Johnson v . Town of Weare, N H , et a l . 12-CV-032-SM 10/23/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Johnson, Plaintiff

v. Case N o . 12-cv-032-SM Opinion N o .

Weare Police Department; Town of Weare, New Hampshire; and Officer Frank Jones, Defendants

O R D E R

On September 2 2 , 2011, members of the Weare Police

Department arrested the plaintiff, David Johnson, and charged him

with driving after his license had been revoked and operating a

motor vehicle with a suspended registration. Following a trial,

Johnson was convicted of both charges. He did not appeal that

conviction, which is now final. He brings this action seeking $5

Million in damages, asserting that the defendants violated his

constitutionally protected rights and committed various common

law torts.

The only individually named defendant in Johnson’s complaint

- Officer Frank Jones - moves for summary judgment, asserting

that he is entitled to judgment as a matter of law with regard to

each of Johnson’s claims. The municipal defendants - the Town

and its police department - have filed a separate motion for summary judgment. For the reasons stated, defendants’ motions

are granted.

Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v . Smith,

1 2 , 115

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “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). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted).

This case is somewhat atypical in that Johnson has failed to

object to either of the pending motions for summary judgment.

Accordingly, the court accepts as admitted the factual statements

recited in those motions, as supported by the attached exhibits.

See Local Rule 7.2(b)(2) (“All properly supported material facts

set forth in the moving party’s factual statement shall be deemed

2 admitted unless properly opposed by the adverse party.”). See

also Puerto Rico Am. Ins. C o . v . Rivera-Vazquez,

(1st Cir. 2010) (discussing Puerto Rico’s analog to Local

Rule 7.2(b)(2), also known as the “anti-ferret rule,” and holding

that, “This type of rule is aimed at enabling a district court to

adjudicate a summary judgment motion without endless rummaging

through a plethoric record. Given this root purpose, we have

held with a regularity bordering on the monotonous that parties

ignore the strictures of an ‘anti-ferret’ rule at their peril.”)

(citations omitted).

Importantly, however, Johnson’s failure to object does not

automatically entitle defendants to judgment in their favor. The

court must still determine whether the uncontested facts

presented by defendants, when viewed in the light most favorable

to Johnson, entitle defendants to judgment as a matter of law.

See, e.g., Stonkus v . City of Brockton Sch. Dep’t,

7 ,

102 (1st Cir. 2003).

Background

On September 2 2 , 2011, two officers from the Weare Police

Department drove to a home on Dustin Tavern Road to execute a

warrant authorizing the arrest of the owner of that property.

They placed the homeowner under arrest and took him into custody

3 without incident. During the course of the arrest, the officers

learned that, although the homeowner was not carrying (or

concealing) any weapons, he did have firearms in his home.

Once they returned to the police station, the officers

discovered that there was an active domestic violence restraining

order in place against the homeowner - an order that prohibited

him from possessing any firearms. They discussed the matter with

the homeowner and he agreed to allow the officers to return to

his home, conduct a search for the weapons, and take them into

police custody. During the course of his conversation with the

officers, the homeowner stated that no one else was living at his

home and no one had permission to be on his property.

At approximately 9:00 PM, a small group of Weare police

officers - including the defendant, Officer Frank Jones - drove

to the property to retrieve the weapons. As they approached the

house, the officers saw a black Ford Ranger pickup truck that had

not been on the property earlier. As they got closer to the

vehicle, the officers saw the truck’s occupant pop his head up

and then drop back down out of sight. The officers suspected

that the individual in the truck might be engaged in illegal

activity, given his apparent attempt to conceal his presence.

Additionally, the homeowner had told the officers that no one was

4 authorized to be on the property and the officers knew that there

had been a string of burglaries in the area recently. The

officers also knew that the homeowner was associated with members

of “sovereign citizen” and “free state” groups and, of course,

they were well aware of the fact that there were firearms on the

property - all of which, say the officers, raised safety concerns.1

Accordingly, the officers decided to approach the vehicle,

remove the occupant, and determine what he was doing on the

property. They moved toward the vehicle with their service

weapons drawn and in a “low ready” position. The truck’s

occupant, the plaintiff, M r . Johnson, was ordered to get out of

the truck and lay on the ground. Johnson complied; no physical

force was necessary, nor was any applied, to obtain his

cooperation. After patting Johnson down to ensure that he was

not carrying any weapons, the officers allowed him to stand up

and they asked him who he was and what he was doing on the

1 The Court of Appeals for the Second Circuit has described the “sovereign citizens” as “a loosely affiliated group who believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior” and noted that the “FBI has labeled the sovereign citizens a domestic terrorist group.” United States v . Ulloa,

, 107 n.1 (2d Cir. 2013) (citing “Sovereign Citizens A Growing Domestic Threat to Law Enforcement,” FBI Law Enforcement Bulletin (Sept. 2011), http://www.fbi.gov/stats-services/publications/law-enforcement- bulletin/september–2011/sovereign–citizens) (the “FBI Bulletin”).

