1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 2:25-cv-01020-JAD-DJA Kylie Krakow, 4 Plaintiff Order Denying Motion to Dismiss 5 v. [ECF No. 9] 6 Joshua Bissell,
7 Defendant
8 Kylie Krakow brings this 42 U.S.C. § 1983 and Nevada constitutional-law action against 9 Nye County Sheriff’s Deputy Joshua Bissell, alleging that he unlawfully seized her and used 10 excessive force during a traffic stop that began after her car briefly touched the shoulder line on 11 an otherwise empty road. Krakow claims that Bissell berated her for crying, pulled her from her 12 car, caused her to fall onto the asphalt, slammed her against the vehicle, and handcuffed her— 13 only to release her without a citation, sobriety test, or criminal charge. 14 Bissell moves to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), 15 contending that Krakow’s complaint describes nothing more than a lawful investigatory stop 16 supported by reasonable suspicion, force appropriate for the circumstances, and conduct 17 protected by qualified and discretionary-act immunity. Because I find that Krakow plausibly 18 alleges constitutional violations, and immunity cannot be resolved on these pleadings alone, I 19 deny Bissell’s motion. 20 21 22 23 1 Background1 2 Just before 1:00 a.m. on November 10, 2024, 19-year-old Krakow was driving home after 3 finishing a late shift as a pizza-delivery driver with her 15-year-old brother—who was training to 4 work at the same restaurant—seated beside her.2 Her car momentarily drifted slightly to the 5 right, briefly and barely touched the white shoulder line, and then immediately corrected course.3
6 No other vehicles were on either side of her car, she was not visibly weaving or driving 7 erratically, and she committed no crime or traffic violation.4 But Bissell and another officer, 8 who had been driving behind Krakow, initiated a traffic stop as she made a right turn.5 9 A. The stop shifts from a routine roadside encounter into a hostile exchange. 10 Krakow alleges that she was already anxious by the time Bissell approached her car door 11 because she was frightened about getting into trouble.6 Because her driver’s side window was 12 broken and would not roll down, she opened her door but remained seated inside the car.7 When 13 Bissell asked how she was doing, Krakow began crying, explained that she was tired and trying 14 to get home, and asked what she had done wrong.8 Bissell then asked why she was crying, and
15 Krakow responded that she was distressed because she did not want to be pulled over.9 16 17 1 These facts are taken from Krakow’s complaint (ECF No. 1) and are not intended as findings of 18 fact. 2 ECF No. 1 at ¶ 6. 19 3 Id. at ¶ 7. 20 4 Id. at ¶¶ 8–10. 21 5 Id. at ¶ 11. 6 Id. at ¶ 12. 22 7 Id. at ¶ 13. 23 8 Id. at ¶ 14. 9 Id. at ¶ 15. 1 Bissell told her that he had stopped her because of her “driving pattern”—that she had 2 crossed the white line and had been driving “like an intoxicated driver,” though acknowledging 3 that he did not smell any alcohol.10 Krakow alleges that Bissell belittled her reaction, asked 4 whether she was crying because of a dispute with her brother, and insisted that being pulled over 5 was no reason to cry.11
6 While holding Krakow’s driver’s license, Bissell asked Krakow’s age, and Krakow 7 pointed to the license and said that she was 19 years old and that “it says it right there.”12 Bissell 8 responded by raising his voice and asking, “Would you stop with the fucking attitude?” and 9 yelling, “Jesus Christ, act like an adult, you’re crying, you’re getting defensive,” and then, when 10 she said that his reaction was impolite, he escalated further with, “Stop with your bullshit, it’s 11 not crazy to get pulled over.”13 When Krakow remarked that his behavior was unprofessional, 12 Bissell shot back, “Don’t tell me what’s fucking professional,” then asked for her insurance and 13 told her—after she requested his badge number—that he didn’t have one because he was a 14 deputy sheriff for the Nye County Sheriff’s Office.14
15 The encounter expanded to Krakow’s brother when Officer Powell moved to the 16 passenger side to question him.15 Concerned for her brother’s safety, Krakow rolled up the 17 passenger window, told him to remain quiet, and said that the officers could direct their 18 19
20 10 Id. at ¶¶ 19, 21. 21 11 Id. at ¶¶ 20, 22–23. 12 Id. at ¶ 24. 22 13 Id. at ¶ 26. 23 14 Id. at ¶¶ 27–28. 15 Id. at ¶ 29. 1 questions to her because she was the driver.16 Bissell yelled at her that if Powell asked her to roll 2 the window down, she was to roll it down, then belittled her as “one emotional wreck.”17 He 3 then mocked her efforts to advocate for herself and her brother by saying, “You guys watch too 4 much TikTok,” questioning her request for his badge number in a sarcastic manner, and using 5 offensive language, including, “That shit is retarded,” before demanding that she exit the vehicle
6 even after she told him that he had everything he needed.18 7 B. Bissell removes Krakow from the car, handcuffs her, and continues questioning her 8 before releasing her.
