Manriquez v. Superior, Town of

• Court: District Court, D. Arizona
• Decided: September 16, 2020
• Docket: 2:18-cv-02026
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Richard Manriquez, No. CV-18-02026-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Town of Superior, et al.,

13 Defendants. 14 15 Pending before the Court is a motion for summary judgment filed by Defendants 16 Joel Ensley, Bryan Lawrence, Richard Mueller, and Anthony Doran (collectively, 17 “Defendants”). (Doc. 65.) They argue that (1) Plaintiff Richard Manriquez’s 42 U.S.C. 18 § 1983 claims for excessive force and an illegal search are barred by Heck v. Humphrey, 19 512 U.S. 477 (1994), (2) they are entitled to qualified immunity, and (3) Manriquez has 20 failed to properly support some of his claims for damages. For the following reasons, the 21 motion will be granted in part and denied in part. 22 BACKGROUND 23 I. Factual Background 24 A. The Search Of The Motel Room 25 At the time of the events in question, Defendants were all police officers employed 26 by the Town of Superior (the “Town”). On August 20, 2016, Lawrence pulled over a truck 27 occupied by non-party John Ray Soriano and another non-party. (Doc. 76-1 at 29.) 28 Lawrence performed an outside sweep of the vehicle with his police dog, Ace, who alerted 1 to the possible presence of drugs. (Id.) This led Lawrence, with the assistance of Ensley 2 and several other officers, to search the car. (Id.) The search revealed a .22 caliber pistol, 3 a small quantity of marijuana, and what Lawrence identified as a meth pipe. (Id.) The 4 officers arrested Soriano and the other occupant. (Id.) 5 When the officers searched Soriano incident to his arrest, they discovered a key to 6 a room at the Copper Mountain Motel. (Id. at 36.) Soriano had been the target of several 7 months’ worth of investigations into “the sale of dangerous drugs,” with “numerous 8 contacts” made in the area of the Copper Mountain Motel that led to drug-related arrests. 9 (Id. at 31.) With the discovery of the room key, the officers decided to obtain a search 10 warrant for Soriano’s motel room. (Id.) 11 Ensley prepared an affidavit in support of the search warrant, which he obtained 12 telephonically from a justice of the peace. (Doc. 76-1 at 41-43 [affidavit].) The resulting 13 warrant provided: 14 Proof by affidavit having been made . . . by Officer C. Ensley . . . , I am satisfied that there is probable cause to believe that . . . on the premises known 15 as: 577 W. Kiser Room #1 Superior AZ 85173, known as the Copper 16 Mountain Motel . . . there is now [evidence of drug trafficking]. . . . YOU ARE THEREFORE COMMANDED . . . to make a search of the above 17 named . . . premises. 18 (Id. at 45-46.) 19 At around 9:45 p.m., Defendants searched Soriano’s motel room pursuant to the 20 warrant. (Id. at 36.) Inside, they found four individuals, who they detained while searching 21 the room. (Id.) This search turned up several small quantities of marijuana, a “shard” of 22 meth, and other drug paraphernalia. (Id. at 36-37.) One of the occupants of the room 23 claimed the drugs belonged to Soriano. (Id.) After interviewing the four occupants, and 24 based on the results of the search, Defendants arrested three of the four. (Id. at 36, 38.) 25 B. The Attempt To “Amend” The Warrant To Cover 711 W. Sonora 26 After the search, Ensley called the justice of the peace who had issued the search 27 warrant. (Id. at 37.) Ensley’s purpose in making this call was to obtain permission to 28 “amend” the warrant to authorize a search at a different location—a home located at 711 1 W. Sonora. (Id.) In his initial search warrant affidavit, Ensley had described the property 2 at 711 W. Sonora as “the primary residence of John Ray Soriano and his uncle, Richard 3 ‘Fiti’ Manriquez,” and had avowed that he “and his coworkers” were “extremely familiar” 4 with it. (Id. at 42.) The conversation during the phone call went as follows: 5 Ensley: Hey, this is Christian Ensley from the Superior PD. Good evening. How are you? . . . We . . . would like to amend the search warrant to include 6 another location, which would be the . . . suspect’s primary residence, which 7 was discussed in the affidavit, which is 711 West Sonora. . . . That’s what we’d like to do at this time. We – we’ve executed the search warrant for the 8 primary location listed, and . . . we’d like to try the . . . other residence that 9 was . . . articulated in the affidavit, his primary residence over on Sonora. 10 Justice Of The Peace: All right. Ensley: Do we have your permission to amend the search warrant? 11 Justice Of The Peace: Yeah, go ahead and amend it. 12 Ensley: Okay. Are we – it would still serve that right now as one continuous 13 search warrant? . . . That’s okay? 14 Justice Of The Peace: That’s fine. 15 (Doc. 68-7 at 32-33.)1 16 The warrant itself, however, was never modified to identify 711 W. Sonora as a 17 location that could be searched. (Id. at 45-46.) Instead, Defendants simply reused the 18 original warrant as their justification for searching the home at 711 W. Sonora. 19 C. The Conflicting Accounts Of Defendants’ Encounter With Manriquez 20 Defendants arrived at 711 W. Sonora at approximately 11:30 p.m. (Id. at 48.) The 21

22 1 One of the exhibits to Defendants’ motion is a document entitled “Addendum for Amended Warrant.” (Doc. 76-1 at 48.) This unsigned document, which states that it was 23 prepared by Ensley, purports to identify three reasons why there was probable cause to conduct a search of 711 W. Sonora: (1) it was “a location known for drug-related traffic,” 24 (2) Ensley “had conducted several investigations involving” drugs at that location and believed that drug-related evidence of would be found there, and (3) that location was the 25 “known residence of both Richard ‘Fiti’ Manriquez and his nephew, John Ray Soriano, both men believed to be involved in the sale of Dangerous Drugs.” (Id.) None of this 26 information, however, was conveyed to the justice of the peace at the time Ensley sought verbal permission to amend the warrant—as noted above, the transcript of Ensley’s 27 telephone call to the justice of the peace reveals that Ensley merely stated that 711 W. Sonora was Soriano’s “primary residence.” (Doc. 68-7 at 32-33.) Additionally, the time 28 stamp at the top of the “Addendum” suggests it was not provided to the justice of the peace until August 26, 2016, which was six days after the search. (Doc. 76-1 at 48.) 1 parties offer diverging accounts of what happened next. 2 1. Defendants’ Account 3 In Defendants’ telling, the officers approached the home and began to knock on the 4 door. (Id. at 18 [Lawrence trial testimony].) When Manriquez opened the door, 5 Defendants announced they were police officers, informed Manriquez they had a warrant 6 to search his home, and asked him to step outside. (Id. at 18-19.) Manriquez became 7 “belligerent” and cursed at Lawrence as Lawrence reached for his arm. (Id. at 10-11.) 8 Manriquez then “jerked away” from Lawrence, and when Lawrence reached back to regain 9 control, they both ended up falling to the ground. (Id.) 10 At that point, Mueller moved to assist Lawrence in restraining Manriquez on the 11 ground out of a concern for officer safety—he believed that continuing to linger in the 12 doorway created a “fatal funnel” situation where unannounced inhabitants of the house 13 could fire upon Defendants from any angle. (Doc. 76-2 at 9-10.) At the same time, Ensley 14 moved to restrain Manriquez’s legs. (Doc. 76-1 at 21.) 15 Next, Defendants employed a variety of “control” techniques, which included “soft- 16 hand techniques” such as manipulation of pressure points, as well as close-handed strikes 17 to Manriquez’s upper torso. (Doc. 76-1 at 12; Doc. 76-2 at 15-16.) A taser was also 18 deployed. Doran wrote in a police report that the taser had an “instant effect” in stopping 19 Manriquez’s resistance (Doc. 76-2 at 28), but Mueller and Manriquez both indicated the 20 taser missed (Doc. 76-2 at 12; Doc. 68-5 at 8-9.) 21 The combined efforts of Defendants eventually subdued Manriquez, who was then 22 put in handcuffs. (Doc. 76-1 at 11-12.) The officers noted some “bruising” and “abrasions” 23 on Manriquez (Doc. 76-2 at 17) and “paramedics were called to the scene to address [his] 24 wounds” (Doc. 76-1 at 38). 25 2. Manriquez’s Account 26 In Manriquez’s version, he was sitting on his couch when he noticed police lights 27 flashing outside his home. (Doc. 68-5 at 28-29.) He went to his door to “find out what’s 28 going on.” (Id. at 29.) He opened the interior door, and through an exterior door 1 Defendants informed Manriquez they had a warrant and that he was under arrest. (Id. at 2 31, 37.) After Manriquez unlocked the exterior door, Defendants swung the door open and 3 “gang rushed” Manriquez, bringing him to the ground immediately. (Id. at 31-34.) 