear, severe emotional

distress and damage to reputation, as a result of her false arrest.

Sholar Decl., Ex. 1, ECF No. 18-1 at 1. Roberts further alleged that

she forfeited “illegal Tribal bond payments” totaling $750, and that

she was unable to secure employment as a teacher “due to arrest

information in job applications.” Id. She sought $50,750 in personal

injury damages. Id.

Two days later, on February 19, 2013, Roberts filed a

complaint in the United States District Court for the District of

Montana, naming BIA Officers Elliot, Scott, and Haakanson as


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defendants in their individual capacities under a Bivens

constitutional tort theory,5 based on the same set of facts alleged in

her administrative claim. Count one of the complaint alleged that

the officers violated her rights under the Fourth and Fifth

Amendments when they arrested Roberts pursuant to the tribal

warrants because “it was well settled law that non-Indians are not

subject to the general criminal jurisdiction of the Northern

Cheyenne Tribe, before whom Defendants brought Plaintiff.” Compl.

¶ 21, ECF No. 1. The complaint also asserted claims for false arrest

(count two), false imprisonment (count three), and punitive

damages (count four). Id. at ¶¶ 24-36. The complaint further alleged

that as a direct and proximate result of the officers’ actions, Roberts

suffered serious emotional distress, heart pain, sleeplessness,

stress, fear and injury to dignity and reputation, humiliation and

public ridicule, forfeited illegal bond costs, and harm to her ability

to obtain employment. Id. at ¶¶ 23, 28, 33.

5 The complaint also named Jane Does 1-2 and John Does 1-2 as defendants. Compl., ECF No. 1.


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2. On August 7, 2013, the United States Attorney for the

District of Montana (as the Attorney’s General designee, 28 C.F.R. §

15.4) certified that Officers Elliot, Scott, and Haakanson were

employees of the United States acting within the scope of their

employment at the time of the events alleged in counts two and

three of the complaint. ECF No. 13; see 28 U.S.C. § 2679(d)(1).

Accordingly, the United States filed a notice that plaintiff’s causes of

action as to those counts should be deemed claims against the

government pursuant to 28 U.S.C. § 2679(d)(1) (commonly known

as the “Westfall Act”), and the United States should be substituted

as the party defendant as to those claims. ECF No. 14.

The United States also filed a motion to dismiss counts two

and three of the complaint for lack of subject matter jurisdiction, on

grounds that plaintiff failed to properly exhaust her administrative

remedies because she commenced her lawsuit before six months

had elapsed without final disposition of her claim by the

Department of the Interior. Br. in Supp. of Defs’ Mot. to Dismiss,

ECF No. 17; see 28 U.S.C. § 2675(a). The district court granted the

government’s motion, and dismissed counts two and three of the


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complaint in an order issued on October 15, 2013. Order, ECF No.

23.

3. Following dismissal of counts two and three of her original

complaint, plaintiff filed a new complaint against the United States

under the FTCA on February 18, 2014, asserting claims of false

arrest (count one), false imprisonment (count two), and negligent

infliction of emotional distress (count three). See Compl., Roberts v.

United States, No. 1:14-cv-00016 (D. Mont. Feb. 18, 2014), ECF No.

1. The Bivens action against the officers and the FTCA suit against

the United States were later consolidated by the district court for

decision. Order, ECF No. 31 (In re Roberts Litigation).

4. The individual defendants moved for summary judgment

arguing, inter alia,6 that plaintiff’s constitutional tort claims against

6 Officer Scott also argued that plaintiff’s claims against him were barred because plaintiff did not allege that he personally participated in her arrest or detention. Defs’ Br. in Support Mot. Summ. J. 21-22, ECF No. 33. In addition, the officers argued that plaintiff’s claims against them were barred because the underlying sentence ordered by the tribal court had not been set aside. Id. at 22-23, citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) continued on next page


16

them in their individual capacities were barred by absolute or

qualified immunity because the arrests were made pursuant to

facially valid warrants issued by the tribal court. Defs’ Mot. for

Summ. J, ECF No. 32; Defs’ Br. in Supp. Mot. Summ. J. 7-17, ECF

No. 33. Similarly, the United States argued that because plaintiff

was arrested based on the execution of facially valid warrants, the

government was entitled summary judgment on plaintiff’s common

law tort claims of false arrest and imprisonment because she could

not establish, under Montana law, that her detention was unlawful.

Defs’ Br. in Supp. Mot. Summ. J. 26-29, ECF No. 33. The

government further argued that plaintiff could not establish a claim

of negligent infliction of emotional distress because her allegations

of injury did not satisfy the high standard of proof under Montana

law that the distress inflicted is so severe that no reasonable person

could be expected to endure it. Id. at 29-32.

(holding that in order to recover damages for an allegedly unconstitutional imprisonment, plaintiff must prove that the sentence has been invalidated). The district court did not address these arguments in its decision.


