1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Bryan Pittman, Case No.: 2:21-cv-01550-JAD-DJA
4 Plaintiff Order Granting Motion for Summary 5 v. Judgment and Closing Case
6 Las Vegas Metropolitan Police Department, [ECF No. 30] et al., 7 Defendants 8
9 Pro se plaintiff Bryan Pittman sues the Las Vegas Metropolitan Police Department 10 (Metro) and its officers Stephen Wisniewski, Paul Lewis, Michael Schena, and Eddie Scott for 11 violating his federal constitutional rights when they handcuffed him, conducted a pat-down, and 12 searched his truck during a child-custody exchange. The defendants move for summary 13 judgment on all claims, arguing that their conduct was lawful because they had reasonable 14 suspicion that Pittman unlawfully possessed a firearm and probable cause that he was violating a 15 temporary protective order and, regardless, they are spared from this suit by the doctrine of 16 qualified immunity. 17 I grant summary judgment on all claims against Officer Schena because he did not 18 personally participate in any of the alleged violations. I find that Pittman cannot support a 19 municipal-liability claim against Metro, so I grant Metro judgment in its favor, too. And because 20 Officers Wisniewski, Lewis, and Scott have shown that Pittman’s claims against them fail either 21 based on a lack of factual support in the record or qualified immunity—although their conduct 22 was far from model—I grant their motion, enter summary judgment in their favor, and close this 23 case. 1 Background1 2 On September 5, 2019, Bryan Pittman called Metro’s non-emergency line to request a 3 police escort for a child-custody exchange with his ex-wife Cassandra,2 as he had done several 4 times before.3 He parked about 200 yards away from the Burger King where the 8:00 a.m.
5 custody exchange was to take place and waited for the police to arrive.4 Minutes earlier, 6 Cassandra’s boyfriend had also called that same line to request assistance with the exchange.5 In 7 that call, he informed dispatch that Pittman possessed a handgun that he kept in the center 8 console of his vehicle.6 9 Though these custody exchanges were required as part of the couple’s divorce 10 proceedings, Cassandra had separately been granted a temporary protective order (TPO) against 11 Pittman that prohibited “any contact whatsoever” with her and barred him from “threatening, 12 physically injuring, or harassing” her through February 5, 2020.7 That TPO included an 13 exception to the no-contact directive for custody exchanges performed at their daughter’s 14 school.8 And though an earlier TPO in effect from May 13, 2019, to June 17, 2019, included an
15 16
1 Facts in this section are taken from Pittman’s first-amended complaint, ECF No. 17; 17 Wisniewski’s body-camera footage, ECF No. 30-2 at 40; and the defendants’ undisputed declarations and computer-aided dispatch reports, ECF No. 30-2 at 1–7, 49–51. These facts are 18 uncontested unless otherwise noted. 19 2 I refer to Cassandra by her first name to distinguish her from Bryan because they have the same surname. No disrespect is intended in doing so. 20 3 ECF No. 17 at 3. See ECF No. 30-1 at 15. 21 4 ECF No. 17 at 3. 5 Id. at 4. 22 6 Id. 23 7 ECF No. 30-2 at 10, 17–19 (protective order). 8 Id. at 18–19. 1 exception for custody exchanges taking place at this Burger King,9 the one in effect on this 2 September morning was silent about the Burger King exception. 3 Officer Stephen Wisniewski arrived first at the scene with his field-training officer Paul 4 Lewis and approached Cassandra and her boyfriend, who were parked in the Burger King lot.10
5 They told Wisniewski that they had requested police assistance because the custody exchanges 6 “usually go bad” and that Pittman “had been arrested twice” previously for violating a TPO.11 7 Wisniewski returned to Lewis, informing him that Pittman “has a TPO out on him and a 413,” 8 which is Metro’s internal code for a handgun.12 When officers Michael Schena and Eddie Scott 9 arrived a few minutes later, Wisniewski told them, “I’m going to contact [Pittman], I’m going to 10 have to take his 413 that he probably has per the details of the call because he has a TPO that’s 11 been served.”13 12 Pittman steered his truck over to the officers and stepped out of the vehicle, where he was 13 greeted by Wisniewski and asked to present his identification.14 After Pittman did so, 14 Wisniewski informed him that he would be conducting a pat-down search for weapons.15
15 Pittman protested, stating “no, I’m here to get my kids,” and inquiring why the search was 16 necessary.16 Wisniewski cuffed Pittman’s hands behind his back and proceeded with the pat- 17 down, while Schena told Pittman that they had information that he possessed a weapon in 18
9 Id. at 21. 19 10 ECF No. 30-2 at 0:00:33. 20 11 Id. at 0:00:50–0:01:15. 21 12 Id. at 0:02:15. See ECF No. 17 at 4. 13 ECF No. 30-2 at 0:05:35. 22 14 Id. at 0:06:10. 23 15 Id. at 0:06:19. 16 Id. at 0:06:25. 1 violation of his TPO.17 After Wisniewski completed the pat-down, another officer informed 2 Pittman that they needed to conduct a protective frisk of his vehicle, to which he responded, “I 3 don’t give you permission to go in my car.”18 Wisniewski went to search Pittman’s vehicle but, 4 upon finding that it was locked, retrieved Pittman’s car keys from his pocket at Lewis’s
