Bassford v. Mesa, City of

Opinion

1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gabriel Bassford, No. CV-22-00572-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 City of Mesa, et al., 13 Defendants.

14 15 Pro se Plaintiff Gabriel Bassford brought this civil rights action pursuant to 42 16 U.S.C. § 1983. Defendants City of Mesa, Sergeant Joseph Adams, and Officers Kyler 17 Newby, Phillip Clark, and Michael Destefino move for summary judgment on the merits 18 of Plaintiff’s First and Fourth Amendment and based on qualified immunity. (Doc. 77.) 19 Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. 20 Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 84), and he opposes the 21 Motion. (Doc. 97.) Defendants filed a Reply, Plaintiff filed a Sur-Reply, and Defendants 22 filed a Response to Plaintiff’s Sur-Reply. (Docs. 102, 110, 112.) 23 The Court will grant in part and deny in part the Motion for Summary Judgment. 24 I. Background 25 As relevant here, in the First Amended Complaint, Plaintiff alleges that Defendants 26 Newby and Clark unreasonably seized and searched him and unlawfully arrested him for 27 filming police officers’ activity at a convenience store. (First Amended Complaint (FAC), 28 Doc. 9, ¶¶ 83-85.) Plaintiff asserts Defendants Newby, Clark, Destefino, and Adams 1 retaliated against Plaintiff for exercising his First Amendment right to film police officers 2 in the course of their public duties. (Id. ¶¶ 93-94.) Plaintiff claims Defendants Newby, 3 Clark, Destefino, and Adams unlawfully imprisoned him in violation of the Fourth 4 Amendment. (Id. ¶¶ 103-105.) Plaintiff contends the City of Mesa has an unconstitutional 5 written policy—DPM 2.4.10—that resulted in his false imprisonment. (Id. ¶¶ 146-147.) 6 On screening the First Amended Complaint under 28 U.S.C. § 1915(e), the Court 7 determined that Plaintiff had stated the following claims against Defendants Newby, Clark, 8 Destefino, and Adams: a Fourth Amendment false arrest claim in Count Two, a First 9 Amendment claim freedom of expression claim in Count Three, and a Fourth Amendment 10 unlawful imprisonment claim in Count Four.1 (Doc. 13 at 12.) The Court also determined 11 that Plaintiff stated a claim in Count Eight against the City of Yuma based on the allegedly 12 unlawful policy. (Id. at 14.) The Court directed Defendants to answer the claims. (Id. at 13 12, 14.) The Court dismissed the remaining claims and Defendants. (Id. at 11-15.) 14 II. Summary Judgment Standard 15 A court must grant summary judgment “if the movant shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 17 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 18 movant bears the initial responsibility of presenting the basis for its motion and identifying 19 those portions of the record, together with affidavits, if any, that it believes demonstrate 20 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 21 If the movant fails to carry its initial burden of production, the nonmovant need not 22 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 23 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 24 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 25 contention is material, i.e., a fact that might affect the outcome of the suit under the 26 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable

27 1 The Court determined that Plaintiff stated a claim against another officer, Officer 28 Rangel. Plaintiff failed to serve Officer Rangel, and on February 27, 2024, the Court dismissed Rangel. (Doc. 103.) 1 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 3 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 4 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 5 it must “come forward with specific facts showing that there is a genuine issue for trial.” 6 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 7 citation omitted); see Fed. R. Civ. P. 56(c)(1). 8 At summary judgment, the judge’s function is not to weigh the evidence and 9 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 10 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 11 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 12 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 13 III. Facts 14 A. Undisputed Facts 15 On October 9, 2021, Mesa Police Department officers responded to a call by John 16 Dreschler, a Circle K security guard, to respond to a Circle K location to investigate another 17 matter. (Defs.’ Statement of Facts (DSOF), Doc. 81 at 1 ¶ 1.) While Mesa Police Officers 18 met with Dreschler in the Circle K parking lot, Plaintiff and three other individuals in 19 Plaintiff’s vehicle saw the Mesa Police Officers in the parking lot and decided to film the 20 police activity. (Id. ¶ 2.) 