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5. The district court granted summary judgment in favor of all

defendants. (ER 4-14). Specifically, with respect to the Bivens

action, the court held that the officers are entitled to qualified

immunity because “[e]xisting law is not sufficiently clear to warrant

th[e] conclusion” that “a reasonable officer would have known that

the tribal court was wholly without jurisdiction and that he was

engaging in a null and void act.” Id. at 11. Thus, the court

reasoned, the officers are entitled to qualified immunity because

“[they] were presented with facially valid warrants, they were

charged with the responsibility to execute the warrants, and they

had a reasonable basis to believe in the validity of the warrants and

in the lawfulness of their actions in executing the warrants.” Id.

Turning to the FTCA claims against the United States, the

district court first noted that plaintiff conceded (correctly) that any

claims based on her July 24, 2010 arrest were barred by the statute


18

of limitations, 28 U.S.C. § 2401(b). (ER 12).7 The court then ruled

that “[t]he United States likewise is entitled to summary judgment

on Roberts’ FTCA claims based on the arrest of February 19, 2011.”

Id. The court found that plaintiff could not establish a claim of false

arrest and imprisonment under Montana law because she could not

show the unlawfulness of her restraint. The court explained that

probable cause for an arrest is a complete defense to claims of false

arrest and false imprisonment under Montana law; “[t]herefore, an

arrest made under a warrant issued following a court’s

determination of probable cause is a complete defense to a false

imprisonment claim.” Id. at 2-13. And because plaintiff’s arrest on

February 19, 2011, followed the tribal court’s determination of

probable cause to arrest Roberts for failure to appear before the

court as ordered, Officer Elliot “had a reasonable belief in the

7Roberts makes the same concession in her brief on appeal in this Court. See Appellant’s Br. 23 n.4 (“Roberts’ claim involving her arrest and her incarceration on February 17, 2011 is the only claim that applies under the FTCA.”).


19

validity of the warrant, and in the lawfulness of his actions in

executing the order.” (ER 13).

The district court also concluded that plaintiff could not

establish a claim of negligent infliction of emotional distress under

Montana law. The court explained that in order to establish such a

claim under Montana law, a plaintiff must prove she suffered

‘“serious or severe emotional distress’ as a ‘reasonably foreseeable

consequence of the defendant’s negligent or intentional act or

omission.’” (ER 13) (quoting Sacco v. High Country Indep. Press, Inc.,

896 P.2d 411, 418 (Mont. 1995)). Officer Elliot’s action in executing

the tribal court’s warrant was not a negligent or wrongful act or

omission, the court opined; rather, the officer “executed a facially

valid warrant consistent with his duty as a law enforcement officer.”

(ER 13).

The district court therefore granted summary judgment in

favor of all defendants (ER 3), and dismissed plaintiff’s claims in the

consolidated actions with prejudice. (ER 14). Roberts now appeals.


20

SUMMARY OF ARGUMENT

A. It has been long established as a matter of federal

constitutional law that a law enforcement officer commanded to

execute an arrest warrant is entitled to assume the validity of the

warrant. See Whiteley v. Warden, 401 U.S. 560, 568 (1971); accord

Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985). The

district court was therefore correct in ruling on summary judgment

that the individual defendants are entitled to qualified immunity on

Roberts’ claims that her Fourth and Fifth Amendment rights were

violated when the BIA officers arrested her pursuant to bench

warrants issued by the Northern Cheyenne Tribal Court for failure

to appear at two court-ordered status conferences related to an

underlying criminal complaint.

There is no merit to Roberts’ suggestion that because the

officers knew or should have known that tribal courts have no

general criminal jurisdiction over non-Indian persons, and because

the officers allegedly knew that she was a non-Indian, they should

have refused to execute the warrants. Under its criminal procedure

code, the Northern Cheyenne Tribal Court may exercise jurisdiction


21

over non-Indians by consent, and BIA law enforcement officers on

the Reservation are entitled to rely upon the facial validity warrants

issued by the tribal court. Thus, the district court correctly

concluded that the law was not sufficiently clear to place a

reasonable officer on notice that the tribal court acted in complete

absence of jurisdiction in issuing the warrants, and that in carrying

out the tribal court’s command to serve the warrants, reasonable

officers would have known they were engaging in an

unconstitutional act.

Further, contrary to Roberts’ arguments, there is no genuine

issue of material fact in dispute that precluded the district court’s

grant of summary judgment in favor of the officers. The bench

warrants were facially valid; and, the officers had no constitutional

obligation to take issue with the considered judgment of the judicial

officers who issued them. See Arnsberg, 757 F.2d at 981. Thus, it is

not material whether Roberts in fact consented to the jurisdiction of

the tribal court, or that the district court misstated the date the

second bench warrant was issued, or whether Officer Elliot was

aware of Roberts’ status as a non-Indian. Simply stated, the district


22

court correctly held that the officers are entitled to qualified

immunity in these circumstances.

