Pfaendler v. Sahuarita, Town of

• Court: District Court, D. Arizona
• Decided: February 17, 2023
• Docket: 4:20-cv-00188
• Status: Unknown

Opinion

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

9 Freedom Christopher Austin Pfaendler, No. CV-20-00188-TUC-JCH

10 Plaintiff, ORDER

11 v.

12 Town of Sahuarita, et al.,

13 Defendants. 14 15 Before the Court is Defendants' Motion for Summary Judgment (Doc. 58). 16 Defendants (certain individual "Officers," together with their employer the "Town") seek 17 summary judgment on claims arising from Plaintiff's arrest on August 16, 2019, at a 18 Sahuarita Walmart. The Walmart's manager and employees called police because 19 Plaintiff kept his motorcycle helmet on with the visor down in the store and appeared to 20 ignore the manager's several requests for Plaintiff to leave. The Walmart employees were 21 alarmed by Plaintiff's demeanor because an active shooter had killed at least 20 people in 22 a Texas Walmart three days earlier. The Officers arrested Plaintiff for trespassing, 23 searched him, and cited him for disorderly conduct. One Officer submitted the citation 24 for prosecution, which the prosecutor subsequently dropped. The Court will grant 25 Defendants' Motion because probable cause supported Plaintiff's arrest, the Officers 26 validly searched Plaintiff's person incident to his arrest, and the Officers are entitled to 27 qualified immunity in all respects, including on the search of Plaintiff's backpack. 28 Plaintiff's original complaint alleged 11 counts against the Officers and vicariously 1 against the Town. Doc. 1. The Court dismissed without prejudice for failure to state a 2 claim. Doc. 26. Plaintiff moved to amend his complaint, adding a few factual allegations 3 tending to weaken probable cause: that 9-1-1 dispatchers provided the Officers with an 4 innocent explanation for Plaintiff's appearance, (Doc. 27 ¶¶ 26–28), and that the Walmart 5 manager's story to the Officers was unreliable. Doc. 27 ¶ 41. The Court granted in part, 6 permitting six claims to move forward. Doc. 29. The Court subsequently dismissed one 7 Defendant, (Doc. 35), and granted partial summary judgment for the Officers on the three 8 remaining state law claims. Doc. 44. The Court found partial summary judgment 9 warranted for the Officers because Plaintiff failed to personally serve the Officers and 10 failed to respond to their partial summary judgment motion. Doc. 44 at 2. But the Court 11 denied partial summary judgment for the Town, citing ambiguous Arizona law that could 12 permit vicarious liability for an employer even when its agents receive summary 13 judgment. Doc. 44 at 5. Defendants' motion for summary judgment and statement of facts 14 followed. Docs. 58 ("MSJ"), 59 ("DSOF"). Plaintiff responded, (Docs. 66 ("Response"), 15 67 ("PSOF")), and Defendants replied. Doc. 69. The Court heard oral argument on 16 February 8, 2022. Doc. 71 ("Hr'g Trns."). 17 I. Legal Standard 18 Summary judgment is appropriate when the parties have no genuine dispute as to 19 any material fact. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 20 322–23 (1986). A dispute is genuine if a reasonable jury could return a verdict for the 21 nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). A fact is 22 material if it might affect the outcome of the suit. Id. 23 The movant bears the initial responsibility of presenting the basis for its motion 24 and identifying those portions of the record that demonstrate the absence of a genuine 25 issue of material fact. Celotex, 477 U.S. at 323. If the movant meets its initial 26 responsibility, the burden shifts to the nonmovant to demonstrate the existence of a 27 factual dispute and that the fact in contention is material. Liberty Lobby, 477 U.S. at 248, 28 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The 1 nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l 2 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968); however, it must "come 3 forward with specific facts showing that there is a genuine issue for trial." Matsushita 4 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation 5 omitted); see Fed. R. Civ. P. 56(c)(1). The court must believe the nonmovant's evidence 6 and draw all inferences in the nonmovant's favor. Liberty Lobby, 477 U.S. at 255. 7 II. Material Facts 8 Plaintiff's case depends on whether the Officers had probable cause to arrest him 9 for trespassing or disorderly conduct, and whether they searched him lawfully. As 10 explained in more detail below, probable cause considers the totality of the circumstances 11 known to officers at the time and does not require officers to believe every innocent 12 explanation; trespassing is knowingly remaining on a property after a reasonable request 13 to leave; and disorderly conduct includes knowingly making a protracted display to 14 prevent the transaction of business. The following facts relevant to probable cause and 15 the search are undisputed or drawn from Plaintiff's account. 16 A. The encounter and arrest 17 On August 6, 2019, Defendant Officers responded to several 911 calls reporting a 18 suspicious person at a Sahuarita Walmart. DSOF ¶¶ 1–4; PSOF ¶¶ 1–4. The Officers 19 knew that three days earlier, an active shooter had killed or injured 46 people at a 20 Walmart in El Paso, Texas. See DSOF ¶¶ 2, 14; PSOF ¶¶ 2, 14.1 Upon arrival, the 21 Walmart manager told the Officers that Plaintiff alarmed the manager and his staff by 22 walking around the store wearing armored motorcycle clothes, a motorcycle helmet with 23 a closed visor, and a camouflage backpack. DSOF ¶ 9; Response at 3:15; PSOF ¶ 9. 24 August temperatures in Sahuarita are hot, averaging between 98 and 103 degrees. (DSOF 25