4 Defendants then began punching Manriquez, who struggled in an attempt to dodge the 5 incoming blows. (Id. at 35.) Eventually, Manriquez “just [gave] up,” stopped moving, and 6 Ensley ordered the other Defendants to stop and to place handcuffs on Manriquez. (Id. at 7 50.) 8 During the handcuffing sequence, Lawrence punched Manriquez once more on the 9 forehead, manipulated his arms in a way that caused extreme pain in his shoulders, and 10 lifted him from the floor by his now-handcuffed hands. (Id. at 50, 67-69, 73-74.) Ensley 11 verbally admonished Lawrence after the punch (id. at 69 [“Ensley tells him [Lawrence] 12 . . . not to do that”]) and again after the arm lift (id. at 73 [“I guess it was Ensley that told 13 them, Hey, stop it already. Don’t do that.”]). Manriquez asserts that he was never asked 14 to step outside and that he did nothing to provoke Defendants’ violence. (Id. at 54-55, 58- 15 59.) 16 D. The Search Of 711 W. Sonora 17 Once Manriquez was removed, Defendants conducted a search of his home. (Doc. 18 76-1 at 38.) Defendants found several torn pieces of plastic, a digital scale, and a meth 19 pipe. (Id.) They also found what was described in the search warrant return as a “[g]reen 20 note book containing ledger of drugs sales” (id. at 51), but this was later identified as a 21 record of scores in a dice game (Doc. 68-2 at 6-7). 22 E. State Court Prosecution 23 In November 2016, the Pinal County Attorney’s Office declined to prosecute 24 Manriquez for any drug trafficking activity or for his conduct during Defendants’ execution 25 of the search warrant. (Doc. 68-7 at 14.) 26 Nevertheless, on March 29, 2017, Ensley issued a citation charging Manriquez with 27 two misdemeanors: (1) a violation of A.R.S. § 13-2402 (obstructing governmental 28 operations) and (2) a violation of A.R.S. § 13-3415 (possession of drug paraphernalia). 1 (Doc. 68-7 at 10.) The resulting case was heard in Superior-Kearny Justice Court by the 2 same justice of the peace who had authorized the search warrant. 3 Manriquez moved to exclude the evidence seized at his home, arguing that (1) the 4 search warrant was facially invalid, (2) the warrant application lacked probable cause, and 5 (3) Defendants had obtained the warrant through deception. (Doc. 68-7 at 13-17, 25-29.) 6 The justice of the peace granted the suppression motion in an order that provides no insight 7 into his reasoning. (Doc. 68-8 at 2-3.) 8 Manriquez then moved to dismiss both charges against him. (Doc. 68-8 at 5-7.) 9 Because Manriquez’s motion to suppress evidence had been based, in part, on the alleged 10 facial invalidity of the search warrant, Manriquez argued the officers were not acting with 11 lawful authority, and thus Manriquez couldn’t have been obstructing government 12 operations. (Id. at 6.) Similarly, Manriquez argued that because the possession charge was 13 premised on evidence that had been suppressed, the State no longer had a case. (Id. at 7.) 14 The justice court denied the motion to dismiss as to the obstruction charge but granted it 15 as to the possession charge. (Id. at 9-10.) 16 The matter proceeded to a bench trial. At trial, Lawrence testified that Manriquez 17 became “belligerent” as soon as he reached for Manriquez’s arm. (Doc. 76-1 at 24.) He 18 further testified that the “belligerent behavior” of “cursing and then not stepping towards 19 [Defendants] as [they] asked him to exit the property” led to the altercation. (Id. at 25.) 20 Manriquez was ultimately found guilty of obstructing government operations. 21 (Doc. 68-8 at 12.) The minute entry from the justice court identifies the statute underlying 22 the conviction as A.R.S. § 13-2402(A)(1) but provides no information concerning why 23 Manriquez was found guilty. (Id.) Manriquez didn’t pursue an appeal. (Doc. 76-2 at 37.) 24 II. Procedural History 25 On June 27, 2018, Manriquez filed this action against Defendants and the Town. 26 (Doc. 1.)2 The complaint asserts two claims against Defendants under 42 U.S.C. § 1983— 27

28 2 This case was originally assigned to a different judge. It was reassigned to the undersigned judge on October 31, 2018. (Doc. 27.) 1 Count I is a claim for excessive force and Count II is a claim for an illegal search, both in 2 violation of the Fourth and Fourteenth Amendments. (Id. ¶¶ 87-105.) Count III, a Monell 3 claim, alleges that the Town has a “policy and/or custom of hiring substandard police 4 officers who have extensive misconduct records at other police agencies” and fails to 5 appropriately train those officers. (Id. ¶¶ 106-117.) 6 On December 19, 2019, the parties filed a joint stipulation to dismiss Count III with 7 prejudice. (Doc. 63.) The following day, the Court granted the stipulation. (Doc. 64.) 8 That terminated the Town’s involvement in this action. (Id.) 9 On December 20, 2019, Defendants filed their motion for summary judgment. 10 (Doc. 65.)3 The motion thereafter became fully briefed (Docs. 68, 73) and, after issuing a 11 tentative ruling (Doc. 78), the Court heard oral argument (Doc. 79). 12 ANALYSIS 13 Defendants move for summary judgment on three grounds. First, they assert that, 14 because Manriquez’s conviction under A.R.S. § 13-2402(A)(1) necessarily establishes that 15 he used or threatened to use violence or physical force and that he impaired the 16 performance of governmental activities lawfully performed by government actors, his 17 § 1983 claims are barred by Heck v. Humphrey. (Doc. 65 at 6.) Second, and alternatively, 18 Defendants argue they are entitled to qualified immunity on both of Manriquez’s claims. 19 (Id. at 6-16.) Third, Defendants argue that Manriquez is unable to demonstrate causation 20 for his shoulder injuries because he doesn’t have “an admissible medical expert on 21 causation.” (Id. at 16-18.) 22 I. Legal Standard 23 A party moving for summary judgment “bears the initial responsibility of informing 24 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 25 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 26

27 3 The Court identified information in Defendants’ exhibits that should have been redacted pursuant to Federal Rule of Civil Procedure 5.2(a). (Doc. 75.) As a result, those 28 exhibits were sealed and Defendants later filed redacted, unsealed versions of their exhibits. (Doc. 76.) 1 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 3 production, the moving party must either produce evidence negating an essential element 4 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 5 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 6 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 7 [the] moving party carries its burden of production, the nonmoving party must produce 8 evidence to support its claim or defense.” Id. at 1103. 9 “Summary judgment is appropriate when ‘there is no genuine dispute as to any 10 material fact and the movant is entitled to judgment as a matter of law.’” Rookaird v. BNSF 11 Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “A genuine 12 dispute of material fact exists if ‘there is sufficient evidence favoring the nonmoving party 13 for a jury to return a verdict for that party.’” United States v. JP Morgan Chase Bank 14 Account No. Ending 8215 in Name of Ladislao V. Samaniego, VL: $ 446,377.36, 835 F.3d 15 1159, 1162 (9th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249- 16 50 (1986)). The court “must view the evidence in the light most favorable to the 17 nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 18 Rookaird, 908 F.3d at 459. Summary judgment is also appropriate against a party who 19 “fails to make a showing sufficient to establish the existence of an element essential to that 20 party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 21 U.S. at 322. 22 II. Heck Doctrine 23 Under Heck v. Humphrey, a claim for damages “for allegedly unconstitutional . . . 24 actions whose unlawfulness would render a conviction or sentence invalid . . . . is not 25 cognizable under § 1983.” 