9 Krakow alleges that Bissell then aggressively ordered her to unbuckle her seatbelt and 10 exit the car, warning that he would forcibly remove her if she did not.19 Frightened, she asked to 11 call her mother, but Bissell denied that request.20 Bissell then reached into the car, grabbed 12 Krakow, and pulled her from the driver’s seat, sending her and her phone to the asphalt.21 He 13 yanked her up from the ground, slammed her against her car, and forcefully placed her in 14 handcuffs.22 Krakow says that she was overwhelmed and began crying and screaming under the 15 combined weight of his behavior and the force he used.23 16 17 18
16 Id. at ¶¶ 30–31. 19 17 Id. at ¶¶ 32–33. 20 18 Id. at ¶¶ 34–36. 21 19 Id. at ¶¶ 36–37. 20 Id. at ¶ 38. 22 21 Id. at ¶ 39. 23 22 Id. at ¶ 40. 23 Id. at ¶ 41. 1 Bissell continued questioning Krakow about intoxication even after handcuffing her, and 2 she repeatedly denied being impaired.24 But Bissell told her that she was being uncooperative, 3 even though she had provided her documentation and answered his questions throughout the 4 stop.25 He kept returning to the premise that her driving had raised concerns about impaired 5 driving and broadened the questioning to narcotics, specifically asking about methamphetamine
6 and marijuana.26 Krakow denied that too and reminded him that she was 19-years old.27 Bissell 7 also looked through the vehicle’s windows, apparently searching for open containers.28 8 While still in handcuffs, Krakow managed to retrieve her phone and call her mother for 9 assistance.29 When Bissell asked what her parents could do for her, Krakow responded that she 10 wanted someone there because he scared her.30 Bissell answered, “Okay, be scared.”31 Bissell 11 eventually removed the handcuffs and told Krakow to go home.32 No sobriety tests were 12 administered, no citation was issued, and no criminal charge followed.33 13 C. Procedural posture 14 Based on these events, Krakow sues Bissell in his individual capacity and brings federal
15 and Nevada constitutional claims for unlawful seizure and excessive force. Bissell moves to 16
17 24 Id. at ¶ 42. 18 25 Id. at ¶ 3. 26 Id. at ¶ 45. 19 27 Id. at ¶ 46. 20 28 Id. at ¶ 47. 21 29 Id. at ¶ 48. 30 Id. at ¶ 48–49. 22 31 Id. 23 32 Id. at ¶ 50. 33 Id. at ¶ 52–53. 1 dismiss all claims, arguing that the complaint alleges only a lawful Terry stop supported by 2 reasonable suspicion, not an arrest, and force that was reasonable under the circumstances. He 3 also invokes qualified immunity on the federal claims and discretionary-act immunity on the 4 state constitutional claims. 5 Discussion
6 Federal Rule of Civil Procedure (FRCP) 8 requires every complaint to contain “[a] short 7 and plain statement of the claim showing that the pleader is entitled to relief.”34 While FRCP 8 8 does not require detailed factual allegations, the properly pleaded claim must contain enough 9 facts to “state a claim to relief that is plausible on its face.”35 10 District courts employ a two-step approach when evaluating a complaint’s sufficiency on 11 a FRCP 12(b)(6) motion to dismiss. The court must first accept as true all well-pleaded factual 12 allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption 13 of truth.36 The court must then consider whether the well-pleaded factual allegations state a 14 plausible claim for relief.37 A claim is facially plausible when the complaint alleges facts that
15 allow the court to draw a reasonable inference that the defendant is liable for the alleged 16 misconduct.38 “A court may not look beyond the complaint to a plaintiff’s moving papers, such 17 as a memorandum in opposition to a defendant’s motion to dismiss.”39 The plaintiff must make 18 direct or inferential factual allegations about “all the material elements necessary to sustain 19
