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Fuciarelli v. Good

United States District Court, D. Arizona

August 30, 2016

Kevin Fuciarelli, Plaintiff,
Aaron B. Good, et al., Defendants.


          Honorable G. Murray Snow United States District Judge.

         Pending before the Court is the Motion for Summary Judgment by Defendants Officer Edward Chrisman, Officer Aaron Good, and the City of Scottsdale (“the City”). (Doc. 69.) For the following reasons, the Court grants in part and denies in part Defendants' motion.


         Plaintiff Kevin Fuciarelli, a dermatological surgeon, owns the building in which his medical practice is located. He rented space to Dr. Irwin Levey. On March 10, 2013, Fuciarelli's father called Fuciarelli and stated that Levey, who was two months late paying his rent, was vacating the building without notice. Fuciarelli arrived at the building while Levey was in the process of moving his belongings into a moving truck. Fuciarelli entered Levey's suite and announced that he was locking him out. Dr. Levey's wife, Sharon Levey, approached Fuciarelli and told him she was there to help the tenant and needed to go into the suite to get her car keys. Fuciarelli did not know her, and she did not identify herself. Fuciarelli turned her away and entered his adjacent office suite to contact a locksmith.

         Dr. Levey called 9-1-1 to report that he had been evicted and his keys were locked inside the suite. The Scottsdale Police Department dispatched officers to the call as a disturbance. Officer Chrisman arrived at the building and spoke to Sharon Levey, who was waiting alone in the parking lot. Fuciarelli came down from his office, and Officer Chrisman asked him if Sharon Levey could search the suite for her keys. Fuciarelli declined. Officer Chrisman then asked permission to search the suite himself, and Fuciarelli initially agreed but then felt uncomfortable and changed his mind.

         Officer Good arrived, and Officer Chrisman asked Good to remain with Fuciarelli and his father. Chrisman knew that Fuciarelli could legally enforce a lockout and retain property belonging to a tenant, but he did not know whether Fuciarelli could retain property belonging to a “non-tenant.”[1] Chrisman went to his patrol car to research commercial landlord-tenant laws. Good ordered Fuciarelli and his father to remain in the area of the building's entrance. Fuciarelli waited and paced while Good stood within three to nine feet of him. According to Fuciarelli, he and his father were detained for almost 30 minutes. Fuciarelli asked why he was being detained and what was taking so long, but he was given no answers. Fuciarelli asked if he could call a locksmith, but Officer Good told him that if he attempted to go back into his suite, he would be arrested. Plaintiff's and Defendants' accounts of what next transpired differ dramatically.

         According to Fuciarelli, after 20 minutes of being told he could not leave the entrance area of the building without being told why, he was growing impatient. At one point, while pacing in the entrance area, he walked down the sidewalk, and Officer Good, “clearly agitated, shouted at Fuciarelli that he must return and stay near him.” (Doc. 111 at 6.) Fuciarelli complied, but a few minutes later, he walked onto the sidewalk again and asked why Sharon Levey had not been detained. Good shouted at him that he could not talk to her. (Id.) Fuciarelli returned to the entrance area and began talking to his father about their ongoing detention, complaining that the detention was unlawful. (Id.) Suddenly, without warning, Good “approached Fuciarelli from the rear and tackled him, ” grabbing him around the neck and slamming him to the ground in a “chokehold.” (Id.) Fuciarelli was “caught unaware, ” as he had not verbally or physically threatened Good and had not been attempting to evade him. (Id. at 7.) Fuciarelli did not yell or resist. (Id.) After Good took Fuciarelli to the ground, he hit his radio call button. Officer Chrisman arrived and helped to handcuff Fuciarelli.[2] (Id.)

