Nordlund v. Eubank et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DAVID C. NORDLUND,
Plaintiff,
vs.
DOMINICK EUBANK, et al.,
Defendants.
Case No. 3:20-cv-00085-JMK
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Before 	the 	Court 	at 	Docket 	38 	is 	Defendants’ 	Motion 	for 	Summary
Judgment. 	Plaintiff, representing himself, responded at Docket 41 with “Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgement [and] Counter Motion for
Summary Judgement.”1 	Defendants replied at Docket 44. 	For the reasons stated below,
Defendants’ Motion is GRANTED.
1 Cross-motions for summary judgment must be filed separately per Local Rule 5.1(f)(2),
and Plaintiff appears to allege a factual dispute that he views as material. 	See Docket 41 at 1
(“[D]efendant’s version of the facts omit key pieces of information, of which the defendants knew
or reasonably should have known. 	Therefore, plaintiff disputes what the defendant’s claim as
undisputed.”). As such, the Court does not view Plaintiff’s Opposition as a separate cross-motion
for summary judgment. However, even if Plaintiff had made a proper cross-motion, the Court’s
reasoning and conclusion would remain unchanged.
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I. 	BACKGROUND
On or about April 17, 2019, Anchorage Police Department (“APD”) officers
arrived at 736 East 11th Avenue to investigate a trespass call.2 	The officers, including
Defendants Eubank and Smith, approached Mr. Nordlund. 	Mr. Nordlund explained that
he was at the property waiting for a friend. When asked his address, Mr. Nordlund replied
that he lived at 2582 Talkeetna Spur Road, Talkeetna, Alaska.3 The officers were advised
by dispatch that he was a registered sex offender with his address listed as 2823 East Tudor
Road, Anchorage, Alaska.4 	The video recording taken from Officer Eubank’s vehicle
shows that Mr. Nordlund said he had been living at that address “off and on” since June or
July 2018 and moved between Talkeetna and Anchorage for work.5 Mr. Nordlund claims
that he explained to the officers that he had been into the probation office earlier that day,
and “it was decided by him and his probation officer that he would return to Talkeetna
from Anchorage that day. At that visit that day plaintiff moved back to Talkeetna.”6
Following 	this 	conversation, 	Officers 	Eubank 	and 	Smith 	arrested
Mr. Nordlund 	for 	Failure to 	Register as 	a Sex 	Offender pursuant 	to 	Alaska Stat.
§ 12.63.010.7 	Mr. Nordlund was then transported to Anchorage Correctional Complex
(“ACC”) for a bail hearing.
2 Docket 41 at 2; Docket 39 at 2.
3 Docket 41 at 2; Docket 39 at 3.
4 Docket 41 at 2.
5 Docket 41-2 at 4:10–4:30
6 Docket 41 at 2; see also Docket 41-2 at 4:20–4:30. Defendants appear to dispute that
Mr. Nordlund told Officer Eubank that he had seen his probation officer, but they conclude that
this fact is immaterial to the determination of probable cause. See Docket 44 at 2. For the purposes
of summary judgment, the Court credits Mr. Nordlund’s version of events as true.
7 Docket 41 at 3.
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As Mr. Nordlund was being transported to ACC, Officer Eubank called
Palmer Probation and, according to Mr. Nordlund, was advised that “[Mr. Nordlund] had
been in the office that day and in compliance with [his] conditions.”8 	Defendants allege
that the probation officer only indicated to Officer Eubank that Mr. Nordlund “must of”
put the Talkeetna address on his forms when he checked in with his probation officer.9 For
the purposes of summary judgment, the Court credits Mr. Nordlund’s version of events as
true.
The magistrate set bail at $1,000 appearance bond and required Mr. Nordlund
to register his new address before release from ACC.10 As he was being booked into ACC,
small baggies containing a substance consistent with methamphetamine were found on his
person.11 Mr. Nordlund was charged with Misconduct Involving a Controlled Substance,
and his bail was adjusted.12 	Mr. Nordlund was held at ACC for ten days before posting
bail.13 The State declined to pursue any charges against Mr. Nordlund.14
On August 31, 2020, Mr. Nordlund, representing himself, filed an Amended
Complaint 	under 	42 	U.S.C. 	§ 	1983 	alleging 	that 	Defendants 	violated 	his 	Fourth
Amendment right because they arrested him without probable cause.15
8 Docket 15 at 4; Docket 41 at 5.
9 Docket 41 at 3; Docket 41-1 at 3.
10 Docket 39 at 3.
11 Id. at 4; Docket 41-1 at 3.
12 Id.
13 Docket 15 at 4.
14 Id. at 5.
15 Id.
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Defendants Richwine and Burns also responded to 736 East 11th Avenue,
but the parties dispute their role in Mr. Nordlund’s arrest.16 	Mr. Nordlund asserts that
Officer Richwine had driven Officer Smith to the scene and was “directly training”
Smith.17 	He asserts that Sergeant Burns was “on scene and directly in control of all
officers’ actions.”18 	Defendants assert that neither observed nor participated in Mr.