34 Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. 20 Iqbal, 556 U.S. 662, 678–79 (2009). 21 35 Twombly, 550 U.S. at 570. 36 Iqbal, 556 U.S. at 678–79. 22 37 Id. at 679. 23 38 Id. 39 Schneider v. Cal. Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 1 recovery under some viable legal theory,” and a complaint that fails to meet this standard must 2 be dismissed.40 3 A. Krakow plausibly alleges federal and state constitutional violations. 4 The Fourth Amendment prohibits unreasonable searches and seizures, prolonged 5 detention without reasonable suspicion of a crime justifying prolonged detention, and the use of
6 excessive force.41 The Nevada Constitution contains provisions that offer similar protections to 7 those contained within the Fourth Amendment, so I address these claims together under the 8 Fourth Amendment standards.42 9 1. Krakow plausibly alleges an unlawful-seizure claim. 10 Krakow’s first and second causes of action allege an unlawful traffic stop and arrest. 11 Bissell argues that those claims fail at the pleading stage because, even accepting Krakow’s 12 allegations, the complaint describes a lawful traffic stop supported by reasonable suspicion and a 13 permissible investigatory detention.43 He insists that Krakow’s admitted contact with the 14 shoulder line, the late hour, her emotional presentation, and her refusal to follow directions gave
15 16 40 Id. 17 41 U.S. Const. Amend. 4. 18 42 Krakow manually filed footage of the night in support of her opposition to Bissell’s motion that she cites to in her complaint. Bissell argues that I should not consider the body-camera 19 footage on this Rule 12(b)(6) motion because the pleadings are the limit of my review at this stage. ECF No. 16 at 2–3. He contends that Krakow—not he—is the party relying on material 20 outside the complaint by citing and attempting to incorporate unfiled video and still images into her opposition, and he argues that doing so would improperly convert this motion into one for 21 summary judgment. In his view, Krakow’s claims must stand or fall on the complaint alone, and the complaint’s own allegations already establish a lawful Terry stop, not a false arrest or 22 excessive-force violation. Because I resolve this motion based on the allegations within the four corners of the complaint, I need not and do not consider the parties’ competing arguments about 23 the body-camera footage or other materials outside the pleadings. See Fed. R. Civ. P. 12(b)(6). 43 ECF No. 10 at 5–11. 1 him ample grounds to investigate possible impairment, order her out of the car, and briefly 2 handcuff her as part of a lawful Terry stop. 3 A traffic stop is a seizure under the Fourth Amendment, and it is reasonable only if the 4 officer had probable cause to believe a traffic violation occurred or reasonable suspicion of 5 criminal activity.44 Officers may not extend a traffic stop beyond the time reasonably required to
6 complete its mission absent independent reasonable suspicion.45 That mission is narrow; officers 7 may address the traffic violation, conduct ordinary inquiries incident to the stop, and take 8 negligibly burdensome precautions necessary for officer safety.46 Whether officers diligently 9 pursued a means of investigation likely to confirm or dispel their suspicions quickly is a fact- 10 intensive inquiry.47 11 Krakow plausibly alleges that this stop drifted beyond that constitutional curb. Her 12 complaint begins with a modest driving fact and little else: a brief touch of the shoulder line, an 13 immediate correction, no surrounding traffic, no weaving, and no erratic driving. From that 14 point forward, the stop yielded none of the usual marks of an impaired-driving investigation.