512 U.S. at 487. Thus, “[w]hen a plaintiff who has been 26 convicted of a crime under state law seeks damages in a § 1983 suit, the district court must 27 consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity 28 of his conviction or sentence.” Hooper v. Cty. of San Diego, 629 F.3d 1127, 1130 (9th Cir. 1 2011) (internal quotation marks and citation omitted). If so, the suit is barred. Id. 2 Defendants bear the burden of demonstrating that Manriquez’s success on his § 1983 3 claims would necessarily imply the invalidity of his state-court conviction. See, e.g., Reese 4 v. Cty. of Sacramento, 888 F.3d 1030, 1046 (9th Cir. 2018) (holding that Heck didn’t bar 5 plaintiff’s § 1983 claims because “Defendants have not demonstrated that Reese’s claims 6 in this action are barred by Heck”); Jarboe v. Cty. of Orange, 293 Fed. App’x 520, 521 7 (9th Cir. 2008) (“[W]here the defendant relies on Heck, he has the burden of proving that 8 the plaintiff’s success will necessarily imply the invalidity of the plaintiff’s underlying 9 conviction.”). 10 A. Count I: Excessive Force 11 Before turning to the Heck ramifications of Manriquez’s conviction, it’s important 12 to provide some background information concerning Arizona law. Manriquez was found 13 guilty of violating A.R.S. § 13-2402(A)(1), which prohibits “using or threatening to use 14 violence or physical force” to knowingly obstruct, hinder, or impair “[t]he performance of 15 a governmental function by a public servant acting under color of his official authority.” 16 Notably, subsection B of § 13-2402 states “[t]his section does not apply to the obstruction, 17 impairment, or hinderance of the making of an arrest.” That crime, resisting arrest, is 18 governed by a different statute, A.R.S. § 13-2508. Finally, A.R.S. § 13-3881(B) prohibits 19 the use of “unnecessary or unreasonable force . . . in making an arrest” and A.R.S. § 13- 20 404(B)(2) allows a justification defense to resisting arrest if “the physical force used by the 21 peace officer exceeds that allowed by law.” 22 Turning to the application of Heck, Defendants argue that, because § 13-404 23 provides for a justification defense and § 13-3881 makes an excessively forceful arrest 24 unlawful, Manriquez’s conviction necessarily involved a finding that the officers didn’t 25 use excessive force and that Manriquez wasn’t justified in resisting arrest. (Doc. 73 at 5- 26 6.) The trouble with that argument is that §§ 13-404 and 13-3881 apply to arrests. Section 27 13-2402, the statute under which Manriquez was convicted, specifically does not apply to 28 arrests. Thus, although there’s a strong argument that a conviction for resisting arrest under 1 § 13-2508 would necessarily imply a finding that the officers did not use excessive force, 2 Defendants have not shown that the crime of obstructing government operations under 3 § 13-2402(A)(1) requires the same conclusion. Put another way, the fact of Manriquez’s 4 conviction under § 13-2402(A)(1) doesn’t necessarily show that the officers used an 5 appropriate level of force. 6 The trial testimony leading to Manriquez’s conviction underscores this point. 7 Lawrence indicated that Defendants’ use of force was premised on Manriquez’s belligerent 8 behavior when resisting the execution of the search warrant. (Doc. 76-1 at 6-27.) 9 Specifically, Lawrence testified that Manriquez’s became “belligerent” when he “did not 10 comply” with an order to exit his home. (Id. at 25, 27.) That verbal order accompanied 11 Lawrence’s announcement that he had a search warrant and came at the same time 12 Lawrence reached for Manriquez in order to remove him from his home. (Id. at 23-24.) 13 In other words, the conduct that Lawrence described in his trial testimony, and the evidence 14 underlying Manriquez’s conviction, was resistance to the execution of a search warrant, 15 not resistance to arrest. Cf. Lockett v. Ericson, 656 F.3d 892, 896-97 (9th Cir. 2011) 16 (indicating that courts examine the evidence introduced at trial when applying Heck); 17 Sanford v. Motts, 258 F.3d 1117, 1119-20 (9th Cir. 2001) (indicating that the acts upon 18 which a conviction are based are a key component of the Heck analysis). Defendants 19 themselves recognize that Manriquez’s conviction was based not on resisting arrest, but 20 “on his physical response to the search warrant execution.” (Doc. 65 at 5.) 21 Because Manriquez wasn’t convicted of resisting arrest, this case is distinguishable 22 from Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2002), which is the primary case on 23 which Defendants rely. In Cunningham, the Ninth Circuit found a claim Heck-barred 24 because success on the claim would have “necessarily impl[ied] [the police] were not 25 acting within the scope of their duties” when they returned fire on two individuals who 26 began the altercation by shooting at them. Id. at 1154-55. This would have conflicted with 27 the plaintiff’s conviction because the jury that delivered that conviction “could not have 28 convicted [the plaintiff] for attempted murder unless the jury concluded that at the moment 1 [plaintiff] fired on the SIS officers, he knew or should have known that they were police 2 officers acting within the scope of their duties.” Id. at 1154. In other words, a necessary 3 predicate of the plaintiff’s state-court conviction was that that the officers were acting with 4 reasonable force. Id. at 1155. But as discussed above, § 13-2402 doesn’t require a finding 5 that Manriquez was unjustified in resisting or that the officers acted with appropriate 6 force—those requirements apply to a separate crime of which Manriquez was neither 7 convicted nor charged. 8 To be sure, a necessary element of Manriquez’s conviction is that he “us[ed] or 9 threaten[ed] to use violence or physical force.” A.R.S. § 13-2402(A)(1). But “a plaintiff 10 alleging excessive force does not collaterally attack his conviction or deny that he resisted. 11 Rather, [such a] plaintiff claims that he suffered unnecessary injuries because the response 12 to his resistance was not objectively reasonable.” Hooper, 629 F.3d at 1133 (quoting 13 VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006)) (internal quotation marks and 14 alterations omitted). Were the rule otherwise, “it would imply that once a person resists 15 law enforcement, he has invited police to inflict any reaction or retribution they choose, 16 while forfeiting the right to sue for damages. . . . This would open the door to undesirable 17 behavior and gut a large share of the protections provided by § 1983.” VanGilder, 435 18 F.3d at 692. 19 The upshot of all this is that, although Manriquez may not deny that he used or 20 threatened to use violence or physical force, his excessive force claim still may proceed 21 under Heck. The justice court could have found Manriquez guilty of violating A.R.S. 22 § 13-2402(A)(1) without concluding that Defendants used a reasonable level of force. 23 Thus, Manriquez’s conviction wouldn’t necessarily be invalidated by a finding in this 24 action that Defendants violated the Fourth Amendment by using unreasonable force. 25 B. Count II: Illegal Search 26 Defendants argue that Manriquez’s conviction also bars Count II, the illegal search 27 claim, because § 13-2404(A)(1) requires that officers be “engaged in a lawful government 28 operation.” (Doc. 65 at 6, emphasis added; see also Doc. 73 at 7-8 [same].) 1 This argument lacks merit. By its terms, § 13-2402(A)(1) has no requirement that 2 a public servant be engaged in the “lawful” exercise of government authority. Instead, it 3 requires that an official be “acting under color of his official authority.” A.R.S. § 13- 4 2402(A)(1) (emphasis added). 5 In Arizona, an officer acts under the color of his authority when executing a search 6 warrant. State v. Clary, 2 P.3d 1255, 1258 (Ariz. Ct. App. 2002) (citing A.R.S. § 13-2402 7 for the proposition that it is a crime to resist a search warrant and parenthetically noting 8 that such resistance would constitute obstruction of a public servant acting under color of 9 his official authority). Critically, it is a crime to resist a search warrant regardless of the 10 warrant’s ultimate legality: “There is . . . no right to resist a search warrant later found to 11 be illegal.” State v. Hatton, 568 P.2d 1040, 1046 (Ariz. 1977). Thus, under § 13-2402, it 12 is a crime to resist any warrant, not just those that are lawful. 13 This forecloses Defendants’ argument that a successful outcome on Count II, 14 Manriquez’s illegal search claim, would necessarily undermine his conviction under § 13- 15 2402(A)(1). That conviction didn’t rest on an implied determination that the underlying 16 search was lawful. Indeed, the justice court granted Manriquez’s pretrial motion to 17 suppress the evidence found in 711 W. Sonora. Thus, at most, Manriquez’s conviction 18 rested on an implied determination that Defendants were acting under “color of” their 19 authority when they were executing the warrant. That is an element that Manriquez would 20 have to prove (not refute) to succeed on Count II—he must show that Defendants were 21 acting under “color of” state law. See 42 U.S.C. § 1983. 