B. The district court was similarly correct in granting

summary judgment in favor of the United States on Roberts’

common law tort claims. As the district court found, Roberts cannot

sustain a claim of false arrest and imprisonment under Montana

law because she was arrested and detained pursuant to a facially

valid bench warrant. See Kichnet v. Butte-Silverbow Cnty., 274 P.3d

740 (Mont. 2012).

Further, Roberts’ generalized claim the she suffered emotional

distress because “[b]eing arrested was extremely traumatic” falls far

short of satisfying the Montana Supreme Court’s stringent test for

proving negligent infliction of emotional distress. See Sacco, 896

P.2d at 418.

* * * * * * *

For all of the foregoing reasons, the district court’s judgment

should be affirmed.


23

STANDARD OF REVIEW

This Court reviews a district court’s grant of summary

judgment de novo. Waggy v. Spokane Cty. Washington, 594 F.3d

707, 710 (9th Cir. 2010). “Likewise, a grant of summary judgment

on the ground of qualified immunity is also reviewed de novo.”

Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007);

see Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003). In

doing so, the Court views the evidence in the light most favorable to

the non-moving party. Nurre v. Whitehead, 580 F.3d 1087, 1092

(9th Cir. 2009). Summary judgment is appropriate if “there is no

genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and

the district court correctly applied the substantive law. Waggy, 594

F.3d at 710.

ARGUMENT

THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF ALL DEFENDANTS A. The District Court Properly Ruled That The BIA Officers

Are Entitled To Qualified Immunity As A Matter Of Law.

Roberts’ Bivens claims against BIA Officers Elliot, Scott, and

Haakanson fail from the outset. She argues that the officers violated


24

her Fourth and Fifth Amendment rights when they arrested her, a

non-Indian person, pursuant to the tribal court bench warrants

because the tribal court lacked criminal jurisdiction to prosecute a

non-Indian. As discussed below, the district court correctly held

that the officers’ good faith execution of facially valid warrants

cannot be characterized as unreasonable under the circumstances

in this case. See Whiteley, 401 U.S. at 568 (a police officer called

upon to execute an arrest warrant is entitled to assume the validity

of the warrant).

1. The Officers’ Arrest of Roberts Did Not Violate Clearly Established Law.

Qualified immunity shields government officials “from liability

for civil damages insofar as their 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). The doctrine “balances two important interests – the need to

hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties


25

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The

protection of qualified immunity applies regardless of whether the

government official’s error is a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.” Id. (citations

and internal quotation marks omitted); see also Malley v. Briggs,

475 U.S. 335, 341 (1986) (Qualified immunity protects “all but the

plainly incompetent or those who knowingly violate the law.”).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court

established a two-step sequence for courts to use in resolving

qualified immunity claims by government officials. First, a court

must decide whether the facts alleged by a plaintiff make out a

constitutional violation at all. Id. at 201. If so, the court then must

determine whether the right at issue was “clearly established” at the

time of the defendant’s alleged misconduct. Id. More recently, in

Pearson, supra, the Supreme Court retreated from Saucier’s

mandatory protocol, stating that lower court judges “should be

permitted to exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at hand.”


26

555 U.S. at 236. Here, the district court found that the officers are

entitled to qualified immunity under the second prong of the

analysis. (ER 10). “That is, the law was not clearly established at

the time of Roberts’ arrest that the officer[s’] conduct was unlawful.”

Id.

As the district court explained, the bench warrants for

Roberts’ arrests “were facially valid when issued and delivered to

the officers for execution.” (ER 10). Indeed, each of the warrants,

which had been signed by a judicial officer of the Northern

Cheyenne Tribal Court, commanded the officers to arrest Roberts

and bring her before the court for failure to appear at two court-

ordered conferences. Id. Hence, the court concluded, the officers

were duty-bound to execute the warrants. Id.

Relying on Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978), superseded by statute on other grounds, see United States v.

Lara, 541 U.S. 193, 205-07 (2004), Roberts argues, however, that at

the time of the officers’ actions in 2010 and 2011, the law had been

clearly established for over thirty years that tribal courts have no

criminal jurisdiction over non-Indians. Appellant’s Br. 20. In


27

Oliphant, the Supreme Court held that tribes may not exercise their

inherent criminal jurisdiction to try and to punish non-Indians. 541

U.S. at 212. Thus, plaintiff maintains, “Oliphant is the controlling

authority in this case with respect to the lack of criminal

jurisdiction over Roberts, a non-Indian,” (Appellant’s Br. 20), and

“[a] reasonably competent law enforcement officer who is employed

on an Indian Reservation should be charged with this knowledge of

the criminal law.” Id. at 21. Roberts misapprehends the qualified

immunity analysis.