26 1 See also, e.g., Dakin Andone, et al., 20 people killed in El Paso shooting, Texas governor says, CNN (8:58 AM EDT, August 4, 2019), https://www.cnn.com/2019/08/03/ 27 us/el-paso-shooting/index.html. The Court takes judicial notice of this article because its 28 details are readily determined, see Fed. R. Evid. 201, and because both parties refer to “the El Paso shooting” repeatedly. 1 ¶ 10; PSOF ¶ 10. The manager told the Officers he asked Plaintiff to remove his helmet 2 but was ignored, followed Plaintiff around the store trying to get his attention, and 3 demanded Plaintiff leave the store five or six times. DSOF ¶¶ 11–13; PSOF ¶¶ 11–13. 4 The Officers approached Plaintiff as he was placing purchased items in his 5 backpack. DSOF ¶ 6; PSOF ¶ 6. Plaintiff did not react when Officer George said, "Hey 6 buddy, you got some ID?" DSOF ¶¶ 6–7; PSOF ¶¶ 6–7. Officer George stepped closer to 7 Plaintiff and addressed him again in a raised voice. DSOF ¶ 7; PSOF ¶¶ 7, 10(2). This 8 time Plaintiff responded, removed his helmet, and began to answer the Officers' 9 questions. DSOF ¶ 7; PSOF ¶ 7. Plaintiff explained that he did not hear the manager or 10 the Officer's initial question because he was listening to music through his helmet's 11 Bluetooth connection. See PSOF ¶¶ 4(2), 8(2). Plaintiff also explained he did not know 12 the manager was trying to get his attention, and that he saw the manager but believed the 13 manager was talking through a headset to someone else. PSOF ¶¶ 7(2), 8(2). 14 The interaction grew more tense. After some back-and-forth between Plaintiff, the 15 manager, and the Officers, Officer George told Plaintiff, "You're an argumentative 16 person, and I am not the person you want to argue with." Response at 3. Officer George 17 told him to "stop talking," (id.), and to "listen to learn, not … to reply." Doc. 59-9 at 9 18 (referenced by Response at 3). "[A]fter Officers George and Rivera lectured [him about 19 scaring people in the wake of El Paso,]" Plaintiff stopped responding verbally. DSOF ¶ 8; 20 PSOF ¶¶ 8, 12(2). When the Officers asked subsequent questions, Plaintiff gestured that 21 he would remain silent. DSOF ¶ 8; PSOF ¶¶ 8, 12(2). Officer Rivera told Plaintiff, 22 "You're acting like a little child." PSOF ¶ 13(2). Officer Rivera told another officer he 23 was contemplating arrest, "especially the way that [Plaintiff is] acting." PSOF ¶ 16. 24 Shortly after, the Officers did arrest Plaintiff, despite initially deciding only to trespass 25 him (prohibiting Plaintiff from returning to any Walmart or affiliate). PSOF ¶ 15. The 26 Officers informed Plaintiff he was under arrest for trespassing, but Officer Rivera also 27 concluded that Plaintiff should be arrested and cited for disorderly conduct. PSOF ¶ 15. 28 /// 1 B. The search and prosecution 2 Officers George and Villanueva handcuffed Plaintiff and led him outside; Officer 3 Rivera collected Plaintiff's backpack and helmet, which were next to Plaintiff when he 4 was arrested, and followed. Doc. 59-12 at 9:00–10:00; see also DSOF ¶ 15; cf. PSOF 5 ¶ 15.2 Once outside at their patrol vehicle, two Officers searched Plaintiff's person. DSOF 6 ¶¶ 17, 18; PSOF ¶¶ 17, 18; Doc. 59-12 at 10:00–21:30. Toward the end of the search, 7 Officer Rivera asked Plaintiff, "Is there anything on you I may have missed?" Doc. 59-12 8 at 20:40. Plaintiff replied, "I do have basketball shorts [on under my motorcycle pants], 9 but the pockets are empty." Doc. 59-12 at 20:44. Officer Rivera asked Plaintiff to confirm 10 the pockets were empty, and Plaintiff replied, "I've got no reason to lie." Doc. 59-12 at 11 20:55. Another officer advised Plaintiff that he would be searched at the jail, and that if 12 Plaintiff had "any drugs, any contraband, weapons whatsoever" they would be found and 13 ought to be disclosed. Doc. 59-12 at 20:56–21:16. The officer concluded, "So if you have 14 anything on you like that you need to tell us now[.]" Doc. 59-12 at 21:16–21:19. Plaintiff 15 replied, "I don't. Not on me at least. I don't know about my backpack." Doc. 59-12 at 16 21:24–21:29. Officer Rivera then closed Plaintiff in the back of the patrol vehicle and 17 searched Plaintiff's backpack, which the bodycam video shows was on the hood of the 18 patrol vehicle. Doc. 59-12 at 21:34–32:10; cf. DSOF ¶ 18 ("Plaintiff's backpack, which 19 was originally in [Plaintiff's] possession and remained near [Plaintiff's] area of detention, 20 was also searched."); PSOF ¶ 18 ("Admit."). 21 Officer Rivera signed a citation for disorderly conduct, not trespassing, and 22 submitted it for prosecution.3 The charges ultimately "were dismissed." PSOF ¶ 16(2). 23 2 The Court draws in part on bodycam footage because the parties’ statements of fact 24 obscure or omit critical details. The parties stipulated to the bodycam’s accuracy at oral argument. Hr’g Trns. at 16:1. 25 3 The parties’ statements of fact again obscure or omit critical details. Compare MSJ at 26 15 (stating without citation that “Officer Rivera signed the citation for disorderly conduct”), with Response at 3–4 (Plaintiff “was … booked into jail[] and prosecuted until 27 charges against him were dismissed.”); cf. Complaint ¶ 114 (“Defendants caused Plaintiff 28 to be criminally prosecuted[.]” The parties clarified and stipulated the stated facts concerning Plaintiff’s initial prosecution at oral argument. Hr’g Trns. at 15:14. 