15 Krakow says that she denied drinking, denied using drugs, and was told that only her “driving 16 pattern” had drawn attention. She further alleges that Bissell acknowledged that he did not smell 17 alcohol. And despite repeatedly returning to the topic of intoxication, he never administered 18 field-sobriety tests or never even issued a citation. Taking those allegations as true, the 19 20 44 Maryland v. Buie, 494 U.S. 325, 331 (1990); United States v. Garcia, 205 F.3d 1182, 1186 21 (9th Cir. 2000). 22 45 Illinois v. Caballes, 543 U.S. 405, 407 (2005); United States v. Evans, 786 F.3d 779, 788 (9th Cir. 2015). 23 46 Rodriguez v. United States, 575 U.S. 348, 354 (2015). 47 United States v. Sharpe, 470 U.S. 675, 686 (1985). 1 complaint plausibly suggests not a diligently pursued DUI investigation, but an encounter that 2 kept escalating while its objective foundation kept thinning. 3 Bissell’s briefing tries to supply that missing foundation with Krakow’s distress. He 4 repeatedly characterizes her crying, fear, and emotional presentation as part of the constellation 5 of facts that made the stop’s extension reasonable. But the Ninth Circuit has also long
6 recognized that ordinary distress during a police encounter does not, without more, furnish 7 reasonable suspicion of criminal activity.48 The facts as pled do not compel the inference of 8 impairment that Bissell prefers; they just as plausibly support the far more ordinary inference 9 that a young driver was unraveling under the pressure of a late-night stop that became 10 adversarial. 11 2. Krakow plausibly alleges that the force used against her was excessive. 12 Bissell argues that Krakow’s excessive-force claims fail because her allegations, even 13 taken as true, describe only reasonable control measures during a lawful investigatory stop—not 14 constitutionally excessive force.49 To state a claim for excessive force under the Fourth
15 Amendment, a plaintiff must allege facts showing that an officer used more than the force a 16 reasonable and prudent law enforcement officer would use under the circumstances.50 Courts 17 balance “the nature and quality of the intrusion” against the governmental interests at stake, 18 considering the severity of the suspected offense, whether the suspect posed an immediate threat, 19 and whether he was actively resisting or attempting to flee.51 Of those factors, the “most 20 48 United States v. Chavez-Valenzuela, 268 F.3d 719, 726 (9th Cir. 2001), amended, 279 F.3d 21 1062 (9th Cir. 2002), overruled on other grounds by Muehler v. Mena, 544 U.S. 93 (2005). 22 49 ECF No. 10 at 11. 50 Graham v. Connor, 490 U.S. 386, 395 (1989), overruled on other grounds by Saucier v. Katz, 23 533 U.S. 194 (2001). 51 Id. 1 important” is whether the suspect posed an “immediate threat.”52 There must be “objective 2 factors” to justify an officer’s “fear for his safety or the safety of others.”53 3 Bissell insists that the force alleged here was minimal and justified because suspected 4 impaired driving presents a serious public-safety concern, Krakow was emotional, and she did 5 not comply with every direction he gave her.54 To support that argument, he relies on the Ninth
6 Circuit’s holdings in Williamson v. City of National City55 and Jackson v. City of Bremerton.56 7 In Williamson, officers removed a protester from a disrupted city-council meeting after repeated 8 warnings and after the protesters had agreed in advance that they would go limp and refuse to 9 cooperate if arrested.57 Williamson was handcuffed, refused to support her own weight, was 10 pulled backward by her arms and wrists for about twelve seconds, and suffered a sprained wrist, 11 mild swelling, and a torn rotator cuff.58 The Ninth Circuit nevertheless characterized the force as 12 minimal because the officers did not strike her, throw her down, or use pain-compliance 13 techniques or weapons, and because the city retained a low but legitimate interest in restoring 14 order and removing protesters who had deliberately made themselves dead weight.59