21 Plaintiff parked his vehicle on a nearby street, and Plaintiff and the other three 22 occupants walked toward the Circle K. (Id.) Plaintiff walked onto the Circle K driveway 23 and into the Circle K parking lot, all while filming the Mesa Police Officers. (Id.) 24 Defendant Newby told Dreschler, “you have six new customers out here. These guys are 25 waiting to buy something with all their cameras.” (Pl.’s Controverting Statement of Facts 26 (PCSOF), Doc. 98 at 2 ¶ 6.) Dreschler noticed multiple individuals standing within the 27 Circle K parking lot and holding cameras or cell phones. (Id.) Drechsler asked who the 28 individuals recording them were. (Id. ¶ 7.) Defendant Newby told Dreschler that they 1 were First Amendment “auditors” and not customers. (Id.) Dreschler “agreed” with 2 Defendant Newby’s “assessment” that the individuals filming them were not acting like 3 Circle K customers and told Defendant Newby, “You can trespass them if you want to.” 4 (Id.) Defendant Newby responded, “Oh. You want them trespassed,” and told Defendant 5 Clark that Dreschler “want[ed] them trespassed.” (Id.) Defendant Newby instructed Clark 6 to “seize” the individuals who were standing in the Circle K parking lot and filming the 7 officers. (Id.) 8 Plaintiff was facing and filming towards the store’s exterior east wall and was 9 roughly 46 feet from the Circle K “NO TRESPASSING” sign on the store’s east wall. 10 (DSOF ¶ 8.) Defendant Newby approached Plaintiff in the Circle K parking lot. (Id. ¶ 9.) 11 Based on Plaintiff’s location in the Circle K parking lot and proximity to the “NO 12 TRESPASSING” sign, Defendant Newby determined that the “NO TRESPASSING” sign 13 provided Plaintiff with reasonable notice that he was prohibited from entering onto Circle 14 K’s private property to film from the convenience store’s commercial parking lot and 15 property. (DSOF ¶ 10.) Based on Drechsler’s determination that the individuals filming 16 on Circle K property were trespassing, the proximity of Plaintiff to the “NO 17 TRESPASSING” sign as perceived by Defendant Newby, Newby’s understanding that 18 Plaintiff was trespassing on Circle K’s private property and not acting as a Circle K 19 customer, and Newby’s law enforcement training and experience regarding investigations 20 involving criminal trespass, Newby believed he possessed reasonable suspicion and 21 probable cause that Plaintiff had violated Arizona’s criminal trespass law. (Id. ¶ 11.) From 22 the location where Plaintiff stood when approached by Defendant Newby, approximately 23 46 feet from the “NO TRESPASSING” sign, Defendant Newby believed the “NO 24 TRESPASSING” sign was easy to recognize and read, and pursuant to his law enforcement 25 training and experience, that it provided “reasonable notice” prohibiting non-customers 26 from entry onto the Circle K property without prior permission from Circle K. (Id. ¶ 13.) 27 Defendant Newby understood that Plaintiff did not have prior permission from Circle K to 28 1 enter the Circle K property as a non-customer for the purpose of filming or recording from 2 the private property. (Id. ¶ 14.) 3 Defendant Newby placed Plaintiff in handcuffs, walked Plaintiff over to the nearby 4 curb, and asked Plaintiff to sit on the curb. (Id. ¶ 15.) Defendant Destefino arrived after 5 Defendant Newby placed Plaintiff in handcuffs and just after Defendant Newby walked 6 Plaintiff to the storefront’s curb where Plaintiff sat down. (Id. ¶ 17.) Defendant Newby 7 asked Defendant Destefino to determine Plaintiff’s identity, informed Defendant Destefino 8 and Plaintiff that Plaintiff was detained for trespassing, and left the immediate vicinity to 9 continue the investigation. (Id. ¶ 18.) Plaintiff informed Defendant Destefino that he 10 would like to speak with a supervisor before identifying himself because there was no 11 probable cause for his seizure, and Defendant Destefino informed Plaintiff that his request 12 to speak with a supervisor was “okay with him” and that a supervisor was on his way. 13 (PCSOF ¶ 19.) 14 Defendant Clark, who was investigating other individuals also trespassing on Circle 15 K’s property on the opposite side (north facing side) of the Circle K store -- did not have 16 contact with Plaintiff and did not converse with Plaintiff on the night of this incident. 17 (DSOF ¶ 20.) Defendant Adams responded to the Circle K after Plaintiff was detained in 18 handcuffs and while Plaintiff was sitting on the storefront’s curb near the west-facing wall. 19 (Id. ¶ 21.) Defendant Adams learned from Defendant Newby that the Circle K store’s 20 representative, Security Officer Drechsler, had determined that Plaintiff and the other 21 individuals in the Circle K parking lot were determined by the Circle K Security Officer to 22 be trespassing on Circle K property because they were not acting as customers. (Id. ¶ 22.) 23 Defendant Newby determined that Plaintiff would be transported at the Mesa Holding 24 Facility where he would be booked for violating Criminal Trespass. (Id. ¶ 23.) 25 Defendant Destefino drove Plaintiff from the Circle K property to Mesa Police 26 Department’s Holding Facility, where staff booked Plaintiff for criminal trespass in the 27 third degree, in violation of Arizona Revised Statutes § 13-1502(A)(1). (Id.) The next 28 day, Plaintiff was charged in Mesa Municipal Court with one count of trespass in the third- 1 degree.2 Plaintiff appeared before a judge and had a lawyer representing him during the 2 hearing. (Id. ¶ 24; Decl. of Joseph Adams, Doc. 82-13 at 4 ¶ 14.) On November 9, 2022, 3 the charge was dismissed.3 4 B. Plaintiff’s Additional Facts 5 Circle K’s “No Trespassing” sign states, “NO TRESPASSING–A.R.S. 13-1502” 6 and does not specifically prohibit the public from video recording on the store’s premises. 