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                                                               No. 99-476

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2000 MT 101N



                                                    AMADO GERRY LOPEZ,

                                                      Plaintiff and Appellants,

                                                                      v.

                              MUSSELSHELL COUNTY; MUSSELSHELL COUNTY

                             SHERIFF, G. PAUL SMITH, individually and in his official

                              capacity; MUSSELSHELL COUNTY ATTORNEY JOHN

                               BOHLMAN, individually and in his official capacity; and

                          MUSSELSHELL COUNTY SHERIFF'S DEPUTIES ORVILLE

                                "BUZZ" JONES; "DUTCH" VAN SYCKEL; WANDA

                              SPAULDING; and WOODROW "WOODY" WEITZEIL,

                                         individually and in their official capacities,

                                                  Defendants and Respondents.



                        APPEAL FROM: District Court of the Fourteenth Judicial District,

                                             In and for the County of Musselshell,

                                      The Honorable John McKeon, Judge presiding.



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                                                     COUNSEL OF RECORD:

                                                              For Appellant:

                                 Matthew J. Sisler; Sisler Law Firm, Missoula, Montana

                                                            For Respondents:

                            Steve R. Milch; Crowley, Haughey, Hanson, Toole & Dietrich,

                                                           Billings, Montana

                                   James D. Walen; Stacey & Walen, Billings, Montana



                                            Submitted on Briefs: December 9, 1999

                                                       Decided: April 20, 2000

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

    1. ¶2 Amado Lopez (Lopez) appeals from the Order entered by the Fourteenth Judicial
       District Court, Musselshell County, granting partial summary judgment to the
       defendants and dismissing several of his claims. We affirm.
    2. ¶3 We rephrase the issues on appeal as follows:
    3. ¶4 1. Did the District Court err in granting summary judgment to the defendant law
       enforcement agents and dismissing all 42 U.S.C. § 1983 claims against them related

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        to the alleged unlawful arrest and false imprisonment of Lopez?
   4.   ¶5 2. Did the District Court err in granting summary judgment to John Bohlman in
        his official capacity and dismissing all claims against him arising out of his
        prosecutorial function as the Musselshell County Attorney?
   5.   ¶6 3. Did the District Court err in granting summary judgment to John Bohlman and
        dismissing all claims against him related to his role in assisting law enforcement
        agents in arresting Lopez?
   6.   ¶7 4. Did the District Court err in granting partial summary judgment to the
        defendants on Lopez's conspiracy claims?
   7.   ¶8 5. Did the District Court err in awarding the defendants costs?

                                                          BACKGROUND

   1. ¶9 In early 1995, law enforcement personnel in Musselshell County began receiving
      threats of bodily harm from Rodney Skurdal (Skurdal), a so-called "Freeman" who
      resided in a cabin south of Roundup, Montana. On February 22, 1995, FBI Special
      Agent Tommie Canady informed Musselshell County Sheriff G. Paul Smith that a
      "reliable source" told him an individual named Jacobi and others were planning to
      "kidnap and lynch a judge in Musselshell County." Sheriff Smith disseminated that
      information to his deputies, hired reserve deputies and placed law enforcement in
      Musselshell County on "heightened security." Sheriff Smith also increased security
      in the courthouse and assigned deputies to protect Judge Roy Rodeghiero and escort
      him to and from his residence.
   2. ¶10 At approximately 4:00 p.m. on March 3, 1995, Reserve Deputy Mike Thomas
      observed a man in the Musselshell County Courthouse whom he believed was
      performing reconnaissance prior to a possible kidnaping. Deputy Thomas described
      the individual and what he observed to Deputy Orville Jones and stated that the
      individual left the courthouse, got into a white flat-bed truck with dual tires with
      another individual and drove south on Main Street.
   3. ¶11 Deputy Jones located the flat-bed truck on Main Street and noticed it had no
      rear license plate. He stopped the vehicle and identified the driver as Dale Jacobi
      (Jacobi), who did not have a driver's license. Jacobi was arrested for no driver's
      license, no current registration, and no proof of liability insurance.
   4. ¶12 Deputy Jones conducted a pat-down search of Jacobi and discovered a revolver.
      The passenger in the vehicle, Frank Ellena (Ellena), met the description of the
      person Deputy Thomas had observed in the courthouse. Deputy Jones discovered
      Ellena was in possession of a pistol and arrested both men for carrying concealed

