Sweet v. Mesa, City of

• Court: District Court, D. Arizona
• Decided: August 2, 2019
• Docket: 2:17-cv-00152
• Status: Unknown

Opinion

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

9 Laney Sweet, No. CV-17-00152-PHX-GMS LEAD CASE 10 Plaintiff, CONSOLIDATED WITH: 11 v. No. CV-17-00715-PHX-GMS

12 City of Mesa, et al., AMENDED ORDER

13 Defendants. 14 Grady Shaver, et al.

15 Plaintiffs,

16 v.

17 City of Mesa, et al.,

18 Defendants. 19

20 Pending before the Court are multiple Motions for Summary Judgment against both 21 groups of Plaintiffs. (Docs. 261, 265, 270, 271, 273, 276). As to Plaintiffs Laney Sweet, 22 E.S., N.S. and the Estate of Daniel Shaver (“the Sweet Plaintiffs”), Defendants City of 23 Mesa, Bryan Cochran, Christopher Doane, Brian Elmore and Richard Gomez, Defendant 24 Charles Langley, and Defendant LQ Management LLC seek summary judgment on all 25 remaining claims. (Docs. 261, 265, 271). Those same Defendants seek summary judgment 26 on some or all of the Shaver Plaintiffs claims (Docs. 261, 270, 273). Plaintiffs have also 27 filed a Joint Motion to Amend the Rule 16 Scheduling Order and conduct additional 28 discovery. (Doc. 329). For the following reasons, the Court grants the Motion to Amend 1 the Rule 16 order, grants the motions for summary judgment in part, denies them in part 2 and defers a ruling on some of the remaining claims until after further discovery is 3 conducted.1 4 BACKGROUND 5 On January 18, 2016, Daniel Shaver, a resident of Texas, was visiting Arizona and 6 staying at a La Quinta Inn & Suites in Mesa. Mr. Shaver worked as a pest eradication 7 specialist and was in Arizona on business.2 Mr. Shaver’s job required him to carry pellet 8 rifles. 9 On the night of the incident, hotel employee Leticia Jimenez was approached by 10 two hotel guests. They informed her that they could see an individual holding what they 11 thought was a rifle with a scope in a hotel room. The guests pointed to Mr. Shaver’s room 12 on the fifth floor. Ms. Jimenez indicated that she knew that Mr. Shaver was staying in that 13 room. The guests agreed that the hotel staff should call the police. Ms. Jimenez asked Mr. 14 Johnson to call the police, and then went upstairs to investigate herself. Mr. Johnson 15 relayed some information about Mr. Shaver to the police, including his approximate age 16 and physical features. 17 Upon arriving at Mr. Shaver’s room, Ms. Jimenez began asking questions about his 18 pizza that he ordered. Mr. Shaver appeared confused as to why Ms. Jimenez was asking 19 these questions. There were two other individuals in the room with Mr. Shaver. Mr. Shaver 20 told Ms. Jimenez that everything was fine, and she went back downstairs. 21 By 9:15 p.m., several Mesa Police Department (“MPD”) officers arrived on the 22 scene. These officers included Defendants Charles Langley, Christopher Doane, Richard 23 Gomez, Brian Elmore and Bryan Cochran, as well as Phillip Brailsford.3 Sergeant Langley

