Long v. Smith
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Opinion
Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 1 of 39
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION
GRANT LONG PLAINTIFF
v. Case No. 2:19-cv-00061-LPR
DARREN D. SMITH, SR., individually and in his official capacity as a Forrest City Police Officer; & THE CITY OF FORREST CITY, ARKANSAS DEFENDANTS
ORDER
This case is principally about alleged retaliation for protected speech. Grant Long says
that Officer Darren D. Smith (a former police officer for Forrest City, Arkansas) filed an Affidavit
of Arrest that contained numerous false statements about Mr. Long. Mr. Long says Officer Smith
did this because Mr. Long sued and publicly criticized him. Mr. Long says that the false statements
in the Affidavit of Arrest eventually led to the improper prosecution of Mr. Long.
Mr. Long sues Officer Smith and Forrest City, Arkansas, under 42 U.S.C. § 1983, alleging
First Amendment retaliation and Fourth Amendment violations. 1 Mr. Long also sues Defendants
under Arkansas state law, alleging a violation of the Arkansas Constitution, malicious prosecution,
and abuse of process. 2
1 Compl. (Doc. 1) ¶ 1. This case originally had an additional Plaintiff, Arsenio Clinton. On March 12, 2020, Mr. Clinton moved to nonsuit his case. Mot. for Nonsuit (Doc. 14). The Court granted the Motion. Order (Doc. 17). Mr. Long is now the only Plaintiff in this case. 2 Compl. (Doc. 1) ¶ 1. The Complaint includes vague and general language that, read uncritically, could suggest Mr. Long is trying to make out claims for assault and battery as well. However, such language appears to be nothing more than an artifact of the now-dismissed claims that were being litigated by Arsenio Clinton. See supra note 1. Mr. Long’s counsel concedes that Mr. Long does not have a viable claim for assault or for battery. Dec. 3, 2021 Hr’g Tr. at 68. That’s a wise concession. Under Arkansas law, assault is “an intentional attempt by a person, by force or violence, to do an injury to the person of another, or . . . any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it an immediate intention, coupled with a present ability, to commit a battery.” Costner v. Adams, 82 Ark. App. 148, 156, 121 S.W.3d 164, 170 (2003). And battery is “a wrongful or offensive physical contact with another through the intentional contact by the tortfeasor and without the consent of the victim, [or] the unpermitted application of trauma by one person upon the body of another person.” Id., 121 S.W.3d at 170. The Complaint (and the record) is simply devoid of any indication that any Defendant threatened violence upon Mr. Long, let alone wrongfully or offensively made (or attempted to Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 2 of 39
Defendants seek summary judgment. 3 They primarily argue that (1) probable cause existed
to charge Mr. Long with a crime, and (2) the existence of probable cause is fatal to almost all of
Mr. Long’s claims. 4 For the reasons that follow, the Court GRANTS in part and DENIES in part
Defendants’ Motion for Summary Judgment.
Background 5
Plaintiff Grant Long has lived in Forrest City, Arkansas, for over a decade. 6 Defendant
Officer Smith worked for the Forrest City Police Department from 2014 until April 2019. 7 Mr.
Long and his family have had more than one run-in with Officer Smith during their mutual time
in Forrest City.
On May 15, 2016, Derrick Long (Grant Long’s nephew) filed a personnel complaint
against Officer Smith. 8 Derrick Long accused Officer Smith of unlawfully entering Derrick
Long’s house, taking his dog, and stealing $900. 9 In response to this personnel complaint, the
Forrest City Police Department conducted an Internal Affairs investigation. 10 During the
investigation, Officer Smith told investigators that his bodycam would show that he never ventured
make) physical contact with him. 3 Defs.’ Mot. for Summ. J. (Doc. 52). 4 See Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 3–8. 5 On summary judgment, the Court recites the genuinely disputed facts in a light most favorable to the Plaintiff, including giving the Plaintiff all reasonable inferences from the facts. Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016). Of course, the Court also relies on undisputed facts. Essentially, the Court considers the most pro-plaintiff version of the facts that a rational juror could find on this record. Accordingly, the Court’s factual recitation is only good for the summary judgment motion. 6 Long Dep. (Doc. 79) at 8:9–12. 7 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 2. 8 Ex. 3 to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Under Seal) at 2; Long Dep. (Doc. 79) at 62:14–16. 9 Ex. 3 to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Under Seal) at 2. 10 See id. at 15 (letter informing Officer Smith that he was the subject of an Internal Affairs investigation).
2 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 3 of 39
beyond the doorway of Derrick Long’s home. 11 Officer Smith also said that he never took the
dog. 12
On June 3, 2016, the Internal Affairs investigator informed Officer Smith that a complete
review of the investigation resulted in a “finding of true.” 13 That is, Derrick Long’s complaint
about Officer Smith’s conduct was confirmed as being accurate. 14 A June 6, 2016 letter from
Forrest City Police Department Lieutenant E.P. Reynolds to Forrest City Police Chief Deon Lee
recounts the findings of the investigation. 15
FORREST CITY POLICE DEPARTMENT
...
To: D. Lee, Chief of Police From: E.P. Reynolds, Lieutenant Re: IA Investigation (Officer D. Smith) Date: 06/06/2016
Dear Sir,
On May 23, 2016, you ordered an Internal Affairs (IA) investigation into a citizen’s allegations against Officer Darren Smith. These allegations were against Officer Smith for reportedly entering into the citizen’s home unlawfully and furthermore, unlawfully seizing and removing the citizen’s dog. The citizen also complained that Officer Smith had stolen money from his home as well as damaging a dog cage/kennel in the process. A thorough investigation found that there was NO probable cause (P/C) to enter the citizen’s home nor was there (P/C) to seize and remove the dog from the owner’s home. The IA investigation found Officer Smith to be in direct violation of the 4th Amendment of the US Constitution (which prohibits unlawful search & seizure). Consequently, Officer Smith was also found to be in violation of Forrest City Police Department Policy DR-105 Adherence to Law, which clearly states a member of FCPD must act in accord with the US Constitution as well as obey applicable local and state laws.
11 Id. at 8. 12 Id. 13 Id. at 22. 14 Id. 15 Id. at 1.
3 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 4 of 39
Clearly, these violations mark yet another recent example of poor judgment on the part of Officer Smith with regard to his conduct and job performance. There would appear to be a pattern of behavior from Officer Smith that would place our department in jeopardy of increased liability issues.
Officer Smith is currently serving a ninety-day period of demotion from his Sergeant position. This demotion is the resulting discipline from another previous IA investigation against Smith.
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Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 1 of 39
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION
GRANT LONG PLAINTIFF
v. Case No. 2:19-cv-00061-LPR
DARREN D. SMITH, SR., individually and in his official capacity as a Forrest City Police Officer; & THE CITY OF FORREST CITY, ARKANSAS DEFENDANTS
ORDER
This case is principally about alleged retaliation for protected speech. Grant Long says
that Officer Darren D. Smith (a former police officer for Forrest City, Arkansas) filed an Affidavit
of Arrest that contained numerous false statements about Mr. Long. Mr. Long says Officer Smith
did this because Mr. Long sued and publicly criticized him. Mr. Long says that the false statements
in the Affidavit of Arrest eventually led to the improper prosecution of Mr. Long.
Mr. Long sues Officer Smith and Forrest City, Arkansas, under 42 U.S.C. § 1983, alleging
First Amendment retaliation and Fourth Amendment violations. 1 Mr. Long also sues Defendants
under Arkansas state law, alleging a violation of the Arkansas Constitution, malicious prosecution,
and abuse of process. 2
1 Compl. (Doc. 1) ¶ 1. This case originally had an additional Plaintiff, Arsenio Clinton. On March 12, 2020, Mr. Clinton moved to nonsuit his case. Mot. for Nonsuit (Doc. 14). The Court granted the Motion. Order (Doc. 17). Mr. Long is now the only Plaintiff in this case. 2 Compl. (Doc. 1) ¶ 1. The Complaint includes vague and general language that, read uncritically, could suggest Mr. Long is trying to make out claims for assault and battery as well. However, such language appears to be nothing more than an artifact of the now-dismissed claims that were being litigated by Arsenio Clinton. See supra note 1. Mr. Long’s counsel concedes that Mr. Long does not have a viable claim for assault or for battery. Dec. 3, 2021 Hr’g Tr. at 68. That’s a wise concession. Under Arkansas law, assault is “an intentional attempt by a person, by force or violence, to do an injury to the person of another, or . . . any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it an immediate intention, coupled with a present ability, to commit a battery.” Costner v. Adams, 82 Ark. App. 148, 156, 121 S.W.3d 164, 170 (2003). And battery is “a wrongful or offensive physical contact with another through the intentional contact by the tortfeasor and without the consent of the victim, [or] the unpermitted application of trauma by one person upon the body of another person.” Id., 121 S.W.3d at 170. The Complaint (and the record) is simply devoid of any indication that any Defendant threatened violence upon Mr. Long, let alone wrongfully or offensively made (or attempted to Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 2 of 39
Defendants seek summary judgment. 3 They primarily argue that (1) probable cause existed
to charge Mr. Long with a crime, and (2) the existence of probable cause is fatal to almost all of
Mr. Long’s claims. 4 For the reasons that follow, the Court GRANTS in part and DENIES in part
Defendants’ Motion for Summary Judgment.
Background 5
Plaintiff Grant Long has lived in Forrest City, Arkansas, for over a decade. 6 Defendant
Officer Smith worked for the Forrest City Police Department from 2014 until April 2019. 7 Mr.
Long and his family have had more than one run-in with Officer Smith during their mutual time
in Forrest City.
On May 15, 2016, Derrick Long (Grant Long’s nephew) filed a personnel complaint
against Officer Smith. 8 Derrick Long accused Officer Smith of unlawfully entering Derrick
Long’s house, taking his dog, and stealing $900. 9 In response to this personnel complaint, the
Forrest City Police Department conducted an Internal Affairs investigation. 10 During the
investigation, Officer Smith told investigators that his bodycam would show that he never ventured
make) physical contact with him. 3 Defs.’ Mot. for Summ. J. (Doc. 52). 4 See Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 3–8. 5 On summary judgment, the Court recites the genuinely disputed facts in a light most favorable to the Plaintiff, including giving the Plaintiff all reasonable inferences from the facts. Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016). Of course, the Court also relies on undisputed facts. Essentially, the Court considers the most pro-plaintiff version of the facts that a rational juror could find on this record. Accordingly, the Court’s factual recitation is only good for the summary judgment motion. 6 Long Dep. (Doc. 79) at 8:9–12. 7 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 2. 8 Ex. 3 to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Under Seal) at 2; Long Dep. (Doc. 79) at 62:14–16. 9 Ex. 3 to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Under Seal) at 2. 10 See id. at 15 (letter informing Officer Smith that he was the subject of an Internal Affairs investigation).