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        weapons. Jacobi and Ellena also had a two-way radio in the vehicle.
   5.   ¶13 Jacobi and Ellena were taken to the sheriff's office, booked and incarcerated.
        Since Jacobi and Ellena were armed and possessed a two-way radio, Sheriff Smith
        and his deputies believed there could be other people in other vehicles involved in a
        possible attempt to kidnap Judge Rodeghiero.
   6.   ¶14 A search of Jacobi's flat-bed truck located several weapons and ammunition,
        including four SKS assault rifles and two bandoliers of ammunition. A bundle of
        flex-cuffs, pepper spray, duct tape and sophisticated radio communication
        equipment also were recovered from the vehicle. Deputy Jones called Musselshell
        County Attorney John Bohlman (Bohlman), explained the situation and asked him
        to come to the sheriff's office and determine the charges to be filed against Jacobi
        and Ellena.
   7.   ¶15 Cajun James (James), Paul Stramer (Stramer) and Lopez witnessed Jacobi and
        Ellena's arrests. Stramer called John Trochmann (Trochmann) at the Skurdal cabin
        and informed him of the arrests. Stramer, James and Lopez then returned to the
        cabin.
   8.   ¶16 Trochmann, Mark Basque (Basque), James, Stramer and Lopez subsequently
        "left [the cabin] to go look for Dale Jacobi and Frank Ellena." At approximately
        6:00 p.m., deputies saw two vehicles containing five men park at opposite ends of
        the sheriff's office parking lot in what appeared to be an effort to block the entrance.
        One vehicle was backed into a parking space in what Deputy "Dutch" Van Syckel
        thought was preparation for a quick get-away. Deputy Van Syckel also observed at
        least one person talking on a handheld radio.
   9.   ¶17 James, Stramer and Lopez exited the vehicles and entered the sheriff's office.
        Prior to doing so, Stramer removed his pistol from his holster and left it in his truck.
        James entered the sheriff's office carrying a pistol in a holster.
 10.    ¶18 Inside, the three men requested the return of their personal property and,
        specifically, the two-way radio seized from Jacobi and Ellena. They also asked
        Deputy Van Syckel, through the security window, why Jacobi and Ellena had been
        arrested. The deputy saw Stramer's holster protruding beneath his jacket and shouted
        "I see a gun." James then revealed the pistol in his holster and Deputy Van Syckel
        shouted "I see another gun."
 11.    ¶19 At that point, Deputy Jones burst through the door separating the officers from
        James, Stramer and Lopez with a shotgun and Deputy Van Syckel followed with his
        handgun drawn. James, Stramer and Lopez were arrested, handcuffed and placed on
        the floor.
 12.    ¶20 While Deputy Wanda Spaulding guarded the three men, Deputies Jones and