5 property. Johnson told the officers that he was a friend of the

homeowner and that he had been sleeping in the truck when they

arrived. The officers ran a check on Johnson’s personal

information and determined that both his driver’s license and

automobile registration were suspended. Although Johnson

asserted that he did not need a driver’s license or vehicle

registration to drive on public roads, the officers were (understandably) unpersuaded.2

Given the likelihood that Johnson would simply drive away if

he were not taken into custody, the lieutenant (and highest

ranking officer) on the scene decided to place him under arrest.

Because Johnson is a large man, one of the other officers

handcuffed him using two sets of handcuffs linked together.

Officer Jones then escorted Johnson to one of the police

cruisers. Because of his size, Johnson had difficulty getting

into the vehicle. S o , Officer Jones allowed him to sit in the

2 In his various filings, Johnson refers to himself as a “Free American Sovereign,” and as “david: Johnson, Sui Juris, an Art 30 american sovereign of the New Hampshire citizenry.” His expressed belief that he needs neither a driver’s license nor a vehicle registration is consistent with those of the sovereign citizen movement. See The FBI Bulletin at 1 (“Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency. However, a closer look at sovereign citizens’ more severe crimes, from financial scams to impersonating or threatening law enforcement officials, gives reason for concern.”).

6 back seat with his legs outside the vehicle, while the remaining

officers searched the home and retrieved the owner’s firearms.

According to the officers, no force (excessive or otherwise) was

ever used against Johnson. In his affidavit, Officer Jones

testified that:

At no point during the detention or arrest process did I apply any force, excessive or otherwise, against Johnson. I did not handcuff Johnson. I did not use any of the various physical restraints or maneuvers normally utilized by the police (e.g., take downs, arm- bars, hand strikes, etc.) on Johnson. I did not strike Johnson, or apply any level of force to him, beyond simply taking him by the arm, walking him to the cruiser, and helping him into the back seat.

Affidavit of Officer Frank Jones (document n o . 24-2) at para. 1 9 .

Once the lieutenant made the decision to arrest Johnson, one

of the other officers on the scene called for a tow truck to move

Johnson’s pickup truck. Consistent with the Weare Police

Department’s procedures, two officers conducted an inventory

search of the vehicle. Meanwhile, Officer Jones continued to

stand watch over Johnson at the open door of the cruiser. When

it was time to transport Johnson to the police station, Jones

assisted him into the back seat of the cruiser. Because of his

large size, officers turned him onto his side and had him lay

down in the back seat. The officers all unite in saying that

they did this with the least amount of force and physical contact

7 possible and at no time did they take any action that was

designed to cause Johnson any pain or discomfort. Nothing in the

record suggests that there was a struggle, or that Johnson was

uncooperative, or that he resisted in any way.

Another officer then transported Johnson to the police

station. During that drive, Johnson complained of shoulder pain.

Accordingly, the officer notified the Weare Fire Department and

asked that medical personnel meet them at the police department.

Once Johnson arrived at the police station, medical personnel

evaluated him and, because he was complaining of chest and

shoulder pain, they determined that he should go to the hospital.

At that point, Officer Jones had also arrived at the police

station and he issued Johnson a summons to appear in court.

Johnson was then released from police custody and he was taken by

ambulance to the hospital. Subsequently, Johnson was convicted

of operating a motor vehicle with a suspended license, and

operating with a suspended registration.

Johnson contends that Weare police officers took him

“hostage” on the night of September 2 2 , stole his truck, and

engaged in various acts of extortion and fraud. He also says his

Fourth Amendment rights were repeatedly violated and that he was

the victim of various common law torts. The only individually

8 named police officer in Johnson’s complaint, however, is Jones.

Jones was present when Johnson was taken into custody, but he

played only a minor role in effecting and processing the arrest.

Jones did not make the decision to charge or arrest Johnson, he

did not handcuff Johnson, he did not make the decision to tow

Johnson’s vehicle, he did not search Johnson’s vehicle, and he

did not transport Johnson to the police station.

Discussion

Because Johnson is proceeding pro s e , the Magistrate Judge

conducted a preliminary review of his complaint and, what remain,

are the following claims. Against Officer Jones, Johnson asserts

claims for false arrest, excessive force, and unreasonable search

and seizure - all in violation of the Fourth Amendment. See

generally

. He also asserts state common law

claims for assault and false arrest against Officer Jones, the

Town of Weare, and the Weare Police Department (on a theory of

respondeat superior). Based upon the undisputed facts of record,

however, none of those claims can survive summary judgment.

I. Fourth Amendment Claims.

Johnson first claims that Officer Jones violated his

constitutionally protected rights by arresting him without

probable cause. Prior to Johnson’s arrest, given the totality of

9 the circumstances, the officers were plainly justified in

ordering Johnson to get out of his vehicle and then briefly

detaining him while they determined who he was and what he was

doing. See generally Terry v . Ohio,

(1968). See also

United States v . Sokolow,

, 7 (1989); Michigan v .

Summers,

9 2 , 699-700 (1981). After all, the property

owner said no one would be on the property and no one was

authorized to be there, Johnson appeared to be concealing himself

after he saw the officers, it was night, and the area had

experienced some burglaries. The officers were fully justified

in briefly investigating to determine whether criminal activity

was afoot.

