Cite as 2021 Ark. App. 357 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION III 2023.07.10 13:38:32 -05'00' No. CV-20-43 2023.003.20215 Opinion Delivered September 22, 2021 WILLIAM DURDEN APPELLANT APPEAL FROM THE CRAWFORD V. COUNTY CIRCUIT COURT [NO. 17CV-16-153] CITY OF VAN BUREN; CITY OF VAN BUREN POLICE DEPARTMENT; OFFICER KEVIN DUGAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOHN DOES 1–5, SAID DESIGNATION HONORABLE MICHAEL REPRESENTING THOSE MEDLOCK, JUDGE INDIVIDUALS AND/OR ENTITIES EXERCISING CONTROL OVER THE PLAINTIFF; JOHN DOES 6–10, SAID DESIGNATION REPRESENTING THE LIABILITY INSURANCE CARRIER(S)
APPELLEES AFFIRMED
MIKE MURPHY, Judge
Appellant William Durden appeals from the Crawford County Circuit Court’s order
granting summary judgment to appellees and dismissing his complaint with prejudice.
Durden argues on appeal that the circuit court erred in granting summary judgment because
there was a genuine issue of material fact as to his “right to be free from arrest” by virtue of
standing on a boat dock in a private marina. We affirm. On April 26, 2014, Durden was arrested at the Goose Harbor Marina in Van Buren,
Arkansas, for public intoxication, disorderly conduct, and resisting arrest. Durden was
arrested while he was standing on a dock at the marina near his boat in which he lived. He
was tried and convicted, but his charges were dismissed on appeal from district to circuit
court. Thereafter, Durden brought suit against the arresting officer (separate appellee, Kevin
Dugan), the City of Van Buren, and ten John Doe defendants alleging constitutional
violations by Officer Dugan and the city under 42 U.S.C. section 1983 and the Arkansas
Civil Rights Act (ACRA). The case was removed to federal court, which granted the
appellees’ motion for summary judgment on the federal claims (significant to this appeal,
that court found that Officer Dugan had probable cause to arrest Durden).
Durden then refiled the remaining state claims, and the final amended complaint
contained the following counts: (1) Officer Dugan violated Durden’s right to be free from
unreasonable search and seizure under the Arkansas Constitution; (2) Durden’s right to be
free from an unlawful arrest was violated because the officer made the arrest outside his
jurisdiction; (3) Officer Dugan falsely testified at trial, “causing the unlawful conviction”;
and (4) intentional infliction of emotional distress caused by Officer Dugan’s unlawful arrest
and false testimony.
The appellees filed a motion for summary judgment asserting that no genuine issue
of material fact exists, and the claims can be decided as a matter of law. They argued that
Durden failed to establish any constitutional violation that would support his ACRA claims
because Officer Dugan had probable cause to arrest Durden, precluding any constitutional
violation. The appellees explained that Officer Dugan is entitled to qualified immunity in
2 his individual capacity as to the ACRA claims, and finally, they contended that Durden has
not offered any proof that Officer Dugan falsely testified, but even if he did, he is entitled
to absolute immunity from any claim relating to testimony provided in his official capacity
in a judicial proceeding.
Durden responded. In his response, and relevant to this appeal, he stated that
“whether or not the dock is private property where the officer had the right to perfect an
arrest is a genuine issue of material fact,” and “there also exists a genuine issue of material
fact as to whether [Durden] was in the [officer’s] jurisdiction that would give rise to a legal
arrest.” Finally, he asserted that “there is a genuine issue of material fact as to the claim of
Intentional Infliction of Emotional Distress,” because Officer Dugan “had no valid reason
to seek out [Durden]” for arrest, and he “provided false testimony.”
The circuit court granted the appellees’ motion for summary judgment. It found that
no genuine issue of material facts existed and that summary judgment should be granted as
to all defendants as a matter of law and based on the arguments presented by the appellees.
Durden now appeals. The sole issue on appeal is whether the circuit court erred in granting
summary judgment.
Summary judgment should be granted only when it is clear that there are no genuine
issues of material fact, and the party is entitled to judgment as a matter of law. E.g., Smith v.
Farm Bureau Mut. Ins. Co. of Ark., 88 Ark. App. 22, 30–31, 194 S.W.3d 212, 218–19 (2004).
On appeal, this court determines if summary judgment was appropriate by deciding whether
the evidentiary items presented by the moving party leave a material question of fact
unanswered. Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64. Summary judgment is
3 also appropriate when the circuit court finds that the allegations, taken as true, fail to state a
cause of action. Green v. City of N. Little Rock, 2012 Ark. App. 21, at 8–9, 388 S.W.3d 85,
90. We view the evidence in the light most favorable to the party against whom the motion
was filed, resolving all doubts and inferences against the moving party. Id.
