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Esquivel v. City of Yuma

United States District Court, D. Arizona

April 29, 2016

Gavino Esquivel, Plaintiff,
City of Yuma; Joseph Carrillo, Defendants.


Neil V. Wake United States District Judge

Before the Court is Defendants City of Yuma and Officer Joseph Carrillo’s Motion for Summary Judgment (Doc. 71). Oral argument was heard on April 20, 2016.


The Rules of Practice of the United States District Court for the District of Arizona (“Local Rules”) require that any party filing a motion for summary judgment file a statement, separate from the motion and memorandum of law, that sets forth each material fact on which the party relies in support of the motion. LRCiv. 56.1(a). Any party opposing a motion for summary judgment must file a separate controverting statement of facts. LRCiv 56.1(b).

The moving party may file a reply memorandum, but the Local Rules do not authorize filing a separate statement responding to the nonmoving party’s controverting statement of facts. See LRCiv 56.1(d). The moving party may include its evidentiary objections to the nonmoving party’s controverting statement of facts in its reply memorandum. LRCiv 7.2(m)(2). The moving party would need to seek and obtain leave to file another separate statement. If such leave were granted, the nonmoving party would be granted opportunity to respond.

The Court has considered Defendants City of Yuma and Officer Joseph Carrillo’s Motion for Summary Judgment (Doc. 71), Defendants’ Separate Statement of Facts in Support of Their Motion for Summary Judgment (Doc. 72), Plaintiff’s Response to Defendants’ Motion for Summary Judgment (Doc. 81), Plaintiff’s Controverting Statement of Facts and Statement of Additional Facts in Opposition to Defendants’ Motion for Summary Judgment (Doc. 82), and Defendants’ Reply in Support of Their Motion for Summary Judgment (Doc. 92). The Court has not considered the separately filed Defendants’ Objections to Plaintiff’s Statement of Additional Facts (Doc. 93), which is not authorized by the Local Rules and for which Defendants did not seek leave to file. Defendants’ Objections to Plaintiff’s Statement of Additional Facts (Doc. 93) will be stricken.


A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. Summary judgment should be granted if the evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A material fact is one that might affect the outcome of the suit under the governing law, and a factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of showing the absence of genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, once the movant shows an absence of evidence to support the nonmoving party’s case, the burden shifts to the party resisting the motion. The party opposing summary judgment must then “set forth specific facts showing that there is a genuine issue for trial” and may not rest upon the pleadings. Anderson, 477 U.S. at 256. To carry this burden, the nonmoving party must do more than simply show there is “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. 56(e)(2).

In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party, must not weigh the evidence or assess its credibility, and must draw all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255. Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587.


A. The March 1, 2014 Incident

At approximately 2:00 a.m., on March 1, 2014, Plaintiff and friends arrived at the International House of Pancakes restaurant in Yuma, Arizona. Before going to the restaurant, Plaintiff consumed approximately 10 or 11 alcoholic beverages.[1] While Plaintiff was seated at a table with friends, he made comments and gestures to a group seated at a table across the room, who responded. Plaintiff, a Hispanic male, began the exchange by asking a black male in the other group, “How are you doing, Obama?” The black male responded, “How are you doing, Chapo?” As the exchange continued, people from both tables stood up, and at one point Plaintiff and the black male stood in an open area between their tables, facing each other, speaking loudly and gesturing, but not making physical contact.

At approximately 2:43 a.m., the restaurant manager called 911 and asked for immediate assistance, saying two groups of customers were arguing and she wanted them escorted out of the restaurant. She said that nine individuals were involved. She described a black male wearing a blue shirt arguing with a Hispanic male. At first the manager said that the dispute was not “physical, ” but a minute or two later, she said the dispute was “getting to that point.” The manager told the 911 operator that no weapons were involved.

At approximately 2:44 a.m., a City of Yuma dispatcher broadcasted a high priority disturbance call involving possibly nine people at the International House of Pancakes restaurant. The dispatcher described it as a verbal disturbance, but less than a minute later, the dispatcher said, “It sounds like it is physical now.” Approximately twelve police officers responded to the scene.

Officers Joseph Carrillo and Victor Reyes were the first officers to arrive at the restaurant. Officer Reyes entered the restaurant first, and Officer Carrillo was approximately ten feet behind him. As the manager walked toward the entrance and the police officers, one of the servers told the manager that someone had a gun. Plaintiff began walking quickly behind the manager toward the entrance. As Officer Reyes entered, the manager pointed to Plaintiff and said, “That’s one of them.” Plaintiff began to leave the restaurant. As Officer Carrillo entered the foyer, Officer Reyes pointed to Plaintiff and said, “That’s one of them.” During this time, the manager also said that one of the two men involved in the disturbance had a gun. One of the officers told Plaintiff to “hold on, ” Plaintiff stopped and said, “I gotta go, ” and then Plaintiff took off running. Plaintiff ran around the restaurant to the back of the restaurant, toward a motel. Officer Carrillo ran after Plaintiff.

