IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37032
JASON MILLER, a single person, )
)
Plaintiff-Respondent, )
)
v. ) Boise, February 2011 Term
IDAHO STATE PATROL, TROOPER
)
CHRISTOPHER YOUNT, ) 2011 Opinion No. 52
)
Defendants-Appellants, ) Filed: May 18, 2011
)
and ) Stephen W. Kenyon, Clerk
)
JANE DOE YOUNT, BONNER COUNTY, )
BONNER COUNTY SHERIFF’S )
DEPARTMENT, DEPUTY JASON SLINGER )
and JANE DOE SLINGER, husband and wife,
)
and the marital community comprised thereof,
)
Defendants. )
_________________________________________ )
Appeal from the District Court of the First Judicial District of the State of
Idaho, Bonner County. Hon. John T. Mitchell, District Judge.
The decision of the district court is vacated. This case is remanded with
instructions to enter judgment in favor of Appellants. No attorney fees are
awarded. Costs are awarded to Appellants.
Johnson Law Group, Spokane, Washington, for Appellants. Peter J. Johnson
argued.
Phelps & Associates, Spokane, Washington, for Respondent. Douglas D.
Phelps argued.
________________________
W. JONES, Justice
I. NATURE OF THE CASE
Idaho State Trooper Christopher Yount and the Idaho State Police appeal the district
court’s decision not to grant summary judgment in their favor on Jason Miller’s claims under 42
U.S.C. § 1983 and state tort law alleging that Officer Yount unreasonably catheterized him
following an arrest for DUI. 1 Because American search-and-seizure law is undeveloped as to
when an officer may administer an involuntary warrantless catheterization on a suspect, Officer
Yount was entitled to qualified immunity for the § 1983 claim. Further, Yount did not act with
malicious or criminal intent, so he was entitled to immunity from Miller’s tort claims under the
Idaho Tort Claims Act. There is no genuine issue of material fact supporting Miller’s remaining
tort claims.
II. FACTUAL AND PROCEDURAL BACKGROUND
The sparse facts in this case are virtually all undisputed. In May of 2007, a trooper with
the Idaho State Police was driving by a gas station in Priest River, Idaho, when he saw Jason
Miller, Respondent, staggering around as he entered his car. The officer contacted Idaho State
Trooper Christopher Yount, who arrived to see Miller sitting in the driver’s seat of his car.
Yount observed that Miller’s pupils were dilated and requested that he perform some field
sobriety tests, which Miller failed.
Yount put Miller under arrest for DUI, after which Yount discovered scissors in Miller’s
pocket that he used for cleaning a marijuana pipe. Miller also admitted to smoking marijuana
“every day.” Yount took Miller to a hospital in Sandpoint, Idaho, for a urine test. At the
hospital, Miller refused to provide a urine sample, saying “I will not fight you, but I will not give
you a sample voluntarily.” A registered nurse at the hospital then catheterized Miller at Yount’s
request and extracted a urine sample. Afterward, Yount found a pipe in Miller’s shirt pocket
containing methamphetamine residue. Yount also administered a drug-recognition evaluation on
Miller at the jail that indicated Miller was under the influence of marijuana and a central-
nervous-system stimulant. Miller later pled guilty to felony possession of methamphetamine,
possession of drug paraphernalia, and misdemeanor DUI.
There is no indication that Miller struggled while the hospital nurse inserted the catheter.
The record is silent as to how or where the nurse extracted the sample or who was present in the
room. There is nothing in the record to indicate whether the urine sample tested positive for any
controlled substances. It is also unclear why Yount chose to have Miller catheterized rather than
performing a blood draw.
1
This case is improperly captioned. It should read “Idaho State Police.”
2
In April of 2008, Miller filed a complaint in this case seeking damages for a number of
claims against the Idaho State Police (“ISP”) and Yount (collectively “Appellants”). 2 He first
claimed under 42 U.S.C. § 1983 that the involuntary catheterization violated his constitutional
rights. He next asserted tort claims for assault, battery, and negligence, including that the ISP
negligently supervised Yount. Miller also claimed that the ISP would be liable for Yount’s
actions under the doctrine of respondeat superior. Appellants moved for summary judgment on
all of Miller’s state-tort claims under I.R.C.P. 56(c), and separately moved to dismiss Miller’s §
1983 claim under I.R.C.P. 12(b)(6). Miller then filed a cross-motion for summary judgment on
all of his claims.
The district court ruled on all three motions in a memorandum decision, which it later
affirmed in its Memorandum Decision on Appellants’ Motion to Reconsider. It refused to
dismiss Miller’s § 1983 claim, holding that a genuine material fact issue remained as to whether
Yount benefited from qualified immunity. The court held that the law is well-established that the
police may not unreasonably execute a bodily search on a suspect, but also held that it was for
the jury to determine whether it was unreasonable for Yount to catheterize Miller. Upon the
parties’ stipulation, the district court later entered an order dismissing the § 1983 claim against
the ISP and against Yount in his official capacity, leaving only an individual § 1983 claim
against Yount. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 2309–
10 (1989) (“[N]either a State nor its officials acting in their official capacities are ‘persons’ under
§ 1983.”); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037–38 (1978)
(holding that § 1983 does not permit suits against local governments based solely on an
employer-employee relationship).
