United States District Court, D. Arizona
Johnny G. Woods, Jr. Plaintiff,
Arizona Department of Public Safety, et al., Defendants.
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE
At issue is the Report and Recommendation (“R&R”) (Doc. 85) submitted by United States Magistrate Judge Fine recommending that the Court grant summary judgment for Defendants as to all but one of the remaining claims in Plaintiff’s Complaint. Defendants timely filed an Objection to Judge Fine’s recommendation that one claim should survive summary judgment (Doc. 86). Plaintiff timely filed a Response to Defendants’ Objection (Doc. 88). For the reasons set forth below, the Court will grant Defendants’ Motion for Summary Judgment (Doc. 74).
The R&R recommends entry of summary judgment for Defendants on Plaintiff’s claim of unlawful seizure in Count One; his claim for false arrest in Count Four; and his claim for unlawful seizure of his vehicle in Count Five. Plaintiff did not file any objections, timely or otherwise, to these recommendations, and in fact, in his Response to Defendants’ Objection, states that he “hereby AGREE[s] with the Report and Recommendation issued January 4, 2016, by Magistrate Judge.” (Doc. 88 at 1.) Although by virtue of Plaintiff’s agreement with the Judge Fine’s recommendations concerning Counts One, Four and Five, the Court need not review those recommendations, it nonetheless has conducted such a review and concludes that the R&R is correct regarding those counts. The Court therefore will grant summary judgment on Counts One, Four and Five of the Complaint.
The R&R also recommends denial of summary judgment on Plaintiff’s excessive force claim in Count Three of the Complaint. The Court will reject that recommendation and will grant Defendants’ Motion for Summary Judgment as to Count Three for the reasons set forth below. In so doing, the Court also adopts in whole sections I (Background), II (Standard for Granting or Denying a Motion for Summary Judgment), III (Facts for Purposes of this Motion), IV.A (Analysis - Traffic Stop and Arrest) and IV.C (Analysis - Towing/impounding of the Vehicle) of the R&R. The Court therefore will not repeat here in detail the information contained in these sections of the R&R.
I. Excessive Force Claim
Having already determined as a matter of law that Defendant Bugenig had lawful cause to stop Plaintiff’s vehicle, and thereafter to place him under arrest, the Court must limit its focus, for purposes of analyzing the propriety of summary judgment on the excessive force claim, to the actions Defendants took in effecting that arrest. Plaintiff charges that Defendants used excessive force in the three following actions: 1) using a police baton strike to shatter Plaintiff’s driver-side car window, which baton he alleges also struck him in the cheek and caused a half-centimeter cut; 2) once the driver door was opened, grabbing Plaintiff by his arm and hair, pulling him out of the car and throwing him to the ground face-down, where there was broken glass; and 3) thereafter pinning Plaintiff to the ground with knees to his neck and back. The parties are in agreement that Action 2 occurred as described above, and are in at least partial agreement that Actions 1 and 3 occurred as described above. To the extent the parties disagree, and for purposes of this Motion only, the Court views the facts in the light most favorable to the nonmoving party - here, Plaintiff - and construes the facts as listed above.
A. Action 1 - Shattering the Driver Window and Striking Plaintiff’s Cheek with the Baton The Court concludes it is necessary to evaluate Defendants’ alleged actions in gaining entry to Plaintiff’s car separately from their alleged actions after gaining entry. Interpreted in the light most favorable to Plaintiff, the facts that this Court must first evaluate are that Defendant Maksimuk, through strikes with his police baton, shattered the driver side window of Plaintiff’s car, and in doing so, struck Plaintiff once in the cheek with the baton. The Court agrees with Magistrate Judge Fine’s conclusion that, in light of the record before the Court, it cannot rule on summary judgment that this use of force as alleged was constitutionally reasonable. However, the R&R does not provide any analysis for its recommendation that summary judgment based on qualified immunity should be denied for the baton strike. The Court undertakes that analysis below.
Government officials performing discretionary functions are entitled to qualified immunity, which would shield them from civil damages liability where their actions “could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). The doctrine’s purpose is to balance two important but competing interests - “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity protects government officials from liability for civil damages “unless 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.” Wood v. Moss, 134 S.Ct. 2056, 2066-67 (2014) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)). Even if the violated right was clearly established at the time of the violation, it may be “difficult for [the defendant] to determine how the relevant legal doctrine . . . will apply to the factual situation the [defendant] confronts. . . . [Therefore, i]f the [defendant’s] mistake as to what the law requires is reasonable . . . the [defendant] is entitled to the immunity defense.” Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled in part on other grounds, Pearson, 555 U.S. at 236.
