United States District Court, D. Alaska
ORDER RE MOTION FOR SUMMARY JUDGMENT BY JUSTIN
MCCLURE AND JAMIE SHAVER
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 59 is Defendants Justin McClure and Jamie
Shaver's (“Defendants”) Motion for Summary
Judgment. Plaintiff Jason Martin DelPriore responded in
opposition at Docket 70. Defendants replied at Docket 72 and
filed an accompanying addendum and declaration at Docket 73
and Docket 74, respectively. Plaintiff replied at Docket 75.
Oral argument was not requested and was not necessary to the
Court's decision.
FACTS
The
events giving rise to the instant case unfolded on January
14, 2018, in the EasyPark parking garage at Fifth Avenue and
B Street in downtown Anchorage.[1] The parking garage has six
levels; the sixth level has an area referred to as “the
Rooftop, ” which is available for the public's
use.[2]
The Rooftop contains park benches, a basketball court, and an
ice rink.[3] The EasyPark garage is equipped with
security cameras in the stairwells and lobby areas; the
Rooftop has a single-angle security camera.[4] EasyPark parking
services representatives patrol the parking area and report
any suspected criminal activity to security via
dispatch.[5] Security is provided by NANA Management
Services, Inc. (“NMS”).[6]
Around
lunchtime on January 14, 2018, Jason DelPriore entered the
EasyPark parking garage on the fourth level via a skybridge
from an adjacent mall.[7]According to Mr. DelPriore, he was smoking
on the fourth floor of the parking garage when he was
approached by “two representatives” who told him
the smoking section was on the third floor.[8] He went down to
the third floor and smoked a cigarette before heading up to
the Rooftop.[9] Mr. DelPriore reports that he was sitting
on a bench on the Rooftop when two security guards, Mr.
McClure and Mr. Shaver, “came up to [him] and told
[him], basically in a rude manner, that it - it was,
‘Beat it. It's time to
leave.'”[10] Mr. DelPriore states that prior to their
arrival, he had been “singing to God” and
worshipping but that he was sitting on the bench
“eating black licorice” when they approached
him.[11] After he was asked to leave, Mr.
DelPriore queried whether Defendants McClure and Shaver had a
warrant and informed them he was waiting on a
friend.[12] According to Mr. DelPriore, Mr. McClure
and Mr. Shaver insisted that he was trespassing on private
property, which Mr. DelPriore disputed.[13] He told
Defendants that he had not done anything wrong and challenged
them to “make [him] leave.”[14] Mr. DelPriore
contends that “then what transpired next was some
elbows and knees.”[15] He states that he pushed his arm out
to “keep them at bay for a second, ” and that
when the second security guard “got involved, [he]
stiff-armed him, ” after which he was “slammed
into, ” and “got attacked with elbows and knees .
. . [k]nees to my crotch.”[16] He explains that
“after getting hit in the groin . . . [he] believe[s]
[he] was slammed to the ground . . . [he] tried to stand back
up” but Defendants McClure and Shaver put him in
handcuffs.[17]
Mr.
DelPriore contends that in the process of handcuffing him,
the security guards “assaulted [him] with blows to the
head from elbows and knees to the groin and stomach”
and tried to “break [his] hands by bending and mashing
[his] face into the ground.”[18] He states that when he
“was in the handcuffs there's some excessiveness .
. . the rending of [his] wrist . . . was uncalled for . . .
[and] . . . caused the damage” to his
hands.[19] Mr. DelPriore maintains that he
“was never given no lawful order to leave by
anybody” and that he had “never been told to
leave.”[20] Mr. DelPriore maintains that he
“never pushed nobody . . . never contacted anybody,
besides [his] stiff-arm to keep them from closing the
distance with elbow and knees . . . didn't throw a single
punch . . . didn't throw an elbow, a knee . . .
didn't combat in any offensive
manner.”[21]
A
security camera on the Rooftop captured video (without audio)
of the incident.[22] The footage shows Mr. DelPriore sitting
on a bench on the Rooftop as Mr. McClure and Mr. Shaver
approach him.[23] When Defendants McClure and Shaver reach
him, the video shows Mr. DelPriore stand up and maintain a
respectful distance. He follows the guards in the direction
of the exit and after a few steps, they surround him on
either side. After that, the quality of the footage, along
with the lighting, make it difficult to discern what
happened, but a physical altercation ensues wherein Mr.
