Gonzales v. City of Bozeman

2009 MT 277, 217 P.3d 487, 352 Mont. 145, 2009 Mont. LEXIS 419
CourtMontana Supreme Court
DecidedAugust 24, 2009
DocketDA 08-0566
StatusPublished
Cited by17 cases

This text of 2009 MT 277 (Gonzales v. City of Bozeman) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzales v. City of Bozeman, 2009 MT 277, 217 P.3d 487, 352 Mont. 145, 2009 Mont. LEXIS 419 (Mo. 2009).

Opinions

CHIEF JUSTICE McGRATH

delivered the Opinion of the Court.

¶1 Leah Gonzales appeals from the July 30, 2008, orders of the District Court of the Eighteenth Judicial District Court, Gallatin County, granting summary judgment to the defendants. We affirm.

¶2 Gonzales raises several issues on appeal that we restate as follows:

¶3 Issue One: Whether the District Court properly concluded that the public duty doctrine bars Gonzales’ claims.

¶4 Issue Two: Whether Gonzales was unlawfully arrested.

PROCEDURAL AND FACTUAL BACKGROUND

¶5 On the evening of April 3, 2005, Gonzales was the lone clerk at a Town Pump store on East Main Street in Bozeman, Montana. At 9:55 p.m. a man later identified as transient Jose Mario Gonzalez-Menjivar entered the store wearing a ski cap. He held a knife to Gonzales’ throat and demanded money. Gonzales was able to surreptitiously dial 911 on her cell phone shortly after Menjivar entered the store but could not talk to anyone and never knew whether the call went through. In the meanwhile, Gonzales began removing money from the safe, which was limited by a security device to dispensing $100 every two or three minutes.

¶6 Gonzales’ 911 call did go through to Gallatin County dispatch, and [147]*147dispatchers heard enough on the open line to understand that there was a robbery in progress somewhere. Dispatch notified Bozeman Police that there was a robbery in progress somewhere in the city, and officers began checking open businesses. Meanwhile, dispatchers worked quickly to identify the location of the robbery. They used a law enforcement database called I/LEADS to determine that the call had been made from a cell phone number registered to Gonzales, and that her last known employment was a Town Pump. The system gave the telephone number of the Town Pump store where Gonzales was last known to work, but not its address. Dispatcher Pickering used a phone book to match the phone number in the I/LEADS system to the Town Pump on East Main Street. She “screamed it’s the East Main Town Pump, turned around and high-fived the chaplain”and notified officers of the probable location of the crime.

¶7 Officers responded to the East Main Town Pump and saw that the business was dark and appeared to be closed. Sgt. Megargel directed responding officers to begin establishing a perimeter around the building. An officer approached the building and determined that one of the doors was unlocked and then retreated, while other Bozeman Police and Gallatin County Sheriffs Department officers arrived. Officers approached the building again, saw a man inside wearing a hooded sweatshirt, and then withdrew to the perimeter. Officers saw shadowy figures of two people inside the store.

¶8 In the meanwhile, Menjivar had picked up Gonzales’ cell phone from the counter and closed it, cutting off the connection with the dispatchers. Their calls back to Gonzales’ cell phone were not answered. Dispatchers called the land line for the Town Pump store, and when the phone rang Menjivar picked it up, inadvertently pressed a “talk” command and placed the phone in his pocket. This left the line open. Dispatchers discerned a male and a female voice, but had difficulty hearing what was happening because the phone was in Menjivar’s pocket.

¶9 At 10:12, Menjivar forced Gonzales into a restroom and during the next four minutes, raped her. Neither the dispatchers nor the officers at the scene knew that'this was happening. The dispatchers testified that they would have immediately notified the officers if there had been any indication that Gonzales was being raped.

¶10 Sgt. Megargel believed that there could be a barricaded suspect with a hostage in the Town Pump. He requested a K-9 dog team and special response team. Menjivar and Gonzales left the bathroom and Gonzales continued to obtain money from the safe. The officers had not [148]*148yet announced their presence at the scene. During the event Menjivar repeatedly threatened Gonzales with death and continued to hold a knife on her.

