Semper v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: March 28, 2025
• Docket: 2:20-cv-01875
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 PHILLIP SEMPER, et al., Case No. 2:20-CV-1875 JCM (EJY)

8 Plaintiff(s), ORDER

9 v.

10 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., 11 Defendant(s). 12

13 The remaining defendants in this action include the Las Vegas Metropolitan Police 14 Department (“LVMPD”), Andrew Bauman, Matthew Kravetz, Supreet Kaur, David Jeong, and 15 16 Theron Young (collectively “defendants”). The remaining plaintiffs include Corey Johnson, 17 Ashley Medlock, Michael Green, Demarlo Riley, Clinton Reece, Connie Semper, and Lonicia 18 Bowie. The following motions are presently before the court: 19 • plaintiffs’ motion for partial summary judgment (ECF No. 134), to which defendants 20 responded (ECF No. 152), and plaintiffs replied (ECF No. 165); 21 22 • plaintiffs’ motion for reconsideration (ECF No. 141), to which defendants responded 23 (ECF No. 151), and plaintiffs replied (ECF No. 158); 24 • defendants’ motion for summary judgment (ECF No. 142), to which plaintiffs 25 responded (ECF No. 161); 26 • plaintiffs’ motion to strike (ECF No. 156), to which defendants responded (ECF No. 27 28 168), and plaintiffs replied (ECF No. 171); 1 • plaintiffs’ motion to extend time for reply in support of its motion for partial 2 summary judgment (ECF No. 157); 3 • plaintiffs’ motion for leave to file excess pages (ECF No. 159); 4 • plaintiffs’ second motion for leave to file excess pages (ECF No. 164); and 5 6 • defendants’ motion to extend time for reply in support of its motion for summary 7 judgment (ECF No. 169), to which plaintiffs responded (ECF No. 170), and 8 defendants replied (ECF No. 172). 9 I. Background 10 11 This is a civil rights case brought under 42 U.S.C. § 1983. The parties are familiar with 12 the facts of this case, and the court does not recite them herein. (See ECF Nos. 38; 113). 13 After years of litigation, the following causes of action remain: (1) the Title VI claim 14 against LVMPD; (2) the procedural due process claim against LVMPD; (3) the right to 15 association and expression claim as a direct prohibition (First Amendment) against LVMPD; (4) 16 17 the right to association and expression claim as a chilling effect (First Amendment) against 18 LVMPD; (5) the unreasonable search and seizure claim against the officers in their individual 19 capacity; (6) the unreasonable search and seizure claim against LVMPD; (7) the unlawful 20 detention claim against the officers in their individual capacity; and (8) the unlawful detention 21 claim against LVMPD. (See ECF No. 89). 22 23 II. Plaintiffs’ Motion for Reconsideration 24 Plaintiffs move this court to reconsider its order granting defendants’ motion to extend 25 time to file their motion for summary judgment. (ECF No. 141). The LVMPD defendants’ 26 deadline to file their motion for summary judgment was March 18, 2024. On March 20, 2024, 27 the LVMPD defendants filed a motion to extend time to file their motion for summary judgment. 28 1 (ECF No. 139). On March 25, 2024, this court granted the LVMPD defendants’ motion to 2 extend time. (ECF No. 140). 3 Fed. R. Civ. P. 59(e) “permits a district court to reconsider and amend a previous 4 order[;]” however, “the rule offers an extraordinary remedy, to be used sparingly in the interests 5 6 of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th 7 Cir. 2003) (internal quotations omitted). A motion for reconsideration “should not be granted, 8 absent highly unusual circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 9 (9th Cir. 2000). 10 Thus, the Ninth Circuit has provided that “[r]econsideration is appropriate if the district 11 12 court (1) is presented with newly discovered evidence, (2) committed clear error or the initial 13 decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” 14 School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Fed. R. Civ. P. 60(b). 15 Plaintiffs argue that defendants’ motion to extend time should have been denied because 16 the motion itself was late and deficient. (ECF No. 141 at 8). This case has been pending for 17 18 over four years. In the interests of time and justice, the court will deny plaintiffs’ motion for 19 reconsideration. See LR IA 1-4. Moreover, plaintiffs have failed to prove that this court 20 committed clear error or that its initial decision was manifestly unjust. 