Nordlund’s arrest.19
II. 	LEGAL STANDARD
The Court will grant summary judgment if the moving party “shows that
there is no genuine dispute as to any material fact and the movant is entitled to a judgment
as a matter of law.”20 A factual dispute is “material” if it could affect the outcome of the
suit under the governing law.21 	Where there are disputed facts, the Court will adopt the
version of facts presented by the nonmoving party (here, Mr. Nordlund) and draw all
reasonable inferences in his favor.22
If the moving party has proven that there are no disputed material facts, it
must then show that it is entitled to a judgment as a matter of law. 	This means that the
16 See Docket 41 at 3–4; Docket 39 at 3. 	This is not material to the Court’s decision
because there was probable cause to arrest Mr. Nordlund regardless of Officer Richwine’s and
Sergeant Burns’s conduct or positions.
17 Docket 41 at 4.
18 Id.
19 Docket 39 at 3.
20 Fed. R. Civ. P. 56(a).
21 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
22 Moldex-Metric, Inc. v. McKeon Prods., Inc., 891 F.3d 878, 881 (9th Cir. 2018) (citing
Anderson, 477 U.S. at 255).
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nonmoving party failed to show an essential element of a claim on which he has the burden
of proof.23
III. 	DISCUSSION
“Qualified immunity shields government actors from civil liability under
U.S.C. 42 § 1983 if their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”24 	To determine
whether Defendants are immune from suit, the Court will consider (1) whether Defendants’
conduct violated a constitutional right, and, if so, (2) whether that right was clearly
established at the time of the event in question.25 “In other words, existing law must have
placed the constitutionality of the officer’s conduct beyond debate.”26
Mr. Nordlund asserts that Defendants violated his Fourth Amendment rights
because Officers Smith and Eubank arrested him without probable cause.27 	Taking
Mr. Nordlund’s version of the events as true, the Court concludes that the Officers had
probable cause to arrest him under Alaska Stat. § 12.63.010, and therefore, did not violate
his constitutional rights.
A. 	The Officers had Probable Cause to Arrest Mr. Nordlund
Probable cause exists if, under the totality of the circumstances known to the
arresting officer, “a prudent person could have concluded that there was a fair probability
23 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
24 Castro v. City of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016) (internal quotations
omitted); see also Anderson v. Creighton, 483 U.S. 635, 639 (1987).
25 District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).
26 Id. (internal quotations omitted).
27 See Wesby, 138 S. Ct. at 586; see also Alaska Stat. § 12.25.030(b). Mr. Nordlund only
challenges the search conducted at ACC insofar as it relates to his arrest on April 17, 2019.
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that [the arrestee] had committed a crime.”28 Whether probable cause exists is “not a high
bar,” and requires “only a probability or substantial chance of criminal activity, not an
actual showing of such activity.”29 	The determination is based on the information the
officer had at the time of the arrest, and the Court does not consider additional facts that
became known to the officer after the arrest was made.30 	This is an objective standard,
meaning that the Court considers whether probable cause existed without considering what
the Officers were subjectively thinking or intending at the time of the arrest.31
Here, it is undisputed that Mr. Nordlund is a convicted sex offender who was
required to register and update his address under Alaska Stat. § 12.63.010. 	This statute
requires, in relevant part, that Mr. Nordlund shall:
provide written notice of [a change in address] by the next
working day following the change to the Alaska state trooper
post or municipal police department located nearest to the
residence . . .32
. . . .
