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Smith v. Conder

United States District Court, E.D. Arkansas, Western Division

December 21, 2016



          Susan Webber Wright UNITED STATES DISTRICT JUDGE

         Emily Smith (“Mrs. Smith”) and Joseph Smith (“Mr. Smith”) bring this action under federal civil rights laws, 42 U.S.C. §§ 1983, 1985, and 1986, charging that the City of Pangburn (“City”), Pangburn police officer John Fenton (“Fenton”), and Arkansas State Trooper Chad Conder (“Conder”) violated their constitutional rights. Plaintiffs sue Fenton and Conder in their individual and official capacities, and they bring supplemental state-law claims for felony battery and violation of the Arkansas Civil Rights Act. Before the Court is a motion for summary judgment by the City and Fenton [ECF Nos. 29, 30, 31], Plaintiffs' response in opposition [ECF Nos. 40, 41, 42, 43], and the movants' reply [ECF No. 45]. After careful consideration, and for reasons that follow, the motion is granted, and all claims against the City and Fenton are dismissed with prejudice. Additionally, pursuant to Federal Rule of Civil Procedure 56(f), [1] the Court gives notice that unless an objection is filed within fourteen (14) days from the entry date of this order, the Court will sua sponte grant summary judgment in favor of Defendant Conder and dismiss this action in its entirety. The jury trial in this matter, scheduled to begin on January 30, 2017, is cancelled and will be reset only if necessary.


         Summary judgment is proper if the evidence, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the defendant is entitled to entry of judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 371, 322 (1986). When a nonmoving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 at 322-23. A factual dispute is genuine if the evidence could cause a reasonable jury to enter a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). “The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law.” Celotex, 477 U.S. at 331.


         Unless otherwise stated, the following facts are undisputed.[2] On January 2, 2012, Mrs. Fed.R.Civ.P. 56(f). Smith, a resident of Pangburn, spent the day in Searcy at friend Leslie Wilson's house, helping Wilson pack for a move. Mrs. Smith consumed beer at Wilson's house.[3] That evening, at approximately 9:00 p.m., Mrs. Smith drove her vehicle back to Pangburn, approximately fifteen miles northwest of Searcy, with Mr. Smith driving behind her in a separate vehicle. At approximately 9:30 p.m., after Mrs. Smith had turned onto Highway 124, she swerved off the road and hit a road sign, which caused damage to the sign and her vehicle. Mrs. Smith then continued home, where she consumed more alcohol and went to bed.

         At approximately 10:30 p.m., Pangburn police officer Fenton received a dispatch call, stating that a witness had observed a white Mercury Mountaineer SUV (the “SUV”) being driven recklessly and striking a sign on Highway 124. According to Fenton's written police report, dispatch services told him that deputies had located a vehicle matching the SUV's description and license number at a particular residence, and Fenton went that location and confirmed the presence of the SUV. Fenton followed instructions to stand by at the residence and await the arrival of an Arkansas State Trooper.

         Arkansas State Trooper Conder received a call at approximately 9:40 p.m., advising him that the driver of a white SUV hit a road sign on Highway 124 and left the scene. Conder also received a call from the Pangburn Chief of Police, who asked him to go to a certain residence where the SUV had been located. When Conder arrived at the scene, Fenton and another Pangburn officer were standing by. Conder observed the SUV in an open garage, he knocked at the door, and Mr. Smith appeared. In response to Conder's questions, Mr. Smith stated that his wife had been in Searcy and had driven the SUV. Conder requested that Mr. Smith come outside and talk, but he declined the invitation and slammed the door shut. A few minutes later, Mrs. Smith came to the door, and she granted Conder's request to step outside and talk to him.

         A dash cam on Conder's patrol car, which faced the Smiths' open garage, recorded the events that transpired after Mrs. Smith stepped outside her residence.[4] Mrs. Smith, in pajamas and a robe, and Conder stood between the front of Conder's patrol car and the open entrance of the garage, which contained the SUV and a truck. Mrs. Smith submitted to a preliminary breathalyser test, which registered .142.