Officer Carrillo ordered Plaintiff to stop running, but Plaintiff did not hear him and did not stop running away from Officer Carrillo. Plaintiff also did not hear Officer Carrillo warn him that if he did not stop, he would be tased. It is Officer Carrillo’s usual practice to issue a warning before deploying his Taser, but he does not remember whether he did. Approximately ten seconds after Officer Carrillo first saw Plaintiff, he tased Plaintiff in dart mode[2] at a distance of 10 to 12 feet, causing Plaintiff to fall on asphalt. No one saw Officer Carrillo tase Plaintiff. Within a few minutes after Officer Carrillo tased Plaintiff, he conducted a warrants check, which revealed that Plaintiff had an outstanding warrant for his arrest for bad check/insufficient funds.

Subsequently, Plaintiff was detained, transported, and treated at Yuma Regional Medical Center. The physician found Plaintiff to be initially disoriented and grossly intoxicated. He noted multiple contusions, abrasions, and lacerations. The physician also noted, “The patient gradually resolved his intoxication, became alert, oriented, stable and uncooperative.” Plaintiff refused an elbow splint and suturing of small lacerations of the abdomen and forehead. Radiology tests showed a nondisplaced fracture of Plaintiff’s right elbow and fractures of the nasal bone. Lab tests showed Plaintiff’s blood alcohol level to be 0.163%.

Officer David Williams was the investigating officer for the March 1, 2014 incident. He made the decision to charge Plaintiff with misdemeanor disorderly conduct. At the Yuma Regional Medical Center, Officer Carrillo read Plaintiff his Miranda rights and issued Plaintiff a citation for misdemeanor disorderly conduct pursuant to A.R.S. § 13-2904(A)(1). Plaintiff also was charged for the outstanding warrant. On June 20, 2014, the charges against Plaintiff were dismissed with prejudice due to prosecutorial discretion.

A.R.S. § 13-2904(A) defines misdemeanor disorderly conduct as engaging in “fighting, violent or seriously disruptive behavior, ” making “unreasonable noise, ” or using “abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person.” Disorderly conduct that involves recklessly handling, displaying, or discharging a deadly weapon or dangerous instrument is a class 6 felony. A.R.S. § 13-2904(B).

B. Yuma Police Department’s Use of Force Policies and Procedures

The Yuma Police Department (“YPD”) has adopted policies and procedures regarding the use of force by its officers. YPD Policy 2.25, which was in effect on March 1, 2014, provides that YPD officers shall be trained in the use of weapons and response options when confronted with situations that may require use of force. YPD Policy 2.25 advises officers that electronic control devices (“ECDs”) are intermediate control techniques that have the probability of causing injury. The Taser used by Officer Carrillo on Plaintiff is an ECD. YPD Policy 2.25 states that ECDs “shall be carried in accordance with current policies and training practices” and any deployment shall “be reasonable, based on the totality of the circumstances, and in compliance with statutes and current training.” YPD Policy 2.25 instructs officers to consider the following list of circumstances to determine if using a particular method of force is warranted: (a) the severity of the crime; (b) whether the suspect poses an immediate threat to the safety of officers or others; (c) whether the suspect is actively resisting arrest or attempting to evade arrest by flight; (d) age, size, ability, and physical conditioning of the suspect versus that of the officer; (e) weapon and/or dangerous instrument; and (f) duration of altercation between the suspect and the officer.

YPD Policy 2.25 requires an officer who uses force to complete a Use of Force form, which is reviewed by a first line supervisor. The Use of Force form is then forwarded to the Chief’s Office via the chain of command, along with a copy of the incident report. The chain of command may recommend that the incident be forwarded to Internal Affairs for further investigation or to the Use of Force Board. The Chief of Police reviews every Use of Force report that is completed by a YPD officer who uses force. The Chief of Police or the Deputy Chief of Police will review the Use of Force form and assign necessary follow-up, which may include corrective and/or disciplinary action.

YPD’s Professional Standards Unit and Training Unit annually review YPD’s uses of force to analyze patterns that could affect training or equipment needs. YPD officers receive training regarding appropriate uses of force, and the training is approved by the Arizona Peace Officers Standards and Training Board. The training includes compliance with constitutional standards and the Arizona Revised Statutes governing use of force. It also includes training YPD officers regarding completing a Use of Force form.

YPD officers are specifically trained and certified in the use of a Taser, and the training is approved by the Arizona Peace Officers Standards and Training Board. YPD officers are trained that Taser deployment must be objectively reasonable under the totality of the circumstances. The training program includes guidelines for use of a Taser, which include not using a Taser against subjects “solely for running from an officer.” YPD officers are taught that tased individuals may be secondarily injured as a result of falling after being tased. They also are taught regarding high risk individuals, such as elderly people and pregnant women. To become recertified, YPD officers must attend annual training and pass a written exam. They are also required to attend practical simulated training conducted by outside agencies.

Officer Carrillo was trained in use of force techniques, specifically as related to Taser deployment, and was certified for Taser use. Officer Carrillo was taught not to use a Taser ...

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