                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 45499

STEVEN L. PICATTI,                      )
                                        )
        Plaintiff-Appellant,            )
                                        )                   Boise, January 2019 Term
v.                                      )
                                        )                   Opinion Filed: September 10,
AARON MINER and DENNIS LAURENCE, )                          2019
                                        )
        Defendants-Respondents,         )                   Karel A. Lehrman, Clerk
                                        )
and                                     )                   SUBSTITUTE OPINION. THE
                                        )                   OPINION PREVIOUSLY
MARK WILLIAMSON, RANDALL                )                   RELEASED ON JUNE 7, 2019 IS
GOODSPEED, and JOHN DOES 1-5,           )                   HEREBY WITHDRAWN.
                                        )
        Defendants.                     )
_______________________________________ )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, Ada County. Jason D. Scott, District Judge.

       The district court’s order granting summary judgment is affirmed in part and
       vacated in part.

       Johnson & Monteleone, LLP, Boise, for appellant. Bruce S. Bistline argued.

       Jan M. Bennetts, Ada County Prosecuting Attorney, Boise, for respondent. Erica
       White argued.
                                    _____________________

BRODY, Justice.
       This appeal arises from the district court’s decision to bar Steven Picatti’s 42 U.S.C.
section 1983 claims against two deputies on the basis of collateral estoppel. On July 12, 2014,
Picatti struggled to drive home because road access was blocked for the Eagle Fun Days parade.
After circumventing some orange barricades, Picatti drove toward two uniformed deputies who
were on foot patrol by a crosswalk, which was marked with a large sign reading: “road closed to
thru traffic.” The factual background from that point becomes heavily disputed.
       Picatti alleges that Deputy Miner hit the hood of his car, then pulled Picatti out of his
truck to tase and arrest him. The deputies contend that Picatti “bumped” Deputy Miner with his
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truck and then resisted arrest, forcing them to tase him into submission. Picatti was ultimately
arrested on two charges: resisting and obstructing officers (I.C. § 18-705), and aggravated battery
on law enforcement (I.C. § 18-915(3)). At the conclusion of the preliminary hearing, Picatti was
bound over. Prior to trial, Picatti accepted a plea agreement in which he pleaded guilty to
disturbing the peace (I.C. § 18-6409) for “failing to obey a traffic sign and driving into a
restricted pedestrian area.” The court entered a judgment of conviction, which has not been
appealed, overturned, or expunged.
        Two years later, Picatti brought a 42 U.S.C. section 1983 suit against his arresting
deputies, claiming deprivations of his protected rights to be free from (1) unreasonable seizure,
(2) excessive force, and (3) felony arrest without probable cause. The district court granted
summary judgment to the defending deputies holding that collateral estoppel barred Picatti from
relitigating probable cause once it was determined at the preliminary hearing. Picatti timely
appealed. We affirm the order granting summary judgment to the deputies as to Picatti’s claims
of false arrest and unreasonable seizure; however, we vacate the summary judgment as to
Picatti’s excessive force claim. The district court correctly applied the doctrine of collateral
estoppel to Picatti’s claims of false arrest and unreasonable seizure, but not as to excessive force.
In addition, we cannot find as a matter of law that the deputies are entitled to qualified immunity
on Picatti’s excessive force claim when there is a genuine issue of material fact.
                  I.       FACTUAL AND PROCEDURAL BACKGROUND
        On the afternoon of July 12, 2014, Steven Picatti drove west on Highway 44 through
Eagle, Idaho, on his way home. Because the community was celebrating the Eagle Fun Days
festival, a parade blocked access to Picatti’s residence. With several access points closed, Picatti
drove his vehicle around orange barrel barricades toward a pedestrian crosswalk where two
uniformed deputies were on foot patrol. The crosswalk was blocked by a sign marked “road
closed to thru traffic.”
        Picatti alleges that he approached one officer in his vehicle to ask for directions home.
Deputy Miner then advanced towards the vehicle and slammed his hands onto the hood. Miner
was agitated and yelling at Picatti, but Picatti could not hear Miner’s shouts over the noisy
engine. Picatti contends Miner went to the driver’s door, opened it, and “grabbed [Picatti] around
the neck.” Picatti said he could not exit the vehicle because his seatbelt was on, and he was afraid
to remove his hands from the steering wheel. He repeated the words “seat belt” to Miner several

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times. Miner then reached across Picatti to unlatch the seatbelt. Miner and another officer,
Deputy Laurence, then pulled Picatti out of the vehicle, and pushed Picatti to the ground in an
effort to arrest him. Picatti said he struggled simply to get off the hot pavement and claims he
could not breathe as the deputies pushed him against the ground. He also claims that the deputies
never gave him any instructions, commands, or explanations as they wrestled him from his truck
to the ground. After multiple attempts to push himself off the ground, Picatti was tased in the
back and handcuffed.
       Miner, however, alleges that Picatti did not slow his truck down as he came around the
barricades, nor did it appear that he would stop the vehicle. Laurence even began unholstering
his gun out of concern Picatti would not stop the truck. Miner pushed through some pedestrians
to place himself in front of the crosswalk, and ordered Picatti to stop the vehicle. The truck
slowed down but physically pushed Miner back into the crosswalk before stopping. Miner
claimed that Picatti looked frustrated and gestured at him with his hands. Miner slammed his
hand on the hood of Picatti’s truck. The truck then “jerked” forward and hit Miner a second time.
Miner walked over to the driver’s door, opened it, and ordered Picatti to exit the vehicle. Picatti
refused. Miner released Picatti’s seatbelt, then he and Laurence pulled Picatti out of the truck. As
the three men struggled against one another, Picatti and the deputies went to the ground.
       Officer Goodspeed also came to assist in subduing and arresting Picatti. Goodspeed noted
that Picatti was “very fit” despite being seventy years old, and struggled against the officers as
they tried to handcuff him. Miner contends that Picatti refused to put his hands behind his back,
and instead continually tried to get up. During the struggle, Laurence also felt someone tugging
on his gun and yelled out, “get your hands off my gun.” Once Laurence could see his weapon, he
saw that Picatti’s hand had become trapped between Laurence’s gun and holster; Picatti’s “wild”
arm movements tugged at the holster even though he did not reach for the weapon. Upon hearing
Laurence’s shout, however, Miner tased Picatti to quickly quell the struggle. Both Laurence and
Goodspeed were also shocked by the taser wires. Finally subdued, the deputies handcuffed
Picatti. Deputy Williamson then transported Picatti to the Ada County Jail on a misdemeanor
charge of resisting and obstructing officers (I.C. § 18-705), as well as a felony charge for
aggravated battery on law enforcement (I.C. § 18-915(3)).
       On August 20, 2014, Picatti appeared before a judge for a preliminary hearing. Picatti
and Miner were the only witnesses at the hearing, and both testified. Picatti’s attorney cross