2 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 3 of 39
beyond the doorway of Derrick Long’s home. 11 Officer Smith also said that he never took the
dog. 12
On June 3, 2016, the Internal Affairs investigator informed Officer Smith that a complete
review of the investigation resulted in a “finding of true.” 13 That is, Derrick Long’s complaint
about Officer Smith’s conduct was confirmed as being accurate. 14 A June 6, 2016 letter from
Forrest City Police Department Lieutenant E.P. Reynolds to Forrest City Police Chief Deon Lee
recounts the findings of the investigation. 15
FORREST CITY POLICE DEPARTMENT
...
To: D. Lee, Chief of Police From: E.P. Reynolds, Lieutenant Re: IA Investigation (Officer D. Smith) Date: 06/06/2016
Dear Sir,
On May 23, 2016, you ordered an Internal Affairs (IA) investigation into a citizen’s allegations against Officer Darren Smith. These allegations were against Officer Smith for reportedly entering into the citizen’s home unlawfully and furthermore, unlawfully seizing and removing the citizen’s dog. The citizen also complained that Officer Smith had stolen money from his home as well as damaging a dog cage/kennel in the process. A thorough investigation found that there was NO probable cause (P/C) to enter the citizen’s home nor was there (P/C) to seize and remove the dog from the owner’s home. The IA investigation found Officer Smith to be in direct violation of the 4th Amendment of the US Constitution (which prohibits unlawful search & seizure). Consequently, Officer Smith was also found to be in violation of Forrest City Police Department Policy DR-105 Adherence to Law, which clearly states a member of FCPD must act in accord with the US Constitution as well as obey applicable local and state laws.
11 Id. at 8. 12 Id. 13 Id. at 22. 14 Id. 15 Id. at 1.
3 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 4 of 39
Clearly, these violations mark yet another recent example of poor judgment on the part of Officer Smith with regard to his conduct and job performance. There would appear to be a pattern of behavior from Officer Smith that would place our department in jeopardy of increased liability issues.
Officer Smith is currently serving a ninety-day period of demotion from his Sergeant position. This demotion is the resulting discipline from another previous IA investigation against Smith.
The results of this most recent IA investigation (coupled with previous IA investigations) substantiate not only clear violations of department protocol by Officer Smith; but demonstrate an obvious pattern of questionable behavior and conduct on the part of Officer Smith.
It is my assessment that the aforementioned facts give the administration no other viable alternative but to consider Officer Smith’s termination as the most appropriate course of action. 16
Officer Smith was not terminated.
After this incident, Grant Long (our Plaintiff) sent a Freedom of Information Act request
to the Forrest City Police Department. 17 Mr. Long sought “copies of the file on [the] arrest of
Derrick Long,” including “any complaints that [were] filed on Smith for going into Derrick Long’s
home and taking his dog . . . .” 18 On February 1, 2017, Chief Lee or his secretary, Chastity Boyd,
gave Mr. Long multiple documents in response to this request, including “the whole [Internal
Affairs] investigation,” and a CD that was made during the investigation. 19 Mr. Long received Lt.
Reynolds’s letter (the “Internal Affairs Investigation Letter”) as well. 20
On January 8, 2018, Mr. Long filed a pro se federal lawsuit against Forrest City, Officer
Smith, and numerous other city officials. 21 Mr. Long’s complaint made multiple allegations
16 Id. Mr. Long filed this exhibit under seal. But this exhibit has been filed publicly in a previous lawsuit. The exhibit is thus already in the public record and should not be under seal. 17 Long Dep. (Doc. 79) at 21:13–22. 18 Id. at 21:18–22:1. 19 Id. at 23:7–21, 24:11–22, 59:10–21; Chief Lee Dep. (Doc. 80) at 26:9–25. 20 Long Dep. (Doc. 79) at 60:12–19. 21 Long v. City of Forrest City et al., Case No. 2:18-cv-00005-JLH (Doc. 2) (Long I). At the summary judgment
4 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 5 of 39
against Officer Smith. 22 Specifically, Mr. Long alleged that Officer Smith (1) was corrupt and
abused his position, (2) lied under oath during an internal affairs investigation, (3) refused to serve
an arrest warrant issued for his own daughter despite the fact that he saw her on a daily basis, (4)
“profiles and targets different individuals for different reasons,” (5) said that, “if Grant Long keep
messing with me, I am going to put his ass in jail,” (6) brandished his weapon, while off duty, in
a crowded store for no reason, and (7) harassed Mr. Long regarding where Mr. Long could park
his truck and trailer. 23 Mr. Long also specifically referenced the conclusions in the Internal Affairs
Investigation Letter. 24
Mr. Long attached to his 2018 complaint three documents allegedly related to Officer
Smith.25 One document was the Internal Affairs Investigation Letter. 26 The second document was
an Affidavit of Arrest (filed by an Officer Vanessa Brayboy) targeted at a person that Mr. Long
alleged was Officer Smith’s daughter. 27 The affidavit stated that Officer Smith’s daughter made
a threatening Facebook post regarding Officer Brayboy and her husband. 28 Officer Brayboy swore
that probable cause existed to arrest Officer Smith’s daughter for terroristic threatening based on
hearing in the instant case, no party objected to this Court taking judicial notice of the filings in Long I under Rule 201 of the Federal Rules of Evidence. Dec. 3, 2021 Hr’g Tr. at 43, 54–55, 87. The Court takes judicial notice of the filings in that case. 22 Long I (Doc. 2) at 3–4, 7–11. 23 Id. at 4–11. 24 Id. at 4. 25 Id. at 30–31. 26 Id. at 30. 27 Id. at 32; see also id. at 9 (Mr. Long alleging that the person named on the Affidavit of Arrest is Officer Smith’s daughter). 28 Id.
5 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 6 of 39
the post. 29 The third document appears to be an arrest warrant that commanded the arrest of Officer
Smith’s daughter for terroristic threatening. 30
On March 7, 2018, Magistrate Judge Joe J. Volpe recommended that Mr. Long’s complaint
be dismissed without prejudice. 31 Judge Volpe noted that, in a previous Order, he had offered Mr.
Long the opportunity to file an amended complaint to clear up the fact that Mr. Long’s claims
“were little more than a list of names and allegations that largely did not indicate any personal
connection, much less harm, to him.” 32 Because Mr. Long did not file an amended complaint,
Judge Volpe recommended that Mr. Long’s complaint be dismissed.33 On March 29, 2021,
District Judge J. Leon Holmes approved and adopted Judge Volpe’s recommendation in its entirety
and dismissed Mr. Long’s case without prejudice. 34
The 2018 lawsuit was not the only source of strife between Mr. Long and Officer Smith.
At some point, Mr. Long obtained (from Officer Brayboy) a video involving Officer Smith. 35 The
video shows footage of a traffic stop conducted by Officers Smith and Brayboy. 36 The video picks
up when Officer Smith is administering a portable breathalyzer test to a driver suspected of DWI.37
Officer Smith has the driver provide multiple breath samples because the driver kept failing to
29 Id. 30 Id. at 31. 31 Long I (Doc. 5). 32 Id. at 2. 33 Id. at 3. 34 Long I (Doc. 6); see also Long I (Doc. 7) (Judgment). In addition to proceeding pro se, Mr. Long also proceeded in forma pauperis. Long I (Doc. 1). When a pro se plaintiff proceeds in forma pauperis, a district court is allowed to conduct a pre-service screening of a complaint to see if it is legally sufficient. See Key v. Does, 217 F. Supp. 3d 1006, 1007 (E.D. Ark. 2016) (recognizing that district courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen and dismiss complaints filed by plaintiffs––prisoners and non-prisoners––proceeding in forma pauperis). That is what Judge Holmes did in Long I. Thus, Mr. Long’s complaint was dismissed before any defendants were served with process. 35 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 6. 36 Id. ¶ 7; Ex. 6 to Defs.’ Statement of Facts (Doc. 54-6). 37 Ex. 6 to Defs.’ Statement of Facts (Doc. 54-6) at 00:01–06.
6 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 7 of 39
provide a measurable sample. 38 Officer Smith eventually gets a reading on the breathalyzer
device. 39 If the video is stopped at just the right moment, the breathalyzer device shows that the
driver’s blood-alcohol content was 0.046. 40 Under Arkansas law, a blood-alcohol content under
0.04 gives rise to a presumption of no intoxication, and a blood-alcohol content above 0.08 is
dispositive proof of intoxication. 41 In the middle range, 0.04–0.08, while no presumption arises,
the blood-alcohol content “may be considered with other . . . evidence in determining” whether
the driver was intoxicated. 42 After Officer Smith sees the 0.046, he tells the driver to “quit beating
in that truck.” 43 Officer Smith then tells the driver that the driver was “drinking with a CDL.”44
Before ultimately letting the driver go, Officer Smith says, “you know I catch you dirty again what
time it is, don’t you.” 45
There’s more to the video than just the stop itself. The video is captured by a bodycam. 46
The timestamp information on the video indicates that the bodycam was assigned to Officer
Brayboy. 47 But it is clear that Officer Smith was in fact the person wearing Officer Brayboy’s
38 Id. at 00:03–01:00. 39 Id. at 01:01–01:13. 40 Id. at 01:11. Mr. Long appears to deny that the number can be seen on the video. Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 13. But Mr. Long concedes that he admitted in his deposition that the readout could be seen on the video. Id. ¶ 16. In his deposition, Mr. Long said that the “breathalyzer machine was counting down. That’s how you seen the 42.” Long Dep. (Doc. 79) at 30:15–25. It appears Mr. Long is suggesting that the 42 (or 46) is not a blood-alcohol content reading. The video is the best evidence and it clearly shows the readout. This is not a genuine dispute of fact. A rational juror could only conclude that the readout shows a 0.46 blood-alcohol content. 41 See Ark. Code Ann. § 5-65-206 (a)(1) (stating that “[i]t is presumed at the trial of” a person charged with DWI “that the person was not intoxicated” if the person’s blood-alcohol content is .04 or less); id. § 5-65-103(a)(2) (stating that it is unlawful for a person to operate a motor vehicle if that person’s blood-alcohol content is .08 or greater). 42 Id. § 5-65-206(a)(2). 43 Ex. 6 to Defs.’ Statement of Facts (Doc. 54-6) at 01:16. 44 Id. at 01:16–01:23. 45 Id. at 01:36–01:43. 46 Id. 47 Id. The timestamp on the video reads “VBRAY_BOY421.”
