Lege v. City of Ketchikan, Alaska et al

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALEX LEGE, )
)
Plaintiff, )
)
vs. )
)
CITY OF KETCHIKAN, et al., )
) No. 5:20-cv-006-HRH
Defendants. )
_______________________________________)
O R D E R
Motion for Summary Judgment
Defendants Robert Cheatam, Justin Oster, and the City of Ketchikan move for
summary judgment on all of plaintiff Alex Lege’s claims.1 This motion is opposed.2 Oral
argument has not been requested and is not deemed necessary.
Background
In May of 2019, plaintiff Alex Lege lived in an apartment in Ketchikan, Alaska.
Defendants Robert Cheatam and Justin Oster were officers of the Ketchikan Police
Department. Defendant City of Ketchikan employed Officers Cheatam and Oster.
Defendant Louis Boneta, Jr., resided in an apartment in the same building with plaintiff.
In his amended complaint, plaintiff Alex Lege alleges that in May 2019, officers of
the Ketchikan Police Department (Robert Cheatam and Justin Oster) illegally entered his
1Docket No. 39; Reply at Docket No. 57.
2Docket No. 51.
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home, searched it, and arrested him.3 Lege claims that the officers failed to obtain either
an arrest or a search warrant, failed to obtain permission to enter his house and “valid
permission” to search it, lacked probable cause for the arrest, and that there existed no
exigent circumstances that otherwise permitted a warrantless entry into his home.4 Lege
claims that Officers Oster and Cheatam’s actions constitute violations of 42 U.S.C.
§ 1983 and of the Fourth Amendment of the United States Constitution’s prohibition
against illegal searches and arrests, and constituted common law malicious prosecution
and common law false arrest.5
Both Officers Cheatam and Oster wore body cameras that recorded this encoun-
ter.6 The 911 calls that initiated the police response were also recorded. Collectively, the
recordings and other evidence in the record7 show that on May 7, 2019, Officers
Cheatam and Oster responded to 911 calls placed by Lege and by his neighbor, Louis
3Amended Complaint at 1-2, ¶¶ 2-3, Docket No. 9.
4Id.
5Id. at 13-21, ¶¶ 85-135.
6Defendants have supplied transcripts of the dialogue in these videos as exhibits to
their motion for summary judgment. Lege argues that the transcripts contain errors and
should therefore be excluded. He cites no legal basis for exclusion. Defendants contend
that these transcripts are properly before the court and that to the extent they differ in
certain respects from the video recordings, then the video should control.
Defendants’ argument is persuasive. The court can properly refer to both the
recordings and the transcripts and identify any discrepancies. The recordings control
where any differences exist. See United States v. Rinn, 586 F.2d 113, 118 (9th Cir. 1978)
(district court did not err when it submitted tape recordings and government’s prepared
transcripts thereof to jury, subject to instruction that transcripts were only to be used as an
aid to following the tapes, and tape recordings, not transcripts, controlled).
7The record also contains various police reports, including for events other than the
one here at issue, the complaint and transcripts of trial testimony in the criminal prosecu-
tion initiated as a result of these events, excerpts from Lege’s deposition, the transcript of
Lege’s 911 call, and affidavits from Oster and Cheatam.
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Boneta’s son. Boneta’s son, W.P., reported that his dad was going to “beat up the down-
stairs neighbor.”8 W.P. stated that his father was yelling but that he had no weapons, and
that Lege also had no weapons.9 Yelling is audible in the background.
In a separate call, Lege told the dispatcher that his upstairs neighbor had tried to
get Lege into the neighbor’s apartment.10 Lege stated that Boneta then came out with a
gun and threatened him, which prompted Lege to run back to his own apartment.11 He
also stated that a female, possibly Boneta’s daughter, had invited him into Boneta’s
apartment.12 As Lege speaks with the dispatcher, he stated that he has his workplace
X-Acto knife on him and that Boneta was standing outside his locked apartment, knock-
ing on the door and calling him names.13 During the call, the dispatcher told Lege not to
open his door, as officers were en route.14 At the end of the call, the dispatcher then told
Lege that officers were now there and to stay inside until they contacted him.15 When the
officers arrived and contacted the various witnesses, it became apparent that all of the
8Exhibit 2,W.P. 911 call at 00:15-0:41, Plaintiff’s Opposition to Defendants’
Motion for Summary Judgment, Docket No. 51-2.
9Id. at 0:50-0:59, 1:40-1:43.
10Exhibit 1, Lege 911 call at 0:00-0:19, Plaintiff’s Opposition to Defendants’
Motion for Summary Judgment, Docket No. 51-1.
11Id. at 0:00-0:25, 1:57-2:10.
12Id. at 1:52-1:55.
13Id. at 0:40-1:17.
14Id. at 1:14-1:17.
15Id. at 2:21-2:27.
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adults had consumed substances that evening. Boneta admitted to having consumed
marijuana and alcohol.16 Lege told Officer Oster that he was “a little tipsy.”17
Officer Cheatam, upon arrival at the apartment building, first contacted Boneta
outside his apartment.18 Almost as soon as Officer Cheatam arrived, Boneta started
staring down the stairway and pointing.19 Officer Cheatam yelled, “go back inside,
now.”20 The camera does not show the person to whom the men are speaking, though
this was presumably Lege. Boneta then began his conversation with Officer Cheatam by
mentioning that there was an incident several weeks prior involving Lege, Lege’s
romantic partner, and Boneta where the police had also been called.21 Officer Cheatam
replied that he was aware of that incident.22
Boneta twice described to Officer Cheatam what happened with Lege earlier that
evening: Boneta first provided his statement while on his apartment landing, outside the
arctic entry/mud room that leads to his apartment interior, and once again after they go
inside that outer entryway. Boneta explained that earlier that evening, he exited his
16Exhibit 4, Officer Cheatam body camera footage at 3:20-3:32, Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment, Docket No. 51-4.