7 (PSOF ¶ 35.) The “No Trespassing” sign on Circle K’s exterior east wall was to the east 8 of the location Plaintiff was filming, hidden 46 feet away above a blue Amazon Pick Up 9 Box, and was not legible from that distance. (Id. ¶ 37.) 10 When Defendant Newby seized Plaintiff for trespassing, he asked Plaintiff if he had 11 seen Circle K’s “No Trespassing” sign. (PSOF ¶ 28.) Plaintiff stated that he had not seen 12 Circle K’s “No Trespassing” signs, that he had not been asked to leave, and that he would 13 have been willing to leave the store’s property if he had been asked. (Id.) Plaintiff was 14 not able to continue recording freely and unencumbered because he was detained and 15 handcuffed by Defendant Newby. (Id. ¶ 30.) Defendant Newby took possession of 16 Plaintiff’s video camera until he sat Plaintiff on the curb and placed Plaintiff’s recording 17 device in Plaintiff’s lap before turning Plaintiff’s video camera off. (Id.) Defendant Adams 18 spoke with Plaintiff, and Plaintiff informed Defendants Adams and Destefino that he was 19 being unlawfully detained because he had not violated any laws, and that he was willing to 20 identify himself under the threat of going to jail, if that was what was required. (Id. ¶ 31.) 21 Plaintiff also informed Defendant Newby that he was willing to identify himself to avoid 22 being placed in jail. (Id.) 23 In his Sur-Reply, Plaintiff purports to add facts regarding the City of Mesa’s 24 Trespass Enforcement Program. (Doc. 110 at 2.) Plaintiff asserts the TEP was created 25 specifically for businesses to help with incidents of trespassing and loitering during non- 26

27 2 See https://ecourt.mesaaz.gov/DispositionReport?cn=2021063632&ds=Cms (last accessed July 30, 2024). 28 3 See id. 1 business hours and mandates that “no trespassing signs,” with the ARS code printed on 2 them, be posted in highly visible locations on the property. (Id.) According to Plaintiff, 3 under the TEP, if a business is open, a police officer must contact someone at the business 4 to verify that an individual is not a customer or otherwise allowed to be on the property 5 before making an arrest for trespassing. (Id.) 6 IV. Claims Regarding Arrest (Counts Two and Four) 7 A. Defendant Clark 8 As an initial matter, the Court addresses Plaintiff’s claims against Defendant Clark. 9 It is undisputed that Defendant Clark, who investigating other individuals on Circle K’s 10 property on the opposite side (north facing side) of the Circle K store, had no contact with 11 Plaintiff on the night of the incident. There is no evidence that Defendant Clark was 12 personally involved in stopping or arresting Plaintiff, and Plaintiff does not address 13 Defendants’ arguments that Plaintiff cannot prevail on a § 1983 claim against Defendant 14 Clark. The Court will therefore grant Defendants’ Motion for Summary Judgment as to 15 Defendant Clark. 16 B. Initial Stop 17 1. Legal Standards 18 Under Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, 19 investigative stop of an individual when they have reasonable suspicion that the “person 20 apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 21 U.S. 323, 326 (2009). Reasonable suspicion requires more than “inchoate and 22 unparticularized suspicion or [a] hunch”; the officer must have “some minimal level of 23 objective justification” for making the stop. United States v. Sokolow, 490 U.S. 1, 7 (1989) 24 (internal citations omitted). This level of suspicion is “considerably less than proof of 25 wrongdoing by a preponderance of the evidence.” Id.; United States v. Montoya de 26 Hernandez, 473 U.S. 531, 541 (1985) (“The ‘reasonable suspicion’ standard . . . effects a 27 needed balance between private and public interests when law enforcement officials must 28 make a limited intrusion on less than probable cause.”). 1 The Court must examine the “totality of the circumstances” to determine whether a 2 detaining officer has a “particularized and objective basis” for suspecting criminal 3 wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002). “All relevant factors must 4 be considered in the reasonable suspicion calculus—even those factors that, in a different 5 context, might be entirely innocuous.” United States v. Fernandez-Castillo, 324 F.3d 1114, 6 1117 (9th Cir. 2003); see United States v. Manzo-Jurado, 457 F.3d 928, 935 (9th Cir. 2006) 7 (“Seemingly innocuous behavior does not justify an investigatory stop unless it is 8 combined with other circumstances that tend cumulatively to indicate criminal activity.”). 9 During a Terry stop motivated by reasonable suspicion, the officer may ask 10 investigatory questions, but the “scope of the detention must be carefully tailored to its 11 underlying justification.” Florida v. Royer, 460 U.S. 491, 500 (1983). “[I]t is well 12 established that an officer may ask a suspect to identify himself during a Terry stop.” 13 Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cnty., 542 U.S. 177, 178 (2004). 14 2. Analysis 15 In his Response, Plaintiff does not address whether Defendants had reasonable 16 suspicion to stop him. It is undisputed that Defendant Newby was investigating possible 17 criminal trespass in the third degree, in violation of Arizona Revised Statutes, § 13-1502. 