DelPriore is forced backwards towards the wall and ends up
face down on the ground.[24]
According
to Defendants McClure and Shaver, they responded to the Fifth
Avenue EasyPark parking garage around 12:45 p.m. on January
14, 2018, to assist with a “white male [who] had been
refusing to leave the parking garage.”[25]Upon arrival,
they met with the parking services representative who had
called security, Rod Yap.[26] Mr. Yap informed Mr. McClure
and Mr. Shaver that he had spoken with an individual and
asked him to leave, repeatedly, with no
success.[27]Mr. Yap contends that the individual was
later identified as Mr. DelPriore.[28]Dispatch then informed Mr.
McClure and Mr. Shaver that Mr. DelPriore had appeared in the
Rooftop area on the sixth level.[29] Mr. McClure and Mr.
Shaver went to the sixth level where they encountered Mr.
DelPriore.[30] They told Mr. DelPriore that he had been
asked several times to leave, and that he was now trespassing
on private property.[31] When he would not leave, they arrested
him. After Defendants McClure and Shaver had restrained Mr.
DelPriore in handcuffs, Mr. McClure asked EasyPark dispatch
to call the police, who arrived at approximately 1:20 p.m.
and took Mr. DelPriore into custody.[32] Mr. DelPriore was cited
for trespassing and disorderly conduct.[33] The charges
were later dismissed.[34]
Defendants
contest Mr. DelPriore's account of his
arrest.[35] However, for purposes of summary
judgment, the “evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.”[36] Thus, for purposes of this motion, the
Court views the disputed facts in favor of Mr. DelPriore.
On
March 9, 2018, Mr. DelPriore commenced this action pursuant
to 42 U.S.C. § 1983, alleging, inter alia, that
he “had been singing to God worshiping in [his]
personal way to worship and [Mr. McClure and Mr. Shaver] . .
. violated [his] civil rights acting maliciously by using
violence to stop [him] from worshiping [his]
God.”[37] Mr. DelPriore further alleged that he
was “assaulted and battered” when Mr. Shaver and
Mr. McClure “unlawfully detained [him] by excessive
force causing physical and emotional
damages.”[38]
On
October 22, 2018, the Court screened Mr. DelPriore's
claims and found that his allegations that Defendants McClure
and Shaver prohibited Mr. DelPriore from worshiping at
EasyPark's facility plausibly stated a claim for relief
under the First Amendment (Claim 3) and that his allegations
that Defendants McClure and Shaver used excessive force
against him plausibly stated a claim under the Fourth
Amendment (Claim 1).[39] Defendants now move for summary judgment
on both claims.[40]
LEGAL
STANDARDS
I.
Motion for Summary Judgment
Federal
Rule of Civil Procedure 56(a) directs a court to grant
summary judgment if the movant “shows that there is no
genuine dispute as to any material fact and the movant is
entitled to a judgment as a matter of law.” An issue is
“genuine” if there is a sufficient evidentiary
basis on which a reasonable fact-finder could find for the
non-moving party and a dispute is “material” if
it could affect the outcome of the suit under the governing
law.[41] When considering a motion for summary
judgment, “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.”[42]
“The
party moving for summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of fact for
trial.”[43] However, “[w]hen the nonmoving
party has the burden of proof at trial, the moving party need
only point out ‘that there is an absence of evidence to
support the nonmoving party's
case.'”[44] Once the moving party has met its
initial burden, the nonmoving party “may not rest upon
the mere allegations or denials of the adverse party's
pleading, ” but must provide evidence that
“set[s] forth specific facts showing that there is a
genuine issue for trial.”[45] Thus, although a district
court may find that a “complaint stated a claim under
§ 1983 at the preliminary stages of the litigation,
” a plaintiff cannot rest on those pleadings at summary
judgment and must “affirmatively demonstrate that there
is a genuine issue of material fact for
trial.”[46]
II.