The qualified immunity inquiry turns on the “objective legal

reasonableness of the [official’s] action, assessed in light of the legal

rules that were clearly established at the time it was taken.” Wilson

v. Layne, 526 U.S. 603, 614 (1999) (citation and internal quotation

marks omitted). In Anderson v. Creighton, the Supreme Court

explained that “clearly established” for qualified immunity purposes

means that “[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is

protected by qualified immunity unless the very action in question


28

has previously been held unlawful, . . . but it is to say that in the

light of pre-existing law the unlawfulness must be apparent.” 483

U.S. 635, 640 (1987) (citation omitted). Accord Ashcroft v. al-Kidd,

563 U.S. 731, 131 S. Ct. 2074, 2083 (2011) (qualified immunity

protection attaches unless “every reasonable official” would have

understood that his actions were unlawful) (internal quotation

marks and citation omitted); see Hope v. Pelzer, 536 U.S. 730, 739

(2002) (“[Q]ualified immunity operates to ensure that before they

are subjected to suit, officers are on notice their conduct is

unlawful.”) (citation and internal quotation marks omitted).

As the district court stated in rejecting Roberts’ argument

below, Roberts “fails to take into account the Northern Cheyenne

Tribal Court’s claim of capacity to exercise jurisdiction over non-

Indians by consent.” (ER 11). Explaining further, the court found it

unnecessary to decide whether a tribal court may exercise such

jurisdiction because, for purposes of the qualified immunity

analysis (id.):

the issue is whether the law was so clearly established at the time of Roberts’ arrests that a reasonable officer would have known


29

that the tribal court was wholly without jurisdiction and that he was engaging in a null and void act. Existing law is not sufficiently clear to warrant that conclusion. The jurisdictional issue remains. To reiterate, Officers Haakanson and Elliot were presented

with facially valid warrants signed by a tribal court judge

commanding them to arrest Roberts and bring her “FORTHWITH,

BEFORE THIS COURT TO ANSWER TO” her failure to appear for

status conferences on July 20, 2010, and October 19, 2010. (ER 83,

84, 87, 88). They thus had a reasonable basis for believing in the

validity of the warrants and in the lawfulness of their actions in

executing the warrants. See Baker v. McCollan, 443 U.S. 137, 144-

45 (1979) (no actionable violation under 28 U.S.C. § 1983 in false

imprisonment case where detention was pursuant to a valid

warrant and was not unduly long);8 Whiteley, 401 U.S. at 568 (a

police officer called upon to execute an arrest warrant is entitled to

8The Supreme Court’s decisions equate the qualified immunity of state officials sued under 28 U.S.C. § 1983 with the immunity of federal officers sued directly under the Constitution in a Bivens action. See e.g., Harlow, 457 U.S. at 818 & n.30.


30

assume the validity of the warrant); Erdman v. Cochise Cty., 926

F.2d 877, 882 (9th Cir. 1991) (arrest was not a constitutional

violation because it was pursuant to a facially valid bench warrant).

Thus, there is no merit to Roberts’ suggestion (Appellant’s Br.

18-19) that because the officers allegedly knew that she was a non-

Indian, they should have refused to execute the arrest warrants. At

best, Roberts’ status would merely suggest that consent to personal

jurisdiction is required for the tribal court to issue a valid warrant.

But there is no constitutional requirement for an arresting officer to

second-guess the legal assessment of probable cause by the judicial

officer who issued an arrest warrant. See Arnsberg, 757 F.2d at

981. Qualified immunity shields an officer from personal liability

when he reasonably could have believed that his conduct complied

with the law. See Pearson, 555 U.S. at 243. And here, the officers

were entitled to rely upon the tribal court’s determination that it

had jurisdiction over Roberts.

Because the law was not clearly established at the time of

Roberts’ arrests that the officers’ conduct in this case was unlawful,

the district court correctly granted summary judgment in their favor


31

based on their claim of qualified immunity. See Saucier, 533 U.S. at

202 (“If the law did not put the officer on notice that his conduct

was clearly unlawful, summary judgment based on qualified

immunity is appropriate.”).

Furthermore, Roberts’ claims against Officer Scott were barred

because he had no personal involvement in either of Roberts’

arrests, or in her detainment. Doc. 41 at 99:17-25, 100:1-10.9 It is

well-settled that Bivens liability is premised on proof of direct

personal involvement of a defendant in the alleged constitutional

deprivation. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);

Pellegrino v. United States, 73 F.3d 934, 936 (9th Cir. 1996); Jones

v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Because Officer

Scott did not arrest Roberts and had no involvement in her

9Although the district court did not address the issue, defendants argued in their motion for summary judgment that plaintiff’s claim against Officer Scott was barred because of his lack of participation in her arrest and detention. Defs’ Br. in Supp. Mot. Summ. J. 21-22, ECF No. 33; Fed. Defs’ Reply in Supp. Mot. Summ. J. 7, ECF No. 45.