17Exhibit 3, Officer Oster body camera footage at 8:58-9:02, Plaintiff’s Opposition
to Defendants’ Motion for Summary Judgment, Docket No. 51-3. See also Exhibit A,
Lege deposition at 9-10, Defendant’s Motion for Summary Judgment, Docket No. 39-1.
18Exhibit 4, Officer Cheatam body camera footage at 1:10, Plaintiff’s Opposition
to Defendants’ Motion for Summary Judgment, Docket No. 51-4.
19Id. at 1:19-1:25.
20Id. at 1:24-1:25.
21Id. at 1:30-1:44.
22Id. at 1:33-1:35.
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bedroom and saw Lege standing in his living room.23 Boneta stated that Lege started
“going off,” that Lege called Boneta a “cop caller” and told Boneta that he was going to
“get [him] for it,” and that Lege asked Boneta if he wanted to “get busy.”24
Boneta explained that he told Lege to get out, but that Lege did not leave.25
Boneta stated that he and his wife had to push Lege out of their apartment, but that Lege
kept trying to turn around and talk to them as they attempted to force him out.26 Boneta
further explained that he then forced Lege off his stoop and down the stairs to Lege’s
apartment.27 He stated that Lege then retrieved a knife and began to swing it at him, tried
to stab him, and that Lege then used the knife to walk him up the stairs.28 Boneta stated
that he was scared of the knife.29 He explained that the knife looked like a kitchen knife,
but not like a buck knife or a hunting knife, and that it was probably the same one that
Lege had used against him in a prior incident.30 He stated that he then asked his son,
W.P., for a baseball bat and told him to call the police.31 Boneta further explained that
23Id. at 1:46-1:55, 3:37-3:50.
24Id. at 1:55-2:15, 5:22-5:28.
25Id. at 8:42-8:48.
26Id. at 8:42-8:54, 9:55-10:05.
27Id. at 2:07-2:17, 4:00-4:22.
28Id. at 2:17-2:30, 4:22-4:26.
29Id. at 7:11-7:20.
30Id. at 6:06-6:30.
31Id. at 4:26-5:01.
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after he got back up to his landing and received the bat, Lege was at that point back up
by his apartment, and that Lege continued to swing his knife.32
Officer Cheatam then interviewed several other individuals who also lived in
Boneta’s apartment. W.P. stated that when Lege came up to the apartment, he knocked
on the door and then walked in on his own.33 He stated that no one had answered the
door for Lege.34 W.P. stated that Lege had said that he needed to talk to Boneta about
playing music.35 Boneta’s wife, Mary, also stated that she pushed Lege out of her apart-
ment after she saw him in her living room, and that she told him to never come up there
again.36 She explained that several weeks prior, Lege had pulled a knife in front of her
grandchildren.37 V.P. stated that she observed Mary and Boneta pushing Lege out of the
apartment.38 V.P. stated that Lege had come in without knocking.39 Boneta further
explained that another female was in an apartment bedroom during the duration of the
encounter.40
32Id. at 5:00-5:10.
33Id. at 7:50-8:08.
34Id. at 8:00-8:08.
35Id. at 8:08-8:25.
36Id. at 10:10-10:47.
37Id. at 10:45-11:07.
38Id. at 11:54-12:00.
39Id. at 12:44-12:55.
40Id. at 12:38-12:44.
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Officer Oster also responded to the incident. Upon arrival at the apartment
building, he contacted Lege at his apartment.41 Lege’s apartment is located on a landing,
up two sets of stairs.42 The footage of Officer Oster walking up to Lege’s apartment is
dark and shaky. There is either an additional stair step up from the landing area to
Lege’s doorway or a gap between the landing and his front door.43 Officer Oster
knocked on the apartment door and waited outside until Lege opened it.44 While stand-
ing outside the doorway, Officer Oster said, “Alex hey, Officer Oster.”45 Lege, standing
inside the apartment, in front of the doorway, stated that he just called.46 Officer Oster
instructed Lege to take a step back, and Lege raised his hands and stepped back from the
doorway, further into his apartment.47 At this point, it appears that Officer Oster took a
step forward and somewhat upwards, but remained in the doorway, outside the
apartment.48 Whereas the video showed Officer Oster previously standing outside the
doorway, the video here shows him moving into the doorway frame, but toward the back
end, hinged corner of the open door.
41Exhibit 3, Officer Oster body camera footage at 0:49-0:55, Plaintiff’s Opposition
to Defendants’ Motion for Summary Judgment, Docket No. 51-3.
42Id. at 0:33-0:46.
43Id. at 0:45-0:47. See also Exhibit A, Lege deposition at 1, Defendant’s Motion
for Summary Judgment, Docket No. 39-1. At his deposition, Lege stated that “there’s no
step in between the stairs and the house itself.” However, this is not clear in the video.
44Id. at 0:50-0:57.
45Id. at 0:55-0:57.
46Id. at 0:56.
47Id. at 0:57-0:58.
48Id.
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Officer Oster then asked Lege if he can come inside.49 Lege said yes, and Officer
Oster appears to step up a bit further as he entered the apartment.50 The full length of the
doorway frame, including the ground, is not visible during this initial encounter.51 It is
therefore difficult to discern where exactly Officer Oster is standing in the doorframe
throughout this initial encounter. However, the video shows that Officer Oster remained
in the doorway area until Lege told him he could come inside. He did not fully step up
and move past the door frame, then the door, and into the apartment, until Lege told
Officer Oster that he could come inside.52
Lege then told Officer Oster that he went up to Boneta’s apartment to ask if he
would mind if he played music.53 Lege explained that a female in a dark colored shirt
opened the second door to the inside of the apartment and took him into a living room.54
Lege stated that this incident is similar to a prior incident involving Boneta: “This is the
same damn thing. The same gun, the same [indiscernible], the same thing as last
time. . . . The same ummm idea of, oh you called the cops, oh you brought a knife.”55
Lege has a difficult time staying on topic, that is, staying focused on the events of the
then current evening.