First Amendment Retaliation Claim
The
First Amendment to the United States Constitution provides
that the government shall not “prohibit[] the free
exercise” of religion.[47] Moreover, the First Amendment:
“prohibits government officials from subjecting an
individual to retaliatory actions” for engaging in
protected speech. If an official takes adverse action against
someone based on that forbidden motive, and
“non-retaliatory grounds are in fact insufficient to
provoke the adverse consequences, ” the injured person
may generally seek relief by bringing a First Amendment
claim.[48]
To
state a First Amendment retaliation claim, a plaintiff must
allege “that (1) he was engaged in a constitutionally
protected activity, (2) the defendant's actions would
chill a person of ordinary firmness from continuing to engage
in the protected activity and (3) the protected activity was
a substantial or motivating factor in the defendant's
conduct.”[49] And “to prevail on such a claim, a
plaintiff must establish a ‘causal connection'
between the government defendant's ‘retaliatory
animus' and the plaintiff's ‘subsequent injury,
'” i.e., “it must be a ‘but-for'
cause, meaning that the adverse action against the plaintiff
would not have been taken absent the retaliatory
motive.”[50]
A.
Retaliatory Arrest Under the First Amendment
To
establish the required causal connection for a retaliatory
arrest claim under the First Amendment, a plaintiff must
generally plead and prove the absence of probable cause for
the arrest.[51] “‘[I]f that showing [of no
probable cause] is made, the defendant can prevail only by
showing that the [arrest] would have been initiated without
respect to retaliation'” for the protected First
Amendment conduct.[52] But, “[a]bsent such a showing, a
retaliatory arrest claim fails” unless the plaintiff
fits into a “narrow qualification . . . for
circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do
so.”[53] In such cases, “the
no-probable-cause requirement should not apply when a
plaintiff presents objective evidence that he was arrested
when otherwise similarly situated individuals not engaged in
the same sort of protected speech had not
been.”[54]
B.
Probable Cause
“Probable
cause exists if the arresting officers ‘had knowledge
and reasonably trustworthy information of facts and
circumstances sufficient to lead a prudent person to believe
that [the arrestee] had committed or was committing a
crime.'”[55]
To determine whether an officer had probable cause for an
arrest, we examine the events leading up to the arrest, and
then decide whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer,
amount to probable cause. Because probable cause deals with
probabilities and depends on the totality of the
circumstances, it is a fluid concept that is not readily, or
even usefully, reduced to a neat set of legal rules. It
requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity. Probable
cause is not a high bar.[56]
III.
Fourth Amendment Excessive Force Claim
“[A]ll
claims that law enforcement officers have used excessive
force- deadly or not-in the course of an arrest,
investigatory stop, or other ‘seizure' of a free
citizen should be analyzed under the Fourth Amendment and its
‘reasonableness' standard.”[57]
“In
Fourth Amendment excessive force cases, we examine whether
police officers' actions are objectively reasonable given
the totality of the circumstances.”[58]
“Whether a use of force was reasonable will depend on
the facts of the particular case, including, but not limited
to, whether the suspect posed an immediate threat to anyone,
whether the suspect resisted or attempted to evade arrest,
and the severity of the crime at issue.”[59] The Ninth
Circuit has emphasized that the most important factor is
“whether the suspect posed an immediate threat to the
safety of the officers or others.”[60]
Moreover,
“[t]he ‘reasonableness' of a particular use
of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.”[61] “Only information known to the
officer at the time the conduct occurred is
relevant.”[62] Officers “need not avail
themselves of the least intrusive means of responding to an
exigent situation; they need only act within that range of
conduct we identify as reasonable.”[63]
IV.