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       Van Syckel investigated Trochmann and Basque who were waiting outside.
       Deputies Jones and Van Syckel subsequently arrested Trochmann and Basque and
       placed them face down on the floor of the sheriff's office with James, Stramer and
       Lopez.
 13.   ¶21 Bohlman had arrived at the sheriff's office before the two vehicles. When the
       two vehicles arrived in the parking lot, Deputy Jones handed Bohlman his handgun
       and Bohlman remained in an interior office of the building. Bohlman came out of
       the office after the five men were lying on the floor; Deputy Jones took his handgun
       back and gave Bohlman the shotgun. Deputy Spaulding and Bohlman were
       instructed to "cover" the men while Deputies Jones, Van Syckel and Woodrow
       Weitzeil searched them and escorted them to a holding cell.
 14.   ¶22 Information regarding the arrests was submitted to Bohlman and the Montana
       Attorney General's Office to determine the appropriate charges. The State of
       Montana (State) subsequently charged James, Stramer and Lopez with criminal
       syndicalism, intimidation, and tampering with evidence. Trochmann and Basque
       were charged with criminal syndicalism, intimidation by accountability, and
       attempted tampering with evidence. John Connor, Jr., of the Attorney General's
       Prosecution Services Bureau, took over the case and dismissed the charges after
       further investigation based on his decision that they could not be proved beyond a
       reasonable doubt.
 15.   ¶23 Lopez and others subsequently sued Musselshell County, Sheriff Smith,
       Deputies Jones, Van Syckel, Spaulding and Weitzeil, and Bohlman under 42 U.S.C.
       § 1983, and for various tort claims relating to the men's arrests. As amended, their
       complaint set forth five causes of action which are discussed as necessary below.
 16.   ¶24 Musselshell County, the defendant law enforcement agents--Sheriff Smith and
       Deputies Jones, Van Syckel, Spaulding and Weitzeil--and Bohlman subsequently
       moved for summary judgment and the District Court entered its order granting
       summary judgment in part and denying it in part. Lopez's remaining claims
       proceeded to trial and the jury found in the defendants' favor. Lopez appeals.

                                                  STANDARD OF REVIEW

   1. ¶25 We review a district court's ruling on a motion for summary judgment de novo,
       using the same Rule 56(c), M.R.Civ.P., criteria applied by the district court. Clark v.
       Eagle Systems, Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997 (citations
       omitted). Under Rule 56(c), M.R.Civ.P., summary judgment is proper when no
       genuine issues of material fact exist and the moving party is entitled to judgment as

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       a matter of law.
    2. ¶26 The moving party has the initial burden of demonstrating the absence of
       genuine issues of material fact. Clark, 279 Mont. at 283, 927 P.2d at 997 (citation
       omitted). If this burden is satisfied, the party opposing summary judgment must
       present material and substantial evidence, rather than conclusory or speculative
       statements, to demonstrate that a genuine issue of material fact exists. Clark, 279
       Mont. at 283, 927 P.2d at 998 (citation omitted). We review a district court's
       conclusions of law to determine whether they are correct. Clark, 279 Mont. at 284,
       927 P.2d at 998 (citations omitted).

                                                             DISCUSSION

    1. ¶27 1. Did the District Court err in granting summary judgment to the
        defendant law enforcement agents and dismissing all § 1983 claims against
        them related to the alleged unlawful arrest and false imprisonment of Lopez?



    1. ¶The District Court concluded, on the basis of the undisputed facts, that the
       defendant law enforcement agents had probable cause to arrest and detain Lopez,
       rather than a mere suspicion of criminal activity. It expressly determined that "these
       trained officers had facts and circumstances sufficient to warrant a reasonable
       person to believe an offense or offenses were being committed. One of the offenses
       reasonably believed committed included conspiracy or the planning to kidnap and
       perhaps kill a judge."
    2. ¶A peace officer may arrest a person without a warrant if probable cause exists to
       believe the person is committing, or has committed, an offense and existing
       circumstances require immediate arrest. Section 46-6-311(1), MCA.

[P]robable cause is established if the facts and circumstances within an officer's personal
knowledge, or related to the officer by a reliable source, are sufficient to warrant a
reasonable person to believe that another person is committing or has committed an
offense. A probable cause determination must be based on an assessment of all relevant
circumstances, evaluated in light of the knowledge of a trained law enforcement officer.
Mere suspicion on the officer's part is not enough to establish probable cause to believe a
person has committed an offense.

State v. Williamson, 1998 MT 199, ¶ 21, 290 Mont. 321, ¶ 21, 965 P.2d 231, ¶ 21 (citations omitted).

