1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 NICHOLAS HANSEN, Case No.: 2:19-cv-02234-APG-BNW
4 Plaintiff, Order
5 v. [ECF Nos. 55, 60]
6 THEODOR SCHAEFER, DARREL DAVIES, JOE LOMBARDO, CAESARS 7 ENTERTAINMENT CORPORATION, and CORNER INVESTMENT COMPANY, 8 LLC,
9 Defendants.
10 Plaintiff Nicholas Hansen sues Caesars Entertainment Corporation and Corner 11 Investment Company, LLC (collectively, Caesars) for false imprisonment. Hansen argues that 12 Caesars was complicit in his improper detention when he was arrested by police officers. The 13 officers held Hansen in a security room located in the Flamingo Hotel (which Caesars owns) 14 while they completed his arrest paperwork.1 Caesars moves for summary judgment, arguing that 15 the officers had probable cause to arrest Hansen, which is a defense to false imprisonment. 16 Hansen responds that the officers lacked probable cause to arrest him because they 17 misunderstood the ordinance under which he was arrested, and that even if there was probable 18 cause, he was falsely imprisoned pre-arrest. 19 I grant Caesars’s motion. Even viewing the evidence in the light most favorable to 20 Hansen, a reasonable jury could not conclude that the officers lacked probable cause to arrest 21 him, or that he was falsely imprisoned pre-arrest. 22 23
1 I will address Hansen’s claims against the officers by separate order. 1 I. BACKGROUND 2 In 2017, Las Vegas Metropolitan Police Department (Metro) officers were in the 3 surveillance room of the Flamingo Hotel where they watched Hansen through a live security- 4 camera feed. ECF No. 82-1 at 3. Hansen was standing on the sidewalk outside the Cromwell
5 Hotel, holding a large sign, and advertising for local strip clubs. Id. at 2; ECF No. 60-10 at 1:14, 6 2:33. His sign read “[s]trip clubs[,] it is unavoidable[,] [i]t is your destiny,” on one side, and 7 “[h]urray for boobies,” on the other. ECF No. 60-10 at 1:14, 2:33. Officer Schaefer testified that 8 Hansen stood “in front of [an] escalator, almost right in line with one of the handrails.” ECF No. 9 82-2 at 3. Officer Davies testified that, because the pedestrian zone was “busy” and there were 10 “a lot of people along the boulevard,” Hansen was “impeding the flow of traffic,” particularly on 11 the escalator. ECF No. 82-1 at 5. 12 After the officers saw that “multiple people [were] going around [Hansen,] . . . causing a 13 backup [of] people on the escalator,” they concluded that the situation risked injury to passersby, 14 so they arrested him under Clark County Code of Ordinances (CCCO) § 16.11.090.2 Id.; ECF
15 No. 60-1 at 1. The officers held Hansen in a security room located in the nearby Flamingo Hotel 16 while they completed his arrest paperwork. ECF No. 60-1 at 2; ECF No. 82-2 at 6. Eventually, 17 Hansen was transported to the Clark County Detention Center. ECF No. 82-1 at 6. Hansen 18 claims that he was falsely imprisoned while in custody in the Flamingo Hotel security room. 19 / / / / 20 / / / / 21
22 2 The Metro officers cited Hansen for two ordinance violations under CCCO § 16.11: obstructing a public sidewalk and storing materials on a public sidewalk. ECF No. 61-2 at 2. I need not 23 reach the second violation because I conclude that the Metro officers had probable cause to arrest Hansen for obstruction. 1 II. ANALYSIS 2 Summary judgment is proper where a movant shows that “there is no genuine dispute as 3 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 4 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.”