In addressing Miller’s tort claims, the district court held that a factual dispute exists as to
whether Yount acted “reasonably” for purposes of Miller’s assault, battery, and negligence
claims. The court further held that there was insufficient evidence to determine whether Yount
had acted maliciously or with criminal intent and therefore was not immune from suit under the
Idaho Tort Claims Act (ITCA).
2
The Complaint also named as defendants the other trooper at the scene, Trooper Jason Slinger, as well as Slinger’s
wife, and the Bonner County Sheriff’s Department. Upon the parties’ stipulation, the district court dismissed all
claims against these codefendants. Jane Doe Yount, who is Trooper Yount’s wife, was also named as a defendant.
The parties apparently stipulated to dismiss all the federal-law claims against her, but the court’s order granting the
dismissal does not dispose of any state-law claims. Nonetheless, only Trooper Yount and the ISP filed this
permissive appeal. This Court therefore cannot address any claims that might remain against Jane Doe Yount.
3
After denying Appellants’ motions, the district court granted their request for permissive
appeal under I.A.R. 12. 3 See I.A.R. 12(b) (allowing district courts to grant permission to appeal
from an interlocutory order or judgment). This Court subsequently accepted Appellants’ appeal.
On appeal, Appellants contend that the district court should have ruled that Yount had
qualified immunity under § 1983 as a matter of law, rather than allowing the jury to determine
whether his actions were reasonable. They assert that there was no constitutional violation and
that, if there was, the law regarding forced catheterizations is too unclear to hold Yount liable.
They further argue that Yount is immune from Miller’s state-tort claims because there is no
material issue of fact as to whether he acted maliciously or with criminal intent. Miller counters
that Yount violated the Idaho Code’s provisions that govern searches of DUI suspects,
precluding him from being immune from any of Miller’s claims. Neither party requests attorney
fees on appeal.
III. ISSUES ON APPEAL
1. Whether Yount has qualified immunity from Miller’s claim that he violated the Fourth
Amendment under 42 U.S.C. § 1983.
2. Whether Yount is immune from Miller’s tort claims under the ITCA.
IV. STANDARD OF REVIEW
The district court combined its ruling on Appellants’ motion for summary judgment with
its ruling on their motion to dismiss. In so doing, the court considered an affidavit and police
reports attached to Appellants’ motion for summary judgment. The district court therefore
converted the matter into a ruling on motions for summary judgment. Glaze v. Deffenbaugh, 144
Idaho 829, 831, 172 P.3d 1104, 1106 (2007) (citing I.R.C.P. 12(b)).
Normally, a district judge does not generate an appealable order by denying a motion for
summary judgment. N. Pac. Ins. Co. v. Mai, 130 Idaho 251, 252–53, 939 P.2d 570, 571–72
(1997) (citing I.A.R. 11(a)(1), 12). Because a permissive appeal under I.A.R. 12 from a denial of
a motion for summary judgment leads to such an unusual procedural posture, this Court must
“rule narrowly and address only the precise question that was framed by the motion and
3
Idaho Appellate Rule 12(a) provides:
Permission may be granted by the Supreme Court to appeal from an interlocutory order or
judgment of a district court in a civil or criminal action, or from an interlocutory order of an
administrative agency, which is not otherwise appealable under these rules, but which involves a
controlling question of law as to which there is substantial grounds for difference of opinion and
in which an immediate appeal from the order or decree may materially advance the orderly
resolution of the litigation.
4
answered by the trial court.” Aardema v. U.S. Dairy Sys., Inc., 147 Idaho 785, 789, 215 P.3d
505, 509 (2009) (quoting Winn v. Frasher, 116 Idaho 500, 501, 777 P.2d 722, 723 (1989)).
After this Court accepts a permissive appeal, the case proceeds as if it were an appeal as a matter
of right, unless otherwise ordered by this Court. I.A.R. 12(d).
When reviewing the district court’s ruling on a summary-judgment motion, this Court
applies the same standard used by the district court. Van v. Portneuf Med. Ctr., 147 Idaho 552,
556, 212 P.3d 982, 986 (2009). Summary judgment is appropriate “if the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
I.R.C.P. 56(c). Disputed facts and reasonable inferences are construed in favor of the non-
moving party. Estate of Becker v. Callahan, 140 Idaho 522, 525, 96 P.3d 623, 626 (2004). “If
there is no genuine issue of material fact, only a question of law remains, over which this Court
exercises free review.” Indian Springs LLC v. Indian Springs Land Inv., 147 Idaho 737, 746,
215 P.3d 457, 466 (2009) (quoting Cristo Viene Pentecostal Church v. Paz, 144 Idaho 304, 307,
160 P.3d 743, 746 (2007)).
Cross-motions for summary judgment do not change the applicable standard of review.
McFadden v. Sein, 139 Idaho 921, 923, 88 P.3d 740, 742 (2004) (quoting Intermountain Forest
Mgmt., Inc. v. La. Pac. Corp., 136 Idaho 233, 235, 31 P.3d 921, 923 (2001)). Further, “[t]he fact
that both parties move for summary judgment does not in and of itself establish that there is no
genuine issue of material fact.” Shawver v. Huckleberry Estates, L.L.C., 140 Idaho 354, 360, 93
P.3d 685, 691 (2004).