22 Defendants’ remaining arguments are unconvincing. They cite New Jersey v. 23 Camillo, 887 A.2d 1151, 1153 (N.J. Super. App. Div. 2005), for the proposition that the 24 purpose of § 13-2402 is to “prohibit a broad range of behavior designed to impede or defeat 25 the lawful operation of government.” Defendants don’t explain why a New Jersey court’s 26 interpretation of a New Jersey law has any bearing on the interpretation of Arizona statutes, 27 let alone how it advances a position more persuasive than interpretations advanced by 28 Arizona’s own courts. Further, Defendants’ cited language was neither part of the statute 1 at issue nor the court’s interpretation of that statute—it was a declaration of statutory 2 purpose from a report issued by the New Jersey Criminal Law Revision Committee. 3 Camillo, 887 A.2d at 1153. Defendants have pointed to no similar declaration from the 4 Arizona legislature. 5 Defendants also cite State v. Snodgrass, 570 P.2d 1280 (Ariz. Ct. App. 1977), for 6 the proposition that an “obstruction conviction requires police to be in lawful performance 7 of duties.” (Doc. 73 at 7.) But Snodgrass addressed whether the phrase “in the 8 performance of his duty,” which appeared in a different statute (the since-repealed A.R.S. 9 § 13-541), should be construed to encompass an “unlawful arrest.” 570 P.2d at 1288. Thus, 10 Snodgrass sheds little light on how to interpret a differently worded phrase (“acting under 11 color of his official authority”) that appears in A.R.S. § 13-2402(A)(1). This is particularly 12 true where other Arizona decisions clarify that executing a search warrant falls within the 13 scope of an officer’s official duties, irrespective of the warrant’s legality. Clary, 2 P.3d at 14 1258.4 15 At bottom, A.R.S. § 13-2402(A)(1) only requires that an individual interfere with 16 the execution of an act taken “under color of . . . official authority.” A peace officer 17 executing a search warrant is acting “under color of . . . official authority” regardless of the 18 warrant’s ultimate legality. Nowhere does the statute require a finding that a public servant 19 was acting lawfully. As a result, success on Manriquez’s illegal search claim wouldn’t 20 necessarily imply the invalidity of his conviction. 21 III. Qualified Immunity 22 “When an officer asserts qualified immunity as a defense, . . . [courts] first ask 23 whether the facts taken in the light most favorable to the plaintiff show that the officer’s 24 conduct violated a constitutional right. If so, [courts] then ask whether the right in question 25 was clearly established at the time of the officer’s actions, such that any reasonably well- 26 4 The Court acknowledges there is some tension between Hatton and Snodgrass. 27 Whatever the conflict, Hatton, an Arizona Supreme Court case, controls over Snodgrass, which was decided by the Arizona Court of Appeals. Importantly, Hatton rejected the rule 28 articulated in People v. Curtis, 450 P.2d 33 (Cal. 1969). Hatton, 568 P.3d at 1046. Snodgrass relied on Curtis. 1 trained officer would have known that his conduct was unlawful.” Orn v. City of Tacoma, 2 949 F.3d 1167, 1174 (9th Cir. 2020) (citation omitted). For purposes of the second step’s 3 “clearly established” inquiry, although there need not be a “case directly on point,” 4 “existing precedent must have placed the statutory or constitutional question beyond 5 debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation omitted). In other words, 6 the case law must “have been earlier developed in such a concrete and factually defined 7 context to make it obvious to all reasonable government actors, in the defendant’s place, 8 that what he is doing violates federal law.” Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 9 1117 (9th Cir. 2017). See also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (“This Court 10 has repeatedly told courts—and the Ninth Circuit in particular—not to define clearly 11 established law at a high level of generality.”) (quotation omitted). 12 “Once the defense of qualified immunity is raised by the defendant, the plaintiff 13 bears the burden of showing that the rights allegedly violated were ‘clearly established.’” 14 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). See also Romero v. Kitsap Cty., 15 931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of proof that the right 16 allegedly violated was clearly established at the time of the alleged misconduct.”) (citation 17 omitted).5 Although it “is often beneficial” to begin the qualified-immunity analysis by 18 addressing whether a statutory or constitutional right has been violated, district courts are 19 vested with discretion to determine “which of the two prongs of the qualified immunity 20 analysis should be addressed first in light of the circumstances in the particular case at 21 hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). See also Orn, 949 F.3d at 1174 22 5 Although LSO and Romero place the burden on the plaintiff, other Ninth Circuit 23 opinions hold that “[q]ualified immunity is an affirmative defense that the government has 24 the burden of pleading and proving.” Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017). These opinions are difficult to reconcile. See generally Slater v. Deasey, 943 F.3d 898, 25 909 (9th Cir. 2019) (Collins, J., dissenting from denial of rehearing en banc) (“The panel committed . . . error in suggesting that Defendants bear the burden of proof on the disputed 26 qualified-immunity issues presented in this appeal. . . . [T]he applicable—and well- 27 settled—rule [in the Ninth Circuit] is that ‘[t]he plaintiff bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct.’”) 28 (citation and emphases omitted). 1 (“We have the discretion to skip the first step in certain circumstances, as when the officer 2 is plainly entitled to prevail at the second step.”). The Supreme Court has recognized that 3 starting with the second prong may be particularly appropriate when addressing the first 4 prong would require a district court to construe “uncertain” or “ambiguous” state law. 5 Pearson, 555 U.S. at 238. 6 A. Excessive Force 7 When the defense of qualified immunity is raised in a § 1983 action involving a 8 claim of excessive force, the first prong of the qualified-immunity analysis requires an 9 assessment of whether the force used was “objectively reasonable,” which “is determined 10 by an assessment of the totality of the circumstances.” Green v. City & Cty. of San 11 Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014). “Because this inquiry is inherently fact 12 specific, the determination of whether the force used to effect an arrest was reasonable 13 under the Fourth Amendment should only be taken from the jury in rare cases.” Id. 14 (quotation omitted). Meanwhile, the second prong of the qualified-immunity analysis in 15 excessive force cases “requires two separate determinations: (1) whether the law governing 16 the conduct as issue was clearly established and (2) whether the facts as alleged could 17 support a reasonable belief that the conduct in question conformed to the established law.” 18 Id. at 1052. This is generally a question of law, but genuine issues of material fact, such 19 as how much force was used, may defeat a claim of qualified immunity at the summary 20 judgment stage. Id. 21 Manriquez largely ignores these standards in his briefing. When addressing the 22 adequacy of Count I, Manriquez focuses almost entirely on whether the amount of force 23 Defendants used during the encounter in August 2016 was reasonable. (Doc. 68 at 14-16.) 24 This discussion may be relevant to prong one of the qualified-immunity analysis, but it 25 fails to address prong two—whether the case law in existence as of August 2016 was 26 “developed in such a concrete and factually defined context to make it obvious to all 27 reasonable government actors, in the defendant’s place, that what he is doing violates 28 federal law.” Shafer, 868 F.3d at 1117. Manriquez makes no attempt whatsoever to 1 identify an earlier case, with similar facts, in which a law enforcement officer’s use of force 2 was deemed excessive. 