         According to Defendants, however, Fuciarelli walked toward Officer Chrisman's patrol car to determine what was taking so long. Officer Good ordered him to return. Fuciarelli “turned and walked quickly toward Officer Good-arms flexed, chest puffed out and head held high like an ‘angry soldier'-and while pointing his finger, he yelled if Officer Good would arrest him, ” to which Officer Good responded “yes.” (Doc. 69 at 4.) Fuciarelli asked why Sharon Levey had not been detained, and Good responded that she had remained calm. Fuciarelli continued pacing and seemed agitated, and then he again walked away from his “designated area” toward the patrol car, and then turned toward Sharon Levey, “loudly saying” that he was “exasperated” that her husband had left and saying that she was the one who should be detained. (Id. at 5.) Fuciarelli gestured with his hands while he spoke, “moving them with such force that it appeared to Officer Good that Fuciarelli was ‘punching' the air, ” and Sharon Levey “felt so threatened that she prepared to get inside her car and lock the door if he came at her.” (Id.) Officer Good ordered Fuciarelli not to talk to Sharon Levey, at which point Fuciarelli turned and approached Good “with his arms flexed and his eyes and mouth wide opened, ” yelling that he had not been told he could not speak to Sharon Levey. (Id.) Fuciarelli stopped about five feet from Officer Good. At that point, Good radioed Chrisman for help and told Fuciarelli to place his hands behind his back, and Fuciarelli refused, stating that Good could not arrest him. (Id.) Good decided to restrain Fuciarelli “for safety.” (Id. at 6.) Officer Chrisman “ran to [Good's] aid” and discovered Fuciarelli “on the ground in a prone position” and Officer Good “on Fuciarelli's right-hand side, struggling to handcuff him.” (Id.) Chrisman “tucked Fuciarelli's left hand behind his back and held it so Officer Good could finish handcuffing him.” (Id.)

         Immediately after being tackled, Fuciarelli began to experience severe pain in his back and neck. Neither Good nor Chrisman called the paramedics. After Sergeant Brian Reynolds arrived on the scene and observed Fuciarelli, the Scottsdale Fire Department was summoned, and Fuciarelli was transported to Scottsdale Shea Hospital for emergency evaluation. Doctors there diagnosed Fuciarelli with upper extremity paresthesias related to spinal cord neuropraxia, and Fuciarelli was transported to Barrow Neurological Institute at St. Joseph's Hospital in Phoenix, where he was admitted for several days and treated by a neurosurgeon who specializes in spinal cord injuries. The doctors at Barrow diagnosed Fuciarelli with gross cervical instability and a neurapraxic injury and recommended surgery to avoid possible paralysis. Fuciarelli also had shoulder and elbow pain and was diagnosed with a partial thickness rotator cuff tear and ulnar neuritis. The record includes testimony from a biomechanics expert who opines that Officer Good's conduct caused the gross cervical instability, the immediate pain that Fuciarelli experienced, and his continued symptoms. (Doc. 77 at ¶ 154.)


         Fuciarelli's Complaint lists six counts. Three counts allege violations of state law (Count I - negligence of Good and Chrisman; Count II - vicarious liability of the City for the officers' negligence; Count III - negligence of the City in failing to “use reasonable care in the hiring, training, and supervision of Good and Chrisman”). The other three counts allege violations of federal law under Section 1983 of Title 42 of the U.S. Code (Count IV - excessive force by Good and Chrisman; Count V - unreasonable seizure by Good and Chrisman; Count VI - failure to train officers by the City). Defendants have moved for summary judgment on all counts.

         I. Legal Standard

         The Court grants summary judgment when the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making this determination, the Court views the evidence “in a light most favorable to the non-moving party.” Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party opposing summary judgment “may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Substantive law determines which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248).

         II. Analysis

         A. Count I - Negligence of Officers Good and Chrisman

         1. Police Officers May Be Held Liable For Negligence.

         Defendants assert that police are immune from negligence claims under Arizona law and can only be held liable for gross negligence. (Doc. 69 at 19.) However, Arizona law does not provide immunity to police officers for negligence involving use of force.

         The Supreme Court of Arizona “abolished the doctrine of sovereign immunity for tort liability in 1963, concluding that the government and its employees should generally be responsible for injuries they negligently cause.” Glazer v. State, 237 Ariz. 160, 163, 347 P.3d 1141, 1144 (2015) (citing Stone v. Ariz. Highway Comm'n, 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963) (“[T]he rule is liability and immunity is the exception.”)). In 1984, the Arizona legislature enacted the Actions Against Public Entities or Public Employees Act (the “Act”), “which specifies circumstances in which governmental entities and public employees are immune from tort liability.” Id. “The Act leaves intact the common-law rule that the government is liable for its tortious conduct unless immunity applies.” Id.; see also City of Tucson v. Fahringer, 164 Ariz. 599, 600 n.4, 795 P.2d 819, 820 n.4 (1990) (“In the Act's prefatory statement, the legislature reaffirmed the now well settled common law notion that governmental immunity is the exception and liability the rule, when it stated that ‘the public policy of this state [is] that public entities are liable for acts and omissions of employees in accordance with the statutes and common law of this state.'” (quoting Ariz. Rev. Stat. (“A.R.S.”) § 12-280, Historical Note)).

