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Gonzales v. Douglas

United States District Court, D. Arizona

August 30, 2016

Mark A. Gonzales, an individual, Plaintiff,
v.
Det. Cameron Douglas (Badge No. 1351), in his individual capacity as a detective with the Scottsdale Police Department, Defendant.

          ORDER

          Neil V. Wake Senior United States District Judge.

         Scottsdale Police Detective Cameron Douglas threw a flash-bang grenade near a house during the execution of a search warrant. Mark Gonzales was injured and claims Douglas used excessive force. As evidence, Gonzales offers an eyewitness account of the incident and an expert's opinions on Douglas's conduct.

         Douglas moves to exclude the eyewitness account on the ground that it was not disclosed during discovery. (Doc. 92 at 2-6; Doc. 98 at 1 n.2.) He also moves for summary judgment based on qualified immunity. (Doc. 72.) Finally, he moves to strike the expert opinions as irrelevant and unreliable. (Doc. 83.)

         For the reasons that follow, (1) the motion to exclude the eyewitness account will be denied, (2) the motion for summary judgment will be denied, and (3) the motion to strike the expert opinions will be granted.

         I. UNDISPUTED MATERIAL FACTS

         The following facts are distilled from the parties' lengthy statements of facts and accompanying exhibits. (Docs. 73, 74, 90, 99, 104, 106.) Unless otherwise indicated, these facts are undisputed. All evidence relevant to Douglas's summary judgment motion is viewed in the light most favorable to Gonzales.

         A. Events preceding execution of search warrant

         In 2013, the City of Scottsdale experienced a dramatic increase in thefts at local grocery stores. The thefts followed a pattern: one or more individuals would enter the store with reusable shopping bags, fill the bags with dozens of cans of baby formula, leave without paying, and escape in a nearby getaway car. Police started investigating.

         In October 2013, police arrested one such thief as he exited a store. The thief revealed that he was working for a man named Tyler Hanesford. According to the thief, Hanesford trained him to steal, told him which stores to hit, and paid him $125 per bag of stolen formula. The police learned that Hanesford was paying several thieves and was selling the stolen formula to another buyer. Police then arrested another thief, who corroborated this account.

         That month, police began to surveil Hanesford's house. They saw several known thieves come and go. In a nearby trash bin, they found a ripped reusable shopping bag and evidence of illegal drug use.

         On December 29, 2013, police received calls about a drive-by shooting at Hanesford's house during a party at 3:00 a.m. Hanesford was one of the callers. Officers arrived and asked Hanesford whether anyone was injured and whether he knew who fired the shots. According to the police report, Hanesford was “uncooperative” and “would not answer any questions.” (Doc. 74-19 at 50.) Police found spent shell casings in the front yard.

         On January 5, 2014, police searched Hanesford's house at midnight on suspicion of underage drinking at a party. Hanesford was not present at the time. Nineteen minors were found to have consumed alcohol, and up to fifteen other individuals fled the scene by jumping the backyard wall. Police found a handgun hidden in a vent in Hanesford's bedroom. As a convicted felon, Hanesford could not lawfully possess a gun.[1] Police also found a large knife in that room. In other rooms, police found ammunition for the gun and evidence of heroin use. In a shed in the backyard, police found one of the house residents crouched next to a handgun and several cans of baby formula. The resident was also a convicted felon who could not lawfully possess a gun. Police arrested the resident and seized the guns, ammunition, and knife.

         On January 7, 2014, police followed a white car from Hanesford's house to a local grocery store. Hanesford was not in the car. The occupants of the car entered the store, stole $1000 of formula, and drove away. Police followed the car to two more grocery stores and observed similar thefts. Police then followed the car back to Hanesford's house and saw it drive into the backyard through a gate on the east side of the property.

         That evening, police set up surveillance in an unmarked van near the house. At around midnight, Hanesford came out of the house and began banging on the driver's side window, yelling “Who the f--- are you? Why are you parked here?” (Doc. 74-10 at 13.) He tried to look inside the van with his cell phone flashlight. Then he got into a black car, drove up to the van, and turned on his high beam headlights. He returned to the van and resumed banging on the window, yelling “I knew it! Undercover cop! Get the f--- out of here!” (Id.) He then returned to his car, and the police drove away.

         On January 9, 2014, police again followed the white car from Hanesford's house to three different grocery stores. As before, the occupants stole thousands of dollars of formula and drove the loaded car to Hanesford's backyard through the east gate.

         On January 16, 2014, police again followed the white car from Hanesford's house to three different grocery stores and watched the occupants steal formula. This time, police arrested the thieves as they exited the third store. The thieves confirmed that Hanesford taught them how to steal formula, was paying them for it, and was selling it to another buyer.

         That day, the police obtained a warrant to search Hanesford's house. (Doc. 74-16 at 2-16.) The warrant authorized police to seize evidence of illegal drug use, evidence of baby-formula stealing, and firearms or other deadly weapons. The search was to occur “in the daytime, ” meaning before 10:00 p.m. (Id. at 5.)