7 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 8 of 39
bodycam for a majority of the traffic stop. 48 On the video, after the traffic stop ends, Officer Smith
removes Officer Brayboy’s bodycam from his own shirt and hands it back to Officer Brayboy.49
Seconds later, Officer Smith removes a bodycam from Officer Brayboy’s shirt.50 Officer Smith
can then be seen manipulating the bodycam previously worn by Officer Brayboy. 51 Moments
later, Officer Brayboy attaches her assigned bodycam (the one Officer Smith had been wearing)
to her front-shirt pocket. 52
On March 23, 2018, Mr. Long posted the video on Facebook. 53 Above the link to the
video, Mr. Long wrote, “Look at the work we pay for just touch the link to play it.” 54 Below the
link, Mr. Long wrote, “SMITH LETS A DIRTY DWI DRIVER GO.” 55 Subsequent to posting the
video, Mr. Long also posted a comment in the comments section. 56 That comment read, “But Eric
said it clear[ly] show the point level but he couldn’t say why the officer deleted the video in the
street but this is an officer who say he is missing a whole mo[n]th of video.” 57
48 Id. at 00:00–01:45. 49 Id. at 01:45. 50 Id. at 01:47. 51 Id. at 01:52–01:56. 52 Id. at 01:57. The record contains no footage of this stop captured by Officer Smith’s bodycam. 53 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 7; Ex. 5 to Defs.’ Statement of Facts (Doc. 54-5). 54 Ex. 5 to Defs.’ Statement of Facts (Doc. 54-5). 55 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 7; Ex. 5 to Defs.’ Statement of Facts (Doc. 54-5). 56 Ex. 5 to Defs.’ Statement of Facts (Doc. 54-5). 57 Id.
8 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 9 of 39
Mr. Long was not done criticizing Officer Smith. On March 26, 2018, just three days later, Mr.
Long posted a copy of the Internal Affairs Investigation Letter on Facebook. 59 Both the video post
and the Internal Affairs Investigation Letter post appear to have been made to a Facebook group,
Let’s Talk Forrest City. 60 Officer Smith was a member of that Facebook group. 61 There’s no
record evidence that Mr. Long knew Officer Smith was a member of this Facebook group.
58 Id. 59 Smith Dep. (Doc. 78) at 16:25–18:3, 23:8–9 (Officer Smith discussing the Internal Affairs Investigation Letter). 60 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2; Smith Dep. (Doc. 78) at 16:25–18:3. 61 Smith Dep. (Doc. 78) at 18:1–3.
9 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 10 of 39
The very next day, Officer Smith drafted and filed an Affidavit of Arrest. 62 Because of its
central importance to the claims brought by Mr. Long, the Court reproduces Officer Smith’s
Affidavit of Arrest in relevant part.
Monday, March 26, 2018, at approximately 11:11 PM, Grant Long posted a document related to a personnel matter at the Forrest City Police Department referencing the opinion of a former disgruntled employee regarding Darren Smith. The opinion was weighed, refuted, and no action was taken in reference to the recommendation by said former disgruntled employee. Mr. Grant Long sought the document by a Freedom of Information Act request; however[,] said request was denied due to the record being classified as a personnel record as defined in the statute. Said document did not formulate the basis for a suspension or demotion and therefore could not be released because it was determined to be an unwarranted invasion of the privacy of Darren Smith.
Subsequently[,] Grant Long conspired with others to steal the document. On January 8, 2018, Grant Long filed a complaint in the federal court system, case #2:2018cv00005. This complaint has not been properly served on the listed defendants, and in some cases the defendant is deceased. Improperly attached to the complaint was the aforementioned document, thus proving Grant Long is in possession of the stolen property.
Arkansas State Statu[t]e 5-36-106 defines Theft by receiving as a person knowing that the property was stolen; or having good reason to believe that the property was stolen. There are also multiple factors that give rise to a presumption that a person knows or believes that the property was stolen; in this case specifically the unexplained possession or control by the person of recently stolen property.
Grant Long has continually made false statements about Darren Smith on a public for[u]m Facebook; Let’s Talk Forrest City. He has accused me falsely of letting a drunk driver continue to operate a motor vehicle after having conducted tests that show the driver was intoxicated. On the same forum[,] he also public[ly] accused me of destroying evidence related to such. Mr. Long knew when he posted such that he was posting falsehoods and that the information he was providing was not true.
Arkansas State Statu[t]e 5-71-209 defines Harassing communications as communicating with a person, anonymously or otherwise, by telephone, telegraph, mail, email, message delivered to an electronic device (Computer, Cell Phone, ETC,) or any other form of written or electronic communication in a manner likely to harass, annoy, or cause alarm. Mr. Long had full knowledge that I was a Forrest City Police Office[r] at the time of the posts and posted the items and a false claim
62 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2–3.
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in an effort to annoy, cause alarm, embarrass and in a manner that was indicative of his malice towards me.
Arkansas State Statu[t]e 5-71-208 defines Harassment as engaging in conduct or repeatedly committing an act that alarms or seriously annoys another person and that serves no legitimate purpose. Mr. Long had full knowledge that I was a Forrest City Police Office[r] at the time of the posts and engaged in conduct that annoyed me and continues to do so, and his actions serve no legitimate purpose and Grant Long did so in a manner that was indicative of his malice towards me.
I am also asking for a no contact order, instructing Grant Long to cease and desist his current course of actions. I am also asking that consideration be given to my contact with him in [the] course of my duties as a Forrest City Police Officer in case of calls for service or violation of the law in which Mr. Long may or may not commit. 63
On the same day (March 27, 2018), the St. Francis County District Court relied on the Affidavit
of Arrest to find probable cause to arrest Mr. Long. 64 The district court issued a Warrant of Arrest,
directing law enforcement to arrest Mr. Long for the following offenses: harassing
communications, harassment, and theft by receiving. 65
The record does not show that any action was taken based on the Warrant of Arrest between
March 27, 2018, and August 26, 2018. Then, by happenstance, there was an interaction between
Mr. Long and the police. On August 27, 2018, Mr. Long contacted the Forrest City Police
Department to report “that his truck had been broken into and vandalized . . . .” 66 Officer Deborah
Dowdy responded to the scene. 67 During Officer Dowdy’s visit with Mr. Long, Officer Dowdy
received a phone call indicating that Mr. Long had an outstanding warrant. 68 Officer Dowdy
63 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2–3. 64 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 22. 65 Id. ¶ 23; Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 1. 66 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 24. 67 Id. ¶ 25. 68 Long Dep. (Doc. 79) at 39:19–23. The record does not reveal who called Officer Dowdy.
11 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 12 of 39
informed Mr. Long of the Warrant of Arrest and the charges against him. 69 Officer Dowdy served
the Warrant of Arrest and gave Mr. Long a card indicating a court date related to the charges.70
Officer Dowdy did not handcuff or in any way detain Mr. Long. 71
On September 28, 2018, Mr. Long appeared for his first court date. 72 Mr. Long’s criminal
trial was then scheduled for November 13, 2018. 73 The day before trial, Mr. Long got a lawyer. 74
Officer Smith testified at trial. 75 He cannot, however, recall what he said at trial. 76 Mr. Long was
acquitted on all three charges––harassing communications, harassment, and theft-by receiving. 77
Mr. Long paid his lawyer $500.00 for the representation. 78
Discussion
A court shall grant summary judgment when there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. 79 The moving party has the
burden to show that (1) there is an absence of a genuine dispute of material fact on at least one
essential element of the nonmoving party’s case, and (2) the absence means that a rational juror
could not possibly find for the nonmoving party on that essential element of the nonmoving party’s
69 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 26. 70 Id. (Doc. 66) ¶ 27; Long Dep. (Doc. 79) at 40:1–2; Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 1. 71 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 28; Long Dep. (Doc. 79) at 40:13–41:2. 72 Long Dep. (Doc. 79) at 43:10–44:10. 73 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 29. 74 Long Dep. (Doc. 79) at 41:15–42:1, 44:18. 75 Smith Dep. (Doc. 78) at 11:13–21. 76 Id. The trial (apparently) took place in the District Court of St. Francis County. The Court is unaware of whether such trials involve a court reporter. In any event, neither party has provided the Court with a transcript of Mr. Long’s trial. And the Court has been unable to obtain a transcript. 77 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 66) ¶ 30. 78 Long Dep. (Doc. 79) at 41:25–42:1. 79 Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citing FED. R. CIV. P. 56(c)(2)).
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case. 80 Conversely, if the nonmoving party can present specific facts by “affidavit, deposition, or
otherwise, showing the existence of a genuine issue for trial,” then summary judgment is not
appropriate. 81
Importantly, “[t]he mere existence of a factual dispute is insufficient alone to bar summary
judgment . . . .”82 The dispute of fact must be both genuine and material to prevent summary
judgment. 83 A genuine dispute of fact exists where a rational juror could decide the particular
question of fact for the nonmoving party. 84 A material dispute of fact exists where the juror’s
decision on the particular question of fact determines the outcome of a potentially dispositive issue
under the substantive law. 85
I. Claims that Survive Summary Judgment
Three of Mr. Long’s claims survive summary judgment. The first surviving claim is a §
1983 retaliatory-inducement-to-prosecute claim. In short, Mr. Long alleges that Officer Smith
intentionally lied on the Affidavit of Arrest (which led to Mr. Long’s prosecution) because Mr.
Long had sued and publicly criticized Officer Smith. According to Mr. Long, this violates the
First Amendment of the United States Constitution. The second surviving claim—basically
predicated on the same allegations—is a state law claim for malicious prosecution. The Court
discusses each of these two claims in turn. The last surviving claim, which alleges a violation of
“the right to remonstrate” under the Arkansas Constitution, needs no discussion because
80 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 81 Grey v. City of Oak Grove, 396 F.3d 1031, 1034 (8th Cir. 2005). 82 Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). 83 Id. 84 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 85 Id.