32

detention – as Roberts admitted (Roberts Dep. 99:17-25, 100:1-10,

ECF No. 41) – he could not be subject to Bivens liability.

2. There Is No Genuine Dispute As To Any Material Fact Concerning The Objective Legal Reasonableness Of The Officers’ Conduct.

Roberts also argues that the district court erred in granting

summary judgment to the officers based on their claim of qualified

immunity because material issues of fact exist concerning the

objective legal reasonableness of the officers’ conduct. Appellant’s

Br. 14-17. Summary judgment is proper “if the movant shows that

there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)

(emphasis added). Material facts are those that “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Where the moving party has

met its initial burden of proving the absence of a genuine issue of

material fact for trial, the non-moving party must show more than

the mere existence of a scintilla of evidence. Id. at 252. In other

words, the non-moving party must do more than show there is

some “metaphysical doubt” as to the material facts at issue.


33

Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586

(1986); see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th

Cir. 2010).

Plaintiff appears to suggest that a genuine dispute exists

concerning a number of material facts, namely: (a) whether Roberts

waived the tribal court’s lack of personal jurisdiction over her at the

time of her arraignment (Appellant’s Br. 14); (b) the date that the

second bench warrant was issued (id. at 16); and (c) whether Officer

Elliot was aware of Roberts’ non-Indian status (id. at 16-17). As

discussed below, however, the disputed facts identified by Roberts

either are not “material” or are nonexistent.

a. First, any dispute about whether Roberts waived the tribal

court’s personal jurisdiction over her is not material. Whether or

not Roberts consented to the tribal court’s jurisdiction is not

relevant to the question of the objective legal reasonableness of the

officers’ arrest of Roberts because the arrests were made pursuant

to facially valid warrants issued by the tribal court. As discussed

earlier, the officers were not required to question the validity of the

warrants. “The Constitution does not require that allocation of law


34

enforcement duties.” Arnsberg, 757 F.2d at 981. Indeed, “[i]t would

be plainly unreasonable to rule that the arresting officers . . . must

take issue with the considered judgment of . . . a [judicial officer in

issuing an arrest warrant]. Not only would such a rule cause an

undesirable delay in the execution of warrants, but it would also

mean that lay officers must at their own risk second-guess the legal

assessments of trained lawyers.” Id. Thus, whether Roberts

consented to the tribal court’s jurisdiction is not material because

the officers were entitled to assume the validity of the bench

warrants.

b. Nor is the district court’s misstatement when reciting the

undisputed facts that the second bench warrant was issued on

October 19, 2010 (the date of the second missed status conference),

rather than on October 21, 2010 (the date of its actual issuance),

material. (ER 7 ¶18). Roberts claims that this “clear error of fact” is

“pertinent” because the warrant was issued one day after a letter

was sent by her private counsel to the tribal prosecutor objecting to

the tribal court’s jurisdiction. Appellant’s Br. 16; see ER 108.

According to Roberts, the date of her attorney’s letter and timing of


35

the bench warrant “pertain[] to the objective reasonableness of the

Officers’ actions.” Appellant’s Br. 16. There are several flaws in

plaintiff’s reasoning.

First, the bench warrant appears to have been issued sua

sponte by a tribal court judge after Roberts failed to appear at a

status conference. Although Roberts contends that her attorney

challenged the court’s jurisdiction in a letter to the tribal

prosecutor, she does not allege that either she or her legal

representative ever raised the jurisdictional issue before the tribal

court. Roberts Dep.161:10-20, ECF No. 41. Further, Roberts does

not allege that the arresting officer, Officer Elliot, who had no role in

procuring the warrant, was aware of her attorney’s letter at the time

he executed the arrest warrant. More importantly, as already

discussed, the arresting officer had no obligation, constitutional or

otherwise, to question the validity of the warrant; but, he had every

reason to believe in the lawfulness of his actions in executing it. See

Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011) (if the arrest

warrant is facially valid, the arresting officer generally enjoys

qualified immunity); Erdman, 926 F.2d at 882 (the Constitution


36

does not require an officer executing an arrest warrant to

independently investigate every claim of a defense).

c. Finally, it is simply not relevant whether Officer Elliot, or the

other individual defendants for that matter, knew of Roberts’ status

as a non-Indian. See Appellant’s Br. 16-17. Under Roberts’ theory,

because the officers “knew or should have known” that tribal courts

lack criminal jurisdiction to prosecute non-Indians, and because

the officers “clearly knew” from previous interactions with her that

she was a non-Indian, they should have been able to tell from “[j]ust

a glance” at the warrants that they were facially deficient. Id. at 18.