Qualified Immunity
The
doctrine of qualified immunity shields government actors from
civil liability under § 1983 if “their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”[64] To determine whether an individual is
entitled to qualified immunity, a court must determine
“(1) whether the officer's conduct violated a
constitutional right, and (2) whether that right was clearly
established at the time of the incident.”[65] A court may
“exercise [its] sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be
addressed first.”[66] Qualified immunity is applicable
unless both prongs of the inquiry are
satisfied.[67]
“Because
the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the
backdrop of the law at the time of the
conduct.”[68] Although there need not be “a case
directly on point for a right to be clearly established,
existing precedent must have placed the . . . constitutional
question beyond debate.”[69]
Use of excessive force is an area of the law “in which
the result depends very much on the facts of each case,
” and thus police officers are entitled to qualified
immunity unless existing precedent “squarely
governs” the specific facts at issue. Precedent
involving similar facts can help move a case beyond the
otherwise “hazy border between excessive and acceptable
force” and thereby provide an officer notice that a
specific use of force is unlawful.[70]
“[Q]ualified
immunity is a question of law, not a question of
fact.”[71] As such, it is ordinarily decided by the
court before trial.[72] However, when “historical facts
material to the qualified immunity determination are in
dispute, ” the trial court should submit the factual
dispute to a jury.[73] Once the disputed facts are determined,
then the judge decides whether qualified immunity
applies.[74]
DISCUSSION
I.
Probable Cause
Defendants
contend that Mr. McClure and Mr. Shaver had probable cause to
arrest Mr. DelPriore for trespassing.[75] They note
that under Anchorage Municipal Code (“AMC”)
08.45.010(A)(2)(d), a person commits the crime of criminal
trespass on private property if the person “[k]nowingly
enters or remains on private business or commercial property
. . . [a]fter the person has been requested to leave by
someone with the apparent authority to do
so.”[76] Relatedly, under AMC 08.45.101(A)(3)(b),
a person commits the crime of trespassing on public property
if the person “[k]nowingly enters or remains on public
premises or property . . . after the person has been
requested to leave by someone with the apparent authority to
do so.”[77]
Defendants
assert that Mr. McClure and Mr. Shaver had “probable
cause to believe that Mr. DelPriore trespassed on public
property.”[78] Specifically, Defendants contend that
Mr. Yap, a person with the “apparent authority”
to ask someone to leave, had done just that, but that Mr.
DelPriore refused to leave.[79]Mr. Yap then conveyed that
information to Mr. McClure and Mr. Shaver, who thus had
probable cause to believe that Mr. DelPriore had been asked
to leave public property by someone with the authority to do
so.[80] Defendants acknowledge that Mr.
DelPriore contests ever being asked to leave, but maintain
that “[w]hen police have probable cause to arrest one
person but reasonably mistake a second person for the first,
their arrest of the second person is nonetheless a valid
arrest.”[81]Defendants add that, after Mr. McClure
and Mr. Shaver approached Mr. DelPriore, he again refused to
leave and “engaged Mr. McClure and Mr. Shaver in a
manner they believed combative.”[82]
In his
opposition to Defendants' motion for summary judgment,
Mr. DelPriore disputes that he was trespassing. He maintains
that the park was open for public use and that he was present
during hours of operation. He contends that the defendants
have submitted no sworn statements asserting that there was
“any lawful reason to leave public
property”[83] and disputes that he was “given a
lawful order to leave.”[84] Mr. DelPriore challenges Mr.
Yap's representation that he asked dispatch to call
security, maintaining that the logs provided in discovery
“do not depict any such log of activity
reported.”[85]
In
response, Defendants acknowledge that the day shift log is
not an EasyPark record, as Mr. McClure and Mr. Shaver stated
in their declaration, but add that the “day shift log
is in fact a record from [NMS], and was disclosed as such to
Mr. DelPriore.”[86] They maintain that the day shift log
“reflects that Mr. McClure and Mr. Shaver responded to
a call” on January 14, 2018.[87]
In
assessing probable cause, the Court considers whether
Defendants McClure and Shaver “‘had knowledge and
reasonably trustworthy information of facts and circumstances
sufficient to lead a prudent person to believe that [Mr.
DelPriore] had committed or was committing a
crime.'”[88]
Mr.