V. ANALYSIS
A. Yount Is Entitled to Qualified Immunity from Miller’s Claims Under 42 U.S.C. §
1983 Because the Law Regarding Forced Catheterizations Is Unsettled
While the parties do not dispute the facts of this case, the issue of whether forcibly
catheterizing a DUI suspect violates his or her constitutional rights against unreasonable searches
and seizures is a highly fact-dependent inquiry. 4 The slim record and insufficient briefing make
it impossible to precisely define the personal right at stake and to then determine whether that
right had been violated. As a result, even drawing all inferences in Miller’s favor, the law
4
For the sake of brevity, this Opinion will henceforth refer to Miller’s claim as a “Fourth Amendment” claim.
5
governing involuntary warrantless catheterizations is simply too undeveloped to defeat Yount’s
qualified-immunity defense.
1. This Court Declines to Rule on Whether the Forced Catheterization Violated
Miller’s Fourth Amendment Rights
As a general matter, government officials can benefit from qualified immunity in § 1983
suits if they followed a reasonable interpretation of the law. If a government official violates the
claimant’s constitutional rights, qualified immunity “generally turns on the objective
reasonableness of the action assessed in light of the legal rules that were clearly established at the
time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038 (1987).
Thus, courts ruling on a claim for qualified immunity are essentially confronted with two
questions: (1) whether, accepting the plaintiff’s assertions as true, the defendant invaded the
plaintiff’s constitutional rights; and (2) whether the defendant acted reasonably given the state of
American law at the time. For about eight years beginning in 2001, prevailing law required
courts to address the issues in that order as well. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.
2151, 2156 (2001). But see Rosenberger v. Kootenai Cnty. Sheriff’s Dep’t, 140 Idaho 853, 857–
58, 103 P.3d 466, 470–71 (2004) (considering but not deciding the possible underlying
constitutional violation and proceeding to the immunity question instead).
In Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009) (unanimous ruling), the U.S.
Supreme Court held that this “rigid order of battle” no longer applies. Pearson allows appellate
courts to decide for themselves how to handle qualified-immunity defenses, providing a laundry
list of reasons for which a court might not rule on the constitutional question and simply skip to
the qualified-immunity inquiry instead. Id. at ---, 121 S. Ct. at 819–21. There is no test or
threshold for deciding when to forego the constitutional question, but many of the concerns that
justified the U.S. Supreme Court’s decision in Pearson justify deferring a ruling on the Fourth
Amendment issues in this appeal.
Foremost among the reasons for declining to adjudicate the Fourth Amendment question
is the opportunity to avoid ruling on a constitutional issue. The general rule of constitutional
avoidance encourages courts to interpret statutes so as to avoid unnecessary constitutional
questions. E.g. Clark v. Martinez, 543 U.S. 371, 381, 125 S. Ct. 716, 724 (2005); State ex rel
Kempthorne v. Blaine Cnty., 139 Idaho 348, 350, 79 P.3d 707, 709 (2003) (citing Olsen v. J.A.
Freeman Co., 117 Idaho 706, 710, 791 P.2d 1285, 1289 (1990)). This case especially should not
be decided lightly. Prescribing methods the police may use to test for drugs or alcohol in the
6
bloodstream would have a significant impact on law enforcement agencies across the State,
many of which are daily encountering intoxicated drivers.
Subsidiary to the rule of constitutional avoidance is the Court’s interest in ensuring that
its decision is fully informed. First, it is difficult if not impossible to articulate the constitutional
right at stake without knowing the case’s factual details. Pearson, 555 U.S. at 111, 129 S. Ct. at
820. Moreover, as is further explained below, determining whether a bodily intrusion was
unreasonable is a particularly fact-sensitive inquiry. Winston v. Lee, 470 U.S. 753, 760, 105 S.
Ct. 1611, 1616 (1985). Although this case has progressed past the pleading stage, the parties
have submitted hardly any evidence at all. Appellants have only provided police reports
summarizing the events that transpired during Miller’s arrest. Miller, for his part, has presented
literally nothing of evidentiary value—he submitted only a vague unverified complaint and an
indigency affidavit.
Second, there is always a risk of bad decision-making when “the briefing of
constitutional questions is woefully inadequate.” Pearson, 555 U.S. at 111, 129 S. Ct. at 820.
Miller’s brief, in particular, is thoroughly unhelpful. It is just over nine pages long. The first
five of those pages are copied word-for-word from the Appellants’ brief, while the balance is
concerned primarily with whether the police have the statutory authority to carry out involuntary
catheterizations, rather than discussing the constitutional limitations that may govern such
actions.
Cases like this one are what compelled the U.S. Supreme Court to abandon the strict two-
step approach and allow appellate courts to skip the constitutional inquiry:
An appellate court reviewing the denial of the defendant’s claim of immunity
need not consider the correctness of the plaintiff’s version of the facts, nor even
determine whether the plaintiff’s allegations actually state a claim. All it need
determine is a question of law: whether the legal norms allegedly violated by the
defendant were clearly established at the time of the challenged actions.
Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985). For these reasons, the
Court abstains from reaching the Fourth Amendment issue in this case. We proceed instead to
the qualified-immunity question.