21 However, the court does find it necessary to deny defendants’ motion to extend time to 22 file a reply in support of their motion for summary judgment (ECF No. 169) to prevent any 23 24 further delay.1 The court also finds that good cause exists to grant plaintiffs’ unopposed motion 25 for leave to file excess pages for their response to defendants’ motion for summary judgment. 26 (ECF No. 159). 27 28 1 Importantly, defendants have failed to show that good cause exists to grant their motion. 1 III. Plaintiffs’ Motion to Strike 2 Plaintiffs also move to strike defendants’ opposition to their motion for partial summary 3 judgment, or in the alternative, clarify what filing they must respond to. (ECF No. 156). This 4 court permitted both parties to file 60-page motions for summary judgment. (ECF No. 138). 5 6 However, this court did not permit the parties to file oppositions longer than 30 pages. (Id.). 7 Defendants initially filed a 19-page response to plaintiffs’ motion. (ECF No. 149). After 8 the clerk of court issued a notice to defendants that the motion did not include an attorney’s 9 signature, they filed a notice of corrected image. (ECF No. 152). The new document was a 52- 10 page opposition to plaintiffs’ motion for partial summary judgment. (Id.). 11 12 “Motions for summary judgment and responses to motions for summary judgment are 13 limited to 30 pages, excluding exhibits. Replies in support of a motion for summary judgment 14 are limited to 20 pages.” LR 7-3(a). Moreover, a motion to exceed the page limits must be filed. 15 See LR 7-3(c). 16 Defendants did not ask this court for permission to file a 52-page opposition. The court 17 18 reminds defendants that it may strike any document that does not conform with the local rules. 19 See Local Rule IA 10-1(d). 20 However, in the interests of time and justice, the court will consider defendants’ 21 opposition to plaintiffs’ motion. The court will also consider plaintiffs’ reply (ECF No. 165). 22 Moreover, the court finds good cause to grant plaintiffs’ motion to extend time to reply (ECF No. 23 24 157) and motion for leave to file excess pages (ECF No. 164). 25 . . . 26 . . . 27 . . . 28 1 IV. Motions for Summary Judgment 2 A. Legal Standard 3 The Federal Rules of Civil Procedure allow summary judgment when the pleadings, 4 depositions, answers to interrogatories, and admissions on file, together with the affidavits (if 5 6 any), show that “there is no genuine dispute as to any material fact and the movant is entitled to 7 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Information may be considered at the 8 summary judgment stage if it would be admissible at trial. Fraser v. Goodale, 342 F.3d 1032, 9 1036 (9th Cir. 2003) (citing Block v. Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001)). A 10 principal purpose of summary judgment is “to isolate and dispose of factually unsupported 11 12 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 13 In considering evidence at the summary judgment stage, the court does not make 14 credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the 15 light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 16 Ass'n, 809 F.2d 626, 630–31 (9th Cir.1987). 17 18 When the non-moving party bears the burden of proof at trial, the moving party can meet 19 its burden on summary judgment in two ways: (1) by presenting evidence to negate an essential 20 element of the non-moving party’s case; or (2) by demonstrating that the non-moving party 21 failed to make a showing sufficient to establish an element essential to that party’s case on which 22 that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the 23 24 moving party fails to meet its initial burden, summary judgment must be denied, and the court 25 need not consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 26 144, 159–60 (1970). 27 28 1 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 2 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 3 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the 4 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 5 6 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ 7 differing versions of the truth at trial.” T.W. Elec. Serv., Inc., 809 F.2d at 630. 