49Id. at 0:58-0:59.
50Id. at 0:59-1:01.
51Id. at 0:56-1:01.
52Id.
53Id. at 1:01-9:57.
54Id. at 1:25-2:30, 8:48-9:38.
55Id. at 2:54-3:07.
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Lege explained how Boneta and his wife then came out of the bedroom, into the
living room, and an argument ensued.56 Lege stated that he went straight outside.57 At
one point, Officer Oster asks if anyone had said anything about a gun.58 Lege stated that
Boneta had a gun and had mentioned a gun, that he himself only had his work knife, and
told Officer Oster that he could search his apartment.59 The knife must have been in
plain view somewhere in the vicinity, as both Officer Oster and Lege acknowledged its
location, though it is not visible on camera.60 Throughout the interview, Lege was
visibly intoxicated, appeared extremely anxious, and had difficulty staying on subject.
His story is difficult to follow. When Officer Oster asked why Lege called the police,
Lege responded, “because I can’t keep getting called without saying something.”61 Lege
showed Officer Oster a text message from Boneta about “bury[ing] the hatchet,” which
he said that he had received one week prior and ignored.62
After finishing his conversation with Lege, Officer Oster told Lege to hang out
and proceeded to exit the apartment.63 As Officer Oster walked out the front door, Lege
56Id. at 2:28-4:25.
57Id. at 4:19-4:20.
58Id. at 5:58-6:01.
59Id. at 5:58-6:16.
60Id. at 6:10-6:14.
61Id. at 6:50-7:20.
62Id. at 7:30-8:30.
63Id. at 9:56-10:07.
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told him that he could “keep that open” and Officer Oster replied that he will leave it
cracked.64
As Officer Oster began to walk up the stairs to Boneta’s apartment, he told Lege
to go inside.65 Officer Oster then went to Boneta’s apartment, where Boneta and his wife
are speaking with Officer Cheatam.66 Officer Cheatam sent Officer Oster back down-
stairs not long after he arrived; Officer Oster returned to the doorway outside of Lege’s
apartment less than two minutes after he had initially left.67 Lege’s apartment door is still
open, and Oster pushes it slightly further open upon his return.68
Lege is on the phone and sees Officer Oster standing outside.69 Officer Oster
informed Lege that he is waiting for his sergeant.70 Officer Cheatam arrives not long
after and Officer Oster relayed Lege’s story to him.71 He did not tell Officer Cheatam
that Lege had previously given him permission to come inside or to search his apartment.
All the while, Lege was on the phone, standing by his open doorway, and he eventually
begins to lean against his open door.72 Officer Cheatam asked if Lege had said anything
64Id. at 10:05-10:10.
65Id. at 10:17-10:20.
66Id. at 10:30.
67Id. at 11:37-11:51.
68Id. at 11:46-11:52.
69Id. at 11:58-11:59.
70Id. at 12:00-12:02.
71Exhibit 4, Officer Cheatam body camera footage at 14:28-15:20, Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment, Docket No. 51-4.
72Id.
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about a knife, and Officer Oster responds that he did not.73 Officer Cheatam says, “let’s
go in.”74 They then enter the apartment as Lege backs away from the doorway, raises his
hands, and concludes his phone conversation.75 Lege pointed in the direction of his knife
and said, “you understand where my stuff is, go ahead.”76
Officer Oster showed Officer Cheatam a knife near the doorway and explained
that it is the only knife he found.77 The knife is later seized and placed into evidence.78
Officer Cheatam asked Lege if he had any kitchen knives, and Lege motioned toward his
kitchen and told Officer Cheatam that he would prefer that the officers “be ok and be
comfortable,” if they wanted to search him.79 After being Mirandized, Lege tells the
officers that he “thought [he] called [them]” and that he wanted to talk with them.80
Lege again stated that he had gone upstairs and knocked on the door.81 Lege
explains that one or two weeks prior, he had received a text message from Boneta asking
73Id. at 15:15-15:18.
74Id. at 15:18-15:20.
75Id. at 15:20-15:22.
76Id. at 15:17-15:23.
77Exhibit 3, Officer Oster body camera footage at 13:24-13:30, Plaintiff’s Opposi-
tion to Defendants’ Motion for Summary Judgment, Docket No. 51-3.
78Exhibit 6, police reports and charging documents at 8, Plaintiff’s Opposition to
Defendants’ Motion for Summary Judgment, Docket No. 51-6.
79Exhibit 4, Officer Cheatam body camera footage at 15:27-15:36, Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment, Docket No. 51-4.
80Id. at 16:30-16:38, 17:23-17:28.
81Id. at 19:23-19:37.
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if they could “bury the hatchet” but that he had ignored it.82 Lege showed Officer
Cheatam the message.83 Lege again stated that Boneta had previously told him, weeks
prior, that he could just come inside if Boneta was playing his music too loud.84 As
Officer Cheatam attempts to interview Lege, Lege told him that he would prefer if they
just took him then.85 Officer Cheatam then handcuffs Lege and informs him that he was
under arrest for third-degree assault and first-degree criminal trespass.86 Officer Cheatam
then walks into the kitchen, spends less than thirty seconds looking around, and walks
out.87
Based upon the above-described incident, Lege commenced this lawsuit against
the defendants, Officers Cheatam and Oster and the City of Ketchikan, based on alleged
violations of 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitu-
tion.88 In his “first claim,” plaintiff alleges that Officers Cheatam and Oster, acting in
their individual capacities, made an unlawful, warrantless arrest of plaintiff based upon
the officers’ non-consensual entry into plaintiff’s home.89 Lege’s “second claim,” also
against both officers in their individual capacities, alleges that the officers unlawfully
entered his home without permission and without a warrant for purposes of a search of his
82Id. at 17:40-17:46, 18:36-19:20.
