United States District Court, D. Arizona
Warren Prostrollo, on behalf of himself and the statutory beneficiaries of Jason Prostrollo and as the personal representative of Jason Prostrollo, Plaintiff,
City of Scottsdale, et al., Defendants.
MEMORANDUM OF DECISION AND ORDER
STEPHEN M. McNAMEE, Senior District Judge.
Pending before the Court is Defendants' motion for summary judgment on Count 2 (Qualified Immunity) of the Complaint, which is fully briefed. (Docs. 74, 75, 87, 90, 93, 96, 101-02.) Also pending is Defendants' motion for summary judgment on the remaining claims in the Complaint, which is also fully briefed. (Docs. 95, 103-04, 107-08.) After reviewing and considering the briefs, the Court will grant Defendants' motion for summary judgment on qualified immunity grounds and will grant Defendants' motion for summary judgment on Plaintiff's remaining claims.
Plaintiff Warren Prostrollo is the father of Jason Prostrollo ("Jason") and brings this action against Defendants (City of Scottsdale and Lieutenant Ronald Bayne ("Lt. Bayne") alleging that Lt. Bayne of the Scottsdale Police Department ("SPD") used excessive deadly force in violation of the Fourth Amendment when Jason was shot and killed on December 28, 2012. In order to evaluate Plaintiff's allegations, at issue for the Court is the information known to Lt. Bayne at the time that he chose to use deadly force against Jason. Using the relevant facts cited and acknowledged by Plaintiff, the Court will first present the undisputed facts known to Lt. Bayne. Then, using both Plaintiff's and Defendants' statement of facts, the Court will summarize what relevant material facts are disputed, and construe those material facts in the light most favorable to the Plaintiff, unless such a construction is clearly or blatantly contradicted by the record. See Scott v. Harris , 550 U.S. 372, 380 (2007).
In the early morning hours of Saturday, January 28, 2012, Lt. Bayne was SPD's watch commander, the highest ranking on-duty officer. (Doc. 88-1 at 56-57.) Lt. Bayne was listening to radio traffic concerning the city. (Id.) At 4:20 a.m., a 911 operator received a call from Rachel Rogers. (Id. at 120-35.) Rachel Rogers informed the 911 operator that she needed help because her boyfriend, Dan, was being held at knifepoint inside their home. ( Id., see also id. at 169.) She advised the dispatcher that she and her boyfriend met the houseguest, Jason, at a bar and took him home with them. (Doc. 88-1 at 122.) The dispatcher broadcasts and continues to broadcast the alerts received from Rogers. (Id. at 120-35.) Rogers further states that she locked herself inside a bedroom, then a bathroom, and has overheard Dan tell Jason to calm down and put the knife down; she is too afraid to open the door in order to try and help Dan. (Id. at 57, 123.)
Lt. Bayne hears the radio traffic indicating that a houseguest is making threats with a knife. (Id.) Lt. Bayne monitors the radio traffic, confirming that the officer assigned to supervise the incident, Sergeant ("Sgt.") K.C. Moore, was "making good decisions." (Id. at 58.) Nonetheless, due to the nature of the incident, Lt. Bayne responded to the location. (Id.) Lt. Bayne requests confirmation that a canine unit is heading to the scene. (Id. at 59, 125.) Canine Officer Anthony Sanborn radioed that he was headed to the scene. (Id. at 125, 178-79.)
On his way to the scene, Lt. Bayne overhears radio traffic involving a taxi cab driver reporting an armed robbery. (Id. at 58-61.) Because he is in the vicinity, Lt. Bayne detours to the gas station to meet with the taxi driver. (Id.) Lt. Bayne spends several minutes speaking with the taxi driver. (Id.) He learns that the taxi driver recently picked up a fare at 136th Street and Shea-the same general location as the houseguest incident-and that the fare, after making the cabbie drive around for approximately 10 minutes, returned to the same home from which he was picked up. (Id.) The taxi driver tells Lt. Bayne that the fare held a knife to his throat demanding money and threatened to slit his throat. (Id.) The taxi driver later communicated the same story to SPD, that the fare held a knife to his throat, threatened to slit his throat if he didn't go wherever he wanted, made him drive around for 10-15 minutes, and tried to rob him of his money. (Doc. 75-1 at 460-62.) Through his interview with the cab driver, Lt. Bayne understood there might be a relationship between the two incidents. (Doc. 88-1 at 59-61.) Lt. Bayne continued to the houseguest scene. (Id. at 62-64.)
Rachel Rogers came out of the house unharmed at approximately 4:30 a.m. (Id. at 126.) At 4:31 a.m., the dispatcher advises that the suspect who held a knife to the cab driver will be related to the houseguest threatening the owner of the home, Dan, with a knife. (Id. at 127.) Dispatch then communicated that Jason has a pool cue with him. (Id. at 128.) The first police officers arrive at the scene at 4:35 a.m. (Id. at 129.) Sgt. Moore is supervising the scene. (Id. at 129-30.) Rogers is escorted away and interviewed by Officer Cody Carlisle in his police vehicle. Id .; see also Doc. 74 at 7-8.) She immediately tells Officer Carlisle that the guest inside is very intoxicated, and that he is a military veteran who is suffering from Post-Traumatic Stress Disorder ("PTSD"). (Id. at 117-18.) Carlisle radios that Jason is shorter than Dan and has the knife. (Id. at 130.) Later, Carlisle also radios that Jason is a military vet with possible issues. (Id. at 134; see also Doc. 112 at 5-6 (Lt. Bayne remembers hearing on the radio or from someone at the scene that Jason might be a marine with combat training).)
