United States District Court, D. Arizona
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE
before the Court are multiple Motions to Dismiss against both
groups of Plaintiffs in this consolidated case. As to
Plaintiffs Laney Sweet, E.S., N.S., and the Estate of Daniel
Shaver (“the Sweet Plaintiffs”), Defendants
Philip and Corrine Brailsford (Doc. 82), Defendants City of
Mesa, Bryan Cochran and Jane Doe Cochran, Christopher Doane
and Jane Doe Doane, Brian Elmore and Jane Doe Elmore, and
Richard Gomez and Jane Doe Gomez (Doc. 83), and Defendant
Charles Langley (Doc. 78) seek dismissal of some of the Sweet
Plaintiffs' claims. The same Defendants seek dismissal of
some or all of the Shaver Plaintiffs' claims. (Docs. 77,
81, 84). For the following reasons, the Court grants the
motions in part and denies the motions in part.
January 18, 2016, Daniel Shaver, a resident of Texas, was
visiting Arizona and staying at a La Quinta Inn & Suites
in Mesa. Mr. Shaver worked as a pest eradication specialist
and was in Arizona on business. Mr. Shaver's job required
him to carry pellet rifles and Mr. Shaver kept those in his
hotel room to prevent theft. In the evening, Mr. Shaver
ordered a pizza to his room and invited two other La Quinta
guests, Monique Portillo and Luis Nunez, into his room to
point, a member of the La Quinta hotel staff placed a call to
911, reporting that someone had told staff of an individual
pointing a gun out of a hotel window. After receiving the
report, Leticia Jimenez, a front desk employee, went outside
to determine which hotel room was at issue. Ms. Jimenez was
able to identify the room as Mr. Shaver's. Ms. Jimenez
went up to Mr. Shaver's room, and saw a Hispanic male
with a rifle in his hands. Because Ms. Jimenez was acquainted
with Mr. Shaver, she knew that the individual holding the
rifle was not Mr. Shaver.
p.m., multiple Mesa Police Department (“MPD”)
officers arrived at the La Quinta hotel. These officers
included the Defendants Philip Brailsford, Charles Langley,
Christopher Doane, Richard Gomez, Brian Elmore, and Bryan
Cochran. Sergeant Langley was the senior responding officer
and was in command of the other officers at the scene. At
Sergeant Langley's direction, the MPD team moved up to
Mr. Shaver's room. The MPD officers did not speak with La
Quinta employees about the situation before doing so.
officer called Mr. Shaver's room and told the inhabitants
to exit the room into the hallway. Mr. Shaver and Ms.
Portillo did so immediately (Mr. Nunez had left the room
prior to MPD's arrival). After entering the hallway,
Sergeant Langley stated “Alright, if you make another
mistake, there's a very severe possibility you're
both going to get shot.” When Mr. Shaver attempted to
speak, Sergeant Langley said “This is--shut up. I'm
not here to be tactful and diplomatic with you. You listen,
you obey.” Sergeant Langley then asked Mr. Shaver to
place his hands on the back of his head and interlace his
fingers. Mr. Shaver did so. Next, Sergeant Langley instructed
Mr. Shaver to cross his left foot over his right foot. Mr.
Shaver did so. Sergeant Langley told Mr. Shaver “If you
move, we're going to consider that a threat and we are
going to deal with it and you may not survive it.”
officers worked to take Ms. Portillo into custody. Ms.
Portillo had a purse, and was instructed by the officers to
leave the purse in the hallway as she crawled towards the
officers to be handcuffed. Sergeant Langley told Mr. Shaver
to move into a kneeling position. This change in position
caused Mr. Shaver to uncross his legs, which resulted in an
immediate reaction and instruction from Sergeant Langley that
Mr. Shaver was to keep his legs crossed. Mr. Shaver moved to
put his hands behind his head, a movement which also elicited
a response from Sergeant Langley. In response, Mr. Shaver
began crying, asking the officers not to shoot him, and
responding to the officers' requests with “yes
sir.” Sergeant Langley told Mr. Shaver to begin
crawling towards the officers, which required Mr. Shaver to
crawl over Ms. Portillo's purse. While doing so, Mr.
Shaver's athletic shorts began falling down. Mr. Shaver
reached backwards towards his pants. At the sight of Mr.
Shaver's movement, Officer Brailsford fired five shots
from his AR-15. Mr. Shaver died as a result of the shooting.