         Next, Conder read Mrs. Smith her Miranda rights, which she stated she understood. Meanwhile, Mr. Smith had exited the house through a door in the garage, which presumably led into the house, and Conder ordered him to go back inside. Conder advised Mr. Smith that if he were needed, Conder would knock on the door and ask him to come out. Mr. Smith responded, “alright, ” and he appeared to go inside.[5] A moment later, Conder stated, “Mr. Smith, ” and Mr. Smith responded, “I'm going back into the house like you told me.”[6]

         Conder then turned to Mrs. Smith and informed her that a witness had observed her driving from Searcy to Pangburn and reported that she was “all over the road” and hit a sign. Mrs. Smith stated that her husband was behind her the entire way home, and Conder asked her to explain what happened. Conder stated:

Here's what I want to do. Listen to me. You can either cooperate with me, and do this the easy way, or you can do this the hard way. I will call your friend, and I will find out how much you had to drink at her house. I will go all the way back. I'm up all night long. I have absolutely nothing to do. We can take this the long way, or we can take this the easy way.[7]

         Mrs. Smith responded that she wanted to take it the “easy way, ” and she recounted that on her way home from Wilson's house, she hit a sign while swerving to miss a dog that had darted in front of her vehicle. Mrs. Smith complained that her SUV was “[expletive]-up” and that she would have to pay for the damage. She also acknowledged that she left the scene after she hit the sign but stated that she didn't know what she had hit until she got home. Smith spoke in a raised voice, she told Conder he was mean and rude, and she accused him of harassing her.

         Conder asked Mrs. Smith to provide Wilson's phone number. She denied knowing the number and stated that it was stored in her phone, which was elsewhere. Mrs. Smith then volunteered: “Yes, I did drink a few beers over there but I was not so drunk that by the time that I drove all the way from Searcy that I turned off the road and hit a sign.”[8] Mrs. Smith stated that she drank more alcohol after she arrived home because she was upset that she had damaged her vehicle. She asked Conder his name, and when he told her, she began laughing in a loud and sarcastic manner, and said, “You remember me don't you?”[9] Conder stated that he hadn't a clue who Mrs. Smith was, and she responded: “I'm sorry I guess I don't know you. I've been home two hours, and now you all want to mess with me. I just want to get this over with as easily and nicely as possible.”[10]

         Conder asked Mrs. Smith about the alcohol she had consumed at Wilson's house, and she stated that she had “approximately four beers.”[11] Mrs. Smith insisted that she was not drunk when she drove home from Searcy. She added that she went to Wilson's house at 3:00 p.m, left at 9:00 p.m., arrived home at 9:30 p.m., and consumed about one-third cup of rum at home. Conder stated that he thought Mrs. Smith was lying to him and that she was drunk when she left Wilson's house.

         After a discussion about Mrs. Smith providing a written statement, and the need to provide a truthful account of what happened, Conder instructed her to retrieve her proof of insurance and vehicle registration from the SUV. Smith responded, “I don't like your tone and manner.”[12] She continued loudly: “You're on my property and my house accusing me of all sorts of shit--I'm telling you the truth, and you're calling me a liar.”[13] Conder again directed Smith to retrieve her proof of insurance and registration, and Smith directed Conder to say “please.” Conder instructed Smith a third time to retrieve documents from the vehicle. Smith responded, “I would like you to be a little bit nicer, ”[14] and she told Conder that he knew who she was from a previous incident and that he was rude.

         Multiple times, Smith disregarded Conder's instructions to retrieve insurance and registration documents, and she continued, in a raised voice, to accuse him of knowing who she was. Conder then walked past Smith, put his flashlight in the bed of the truck parked beside the SUV, and he started walking to the passenger's side of the SUV. Smith moved toward Conder and pushed the front of her body into his, in an apparent effort to stop him from reaching the SUV.

         While Smith was attempting to push Conder, who was much larger than she, Conder grabbed her left elbow and arm. Smith then made a fist with her right hand, and attempted to strike Conder in his chest. Fenton, who had been standing nearby observing, intervened and took Smith's right arm, while Conder held her left. Smith struggled with the officers and tried to pull away, but Fenton and Conder continued to hold her arms, and directed her to the front of a patrol car. Smith then placed her left foot on the front of the patrol car, her body elevated, and she landed face first on the hood of the vehicle. Fenton and Conder continued to hold Smith's arms, and she continued to struggle, while her torso and head rested on the patrol car. Fenton and Conder placed Smith's arms behind her, handcuffed her, and placed her in the back of the patrol car.