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examined Miner at length, and questioned Picatti as well. At the hearing’s conclusion, the court
determined there was probable cause to bind Picatti over to the district court on the felony
charge, and sufficient cause to believe he was guilty of both charges. The magistrate court
explained that Picatti’s vehicle came into contact with Miner, with Picatti knowing that Miner
was a deputy.
       Prior to trial, Picatti reached a plea agreement, in which he pleaded guilty to disturbing
the peace (I.C. § 18-6409) for “failing to obey a traffic sign and driving into a restricted
pedestrian area.” The court entered a judgment of conviction, which has not been appealed or
overturned.
       Almost two years later, Picatti filed a civil suit against Miner and Laurence, asserting
under 42 U.S.C. section 1983 a deprivation of his protected right to be free from (1)
unreasonable seizure, (2) excessive force, and (3) felony arrest without probable cause. While the
initial complaint asserted claims against four defendants—Miner, Laurence, Goodspeed, and
Deputy Mark Williamson—the court dismissed the claims against Williamson and awarded
summary judgment to Goodspeed. Only Miner and Laurence remain as defendants.
       On July 17, 2017, the deputies filed a motion for summary judgment, arguing in their
memorandum that Picatti’s claims were barred by collateral estoppel because the criminal court
adjudicated and found probable cause for his arrest. Picatti then filed a Memorandum in
Opposition to Defendant’s Motion for Summary Judgment, asserting there was no probable
cause determination to his claim, nor was there full and fair litigation on the issue of probable
cause. After evaluating the parties’ claims, the district court granted the deputies’ motion for
summary judgement on the basis of collateral estoppel—namely, that the August 20, 2014
hearing barred Picatti’s civil claim because the earlier criminal proceedings established probable
cause for the arrest. The court explained that Picatti’s excessive-force claim and false-arrest
claim would require the court to re-litigate the existence of probable cause. Picatti timely
appealed to this Court.
                              II.     STANDARD OF REVIEW
       Determining whether collateral estoppel bars claims from relitigation is a question of law
over which the Court exercises free review. Rodriguez v. Dep’t of Correction, 136 Idaho 90, 92,
29 P.3d 401, 403 (2001). Likewise, determining whether an officer is entitled to qualified



                                                4
immunity requires de novo review on appeal. James v. City of Boise, 160 Idaho 466, 477, 376
P.3d 33, 44 (2016).
                                       III.   ANALYSIS
   A. The district court erred in granting summary judgment to the deputies.
       Picatti’s claims for false arrest and unreasonable seizure are premised on the assertion
that the deputies did not have probable cause to seize him. The magistrate court ruled at a
contested hearing that there was probable cause to believe that Picatti was guilty of committing
the charges of aggravated battery on an officer and resisting or obstructing officers. Picatti
simply cannot relitigate probable cause for his arrest or felony prosecution. In addition, while
Picatti’s final claim of excessive force was not decided in the prior criminal proceedings—and,
consequently, is not precluded by the doctrine of collateral estoppel—we cannot determine
whether the deputies are entitled to qualified immunity until the disputed facts are resolved
below. Accordingly, collateral estoppel bars Picatti’s claims as to the claims for false arrest and
unreasonable seizure, but not his claim for excessive force.

   1. Picatti’s claims for false arrest and unreasonable seizure are barred by the doctrine
      of collateral estoppel.
       Picatti argues that the preliminary hearing cannot collaterally estop his civil claims
because the lower standard of proof in a preliminary hearing should not bar relitigation of the
issue of probable cause. He also argues that the possibility Miner lied in the preliminary hearing
should permit a new determination on the existence of probable cause. However, Picatti’s
arguments miss the mark on the collateral estoppel inquiry—the question is whether Picatti fully
and fairly litigated the issue of probable cause before the magistrate court, and was fully
incentivized to contest probable cause because of the significance of the preliminary hearing.
       Collateral estoppel stems from the doctrine of res judicata, and establishes a legal barrier
against the relitigation of an identical issue with the same party or its privy. Rodriguez v. Dep’t
of Correction, 136 Idaho 90, 92, 29 P.3d 401, 403 (2001); Anderson v. City of Pocatello, 112
Idaho 176, 183, 731 P.2d 171, 178 (1986). This doctrine, also known as issue preclusion,
prevents a party from resurrecting a lawsuit already put to rest; it protects litigants from
unnecessary costs and promotes judicial economy from needless and likely inconsistent
adjudications. Berkshire Investments, LLC v. Taylor, 153 Idaho 73, 81, 278 P.3d 943, 951
(2012); Pines, Inc. v. Bossingham, 131 Idaho 714, 717, 963 P.2d 397, 400 (Ct. App. 1998).

