Quinn v. Cardenas

Opinion

WO

Timera Quinn, No. CV-18-02461-PHX-MTL

Plaintiff, ORDER

v.

Julio Cardenas, et al.,

Defendants. Defendant Julio Cardenas’ Motion for Summary Judgment (Doc. 38) is granted, in part, with respect to the Plaintiff’s federal claims. The remaining state law claims are remanded to the Arizona Superior Court. The Court’s reasoning is provided below. Plaintiff Timera Quinn sues City of Phoenix Police Officer Julio Cardenas relating to an incident between her and Officer Cardenas dating back to May 14, 2017. Late in the evening, both Ms. Quinn and Officer Cardenas were operating their vehicles on the southbound Loop 101 freeway in Phoenix. Ms. Quinn was accompanied by two male passengers. Officer Cardenas was off-duty and operating his personal vehicle with his ex- wife, Ms. Cardenas, in the front passenger seat. At about the same time, both motorists exited the freeway via the Camelback Road off-ramp. Officer Cardenas was the first to do so, with Ms. Quinn close behind. Officer Cardenas stopped on the off-ramp and waited to turn right onto Camelback Road. His destination was a QuickTrip convenience store (“QT”) located just off the intersection. The two vehicles impacted one another while Officer Cardenas was waiting to make his turn. At this point, the parties’ recollections diverge.1 Ms. Quinn states that, as she approached the intersection, and while slowing her vehicle to a stop, Officer Cardenas backed his vehicle into hers and then “immediately fled the scene.” (Doc. 41 at 2.) Ms. Quinn states that she followed Officer Cardenas into the QT parking lot. Officer Cardenas contends that Ms. Quinn’s vehicle impacted his. He said that “[a]t the moment the impact occurred, [he] heard a metallic noise and felt a push, but was unsure if someone had hit his car.” (Doc. 38 at 2.) Officer Cardenas says that he looked in his rearview mirror and did not see a car behind his. It was, after all, dark outside. He drove away from the off ramp, he says, because he could not tell if the noise came from a vehicular impact or a mechanical issue in the vehicle’s engine compartment. Officer Cardenas drove into the QT parking lot and stopped his car. Upon inspecting the vehicle’s rear bumper, he saw damage indicating that a collision had occurred. Ms. Quinn drove into the QT parking lot to meet up with Officer Cardenas. She stopped her vehicle. One of Ms. Quinn’s passengers, Mr. West, exited the vehicle and approached Officer Cardenas. The two began a discussion about which driver was at fault. According to deposition testimony, this was a heated exchange and the parties dispute whether Officer Cardenas offered to exchange insurance information. The parties agree that, during his discussion with Mr. West, Officer Cardenas did not identify himself as a police officer nor did he call the police. Mr. West returned to Plaintiff’s car. Thinking that the situation was over, Ms. Quinn began driving out of the parking lot. Officer Cardenas, however, viewed her actions as “fleeing the scene” before insurance information could be exchanged. On foot, Officer Cardenas gave chase to obtain the license plate number. Seeing Officer Cardenas in pursuit, Ms. Quinn turned her vehicle around and drove up beside him. Ms. Cardenas, still in or near her ex-husband’s car, called 9-1-1.

