                This opinion is subject to revision before final
                       publication in the Pacific Reporter

                                2019 UT 21


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                         ROBERT KUCHCINSKI,
                             Appellant,
                                      v.
                    BOX ELDER COUNTY, and
          THE OFFICE OF THE BOX ELDER COUNTY SHERIFF,
                            Appellees.

                             No. 20160674
                           Filed June 3, 2019

                           On Direct Appeal

                       First District, Logan
                   The Honorable Brian Cannell
                          No. 150100424

                                Attorneys:
        Phillip W. Dyer, Benjamin R. Dyer, Salt Lake City
     James E. Harward, W. Earl Webster, Amy L. Williamson,
                Cottonwood Heights, for appellant
 Frank D. Mylar, Andrew R. Hopkins, Salt Lake City, for appellees

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
 JUSTICE HIMONAS, JUSTICE PEARCE, and JUDGE MORTENSEN joined.
ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part and
                  concurring in the judgement.
  Due to her retirement, JUSTICE DURHAM did not participate herein;
       and COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.
        JUSTICE PETERSEN became a member of the Court on
      November 17, 2017, after oral argument in this matter, and
                  accordingly did not participate.
                    KUCHCINSKI v. BOX ELDER CTY.
                        Opinion of the Court

   CHIEF JUSTICE DURRANT, opinion of the Court:

                            Introduction
    ¶1 Robert Kuchcinski was held in the Box Elder County Jail for
seventeen days on a justice court’s probable cause determination that
he was driving under the influence. Neither a breathalyzer test nor a
blood test showed that he was actually driving impaired. During
these seventeen days in jail, he was never brought before a judge for
his initial appearance and was never formally charged with any
crimes. And, although a judge set bail, Mr. Kuchcinski claims that
the bail amount was never communicated to him. Finally, on day
sixteen, Mr. Kuchcinski was able to contact an attorney, who notified
the County prosecutor of Mr. Kuchcinski’s prolonged detention. The
prosecutor immediately asked the court to issue an order mandating
Mr. Kuchcinski’s release. The court ordered his release the next day.
    ¶2 He eventually brought several claims against the County
and the County Sheriff’s Office, including claims of violations of his
rights to due process and bail. The district court dismissed his claims
on summary judgment, concluding that he had not suffered a
flagrant violation of his constitutional rights and that he could not
identify a specific municipal employee who had violated his rights.
Mr. Kuchcinski appealed. We are asked to determine whether the
district court erred in dismissing his claims under the bail and due
process clauses of the Utah Constitution. We hold that the court did
not err in dismissing Mr. Kuchcinski’s bail clause claims, because he
has failed to demonstrate that the bail clause is self-executing. But
the court did err in dismissing his due process claims. It incorrectly
applied the standard for determining when a municipal employee is
liable for damages for a constitutional violation. Accordingly, we set
forth the correct standard for reviewing constitutional claims for
damages when brought solely against a municipality.1

_____________________________________________________________

   1 Although the term “municipality” most often refers specifically
to cities or towns, see, e.g., UTAH CODE § 10-1-104(5) (defining
municipality to include cities, towns, and metro townships), we
sometimes use “municipality” as an umbrella term for political
subdivisions of the state. See Suarez v. Grand Cty., 2012 UT 72, ¶ 67,
296 P.3d 688 (using the term “municipalities” and “government
bodies” interchangeably while discussing state actors’ obligations
under the due process clause). Accordingly, we use “municipality”
in this opinion to refer to any political subdivision of the state.

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                            Background2
   ¶3 Robert Kuchcinski was driving a tractor-trailer rig when he
was pulled over by Utah Highway Patrol (UHP) for failing to stay in
one lane. After issuing Mr. Kuchcinski a citation for his traffic
violation, the UHP trooper asked Mr. Kuchcinski to take a portable
breathalyzer test. He passed the breathalyzer test, but the trooper
continued with a series of field sobriety tests. Mr. Kuchcinski, who
was suffering from an inner ear infection, failed the balance-related
sobriety tests. The UHP trooper arrested Mr. Kuchcinski for driving
under the influence.3
    ¶4 Mr. Kuchcinski was booked into the Box Elder County Jail
(Jail) on June 16, 2012. The next day, the Box Elder County Justice
Court entered its finding of probable cause based on the UHP
trooper’s statement. The court found that probable cause existed for
the arrest without a warrant, that “the detention of [Mr. Kuchcinski]
may continue,” and that Mr. Kuchcinski could post bail in the
amount of $1,350. Mr. Kuchcinski was not present at the probable
cause determination and alleges that he was not made aware of the
bail amount.
   ¶5 Mr. Kuchcinski remained in jail for seventeen days. He was
not arraigned during that time and never appeared before the justice
court. It is unclear from the record if and when he learned that bail
had been set, but he discussed bail in a phone call with his fiancée’s
brother on June 26, 2012, and in subsequent phone calls. He
explained to his fiancée and her brother that he could not make bail
without a co-signer, which he did not have.
   ¶6 He also told those he spoke with on the phone that he was
waiting to appear before a judge to ask to be released from jail. At no
point during his incarceration was he taken before a magistrate. Each

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   2  Below, the County moved for summary judgment on the
constitutional claims. On appeal, we are asked to review the district
court’s decision on that motion. “[W]hen reviewing an order
granting summary judgment, the evidence and all inferences that
may be reasonably drawn from the evidence must be liberally
construed in favor of the party opposing the motion.” Johnson v.
Morton Thiokol, Inc., 818 P.2d 997, 1000 (Utah 1991). We recite the
facts accordingly.
   3 Mr. Kuchcinski later allowed for his blood to be drawn in order
to screen for intoxicating substances. The tests came back negative.

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                        Opinion of the Court

Wednesday—the day justice court was held—the Jail apparently
transported those detainees who had been scheduled to appear
before the justice court. For some reason Mr. Kuchcinski was not
taken with other inmates to the justice court on Wednesday, June 20.
And because the judge who was scheduled to preside over the
justice court was on vacation on the next Wednesday, June 27,
Mr. Kuchcinski did not see a judge the second week of his
incarceration. Then, on June 28, he was informed by a Jail employee
that he would not be able to appear before the justice court the
following Wednesday, because that day was July 4th, a national
holiday, and court would not be held. So Mr. Kuchcinski continued
to sit in jail.
    ¶7 On July 2, 2012, another inmate contacted his attorney, Art
Lauritzen, on behalf of Mr. Kuchcinski. Mr. Lauritzen contacted the
Box Elder County prosecutor, who in turn contacted the justice court
to request Mr. Kuchcinski’s immediate release. Mr. Kuchcinski was
released the next day, without posting any bail or bond. An
information was not filed charging Mr. Kuchcinski until July 18,
2012, two weeks after his release. The DUI charge was dismissed on
August 27, 2012.
   ¶8 Due to his time in jail and the allegation that he was driving
under the influence, Mr. Kuchcinski lost his job as a truck driver, the
only employment he has held as an adult. Since his incarceration he
has also experienced post-traumatic stress disorder and “debilitating
anxiety attacks whenever [he has] to drive more than a few miles.”
    ¶9 Mr. Kuchcinski filed suit against Box Elder County and the
Box Elder County Sheriff’s Office in federal district court. He
brought a 42 U.S.C. § 1983 claim for violations of his civil rights, as
well as Utah state law claims. That court dismissed his Section 1983
claim, but declined to exercise supplemental jurisdiction over the
state law claims and instructed Mr. Kuchcinski to refile in state
court.
    ¶10 In state district court, Mr. Kuchcinski brought causes of
action against the County and the Jail for violations of his right to
bail and his right to due process under article I, sections 7 and 8 of
the Utah Constitution. He also alleged the County was negligent and
had falsely imprisoned him. He later withdrew his negligence claim,
and the court dismissed it. The court then entered summary
judgment against Mr. Kuchcinski, concluding that the false
imprisonment claim was barred by both the Governmental
Immunity Act and the justice court’s probable cause finding. It
further concluded that Mr. Kuchcinski’s bail and due process claims