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          This Court established five factors that must be evident for collateral estoppel to bar the
relitigation of an issue determined in a prior proceeding:
          (1) the party against whom the earlier decision was asserted had a full and fair
          opportunity to litigate the issue decided in the earlier case; (2) the issue decided in
          the prior litigation was identical to the issue presented in the present action; (3)
          the issue sought to be precluded was actually decided in the prior litigation; (4)
          there was a final judgment on the merits in the prior litigation; and (5) the party
          against whom the issue is asserted was a party or in privity with a party to the
          litigation.
Rodriguez, 136 Idaho at 93, 29 P.3d at 404. Accordingly, a prior criminal proceeding may bar a
plaintiff from relitigating the same issue in a subsequent civil action, including suits brought
under 42 U.S.C. section 1983. See, e.g., Anderson, 112 Idaho at 176, 731 P.2d at 171.
          The United States Supreme Court has continually recognized that 42 U.S.C. section 1983
“creates a species of tort liability.” Heck v. Humphrey, 512 U.S. 477, 483 (1994). The statute
specifically provides:
          Every person who, under color of any statute, ordinance, regulation, custom, or
          usage, of any State or Territory or the District of Columbia, subjects, or causes to
          be subjected, any citizen of the United States or other person within the
          jurisdiction thereof to the deprivation of any rights, privileges, or immunities
          secured by the Constitution and laws, shall be liable to the party injured in an
          action at law, suit in equity, or other proper proceeding for redress, except that in
          any action brought against a judicial officer for an act or omission taken in such
          officer's judicial capacity, injunctive relief shall not be granted unless a
          declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983. This provision “supplies a remedy for the deprivation under color of state law
of federally protected rights.” James v. City of Boise, 160 Idaho 466, 473, 376 P.3d 33, 40
(2016). Thus a police officer could be found liable for damages under 42 U.S.C. section
1983 where he infringed on the plaintiff’s federally protected rights, such as using unreasonable
force in effecting an arrest. See Sprague v. City of Burley, 109 Idaho 656, 664, 710 P.2d 566, 574
(1985).
          Generally, civil tort actions remain inappropriate vehicles to challenge the validity of
criminal judgments—concerns for finality and consistency have invariably restricted
opportunities for collateral attacks. Heck, 512 U.S. at 484–86. In Heck v. Humphrey, the U.S.
Supreme Court explained that where a section 1983 action would render a criminal sentence or
conviction invalid, a plaintiff must prove the criminal adjudication “has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
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determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254.” 512 U.S. at 487. “A claim for damages bearing that relationship to a conviction
or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487.
Likewise, even where a section 1983 action “does not seek damages directly attributable to
conviction or confinement but whose successful prosecution would necessarily imply that the
plaintiff's criminal conviction was wrongful” would require the plaintiff to negate an element of
the offense for which he has been convicted. Id. at 487 n.6. This category would include the
situation where a plaintiff resisted arrest and then brought a section 1983 action against a police
officer for a violation of his Fourth Amendment right to be free from unreasonable seizures. Id.
       The key inquiry, the Court explained, is to “consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 487. If it
would so imply, the complaint must be dismissed until the plaintiff proves the criminal
adjudication was invalidated; if it would not imply invalidity, the civil action should proceed. Id.
For example, in the Ninth Circuit Court of Appeals’s case Smithart v. Towery, Smithart brought
a section 1983 claim against his arresting police officers, claiming they “used force far greater
than that required for his arrest and out of proportion to the threat which he posed to [them].” 79
F.3d 951, 952 (9th Cir. 1996). “Because a successful section 1983 action for excessive force
would not necessarily imply the invalidity of Smithart’s arrest or conviction,” his claim against
the officers was not precluded by Heck even though he failed to show a reversal, expungement,
or other invalidation of his prior conviction. Id. at 952–53.
       Two Idaho cases demonstrate how a preliminary hearing affects the collateral estoppel
factors in a 42 U.S.C. section 1983 claim. First, in State v. Gusman, police arrested a driver for
driving under the influence, among other charges. 125 Idaho 805, 806, 874 P.2d 1112, 1113
(1994). At the time of Gusman’s arrest, the officer on the scene believed that the driver and
passenger had switched seats, with Gusman ending up as the passenger. Id. Believing Gusman to
be the real driver, the officer asked Gusman to take a blood alcohol evidentiary test, which she
refused. Id. He then seized her license. Id. At the license suspension hearing (BAC hearing),
Gusman—the only witness—showed the court evidence she was not operating the vehicle on the
night in question, and the court determined there was no evidence the officer had reasonable
grounds or probable cause to believe she was the driver. Id. Gusman then raised this BAC-
hearing finding during her DUI criminal prosecution as a basis to dismiss the charges, but the

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court declined to apply collateral estoppel. Id. at 807. As a result, Gusman pleaded guilty to both
driving under the influence and obstructing an officer to drop the remaining charges against her,
and then appealed. Id. This Court ultimately affirmed the district court’s decision to not apply
collateral estoppel. Id.
        This Court explained in Gusman that the BAC hearing was litigated to a final judgment,
but the State did not have a full and fair opportunity to litigate because it had no incentive to
vigorously litigate the license suspension. Id. at 808. Such a hearing, this Court explained, was
just a minor civil matter pursued by the driver, who had the burden to show why she did not
submit to an evidentiary test. Id. Allowing collateral estoppel to apply would have turned the
BAC hearing into a criminal matter, and forced the state to aggressively litigate future BAC
hearings to prevent issue preclusion in subsequent criminal prosecutions. Id. at 808–09. In
addition, this Court held that the issues were not identical: “the only issues decided at the BAC
hearing and the only issue entitled to preclusive effect is that the officer did not have probable
cause to request Gusman to submit to the evidentiary test.” Id. at 809. Because that issue was
not present in the DUI prosecution, the ultimate issues of fact were not identical, nor were they
barred by collateral estoppel. Id.
        Second, in Anderson v. City of Pocatello, a plaintiff was acquitted of aggravated assault
upon police officers, but criminally convicted of “intentionally, without malice” aiming a firearm
at others. 112 Idaho 176, 179, 731 P.2d 171, 174 (1986). The police had been investigating the
vandalism of an apartment when Anderson emerged from his neighboring apartment with a
loaded shotgun. Id. The remaining facts were widely disputed. Id. Anderson alleged that he never
aimed a gun at anyone—and in fact, did not know the men were police officers—while the
defendants said Anderson pointed a gun at them after running out of his apartment, forcing them
to fire their own weapons. Id. Anderson was shot three times before being arrested for
aggravated assault on officers. Id. He later brought a 42 U.S.C. section 1983 claim against the
arresting officers. The district court granted summary judgment to the officers, determining that
there was no factual dispute over whether the officers acted on reasonable grounds. Id. at 181.
        This Court held that Anderson was estopped from denying he had pointed the gun at the
officers because that fact was established by the earlier conviction. Id. at 180. Nevertheless, this
Court reversed the district court’s grant of summary judgment because the criminal trial did not
adjudicate whether the officers acted on reasonable grounds. Id. “Because the evidence renders