3 A related difficulty with Manriquez’s approach is that he asks the Court to assume, 4 for purposes of evaluating the reasonableness of Defendants’ conduct, that “he presented 5 little to no physical threat to [Defendants]” and that he simply “pulled his hand back when 6 Lawrence tried to grab him[,] which [Defendants] viewed as the ‘green light’ to administer 7 a beating.” (Doc. 68 at 15.) These factual assertions are foreclosed by Heck. As discussed 8 in Part II.A above, Manriquez’s conviction under A.R.S. § 13-2402(A)(1) necessarily 9 means that Manriquez “us[ed] or threaten[ed] to use violence or physical force” against 10 Defendants as they attempted to execute the search warrant. Id. Although Heck does not 11 categorically foreclose Manriquez from asserting an excessive force claim arising from the 12 August 2016 encounter, it does foreclose him from arguing that he never used, or 13 threatened to use, violence or physical force during that encounter. 14 Given this backdrop, Defendants are entitled to summary judgment on the bulk of 15 Manriquez’s excessive force claim. Manriquez has not even attempted to demonstrate that 16 it was clearly established, in August 2016, that it is unconstitutional for officers who are 17 executing a search warrant, and who encounter an occupant who uses (or threatens to use) 18 violence and physical force against them while in the doorway of the premises, to take the 19 occupant to the ground, restrain his legs, and use a taser and fist strikes against him until 20 he can be handcuffed and subdued. Nor has the Court identified any cases, through its own 21 research, imposing liability on similar facts. Summary judgment is warranted under these 22 circumstances. Cf. Cruz v. Kauai Cty., 279 F.3d 1064, 1069 (9th Cir. 2002) (holding that 23 plaintiff had “not met his burden of proving that the right allegedly violated here was 24 ‘clearly established’” because “[u]nfortunately for [plaintiff], he has not cited any case that 25 establishes such a right, nor is it self-evident”). 26 This does not, however, end the analysis. One component of Manriquez’s excessive 27 force claim is that Lawrence continued to use force against him after he stopped resisting. 28 Specifically, Manriquez claims that, after he stopped resisting, “Lawrence . . . punched him 1 in the face one more time for good measure,” and then, after he was handcuffed, “Lawrence 2 picked him up off the floor by the handcuffs, wrenching Manriquez’s shoulders.” (Doc. 3 68 at 16; Doc. 68-5 at 67-69, 72-75.) 4 It is well established that “continued use of force against a suspect who has been 5 brought to the ground can violate the Fourth Amendment.” Zion v. Cty. of Orange, 874 6 F.3d 1072, 1077 (9th Cir. 2017).6 See also Rodriguez v. City of West Covina, 2018 WL 7 6252487, *5 (C.D. Cal. 2018) (“[A]n officer’s use of force against a suspect who no longer 8 poses an immediate threat can violate the Fourth Amendment.”); Castillo v. City of Tempe, 9 2014 WL 11505911, *5 (D. Ariz. 2014) (“[O]nly an incompetent officer would fail to 10 realize that using closed-fists to punch Plaintiff’s face, even after Plaintiff is handcuffed, 11 until he is knocked unconscious and bleeding from the eyes, violates Plaintiff's Fourth 12 Amendment rights.”). It is also well established that the “rough and abusive” use of 13 handcuffs is a Fourth Amendment violation. Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 14 1989). Compare Johnson v. Rodriguez, 2014 WL 7338852, *5-7 (E.D. Cal. 2014) (officer 15 not entitled to qualified immunity, where plaintiff presented evidence that the officer 16 “applied pressure on his handcuffed hands for four to six minutes by lifting his hands up 17 which caused excruciating pain for Plaintiff,” because “[u]nder these circumstances, no 18 reasonable officer could believe that the abusive application of handcuffs was 19 constitutional”), with Luchtel v. Hagemann, 623 F.3d 975, 982 (9th Cir. 2010) (affirming 20 grant of qualified immunity on excessive force claim where “[t]here is no claim or 21 testimony that [the officers] wrenched her arms up or gratuitously intensified pain in the 22 handcuffing process”). There’s simply no justification for punching an individual who is 23 no longer resisting, nor is there any need to wrench the individual’s handcuffed arms in a 24 cruel, pain-inducing manner. Cf. Sanford, 258 F.3d at 1119 (stating that an unnecessary 25 punch to the face could give rise to an excessive force claim). Indeed, according to 26 6 Although Zion was decided in 2017, a year after the incident at issue here, the Zion 27 court stated that the rule against continued use of force after an individual has stopped resisting was clearly established by two Ninth Circuit opinions that predate August 2016. 28 874 F.3d at 1076 (citing Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), and Davis v. City of Las Vegas, 478 F.3d 1048 (9th Cir. 2007)). 1 Manriquez, other officers repeatedly instructed Lawrence to stop as they witnessed the 2 alleged abuse. (Doc. 68-5 at 67, 69.) 3 Thus, “[e]xamining the facts here at issue in the light most favorable to” Manriquez, 4 Lawrence is not entitled to qualified immunity for his alleged conduct after Manriquez 5 stopped resisting. Davis v. City of Las Vegas, 478 F.3d 1048, 1057 (9th Cir. 2007). 6 Manriquez has proffered evidence that, if believed by the jury, would establish that 7 Lawrence’s use of force after Manriquez stopped resisting was objectively unreasonable 8 (and thus violative of the Fourth Amendment), Heck does not foreclose Manriquez from 9 proffering that evidence (because it doesn’t deny that Manriquez initially used or 10 threatened to use force or violence), and it was clearly established in August 2016 that it is 11 unconstitutional to punch a non-resisting, handcuffed person in the face or gratuitously 12 wrench such a person’s arms. 13 B. Illegal Search 14 Manriquez’s primary argument with respect to Count II is that Defendants’ search 15 of his home was illegal because the warrant on which they relied failed to identify his home 16 as the place to be searched, rendering it “facially invalid.” (Doc. 68 at 13-14.)7 17 In the context of the execution of a search warrant, the qualified immunity analysis 18 turns on (1) whether the warrant was valid and (2) if not, whether an officer nevertheless 19 acted in objective good faith in relying on the warrant. Ramirez v. Butte-Silverbow Cty., 20 298 F.3d 1022, 1025-28 (9th Cir. 2002). Put another way, “[a] police officer may be 21 entitled to qualified immunity even for a search and arrest based on invalid warrants if he 22 has a ‘reasonable belief that the warrant was supported by probable cause.’” Armstrong v. 23 Asselin, 734 F.3d 984, 991 (9th Cir. 2013) (quoting Messerschmidt v. Millender, 565 U.S. 24

25 7 Manriquez also contends the search was illegal because (1) the affidavit Ensley proffered to secure the warrant lacked “necessary and relevant information, like names, 26 dates, and times related to” the alleged drug activity and thus “failed to include any specific factual information necessary to establish probable cause” (Doc. 68 at 14) and (2) Ensley 27 “misled the Justice of the Peace . . . to obtain his approval to purportedly amend the . . . search warrant in order to search” Manriquez’s home (Doc. 1 ¶ 99). The Court 28 need not address these claims given its conclusion that Manriquez’s claim against Ensley in Count II survives summary judgment for other reasons. 1 535, 555 (2012)). It is generally reasonable for an officer to believe a warrant is valid if 2 the warrant was approved by a neutral magistrate judge and is free from obvious error. Id. 3 at 991-92 (“[W]here the search or seizure is executed pursuant to a warrant, the fact that a 4 neutral magistrate issued the warrant is the clearest indication that the officers acted in an 5 objectively reasonable manner. The warrant confers a ‘shield of immunity’ lost only in 6 ‘rare’ circumstances, even for mistakenly issued warrants.”) (citations and internal 7 quotation marks omitted). 8 Here, the first part of the analysis is straightforward. The warrant used to search 9 Manriquez’s home was invalid to search that location. The Fourth Amendment provides 10 in relevant part that “no Warrants shall issue, but upon probable cause, supported by Oath 11 or affirmation, and particularly describing the place to be searched, and the persons or 12 things to be seized.” Id. (emphasis added). See also A.R.S. § 13-3913 (“No search warrant 13 shall be issued except on probable cause, supported by affidavit, naming or describing the 14 person and particularly describing the property to be seized and the place to be searched.”). 15 It necessarily follows that a search warrant must identify the specific location to be 16 searched. See, e.g., United States v. Leon, 468 U.S. 897, 923 (1984) (“[A] warrant may be 17 so facially deficient—i.e., in failing to particularize the place to be searched or the things 18 to be seized—that the executing officers cannot reasonably presume it to be valid.”) 