MALICIOUS PROSECUTION and numerous other claims against City and officers by attorney cited for barking dogs, disorderly conduct, misdemeanor assault stemming from obscenity laced screaming rant dismissed on summary judgment… Cavan/Watters.
On 3/9/18 at 9:27 p.m. Livingston Officers O’Neill and Hildebrand responded to a complaint that a dog had been barking outside a residence for 2 hours. The residence belonged to attorney Jami Rebsom. O’Neill could hear her dogs barking from her backyard but the officers left because no one was home.
At 10:32 another resident called to report barking dogs at Rebsom’s residence. O’Neill called her. She said she was home but hung up before he could discuss the complaints.
At 10:45 O’Neill and Hildebrand returned to Rebsom’s residence. They could hear her yelling, “Get out here you fucking bitch” and “fuck you.” They heard a neighbor’s screen door open and a man ask, “What is going on?”
When O’Neill and Hildebrand went to Rebsom’s front door she refused to open it or speak with them and displayed both middle fingers through the glass door and told them to “fuck off” and “get a warrant mother fuckers.” Sgt. LaBaty arrived and the officers informed Rebsom that she would be cited for disorderly conduct and keeping barking dogs. Because she refused to speak with them and was possibly intoxicated they decided to issue the citations the next day. As they were preparing to leave she placed a 911 call that was transferred to LaBaty. He advised her that they were leaving. She hung up, called 911, and left a message for the Police Chief. All officers left her residence by 10:55.
When Officer Kunnath arrived for his shift the next morning O’Neill briefed him on the events at Rebsom’s residence and asked him to serve her with the citations for keeping barking dogs and disorderly conduct.
Kunnath spoke to Rebsom’s neighbor Emily Greenwald who wished to report an incident from the previous night. She and her husband Jason provided oral and written statements. He reported that around 10:30 he was in his living room when he heard Rebsom screaming, “Emily Greenwald you fucking bitch, get your ass out here. I am going to fucking kill you.” (Rebsom believed that Emily was the one who called police about the barking dogs but it was other neighbors who had called.) Jason stated that he opened his back door and said, “Excuse me,” but Rebsom did not respond. He reported that he was fearful that she may be approaching their home so he picked up his phone in case he needed to call police and went to his front window where he saw the police at her residence. He stated that this was not the first time she had yelled obscenities late at night.
Emily reported that she was in a back bedroom when Rebsom was screaming and could hear shouting and barking dogs but could not make out what was said. At 6:30 the next morning Jason told her what Rebsom had screamed. Both reported fearing for their safety and wished that assault charges be filed.
Kunnath delivered the citations for disorderly conduct and keeping barking dogs and also cited Rebsom for assault in violation of MCA 45-5-201(1)(d) based on Greenwalds’ complaint. Rebsom contacted Livingston Prosecutor Jay Porteen and asked that he dismiss the assault charge. He declined to do so. All charges were later dismissed because Greenwalds moved from Livingston and were unavailable to testify.
On 3/10/20 Rebsom sued asserting §1983 claims against Kunnath, O’Neill, and LaBaty and state law claims for respondeat superior against Livingston, malicious prosecution against Kunnath, Porteen, and Livingston, actual/malice punitives against Kunnath and Porteen, negligence against Porteen, defamation/libel against Kunnath, defamation/slander against Kunnath, defamation/libel against O’Neill, and defamation/slander against O’Neill. O’Neill and LaBaty previously moved for summary judgment which was granted. Kunnath, Livingston, and Porteen now move for summary judgment.
Count I — §1983 claim against Kunnath.
In her Complaint Rebsom alleges that Kunnath “made an unreasonable search and seizure of Rebsom’s person and home, assaulted, battered and falsely imprisoned her.” However, in responding to Kunnath’s motion for summary judgment she does not address any of these allegations. But lest there is any question as to the merits of these allegations or whether there is any factual basis to support them, it is undisputed that Kunnath was not one of the officers who responded to Rebsom’s home 3/9/18, he did not search her home, he did not attempt to enter her home, he did not search her, and he did not assault, batter, or falsely imprison her. (Rebsom did not know which officers were at her home and only assumed that Kunnath was one of them.) Further, contrary to suggestions in her brief, it is undisputed that she was not arrested. She was not handcuffed or taken into custody. She was not deprived of her liberty or restrained in any manner. She was only issued a citation. Hence her 4th Amendment claim is reduced to the argument that issuance of the citation without probable cause constituted an unreasonable seizure. But the mere issuance of a misdemeanor citation is not a seizure under the 4th Amendment. Karam (9th Cir. 2003); Britton (1st Cir. 1999); Martinez (10th Cir. 2007); Bielanski (7th Cir. 2008); White (CD Cal. 2010); Raiser (CD Cal. 2020) (“numerous courts have held that the mere issuance of a citation does not constitute a seizure”). Rebsom was issued a citation for a misdemeanor which required that she appear in court. She has raised no other facts to suggest that her liberty was otherwise retrained in any manner. No 4th Amendment violation occurred.