1 III. Analysis 2 Defendants assert qualified immunity from Plaintiff's federal claims (Counts One, 3 Two, and Three), and that probable cause defeats Plaintiff's state claims (Counts Seven 4 and Eight). MSJ at 6, 17. Police officers are entitled to qualified immunity if their 5 "conduct does not violate clearly established statutory or constitutional rights of which a 6 reasonable person would have known." City of Escondido, Cal. V. Emmons, 139 S. Ct. 7 500, 503 (2019) (per curiam) (citations omitted). This analysis consists either in: 8 (1) determining whether the facts a plaintiff has shown make out a constitutional 9 violation, or (2) determining whether the right at issue was "clearly established" at the 10 time of the defendant's alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232, 11 242 (2009). Lower courts are advised to "think hard, then think hard again" before 12 analyzing both. D.C. v. Wesby, 138 S. Ct. 577, 589 n. 7 (2018) (citation omitted). 13 In this case, the first qualified-immunity option requires a probable-cause analysis 14 that also resolves Plaintiff's state-law claims. The Court therefore first determines that 15 probable cause supported Plaintiff's arrest, citation, prosecution, and the search of 16 Plaintiff's person. That defeats all Plaintiff's claims except for illegal search of his 17 backpack. The Court then determines that Plaintiff waived any objection to the backpack 18 search by failing to identify it as a genuine issue for trial in his Response. Even if he had 19 not waived any objection, the Court finds that Plaintiff's right to be free of the backpack 20 search was not "clearly established" at the time, so the Officers are entitled to qualified 21 immunity on that count. 22 A. Probable cause defeats all but one part of Plaintiff's claims. 23 The Fourth Amendment protects "against unreasonable searches and seizures." 24 U.S. Const. amend. IV. Arrest is a seizure, and warrantless arrest is reasonable if the 25 officer has probable cause to believe the suspect committed a crime in the officer's 26 presence. Wesby, 138 S. Ct. at 585 (citations omitted). The Court discusses the law 27 related to searches in the search analysis below. 28 Probable cause "is not a high bar." Kaley v. United States, 571 U.S. 320, 338 1 (2014). It requires only a "reasonable ground for belief of guilt" under the totality of the 2 circumstances known to an officer before the arrest. See Maryland v. Pringle, 540 U.S. 3 366, 371 (2003) (citations omitted). A "suspect's innocent explanation" is part of that 4 totality, but an officer need not rule it out. Wesby, 138 S. Ct. at 588. The probable-cause 5 test is objective; a particular officer's subjective beliefs or motivations are generally 6 irrelevant. See Whren v. United States, 517 U.S. 806 (1996); see also Ashcroft v. al-Kidd, 7 563 U.S. 731, 736 (2011) (identifying two exceptions that do not apply in this case). 8 Instead, an objectively "reasonable ground for guilt" exists given a "fair probability," 9 Florida v. Harris, 568 U.S. 237, 244 (2013) (citation omitted), "or substantial chance of 10 criminal activity, not an actual showing of such activity." Wesby, 138 S. Ct. at 586 11 (citations omitted). Put differently, an officer does not violate the Constitution by 12 mistakenly but reasonably concluding probable cause exists. See id. 13 a. Probable cause supported Plaintiff's arrest and prosecution. 14 Plaintiff's claims for false arrest and malicious prosecution are defeated by 15 probable cause supporting the Officers' actions. An officer could reasonably conclude 16 probable cause existed to arrest Plaintiff for trespassing and disorderly conduct. 17 Trespassing includes "knowingly … remaining unlawfully on any real property after a 18 reasonable request by … any other person having lawful control over [the] property." 19 A.R.S. § 13-1502(A)(1) (class 3 misdemeanor); see also A.R.S. § 13-1503(A)(1) (class 2 20 misdemeanor). The Officers were dispatched when the Walmart manager and several 21 employees called 911 to report a suspicious person. The Officers knew that a Texas 22 Walmart had been the site of a mass shooting three days prior. When the Officers arrived, 23 the manager told them he had asked Plaintiff to leave 5–6 times. The manager also told 24 them Plaintiff had ignored the manager's request to remove his helmet, and that the 25 manager had followed Plaintiff around the store. The Officers could see Plaintiff was 26 wearing full motorcycle gear including a helmet with a closed visor and using a 27 camouflage backpack. 28 An officer encountering Plaintiff under those circumstances could reasonably 1 conclude there was a fair probability Plaintiff knew he was remaining in Walmart 2 unlawfully. Several aspects of the encounter would support this conclusion. An officer 3 could believe that Walmart managers and employees do not typically report customers as 4 suspicious persons to 911 unless that customer's appearance is highly unusual. An officer 5 could also believe Plaintiff was dressed unusually compared with community standards, 6 other customers, and given the summer heat. On that basis, an officer could infer that 7 Plaintiff's unusual appearance was obvious. That inference, together with the manager's 8 statements and the recent Walmart mass shooting, could support the belief that Plaintiff 9 knew his appearance was generally disconcerting but chose to ignore the manager's 10 requests to leave. 