18 Section 13-1502 provides, “A person commits criminal trespass in the third degree by: 19 Knowingly entering or remaining unlawfully on any real property after a reasonable 20 request to leave by a law enforcement officer, the owner or any other person having lawful 21 control over such property, or reasonable notice prohibiting entry.” Ariz. Rev. Stat. § 13- 22 1502. “Enter or remain unlawfully” means “an act of a person who enters or remains on 23 premises when the person’s intent for so entering or remaining is not licensed, authorized 24 or otherwise privileged . . ..” Ariz. Rev. Stat. § 13-1501(2). “Knowingly” means “with 25 respect to conduct or to a circumstance described by a statute defining an offense, that a 26 person is aware or believes that the person’s conduct is of that nature or that the 27 circumstance exists. It does not require any knowledge of the unlawfulness of the act or 28 omission.” Ariz. Rev. Stat. § 13-105(10)(b); see State v. Malloy, 639 P.2d 315, 320 (Ariz. 1 1981) (stating that prosecution must prove not only that the defendant knowingly, 2 voluntarily, entered or remained, but it must also prove that the defendant was aware that 3 his entry or remaining was unlawful); State v. Kozan, 706 P.2d 753, 755 (Ariz. Ct. App. 4 1985) (noting the defendant’s awareness that entry or remaining was unlawful is a distinct 5 element from “knowingly” entering or remaining). 6 There is no evidence that any law enforcement or other person having control over 7 the Circle K property asked Plaintiff to leave to the property. Therefore, the question is 8 whether Defendants had reasonable suspicion to believe that Plaintiff knowingly entered 9 or remained unlawfully on the property despite having reasonable notice prohibiting entry. 10 Assuming the truth of Plaintiff’s facts, he could not and did not see the “No Trespassing” 11 sign on the Circle K wall before he entered the parking lot. 12 According to Plaintiff’s facts, Security Officer Dreschler agreed with Defendant 13 Newby that Plaintiff, along with the other individuals who were filming the officers, was 14 not acting like a Circle K customer and told Defendant Newby that he could “trespass” 15 Plaintiff if Defendant Newby “want[ed] to.” (PCSOF ¶ 7.) It is irrelevant for Fourth 16 Amendment purposes that Plaintiff did not or could not see the “No Trespassing” sign; 17 Defendants could not have known when they stopped Plaintiff that he could not see the 18 sign, and the sign gave the public reasonable notice that trespassing on the property was 19 prohibited. In addition, Defendants could lawfully ask Plaintiff to identify himself, which 20 Plaintiff declined to do until he could speak to a supervisor. On these facts, Defendants 21 had reasonable suspicion to believe Plaintiff was trespassing on the Circle K property, and 22 their initial stop of Plaintiff did not violate the Fourth Amendment. There is no genuine 23 dispute of material fact regarding whether Defendants had reasonable suspicion to stop 24 Plaintiff. 25 C. Probable Cause for Arrest/False Arrest 26 1. Legal Standards 27 The Fourth Amendment requires an arrest to be supported by probable cause. 28 Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). “‘A police officer may make a 1 warrantless arrest when the ‘officer has probable cause to believe that the person to be 2 arrested has committed a felony, whether or not a felony, in fact, has been committed.’” 3 Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007) (quoting Peng v. Mei 4 Chin Penghu, 335 F.3d 970, 976 (9th Cir. 2003)). To determine whether an officer had 5 probable cause for an arrest, the Court “‘examine[s] the events leading up to the arrest, and 6 then decide[s] whether these historical facts, viewed from the standpoint of an objectively 7 reasonable police officer, amount to probable cause.’” O’Doan v. Sanford, 991 F.3d 1027, 8 1039 (9th Cir. 2021) (quoting District of Columbia v. Wesby, 583 U.S. 48, 56 (2018); see 9 also Blankenhorn, 485 F.3d at 471 (“The test for whether probable cause exists is whether 10 at the moment of arrest the facts and circumstances within the knowledge of the arresting 11 officers and of which they had reasonably trustworthy information were sufficient to 12 warrant a prudent [person] in believing that the petitioner had committed or was 13 committing an offense.’”) (quoting United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 14 2005), cert. denied, 574 U.S. 1056 (2006)). 15 “Probable cause is ‘a fluid concept’ that ‘deals with probabilities and depends on 16 the totality of the circumstances,’ which cannot ‘readily, or even usefully, [be] reduced to 17 a neat set of legal rules.’” O’Doan, 991 F.3d at 1039 (quoting Wesby, 583 U.S. at 57). It 18 “requires only a probability or substantial chance of criminal activity, not an actual 19 showing of such activity.” Wesby, 583 U.S. at 57 (quoting Illinois v. Gates, 462 U.S. 213, 20 243–44 n.13 (1983)). This is not a high bar. Id. (quoting Kaley v. United States, 571 U.S. 21 320, 338 (2014)) (quotation marks omitted). “Probable cause exists when, under the 22 totality of the circumstances known to the arresting officers (or within the knowledge of 23 the other officers at the scene), a prudent person would believe the suspect had committed 24 a crime.” Dubner v. City & County of San Francisco, 266 F.3d 959, 966 (9th Cir. 2001) 25 (citation omitted). 