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Liberti v. City of Scottsdale

United States District Court, D. Arizona

September 10, 2018

Jeanine Liberti, et al., Plaintiffs,
City of Scottsdale, et al., Defendants.


          Douglas L. Rayes United States District Judge.

         Plaintiffs are Jeanine and Michael Liberti, individually and as successors in interest to their deceased son, Matthew Liberti (“Liberti”). Defendants are the City of Scottsdale (“Scottsdale”), Scottsdale Police Officers Wilmer Fernandez-Kafati and Marjorie Bailey (“the Officers”), and Scottsdale Police Chief Alan Rodbell. At issue is Defendants' Motion for Summary Judgment. (Doc. 30.) The motion is fully briefed and the Court heard oral argument on July 19, 2018. For the following reasons, Defendants' motion is granted.


         This case arises out of a fatal police-involved shooting. On July 27, 2017, Liberti reached over the counter at a Chompie's restaurant in Scottsdale, dialed 911, and hung up after being confronted by the manager. (Doc. 31 ¶¶ 23-26, 30-38, 41.) When Scottsdale Police Dispatch called back, the manager described Liberti and explained that the caller had left the store without incident. (¶¶ 34-36.) Dispatch sent the Officers to perform a well-check shortly after 5:00 PM. (¶¶ 41, 56.)

         When Fernandez-Kafati arrived at the scene, a shopper waved him down to point out Liberti and say he was “acting erratic . . . he looks weird; I don't know what's wrong with him.” (¶ 47.) The Officers approached Liberti, who was pacing outside the entrance of a Sprouts Farmers Market near Chompie's. (¶ 46.) When asked if he needed help, Liberti admitted to feeling “weird.” (¶¶ 66-67.) As captured by Bailey's On Body Camera (“OBC”), Liberti was pacing, fidgeting, ignoring questions and commands, and intermittently swaying closer to the Officers. (¶¶ 49-55, 58-61, 67-68, 72-93.) Liberti's pacing and swaying grew increasingly close to Bailey, who eventually insisted Liberti sit. (¶¶ 90-92.) By the time Bailey insisted, Liberti had ignored or refused twenty-two police commands to sit down. (¶¶ 92-93.) When Liberti ignored Bailey's command, Bailey grabbed Liberti's arm to force him to the ground. (¶ 92.) Liberti jerked away, briefly grappled with the Officers, and fled toward the nearby Courtyard Shoppes (“the Shoppes”). (¶¶ 92-104.)

         The Officers pursued Liberti to the Shoppes. (¶¶ 104-07.) Although both parties agree that the Officers drew their firearms and Liberti drew his knife upon arriving at the Shoppes, they disagree on the order. Defendants contend that Liberti drew his knife and the Officers drew their firearms in response. (¶¶ 109-11.) Plaintiffs argue that the Officers drew their firearms while Liberti was empty-handed, but concede Liberti eventually drew his knife, rendering the disagreement immaterial. (Doc. 43 ¶¶ 110-11.) The Officers demanded Liberti “get down” and drop the knife. (Doc. 31 ¶ 113.) Liberti yelled “Please! Shoot me in the head!” (¶ 114.) Bailey holstered her firearm and drew her TASER. (¶ 118.) Liberti then began moving past the Shoppes downstairs to a covered parking lot with the Officers in pursuit. (¶¶ 121-24.)

         The Officers found Liberti downstairs still holding his knife. (¶ 125.) After again commanding Liberti to sit and drop his knife, Bailey warned “Get down now or I'm going to tase you!” (¶ 129.) Liberti refused, saying “Don't tase me, shoot me!” (¶ 130.) Bailey tased Liberti. (¶ 137.) Liberti collapsed, but soon recovered. (¶¶ 138-40.) Liberti slashed his neck with his knife several times and asked the Officers to shoot him. (¶ 141.) Moments later, Liberti stood up. (¶ 149.)

         Liberti then ran in Fernandez-Kafati's direction with the knife in his hand. (¶ 149.) Fernandez-Kafati retreated backward while continuing to aim his firearm at Liberti. (¶ 154.) Liberti advanced several feet before Fernandez-Kafati fired twice, striking Liberti. (¶ 160.) Fewer than two seconds elapsed between Liberti standing and Fernandez-Kafati firing. (¶ 162.)

         Liberti was pronounced dead at the scene, having suffered gunshot wounds to his abdomen and right leg, as well as seven self-inflicted neck wounds. (¶¶ 183-190.) The medical examiner confirmed that, at the time of his death, Liberti tested positive for “high level[s] of methamphetamine/amphetamine in cardiac blood and liver.” (¶ 180.)

         Plaintiffs brought this action in November 2017, alleging state law and constitutional torts, and claims under Title II of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973. Defendants move for summary judgment on all counts.


         Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment “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, 477 U.S. At 323. The burden then shifts to the non-movant to establish the existence of material factual issues that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. Summary judgment, however, cannot be denied based solely on “[s]urmise, conjecture, theory, speculation and an advocate's suppositions.” McSherry v. City of Long Beach, 584 F.3d 1129, 1136 (9th Cir. 2009). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).


         I. Section 1983 Claims Against the Officers (Count III)

         Plaintiffs bring two claims under 42 U.S.C. § 1983. First, they allege that the Officers violated Liberti's Fourth Amendment rights by unconstitutionally seizing him and using excessive force during the seizure. Second, they allege that the Officers violated Liberti's and Plaintiff's Fourteenth Amendment right to due process by “interfering in their familial relationship by causing Liberti's untimely death.” (Doc. 28 ¶ 103.) Defendants argue that summary judgment is warranted because ...

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