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Reed v. Lieurance

United States Court of Appeals, Ninth Circuit

July 24, 2017

Anthony Patrick Reed, Plaintiff-Appellant/ Cross-Appellee,
Doug Lieurance, in his individual capacity; Brian Gootkin, in his individual capacity; Gallatin County Sheriff's Office, a department of Gallatin County; and Gallatin County, Defendants-Appellees/ Cross-Appellants.

          Argued and Submitted April 5, 2017 Seattle, Washington

         Appeals from the United States District Court for the District of Montana D.C. No. 2:13-cv-00017-SEH Sam E. Haddon, Senior District Judge, Presiding

          Rebecca Kay Smith (argued), Missoula, Montana, for Plaintiff-Appellant/Cross-Appellee.

          Steven Robert Milch (argued), Billings, Montana, for Defendants-Appellees/Cross-Appellants.

          Before: Alex Kozinski and William A. Fletcher, Circuit Judges, and John R. Tunheim, [*] Chief District Judge.


         Civil Rights

         The panel reversed the district court's summary judgment, the district court's Fed.R.Civ.P. 12(b)(6) dismissals, and its judgment as a matter of law, and dismissed for lack of jurisdiction an appeal from the district court's order denying defendants' motion for attorney fees, in an action brought pursuant to 42 U.S.C. § 1983 and state law.

         Plaintiff Anthony Reed alleged that his constitutional rights were violated when he was arrested and cited while volunteering to observe an interagency government operation to herd buffalo into Yellowstone National Park.

         Construing the facts in Reed's favor, the panel could not conclude that as a matter of law, a reasonably prudent officer in defendant Deputy Lieurance's situation would have had probable cause to believe that Reed obstructed the herding operation. The panel determined that the district court improperly invaded the province of the jury when it resolved factual disputes material to the question of probable cause. Thus, defendants were not entitled to summary judgment on Reed's unlawful seizure claim.

         The panel reversed the district court's sua sponte dismissal, pursuant to Fed.R.Civ.P. 12(b)(6), of Reed's failure-to-train claim on the grounds that the district court did not first provide Reed with notice and an opportunity to respond before dismissing the claim. The panel further held that the district court abused its discretion by excluding the testimony of Reed's police practices expert as it related to the failure-to-train claim.

         The panel held that the district court committed reversible error in granting judgment as a matter of law on Reed's First Amendment and related state claims without first providing Reed notice of the grounds for the decision. Addressing the merits of the First Amendment claim, the panel held that in ruling that defendants were entitled to judgment as a matter of law, the district court improperly resolved numerous factual disputes reserved for the jury.

         The panel determined that it lacked jurisdiction to review the district court's denial without prejudice of defendants' motion for attorney fees and therefore dismissed defendants' cross-appeal from that order. On remand, the panel ordered that the case be reassigned to a different district judge.


          TUNHEIM, Chief District Judge.

         On May 23, 2012, officers from the Gallatin County Sheriff's Office (the "Sheriff's Office") were involved in an interagency governmental operation to herd buffalo into Yellowstone National Park. Plaintiff-Appellant Anthony Patrick Reed was attempting to observe the herding operation as the buffalo were ushered across U.S. Route 191 ("Highway 191"). While Reed was parked at an observation point, Defendant-Appellee Deputy Doug Lieurance issued a misdemeanor citation to Reed for obstructing the herding operation and threatened him with jail time if he did not move. Reed brought this action under 42 U.S.C. § 1983, arguing that Deputy Lieurance's actions violated Reed's First and Fourth Amendment rights and related Montana constitutional rights and that Gallatin County Sheriff Brian Gootkin, the Sheriff's Office, and Gallatin County have a policy or practice of providing constitutionally inadequate training to Gallatin County police officers.

         The district court dismissed some of Reed's claims at summary judgment and granted judgment as a matter of law for Defendants on the remaining claims after Reed presented evidence at trial. Reed now appeals these decisions as well as the district court's exclusion of Reed's expert witness and denial of his motion to amend the complaint. Defendants cross-appeal the district court's denial of their motion for attorney fees. We reverse the dismissal of Reed's claims and the exclusion of his expert and dismiss for lack of jurisdiction Appellees' cross-appeal from the district court's attorney fee order.

         I. Factual and Procedural Background[1]

         Reed is a volunteer with the Buffalo Field Campaign (the "Campaign"), a 501(c)(3) non-profit conservation organization that sends volunteers to observe and document the herding (also called "hazing") of buffalo in and near Yellowstone National Park. Pursuant to an interagency agreement, government personnel from a number of state and federal agencies carry out hazing operations as many as four or five times per week between December and July. The Campaign provides video footage and information about the hazing to news outlets and government agencies.

         The hazing is accomplished using a variety of methods-horseback riders, cars, all-terrain vehicles, snowmobiles, and sometimes helicopters. On May 11, 2012, less than two weeks before the events giving rise to this lawsuit, information collected by Campaign volunteers was submitted as evidence in a federal environmental lawsuit challenging the use of helicopters in buffalo hazing. On May 14, 2012, the district court granted a temporary restraining order in that case prohibiting the use of helicopters during hazing in the area.

         On May 23, 2012, Reed and another Campaign volunteer, Kasi Craddock-Crocker, were in a vehicle attempting to observe the herding of buffalo east into Yellowstone National Park across Highway 191, which runs north and south on the west side of the Park. Agent Rob Tierney of the Montana Department of Livestock was in charge of the haze that day, and two Deputies from the Sheriff's Office-Deputy Lieurance and Deputy Mark Hernandez-provided law enforcement assistance.