24 1 The request for oral argument is denied because the parties have thoroughly 25 discussed the law and the evidence, and oral argument will not aid the Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th 26 Cir. 1991). 27 2 At least some of the hotel staff—including Jeremy Johnson, who made the 911 call—knew of Mr. Shaver’s occupation. (Doc. 310 Ex. 3 at 75:49 – 60). 28 3 Although the Shaver Plaintiffs now assert that the bankruptcy proceeding against 1 was the commanding officer at the scene. Without speaking to the La Quinta employees 2 about the situation, Sergeant Langley directed the MPD team to move up to Mr. Shaver’s 3 room. Officers Gomez, Cochran, Doane, and Elmore were all part of the team that went 4 upstairs. Officers Doane and Elmore both had their weapons drawn initially, but Officer 5 Doane switched to a taser when Mr. Shaver exited the room. Before heading upstairs, the 6 police officers secured Mr. Shaver’s vehicle and also established a perimeter around the 7 hotel—depriving Mr. Shaver of any flight path. 8 An MPD officer called Mr. Shaver’s room and told the inhabitants to exit the room 9 into the hallway. Mr. Shaver and Ms. Portillo did so immediately (Mr. Nunez had left the 10 room prior to MPD’s arrival). At one point when Mr. Shaver was attempting to comply 11 with commands, Sergeant Langley stated, “Alright, if you make another mistake, there’s a 12 very severe possibility you’re both going to get shot.” When Mr. Shaver attempted to 13 speak, Sergeant Langley said “This is––shut up. I’m not here to be tactful and diplomatic 14 with you. You listen, you obey.” Sergeant Langley then asked Mr. Shaver to place his 15 hands on the back of his head and interlace his fingers. Mr. Shaver did so. Next, Sergeant 16 Langley instructed Mr. Shaver to cross his left foot over his right foot. Mr. Shaver did so. 17 Sergeant Langley told Mr. Shaver “If you move, we’re going to consider that a threat and 18 we are going to deal with it and you may not survive it.” Mr. Shaver began to crawl towards 19 the officers, complying with their commands. As he did so, his athletic shorts started to 20 fall down. Mr. Shaver reached backwards towards his pants. At the sight of this 21 movement, Officer Brailsford fired five shots from his AR-15. Mr. Shaver died as a result 22 of the shooting. 23 After the incident, Officer Brailsford was terminated from the Department and 24 Sergeant Langley took an early retirement. Officers Cochran, Doane, Elmore, and Gomez 25 remain employed by MPD. 26 / / / 27 / / /