5 direction,19 and then searched the driver and passenger compartments of the truck, including the 6 center console and glovebox.20 During this time, Officer Scott held Pittman by the arm.21 7 Wisniewski found no weapons or contraband in Pittman’s car.22 8 Pittman then requested that the handcuffs be removed and asked if he was under arrest; 9 Wisniewski answered no to both inquiries.23 Wisniewski explained that Pittman was initially 10 placed in cuffs for refusing to submit to a pat-down, and the restraints would stay on because he 11 was “being hostile with officers, so I don’t know what your intent is, because normal citizens 12 don’t talk back like this.”24 Pittman again pressed Wisniewski to explain why he was still 13 restrained, and the officer responded that “the behavior that you’ve just showed us today tells 14 me, from my experience, that you’re likely to fight with officers, and that’s why you’re in
15 handcuffs.”25 Having determined that it was safe to proceed with the custody exchange, 16 Wisniewski approached Cassandra and directed her to drive over to Pittman’s truck and place the 17
18 17 Id. at 0:06:41; ECF No. 17 at 13. 18 ECF No. 30-2 at 0:07:37. 19 19 ECF No. 17 at 5. 20 20 ECF No. 30-2 at 0:08:12–0:11:54. 21 21 ECF No. 17 at 6. 22 ECF No. 30-2 at 0:12:03. 22 23 Id. at 0:12:06. 23 24 Id. at 0:13:00. 25 Id. at 0:13:17–24. 1 child inside.26 In order to run the air-conditioning inside Pittman’s vehicle so that his daughter 2 would not have to sit inside a hot car, Wisniewski retrieved Pittman’s keys from his pocket a 3 second time, unlocked the truck, started it, and turned on the air conditioning.27 But when 4 Cassandra placed the child inside Pittman’s truck, he protested, “I don’t give her permission to
5 go in my vehicle.”28 So Wisniewski instructed Cassandra to remove the child from Pittman’s 6 truck.29 Scott then removed the handcuffs from Pittman so that he could retrieve his daughter 7 from Cassandra.30 8 Pittman filed this suit against Metro, Wisniewski, Lewis, Schena, and Scott for violating 9 his Fourth Amendment rights and falsely arresting him.31 In his operative pleading, Pittman 10 theorizes that the officers acted unlawfully when they handcuffed, detained, searched, and falsely 11 arrested him; twice obtained Pittman’s keys from his pocket; and searched his truck without a 12 warrant.32 The defendants now move for summary judgment on all claims, contending that the 13 record doesn’t support any violations of Pittman’s constitutional rights and that, even if it did, 14 qualified immunity shields them from liability.33 Pittman opposes the motion, arguing that the
15 officers acted unreasonably and violated his rights by arresting and searching him without 16 justification.34 17
18 26 Id. at 0:14:25. 27 Id. at 0:17:02–0:17:22. 19 28 Id. at 0:17:30. 20 29 Id. at 0:17:44. 21 30 Id. at 0:18:30–0:19:00; ECF No. 17 at 10. 31 ECF No. 1. 22 32 See ECF No. 17 at 12–14 (first-amended complaint). 23 33 ECF No. 30. 34 ECF No. 36. 1 Discussion 2 I. To prevail on summary judgment, the defendants must show that the record presents no genuine dispute of material fact and that they are entitled to judgment 3 as a matter of law.
4 The principal purpose of the summary-judgment procedure is to isolate and dispose of 5 factually unsupported claims or defenses.35 The moving party bears the initial responsibility of 6 presenting the basis for its motion and identifying the portions of the record or affidavits that 7 demonstrate the absence of a genuine issue of material fact.36 If the moving party satisfies its 8 burden with a properly supported motion, the burden then shifts to the opposing party to present 9 specific facts that show a genuine issue for trial.37 Defendants moving for summary judgment 10 don’t have to produce evidence to negate the plaintiff’s claim; they merely have to point out the 11 absence of a genuine material factual issue.38 The defendants need only defeat one element of a 12 claim to garner summary judgment on it because “a complete failure of proof concerning an 13 essential element of [a plaintiff’s claim] necessarily renders all other facts immaterial.”39 14 II. Pittman’s claims against Officer Schena fail as a matter of law because Schena did 15 not personally participate in any of the alleged violations.
16 Pittman theorizes that Officer Schena violated his constitutional rights by “claiming that 17 [Pittman’s possession of] a firearm was a violation of a TPO order” and “attempting to 18 convince” other officers that he “had violated a TPO order by being present” at the Burger King 19
20 35 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 36 Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). 21 37 Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Auvil v. CBS 22 60 Minutes, 67 F.3d 816, 819 (9th Cir. 1995). 38 See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); Celotex, 477 U.S. at 323– 23 24. 39 Celotex, 477 U.S. at 322. 1 for the custody exchange.40 Both parties appear to agree that Schena did not otherwise 2 personally participate in Pittman’s detention or pat-down or the search of his vehicle. But even 3 assuming Schena misrepresented to Pittman and others the TPO’s prohibitions on him, that act 4 does not support a finding that Schena personally violated Pittman’s Fourth Amendment rights,
5 as the law requires to sustain this claim, because a defendant is liable under 42 U.S.C. § 1983 6 “only upon a showing of [his] personal participation.”41 So I grant Schena summary judgment 7 on all claims against him.42 8 III. The record does not support municipal liability against Metro for the constitutional 9 violations that Pittman claims.
