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Mena v. Massie

United States District Court, D. Arizona

January 7, 2019

Basilea Mena, Plaintiff,
v.
Robert Massie, Defendant.

          ORDER

          HONORABLE DAVID C. BURY UNITED STATES DISTRICT JUDGE.

         For the reasons explained below, the Court grants in part and denies in part the Defendants' Motion for Summary Judgment.

         The Court grants summary judgment to the extent the Plaintiff alleges an illegal seizure or false arrest. The Court denies summary judgment on Plaintiff's claim of excessive use of force.

         Neither party seeks oral argument on the motion. The parties submitted memoranda thoroughly discussing the law and evidence in support of their positions, and oral argument will not aid the court's decision-making process which is entirely based on questions of law. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (explaining that if the parties provided the district court with complete memoranda of the law and evidence in support of their positions, ordinarily oral argument would not be required). The Court rules without hearing arguments.

         Plaintiff alleges that Defendants violated the Fourth Amendment which prohibits unreasonable searches and seizures when she refused to produce her identification. Defendants arrested her for violating A.R.S. § 13-2412(A) which provides:

It is unlawful for a person, after being advised that the person's refusal to answer is unlawful, to fail or refuse to state the person's true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime. A person detained under this section shall state the person's true full name but shall not be compelled to answer any other inquiry of a peace officer.

         Failure to comply with this statute is a class two misdemeanor and probable cause for arrest. A.R.S. § 13-2412(B). See also State v. Fittz, 2018 WL 3730953, at *2 (Ariz.Ct.App. July 26, 2018).

         The Court turns to the Defendants' assertion of qualified immunity, which protects police officers from individual liability under 42 U.S.C. § 1983 for an abuse of discretion violating civil rights unless the legal right was “clearly established” at the time, and a reasonable person in the same position would have known that what he did violated that right. Behrens v. Pelletier, 516 U.S. 299, 304 (1996); Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996); Trevino v. Gates, 99 F.3d 911, 916 (9th Cir. 1996); Act Up/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). Qualified immunity is designed to protect an officer who, reasonably, but mistakenly, acts in violation of some constitutional right. Saucier v. Katz, 533 U.S. 194, 205 (2001). The doctrine bars the suit; it is not a defense to liability. Act Up/Portland, 988 F.2d at 872-73. Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity is a legal question, and it is addressed by the Court at the earliest possible point in the litigation. Act Up/Portland, 988 F.2d at 872-73.

         When determining whether an officer is entitled to qualified immunity, the Court considers (1) whether there has been a violation of a constitutional right, and (2) whether that right was clearly established at the time of the officer's alleged misconduct. Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). At summary judgment, an officer may be denied qualified immunity in a Section 1983 action “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood [his] conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

         If the question of whether there has been a constitutional violation involves disputed facts which, when viewed most favorably to the Plaintiff, could support a rational jury finding in her favor, this Court must move to the second question: whether the right at issue was clearly established such that a reasonable officer would have understood his actions were unlawful. Then, the law does not “require a case directly on point, but existing precedent must have placed the ... constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 740 (2011). There must be precedent involving similar facts to provide an officer notice that a specific use of force is unlawful. Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (per curium).

         The Court turns to the facts of the case as alleged by the Plaintiff. She submits that she and her boyfriend had left a bar where they had played pool and drank two small pitchers of beer. It was around midnight and they were walking along Speedway. They were “speaking in raised voices, ” i.e., arguing about whether she was cheating on him. They crossed the street at the Swan intersection and at the median, her boyfriend stopped on the center median. It is undisputed that police officers, Defendants Pettey and Massie, heard them from where the officers were parked in a Chase Bank parking lot on Swan and Speedway. Defendants Pettey and Massie drove, with their emergency lights on, to the intersection to investigate what was going on. According to the Plaintiff, her boyfriend was crying, and he told police that she was cheating on him. According to the Plaintiff, the Defendants asked her for her identification and DID NOT ask her for her name. (Ps' SOF (Doc. 31) ¶¶2, 4-11, 14-23)

         According to the Plaintiff when the Defendants asked her to produce her identification, she started to open her wallet and asked, “what we did wrong, ” and they wouldn't answer her, which caused her to stop getting her identification from her wallet. (Ds' SOF, Ex. Mena Depo. at 25 (Doc. 29-2 at 11)). According to her, very quickly, 3 minutes or less, without any warning that they were going to arrest her, the male officer, Defendant Massie grabbed her and jerked her around to handcuff her. Id. at 26-27. According to the Plaintiff, as she was jerked around the handcuffs must have pinched the officer's hand[1] and he shoved her against a palm tree. Id. at 27. Her face and shoulders were severely scratched. Id. at 44-45.

         It is undisputed that she was arrested, pursuant to a citation for violating A.R.S. § 13-2412(A), which makes it a crime to refuse to give a person's true full name upon a request from a peace officer while being lawfully detained based on reasonable suspicion that a crime has been, is being, or about to be committed. She submits she was not advised that her refusal to give her full true name was unlawful. Failure to comply with this statute is probable cause for arrest.

         Based on the facts as alleged by the Plaintiff, the Court finds that Plaintiff's constitutional rights were not violated when Officer Robert Massie and Police Sergeant Pettey drove from the Chase Bank parking lot and approached her and her boyfriend because they were arguing with raised voices in the median of the street. Police may approach and ask questions without violating the Fourth Amendment, “[a]s long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). Defendants correctly assert that police officers may briefly detain an individual if there is reasonable suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1 (1968), see also United States v. Cortez, 449 U.S., at 417 (1981) (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”). Reasonable suspicion determinations must consider the “totality of the circumstances” of each case to see whether a police officer has a “particularized ...


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