11 A reasonable officer could also choose not to believe Plaintiff's innocent 12 explanations. Plaintiff claimed he could not hear anything because he was listening to 13 music. Plaintiff also claimed he did not know the manager was trying to get his attention 14 because Plaintiff thought the manager was speaking to someone else through a headset. 15 Together with the details above, an officer could find it implausible that Plaintiff's music 16 rendered him so unaware of his surroundings he did not notice the manager following 17 him around asking him to leave. An officer could similarly find it implausible that 18 Plaintiff's music prevented him from noticing three police officers approaching and 19 surrounding him until one of them stepped in close and spoke in a raised voice. And an 20 officer could find it implausible that Plaintiff mistook the manager asking Plaintiff to 21 leave 5–6 times for the manager talking to someone else. 22 Although a somewhat closer question, an officer could also reasonably conclude 23 there was probable cause to suspect disorderly conduct. Disorderly conduct includes 24 making "any protracted … display with the intent to prevent the transaction of the 25 business of a lawful … gathering [with intent to disturb the peace … or with knowledge 26 of doing so.]" A.R.S. § 13-29904(A)(4). Based on the recent Walmart shooting and 27 observations of Plaintiff's dress, manner, and potentially implausible explanations, 28 together with the manager's account, an officer could conclude that Plaintiff intended his 1 appearance to be disconcerting and thereby disrupt Walmart's business. Alternately, an 2 officer could conclude Plaintiff knew his appearance was disconcerting but chose to 3 proceed anyway despite the apparent effect of disrupting Walmart's business. Either way, 4 an officer could conclude—reasonably even if mistakenly—probable cause existed to 5 suspect Plaintiff of disorderly conduct. 6 Plaintiff raises several unpersuasive objections. Plaintiff objects that the Officers 7 could have reviewed Walmart's security footage on the spot to determine the truth. But a 8 reasonable officer is under no obligation to conduct that kind of investigation before 9 making an arrest. Plaintiff also objects that the manager's story to the police was 10 inconsistent, alerting them to its untrustworthiness. But the only fact Plaintiff identifies 11 that was known to the Officers at the time is that the manager initially hesitated when 12 asked whether he asked Plaintiff to leave the store. (Response at 2 n.1.) That is not 13 enough to support Plaintiff's theory. Plaintiff also objects that the Officers arrested him 14 because they were frustrated with him, not because they had probable cause for 15 trespassing or disorderly conduct. But the Officers' motivation is irrelevant because a 16 reasonable officer under the same circumstances could conclude probable cause existed. 17 For these reasons, the Court finds that the undisputed facts show the Officers had 18 probable cause to arrest Plaintiff for trespassing and disorderly conduct. The Court will 19 grant summary judgment for Defendants on Count One (Federal False Arrest against 20 Defendant Officers and vicariously against Defendant Town) and Count Seven (State 21 False Arrest vicariously against Defendant Town). For the same reasons, the Court will 22 also grant summary judgment for Defendants on Count Three (Federal Malicious 23 Prosecution against Defendant Officers and vicariously against Defendant Town) and 24 Count Eight (State Malicious Prosecution vicariously against Defendant Town). Probable 25 cause defeats both federal and state malicious prosecution claims. Awabdy v. City of 26 Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); Bird v. Rothman, 128 Ariz. 599, 602 (Ct. 27 App. 1981) (citations omitted). The undisputed facts support the Officers' probable-cause 28 1 determination, so they also defeat Plaintiff's malicious prosecution claim.4 2 B. Plaintiff's valid arrest justified the search that followed, at least for purposes of qualified immunity. 3 Plaintiff's remaining claim is the federal illegal search claim (Count Two). 4 Warrantless searches are generally unconstitutional unless they fit into one of several 5 exceptions. Riley v. California, 573 U.S. 373, 382 (2014) (citation omitted). Defendants 6 seek summary judgment primarily under the search incident to arrest ("SITA") exception, 7 which permits officers to search (1) an arrestee's person and (2) the area "within [the 8 arrestee's] immediate control" at the time of the arrest. (Doc. 58 at 13 (citing Chimel v. 9 California, 395 U.S. 752, 763 (1969)); see also United States v. Robinson, 414 U.S. 218, 10 236 (1973) (distinguishing the two areas and extending Chimel to a pack of cigarettes on 11 arrestee's person). Searches of an arrestee's person are justified by the diminished privacy 12 expectation an arrestee has in their person. See Riley, 573 U.S. at 392 (citation omitted). 13 These searches may be conducted contemporaneously or after the arrestee is transported 14 elsewhere. See United States v. Edwards, 415 U.S. 800, 803 (1974). 15 By contrast, searches of the area within an arrestee's "immediate control" are 16 justified by dual "interests in officer safety and evidence preservation[.]" See Arizona v. 17 Gant, 556 U.S. 332, 338 (2009) (interpreting Chimel in a vehicle-search context) 18 (citations omitted); United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010). These 19 searches must be "roughly contemporaneous" with the arrest. United States v. Smith, 389 20 F.3d 944, 951 (9th Cir. 2004). The question is "not strictly on the timing of the search but 21 its relationship to (and reasonableness in light of) the circumstances of the arrest." United 22 States v. Caseres, 533 F.3d 1064, 1073 (9th Cir. 2008) (quoting Smith, 389 F.3d at 951). 