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Defendants did not address it in their summary judgment briefing. 86
A. Mr. Long’s First Amendment Retaliation Claim Under Section 1983
“[T]he First Amendment prohibits government officials from subjecting an individual to
retaliatory actions, including criminal prosecutions, for speaking out.” 87 Both the United States
Supreme Court and the Eighth Circuit have recognized claims for “retaliatory inducement to
prosecute.” 88 A retaliatory inducement to prosecute occurs when a government official, such as
Officer Smith, “influence[s] the prosecutorial decision . . . in retaliation” for protected speech, and
thereby “induce[s] the prosecutor to bring charges that would not have been initiated without [the
government official’s] urging.” 89 This is the type of claim Mr. Long alleges here. According to
Mr. Long, Officer Smith filed the Affidavit of Arrest (with numerous intentionally false
statements) in retaliation for Mr. Long’s protected speech: specifically, the 2018 lawsuit against
Officer Smith and the Facebook posts criticizing Officer Smith. 90
Generally, First Amendment retaliation claims require a plaintiff to establish, by a
preponderance of the evidence, that: (1) the plaintiff engaged in protected activity, (2) the
defendant’s actions “caused an injury to the plaintiff[] that would chill a person of ordinary
firmness from continuing to engage in the activity,” and (3) “a causal connection exists between
86 Compl. (Doc. 1) ¶ 1. Mr. Long’s Complaint alleges that Defendants violated Mr. Long’s “right to remonstrate under the Arkansas Constitution.” Id. Article two, section four of the Arkansas Constitution states that “the right of the people peaceably to assemble, consult for the common good; and to petition, by address or remonstrance, the government, or any department thereof, shall never be abridged.” Violations of rights under the Arkansas Constitution are actionable under the Arkansas Civil Rights Act––Arkansas’s state analog to § 1983. See Ark. Code Ann. § 16-123-105 (imposing liability on any person who, under color of law, deprives any person of the “rights, privileges, or immunities secured by the Arkansas Constitution . . .”). At the summary judgment hearing, Mr. Long, through his attorney, acknowledged that any of Mr. Long’s state constitutional claims rise or fall with his federal claims. Dec. 3, 2021 Hr’g Tr. at 67–68. 87 Hartman v. Moore, 547 U.S. 250, 256 (2006). 88 Small v. McCrystal, 708 F.3d 997, 1009 (8th Cir. 2013) abrogated on other grounds by Burns v. Reed, 500 U.S. 478 (1991); Hartman, 547 U.S. at 256. 89 Hartman, 547 U.S. at 251, 262. 90 Compl. (Doc. 1) ¶¶ 21, 23–24.
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the retaliatory animus and the injury.” 91 For purposes of summary judgment, Defendants do not
contest that Mr. Long has established the first two elements. Rather, Defendants focus their fire
on a single part of the causation element. Specifically, Defendants argue that Mr. Long cannot
show the absence of probable cause for his prosecution. 92 According to Defendants, this failure is
fatal to Mr. Long’s attempt to establish causation. 93
Although they don’t expressly acknowledge it, Defendants’ argument finds its provenance
in the Supreme Court’s 2006 Hartman v. Moore decision. 94 There, the Supreme Court concluded
that a plaintiff bringing a retaliatory-inducement-to-prosecute case must prove, “as an element of
[his or her] case,” the absence of probable cause for the prosecution. 95 The Court explained that
this additional requirement reflected the unique characteristics of a retaliatory-inducement-to-
prosecute claim.
Herein lies the distinct problem of causation in cases like this one. Evidence of an inspector’s animus does not necessarily show that the inspector induced the action of a prosecutor who would not have pressed charges otherwise. Moreover, to the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutor’s mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking. And this presumption that a prosecutor has legitimate grounds for the action he takes is one we do not lightly discard, given our position that judicial intrusion into executive discretion of such high order should be minimal . . . .
Some sort of allegation, then, is needed both to bridge the gap between the non- prosecuting government agent’s motive and the prosecutor’s action, and to address the presumption of prosecutorial regularity. And at the trial stage, some evidence must link the allegedly retaliatory official to a prosecutor whose action has injured
91 McCrystal, 708 F.3d at 1008. “Retaliation need not have been the sole motive, but it must have been a ‘substantial factor’ in those decisions.” Id. (quoting Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir.2007)). 92 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 3–8. 93 Id. 94 547 U.S. at 261–66. 95 Id. at 265–66.
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the plaintiff. The connection, to be alleged and shown, is the absence of probable cause. 96
In short, for retaliatory-inducement-to-prosecute claims, establishing the absence of probable
cause is necessary (but not always sufficient) to proving the causation element of the general three-
part retaliatory action test set forth above. 97
Defendants’ Motion for Summary Judgment on the retaliatory-inducement-to-prosecute
claim is limited in nature, focusing on the existence or absence of probable cause. Because of the
limited nature of the Motion, the Court need not (and should not) address the first two prongs of
the general three-part retaliatory action test. Nor should the Court address any aspect of the
causation element other than what Defendants’ briefing has raised. Accordingly, Mr. Long’s
retaliatory-inducement-to-prosecute claim survives summary judgment if a rational juror could
read the record in a way that establishes the absence of probable cause for the prosecution of Mr.
Long.
“Probable cause . . . exists when there is a ‘substantial probability that a crime has been
committed and that a specific individual committed the crime.’” 98 Perhaps put slightly differently,
“[p]robable cause exists if the totality of facts based on reasonably trustworthy information would
justify a prudent person in believing the individual . . . had committed an offense.” 99 The Eighth
Circuit explains that “[t]he inquiry is a commonsense, practical one based on the totality-of-the-
circumstances.” 100 The inquiry is also an objective one that analyzes the facts known to the state
96 Id. at 263 (internal citations omitted). 97 Id. at 265–66. 98 Odom v. Kaizer, 864 F.3d 920, 923 (8th Cir. 2017) (quoting Bruner v. Baker, 506 F.3d 1021, 1026 (10th Cir. 2007)). 99 McCrystal, 708 F.3d at 1003. 100 Odom, 864 F.3d at 923 (quoting Block v. Dupic, 758 F.3d 1062, 1064 (8th Cir. 2014)).
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at the relevant time. 101 Finally, “where the [record] facts are in dispute or they are subject to
different inferences, the question of probable cause is for the jury; however, where the facts are
not disputed or are susceptible to only one reasonable inference, the question is one of law for the
court.” 102
1. No Probable Cause for the Theft-by-Receiving Charge
One of the three crimes for which Mr. Long was prosecuted (and ultimately acquitted) was
theft by receiving. Recall that, in his Affidavit of Arrest, Officer Smith swore that (1) Mr. Long
sought the Internal Affairs Investigation Letter through a FOIA request, (2) the FOIA request was
denied, (3) Mr. Long conspired with others to steal the letter, and (4) Mr. Long was thus in receipt
of stolen property. 103
A rational juror could easily conclude Officer Smith was intentionally lying. There is
evidence that, before Officer Smith filed the Affidavit of Arrest, Chief Lee told Officer Smith that
either Chief Lee or Chief Lee’s secretary “could have accidentally” given the Internal Affairs
Investigation Letter to Mr. Long in response to the FOIA request. 104 So, a rational juror could
conclude that Mr. Long received the letter from the police as part of its FOIA response, that Officer
Smith knew this when he filed the Affidavit, and thus that Officer Smith’s allegations of conspiracy
and theft were false. Given all this, a rational juror could conclude that there was no probable
cause to prosecute Mr. Long for theft by receiving. 105
101 Smithson v. Aldrich, 235 F.3d 1058, 1064 (8th Cir. 2000). 102 Linn v. Garcia, 531 F.2d 855, 861 (8th Cir. 1976). 103 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2. 104 Chief Lee Depo (Doc. 80) at 26:9-25; see also Long Dep. (Doc. 79) at 23:7–21, 24:11–22, 59:10–21 (Mr. Long testifying about receiving a response to a FOIA request that included the Internal Affairs investigation file concerning the incident with Derrick Long). 105 Theft by receiving appears at Arkansas Code Annotated section 5-36-106, which provides in pertinent part: (a) A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person: (1) Knowing that the property was stolen; or (2) Having good
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Unsurprisingly, Defendants concede the existence of a genuine dispute of fact with respect
to probable cause for the theft-by-receiving charge. 106 That concession leaves Defendants to argue
a much harder proposition: That probable cause for this charge is immaterial because probable
cause existed for the prosecution of two other charges. 107 There are two flaws in Defendants’
argument. First, as explained below, the Court concludes that there are genuine and material
disputes of fact with respect to probable cause to prosecute the other two charges. Second, and
even more importantly, Defendants’ legal argument––that probable cause for one charge cures or
excuses the lack of probable cause for other charges––improperly conflates Fourth Amendment
doctrine and First Amendment doctrine.
Defendants rely on two Eighth Circuit cases, Foster v. Metropolitan Airports Commission
and Linn v. Garcia. Both cases explain that, because an “arrest and detention” of a person is “a
single incident,” if “a peace officer has probable cause to believe that a person is committing a
particular public offense, he is justified in arresting that person, and it is immaterial that the officer
may have thought, without probable cause, that the defendant was committing or had committed
other offenses as well.” 108 Defendants’ reliance on these Fourth Amendment cases is misplaced.
The cases (and others like them) are premised on the idea that “[a]n arrested individual is no more
seized when he is arrested on three grounds rather than one . . . .” 109 But that idea does not carry
over to the retaliatory prosecution context. Each charge prosecuted in the absence of probable
reason to believe the property was stolen. 106 Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 74) at 5; see also Dec. 3, 2021 Hr’g Tr. at 8 (Officer Smith’s counsel stating that “it’s safe to assume that [the theft-by-receiving facts] would be disputed” because they were not raised). 107 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 4. 108 Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1080 (8th Cir. 1990) (quoting Garcia, 531 F.2d at 862). 109 Holmes v. Village of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007); see also Foster, 914 F.2d at 1080; Garcia, 531 F.2d at 862.
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cause is an independent constitutional injury and imposes independent burdens and hardships.
This is true whether the charge is tried separately, or by happenstance is tried with charges
supported by probable cause. To hold otherwise would mean that a public official could use one
valid but minor charge to insulate numerous other unconstitutional and major charges designed to
silence a critic.
The Eighth Circuit has not confronted whether probable cause for one charge excuses a
retaliatory prosecution on other charges that lack probable cause. However, we are not without
persuasive guidance on this point. In a somewhat analogous context (malicious prosecution),
“several . . . circuits have concluded [that] probable cause to believe an individual committed one
crime––and even his conviction of that crime––does not foreclose a malicious prosecution claim
for additionally prosecuting the individual on a separate charge.” 110 As the Seventh Circuit has
explained, “[l]ogic supports the distinction” between false arrest and malicious prosecution.111
While a person can only be seized once regardless of the number of reasons for the arrest, “when
it comes to prosecution, the number of charges matters: the accused must investigate and prepare
a defense to each charge, and as the list of charges lengthens (along with the sentence to which the
accused is exposed), the cost and psychic toll of the prosecution on the accused increase.” 112 The
Seventh Circuit’s logic is sound.