         Conder went to the SUV and opened the passenger door, and closed it seconds later, with nothing in his hands. Conder then asked Mr. Smith to step outside and provide him the registration and proof in insurance, and Mr. Smith complied. Conder interviewed Mr. Smith about the day's events, while Fenton and another officer stood by. Among other things, Mr. Smith stated that neither he nor Mrs. Smith realized she had hit a road sign until they arrived home and noticed that the SUV had been damaged. He also stated that Mrs. Smith consumed both beer and rum after she got home. Mr. Smith asked whether his wife could put on regular clothes before she went to jail, and Conder responded, “They'll dress her out down there.”[15]Mrs. Smith can be heard saying: “This is the same [expletive] asshole that pulled me over (inaudible), ” and Mr. Smith stated, “Yeah, I know it. Retaliation, right?”[16]

         Conder transported Mrs. Smith to the White County Jail. En route, Conder passed a damaged road sign on Highway 124, which was readily visible, and he captured the sign on the dash cam recording.[17] Mrs. Smith became extremely talkative during the drive, and she berated Conder for being a mean person and ticketing her a few years earlier, when she drove around a “road closed” sign--an incident that Conder stated he did not remember.[18] Mrs. Smith also complained that she injured her lip when she landed on the hood of the patrol car.[19] Conder then asked Mrs. Smith if she wanted to go to a hospital for medical treatment. Mrs. Smith initially stated, “Sure, ” then said that she didn't need to go to the hospital.[20] During the entire drive to the jail, Conder spoke to Mrs. Smith in a calm manner.

         At the jail, Conder conducted a field sobriety test, he read Mrs. Smith information about her rights and duties regarding a chemical alcohol test, and she signed a related form. Mrs. Smith appears physically well in the video footage, but she complained of a busted lip and an injured knee. Conder again asked Smith whether she wanted medical attention, and she responded: “I want you to say I'm sorry for one time in your life.”[21] Conder asked Mrs. Smith if she understood her rights regarding a certified chemical alcohol test. Mrs. Smith smiled and responded: “I'm really smart, I'm just a smart ass, you know, and I don't like you so I'm going to give you a hard time.”[22]


         Plaintiffs claim that each defendant violated their rights to due process and to be free from illegal search and seizure. Mrs. Smith additionally claims that Conder and Fenton used excessive force against her, committed felony assault in violation of state law, and subjected her to cruel and unusual punishment. Fenton and the City move for summary judgment on all claims against them, asserting that Fenton is entitled to qualified immunity and that the undisputed facts show that there are no genuine issues for trial.

         Qualified Immunity

         Qualified immunity shields government employees acting within the scope of their duties from suit against them in their individual capacity so long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would know.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Determining whether Fenton is entitled to qualified immunity involves a two-step inquiry. The first question is whether, taken in the light most favorable to Plaintiffs, the facts show that Fenton's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). If the answer is no, the inquiry is over because Fenton is entitled to qualified immunity. If the answer is yes, the second question is whether the constitutional right at issue was clearly established. Id. For reason that follow, the Court finds that Fenton is entitled to qualified immunity with respect to each of Plaintiffs' claims asserting a constitutional violation.[23]

         Illegal Search.

         “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . ” U.S. Const. amend. IV. The Fourth Amendment's guarantee against unreasonable search and seizure extends to the curtilage[24] surrounding a home, United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134 (1987), but intrusion into this area is permitted if reasonably necessary to further a legitimate law enforcement purpose. See United States v. Weston, 443 F.3d 661, 666 (8th Cir. 2006). Further, “courts have recognized no Fourth Amendment search occurs when police officers who enter private property restrict their movements to those areas generally made accessible to visitors-such as driveways, walkways, or similar passageways.” United States v. Reed, 733 F.2d 492, 501 (8th Cir. 1984)(citations omitted).

         Here, Fenton committed no Fourth Amendment violation when he was present outside the Smith's home for the purpose of locating a vehicle that was the subject of a reckless driving report. And from that permissible vantage point, he was permitted to look into the open garage to check the SUV's license number. The record is void of any evidence that Fenton took any additional action in the way of a search, ...

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