23 Ninth Circuit courts conduct "a twofold inquiry: (1) was the searched item within the 24 arrestee's immediate control when he was arrested; [and] (2) did events occurring after 25 the arrest but before the search ma[k]e the search unreasonable?" Maddox, 614 F.3d at 26 4 Even if Plaintiff’s arrest and prosecution were not supported by probable cause, 27 Defendants would be entitled to qualified immunity on Counts One, Three, Seven, and 28 Eight. Plaintiff fails to identify caselaw where officers in similar circumstances did not have probable cause. The Court also cannot find any. 1 1048 (quoting United States v. Turner, 926 F.2d 883, 887 (9th Cir. 1991)). On the second 2 question, temporal and spatial proximity does not guarantee reasonableness; instead, 3 some "threat or exigency must be present[.]" Id. In the context of a bag, one such threat 4 could be the reasonable possibility that the arrestee may reach the bag to destroy evidence 5 or obtain a weapon. See generally United States v. Cook, 808 F.3d 1195, 1200 (9th Cir. 6 2015). Another such threat is the legitimate belief that a dangerous instrumentality like a 7 weapon is inside. See Maddox, 614 F.3d at 1048–1049. 8 a. The Officers validly searched Plaintiff's person. 9 The SITA principles above easily apply to the Officers' search of Plaintiff's 10 person. The Officers began to search Plaintiff's pockets, shoes, and socks within a couple 11 minutes of his arrest. Those areas were within his "immediate control" when he was 12 arrested, and two minutes is "roughly contemporaneous" with the arrest. No intervening 13 events made the search unreasonable because the Officers merely walked Plaintiff 14 outside. The Officers' search of Plaintiff's person therefore fits comfortably within the 15 SITA exception and cannot support Plaintiff's illegal search claim. 16 Plaintiff responds with a single objection: "[I]f [Plaintiff]'s arrest was unlawful 17 [due to a lack of probable cause], the search incident to the arrest was also unlawful." 18 Response at 7. The Court understands this as a concession that if Plaintiff's arrest was 19 lawful, Plaintiff's search was also lawful. But the Court also finds Plaintiff's objection 20 unpersuasive for the reasons above. The Court therefore will also grant in part 21 Defendants' MSJ on Count Two with respect to Defendants' search of Plaintiff's person. 22 b. Although the backpack search was less clearly valid, Plaintiff waived any objection to it. 23 As discussed below, Officer Rivera’s search of Plaintiff’s backpack raises a much 24 closer question than the search of Plaintiff’s person. But Plaintiff waived any challenge to 25 it by not disputing Defendant’s factual assertion that the backpack remained in the “area 26 of detention” and by failing to meaningfully object in his Response. The Court will not 27 manufacture a party's arguments for them. See, e.g., Indep. Towers of Wash. v. 28 Washington, 350 F.3d 925, 929 (9th Cir. 2003). An argument not properly argued or 1 explained is waived. See, e.g., E.E.O.C. v. Eagle Produce, L.L.C., 2008 WL 2796407, at 2 *2 (D. Ariz. July 18, 2008) ("Parties must come forward with their points and authorities 3 in support of or in opposition to a motion."); see also LRCiv 7.2(i), (b). 4 Plaintiff's Response and statement of facts agreed that the backpack was within his 5 "area of detention" when Officer Rivera searched it, and argued only that any search was 6 illegal because the arrest was illegal. An item within an arrestee’s "area of detention" may 7 often be permissibly searched incident to lawful arrest, and Plaintiff's arrest was lawful. 8 Plaintiff thus fails to carry the shifted burden to demonstrate a disputed issue of fact for 9 trial. Because Plaintiff did not dispute Defendant’s statement of fact on this point or 10 present any argument regarding the backpack search before oral argument, the record is 11 incomplete. As a result, Defendants likely were prejudiced because they did not have an 12 opportunity to create a complete factual record or fully brief the legal issues related to the 13 backpack search, including qualified immunity. That prejudice is not cured simply 14 because the Court provided additional guidance to the parties before oral argument. The 15 Court’s guidance gave Defendants notice about the Court’s narrow focus on the relevance 16 of Plaintiff’s statements and whether the Court could properly consider them. Plaintiff’s 17 focus, by contrast, was given in his Response. 18 After oral argument, Plaintiff sought to insert facts and arguments he failed to 19 timely raise. His "Notice to the Court" alleges that Plaintiff's backpack never went to the 20 Pima County Jail for an inventory search. Doc. 72 at 1. Plaintiff further reminds the Court 21 of its powers under Federal Rule of Civil Procedure 56(e). Id. Plaintiff's "Notice" is in 22 fact an untimely motion to amend his Response and for the Court to order supplemental 23 briefing. Plaintiff acknowledges "[t]his issue was not argued or briefed by the parties[,]" 24 then continues to overlook his burden to overcome Defendants’ qualified immunity 25 defense with clearly established law. See id. Plaintiff's motion, like Plaintiff's Response, 26 is deficient. The time to pursue discovery, file a response, and flesh out or clarify 27 arguments has passed. Plaintiff has waived any challenge to the backpack search beyond 28 the argument he made that probable cause did not support the arrest. Plaintiff therefore 1 fails to carry his burden of demonstrating a genuine issue for trial. 