For the foregoing reasons, Mr. Long’s claim that Officer Smith induced the theft-by-
receiving prosecution as retaliation for protected speech survives summary judgment. 113
110 Holmes, 511 F.3d at 682 (citing Johnson v. Knorr, 477 F.3d 75, 83–85 (3d Cir.2007); then citing Uboh v. Reno, 141 F.3d 1000, 1005 (11th Cir.1998); and then citing Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991)). 111 Id. 112 Id. 113 Unlike the portion of Mr. Long’s retaliatory-inducement-to-prosecute claims that address the harassing communications and harassment charges, Defendants have not sought to shield Officer Smith’s actions regarding the theft-by-receiving charge with the qualified-immunity doctrine. In their summary judgment papers, Defendants’ brief discussion of qualified immunity focuses solely on the harassing communications and
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2. No Probable Cause for the Harassing Communications and Harassment Charges
With respect to the harassing communications and harassment charges, Officer Smith
stated the following in the Affidavit of Arrest:
Monday, March 26, 2018, at approximately 11:11 PM, Grant Long posted a document related to a personnel matter at the Forrest City Police Department referencing the opinion of a former disgruntled employee regarding Darren Smith.
…
Grant Long has continually made false statements about Darren Smith on a public for[u]m Facebook; Let’s Talk Forrest City. He has accused me falsely of letting a drunk driver continue to operate a motor vehicle after having conducted tests that show the driver was intoxicated. On the same forum he also public[ly] accused me of destroying evidence related to such. Mr. Long knew when he posted such that he was posting falsehoods and that the information he was providing was not true. 114
Mr. Long says Officer Smith intentionally lied about much or all of this information. He says
Officer Smith did so in retaliation for Mr. Long’s public criticism. And he says this intentionally
false information led to his prosecution.
Defendants’ sole merits argument is that a neutral magistrate—a St. Francis County District
Court Judge—signed off on the Warrant of Arrest. 115 Defendants say this is an independent
determination of probable cause to arrest (and therefore to prosecute) that breaks the chain of
harassment charges. “Qualified immunity is an affirmative defense for which the defendant carries the burden of proof.” Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002). The Court declines to stitch together a qualified- immunity argument for Defendants that Defendants have not made and supported themselves. In any event, “‘if there is a genuine dispute concerning predicate facts material to the qualified immunity issue,’ a district court must deny summary judgment.” Watson v. Boyd, 2 F.4th 1106, 1109 (8th Cir. 2021). The Court has already explained that, on one possible version of the disputed facts in this record, a rational juror could conclude that (1) Officer Smith intentionally lied on the Affidavit of Arrest, and (2) the true facts known to Officer Smith showed an absence of probable cause (and even arguable probable cause) for the theft-by-receiving charge. As further explained below in the subsection addressing the harassing communications and harassment charges, this is enough to overcome qualified immunity at this stage. 114 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2. 115 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 4, 7.
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retaliatory causation. 116 According to Defendants, the only way for Mr. Long to overcome the
neutral magistrate’s decision to sign-off on the Warrant of Arrest is to make out a Franks
violation. 117 That is, Mr. Long must come forward with evidence from which a rational juror could
conclude that “the judicial finding of probable cause [was] based solely on information [Officer
Smith] knew to be false or would have known was false had he not recklessly disregarded the
truth.” 118
The biggest problem for Defendants is that there are genuine and material disputes of fact
that preclude summary judgment. The record is replete with genuinely disputed material facts
from which a rational juror could find that Officer Smith knowingly lied or recklessly disregarded
the truth in multiple portions of the Affidavit of Arrest—including the portions concerning
harassment and harassing communications.
First, consider Officer Smith’s statement that “Grant Long has continually made false
statements about [me] on a public for[u]m on Facebook: Let’s Talk Forrest City.”119 The record
reflects one post involving the Internal Affairs Investigation Letter, one post involving the traffic
stop video, and one comment to the post about the traffic stop. A rational juror could easily
116 Id. at 7. 117 Id. 118 McCrystal, 708 F.3d at 1006; see also Franks v. Delaware, 438 U.S. 154, 171–72 (1978) (holding that a warrant may be invalid if a magistrate’s probable cause determination was based on an affidavit that contained false statements made knowingly or with reckless disregard for the truth); Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 4 (“To establish a Franks violation, the plaintiff must prove ‘1) that a false statement knowingly and intentionally, or with reckless disregard to the truth, was included in the affidavit, and 2) that the affidavit’s remaining content is insufficient to provide probable cause.’”) (quoting United States v. Humphreys, 982 F.2d 254, 259 n.2 (8th Cir. 1992)). Franks-type arguments are not typically merits arguments. Rather, the Court almost exclusively sees such arguments pressed in support of qualified immunity. The Court has never seen the argument deployed to break the causal chain in the merits portion of a retaliatory-inducement-to-prosecute case. In any event, even indulging the theoretical framework of Defendants’ argument, Defendants are not entitled to summary judgment for the reasons explained below. 119 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2.
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conclude that Officer Smith’s use of the word “continually” to describe Mr. Long’s criticisms was
intentionally false.
Second, consider Officer Smith’s statement that Grant Long “accused me falsely of letting
a drunk driver continue to operate a motor vehicle after having conducted tests that show the driver
was intoxicated.” 120 That’s a remarkably specific statement. But a rational juror could find that
Mr. Long said nothing of the sort, and that Officer Smith knew it. The relevant Facebook post
doesn’t include such a statement. In the post, Mr. Long wrote, “[l]ook at the work we pay for just
touch the link to play it.” 121 Mr. Long then provided the bodycam video, which he entitled “Smith
Let’s a Dirty DWI Driver Go.” 122 In the video, Officer Smith himself refers to the driver as “dirty.”
None of this amounts to Mr. Long saying that Officer Smith “conducted tests that show the driver
was intoxicated.” 123
Third, consider Officer Smith’s statement that Mr. Long “public[ly] accused me of
destroying evidence” and that Mr. Long “knew when he posted such that he was posting falsehoods
120 Id. 121 Ex. 5 to Defs.’ Statement of Facts (Doc. 54-5). 122 Id. 123 For sure, Mr. Long was saying that he believed the driver was drunk and should have been detained. But a rational juror could conclude that Mr. Long never came close to saying Officer Smith had a test result that proved the driver was drunk. Defendants’ briefing on the probable-cause issue focuses on the idea that Officer Smith could not have detained the driver suspected of DWI. Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 5–8. To Defendants, that means that Officer Smith made a true statement when he said that Mr. Long falsely accused Officer Smith of improperly letting the driver go. Id. at 5. This argument is a red herring. Defendants’ contention that Officer Smith could not have detained the driver is based on the driver’s blood-alcohol content of 0.046. Under Arkansas law, Defendants note, a blood-alcohol content “that is between .08 and .04 results in no presumption of intoxication, and below .04 there is a presumption of no intoxication.” Id. (citing Ark. Code Ann. § 5-65-206). However, Defendants do not direct the Court to any Arkansas law that says an officer can only detain a driver for DWI when that driver’s blood-alcohol content equals 0.08 or greater. Officer Smith himself said in the video that the driver was drinking with a CDL and that the driver was driving dirty. Nothing says that Officer Smith could not rely on his own observations to conclude that the driver was driving while intoxicated. The driver’s blood-alcohol content was 0.046, not zero. Thus, the driver’s blood-alcohol content was not, as a matter of law, dispositive evidence that the driver was not intoxicated. Indeed, Arkansas law is clear that a blood-alcohol content of 0.046 can be used in combination with other evidence to show intoxication. Ark. Code Ann. § 5-65-206(a)(2).
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and that the information he was providing was not true.” 124 This statement refers to a comment
Mr. Long made on his Facebook post about the traffic stop: “Eric said it clear[ly] show the point
level but he couldn’t say why the officer deleted the video in the street but this is an officer who
say he is missing a whole mo[n]th of video.” 125 A rational juror could view the bodycam switching
(between Officers Smith and Brayboy) and Officer Smith’s subsequent manipulation of one of the
bodycams as evidence that Officer Smith did delete the video in the street. Thus, a rational juror
could conclude that Mr. Long’s comment was true, that Officer Smith knew it was true, and that
Officer Smith’s description of the comment as false in the Affidavit of Arrest was a lie. At the
very least, a rational juror could conclude that Officer Smith had absolutely no basis to state that
Mr. Long knew the Facebook comment was a falsehood. 126
Fourth, consider Officer Smith’s statement that “Grant Long posted a document related to
a personnel matter . . . referencing the opinion of a former disgruntled employee” and that “[t]he
opinion was . . . refuted . . . .” 127 Officer Smith’s statement is referencing the Internal Affairs
Investigation Letter. There is no record evidence that the findings in that letter were ever “refuted.”
A rational juror could thus conclude that Officer Smith’s statement was intentionally false.
124 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2. 125 Ex. 5 to Defs.’ Statement of Facts (Doc. 54-5). 126 Officer Smith never elaborated in the Affidavit how he knew Mr. Long’s inner thoughts. Officer Smith did not say, for instance, that Mr. Long told him that he was going to post lies about Officer Smith. A rational juror does not have to take Officer Smith’s words at face value. Indeed, given that a rational juror could conclude that numerous falsehoods appeared in the Affidavit of Arrest, a rational juror could infer that Officer Smith made this part up to help push the Affidavit of Arrest over the line. Falsus in uno falsus in omnibus. As such, a rational juror could find that this statement, at best, manifested a reckless disregard of the truth. Officer Smith offers no testimony to help his cause. When questioned on why he completed the Affidavit of Arrest, he continuously said, “[b]ecause [Mr. Long] violated the law.” See Smith Dep. (Doc. 78) at 9:18–20, 14:25–15:2. Officer Smith relies exclusively on the allegations in the Affidavit of Arrest and has no personal knowledge of what he believed to be the grounds for swearing out the Affidavit of Arrest. 127 Ex. 10 to Defs.’ Statement of Facts (Doc. 54-10) at 2.