But, as the district court pointed out, Roberts’ theory ignores

the fact that the Northern Cheyenne Tribal Court claims the

authority to exercise criminal jurisdiction over non-Indian

defendants by consent. See Northern Cheyenne R. Crim. P. Code §

(9)(B)(3) (supra, n.4). When presented with a warrant to arrest a

person “clearly” known to him to be a non-Indian, a BIA law

enforcement officer would not necessarily know whether the person

had consented to the jurisdiction of the tribal court. Moreover, BIA

officers have no discretion to pick and choose which warrants to


37

execute; they are duty-bound to carry out the orders of the tribal

court. See 25 U.S.C. § 2803(2)(B). In this case, even if all three

officers knew that tribal courts generally do not have jurisdiction

over non-Indians in criminal matters, and even if all three officers

did know that Roberts was a non-Indian, none of the officers would

have known whether or not she had consented to the jurisdiction of

the tribal court. And plaintiff makes no allegation that they did.

In Arnsberg, this Court encountered a plaintiff’s similar

argument that Internal Revenue Service agents executing a material

witness warrant should have known that the warrant was invalidly

issued and therefore the agents should have refused to execute it.

757 F.2d at 980-81. Although the Court held that the arrest

warrant was indeed invalid, the panel concluded that the agents

could not be held liable under a Bivens theory because the

invalidity of the warrant was not obvious since “[r]easonable

attorneys could disagree with [the court’s] probable cause

assessment.” Id. at 981. The Court opined that it would be “plainly

unreasonable” to require the agents to question the considered

judgment of the Assistant United States Attorney who requested the


38

warrant and the federal magistrate who issued it. Id. The panel

thus concluded that the arresting officers committed no Fourth

Amendment violations and rejected the plaintiff’s argument that a

material issue of fact precluded the district court from entering

summary judgment in favor of the agents. Id. In so ruling, the

Arnsberg Court declared that, “[u]nder the established facts, the

agents are insulated from liability by a qualified immunity because

‘their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Id. (quoting Harlow, 457 U.S. at 818). See also

Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (fact that

neutral magistrate issued warrant is clearest indication that law

enforcement officers acted in objectively reasonable manner).

Analogously here, it would be “plainly unreasonable” for the

Court to rule that the BIA officers were required to take issue with

the tribal court’s probable cause determination in issuing the bench

warrants. Hence, whether the officers “clearly knew” Roberts’ status

is not material. The district court was therefore correct in granting

summary judgment in favor of the officers.


39

B. The District Court Was Correct In Granting Summary Judgment To The United States On Roberts’ FTCA Claims Based On Her February 19, 2011 Arrest.

“Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” FDIC v. Meyer, 510 U.S.

471, 475 (1994); accord Conrad v. United States, 447 F.3d 760, 764

(9th Cir. 2006) (“The United States can be sued only to the extent

that it has waived its sovereign immunity.”). The FTCA provides a

limited waiver of sovereign immunity for torts committed by federal

employees acting within the scope of their employment, “under

circumstances where the United States, if a private person, would

be liable to the claimant in accordance with the law of the place

where the act or omission occurred.” 28 U.S.C. § 1346(b); see also

id. § 2674 (where the FTCA applies, the United States may be liable

for certain torts “in the same manner and to the same extent as

a private individual under like circumstances . . . .”); Dolan v.

USPS, 546 U.S. 481, 484 (2006). This limited waiver of sovereign

immunity extends to suits for certain intentional torts such as false

arrest and false imprisonment if the conduct of federal law

enforcement officers is involved. See 28 U.S.C. § 2680(h). In


40

assessing the liability of the United States under the FTCA, courts

apply the law of the state in which the alleged tort occurred. See

Conrad, 447 F.3d at 67; Trenouth v. United States, 764 F.2d 1305,

1307 (9th Cir. 1985). In this case, Montana law applies because the

events from which plaintiff’s false arrest, false imprisonment and

negligent infliction of emotional distress claims arise occurred

within the exterior boundaries of the Northern Cheyenne

Reservation in Montana.

Roberts argues that the district court erred in granting

summary judgment in favor of the United States on her FTCA

claims because her claims can be sustained under Montana law.

Appellant’s Br. 23. But as we discuss below, Roberts cannot

establish her claim of false arrest and imprisonment because she

was arrested and detained pursuant to a facially valid warrant. See

Kichnet v. Butte-Silverbow Cty., 274 P.3d 740, 754 (Mont. 2012).

Nor can she sustain her claim for negligent infliction of emotional

distress because general allegations that “[b]eing arrested was

extremely traumatic” and that she was “scared to death”


41

(Appellant’s Br. 10) do not rise to the level of injury required under

Montana law. See Sacco, 896 P.2d at 418.

1. Roberts Cannot Sustain Her Claim Of False Arrest And Imprisonment Because She Was Arrested Pursuant To A Facially Valid Warrant.

The Montana Supreme Court has explained that the

“gravamen of a false imprisonment claim is the deprivation of liberty

of movement or freedom to remain in the place of one’s lawful

choice.” Hughes v. Pullman, 36 P.3d 339, 343 (Mont. 2001). To

establish the claim under Montana law, a plaintiff must

demonstrate two elements: “the restraint of an individual against

his will, and the unlawfulness of the restraint.” Kichnet, 274 P.3d at

745. As the district court properly found, “Roberts cannot establish

the second element” (ER 12) because Officer Elliot acted pursuant

to a facially valid warrant in arresting plaintiff.