10 Pittman names Metro as a defendant based on two factual theories: (1) it acknowledged 11 in an internal-affairs-investigation letter that Officer Lewis violated Metro policy, and (2) Metro 12 engages in biased policing because these officers relied on a phone tip from an “uncredible 13 witness.”43 The United States Supreme Court held in Monell v. Department of Social Services of 14 the City of New York that a municipal entity like Metro can be held liable for the constitutional 15 violations of an officer only if the violations occurred because the officer was carrying out a 16 17 40 ECF No. 17 at 7, 13–14. 18 41 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 19 42 In Pittman’s opposition to the defendants’ summary-judgment motion, he also argues that Schena “as well as other officers on scene had a duty to intervene when [Pittman’s] rights . . . 20 were violated.” ECF No. 36 at 4. But no duty-to-intervene claim was plead in Pittman’s complaint. A plaintiff cannot assert entirely new claims for the first time in an opposition to 21 summary judgment. See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (holding that the defendant lacked adequate notice of the plaintiff’s new ADA claims raised for 22 the first time in opposition to summary judgment); see also Fed. R. Civ. P. 8(a)(2) (requiring a plaintiff to include “a short and plain statement of the claim showing that the pleader is entitled 23 to relief”). So I disregard the arguments regarding this new duty-to-intervene claim. 43 ECF No. 36 at 7, 11, 20. 1 municipal policy or custom.44 But Pittman doesn’t contend that the officers were implementing 2 a Metro policy or custom. He relies primarily on the organization’s finding that Officer Lewis 3 violated Metro Policy Number 5/200.01.45 Because Monell liability attaches only when an 4 officer is executing a municipal policy or custom,46 Pittman cannot rely on Lewis’s violation of a
5 policy to support a § 1983 claim against Metro. 6 Pittman’s theory that these officers’ reliance on “the word of a completely uncredible 7 witness” shows that the organization is “policing its citizens with a ‘scope’ based on [unreliable] 8 opinions” likewise fails to show municipal liability because Pittman identifies just one instance 9 of this conduct,47 and a single violation of municipal policy is insufficient to establish Monell 10 liability. The Supreme Court held in City of Oklahoma City v. Tuttle that “proof of a single 11 incident of unconstitutional activity is not sufficient to impose [municipal] liability[;] . . . the 12 existence of [an] unconstitutional policy, and its origin, must be separately proved.”48 Because 13 neither of Pittman’s theories against Metro is legally viable, I grant summary judgment in favor 14 of Metro on all claims against it.
18 44 Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing Monell, 436 U.S. at 690). 19 45 ECF No. 36 at 11 (Metro’s answers to Pittman’s interrogatories), 20 (internal-affairs letter). The defendants dispute the admissibility of the internal-affairs-investigation letter based on 20 Federal Rule of Evidence 407. ECF No. 29 at 3. But because the letter, even if admitted, would not establish a basis for Metro’s liability, I do not reach the defendants’ evidentiary argument. 21 46 Long, 442 F.3d at 1185. 22 47 ECF No. 36 at 7. 48 City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985); but see Pembaur v. City of 23 Cincinnati, 475 U.S. 469, 480 (1986) (holding that “a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body . . . .” (emphasis added)). 1 IV. The record does not support any claims against Officers Wisniewski, Lewis, or Scott 2 in their individual capacities.
3 Officers Wisniewski, Lewis, and Scott are entitled to summary judgment on Pittman’s 4 claims against them because either he cannot show that they violated his constitutional rights or 5 the officers are protected from liability by qualified immunity. Pittman theorizes that his Fourth 6 Amendment rights were violated when Wisniewski conducted a pat-down, detained, and 7 handcuffed him with “no immediate or articulable threat to the officers”; Scott continued to hold 8 Pittman in handcuffs “even after the facts and circumstances dispelled any suspicions or 9 hunches” that he was violating the law; and Wisniewski removed car keys from Pittman’s pocket 10 and searched his car without consent.49 He claims that his detention and Scott’s “holding him 11 with a tight grip” constituted a false arrest and false imprisonment.50 Pittman alleges that Lewis 12 was the “leader of the gang” who “ordered Wisniewski to illegally remove the keys from . . . 13 Pittman’s shorts” in violation of his Fourth Amendment rights.51 14 These remaining defendants contend that none of these facts give rise to a constitutional 15 violation because the restraint, pat-down, and vehicle search were justified by their reasonable 16 suspicion that Pittman unlawfully possessed a firearm.52 And while they contend that their 17 restraint of Pittman did not rise to an arrest, they aver that they had probable cause to arrest him 18 nevertheless.53 Finally, the defendants argue that, even if they did violate Pittman’s rights, they 19 20
21 49 ECF No. 17 at 12. 50 Id. 22 51 Id. at 14. 23 52 ECF No. 30 at 14–23. 53 Id. at 25. 1 are shielded from liability by the doctrine of qualified immunity.54 Because each phase of this 2 custody exchange presented unique constitutional concerns, I address each phase separately and 3 in the order in which they unfolded. 4 A. Officer Wisniewski had reasonable suspicion to detain Pittman.