5 Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). A dispute is genuine if “the evidence is 6 such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The 7 moving party bears the initial burden of informing the court of the basis of its motion and the 8 absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the 9 nonmoving party has the burden of proof at trial, the moving party need only point out “that 10 there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325; 11 see also Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000) (stating that 12 the moving party can meet its initial burden by “pointing out through argument . . . the absence 13 of evidence to support plaintiff’s claim”). 14 Once the moving party carries its burden, the nonmoving party must “make a showing
15 sufficient to establish the existence of [the disputed] element to that party’s case.” Celotex, 477 16 U.S. at 322. I view the evidence and reasonable inferences in the light most favorable to the 17 nonmoving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 18 2008). 19 Under Nevada law, false imprisonment is “an unlawful violation of the personal liberty of 20 another, and consists [of] confinement or detention without sufficient legal authority.” Lerner 21 Shops of Nev., Inc. v. Marin, 423 P.2d 398, 400 (Nev. 1967). “There is no false imprisonment 22 where [an] accused is imprisoned under [a] valid legal process.” Nelson v. City of Las Vegas, 665 23 P.2d 1141, 1144 (Nev. 1983) (internal quotation marks omitted). An arrest supported by 1 probable cause amounts to detention under a valid legal process, and it cannot give rise to a 2 claim for false imprisonment. See Hernandez v. City of Reno, 634 P.2d 668, 671 (Nev. 1981) 3 (affirming dismissal of false imprisonment claims where police had probable cause to arrest). 4 “Probable cause exists when, under the totality of the circumstances known to the
5 arresting officers (or within the knowledge of the other officers at the scene), a prudent person 6 would believe the suspect had committed a crime.” Blankenhorn v. City of Orange, 485 F.3d 7 463, 471 (9th Cir. 2007) (quotation omitted). “[P]robable cause means [a] fair probability, not 8 [a] certainty or even a preponderance of the evidence.” United States v. Gourde, 440 F.3d 1065, 9 1069 (9th Cir. 2006) (en banc) (quotation omitted). It is “not a high bar.” Kaley v. United States, 10 571 U.S. 320, 338 (2014). 11 Even reasonable mistakes of law and fact can justify probable cause. See, e.g., Heien v. 12 N.C., 574 U.S. 54, 60-62 (2014) (“To be reasonable is not to be perfect . . . .”). For example, “if 13 officers with probable cause to arrest a suspect mistakenly arrest an individual matching the 14 suspect’s description, neither the seizure nor an accompanying search of the arrestee would be
15 unlawful.” Id. at 61. The inquiry is based on the information “known to the arresting officer at 16 the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The inquiry is 17 objective. Id. at 153 (“Our cases make clear that an arresting officer’s state of mind (except for 18 the facts that he knows) is irrelevant to the existence of probable cause.”). In civil cases, the 19 existence of probable cause is generally a question of fact for the jury.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 NICHOLAS HANSEN, Case No.: 2:19-cv-02234-APG-BNW
4 Plaintiff, Order
5 v. [ECF Nos. 55, 60]
6 THEODOR SCHAEFER, DARREL DAVIES, JOE LOMBARDO, CAESARS 7 ENTERTAINMENT CORPORATION, and CORNER INVESTMENT COMPANY, 8 LLC,
9 Defendants.
10 Plaintiff Nicholas Hansen sues Caesars Entertainment Corporation and Corner 11 Investment Company, LLC (collectively, Caesars) for false imprisonment. Hansen argues that 12 Caesars was complicit in his improper detention when he was arrested by police officers. The 13 officers held Hansen in a security room located in the Flamingo Hotel (which Caesars owns) 14 while they completed his arrest paperwork.1 Caesars moves for summary judgment, arguing that 15 the officers had probable cause to arrest Hansen, which is a defense to false imprisonment. 16 Hansen responds that the officers lacked probable cause to arrest him because they 17 misunderstood the ordinance under which he was arrested, and that even if there was probable 18 cause, he was falsely imprisoned pre-arrest. 19 I grant Caesars’s motion. Even viewing the evidence in the light most favorable to 20 Hansen, a reasonable jury could not conclude that the officers lacked probable cause to arrest 21 him, or that he was falsely imprisoned pre-arrest. 22 23
1 I will address Hansen’s claims against the officers by separate order. 1 I. BACKGROUND 2 In 2017, Las Vegas Metropolitan Police Department (Metro) officers were in the 3 surveillance room of the Flamingo Hotel where they watched Hansen through a live security- 4 camera feed. ECF No. 82-1 at 3. Hansen was standing on the sidewalk outside the Cromwell
5 Hotel, holding a large sign, and advertising for local strip clubs. Id. at 2; ECF No. 60-10 at 1:14, 6 2:33. His sign read “[s]trip clubs[,] it is unavoidable[,] [i]t is your destiny,” on one side, and 7 “[h]urray for boobies,” on the other. ECF No. 60-10 at 1:14, 2:33. Officer Schaefer testified that 8 Hansen stood “in front of [an] escalator, almost right in line with one of the handrails.” ECF No. 9 82-2 at 3. Officer Davies testified that, because the pedestrian zone was “busy” and there were 10 “a lot of people along the boulevard,” Hansen was “impeding the flow of traffic,” particularly on 11 the escalator. ECF No. 82-1 at 5. 12 After the officers saw that “multiple people [were] going around [Hansen,] . . . causing a 13 backup [of] people on the escalator,” they concluded that the situation risked injury to passersby, 14 so they arrested him under Clark County Code of Ordinances (CCCO) § 16.11.090.2 Id.; ECF
15 No. 60-1 at 1. The officers held Hansen in a security room located in the nearby Flamingo Hotel 16 while they completed his arrest paperwork. ECF No. 60-1 at 2; ECF No. 82-2 at 6. Eventually, 17 Hansen was transported to the Clark County Detention Center. ECF No. 82-1 at 6. Hansen 18 claims that he was falsely imprisoned while in custody in the Flamingo Hotel security room. 19 / / / / 20 / / / / 21
22 2 The Metro officers cited Hansen for two ordinance violations under CCCO § 16.11: obstructing a public sidewalk and storing materials on a public sidewalk. ECF No. 61-2 at 2. I need not 23 reach the second violation because I conclude that the Metro officers had probable cause to arrest Hansen for obstruction. 1 II. ANALYSIS 2 Summary judgment is proper where a movant shows that “there is no genuine dispute as 3 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 4 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.”