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failed because he could not “show any flagrant violation of his Utah
constitutional rights” or “identify any Box Elder County individual
who flagrantly violated his Utah constitutional rights.”
Mr. Kuchcinski timely appealed to this court, challenging only the
district court’s determinations as to the County’s alleged
constitutional violations. We have jurisdiction pursuant to
section 78A-3-102(3)(j) of the Utah Code.
                            Standard of Review
    ¶11 Mr. Kuchcinski appeals the district court’s dismissal of his
state constitutional claims. He argues that the district court erred in
dismissing his claims on summary judgment because he
demonstrated the elements necessary to proceed with a claim for
money damages under the Utah Constitution. Summary judgment is
appropriate only where “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.”4 We “review[] a summary judgment for correctness,
giving no deference to the [district] court’s decision.”5
                                  Analysis
    ¶12 Mr. Kuchcinski argues that his constitutional rights were
violated under the bail and due process clauses of the Utah
Constitution.6 He contends that he had a right under the due process
clause to be taken before a judge for a determination of probable
cause. He also argues that even if he did not have a right to be
present at his probable cause determination, he had a right to appear
before a judge before he was detained for an extended period of
time. He also asserts that he had the right to be “timely admitted to
bail” under the bail clause. And he maintains that these violations
warrant an award of damages under Utah law.
   ¶13 “[T]he Utah Constitution does not expressly provide
damage remedies for constitutional violations.”7 So a “plaintiff’s
remedy for [a] state constitutional violation rests in the common
law,” which “gives Utah courts the authority to ‘accord an


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   4   UTAH R. CIV. P. 56(a).
   5   Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.
   6   See UTAH CONST. art. I, §§ 7, 8.
   7  Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cty. Sch.
Dist., 2000 UT 87, ¶ 20, 16 P.3d 533.

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                    KUCHCINSKI v. BOX ELDER CTY.
                         Opinion of the Court

appropriate remedy to one injured from the violation of a
constitutional provision.’”8
    ¶14 Relying on our common law, we first address
Mr. Kuchcinski’s argument under the bail clause. We hold that
because he failed to conduct the necessary “self-executing” analysis
under Spackman, he failed to carry his burden of persuasion on this
claim. Next, we address his claims under the due process clause. We
hold that the district court erred when it dismissed Mr. Kuchcinski’s
due process claims for failing to identify an individual at the County
who committed a flagrant violation. A plaintiff need not identify a
specific government employee in order to hold a municipality liable
under the Utah Constitution. We also hold that the district court
applied the incorrect standard for determining when a municipality
acts flagrantly. We therefore reverse and remand for the district
court to make determinations in light of the new standard we
articulate today.
                I. Mr. Kuchcinski’s Bail Clause Claims
    ¶15 Mr. Kuchcinski first argues on appeal that the district court
erred in dismissing his claims under the bail clause of the Utah
Constitution. Specifically, he claims that Box Elder County denied
him his fundamental right to bail, including the right to be “timely
admitted to bail,” the right to be present before a magistrate when
bail is set, and the right to be informed of the amount of bail. And he
asserts that, under the common law, an award of damages is
appropriate for this alleged constitutional violation. We decline to
determine whether the County violated Mr. Kuchcinski’s right to
bail, because Mr. Kuchcinski failed, in his briefs to us, to provide any
analysis as to whether the bail clause is self-executing—a threshold
inquiry that must be made before a private right may be established
under the constitution.9 We accordingly affirm the district court on
this claim.


_____________________________________________________________
   8 Jensen ex rel Jensen v. Cunningham, 2011 UT 17, ¶ 57, 250 P.3d 465
(citation omitted).
   9 See Heslop v. Bear River Mut. Ins. Co., 2017 UT 5, ¶ 45, 390 P.3d
314 (declining to review an issue that is inadequately briefed “when
the overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court” (citation omitted)
(internal quotation marks omitted)).

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    ¶16 In Spackman ex rel Spackman v. Board of Education of Box Elder
County School District,10 we set forth a two-prong test a plaintiff must
meet when seeking a private right to sue for damages under a
constitutional provision. First, we held that a “plaintiff must prove
that the constitutional provision violated is ‘self[-]executing.’”11
Second, we held that “a plaintiff must establish . . . three elements:
(1) the plaintiff suffered a flagrant violation of his or her
constitutional rights; (2) existing remedies do not redress his or her
injuries; and (3) equitable relief, such as an injunction, was and is
wholly inadequate to protect the plaintiff’s rights or redress his or
her injuries.”12 Our concern with Mr. Kuchcinski’s bail clause claim
arises from the first prong.
    ¶17 We have repeatedly stated that a “constitutional provision is
self-executing if it articulates a rule sufficient to give effect to the
underlying rights and duties intended by the framers” of the
constitution.13 “In other words, courts may give effect to a provision
without implementing legislation if the framers intended the
provision to have immediate effect and if ‘no ancillary legislation is
necessary to the enjoyment of a right given, or the enforcement of a
duty imposed.’”14 We have also stated that “constitutional
provisions are not self-executing if they merely indicate a general
principle or line of policy without supplying the means for putting
them into effect.”15
    ¶18 As our caselaw suggests, the inquiry into whether a
provision is self-executing “turns in large part on an originalist
inquiry.”16 Accordingly, we ask “whether the ‘framers intended the
provision to have immediate effect’ without implementing
legislation or whether instead its terms would be understood as a
‘general principle or line of policy’ requiring a legislative act to ‘put[]


_____________________________________________________________
   10   2000 UT 87, 16 P.3d 533.
   11 Jensen ex rel Jensen v. Cunningham, 2011 UT 17, ¶ 58, 250 P.3d
465 (quoting Spackman, 2000 UT 87, ¶ 18).
   12   Id. (citations omitted) (internal quotation marks omitted).
   13   Spackman, 2000 UT 87, ¶ 7 (citation omitted).
   14   Id. (citation omitted).
   15   Id. (citation omitted).
   16   Zimmerman v. Univ. of Utah, 2018 UT 1, ¶ 18, 417 P.3d 78.