8 However, the nonmoving party cannot avoid summary judgment by relying solely on 9 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 10 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of 11 12 the pleadings and set forth specific facts by producing competent evidence that shows a genuine 13 issue for trial. See Celotex, 477 U.S. at 324. If the nonmoving party’s evidence is merely 14 colorable or is not significantly probative, summary judgment may be granted. Anderson v. 15 Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). 16 B. Discussion 17 18 The court has sufficient information to decide the instant motions based on the filings and 19 thus denies any request for oral argument. See LR 78-1. As an initial matter, the court dismisses 20 defendant David Jeong from this action, which plaintiffs do not oppose. 21 1. Title VI claim 22 Plaintiffs’ first cause of action alleges that defendant LVMPD violated Title VI of the 23 24 Civil Rights Act of 1964. (ECF No. 89 at 50). Under Title VI, “no person in the United States 25 shall, on the ground of race, color, or national origin, be excluded from participation in, be 26 denied the benefits of, or be subjected to discrimination under any program or activity receiving 27 Federal financial assistance.” 42 U.S.C. § 2000d. 28 1 To prevail on a Title VI claim, plaintiffs must prove that (1) the entity involved is 2 engaging in racial discrimination, and (2) the entity involved is receiving federal financial 3 assistance. Fobbs v. Holy Cross Heath Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994), overruled 4 on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 5 6 2001). “Title VI itself directly reach[es] only instances of intentional discrimination.” Save Our 7 Valley v. Sound Transit, 335 F.3d 932, 944 (9th Cir. 2003). 8 First, defendants argue that “the complained of activities are not federally funded.” (ECF 9 No. 142 at 22); see Temengil v. Trust Territory of Pacific Islands, 881 F.2d 647, 653 (9th Cir. 10 1989). Plaintiffs need only prove that LVMPD receives federal financial assistance, which 11 12 cannot be disputed here. See ECF No. 161; see Braunstein v. Ariz. DOT, 683 F.3d 1177, 1188 13 (9th Cir. 2012). 14 Defendant LVMPD then argues that plaintiffs have failed to offer any evidence that it 15 intentionally discriminated based on race. (ECF No. 142 at 24). Plaintiffs contend that 16 defendant LVMPD engaged in racial discrimination by using racial categories in gang 17 18 enforcement. (ECF No. 161 at 14-15). They further argue that this discrimination is evident 19 through the disparity between the racial demographics of Clark County and LVMPD’s gang 20 member and affiliate designations. (Id.). 21 The court must determine whether plaintiffs have shown evidence of intentional 22 discrimination. Specifically, whether defendant LVMPD’s actions “were motivated by race and 23 24 that race was a determining factor in [its] decisions.” Hankins v. City of Tacoma, No. C06-5099 25 FDB, 2007 WL 635771, at *3 (W.D. Wash. Feb. 26, 2007). Plaintiffs must also establish a 26 nexus between the discrimination and LVMPD’s actions. Id. 27 28 1 Here, plaintiffs have met their burden of defeating summary judgment. There exists a 2 genuine issue of material fact as to whether defendant LVMPD engaged in racial discrimination. 3 Here, plaintiffs argue that defendant LVMPD’s training intentionally discriminated by race. 4 (ECF No. 161 at 14). Specifically, they provide evidence that defendant LVMPD’s officers are 5 6 trained to consider race when determining if an individual is a gang member or affiliate. (Id.). 7 Drawing all inferences in the light most favorable to plaintiffs, a reasonable jury could 8 conclude that defendant LVMPD engaged in racial discrimination through its gang enforcement 9 and investigation. Summary judgment is therefore inappropriate. 10 2. Procedural due process claim 11 12 Plaintiffs’ second cause of action against defendant LVMPD alleges a procedural due 13 process claim. (ECF No. 89 at 52). To prevail here, plaintiffs must show “(1) a liberty or 14 property interest protected by the constitution; (2) a deprivation of the interest by the 15 government; and (3) lack of process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th 16 Cir. 1993). 17 18 “Although damage to reputation alone is not actionable, such reputational harm caused 19 by the government can constitute the deprivation of a cognizable liberty interest if a plaintiff was 20 stigmatized in connection with the denial of a more tangible interest.” Fikre v. FBI, 35 F.4th 21 762, 776 (9th Cir. 2022). 