19 (emphasis added). “As to a warrant’s description of the place to be searched, . . . [i]t is 20 enough if the description is such that the officer with a search warrant can, with reasonable 21 effort, ascertain and identify the place intended.” United States v. Brobst, 558 F.3d 982, 22 991-92 (9th Cir. 2009) (quotation omitted). Technical errors in the description, such as in 23 an incorrect address, are not necessarily fatal to a search warrant so long as the rest of the 24 description particularly describes the place to be searched. See, e.g., United States v. 25 Turner, 770 F.2d 1508, 1511 (9th Cir. 1985). 26 The warrant in this case identified Room #1 at the Copper Mountain Motel as the 27 place to be searched. (Doc. 76-1 at 45-46.) It is difficult to understand how such a warrant 28 could be construed as authorizing a search at an entirely difficult location—Manriquez’s 1 home located at 711 W. Sonora. Cf. Groh v. Ramirez, 540 U.S. 551, 557 (2004) (holding 2 that a warrant that “provided no description of the type of evidence sought” failed to meet 3 the requirements of the Fourth Amendment and was “plainly invalid”). Defendants have 4 not cited any case, from any jurisdiction, holding that a warrant authorizing a search at one 5 location may be used to search a different location so long as one officer obtains verbal 6 authorization, which is not memorialized in the warrant itself, from the issuing judge. This 7 is not surprising, because such an approach would undermine one of the basic purposes of 8 the Fourth Amendment’s particularity requirement, which is “to inform the person subject 9 to the search” where the executing officers are entitled to search. United States v. Hayes, 10 794 F.2d 1348, 1355 (9th Cir. 1986). See also Groh, 540 U.S. at 561 (“[One] purpose of 11 the particularity requirement . . . [is to] assure[] the individual whose property is searched 12 or seized of the lawful authority of the executing officer, his need to search, and the limits 13 of his power to search.”) (quotation omitted). 14 Notwithstanding all of this, Defendants offer several reasons why the warrant 15 should be considered valid. First, Defendants argue that, under Heck, “this Court must 16 accept that the search authorization lawfully placed them at the residence to make contact 17 with Plaintiff, detain him, and conduct a search.” (Doc. 65 at 8-9.) But as discussed in 18 Part II.B above, Manriquez’s conviction under A.R.S. § 13-2402(A)(1) doesn’t necessarily 19 show that Defendants were operating lawfully—it merely shows that Defendants were 20 acting under color of official authority. 21 Next, Defendants identify several reasons why there was probable cause to believe 22 drug-related evidence would be found at 711 W. Sonora, including that “[f]or search 23 warrants issued in connection with drug trafficking cases, . . . courts recognize that drug 24 trafficking is an ongoing enterprise that often results in the use of different locations” and 25 that because drug-related evidence was found at the motel, “[i]t was entirely reasonable to 26 think a bigger stash was likely stored nearby at the 711 West Sonora residence, an address 27 already noted in the original search warrant documents.” (Doc. 65 at 9-12.) But the issue 28 here isn’t whether Defendants could have secured a valid warrant to search 711 W. 1 Sonora—the issue is whether the warrant they actually used to search 711 W. Sonora, 2 which only authorized the search of a different location, could be validly used for that 3 purpose. It couldn’t. 4 Defendants also contend that “verbal warrant amendments do not automatically 5 violate constitutional principles.” (Doc. 65 at 11.) There are several problems with this 6 argument. First, the only case Defendants cite in support of their claim that “verbal warrant 7 amendments” are permissible is United States v. Smith, 77 M.J. 631 (Army Ct. Crim. App 8 2018). But the facts of Smith are much different from the facts of this case. There, although 9 a military magistrate judge did authorize a “verbal warrant amendment” of sorts—the judge 10 verbally authorized a military investigator to seize “any electronic devices” located within 11 Smith’s home, even though the original warrant affidavit sought permission to seize a more 12 circumscribed subset of electronic devices (“Apple brand digital devices”) located within 13 Smith’s home—investigators subsequently applied for, and obtained, a second warrant that 14 authorized the search of all of the seized devices. Id. at 633-34. Moreover, during the 15 suppression hearing, Smith didn’t raise any challenges pertaining to the initial verbal 16 warrant amendment, leading the Army Court of Criminal Appeals to deem that challenge 17 forfeited when Smith attempted to raise it for the first time on appeal. Id. at 635. 18 Second, putting aside these factual differences, a 2018 decision from the Army 19 Court of Criminal Appeals sheds little light on the status of the clearly established law 20 applicable in the Ninth Circuit in 2016. See generally Sharp v. Cty. of Orange, 871 F.3d 21 901, 911 (9th Cir. 2017) (“The prior precedent must be ‘controlling’—from the Ninth 22 Circuit or Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside 23 the relevant jurisdiction.”). Ninth Circuit and Supreme Court decisions that predate the 24 August 2016 incident in this case establish, quite clearly, that a search warrant must 25 identify, with particularity, the location to be searched. For example, in 1984, the Supreme 26 Court held in Leon that a search warrant that “fail[ed] to particularize the place to be 27 searched” would be “so facially deficient . . . that the executing officers cannot reasonably 28 presume it to be valid.” 468 U.S. at 923. And in 2002, the Ninth Circuit stated in Ramirez 1 that “the warrant must contain all authorizations and limitations in writing” and that the 2 “only way” to “remed[y] the defect in the warrant was to ask a magistrate to issue a 3 corrected version.” 298 F.3d at 1026-27.8 4 Third, even assuming for the sake of argument that Ensley could have obtained 5 verbal authorization from the justice of the peace to amend the warrant (which Ramirez 6 seems to foreclose), the warrant that resulted from the amendment process in this case still 7 didn’t identify 711 W. Sonora as a location that could be searched. On this point, the 8 decision in United States v. Kurt, 986 F.2d 309 (9th Cir. 1993), which was not cited by the 9 parties, is instructive. There, “[o]fficers obtained . . . a warrant to search for a murder 10 weapon at Kurt’s residence” but when they “arrived at the address on the warrant, they 11 found it to be the address of Kurt’s parents. The parents gave them the correct address.” 12 Id. at 310. The search warrant affiant, in turn, placed a telephone call to “another 13 Snohomish County superior court judge,” who “authorized the change to the warrant” 14 without placing the affiant under oath. Id. Critically, and unlike in this case, the officer 15 then “alter[ed] the address on [the] search warrant” before executing it. Id. Given those 16 facts, the Ninth Circuit denied the resulting motion to suppress (which was premised solely 17 on the second judge’s failure to place the affiant under oath), holding that the good-faith 18 exception applied. Id. at 311.9 19 8 These statements from Ramirez are not dicta (which is how they were incorrectly 20 characterized in the tentative ruling). This is because they were reasoned and germane to the Ramirez court’s ultimate determination that a Fourth Amendment violation had 21 occurred. United States v. McAdory, 935 F.3d 838, 843 (9th Cir. 2019) (“Where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after 22 reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense. . . . In other words, 23 well-reasoned dicta is the law of the circuit . . . .”) (citations, brackets, and internal quotation marks omitted). 