1 The parties agree that the dispute over which driver is at fault for the impact is not material for the purposes of deciding the summary judgment motion. Now Ms. Quinn and Officer Cardenas begin to exchange words. She exits her car. They verbally disagree about who caused the accident and whether the “scene” is the QT parking lot or the freeway off-ramp. Ms. Quinn approaches Officer Cardenas. Ms. Quinn shouted, “why are you chasing me, you f***** hit us then drove off.” (Doc. 38 at 4.) According to him, Ms. Quinn is “within inches of his face.” (Id.) Ms. Quinn’s two passengers, Mr. West and Mr. Bonds, exit her vehicle to join her. Seeing this, and out of concern that a three-on-one situation may lead to a more severe altercation, Officer Cardenas executed an “impact push” against Ms. Quinn. Using his two hands against her upper chest, this maneuver pushed her backwards while he took a step backwards. Officer Cardenas states that his objective in doing so was to create space between Ms. Quinn and himself, thereby de-escalating the altercation.2 Ms. Quinn, on the other hand, viewed Officer Cardenas’ action as an assault to which she was entitled to exercise self-defense. She did not yet know that Officer Cardenas was a law enforcement officer. Ms. Quinn pushed him back using both of her hands. After that, Officer Cardenas drew his service handgun from its holster, tucked inside his clothing in his lower back, and announced that he was a City of Phoenix Police Officer. Officer Cardenas states that he pointed the gun at the ground. Ms. Quinn states that it was pointed at her stomach.3 Officer Cardenas ordered Ms. Quinn to return to her vehicle and turn off the engine. She, along with her two passengers, walked back to the car and got in. Officer Cardenas followed them to the vehicle. After taking her seat, Ms. Quinn attempted to close the door. She explained that she wanted to move her vehicle to a parking space. Officer Cardenas thought that she was about to drive away, so he held the door open. They struggled over the door. Ms. Quinn ultimately releases the door and turns off her vehicle. Officer Cardenas had his weapon drawn during 2 According to the Arizona Department of Public Safety General Report produced after the QT altercation, an impact push “is a double palm heel strike to the body, which is taught per Arizona Police Officer Training Standards and Training Board (AZPOST) direction to police officers. This is a defensive tactic designed to create distance between police officers, and assailants who move aggressively toward them.” (Doc. 38-1 at 129.) 3 For the purposes of this Motion only, Officer Cardenas accepts as true Ms. Quinn’s allegation that the gun was pointed at her. (Doc. 38 at 5 n.2); (Doc. 45 at 5 n.3.) this time and only re-holstered it after Ms. Cardenas announced that the police were on their way. According to Ms. Quinn, “the weapon was pointed at her for a period of 3-5 minutes.” (Doc. 41 at 4.) Ms. Quinn believed that she had been arrested because Officer Cardenas prevented her from leaving. The police arrived sometime thereafter. Later, Ms. Quinn filed a state court complaint against Officer Cardenas alleging civil claims under 43 U.S.C. § 1983 for “depriving [her] of her right to be free from unlawful search and seizure as secured by the constitution.”4 (Doc. 1-1 at 4.) She further asserted Arizona state law claims for assault, intentional infliction of emotional distress, and wrongful arrest and false imprisonment. (Id. at 5.) The case was timely removed to this Court. (Doc. 1.) Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and material facts are those “that might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he evidence of the non- movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (internal citations omitted); see also Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994) (court determines whether there is a genuine issue for trial but does not weigh the evidence or determine the truth of matters asserted). III. SECTION 1983 AND QUALIFIED IMMUNITY Section 1983 provides a civil remedy against individual state actors for violations of the Constitution and laws of the United States. The Complaint generally asserts the basis 4 The Complaint also named the City of Phoenix Police Department, Jane Doe Cardenas, Employees I–X and Black and White Corporations I–X. The City of Phoenix Police Department was voluntarily dismissed. (Doc. 12.) Jane Doe Cardenas, Employees I–X and Black and White Corporations I–X have been dismissed as unserved fictitious defendants. (Doc. 50.) of Ms. Quinn’s § 1983 claim is that Officer Cardenas “deprived [her] of her right to be free from unlawful search and seizure” under the Fourth Amendment. (Doc. 1-1 at 4.) Claims for excessive force, wrongful arrest, and false imprisonment derive from the Fourth Amendment.5 The timeline includes at least three events that can give rise to liability under § 1983. First, there was the impact push administered by Officer Cardenas against Ms. Quinn. Next, there was the point where Officer Cardenas drew his service weapon, pointed it at Ms. Quinn, and announced that he was a police officer. The third and final event involved Officer Cardenas ordering Ms. Quinn back into her car and to remain there until the police arrived. Officer Cardenas maintains that his actions were constitutional but, at the same time, he asserts qualified immunity as a defense to Ms. Quinn’s § 1983 claims. Qualified immunity bars monetary recovery against a state official “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Whether a defendant is entitled to assert qualified immunity as a defense is a question of law for the court to decide. See Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017). The court has discretion to determine “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). The Court will address the second qualified immunity factor, whether the right asserted by the plaintiff was clearly established at the time, as it is dispositive. The plaintiff bears the burden to show “that the right at issue was clearly established.” Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019) (quoting Alston v. Read, 663 F. 3d 1094, 1098 (9th Cir. 2011)). The clearly established test is an objective one that is viewed from the standpoint of the reasonable officer. District of Columbia v. Wesby, --- U.S. ---, 138 S. Ct. 577, 586 (2018). It “requires that the legal principle clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well