Rebsom contends in her response brief that Kunnath violated her 1st Amendment rights by issuing the assault citation, but she did not plead any 1st Amendment claim or even mention the 1st Amendment in her Complaint and her argument will be disregarded.
Count V — malicious prosecution.
Count V is captioned as a malicious prosecution claim against Porteen and Livingston but the allegations also reference Kunnath so it is assumed that the claim is also asserted against him.
Considering the totality of circumstances known to Kunnath, he had probable cause to believe that Rebsom committed misdemeanor assault. By threatening to kill Emily it was certainly reasonable to conclude that it was her conscious object to cause her apprehension of bodily injury and that there was a high probability that the threat would result in such apprehension. MCA 45-2-101(65), 45-2-101(35). Additionally, she was successful in doing so. Both Emily and Jason reported that they were fearful for their safety and the safety of their family. Rebsom argues that Kunnath lacked probable cause because she did not have contact with Emily and Emily could not have reasonably apprehended injury at the time the threats were made because Jason’s report to police indicates that Emily was asleep when she was shouting. However, Emily’s statement establishes that she was awake and heard shouting although she could not hear what was said. Regardless, it is undisputed that Rebsom’s specific threats were subsequently communicated to Emily.
The Montana Supreme Court has determined that a threat need not be communicated directly to the victim to cause reasonable apprehension of injury; it can be communicated to the victim by a 3rd party. This has been made clear in several cases considering an analogous statute involving apprehension of injury with a weapon. Swann (Mont. 2007); Smith (Mont. 2004); Misner (Mont. 1988). Although the interval between the threat and the communication to Emily is greater than in those cases, all that is necessary is that Rebsom’s threat to kill Emily created circumstances which led Emily to reasonably apprehend injury.
Rebsom nevertheless asserts without citation to authority that it must be shown that “Emily Greenwald, either had: (1) contact with Rebsom; or (2) was concerned that at the moment of the act, the alleged victim suffered reasonable apprehension of bodily injury.” But that is not what the statute says. It does not have a temporal condition that requires concurrence of the defendant’s act and the victim’s apprehension of injury.
In addition, while Rebsom argues that there was no cause for assault as to Emily, she does not address an assault as to Jason. A threat need not be directed at the victim to create a reasonable apprehension of injury. In Walsh (Mont. 1997), Chellsi, 10, witnessed her mother’s fiancé be beaten by 2 men while she and her mother were in a car. She testified that she was fearful they were going to attack her and her mother. The Montana Supreme Court affirmed an assault conviction as to Chellsi, finding that a jury could have found that she reasonably apprehended injury to herself and noting that an assault victim need not be “the direct recipient of the defendant’s actions.” While Jason was not the direct target of Rebsom’s threats, he heard her screaming late at night that she was going to kill his wife. He was “shaken” enough to get his phone ready to call police and to check if Rebsom was approaching their home and “I was concerned for my safety since it seemed to me that Ms. Rebsom was out of control and filled with rage however misguided.” Thus Kunnath reasonably concluded that Rebsom also caused reasonable apprehension of injury in Jason. Since probable cause was present as to both Emily and Jason, Rebsom’s claims for malicious prosecution necessarily fail.
Count VI – malice.
Count VI is captioned as a claim for “Actual Malice against Defendant Porteen,” but Kunnath is again mentioned in the allegations. The claim for actual malice appears not to be an independent claim but a claim for punitives based on the alleged prosecution of Rebsom without probable cause. Since Kunnath had probable cause to issue the assault citation, this claim necessarily fails.
Counts VIII-IX — defamation/libel/slander against Kunnath.
The basis of Rebsom’s defamation claims against Kunnath are the statements in the assault citation. She has presented no facts to show that they are false. It states: “Jason Greenwald heard neighbor Jami Rebsom scream “Emily Greenwald you fucking bitch get your ass out here. I’m going to fucking kill you.” It is undisputed that she said this and thus the allegedly defamatory statement cannot be false.