16 52 Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010); Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). 17 53 Est. of Strickland v. Nev. Cnty., 69 F.4th 614, 620 (9th Cir. 2023) (cleaned up). 18 54 Bissell also points to Krakow’s sparse injury allegations as further evidence that the force used was slight and thus reasonable. ECF No. 9 at 14. But that is a factual inference in his favor, and 19 this case is still at the pleading stage. While the extent of an injury may bear on the nature and quality of the force used, Krakow need not plead detailed medical harm to state an excessive- 20 force claim. See, e.g., Meredith v. Erath, 342 F.3d 1057, 1063–64 (9th Cir. 2003). 21 55 Williamson v. City of National City, 23 F.4th 1146, 1151 (9th Cir. 2022). 56 Jackson v. City of Bremerton, 268 F.3d 646, 650–52 (9th Cir. 2001). 22 57 Williamson, 23 F.4th at 1151–55. 23 58 Id. 59 Id. 1 In Jackson, officers attempted to arrest a suspect on an outstanding warrant in a public 2 park, but he fled into a crowd of 30 to 50 family members and friends, others tried to shield him, 3 the officers were substantially outnumbered, and the scene deteriorated into shouting and 4 physical altercations.60 After officers warned the crowd that chemical irritant would be used if 5 they did not disperse, Jackson ran in to interfere with an officer’s attempt to control another
6 participant. She was sprayed with the irritant, pushed to the ground during handcuffing, and 7 sustained a fractured finger.61 The Ninth Circuit found the force reasonable because Jackson’s 8 interference posed an immediate threat to officer safety and to the officers’ ability to restore 9 order. 10 But Krakow alleges no facts that would suggest a comparable threat here. It’s true that 11 the governmental interest that Bissell invokes is a legitimate one: a suspected DUI stop can 12 present public-safety concerns. But the facts Krakow pleads, if true, made that concern modest 13 at the start and weaker still by the time Bissell used force. On her telling, Krakow was not 14 weaving through traffic or barreling down the road. She was a frightened 19-year-old driving
15 home from work with her younger brother after briefly touching the shoulder line and correcting 16 course. Once stopped, she gave Bissell her license and insurance, answered his questions, denied 17 drinking or using drugs, and did not try to flee, strike an officer, reach for a weapon, or drive 18 away. She alleges no facts to suggest that, at the moment Bissell pulled her from the car, she 19 posed an immediate threat to officer safety or public safety. 20 Nor does the complaint allege the kind of resistance that drove the outcomes in Bissell’s 21 cases. Krakow says that when Officer Powell moved to question her 15-year-old brother, she 22
23 60 Jackson, 268 F.3d at 651–53. 61 Id. 1 rolled up the passenger window and asked that the officers direct their questions to her instead. 2 And when Bissell ordered her out of the car, she alleges only that she asked to call her mother. 3 Bissell may call that noncompliance, but at this stage the complaint supports the competing 4 inference that Krakow was acting out of fear and protection, not aggression. 5 So what followed, on Krakow’s version, permits the inference that this was not a
6 measured effort to stabilize a dangerous scene, but rather a sudden escalation of force. She 7 alleges that Bissell “forcibly grabbed” her, “dragged her out, causing her to fall onto the asphalt,” 8 then “aggressively pulled her from the ground, slammed her against the vehicle, and forcefully 9 handcuffed her.”62 Taking those allegations as true, as this court must at this juncture, Krakow 10 has plausibly alleged that the force used outpaced the need for it. So I deny the motion to 11 dismiss on those grounds. 12 B. Bissell is not entitled to qualified immunity on Krakow’s federal claims at this stage. 13 Bissell next argues that even if Krakow plausibly alleges her § 1983 claims for false 14 arrest and excessive force, he is entitled to dismissal based on qualified immunity. Qualified