26 “Because probable cause must be evaluated from the perspective of ‘prudent 27 [people], not legal technicians,’ an officer need not have probable cause for every element 28 of the offense.” Blankenhorn v. City of Orange, 485 F.3d 463, 472 (9th Cir. 2007) (quoting 1 Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)). But “‘when specific intent is 2 a required element of the offense, the arresting officer must have probable cause for that 3 element in order to reasonably believe that a crime has occurred.” Id. (quoting Gasho v. 4 United States, 39 F.3d 1420, 1428 (9th Cir. 1994)) (citations omitted); see State v. Malloy, 5 639 P.2d 315, 320 (Ariz. 1981) (to convict a defendant of criminal trespass, the state must 6 prove that the defendant understood the illegality of his entry or remaining). 7 “False arrest, a species of false imprisonment, is the detention of a person without 8 his consent and without lawful authority.” Donahoe v. Arpaio, 869 F. Supp. 2d 1020, 1064 9 (D. Ariz. 2012) (quoting Reams v. City of Tucson, 701 P.2d 598, 601 (Ariz. Ct. App. 1985)), 10 aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir. 2013). Under Arizona law, 11 false imprisonment and false arrest consist of non-consensual detention of a person 12 “without lawful authority.” Slade v. City of Phoenix, 541 P.2d 550, 552 (Ariz. 1975). 13 “Reflective of the fact that false imprisonment consists of detention without legal process, 14 a false imprisonment ends once the victim becomes held pursuant to such process—when, 15 for example, he is bound over by a magistrate or arraigned on charges.” Wallace v. Kato, 16 549 U.S. 384, 389 (2007) (emphasis in original). To prevail on a § 1983 claim for false 17 arrest, Plaintiff must show that Defendants made the arrest without probable cause or other 18 justification. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013). 19 2. Analysis 20 The Court first addresses Plaintiff’s new arguments in his Sur-Reply regarding the 21 TEP. Plaintiff argues that the TEP provides that “No Trespassing” signs are only 22 applicable during a store’s non-business hours and if the business is open to the general 23 public, an inquiry must be made as to whether an individual is a customer of the business 24 or not “before trespassing could apply.” (Doc. 110 at 2.) This argument is meritless. The 25 Mesa Trespassing Enforcement Program is not a law. Rather, as Plaintiff notes, it was 26 created to assist businesses with incidents of trespassing and loitering that occur when 27 businesses are closed.4 The program allows business owners to register their property and

28 4 See https://www.mesaazpolice.gov/crime-safety/trespass-enforcement-program 1 permits officers to “trespass an individual from [the] property, who does not have a 2 legitimate reason to be there when the business is closed, without contacting the business 3 owner or property manager first.” The program does not limit the applicability of Arizona 4 Revised Statutes § 13-1502 to when businesses are closed. 5 In their Motion for Summary Judgment, Defendants argue Defendant Newby had 6 probable cause to arrest Plaintiff. Defendants provide a Declaration of Defendant Newby, 7 in which Newby avers that he could easily read the “No Trespassing” sign when he faced 8 the unobstructed wall, as Plaintiff was. (Decl. of Kyler Newby, Doc. 82-1 at 6 ¶ 26.) 9 Defendant Newby declares that he told Plaintiff and another individual, “Hey, go ahead 10 and sit down for us, guys. You’re lawfully detained. You’re being trespassed. Go ahead 11 and sit down.” (Id. ¶ 28.) Defendant Newby avers that based on his training and 12 experience, he believed he had probable cause to charge Plaintiff with criminal trespass in 13 the third degree based on his arrival at the Circle K before any individuals gathered on the 14 sidewalks; Security Officer Dreschler’s “subsequent determination that the non-customers 15 filming in the parking lot were trespassers”; the “reasonable notice prohibiting trespassers 16 from entry onto the property by means of the clearly posted and legible” “No Trespassing” 17 signs; and Plaintiff’s proximity to the unobstructed “No Trespassing” sign. (Id. ¶¶ 32-33.) 18 Defendant Newby further avers that he believed Plaintiff “knowingly entered the Circle K 19 property as a trespasser despite the above-referenced reasonable notice provided” and that 20 because he walked onto the property at the same approximate time as other individuals, he 21 believed they were all coordinating their efforts together, and that they likely got that close 22 and onto Circle K’s private property because they knew that one or more of their associates 23 was currently being investigated for trespassing.” (Id. ¶ 34.) 24 In his Response, Plaintiff contends Defendant Newby arrested him without probable 25 cause because Newby “understood” that Plaintiff did not see Circle K’s “No Trespassing” 26 signs and that Plaintiff “was not provided a reasonable request to leave” before Newby 27 placed Plaintiff under arrest. (Doc. 97 at 6.) Plaintiff contends he entered the Circle K 28