         As relevant to this appeal, the planned route for the haze was to travel with the buffalo east on Madison Arm Road-which runs roughly perpendicular to Highway 191-to the intersection with Highway 191; to herd the buffalo east over Highway 191; and then to continue eastward after crossing Highway 191, where the east-west road changes names to Conservation Lane. Roughly 0.3 miles north of the Highway 191-Conservation Lane intersection, the Madison River runs east to west. Both the east-west roads (Madison Arm Road and Conservation Lane) and the Madison River are in a relatively low-lying area. Another 0.3 miles north of the Madison River, the elevation noticeably increases. The divide between the southern low-lying area and the elevated area to the north is the east-west-running Madison Rim; at the point where Highway 191 intersects with Madison Rim, there is a 150-foot drop to the valley below. While the herders hoped to force the buffalo to cross Highway 191 south of the Madison River, Defendants produced evidence showing that the buffalo's actual path can be difficult to predict, and in hazes past, the buffalo had occasionally crossed the highway north of the river.

         In order to prevent collisions between cars and buffalo, Agent Tierney's team temporarily blockaded a stretch of Highway 191. Agent Tierney set up the blockade of the northbound lane several hundred feet south of Conservation Lane, while Deputy Lieurance blockaded southbound traffic 0.9 miles north of Conservation Lane, at the intersection of Highway 191 and Ecology Lane. Ecology Lane crosses Highway 191 roughly 0.3 miles north of Madison Rim. Between Ecology Lane and Madison Rim, there is a significant turn in the highway. The blockade of southbound traffic was placed at a location relatively far from the planned haze route so that it would be visible to southbound traffic, including large trucks traveling at high speeds, in time for drivers to stop safely before reaching the downward incline around the bend.

         Reed initially parked his vehicle just east of Highway 191 and just north of Conservation Lane in order to get a clear view of the buffalo as they crossed the highway. Reed had observed hazes from the same location taking the same route in the past. While Reed was parked in that spot, Agent Tierney approached the vehicle and advised Reed he was parked in the planned herding route and needed to move his vehicle. Reed's version of events is that Agent Tierney told Reed to head either north or south to get out of the way, while Defendants posit that Agent Tierney specifically told Reed three times that he needed to move either south of the northbound traffic blockade or north of the southbound traffic blockade.

         After speaking with Agent Tierney, Reed and Craddock-Crocker drove north. Reed's version of events is that he drove about 0.6 miles north, exited Highway 191, and parked on a gravel road running parallel to the highway and separated from the highway by a grass median. According to Reed, the parking spot was up the hill, roughly 0.3 miles north of the point where Highway 191 crosses the Madison River. Reed testified that he parked in this location "[b]ecause it was the farthest away place to be out of the way, but still be able to see the crossing and get a good count on the buffalo" and because he and Craddock-Crocker "thought [they] would be well out of the way." In contrast, Agent Tierney testified that Reed parked just seventy-five yards north of the Madison River.

         After Reed drove north and parked, Agent Tierney radioed Deputy Lieurance, who had not yet blockaded the southbound lane, to tell him that Reed had not followed Agent Tierney's instructions to go north of the southbound blockade. Deputy Lieurance then called for a temporary halt to the haze and drove to Reed's location. After a brief verbal exchange, in which Deputy Lieurance asked Reed why he parked where he parked "when [he had] been instructed to go to a different place, " and Reed protested that he was "not interfering with the haze" and "not breaking any law, " Deputy Lieurance cited Reed for obstructing a peace officer or other public servant-a misdemeanor-pursuant to Mont. Code Ann. § 45-7-302. While issuing the citation, Deputy Lieurance said: "You've been instructed by law enforcement to do something. You didn't do it." The citation includes the following hand-written description: "was told by a law enforcement officer to be in a specific place during a governmental operation 3 times and still did not comply." At the time he issued the citation, no buffalo, horses, or riders were in Deputy Lieurance's sight and he knew neither the planned haze route for the day nor the specific location of the herd at that time.

         After Deputy Lieurance issued the citation, Reed and Craddock-Crocker told Deputy Lieurance that it was "illegal" to tell them they had to go to a specific place if they were not actually obstructing anything. Deputy Lieurance told Reed that he would be arrested if he did not move outside of the blockaded area. Deputy Lieurance testified that he felt a sense of urgency because while he had called the horseback riders herding the buffalo to direct them to stop the haze, that did not mean the buffalo had stopped moving east; thus Deputy Lieurance needed to leave the scene and head north to blockade southbound traffic before the buffalo reached the highway. Reed then drove north to the highway's intersection with Ecology Lane, after which the highway was eventually blockaded and the buffalo crossed safely. From their location at the southbound blockade, Reed and Craddock-Crocker had no view of the buffalo crossing Highway 191. The parties disagree about exactly where the buffalo crossed the highway; the haze appears to have roughly followed the planned route, with Defendants positing that some buffalo may have crossed as far north as the Madison River. There is no evidence that any buffalo were north of the Madison River, let alone that any buffalo wandered up Madison Rim.

         Video footage of the buffalo inside Yellowstone National Park shows that, later on the same day, members of the public were permitted to observe the same herding operation from roughly fifty yards away.

         On July 10, 2012, the state prosecutor moved to voluntarily dismiss the obstruction charge against Reed after Reed's attorney provided a video and witness declarations documenting the ...

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