5 Liability requires that the defendant act under color of law. The parties agree that Officer Cardenas was acting under color of law during his interaction with Ms. Quinn. defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). The Supreme Court has described this standard as requiring “a high ‘degree of specificity.’” Id. (quoting Mullenix v. Luna, 577 U.S. ---, 136 S. Ct. 305, 309 (2015)). Functionally, “[t]his demanding standard ‘protects all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Here, Ms. Quinn has failed to satisfy her burden that clearly established law would have prohibited Officer Cardenas’ impact push under the presented circumstances. Officer Cardenas utilized the impact push to create distance between himself, on the one hand, and Ms. Quinn and her two male passengers, on the other. Officer Cardenas and Ms. Quinn were engaged in a shouting match at close proximity. From the perspective of a reasonable officer, the situation could have deteriorated to a much more serious altercation where Officer Cardenas would be outnumbered three to one and without knowledge of whether any of the individuals were armed. Ms. Quinn has similarly failed to show that established law would have prohibited Officer Cardenas’ use of his service weapon under the circumstances presented. The Court acknowledges, first, that Ms. Quinn may have felt justified in taking measures to protect herself by pushing back and, second, that a gun pointed at one’s abdomen is gravely concerning. The legal test, however, focuses on whether reasonable officers are on alert “that their particular conduct was unlawful.” Sharp v. City of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in original). Ms. Quinn’s position is that a reasonable officer should know that the use of deadly force, “absent a sufficiently substantial and immediate threat, [violates] the Fourth Amendment.” (Doc. 41 at 11 (quoting Mullenix v. Luna, --- U.S. at ---, 136 S. Ct. at 308.)) The facts of the cases that she cites for this proposition, however, vary substantially from the facts presented here. The most salient point of distinction is that many of the cases involve the actual use of force, such as deploying a Taser shot, administering pepper spray, or the occurrence of extreme physical contact. E.g., Westfall v. Luna, 903 F.3d 534 (5th Cir. 2018) (officer body-slammed plaintiff to the ground);6 Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (officers administered pepper spray to plaintiff, physically subdued him, and ordered a canine attack); Hesterberg v. United States, 71 F. Supp. 3d 1018 (N.D. Cal. 2014) (defendant officer deployed a Taser dart that struck the plaintiff). Here, Officer Cardenas did not fire his weapon. He used it with the objective of calming a heated verbal altercation, that could very well have led to a physical exchange, while waiting for on-duty law enforcement to arrive. Ms. Quinn cites Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002), a case where the Ninth Circuit found that a police officer violated the Fourth Amendment when he pointed a gun to the plaintiff’s head from three or four feet away. The weapon was not discharged. The court observed, In this case, it is not alleged that any of the factors justifying the use of force were present. The crime under investigation was at most a misdemeanor; the suspect was apparently unarmed and approaching the officers in a peaceful way. There were no dangerous or exigent circumstances apparent at the time of the detention, and the officers outnumbered the plaintiff. Id. at 1014. As opposed to the plaintiff’s conduct in Robinson, Ms. Quinn’s interaction with Officer Cardenas cannot be described as peaceful. She engaged in a verbal argument with him and, at one point, shoved him hard enough that he was pushed back from where he stood. After the pushing, Officer Cardenas thought that Ms. Quinn was attempting to leave the scene in her car. Unlike the situation in Robinson, where the plaintiff was outnumbered by police, Officer Cardenas was outnumbered by Ms. Quinn and her two friends, both of whom were by her side during the exchange. And Officer Cardenas was not aware of whether any of the three had a weapon that he did not know about. Under these facts, a 6 Westfall v. Luna is inapposite for the additional reason that it was decided after the challenged conduct. See Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (“Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.”). reasonable officer would be concerned for his or her safety and the use of Officer Cardenas’ weapon was therefore justified for the purposes of the qualified immunity analysis. Ms. Quinn also argues that in addition to case law, Officer Cardenas knew that use of his service weapon was unlawful based on City of Phoenix Police Department policies regarding “minor traffic offenses, use of excessive force, use of deadly force when not faced with death or serious physical injury, and use of a firearm after consuming alcohol.” (Doc. 41 at 12); (Doc. 41-1 at 92–99.) However, departmental policies have no bearing on whether a defendant violated a clearly established constitutional right. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (finding defendants entitled to qualified immunity because “[violating] state departmental regulations do not establish a federal constitutional violation”) (emphasis in original); see also Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 930 (9th Cir. 2001) (“[T]here is no § 1983 liability for violating prison policy. [Plaintiff] must prove that [the official] violated his constitutional right . . . .”) (quoting Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997)). The Police Department’s policies therefore do not prevent a finding of qualified immunity. Finally, Ms. Quinn has not identified any established law that prohibited Officer Cardenas from holding Ms. Quinn, with his weapon in hand, while waiting for on-duty officers to arrive. For reasons already expressed, Officer Cardenas is entitled to qualified immunity. The remaining claims are for assault, intentional infliction of emotional distress, and false arrest under state law. (Doc. 1-1 at 4–5.) A district court may decline to exercise supplemental jurisdiction over pendent state law claims when it has dismissed the claims over which it has original jurisdiction.7 See 28 U.S.C. § 1367(c)(3). In such circumstances, “the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise