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The foregoing is probably enough to deny summary judgment. However, overindulging
Defendants’ Franks-based merits argument for a moment, the Court next considers whether the
Affidavit of Arrest provided probable cause for the harassing communications or harassment
charges once the intentionally or recklessly false statements are removed. 128 More precisely in the
context of our case, the Court considers whether there are genuinely disputed material facts that
could allow a juror to conclude there was no probable cause for one or both charges.
Let’s start with harassing communications. Arkansas Code Annotated section 5-71-209
provides in pertinent part:
A person commits the offense of harassing communications if, with the purpose to harass, annoy, or alarm another person, the person: (1) Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, email, message delivered to an electronic device, or any other form of written or electronic communication, in a manner likely to harass, annoy, or cause alarm . . . . 129
There is nothing in the Affidavit (once it is reconstructed) or in the record that supplies probable
cause to believe Mr. Long violated the statute. Mr. Long made his two postings (plus one
comment) to the Facebook group, Let’s Talk Forrest City. Although it turns out that Officer Smith
was part of that group, nothing in the Affidavit of Arrest or the record suggests that Mr. Long knew
Officer Smith was part of that group. A rational juror could read the record in a way that
establishes Mr. Long did not “communicate[] with [Officer Smith]” as that term is used in the
statute. He certainly didn’t communicate with Officer Smith “in a manner likely to harass, annoy,
or cause alarm” to Officer Smith. Moreover, on this pro-plaintiff read of the record, because Mr.
128 Cf. McCrystal, 708 F.3d at 1007–08. For this analysis, the Court “reconstructs” the Affidavit of Arrest to determine if the reconstructed affidavit would provide probable cause for the charges of harassing communications or harassment. The Eighth Circuit says that a reconstructed affidavit “must omit” statements a rational juror could conclude were false and include “material allegedly omitted with reckless disregard for the truth.” Hunter v. Namanny, 219 F.3d 825, 829–30 (8th Cir. 2000); see also McCrystal, 708 F.3d at 1008 (stating that a revised warrant affidavit should reflect disputed facts resolved in a plaintiff’s favor). That is what the Court does here. 129 Ark. Code Ann. § 5-71-209(1). This statute was amended in 2019. The Court cites the statute as it was written at the time of the events giving rise to this case.
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Long did not know that Officer Smith would see his posts, Mr. Long could not have the “purpose
to harass, annoy, or alarm” Officer Smith. 130
The harassment charge is even more far-fetched. Arkansas Code Annotated section 5-71-
208 provides in pertinent part:
(a) A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he or she:
(5) Engages in conduct or repeatedly commits an act that alarms or seriously annoys another person and that serves no legitimate purpose.
The statute explicitly allows conduct that serves a legitimate purpose, even if it does alarm or
seriously annoy someone. On the most plaintiff-favorable read of the genuinely disputed material
facts, Mr. Long (1) posted a bodycam video of the traffic stop, (2) fairly criticized Officer Smith’s
handling of the traffic stop on the video, and (3) posted a formal letter detailing the results of an
Internal Affairs investigation into Officer Smith. If these postings do not serve a legitimate
purpose, nothing does. If these postings do not serve a legitimate purpose, then the statute violates
the First Amendment. 131 Accordingly, there’s no probable cause for the harassment charge.
130 One further point bears mentioning. If Arkansas’s harassing communications statute were to be interpreted to prohibit what (on the most pro-plaintiff read of the record) Mr. Long has done here, the statute would clearly violate the First Amendment. A private citizen criticizing a police officer’s conduct of a traffic stop and disseminating an Internal Affairs finding of bad behavior by the officer occupies the heartland of protected speech. See Hoyland v. McMenomy, 869 F.3d 644, 655 (8th Cir. 2017) (“The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. Indeed, criticism of public officials lies at the very core of speech protected by the First Amendment.”) (internal quotations and citations omitted). State statutes can constitutionally encroach on that right to criticize only for very limited reasons. For example, a statute can prevent and punish speech that “by [its] very utterance inflict[s] injury or tend[s] to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). (This is why libel and fighting words can be prohibited.) Mr. Long’s two postings and one comment on Facebook fall nowhere close to the vicinity of that type of speech. No public official (including Officer Smith) could possibly conclude that Mr. Long’s speech was anything other than core political speech protected by the First Amendment. In short, no probable cause existed to believe Mr. Long committed a crime––regardless of the specific wording of the harassing communications statute. 131 See supra note 130.
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3. No Qualified Immunity
As a back-up to Defendants’ merits argument, Officer Smith also argues that he is entitled
to qualified immunity. 132 But his argument is just a re-packaging of Defendants’ merits-based
Franks argument. For much the same reasons as described above, it does not carry the day.
“At summary judgment, qualified immunity shields a law enforcement officer from
liability in a § 1983 action unless: ‘(1) the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional . . . right; and (2) the right was clearly established
at the time of the deprivation.’” 133 Under Supreme Court precedent, a right is clearly established
when “‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would
[have understood] that what he is doing violates that right.’” 134 To show this, the Eighth Circuit
states that “[a] plaintiff need not cite a case directly on point, but controlling authority or a robust
consensus of cases of persuasive authority must have put the statutory or constitutional question
beyond debate as of the date of the alleged violation.” 135
The Eighth Circuit has made clear that, in the qualified immunity context, “[t]he dispositive
question is whether the violative nature of particular conduct is clearly established.” 136 To answer
this question, the Eighth Circuit instructs the Court to “do more than determine that the law was
‘clearly established’ in the abstract.” 137 Instead, the Court must “examine the information
possessed by . . . [Officer Smith] . . . to determine whether, given the facts known to [him] at the
132 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 10. 133 Barton v. Taber, 908 F.3d 1119, 1123 (8th Cir. 2018) (quoting Howard v. Kan. City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009)). 134 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (brackets in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 135 Hamner v. Burls, 937 F.3d 1171, 1176 (internal quotations omitted) (quoting al-Kidd, 563 U.S. at 741–42). 136 Hamner, 937 F.3d at 1178 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)). 137 Langford v. Norris, 614 F.3d 445, 461 (8th Cir. 2010) (quoting Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995)).
26 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 27 of 39
time, a reasonable [officer] would have known that [his] actions violated the law.” 138 This doesn’t
mean Officer Smith’s exact conduct must have been deemed unconstitutional before March 27,
2018 (the day he filed the Affidavit of Arrest), but it does mean that, “in the light of preexisting
law[,] the unlawfulness must be apparent.” 139
In the context of our case, Officer Smith is entitled to qualified immunity unless, “on an
objective basis, it is obvious that no reasonably competent officer would have concluded” that
probable cause existed for the charges. 140 The Eighth Circuit says that a magistrate’s issuance of
a warrant serves as “the clearest indication” that an officer “acted in an objectively reasonable
manner[.]” 141 A magistrate’s imprimatur, however, is not dispositive. The Supreme Court
acknowledges the possibility that “a magistrate, working under docket pressures, will fail to
perform as a magistrate should.” 142 Plus, the Eighth Circuit says that “[w]here the judicial finding
of probable cause is based solely on information the officer knew to be false or would have known
was false had he not recklessly disregarded the truth, not only does the arrest violate the Fourth
Amendment, but the officer will not be entitled to good faith immunity.” 143 All these propositions
seem fairly transferable to the retaliatory-inducement-to-prosecute context.
138 Id. (quoting Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996)). 139 Id. (quoting Anderson, 483 U.S. at 640). 140 Cf. Saterland v. Spencer, 725 F.3d 838, 841 (8th Cir. 2013) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In the Fourth Amendment context, an officer is entitled to qualified immunity if “arguable probable cause” existed for the arrest. Quraishi v. St. Charles Cnty., 986 F.3d 831, 836 (8th Cir. 2021). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.” Id.; see also Copeland v. Locke, 613 F.3d 875, 880 (“[T]he governing standard for a Fourth Amendment unlawful arrest claim is not probable cause in fact but arguable probable cause … that is, whether the officer should have known that the arrest violated plaintiff’s clearly established right.”). 141 Saterland, 725 F.3d at 841. (brackets in original). 142 Malley, 475 U.S. at 345–46. 143 McCrystal, 708 F.3d at 1006 (quoting Myers v. Morris, 810 F.2d 1437, 1457 (8th Cir. 1987)).
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In a nutshell, Officer Smith argues that he is insulated from liability for retaliatory
prosecution because there was probable cause for the crimes alleged in his Affidavit of Arrest.144
Officer Smith emphasizes that a neutral magistrate and a prosecutor both determined there was
probable cause for all three charges. This is basically the Franks-related argument that the Court
has already rejected above. There is no reason to go through the same analysis again. In short, a
rational juror could read the record in such a way as to establish (1) that Officer Smith knowingly
lied multiple times in the Affidavit of Arrest, (2) that he did so to manufacture probable cause
where he knew it did not exist, and (3) that, after reconstructing the Affidavit of Arrest without
these lies, 145 there was no probable cause (or even arguable probable cause) in the Affidavit of
Arrest or in the record to support any of the charges. Officer Smith was either “plainly
incompetent” or “knowingly violate[d] the law.” 146
Mr. Long’s right to criticize police without facing a retaliatory criminal prosecution in the
absence of probable cause (or even arguable probable cause) was clearly established as of the date
Officer Smith filed the Affidavit of Arrest (March 27, 2018). In fact, the Supreme Court’s 1986
decision in Malley v. Briggs said that an officer submitting an arrest-warrant application is not
entitled to qualified immunity “where the warrant application is so lacking in indicia of probable
cause as to render official belief in its existence unreasonable . . . .” 147 Viewed in the light most
favorable to Mr. Long, for the reasons discussed above, the Affidavit here meets that test.
Citing and relying on cases that predate the conduct at issue in our case, the Eighth Circuit
has held that “[a] citizen’s right to exercise First Amendment freedoms without facing retaliation
144 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 10–11. 145 See supra note 128. 146 Malley, 475 U.S. at 341. 147 475 U.S. at 344–45.
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from government officials is clearly established.”148 In Small v. McCrystal, the Eighth Circuit
denied qualified immunity to police officers on the plaintiffs’ claim for retaliatory inducement to
prosecute. 149 For purposes of summary judgment, the Eighth Circuit determined that the officers
made multiple false statements to a prosecutor while seeking an arrest warrant for members of a
crowd who were “verbally abusive.” 150 The Eighth Circuit said no probable cause existed to arrest
any of the plaintiffs. 151 “Nonetheless, warrants issued, they were arrested, and some were tried.” 152
The Eighth Circuit concluded that the facts there “state[d] a claim for retaliatory inducement to
prosecute.” 153 So, by 2013, it was clearly established that Officer Smith’s conduct (falsifying
information to procure the arrest and prosecution of an individual in retaliation for protected
speech) violated the First Amendment.