15 immunity protects government officials “from money damages unless a plaintiff pleads facts 16 showing that (1) the official violated a statutory or constitutional right, and (2) the right was 17 ‘clearly established’ at the time of the challenged conduct.”63 Qualified immunity can be 18 addressed at the motion-to-dismiss stage if the court “can determine, based on the complaint 19 20
21 62 Bissell argues, without supporting caselaw, that Krakow’s use of terms like “slammed” is conclusory and therefore not entitled to the presumption of truth at the pleading stage. Even if 22 “slammed” carries some rhetorical force, the complaint does not rely on that word alone. It alleges a sequence of concrete physical acts that plausibly describes unconstitutional force. 23 63 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 1 itself, that qualified immunity applies.”64 Bissell says this is such a case because no clearly 2 established law would have told a reasonable officer that his conduct was unconstitutional. 3 For a right to be clearly established, it must be “sufficiently clear that every reasonable 4 official would understand that what he is doing violates that right.”65 The “rule must be settled 5 law, which means it is dictated by controlling authority or a robust consensus of cases of
6 persuasive authority.”66 And the right may not be characterized “at a high level of generality.”67 7 Instead, “[t]he dispositive question is whether the violative nature of particular conduct is clearly 8 established.”68 The takeaway from the Supreme Court’s recent qualified-immunity 9 jurisprudence is that a court’s analysis of the clearly-established-law prong “must be undertaken 10 in light of the specific context of the case, not as a broad general proposition”69 11 1. Bissell isn’t entitled to qualified immunity on Krakow’s unlawful-seizure claim 12 because she alleges only a brief touch of the shoulder line.
13 Krakow cites to the Ninth Circuit’s holding in United States v. Colin70 to support her 14 proposition that “it has long been held in the Ninth Circuit that a driver briefly touching a road’s 15 painted lane does not give officers reasonable suspicion to pull a driver over and conduct a traffic 16 stop.”71 Bissell responds that Colin is inapposite because, in his view, it is a narrow lane-change 17
18 64 Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023). 19 65 Smith v. Agdeppa, 81 F.4th 994, 1001 (9th Cir. 2023) (quoting Mullenix v. Luna, 577 U.S. 7, 11–12 (2015)). 20 66 Id. 21 67 Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at 742). 68 Id. 22 69 Id. 23 70 United States v. Colin, 314 F.3d 439 (9th Cir. 2002). 71 ECF No. 1 at 6, ¶ 54. 1 case about lawful lane changes and California’s lane-straddling statute—not a clearly established 2 rule for suspected-DUI stops involving shoulder encroachments.72 He thus contends that United 3 States v. Alvarez,73 a California district court case, is the better comparator. 4 Bissell’s attempt to cabin Colin to California’s lane-straddling statute reads the case too 5 narrowly. True, Colin addressed whether the officer had reasonable suspicion to stop a car for
6 violating California’s lane-straddling statute.74 But the Ninth Circuit separately addressed the 7 officer’s alternative justification: suspected DUI.75 During the 35-to-45 seconds that the officer 8 watched the car, the car drifted right until its wheels rode the solid white line at the lane’s outer 9 edge for about ten seconds.76 It then eased back across the lane, signaled, and moved into the 10 left lane, where it drifted left again and rode the solid yellow line for about ten seconds before 11 returning to the lane’s center.77 The car stayed within the speed limit, signaled its lane changes, 12 and otherwise drove normally.78 The panel held that those observations did not create reasonable 13 suspicion of impaired driving because they showed neither “pronounced weaving” nor weaving 14 over a “substantial distance.”79 And it warned that if an officer could suspect intoxication