Durden argues on appeal that summary judgment was inappropriate because a
genuine issue of material fact existed as to whether he had a right to be “free from arrest”
while in a private marina. He further argues that police are bound by specific jurisdictions,
and officer Dugan was acting outside his jurisdiction. 1
We turn now to whether a material issue of fact exists. The appellees do not dispute
that Durden was arrested in a private marina where he lived on his houseboat. Durden
contends that his right to be free from arrest 2 was violated because, essentially, he was
standing on his front porch and that front porch was not only his home but outside Officer
Dugan’s jurisdiction. The federal court found that Officer Dugan had probable cause to
1 In his brief to this court, Durden makes no arguments about Dugan’s potential immunity from suit in his official and personal capacity and as asserted in the appellees’ motion for summary judgment. Because the circuit court granted summary judgment “based on arguments presented by the appellees,” and Durden makes no additional arguments on the point to this court, he has abandoned those arguments now on appeal. Crockett v. Essex, 341 Ark. 558, 562, 19 S.W.3d 585, 588 (2000) (“[N]o argument regarding a negligence claim is made in this appeal, and we conclude that the Crocketts have abandoned any claim that summary judgment was erroneously granted for that cause of action as well.”). 2 Durden’s complaint alleged that his right to be free from unreasonable searches and seizures was violated, but his argument in the summary judgment phase and on appeal to this court has devolved into this more general assertion that he had a “right to be free from arrest.”
4 arrest Durden. It found that Durden was standing on a public 3 boat dock holding a beer,
and “because Dugan had probable cause to believe [Durden] was violating the law against
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Cite as 2021 Ark. App. 357 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION III 2023.07.10 13:38:32 -05'00' No. CV-20-43 2023.003.20215 Opinion Delivered September 22, 2021 WILLIAM DURDEN APPELLANT APPEAL FROM THE CRAWFORD V. COUNTY CIRCUIT COURT [NO. 17CV-16-153] CITY OF VAN BUREN; CITY OF VAN BUREN POLICE DEPARTMENT; OFFICER KEVIN DUGAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOHN DOES 1–5, SAID DESIGNATION HONORABLE MICHAEL REPRESENTING THOSE MEDLOCK, JUDGE INDIVIDUALS AND/OR ENTITIES EXERCISING CONTROL OVER THE PLAINTIFF; JOHN DOES 6–10, SAID DESIGNATION REPRESENTING THE LIABILITY INSURANCE CARRIER(S)
APPELLEES AFFIRMED
MIKE MURPHY, Judge
Appellant William Durden appeals from the Crawford County Circuit Court’s order
granting summary judgment to appellees and dismissing his complaint with prejudice.
Durden argues on appeal that the circuit court erred in granting summary judgment because
there was a genuine issue of material fact as to his “right to be free from arrest” by virtue of
standing on a boat dock in a private marina. We affirm. On April 26, 2014, Durden was arrested at the Goose Harbor Marina in Van Buren,
Arkansas, for public intoxication, disorderly conduct, and resisting arrest. Durden was
arrested while he was standing on a dock at the marina near his boat in which he lived. He
was tried and convicted, but his charges were dismissed on appeal from district to circuit
court. Thereafter, Durden brought suit against the arresting officer (separate appellee, Kevin
Dugan), the City of Van Buren, and ten John Doe defendants alleging constitutional
violations by Officer Dugan and the city under 42 U.S.C. section 1983 and the Arkansas
Civil Rights Act (ACRA). The case was removed to federal court, which granted the
appellees’ motion for summary judgment on the federal claims (significant to this appeal,
that court found that Officer Dugan had probable cause to arrest Durden).
Durden then refiled the remaining state claims, and the final amended complaint
contained the following counts: (1) Officer Dugan violated Durden’s right to be free from
unreasonable search and seizure under the Arkansas Constitution; (2) Durden’s right to be
free from an unlawful arrest was violated because the officer made the arrest outside his
jurisdiction; (3) Officer Dugan falsely testified at trial, “causing the unlawful conviction”;
and (4) intentional infliction of emotional distress caused by Officer Dugan’s unlawful arrest
and false testimony.
The appellees filed a motion for summary judgment asserting that no genuine issue
of material fact exists, and the claims can be decided as a matter of law. They argued that
Durden failed to establish any constitutional violation that would support his ACRA claims
because Officer Dugan had probable cause to arrest Durden, precluding any constitutional
violation. The appellees explained that Officer Dugan is entitled to qualified immunity in
2 his individual capacity as to the ACRA claims, and finally, they contended that Durden has
not offered any proof that Officer Dugan falsely testified, but even if he did, he is entitled
to absolute immunity from any claim relating to testimony provided in his official capacity
in a judicial proceeding.
Durden responded. In his response, and relevant to this appeal, he stated that
“whether or not the dock is private property where the officer had the right to perfect an
arrest is a genuine issue of material fact,” and “there also exists a genuine issue of material
fact as to whether [Durden] was in the [officer’s] jurisdiction that would give rise to a legal
arrest.” Finally, he asserted that “there is a genuine issue of material fact as to the claim of
Intentional Infliction of Emotional Distress,” because Officer Dugan “had no valid reason
to seek out [Durden]” for arrest, and he “provided false testimony.”
The circuit court granted the appellees’ motion for summary judgment. It found that
no genuine issue of material facts existed and that summary judgment should be granted as
to all defendants as a matter of law and based on the arguments presented by the appellees.
