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Larson v. Dupnik

United States District Court, D. Arizona

September 8, 2015

Jill Larson and Robbin Larson, husband and wife, Plaintiffs,
Clarence Dupnik, Pima County Sheriff; Jeffrey Reay, Pima County Sheriff's Deputy; Joseph Serrano, Pima County Sheriff's Deputy; Ramon Penunuri, Pima County Sheriff's Deputy; William Fosmire, Pima County Sheriff's Deputy; and Michael McMurrich, Pima County Sheriff's Deputy, Defendants.


DAVID C. BURY, District Judge.

For the reasons explained below, the Court denies the parties' cross-motions for summary judgment and sets the case for trial.

Plaintiffs allege Defendants violated his Fourth and Fourteenth Amendment rights under the United States Constitution to be free from unreasonable searches and seizures because Defendants forced Plaintiffs from their home at gun point, handcuffed them, held them for approximately 45 minutes, and searched their home, without probable cause or a warrant.

Plaintiffs file a Motion for Partial Summary Judgment (MPSJ), and Defendants file a Motion for Summary Judgment (MSJ), which are essentially crossmotions for summary judgment of the case. See (Reply to support MSJ (Doc. 60) at 2 (relying on Response and SOF to MPSJ (Docs. 57-58)); Response to MSJ (Doc. 54) at 5 (relying on MPSJ (Doc. 47)). The question of whether any constitutional violation occurred is found in Plaintiffs' MPSJ, which is partial only to the extent Plaintiffs did not brief the Defendants' assertion of qualified immunity. Defendants responded by filing both a Response and by filing a Motion for Summary Judgment asserting qualified immunity. Plaintiffs replied both in a Response to the Defendants' Motion for Summary Judgment and in a Reply supporting their Motion for Partial Summary Judgment.

Given there has been ample opportunity to brief the issues, the Court denies the Defendants' request for oral argument. The parties submitted memoranda thoroughly discussing the law and evidence in support of their positions, and oral argument will not aid the court's decision-making process which is entirely based on a question of law. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (explaining that if the parties provided the district court with complete memoranda of the law and evidence in support of their positions, ordinarily oral argument would not be required).

The Court finds Defendants are not entitled to qualified immunity based on the facts viewed in the light most favorable to the Plaintiffs. The Court denies Defendants' Motion for Summary Judgment. The Court finds that there are material questions of fact in dispute regarding what occurred on the night of May 23, 2013, which preclude summary judgment for the Plaintiffs. The Court sets the case for trial.

May 23, 2013: Plaintiffs' allegations

On Thursday night, May 23, 2013, at approximately 10pm, the Plaintiffs were sleeping in their home when the five Defendant Sheriffs arrived, summoned pursuant to a 911 call from their neighbor, who was mentally unstable, reporting that he had heard shots and screams coming from their trailer. (MPSJ (Doc. 47), Statement of Facts (Ps' SOF) (Doc. 53)[1] ¶¶ 32-51). Over the month proceeding the false report directed at the Plaintiffs, the neighbor had made seven false reports to police, id. ¶ 9, that he heard gunfire, that neighbors were targeting him with lasers, and he heard persons screaming outside, id. ¶ 10. Sheriffs had transported him to the Community Partnership of Southern Arizona Crisis Response Center for a psychiatric evaluation. Id. ¶ 17. Two days before the false report about Plaintiffs, Sheriffs contacted Southern Arizona Mental Health Center to obtain mental health services for the neighbor. Id. ¶¶ 18-23. "As of May 21st 2014, at least eighteen (18) different PCS deputies had had interactions with [the Plaintiffs' neighbor] in the previous seven (7) months, " id. ¶ 24, including 3 of the officers, Reay, McMurrich and Salica, [2] who responded to the Plaintiffs' house that night, id. ¶¶ 9, 26.

All this information had been logged into the FORCE database, which tracks every incident and interaction between deputies and callers, suspects and others. Id. ¶ 4. Defendants knew of the instant availability of the FORCE database, which is designed so that the 911 call-taker, the dispatcher, or any deputy in his or her cruiser can call up the database. Id. ¶ 7. The FORCE data base reflected that the Plaintiffs' neighbor was tagged: "CAUTION ALERT"; "CAUTION - THREAT TO LAW ENFORCEMENT." Id. ¶ 8. During the 12 minutes it took to respond to the 911 call, id. ¶ 53, Defendants could have, should have, and failed to checked the FORCE database.

Because none of the Defendants checked the FORCE data base, when they arrived at the Plaintiffs home they believed a neighbor, living across the street, had heard horrible screaming and yelling between a man and a woman, and what sounded like gunshots and that the neighbor was staying on the telephone with the 911 call-taker, continuing to report what he was hearing next door at the Plaintiffs' home, id. ¶ 29-57, and was willing to speak to officers responding to the report, id. ¶ 56.

