Collins v. City of Tucson

          ORDER

          Honorable Raner C. Collins Senior United States District Judge.

         Pending before the Court is Defendant Barrie Pederson's Motion for Summary Judgment.^[1] (Doc. 60.) Plaintiff filed a Response (Doc. 65) and Pederson a Reply (Doc. 67). The Court finds that Pederson's actions were objectively reasonable and subject to qualified immunity. The Court will grant summary judgment.

         I. Summary Judgment Standard

         A court may grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material fact is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In addition, the dispute must be genuine; that is, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.

         If the moving party has established that there is no genuine issue of material fact, then the non-movant must come forth with evidence that there is a genuine disputed factual issue that may change the outcome of the lawsuit in the non-movant's favor. Anderson, 477 U.S. at 248, 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). This showing does not have to be unquestionable; however, the non-movant “may not rest upon the mere allegations or denials of [his] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248; Fed.R.Civ.P. 56(e).

         II. Non-movant's Factual Summary

         Most facts are undisputed. It is undisputed that Officer Pederson was dispatched to an armed robbery incident when he encountered Raymond Collins. Mr. Collins says he was walking and carrying his sweatshirt, and the Court will assume Collins' assertion. It is uncontested that Pederson shined lights from his police vehicle on Collins, who immediately started to run away carrying a gun in his waistband.^[2] Collins says he ran because he was a prohibited possessor and he knew he would be in trouble if caught. He does not challenge that he was then intercepted by Officer Matthew Merz. He doubled back to evade capture, running toward an occupied house with the gun still on him. Officer Pederson then stopped his vehicle in front of the residence and let his canine, Bolt, out of the car without warning Collins. By this time, Collins was approximately 20 - 25 yards away from Officer Pederson. He drew his weapon and followed Bolt. Bolt engaged Collins at the front door of the home, biting him and taking him to the ground facedown. When he was initially bit, Collins still had the gun in his possession, but after he had fallen to the ground he disposed of his gun at the officers' request. (Collins' Dep., Doc. 66-1 at 25, ln. 5-10; at 28, ln. 9-17.) Collins states that it was not until Officer Merz picked up the gun and walked behind him that Officer Pederson and another officer disengaged the dog from his arm. (Id. at 29, ln. 13-19; Id. at 30, ln. 15-22; Id. at 62-63.) Collins claims it took between one to one and a half minutes before the canine was removed. (Id. at 28, ln. 2-4; Id. at 79, ln. 3-4.)

         To get Bolt to let go, Officer Pederson used the flank-out maneuver. This move is performed by grabbing the canine's collar and pinching between his rear hips and stomach. Collins claims this process was difficult and took two officers to perform, but Officer Pederson claims it merely took “a second.” (Pederson's Dep., Doc. 66-1 at 117, ln. 1-8; Collins' Dep., Doc. 66-1 at 78-79.) Collins claims that he suffered scarring and skin indentations from the muscle tissue that was chewed off, and still experiences pain and tingling in his arm.

         The question, therefore, is not whether the facts are disputed, but whether the undisputed facts raise a genuine issue for trial.

         Defendant argues that the dispute is genuine because a jury may find that Pederson's actions were unreasonable. Collins claims that the Court should deny summary judgment because there is a genuine dispute whether (1) Pederson should have given Collins a warning, and (2) over a minute was a reasonable amount of time to allow the canine to restrain him. Collins contends that once he was bit, he was no longer fleeing or resisting, and a jury could find that not removing the canine after Collins disposed of the gun was unreasonable and a constitutional violation of his Fourth Amendment rights.

         “Because there are no genuine issues of material fact and “the relevant set of facts” has been determined, the reasonableness of the use of force is “a pure question of law.” Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017), cert. denied sub nom. 138 S.Ct. 1283 (2018) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). Even assuming Collins' statement of facts as true, Pederson's actions were reasonable as a matter of law.

         III. Standard for Use of Force

         Use of force is measured under the Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The Court must weigh the “nature and quality of the intrusion on the individual's Fourth Amendment interest” with the government's interests justifying the intrusion. Id. at 396. Factors for evaluating governmental interest include: (1) whether the claimant posed an immediate threat, (2) whether the claimant was actively resisting or attempting to evade law enforcement, and (3) the severity of the crime. Id. These factors are not all-encompassing, however, the court must examine all the circumstances surrounding the event. Glenn v. Wash. Cnty., 673 F.3d 864, 872 (2011). “Other relevant factors include the availability of less intrusive alternatives to the force employed [and] whether proper warnings were given.” Id. This evaluation is not in hindsight, but rather one of reasonableness of the officer's actions given the circumstances known to the officer at the time of the event. Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018); Terry v. Ohio, 392 U.S. 1, 21-22 (1968). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.

         IV. ...