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                       KUCHCINSKI v. BOX ELDER CTY.
                            Opinion of the Court

[it] into effect.’”17 Answering this question requires “careful analysis
of the precise terms of the Utah Constitution and its original
meaning.”18
    ¶19 But Mr. Kuchcinski has not provided us with this type of
analysis. Rather, he asserts that he “has met the first hurdle in . . .
Spackman” simply because, under article I, section 26 of the Utah
Constitution, the bail clause is to be read as “mandatory and
prohibitory,” and therefore must be self-executing.19 This assertion is
not enough.20 In addition to demonstrating that a constitutional
provision is prohibitory, a plaintiff must demonstrate that the
framers intended the clause to be both “judicially . . . defined and
enforced” without implementing legislation.21 This requires “careful
analysis of the precise terms” in the provision and the framer’s
original meaning of those terms.22 Because Mr. Kuchcinski
completely failed to conduct such analysis, we are reluctant to tread
into this important constitutional issue.23 We accordingly decline to

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   17   Id. (alterations in original) (citation omitted).
   18   Id. ¶ 19.
   19   See UTAH CONST. art. I, § 26.
   20  While we have said that “[c]onstitutional provisions that
prohibit certain conduct usually are self executing,” Jensen, 2011 UT
17, ¶ 59 (emphasis added), the mere fact that a provision is
prohibitory is not enough to demonstrate it is self-executing. A
plaintiff must show that the constitutional provision was intended to
be judicially enforceable without the implementation of legislation.
See Zimmerman, 2018 UT 1, ¶ 17; Jensen, 2011 UT 17, ¶ 59; Spackman,
2000 UT 87, ¶ 7; Bott v. DeLand, 922 P.2d 732, 737 (Utah 1996),
abrogated on other grounds by Spackman, 2000 UT 87.
   21   Spackman, 2000 UT 87, ¶ 12.
   22   Zimmerman, 2018 UT 1, ¶ 19.
   23 See id. (declining to resolve whether the free speech clause of
the Utah Constitution is self-executing because parties gave
“superficial” briefing on the subject and did not engage in any form
of originalist analysis); Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 5
n.4, 416 P.3d 635 (declining to determine whether a section of the
Workers’ Compensation Act was facially unconstitutional because
“Petitioners provided almost no analysis of how our Uniform
Operation of Laws precedent applied” to the section).

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review his claims under the bail clause and affirm the district court’s
dismissal of such claims.
               II. Mr. Kuchcinski’s Due Process Claims
    ¶20 Mr. Kuchcinski also asserts the district court erred when it
dismissed his due process claims under article I, section 7 of the Utah
Constitution. Specifically, he argues that the district court erred in
holding that he was required to “identify a[] Box Elder County
individual who flagrantly violated his Utah constitutional rights.”
He also contends that the court erred in its determination that he
failed to “show any flagrant violation of his Utah constitutional
rights by Box Elder County.”24 We address each contention below.25




_____________________________________________________________
   24 Because we have expressly held that the due process clause of
the Utah Constitution is self-executing, Mr. Kuchcinski has met this
threshold question on his due process claims. See Spackman ex rel.
Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 2000 UT 87, ¶ 18,
16 P.3d 533 (“[W]e hold that the Due Process Clause . . . [is]
self-executing.”). Accordingly, we turn to the next prong—the three
elements that must be shown for a plaintiff to “proceed with a
private suit for damages.” Id. ¶ 22. We focus entirely on the first
element—a flagrant violation—because the district court dismissed
Mr. Kuchcinski’s constitutional claims solely on this ground.
   25  Mr. Kuchcinski also argued that the district court “improperly
relied upon its knowledge of facts outside the record in determining
that [his] constitutional rights had not been flagrantly violated.”
Particularly, he points to places in the record where the court
explained its experience with how the justice court system works
and how judges serving on the justice court “provide coverage for
each other interpersonally.” And Mr. Kuchcinski argues that the
court relied upon its personal knowledge to determine flagrancy. But
we decline to address this argument because the district court’s
remarks do not affect whether the County violated Mr. Kuchcinski’s
constitutional rights. Rather, these comments went to whether the
justice court committed a constitutional violation by not replacing a
judge when one is on vacation. Because Mr. Kuchcinski did not bring
suit against the justice court, these comments are irrelevant to the
determination of whether a named defendant flagrantly violated his
rights.

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                            Opinion of the Court

  A. The district court erred in dismissing Mr. Kuchcinski’s due process
       claims for failing to identify a Box Elder County employee
    ¶21 Mr. Kuchcinski first argues that the district court erred
when it held that he must name a specific County employee who
flagrantly violated his constitutional rights in order to find relief
under the common law. Mr. Kuchcinski is right on this point. We
hold that a plaintiff does not have to identify a specific municipal
employee in order to demonstrate that a flagrant violation of his or
her constitutional rights occurred. Rather, it suffices to plead and
prove against the municipality that municipal actors committed a
flagrant violation against the plaintiff and that the violation resulted
from a policy or custom of the municipality.
    ¶22 In Spackman, we held that a plaintiff seeking money
damages “must establish that he or she suffered a ‘flagrant’ violation
of his or her constitutional rights.”26 We explained that a flagrant
violation “[i]n essence . . . means that a defendant must have
violated ‘clearly established’ constitutional rights ‘of which a
reasonable person would have known.’”27 We further explained that
a “clearly established” right is one in which the “contours of the
right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”28 We also
stated that the requirement that the constitutional violation be
“flagrant” ensures that “a government employee is allowed the
ordinary ‘human frailties of forgetfulness, distractibility, or
misjudgment without rendering [him or her]self liable for a
constitutional violation.’”29
    ¶23 Relying on this language, the district court read an
additional requirement into the flagrant violation element we
articulated in Spackman—that the plaintiff must name a municipal
employee who acted flagrantly. The court justified its reading by
stating that the language in Spackman referring to human frailties
“would be rendered meaningless if a constitutional offender was not

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   26   2000 UT 87, ¶ 23.
   27   Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
   28   Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639–40 (1987)).
   29Id. (alteration in original) (quoting Bott v. DeLand, 922 P.2d 732,
739–40 (Utah 1996), abrogated on other grounds by Spackman, 2000 UT
87).

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specifically    named.”      Accordingly, the court   dismissed
Mr. Kuchcinski’s claims because he could not “identify any Box
Elder County individual who flagrantly violated his Utah
constitutional rights.” This was error.
    ¶24 The district court incorrectly interpreted our Spackman
opinion as precluding damage awards against municipal entities for
constitutional violations when a plaintiff fails to name or identify a
specific municipal employee. In Spackman, we were presented with a
certified question of whether the Utah Constitution permits a direct
cause of action for certain constitutional violations. While the
Spackmans had originally brought suit against both specific
municipal employees and a municipal entity in federal district court,
their argument before us primarily focused on their direct cause of
action against the municipal employees themselves,30 a focus that is
typical in most municipal liability cases. We accordingly set forth the
flagrant violation standard for cases involving a direct cause of
action against an individual municipal employee. And in articulating
this standard, we relied upon cases from the United States Supreme
Court and our court that involved actions against municipal
employees.31
   ¶25 While we addressed the potential liability of individual
municipal employees in Spackman, we certainly did not preclude a
direct cause of action against a municipal entity. In fact, we expressly
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   30 For example, the Spackmans relied heavily upon two U.S.
Supreme Court cases—Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), and Davis v. Passman, 442 U.S.
228 (1979)—for their argument that a direct cause of action is
permitted by the Utah Constitution. Both Bivens and Davis dealt
exclusively with direct causes of actions against specific municipal
employees. So the Spackmans’ argument focused primarily on their
claims against individual employees.
   31 See Anderson, 483 U.S. at 636–37 (a family brought an action
against an FBI agent for conducting a warrantless search of their
home); Harlow, 457 U.S. at 802–04 (plaintiff brought action against a
presidential aide and the Deputy Assistant to the President for
conspiring to unlawfully discharge him); Bott, 922 P.2d at 734 (an
inmate brought suit against the Executive Director of the Utah
Department of Corrections, the Utah State Prison Medical
Administrator, and a nurse practitioner for failing to provide him
sufficient medical care while in prison).