22 This “stigma-plus” test requires plaintiffs to show reputational harm from a government 23 24 action (stigma), and the “alteration or extinguishment of a right or status previously recognized 25 by state law” (plus). Id. (quotations omitted). Finally, a stigmatizing statement must be 26 27 28 1 disclosed to the public.2 Ulrich v. City & County of San Francisco, 308 F.3d 968, 982 (9th Cir. 2 2002). 3 Here, it cannot be disputed that labeling an individual as a gang member or gang affiliate 4 is stigmatizing. Thus, the court will determine whether plaintiffs have established the “plus” 5 6 factor. The heart of a stigma-plus claim is whether a plaintiff “legally [can]not do something 7 that she could otherwise do.” Miller v. California, 355 F.3d 1172, 1179 (9th Cir. 2004). 8 Plaintiffs argue that their statuses and rights are altered under several Nevada statutes. 9 (ECF No. 134 at 39). All of plaintiffs’ arguments are unavailing. The only contention that 10 appears to trigger a liberty interest would be plaintiffs’ ability to own a firearm. Here, defendant 11 12 LVMPD contends that plaintiffs Reece, Riley, and Green are all convicted felons. (ECF No. 142 13 at 30). Thus, they have failed to establish the plus factor. 14 Moreover, plaintiffs Medlock, Semper, Johnson, and Bowie were designated as “gang 15 affiliates.” These plaintiffs have failed to set forth specific facts by producing competent 16 evidence, showing how their status or rights are altered through such designation. See Celotex, 17 18 477 U.S. at 324. Plaintiffs reference multiple Nevada statutes but fail to provide any authority 19 that proves they have been deprived of a certain cognizable liberty interest.3 Summary judgment 20 is therefore appropriate in favor of defendant LVMPD. 21 3. First Amendment claims 22 Plaintiffs also bring two First Amendment claims. (See ECF No. 89). They argue that 23 24 inclusion in the GangNet database directly prohibited them from enjoying their First Amendment 25 right to associate and chilled them from exercising that right in the future. (See id.).

26 2 Defendant LVMPD is incorrect to argue that it did not make a public statement. (See 27 ECF Nos. 134; 161). 28 3 Moreover, plaintiffs Reece, Riley, and Green fail to show how these statutes deprive them of a cognizable liberty interest. 1 The Supreme Court has identified two distinct rights to associate protected by the First 2 Amendment. The right to intimate association affords “the formation and preservation of certain 3 kinds of highly personal relationships a substantial measure of sanctuary from unjustified 4 interference by the State.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). The right of 5 6 expressive association, protects an individual’s “right to associate for the purpose of engaging in 7 those activities protected by the First Amendment—speech, assembly, petition for the redress of 8 grievances, and the exercise of religion.” Id. 9 This court previously found that plaintiffs alleged only expressive association claims. 10 (ECF No. 113). That right protects the ability of groups to associate and congregate such that 11 12 they can undertake activities otherwise entitled to First Amendment protection. See Roberts, 468 13 U.S. at 618. 14 The First Amendment protects all speech intended “to convey a particularized message 15 was present, and in the surrounding circumstances the likelihood was great that the message 16 would be understood by those who viewed it.” Tex. v. Johnson, 491 U.S. 397, 404 (1989) 17 18 (quoting Spence v. Wash., 418 U.S. 405, 410–11 (1974)) (alterations omitted); see also Hurley v. 19 Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995) (holding that the 20 intended message need not even be “narrow” or “succinctly articulable” in certain 21 circumstances). 22 There are exceptions where the government can infringe upon the right to association— 23 24 where regulations are “adopted to serve compelling state interests, unrelated to the suppression 25 of ideas, that cannot be achieved through means significantly less restrictive of associational 26 freedoms.” See Roberts, 468 U.S. at 618. 27 28 1 Defendant LVMPD argues that it had a compelling state interest in public safety, and its 2 policy is not unconstitutional. (ECF No. 152 at 34). “Public safety and crime prevention 3 are compelling government interests for purposes of strict scrutiny analysis.” Saltz v. City of 4 Frederick, MD, 538 F. Supp. 3d 510, 546 (D. Md. 2021) (citing United States v. Salerno, 481 5 6 U.S. 739, 750 (1987) (“the [g]overnment’s general interest in preventing crime is compelling”). 