2 c. The backpack search may have been constitutionally valid. 3 Even if Plaintiff did not waive any challenge to the backpack search, SITA 4 principles might produce the same result. When the Officers arrested Plaintiff, his 5 backpack was within his "immediate control" on a bench next to him. But three things 6 happened between the arrest and the backpack search that deserve more analysis: 7 (1) Officers' searched Plaintiff's person for about twelve minutes, (2) Officers handcuffed 8 Plaintiff and closed him in the back of a police vehicle, and (3) Plaintiff made a statement 9 that arguably implied the backpack could contain drugs, weapons, or contraband. The 10 question is whether those intervening events made the backpack search unreasonable. 11 Although searching Plaintiff's person did not render the backpack search 12 unreasonable, closing Plaintiff, handcuffed, into a police vehicle may have. The Officers' 13 search of Plaintiff's person did not make the backpack search unreasonable because 14 Officer safety and evidence preservation interests in the backpack are not diminished by a 15 twelve-minute personal search. Had the backpack remained next to Plaintiff during the 16 personal search, for example, SITA principles likely would permit the Officers to search 17 the bag after searching Plaintiff's person. By contrast, Officer Rivera's decision to close 18 Plaintiff in the squad car before searching the backpack is a much closer question—and 19 one Plaintiff did not identify in his Response. The law permits a rather broad view of 20 what suspects can reach after being handcuffed. Many cases support an officer's search of 21 a bag when the bag is near the suspect while they are handcuffed. See, e.g., Cook, 808 22 F.3d at 1199–1200. But once a suspect is handcuffed and closed in a police vehicle, 23 officer safety and evidence preservation concerns ordinarily evaporate. In other 24 circumstances, that could be enough to decide the issue and find the backpack search 25 unreasonable. 26 But a critical fact—overlooked by the parties' briefing—muddies the analysis. Just 27 before Officer Rivera closed the door, Plaintiff arguably implied that his backpack could 28 contain drugs, weapons, or contraband. An Officer advised Plaintiff to disclose if he had 1 "any drugs, any contraband, weapons whatsoever," and Plaintiff replied, "I don't. Not on 2 me at least. I don't know about my backpack." An officer could reasonably conclude from 3 that statement that Plaintiff's backpack might contain weapons. That in turn could revive 4 an interest in officer safety—though not an interest in evidence preservation—as officers 5 could be threatened by transporting a backpack containing a loaded firearm or an 6 explosive even if Plaintiff could not reach it. 7 The parties' briefing is unhelpful. Defendants carry their initial burden to justify 8 summary judgment by describing the backpack as remaining in Plaintiff's "area of 9 detention." But Plaintiff then admits that description, fails to dispute or discuss 10 Defendants' characterization of Chimel, and fails to recognize that Officer Rivera's 11 bodycam footage of the backpack search blatantly contradicts his affidavit. PSOF ¶ 18; 12 Response at 3–4; compare Doc. 59-1 ¶ 21, with Doc. 59-12 at 23:30–31:15. Defendants 13 also invoke the inevitable-discovery doctrine, claiming that a "post-arrest search" was 14 reasonable because the backpack would be subject to a booking inventory search at the 15 police station. MSJ at 13. Plaintiff fails to object, overlooking that the inevitable- 16 discovery doctrine applies only to the exclusionary rule and does not cure an underlying 17 constitutional violation. See, e.g., MSJ at 13 (citing U.S. v. Pearson, 902 F.3d 1016, 1019 18 (9th Cir. 2018) (affirming that backpack search exceeded SITA scope). Defendants fail to 19 cite any authority for blending the SITA exception and inventory searches into a general 20 "post-arrest search" authority.5 Defendants also fail to contend with SITA's complexities, 21 (see generally MSJ), or the fact that nominal damages are mandatory given even 22 harmless constitutional violations. See Carey v. Piphus, 435 U.S. 247, 266 (1978); 23

24 5 At oral argument, Defendants reiterated this argument. See Hr’g Trns. at 9:19–10:12 (emphasizing Illinois v. Lafayette, 462 U.S. 640 (1983), cited in MSJ at 13). But the 25 inventory search in Lafayette was conducted at the police station. 462 U.S. at 641, 645 26 (distinguishing the justification for stationhouse searches from searches incident to arrest). Inventory searches accompanying vehicle impoundment may be permissible 27 incident to arrest if they follow a standard procedure and are not for purposes of 28 investigation. See, e.g., Colorado v. Bertine, 479 U.S. 367, 372 (1987). But that reasoning does not clearly extend to personal effects. 1 Schneider v. Cnty. of San Diego, 285 F.3d 784, 794 (9th Cir. 2002). Plaintiff in turn fails 2 to address any of these issues. See generally Response. 3 d. Qualified immunity ultimately defeats any search liability. 