Yap, Mr. McClure, and Mr. Shaver each submitted a declaration
confirming that Defendants McClure and Shaver were called to
the EasyPark garage on information that a white male was
refusing to leave the parking garage.[89]Mr. Yap
confirms that he told Mr. McClure and Mr. Shaver that he had
asked Mr. DelPriore to leave, and that Mr. DelPriore had
refused.[90] Although Mr. DelPriore contends that the
“day shift logs from Jan. 14, 2018 do not depict any
such log of activity reported, ” the day shift logs
clearly show a 12:45 p.m. request to Mr. McClure and Mr.
Shaver that states: “SECURITY REQUEST - DISPATCHED TO
POST 2, 6th FLOOR GARAGE - WMA REFUSED TO
LEAVE.”[91]
Mr.
DelPriore maintains that he was never asked to leave, but
Defendants are correct that the Supreme Court has held that
“when the police have probable cause to arrest one
party, and when they reasonably mistake a second party for
the first party, then the arrest of the second party is a
valid arrest.”[92] Thus, even accepting as true that Mr.
Yap never asked Mr. DelPriore to leave the premises, the
record before the Court establishes that Mr. McClure and Mr.
Shaver had been told that a white male on the Rooftop of the
parking garage had been asked to leave and was refusing to do
so. Upon reaching the roof, they encountered Mr. DelPriore, a
white male.[93] The Court finds that, even assuming
Defendants were mistaken as to the identity of Mr. DelPriore,
it was a reasonable mistake and Mr. McClure and Mr. Shaver
had probable cause to believe that Mr. DelPriore was
trespassing.
Moreover,
it is undisputed that Mr. McClure and Mr. Shaver asked Mr.
DelPriore to leave; as security guards for EasyPark, they too
had the “apparent authority” to ask Mr. DelPriore
to do so. Thus, once Defendants asked Mr. DelPriore to leave
and he refused to do so, Defendants had probable cause to
arrest him for trespassing. The Court finds that no
reasonable jury could conclude otherwise.
2.
Retaliatory Arrest Under the First Amendment
Defendants
contend that Mr. DelPriore's claim of retaliatory arrest
under the First Amendment fails as a matter of law because
Mr. McClure and Mr. Shaver had probable cause to arrest Mr.
DelPriore for trespassing.[94] Moreover, Defendants contend
that Mr. DelPriore did not engage in First Amendment
protected activity, [95]and did not show that Defendants'
conduct would have chilled a person of ordinary firmness from
continuing to engage in the protected activity, or that
Defendants intended to suppress Mr. DelPriore's religious
activity.[96] In opposition, Mr. DelPriore maintains
that he had “notified these defendants and warned of
Gods [sic] judgment for what was to
follow.”[97]
The
Supreme Court has held that a plaintiff must show the absence
of probable cause to maintain a retaliatory arrest claim
under the First Amendment and that “[a]bsent such a
showing, a retaliatory arrest claim fails, ” unless
plaintiff fits into a “narrow qualification . . . for
circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do
so.”[98] A plaintiff falls within the exception
to the no-probable-cause requirement for a retaliatory arrest
claim under the First Amendment where he “presents
objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort
of protected speech had not been.”[99]
As
discussed supra, the Courts finds that Mr. McClure
and Mr. Shaver had probable cause to arrest Mr. DelPriore;
accordingly, Mr. DelPriore's retaliatory arrest claim
under the First Amendment fails as a matter of law. Mr.
DelPriore has not presented any evidence that similarly
situated individuals were not arrested, and therefore does
not qualify for the narrow exception to the no-probable-cause
requirement established by the Supreme Court in Nieves v.
Bartlett.[100]
Because
the Court finds that Mr. DelPriore's retaliatory arrest
claim fails as a matter of law, it need not reach the
questions of whether Mr. DelPriore was engaged in
constitutionally protected speech, whether Defendants'
actions would chill a person of ordinary firmness from
engaging in that activity, or whether the protected activity
was a motivating factor in Defendants' conduct.
3.