83Id. at 18:50-19:17.
84Id. at 19:55-20:10.
85Id. at 21:20-21:23.
86Id. at 21:22-21:30.
87Id. at 21:51-22:10.
88Docket Nos. 1 (Complaint) and 9 (Amended Complaint).
89Amended Complaint at 13-14, ¶¶ 85-92, Docket No. 9.
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apartment.90 Lege’s “third claim,” against the City of Ketchikan, alleges that the City
operated a police department which had promulgated a policy or a custom and practice
that provided inadequate training to police officers as regards their obligation to make
arrests only upon probable cause, and to refrain from entering private residences for pur-
poses of an arrest without first having either a warrant or the consent of the homeowner
based upon Monnell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).91 Lege’s “fourth
claim,” against Officers Cheatam and Oster in their individual capacities, alleges common
law false arrest.92 Lege’s “fifth claim” alleges that Boneta and Officer Cheatam in his
individual capacity committed the common law offense of malicious prosecution.93
Lege’s “sixth claim” is against defendant Boneta, who has been defaulted.94 Defendant
Boneta is not a party to the motion for summary judgment.
In answering, and in reliance upon the video recordings of the events, defendants
Officer Cheatam, Officer Oster, and the Ketchikan Police Department largely deny
Lege’s characterization of the events in question, as set forth in his amended complaint.95
In answering, defendants also raise several affirmative defenses: absolute immunity,
90Id. at 14-16, ¶¶ 93-101.
91Id. at 16-17, ¶¶ 102-111.
92Id. at 17-18, ¶¶ 112-115.
93Id. at 18-21, ¶¶ 116-135.
94Docket No. 23.
95See Answer at 3, ¶ 20, Docket No. 22.
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qualified immunity, and consent to entry into Lege’s apartment.96 As for the knife seized
by the police officers, they contend that Lege pointed them to the knife.97
At his deposition, Lege initially stated that Officer Oster did not ask permission to
enter his apartment until “he had already firmly planted both feet inside [his] residence.”98
However, later in the deposition Lege stated that Officer Oster was just “mid-stride” and
that he now could not “recall saying firmly planted inside [his] apartment.”99 Addition-
ally, both Officers Cheatam and Oster submitted affidavits in the course of this case.
Officer Oster averred that he has no malice toward Lege and that he did not act out of
malice.100 Officer Cheatam averred that he also has no malice toward Lege and that he
did not act of malice.101
Defendants Cheatam, Oster, and the City of Ketchikan now move for summary
judgment on all of Lege’s claims.102
Discussion
Under Rule 56(a), Federal Rules of Civil Procedure, the court grants summary
judgment to a moving party if that party “shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” The moving
96Id. at 15, ¶¶ 1-3.
97Id. at 15, ¶ 3.
98Exhibit A, Lege deposition at 3, Defendants’ Motion for Summary Judgment,
Docket No. 39-1.
99Id. at 12.
100Exhibit D, Officer Oster affidavit at 2, ¶ 8, Defendants’ Motion for Summary
Judgment, Docket No. 39-4.
101Exhibit G, Officer Cheatam affidavit at 2, ¶ 6, Defendants’ Motion for Summary
Judgment, Docket No. 39-7.
102Docket No. 39.
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party bears the initial burden to show that there exist no genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party satisfies this
initial burden, then the opposing party must set forth specific facts showing that there
exists a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). The opposing party cannot rely on just allegations or denials in the
pleadings. Id. at 248. A moving party is entitled to judgment as a matter of law when the
nonmoving party fails to make a sufficient showing of an essential element of the party’s
case and for which that party bears the burden of proof. Celotex Corp, 477 U.S. at 323.
The existence of some factual dispute between the parties will not preclude entry
of summary judgment. Anderson, 477 U.S. at 247-48. The requirement is that there
exists no genuine issue of material fact. Id. Only disputes about facts that might affect
the outcome of the suit may properly preclude entry of summary judgment. Id. at 248. A
dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. If there exists a genuine dispute as
to the facts at issue, the court must view such facts in the light most favorable to the
nonmoving party. Scott v. Harris, 550 U.S. 372, 380 (2007).
The Fourth Amendment of the United States Constitution, made applicable to the
states through the Fourteenth Amendment, proscribes “unreasonable searches and
seizures.” Police cannot make a warrantless and non-consensual entry into a suspect’s
home in order to make a routine felony arrest, even if probable cause exists. Payton v.
New York, 445 U.S. 573, 576, 586-88 (1980). While a search incident to arrest is proper
under the Fourth Amendment, the scope of such a search is limited to the person of the
arrestee and the area within that person’s immediate control, even if the arrest occurs in
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the arrestee’s home. Chimel v. California, 395 U.S. 752, 762-63, 768 (1969). Such a
search is not a license to search any room other than that in which the arrest occurs. Id.
Section 1983 of Title 42, United States Code, provides that “[e]very person who,
under color of any statute, ordinance, regulation, custom, or usage, of any State or Terri-
tory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured. . . .” To state a Section 1983 claim, a plaintiff must show the follow-
ing: “(1) that a right secured by the Constitution or laws of the United States was
violated, and (2) that the alleged violation was committed by a person acting under the
color of State law.” Bluel v. Cottle, No. 3:17-cv-0116-HRH, 2019 WL 302484, at *8
(D. Alaska Jan. 23, 2019) (quoting Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185
(9th Cir. 2006)).
Plaintiff claims that his rights secured by the Constitution of the United States
have been violated. It is undisputed that the alleged violations were committed by
persons acting under color of state law. The questions before the court are whether the
facts as set out above do or do not establish the constitutional violations which are
asserted.