(last visited July 26, 2024). 1 property during business hours and “was not looking for” a “No Trespassing” sign because 2 he “believed he had [a] First Amendment [right] to film police activity in the general 3 public.” (Id. at 7.) Plaintiff asserts that when he told Defendant Newby that he had not 4 seen the “No Trespassing” sign, that he had not been asked to leave the property, and that 5 he was willing to leave the property, Defendant Newby “understood . . . that he no longer 6 possessed reasonable suspicion or probable cause to arrest Plaintiff” for criminal trespass. 7 (Id.) 8 Assuming the truth of Plaintiff’s facts, Plaintiff did not and could not see the “No 9 Trespassing” sign on the Circle K wall and did not believe he was trespassing. After 10 Plaintiff was detained, Defendant Newby asked Plaintiff if he had seen Circle K’s “No 11 Trespassing” sign. Plaintiff told Defendant Newby that he had not seen the “No 12 Trespassing” sign, that he had not been asked to leave, and that he was willing to leave the 13 store’s property if he had been asked. On these facts, a reasonable jury could conclude that 14 Defendant Newby did not have sufficient knowledge or information that would lead a 15 prudent person to believe that Plaintiff had knowingly entered or remained on the Circle K 16 property despite having reasonable notice that his entry or remaining there was prohibited. 17 There are genuine disputes of material fact regarding whether Defendant Newby 18 had probable cause to arrest Plaintiff. The Court will therefore consider whether Defendant 19 Newby is entitled to qualified immunity with respect to Plaintiff’s Fourth Amendment and 20 false arrest claims. 21 D. Qualified Immunity 22 1. Legal Standards 23 Government officials enjoy qualified immunity from civil damages unless their 24 conduct violates “clearly established statutory or constitutional rights of which a reasonable 25 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding 26 if qualified immunity applies, the Court must determine: (1) whether the facts alleged show 27 the defendant’s conduct violated a constitutional right; and (2) whether that right was 28 clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 230- 1 32, 235-36 (2009). 2 Whether a right was clearly established must be determined “in light of the specific 3 context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 4 (2001). The plaintiff has the burden to show that the right was clearly established at the 5 time of the alleged violation. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Romero 6 v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991). “[T]he contours of the right must be 7 sufficiently clear that at the time the allegedly unlawful act is [under]taken, a reasonable 8 official would understand that what he is doing violates that right;” and “in the light of pre- 9 existing law the unlawfulness must be apparent.” Mendoza v. Block, 27 F.3d 1357, 1361 10 (9th Cir. 1994) (quotations omitted). Regardless of whether the constitutional violation 11 occurred, the officer should prevail if the right asserted by the plaintiff was not “clearly 12 established” or the officer could have reasonably believed that his particular conduct was 13 lawful. Romero, 931 F.2d at 627. 14 2. Parties’ Arguments 15 Defendants argue that Defendant Newby is entitled to qualified immunity because 16 “no published opinion from the Supreme Court or the Ninth Circuit has held that conduct 17 similar to that of Defendants was violative of Plaintiff’s stated Fourth Amendment rights 18 under the objectively reasonable standard and based on circumstances closely analogous 19 to this case.” (Doc. 77 at 11.) Defendants contend that “[e]ven if a plaintiff is arrested in 20 the absence of probable cause, an officer is still immune from an unlawful-arrest claim if 21 it was reasonably arguable that there was probable cause for arrest.” (Id. at 12) (quotation 22 marks and citation omitted). In other words, Defendants assert, an “officer is entitled to 23 qualified immunity on an unlawful-arrest claim if a reasonable officer could have believed 24 that probable cause was present.” (Id.) (quotation marks and citation omitted). 25 In his Response, Plaintiff argues at length that this Court should abandon the 26 qualified immunity doctrine. (Doc. 97 at 9-19.) Plaintiff also asserts that Defendant 27 Newby is not entitled to qualified immunity because the laws that Newby violated are 28 clearly established. (Id. at 19.) That is, Plaintiff contends that because Defendant Newby 1 violated Plaintiff’s Fourth Amendment rights, and his Fourth Amendment rights were 2 clearly established at the time, Defendant Newby is not entitled to qualified immunity. 3 3. Analysis 4 The Court rejects out of hand Plaintiff’s argument that the Court should disregard 5 the qualified immunity doctrine. Neither the Supreme Court nor the Ninth Circuit has 6 overturned decades of qualified immunity jurisprudence on the grounds Plaintiff asserts. 7 Plaintiff fails to substantively respond to Defendants’ arguments regarding qualified 8 immunity and misunderstands the qualified immunity test. As discussed above, whether 9 Defendant Newby violated Plaintiff’s Fourth Amendment rights is only the first part of the 10 test. 11 The Ninth Circuit has held that “qualified immunity applies when it was objectively 12 reasonable for an officer to believe he or she had probable cause to make the arrest.” Hill 13 v. City of Fountain Valley, 70 F.4th 507, 516 (9th Cir. 2023) (citing Rosenbaum v. Washoe 14 County, 663 F.3d 1071, 1076 (9th Cir. 2011). “Framing the reasonableness question 15 somewhat differently, the question in determining whether qualified immunity applies is 16 whether all reasonable officers would agree that there was no probable cause in this 17 instance.” Rosenbaum, 663 F.3d at 1078 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741, 18 (2011)). 