                                                 8
conflicting inferences, a genuine issue of material fact remains as to whether the officers acted
with a good faith belief based upon reasonable grounds that the measures they took were
necessary.” Id. (emphasis in original). Doubts remained over whether the officers had reasonable
grounds to fire at Anderson—doubts that had to be resolved against the moving party in
summary judgment. Id. While Anderson specifically addressed whether collateral estoppel barred
a section 1983 claim following a criminal conviction, its principle applies to collateral estoppel
questions in general because issue preclusion “works to prevent the relitigation of issues of
ultimate fact.” Gusman, 125 Idaho at 808, 874 P.2d at 1115. Indeed, the exact rule held in
Anderson stated: “collateral estoppel bars the relitigation of an issue determined in a criminal
proceeding in which the party sought to be estopped had a full and fair opportunity to litigate
that issue.” 112 Idaho at 184, 731 P.2d at 179 (emphasis added).
       We also find our sister jurisdiction’s case law on this issue persuasive. In Haupt v.
Dillard, the U.S. Ninth Circuit Court of Appeals examined whether the finding of probable cause
in the preliminary hearing barred its relitigation in the defendant’s later section 1983 claim. 17
F.3d 285, 288–89 (9th Cir. 1994), as amended (Apr. 15, 1994). In Haupt, the defendant had been
arrested and prosecuted for the charges of kidnapping and murdering a seven-year-old boy. Id. at
286–87. While the preliminary hearing established probable cause to arrest the defendant, the
jury ultimately acquitted him of all charges. Id. at 287–88. The defendant then brought a 42
U.S.C. section 1983 action against the police detectives that arrested him, arguing the officers
secured an arrest warrant with an affidavit they knew contained false statements and omitted
facts showing Haupt’s innocence. Id. at 287–88.
       The Ninth Circuit applied Nevada law, which “estopped [a litigant] from raising an issue
in a subsequent proceeding if (1) the issue was actually litigated and necessarily determined in
the prior proceeding, and (2) the parties in the two proceedings were the same or in privity.” Id.
at 288 (citations omitted). The court held that the probable cause determination at Haupt’s
preliminary   hearing   was    “a   final,   conclusive    determination      of   the   issue”   and
“sufficiently conclusive of the issue to preclude its relitigation.” Id. at 288–89. Furthermore,
while the court recognized that some defendants may not fully litigate probable cause for tactical
reasons—which     could,   consequently,     render   collateral   estoppel    inappropriate—Haupt
“vigorously fought the probable cause issue” by pointing out deficiencies in the affidavit and
seeking a writ of habeas corpus to overturn the probable cause determination. Id. at 289–90.

                                                 9
Thus, the court concluded, Haupt could not relitigate the issue of probable cause, and the
defendant detectives were immune from suit on charges they violated Haupt’s Fourth
Amendment right against unreasonable search and seizure. Id. at 290.
       Read together, Anderson, Gusman, and Haupt demonstrate that courts should focus on
what ultimate issues the prior criminal proceeding established, and whether the proceeding was
of such significance to incentivize the parties to fully and fairly litigate the issue. See Anderson,
112 Idaho at 184–85, 731 P.2d at 179–80; Gusman, 125 Idaho at 808–09, 874 P.2d at 1115–16.
However, the decision to bind a defendant over for criminal prosecution does not, on its own,
invoke collateral estoppel to bar the relitigation of probable cause in a subsequent section 1983
claim. Haupt, 17 F.3d at 289–90. Courts must apply a fact intensive inquiry to determine the
ultimate issues established by the prior criminal proceeding and whether the proceeding was of
such significance to incentivize the parties to fully and fairly litigate the issue. See Anderson, 112
Idaho at 184–85, 731 P.2d at 179–80; Gusman, 125 Idaho at 808–09, 874 P.2d at 1115–16. For
example, in Gusman the record showed that the state did not have a full and fair opportunity to
litigate because it lacked the incentive to litigate the license suspension. 125 Idaho at 808, 874
P.2d at 1115. Whereas in Haupt, the defendant’s vigorous attempts to undermine the state’s
probable cause showing at the preliminary hearing established a full and fair opportunity to
litigate the issue. 17 F.3d 285, 289–90. Accordingly, when determining whether collateral
estoppel prevents relitigation of an issue determined in a criminal adjudication, Idaho courts
must analyze “what the prior judgment decided and the import on the instant civil action of that
which was decided at the criminal trial.” Anderson, 112 Idaho at 185, 731 P.2d at 180 (emphasis
omitted).
       Therefore, in this case we must look to the collateral estoppel factors and the facts on
record to determine whether the preliminary hearing was a final judgment on the merits that
provided Picatti with a full and fair opportunity to litigate probable cause.
       A “final judgment includes any prior adjudication of an issue in another action that is
determined to be sufficiently firm to be accorded conclusive effect.” Rodriguez v. Dep’t of
Correction, 136 Idaho 90, 94, 29 P.3d 401, 405 (2001) (citation omitted). Tentative decisions
will not create a preclusive effect, but a decision can be final for purposes of collateral estoppel
where the parties were fully heard, the court supported its decision with a reasoned opinion, and
the decision was subject to appeal. Id.