15 whenever a driver failed to follow “a perfect vector down the highway,” “a substantial portion of 16 the public would be subject each day to an invasion of their privacy.”80 The officer’s failure to 17
18 72 ECF No. 16 at 6. 73 United States v. Alvarez, 226 F. Supp. 3d 1059 (E.D. Cal. 2016). 19 74 Colin, 314 F.3d at 443–45. 20 75 Id. at 445–47. 21 76 Id. at 441. 77 Id. 22 78 Id. 23 79 Id. at 446. 80 Id. 1 ask whether the driver had been drinking or to conduct field-sobriety testing only reinforced the 2 court’s conclusion that the stop lacked reasonable suspicion.81 3 Alvarez also does not help Bissell because it involved the fact missing here: an actual 4 departure from the lane. The officer in Alvarez saw the car cross the white line by about ten 5 inches, drive onto the rumble strip, jerk back into the lane, return to the outer white line, and
6 travel on that line for 50 to 100 feet while negotiating a curve.82 The Alvarez court called the 7 reasonable-suspicion issue “very close” and distinguished Colin because the officer in Alvarez 8 saw the vehicle cross the right lane line by about ten inches onto the rumble strip with difficulty 9 negotiating a curve, while the vehicle in Colin merely drove on the lane lines without crossing 10 outside them.83 Krakow alleges the latter; she briefly and barely touched the white shoulder line 11 and immediately corrected. 12 Bissell’s remaining facts do not justify the stop because they came too late. Krakow’s 13 crying, distress, and later interaction with the officers may bear on other parts of the encounter, 14 but they cannot retroactively supply the reasonable suspicion that was missing when Bissell
15 activated his lights. Under Colin, that was not enough to suspect DUI. So the qualified- 16 immunity question cannot be resolved on the pleadings. 17 2. Bissell is not entitled to qualified immunity on Krakow’s excessive-force claim 18 at this stage.
19 Bissell also seeks qualified immunity on Krakow’s excessive-force claim, arguing that no 20 case clearly prohibits an officer from removing a noncompliant, emotionally distraught driver 21 22 81 Id. 23 82 Alvarez, 226 F. Supp. 3d at 1062. 83 Id. at 1068. 1 from a vehicle and briefly handcuffing her during a late-night DUI investigation. That framing, 2 however, assumes the facts in Bissell’s favor. At this stage, I must take Krakow’s version as true 3 and ask the qualified-immunity question through that lens: whether existing precedent would 4 have put a reasonable officer on notice that forcibly extracting, slamming against a vehicle, and 5 handcuffing a motorist who was not threatening, fleeing, or otherwise presenting objective signs
6 of danger was unlawful. 7 The Ninth Circuit’s decision in Liberal v. Estrada and its progeny help answer that 8 question.84 In Liberal, officers argued that the driver’s turn into a darkened alley near a 9 dumpster suggested that he was trying to evade police, hide criminal activity, or dispose of 10 contraband.85 But the court held that those suspicions did not make the initial stop lawful or 11 render the later force reasonable as a matter of law.86 Construing the facts in the driver’s favor, 12 the stop lacked reasonable suspicion, and the force came only after he had provided his license 13 and registration and the records check revealed nothing suspicious.87 Because the driver posed 14 no immediate safety threat, was not actively fleeing, and was not shown to be armed or
15 dangerous, the panel held that the officers could not reasonably stop and frisk him—much less 16 pull him from the car, shove him against the door, and handcuff him for about half an hour.88 17 In Hopson v. Alexander, the Ninth Circuit applied Liberal but distinguished its facts.89 In 18 Hopson, officers approached a parked vehicle with guns drawn, forcibly removed the driver, and 19