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Moreover, if probable cause existed for Lopez's arrest, it is "an absolute bar to a Section 1983 claim for
unlawful arrest, false imprisonment, or malicious prosecution." See Schertz v. Waupaca County (7th
Cir. 1989), 875 F.2d 578, 582.

    1. ¶In support of their summary judgment motion, the defendant law enforcement
         agents submitted the following deposition testimony which they contended
         established the absence of genuine issues of material fact relating to probable cause
         to arrest Lopez. Agent Canady informed Sheriff Smith of a tip from a reliable source
         that someone named Jacobi and others were planning to "kidnap and lynch a judge
         in Musselshell County." In response, Sheriff Smith hired reserve officers, placed his
         department on heightened security, increased security at the courthouse and
         assigned deputies to escort Judge Rodeghiero to and from his home.
    2.   ¶Jacobi and Ellena were arrested--in possession of SKS assault rifles, ammunition,
         flex-cuffs, pepper spray and sophisticated radio equipment--after conducting what
         appeared to Deputy Thomas to be a reconnaissance of the courthouse. Shortly
         thereafter, telephone inquiries about the arrests began.
    3.   ¶Within two hours, two vehicles--containing five men--arrived and parked at
         opposite ends of the sheriff's office parking lot. One was backed into a parking
         space in what Deputy Van Syckel believed to be "preparation for a quick get-away."
         James, Stramer and Lopez entered the sheriff's office, requested the return of a radio
         seized from Jacobi and Ellena and asked why the arrests had been made. Deputy
         Van Syckel saw the bottom of a holster protruding from one of their jackets and
         a .45 semi-automatic pistol in a holster worn by another. At this point, Deputies
         Jones and Van Syckel arrested James, Stramer and Lopez.
    4.   ¶Based on this testimony, we conclude the defendant law enforcement agents
         established the absence of genuine issues of material fact relating to probable cause
         to arrest Lopez. The information within their personal knowledge and relayed by a
         reliable source constituted sufficient facts and circumstances to lead a reasonable
         person to believe an offense, such as conspiracy to kidnap or kill a judge, was being
         committed. See § 46-6-311(1), MCA; Williamson, at ¶ 21.
    5.   ¶Lopez contends, however, that Agent Canady and Sheriff Smith's testimony
         regarding the tip from a reliable source that a plan was afoot to "kidnap and lynch a
         judge in Musselshell County" was lacking in documentation. He urges this lack of
         documentation creates a factual issue as to whether or not the defendant law
         enforcement agents had knowledge of the tip. His reliance is misplaced.
    6.   ¶Agent Canady and Sheriff Smith's sworn testimonies are sufficient to establish the
         absence of an issue of fact relating to the tip. The burden then shifted to Lopez to
         come forward with material and substantial evidence, rather than conclusory or

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      speculative statements, to demonstrate that a genuine issue of material fact exists.
      See Clark, 279 Mont. at 283, 927 P.2d at 998 (citation omitted). He failed to do so.
      While Lopez indicates written evidence or phone records "would substantiate (or
      not)" Agent Canady's testimony regarding the tip, it was his burden to produce such
      evidence.
   7. ¶Lopez also argues that, since he was not carrying a weapon and all charges against
      him ultimately were dismissed, he committed no offense. Accordingly, he contends
      the defendant law enforcement agents mistakenly assumed and speculated about his
      involvement and this is an insufficient basis for probable cause. However, the
      existence of probable cause to arrest is premised on circumstances as they exist at
      the time, not matters determined subsequent to that time. See, e.g., § 46-6-311(1),
      MCA; Williamson, at ¶ 21. Probable cause to arrest, once it exists, is not "undone"
      by later events. See State v. Kelly (1983), 205 Mont. 417, 431, 668 P.2d 1032, 1040.
   8. ¶Lopez having failed to establish a genuine issue of material fact regarding probable
      cause, the probable cause barred § 1983 claims for unlawful arrest and false
      imprisonment. See Schertz, 875 P.2d at 582. We hold, therefore, that the District
      Court did not err in granting summary judgment to the defendant law enforcement
      agents and dismissing Lopez's § 1983 claims based on unlawful arrest and false
      imprisonment.
   9. ¶2. Did the District Court err in granting summary judgment to Bohlman in his
      official capacity and dismissing all claims against him arising out of his
      prosecutorial function?