2. Yount Is Entitled to Qualified Immunity from the § 1983 Claim Because the Law
Regarding Forced Catheterizations Is Unsettled
“Government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
7
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). “For a constitutional right to be clearly
established, its contours must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508,
2515 (2002); accord Arnzen v. State, 123 Idaho 899, 904, 854 P.2d 242, 247 (1993). The
plaintiff has the burden of establishing that the law was well-established. Sorrels v. McKee, 290
F.3d 965, 969 (9th Cir. 2002). Absent controlling, pertinent authority from this jurisdiction, the
Court should use its full knowledge of its own and other relevant precedents. Elder v. Holloway,
510 U.S. 510, 516, 114 S. Ct. 1019, 1023 (1994). Whether the law is clearly established is a
question of law to be resolved de novo on appeal. Id. Since the Court must determine the state
of the law at the time the events took place, which in this case was in May of 2007, subsequent
legal developments should only be viewed as illuminating the law as it previously existed.
The first component of this analysis is defining the relevant legal rule at stake. The Court
should not define the right too generally, as doing so would essentially vitiate the qualified-
immunity doctrine. Anderson, 483 U.S. at 639, 107 S. Ct. at 3038. Here, for example, it would
not be helpful to simply ask whether police must not execute unreasonable searches or, as
Appellants suggest, whether the police can obtain bodily fluid from a person reasonably
suspected of driving under the influence. Warrantless blood draws and voluntary urine samples
are significantly less intrusive than warrantless forcible catheterizations. Instead, the question
should reflect the factual specifics in this case. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.
Ct. 1692, 1699–1700 (1999) (defining the relevant question as whether “bringing members of the
media into a home during the execution of an arrest warrant was lawful”).
There are two critical aspects of this case that the Court must consider in order to
correctly frame the dispute. First, when viewing facts in the light most favorable to Miller, the
Court must assume that the police could have obtained equally reliable test results by less-
intrusive alternative means, namely a blood draw. Miller was suspected of being under the
influence of marijuana. There is no contention that a blood draw presumably could not have
readily detected it. Second, catheterization is a method for obtaining bodily fluid that imposes
on personal liberty in novel ways. Thus, the legal question in this case should be defined as
follows: Would a reasonable police officer know that as of May 2007, it was unlawful to
8
involuntarily catheterize a suspect based on probable cause to search for dissipating evidence
even if less-intrusive alternatives are available?
The Fourth Amendment applies to “all searches that invade the interior of the body—
whether by needle that punctures the skin or a visual intrusion into a body cavity.” Friedman v.
Boucher, 580 F.3d 847, 852–53 (9th Cir. 2009) (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437,
1449 (9th Cir. 1991)). Using a catheter to extract urine is therefore a Fourth Amendment search.
See State v. Doe, 149 Idaho 353, 357, 233 P.3d 1275, 1279 (2010) (holding that demanding a
urine sample is a search because it “intrudes on bodily privacy”).
Both the Fourth Amendment and Article I, Section 17 of the Idaho Constitution protect
citizens’ reasonable privacy expectations against unreasonable government intrusion. State v.
Mubita, 145 Idaho 925, 932, 188 P.3d 867, 874 (2008). A warrantless search is presumptively
unreasonable. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). A search must be
performed pursuant to a warrant supported by probable cause unless a recognized exception
applies. State v. Smith, 144 Idaho 482, 485, 163 P.3d 1194, 1197 (2007). This Court has
repeatedly held that all drivers on Idaho’s highways have, pursuant to statute, impliedly
consented to submit to a blood-alcohol (“BAC”) test when an officer has reasonable suspicion
that the suspect is driving under the influence of drugs or alcohol. Halen v. State, 136 Idaho 829,
833, 41 P.3d 257, 261 (2002) (citing I.C. § 18-8002(1)). 5 However, even if a suspect has
impliedly consented to a search for bodily fluids, the Fourth Amendment still requires police to
perform the test in a medically acceptable manner and with only reasonable force. State v. Diaz,
144 Idaho 300, 303, 160 P.3d 739, 742 (2007).
No Idaho cases discuss involuntary catheterization as a method for extracting bodily
fluids, and given the paucity of such cases from anywhere else around the country, it is best to
begin with the law that applies generally to bodily searches.
5
Idaho Code § 18-8002(1) provides in full:
Any person who drives or is in actual physical control of a motor vehicle in this state shall be
deemed to have given his consent to evidentiary testing for concentration of alcohol as defined
in section 18-8004, Idaho Code, and to have given his consent to evidentiary testing for the
presence of drugs or other intoxicating substances, provided that such testing is administered at the
request of a peace officer having reasonable grounds to believe that person has been driving or in
actual physical control of a motor vehicle in violation of the provisions of section 18-8004, Idaho
Code, orsection 18-8006, Idaho Code.
9
The two leading U.S. Supreme Court cases in this area are Schmerber v. California, 384
U.S. 757, 86 S. Ct. 1826 (1966), and Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611 (1985). In
Schmerber, the Court ruled that the police did not violate the defendant’s Fourth Amendment
rights when they forcibly extracted his blood while he was hospitalized from a car accident he
had while driving drunk. 384 U.S. at 772, 86 S. Ct. at 1836. The Court reasoned that, since
alcohol dissipates from the bloodstream with time, a warrantless blood draw was acceptable
because it was not particularly invasive, was administered by a professional in a safe manner,
and obtaining a warrant might have allowed time for the evidence to vanish. Id. at 770–72, 86 S.