19 Here, even if Defendant Newby did not have probable cause to arrest Plaintiff, “not 20 all reasonable police officers would believe that they lacked probable cause to make the 21 arrest.” Hill, 70 F.4th at 516. If Defendant Newby reasonably but mistakenly believed 22 Plaintiff knew he was trespassing, then based on the totality of the circumstances, Newby 23 acted reasonably by arresting Plaintiff. See Hill v. California, 401 U.S. 797, 804 (1971) 24 (finding that officers acted reasonably based on the totality of the circumstances, including 25 a good-faith, but ultimately mistaken, belief that they were arresting the correct suspect). 26 In short, qualified immunity applies because Plaintiff has not offered any factually 27 analogous case “clearly establishing” that Defendant Newby’s actions were unlawful under 28 these circumstances. Hill, 70 F.4th at 717. The Court concludes that Defendant Newby is 1 entitled to qualified immunity with respect to Plaintiff’s Fourth Amendment claim. 2 For the foregoing reasons, the Court will grant Defendants’ Motion for Summary 3 Judgment as to Plaintiff’s Fourth Amendment and false arrest claims. 4 V. Monell Claim 5 Section 1983 imposes liability on any “person” who violates an individual’s federal 6 rights while acting under color of state law. Congress intended municipalities and other 7 local government units to be included among those persons to whom § 1983 applies. 8 Monell v. Dept. of Soc. Servs., 436 U.S. 658, 689-90 (1978). However, “a municipality 9 may not be sued under § 1983 solely because an injury was inflicted by its employees or 10 agents.” Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). The actions of 11 individuals may support municipal liability only if the employees were acting pursuant to 12 an official policy or custom of the municipality. Botello v. Gammick, 413 F.3d 971, 978- 13 79 (9th Cir. 2005). 14 In the First Amended Complaint, Plaintiff alleges that Mesa Police Department 15 Policy (DPM) 2.4.10(3)(D) is unlawful because the state statutes it “cites for its authorities” 16 “allow exceptions to due process of law regarding arrest without a warrant.” (FAC ¶¶ 47, 17 49.) Plaintiff asserts Arizona Revised Statutes sections 13-3883 and 13-3903 “are void ab 18 initio because they allow for arrest for misdemeanors and violations, and also release for 19 these violations.” (Id. ¶ 52.) Plaintiff claims section 13-3903 is also void “because it 20 allows executive officers to arrest and release, and take property (fingerprints and images 21 of [the] arrestee) in violation of due process, in accordance with the ‘[n]o takings clause’ 22 under the Fourteenth Amendment.” (Id. ¶ 54.) Plaintiff contends the statutes “clearly 23 bypass the procedure for bringing the arrestee before a magistrate when arrested without a 24 warrant,” which he asserts permits an “executive officer” to perform a “judicial function,” 25 in violation of the “distribution of powers clause” of the Arizona Constitution. (Id. ¶ 55.) 26 In their Motion, Defendants argue Plaintiff’s Monell claim fails for four reasons: 27 First, Defendants assert Plaintiff’s Monell claim fails because he cannot prevail on a 28 constitutional claim against any individual Defendant. (Doc. 77 at 14.) Second, 1 Defendants contend Plaintiff was arrested for trespass in the third-degree, a misdemeanor, 2 not for a violation of law less than a misdemeanor. (Id.) Third, Defendants argue Plaintiff 3 was transported to Mesa’s Holding Facility the night of his arrest and saw legal counsel 4 and a judge the following day. (Id. at 14-15.) Fourth, Defendants assert Arizona Revised 5 Statutes §§ 13-3883 and 13-3903 are not void. (Id. at 15.) 6 Plaintiff fails to address Defendants’ arguments in his Response. Plaintiff has not 7 presented any evidence that he suffered any injury because of DPM 2.4.10. The Court will 8 therefore grant Defendants’ Motion for Summary Judgment as to the Monell claim against 9 the City of Mesa. 10 VI. First Amendment Retaliatory Arrest Claim (Count Three) 11 A. Legal Standard 12 “‘[A]s a general matter the First Amendment prohibits government officials from 13 subjecting an individual to retaliatory actions” for engaging in protected speech.” Nieves 14 v. Bartlett, 587 U.S. 391, 398 (2019) (quoting Hartman v. Moore, 547 U.S. 250, 256 15 (2006)). “If an official takes adverse action against someone based on that forbidden 16 motive, and ‘non-retaliatory grounds are in fact insufficient to provoke the adverse 17 consequences,’ the injured person may generally seek relief by bringing a First Amendment 18 claim.” Id. (quoting Hartman, 547 U.S. at 256.) 