5 Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). A dispute is genuine if “the evidence is 6 such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The 7 moving party bears the initial burden of informing the court of the basis of its motion and the 8 absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the 9 nonmoving party has the burden of proof at trial, the moving party need only point out “that 10 there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325; 11 see also Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000) (stating that 12 the moving party can meet its initial burden by “pointing out through argument . . . the absence 13 of evidence to support plaintiff’s claim”). 14 Once the moving party carries its burden, the nonmoving party must “make a showing
15 sufficient to establish the existence of [the disputed] element to that party’s case.” Celotex, 477 16 U.S. at 322. I view the evidence and reasonable inferences in the light most favorable to the 17 nonmoving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 18 2008). 19 Under Nevada law, false imprisonment is “an unlawful violation of the personal liberty of 20 another, and consists [of] confinement or detention without sufficient legal authority.” Lerner 21 Shops of Nev., Inc. v. Marin, 423 P.2d 398, 400 (Nev. 1967). “There is no false imprisonment 22 where [an] accused is imprisoned under [a] valid legal process.” Nelson v. City of Las Vegas, 665 23 P.2d 1141, 1144 (Nev. 1983) (internal quotation marks omitted). An arrest supported by 1 probable cause amounts to detention under a valid legal process, and it cannot give rise to a 2 claim for false imprisonment. See Hernandez v. City of Reno, 634 P.2d 668, 671 (Nev. 1981) 3 (affirming dismissal of false imprisonment claims where police had probable cause to arrest). 4 “Probable cause exists when, under the totality of the circumstances known to the
5 arresting officers (or within the knowledge of the other officers at the scene), a prudent person 6 would believe the suspect had committed a crime.” Blankenhorn v. City of Orange, 485 F.3d 7 463, 471 (9th Cir. 2007) (quotation omitted). “[P]robable cause means [a] fair probability, not 8 [a] certainty or even a preponderance of the evidence.” United States v. Gourde, 440 F.3d 1065, 9 1069 (9th Cir. 2006) (en banc) (quotation omitted). It is “not a high bar.” Kaley v. United States, 10 571 U.S. 320, 338 (2014). 11 Even reasonable mistakes of law and fact can justify probable cause. See, e.g., Heien v. 12 N.C., 574 U.S. 54, 60-62 (2014) (“To be reasonable is not to be perfect . . . .”). For example, “if 13 officers with probable cause to arrest a suspect mistakenly arrest an individual matching the 14 suspect’s description, neither the seizure nor an accompanying search of the arrestee would be
15 unlawful.” Id. at 61. The inquiry is based on the information “known to the arresting officer at 16 the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The inquiry is 17 objective. Id. at 153 (“Our cases make clear that an arresting officer’s state of mind (except for 18 the facts that he knows) is irrelevant to the existence of probable cause.”). In civil cases, the 19 existence of probable cause is generally a question of fact for the jury. Gasho v. United States, 39 20 F.3d 1420, 1428 (9th Cir. 1994). However, if there is no genuine issue of fact even when 21 viewing the evidence in the light most favorable to the nonmoving party, then “summary 22 judgment is appropriate if no reasonable jury could find an absence of probable cause under the 23 facts.” Id. 1 The CCCO provides that “no obstructive use, other than a permitted obstructive use,[3] 2 shall be permitted upon any sidewalk . . . if [it] would: (a) [c]ause the [level of service] for the 3 sidewalk to decline below [level] C; or (b) [r]esult in a significant threat to or degradation of the 4 safety of pedestrians.” Clark Cnty. Code Ords. §§ 16.11.035(a), (b). Level C exists when