A. Lege’s Claim of Illegal Arrest
Lege claims that his Fourth Amendment rights were violated when the defendant
officers entered his home without permission, a warrant, or exigent circumstances, and
thereafter arrested him.103 It is undisputed that plaintiff was arrested by Officers Oster
and Cheatam in his residence. It is undisputed that the officers did not have a warrant for
103Amended Complaint at 13-14, ¶¶ 85-92, Docket No. 9.
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plaintiff’s arrest, nor is it claimed that there were exigent circumstances justifying a
warrantless arrest. The issue which divides the parties is the question of whether or not
Officers Oster and Cheatam had the requisite consent for their entry into plaintiff’s
apartment.
Defendants contend that they are entitled to summary judgment because Lege
consented to their entry into his home.104 They argue that the body camera footage shows
that Officer Oster waited outside his apartment until Lege told him that he could enter.105
Lege argues that Officer Oster’s body camera footage does not show the precise location
of his body and that certain unspecified details suggest that he was part of the way inside,
or halfway through the doorway with his foot or body “halfway into the dwelling in a
manner that prevented closure of the door,” when he requested entry.106 The parties
disagree as to whether a doorway is a public space; and Lege contends that even if Officer
Oster’s first entry was valid by reason of consent, his and Officer Cheatam’s second entry
was not.107 It is undisputed that Officer Oster, upon arriving at plaintiff’s apartment,
asked Lege, “Can I come in?”108 Lege said, “Yeah, go ahead,” and then proceeded to talk
about his dog.109 Plainly, consent was given. The material question is whether or not
104Defendants’ Motion for Summary Judgment at 6-9, Docket No. 39.
105Id. at 8.
106Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at 10-13,
Docket No. 51.
107Id. at 13.
108Exhibit 3, Officer Oster body camera footage at 0:58-0:59, Plaintiff’s Opposi-
tion to Defendants’ Motion for Summary Judgment, Docket No. 51-3.
109Id. at 0:59-1:01.
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Officer Oster entered plaintiff’s apartment before seeking and receiving plaintiff’s
consent.
The Fourth Amendment applies when one has a reasonable expectation of privacy
in the place invaded. Espinosa v. City and Cnty. of San Francisco, 598 F.3d 528, 533 (9th
Cir. 2010) (citing Minnesota v. Carter, 525 U.S. 83, 88 (1998)). “[T]he Fourth Amend-
ment has drawn a firm line at the entrance to the house. Absent exigent circumstances,
that threshold may not reasonably be crossed without a warrant.” Payton, 445 U.S. at
590. “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside
a home without a warrant are presumptively unreasonable,” unless an exception to the
warrant requirement applies, such as exigency or consent. Id. at 586 (footnote omitted)
(quoting Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 477-78 (1971)); see also
Steagald v. United States, 451 U.S. 204, 214 n.7 (1981) (“[A]bsent exigent circumstances
or consent, an entry into a private dwelling to conduct a search or effect an arrest is
unreasonable without a warrant.”). Here, there were no exigent circumstances justifying a
warrantless arrest. Again, the question is whether consent was obtained by Officer Oster
before he entered plaintiff’s apartment.
A consenting person may delimit or withdraw consent at any time, and a consen-
sual search that exceeds the scope of consent given violates the Fourth Amendment.
United States v. McWeeney, 454 F.3d 1030, 1034 (9th Cir. 2006). Consent to search
cannot be validly qualified by the number of officers allowed to search because once
consent has been obtained, any expectation of privacy is lost and the entry of additional
officers does not further diminish any expectation of privacy. United States v. Rubio,
727 F.2d 786, 797 (9th Cir. 1983).
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When an individual is standing in the doorway of his or her house, that person is
“in a ‘public place’ for purposes of the Fourth Amendment.” United States v. Santana,
427 U.S. 38, 38 (1976). See also United States v. Carrion, 809 F.2d 1120, 1128 (9th Cir.
1987) (no reasonable expectation of privacy at open hotel door); United States v. Botero,
589 F.2d 430, 432 (9th Cir. 1978) (acknowledging that the Santana court considered the
doorway a public place). This is so because this is not an area where one has any expec-
tation of privacy and is as “exposed to public view, speech, hearing, and touch as if [one
is] . . . standing completely outside [one’s] house.” Santana, 427 U.S. at 42. Thus, an
arrest made in this location is an arrest in a public place. Id. See also LaLonde v. Cnty.
of Riverside, 204 F.3d 947, 955 (9th Cir. 2000) (“The Fourth Amendment’s prohibition
on warrantless entry into an individual’s home does not apply to arrest made at the door-
way, because the doorway is considered a public place.”). But once the threshold of the
door is crossed, this prohibition applies. See LaLonde, 204 F.3d at 955.
Here, the defendants claim that the video shows that Officer Oster is front of, or
outside of, the doorway when he requests permission to enter.110 Lege disputes defen-
dants’ view of the video. At his deposition, while he initially claimed that Officer Oster
had both feet inside the apartment when he requested permission to enter, he later
changed that testimony, saying instead that Officer Oster was in “mid-stride” when he
asked permission.111 In his opposition brief, Lege claims that certain details in the video,
110Defendants’ Motion for Summary Judgment at 9, Docket No. 39, and Defen-
dant’s Reply Brief in Support of Motion for Summary Judgment at 4, Docket No. 57.
111Exhibit A, Lege deposition at 3, 12, Defendants’ Motion for Summary
Judgement, Docket No. 39-1.
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which he does not specify, show that he is partway inside at the time he asks permission
to enter.112
The body camera footage exhibits supplied by both parties in support of their
respective positions show that neither party’s characterization of the encounter is entirely
accurate. Rather, the exhibits show that Officer Oster was in the doorway area when he
asked Lege for permission to enter. The exhibits do not show that Lege is inside the
apartment at this point. The exhibits show the location of the top of Officer Oster’s body
in relation to the rest of the doorway. They show that he is standing in the doorway,
which is a public place, at the time he receives consent to enter.