5 Pittman claims that Wisniewski violated his constitutional rights when he “illegally 6 detained” him at the start of the custody exchange.55 In Terry v. Ohio, the Supreme Court 7 sanctioned “limited police intrusions on a person’s freedom of movement and personal security 8 when an officer’s suspicion falls short of the ‘probable cause’ required to execute an arrest or a 9 ‘full’ search.”56 When initiating a Terry stop and investigating potential criminal activity, an 10 officer “must have reasonable suspicion to believe ‘criminal activity may be afoot.’”57 11 Reasonable suspicion is objective and requires the officer to “point to specific and articulable 12 facts [that], taken together with rational inferences from those facts, reasonably warrant that 13 intrusion.”58 14 Wisniewski contends that the initial detention of Pittman was justified by a reasonable
15 suspicion that he was engaged in a crime: the illegal possession of a firearm.59 Pittman responds 16 that such possession could not have formed the basis for his detention because “having a 17 handgun in the center console of your vehicle is not a crime in Nevada.”60 He adds that the TPO 18
19 54 Id. at 8–11. 55 ECF No. 17 at 7. 20 56 Thomas v. Dillard, 818 F.3d 864, 874 (9th Cir. 2016) (quoting Terry v. Ohio, 392 U.S. 1, 20– 21 21 (1968)). 57 Id. 22 58 Terry, 392 U.S. at 21. 23 59 ECF No. 30 at 15. 60 ECF No. 17 at 4. 1 did not prohibit him from possessing a firearm because the judge who issued the order “did not 2 see fit to put that restriction” on him.61 3 In fact, however, Pittman was prohibited from possessing a firearm under both federal 4 and state law. As the defendants note,62 18 U.S.C. § 922(g)(8) prohibits anyone who is subject
5 to a court order that “restrains such person from harassing, stalking, or threatening an intimate 6 partner of such person” from possessing “any firearm or ammunition.”63 And Nevada law bars 7 anyone “otherwise prohibited by federal law from having a firearm in his” possession.64 8 Because the TPO prohibited Pittman “from threatening, physically injuring, or harassing” his ex- 9 wife, both of these laws restricted him from possessing a firearm on the day of the custody 10 exchange.65 Thus, the boyfriend’s telephoned report that Pittman had a handgun in his truck’s 11 center console gave the officers reasonable suspicion that criminal activity was afoot, justifying 12 Pittman’s initial Terry detention. 13 B. Officer Wisniewski’s pat-down and handcuffing of Pittman and the search of his truck were justified by a reasonable suspicion that Pittman was armed 14 and dangerous.
15 1. Pittman cannot show that the pat-down violated his constitutional rights.
16 After the initial Terry stop, Wisniewski conducted a pat-down of Pittman for weapons—a 17 maneuver known as a Terry frisk. Pittman claims that this Terry frisk was an unconstitutional 18 search.66 Wisniewski avers that it was supported by his reasonable suspicion that Pittman was 19
20 61 Id. at 6. 21 62 ECF No. 30 at 15. 63 18 U.S.C. § 922(g)(8). 22 64 Nev. Rev. Stat. § 202.360(g). 23 65 ECF No. 30-2 at 10. 66 ECF No. 17 at 5. 1 armed and dangerous because (1) Pittman “had a history of violent behavior/crimes”; (2) “there 2 was a TPO against [him] and the contents of the TPO”; (3) “he had been previously arrested in 3 violation of his TPO”; (4) he “possessed a firearm”; (5) he had “bulges in his pockets”; (6) 4 “when confronted about a pat-down, [he] grew hostile and agitated.”67
5 To perform a Terry frisk, an officer must have “reasonable suspicion that a suspect ‘is 6 armed and presently dangerous.’”68 A “mere ‘inchoate and unparticularized suspicion or 7 hunch’” that a person is armed and dangerous does not establish reasonable suspicion.69 When 8 assessing reasonable suspicion, courts give considerable deference to the observations and 9 conclusions of officers, recognizing that an officer’s training and experience allows him to make 10 “inferences and deductions that might well elude an untrained person.”70 11 Pittman challenges Wisniewski’s assertion that there was a bulge in his pockets, stating 12 that he “had nothing in his pockets” and that the bulge justification “was a lie made up to cover 13 the rights violations.”71 Courts “have given significant weight to an officer’s observation of a 14 visible bulge in an individual’s clothing that could indicate the presence of a weapon.”72 For
15 example, in United States v. Hill, the Ninth Circuit panel concluded that an officer had 16 reasonable suspicion to raise a suspect’s shirt to search his waistband after that officer noticed a 17 large bulge that he suspected was caused by a weapon.73 The panel found that the proximity of 18
19 67 ECF No. 30 at 19; ECF No. 30-2 at 1–3 (Wisniewski’s declaration). 68 Thomas, 818 F.3d at 876. 20 69 Maryland v. Buie, 494 U.S. 325, 332 (1990) (quoting Terry, 392 U.S. at 27) (some internal 21 quotation marks omitted). 70 United States v. Cortez, 449 U.S. 411, 418 (1981). 22 71 ECF No. 36 at 5. 23 72 United States v. Flatter, 456 F.3d 1154, 1157 (9th Cir. 2006) (collecting cases). 73 United States v. Hill, 545 F.2d 1191, 1192–93 (9th Cir. 1976). 1 the search to the scene of a robbery, combined with the officer’s observation of the bulge, gave 2 him reasonable suspicion to conduct “a direct and specific inquiry” for weapons.74 Here, 3 Wisniewski’s observation of a bulge in Pittman’s pockets and his knowledge that Pittman 4 possessed a firearm, had a violent criminal record, was meeting the protected parties of a TPO
5 issued against him, and had previously violated that TPO gave Wisniewski reasonable suspicion 6 that Pittman was likely to be armed and dangerous.75 Wisniewski was thus justified in 7 conducting a “direct and specific” protective frisk for weapons.76 8 Pittman also contends that Wisniewski had no reasonable suspicion to believe that he was 9 armed and dangerous because Pittman himself had also called the police to facilitate the custody 10 exchange, and he never resisted officers.77 But even if Pittman wasn’t resisting, compliance is 11 not a bar to this protective search. So long as Wisniewski had a reasonable suspicion to believe 12 that Pittman was armed and dangerous, he was permitted to conduct a Terry frisk. 13 Pittman further argues that the phone call report that he had a weapon in his vehicle was 14 made by an untrustworthy third-party source, so the officers could not have relied on that call to
15 establish reasonable suspicion that Pittman was armed.78 He alleges that the tip was “baseless” 16 because Cassandra’s boyfriend who made the call “had never been around [Pittman] or in [his] 17 vehicle at any point” making “it impossible . . . to claim that [Pittman] was carrying a 18 weapon.”79 19