4 Even setting the constitutional analysis to the side, Plaintiff’s claims related to the 5 backpack search fail because the Officers are entitled to qualified immunity. As discussed 6 above, qualified immunity may be resolved one of two ways; the first resolved all issues 7 except the backpack search. The second option requires Plaintiff to show a right was 8 "clearly established" when it was allegedly violated. Defendants urge this argument 9 throughout their MSJ and identify Plaintiff's failure to contend with it as a critical 10 shortcoming. See Doc. 69 at 2 ("Plaintiff's Response[] appears to contemplate that this 11 Court will … make Plaintiff's case for him."). Defendants' emphasis is understandable. 12 Qualified immunity presents a "demanding" standard, District of Colombia v. Wesby, 138 13 S. Ct. 577, 589–590 (2018), meant to protect "all but the plainly incompetent or those 14 who knowingly violate the law." White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) 15 (citation omitted). If the defendant is not plainly incompetent or a knowing violator—that 16 is, "if a reasonable officer might not have known for certain that the conduct was 17 unlawful—then the officer is immune from liability." Ziglar v. Abbasi, 137 S. Ct. 1843, 18 1867 (2017). 19 Meeting qualified immunity's "demanding" standard requires settled law: 20 controlling authority6 or a robust consensus of persuasive cases establishing legal 21 contours that clearly apply to the specific circumstances the officer faced. Wesby, 138 S. 22 Ct. at 589–590 (citations and internal quotation marks omitted). Specificity is particularly 23 important in a Fourth Amendment context. See Wesby, 138 S. Ct. at 590 (citing Mullenix 24 v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). "Clearly established" precedent 25 requires "a case where an officer acting under similar circumstances . . . was held to have 26 violated the Fourth Amendment." Id. (citation omitted). The precedent need not be

27 6 The Supreme Court has repeatedly declined to decide whether circuit precedent 28 constitutes “clearly established” law. See, e.g., Emmons, 139 S. Ct. at 503 (citing San Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015)). 1 "directly on point," but must be sufficiently similar to place a search's lawfulness 2 "beyond debate." See id. (citation omitted). The plaintiff bears the burden of identifying 3 settled law that clearly applies to the officer's specific circumstances. See Davis v. 4 Scherer, 468 U.S. 183, 197 (1984); see also, e.g., Schafer v. Cty. Of Santa Barbara, 868 5 F.3d 110, 1118 (9th Cir. 2017) (identifying a line of Ninth Circuit cases basing this 6 proposition on Davis). 7 Here, Plaintiff fails to identify any relevant law in his Response and even after the 8 Court prompted him before oral argument.7 That is sufficient to support a grant of 9 summary judgment on its own. Even if it were not, the Court reaches the same result 10 based upon its own research and analysis comparing the undisputed facts with the legal 11 backdrop clearly established when Officer Rivera searched Plaintiff's backpack. The first 12 step is to establish the specific circumstances that confronted Officer Rivera. Because the 13 backpack search is the only remaining issue, the circumstances are relatively simple. 14 Officer Rivera searched Plaintiff's backpack after handcuffing him and closing him in the 15 back of a police vehicle. Right before the search, Plaintiff arguably implied that drugs, 16 weapons, or contraband might be in the backpack. 17 The next step is to determine the relevant period for "clearly established" 18 precedent. This period begins with Gant on April 21, 2009, because Gant concluded a 19 "trilogy" of cases governing searches incident to arrest. Riley, 573 U.S. at 384. Gant held 20 that a SITA vehicle search is lawful "only when the arrestee is unsecured and within 21 reaching distance of the passenger compartment at the time of the search." Id. (quoting 22 Gant, 556 U.S. at 343). Before Gant, many cases permitted vehicle searches incident to 23 arrest even if there was no possibility that the arrestee could gain access to the vehicle at 24 the time of the search. See Gant, 556 U.S. at 342 n. 3 (collecting cases and citing 25

26 7 At oral argument, Plaintiff offered just one case as clearly established law prohibiting the backpack search: U.S. v. Howards, 156 F.Supp.3d 1045 (9th Cir. 2016). See Hr’g 27 Trns. at 17.14. But Howards is easily distinguished because the backpack search there 28 was not incident to arrest, and the officer lacked probable cause to make an arrest in any event. See 156 F.Supp.3d at 1048. 1 Thornton v. United States, 541 U.S. 615, 628 (2004) (Scalia, J., concurring) (collecting 2 cases)). Despite its vehicle-search context, Gant is generally read as re-establishing 3 Chimel's twin concerns of officer safety and evidence destruction for the SITA exception. 4 See, e.g., Riley, 573 U.S. at 384 (analyzing a cellphone search incident to arrest under 5 Gant/Chimel); Cook, 808 F.3d 1199 ("We do not read Gant's holding as limited only to 6 automobile searches[.]"). Gant therefore begins a new chapter in the SITA exception. It 7 forms the beginning of precedent that could "clearly establish" the Officers' search as 8 unlawful. The end of the relevant period, naturally, is August 16, 2019, when Officer 9 Rivera searched Plaintiff's backpack. 