In Montana, “[i]t is well-settled that a court’s determination of

probable cause is a complete defense to a claim of false arrest or

imprisonment.” Kichnet, 274 P.3d at 745. Thus, an arrest made

under a warrant issued following a court’s determination of


42

probable cause is a complete defense to a false arrest and

imprisonment claim. (ER 12-13) (citing Kichnet, 274 P.3d at 745).

Roberts argues, however, that the district court “fails to show

where in the record the finding of probable cause exists for” the

October 21, 2010 warrant. Appellant’s Br. 24. Quoting from this

Court’s decision in United States v. Lopez, 482 F.3d 1067, 1072 (9th

Cir. 2007), a case involving a warrantless arrest, plaintiff observes

that ‘“[p]robable cause to arrest exists when officers have knowledge

or reasonably trustworthy information sufficient to lead a person of

reasonable caution to believe that an offense has been or is being

committed by the person being arrested.”’ Appellant’s Br. 24.

Roberts then maintains that “[i]t is unknown how an officer with

knowledge of Roberts being a non-Indian and with knowledge of the

lack of criminal jurisdiction could reasonably believe there was

probable cause to bring Roberts before a Tribal Court that had no

jurisdiction over her.” Id. These contentions are meritless because

the bench warrant issued by the tribal court supplied the probable

cause for Roberts’ arrest.


43

Roberts’ arrest on February 19, 2011, was made pursuant to

the tribal court’s determination that there was probable cause for

the issuance of a warrant based on the plaintiff’s failure to appear

as ordered. (ER 87, 88). Because the warrant was valid on its face, a

law enforcement officer executing the warrant cannot be held liable

under Montana law for false arrest or imprisonment, even if the

warrant is subsequently determined to be invalid. See Strung v.

Anderson, 529 P.2d 1380, 1381 (Mont. 1975).

Plaintiff insists, however, that the warrant here was facially

invalid because it compelled a non-Indian to appear before the

tribal court. Appellant’s Br. 24. The Montana Supreme Court

rejected nearly identical claims in Strung. There, plaintiffs argued

“that from the very face of the warrant, it was obvious the justice of

the peace had exceeded his jurisdiction in issuing the warrant and

that respondent peace officers were bound to know that such a

search warrant was void and that if they executed the same they

did so at their peril.” Strung, 529 P.2d at 1381. The state supreme

court roundly dismissed that argument, holding that the officers

were not liable on plaintiffs’ false arrest and false imprisonment


44

claims because the warrant appeared valid on its face at the time it

was executed. Id. Explaining its reasoning, the court opined that “it

would put too great a burden on law enforcement officers to make

them subject to damages every time they miscalculated in what a

court of last resort would determine constituted an invasion of

constitutional rights.” Id.

In sum, contrary to plaintiff’s assertions (Appellant’s Br. 25-

26), there are no genuine issues of material fact as to Officer Elliot’s

belief concerning the validity of the warrant. Thus, the district court

properly granted summary judgment to the United States on

Roberts’ false arrest and false imprisonment claims.

2. The District Court Correctly Dismissed Roberts’ Claim For Negligent Infliction Of Emotional Distress.

Under Montana law, “[a] cause of action for negligent infliction

of emotional distress will arise under circumstances where serious

or severe emotional distress to the plaintiff was the reasonably

foreseeable consequence of the defendant’s negligent act or

omission.” Sacco, 896 P.2d at 425. In the explaining the reasoning

behind this test, the Montana Supreme Court stated that the


45

requirement that the emotional distress suffered be “serious’ or

severe’ ensures that only genuine claims will be compensated.” Id.

Further, “the necessity of demonstrating that plaintiff’s serious or

severe emotional distress was the reasonably foreseeable

consequence of defendant’s negligen[ce],” mitigates the concern

“over seeming unlimited liability for defendants.” Id. Severe or

serious emotional distress is proven ‘“only where the distress

inflicted is so severe that no reasonable [person] could be expected

to endure it.”’ Id. at 426 (brackets in original) (quoting Restatement

(Second) of Torts § 46, cmt. j at 77-78 (1965)). In view of this

standard, the district court was also correct in holding that the

United States is not liable with respect to Roberts’ negligent

infliction of emotional distress claim. (Doc. 54 at 10; ER 13).

Roberts’ attempt to show that she suffered serious or severe

emotional distress falls far short of meeting the Sacco test. Indeed,

plaintiff’s conclusory allegations that she “experienced serious

emotional distress caused by the actions of the BIA officers,” that

“[b]eing arrested was extremely traumatic,” and that she “was

scared to death” (Appellant’s Br. 27-28) do not rise to an actionable


46

level, as made plain by the facts of the cases she cites in her brief.