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                           Opinion of the Court

stated that a court could award damages against a government
agency alone. Specifically, we urged courts to exercise caution when
they make decisions “to award damages against a governmental
agency and/or its employees for a constitutional violation.”32 This
statement suggests that damages may be awarded against a
government agency independent of whether a plaintiff has named a
municipal employee as a defendant. So, contrary to the district
court’s holding, Spackman does not preclude a plaintiff from bringing
suit for damages solely against a municipality.
   ¶26 The County contends, however, that a holding omitting the
requirement that a plaintiff name a municipal employee in
determining whether a flagrant violation occurred will subject
government entities to “strict liability.” It urges this court to adopt
the federal standard of municipal liability under 42 U.S.C. § 1983—a
standard it believes predicates municipal liability on the naming of a
municipal employee. But the County misunderstands the culpability
standard of municipal liability under federal law.33
    ¶27 In Monell v. Department of Social Services of City of New York,34
the Supreme Court held that, in addition to municipal employees,
municipalities could be found liable under 42 U.S.C. § 1983. But the
court expressly rejected the notion that Section 1983 would operate
to impose vicarious liability, holding that “a municipality cannot be
held liable solely because it employs a tortfeasor.”35 Instead, the court
limited Section 1983 liability to circumstances “when execution of a
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official




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   32   Spackman, 2000 UT 87, ¶ 24 (emphasis added).
   33 It is worth noting at the outset that this court is under no
obligation to follow Section 1983 jurisprudence since that statute has
no application to state constitutional violations and no analogous
statute exists in Utah. With that said, we frequently borrow
principles from Section 1983 jurisprudence, as we did in Spackman,
when determining the contours of liability when constitutional
rights have been violated. We do so again today.
   34   436 U.S. 658, 694 (1978).
   35   Id. at 691.

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policy, inflicts the injury.”36 And so municipal liability under the
federal law was born.
    ¶28 After Monell, the Supreme Court continued to refine its
municipal liability doctrine. No longer was it enough “to identify
conduct properly attributed to the municipality.”37 Rather, a plaintiff
was       also    required    to    “demonstrate      that,   through
its deliberate conduct, the municipality was the ‘moving force’ behind
the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and
the deprivation of federal rights.”38 But that is not all. A “plaintiff
seeking to establish municipal liability on the theory that a facially
lawful municipal action has led an employee to violate a plaintiff’s
rights must [also] demonstrate that the municipal action was taken
with ‘deliberate indifference’ as to its known or obvious
consequences.”39 Thus, under Section 1983 caselaw, a plaintiff now
must show the existence of a policy or custom, deliberate
indifference,40 and causation.
   ¶29 While Section 1983 jurisprudence has established stringent
requirements for proving municipal liability, the naming of a specific
municipal employee is simply not one of them. In fact, several

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   36   Id. at 694.
   37 Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404
(1997).
   38   Id. (emphasis added).
   39   Id. at 407 (citation omitted).
   40  A showing of deliberate indifference is only required when
there is a facially lawful municipal policy that causes an employee to
violate a plaintiff’s constitutional right. Id. at 406–07 (“[A] plaintiff
seeking to establish municipal liability on the theory that a facially
lawful municipal action has led an employee to violate a plaintiff’s
rights must demonstrate that the municipal action was taken with
‘deliberate indifference’ as to its known or obvious consequences.”
(citation omitted)). This typically occurs when a plaintiff alleges that
a municipality’s policy of inaction is the cause of his or her
constitutional harm. See City of Canton v. Harris, 489 U.S. 378, 388–89
(1989) (holding that the plaintiff must prove that a municipality’s
failure to train police officers “evidences a ‘deliberate indifference’”).

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                           Opinion of the Court

federal circuit courts have expressly rejected this notion. Weighing
the viability of a Section 1983 claim, the Second Circuit held that “the
plaintiff need not sue the individual tortfeasors at all, but may
proceed solely against the municipality.”41 Similarly, the First Circuit
has stated that there is “nothing to prevent a plaintiff from forgoing
the naming of an individual officer as a defendant and proceeding
directly to trial against the municipality.”42 While there are practical
reasons to include the specific municipal employee in a lawsuit
against a municipality, which explain why “plaintiffs almost never
choose to proceed against the municipality directly,”43 there is no

_____________________________________________________________
   41   Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013).
   42  Wilson v. Town of Mendon, 294 F.3d 1, 7 (1st Cir. 2002); see also
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (“Under § 1983,
only the conduct of those officials whose decisions constrain the
discretion of subordinates constitutes the acts of the municipality.
This does not mean, however, that the responsible decisionmaker
must be specifically identified by the plaintiff’s evidence. Practices so
permanent and well settled as to have the force of law [are]
ascribable to municipal decisionmakers.” (alteration in original)
(citations omitted) (internal quotation marks omitted)); James v. City
of Huntsville, No. 5:14-CV-02267-SGC, 2015 WL 9268159, at *3 (N.D.
Ala. Dec. 21, 2015) (“A plaintiff need not sue the individual
tortfeasors she alleges violated her constitutional rights but may
proceed solely against the municipality that employed them.”);
Onyenwe v. City of Corona, No. CV12-01363MMM(SPx), 2013 WL
12169375, at *18 (C.D. Cal. Dec. 1, 2013) (“The fact that [plaintiff] is
unable to identify the officer who used force against him, moreover,
does not foreclose him from attempting to hold the City liable for
excessive force, as [plaintiff] need not identify the specific officer
who committed the allegedly unconstitutional act to prevail on his
Monell claim.”), aff’d, 637 F. App’x 370 (9th Cir. 2016); White v. City of
Trenton, 848 F. Supp. 2d 497, 502 (D.N.J. Mar. 22, 2012) (“[C]ontrary
to the City Defendants’ assertion, this does not mean that a plaintiff
must always name the individual officers who allegedly inflicted the
constitutional harm.”).
   43 Wilson, 294 F.3d at 8. As the First Circuit notes, these reasons
include the fact that “[t]he predicate burden of proving a
constitutional harm on the part of a municipal employee . . . is much
easier to flesh out when the tortfeasor is a party amenable to the full
powers of discovery,” that the “burden of placing that harm in the
                                                           (Continued)
                                    14
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                          Opinion of the Court

reason a municipality cannot be held directly liable for damages for
its flagrant violations of constitutional rights. So, the County’s belief
that the federal municipal liability standard requires the naming of a
specific municipal employee is simply wrong.
    ¶30 The County also misunderstands the effect of removing a
named municipal employee requirement from a municipal liability
determination. Rather than imposing strict liability on the
municipality, as the County suggests, the federal municipal liability
standard makes it more challenging for a plaintiff to establish
municipality liability than when a specific municipal employee is
named. If a plaintiff cannot show the existence of a municipal policy
or custom, that that policy evidences the municipality’s deliberate
indifference to an individual’s constitutional rights, and that the
policy or custom caused the harm, the plaintiff cannot prevail. And
because a plaintiff has to show deliberate indifference, culpability
remains a factor in showing municipal liability. Accordingly, the
district court erred when it held that Mr. Kuchcinski must identify a
specific County employee who committed a flagrant violation of his
constitutional rights.
                     B. The flagrant violation standard
    ¶31 Having concluded that Mr. Kuchcinski did not need to
identify a specific Box Elder County employee to succeed on his due
process claims, we next turn to the standard he must prove to
establish municipal liability for a violation of the Utah Constitution.
We hold that the test we articulated in Spackman applies equally to
municipal liability suits. A plaintiff seeking damages for a
constitutional violation must show (1) that he or she suffered a
flagrant violation of his or her constitutional rights; (2) that existing
remedies do not redress his or her injuries; and (3) that equitable
relief, such as an injunction, was and is wholly inadequate to protect
the plaintiff’s rights or redress his or her injuries. 44 But, as we
acknowledged above, our flagrant violation prong of this test under
Spackman focused only on those instances where a plaintiff has
named a specific municipal employee in its suit. We accordingly


context of a causative municipal custom and policy is significantly
more onerous than the task of simply proving that an actionable
wrong occurred,” and that “an abstract entity like a municipality
may present a much less compelling face to a jury than a flesh and
blood defendant.” Id.
   44   Spackman, 2000 UT 87, ¶¶ 22–25.