Officer Oster’s location when he sought Lege’s consent is a material fact. There is
some disagreement about his location; but the disagreement on that point is not a “genu-
ine” dispute. No reasonable jury, presented with the exhibits now before the court, would
find that Officer Oster entered Lege’s apartment prior to securing Lege’s consent for the
entry. Officer Oster’s initial entry into Lege’s apartment did not violate the Fourth
Amendment or 42 U.S.C. § 1983.
Plaintiff’s arrest by Officers Cheatam and Oster took place after a second entry
into Lege’s apartment. Their second entry did not violate the Fourth Amendment or
42 U.S.C. § 1983. The body camera footage shows that after Officer Oster interviewed
Lege, he told Lege that he didn’t know yet what is going on and told Lege to “hang out”
as he proceeded to exit the apartment. As he walked out the door, Lege told the officer
that he can “keep that open,” to which Officer Oster replied that he will leave it cracked.
Thus, the footage shows that both parties knew that this investigation was not over and
112Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment at 10-13,
Docket No. 51.
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that Officer Oster was expected to return. The video shows that Lege knew Officer Oster
was just going directly upstairs, to Boneta’s apartment; as Officer Oster walked up the
stairs, he instructed Lege to go inside. The footage shows that Officer Oster then returned
to Lege’s apartment less than two minutes later, and that Lege’s apartment door is still
open. Lege, who was standing inside his apartment near the doorway, saw Officer Oster
standing outside the door. Officer Oster remained outside and informed Lege that he is
waiting for his sergeant. After Officer Cheatam arrived and Officer Oster relayed Lege’s
story to him, Officer Cheatam initiated their entry to Lege’s apartment. The video shows
that they did not request consent for entry. Nor does it show that Lege ever withdrew his
prior consent to entry.
Because Lege had already consented to Officer Oster’s initial entry and because
the video shows that both parties understood that his investigation was ongoing and that
he would return after his initial exit, and because Lege never withdrew this consent,
Officer Oster’s subsequent reentry did not violate the Fourth Amendment. Under United
States v. Rubio, 727 F.2d 786, 797 (9th Cir. 1983), this consent properly permitted
Officer Cheatam’s entry as well.
In consideration of the foregoing, defendants Oster and Cheatam are entitled to
summary judgment on Lege’s first claim.
B. Lege’s Claim of Illegal Search
In his second claim, Lege contends that Officers Oster and Cheatam conducted an
illegal warrantless search of the rooms in his apartment.113 Moving for summary judg-
ment on Lege’s second claim, defendants argue that there was no search for the knife
113Amended Complaint at 14-16, ¶¶ 93-101, Docket No. 9.
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which was seized.114 Based upon the facts which are set out above, the knife which was
seized was in plain sight and Lege directed the officers to it. Moreover, Lege invited the
officers to search his apartment.115 The evidence before the court supports Officers Oster
and Cheatam’s contention that there was no search for the knife which was seized; and, to
the extent the officers looked elsewhere in Lege’s apartment, they had been invited to do
so by Lege and they found nothing further of interest concerning plaintiff’s arrest.
In consideration of the foregoing, defendants Oster and Cheatam are entitled to
summary judgment on Lege’s second claim.
C. Qualified Immunity
In their answer to plaintiff’s amended complaint, Officers Oster and Cheatam
assert the affirmative defense of qualified immunity as to Lege’s first and second
claims.116 Plaintiff Lege does not oppose the officers’ claim of qualified immunity. The
defendants argue that, even if they erred, qualified immunity shields them from suit.117
In this case, neither Officer Oster nor Officer Cheatam violated Lege’s constitu-
tional right to be arrested in his residence only upon probable cause and only upon con-
sent for the entry. As a consequence, the court need not consider the officers’ qualified
immunity defense.
D. Probable Cause for Arrest of Lege
The question of whether or not Officers Oster and Cheatam had probable cause to
arrest Lege is relevant to Lege’s fourth claim of common law false arrest and to Lege’s
114Defendants’ Motion for Summary Judgement at 9, Docket No. 39.
115Exhibit 3, Officer Oster body camera footage at 5:58-6:03, Plaintiff’s Opposi-
tion to Defendants’ Motion for Summary Judgment, Docket No. 51-3.
116Answer at 15, ¶ 2, Docket No. 22.
117Defendants’ Motion for Summary Judgment at 12-15, Docket No. 39.
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fifth claim for malicious prosecution against Officer Cheatam. Probable cause for Lege’s
arrest is also relevant to Lege’s third claim based upon municipal and supervisory liability
under Monnell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).
In their summary judgment motion, defendants argue that Officers Cheatam and
Oster had probable cause to arrest Lege for assault118 and trespass.119 They contend that
they are entitled to summary judgment because there exists no genuine dispute of material
fact on this issue and that, if the officers were mistaken in their probable cause determina-
tions, they are entitled to qualified immunity as to any such mistake.120
Lege argues that Officers Cheatam and Oster did not have probable cause to arrest
him for either assault or trespass because Boneta was not a trustworthy witness.121 As to
the assault claim, Lege argues there was no probable cause for arrest because Boneta was
an untrustworthy witness whose claims regarding the assault and knife were not corrobo-
rated by any other witness.122 As to the trespass claim, Lege argues that there was no
probable cause for arrest because Officer Cheatam knowingly failed to interview an
available witness with exculpatory information.123 Lege does not address whether the
118Throughout their motion, defendants incorrectly state that Lege was arrested for
fourth-degree assault. He is charged with third-degree assault in the complaint attached
to Lege’s opposition as Exhibit 6. Officer Cheatam also informs Lege that he is being
arrested for third-degree assault at minute 21:23-21:26 of his body camera footage,
attached to Lege’s opposition as Exhibit 4.