See id. at 27.

For instance, in Czajkowski v. Meyers, 172 P.3d 94 (2007), the

Montana Supreme Court upheld the trial court’s finding of

actionable emotional distress where the plaintiffs proved that, over

a period of four years, they endured an unrelenting barrage of

obscene gestures, verbal abuse, and the ongoing surveillance of

their outdoor activities by their neighbors. See Appellant’s Br. 27.

And in Peschel v. City of Missoula, 664 F. Supp. 2d 1149 (D. Mont.

2009), a federal district court applying Montana law concluded that

plaintiff’s deposition testimony that he suffered emotional distress

manifested by ‘“significant worry that he suffered from amyotrophic

lateral sclerosis,’ broke out with shingles, and ground his teeth so

much that it irritated his tongue,” coupled with plaintiff’s assertion

that “he suffered fright, humiliation, worry, [and] embarrassment,”

was consistent with the definition of serious or severe emotional

distress adopted in Sacco. 664 F. Supp. 2d at 1172. The court

therefore concluded that there was sufficient evidence upon which a


47

jury could find plaintiff suffered serious or severe emotional

distress. Id.

In contrast here, Roberts’ claim of emotional distress is clearly

insufficient to satisfy the Sacco standard. Roberts testified in her

deposition that during her arrest on February 19, 2011, Officer

Elliot told her that he was trying to make her arrest as painless as

possible. Roberts Dep. 123:14-24, ECF No. 41. (SER 6). In

accordance with Roberts’ request, Officer Elliot transported plaintiff

to the detention facility without handcuffs. Roberts Dep. 120:2-5,

ECF No. 41 (SER 5). Upon arriving at the detention center, Officer

Elliot handcuffed Roberts with her hands in front of her body, and

walked her into the facility. Roberts Dep. 120:18-25, ECF No. 41

(SER 5). Roberts was released from custody approximately one-half

hour later after posting bond. (SER 15); see also Roberts Dep.

124:23-125:8, ECF No. 41. (SER 7-8) Certainly Officer Elliot’s polite

and professional treatment of Roberts during the arrest, along with

her brief restraint and detention, did not result in emotional

distress “so severe that no reasonable person could be expected to

endure it.” See Sacco, 896 P.2d at 426.


48

Moreover, aside from discussing her situation with two friends

who were social workers, Roberts did not seek any care or

treatment for her alleged emotional distress. Roberts Dep. 25:12-

26:7, ECF No. 41. (ER 21). She has not taken any medication to

relieve the symptoms of her alleged emotional distress. Roberts Dep.

24:8-10, ECF No. 41. (ER 21). She also has not lost any time from

work or suffered any loss of earning because of her alleged

emotional distress. Roberts Dep. 132:25:-133:2, ECF No. 41. (SER

9-10). In short, she simply cannot meet the high standard for

proving an independent action for negligent infliction of emotional

distress under Montana law.

Additionally, as the district court concluded (ER 13), Officer

Elliot’s action in executing the second bench warrant was not a

negligent or wrongful act or omission. See Sacco, 896 P.2d at 418.

Rather, the officer had a “reasonable basis to believe that the

warrant and his actions were valid and lawful.” (ER 13).


49

CONCLUSION

For the foregoing reasons, the district court’s order granting

summary judgment in favor of all defendants should be affirmed.

Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

MICHAEL W. COTTER United States Attorney MATTHEW M. COLLETTE (202) 514-4214 /s/Jeffrica Jenkins Lee JEFFRICA JENKINS LEE (202) 514-5091 Attorneys, Appellate Staff

Civil Division, Room 7537 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001

DECEMBER 2015


STATEMENT OF RELATED CASES

Counsel for the appellees are not aware of any related

cases as defined in Circuit Rule 28-2.6.


CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF

OF APPELLATE PROCEDURE 32(A) AND CIRCUIT RULE 32-1

Pursuant to Fed. R. App. P. 32(a)(7)(B), (C) and Circuit Rule

32-1, I certify that the attached Brief for the Appellee has been

prepared in 14-point Bookman Old Style, a proportionally spaced

font.

I further certify that this brief complies with the type-volume

limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8,874

words, excluding the parts of the brief exempted under Rule

32(a)(7)(B)(iii), according to the count of Microsoft Word.

/s/Jeffrica Jenkins Lee JEFFRICA JENKINS LEE ATTORNEY FOR THE APPELLEES


CERTIFICATE OF SERVICE

I hereby certify that on December 28, 2015, I electronically

filed the foregoing brief with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system, which constitutes service on all parties

under the Court’s rules.

/s/ Jeffrica Jenkins Lee JEFFRICA JENKINS LEE ATTORNEY FOR THE APPELLEES


no. 15-35404 in the united states court of appeals for … · case: 15-35404, 12/28/2015, id:...

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