                                      15
                       KUCHCINSKI v. BOX ELDER CTY.
                            Opinion of the Court

now set forth the elements a plaintiff must show when seeking to
establish a flagrant violation solely against a municipality.
    ¶32 Borrowing from Section 1983 jurisprudence,45 we hold that a
plaintiff seeking to prove that a municipality committed a flagrant
violation must show an “action pursuant to official municipal policy
of some nature caused a constitutional tort.”46 And, in order for an
action pursuant to an official municipal policy to constitute a
flagrant violation, the plaintiff must show (1) the existence of a
municipal policy or custom, (2) that this policy or custom “evidences
a ‘deliberate indifference’” to the plaintiff’s constitutional rights, and
(3) that this policy or custom was “closely related to the ultimate
injury.”47 We address each element separately.
    ¶33 First, a plaintiff seeking to prove that a municipality has
committed a flagrant violation must “identify a municipal ‘policy’ or
‘custom’ that caused the plaintiff’s injury.”48 Only “deprivations
visited pursuant to municipal ‘custom’ or ‘policy’ . . . lead to
municipal liability.”49 In other words, “municipalities cannot be held
liable . . . pursuant to the traditional tort of respondeat superior.”50 A

_____________________________________________________________
   45 While we are not bound by Section 1983 caselaw, see supra note
32, we have relied upon Section 1983 jurisprudence in determining
when a municipal officer may be immune from constitutional suit.
See, e.g., Jensen, 2011 UT 17, ¶ 52 (describing how this court has
“incorporated and expanded upon” the “defense of absolute
immunity from section 1983 civil rights actions” in determining
when a municipal officer is immune from suit under Spackman);
Parker v. Dodgion, 971 P.2d 496, 497–98 (Utah 1998) (relying on
Section 1983 jurisprudence to determine whether a court-appointed
psychologist qualifies for judicial immunity). We again choose to
borrow from this jurisprudence in developing the contours of our
Spackman test.
   46   Monell, 436 U.S. at 691.
   47   Canton, 489 U.S. at 388–91.
   48Peak Alarm Co., Inc. v. Salt Lake City Corp., 2010 UT 22, ¶ 79, 243
P.3d 1221 (citation omitted).
   49   City of Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985).
   50 Peak Alarm Co., 2010 UT 22, ¶ 79; see also Collins v. City of Harker
Heights, 503 U.S. 115, 122 (1992) (“[A city] is only liable when it can
be fairly said that the city itself is the wrongdoer.”).

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                            Opinion of the Court

“decision to adopt [a] particular course of action . . . by th[e]
government’s authorized decisionmakers . . . surely represents an act
of official government ‘policy.’”51 But this is not the only instance
where we will find an official policy or custom. “There is also no
question that [a] decision not to take any action to alleviate [a
constitutional violation] constitutes a policy for purposes
of . . . municipal liability.”52 A municipality’s policy of inaction,
therefore, may satisfy this element.53
    ¶34 Second, a plaintiff seeking to prove municipal liability for
inaction must show more than just the existence of a municipal
policy or custom; he or she must also show that this policy or custom
“evidences a ‘deliberate indifference’” to his or her constitutional
rights.54 The deliberate indifference requirement is “satisfied when
the municipality has actual or constructive notice that its action or
failure to act is substantially certain to result in a constitutional
violation, and it consciously or deliberately chooses to disregard the
risk of harm.”55 In cases involving municipal inaction, deliberate
indifference may be shown where the municipality has failed to act
despite a pattern of repeated constitutional offenses,56 or where there
is evidence that the plaintiff complained to the municipality about a
constitutional violation and the municipality did nothing.57 It can
also be established “when the need for more or different action ‘is so
obvious, and the inadequacy [of the current policy or procedure] so
likely to result in the violation of constitutional rights, that the
policymakers . . . can reasonably be said to have been deliberately
indifferent to the need.’”58 In other words, when the lack of a policy
_____________________________________________________________
   51   Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).
   52   Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992).
   53 A policy of inaction could include an unwritten rule or policy,
the lack of a policy, or the lack of an established practice of taking
action in such cases.
   54   Canton, 489 U.S. at 389.
   55 Peak Alarm Co., 2010 UT 22, ¶ 80 (quoting Barney v. Pulsipher,
143 F.3d 1299, 1307 (10th Cir. 1998)).
   56   Id.
   57   Hayes v. Faulkner Cty., 388 F.3d 669, 674 (8th Cir. 2004).
   58 Oviatt, 954 F.2d at 1477–78 (second alteration in original)
(quoting Canton, 489 U.S. at 390).

                                        17
                       KUCHCINSKI v. BOX ELDER CTY.
                            Opinion of the Court

or procedure so obviously results in a constitutional violation,
regardless of whether there is a known pattern or complaint of
constitutional violations, deliberate indifference may be
established.59
    ¶35 Finally, a plaintiff seeking to prove that a municipality
committed a flagrant violation must show “that a particular
violation was ‘caused’ by the municipal ‘policy.’”60 A plaintiff may
do this by showing that “the identified deficiency . . . [is] closely
related to the ultimate injury.”61 For example, a plaintiff meets the
causation element if he or she “prove[s] that the injury would have
been avoided had [the defendant] instituted some affirmative
procedure designed to” avoid the constitutional violation.62
    ¶36 With the correct standard in mind, we now turn to the
district court’s decision. The district court held that Mr. Kuchcinski
failed to show that the County committed a flagrant violation of his
constitutional rights. But the court was operating under the test for
flagrancy we articulated in Spackman for municipal employees. This
was error. In this case, because Mr. Kuchcinski brought suit only
against municipal entities, the court should have analyzed (1)
whether he identified a municipal policy, (2) whether that policy
evidenced a deliberate indifference, and (3) whether such policy
caused Mr. Kuchcinski’s injury.63 We therefore remand this case to
the district court to apply the correct test for determining whether a
municipal entity is liable for a constitutional violation.

_____________________________________________________________
   59 See Pembaur, 475 U.S. at 480; see also Heyerman v. Cty. of Calhoun,
680 F.3d 642, 648–49 (6th Cir. 2012) (“Courts have identified two
ways to demonstrate a municipality’s need to act. The plaintiff can
present evidence showing that the municipality possessed actual
knowledge indicating a deficiency with the existing policy or
training (or lack thereof), such as where there have been recurring
constitutional violations. Otherwise, the plaintiff must show that the
need to act should have been ’plainly obvious to the [municipality’s]
policymakers, who, nevertheless, are “deliberately indifferent” to the
need.’” (alteration in original) (citations omitted)).
   60   Tuttle, 471 U.S. at 823.
   61   Canton, 489 U.S. at 391; see also Oviatt, 954 F.2d at 1478.
   62   Oviatt, 954 F.2d at 1478 (quoting Canton, 489 U.S. at 391).
   63   Supra ¶ 32.