In sum, there are numerous genuinely disputed material facts as to whether Officer Smith
acted in an objectively reasonable manner and whether he violated clearly established law. Thus,
Officer Smith is not presently entitled to qualified immunity with respect to Mr. Long’s First
Amendment retaliation claim.
B. Mr. Long’s Malicious Prosecution Claim
To prove malicious prosecution in Arkansas, a plaintiff must show: “(1) a proceeding
instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in
favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of
148 Quraishi, 986 F.3d at 838 (quoting Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (per curiam)); see also Williams v. City of Alexander, 772 F.3d 1307, 1313 (8th Cir. 2014) (same). 149 McCrystal, 708 F.3d at 1008–09. 150 Id. at 1009. 151 Id. 152 Id. 153 Id.
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the defendant; and (5) damages.” 154 Defendants’ only argument on summary judgment is that Mr.
Long’s malicious prosecution claim fails because there was probable cause for the Affidavit of
Arrest and thus the prosecution. 155 This again is the same argument that the Court has addressed
in the context of Mr. Long’s First Amendment claim. For the same reasons the Court explained
there, Mr. Long’s state law malicious prosecution claim survives summary judgment. 156
II. Claims that Fail on Summary Judgment
Three of Mr. Long’s claims do not survive summary judgment. The first claim that falls
by the wayside is Mr. Long’s Fourth Amendment claim. 157 The second claim that’s out is Mr.
Long’s state law claim for abuse of process. 158 The third claim—or really set of claims—that fails
at this stage is Mr. Long’s federal claim(s) against Forrest City. 159 The Court discusses each of
these claims in turn.
A. Mr. Long’s Fourth Amendment Claim
Mr. Long alleges that he was arrested without probable cause in violation of his Fourth
Amendment rights. 160 The Fourth Amendment protects “[t]he right of the people to be secure in
154 Sundeen v. Kroger, 355 Ark. 128, 142, 133 S.W.3d 393, 395 (2003). 155 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 3. 156 In their summary judgment briefing, Defendants briefly mention that Officer Smith is entitled to qualified immunity on Mr. Long’s malicious prosecution claim. Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 11. Mr. Long’s malicious prosecution claim arises under state law. Defendants do not point to any state-law grounds for qualified immunity. Instead, Defendants’ entire qualified immunity argument rests on federal law. Id. at 9– 11. Federal qualified immunity does not apply to state-law claims. Herts v. Smith, 345 F.3d 581, 588 (8th Cir. 2003). Even if federal qualified immunity did apply, the Court’s qualified immunity analysis with regard to the retaliatory-inducement-to-prosecute claim applies with equal force to the malicious prosecution claim. 157 Compl. (Doc. 1) ¶ 28. 158 Id. ¶ 13. 159 Id. ¶ 24. 160 Id. ¶ 28. In his Complaint, Mr. Long also says that he was battered in violation of his Fourth Amendment rights, which would be an excessive-force claim. Id. Recall that this case originally began with an additional plaintiff, Arsenio Clinton. The factual allegations in the Complaint that discuss a possible excessive-force claim exclusively discuss Officer Smith’s conduct vis-a-vis Arsenio Clinton and other individuals––not Mr. Long. See id. ¶¶ 6–9 (alleging that Officer Smith pushed Arsenio Clinton, pulled a gun on Arsenio Clinton, and tased an unknown individual). As such, the Complaint cannot properly be read to include a claim by Mr. Long that he was battered
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their persons . . . against unreasonable . . . seizures.” 161 The Supreme Court explains that a seizure
“can take the form of ‘physical force’ or a ‘show of authority’ that in ‘some way restrain[s] the
liberty’ of the person.” 162 The basic problem for Mr. Long with respect to his Fourth Amendment
claim is that he was never detained or arrested. So there was no seizure to trigger the Fourth
Amendment’s protections.
Mr. Long argues that he was seized when Officer Dowdy told him about the Warrant of
Arrest and gave him a card with his court date on it. He says this amounts to a seizure because of
the pretrial burdens he suffered and his required attendance at court hearings. 163 Specifically, Mr.
Long argues that, “after being served with a citation to appear in court, [Mr. Long] was officially
under the power of the court.” 164 Additionally, Mr. Long argues that his employment prospects
were diminished, he suffered reputational harm, and he experienced the “financial and emotional
strain of preparing a defense.” 165 Mr. Long cites Justice Ginsburg’s concurrence in Albright v.
Oliver, 510 U.S. 266, 278 (1994), for the proposition that these burdens can constitute a seizure. 166
As Defendants contend, Mr. Long’s argument misses the mark. 167 This is so for at least
two reasons. 168 First, Justice Ginsburg’s Albright concurrence is not binding. Second, even after
expressly acknowledging Justice Ginsburg’s concurrence, the Eighth Circuit made clear that it has
not adopted such a position. 169 The circuit court explained it “has never held that pretrial
in violation of the Fourth Amendment. 161 U.S. Const. amend. IV. 162 Torres v. Madrid, 141 S. Ct. 989, 995 (2021) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). 163 Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 68) at 2–3. 164 Id. 165 Id. 166 Id. 167 Reply in Supp. of Defs.’ Mot. for Summ. J. (Doc. 74) at 4–5. 168 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 2. 169 Tech. Ordnance, Inc. v. United States, 244 F.3d 641, 651 (8th Cir. 2001).
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restrictions . . . constitute a Fourth Amendment seizure.” 170 Here, where it is undisputed that
Officer Dowdy never applied physical force or made any show of authority that in any way
inhibited Mr. Long’s freedom, Mr. Long was not seized for the purposes of the Fourth
Amendment. Because Mr. Long was never seized (much less arrested), his Fourth Amendment
rights were never violated. The Court will grant summary judgment to Defendants on Mr. Long’s
claim under the Fourth Amendment.
B. Mr. Long’s Abuse-of-Process Claim
In Arkansas, “the test of abuse of process is whether the judicial process is used to extort
or coerce.” 171 To ultimately prevail at trial on an abuse-of-process claim, Mr. Long would have
to show: “(1) a legal procedure set in motion in proper form, even with probable cause and ultimate
success; (2) the procedure is perverted to accomplish an ulterior purpose for which it was not
designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular
conduct of the proceeding.” 172
The Arkansas Supreme Court has been clear that the “key to the tort is the improper use of
process after its issuance in order to accomplish a purpose for which the process was not
designed.” 173 Defendants rightly home in on the phrase “after its issuance.” Specifically,
Defendants say Mr. Long “has not and cannot set forth any evidence that [Officer] Smith used the
judicial process after the judge signed the warrant in order to extort or coerce [Mr. Long] into
anything.” 174
170 Id. 171 S. Ark. Petro. Co. v. Schiesser, 343 Ark. 492, 501, 36 S.W.3d 317, 323 (2001). 172 Id., 36 S.W.3d at 323. 173 Id., 36 S.W.3d at 323. 174 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 9.
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Mr. Long disagrees. 175 He says his claim survives summary judgment because Officer
Smith (1) failed to tell the prosecuting attorney that Officer Smith falsified the Affidavit of Arrest
and (2) appeared and participated in the trial. 176 This argument is misplaced. No rational juror
could conclude that Officer Smith, through his post-Affidavit conduct, participated in the criminal
process for any reason other than to help convict Mr. Long of the charges. This conduct is entirely
consistent with the primary purpose of a criminal prosecution––obtaining a conviction. So, no
rational juror could conclude that Officer Smith, after filing the Affidavit of Arrest, did anything
out of step with a criminal prosecution. He didn’t try to use the judicial process to extort or coerce
Mr. Long. Indeed, there’s no evidence that Officer Smith and Mr. Long interacted at all during
the judicial process. 177 The Court grants summary judgment to Defendants on Mr. Long’s abuse-
of-process claim.
C. Mr. Long’s Federal Claims Against Forrest City 178
Mr. Long alleges that Forrest City is liable under § 1983 because the City has a “custom
and policy allowing [the unlawful] conduct” in which Officer Smith engaged. 179 Mr. Long also
alleges that Forrest City is liable under § 1983 because it failed to train Officer Smith that he
couldn’t “use 1st Amendment protected speech as a basis for filing criminal charges.” 180
175 Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 68) at 6. 176 Id. 177 It is not lost on the Court that one could say Officer Smith’s participation in the trial was part of an attempt to indirectly silence Mr. Long or at least chill his free speech rights. But that is not explicit extortion or coercion. It is simply a desired byproduct of the process. 178 Mr. Long sues Officer Smith in his official capacity. In the Eighth Circuit, “claims against individuals in their official capacities are equivalent to claims against the entity for which they work . . . .” Gorman v. Bartch, 152 F.3d. 907, 914 (8th Cir. 1998). 179 Id. 180 Compl. (Doc. 1) ¶ 24. In his Complaint, Mr. Long alleges a failure-to-train claim. Id. In his Response to Defendants’ Motion for Summary Judgment, Mr. Long adds in language suggestive of a change in theory from failure to train to failure to supervise. See Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 68) at 9. In their Reply, Defendants say Mr. Long is, “in effect, trying to amend his complaint at the dispositive-motion phase, months beyond the Court’s deadline for amending pleadings.” Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot.
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The Supreme Court has held that a city can sometimes be held liable under § 1983. 181 Of
course, “it is well established ‘that a municipality cannot be held liable on a respondeat superior
theory, that is, solely because it employs a tortfeasor.’” 182 A city is subject to liability under §
1983 “where a constitutional violation has been committed pursuant to an official custom, policy,
or practice.” 183 For such claims, a plaintiff “must show not only that a policy or custom existed,
and that it was causally related to the plaintiff’s injury, but that the policy itself was
unconstitutional.” 184 Said differently, an official “custom, policy, or practice must be the moving
force behind the violation.” 185
In addition to a custom, policy, or practice claim (or perhaps as a subspecies of such a
claim), the Supreme Court has held that a municipality can “be liable under . . . § 1983 for
constitutional violations resulting from its failure to train municipal employees.” 186 But this is a
hard hill to climb. The Supreme Court has specifically cautioned that “[a] municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to
train.” 187 “Only where a municipality’s failure to train its employees in a relevant respect
evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be . . .
for Summ. J. (Doc. 74) at 9. The Eighth Circuit says that “a claim for failure to supervise requires the same analysis as a claim for failure to train.” Atkinson, 709 F.3d at 1216 (quoting Robinette v. Jones, 476 F.3d 589, 591 (8th Cir. 2007)). So, the term given to Mr. Long’s claim does not change the ultimate outcome here. 181 Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690–91 (1978). 182 Atkinson v. City of Mountain View, 709 F.3d 1201, 1214 (8th Cir. 2013) (quoting Szabla v. City of Brooklyn Park, 486 F.3d 385, 389 (8th Cir. 2007)). 183 Luckert v. Dodge County, 684 F.3d 808, 820 (8th Cir. 2012) (quoting Johnson v. Blaukat, 453 F.3d 1108, 1114 (8th Cir. 2006)). 184 Id. (quoting Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir. 1985)). 185 Id. (quoting Patzner, 779 F.2d at 1367). 186 City of Canton v. Harris, 489 U.S. 378, 380 (1989). 187 Connick v. Thompson, 563 U.S. 51, 61 (2011).