7 However, defendant LVMPD has simply failed to present any evidence that its policy is 8 narrowly tailored and that such regulations could not be achieved through less restrictive means.4 9 See Roberts, 468 U.S. at 618. 10 Here, plaintiffs have established two protected activities—the August 19, 2018, birthday 11 12 party and funerals. (See ECF No. 134). They have also shown that defendants’ designation of 13 plaintiffs as gang members or affiliates directly prohibited them from enjoying their First 14 Amendment right to associate at both activities. (Id.). Plaintiffs have also established that 15 defendant LVMPD has chilled them from exercising their First Amendment rights in the future. 16 (Id.). Summary judgment is therefore appropriate in favor of plaintiffs. 17 18 4. Fourth Amendment claims 19 Plaintiffs also bring unreasonable search and seizure and unlawful detention claims 20 against the individual officers and LVMPD. (See ECF No. 89). Plaintiffs Bowie, Green, Reece, 21 and Riley argue that they are entitled to summary judgment as to their fifth and sixth causes of 22 action. (ECF No. 134). Plaintiffs Bowie, Green, Reece, Riley, and Medlock argue that they are 23 24 entitled to summary judgment as to their seventh and eighth causes of action. (Id.). 25 26 4 Defendant LVMPD also challenges whether the August 19, 2018, gathering was a birthday celebration. (ECF No. 152 at 33). This argument is unavailing. Plaintiffs have set 27 forth specific facts through competent evidence that this gathering was a birthday party. (ECF No. 165 at 11). 28 1 As an initial matter, defendants argue that plaintiffs never alleged a supervisory claim 2 involving defendant Bauman’s alleged involvement in the frisks of plaintiffs. (ECF No. 152 at 3 10). This argument is unavailing. Defendants do not cite to any authority holding that a plaintiff 4 must allege a claim for supervisory liability. It is sufficient that defendant Bauman was a named 5 6 as a defendant who violated plaintiffs’ Fourth Amendment rights. (See ECF No. 89). 7 The court must also determine whether defendant LVMPD may be held liable pursuant to 8 Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).5 A Section 1983 Monell claim requires 9 a “policy, practice, or custom of the entity” to be shown as the “moving force” behind the 10 alleged constitutional violations. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 11 12 2011). 13 For liability to attach, four conditions must be satisfied: “(1) [plaintiffs] possessed a 14 constitutional right of which they [were] deprived; (2) that the municipality had a policy; (3) that 15 this policy ‘amounts to deliberate indifference to [plaintiffs’] constitutional right; and (4) that the 16 policy is the ‘moving force behind the constitutional violation.’” Van Ort v. Estate of Stanewich, 17 18 92 F.3d 831, 835 (9th Cir. 1996). 19 Defendant LVMPD argues that plaintiffs have failed to present evidence to support their 20 Monell claims. (ECF Nos. 142; 152). The court agrees. Plaintiffs have failed to provide this 21 court with any authority proving that LVMPD’s policy, practice, or customs are unconstitutional. 22 Plaintiffs also fail to argue that any policy, practice, or custom amounted to deliberate 23 24 indifference to their constitutional rights. Moreover, they rely on conclusory allegations 25 unsupported by factual data, by providing that “[w]ithout requiring individualized suspicion, 26 LVMPD is training its officers to violate the Fourth Amendment.” (ECF No. 161 at 33); see 27 28 5 Plaintiffs’ sixth and eighth causes of action are alleged against defendant LVMPD. (See ECF No. 89). 1 List, 880 F.2d at 1045. Summary judgment is therefore appropriate, in favor of defendant 2 LMVPD, as to plaintiffs’ sixth and eighth causes of action. 3 Defendant officers then argue that they are entitled to qualified immunity because the law 4 is not clearly established and there was a mistake of law. (ECF No. 152 at 27). “To determine 5 6 whether an official is entitled to qualified immunity, we evaluate whether (1) the alleged facts 7 constitute a violation of a constitutional right, and (2) the constitutional right was clearly 8 established at the time of the violation.” Hernandez v. Skinner, 969 F.3d 930, 937 (9th Cir. 9 2020) (citing Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016)). 