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       A probable cause finding in the preliminary hearing to bind a defendant over for trial can
be a final judgment on the merits for collateral estoppel purposes. It is a decision where the
magistrate examines evidence “to determine whether or not a public offense has been committed
and whether or not there is probable or sufficient cause to believe that the defendant committed
such public offense.” I.C. § 19-804; see also State v. Stewart, 149 Idaho 383, 387, 234 P.3d 707,
711 (2010) (“The purpose of the preliminary hearing is to determine whether there is probable
cause to believe that the defendant committed a felony.”). When a magistrate court finds
probable cause, its determination binds the defendant over for trial—this is a firm, conclusive
effect that permits the criminal proceeding to move forward. The method to challenge this
determination is found in Idaho Code section 19-815A, which provides:
       A defendant once held to answer to a criminal charge under this chapter may
       challenge the sufficiency of evidence educed at the preliminary examination by a
       motion to dismiss the commitment, signed by the magistrate, or the information
       filed by the prosecuting attorney. Such motion to dismiss shall be heard by a
       district judge.
This process provides a defendant with appellate-like review by a district judge. Other
jurisdictions also treat such preliminary hearings as final judgments under the collateral estoppel
doctrine. Autrey v. Stair, 512 F. App’x 572, 578 (6th Cir. 2013) (recognizing that a finding of
probable cause made in the preliminary hearing of a criminal prosecution was a valid, final
judgment for collateral estoppel purposes); Haupt, 17 F.3d at 288 (holding the probable cause
determination in the preliminary hearing was “a final, conclusive determination of the issue.”);
Fontana v. City of Auburn, No. C13-0245-JCC, 2014 WL 4162528, at *7 (W.D. Wash. Aug. 21,
2014), aff’d in part, 679 F. App’x 613 (9th Cir. 2017) (“a probable cause determination made at
a preliminary hearing is sufficiently firm to satisfy the requirements of the ‘final judgment’
collateral estoppel requirement.”); Lay v. Pettengill, 2011 VT 127, ¶ 24, 191 Vt. 141, 155, 38
A.3d 1139, 1148 (2011) (holding the preliminary hearing “was a final judgment on the issue of
probable cause”); McCutchen v. City of Montclair, 73 Cal. App. 4th 1138, 1145–46, 87 Cal.
Rptr. 2d 95, 100 (1999) (“A finding of probable cause to hold the defendant over for trial is
a final judgment on the merits for the purposes of collateral estoppel.”).
       Picatti had a full and fair opportunity to litigate probable cause in his preliminary hearing.
As in Anderson and Haupt, Picatti’s criminal proceedings established several facts for probable
cause that he cannot relitigate in the civil arena. Though each party presented a different
summary of events, the magistrate court noted several facts that led to a finding of probable
                                            11
cause: the deputies were visible and in uniform; Picatti’s truck “bumped” Miner after
approaching the crosswalk closed to through traffic; and Miner tased Picatti after the deputies
forcibly removed him from the truck and they struggled on the pavement. From these facts, the
magistrate court reasonably determined that probable cause existed to both arrest Picatti and bind
him over for prosecution on the felony charges of aggravated battery on an officer and resisting
or obstructing officers after hearing both Picatti and Miner testify.
          While Picatti contends he did not have the opportunity to fully litigate probable cause, the
record proves otherwise. Picatti vigorously argued against probable cause by cross-examining
Miner at length before the magistrate court in an attempt to challenge Miner’s factual account
and veracity before the magistrate. The hearing was an adversarial proceeding that incentivized
each side to litigate the issue of probable cause—the state needed to demonstrate probable cause
to move forward with criminal prosecution of the felony charge, while Picatti needed to disprove
probable cause to preserve his liberty. Upon hearing each party’s full account, the magistrate
court found that probable cause existed for both the arrest and to bind Picatti over to the district
court for prosecution. Accordingly, Picatti’s circumstances meet the collateral estoppel factors
and Picatti cannot relitigate probable cause under his false arrest and unreasonable seizure
claims.
          Picatti also contends that a California district court has carved out exceptions to this
collateral estoppel rule by allowing a plaintiff to litigate probable cause in the subsequent civil
suit where (1) new or different evidence was available to the judicial officer than was available
to the arresting officers, (2) tactical considerations prevented the full and fair litigation of
probable cause in the preliminary hearing, or (3) where the plaintiff alleges the arresting officer
lied or fabricated evidence. See Moreno v. Baca, No. CV 00-7149 ABC (CWX), 2002 WL
338366, at *6 (C.D. Cal. Feb. 25, 2002), aff’d and remanded, 431 F.3d 633 (9th Cir. 2005)
(affirming other issues; the U.S. Ninth Circuit Court of Appeal did not address the preliminary
hearing or collateral estoppel) (internal citations omitted).
          Even if we were inclined to adopt these exceptions, Picatti’s reliance is misplaced. His
factual evidence and testimony remain virtually identical to the presentation at the preliminary
hearing before the magistrate court; Picatti’s attorney cross-examined Miner at length in the
preliminary hearing to undermine a probable cause determination and diminish Miner’s veracity;



