United States District Court, D. Arizona
Russel Holland United States District Judge.
for Summary Judgment
move for summary judgment. This motion is opposed,  and plaintiff
cross-moves for summary judgment against defendant
Plaintiff's cross-motion is opposed.Oral argument was
not requested and is not deemed necessary.
is Virginia Archer. Defendants are Officer C. Orr #19441,
Officer D. Grimm #18904, and the City of Mesa.
February 14, 2018, Officers Orr and Grimm, as well as other
Mesa police officers, were dispatched to plaintiff's
residence after receiving a 911 call from plaintiff's
daughter, Sue Ellen Johnson. Johnson requested that police
check on her son, Andrew Hahn, who lived with Archer, because
he had sent a text message saying goodbye and he had a gun.
Johnson advised that plaintiff was inside the residence and
that she was elderly and very sick. Although the officers
were not told this specific information, plaintiff was 84
years old and had just recently had a stroke.
police arrived, Hahn was sitting in a car which was parked in
the driveway. Police set up a parameter around the residence.
Officers had weapons drawn because of the report that Hahn
had a gun, and the officers were using Officer Orr's
police car as cover. An officer began communicating with Hahn
over the loudspeaker. Hahn was advised that the police were
there to help him and he was asked to come out to talk to
them. Hahn however got out of the car and went into the house
and police lost sight of him. After Hahn went into the house,
the officer continued to communicate with him over the
loudspeaker, asking him to come out to talk to them.
point thereafter, plaintiff appeared at the front door of the
house. The officers asked plaintiff to come out and talk to
them. Plaintiff started down the front sidewalk and then
stopped. Plaintiff was asked repeatedly to walk toward the
officers and advised that she was making it difficult for
them to do their job. She was told that the officers just
wanted to talk to her and that she was not in any trouble.
Plaintiff asked that the officers come to her and she told
them that Hahn did not have a gun. Plaintiff wanted the
officers to come inside the house and see that there was no
eventually walked to where the officers were staged, but they
wanted to get her further back because the officers did not
know where Hahn was. Plaintiff had stopped in the middle of
the officers, including one officer who had his rifle out.
Officer Grimm asked plaintiff “Can you come back here,
and I'll talk to you, ” explaining that it was for
plaintiff's safety as well as the officers'
safety. Officer Grimm asked plaintiff again,
“Can you keep coming back here?” Plaintiff then
turned around to face the house and appeared to be heading
back toward the house. At this point, the officer on the
loudspeaker told Officers Grimm and Orr to “Take her
back, take her back, take her back.” Officer Grimm
grabbed plaintiff's right arm to pull her away from the
other officers, telling her “I need you to come back
here. You're not listening. Okay?” Plaintiff asked
Officer Grimm, “What are you doing?” and pulled
her arm away from Officer Grimm. Officer Orr then grabbed
plaintiff's left arm, asking her to “Come on this
way, ma'am.” Plaintiff pulled away from Officer
Orr, who then grabbed plaintiff's arm more securely and
put his other hand on her back. Plaintiff asked Officer Orr
“What are you doing?” while turning slightly
away from Officer Orr. Officer Orr thought plaintiff was
trying to pull away from him and he put her in a control hold
and took her to the ground. In his incident report, Officer
Orr wrote that he “used a control hold to force
[plaintiff] down to [the] ground in order to gain physical
control of her since she was placing herself and those around
her in danger due to having to divide [their] attention . . .
between her and the threat to the front.”
Grimm and Orr then handcuffed plaintiff, lifted her up, and
escorted her away from the staging area. Officer Grimm told
plaintiff that she was being “detained because you are
not following directions.” Officers Grimm and Orr
offered to let plaintiff sit in the back seat of a patrol car
because it was raining, but plaintiff said she could not get
up into the vehicle. Plaintiff requested that the handcuffs
be removed because they were hurting her but was told that
they could not be removed.
were called after Officer Orr noticed a bump on
plaintiff's head. When the medics arrived, plaintiff, who
was still handcuffed, was walked back to them for evaluation.
Plaintiff's handcuffs were finally removed after the
medics requested that they be removed. Plaintiff remained
handcuffed for approximately 20 minutes. Plaintiff was
transported to the hospital where she was diagnosed with a
“minor head injury” consisting of swelling and
bruising around her right eye and abrasions on her left
forearm and right wrist.
she was at the hospital, Officer Orr gave plaintiff a
citation for obstructing governmental operations. This charge
was subsequently dismissed by the City.
investigation into the incident was conducted after plaintiff
complained to the Mesa Police Department. Officer Orr was
found to have violated the Mesa Police Department's Code
of Conduct Policy as it pertains to unnecessary force and was
suspended for ten hours and required to do ten hours of
additional training. Officer Grimm was found to have acted
August 2, 2018, plaintiff commenced this action. In her
amended complaint, plaintiff asserts § 1983 false arrest
claims against Officers Grimm and Orr, a § 1983
excessive force claim against Officer Orr, a § 1986
failure to intervene claim against Officer Grimm,
a § 1986 malicious prosecution claim
against Officer Orr,  and a § 1983 claim against the
City. Plaintiff seeks compensatory damages and punitive
now move for summary judgment on all of plaintiff's
claims. Plaintiff cross-moves for summary judgment on her
claims against Officer Orr.
judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on
the moving party to show that there is an absence of genuine
issues of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If the moving party meets its
initial burden, then the non-moving party must set forth
specific facts showing that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). In deciding a motion for summary
judgment, the court views the evidence of the non-movant in
the light most favorable to that party, and all justifiable
inferences are also to be drawn in its favor. Id. at
255. “[T]he court's ultimate inquiry is to
determine whether the ‘specific facts' set forth by
the nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury
might return a verdict in its favor based on that
evidence.” T.W. Elec. Service, Inc. v. Pacific
Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). “[W]hen[, ]” as here, “parties
submit cross-motions for summary judgment, [e]ach motion must
be considered on its own merits.” Fair Housing
Council of Riverside County, Inc. v. Riverside Two, 249
F.3d 1132, 1136 (9th Cir. 2001) (citation omitted).
force claim against Officer Orr
use of excessive force by a law enforcement officer may
constitute a violation of the Fourth Amendment's
prohibition against unreasonable seizures of the
person.” Lowry v. City of San Diego, 858 F.3d
1248, 1254 (9th Cir. 2017). “The elements of a claim of
excessive force in violation of the Fourth Amendment are that
the defendant used excessive force during a lawful stop or
arrest.” Vardanyan v. Port of Seattle, No.