Canine Officer Sanborn radioed that he had arrived at the scene with his police dog, Raider. (Doc. 88-1 at 130, 178-79.) Officer Sanborn recalled seeing Officers Thomas Goodson, Kevin Reynolds, Fernandez, and Carlisle at the scene when he arrived. (Id. at 178-79.)
Shortly thereafter, the male owner of the home, Daniel Hall, also exits unharmed. (Id. at 133.) He, too, is met by officers. (Id.) Hall confirms that only one person remains in the house, Jason. (Id.) At this time, Officer Fernandez is covering the rear of the house. (Id. at 131-32.) Officer Carlisle stayed with the female resident Rachel. (Id. at 117-18.) Sgt. Moore, Officer Goodson, and Officer Sanborn (along with Raider) congregate behind the mailbox in front of the home.
Lt. Bayne arrives at the scene at about this time, 4:45 a.m. (Id. at 64-65.) He parks behind the other police vehicles and walks towards the staging area. (Id.) He confirms that the two civilians he sees (Rachel and Dan) are the residents of the house, and that only one individual remains inside, the suspect with the knife. (Id. at 65.) He then meets with Sgt. Moore and confirms that Sgt. Moore has a "contact team" in place and that the exits have been contained. (Id. at 275.) Sgt. Moore points to the other officers near the mailbox and that an officer has eyes on the backyard. (Id. at 69-70, 275.) Lt. Bayne discusses with Sgt. Moore that the crisis situation of rescuing hostages no longer exists, that it is only a barricade situation now, protecting the public from the armed individual Jason; there was no need to rush in. (Doc. 112 at 7.) Lt. Bayne suggests slowing the situation down and calling out a SWAT team to secure Jason from the home. (Doc. 88-1 at 71.)
Lt. Bayne next advises Sgt. Moore that he is sure that the armed robbery of the cab driver and Jason, the suspect with the knife, are related crimes. (Doc. 88-1 at 70.) To confirm, while talking with Sgt. Moore Lt. Bayne calls Sgt. Charles Cabrera, who is at the service station with the taxi cab driver. (Id. at 70-72.) Sgt. Cabrera confirmed that the fare address on the taxi driver's computer is the same address where the officers are now located. (Id. at 72.) The crimes against the cab driver include kidnapping, armed robbery, carjacking, all serious felonies. (Id.) Lt. Bayne told Sgt. Cabrera to make sure that his interview with the cab driver was recorded, which he indicated was recorded. (Id.)
While Lt. Bayne is on the telephone with Sgt. Cabrera, Lt. Bayne is not part of any discussions with the contact team regarding the tactical plan should Jason come out of the home. (Id. at 273.) Lt. Bayne testified that he did not hear Officer Sanborn state that if Jason comes out of the house without a gun or a knife and does not comply with police orders that he was going to put the dog on him. (Id. at 274.) While Lt. Bayne is on the telephone with Sgt. Cabrera, Sgt. Moore announces that Jason was coming out. (Id. at 72; 134.) The time is 4:49 a.m. (Id. at 134.) Lt. Bayne hung up his phone, and drew his sidearm. (Id.) He also determined that he would be the "lethal option, " although he did not communicate this to the contact team. (Id. at 13.)
The parties dispute how fast Jason advanced on the officers, his type of walk, and what he was doing with the pool cues as he walked. But, it is undisputed that Jason came out of the house with sticks in both hands, sticks that turned out to be the two halves of a pool cue. It is undisputed that pool sticks can be used as a dangerous instrument or deadly weapon. (Doc. 75-9 at 53.) Lt. Bayne described Jason as he emerged from the house:
I see... the suspect standing in the doorway with the light... background behind him. And he has two sticks in his hands. And he is standing in a martial arts type position. He's got the sticks back, like, resting on his shoulders and the first thing I notice is he's got stare that... I've seen before with people who are on... under the influence of mind altering drugs... but it was a stare where he was looking right through us and... he had a very determined look on his face and, like... he was going to fight us. And it was very clear in my mind that he had intentions of walking at us down that walkway and aggressing us before he even started moving
(Id. at 74-75.) The other officers also commented on Jason's determined stare. (Doc. 75 at 46-49.) Officer Reynolds stated: "He was - it was one of the - the scariest, live facial expressions I've seen since I've been on the job.... almost like he... had a mission, and he didn't care what was going on." (Doc. 75-6 at 131.) It is further undisputed that Officer Sanborn yelled numerous warnings to Jason to stop and drop his weapons but that Jason continued his straight-ahead advance on the officers. It is undisputed that when Jason came out of the front door it remained partially open, which shed some of the light from the house on Jason as he walked down the sidewalk toward the officers. Otherwise it is undisputed that it was extremely dark outside, with no moonlight, no streetlights, or outside houselights shedding light on the scene.