. . . annually, during the term of a duty to register under
AS 12.63.020, on a date set by the department at the time of
the sex offender’s or child kidnapper’s initial registration,
provide written verification to the department, in the manner
required by the department, of the sex offender’s or child
kidnapper’s 	address 	and 	notice 	of 	any 	changes 	to 	the
information previously provided under (b)(1) of this section.33
28 John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008).
29 Wesby, 138 S. Ct. at 586.
30 City of El Monte, 515 F.3d at 940.
31 Id. (citing United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)).
32 Alaska Stat. § 12.63.010(c).
33 Alaska Stat. § 112.63.010(d)(1).
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Mr. Nordlund admits that he told Officers Eubank and Smith that he lived at a different
address than the address he was registered under.34 	Mr. Nordlund said that he lived in
Talkeetna “off and on” since June 2018,35 and he does not dispute that as of April 16, 2019,
his registered address was in Anchorage.36 	This discrepancy creates a “fair probability”
that Mr. Nordlund failed to update his address as required by Alaska Stat. § 12.63.010.37
Mr. Nordlund alleges that “it was decided by him and his probation officer that he would
return to Talkeetna from Anchorage that day,” and as such, he had until the next business
day to formally update his address.38 However, Mr. Nordlund told Officer Eubank that his
home was the Talkeetna address and that he lived there “on and off” since June 2018, which
contradicts his later statement to Officer Eubank that he moved earlier that day.39 Given
the totality of the circumstances, a reasonable officer could have determined he was not in
compliance with the reporting requirements of Alaska Stat. § 	12.63.010. 	As such, the
arrest did not violate Mr. Nordlund’s constitutional rights.
Mr. Nordlund appears to argue that probable cause did not exist because the
State dropped its charges against him. Assuming Mr. Nordlund was ultimately innocent,
probable cause still existed at the time of his arrest because it does not require an actual
showing of criminal activity, only a probability that criminal activity had occurred.40
34 Docket 15 at 2.
35 Docket 41-2 at 4:10–4:31, 12:45–13:20,14:04–14:20, 14:55–15:00.
36 Docket 15 at 2.
37 See City of El Monte, 515 F.3d at 940.
38 See Docket 41 at 2; Alaska Stat. § 12.63.010(c).
39 Docket 41-2 at 4:10–4:31, 12:45–13:20, 14:04–14:20, 14:55–15:00.
40 See Wesby, 138 S. Ct. at 586.
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Further, probable cause still exists when an officer makes an erroneous arrest based on a
reasonable mistake of fact.41
B. 	The Officers Were Not Required to Investigate or Believe Mr. Nordlund’s
Explanation Prior to Arrest
Mr. Nordlund argues that he provided the officers with a valid explanation
of 	his 	innocence, 	which 	the 	officers 	did 	not 	investigate 	prior 	to 	arresting 	him.
Mr. Nordlund states that he explained to Officer Eubank that he saw his probation officer
earlier that day and the two determined that he would move to Talkeetna, and, as such, he
had until the following day to update his address under the statute.42 Indeed, Mr. Nordlund
alleges that Palmer Probation verified his explanation after the arrest.43 Probable cause did
not exist, he argues, because “a reasonable, prudent person would have contacted the Office
of Probation” and verified his explanation before making the arrest.44
In support of this argument, Mr. Nordlund cites to caselaw stating that “the
failure to make a further inquiry when a reasonable person would have done so may be
evidence of lack of probable cause.”45 	It is certainly true that an officer may take an
arrestee’s explanation of events into account when determining probable cause. However,
simply providing an explanation of innocence does not, on its own, negate probable cause
41 Heien v. North Carolina, 574 U.S. 54, 61 (2014); see also City of El Monte, 515 F.3d at
940–41 (“it is essential to avoid hindsight analysis [of probable cause], i.e., to consider additional
facts that became known only after the arrest was made).
42 Docket 15 at 2.
43 Id. at 5.
44 Id. at 4.
45 Colon v. City of New York, 455 N.E.2d 1248 (N.Y. 1983).
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that would otherwise exist.46 	Once probable cause is established, a police officer is not
constitutionally required to “investigate independently every claim of innocence.”47 Law
enforcement are not required to accept a suspect’s story as true, and even a plausible
explanation does not “in any sense require the officer to forego arrest pending further
investigation if the facts as initially discovered provide probable cause.”48
For example, in Rohde v. City of Roseburg, probable cause existed for an
arrest even through the arrestee (Mr. Rohde) protested his innocence to the officers and
offered a reasonable explanation for the allegedly illegal conduct.49 Only after the arrest
did the officers verify Mr. Rohde’s explanation and subsequently release him.50 The Ninth
Circuit found that Mr. Rohde’s constitutional rights were not violated because probable
cause existed for the arrest, regardless of his ultimately truthful explanation of events.51 In
sum, “probable cause is by definition a standard that hinges on probability rather than
certainty, so a showing of probable cause need not rule out other explanations that are
merely possible.”52
46 Baker v. McCollan, 443 US 137, 145–46 (1979) (explaining that once probable cause is
established, a law enforcement officer is not “required by the Constitution to investigate
independently every claim of innocence, whether the claim is based on mistaken identity or a
defense such as lack of requisite intent.”).