10 Plaintiffs allege two constitutional violations against defendant officers: unreasonable 11 12 search and seizure and unlawful detention. (See ECF No. 89). The Fourth Amendment 13 guarantees a citizen’s right to be free from “unreasonable searches and seizures.” U.S. Const. 14 Art. IV. There are two categories of police seizures under the Fourth Amendment: Terry stops 15 and full-scale arrests. See Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995). 16 A Terry stop is a seizure within the meaning of the Fourth Amendment. A police officer 17 18 must have a reasonable suspicion that “criminal activity may be afoot,” United States v. Job, 871 19 F.3d 852, 860 (9th Cir. 2017), which means that an individual is armed, engaged, or about to 20 engage in a crime. Terry v. Ohio, 392 U.S. 1, 24 (1968). 21 If a reasonable suspicion is present, then an officer may briefly stop and detain an 22 individual for a stop and frisk. Id. The “reasonableness” of a seizure, including an arrest of a 23 24 person, “depends not only on when it is made, but also on how it is carried out.” Graham, 490 25 U.S. at 395 (internal citations omitted) (emphasis in original). The relevant inquiry is “whether 26 the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances 27 confronting them.” Id. at 397. 28 1 The reasonableness inquiry of a seizure is balanced between the “nature and quality of 2 the intrusion on the individual’s Fourth Amendment interests against the countervailing 3 government interests at stake.” Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003) (internal 4 citation and quotation marks omitted). 5 6 Of all the factors, the “most important” is whether the individual posed an immediate 7 threat to the safety of the officers or others. Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 8 2010) (internal citation and quotation marks omitted). Courts “examine the totality of the 9 circumstances and consider whatever specific factors may be appropriate in a particular case.” 10 Id. 11 12 The second category of seizures are arrests. An arrest must be supported by probable 13 cause to believe that the person being arrested has committed a crime. See Allen, 73 F.3d at 14 236 (citing Henry v. United States, 361 U.S. 98, 102 (1959)). Probable cause is more difficult to 15 establish and will be determined as of the time of the arrest. Arvizu, 534 U.S. at 273-74; Allen, 16 73 F.3d at 236. 17 18 It must be based on “reasonably trustworthy information sufficient to warrant a prudent 19 person in believing that the accused had committed or was committing an offense.” Allen, 73 20 F.3d at 237 (internal quotation marks omitted). Like reasonable suspicion, it can “only exist in 21 relation to criminal conduct.” Id. 22 Plaintiffs argue that defendant officers detained them without individualized reasonable 23 24 suspicion. (ECF No. 134 at 26). Plaintiffs also argue that defendant Bauman directed other 25 officers to frisk them without reasonable suspicion. (Id. at 28). Moreover, plaintiffs contend that 26 defendants prolonged their detention in violation of the Fourth Amendment. (Id. at 29). 27 28 1 As an initial matter, plaintiffs contend that defendants misinterpret Lyall v. City of Los 2 Angeles, 807 F.3d 1178 (9th Cir. 2015). (ECF No. 165 at 13). However, they fail to provide any 3 authority that holds officers must have individualized suspicion to search or arrest a group of 4 individuals as it relates to the facts of this case. 5 6 Lyall provides that “the fact that the officers’ reasonable suspicion of wrongdoing is not 7 particularized to each member of a group of individuals present at the same location does not 8 automatically mean that a search of the people in the group is unlawful.” Lyall, 807 F.3d at 9 1194. Importantly, “the trier of fact must decide whether the search was reasonable in light of 10 the circumstances.” Id. Thus, there remains a genuine issue of material fact for trial—whether 11 12 the search here was reasonable. 13 Plaintiffs also argue that defendant officers lacked reasonable suspicion that plaintiffs 14 committed or were about to commit a criminal offense. (ECF No. 134 at 26). Defendants 15 oppose, arguing that marijuana smoke and odor satisfy a reasonable suspicion to detain. (ECF 16 No. 152 at 16). 