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                          Opinion of the Court

                     C. The district court’s task on remand
    ¶37 On remand, the district court should assess whether the
County is liable in a manner consistent with the legal principles set
out in this opinion and in our opinion in Spackman. Under our
common law test, a court may award a plaintiff damages only where
he or she establishes (1) that a constitutional violation of his or her
rights occurred, (2) that the constitutional provision the defendant
violated was “self-executing,” and (3) that the Spackman test for tort
liability is satisfied.64
    ¶38 Because Utah law makes clear that the due process clause is
self-executing, and the County does not argue otherwise, the district
court need not address the self-executing prong of our common law
analysis for liability on remand.65 But the court will need to
determine whether Mr. Kuchcinski’s constitutional rights were
violated—the first prong of the analysis—and, if his rights were
violated, the court must then apply the Spackman test, in accordance
with the principles we have articulated today, to determine whether
the County should be held liable for that violation.
1. The district court must determine whether a constitutional
   violation occurred
    ¶39 The first prong of our common law test for assessing
municipal liability requires the court to determine whether the
plaintiff’s constitutional rights were violated. This is so because our
Spackman test is only implicated when a court is assessing “the
availability of damages for constitutional violations.”66 Importantly,
this threshold determination does not answer who was responsible
for the violation, especially in cases involving multiple state actors
that acted in concert to effect a deprivation of a protected right.
Instead, it focuses on what occurred to the plaintiff through state
action.

_____________________________________________________________
   64 Spackman, 2000 UT 87, ¶¶ 19–25; see also supra ¶ 31 (listing the
three elements of the Spackman test: (1) that the violation was
flagrant, (2) that existing remedies do not redress the plaintiff’s
injuries, and (3) that equitable relief is wholly inadequate to protect
the plaintiff’s rights).
   65Spackman, 2000 UT 87, ¶ 18 (“[W]e hold that the Due Process
Clause . . . [is] self-executing.”).
   66   Id. ¶ 19 (emphasis added).

                                      19
                    KUCHCINSKI v. BOX ELDER CTY.
                         Opinion of the Court

   ¶40 Here, the district court did not reach this threshold question,
because it decided that Mr. Kuchcinski’s due process claim against
the County failed as a matter of law on a separate element (that the
Spackman test was not satisfied because there was not a flagrant
violation). Accordingly, the district court’s first task on remand will
be to determine whether Mr. Kuchcinski’s allegations amount to a
constitutional violation.67
    ¶41 Mr. Kuchcinski claims that his due process rights were
violated when he was “simply left” in jail for seventeen days. So the
district court must determine whether Mr. Kuchcinski’s
seventeen-day detention violated his constitutional right to due
process. The due process clause of the Utah Constitution protects
individuals from state-induced deprivations “of ‘life, liberty or
property, without due process of law.’”68 Thus, where an individual

_____________________________________________________________
   67Justice Lee criticizes our decision to instruct the district court as
to the test it should apply on remand. He argues that to do so is
improper because we do not have adversarial briefing on the issue
and, in his view, it “establishes governing standards under the due
process clause of the Utah Constitution.” See infra ¶ 52 (Lee, A.C.J.,
concurring). Yet where we are remanding for a determination of
whether a due process violation occurred, it is clearly “our
prerogative and responsibility” to articulate the standard for
assessing due process violations. State v. Houston, 2015 UT 40, ¶ 135,
353 P.3d 55 (Lee, A.C.J., concurring). And in explaining that an
individual suffers a violation of his due process rights when he is
detained without sufficient process, we are merely articulating a
well–established and basic principle of due process law that requires
no adversarial briefing.
   68 Salt Lake Legal Def. Ass’n v. Atherton, 2011 UT 58, ¶ 10, 267 P.3d
227; see also Adoption of K.A.S., 2016 UT 55, ¶ 85, 390 P.3d 278 (Lee,
A.C.J., dissenting) (“[T]he guarantee of ‘due process’ served as ‘a
restraint on the legislative as well as on the executive and judicial
powers of the government. (citation omitted)’”); see generally Due
Process Clause, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The
constitutional provision that prohibits the government from unfairly
or arbitrarily depriving a person of life, liberty, or property.”); Due-
Process Rights, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The rights
(as to life, liberty, and property) so fundamentally important as to
require compliance with due-process standards of fairness and
justice.”).

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                          Opinion of the Court

has been deprived of liberty without receiving due process, his or
her due process rights have been violated.69
   ¶42 When determining whether an individual’s due process
rights have been violated, we typically evaluate the issue in two
steps. First, we ask “‘whether the [complaining party] has been
deprived of a protected interest’ in property or liberty.”70 Second, if

_____________________________________________________________
   69 See Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, ¶ 48,
13 P.3d 581 (explaining that the due process clause provides that a
person’s right to liberty “should not be disrupted ‘without [the
government] following fundamental standards of due process of
law.’” (citation omitted)); see also Zadvydas v. Davis, 533 U.S. 678, 690
(2001) (“The Fifth Amendment’s Due Process Clause forbids the
Government to ‘depriv[e]’ any ‘person . . . of . . . liberty . . . without
due process of law.’ Freedom from imprisonment—from
government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that Clause protects. . . .
[G]overnment detention violates that Clause unless the detention is
ordered in a criminal proceeding with adequate procedural
protections.”) (first, second, third, and fourth alterations in original)
(emphasis omitted) (citations omitted)); Foucha v. Louisiana, 504 U.S.
71, 80 (1992) (“Freedom from bodily restraint has always been at the
core of the liberty protected by the Due Process Clause from
arbitrary governmental action. ‘It is clear that commitment for any
purpose constitutes a significant deprivation of liberty that requires
due process protection.’” (citation omitted)); Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 313 (1950) (“Many controversies have
raged about the cryptic and abstract words of the Due Process
Clause but there can be no doubt that at a minimum they require
that deprivation of life, liberty or property . . . be preceded by notice
and opportunity for hearing . . . .”); Jauch v. Choctaw Cty., 874 F.3d
425, 430 (5th Cir. 2017) (“The procedural due process analysis starts
with one inquiry: whether the state has ‘deprived the individual of a
protected interest—life, liberty, or property.’” (citation omitted));
State v. Angilau, 2011 UT 3, ¶ 13, 245 P.3d 745 (“Utah’s constitutional
guarantee of due process is substantially the same as the due process
guarantees contained in the Fifth and Fourteenth amendments to the
United States Constitution.” (citing Bailey v. Bayles, 2002 UT 58, ¶ 11
n.2, 52 P.3d 1158)).
   70 Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT
84, ¶ 48, 299 P.3d 990 (alteration in original) (citation omitted); see
                                                           (Continued)
                                     21
                       KUCHCINSKI v. BOX ELDER CTY.
                           Opinion of the Court

we find a “deprivation of a protected interest, we consider whether
the procedures at issue compl[ied] with due process.”71 If the
deprivation at issue was not justified by sufficient due process, then
the due process rights of the person who suffered the deprivation
have been violated.72
     ¶43 In this case, it is undisputed that Mr. Kuchcinski was held in
jail for seventeen days by a state actor, and that Mr. Kuchcinski was
never brought before a magistrate during the seventeen days in
which he was held.73 Accordingly, on remand the district court need
not determine whether a deprivation of liberty occurred—that fact is
undisputed. Instead, the court must determine whether
Mr. Kuchcinski’s deprivation of liberty was justified by the process
he was due.74


also Flowell Elec. Ass’n, Inc. v. Rhodes Pump, LLC, 2015 UT 87, ¶ 19, 361
P.3d 91 (“The first step in showing a violation of the Due Process
Clause is to show that there has been a deprivation of life, liberty, or
property.”).
   71   Jordan River Restoration Network, 2012 UT 84, ¶ 48.
   72 Harper v. Summit Cty., 2001 UT 10, ¶ 30, 26 P.3d 193 (explaining
that a plaintiff could show that the defendant county had violated
the plaintiff’s due process rights by demonstrating “both a property
interest and a deprivation of that interest by the [county] without the
required legal process”). We emphasize, however, that even though
the court may find that an individual’s due process rights were
violated, it does not necessarily mean that the state actor who
effected the deprivation is subject to tort liability. For tort liability to
be imposed, the plaintiff must also show that all of the elements of
the Spackman test have been satisfied.
   73  Although a hearing was held in which the justice court made a
probable cause determination and set bail, Mr. Kuchcinski was not
present at that hearing. And Mr. Kuchcinski alleges that he was held
in jail for twelve days before he learned, from his fiancée, that bail
had been set.
   74  Many federal courts have held that “the Due Process Clause
forbids an extended detention, without a first appearance, following
arrest by warrant.” Hayes v. Faulkner Cty., 388 F.3d 669, 673 (8th Cir.
2004) (citing cases from other circuits); see also id. at 674 (explaining
that a county’s policy that “attempt[ed] to delegate the responsibility
of bringing detainees to court for a first appearance . . . ignore[d] the
jail’s authority for long-term confinement” and was “deliberately
                                                             (Continued)
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                          Opinion of the Court