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actionable under § 1983.” 188 And, as the Eighth Circuit has explained, the deliberate indifference
standard is “rigorous.” 189 A “pattern of similar constitutional violations by untrained employees
is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” 190
Forrest City argues that it is entitled to summary judgment. The City’s first asserted
reason—that no predicate constitutional violation exists—works to defeat the Fourth Amendment
claim against the City, but not the First Amendment claim against the City. The City’s second
asserted reason—that Mr. Long cannot show that his rights were violated because of a City policy
or custom—works to defeat part of the First Amendment Claim against the City. But it requires a
bit more discussion. 191
The Eighth Circuit distinguishes between policy and custom. 192 “[A] ‘policy’ is an official
policy, a deliberate choice of a guiding principle or procedure made by the municipal official who
has final authority regarding such matters.” 193 A custom is more unofficial and nebulous. To
establish a municipal custom, a plaintiff must demonstrate:
(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving force behind the constitutional violation. 194
188 Id. at 389. 189 Atkinson, 709 F.3d at 1216. 190 Thompson, 563 U.S. at 62 (quoting Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)). 191 Id. at 12–13. 192 Corwin v. City of Independence, 829 F.3d 695, 699–700 (8th Cir. 2016). 193 Id. at 700 (quoting Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)). 194 Corwin, 829 F.3d at 700 (quoting Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014)).
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For either a policy or a custom, it is necessary to determine the identity of the policymaking
officials. 195 This question of law must be answered before determining whether there are
genuinely disputed material facts as to whether a policy or custom resulted in the predicate
constitutional violation. 196 This question is answered by consulting “(1) state and local positive
law and (2) state and local custom or usage having the force of law.” 197
Forrest City is a city of the first class. 198 At the time of the events challenged in this case,
Arkansas Code Annotated section 14-52-101 had this to say about cities of the first class:
The city council shall have power to establish a city police department, to organize it under the general superintendence of the mayor, and to prescribe its duties and define its powers in such manner as will most effectually preserve the peace of the city, secure the citizens thereof from personal violence, and safeguard their property from fire and unlawful depredations. 199
Furthermore, Arkansas Code Annotated section 14-52-203(a) says, in cities of the first class, “the
duty of the chief of police and other officers of the police department is under the direction of the
mayor.” It is clear from the statutes that the Chief of Police is not the policymaking official. This
case does not require a decision as to whether the City Council members are the policymaking
officials. Even if the Mayor is the policymaking official (or both the Mayor and the City Council
members count as policymaking officials), the outcome is the same.
The City argues that Mr. Long “has not, and cannot, identify or produce any policy of the
City that requires its officers to act unconstitutionally” or that somehow caused the First
195 See Atkinson, 709 F.3d at 1214–15. The parties did not address this question in their briefing. However, at the summary judgment hearing, the City’s counsel argued that the City Council of Forrest City was the policymaker. Dec. 3, 2021 Hr’g Tr. at 51. 196 Atkinson, 709 F.3d at 1215. 197 Id. (internal quotations omitted) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,737 (1989)). 198 See Ark. Code Ann. § 14-37-103(a)(1) (“All municipal corporations having over two thousand five hundred (2,500) inhabitants shall be deemed cities of the first class.”); Chief Lee Dep. (Doc. 89) at 12:19 (stating that “[w]e have 15,000 people in Forrest City”). 199 The Arkansas General Assembly amended this statute in 2021. The amendments are immaterial to the issues here.
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Amendment violation here. 200 Mr. Long does not respond to this argument, and the record is
devoid of anything resembling a potentially offending City policy. Mr. Long has thus failed to
“set forth specific facts sufficient to raise a genuine issue for trial” on whether a City policy caused
him any constitutional harm. 201 Based on this record, no rational juror could find that any City
policy was the animating force behind Mr. Long’s prosecution.
Mr. Long’s custom claim fares no better. The City says Mr. Long has not provided
evidence upon which a rational juror could conclude that a municipal custom caused his alleged
injury. 202 Mr. Long does not respond to this argument. And while he provides some evidence of
Officer Smith engaging in unconstitutional or unlawful conduct prior to the events in this case,
Mr. Long provides no evidence that the Mayor or the City Council members had notice of this
prior conduct. Mr. Long also provides no bad acts of other officers, much less notice to the
policymaking officials of such acts. This is fatal to Mr. Long’s custom claim because the Eighth
Circuit requires deliberate indifference for such a claim and holds that “[n]otice is the touchstone
of deliberate indifference in the context of § 1983 liability.” 203 Because no record evidence could
allow a rational juror to conclude that the policymaking official(s) had notice of any prior
unconstitutional acts, Mr. Long cannot prevail on his municipal custom claim. 204
200 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 13. 201 Haggenmiller, 837 F.3d at 884. 202 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 13. 203 Atkinson, 709 F.3d at 1216. 204 It is true that a rational juror could conclude that Officer Smith violated the constitutional rights of two other people before he filed the Affidavit of Arrest. One instance involved Mr. Long’s nephew, Derrick Long, where Officer Smith allegedly violated the Fourth Amendment by entering Derrick Long’s home and seizing his dog without probable cause. A second instance involved Officer Smith’s striking of a handcuffed juvenile, which Officer Smith’s superiors characterized as an unreasonable use of force, arguably a Fourth Amendment violation. Ex. 1 to Defs.’ Reply to Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 74-1) at 1. But a rational juror could not conclude that two instances from 2015 and 2016 establish a “continuing, widespread, persistent pattern of unconstitutional misconduct” by Forrest City police officers or Officer Smith. Id.; see also Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (stating that “two specific prior complaints” and various rumors “pale in comparison to type of prior complaints that [the Eighth Circuit] ha[s] previously held supported a verdict against a city”) (collecting cases). So even if the City Council members or the Mayor knew about these prior incidents, a rational juror could
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That leaves Mr. Long’s failure-to-train claim. The City provided evidence of Officer
Smith’s training. 205 The City argues that: (1) Mr. Long has not provided evidence that the Mayor
or the City Council members knew of and ignored the prior bad acts committed by Officer Smith,
and (2) Mr. Long has not provided any evidence of prior bad acts committed by any other police
officer, much less evidence of notice to the policymaking officials of such acts. 206 Mr. Long’s
contrary argument appears to be that a rational juror could reasonably infer a policymaking official
knew of Officer Smith’s prior bad acts. On this premise, Mr. Long then argues that the City “acted
with deliberate indifference or tacit authorization of the offensive acts.” 207
The Court agrees with the City. Mr. Long has provided no evidence upon which a rational
juror could conclude that the City Council members or the Mayor (the policymaking officials) had
notice of Officer Smith’s prior bad acts. Without such notice, there’s no good argument for the
need for retraining or additional training. “Absent some form of notice, the [C]ity cannot be
deliberately indifferent to the risk that its training or supervision of [Officer Smith] would result
in ‘a violation of a particular constitutional . . . right.’” 208 The Court thus grants summary judgment
to the City on all federal claims against it. 209
not find for Mr. Long on his municipal-custom theory. 205 Ex. 4 to Defs.’ Statement of Facts (Doc. 54-4) at 1–50. 206 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 53) at 15. 207 Br. in Supp. of Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 68) at 9 (quoting Perkins v. Hastings, 915 F.3d 512, 523 (8th Cir. 2019)). 208 Atkinson, 709 F.3d at 1217 (quoting Okla. v. Brown, 520 U.S. 397, 411 (1997)). 209 As is true of the custom claim, even if a rational juror could conclude that the City Council members or the Mayor knew about Officer Smith’s prior bad acts, the Court would still grant summary judgment. First, two prior bad acts cannot, in the mind of a rational juror, equal a pattern. See supra note 204. Second, the only federal claim that survives summary judgment is Mr. Long’s First Amendment retaliation claim. A rational juror could conclude that Officer Smith’s prior bad acts (the incident with the handcuffed juvenile and the incident with Mr. Long’s nephew) make out Fourth Amendment violations. But no rational juror could conclude that those actions are similar enough to First Amendment retaliation to impose failure-to-train liability on the City. Stated differently, Mr. Long has not presented any evidence showing that Officer Smith (or other Forrest City Police officers) had previously retaliated for protected speech. This means no rational juror could find that Mr. Long meets the Supreme Court’s standard for failure-to-train liability––a “pattern of similar constitutional violations by untrained
38 Case 2:19-cv-00061-LPR Document 81 Filed 03/28/22 Page 39 of 39
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED in
part and DENIED in part. With respect to Mr. Long’s claims against Officer Smith in his
individual capacity, the following claims survive summary judgment: the retaliatory-inducement-
to-prosecute claim under the First Amendment, the “right to remonstrate” claim under the
Arkansas Constitution, and the state law malicious prosecution claim. All the rest of Mr. Long’s
claims against Officer Smith in his individual capacity are out. With respect to Mr. Long’s claims
against Officer Smith in his official capacity, such claims are really claims against Forrest City.
Accordingly, they survive or fail to the same extent as the claims expressly made against Forrest
City. With respect to Mr. Long’s claims against Forrest City, the First and Fourth Amendment
claims are out, and the abuse-of-process claim is out. The state law malicious prosecution claim
and the “right to remonstrate” claim under the Arkansas Constitution survive––mostly because the
City did not make any independent summary judgment argument explaining why those claims
against it should not advance.
IT IS SO ORDERED this 28th day of March 2022.
________________________________ LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE
employees.” Thompson, 563 U.S. at 62 (emphasis added).
Related
Cite This Page — Counsel Stack
Long v. Smith, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-smith-ared-2022.