20 74 Id. at 1193. 21 75 ECF No. 30 at 19; ECF No. 30-2 at 1–3. 76 Hill, 545 F.2d at 1193. 22 77 ECF No. 36 at 4. 23 78 Id. at 3. 79 Id. 1 For an officer to conduct a Terry frisk based on a phone tip, the call must have “sufficient 2 ‘indicia of reliability.’”80 Instructive here is the Ninth Circuit’s analysis in United States v. 3 Terry-Crespo,81 in which a man called 911, reported that he had been threatened with a handgun, 4 and provided a location and description of the suspect.82 As a result of that tip, officers arrived
5 at the given location, stopped a man matching the description, and conducted a pat-down search 6 that revealed a weapon.83 The Ninth Circuit panel found that the call had “sufficient indicia of 7 reliability to support a reasonable suspicion justifying the Terry stop” because there were 8 physical records of the 911 call—an audio recording and transcript—and the call “was not 9 anonymous and therefore was entitled to greater reliability.”84 The panel contrasted its facts 10 with those in Florida v. J.L., in which an anonymous tipster reported “general criminal behavior” 11 that a minor was carrying a firearm in violation of state law, leading to a Terry stop and frisk.85 12 The Supreme Court held in J.L. that the call could not support reasonable suspicion that the 13 suspect was armed because the informant was anonymous, there was no documentation of the 14 call in the record, and the caller had dialed the police department rather than 911.86
15 16 17 18
19 80 United States v. Terry-Crespo, 356 F.3d 1170, 1173 (9th Cir. 2004) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). 20 81 Id. 21 82 Id. at 1172. 83 Id. at 1172–73. 22 84 Id. at 1174. 23 85 Id. at 1176; Florida v. J.L., 529 U.S. 266 (2000). 86 J.L., 529 U.S. at 268. 1 Our facts more closely mirror those in Terry-Crespo. The tipster here was not 2 anonymous,87 so the call was “entitled to greater reliability.”88 And unlike in J.L., there is at 3 least some evidence in the form of a computer-aided dispatch report that the call took place.89 4 Plus, the tipster provided the specific facts that Pittman’s gun was located in the center console
5 of his truck and that such possession was illegal because he was bound by a TPO.90 Those 6 details made this tip more reliable than a report of “general criminal behavior.”91 And while, 7 like in J.L., this tip was phoned in to the non-emergency line rather than 911, I find that the 8 known identity of the caller, the inclusion of specific facts of criminality, and evidence of the call 9 in the record support the finding that this tip was reliable. Wisniewski thus reasonably relied on 10 the tip to form a reasonable suspicion that Pittman was armed and dangerous, so Wisniewski is 11 entitled to summary judgment on Pittman’s Fourth Amendment claim arising from the pat-down 12 search. 13 2. Officer Wisniewski’s initial use of handcuffs on Pittman did not violate 14 his Fourth Amendment rights.
15 Pittman claims that Wisniewski and Scott’s “use and/or continued or extended use of 16 handcuffs” on him during the Terry stop also violated his constitutional rights.92 He theorizes 17 that Wisniewski’s stated reason—“normal citizens don’t talk back like this”—doesn’t justify his 18 19
87 ECF No. 17 at 4. Though the defendants do not explicitly identify the caller, they do not 20 dispute this fact in their briefing. 21 88 Terry-Crespo, 356 F.3d at 1174. 89 ECF No. 30-2 at 49 (exhibit J). 22 90 ECF No. 30 at 19; ECF No. 30-2 at 1–3. 23 91 Terry-Crespo, 356 F.3d at 1176. 92 ECF No. 17 at 12. 1 handcuffing and continued detention after the pat-down search revealed no weapons.93 2 Wisniewski and Scott contend that the handcuffing was justified because Pittman “was clearly 3 hostile and angry about the idea of a pat-down,” “refused to walk towards the vehicle when 4 asked by . . . Wisniewski,” had a “history of violent behavior,” and presented a “further safety
5 concern” because “Cassandra and the child were in the parking lot.”94 6 “Police officers are entitled to employ reasonable methods to protect themselves and 7 others in potentially dangerous situations.”95 Because “handcuffing substantially aggravates the 8 intrusiveness of an otherwise routine investigatory detention,” it “is not part of a typical Terry 9 stop,”96 so the use of handcuffs “during an investigatory detention ‘must be justified by the 10 circumstances.’”97 Handcuffing is permitted only in “special circumstances, such as (1) where 11 the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of 12 danger or flight; (2) where the police have information that the suspect is currently armed; 13 (3) where the stop closely follows a violent crime; and (4) where the police have information that 14 a crime that may involve violence is about to occur.”98
15 The first and second scenarios justified Pittman’s handcuffing. Pittman refused to 16 cooperate with the pat-down, and the officers had credible information that he had a gun in the 17 18
93 Id. at 7 (“Wisniewski told [Pittman] that due to his behavior of accusing officers of unlawful 19 acts, it is believed that [Pittman] will fight if removed from cuffs.”); ECF No. 30-2 at 0:12:59. 20 94 ECF No. 30 at 17. 95 Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995) (citing United States v. Jacobs, 715 21 F.2d 1343, 1345–46 (9th Cir. 1983)). 22 96 United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982) (internal quotations removed). 97 Meredith v. Erath, 342 F.3d 1057, 1062 (9th Cir. 2003) (quoting Robinson v. Solano Cnty., 23 278 F.3d 1007, 1014 (9th Cir. 2002)). 98 Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996). 1 truck.99 Instructive here is the Ninth Circuit’s decision in United States v. Bautista, in which 2 officers handcuffed two men suspected of armed bank robbery “for officer safety as a 3 precaution.”100 The panel concluded that “the initial handcuffing . . . was not excessive” because 4 it was reasonable for the officers “to take adequate protective measures before remaining with
5 two men suspected of armed bank robbery, particularly when the suspects appeared extremely 6 nervous.”101 Wisniewski and Scott had a reasonable suspicion that Pittman was armed and 7 potentially dangerous, and they observed that Pittman was acting in a “hostile, agitated” manner 8 that they feared could escalate to violence.102 These defendants were thus entitled to take 9 adequate protective measures, so the handcuffing of Pittman during the pat-down and search of 10 Pittman’s truck was constitutionally appropriate.103 11 3. The search of Pittman’s truck was justified by Officer Wisniewski’s 12 reasonable suspicion that Pittman had a firearm in the center console.