19 To prevail on a First Amendment retaliatory arrest claim, a plaintiff must first plead 20 and prove the absence of probable cause. Id. at 401. “[I]f the plaintiff establishes the 21 absence of probable cause, ‘then ... [t]he plaintiff must show that the retaliation was a 22 substantial or motivating factor behind the [arrest], and, if that showing is made, the 23 defendant can prevail only by showing that the [arrest] would have been initiated without 24 respect to retaliation.’” Id. at 404; see also id. at 398 (“It is not enough to show that an 25 official acted with a retaliatory motive and the plaintiff was injured – the motive must cause 26 the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against 27 the plaintiff would not have been taken absent the retaliatory motive.”). 28 . . . . 1 B. Analysis 2 With respect to probable cause for Plaintiff’s arrest, the Court has already 3 determined there are genuine disputes of material fact regarding whether Defendant Newby 4 had probable cause to arrest Plaintiff. The second step of the retaliatory arrest inquiry 5 requires Plaintiff to show that filming the police officers while they carried out their duties 6 was a substantial or motivating factor behind his arrest. In other words, Plaintiff must 7 establish a “causal connection” between Defendant’s “retaliatory animus” and Plaintiff’s 8 “subsequent injury.” Id. at 398 (quoting Hartman, 547 U.S. at 259). The Supreme Court 9 has recognized that retaliatory arrest cases “present a tenuous causal connection between 10 the defendant’s alleged animus and the plaintiff’s injury” and that the “causal inquiry is 11 complex because protected speech is often a ‘wholly legitimate consideration’ for officers 12 when deciding whether to make an arrest.” Id. at 401 (quoting Reichle v. Howards, 566 13 U.S. 658, 668 (2012)). In Hartman, the Supreme Court observed that although it “may be 14 dishonorable to act with an unconstitutional motive,” an official’s “action colored by some 15 degree of bad motive does not amount to a constitutional tort if that action would have been 16 taken anyway.” 547 U.S. at 260. 17 There is no evidence in the record that Defendants Clark, Destefino, and Adams 18 expressed or demonstrated any kind of retaliatory animus toward Plaintiff because he was 19 recording police officers. The Court will therefore grant Defendants’ Motion for Summary 20 Judgment with respect to Plaintiff’s First Amendment retaliatory arrest claim against 21 Defendants Clark, Destefino, and Adams. 22 With respect to Defendant Newby, a reasonable jury could conclude that Newby 23 exhibited retaliatory animus when he told Security Officer Dreschler that Plaintiff and the 24 other individuals filming the police officers were “First Amendment auditors,” not 25 customers, which prompted Dreschler to tell Newby that Newby could “trespass” Plaintiff 26 if Newby “wanted to.” On this record, there are genuine disputes of material fact regarding 27 whether Plaintiff’s First Amendment activity was a substantial or motivating factor behind 28 his arrest. The Court will therefore consider whether Defendant Newby is entitled to 1 qualified immunity with respect to Plaintiff’s retaliatory arrest claim. 2 Defendants argue they are “entitled to qualified immunity because there was no 3 clearly established right for a person to continue recording while arrested and on private 4 property where the company posted ‘No Trespassing’ signs, where the person was not a 5 store customer, and where the store’s Security Officer determined that the individual was 6 trespassing.” (Doc. 77 at 13.) Defendants mischaracterize the right at issue. The right at 7 issue is the right to be free from arrest for engaging in First Amendment activity in 8 retaliation for engaging in that activity where there is no probable cause for the arrest. 9 It was clearly established in 2021 that in the absence of probable cause, a police 10 officer cannot arrest an individual who is engaging in First Amendment activity in 11 retaliation for engaging in that activity. See Nieves, 587 U.S. at 398; Hartman, 547 U.S. 12 at 256. The Court concludes Defendant Newby is not entitled to qualified immunity with 13 respect to Plaintiff’s retaliatory arrest claim. The Court will therefore deny Defendants’ 14 Motion for Summary Judgment as to Plaintiff’s First Amendment claim against Defendant 15 Newby. 16 IT IS ORDERED: 17 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 18 Motion for Summary Judgment (Doc. 77). 19 (2) Defendants’ Motion for Summary Judgment (Doc. 77) is granted in part and 20 denied in part. The Motion is denied as to Plaintiff’s First Amendment retaliatory arrest 21 claim in Count Three against Defendant Newby. In all other respects, the Motion is 22 granted. 23 (3) Counts Two, Four, and Eight are dismissed with prejudice. 24 (4) Defendants City of Mesa, Clark, Destefino, and Adams are dismissed with 25 prejudice. 26 (5) The remaining claim is the First Amendment retaliatory arrest claim in Count 27 Three against Defendant Newby. 28 1 (6) This action is referred by random lot to Magistrate Judge Morrissey for the 2| purpose of conducting a settlement conference. 3 (7) Defendants’ counsel must arrange for all parties to jointly contact the 4| chambers of Magistrate Judge Morrissey at 602-322-7680 within 14 days of the date of | this Order to schedule a settlement conference. 6 Dated this 15th day of August, 2024. 7 8 '

10 _ James A. Teil Org Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28