Excessive Force
Defendants
contend that Mr. DelPriore's Fourth Amendment excessive
force claim fails as a matter of law because Mr. McClure and
Mr. Shaver “used a reasonable amount of force to
restrain Mr. DelPriore.”[101] Defendants rely on the
Ninth Circuit's decision in Luchtel v. Hagemann
to argue that under the totality of the circumstances, and
considering the relevant factors-the severity of the crime,
whether the suspect was resisting arrest, and whether the
suspect posed a threat-Defendants' use of force against
Mr. DelPriore was objectively reasonable.[102]
In
Luchtel, two police officers apprehended the
plaintiff, who was high on crack cocaine, suicidal, and
delusional.[103] The officers used force to subdue and
detain her; the plaintiff suffered a dislocated shoulder and
torn shoulder ligaments as well as bruising, swelling, and
abrasions on her arms and body.[104] The plaintiff
contended that the officers “held [her] to the floor
for at least ten minutes while handcuffed with a broken arm
and dislocated shoulder.”[105] By her own admission,
when the police officers attempted to restrain her, the
plaintiff did “everything [she] could to keep [the
officers] from handcuffing [her]” as she was under the
delusion that they were trying to kill her.[106] Among
other things, she used her 67-year old neighbor as a human
shield, accidentally tackling her to the floor and causing
her bruises. The neighbor confirmed that the plaintiff was
kicking and forcefully trying to break free.[107]
The
Ninth Circuit affirmed the district court's grant of
summary judgment in favor of the defendants on the
plaintiff's excessive force claim, concluding that
“under the totality of the circumstances, and even
viewing the evidence in the light most favorable to [the
plaintiff], the officers' use of force in arresting and
detaining her was reasonable.”[108] The Ninth
Circuit reasoned that there was “no genuine dispute
from the evidence that [plaintiff] posed a threat to herself,
her neighbors, and the officers” and that “the
evidence [was] undisputed that [plaintiff] was actively
resisting arrest.”[109] The Circuit noted that
there was “no allegation that the officers punched or
kicked [her] or applied knee strikes” and there was no
evidence that the officers “wrenched her arms up or
gratuitously intensified pain in the handcuffing
process.”[110]
In
light of Mr. DelPriore's account of the facts,
Defendants' reliance on Luchtel is misplaced. In
Luchtel, it was undisputed that the plaintiff was
actively resisting arrest and was presenting as a threat to
herself and others.[111] Here, there are genuine questions
as to whether Mr. DelPriore was resisting arrest or posing a
threat to anyone. Thus, the Court finds that Luchtel
is inapposite.
In his
opposition, Mr. DelPriore does not address Defendants'
arguments. Instead, he maintains that the video footage from
the security camera is unauthenticated and thus
inadmissible.[112] He asks the Court to make a
determination about whether the original footage was lost or
destroyed and whether Defendants acted in bad faith and
failed to preserve relevant evidence.[113]In
response, Defendants submitted a declaration by Andrew
Halcro, the executive director of the Anchorage Community
Development Authority, which operates the EasyPark parking
garages.[114] Mr. Halcro represents that his office
“conducted a diligent search for security video
records” and located and produced the requested
security video.[115] He explains that the video was
“produced at the time the events or matters to which
they relate occurred, and ha[d] been prepared and/or kept in
the regular course of business.”[116] The Court
is satisfied that the video was maintained in the regular
course of business and accepts it as evidence in support of
Defendants' motion for summary judgment.[117]
In
evaluating Mr. DelPriore's excessive force claim, the
Court considers whether the police officers' actions were
“objectively reasonable given the totality of the
circumstances.”[118] The reasonableness of the force
depends on, among other things, “whether the suspect
posed an immediate threat to anyone, whether the suspect
resisted or attempted to evade arrest, and the severity of
the crime at issue.”[119]
At
summary judgment, the “evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn
in his favor.”[120] Thus, accepting as true for the
purposes of this motion Mr. DelPriore's factual account,
the events are as follows: Defendants McClure and Shaver
asked Mr. DelPriore to leave the parking garage and he
refused. With no warning or physical provocation, they
slammed into him, and hit him with their elbows and knees in
the head, the groin, and the stomach, causing him to fall to
the ground.[121] Defendants McClure and Shaver
prevented him from getting up by handcuffing him and kneeling
on his back. While he was in handcuffs, Defendants McClure
and Shaver “rend[ed]” Mr. DelPriore's wrist
and mashed his face into the ground.[122] Mr.