Ct. at 1835–36. The Court emphasized, however, that its decision rested “only on the facts of the
present record,” and not on broader principles authorizing bodily intrusions. Id. at 772, 86 S. Ct.
at 1836.
In Winston, the Court provided three overarching factors for courts to examine when
confronted with a warrantless bodily intrusion: (1) “the extent to which the procedure may
threaten the safety or health of the individual,” (2) “the extent of intrusion upon the individual’s
dignitary interests in personal privacy and bodily integrity,” and (3) “the community’s interest in
fairly and accurately determining guilt or innocence.” Winston, 470 U.S. at 761–62, 105 S. Ct. at
1617–18. 6 The Court emphasized that bodily intrusions are evaluated on a case-by-case basis.
Id. at 760, 105 S. Ct. at 1616; see also Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir.
1998) (stating that the Schmerber inquiry considers a number of factors).
Even though courts nationwide have not had many opportunities to address forced
catheterizations, there are some areas where cases appear to be coalescing into universal rules.
For instance, it is objectively well-established that a suspicionless catheterization, like any
suspicionless bodily search, would be unconstitutional. Ellis v. City of San Diego, 176 F.3d
1183, 1192 (9th Cir. 1999); Ohio v. Funk, 896 N.E.2d 203, 207–08 (Ohio Ct. App. 2008); see
also Hammer v. Gross, 932 F.2d 842, 844 (9th Cir. 1991) (stating that a warrantless blood draw
requires probable cause). If the police have probable cause to search for something that is not
likely to dissipate from the body, then a warrantless search for bodily fluids would be
unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir. 1991) (discussing blood
6
Although the Court did not expressly say so, Schmerber requires that the police first have probable cause to search
for dissipating evidence in the suspect’s bodily fluids. Fuller, 950 F.2d at 1449. Because drivers in Idaho impliedly
consent to a urine or blood search when an officer has a reasonable suspicion that they are intoxicated, this part of
the analysis is not relevant here.
10
draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir. 1970) (similar). On the other hand, a forced
catheterization performed on arrestees solely for medical screening or treatment, and not for
investigatory reasons, is constitutional. Sullivan v. Bornemann, 384 F.3d 372, 377 (2004)
(addressing catheterizations done by hospital personnel for medical clearance before accepting a
suspect into county jail); Meyer v. Woodward, 617 F. Supp. 2d 554, 565 (E.D. Mich. 2008);
Tinius v. Carroll Cnty. Sheriff Dep’t, 321 F. Supp. 2d 1064, 1075–76 (N.D. Iowa 2004)
(upholding a catheterization performed by hospital personnel on a person detained under the
police community-caretaking function); see also United States v. Attson, 900 F.2d 1427, 1433
(9th Cir. 1990) (stating that a blood draw performed by medical personnel for purely medical
reasons was permissible).
The clarity ends, however, once the Court attempts to determine whether it is reasonable
for police to catheterize someone to search for dissipating evidence of a crime without a warrant.
This question is at its thorniest where, as here, the police presumably could just as easily have
performed a relatively painless blood draw rather than use a catheter to extract urine.
Applying the Winston factors, forcible blood draws and forcible catheterizations share
many similarities. Blood draws, like a urine sample, are highly accurate at determining what
substances, if any, are in a suspect’s body. Both procedures are relatively common, can be
performed by a variety of medical professionals, and do not permanently harm the person tested.
Yet despite their similar purposes, blood draws and catheterizations also have significant
differences.
First, catheters impinge on a person’s dignity much more severely than a blood draw.
“[T]he forceful use of a catheter is a ‘gross personal indignity’ far exceeding that involved in a
simple blood test.” Ellis, 176 F.3d at 1192 (quoting Yanez v. Romero, 619 F.2d 851, 855 (10th
Cir. 1980)). A person being catheterized must pull his or her pants down to expose the genitalia,
potentially in front of members of the opposite sex, and allow a stranger to handle very private
parts of his or her body, not for consensual medical treatment, but at the behest of the State. See
Hooper v. Pearson, No. 2:08-CV-871, 2010 WL 2990809, at *5 (D. Utah 2010) (describing how
male officers restrained a female suspect while two women pulled her pants down and
catheterized her). Blood draws, by contrast, occur not just in private doctors’ offices but also at
public blood drives. They typically do not require the person being tested to remove sensitive
articles of clothing or otherwise be subjected to private or embarrassing activity.
11
Second, catheters involve a significantly greater amount of physical trauma. Unlike a
needle, which punctures the skin to reach a blood vessel just below the surface, a catheter is a
tube that must pass all the way through the urethra and enter the bladder. Even though
catheterization is fairly commonplace, it can certainly hurt more than inserting a small needle
into the arm. See LeVine v. Roebuck, 550 F.3d 684, 689 (8th Cir. 2008) (noting that
catheterization is a painful procedure). A catheter may also carry a greater risk of infecting the
recipient. See Go Med. Indus. Pty., Ltd. v. Inmed Corp., 471 F.3d 1264, 1267 (Fed. Cir. 2006)
(“Urinary catheters typically increase the risk of urinary tract infections because inserting a
catheter can push bacteria into the normally sterile bladder.”). It would be reasonable for many
people to experience anxiety while enduring such an experience.