Durden now appeals. The sole issue on appeal is whether the circuit court erred in granting
summary judgment.
Summary judgment should be granted only when it is clear that there are no genuine
issues of material fact, and the party is entitled to judgment as a matter of law. E.g., Smith v.
Farm Bureau Mut. Ins. Co. of Ark., 88 Ark. App. 22, 30–31, 194 S.W.3d 212, 218–19 (2004).
On appeal, this court determines if summary judgment was appropriate by deciding whether
the evidentiary items presented by the moving party leave a material question of fact
unanswered. Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64. Summary judgment is
3 also appropriate when the circuit court finds that the allegations, taken as true, fail to state a
cause of action. Green v. City of N. Little Rock, 2012 Ark. App. 21, at 8–9, 388 S.W.3d 85,
90. We view the evidence in the light most favorable to the party against whom the motion
was filed, resolving all doubts and inferences against the moving party. Id.
Durden argues on appeal that summary judgment was inappropriate because a
genuine issue of material fact existed as to whether he had a right to be “free from arrest”
while in a private marina. He further argues that police are bound by specific jurisdictions,
and officer Dugan was acting outside his jurisdiction. 1
We turn now to whether a material issue of fact exists. The appellees do not dispute
that Durden was arrested in a private marina where he lived on his houseboat. Durden
contends that his right to be free from arrest 2 was violated because, essentially, he was
standing on his front porch and that front porch was not only his home but outside Officer
Dugan’s jurisdiction. The federal court found that Officer Dugan had probable cause to
1 In his brief to this court, Durden makes no arguments about Dugan’s potential immunity from suit in his official and personal capacity and as asserted in the appellees’ motion for summary judgment. Because the circuit court granted summary judgment “based on arguments presented by the appellees,” and Durden makes no additional arguments on the point to this court, he has abandoned those arguments now on appeal. Crockett v. Essex, 341 Ark. 558, 562, 19 S.W.3d 585, 588 (2000) (“[N]o argument regarding a negligence claim is made in this appeal, and we conclude that the Crocketts have abandoned any claim that summary judgment was erroneously granted for that cause of action as well.”). 2 Durden’s complaint alleged that his right to be free from unreasonable searches and seizures was violated, but his argument in the summary judgment phase and on appeal to this court has devolved into this more general assertion that he had a “right to be free from arrest.”
4 arrest Durden. It found that Durden was standing on a public 3 boat dock holding a beer,
and “because Dugan had probable cause to believe [Durden] was violating the law against
drinking in public, [ ] Dugan’s arrest of [Durden] was not unreasonable.” Durden may not
now raise issue of probable cause in state court, see generally Graham v. Cawthorn, 2013 Ark.
160, at 12–13, 427 S.W.3d 34, 44, nor does he attempt to do so.
The Fourth Amendment to the Constitution of the United States has been
incorporated into the fundamental law of this state and is found in the Declaration of Rights
in our present Arkansas Constitution:
The right of the people of this state to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.
Ark. Const. art. 2, § 15.
Notably, the right does not protect a person from arrest. It protects a person from an
unreasonable arrest. Wade v. Ferguson, 2009 Ark. 618, at 3–4. Durden states that he was not
“in public” for the purpose of the public-intoxication statute. And while true that police
are bound by their specific jurisdictions when effecting arrests absent certain circumstances,
even assuming that Officer Dugan acted outside the scope of his authority by arresting
Durden outside his jurisdiction, the analysis still hinges on whether that arrest was
unreasonable. As our supreme court wrote in Wade v. Ferguson,
[E]ven assuming that the officers violated Arkansas law when they stopped, detained, and arrested Wade for a misdemeanor offense outside of their territorial jurisdiction, Wade failed to state a claim because he did not assert that the officers’ actions were
3 The federal court found that Durden was on a public boat dock. Durden argues to this court that the boat dock was private. This inconsistency does not affect our analysis.
5 unreasonable. Article 2, section 15 of the Arkansas Constitution prohibits only unreasonable searches and seizures.
2009 Ark. 618, at 3–4 (emphasis added).
The federal circuit court, in dismissing Durden’s federal claims, found that the
officer’s actions were not unreasonable and therefore not unconstitutional. The question
asked in deciding summary judgment is not whether any fact is in dispute but whether any
fact in dispute is material. Substantive law identifies which facts are material. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A material fact is one so significant to the
matter at hand such that if it were different, the result reached in the given case would also
be different. Id. In his brief to this court, Durden does not assert that Officer Dugan’s
actions were unreasonable, thereby rendering his arguments about the location of the arrest
and the officer’s jurisdiction immaterial. Accordingly, we hold that the circuit court did not
err in granting the appellees’ motion for summary judgment.
Affirmed.
GLADWIN and BROWN, JJ., agree.
Wallace, Martin, Duke, and Russell, PLLC, by: Valerie L. Goudie, for appellant.
Harrington, Miller, Kieklak, Eichmann & Brown, P.A., by: Thomas N. Kieklak and R.
Justin Eichmann, for appellees.