DelPriore did not make any physical contact with Defendants
McClure and Shaver other than to “stiff-arm” them
when they closed in on him with elbow and
knees.[123]
Based
on Mr. DelPriore's factual account, a reasonable
factfinder could conclude that Defendants' use of force
was not objectively reasonable. First, the severity of the
crime of trespassing is minimal. Second, according to Mr.
DelPriore, he was not resisting arrest; he refused to leave
the premises, but Defendants did not try to handcuff him
before resorting to physical force. Third, other than his
allegedly incoherent references to God, Mr. DelPriore did not
behave erratically or give any other indication that he was a
threat to anyone's safety; he was unarmed and
non-violent. Indeed, before Defendants' arrival, Mr.
DelPriore was calmly sitting on a bench.
For the
foregoing reasons, Defendants are not entitled to summary
judgment on Mr. DelPriore's Fourth Amendment excessive
force claim.
4.
Qualified Immunity
Finally,
Defendants contend that-even assuming Defendants had violated
Mr. DelPriore's First or Fourth Amendment rights-there
was “no clearly established law prohibit[ing] the
conduct of Mr. McClure and Mr. Shaver” and Defendants
are therefore entitled to qualified immunity.[124] The Court
addresses only the Fourth Amendment claim, as it has
determined that Defendants are entitled to summary judgment
on Mr. DelPriore's First Amendment claim.[125]
On the
Fourth Amendment claim, Defendants again cite to
Luchtel, where the Ninth Circuit held that
“even if some degree of force used in subduing [the
plaintiff] was excessive, a reasonable officer could have
thought the force used was needed, ” and hence that the
officers were entitled to qualified immunity.[126]Defendants
rely on Luchtel to assert that there is “no
clearly established constitutional right violated when
arresting officers pin a suspect to the ground and handcuff
the suspect.”[127] However, as discussed above,
Luchtel is inapposite; the plaintiff in
Luchtel was actively resisting arrest, was
presenting a threat to the officers, and was combative. Here,
in contrast, each of those facts remains in dispute and thus
the Ninth Circuit's holding in Luchtel is not
controlling.
As
discussed supra, on the first prong of the qualified
immunity test, Defendants are not entitled to summary
judgment on whether they violated Mr. DelPriore's Fourth
Amendment rights.[128] Under the second prong, the Court asks
“whether the alleged violation of [the plaintiff's]
Fourth Amendment right against excessive force was clearly
established at the time of the officers' alleged
misconduct.”[129] Where, as here, the parties dispute
material facts-namely, whether Mr. DelPriore resisted arrest
or presented a threat-“summary judgment is appropriate
only if Defendants are entitled to qualified immunity on the
facts as alleged by the non-moving
party.”[130]
Accepting
as true Mr. DelPriore's factual account, the Court
concludes that Defendants are not entitled to summary
judgment on the issue of qualified immunity because the
conduct as alleged by Mr. DelPriore would have violated a
clearly established right. In Blankenhorn v. City of
Orange, on highly similar facts, the Ninth Circuit
reversed the district court's grant of summary judgment
to the defendants on an excessive force claim.[131]
In
Blankenhorn, the plaintiff, Gary Blankenhorn, was
arrested on suspicion of trespass, and later charged with
three counts of resisting arrest, one count of disturbing the
peace, and one count of trespass.[132] Mr. Blankenhorn
brought an action under 42 U.S.C. § 1983 alleging,
inter alia, that the police officers “used
unreasonable force during the arrest by gang-tackling him,
punching him, and using hobble
restraints.”[133] Although the parties disputed many of
the material facts, the plaintiff's factual account was
as follows:[134] six months prior to the incident, the
plaintiff was notified that he had been permanently evicted
from the mall. Several weeks before the incident, one of the
officers who would later arrest the plaintiff encountered him
near the scene of an alleged gang fight and questioned him;
the officer described the plaintiff as “completely
calm” and “cooperative” at that
time.[135] On the night of the incident, the
plaintiff was suspected of having committed misdemeanor
trespass at the mall. According to Mr. Blankenhorn's
version of the incident, Officer Nguyen inquired why the
plaintiff was at the mall, and he responded that he was
speaking with a friend. When Mr. Blankenhorn tried to walk
away, Officer Nguyen grabbed his arm, and Mr. Blankenhorn
“yanked out of [Officer Nguyen's]
grasp.”[136] The officer then threatened to spray
him with mace, and Mr. Blankenhorn threw his driver's
license on the ground, was “angry” and
“loud, ” and used profanity, but was otherwise
not combative.[137] The officer asked him to kneel so he
could be handcuffed, and Mr. Blankenhorn refused. The
officer, along with another officer and a security guard,
tackled Mr. Blankenhorn. According to Mr. Blankenhorn, they
did not try to handcuff him before they tackled him. Mr.