After the shooting, Officer Brailsford was fired from the MPD
force and Sergeant Langley took an early retirement from the
MPD. Officers Cochran, Doane, Elmore, and Gomez remain
employed by MPD.
Shaver's wife, Laney Sweet, filed an action on behalf of
herself, her minor children (E.S. and N.S.), and Mr.
Shaver's estate. Mr. Shaver's parents, Grady and
Norma Shaver, filed an action on behalf of themselves. Both
sets of plaintiffs sued the City of Mesa and the individual
officers at the scene of Mr. Shaver's death. The various
defendants now move to dismiss portions of both the Sweet and
the Shaver complaints.
Rule 12(b)(6) motion tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). “In deciding such a motion, all
material allegations of the complaint are accepted as true,
as well as all reasonable inferences to be drawn from
them.” Id. However, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
survive dismissal for failure to state a claim pursuant to
Rule 12(b)(6), a complaint must contain more than
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action”; it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
plaintiff must allege sufficient facts to state a claim to
relief that is plausible on its face. Iqbal, 556
U.S. at 678. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
The Sweet Complaint
Count One: Wrongful Death by Laney Sweet, E.S., and
Sweet Plaintiffs bring a claim for wrongful death against all
Defendants, pursuant to A.R.S. § 12-611. Defendant
Langley moves to dismiss claims for punitive damages arising
out of the state claims as barred by A.R.S. § 14-3110.
Because punitive damages arising under state law claims are
not recoverable against public employees acting within the
scope of their public responsibilities, and the Complaint
pleads that they were so acting, the Court dismisses punitive
damages on the state law claims against Defendant Langley.
The Court similarly dismisses punitive damages against
Defendants Brailsford, Cochran, Doane, Elmore, and Gomez on
the state law claims. At the time of the incident, they were
also public employees acting within the scope of the public
Count Three: § 1983 Claim by the Estate of Daniel Shaver
for Violations of the Fourth and Fourteenth
Sweet Plaintiffs, on behalf of the Estate of Daniel Shaver,
allege violations of the fourth and fourteenth amendments
including violations of the rights to be free from: (1)
unreasonable seizures; (2) excessive force; (3) deprivation
of life, liberty, or property without due process of law; (4)
summary punishment; and (5) arbitrary governmental activity.
(Doc. 53, ¶ 213). This count is brought against
“all Mesa defendants.” Id. at p. 10.
Although not specified in Count Three itself, the Sweet
Plaintiffs sued all of officers in both their individual and
official capacity. Id. at ¶ 2.
Brailsford and Langley argue that a § 1983 suit against
the officers in their official capacity is duplicative of the
suit against the City of Mesa. This is the same argument
advanced by the Defendants in response to Count Two of the
Shaver Complaint. The Sweet Plaintiffs respond that the
Complaint does not seek to bring duplicative
claims. Section 1983 provides that “[e]very
person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects or
caused to be subjected, any citizen of the United States . .
. to the deprivation of any rights privileges or immunities
secured by the Constitution and laws, shall be liable to the
party injured.” Local municipalities and government
units are considered a “person” under §
1983. Monell v. Dept. of Soc. Services of City of New
York, 436 U.S. 658, 690-93 (1978) (holding that
“it is when execution of a government's policy or
custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity
is responsible under § 1983”). Suits against
government officials in their official capacity
“generally represent only another way of pleading an
action against an entity of which an officer is an
agent.” Id. at 690, n. 55. An official
capacity suit, therefore, is “to be treated as a suit
against the entity. . . . for the real party in interest is
the entity.” Kentucky v. Graham, 473 U.S. 159,
166 (1985). Thus, “if individuals are being sued in
their official capacity as municipal officials and
the municipal entity itself is also being sued, then the
claims against the individuals are duplicative and should be
dismissed.” Vance v. County of Santa Clara,
928 F.Supp. 993, 996 (N.D. Cal. 1996). Based on the Sweet
Plaintiffs' representations, the Court understands the
Sweet Plaintiffs to be bringing a § 1983 claim against
the City of Mesa for any violations its employees took in
their official capacity and a § 1983 claim against the
officers in their individual capacity. Thus, Plaintiffs'
claims against the Defendants in their individual capacities
are not dismissed, but claims against the individual officers
in their official capacity are dismissed.
all Defendants argue that claims under the Fourth and the
Fourteenth Amendments are duplicative. The Supreme Court
has held that “all claims that law enforcement
officers have used excessive force . . . in the course of an
arrest, investigatory stop, or other ‘seizure' of a
free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness' standard, rather than
under a ‘substantive due process' approach.”