A government official “cannot be expected to predict the future course of constitutional law, but [the official] will not be shielded from liability” for acts that violate clearly established constitutional rights. Procunier v. Navarette, 434 U.S. 555, 562 (1978) (citations omitted). This inquiry must be “undertaken in light of the specific context of the case.” Saucier, 533 U.S. at 201. To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what [the official] is doing violates that right.” Anderson, 483 U.S. at 640. To conclude that the right is clearly established, the court need not identify an identical prior action. See id.; Rodis v. City & Cnty. of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009). First, the court should look to binding precedent. Chappell v. Mandeville, 706 F.3d 1052, 1056 (9th Cir. 2013). Absent binding precedent, the court should consider all relevant precedents, including decisions from the Supreme Court, all federal circuits, federal district courts, and state courts; in addition, the court should consider the likelihood that the Supreme Court or the Ninth Circuit would decide the issue in favor of the person asserting the right. See Elder v. Holloway, 510 U.S. 510, 512, 516 (1994).
Saucier provides that prior law clearly establishes a right when the facts of the precedential case are “not distinguishable in a fair way from facts presented in the case at hand.” 533 U.S. at 202. But even where a plaintiff has alleged violations of a clearly established right, the government official is still entitled to qualified immunity if he or she made a reasonable mistake as to what the law requires. See Id. at 205. Put another way, the test is whether the officer had “fair warning” that his actions were impermissible. Hope v. Pelzer, 536 U.S. 730, 741 (2002). The plaintiff bears the burden of proving that the right allegedly violated was clearly established at the time of the violation; if the plaintiff meets this burden, then the defendant bears the burden of establishing that the defendant reasonably believed the alleged conduct was lawful. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).
The closest precedent the Court could locate to the circumstances presented here is Young v. County of Los Angeles, 655 F.3d 1156 (9th Cir. 2011). In Young, the plaintiff was stopped for a traffic violation. Id. at 1159. He refused to follow the defendant police officer’s directive to return to his vehicle but offered no physical resistance, and the court found he did not pose a physical threat to the defendant. Id. Nonetheless, the defendant pepper sprayed the plaintiff and allegedly struck him with a police baton at least ten times, including at least once after the plaintiff had lain down on the ground. Id. at 1160. In concluding that the defendant had violated the plaintiff’s constitutional rights through the use of excessive force, the court in Young found first that both the pepper spray and the baton blows “are regarded as ‘intermediate force’ that, while less severe than deadly force, nonetheless present a significant intrusion upon an individual’s liberty interests.” Id. at 1161. The court also found that, based on the application of pepper spray and the multiple strikes with the baton, the amount of force used in the case was significant as well, and that the type and amount of force used must be justified by a “commensurately serious state interest.” Id. at 1162-63. The court in Young concluded that the state interest was not commensurately serious, observing, among other factors, that the plaintiff, when sprayed and struck by the baton, did not pose an immediate threat to the safety of the officer or others, and that he was not actively resisting arrest or attempting to evade arrest by flight. Id. at 1163. In balancing the governmental interest presented against the nature of intrusion against the plaintiff, the court in Young concluded that the force used by defendant was excessive and in violation of the Fourth Amendment. Id. at 1166.
The present case is distinguishable from Young in that here, there was no pepper spray deployed, and rather than multiple baton blows intentionally inflicted, including one after the plaintiff in Young had lain down in compliance with the officer’s directive, there was only one baton blow. Importantly, that blow was intended to shatter the car window and effect entry to Plaintiff’s locked car, and Plaintiff neither alleges nor otherwise argues that it was intended for his head or any other part of him. Rather, as Plaintiff offers in his exhibits underlying his controverting statements of fact, Defendant Maksimuk delivered two baton blows to shatter the car window; the first did not succeed. When the second one did, he stopped striking and cleared the glass. (Doc. 81 at 48.)
In light of these significant factual distinctions, and the absence of any other controlling case law more on point, it cannot be said that Plaintiff’s right to be free from a single baton strike, delivered to shatter his window and gain entry to his car and effect a lawful arrest, was a clearly established right. And if such was a clearly established right, the factual differences between the precedent provided in Young and the instant case would make it very “difficult for [Defendant] to determine how the relevant legal doctrine  will apply to the factual situation [he] confront[ed].” See Saucier, 533 U.S. at 205. Thus, Defendant Maksimuk’s decision to swing the baton to gain entry to the car where that strike might also hit Plaintiff, even if he was mistaken as to its constitutionality, was a reasonable mistake. Defendants are entitled to qualified immunity for the baton strike that allegedly hit Plaintiff in the cheek.
B. Actions 2 and 3 - Pulling Plaintiff from the Car, Throwing Him to the Ground and Pinning Him with Knees to ...