Blankenhorn struggled for several moments before they were
able to get him to the ground and handcuffed. Mr. Blankenhorn
maintained that during the struggle, Officer Nguyen punched
him several times, and an officer placed a knee on his neck
and pressed his face to the ground. Then they placed Mr.
Blankenhorn in hobble restraints.[138]
The
Ninth Circuit concluded that it was reasonable for the
officers to believe they had probable cause to arrest Mr.
Blankenhorn for trespassing.[139] It added that
“[n]either tackling nor punching a suspect to make an
arrest necessarily constitutes excessive
force.”[140] Nonetheless, the Ninth Circuit held
that if the plaintiff could prove that his version of the
incident was accurate, “Defendants would probably be
liable for excessive force, both in their ‘gang
tackling,' use of hobble restraints, and in [the
officer's] punching of [the
plaintiff.]”[141] Relevant here, in holding that a
reasonable factfinder “could conclude the gang tackle
was unreasonable, ” the Ninth Circuit emphasized that
the “severity of the alleged crime, misdemeanor
trespass, was minimal” and that other than failing to
comply with the order to kneel, the plaintiff was not
“actively resisting arrest” before being
tackled.[142] Thus, a “rational jury could
find that the use of a gang tackle . . . under these
circumstances was unreasonable.”[143] Likewise,
in concluding that the officer's punches “were not
necessarily a reasonable response, ” the Ninth Circuit
noted that there was no strategic need for the
strikes.[144] Moreover, the Ninth Circuit concluded
that the officers were “not entitled to qualified
immunity as to the gang tackle and punches used while taking
Blankenhorn into custody, ” reasoning that it was
clearly established that “gang-tackling without first
attempting a less violent means of arresting a relatively
calm trespass suspect-especially one who . . . was at the
moment not actively resisting arrest-was a violation of that
person's Fourth Amendment rights.”[145] The
Circuit added that the “same principle would also
adequately put a reasonable officer on notice that punching
Blankenhorn to free his arms” when it was not actually
needed “was also a Fourth Amendment
violation.”[146]
If a
jury accepts Mr. DelPriore's factual account of the
incident, the Court finds that Defendants' alleged
conduct in ganging up to tackle him and in striking him in
the head, stomach, and groin when he was not resisting arrest
and was not physically combative were violations of clearly
established Fourth Amendment rights at the time of the
incident.[147] Other decisions in this Circuit (and
elsewhere) confirm that using “non-trivial force”
on an unarmed suspect who is not resisting arrest violates
clearly established Fourth Amendment rights.[148]
Therefore,
based on Mr. DelPriore's factual account of the incident,
(1) a reasonable factfinder could conclude that
Defendants' conduct violated Mr. DelPriore's Fourth
Amendment right to be free from unreasonable seizure, and (2)
the Court finds that the constitutional right was clearly
established at the time of the incident. The disputed facts
must be resolved by the jury through the use of special
interrogatories, which will determine whether the
officers' actions constituted excessive force in
violation of the Fourth Amendment and whether the officers
are entitled to qualified immunity as a matter of
law.[149] ...