119Defendants’ Motion for Summary Judgment at 6, 10-12, Docket No. 39.
120Id. at 6, 14.
121Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment at 17-18,
Docket No. 51.
122Id. at 17-24.
123Id. at 24-28.
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officers are entitled to qualified immunity for any mistake as to a probable cause determi-
nation.
“An arrest must be supported by probable cause.” United States v. Del Vizo,
918 F.2d 821, 825 (9th Cir. 1990). “[W]hether a reasonable officer could have believed
probable cause . . . existed to justify a search or arrest is ‘an essentially legal question’ . . .
[to] be determined by the district court.” Act Up!/Portland v. Bagley, 988 F.2d 868, 873
(9th Cir. 1993) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). To determine
whether probable cause existed, the court must therefore inquire into the facts and cir-
cumstances within a police officer’s knowledge. Id.
Police have probable cause to arrest when they possess “reasonably trustworthy
information sufficient to warrant a prudent person in believing that the accused had com-
mitted or was committing an offense.” United States v. Delgadillo-Velasquez, 856 F.2d
1292, 1296 (9th Cir. 1988). “Probable cause ‘is not a high bar.’” District of Columbia v.
Wesby, 138 S. Ct. 577, 586 (2018) (quoting Kaley v. United States, 571 U.S. 320, 338
(2014)). It requires just the “probability or substantial chance of criminal activity, not an
actual showing of such activity.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232
(1983)). “Courts look to the totality of the circumstances known to the officers prior to
any search conducted incident to the arrest.” Del Vizio, 918 F.2d at 825-26 (quoting
United States v. Potter, 895 F.2d 1231, 133-34 (9th Cir. 1990)). “It is essential to avoid
hindsight analysis, i.e., to consider additional facts that became known only after the
arrest was made.” John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008).
When police have communicated amongst themselves, probable cause may rest
upon their “collective knowledge.” Del Vizio, 918 F.2d at 826 (quoting United States v.
Bernard, 623 F.2d 551, 560-61 (9th Cir. 1979)). This includes no requirement regarding
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the content of the communication that one officer must make to another. United States v.
Ramirez, 473 F.3d 1026, 1032, 1037 (9th Cir. 2007) (explaining that under the collective
knowledge doctrine, or fellow officer rule, in order to determine if an investigatory stop,
search, or arrest complied with the Fourth Amendment, the court looks to the collective
knowledge of all of the officers involved in the investigation, even though all the infor-
mation known to all the officers is not communicated to the officer who actually under-
took the challenged action).
This means that when one officer knows facts constituting probable cause suffi-
cient to justify action under an exception to the warrant requirement, and that officer
communicates an appropriate order or request, another officer can conduct a warrantless
search, stop, or arrest without violating the Fourth Amendment. Ramirez, 473 F.3d at
1037.
1. False Arrest for Assault and Trespass
The record shows that Officers Cheatam and Oster arrested Lege for first-degree
criminal trespass under Alaska Statute (AS) § 11.46.320(a)(2) and felony third-degree
assault under AS § 11.41.220(a)(1)(A).124
In Alaska, a person commits the tort of false arrest when that person (1) exercises
restraint on someone’s freedom (2) without proper legal authority. Hazen v. Municipality
of Anchorage, 718 P.2d 456, 461 (Alaska 1986). Under AS § 12.25.030(a)(3), “a peace
officer without a warrant may arrest a person . . . (3) when a felony has in fact been com-
mitted, and the person making the arrest has reasonable cause for believing the person to
have committed it.” This means that “a peace officer, without a warrant, may arrest a
124Exhibit 6, charging documents and police reports at 2-4, Plaintiff’s Opposition
to Defendants’ Motion for Summary Judgment, Docket No. 51-6.
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person for a felony when the officer has probable cause to believe that a felony has been
committed and probable cause to believe that the person committed it.” Shorty v. State,
214 P.3d 374, 379 (Alaska Ct. App. 2009) (quoting McCoy v. State, 491 P.2d 127, 130
(Alaska 1971)). Defendants assert that they are entitled to summary judgment on this
claim, and Lege does not address, much less dispute, this argument.
The totality of circumstances as detailed in the above background material shows
that the officers had probable cause to arrest Lege for both offenses based on the testi-
mony they heard and the physical evidence they observed. They had probable cause to
arrest Lege for trespass under AS § 11.46.320(a)(2) because they heard testimony from
two witnesses, W.P. and V.P., that he had come into their living room without permission.
While Lege told Officer Oster that a female in a dark shirt let him inside the second of the
two doors leading into Boneta’s apartment, this does not negate a finding of probable
cause. Even if a member of Boneta’s family had let Lege into their living room, Boneta
told Officer Cheatam that upon discovering Lege in his apartment, he told him to leave,
that Lege ignored his command, and that he and his wife, Mary, had to push him out of
the apartment. Mary corroborated this testimony when she also told Officer Cheatam that
she pushed Lege out of her apartment, as did V.P., when she told him that she saw her
parents pushing Lege out of the apartment. Lege himself further corroborated their testi-
mony that he overstayed any perceived welcome when he told Offer Oster that he argued
with Boneta and Mary, after they had exited their bedroom. The record shows that the
officers not only heard information indicating that Lege had entered the apartment
without permission, but that he failed to leave after being told to do so, such that he
remained inside unlawfully. The officers had probable cause to believe that Lege had
committed first-degree criminal trespass.
