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KESSLER v. BAROWSKY1/29/1997
This is a wrongful death case arising out of an arrest. We conclude that the trial court incorrectly granted summary judgment dismissing claims for negligent planning and execution of the arrest, and for negligent supervision, and dismissing civil rights claims against state law enforcement officers as individuals. We uphold the trial court's summary judgment dismissing the civil rights claims against the state, the county, and the sheriff, and against the state officers in their official capacities.
I.
THE BACKGROUND AND PRIOR PROCEEDINGS
Bobbie Kessler (Bobbie) worked as a reserve deputy for the Payette County sheriff
(the sheriff). Following allegations that Bobbie had sexually assaulted his daughter, the county prosecuting attorney (the prosecutor), contacted the sheriff's office and the Idaho state police crisis response team (CRT). Because Bobbie was employed by the sheriff as a reserve deputy, the prosecutor decided that it would be better procedure for CRT to arrest Bobbie.
Bobbie had extensive martial arts training and had military experience as a member of the special forces. The prosecutor testified that Bobbie's son and daughter told him that Bobbie was dangerous, always carried weapons, and would not be arrested peacefully. The prosecutor also testified that Bobbie's son and daughter told him that Bobbie would kill them if he were arrested. Bobbie's son and daughter deny making this statement. Bobbie's son also denies telling the prosecutor that Bobbie would kill anyone who tried to arrest him.
The prosecutor and a deputy sheriff (the deputy) met with two CRT officers (officers 1 and 2) on December 13, 1992. Officers 1 and 2 later testified that the deputy told them that Bobbie was a dangerous individual, would resist arrest, and usually carried weapons. They said that the deputy gave them a "Rambo" image of Bobbie. Officers 1 and 2 testified that the deputy and the prosecutor took an active role in arranging the arrest. Officer 2 filled out the CRT operation form, stating under the heading "current state of mind," that Bobbie "will not be taken alive — will shoot it out if he had to — will go after whoever causes his arrest — will not live in cage." Officer 2 testified that this information was provided by the deputy.
On the morning of December 14, 1992, CRT met to plan the arrest and adopted the deputy's suggestion of calling Bobbie to work at the sheriff's office. The use of the sheriff's office was approved by the sheriff. CRT decided to arrest Bobbie in the hallway and reception area because the doors would automatically lock behind him.
A CRT captain (the captain) called the state penitentiary to inquire about methods of incapacitating a person. An officer at the penitentiary recommended "Cap-stun," a cayenne pepper spray. Officer 2 and another CRT officer (officer 3) went to the penitentiary to get additional training and to pick up some Cap-stun. At the penitentiary, officers 2 and 3 were shown films on the effects of Cap-stun, and sprayed a short burst into a shower stall.
CRT's plan for Bobbie's arrest (the plan) called for CRT to confront Bobbie in the locked hallway of the sheriff's office, inform him of the arrest, and immediately spray him with Cap-stun. CRT decided that after Bobbie was incapacitated, he could be taken into custody peacefully. The plan provided no alternative in the event the Cap-stun did not incapacitate Bobbie.
CRT met at 6:00 p.m on the day of the planned arrest. There is conflicting testimony concerning what was said at this meeting. The deputy testified that Bobbie's son told the group that Bobbie would "probably
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