                                                  12
and while Picatti alleges Miner likely lied to the court, he offers no substantial evidence to prove
this theory.
        Picatti’s argument here relies primarily on tenuous authority and the premise that a
reasonable juror could have concluded Miner was lying about the events leading up to Picatti’s
arrest. Disputed facts by the parties are not equivalent to proof of misrepresentation, and this
Court does not second-guess factual determinations or veracity. It is “the province of the fact-
finder to assess the credibility of the witnesses in a state court proceeding.” State v. Perry, 139
Idaho 520, 526, 81 P.3d 1230, 1236 (2003).
    2. Picatti’s excessive force claim is not barred by collateral estoppel.
        The district court determined Picatti could not raise an excessive force claim against the
deputies because it would simply relitigate probable cause in a different context. Essentially,
because the deputies could arrest him for aggravated battery, Picatti was not free from the
forcible removal from his truck. The district court erred in this analysis.
        The Fourth Amendment of the U.S. Constitution protects individuals from excessive
force by police officers in the course of an arrest, which allows inquiries to be made into whether
the officers’ actions were objectively reasonable in light of the circumstances confronting them,
“without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397
(1989). The calculus of this inquiry, however, “must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Id. at 396–97.
        As shown in Smithart v. Towery, “a successful section 1983 action for excessive force
would not necessarily imply the invalidity of [a plaintiff’s] arrest or conviction.” 79 F.3d 951,
952–53 (9th Cir. 1996). Picatti’s excessive force claim does not relitigate the magistrate court’s
finding of probable cause, nor does it invalidate his conviction. Instead, Picatti is trying to
litigate whether the deputies acted reasonably in making the arrest, not whether they had
probable cause to seize him. This Fourth Amendment inquiry has yet to be decided in either a
criminal or civil court proceeding, so it is not barred by collateral estoppel.
    3. The trier of fact must resolve the disputed facts before the court can determine
       whether the deputies are entitled to qualified immunity.
        There is a genuine issue of material fact as to whether the deputies violated Picatti’s
Fourth Amendment right to be free from excessive force, which impedes the Court’s ability to
                                           13
address whether the deputies are immune from suit under the doctrine of qualified immunity.
Both Picatti and the deputies have presented arguments on qualified immunity that depend on
their own version of the arrest. We cannot determine as a matter of law that the deputies are
entitled to qualified immunity when that determination depends on unresolved disputed facts.
Therefore, we vacate the district court’s award of summary judgment to the deputies and remand
the case to the district court for the fact-finder to first resolve the genuine issue of material facts
so that the court can answer the remaining issue of excessive force and qualified immunity.
       Despite the general proposition that excessive force is contrary to the Fourth
Amendment, qualified immunity protects officers from the “hazy border between excessive and
acceptable force.” Rosenberger v. Kootenai Cnty. Sheriff’s Dep’t, 140 Idaho 853, 856–57, 103
P.3d 466, 469–70 (2004) (citation omitted). It is immunity from suit rather than a defense to
liability and ensures that officers are on notice that their conduct is unlawful before they are
subjected to a lawsuit. Id. Thus, “government officials can benefit from qualified immunity in
section 1983 suits if they followed a reasonable interpretation of the law,” with the objective
reasonableness of the action “assessed in light of the legal rules that were clearly established at
the time it was taken.” Miller v. Idaho State Patrol, 150 Idaho 856, 864, 252 P.3d 1274, 1282
(2011) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)); see also Mullenix v. Luna,
136 S. Ct. 305, 308 (2015). “Even law enforcement officials who ‘reasonably but mistakenly
conclude that probable cause is present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S.
224, 227 (1991) (citation omitted).
       In Ashcroft v. al-Kidd, the U.S. Supreme Court established the two prong analysis
required to establish the qualified immunity shield for federal and state officials from money
damages: “a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” 563 U.S. 731, 735 (2011). Courts have the discretion to decide which of the two
prongs to tackle first, and this Court begins with the second prong to adhere to the principle of
avoiding constitutional questions where the case can be decided on other grounds. James, 160
Idaho at 473, 376 P.3d at 40.
       Normally, qualified immunity is resolved long before trial—“at the earliest possible stage
in litigation”—to preserve the doctrine’s status as immunity from suit. Morales v. Fry, 873 F.3d
817, 822 (9th Cir. 2017) (quoting Hunter, 502 U.S. at 227). This early determination is usually