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Likewise, they had probable cause to arrest Lege for assault under AS
§ 11.41.220(a)(1)(A) because Boneta told Officer Cheatam that Lege had threatened him
and tried to stab him with a knife. He explained that he was afraid of the knife. He told
Officer Cheatam that it looked like a kitchen knife, as opposed to a buck or hunting knife,
and that it was probably the same one that Lege had wielded in a prior incident. His story
was again corroborated by Lege’s statements, first when he told the 911 operator that he
had an X-Acto knife on his person, then when he told Officer Oster that he had his work
knife and identified its location in his apartment, and finally when he told Officer
Cheatam that he did have kitchen knives elsewhere in his apartment. Boneta’s story was
further corroborated when Officer Oster showed the knife to Officer Cheatam, who was
then near the exterior doorway. Even if Boneta himself is not the most credible witness,
his story was corroborated by Lege’s admission to having a knife and by the officers’ sub-
sequent discovery of a knife, even if the knife seized did not exactly match the description
Boneta provided.
While evidence contradicting just part of a witness’ allegations undermines the
witness’ reliability and can defeat probable cause, the disparity between Boneta’s descrip-
tion of Lege’s knife and that which the officers later seized does not negate probable
cause, especially given that Lege admitted to having kitchen knives, which would have
more closely matched Boneta’s description but which the officers did not seize, and given
that Boneta also suggested that the knife might have been the same as one that Lege had
wielded in a prior incident. This constitutes sufficient evidence from which the officers
could have concluded that there was a reasonable probability that Lege had assaulted
Boneta with a knife.
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The officers had probable cause to believe that Lege had committed both first-
degree trespass and third-degree assault. Because the officers had probable cause to
believe that Lege had committed third-degree assault, a felony under AS § 11.41.220(e),
they had proper legal authority to effect Lege’s arrest under AS § 12.25.030(a)(3) and
Shorty, 214 P.3d at 379. Defendants Officers Cheatam and Oster are entitled to summary
judgment on plaintiff’s fourth claim of false arrest.
2. Malicious Prosecution
Malicious prosecution is comprised of the following elements: (1) malice,
(2) want of probable cause, and (3) termination of the proceedings in favor of the plain-
tiff. Hazen, 718 P.2d at 461. Defendant Cheatam asserts that he is entitled to summary
judgment on this claim, and Lege does not address this argument.125 Regardless, Lege’s
fifth claim for malicious prosecution fails on the merits because Officer Cheatam had
probable cause to arrest Lege for both offenses. And Lege has offered no evidence that
Officer Cheatam acted with malice when he charged Lege with either offense. Officer
Cheatam has averred that he has no malice toward Lege and that he did not act out of
malice. The allegations in Lege’s pleadings alone are insufficient to survive a motion for
summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See
also Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982) (“[B]are allegations of malice
should not suffice to subject government officials either to the costs of trial or to the
burdens of broad-reaching discovery.”). Officer Cheatam is entitled to summary judg-
ment on Lege’s fifth (malicious prosecution) claim because Lege has failed to make a
sufficient showing of malice, which is an essential element of Lege’s case and for which
he bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
125Defendants’ Motion for Summary Judgment at 15-16, Docket No. 39.
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3. Third Claim for Relief – Monnell Liability
We return now to Lege’s third claim for relief against the City of Ketchikan, based
upon alleged Monnell liability. For his third claim, Lege alleges that:
Defendant City of Ketchikan, by and through its policy-
makers, has knowingly created policies, practices and cus-
toms, including a failure to provide adequate training to its
police officers, including the individual Defendants, regarding
the police department’s constitutional obligation to arrest an
individual only with probable cause, and to refrain from enter-
ing an individual’s home for the purpose of arrest, without
first having an arrest warrant, consent of the homeowner, or
exigent circumstances. . . .[126]
If, as Lege contends, the City of Ketchikan had policies, practices, or customs
authorizing warrantless searches without consent or arrests without probable cause or
entry into a person’s home for purposes of making an arrest without consent, it is entirely
clear that such alleged policies, practices, or customs were not at play here. Officers
Oster and Cheatam had plaintiff’s consent to seize his work knife and search his apart-
ment. Officers Oster and Cheatam had consent to enter Lege’s apartment. They arrested
him based upon probable cause.
Because there was no Fourth Amendment or 42 U.S.C. § 1983 violation as to
plaintiff’s arrest, there is no Monnell liability as to defendant City of Ketchikan. The
City’s motion for summary judgment is granted as to Lege’s third claim.
E. Assault and Battery Against Boneta
Plaintiff’s fifth claim asserts common law malicious prosecution against defendant
Boneta.127 Plaintiff’s sixth claim asserts common law assault and battery against
126Amended Complaint at 16, ¶ 104, Docket No. 9.
127Id. at 18-21, ¶¶ 116-135.
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defendant Boneta.128 The court has jurisdiction of these state law claims by virtue of
28 U.S.C. § 1367(a) – supplemental jurisdiction. Pursuant to Section 1367(c), the court
may decline to exercise supplemental jurisdiction if “the district court has dismissed all
claims over which it has original jurisdiction.”
As set out above, the court has granted the defendants other than Boneta summary
judgment, which will result in the dismissal of plaintiff’s first through third claims over
which the court has original jurisdiction. Accordingly, the court exercises its discretion to
decline supplemental jurisdiction over plaintiff’s fifth and sixth claims against Boneta.
Conclusion
The motion for summary judgment of defendants Oster, Cheatam, and City of
Ketchikan is granted as to Lege’s first, second, third, fourth, and fifth claims. Lege’s
motion for discovery129 is denied as moot.
The clerk of court shall enter judgment dismissing the first through fifth claims of
plaintiff’s amended complaint with prejudice as to defendants Oster and Cheatam and
defendant City of Ketchikan. The fifth and sixth claims of the plaintiff’s amended
complaint are dismissed without prejudice as to defendant Boneta.
DATED at Anchorage, Alaska, this 16th day of December, 2021.
/s/ H. Russel Holland
United States District Judge
128Id. at 21-22, ¶¶ 136-148.
129Docket No. 32.
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