         Pursuant to the Act, “[u]nless a public employee acting within the scope of the public employee's employment intended to cause injury or was grossly negligent, neither a public entity nor a public employee is liable for” any of ten enumerated acts. A.R.S. § 12-820.02(A).[3] Excessive force is not listed, and no other portion of the Act exempts negligent use of force from the common-law rule that the government is liable for tortious conduct. Therefore, police officers in Arizona who use excessive force during an arrest are liable under the ordinary negligence standard. See Austin v. City of Scottsdale, 140 Ariz. 579, 581-82, 684 P.2d 151, 153-54 (1984) (“[T]he City of Scottsdale, having opted to provide police protection, had a duty to act as would a reasonably careful and prudent police department in the same circumstances.”); see also Dominguez v. Shaw, No. CV 10-01173-PHX-FJM, 2011 WL 6297971, at *3 (D. Ariz. Dec. 16, 2011) (“The legislature did not elect to place use of force into the narrow exceptions granting qualified immunity, and it is not our place to override this decision. Defendants are not entitled to summary judgment on plaintiffs' negligence claims simply because they are police officers.” (internal citation omitted)).

         Defendants rely on a 2012 decision of this Court for the proposition that “Arizona state courts have established a common-law immunity from mere negligence for police officers ‘to assure continued vigorous police work.'” Hulstedt v. City of Scottsdale, 884 F.Supp.2d 972, 1017 (D. Ariz. 2012) (quoting Landeros v. City of Tucson, 171 Ariz. 474, 475, 831 P.2d 850, 851 (App. 1992)). In Hulstedt, the Court relied on a passage from an Arizona appeals court case:

The public has a vital stake in the active investigation and prosecution of crime. Police officers and other investigative agents must make quick and important decisions as to the course an investigation shall take. Their judgment will not always be right; but to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence.

Landeros, 171 Ariz. at 475, 831 P.2d at 851 (quoting Smith v. State, 324 N.W.2d 299, 301 (Iowa 1982)). This passage in Landeros was dicta, for the court determined that no showing of negligence had ever been made in that case: “Even if we were to hold that Arizona would recognize simple negligence in the investigation of a crime as a tort, . . . [s]ince there was no showing of negligence . . ., a claim of negligence will not lie.” Id. at 475-76, 831 P.2d at 851-52. Moreover, Landeros is distinguishable, as it bore narrowly on the matter of negligence “in the investigation of a crime, ” that is, negligence in making “quick and important decisions as to the course an investigation shall take.” Id. (emphasis added). The degree of force an officer uses while effecting an arrest is not a decision about which course to pursue in investigating and prosecuting a crime. Finally, binding precedent at the time that Landeros was decided suggests that the dicta in Landeros did not accurately reflect Arizona law. See Ryan v. State, 134 Ariz. 308, 309, 656 P.2d 597, 598 (1982) (quoting Ruth v. Rhodes, 66 Ariz. 129, 133, 185 P.2d 304 (1947) (holding that a police officer was liable for negligent driving while hurrying to a the scene of an accident: “We think that a sound public policy requires that public officers and employees shall be held accountable for their negligent acts in the performance of their official duties to those who suffer injury by reason of their misconduct. Public office or employment should not be made a shield to protect careless public officials from the consequences of their misfeasances in the performance of their public duties.”)).

         To the extent that Hulstedt in its brief review of the issue suggests or holds that the statutory immunity applies in excessive force cases, it was in error. Summary judgment is denied on this ground.

         2. The Officers Do Not Enjoy Statutory Immunity.

         Defendants further assert that Officers Good and Chrisman are immune because their conduct was “justified.” (Doc. 69 at 19-20.) Pursuant to A.R.S. § 13-413, “[n]o person in [Arizona] shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter.” An officer's use ...

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