United States District Court, D. Arizona
V. Wake United States District Judge.
the Court is Defendants’ Motion to Dismiss (Doc. 26).
Oral argument was heard on May 4, 2016. For the reasons that
follow, the Motion will be granted.
Lihosit claims that two police officers used excessive force
in the course of arresting him. He describes the incident in
his First Amended Complaint. Defendants have submitted a
video and transcript of the incident, as well as documents
from the post-arrest municipal court proceedings.
First Amended Complaint (Doc. 25) alleges as follows. On the
evening of October 29, 2014, City of Mesa Police Officer
Patrick Carroll and Detective Jason Flam spoke with Lihosit
outside his home about his recent communication with his
ex-wife. (Id. at ¶ 11.) The officers did not
arrive with the intention to arrest him. (Id. at
¶ 12.) Throughout the conversation Lihosit was calm and
unarmed. (Id. at ¶ 13, 19.) He was smoking a
cigarette and holding a cup of coffee. (Id. at
¶ 13.) He never raised his voice or made any threats.
the conversation, Lihosit read aloud a text message from his
wife which stated in part, “This is ridiculous, just
like you.” (Id. at ¶ 14.) Officer Carroll
mistakenly thought Lihosit was referring to the officers and
threatened to “punch [Lihosit] in the face.”
(Id. at ¶ 15.) Lihosit then looked at Officer
Carroll and asked him if he had just threatened harm.
(Id. at ¶ 16.) Detective Flam said that Officer
Carroll did not make a threat. (Id. at ¶ 17.)
asked to speak with the officers’ supervisor.
(Id. at ¶ 18.) In response to Lihosit’s
request, Detective Flam pointed his Taser at Lihosit and
said, “You are about to be lit up!” (Id.
at ¶ 19.) The officers then arrested Lihosit in order to
cover up their use of excessive force. (Id. at
neighbors and other passers-by saw this incident.
(Id. at ¶ 22.) Lihosit suffered “anguish
and pain and suffering, ” “post-traumatic
stress-disorder, ” and “humiliation in front of
his kids, girlfriend and neighbors.” (Id. at
¶ 24.) Neighbors will not let their children play with
Lihosit’s children anymore, and Lihosit’s role as
leader of his son’s boy-scout group is jeopardized.
brings this action under 42 U.S.C. § 1983. (Id.
at 6-11.) He claims that the officers used excessive force in
violation of the Fourth Amendment. (Id. at 6-9.) He
also claims that this violation resulted from the City of
Mesa’s policies, practices, or customs and its failure
to train and supervise its officers. (See Id. at
¶¶ 26, 49-58.) He seeks damages against the
officers and the City, jointly and severally. (Id.
Video, Transcript, and Municipal Court Documents
submitted a video of the incident (“Video”),
taken from Detective Flam’s body camera. (See
Doc. 33.) Defendants also submitted a transcript of
the incident, written by a third party who watched and
listened to the Video. (See Doc. 26-2.) Lihosit does
not dispute the authenticity of the Video or the transcript.
(Docs. 35, 36.) Defendants also submitted copies of the
charges brought against Lihosit in municipal court after the
arrest, as well as copies of that court’s findings.
(See Doc. 26-1.)
Video and transcript provide a fuller picture of what
happened. Detective Flam, Officer Carroll, and Lihosit were
standing outside, within a few feet from each other, talking.
(See Video; accord Doc. 25 at ¶ 19.)
Officer Carroll told Lihosit that the reason they were there
was to address Lihosit’s recent communication with his
ex-wife, in light of a court order limiting such
OFFICER CARROLL: What we’re here to address is that you
were served with an order of the court saying that
you’re not to contact her, except in regards to the
children. Okay? She made a complaint regarding one of the
[communications] . . . .
at 0:04-0:11; Doc. 26-2 at 3.) Lihosit offered to read his
recent communications with his ex-wife from his phone; the
officers agreed. (Video at 0:32-0:37; Doc. 26-2 at 4.)
Looking through his phone, Lihosit muttered, “This is
ridiculous, guys. You guys have no idea.” (Video at
0:39-0:43; Doc. 26-2 at 4.) Lihosit then read aloud a text
message. (Video at 0:58-1:10; Doc. 26-2 at 4.) Detective Flam
specified that the communication in question was an email,
not a text message. (Video at 1:15-1:22; Doc. 26-2 at 4-5.)
Looking through his phone again, Lihosit declared, “I
ain’t contacting her anymore. I understand the
point.” (Video at 1:24-1:26; Doc. 26-2 at 5.)
then read aloud from his phone, “This is ridiculous,
just like you.” Upon hearing this, Officer Carroll
began to argue, but Detective Flam clarified that Lihosit was
simply reading an email. Officer Carroll then said that
Lihosit “was about to get punched in the face”:
MR. LIHOSIT [Reading from phone screen]: This is ridiculous,
just like you.
OFFICER CARROLL: Well-
DETECTIVE FLAM: No. No, no-
OFFICER CARROLL: -if he was ridiculous-
DETECTIVE FLAM: -that’s the-no, no, no. He’s
reading the email. I’m sorry. [Laughing]
OFFICER CARROLL: He was about to get punched in the face.
at 1:30-1:38; Doc. 26-2 at 5.)
hearing Officer Carroll’s remark, Lihosit turned his
head toward Officer Carroll and asked, “Did you just
tell me you were gonna punch me in the face?” He then
turned the rest of his body toward Officer Carroll and
repeated the question:
MR. LIHOSIT: Did you just tell me you were gonna punch me in
DETECTIVE FLAM: Hey, you know ...