47 Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) (internal citation and quotation
marks omitted).
48 Spalsbury v. Sisson, 250 F. App’x 238, 246 (10th Cir. 2007) (quoting Criss v. City of
Kent, 867 F.2d 259, 263 (6th Cir. 1988)).
49 Rohde v. City of Roseburg, 137 F.3d 1142, 1143 (9th Cir. 1998).
50 Id.
51 Id. at 1144.
52 Yi v. Yang, 282 P.3d 340, 346–47 (Alaska 2012) (holding that arrestee’s alternative
explanation of justified behavior did nothing to diminish the existence of probable cause).
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The Court acknowledges that probable cause does not exist when “minimal
further investigation” would have exonerated the suspect.53 	However, this only includes
investigating basic evidence that is readily available at the scene, such as briefly
interviewing witnesses who are physically present or watching available surveillance
footage.54 Here, Mr. Nordlund did not present any evidence to Officer Eubank besides his
own narrative, which was not conclusive and would require more than “minimal”
investigation to corroborate.55 	As the Sixth Circuit explained, the Constitution does not
require an officer “to investigate independently every claim of innocence. . . . To hold
otherwise would allow every suspect, guilty or innocent, to avoid arrest simply by claiming
‘it wasn’t me.’”56
C. 	Officer Eubank Did Not Commit a Mistake of Law
Last, Mr. Nordlund argues that Officer Eubank did not accurately understand
the change of residence requirements under Alaska Stat. § 12.63.010. 	In support,
Mr. Nordlund cites to a thirty second portion of the conversation between Officer Eubank
and 	the 	probation 	office.57 	This 	exchange 	does 	not 	show 	that 	Officer 	Eubank
misunderstood 	the 	statute’s 	change 	of 	address 	requirements 	under 	Alaska 	Stat.
§ 12.63.010(c). 	In the video, Officer Eubank explains the address discrepancy to the
53 Kuehl v. Burtis, 173 F.3d 646, 650–51 (8th Cir. 1999).
54 Romero v. Fay, 45 F.3d 1472, 1476–77 (10th Cir. 1995) (collecting cases).
55 See id. (holding that officer was not required to interview alibi witness in order to
establish probable cause); Acosta v. Tourner, No. 1:09–CV–01560 AWI GSA, 2010 WL 3431768
(E.D. Cal. Aug. 31, 2020) (officers were not required to visit nearby bar that would have verified
arrestee’s alibi); Criss, 867 F.2d at 263 (officers were not required to investigate statements of
defendant that allegedly stolen property was owned by roommate).
56 Criss, 867 F.2d at 263.
57 Docket 41 at 4 (citing Docket 41-2 at 15:00–15:30).
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probation office, including that “[Mr. Nordlund] says he’s been keeping in touch with his
probation officer and stuff like that, but, like I said, he said he has to register yearly and
has been living at this address since June 2018.”58 	Mr. Nordlund interjects that
Officer Eubank “doesn’t know if he’s just moved up there today or not,” but then goes on
to interject that he had been living in Talkeetna “off and on” since June 2018.59
Officer Eubank then confirms that Mr. Nordlund “was just in there with you guys and
registered? . . . 	Okay, 	and did he have to provide any updated information about
[indistinguishable]?”60 	Overall, 	this 	shows 	that 	Officer 	Eubank 	had 	an 	accurate
understanding of the yearly reporting requirements under Alaska Stat. § 12.63.010(d)(1),
and more importantly, that Officer Eubank reasonably understood Mr. Nordlund to be
living in Talkeetna since June 2018 without updating his address in violation of Alaska
Stat. § 12.63.010(c).
Because 	Officer 	Eubank 	and 	Smith 	had 	probable 	cause 	to 	arrest
Mr. Nordlund under Alaska Stat. § 12.63.010, they did not violate his Fourth Amendment
rights. As such, the Court does not need to determine whether the Officers are otherwise
entitled to qualified immunity, whether Defendants Richwine and Burns are supervisory
liable, or whether the Anchorage Police Department is liable.
58 Docket 41-2 at 12:42–14:20.
59 Id.
60 Docket 41-2 at 15:11–15:27.
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IV. 	CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment is
GRANTED in its entirety.
IT IS SO ORDERED this 21st day of December, 2021, at Anchorage,
Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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