13 Pittman next theorizes that his Fourth Amendment rights were violated when Wisniewski 14 conducted a “warrantless search” of his car because the search was “not premised on probable 15 cause or exigent circumstances.”104 Wisniewski argues that he needed only a reasonable 16 suspicion that Pittman had a weapon in the truck in order to search it and that, given Pittman’s 17
99 ECF No. 30 at 19; ECF No. 30-2 at 1–3. 18 100 Bautista, 684 F.2d at 1288. 19 101 Id. at 1289. 20 102 ECF No. 30 at 23. United States v. Thompson, 597 F.2d 187 (9th Cir. 1979). Handcuffs were reasonably necessary in Thompson because the suspect had “repeatedly attempted to reach for 21 his inside coat pocket, despite the officers’ repeated warnings not to.” Id. at 190. See also United States v. Purry, 545 F.2d 217, 219-20 (D.C. Cir. 1976) (handcuffing of suspect 22 permissible because the suspect “turned and pulled away” when the police officer placed an arm on him). 23 103 ECF No. 30 at 19; ECF No. 30-2 at 1–3. 104 ECF No. 17 at 7, 13. 1 “behavior, coupled with the TPO and information that he possessed a firearm in his vehicle,” 2 such suspicion existed.105 Wisniewski adds that a handgun was of particular concern here 3 because “the officers intended to allow [Pittman] to drive away with his daughter in the vehicle” 4 after the custody exchange was complete.106
5 The Supreme Court has held that police officers may search a vehicle for weapons during 6 a Terry stop if they have a reasonable suspicion “that the suspect is dangerous and the suspect 7 may gain immediate control of weapons.”107 As with the reasonable-suspicion requirement for a 8 pat-down, the test “is whether a reasonably prudent man in the circumstances would be 9 warranted in the belief that his safety or that of others was in danger.”108 If so, officers are 10 permitted “to conduct an area search of the passenger compartment to uncover weapons.”109 11 This rule applies even if a suspect is “in the control” of officers during an investigative detention, 12 because “the suspect may be permitted to reenter the vehicle before the Terry investigation is 13 over and . . . have access to any weapons.”110 14 The Supreme Court’s decision in Michigan v. Long is a useful analogue. In Long,
15 officers stopped a driver who was traveling erratically, conducted a pat-down search, and then 16 searched the car for weapons after observing a large hunting knife inside.111 The Court held that 17 the search of the passenger compartment was a lawful protective search under Terry because the 18 19 105 ECF No. 30 at 23. 20 106 Id. 21 107 Michigan v. Long, 463 U.S. 1032, 1049 (1983). 108 Terry, 392 U.S. at 27. 22 109 Long, 463 U.S. at 1051. 23 110 Id. at 1052 (cleaned up). 111 Id. at 1035–36. 1 officers had “a reasonable belief that the suspect pose[d] a danger” due to his erratic driving and 2 uncooperative behavior and that danger could “arise from the possible presence of weapons in 3 the area surrounding a suspect.”112 It added that the vehicle search was justified because the 4 driver may have been “permitted to reenter the vehicle before the Terry investigation [was] over,
5 and . . . [would have] access to weapons” inside.113 6 Here, officers stopped and conducted a pat-down search of Pittman based on reasonable 7 suspicion that he was dangerous and illegally possessed a firearm. While Wisniewski did not see 8 a weapon in the car like the officer in Long did, he nevertheless had reasonable suspicion that a 9 firearm was in Pittman’s truck’s center console based on the detailed phone tip and had reason to 10 believe Pittman was dangerous because of his reported history of violence, the active TPO, and 11 multiple prior violations of that TPO.114 Wisniewski also believed that the presence of a firearm 12 in Pittman’s car could pose a danger to the child during or after the custody exchange.115 So, 13 like in Long, if Pittman were released and permitted to reenter his truck—which was likely given 14 that the pat-down search revealed no weapons or contraband—he then would have had access to
15 any weapons inside.116 Wisniewski’s protective search of the vehicle was thus lawful under 16 Terry. 17
18 112 Id. at 1049. 19 113 Id. at 1050. 114 ECF No. 30 at 19; ECF No. 30-2 at 1–3. Pittman argues that the defendants’ claim that he 20 has a history of violent behavior is false because “they have failed to show this lengthy violent record.” ECF No. 36 at 6. But the defendants note, and Pittman concedes, he had an active TPO 21 based on allegations of domestic violence and that he had been arrested twice previously for violating that TPO. ECF No. 30-1 at 7–12. 22 115 ECF No. 30 at 23. 23 116Id. See also United States v. Griffin, 589 F.3d 148, 154 (4th Cir. 2009), cert denied, 562 U.S. 1273 (2011) (holding that officers lawfully searched a Terry detainee’s vehicle for weapons because the suspect, despite being detained in the back of a police vehicle during that search, 1 C. Officers Wisniewski and Scott had probable cause to arrest Pittman for 2 violating the TPO.