Eight cruisers and the five Sheriff Defendants, id. ¶54, arrived with their sirens off, id. ¶ 55, to a quiet neighborhood, id. ¶ 58. Two sergeants also arrived, id. ¶ 54; they are not named Defendants. When Defendants arrived, there were no dogs barking, no shouting, no breaking glass, and no thuds. Id. ¶ 58. The Plaintiffs' home was dark, id. ¶ 64, with their dogs standing silently inside a high chain link fence that surrounded the Plaintiffs' property, id. ¶¶ 60, 68. Defendants illuminated Plaintiffs' yard with their cruiser spot lights. Id. ¶ 65. Two Defendants pulled out AR-15 assault rifles, id. ¶ 62, the other three unholstered their semi-automatic pistols, id. ¶ 63. In route, Defendant Reay had called "move in and hold off, " which means wait and gather more information, id. ¶ 66, but instead the Defendant Sheriffs surrounded the house, id. ¶¶ 69, 70.

Sheriffs roused the Plaintiffs from sleep by screaming and banging on the side of their trailer home. Id. ¶3. Plaintiffs came to the door, id. ¶¶ 78-79, and when they opened it, Defendants were pointing guns, including assault rifles, at the Plaintiffs, id. ¶¶ 78-79. According to the Defendants, both Plaintiffs appeared to have been just wakened from sleep. Id. ¶ 83. Defendants ordered Plaintiffs from their home at gunpoint, id. ¶¶ 84-85, off their porch with their hands-up into their yard, id. ¶¶ 78-81, where Defendants handcuffed them, id. ¶ 87. All the while, Defendants pointed assault rifles at them, id. ¶¶ 78-79, and one officer was shaking so much that the barrel of his rifle was shaking, id. ¶¶ 84-85, and Plaintiffs believed they would be shot if they so much as stumbled coming down the steps from the trailer to the yard. Id. ¶ 84. Plaintiffs were terrified and feared for their lives. Id. ¶ 85.

Plaintiffs were nearly naked and barefoot. Id. ¶ 82. Defendants admitted they could see that neither Plaintiff was armed or injured. Id. ¶ 88. Defendants asked if anybody else was in the house and that Sheriffs had been advised there was a report of a potential shooting at their location. Id. ¶ 86. Plaintiffs told the Sheriffs that there was nobody else in the house and they had not heard anything. Id. ¶ 86. Nevertheless, Plaintiffs were walked barefoot across their yard, in handcuffs, to a patrol vehicle outside the enclosed yard. Id. ¶ 89. Plaintiffs allege they suffered cuts and scrapes on the bottom of their feet. Id. ¶ 98. Plaintiffs allege they were held by the road-side at the cruiser in handcuffs and questioned for at least 15 minutes, id. ¶ 102, while Sheriffs searched their home without a warrant, without asking for consent, id. ¶ 92, and without mentioning there was a need to see if there was a gunshot victim inside in need of aid, id. ¶ 93.

While Sheriffs questioned Plaintiffs, a man appeared from the bushes on the opposite side of the road and told Sheriffs he had called them and if the gunshots were not from Plaintiffs' house, it was the house next door. Id. ¶ 103-105. By then, Sheriffs were completing the "callout and containment" action, id. ¶ 72, they were finishing clearing Plaintiffs' home, id. ¶ 94-95, and moved next door where they followed the same procedure of removing the family (a woman, her daughter, and friend) at gunpoint, handcuffing and holding them while they searched that house, without a warrant. Id. ¶ 110.

"Only then, as Serrano reported, "it was discovered that the reportee might possibly suffer from mental illness and the entire incident might have been made up." Id. ¶ 111 (Ex. 17 Doc. 40-4 at 12). And, it was then that Defendants released Plaintiffs from custody. Id. ¶ 112. Total, Plaintiffs were held for approximately 45 minutes at the front of their property, face forward against a patrol cruiser, illuminated by spotlights without any clothes to cover themselves or shoes for their feet. (Larson, R. Depo. (Doc. 38-1_ at 25.)