   1. ¶The District Court granted partial summary judgment to Bohlman and dismissed
      Lopez's claims arising out of Bohlman's prosecutorial function as the Musselshell
      County Attorney based on prosecutorial immunity. On appeal, Lopez asserts error
      only as to the court's application of the doctrine of prosecutorial immunity to his
      claims against Bohlman in Bohlman's official--not individual--capacity. He cites to
      two cases for the proposition that immunities such as prosecutorial immunity are
      personal to the individual and, therefore, can be applied only to claims against a
      person in her or his individual capacity and not to official capacity claims which are,
      in essence, claims against the employing governmental units.
   2. ¶The problem with Lopez's argument is that, as the defendants point out, he did not
      present it in the District Court. There, Lopez's one-paragraph response to Bohlman's
      contention that he was entitled to prosecutorial immunity was simply that Bohlman's
      "request is without merit." No legal authorities or analyses whatsoever were

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       presented on the subject of prosecutorial immunity. Nor did Lopez assert any
       distinction regarding application of the doctrine insofar as individual or official
       capacity claims were concerned.
    3. ¶We generally do not consider an issue presented for the first time on appeal
       because "it is fundamentally unfair to fault the trial court for failing to rule correctly
       on an issue it was never given the opportunity to consider." Unified Industries, Inc.
       v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15 (citation
       omitted). Having failed to raise the issue of whether prosecutorial immunity applies
       to his official capacity claims against Bohlman in the District Court, Lopez waived
       his right to raise it on appeal.
    4. ¶We hold that the District Court properly granted summary judgment to Bohlman
       and dismissed all claims against him arising out of his prosecutorial function as the
       Musselshell County Attorney.
    5. ¶3. Did the District Court err in granting summary judgment to Bohlman and
       dismissing all claims related to his role in assisting law enforcement agents in
       arresting Lopez?



    1. ¶The District Court granted Bohlman summary judgment and dismissed Lopez's
        claims for excessive use of force in assisting the defendant law enforcement agents
        in arresting Lopez. The court explained

the undisputed facts are that . . . at the direction of the law enforcement officers, Bohlman
guarded the three Plaintiffs on the floor of the Sheriff's Department briefly while Deputies
Jones and Van Syckel went to investigate the two men waiting outside in the vehicle. In
the course of guarding these Plaintiffs, [Bohlman] may have pointed [a weapon] at
Plaintiffs. In light of the probable cause to arrest for commission of a conspiracy offense
and with other men waiting outside, such use of force, without more, is entirely
reasonable. Plaintiffs failed to present any facts to show additional actions by [Bohlman]
during their arrest. As a matter of law, [Bohlman] did not use excessive force in the arrest
of Plaintiffs. See Courson v. McMillian, 939 F.2d 1479, 1493 (11th Cir. 1991).



The District Court also dismissed Lopez's tort claims against Bohlman relating to
Bohlman's actions in assisting the deputies based on the immunity set forth in § 46-6-402
(2)(b), MCA.