3 Pittman next alleges that his constitutional rights were violated when Wisniewski and 4 Scott continued to detain him in handcuffs after they completed the pat-down and vehicle search 5 because “no weapons were located on [his] person or inside his vehicle, [Pittman] made no 6 furtive moves or otherwise attempted to flee, . . . and [there was an] overwhelming presence of 7 law enforcement officers.”117 Pittman also claims that his continued detention after the searches 8 amounted to a false arrest because the officers lacked probable cause and that Scott’s “holding 9 him with a tight grip” constituted false imprisonment.118 Wisniewski and Scott argue that 10 Pittman’s continued detention was proper because he was “hostile and angry,”119 the detention 11 did not constitute an arrest, and regardless they had probable cause to arrest Pittman for violating 12 the TPO.120 13 To prevail on a false-arrest claim, a plaintiff must “demonstrate that there was no 14 probable cause to arrest [him].”121 “Probable cause exists when the facts and circumstances 15 within the officer’s knowledge are sufficient to cause a reasonably prudent person to believe that 16 a crime has been committed.”122 The “relevant inquiry is what the [officers] knew, collectively, 17
18 could have “been released after the brief detention, as he presumably would have been,” and “he would have regained access to the vehicle and any weapon inside”). 19 117 ECF No. 17 at 8. 20 118 Id. at 14. 119 ECF No. 30 at 17. 21 120 Id. at 25. 22 121 Norse v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (quoting Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998)). 23 122 Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009) (citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). 1 at the time they arrested” the plaintiff.123 Probable cause only requires a “fair probability” that a 2 crime occurred.124 And because Nevada law considers “false arrest [as] an integral part” of a 3 claim for false imprisonment, I analyze these two claims together.125 4 Assuming without deciding that this continued detention was an arrest, it was lawful
5 because the officers had probable cause to arrest Pittman for violating the TPO. As Wisniewski 6 and Scott argue, the “TPO expressly provided that [Pittman] could not have contact with” his ex- 7 wife,126 and the record supports this. The TPO states that Pittman is “prohibited from any 8 contact whatsoever with” his ex-wife.127 Pittman contends that, per the custody agreement under 9 his divorce proceedings, he was “ordered to pick up the children at the Burger King by the same 10 judge that granted the protective order” and was thus not in violation of the TPO that day.128 11 That argument would have worked if this pickup had been three months earlier. But the Burger 12 King exception was only in effect until June 17, 2019.129 The TPO in effect at the time of this 13 September 5, 2019, incident required that Pittman “stay 100 yards away from all locations the 14 adverse party is excluded from in the” TPO and includes only a single exception for one of the
15 16 17 18 123 United States v. Collins, 427 F.3d 688, 691 (9th Cir. 2005). 19 124 United States. v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002). 20 125 Hernandez v. City of Reno, 634 P.2d 668, 671 (Nev. 1981) (citing Marschall v. City of Carson, 464 P.2d 494 (1970)). 21 126 ECF No. 30 at 13 (citing ECF No. 30-2 at 9–15 (protective order), 21 (TPO extension to February 5, 2020)). 22 127 ECF No. 30-2 at 10. 23 128 ECF No. 36 at 2. 129 ECF No. 30-2 at 19 (TPO extension to June 17, 2019). 1 children’s schools.130 So the TPO in effect this day prohibited Pittman from making the Burger 2 King exchange.131 3 Under Nevada law, a “person who intentionally violates . . . [a]n extended order and . . . 4 [w]ho has previously violated an extended order two or more times is guilty of a category D
5 felony.”132 The record shows that Pittman had been arrested twice in August 2019 for violating 6 the TPO.133 And Officers Wisniewski and Scott had reviewed the TPO prior to arriving on the 7 scene and thus reasonably believed, based on available facts, that Pittman was violating the law 8 by being present at the Burger King while his ex-wife was there.134 So I grant Wisniewski and 9 Scott summary judgment on Pittman’s false-arrest claim. And because false arrest is “an integral 10 part” of establishing false imprisonment under Nevada law,135 I grant them summary judgment 11 on the false-imprisonment claim, too. Finally, I find that Wisniewski and Scott could lawfully 12 handcuff Pittman even after the protective searches were completed because an arrest 13 “necessarily carries with it the right to use some degree of physical coercion or threat thereof to 14
15 16 17
130 ECF No. 30-2 at 21 (TPO extension to February 5, 2020). And, presumably due to this 18 incident, the extended TPO was later “amended to reflect the provisions specified in the divorce decree issued on August 28, 2019.” ECF No. 30-2 at 23. 19 131 Pittman acknowledged as much in his deposition, stating that, under the August order, “the 20 exchanges will now take place on Monday, one parent drop[s] off the kids at school, and the other parent pick[s] up the kids from school.” ECF No. 30-1 at 9, 14. 21 132 Nev. Rev. Stat. § 33.100(2)(c). 22 133 ECF No. 30-2 at 25–29 (declaration of arrest on April 10, 2019); 33–36 (declaration of arrest on August 23, 2019). 23 134 See ECF No. 30-2 at 3 (Wisniewski’s declaration). 135 Hernandez, 634 P.2d at 671. 1 effect it,”136 and probable cause continued to exist so long as Pittman was violating his TPO by 2 being present at the Burger King.137 3 G. Officers Wisniewski and Lewis enjoy qualified immunity from claims arising 4 from the retrieval of Pittman’s keys from his pocket.