17 18 Plaintiffs repeatedly argue that marijuana smoke and odor cannot serve as a basis for 19 detaining them. (See ECF Nos. 161; 165). However, “[t]he presence of the odor of contraband 20 may itself be sufficient to establish probable cause.” United States v. Kerr, 876 F.2d 1440, 1445 21 (9th Cir. 1989) (citing Johnson v. United States, 333 U.S. 10, 13 (1948)). And probable cause is 22 more difficult to establish than reasonable suspicion. Arvizu, 534 U.S. at 273-74. Here, there 23 24 remains a genuine issue of material fact as to whether there was marijuana odor and smoke. 25 Plaintiffs further contend that even if the initial detention was lawful, the detention was 26 prolonged. (ECF No. 161 at 31). However, the court finds that no reasonable jury could 27 28 1 conclude that plaintiffs Bowie, Green, Medlock, and Reece’s detentions were prolonged in 2 violation of the Fourth Amendment. 3 “[A] lawful seizure can become unlawful if it is prolonged beyond the time reasonably 4 required to complete that mission.” Muehler v. Mena, 544 U.S. 93, 101 (2005) (internal 5 6 quotation marks omitted). Here, plaintiffs were released after defendant officers determined 7 there were no weapons, no outstanding warrants, and plaintiffs were not actively engaged in 8 criminal activity. (ECF No. 152 at 26). 9 However, plaintiff Riley was detained for nearly four hours. (ECF No. 134 at 30). 10 Defendants contend that his detention was reasonable because the officers believed that a 11 12 potential crime, felon in possession of a firearm, was committed. (ECF No. 152 at 38). Here, 13 there remains a genuine issue of material fact as to whether Riley’s detention was prolonged 14 given his alleged consent to a DNA swab and willingness to remain at the scene. (Id. at 27). 15 Summary judgment is therefore inappropriate as to plaintiffs’ fifth and seventh causes of action. 16 5. Injunctive and declaratory relief 17 18 Plaintiffs also argue that they are entitled to injunctive and declaratory relief on any 19 claims they prevail on against defendant LVMPD. (ECF No. 134 at 50). Defendants do not 20 oppose any of plaintiffs’ arguments. (See ECF No. 152). 21 Summary judgment is appropriate in favor of plaintiffs, as to their third and fourth causes 22 of action. However, plaintiffs have failed to prove that the balance of hardships justify 23 24 injunctive relief and that the public interest would not be disserved by a permanent injunction. 25 See Riley's Am. Heritage Farms v. Elsasser, 32 F.4th 707, 730 (9th Cir. 2022). 26 Moreover, they have failed to show that they are entitled to declaratory relief. Plaintiffs 27 have failed to provide sufficient evidence that granting declaratory relief would serve a useful 28 1 purpose or establish that LVMPD must change its policies. Plaintiffs’ requests for injunctive and 2 declaratory relief are denied without prejudice. 3 V. Conclusion 4 Accordingly, 5 6 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiffs’ motion for 7 partial summary judgment (ECF No. 134) be, and the same hereby is, GRANTED in part and 8 DENIED in part. Summary judgment is GRANTED in favor of plaintiffs on their third and 9 fourth causes of action. 10 IT IS FURTHER ORDERED that defendants’ motion for summary judgment (ECF No. 11 12 142) be, and the same hereby is, GRANTED in part and DENIED in part. Summary judgment is 13 GRANTED in favor of defendant LVMPD on plaintiffs’ second, sixth, and eighth causes of 14 action. 15 IT IS FURTHER ORDERED that defendant David Jeong is DISMISSED from this 16 action. 17 18 IT IS FURTHER ORDERED that plaintiffs’ motion for reconsideration (ECF No. 141) 19 be, and the same hereby is, DENIED. 20 IT IS FURTHER ORDERED that plaintiffs’ motion to strike (ECF No. 156) be, and the 21 same hereby is, DENIED. 22 IT IS FURTHER ORDERED that plaintiffs’ motion to extend time for reply in support of 23 24 their motion for partial summary judgment (ECF No. 157) be, and the same hereby is, 25 GRANTED. 26 IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file excess pages (ECF 27 No. 159) be, and the same hereby is, GRANTED. 28 1 IT IS FURTHER ORDERED that plaintiffs’ second motion for leave to file excess pages 2 (ECF No. 164) be, and the same hereby is, GRANTED. 3 IT IS FURTHER ORDERED that defendants’ motion to extend time for reply in support 4 of their motion for summary judgment (ECF No. 169) be, and the same hereby is, DENIED. 5 6 The case proceeds on plaintiffs’ first, fifth, and seventh causes of action. 7 DATED March 28, 2025. 8

__________________________________________ 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28