24 9 Similarly, in United States v. Skarda, 2014 WL 4699883 (D.N.D. 2014), an FBI agent obtained a warrant to search a particular address that he believed to be the subject’s 25 home address but then determined, before executing the warrant, that the subject actually lived at a different address in the same town. Id. at *1-2. As a result, the FBI agent placed 26 a telephone call to the magistrate judge who issued the warrant to explain “that the address on the search warrant application and search warrant was incorrect.” Id. at *2. The judge, 27 in turn, “verbally authorized [the FBI agent] to change the address on the warrant.” Id. As in Kurt, and unlike here, the agent then manually handwrote the change onto the warrant: 28 “[The FBI agent] made the changes in his own handwriting and initialed those changes.” Id. Thus, at the time of execution, the warrant identified, with particularity, the place to be 1 Had Defendants made the same sort of handwritten changes to the search warrant 2 that were made in Kurt, it’s possible the analysis concerning the validity of the warrant 3 might be different (although Ramirez, again, suggests such a warrant would remain 4 defective). But because they instead chose to search Manriquez’s home in reliance on a 5 warrant that did not even mention Manriquez’s address, they cannot contend the warrant 6 satisfied the Fourth Amendment’s particularity requirement. This approach failed to 7 provide Manriquez with “the required information” as to the authorized location of the 8 search, which is a basic Fourth Amendment requirement. Ramirez¸ 298 F.3d at 1026.10 9 The second prong of the qualified-immunity analysis in search warrant cases 10 addresses whether the executing officer “acted in objective good faith” when relying on 11 the warrant. Id. at 1025-28. In their moving papers, Defendants argue they are entitled to 12 qualified immunity because (1) “the fact that a neutral magistrate . . . issued [the] warrant 13 is the clearest indication that the officers acted in an objectively reasonable manner” (Doc. 14 65 at 11-12) and (2) Manriquez has failed to identify any cases showing that “the verbal 15 transfer of the search warrant authorization from the motel to 711 W. Sonora . . . under 16 these particular circumstances . . . violates clearly established law” (Doc. 73 at 9). 17 Additionally, during oral argument, Defendants argued they are entitled to qualified 18 immunity because the original search warrant affidavit (Doc. 76-1 at 42) identified 711 W. 19 Sonora as Soriano’s primary residence—and, thus, they weren’t relying solely on a verbal 20 warrant amendment. 21 These arguments are unavailing. As for the first point, although the justice of the 22 searched. Id. Given those circumstances, the district court denied the resulting motion to 23 suppress, holding that “[t]here is no evidence in the record to suggest that [the FBI agent] failed to act in good faith, and he objectively and reasonably relied on the warrant approved 24 by [the magistrate judge].” Id. at *5. 25 10 Manriquez argues that the justice of the peace’s suppression order is, alone, sufficient to demonstrate the invalidity of the warrant. (Doc. 68 at 13-14.) The justice of 26 the peace’s order is, unfortunately, devoid of analysis, so the Court is unable to draw any conclusions as to why the justice of the peace ordered suppression. (Doc. 68-8 at 2-3.) 27 Also, even assuming the suppression order was premised on the invalidity of the warrant, Manriquez fails to explain why it should carry preclusive effect here. In any event, for the 28 reasons discussed above, the Court agrees with Manriquez’s overarching point that the warrant was invalid. 1 peace verbally authorized Ensley to amend the warrant to include 711 W. Sonora, the 2 justice of the peace didn’t go further and assure Ensley that it would be permissible to 3 search 711 W. Sonora without notating the change on the warrant itself. (Doc. 68-7 at 32- 4 33.) To the contrary, Ensley asked during the phone call “Do we have your permission to 5 amend the search warrant?”, the justice of the peace responded by saying “Yeah, go ahead 6 and amend it,” and Ensley then verified that “[w]e’re going to amend the search warrant.” 7 (Id.) Because Ensley did not follow through with that assurance, Defendants cannot argue 8 they relied in good faith on the approval provided by the justice of the peace.11 9 As for the second point, although Manriquez hasn’t identified a prior case imposing 10 liability under the exact same factual circumstances, there need not be a “case directly on 11 point” so long as “existing precedent . . . placed the . . . constitutional question beyond 12 debate.” al-Kidd, 563 U.S. at 741. As discussed above, there are an array of Ninth Circuit 13 and Supreme Court cases from before August 2016 that establish the illegality of relying 14 on a search warrant that fails to identify, with particularity, the location to be searched. 15 See, e.g., Leon, 468 U.S. at 923; Ramirez, 298 F.3d at 1026-27. Alternatively, even if those 16 decisions might be said to define the constitutional principle at an excessively “high level 17 of generality,” Kisela, 138 S. Ct. at 1152, the Supreme Court has also recognized “there 18 can be the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is 19 sufficiently clear even though existing precedent does not address similar circumstance.” 20 District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018) (citation omitted). See also 21 United States v. Lanier, 520 U.S. 259, 271 (1997) (“[I]n [some] instances a general 22 constitutional rule already identified in the decisional law may apply with obvious clarity 23 to the specific conduct in question, even though the very action in question has [not] 24 11 This case is therefore distinguishable from the typical search warrant fact pattern, 25 where a magistrate judge determines that the facts provided in the search warrant affidavit are sufficient to establish probable cause, a reviewing court later disagrees as to the 26 sufficiency of those facts, and the question for qualified-immunity purposes is whether the executing agent was nevertheless justified in relying on the magistrate judge’s initial 27 determination of sufficiency. See, e.g., Armstrong, 734 F.3d at 993 (“Once a neutral magistrate approves of the search or seizure, an officer cannot be expected to question the 28 magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.”) (quotation omitted). 1 previously been held unlawful. . . . The easiest cases don’t even arise.”) (citations and 2 internal quotation marks omitted). In the Court’s view, it is painfully obvious that a warrant 3 authorizing a search at one location can’t be used to conduct a search at an entirely different 4 location. This is not a case where an officer stands accused of violating a constitutional 5 standard that has some play in the joints, such as whether “probable cause” existed to 6 support a search or whether the level of force used by the officer was “reasonable.” The 7 Fourth Amendment states, in plain and unambiguous terms, that “no Warrant[] shall issue” 8 unless the warrant ”particularly describ[es] the place to be searched.” The warrant here 9 did not come close to satisfying that basic requirement. And “[g]iven that the particularity 10 requirement is set forth in the text of the Constitution, no reasonable officer could believe 11 that a warrant that plainly did not comply with that requirement was valid.” Groh¸ 540 12 U.S. at 563-64. 13 As for the third point, the problem with Defendants’ argument is that the affidavit 14 wasn’t attached to the warrant or properly incorporated into the warrant. Under well- 15 established Ninth Circuit law, a law enforcement officer can’t rely on an affidavit in these 16 circumstances to cure a warrant deficiency. See, e.g., United States v. McGrew, 122 F.3d 17 847, 850 n.5 (9th Cir. 1997) (“The agents must either serve the affidavit with the warrant 18 or list with particularity its relevant directives on the warrant itself. Otherwise, the good 19 faith exception is not available because (1) the requirement of attaching affidavits to 20 general warrants has been the clear law of this circuit for over a decade, foreclosing any 21 ‘reasonable belief’ to the contrary; and (2) no matter how aware the officers are of the 22 limits of their search, the person being searched (the second aim of the rule) is still 23 completely unaided when agents fail to produce a document explaining the parameters of 24 the search.”). 25 For these reasons, the Court rejects Defendants’ blanket contention that all of them 26 are entitled to qualified immunity with respect to Count II. But Defendants also make an 27 alternative argument—they contend that each Defendant is “entitled to an individualized 28 assessment of [his] alleged conduct . . . in relation to the search.” (Doc. 65 at 8.) In 1 response, Manriquez largely fails to provide such an individualized assessment. In the 2 factual section of his brief, Manriquez provides little information concerning each 3 Defendant’s specific role in obtaining the warrant, other than to note that Ensley was the 4 leader and that Lawrence assisted Ensley during the follow-up call to the justice of the 5 peace. (Doc. 68 at 4-10.) In fact, Manriquez sometimes lumps all four Defendants together 6 without differentiation. (Id. [“The officers decided to get a telephonic warrant.”].) 