Cross-motions for Summary Judgment: standard of review

On summary judgment, the moving party is entitled to judgment as a matter of law if the Court determines that in the record before it there exists "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material fact is any factual dispute that might effect the outcome of the case under the governing substantive law. Id. at 248. A factual dispute is genuine if the evidence is such that a reasonable jury could resolve the dispute in favor of the non-moving party. Id.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, but is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-325 (1986). A party opposing a motion for summary judgment cannot rest upon mere allegations or denials in the pleadings or papers, but instead must set forth specific facts demonstrating a genuine issue for trial. Liberty Lobby, Inc., 477 U.S. at 250. "If evidence is merely colorable... or is not significantly probative, summary judgment may be granted." Eisenberg v. Insurance Co. of North Am., 815 F.2d 1285, 1288 (9th Cir. 1987). In determining whether to grant summary judgment, the Court views the facts and inferences from these facts in the light most favorable to the non-moving party. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986).

On cross-motions for summary judgment, the Court considers each party's evidence, Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011), but does not weigh the evidence, determine the truth of the matter, or determine credibility, Liberty Lobby, Inc., 477 U.S. at 252. The Court determines whether there is a genuine issue for trial. Id. The inquiry mirrors the standard for a directed verdict: whether the evidence presented reveals a factual disagreement requiring submission to a jury or whether evidence is so one sided that one party must prevail as a matter of law. See, Celotex Corp., 477 U.S. at 323 (citing Liberty Lobby, 477 U.S. at 250) (essentially, the standard for granting summary judgment mirrors that for a directed verdict).

Qualified Immunity

42 U.S.C. § 1983 imposes individual liability on a government officer for actions taken under color of state law which deprives a plaintiff of a right or privilege guaranteed by the Constitution or laws of the United States. Hafer v. Melo, 502 U.S. 21, 25 (1991). Even if § 1983 liability attaches, however, Defendants may be immune from suit under the doctrine of qualified immunity. A government employee is not personally liable for an abuse of discretion violating civil rights unless the legal right was "clearly established" at the time, and a reasonable person in the same position would have known that what he did violated that right. Behrens v. Pelletier, 516 U.S. 299, 304 (1996); Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996); Trevino v. Gates, 99 F.3d 911, 916 (9th Cir. 1996), cert. denied, 117 S.Ct. 1249 (1997); Act Up/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).

Qualified immunity is designed to protect an officer who, reasonably, but mistakenly, acts in violation of some constitutional right. Saucier v. Katz, 533 U.S. 194, 205 (2001). The doctrine bars the suit; it is not a defense to liability. Act Up/Portland, 988 F.2d at 872-73. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity is a legal question, and it is addressed by the Court at the earliest possible point in the litigation. Act Up/Portland, 988 F.2d at 872-73.

While a decision on the merits of the constitutional claim and the qualified immunity analysis in some parts may overlap, the assessments are not merged because the qualified immunity analysis is based on the facts as alleged by the plaintiff, whereas the plaintiff has to prove the merits of his constitutional claim at trial. See Saucier, 533 U.S. at 200-201 (the analyses are not susceptible to fusion).

Plaintiff bears the burden of showing that the rights he alleges the Defendants violated were clearly established. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). Defendants bear the burden of showing that a reasonable officer could have believed he was not violating a constitutional or statutory right. Collins, 110 F.3d at 1369 (citing Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994), cert. denied, Ball v. Gasho, 515 U.S. 1144 (1995)). In other words, qualified immunity requires the Defendants to prevail regarding the reasonability of their conduct based on the facts as alleged by the Plaintiffs and construed in Plaintiffs favor.

Under the Fourth Amendment, the Court looks for "objective reasonableness." Graham v. Connor, 490 U.S. 386, 388 (1989); Robinson v. Solano Cnty., 278 F.3d 1007, 1013-14 (9th Cir.2002). The inquiry is a fact-intensive balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake." Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir.2003).

In the Ninth Circuit, the courts evaluate "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Robinson, 278 F.3d at 1014 (citing Graham, 490 U.S. at 396). The courts consider whether the suspect poses an immediate threat to the safety of the officers or others to be the "most important" Graham factor. Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.2005). The courts look at the total "quantum of force" involved, the availability of alternative methods of detaining the suspect, and the arrestee's mental and emotional state. Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir.2010). Moreover, "[t]hese factors... are not exclusive. Rather, [courts] examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case [.]" Mattos v. Agarno, 661 F.3d 433, 441 (9th Cir. 2011) (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.2010)) (internal quotation marks omitted). Reasonableness is evaluated "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396.

For purposes of qualified immunity, reasonableness, usually a question of fact, may be decided as a matter of law "if, in resolving all factual disputes in favor of the Plaintiff, " the court can find the officer's conduct was "objectively reasonable." Jackson v. City of Bremerton, 268 F.3d 646, 651, n. 1 (9th Cir. 2001) (citations omitted). Given the fact specific nature of the reasonability analysis, unless the determination can be made in the context of the one-sided factual inquiry for determining qualified immunity, summary judgment should be ...

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