¶11 During these events the responding officers knew there were two people in the Town Pump but never knew whether there were more than two. From time to time they could see “shadows moving” in the dark building. Dispatch informed officers that there was a transient camp near the store and that persons from the camp could be inside the store. Officers investigated another report of a person moving on foot through the area who turned out to be a jogger. Officers did not know how many perpetrators or victims were involved or how any perpetrators were armed.

¶12 Menjivar left the store at 10:28 and was immediately arrested outside. Officers then shouted commands demanding that anyone else in the store come out. The deputy with the K-9 dog gave commands for anyone inside to come out or he would release the dog. Gonzales then came out of the store barefoot and wearing a Town Pump apron. She testified that officers directed her to show her hands and to lie on the ground and that she complied. Officer Kaycee Anderson, one of the defendants, handcuffed Gonzales and performed a pat-down search during which Gonzales said that she had been raped. Anderson immediately got Gonzales to her feet and walked her to a safe location at a police car and removed the handcuffs. Anderson asked Gonzales if she needed an ambulance, and Gonzales said that she did not because she was not hurt. Anderson drove Gonzales to the hospital for treatment. Gonzales confirmed Anderson’s description of these events and testified that she was on the ground in handcuffs for about 30 seconds. Neither Menjivar nor Gonzales knew that law enforcement officers were on the scene prior to leaving the store.

¶13 While Anderson was dealing with Gonzales officers were moving in to secure the building, giving commands for anyone else to come out of the store. They secured the building without finding anyone else inside. Officers did not know that Gonzales had been raped until she came out and told Anderson.

¶14 Officers did not know that Gonzales was the female voice that had been heard by dispatchers in the store until she came out and was identified by Anderson based upon a prior contact. Anderson knew from the prior contact that Gonzales was pregnant, but there was no evidence that any of the other officers knew this or that they could determine the pregnancy from Gonzales’ appearance.

¶15 While Officer Anderson suspected when Gonzales came out that [149]*149she was the clerk in the store, officers could not immediately confirm this and the building was not yet secured. Sgt. Megargel explained why the officers at the scene could not assume that Gonzales was the victim in sole reliance on the information from dispatch that they had heard two voices:

Based on my training and experience in my almost 13 years of law enforcement, I could see why-we can’t make assumptions. I mean, that what they told us that there was. But until I see what there is and until I know what there is, you know, I could assume in the back of my mind that the information is accurate and correct, but I would be doing myself an injustice to assume that there was only two people, and one male and one female. That would put me at risk, that would put my shift at risk, that would put the citizens at risk, it would put the victim at risk and it will put the suspect at risk. We didn’t assume anything.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lyons v. Newton
D. Montana, 2022
Renenger v. State
2018 MT 228 (Montana Supreme Court, 2018)
Bassett v. Lamantia
2018 MT 119 (Montana Supreme Court, 2018)
Robert Bassett v. Paul Lamantia
858 F.3d 1201 (Ninth Circuit, 2017)
Kent v. City of Columbia Falls
2015 MT 139 (Montana Supreme Court, 2015)
Gatlin-Johnson Ex Rel. Gatlin-Johnson v. City of Miles City
2012 MT 302 (Montana Supreme Court, 2012)
Donaldson v. State
2012 MT 288 (Montana Supreme Court, 2012)
Donaldson v. State of Montana
2012 MT 288 (Montana Supreme Court, 2012)
Kichnet v. Butte-Silver Bow County
2012 MT 68 (Montana Supreme Court, 2012)
Brad v. City of Missoula
2009 MT 417 (Montana Supreme Court, 2009)
Peschel v. City of Missoula
664 F. Supp. 2d 1149 (D. Montana, 2009)
Gonzales v. City of Bozeman
2009 MT 277 (Montana Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2009 MT 277, 217 P.3d 487, 352 Mont. 145, 2009 Mont. LEXIS 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-city-of-bozeman-mont-2009.