7 Similarly, in the argument section of his brief addressing Count II, Manriquez refers to 8 “Defendants” as an undefined group, apart from a few references to Ensley’s specific 9 conduct. (Id. at 13-14.) 10 Under Ninth Circuit law, only those officers who “plan and lead a search” are 11 required to “actually read the warrant and satisfy themselves that they understand its scope 12 and limitations.” Ramirez, 298 F.3d at 1027. Line officers “are required to do much less” 13 and are protected by qualified immunity if they rely on their leaders’ representations about 14 the validity of the warrant. Id. at 1028. Given these standards, Manriquez has failed to 15 meet his burden of proof with respect to Doran and Mueller—he has failed to establish 16 their role went beyond simply participating in a search led by others. Id. (“It is possible 17 that Groh shared authority over the search with other officers, such as Sheriff McPherson 18 and Undersheriff Lee. However, nothing in the record indicates this was the case. 19 Therefore, all officers except Groh are protected by qualified immunity.”). In contrast, the 20 evidence proffered by Manriquez, when viewed in the light most favorable to him, suggests 21 that Ensley planned and led the search and that Lawrence shared in that leadership role. 22 (Doc. 72 [video exhibit of Lawrence explaining to Ensley what to include in affidavit for 23 amended warrant].) Accordingly, Ensley and Lawrence are not entitled to qualified 24 immunity on Count II. 25 IV. Necessity Of A Causation Expert 26 Defendants assert that Manriquez was required to disclose a medical expert to 27 explain causation as it relates to his purported shoulder injury and that Manriquez’s 28 disclosures with respect to his treating physicians fail to provide any information on that 1 topic. (Doc. 65 at 16-18.) Thus, Defendants argue that Manriquez’s claim for damages 2 must be limited “to those superficial bruises, contusions, or lacerations that became visible 3 immediately after the law enforcement action.” (Id. at 18.) Manriquez responds that an 4 expert isn’t necessary to prove causation because “previously disclosed MRI reports” show 5 “Manriquez has a significant shoulder injury.” (Doc. 68 at 16-17.) 6 “In a § 1983 action, the plaintiff must . . . demonstrate that the defendant’s conduct 7 was the actionable cause of the claimed injury.” Harper v. City of Los Angeles, 533 F.3d 8 1010, 1026 (9th Cir. 2008). This requires that “the plaintiff . . . establish both causation- 9 in-fact and proximate causation.” Id. 10 As an initial matter, Defendants base their argument on Arizona law. (Doc. 65 at 11 16-18.) It is unclear whether Arizona law governs causation in a § 1983 action. The Ninth 12 Circuit has referred to “general tort principles” in determining causation for § 1983 claims. 13 Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019). See also Stoot v. City 14 of Everett, 582 F.3d 910, 926 (9th Cir. 2009) (analyzing causation with reference to “basic 15 tort principles”); Galen v. Cty. of Los Angeles, 477 F.3d 652, 663 (9th Cir. 2007) (analyzing 16 causation with reference to “traditional tort principles” and citing the Restatement (Second) 17 of Torts). Cf. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981) 18 (referring to Prosser, Law of Torts in analyzing causation requirement of § 1983). That 19 said, “[i]t is uniformly held that where injuries complained of are of such a character as to 20 require skilled and professional persons to determine the cause and extent thereof, they 21 must be proved by the testimony of medical experts.” Franklin v. Skelton, 250 F.2d 92, 97 22 (10th Cir. 1957). Further, federal courts sometimes refer to “state law tort principles” in 23 “applying basic tort principles” to § 1983 claims. Rodriguez-Cirilo v. Garcia, 115 F.3d 24 50, 52 (1st Cir. 1997). 25 In general, “[i]t is the function of the jury to determine, in any case in which it may 26 reasonably differ on the issue, whether the defendant’s conduct has been a substantial 27 factor in causing the harm to the plaintiff.” Restatement (Second) of Torts § 434(2). But 28 it is the Court’s role, in the first instance, to determine “whether the evidence as to the facts 1 makes an issue upon which the jury may reasonably differ.” Restatement § 434(1)(a). Cf. 2 Baum-Holland v. Hilton El Con Mgmt., LLC, 964 F.3d 77, 93 (1st Cir. 2020). Further, 3 because a § 1983 plaintiff bears the burden of showing that it is more likely than not that a 4 defendant’s actions caused the alleged harm, “[a] mere possibility of such causation is not 5 enough; and when the matter remains one of pure speculation and conjecture, or the 6 probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict 7 for the defendant.” Restatement § 433B cmt. a. Cf. Baum-Holland, 964 F.3d at 93 (quoting 8 the Restatement and indicating that “summary judgment is appropriate” when a plaintiff 9 produces inadequate causation evidence). In other words, “there must be a sufficient 10 showing . . . that a causal relation existed” and “[w]here the conclusion of causation is not 11 within common knowledge, expert testimony may provide a basis for it, but in the absence 12 of such testimony it may not be drawn.” Moody v. Maine Cent. R. Co., 823 F.2d 693, 695 13 (1st Cir. 1987) (quoting Prosser & Keeton on Torts, 269 (5th ed. 1984)) (cited with 14 approval in Claar v. Burlington N. R. Co., 29 F.3d 499, 503-504 (9th Cir. 1994)). 15 In light of these standards, Manriquez will not be allowed, at trial, to argue that 16 Defendants’ conduct caused him to suffer a torn labrum or other long-term shoulder 17 damage or to introduce his MRI report in an attempt to corroborate the existence of such 18 injuries. The report relates to an MRI taken 16 months after Manriquez’s encounter with 19 Defendants. (Doc. 68 at 17.) It lists a variety of damage to Manriquez’s shoulder, 20 including “mild to moderate degenerative changes” to the joint, a “full-thickness tear of 21 the supraspinatus tendon,” a “thin linear SLAP tear within the superior labrum,” and a 22 dislocated brachii tendon. (Doc. 68-8 at 35.) Completely absent from the report is any 23 indication of what caused any of this damage. Moreover, Manriquez has suffered from 24 shoulder pain for years, predating the August 2016 encounter with Defendants. (Doc. 76- 25 2 at 44.) He previously attributed this pain to an injury he sustained in high school. (Id.) 26 Given this backdrop, and in light of Manriquez’s failure to properly disclose any medical 27 witnesses who might tie the shoulder damage reflected in the MRI to Manriquez’s 28 encounter with Defendants, it would be “mere speculation” for a juror to conclude this damage was caused by the encounter. 2 Defendants overreach, however, by arguing that Manriquez’s evidentiary failures mean his claim for damages must be limited “to those superficial bruises, contusions, or lacerations that became visible immediately after the law enforcement action.” (Doc. 65 5|| at 18.) Although Manriquez can’t present any evidence or argument that he suffered long- 6|| term shoulder damage as a result of the encounter, he remains free to argue that he 7 || experienced pain and suffering in his shoulder during and in the aftermath of the encounter 8 || (which, again, allegedly involved Lawrence wrenching Manriquez’s handcuffed arms in a painful manner). The existence of such pain and suffering need not be corroborated by 10 || expert testimony. 11 Accordingly, IT IS ORDERED that Defendants’ motion for summary judgment || (Doc. 65) is granted in part and denied in part, as follows: 13 (1) Defendants’ motion for summary judgment as to Count I (excessive force) is 14|| granted as to Ensley, Mueller, and Doran. As for Lawrence, it is granted in part (as to 15 || Lawrence’s conduct up to the point when Manriquez contends he stopped resisting) and 16 || denied in part (as to Lawrence’s conduct afterward). 17 (2) Defendants’ motion for summary judgment as to Count II (illegal search) is 18 || granted as to Mueller and Doran and denied as to Ensley and Lawrence. 19 (3) | Defendants’ motion for summary judgment as to causation of Manriquez’s 20 || shoulder injury is granted in part. Manriquez may not present any evidence or argument 21/|| that he suffered long-term shoulder damage as a result of the encounter, but he remains free to argue that he experienced pain and suffering in his shoulder during and in the 23 || aftermath of the encounter. 24 Dated this 16th day of September, 2020. 25 ° f.-t — 27 ‘Dominic W. Lanza 98 United States District Judge

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