A privileged publication is “one made (1) in the proper discharge of an official duty; (2) in any judicial proceeding or in any other official proceeding authorized by law.” Sacco (Mont. 1995) adopted the Restatement of Torts’ approach and determined that “an arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege.” Therefore the act of issuing a citation is a privileged publication made in the proper discharge of an official duty. It is undisputed that Kunnath is a police officer authorized to respond to complaints, write reports, and issue citations, he issued the assault citation to Rebsom in the discharge of his duties, and the citation was in a judicial proceeding or other proceeding authorized by law. Because the citation does not contain any false statements and is a privileged publication, Rebsom’s defamation claims necessarily fail.
Count II — §1983 claim against Livingston.
Rebsom asserted a Monell (US 1978) claim against Livingston based on Kunnath’s implementation of a city policy or custom and/or due to its inadequate hiring & supervision of him. The Court has determined that his conduct did not deprive her of a constitutional right and thus her §1983 claim against Livingston necessarily fails.
Count III – respondeat superior claim against Livingston.
Rebsom seeks to hold Livingston vicariously liable for trespass and violation of privacy and malicious prosecution by Kunnath and malicious prosecution based on Porteen’s continued prosecution.
It is unclear when and how Kunnath trespassed or violated her privacy. He was not present that night. To the extent that these allegations related to his issuance of the assault citation, Rebsom’s complaint does not set forth any allegation that he committed a trespass or violated her privacy in issuing the citation, nor does she raise any factual support or other argument in her summary judgment response that he committed a trespass or violated her privacy. In addition, the Court has found that probable cause existed for Rebsom’s citation and that her claim for malicious prosecution is subject to summary judgment. Therefore, Kunnath did not engage in any wrongful conduct that can be imputed to Livingston. Moreover, to the extent that her “respondeat superior” claim is based on Porteen’s action, prosecutorial immunity bars her claim against him. A state prosecutor is entitled to absolute immunity from liability under §1983 when he engages in activities “intimately associated with the judicial phase of the criminal process” such as initiating a prosecution. Imbler (US 1976). Rebsom’s allegations against Porteen stem from his initial refusal to dismiss the assault, an activity intimately associated with the judicial phase of the criminal process. The citation was also supported by probable cause and thus a malicious prosecution claim against Porteen fails.
Count IV — §1983 claim against Porteen.
Porteen argues that the appropriate remedy for this claim is a state law malicious prosecution claim. Rebsom agrees that the “Civil rights against Porteen found in Count IV of the Amended Complaint (excluding the negligence claims and the malicious prosecution claims) and the City related to Porteen’s actions should be dismissed.”
Count V — malicious prosecution claim against Porteen and Livingston.
The Court has found probable cause for the assault charge against Rebsom and her malicious prosecution claim is subject to summary judgment on that basis alone. In addition, Porteen’s actions in initiating and maintaining the prosecution of the assault charge are protected by prosecutorial immunity. Therefore he has no liability under Rebsom’s malicious prosecution claim and there is no liability to impute to Livingston.
Counts VI and VII — actual malice and negligence claims against Porteen.
Both of these claims are based on alleged lack of probable cause to initiate and maintain the charge against Rebsom. Probable cause existed and Porteen’s decision to prosecute her is protected by prosecutorial immunity.
Recommended: Summary judgment be granted for Kunnath, Livingston, and Porteen.
Judge Watters’s order adopting Cavan’s findings & recommendations.
Magistrate Cavan filed findings & recommendations on Steve Kunnath’s motion for summary judgment and Livingston’s and Jay Porteen’s motion for summary judgment, recommending that each motion be granted. No objections were filed within 14 days as required by 28 USC 636(b)(1) and thus this Court reviews the findings & recommendations for clear error which exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” Syrax (9th Cir. 2000). After reviewing the findings & recommendations, this Court does not find that Cavan committed clear error. His proposed findings & recommendations are adopted in full.
Rebsom v. Kunnath, Livingston, and Porteen, 44 MFR 274, Cavan’s F&R 2/25/22, Watters’s adoption 3/16/22.
Suzanne Marshall (Marshall Law), Bozeman, for Rebsom; Harlan Krogh & Haley Ford (Crist, Krogh, Alke & Nord), Billings, for Kunnath, O’Neill, and LaBaty; Randall Nelson & Thomas Bancroft (Nelson Law Firm), Billings, for Livingston.
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