                                                  14
possible because qualified immunity turns on legal determinations rather than disputed facts. Id.
In fact, qualified immunity is most often a summary judgement vehicle. Id. at 823. However,
when disputed facts remain, a bifurcation of duties becomes unavoidable: “only the jury can
decide the disputed factual issues, while only the judge can decide whether the right was clearly
established once the factual issues are resolved.” Id. Consequently, the trier of fact must resolve
the factual disputes before the court can engage in the qualified immunity analysis. See id.
Indeed, this is an enduring principle of the judicial system: “The controlling distinction between
the power of the court and that of the jury is that the former is the power to determine the law
and the latter to determine the facts.” Dimick v. Schiedt, 293 U.S. 474, 486 (1935).
       For example, in the Ninth Circuit case Morales v. Fry, disputed facts about the events
that occurred during the plaintiff’s arrest barred the appellate court from completing the qualified
immunity analysis. 873 F.3d at 825–26. In that case, a woman was arrested during the May 1,
2012 “May Day” protests in Seattle, but the charges against Morales were dismissed as soon as
video footage of her arrest went online. Id. at 819–20. Morales filed suit against the officer under
section 1983. Id. At the civil trial, the plaintiff and defendant-officer contested several facts:
whether Morales said “Okay, bitch!”, whether she punched the officer in the chest, and whether
the officer’s use of pepper spray was intentional or accidental. Id. As the Ninth Circuit court
explained:
       Nor can we determine as a matter of law that Morales’s constitutional rights were
       not clearly established. Whether Officer Fry . . . reasonably believed that it was
       lawful to pull her over the bicycle, depends on disputed factual issues that the jury
       never resolved in specific interrogatories, including whether Morales said “Okay,
       bitch!” and whether she punched Officer Fry.
Morales, 873 F.3d at 826 n.7. As a result, the Ninth Circuit vacated the verdict as to the
plaintiff’s unlawful arrest and excessive force claims under section 1983, and remanded for a
new trial regarding the disputed issues of material fact. Id. at 826. Once the jury returned its
verdict, the Ninth Circuit instructed, “the ultimate determination of whether Officer Fry violated
Morales’s clearly established rights is a question reserved for the court.” Id.
       While we have not dealt with qualified immunity in this context before, this bifurcated
approach is almost universally agreed upon by the federal appellate courts. Id. at 824; also see,
e.g., Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005) (“to the extent that a dispute of
material fact precludes a conclusive ruling on qualified immunity at the summary judgment
stage, the district court should submit factual questions to the jury and reserve for itself the legal
                                                 15
question of whether the defendant is entitled to qualified immunity on the facts found by the
jury.”); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002) (“the jury itself decides the
issues of historical fact that are determinative of the qualified immunity defense, but the jury
does not apply the law relating to qualified immunity to those historical facts it finds; that is the
court’s duty.”); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (“the jury was
entitled to determine what facts were known to the officers at the time of the arrest” while the
“legal conclusions were for the court to make.”). In contrast, the Fifth Circuit Court of Appeals
ordinarily reserves qualified immunity for the court but permits the jury to determine the
objective legal reasonableness of an officer’s conduct at trial. McCoy v. Hernandez, 203 F.3d
371, 376 (5th Cir. 2000). We find Morales and the majority case law persuasive.
       The Deputies contend that this bifurcation is unnecessary because Picatti bore the burden
to present clearly established law that the use of force was excessive. While plaintiffs bear this
burden and must cite to case law to show a clearly established right, James v. City of Boise, 160
Idaho 466, 477, 376 P.3d 33, 44 (2016), disputed facts still require a bifurcated adjudication
process that lets the jury resolve the factual issues before a court addresses the qualified
immunity analysis. See, e.g., Morales v. Fry, 873 F.3d 817 (9th Cir. 2017). The recent U.S.
Supreme Court case of City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019), does not
alter that analysis, especially because Emmons did not contain any disputed facts on appeal.
       As recently noted by the U.S. Supreme Court in Emmons, specificity is crucial when
defining a clearly established right in Fourth Amendment excessive force cases. 139 S. Ct. 500,
503 (2019). In Emmons, a defendant brought a 42 U.S.C. section 1983 claim against city police
officers for the use of excessive force during his arrest. Id. at 502. There were no disputed facts
on the record. Id. In fact, police body-camera footage documented the officers’ actions. Id. At the
district court, the officers won on summary judgment because the plaintiff failed to show a
clearly established right and the court found the officers “acted professionally and respectfully in
their encounter.” Id. On appeal, the Ninth Circuit reversed and remanded for a trial, stating only
“The right to be free of excessive force was clearly established at the time of the events in
question.” Id. The U.S. Supreme Court criticized the Ninth Circuit’s overgeneralized right
because federal law requires a right to be defined with specificity. Id. at 503. The Court restated:
           “Specificity is especially important in the Fourth Amendment context, where
       the Court has recognized that it is sometimes difficult for an officer to determine
       how the relevant legal doctrine, here excessive force, will apply to the factual
                                                 16
        situation the officer confronts. Use of excessive force is an area of the law in
        which the result depends very much on the facts of each case, and thus police
        officers are entitled to qualified immunity unless existing precedent squarely
        governs the specific facts at issue.
        ...
            [I]t does not suffice for a court simply to state that an officer may not use
        unreasonable and excessive force, deny qualified immunity, and then remit the
        case for a trial on the question of reasonableness. An officer cannot be said to
        have violated a clearly established right unless the right’s contours were
        sufficiently definite that any reasonable official in the defendant’s shoes would
        have understood that he was violating it.”
Id. (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018)). In other words, courts must
look at existing precedent to identify a case where an officer acted under similar circumstances
and define the right using the specific circumstances of the case. See id. (citing D.C. v. Wesby,
138 S. Ct. 577, 590 (2018)). As articulated by this Court:
        The first component of this analysis is defining the relevant legal rule at stake.
        The Court should not define the right too generally, as doing so would essentially
        vitiate the qualified-immunity doctrine. Here, for example, it would not be helpful
        to simply ask whether police must not execute unreasonable searches or, as
        Appellants suggest, whether the police can obtain bodily fluid from a person
        reasonably suspected of driving under the influence. Warrantless blood draws and
        voluntary urine samples are significantly less intrusive than warrantless
        forcible catheterizations. Instead, the question should reflect the factual specifics
        in this case.
James v. City of Boise, 160 Idaho 466, 473–74, 376 P.3d 33, 40–41 (2016) (emphasis in
original).
        We cannot articulate a “clearly established” right with specificity until the district court
first determines what facts occurred. While the Deputies point to Emmons as the basis for a
rehearing, Emmons did not deal with any disputed facts; rather, that case criticized the Ninth
Circuit’s failure to define a right with specificity. The Deputies are correct that a plaintiff bears
the burden of showing a clearly established right to be free from excessive force in the particular
circumstances. Nevertheless, we cannot reach that step of the qualified immunity inquiry without
first resolving the disputed facts. To accept the Deputies’ argument here requires this Court to
decide what key facts occurred to define these circumstances, a question reserved for the jury in
the bifurcated process outlined in Morales. 873 F.3d at 825–26. This Court would be forced to
either make factual determinations on appeal or articulate a generalized right, neither of which
we can do. Emmons, 139 S. Ct. at 503 (2019) (“This Court has repeatedly told courts . . . not to
                                                 17
define clearly established law at a high level of generality.”) (quoting Kisela, 138 S. Ct. at 1152);
Dimick v. Schiedt, 293 U.S. 474, 486 (1935) (“The controlling distinction between the power of
the court and that of the jury is that the former is the power to determine the law and the latter to
determine the facts.”). Like in Morales, this Court has “no way of divining which scenario
actually happened” to Picatti, 873 F.3d at 825, and thus, the Court is obliged to remand the case
to trial. Unlike Emmons, however, the Court remands only to resolve the disputed facts, not to
deny the Deputies qualified immunity as they contend.
       Generally, federal appellate courts let district courts determine whether to employ a
general verdict form or utilize special interrogatories. See, e.g., Morales, 873 F.3d at 823;
Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1256 (10th Cir. 2013). We will give district
courts that same discretion. However, we stress the importance of the factfinder’s mission to
discover the disputed facts that are crucial for a court to make the requisite qualified immunity
analysis. In the Fourth Amendment context, specificity of the facts is key, especially since a
clearly established right must reflect the factual specifics of the case. See White v. Pauly, 137 S.
Ct. 548, 552 (2017); Ashcroft, 563 U.S. at 742; James, 160 Idaho at 473–74, 376 P.3d at 40–41.
       Nevertheless, despite the need for a jury in this bifurcated process, the ultimate legal
questions of clearly established rights, potential violations of those rights, and entitlement to
qualified immunity must remain in the court’s sphere as legal conclusions. See, e.g., Morales,
873 F.3d at 822–23, 825–26. Cases in multiple circuits of the U.S. Courts of Appeals provide
good examples of how a court can use specific interrogatories with the jury to unravel the factual
disputes. For instance, in Curley v. Klem, a jury trial determined facts on remand after the district
court had originally failed to recognize factual disputes in its qualified immunity analysis. 499
F.3d 199, 203–04 (3d Cir. 2007). The Third Circuit recounted:
       In answer to the special interrogatories, the jury found that, when Klem
       approached the Camry, Bailey’s body was on the front seat of the car, not on the
       floorboards, and that Klem did not look into the window of the car. Furthermore,
       the jury found that Bailey’s body should have been visible to someone standing in
       Klem’s position but that Klem had not made an objectively reasonable effort
       to look into the Camry. The jury also found that it was objectively reasonable for
       Klem to believe that the toll collector was signaling to the center of the plaza.
       Additionally, the jury found that Curley did not repeatedly point his gun at Klem,
       and that, when Curley was shot, he was not raising his gun to point it at Klem.
       Finally, the jury could not reach a unanimous decision and so did not answer
       whether Curley’s police uniform was visible to someone in Klem’s position or
       whether it was reasonable for Klem to believe that Curley was in civilian clothing.
                                                 18
Id. Likewise, the Second Circuit Court of Appeals explained that “special interrogatories in [a]
case resolves the difficulty of requiring the jury to decide ‘what the facts were that the officer
faced or perceived’” so the court can make the ultimate legal determinations. Stephenson v. Doe,
332 F.3d 68, 81 (2d Cir. 2003). Or, as articulated by the Eleventh Circuit Court of Appeals:
       Qualified immunity is a legal issue to be decided by the court, and the jury
       interrogatories should not even mention the term. Instead, the jury interrogatories
       should be restricted to the who-what-when-where-why type of historical fact
       issues.
Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002). In addition, we remind the district
courts that for the purposes of qualified immunity, a court must resolve all factual disputes in
favor of the party asserting the injury. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th
Cir. 2013).
       Like in those federal cases, Picatti and the deputies dispute key facts surrounding the
circumstances of Picatti’s arrest that prevent us from determining whether there was a clearly
established right to be free from excessive force in these circumstances. The qualified immunity
doctrine requires a right to be particularized to the facts of the case at hand and not defined “at a
high level of generality.” White, 137 S. Ct. at 552 (quoting Ashcroft, 563 U.S. at 742). Because
we must define a right with such specificity, we cannot meaningfully characterize the right at
issue without a fact-finder first resolving disputed facts. As an appellate court “it is not our role
on appeal to retry the case, to weigh the evidence as a trier of the facts or to determine
the facts in the case.” Jensen v. Siemsen, 118 Idaho 1, 6, 794 P.2d 271, 276 (1990).
       We will not adopt the role of the trier of fact to resolve these genuine issues of material
fact. Instead, we leave these factual questions to the jury to resolve on remand, including, but not
limited to, whether Picatti resisted arrest or was simply pushing himself off the pavement, if
Miner heard Laurence say “get your hand off my gun,” whether Miner asked Picatti to exit the
vehicle or immediately grabbed Picatti by the neck to pull him out, and so on. All of these facts
contribute to the “totality of the circumstances” and must be established so the court can
understand the exact circumstances the deputies faced and whether their conduct violated the
Fourth Amendment. See White, 137 S. Ct. at 552; Ashcroft, 563 U.S. at 736; James, 160 Idaho at
473–74, 376 P.3d at 40–41. Once the jury returns its verdict on those historical facts—
establishing the who-what-where-when-why details of the arrest—the ultimate determination of