Once the officers learned that both Johnson’s driver’s

license and vehicle registration had been suspended, they had

probable cause to believe that he had (quite recently) illegally

driven his pickup truck on public roads in the Town of Weare.

Their subsequent decision to arrest Johnson (and restrain him in

handcuffs) - even in the absence of a warrant - was entirely

consistent with the Fourth Amendment. See, e.g., Robinson v .

Cook,

5 , 33 (1st Cir. 2013) (“A warrantless arrest is

permissible under the Fourth Amendment where there is probable

cause, i.e., where reasonably trustworthy facts and circumstances

10 would enable a reasonably prudent person to believe that the

arrestee has committed a crime.”).

As to his claim that Officer Jones violated the Fourth

Amendment by using excessive force against him, Johnson must

point to facts from which a jury could plausibly conclude that

Jones employed force that was unreasonable under the

circumstances.3 And, whether the force used to effect an arrest

was reasonable “must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Graham v . Connor,

(1989). Moreover, the “reasonableness” inquiry is an objective

one, to be made “in light of the facts and circumstances

confronting [the officers], without regard to their underlying

intent or motivation.”

. Here, beyond Officer Jones’

statement that he guided Johnson by the arm to the police

cruiser, there is no evidence that Jones used any force at all on

Johnson - excessive or otherwise.

3 “Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham v . Connor,

(1989).

11 Finally, Johnson’s claim that Officer Jones

unconstitutionally searched and seized his truck must also fail.

First, and perhaps most fundamentally, there is no evidence that

Officer Jones made the decision to seize Johnson’s truck, nor is

there any evidence suggesting that Officer Jones participated in

the inventory search of that vehicle. But, even if there were

such evidence in the record, neither the warrantless search of

Johnson’s truck, nor the seizure of that vehicle, ran afoul of

the Fourth Amendment. See Colorado v . Bertine,

6 7 , 371

(1987) “([I]nventory searches are now a well-defined exception to

the warrant requirement of the Fourth Amendment. The policies

behind the warrant requirement are not implicated in an inventory

search, nor is the related concept of probable cause.”) (citing

Illinois v . Lafayette,

(1983) and South Dakota v .

Opperman,

(1976)).

Moreover, the undisputed facts of record reveal that the

officers who did perform the inventory search were following

departmental policy, they were not acting in bad faith, and they

were not performing the search solely in an effort to discover

incriminating evidence against Johnson. In that regard, this

case is quite similar to Bertine, supra, in which the Supreme

Court observed:

12 In the present case, as in Opperman and Lafayette, there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. In addition, the governmental interests justifying the inventory searches in Opperman and Lafayette are nearly the same as those which obtain here. In each case, the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property.

Bertine, 479 U.S. at 372-73. See also United States v . S t .

Pierre,

6 , 79-80 (1st Cir. 2007).

Under the circumstances presented, the inventory search of

Johnson’s truck did not violate the Fourth Amendment.

II. State Common Law Claims.

For largely the same reasons, Johnson’s common law claims

against Officer Jones for assault and false arrest also fail.

The record is simply devoid of any evidence suggesting that

Officer Jones threatened (or attempted) to harm Johnson in any

way. See, e.g., State v . Brough,

8 2 , 185-186 (1972).

(defining common law assault as the unlawful threat of bodily

injury, coupled with the apparent ability to carry out that

threat, sufficient to create a well-grounded and reasonable fear

of personal injury). See generally 8 Richard B . McNamara, N.H.

13 Practice: Personal Injury Tort and Insurance Practice § 3.12 (3d

Ed. 2003) (“Elements of Assault”). Jones i s , therefore, entitled

to judgment as a matter of law on Johnson’s claim for common law

assault. And, because the decision to arrest Johnson was plainly

supported by probable cause, he lacks any viable claim for false

arrest or false imprisonment. See, e.g., Ojo v . Lorenzo,

1 7 , 727 (2013) (“[P]robable cause is a defense to a claim

for false imprisonment.”).4

Finally, because Jones is not, as a matter of law, liable to

Johnson for assault or false arrest, Johnson’s respondeat

superior claims against the Town of Weare and its police

department necessarily fail. See generally Pierson v . Hubbard,

6 0 , 766 (2002).

Conclusion

For the foregoing reasons, as well as those set forth in

defendants’ legal memoranda, defendants’ motions for summary

judgment (documents n o . 24 and 26) are granted.

In New Hampshire “false arrest” and “false imprisonment” imprisonment” are are synonymous. synonymous. See,See, e.g., e.g., Hickox Hickox v v.. J. J. B B.. Morin Morin Agency,

3 8 , 441 (1970) (“‘False imprisonment’ is often n spoken of as ‘false arrest” without violence to the definition of the tort

14 The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

Steven J. McAuliffe Jnited States District Judge

October 23, 2013

cc: David Johnson, pro se Charles P. Bauer, Esq. Andrew B . Livernois, Esq.

15