5 Finally, Pittman claims that Wisniewski conducted an illegal search when he, at Lewis’s 6 direction, twice reached into Pittman’s pocket to retrieve his keys and unlock his truck.138 The 7 defendants argue that this practice was not unconstitutional and, at a minimum, qualified 8 immunity shields them from liability.139 Though Pittman does not respond to this argument 9 directly in his opposition, he does claim that “the actions of the officers on the date in question 10 were not those of any reasonable officer” because Pittman “had conducted multiple exchanges 11 leading up to this day with [o]fficers present and never did officers deem it necessary to cuff and 12 search the [plaintiff’s] person or locked vehicle.”140 Even if the liberties taken with Pittman’s 13 keys were unconstitutional, the officers are entitled to summary judgment on this final claim 14 based on qualified immunity. 15 Qualified immunity protects government officials “from money damages unless a 16 plaintiff pleads facts showing that (1) the official violated a statutory or constitutional right, and 17 (2) the right was ‘clearly established’ at the time of the challenged conduct.”141 The United 18 States Supreme Court has warned lower courts to avoid addressing qualified immunity at a high 19
136 Graham v. Connor, 490 U.S. 386, 396 (1989). 20 137 See ECF No. 30-2 at 21. 21 138 ECF No. 17 at 6. 22 139 ECF No. 30 at 23–24. 140 ECF No. 36 at 5. 23 141 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 1 level of generality,142 and a defendant will be entitled to qualified immunity even if he was 2 mistaken in his belief that his conduct was lawful, so long as that belief was reasonable.143 And 3 it’s the plaintiff who bears the burden of showing that the rights at issue were clearly 4 established.144 Though the plaintiff need not identify a case “directly on point, existing
5 precedent must have placed the statutory or constitutional question beyond debate.”145 Because 6 immunity is meant to protect “all but the plainly incompetent or those who knowingly violate the 7 law,”146 the Supreme Court has held that an officer is entitled to qualified immunity if he 8 “reasonably believes that his . . . conduct complies with the law.”147 9 Pittman has not met his burden to show that his right against these key shenanigans was 10 clearly established such that no reasonable officer could believe that such conduct was unlawful. 11 The closest Ninth Circuit case published by the time of the incident that involved an officer’s 12 retrieval of keys from a suspect’s pockets was United States v. Job.148 In Job, the defendant 13 sought to suppress evidence of illegal drugs after officers searched his pockets during a 14 protective frisk and then used the car keys they found to unlock and search his vehicle.149 The
142 Saucier, 533 U.S. at 201; see also Sheehan v. Cty. of San Francisco, 135 S. Ct. 1765, 1775– 16 76 (2015); Kisella v. Hughes, 138 S. Ct. 1148, 1152–53 (2018). 17 143 Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011), cert. denied, 132 S. Ct. 1032 (2012) (“the clearly established prong concerns the reasonableness of the officer’s mistake of 18 law.”); Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003); Davis v. Scherer, 468 U.S. 183, 191 (1984) (“Whether an official may prevail in his qualified immunity defense depends 19 upon the objective reasonableness of his conduct as measured by reference to clearly established law.” (cleaned up)). 20 144 Robinson v. York, 566 F.3d 817, 826 (9th Cir. 2009). 21 145 Id. 146 Malley v. Briggs, 475 U.S. 335, 341 (1986). 22 147 Pearson, 555 U.S. at 244. 23 148 United States v. Job, 871 F.3d 852 (9th Cir. 2017). 149 Id. at 858. Ninth Circuit panel held that all the evidence should have been suppressed because the officers 2|| lacked reasonable suspicion to conduct a protective sweep in the first place.!°° 3 The facts of Job are readily distinguishable from Pittman’s. Unlike the officers in Job, Wisniewski and Lewis had reasonable suspicion to believe that Pittman was armed—or that he unlawfully possessed a firearm in the center console of his vehicle—and that he was 6]| dangerous.'°! And while the Job panel held that the evidence from the pat-down and car search 7\| had to be suppressed, it did not analyze the act of seizing the car keys from the defendant’s pockets, so Job would not have put Wisniewski and Lewis on notice that retrieving and using Pittman’s keys was unconstitutional.!° Wisniewski and Lewis are therefore entitled to qualified 10]/immunity from Pittman’s § 1983 claim based on the retrieval of car keys from his pockets, so I grant summary judgment in their favor on that claim, too. 12 Conclusion 13 IT IS THEREFORE ORDERED that the defendants’ motion for summary judgment 14|| [ECF No. 30] is GRANTED. The Clerk of Court is directed to ENTER FINAL 15|| JUDGMENT in favor of the defendants on all claims and CLOSE THIS CASE. 16 17 USS. District Ju snnifer Jorsey August 26, 2023 18 19 20 150 Id. at 860-62. 151 See supra at pp. 11-15. Other Ninth Circuit cases involving pocket searches have dealt with those incident to arrests 9 that were supported by probable cause. But those situations are distinguishable from the instant one because there was reasonable suspicion to search Pittman and his vehicle as part of a Terry 3 frisk. See, e.g., United States v. Moses, 796 F.2d 281, 285 (9th Cir. 1986) (holding that officers’ search of the arrestee’s car using keys retrieved from his pockets was a search incident to a lawful arrest supported by probable cause). 25