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   1. ¶Lopez primarily contends that Bohlman is not entitled to prosecutorial immunity
        for his role in Lopez's arrest. As set forth above, however, the District Court did not
        grant summary judgment on these claims on the basis of prosecutorial immunity.
   2.   ¶Lopez also argues Bohlman was not justified in pointing a loaded firearm at his
        head. In this regard, he contends Bohlman was engaged in a conspiracy to deprive
        him of his constitutional right to due process of law, probable cause to arrest was
        lacking and, in any event, Bohlman's action was unreasonable.
   3.   ¶Claims for excessive use of force in the course of an arrest are analyzed under the
        Fourth Amendment's "reasonableness" standard. Graham v. Connor (1989), 490 U.
        S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443, 454. "[T]he 'reasonableness'
        inquiry in an excessive force case is an objective one: the question is whether the
        officers' actions are 'objectively reasonable' in light of the facts and circumstances
        confronting them, without regard to their underlying intent or motivation." Graham,
        490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456 (citation omitted).
   4.   ¶We need not reiterate the facts set forth above which were sufficient to establish
        probable cause to believe that Lopez was involved in a conspiracy to kidnap or kill a
        judge and which set the stage for Bohlman's actions of "covering" or even pointing a
        weapon at Lopez. In light of those facts and the circumstances facing Bohlman, his
        actions were objectively reasonable.
   5.   ¶Moreover, a peace officer making a lawful arrest may command the aid of other
        persons and, in such an event, the person "is not civilly liable for any reasonable
        conduct in aid of the officer." Sections 46-6-402(1) and (2)(b), MCA. In this case,
        Deputy Jones gave Bohlman a weapon and directed him to cover the suspects while
        they were searched and placed in a holding cell. Bohlman's conduct in aiding the
        deputy at the deputy's direction was reasonable under the circumstances. Therefore,
        the District Court did not err in concluding that Bohlman is immune from civil
        liability pursuant to § 46-6-402(2)(b), MCA.
   6.   ¶We hold the District Court properly granted summary judgment to Bohlman and
        dismissed all claims related to his role in assisting law enforcement agents in
        arresting Lopez.
   7.   ¶4. Did the District Court err in granting partial summary judgment to the
        defendants on Lopez's conspiracy claims?



   1. ¶The defendants moved for summary judgment on, and dismissal of, all the
        conspiracy claims against them. They relied on the determination by the Seventh
        Circuit Court of Appeals in Kunik v. Racine County (7th Cir. 1991), 946 F.2d 1574,

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        1580 (citation omitted), that "[a] complaint inadequately alleges conspiracy when
        the facts it alleges are vague, conclusionary and include no overt acts reasonably
        related to the promotion of the alleged conspiracy."
   2.   ¶The District Court made findings regarding Lopez's conspiracy claims and
        concluded that only one was supported by allegations which were not "merely
        conclusory and too vague." Accordingly, it dismissed all but one of Lopez's
        conspiracy claims.
   3.   ¶Lopez asserts the court erred in precluding him from presenting his claim of a
        conspiracy to violate his Fourth Amendment and due process rights. In this regard,
        he contends probable cause did not exist for his arrest and, as a result, he was
        inappropriately detained. Having determined above that probable cause existed for
        the arrest, we need not address this contention further.
   4.   ¶We hold the District Court properly granted partial summary judgment to the
        defendants on Lopez's conspiracy claims.
   5.   ¶5. Did the District Court err in awarding the defendants costs?



   1. ¶After a trial on Lopez's remaining claims, the jury returned a verdict on April 27,
      1999, in the defendants' favor. The defendants filed and served a memorandum of
      costs and disbursements two days later and Lopez objected to the costs on May 10,
      1999. The District Court subsequently awarded the defendants their costs.
   2. ¶Lopez contends that the defendants defended against the claims of six plaintiffs in
      this case and that the case was intertwined with a related action by Trochmann. We
      need not address Lopez's contention, however, because the record is clear that his
      objections to costs were not timely filed under § 25-20-502, MCA. Accordingly,
      Lopez waived his right to object to the defendants' claimed costs.
   3. ¶We hold the District Court did not err in awarding the defendants costs.
   4. ¶Affirmed.



                                                    /S/ KARLA M. GRAY

                                                              We concur:

                                                   /S/ JAMES C. NELSON

                                               /S/ TERRY N. TRIEWEILER

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                                                        /S/ JIM REGNIER

                                             /S/ W. WILLIAM LEAPHART




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