Archer v. Orr ( 2019 )

WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Virginia Archer, ) ) Plaintiff, ) ) vs. ) ) Officer C. Orr #19441, et al., ) ) No. 2:18-cv-2434-HRH Defendants. ) _______________________________________) O R D E R Cross-motions for Summary Judgment Defendants move for summary judgment.1 This motion is opposed,2 and plaintiff cross- moves for summary judgment against defendant Orr.3 Plaintiff’s cross-motion is opposed.4 Oral argument was not requested and is not deemed necessary. Facts Plaintiff is Virginia Archer. Defendants are Officer C. Orr #19441, Officer D. Grimm #18904, and the City of Mesa. 1Docket No. 36. 2Docket No. 58. 3Docket No. 54. 4Docket No. 60. -1- On 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. When 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. At some 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 -2- 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 gun. Plaintiff 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.5 Officer Grimm asked plaintiff again, “Can you keep coming back here?”6 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.”7 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?”8 Plaintiff asked Officer Grimm, “What are you doing?” and pulled her arm away from Officer Grimm.9 Officer Orr then grabbed plaintiff’s left arm, asking her to “Come on this way, ma’am.”10 Plaintiff pulled away from Officer Orr, 5Exhibit 4 at 2:50-3:05, Defendants’ Motion for Summary Judgment, Docket No. 36. 6Id. at 3:00-3:04. 7Exhibit 3 at 11:10-11:15; Defendants’ Motion for Summary Judgment, Docket No. 36. 8Exhibit 4 at 3:05-3:13, Defendants’ Motion for Summary Judgment, Docket No. 36. 9Id. at 3:13-3:15. 10Exhibit 3 at 11:10-11:16, Defendants’ Motion for Summary Judgment, Docket No. 36. -3- who then grabbed plaintiff’s arm more securely and put his other hand on her back. Plaintiff asked Officer Orr “What are you doing?”11 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.”12 Officers 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.”13 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. Medics 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. 11Id. at 11:15-11:30. 12Incident/Investigation Report, Exhibit 4 at Mesa/Archer 000019, Plaintiff’s Motion for Summary Judgment against Defendant Orr, Docket No. 54. 13Exhibit 4 at 3:39-3.41, Defendants’ Motion for Summary Judgment, Docket No. 36. -4- 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.14 While she was at the hospital, Officer Orr gave plaintiff a citation for obstructing governmental operations. This charge was subsequently dismissed by the City. An 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 within policy. On 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,15 a § 1986 malicious prosecution claim against Officer Orr,16 and a § 1983 claim against the City. Plaintiff seeks compensatory damages and punitive damages. 14Exhibit 18 at 2, 5, Defendants’ Motion for Summary Judgment, Docket No. 37-8. 15Although plaintiff has labeled this a § 1986 claim, “[a] claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff’s complaint contains no section 1985 claims. This claim thus has been treated as a § 1983 failure to intercede claim. 16The court has treated this claim as a § 1983 malicious prosecution claim for the same reason noted above. -5- Defendants now move for summary judgment on all of plaintiff’s claims. Plaintiff cross-moves for summary judgment on her claims against Officer Orr. Discussion Summary 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). excessive force claim against Officer Orr “The 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. -6- 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, Case 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). Officer 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). To 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 -7- 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)). Viewing 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 1s entitled to qualified immunity because he did not violate a clearly established right. “