10 The next step is to identify cases that could have established "beyond debate" that 11 Officer Rivera's backpack search was unlawful. As discussed briefly above, police may 12 lawfully search a backpack after handcuffing a suspect in certain circumstances if the 13 backpack remains within the suspect's area of "immediate control." Compare United 14 States v. Guzman-Guerrero, No. 2:15-CR-96-RMP, 2016 WL 10951813, at *3 (E.D. 15 Wash. Mar. 2, 2016), aff'd, 706 F. App'x 374 (9th Cir. 2017) (backpack search unlawful 16 where suspect was alone, handcuffed, and lying face down in the woods surrounded by 17 officers), with, e.g., United States v. Gordon, 895 F. Supp. 2d 1011, 1020 (D. Haw. 18 2012), aff'd, 694 F. App'x 556 (9th Cir. 2017) (search of nearby duffel bag lawful where 19 suspect was handcuffed and "under control of law enforcement officers"); Cook, 808 F.3d 20 at 1199–1200 (upholding backpack search despite the "highly significant" but "not 21 dispositive" fact that suspect was handcuffed and face down on the ground). These cases 22 indicate that handcuffs alone do not make a backpack search unlawful "beyond debate." 23 Precedent is clear that backpack searches incident to arrest are unlawful when a 24 suspect is handcuffed and closed in a police vehicle. In those circumstances, police 25 generally may not search a backpack without a warrant. In Gant, for example, a police 26 search of a vehicle was unlawful because the suspects were handcuffed and closed in a 27 police vehicle. 556 U.S. at 344. Similarly, in Maddox, a police search of a keychain was 28 unlawful because the suspect was handcuffed and closed in a police vehicle. 614 F.3d at 1 1048; see also United States v. Camou, 773 F.3d 932, 939 (9th Cir. 2014) (citing Maddox 2 in similar circumstances). In each case, handcuffing and securing a suspect in a police 3 vehicle removed Chimel's twin justifications of officer safety and evidence preservation. 4 Although not perfectly on point, taken together these cases establish beyond debate 5 that—without more—police may not search a backpack after handcuffing and closing a 6 suspect in the back of a police vehicle. 7 Precedent available to Officer Rivera did not clearly establish that Plaintiff's 8 statement failed to revive officer safety concerns. In Maddox, for example, the court 9 distinguished Turner, which upheld a bedroom search incident to arrest after the 10 defendant was handcuffed and taken to another room. 614 F.3d at 1048 (citing Turner, 11 926 F.2d at 887). Maddox justified Turner's result because there police had "already 12 discovered a concealed weapon beneath the bedding." Id. Maddox also distinguished 13 United States v. Hudson, which upheld a bedroom search incident to arrest after 14 defendant was handcuffed and taken to another room. Id. (citing 100 F.3d 1409, 1420 15 (9th Cir. 1996)). Maddox justified Hudson's result because there police had "noticed a 16 rifle case near [defendant's] feet [when he was arrested]." Id. (citing 100 F.3d 1409, 1420 17 (9th Cir. 1996)). In both Turner and Hudson, the presence of a "weapon or threat" 18 revived a legitimate concern for officer safety even though the suspect was handcuffed 19 and secured in another room. Id. Similarly, police have long been justified to search 20 luggage if they believe it contains "some immediately dangerous instrumentality, such as 21 an explosive [because] it would be foolhardy to transport it to the station house without 22 opening the luggage and disarming the weapon." United States v. Chadwick, 433 U.S. 1, 23 15 n. 9 (1977) (citing United States v. Johnson, 467 F.2d 630, 639 (2d Cir. 1972) (police 24 not obligated to transport an unopened suitcase that likely contained a loaded firearm)), 25 abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991). Since 26 Maddox, no Ninth Circuit cases have elaborated other circumstances that could create a 27 threat or exigency that revives officer safety concerns in the SITA context, though at least 28 one district court has. See Ross v. California, 2013 WL 2898066, at *10 (C.D. Cal. June || 10, 2013) (permitting a backpack search where officers were on the lookout for someone || matching plaintiff's description, plaintiff's only ID was a concealed weapons permit, and 3 || the officers searched the backpack immediately after closing plaintiff in a police vehicle). 4 Overall, the Court concludes that settled law did not prohibit Officer Rivera's 5|| search of Plaintiff's backpack after Plaintiff implied the backpack could contain a 6 || weapon. As a result, the Officers are entitled to qualified immunity on the search of Plaintiff's backpack. The Court will therefore grant summary judgment for Defendants 8 || with respect to the backpack search of Count Two (Federal Illegal Search against 9|| Defendant Officers and vicariously against Defendant Town). 10 C. Plaintiff's remaining arguments are unpersuasive. 11 Plaintiff asserts that Defendants do not address his claim for equitable relief. 12 || Response at 4. Plaintiff is not entitled to equitable relief because the Court will grant 13} summary judgment for Defendants on all counts. Plaintiff also argues that pretextual "contempt of cop" arrests can constitute violations of the First Amendment. Response at || 4 n. 3; Hr’g Trns. at 30:8—33:1. Plaintiff's argument is incongruent with his Amended || Complaint, (Doc. 30), which does not include a First Amendment claim. 17 IV. Order 18 For the reasons above, 19 IT IS ORDERED GRANTING Defendants’ Motion for Summary Judgment □□ (Doc. 58). The Clerk of the Court shall enter judgment accordingly. 21 Dated this 16th day of February, 2023. 22 23 ‘

24 WS Ht bhr-b onorable John C, Hinderaker 25 United States District Judge 26 27 28

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