         Later that day, Scottsdale Police Detective Nicholas Alamshaw designed an “operations plan” for the warrant's execution. (Doc. 74-19 at 2-19; Doc. 73-16 at 2-9.) In designing the plan, Alamshaw kept in mind circumstantial factors relevant to officer safety. Alamshaw knew about the recent drive-by shooting at Hanesford's house. (Doc. 73-16 at 5.) He knew about the recent search of Hanesford's house during an underage drinking party, where several people fled the scene and where police found a handgun and large knife. (Id. at 3-4.) He knew that Hanesford recently banged on an undercover police surveillance van outside the house. (Id. at 6-7.) He also had information that Hanesford owned a pit bull and had previously been arrested for assault, burglary, and drug charges. (Id. at 7-8.) However, aside from the encounter with the undercover police van, Alamshaw had no information that Hanesford or any of his associates ever acted violently toward police. (Id. at 3-9.)

         The operations plan called for three teams of officers. An eleven-member “entry” team would knock on the house's south-facing front door, announce police presence, and enter and secure the house. A seven-member “backyard” team would enter through the south-facing gate on the east side of the property, secure the backyard, and enter the house's east-facing door. An “outer perimeter” team would be stationed in the surrounding area to stop anyone fleeing the scene. Some officers would be armed with flash-bang grenades, or “flash bangs.”[2] The flash bangs were designed to detonate 1.5 to 3 seconds after being thrown. The officers had been trained to always look before throwing a flash bang. The plan authorized officers to use flash bangs at their discretion.

         That evening, at approximately 7:00 p.m., all participating officers were briefed on the circumstances of the search warrant and their respective assignments. Then the officers donned their tactical gear, loaded onto armored vehicles, and drove to Hanesford's house.

         B. Execution of search warrant

         At approximately 8:00 p.m., the entry team and backyard team approached Hanesford's house from the south in armored vehicles. The vehicles used loud diesel engines. As the teams exited the vehicles and walked northward, someone inside the house peeked out a window and then retreated. Upon seeing this, the officer leading the entry team yelled “Compromise!” to alert the teams they had been spotted.

         At the compromise alert, both teams sprang into action. The entry team breached the house's front door and arrested the occupants. There is conflicting evidence as to the entry team's conduct (compare Doc. 73, ¶¶ 91-95 with Doc. 90 at 33-35), but that conduct is not at issue here.

         There is also conflicting evidence as to the backyard team's actions. Everyone agrees that (1) Scottsdale Police Sergeant Nathan Mullins threw a flash bang, (2) Douglas threw a second one, (3) one of the flash bangs injured Gonzales, and (4) despite his injury, Gonzales jumped the backyard wall and fled. (Doc. 73, ¶¶ 107-09, 120-21, 134; Doc. 90 at 40, 45-48, 55.) But as to details, witnesses offer inconsistent accounts.

         Mullins testifies as follows. (Doc. 73-22 at 2-3; Doc. 73-23 at 2-23.) Upon hearing the compromise alert, Mullins feared that residents of the house might ambush the officers or flee through the house's east side door. Accordingly, he walked up to the east gate and peered through the slats. He saw the east side door was open and light was shining out. He also saw a car parked about ten feet north of the gate, facing northward, near the door. Due to the light from the house, Mullins could see that there was no one between him and the car. He threw a flash bang over the gate toward the passenger's side rear corner of the car, to distract the residents and dissuade anyone from leaving the house. As soon as he threw the flash bang, another officer began opening the gate, preventing Mullins from seeing where his flash bang detonated. Sometime after the gate was opened, Douglas threw a flash bang. Mullins did not see where that flash bang landed or whether anyone was standing in its path. After both flash bangs detonated, the team secured the backyard. Mullins never saw anyone in the backyard.

         Douglas's testimony is less detailed but generally consistent with Mullins's. (Doc. 73-12 at 2; Doc. 73-13 at 2-31.) Douglas says that sometime after the gate was opened, he threw a flash bang north of the backyard team's position. The reason he threw the flash bang was to distract residents and reduce the risk of ambush. Douglas does not remember details, such as how far he threw the flash bang, when he threw it, where he was when he threw it, or what the lighting conditions were. However, he is confident that he had a clear view of the backyard and did not see anyone there at any time.

         Gonzales's testimony suggests that he was injured by the first flash bang. (Doc.74-13 at 39-60.) Before police arrived, Gonzales was in Hanesford's house playing video games and smoking marijuana. Suddenly Gonzales heard a loud screech of tires outside. Having been at Hanesford's house during the recent drive-by shooting, Gonzales's first thought was to run for his life:

I honestly thought I was going to die. I thought they were going to make good on their promise and come back and kill us. I mean, they had already shot the house so I had no reason to think otherwise. So my first thought was to leave, to get out of there and get to safety.

(Id. at 49.) Accordingly, Gonzales ran to the east side door and opened it. His memory of what happened next is fuzzy, but he says that after he stepped outside he saw something ...


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