Graham v. Connor, 490 U.S. 386, 395 (1989). This is
because “the Fourth Amendment provides an explicit
textual source of constitutional protection against this sort
of physically intrusive governmental conduct” and is
therefore better than “the more generalized notion of
‘substantive due process'” to evaluate
claims. Id. Plaintiffs may still maintain separate
Fourth and Fourteenth Amendment claims, but if the Fourteenth
Amendment claim is identical to the Fourth Amendment claim,
the Court will dismiss the Fourteenth Amendment claim.
See, e.g., Mays v. Gillespie, No.
15-CV-01333-RFB-NJK, Doc., *2 (D. Nev. July 22, 2016);
Johnson v. City of Berkeley, No. 15-CV-05343-JSC,
Doc., *7 (N.D. Cal. Mar. 11, 2016); Stein v. City of
Piedmont, No. 16-CV-01172-JCS, Doc., *4-5 (N.D. Cal.
Aug. 15, 2016). At this early stage in the litigation, the
Court will not dismiss the Fourteenth Amendment claims.
Defendant Langley, for example, appears to argue that some of
the encounter with Mr. Shaver occurred before Mr. Shaver was
officially seized. Factual development is required to before
determining when the seizure of Mr. Shaver began. The Sweet
Plaintiffs' Complaint also alleges that Defendants failed
to properly investigate the scene prior to moving up to Mr.
Shaver's hotel room. If there is pre-seizure conduct by
the Defendants, that conduct would be analyzed under a
Fourteenth Amendment lens.
Defendant Langley asserts an entitlement to qualified
immunity. Qualified immunity “balances two important
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). It is “an
immunity from suit rather than a mere defense to
liability” and “is effectively lost if a case is
erroneously permitted to go to trial.” Mitchell v.
Forsyth, 472 U.S. 51, 526 (1985). Courts must answer two
questions in the affirmative to determine that the officer is
entitled to qualified immunity: (1) whether the officer
violated a constitutional right; and (2) whether that right
was clearly established at the time of the officer's
alleged misconduct. See Saucier v. Katz, 533 U.S.
194, 201 (2001). The Sweet Plaintiffs assert an integral
participation theory. (Doc. 100, p. 12); (Doc. 101, p. 11).
An integral participation claim “does not require that
each officer's actions themselves rise to the level of a
constitutional violation.” Boyd v. Benton, 374
F.3d 773, 780 (9th Cir. 2004). The integral participation
theory allows a plaintiff to “extend[ ] liability to
those actors who were integral participants in the
constitutional violation, even if they did not directly
engage in the unconstitutional conduct themselves.”
Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir.
2009). For example, an officer who “stands at the door,
armed with his gun, while other officers conduct the
[unconstitutional] search” is an integral participant
in the constitutional deprivation. Boyd, 374 F.3d at
780. But, “an officer who waits in the front yard
interviewing a witness and does not participate in the
unconstitutional search” is not an integral
participant. Hopkins, 573 F.3d at 770. Accepting the
Sweet Plaintiffs' factual pleadings as true, Defendant
Langley in his supervision of the scene, and by his treatment
of and instructions to Mr. Shaver may have created an
environment that heightened the likelihood, if it did not
directly result in, Defendant Brailsford shooting Mr. Shaver.
Under such a theory, Defendant Langley was an integral
participant in setting in motion the events that led to Mr.
Shaver's death. Moreover, the constitutional violation at
issue is Defendant Brailsford's excessive force and
unlawful seizure of Mr. Shaver by lethally shooting him. On
the Sweet Plaintiffs' facts, it is clearly established
that an officer may not shoot a citizen who is unarmed and
complying with officers' instructions. See Tennessee
v. Garner, 471 U.S. 1, 11 (1985) (“A police
officer may not seize an unarmed, nondangerous suspect by
shooting him dead.”). Given the early-stage posture of
this case, the Court denies Defendant Langley's motion to
dismiss on qualified immunity grounds.
Langley asserts that punitive damages are not appropriate.
Punitive damages are allowed under § 1983 “when a
defendant's conduct was driven by evil motive or intent,
or when it involved a reckless or callous indifference to the
constitutional rights of others.” Dang v.
Cross, 422 F.3d 800, 807 (9th Cir. 2005) (quoting
Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir.
1993)). Plaintiffs have pled and a jury could find that