While it is possible to identify the differences between blood draws and catheterizations,
it is much more difficult to articulate what legal significance, if any, these distinctions carry. “A
catheter is more intrusive than a needle but less intrusive than a scalpel, making it hard to
classify the procedure under an objective reasonableness inquiry.” Sparks v. Stutler, 71 F.3d
259, 261 (7th Cir. 1995). This is due in large part to the unquantifiable, multi-factored analysis
necessary in each case as well as the fact that officers do not always have to employ what later
proves to be the least intrusive means available under the Fourth Amendment. Dalia v. United
States, 441 U.S. 238, 257 & n.19, 99 S. Ct. 1682, 1693 & n.19 (1979).
Additionally, because the Schmerber inquiry calls on courts to balance so many
considerations, predicting the outcome of many bodily search cases can be tricky. It is difficult
enough to expect a reasonable police officer to differentiate between cases in which officers were
allowed to hold down a suspect at the border and search his rectal cavity for heroin, Huguez v.
United States, 406 F.2d 366, 391–92 (9th Cir. 1968), or a case in which police were allowed to
pump a suspect’s stomach after he admitted swallowing crack cocaine on a public street, State v.
Strong, 493 N.W.2d 834, 837–38 (Iowa 1992), from a case wherein officers could not pump a
suspect’s stomach to retrieve two suspicious capsules he swallowed in front of them during an
illegal home search, Rochin v. California, 342 U.S. 165, 166, 172, 72 S. Ct. 205, 206, 210
(1952).
Even among the few courts that have addressed the specific issue in this case, there are
differing opinions. The New Jersey Superior Court refused to grant § 1983 immunity to two
police officers who catheterized a DUI suspect after taking a blood draw, holding instead that a
12
factual issue existed as to whether any exigent circumstances justified the procedure. Jiosi v.
Township of Nutley, 753 A.2d 132, 140 (N.J. Super. Ct. App. Div. 2000). Similarly, in a § 1983
case decided after the events in this case, a federal district court found that a forced
catheterization, if proven, would be impermissible even though the police had obtained a warrant
to extract bodily fluids because the test is so intrusive and a blood draw had already been
performed. Elliott v. Sheriff of Rush Cnty., 686 F. Supp. 2d 840, 859–60 (S.D. Ind. 2010). The
court further held that the case fell in the “obvious” category of well-established law, preventing
the officers from receiving qualified immunity under § 1983. Id. at 863; see also Elliott v. Rush
Mem’l Hosp., 928 N.E.2d 634, 643–44 (Ind. Ct. App. 2010) (finding no immunity under a state
medical-malpractice statute for a hospital that forcibly catheterized a DUI suspect because there
was a material fact issue as to whether catheterization was a reasonable medical procedure for
obtaining a urine sample).
Compare these cases with a different decision in which another federal district court
upheld a forced, warrantless catheterization that was supported by probable cause. Ellis v.
Cotten, No. 3:06-CV-283-K, 2008 WL 4182359, at *6 (N.D. Tex. Sep. 9, 2008). The court held
that the test was permissible under the Fourth Amendment despite the fact that the police
simultaneously drew blood because probable cause existed. Id. The court there even stated that
the involuntary catheterization was “remarkably similar” to the blood draw in Schmerber. Id.
That this small but significant division of authority has continued to develop since the events in
this case simply illustrates how difficult it would have been for Yount to know what his legal
obligations were.
To summarize, “[t]he qualified immunity standard ‘gives ample room for mistaken
judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the
law.’” Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537 (1991) (quoting Malley v.
Briggs, 475 U.S. 335, 341–43, 106 S. Ct. 1092, 1096–97 (1986)). Given the foregoing legal
uncertainty as to whether a forced warrantless catheterization is constitutional, the district court
should have dismissed Miller’s § 1983 claim under the doctrine of qualified immunity. The law
regarding involuntary, warrantless catheterizations where probable cause exists is too
undeveloped, and the applicable legal principles too uncertain, to hold Yount personally liable
for his actions in this case. Yount is therefore entitled to summary judgment on the § 1983 claim
against him.
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B. The District Court Erred by Refusing to Dismiss Miller’s Intentional Tort Claims
Against Yount and the ISP
Miller asserted claims for assault and battery against Yount for forcibly catheterizing
him. He also seeks damages from the ISP under the doctrine of respondeat superior. 7 The
district court believed that Yount’s actions may have been unconstitutional under the Fourth
Amendment, creating a factual issue for the jury as to whether the catheterization was reasonable
and therefore an acceptable physical contact.
The ITCA immunizes public officials from some tort claims if the plaintiff does not show
malice or criminal intent. It provides:
[E]very governmental entity is subject to liability for money damages arising out
of its negligent or otherwise wrongful acts or omissions and those of its
employees acting within the course and scope of their employment or duties,
whether arising out of a governmental or proprietary function, where the
governmental entity if a private person or entity would be liable for money
damages under the laws of the state of Idaho . . . .
I.C. § 6-903(a). This rule is subject to several exceptions, including one for certain intentional
torts. Absent “malice or criminal intent,” government employees acting within the scope of their
employment are not liable for claims arising out of assault, battery, false imprisonment, false
arrest, and others. Id. § 6-904(3). “It shall be a rebuttable presumption that any act or omission
of an employee within the time and at the place of his employment is within the course and scope
of his employment and without malice or criminal intent.” Id. § 6-903(e).