7 No party has alleged that diversity jurisdiction exists in this case. Plaintiff states that both parties are Arizona residents (Doc. 1-1 at 2), and in its Notice of Removal, Defendant references only Plaintiff’s federal law claim pursuant to 42 U.S.C. § 1983 as a basis for jurisdiction. (Doc. 1 at 2.) jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”)). These factors weigh against retaining supplemental jurisdiction and in favor of remanding the state law claims to the Maricopa County Superior Court. First, Plaintiff initially filed the case in state court; it came to federal court because Defendants removed it. (Doc. 1.) Second, the parties both reside in Maricopa County, making it a convenient forum. (Doc. 1-1 at 2; Doc. 9 at 1.) Third, judicial economy supports a remand. No trial date has been set in the pending matter, and the Court anticipates that the parties could refile the same or substantially similar summary judgment briefing on the state law claims in state court with limited additional effort. Fourth, comity dictates that as a court of limited jurisdiction, this Court should defer to the state court on issues of purely state law such as these. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.”). The Court will therefore exercise its discretion under 28 U.S.C. § 1367(c)(3) and remand the remaining state law claims to the Maricopa County Superior Court. Accordingly, IT IS ORDERED that Defendant Cardenas’ Motion for Summary Judgment (Doc. 38) is granted in part as to the 42 U.S.C. § 1983 claim (paragraph IX of the Complaint, Doc. 1-1) because Officer Cardenas is entitled to qualified immunity. IT IS FURTHER ORDERED that the Court remands the state law claims of assault, intentional infliction of emotional distress, and false arrest (paragraphs XI–XII of the Complaint) to the Arizona Superior Court in Maricopa County. IT IS FINALLY ORDERED that the Clerk of Court shall enter judgment for Defendant on Plaintiff’s § 1983 claim (paragraph IX of the Complaint), remand the 1 remaining counts to the Maricopa County Superior Court, and then terminate this action in this Court. Dated this 15th day of May, 2020. WM clacl T. Hburde Michael T. Liburdi United States District Judge

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