9th Circuit Revives Bison Observer’s Civil Rights Claims

A volunteer with the Buffalo Field Campaign was viewing a bison-hazing operation in 2012 when he was cited for obstructing the hazing. The Ninth Circuit on Monday ordered his First Amendment case back to federal court to be heard by a jury.

WEST YELLOWSTONE, Mont. (CN) – Anthony Patrick Reed may one day get his day in court on behalf of Yellowstone National Park’s wild bison, after the Ninth Circuit ruled Monday that a jury should have determined whether the volunteer for the Buffalo Field Campaign had his First and Fourth Amendment rights violated during a 2012 federal government hazing of bison back into Yellowstone National Park.

In July 2012, Reed tried to document the federal government’s hazing of wild bison back into Yellowstone National Park. After a Gallatin County sheriff’s deputy told Reed to move his car out of the line of bison, Reed complied and moved to a nearby gravel road. Deputy Douglas Lieurance threatened to arrest Reed, and ultimately issued Reed a misdemeanor citation for obstructing the herding operation.

Reed sued in Montana federal court in 2013, naming Lieurance, Gallatin County sheriff Brian Gootkin and Gallatin County as defendants. Reed argued Lieurance’s actions violated his First and Fourth Amendment rights and related Montana constitutional rights, and that Gallatin County Sheriff Brian Gootkin, the Sheriff’s Office, and Gallatin County have a policy or practice of providing constitutionally inadequate training to law enforcement officers.

Rebecca Smith, a civil-rights attorney who represented Reed, said Monday’s Ninth Circuit ruling affirms constitutional rights.

“It was a case where volunteers with a nonprofit group were trying to document and observe a government operation on public land from the sidelines without actually protesting or interfering with it,” she said. “That was the key take-away in this case – a reaffirmation that peacefully observing and documenting government conduct in a public place is protected conduct under the First Amendment and Montana citizens cannot be arrested for ‘obstruction’ for exercising this First Amendment right.”

Bison can carry the brucellosis virus, a disease that is harmful to cattle, and in Montana bison are hazed back into Yellowstone National Park to protect that state’s cattle. To prevent collisions between cars and bison during the hazing operations, county law enforcement had set up a blockade along Montana Highway 191. According to court documents, Reed had initially parked his vehicle just east of Highway 191 in order to get a clear view of the buffalo as they crossed the highway.

While Reed was parked in that spot, a Gallatin County law enforcement officer approached the vehicle and advised Reed he was parked in the planned herding route and needed to move his vehicle. Reed complied but was cited.

A federal judge dismissed some of Reed’s claims on summary judgment and granted judgment as a matter of law for defendants on the remaining claims after Reed presented evidence at trial. Reed appealed those decisions, as well as the exclusion of Reed’s expert witness and denial of his motion to amend the complaint. Defendants cross-appealed the judge’s denial of attorney fees.

In a ruling issued Monday, the Ninth Circuit panel said it could not conclude that as a matter of law that a reasonably prudent officer in defendant Deputy Lieurance’s situation would have had probable cause to believe that Reed obstructed the bison herding operation. Instead, the circuit judges determined the trial court “improperly invaded the province of the jury” by resolving factual disputes material to the question of probable cause.

The panel also found defendants were not entitled to summary judgment on Reed’s unlawful seizure claim.

Additionally, the panel reversed the trial court’s sua sponte dismissal of Reed’s failure-to-train claim on the grounds that the judge did not first provide Reed with notice and an opportunity to respond before dismissing the claim. The panel also sided with Reed by finding the trial court “abused its discretion” by excluding the testimony of Reed’s police-practices expert as it related to the failure-to-train claim.

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

The panel determined that it lacked jurisdiction to review the trial court’s denial without prejudice of defendants’ motion for attorney fees and therefore dismissed defendants’ cross-appeal from that order.

As for the grant of summary judgment for defendants on Reed’s claim of unreasonable seizure in violation of the Fourth Amendment and its corollary in the Montana Constitution, the panel said probable cause likely did not exist for the officer to cite Reed.

The panel said probable cause exists when the facts and circumstances within an officer’s knowledge are sufficient for a “reasonably prudent person to believe that the suspect has committed a crime. The analysis involves both facts and law. The facts are those that were known to the officer at the time of the arrest. The law is the criminal statute to which those facts apply.”

Montana’s right to privacy laws guarantees far greater protection than the U.S. Constitution’s Fourth Amendment, the panel said.

Under Montana law, if an officer makes an arrest without probable cause, he or she may be entitled to qualified immunity as long as it is reasonably arguable that there was probable cause for the arrest.

The trial court ruled Lieurance had probable cause to arrest and cite Reed for the obstruction. But in City of Kalispell v. Cameron, the Montana Supreme Court reversed a conviction for obstruction when the defendant had merely failed to follow an officer’s instructions. The court in that case explained that “an individual obstructing a peace officer must engage in conduct under circumstances that make him or her aware that it is highly probable that such conduct will impede the performance of a peace officer’s lawful duty.”

Portions of Reed’s case that remain have been remanded to federal court, and the Ninth Circuit panel ordered the assignment of a new judge.

Rebecca Kay Smith of Missoula, Montana, represented plaintiff Reed. Steven Robert Milch of Billings, Montana, argued the case for defendants.

Circuit Judges Alex Kozinski and William Fletcher joined the opinion by Chief District Judge John R. Tunheim, sitting by designation from the District of Minnesota.


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