5 pedestrian flow is limited to ten people or less per minute, per foot. Id. §§ 16.11.020(b), (f). The 6 CCCO further provides that “[a]ny person who violates any of the provisions of this chapter is 7 guilty of a misdemeanor.” Id. § 16.11.090. 8 Caesars argues that Hansen was never falsely imprisoned because the Metro officers had 9 probable cause to arrest him for obstructing the sidewalk. Hansen responds that the officers 10 lacked probable cause under the ordinance because they failed to calculate the level of service 11 attributable to his conduct, and they admitted in their depositions that the level of service did not 12 decline below level C. 13 Viewing the facts in the light most favorable to Hansen, a reasonable jury could not 14 conclude that the officers lacked probable cause to arrest him under CCCO § 16.11.090. The
15 officers observed Hansen on the sidewalk for approximately 40 minutes. ECF No. 60-1 at 1-2. 16 During that time, they saw “multiple people going around [him] . . . causing a backup [of] people 17 on the escalator.” ECF No. 82-1 at 5. They also witnessed Hansen engaging passersby in 18 conversation, forcing “people coming off the escalators . . . to walk around them.” Id. Based on 19 these observations and the totality of information available to them, the officers concluded that 20 the situation risked injury to passersby, so they arrested him. Id.; ECF No. 60-1 at 1. They 21
22 3 Hansen does not argue that his conduct amounted to a permitted obstructive use. But those uses include construction, repair, the placement of public safety equipment, the placement of 23 licensed news racks, and uses that are protected by the National Labor Relations Act. Clark Cnty. Code Ords. §§ 16.11.020(g)(1)-(5). 1 marked on Hansen’s citation that he “did obstruct, block, hinder, or interfere with pedestrian 2 passage . . . which resulted in a threat or degradation to the safety of pedestrians,” thereby 3 invoking the ordinance subsection pertaining to pedestrian safety and not the subsection 4 pertaining to level of service. ECF No. 61-2 at 2. Hansen offers no evidence that he did not
5 obstruct pedestrian traffic near the escalator or otherwise degrade pedestrian safety, and the 6 officers did not need to suspect or prove a decline in level of service to establish probable cause 7 under CCCO § 16.11.035(b). Based on the evidence Hansen provides, the officers had probable 8 cause to arrest, and Hansen was not falsely imprisoned post-arrest. 4 A reasonable jury could not 9 conclude otherwise. 10 Hansen argues that, even if probable cause supported his arrest, he was falsely 11 imprisoned in the Flamingo during an excessively long pre-arrest detention. But a reasonable 12 jury could not reach this conclusion because Hansen was placed under arrest at the outset of the 13 incident. See ECF No. 60-9 at 1:01 (showing that, before officers took Hansen into the Flamingo, 14 they approached him on the street, handcuffed him, and immediately explained that he was under
15 arrest); see also ECF No. 82-1 at 6 (“We decided to arrest [Hansen] when we made contact with 16 him and then we put him in handcuffs.”). There is no genuine dispute that Hansen was placed 17 under arrest during his first contact with officers on the street (and before they entered the 18 19
4 Flamingo Hotel surveillance footage separately supports the conclusion that the officers had 20 probable cause to arrest Hansen for violating the ordinance. See, e.g., ECF No. 60-6 at 21:23:11, 21:52:16 (showing congestion near an escalator as multiple pedestrians either pause and turn to 21 observe Hansen, or otherwise walk around him); id. at 21:14:21, 21:15:00, 21:18:06, 21:19:33, 21:20:20, 21:27:45-28:00; 21:49:26, 21:51:54, 21:56:07, 21:58:27 (showing pedestrians dip their 22 heads or adjust their courses to avoid Hansen’s sign); see also Clark Cnty. Code Ord. §§ 16.11.020(e)(3), (7) (providing that holding a sign and “delaying, hindering, blocking, 23 hampering, or interfering with pedestrian passage” constitutes an obstructive use of a public sidewalk). 1}| Flamingo), so there was no pre-arrest detention inside the Flamingo during which Hansen could have been falsely imprisoned. 3 Tl. CONCLUSION 4 I THEREFORE ORDER that defendants Corner Investment Company, LLC and Caesars Entertainment Corporation’s motion for summary judgment (ECF No. 60) is GRANTED. 6 I FURTHER ORDER that defendants Corner Investment Company, LLC and Caesars 7|| Entertainment Corporation’s motion for summary judgment (ECF No. 55) is DENIED as moot. 8 DATED this 24th day of March, 2022. 9
'0 ANDREWP.GORDON. SOS UNITED STATES DISTRICT JUDGE
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