Officer Sanborn warned Jason that he was going to release the dog if he didn't stop and drop his weapons. (Id. at 55-56.) As Jason continued his advance on the officers, Lt. Bayne stated that he was in self defense officer mode, fearing for his life. (Id. at 79-83, ("I felt like he was right on top of us.") Officer Sanborn further shouted, "I'm going to release the dog who will bite you" or words to that effect. ( Id., 190.) As Jason continues his advance, all the officers, not just Officer Sanborn, are yelling at Jason to stop and drop his weapons. (Id. at 81.) When Jason was approximately 20 feet away from Officer Sanborn, Officer Sanborn released Raider. He also issued the "bite" command to Raider: "Fass!" ( Id., 190-91.) Raider charged at Jason, and jumped up onto Jason. He bit Jason's chest and then his arm. (Id.) At the same time, without knowing the K-9 had been released (there is a high level of commotion at this point due to all the officers yelling at Jason to drop his weapons), Lt. Bayne fired his weapon and killed Jason and also struck the K-9. (Id. at 83-88, ("I had no lateral vision in the darkness of the dog coming at him.") (id. at 87).)
As stated, the parties dispute the following facts: Jason's speed and his type of walk as he advanced on the officers, and what he was doing with the pool cues as he walked. From the officers, there is variation about how fast Jason advanced on the officers. (Doc. 75 at 45-46.) None of the officers described Jason's walk as staggering or swaying. Officer Sanborn testified that Jason was swinging the pool cues and that he stepped into each swing of the pool cues as he was walking, very aggressive, like he was taking warm-up swings. (Doc. 75-6 at 84.) Among the officers, there is also variation about what Jason was doing with the pool cues as he walked, some describing Jason swinging the weapons martial arts style, some that he was holding the weapons over his head, and some that he held them in a striking position. (Doc. 75 at 34.)
According to Rachel Rogers, who observed the event from Officer Carlisle's police vehicle across the street from the home where Jason exited, she had varying remarks about the speed Jason advanced on the officers and the type of walk Jason displayed. During her initial interview with police, she stated that she did not have her glasses on and was a bit fuzzy. (Doc. 102-2 at 20-26.) She stated that Jason was swaying when he walked, but that it wasn't slow motion, rather it was a regular pace. (Id.) She estimated Jason's emergence from the house until he was shot at 5-8 seconds. (Id. at 28.) In her subsequent September 2013 affidavit, she stated that Jason's walk "could best be described as a combination of a sway and a stagger. It appeared to me that he was trying to maintain his balance." (Doc. 88-1 at 118.) Regarding what Jason was doing with the pool cues as he walked, Rogers did not remember Jason having anything in his hands. (Doc. 102-2 at 24.) In her subsequent affidavit, she stated that she did not see Jason engage in any movements that would be described as ninja-like or martial arts moves. (Doc. 88-1 at 118.)
The Court construes the disputed facts and reasonable inferences in the light most favorable to Plaintiff, the non-moving party. Here, Rogers' statements are somewhat inconsistent. At the time of the event, she states that Jason's speed was a regular pace yet 18 months later she states that he was swaying and staggering as he advanced on the officers. Given that she didn't have her glasses and acknowledging that her clarity was fuzzy, the alleged staggering is clearly contradicted by the overall record. See Scott , 550 U.S. at 380 (stating that the court on summary judgment should not adopt a disputed fact that is clearly contradicted by the record). Rogers' statement that she did not remember Jason having anything in his hands is also clearly contradicted by the record; the record establishes that Jason had two halves of a pool cue in both hands when he emerged out of the house. Whether Jason was or was not performing practice ninja or martial arts moves with the cues as he advanced on the officers is not necessarily a material fact and need not be resolved.
STANDARD OF REVIEW
A defendant in a § 1983 action is entitled to qualified immunity from damages for civil liability if his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). "The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Pearson v. Callahan , 555 U.S. 223, 231 (2009) (further citation omitted). Qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments about open legal questions, " and applies to "all but the plainly incompetent or those who knowingly violate the law." Ashcroft v. al-Kidd , 131 S.Ct. 2074, 2085 (2011). Qualified immunity is "an immunity from suit rather than a mere defense to liability, " and therefore "it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth , 472 U.S. 511, 526 (1985).
In deciding the issue of qualified immunity, a court asks whether the facts and reasonable inferences, when taken in the light most favorable to the non-moving party, demonstrate that the officer's conduct violated a constitutional right and "whether the right was clearly established" at the time of the alleged violation. See Saucier v. Katz , 533 U.S. 194, 201 (2001), abrogated in part by Pearson , 555 U.S. at 236 (holding that the Saucier review procedure is not an inflexible requirement in that judges should exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first). For a right to be clearly established for the purposes of qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Wilson v. Layne , 526 U.S. 603, 615 (1999). The ...