United States District Court, D. Arizona
Honorable Raner C. Collins Senior United States District
before the Court is Defendant Barrie Pederson's Motion
for Summary Judgment. (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
Summary Judgment Standard
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.
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).
Non-movant's Factual Summary
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. 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.)
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.
question, therefore, is not whether the facts are disputed,
but whether the undisputed facts raise a genuine issue for
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.
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.
Standard for Use of Force
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.