    ¶44 To be clear, the question is not whether the County had an
obligation to provide Mr. Kuchcinski with a hearing. That question is
not before us, and the answer may very well be no. This is so
because the due process clause does not necessarily entitle
individuals to every form of process in every instance—whether a
particular form of process is due (such as notice or a hearing)
depends on the nature of, and the circumstances surrounding, the
deprivation. But the due process clause does guarantee individuals
that they will not be deprived of liberty where the individual has not
received sufficient process from the state. So in determining whether
a constitutional violation occurred on remand, the district court does
not necessarily have to decide whether the County had an obligation
to produce Mr. Kuchcinski for an initial appearance irrespective of
whether the prosecution and the court were ready and available for




indifferent to detainees’ due process rights”); Armstrong v. Squadrito,
152 F.3d 564, 579 (7th Cir. 1998) (“[J]ailers hold not only the keys to
the jail cell, but also the knowledge of who sits in the jail and for how
long they have sat there. They are the ones directly depriving
detainees of liberty.”); Oviatt, 954 F.2d at 1476–77 (holding that a
policy was deliberately indifferent where the jail had no internal
procedures to track whether inmates had been arraigned); Coleman v.
Frantz, 754 F.2d 719, 724 (7th Cir. 1985) (explaining that “[a]n
extended detention before a first appearance, whether or not there
has been a valid determination of probable cause, substantially
impinges upon and threatens” a plaintiff’s constitutional due process
rights); see also Jauch, 874 F.3d at 430-35 (outlining the historical right
to prompt initial appearance and the constitutional protections of
this right). But there have been some federal courts that have held
that county jailers did not violate the due process clause where they
did not have express authority to release detainees. See Moya v.
Garcia, 895 F.3d 1229, 1235 (10th Cir. 2018); Estate of Brooks ex rel.
Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). As part of
the district court’s determination on remand, the court may find it
helpful to consider these federal cases. We also note that in the cases
in which liability was found there was proof of a county policy or
action that contributed to the due process violation. We further note
that a policy of inaction qualifies as a “policy” for purposes of
determining liability for a due process violation. See supra ¶ 33 (“A
municipality’s policy of inaction, therefore, may satisfy this
element.”).

                                      23
                   KUCHCINSKI v. BOX ELDER CTY.
                        Opinion of the Court

such a proceeding.75 Instead, it must decide whether, under the
circumstances presented in this case, Mr. Kuchcinski’s seventeen-day
detention constituted a constitutional violation.76 In making this
determination, the court must determine what process, if any,
Mr. Kuchcinski received—either from the County, the court, or some
other state actor. Then the court must determine whether the process
afforded Mr. Kuchcinski was sufficient to justify the seventeen-day
detention.77 If the process was insufficient, resulting in a
constitutional violation, the district court should proceed to the next
step in our common law test for municipal liability.
2. If the district court determines that Mr. Kuchcinski’s due process
   rights were violated, it must then determine, under the Spackman
   test for liability, whether the County is liable for that violation


_____________________________________________________________
   75 In this case it is possible that the County did not have an
obligation to provide Mr. Kuchcinski with a form of process because,
as the district court pointed out, the County does not “control court
calendars” and cannot compel a judge to hold a hearing. So if the
only relevant and appropriate form of process in this case was a
hearing before a magistrate, it was the judicial branch, not the
County, that had the duty to provide process. But if the County was,
or should have been, aware that the judicial branch failed to provide
the necessary process, the County could nevertheless be found to
have violated the due process clause through its continued
deprivation of Mr. Kuchcinski’s liberty.
   76 Some of the relevant facts to be considered are the probable
cause determination, Mr. Kuchcinski’s absence from the probable
cause hearing, the setting of bail, Mr. Kuchcinski’s allegation that he
was not informed of the bail determination until he learned about it
twelve days later from his fiancée, the County’s failure to take
Mr. Kuchcinski to the magistrate on his first Wednesday in jail, the
reason for that failure, and the County’s continued detention of
Mr. Kuchcinski for seventeen days. It is likely that the district court
will need to develop the record further to arrive at its decision.
   77  We once again reiterate that in determining whether
Mr. Kuchcinski’s constitutional rights were violated through state
action, the court need not identify whether a particular state actor
caused, or should be held responsible for, the violation—that
determination should be made at the next step of the analysis as part
of the Spackman test for liability.

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                              Cite as: 2019 UT 21
                           Opinion of the Court

   ¶45 If the district court determines that Mr. Kuchcinski’s
seventeen-day detention constituted a violation of his due process
rights, it must then apply the Spackman test to determine whether the
County, the only state actor named as a defendant in this case,
should be held responsible, through the imposition of tort liability,
for that violation. As we have already noted, the Spackman test
consists of three elements: (1) that the constitutional violation the
plaintiff suffered was a flagrant violation; (2) that existing remedies
do not redress his or her injuries; and (3) that equitable relief, such as
an injunction, was and is wholly inadequate to protect the plaintiff’s
rights or redress his or her injuries.78
   ¶46 Because Mr. Kuchcinski has identified the County, and not a
specific County employee, as the alleged violator of his due process
rights, he can satisfy the first, or flagrant violation, prong of this test
only by proving that a deliberately indifferent County policy caused
the violation.79 In making this determination, the district court
should keep in mind that a policy of inaction, as discussed above,80 can
qualify as a policy sufficient to establish municipal liability.81 If the
_____________________________________________________________
   78   Spackman, 2000 UT 87, ¶¶ 22–25; see also supra ¶ 31.
   79 See supra ¶ 30; see also supra ¶¶ 32–35 (explaining that to show
the existence of a flagrant violation in this case, Mr. Kuchcinski must
prove (1) the existence of a municipal policy, (2) that this municipal
policy evidences a deliberate indifference to his constitutional rights,
and (3) that the deliberately indifferent policy (or lack of policy)
caused his injury).
   80   See supra ¶¶ 33–34.
   81 In this case, the deliberately-indifferent nature of the violation
may hinge on whether the County knew, or should have known,
that Mr. Kuchcinski was being unjustifiably deprived of his liberty.
See supra ¶ 22 (explaining that the flagrancy requirement means that
the defendant “must have violated clearly established constitutional
rights of which a reasonable person would have known” (citation
omitted) (internal quotation marks omitted)). So if the court
determines that the County violated Mr. Kuchcinski’s due process
rights in this case, the court must then determine whether that
violation was the result of some systemic failing—stemming from a
policy or lack of a policy—or whether it was an isolated incident of a
type the County could not reasonably have anticipated. See id.
(explaining that the flagrancy requirement “ensures that a
government [actor] is allowed the ordinary human frailties of
                                                            (Continued)
                                     25
                    KUCHCINSKI v. BOX ELDER CTY.
                         Opinion of the Court