84 Liberal v. Estrada, 632 F.3d 1064, 1081 (9th Cir. 2011), abrogated on other grounds by 20 Hampton v. California, 83 F.4th 754 (9th Cir. 2023). 21 85 Id. at 1068, 1079. 86 Id. at 1079. 22 87 Id. 23 88 Id. at 1078–79. 89 Hopson v. Alexander, 71 F.4th 692, 695 (9th Cir. 2023). 1 handcuffed him based on their belief that he and his associate were casing a gas station for an 2 imminent armed robbery.90 The panel acknowledged that forceful extraction and handcuffing 3 may violate the Fourth Amendment under some circumstances, but the risk profile present in 4 Hopson was fundamentally different than the government interest presented in Liberal.91 The 5 officers observed conduct that they interpreted based on training and experience as “casing”
6 behavior for an imminent armed robbery, including repeated repositioning of a vehicle, scanning 7 the surroundings, and an exchange between two individuals that suggested coordinated activity.92 8 Those cases frame the problem with Bissell’s qualified-immunity argument. He 9 characterizes Krakow as noncompliant and emotionally distraught during a late-night DUI 10 investigation. But the complaint alleges that the DUI investigation rested on a brief and 11 corrected touch of the shoulder line, and that before Bissell used force, Krakow had provided her 12 license, denied alcohol and drug use, and posed no objective safety threat. She did not flee, 13 reach for a weapon, threaten the officers, or physically resist. Her alleged conduct was crying, 14 questioning Bissell’s behavior, asking for identifying information, and telling her brother not to
15 answer questions. Taking Krakow’s allegations as true, this case looks more like Liberal than 16 Hopson, so I cannot determine at this stage whether Bissell is entitled to qualified immunity. He 17 may renew those arguments at summary judgment. 18
21 22 90 Id. at 695–96. 23 91 See id. at 701–04. 92 Id. at 699. 1 C. Bissell is not entitled to discretionary immunity at this stage for the Nevada 2 Constitution claims.
3 With the federal claims addressed, I turn to the remaining state-constitution claims. 4 Bissell argues that even if Krakow has sufficiently pled them, they are barred by discretionary- 5 act immunity. Nevada law precludes claims against state officers based on acts or omissions 6 relating to a “discretionary function,” even if that discretion is abused.93 “But decisions made in 7 bad faith, such as abusive conduct resulting from hostility or willful or deliberate disregard for a 8 citizen’s rights, aren’t protected under the immunity statute even if they arise out of a 9 discretionary function.”94 Bissell says his conduct falls comfortably within the statute. In his 10 view, he was exercising ordinary police judgment during a late-night DUI investigation— 11 responding to suspicious driving, managing an emotional and noncompliant driver, and using 12 only the force reasonably necessary to control a tense roadside encounter. Bissell asserts that 13 those were discretionary decisions made in good faith and that Krakow has not pled 14 nonconclusory facts showing otherwise. 15 Krakow responds that her allegations place this case outside the statute’s protection 16 because they plausibly describe action taken in willful or deliberate disregard of her rights. She 17 alleges that instead of dispelling his suspicion, he belittled her for crying, insisted she had no 18 reason to be upset, mocked her request for accountability, cursed at her, and escalated the 19 encounter. He told her to “stop with the fucking attitude,” “act like an adult,” and “stop with 20 your bullshit,” mocked her by saying, “You guys watch too much TikTok,” and, after dragging 21 her from the car, dismissed her fear with, “okay, be scared.” And after all of that, he did not 22
23 93 Nev. Rev. Stat. § 41.032(2). 94 Jones v. L.V. Metro. Police Dep’t, 873 F.3d 1123, 1133 (9th Cir. 2017). administer sobriety tests or issue a citation; he simply removed the handcuffs and told her to go 2\}home. Those facts plausibly support Krakow’s theory, so dismissal on that ground is premature. 3 Conclusion 4 IT IS THEREFORE ORDERED that Bissell’s motion to dismiss [ECF No. 9] is 5] DENIED. 6 7 NN Le US. ma ees Dorsey 8 June 2, 2026 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23