1. Yount Is Immune from Miller’s Battery Claim Under the ITCA
Civil battery consists of an intentional contact with another person that is either unlawful,
harmful, or offensive. Neal v. Neal, 125 Idaho 617, 622, 873 P.2d 871, 876 (1994). Lack of
consent is a critical element of battery. Id.
Yount asserted in his motion for summary judgment that there was no evidence he acted
with malice. All drivers in Idaho impliedly consent to BAC and drug tests upon reasonable
suspicion. I.C. § 18-8002(1); State v. Woolery, 116 Idaho 368, 371, 775 P.2d 1210, 1213 (1989).
Permissible testing is simply defined as “a procedure or test or series of procedures or tests . . .
utilized to determine the concentration of alcohol or the presence of drugs or other intoxicating
substances in a person.” I.C. § 18-8002(9). “This Court has made it clear that ‘the choice as to
7
The ITCA requires plaintiffs to file tort claims directly with the agency before going to court. I.C. §§ 6-905, -908.
The record does not reveal whether Miller filed a claim with the ISP before initiating this lawsuit, but the ISP has
not raised the issue at any point.
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which type of evidentiary test for concentration of alcohol, drugs or other intoxicating substances
will be requested rests with the police officer, not the defendant.’” Halen v. State, 136 Idaho
829, 832, 41 P.3d 257, 260 (2002) (quoting In re Griffiths, 113 Idaho 364, 370, 744 P.2d 92, 98
(1987)). A catheterization is a urine test for drugs present in the suspect’s body, and since the
parties agree that there was probable cause to believe that Miller was operating a vehicle while
under the influence of drugs, Miller impliedly consented to it.
Because Yount was acting during the course and scope of his employment, the burden
was on Miller, as the plaintiff below, to show some evidence that Yount acted maliciously or
with criminal intent. I.C. § 6-903(e); Hunter v. State, 138 Idaho 44, 48, 57 P.3d 755, 759 (2002).
The plaintiff cannot rest on the pleadings but must show some evidence from which the court
could reasonably infer the critical elements of his or her claims. Anderson v. City of Pocatello,
112 Idaho 176, 188, 731 P.2d 171, 183 (1986). Malice here means “the intentional commission
of a wrongful or unlawful act, without legal justification or excuse and with ill will, whether or
not injury was intended.” Beco Constr. Co. v. City of Idaho Falls, 124 Idaho 859, 864, 865 P.2d
950, 955 (1993) (quoting Anderson, 112 Idaho at 187–88, 731 P.2d at 182–83). Criminal intent
“is satisfied if it is shown that the defendant knowingly performed the proscribed acts.” Doe v.
Durtschi, 110 Idaho 466, 470, 716 P.2d 1238, 1242 (1986) (quoting State v. Gowin, 97 Idaho
766, 767–68, 554 P.2d 944, 945–46 (1976)).
As the district court freely acknowledged, Miller has not provided any evidence
whatsoever in the form of an affidavit, deposition, or other document regarding the facts in this
case. No shred of evidence suggests that Yount acted with malice or criminal intent. Since the
parties in this case agree that probable cause existed for Yount to test Miller for drugs, the only
reasonable inference is that he catheterized Miller pursuant to a valid criminal investigation.
Miller instead advances a legal argument to support his battery claim. He contends that
Yount had the statutory right to order a blood draw only for certain serious offenses, none of
which he was charged with. Idaho Code § 18-8002(6)(b) states that peace officers are
empowered to order medical professionals to withdraw blood samples for certain aggravated
offenses, such as aggravated DUI and vehicular manslaughter. 8 Since Miller was charged with
8
This subsection provides:
A peace officer is empowered to order an individual authorized inspection 18-8003, Idaho Code,
to withdraw a blood sample for evidentiary testing when the peace officer has probable cause to
believe that the suspect has committed any of the following offenses:
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misdemeanor DUI, he asserts that Yount committed battery by illegally “ordering” him to submit
to a test for bodily fluids. He also argues that § 18-8002 does not authorize police to order
anyone to be subjected to a catheterization, only to blood draws.
However, as this Court has already expressly held, § 18-8002(6)(b) is merely a list of
situations in which peace officers can order certain medical personnel to perform a blood test
upon a suspect. “[A]n officer’s authority to require a defendant to submit to a blood withdrawal,
under I.C. § 18-8002, does not turn on whether aggravating factors are present.” Halen, 136
Idaho at 834, 41 P.3d at 262. Anyone driving under the influence of alcohol or drugs impliedly
consents to evidentiary testing for drugs or other intoxicating substances in the bloodstream
regardless of whether he or she is suspected of an aggravated offense. That is, police can require
all drivers to submit to drug tests if reasonable suspicion exists that they are under the influence
of drugs. If medical personnel refuse to administer a drug test on a DUI suspect, the police
cannot order them to do so. Section 18-8002(6)(b) is, however, an exception to the rule that law
enforcement cannot order unwilling medical facilities to administer drug tests. It permits police
to require medical personnel to administer blood tests in cases where a person is suspected of
certain aggravated crimes. Id. It also does not mention urine tests whatsoever. This provision
therefore has no bearing on an officer’s power to require someone suspected of driving under the
influence to submit to a bodily fluids test, whether for blood or urine. The district court erred by
not granting summary judgment to Yount on Miller’s battery claim.