district court finds a genuine issue of material fact as to the existence
of a municipal policy, it should also determine whether an issue of
fact exists as to whether such policy demonstrates deliberate
indifference by the County.82 Like other factual issues, the question
of whether the County acted deliberately indifferent should be a




forgetfulness, distractibility, or misjudgment without rendering [him
or her]self liable for a constitutional violation”) (second alteration in
original) (citation omitted) (internal quotation marks omitted)). In
other words, if the court determines that County policies at the time
were generally insufficient to prevent the type of due process
violation Mr. Kuchcinski suffered, and the County knew or should
have known that a violation was likely to occur, then the flagrant
violation prong is satisfied.
   82 Several courts have upheld findings that a municipality has
acted in a deliberately indifferent way based upon the municipality’s
prolonged detention of individuals without prompt pretrial
procedures. For example, the Ninth Circuit has held that a municipal
policy was deliberately indifferent where the jail had no internal
procedures to track whether inmates had been arraigned. Oviatt, 954
F.2d at 1479 (“We hold that with the evidence established at trial, a
reasonable jury could conclude that the likelihood of unjustified
incarceration was so obvious that defendants’ policy with regard to
detecting prolonged incarceration without prompt pretrial
procedures evidenced deliberate indifference . . . .”). The Seventh
Circuit has also stated that a “policy that ignores whether the jail has
the authority for long-term confinement seems to be a policy of
deliberate indifference.” Armstrong, 152 F.3d at 578–79. Similarly, the
Eighth Circuit found deliberate indifference when a county’s “policy
was to submit the names of confinees to the court and then wait for
the court to schedule a hearing.” Hayes, 388 F.3d at 674. The court
reasoned that because “the County’s policy here attempts to delegate
the responsibility of bringing detainees to court for a first
appearance and ignores the jail’s authority for long-term
confinement, the policy is deliberately indifferent to detainees’ due
process rights.” Id. Although we are not bound by federal caselaw or
the reasoning of federal courts, the district court on remand is, of
course, free to consider the reasoning in these and other related cases
as part of its deliberate indifference analysis.

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                          Opinion of the Court

determination made by the jury.83
    ¶47 Finally, the district court must also make determinations
regarding the final two prongs of the Spackman test—whether
“existing remedies do not redress” Mr. Kuchcinski’s injuries, and
whether “equitable relief . . . was and is wholly inadequate to protect
[his] rights or redress his . . . injuries.”84
   ¶48 Because the district court failed to apply the correct flagrant
violation standard, and failed to consider the other elements of our
common law test for liability for constitutional violations, we
remand this case back to the district court for the necessary
determinations outlined in this opinion.
                              Conclusion
   ¶49 Mr. Kuchcinski alleged that the County violated his rights
under the bail and due process clauses of the Utah Constitution.
Because he has failed to show that the bail clause is self-executing,
we hold that the district court did not err in dismissing his bail
clause claims. But the court did err when it determined that
Mr. Kuchcinski must identify a specific municipal employee in order
to successfully bring a municipal liability claim under the Utah
Constitution. And the district court applied the wrong standard in
granting summary judgment against him on his claim that the
County flagrantly violated his constitutional rights. We therefore
reverse the district court’s determination and remand so that it may
apply the proper standard.




_____________________________________________________________
   83  Farmer v. Brennan, 511 U.S. 825, 842 (1994) (“Whether a
[municipality] had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, . . . and a
factfinder may conclude that [the municipality] knew of a substantial
risk from the very fact that the risk was obvious.” (citations
omitted)); Oviatt, 954 F.2d at 1478 (“Whether a local government
entity has displayed a policy of deliberate indifference is generally a
question for the jury.”).
   84   Spackman, 2000 UT 87, ¶¶ 24–25.

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                    KUCHCINSKI v. BOX ELDER CTY.
   A.C.J. Lee, concurring in part and concurring in the judgment

    ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
    ¶50 I agree with the court’s analysis of the bail clause claim and
thus concur in Part I of the majority opinion. I also agree with the
threshold premises of the majority’s disposition of the due process
claim against the County: the failure to identify a specific Box Elder
County official is not fatal to this claim, supra ¶ 30, and the County
may be liable for a flagrant violation of the due process clause, supra
¶¶ 31–36. These are straightforward, appropriate grounds for the
decision to reverse and remand to the district court. And on remand
Mr. Kuchcinski should have an opportunity to develop the record
and to present arguments in support of his attempt to establish the
County’s liability for a due process violation.
    ¶51 We should end the analysis there, however. The above
premises adequately and effectively address the arguments
presented to us on this appeal. We need not and should not proceed
to provide further guidance to the parties on remand.
    ¶52 I disagree with and do not concur in paragraphs 37–48 of
the court’s opinion. In these paragraphs the majority establishes
governing standards under the due process clause of the Utah
Constitution. It does so without any briefing from the parties on
these issues. And it establishes principles of state due process while
citing only federal cases under the United States Constitution.
   ¶53 This is doubly problematic. We have repeatedly declined to
resolve questions not addressed by the parties in their briefs.85 And
we have long emphasized that our interpretation of the Utah
Constitution does not proceed in lockstep with federal precedent
under parallel provisions of the United States Constitution.86 Our

_____________________________________________________________
   85  Winward v. State, 2012 UT 85, ¶ 18 n.4, 293 P.3d 259
(recognizing that it would be “imprudent to now resolve [an]
extremely important issue without the benefit of adversarial
briefing”); State v. Ball, 685 P.2d 1055, 1061 (Utah 1984) (declining to
consider the scope of a state constitutional provision when the issues
were not briefed by the parties because they “deserve thorough
treatment by counsel and careful consideration by the Court”).
   86State v. Briggs, 2008 UT 83, ¶ 24, 199 P.3d 935 (“[W]e do not
presume that federal court interpretations of federal Constitutional
provisions control the meaning of identical provisions in the Utah
Constitution.”).

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                         Cite as: 2019 UT 21
   A.C.J. Lee, concurring in part and concurring in the judgment

recent cases are particularly forceful on this point. We have
underscored the importance of historical analysis focusing on the
original meaning of the terms of the Utah Constitution,87 and
declined to establish new state constitutional rights in the absence of
such briefing.88
    ¶54 I would follow these principles here. And I would stop short
of providing the guidance presented by the court in paragraphs 37–
48.89




_____________________________________________________________
   87 Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 67, 416 P.3d
663 (explaining that we “should look to the original meaning of the
Utah Constitution” in interpreting the state due process clause); Am.
Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 66, 140 P.3d 1235
(interpreting the Utah free speech clause not in terms of our own
policy arguments or modern preferences but in light of originalist
inquiry; explaining that “[i]t is not our place” to “substitut[e] our
own value judgment for that of the people of Utah when they
drafted and ratified the constitution”).
   88 See Zimmerman v. Univ. of Utah, 2018 UT 1, ¶ 19, 417 P.3d 78
(refusing to reach state constitutional questions because parties
failed to provide any briefing on the original meaning of the
constitutional provision).
   89I do not question the general “prerogative” of the court to offer
guidance for the parties on remand. Supra ¶ 40 n.67. But the majority
has cited no precedent or other support for the provision of such
guidance in a circumstance like this one—where we have no briefing
from the parties, and where the only authority we cite for a state
constitutional standard is precedent under the United States
Constitution.

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