                                                 19
whether the deputies violated Picatti’s clearly established right is a question reserved for the
court.
   B. The deputies are not entitled to attorney’s fees on appeal.
         The deputies argue they are entitled to an award of attorney’s fees because Picatti
frivolously raised this appeal. Under 42 U.S.C. section 1988(b), the court “may allow the
prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs,” in
any action or proceeding under 42 U.S.C. section 1983. The deputies, however, did not prevail
on all issues and Picatti’s claim was well grounded in fact and law, as demonstrated by the
district court’s improper determination that his claim of excessive force was barred by the
doctrine of collateral estoppel. As such, we decline to award attorney’s fees.
                                      IV.    CONCLUSION
         In light of the foregoing, we vacate that portion of the judgment of the district court
relative to excessive force and qualified immunity. We affirm the judgment as to Picatti’s claims
of false arrest and unreasonable seizure. We remand for further proceedings consistent with this
opinion. We decline to award attorney’s fees or costs.

         Justices BEVAN, STEGNER and MOELLER CONCUR.

BURDICK, C.J., specially concurring.
         I write to make sure our decision is not misinterpreted in 99.9 percent of the preliminary
hearings that take place.
         Because of the very limited nature of the legal standard found in I.R.C.P. 5.1, I view this
case as a one off.
         In these types of cases we put a citizen in an untenable position – waive or minimally
participate in the preliminary hearing and increase jeopardy in the criminal case or try to
vindicate your rights by a stout defense in the criminal case and weaken or obliterate your cause
of action in a civil proceeding.
         If the argument is a person can game both the civil and/or the criminal system, the
concept of judicial estoppel can enforce the truth telling work of the criminal and civil judicial
system without the citizen’s rights being weakened in both.




                                                 20
       Again a waiver of a preliminary hearing cannot support this concept of collateral estoppel
nor can the perfunctory recitation of the elements of the charged crime with defense counsel
doing their job of probing for weaknesses in the State’s case.
       Although I am very reticent to join the majority, Justice Brody’s careful analysis wins my
cautious support. However, I implore trial judges and trial lawyers to be sensitive in these
choices.




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