2. Yount Is Immune from Miller’s Assault Claim Under the ITCA
For similar reasons, Yount is immune from Miller’s assault claim. Assault is “[a]n
unlawful threat or offer to do bodily harm or injury to another.” 6A C.J.S. Assault § 6 (2010)
(i) Aggravated driving under the influence of alcohol, drugs or other intoxicating
substances as provided in section 18-8006, Idaho Code;
(ii) Vehicular manslaughter as provided in subsection (3)(a), (b) and (c) of section 18-
4006, Idaho Code;
(iii) Aggravated operating of a vessel on the waters of the state while under the influence
of alcohol, drugs or other intoxicating substances as provided in section 67-7035, Idaho
Code; or
(iv) Any criminal homicide involving a vessel on the waters of the state while under the
influence of alcohol, drugs or other intoxicating substances.
I.C. § 18-8002(6)(b). Medical personnel can still refuse to administer the blood draw for safety or health reasons,
including concerns about the suspect’s wellbeing. Id. § 18-8002(6)(e).
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(emphasis added). As explained above, Yount had a statutory right to test Miller’s urine, and
Miller has provided no evidence whatsoever that Yount otherwise acted with malice or criminal
intent. Under the ITCA, Yount is immune from suit for an assault. The district court erred in
refusing to grant summary judgment to Yount on the assault claim.
3. The ISP Is Not Liable for Assault or Battery Under the Doctrine of Respondeat
Superior
Because Yount is not liable for any intentional torts against Yount, the ISP is not
vicariously liable either. The ITCA provides:
Except as otherwise provided in this act, every governmental entity is
subject to liability for money damages arising out of its negligent or otherwise
wrongful acts or omissions and those of its employees acting within the course
and scope of their employment or duties, whether arising out of a governmental or
proprietary function, where the governmental entity if a private person or entity
would be liable for money damages under the laws of the state of Idaho . . . .
I.C. § 6-903(a) (emphasis added). As explained in the previous two subsections, Yount is
immune from suit for battery or assault under the ITCA. He is not “liable for money damages
under the laws of the state of Idaho.” Hence, the ISP, by extension, cannot be liable for these
intentional torts. The district court should have granted summary judgment to the ISP on
Miller’s assault and battery claims.
C. There Is No Issue of Material Fact Supporting Miller’s Claims Against Yount or the
ISP for Negligence
Miller brought negligence claims against Yount and the ISP for negligently ordering him
to undergo a catheterization.
1. Miller Has Not Raised an Issue of Material Fact in Support of His Negligence
Claim Against Yount
Miller has not presented evidence creating a genuine issue of fact regarding whether
Yount negligently allowed him to be harmed. Under the ITCA, Yount can be liable for not
exercising ordinary care and proximately causing injury to Miller during the course of his duties.
Czaplicki v. Gooding Joint Sch. Dist. No. 231, 116 Idaho 326, 775 P.2d 640 (1989). “In
determining whether a party is negligent, his or her conduct is judged against that of an
ordinarily prudent person acting under the same conditions and circumstances.” Sorensen v. St.
Alphonsus Reg’l Med. Ctr., Inc., 141 Idaho 754, 761, 118 P.3d 86, 93 (2005). Without any
evidence to support his allegations, Miller has not created a genuine issue of material fact
17
showing how Yount acted without ordinary care. Miller’s negligence claim against Yount
should have been dismissed.
2. The ISP Is Not Liable for Yount’s Negligence Under the Doctrine of Respondeat
Superior
Again, the ITCA states that a government entity is liable for the negligence of its
employees only where a government entity or a private individual would be liable for money
damages under state law. I.C. § 6-903(a). Since Miller provides no evidence to support his
negligence claim, Yount is not liable under that theory and therefore neither is the ISP. The
district court should have granted summary judgment to the ISP on Miller’s negligence claim.
D. There Is No Issue of Material Fact Supporting Miller’s Claims Against the ISP for
Negligent Supervision
Similarly, there is no material issue of fact supporting Miller’s claim for negligent
supervision. The State can be liable for its negligence in managing its employees, but the
plaintiff must “present evidence to raise a genuine issue of material fact concerning whether
those who had the duty to supervise should have reasonably anticipated that those subject to their
supervision would commit [a compensable tort].” Kessler v. Barowsky, 129 Idaho 647, 654, 931
P.2d 641, 648 (1997); see also Doe v. Durtschi, 110 Idaho 466, 473, 716 P.2d 1238, 1245 (1986)
(holding that state entities can be liable for negligent supervision). Miller has not presented any
evidence at all showing that the ISP failed to properly supervise Yount. The district court should
have granted summary judgment to the ISP on this claim.
VI. CONCLUSION
Trooper Yount was entitled to qualified immunity against Miller’s § 1983 claim for
violating his Fourth Amendment rights. There are no genuine issues of material fact supporting
Miller’s tort claims against Yount and the ISP. Accordingly, the district court’s Memorandum
Decision and Order on Cross Motions for Summary Judgment is vacated. The case is remanded
with instructions to enter judgment in favor of Appellants. No attorney fees are awarded because
none were requested. Costs to Appellants.
Chief Justice EISMANN, Justices BURDICK, J. JONES and HORTON CONCUR.
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