C11-1224-RMS, 2012 WL 1821212, at *5 (W.D. Wash. May 17,
2012) (citing Graham v. Connor, 490 U.S. 386, 396
(1989)). “Force is excessive when it is greater than is
reasonable under the circumstances.” Santos v.
Gates, 287 F.3d 846, 854 (9th Cir. 2002).
Orr contends that he is entitled to qualified immunity on
plaintiff's excessive force claim. “Qualified
immunity shields government officials from civil liability
unless a plaintiff establishes that: (1) the official
violated a constitutional right; and (2) that right was
‘clearly established' at the time of the challenged
conduct[.]” Morales v. Fry, 873 F.3d 817, 821
(9th Cir. 2017). The court “may address these two
prongs in either order.” Thompson v. Rahr, 885
F.3d 582, 586 (9th Cir. 2018).
determine whether Officer Orr violated the Fourth Amendment,
the court must consider whether his “actions are
objectively reasonable in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.” A. K. H by and
through Landeros v. City of Tustin, 837 F.3d 1005, 1010
(9th Cir. 2016) (quoting Graham, 490 U.S. at 397).
“To determine the reasonableness of an officer's
actions, ” the court “‘balance[s] the
nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the
intrusion.'” Id. at 1010-11 (quoting
Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
“The need for such balancing means that ‘summary
judgment . . . in excessive force cases should be granted
sparingly.'” Boyd v. Benton County, 374
F.3d 773, 779 (9th Cir. 2004) (quoting Santos, 287
F.3d at 853). The court “evaluate[s] the totality of
the circumstances, paying careful attention to factors such
as the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether [s]he is actively resisting arrest or
attempting to evade arrest by flight.”
Landeros, 837 F.3d at 1011 (internal citations
omitted). “The ‘most important' of these
factors is ‘whether the suspect posed an immediate
threat to the safety of the officers or others.'”
Id. (quoting Mattos v. Agarano, 661 F.3d
443, 441 (9th Cir. 2011)).
the evidence in the light most favorable to plaintiff, a
reasonable fact finder could conclude that Officer Orr used
excessive force. But, even if Officer Orr used excessive
force, he is entitled to qualified immunity because he did
not violate a clearly established right.
doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'” Estate of Lopez by and through Lopez
v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
“‘Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments
about open legal questions. When properly applied, it
protects all but the plainly incompetent or those who
knowingly violate the law.'” Id. (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
“For a right to be ‘clearly established,'
existing “precedent must have placed the statutory or
constitutional question beyond debate,' such
that ‘every' reasonable official, not just
‘a' reasonable official, would have understood that
he was violating a clearly established right.”
Thompson, 885 F.3d at 587 (quoting al-Kidd,
563 U.S. at 741). “‘[I]t is not necessary that
the alleged acts have been previously held unconstitutional,
as long as the unlawfulness [of defendants' actions] was
apparent in light of preexisting law.'” Sorrels
v. McKee, 290 F.3d 965, 970 (9th Cir. 2002) (quoting
Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995)).
However, “absent any published opinions on point or
overwhelming obviousness of illegality, ” a court will
rarely conclude that a right was clearly established.
Id. The Ninth Circuit has held “that the
‘clearly established' inquiry is a question of law
that only a judge can decide.” Morales, 873
F.3d at 821.
argues that Officer Orr's use of force clearly violated
established law, citing to Palmer v. Sanderson, 9
F.3d 1433 (9th Cir. 1993). There, Palmer was stopped by
Officer Sanderson “on suspicion of driving while
intoxicated. Palmer was then 67 years old and had recently
suffered a stroke which had impaired his mobility.”
Id. at 1434. Sanderson requested that Palmer get out
of his car and Sanderson performed two field sobriety tests,
which did not confirm that Palmer was intoxicated.
Id. Palmer then “grew tired of standing in the
rain taking tests, so he walked back to his car, telling
Sanderson that he would sit there and answer questions.
Palmer also told Sanderson that he would accompany Sanderson
to the police station to take a breath test if Sanderson
Sanderson then allegedly jerked Palmer out of his car, pushed
him against it, frisked him, handcuffed him, and pushed him
into the back seat of the patrol car with such force that
Palmer fell over sideways. Palmer claims that the handcuffs
were tight enough to cause pain and discoloration to his
wrists, and that Sanderson refused his request to loosen
Id. at 1434-35. After noting that “the Fourth
Amendment right to be free from the use of excessive force
during an arrest was clearly established at the time of
Palmer's arrest in November 1988[, ]” the court
found the force used by Sanderson was excessive. Id.
at 1436.The court explained that
Palmer claims that Sanderson fastened Palmer's handcuffs
so tightly around his wrist that they caused Palmer pain and
left bruises that lasted for several weeks. Sanderson has
presented no evidence that would justify handcuffing Palmer
so tightly that he suffered pain and bruises, or to justify
his refusal to loosen the handcuffs after Palmer complained
of the pain. Under these circumstances, no ...