28 Officer Brailsford is no longer ongoing, the Court assumes for purposes of this motion that the claims against him are stayed. 1 DISCUSSION 2 I. Legal Standard 3 The purpose of summary judgment is “to isolate and dispose of factually 4 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S. Ct. 2548, 91 5 L.Ed.2d 265 (1986). Summary judgment is appropriate if the evidence, viewed in the light 6 most favorable to the nonmoving party, shows “that there is no genuine issue as to any 7 material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 8 P. 56(c). Only disputes over facts that might affect the outcome of the suit will preclude 9 the entry of summary judgment, and the disputed evidence must be “such that a reasonable 10 jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. 11 “[A] party seeking summary judgment always bears the initial responsibility of 12 informing the district court of the basis for its motion and identifying those portions of [the 13 record] which it believes demonstrate the absence of a genuine issue of material fact.” 14 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 15 particular parts of materials in the record” establishing a genuine dispute or “show[] that 16 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 17 56(c)(1). 18 II. Analysis 19 A. Request to Amend the Rule 16 Order 20 The Sweet and Shaver Plaintiffs now request that the Court amend its Rule 16 order 21 to allow additional discovery to be conducted. Requests to amend a Rule 16 Order are 22 governed by Rule 16(b)’s “good cause” standard. Johnson v. Mammoth Recreations Inc., 23 975 F.2d 604, 609 (9th Cir. 1992). This standard “primarily considers the diligence of the 24 party seeking the amendment.” Id. And “[a]lthough the existence or degree of prejudice 25 to the party opposing the modification might supply additional reasons to deny a motion, 26 the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id. 27 The parties became aware of Officer Brailsford’s pending bankruptcy on February 28 7, 2019. At this time, the deadline for finishing discovery was March 7, 2019, and the 1 deadline for filling dispositive motions was April 26, 2019. After the bankruptcy 2 proceedings began, all Defendants represented that they collectively believed that no 3 additional discovery by any of the parties—even the deposition of Plaintiff Ms. Sweet— 4 could go forward while Defendant Brailsford’s bankruptcy proceeding was pending. (Doc. 5 326, Ex. B). As such, the Plaintiffs here were unable to complete all relevant discovery 6 before these motions were filed. 7 Because the Defendants in this case collectively represented to Plaintiffs that no 8 further discovery could proceed while the bankruptcy was pending (including discovery of 9 Plaintiffs’ witnesses), the Court finds that Plaintiffs have demonstrated good cause to 10 amend the Rule 16 Order.4 And although additional discovery and supplemental briefing 11 may slightly prejudice Defendants as they suggest, that result flows directly from 12 Defendants’ own voluntary decision to halt discovery while the Motion to Stay was 13 pending. 14 The Court will therefore reopen the discovery period for ninety days from the date 15 of this order, in which the parties may seek to obtain that discovery that was specifically 16 identified among the parties and sought prior to the bankruptcy proceeding. The new 17 discovery cutoff is October 31, 2019. To obtain discovery that was not specifically 18 identified and sought prior to the bankruptcy proceeding will require the party to separately 19 show both good cause and unusual circumstances. After the discovery period is closed the 20 parties will have thirty days thereafter up until December 2, 2019, in which they may 21 file a supplement to their present briefing on the issues which remain open after this order 22 which include: (1) Whether Ms. Sweet and N.S. have standing to bring certain claims, (2) 23 whether the City of Mesa is entitled to summary judgment on Plaintiffs claims under 1983 24 or Arizona law for unconstitutional custom or practice, failure to supervise, ratification, or 25 negligent hiring, (3) whether Officer Langley was properly notified of the Shaver 26 27 4 Defendant Langley contends that the parties collectively agreed to postpone discovery, however, the emails provided by Plaintiffs state “the defendants do not believe 28 we can go forward with Ms. Sweet’s deposition on Feb. 9, as well as any other depositions. . . .” (Doc. 329, Ex. B) (emphasis added). 1 Plaintiffs’ state law claims, (4) whether Plaintiffs have sufficiently pointed to facts from 2 which a jury could find in their favor on the intentional infliction of emotional distress 3 claim; and (5) whether Officers Gomez, Cochran, Doane, and Elmore are entitled to 4 summary judgment on the state law wrongful death claim. The supplemental briefing will 5 not exceed ten pages—and will contain only facts and argument discovered during the 6 extended discovery period. 7 Additionally, if the parties agree that the bankruptcy proceeding as to Officer 8 Brailsford has terminated, they shall conduct any discovery relating to Officer Brailsford 9 in this same period. (At the time that Officer Brailsford filed for bankruptcy, there were 10 twenty-eight days of discovery left prior to the cutoff). They may additionally move for 11 summary judgment as to issues pertaining to him within the same motion deadline. (See 12 Doc. 334). 13 B. Motion to Bifurcate 14 The City of Mesa and remaining individual officers request that this Court bifurcate 15 two issues of standing as to the Sweet Plaintiffs from the other remaining issues at trial 16 under Rule 42(b). Specifically, the City of Mesa argues that the Court must first determine 17 whether Plaintiff Laney Sweet was Mr. Shaver’s common law wife under Texas law, and 18 also determine whether one of the child plaintiffs was Mr. Shaver’s. 19 Rule 42(b) states that a court may order a separate trial of separate issues for 20 convenience, to avoid prejudice, or to expedite and economize. District courts have broad 21 discretion as to whether bifurcation is appropriate. United States v. 1,071.08 Acres of Land, 22 Yuma and Mohave Counties, 564 F.2d 1350, 1352 (9th Cir. 1977). “The piecemeal trial of 23 separate issues in a single lawsuit . . . is not to be the usual course, however, and will be 24 ordered only where the party seeking separate trials meets his or her burden of proving that 25 bifurcation is necessary.” Lassley v. Secura Supreme Inc. Co., 2015 WL 5634307 at *2 (D. 26 Ariz., Sept. 15, 2015) (internal citations and quotation marks omitted). At this time, 27 Defendants have not met their burden of demonstrating that bifurcation is necessary here. 28 Importantly, even if a jury were to find for Defendants on both of these standing arguments, 1 a trial on the merits would still be necessary for the remaining plaintiffs. Accordingly, the 2 Court denies the Motion to Bifurcate. 3 However, because Defendants state additional discovery may be necessary for 4 proper resolution of this standing issues at summary judgment, the Court will defer a ruling 5 on the standing arguments until after additional discovery on these two issues is completed, 6 including the deposition of Ms. Sweet. 7 C. La Quinta 8 Because LQ Management moves for summary judgment against both sets of 9 Plaintiffs on the same grounds, the Court will analyze their arguments as to both plaintiffs 10 together. 1. La Quinta is Immune From Plaintiff’s State Law Negligence 11 Claim. 12 In Arizona, “putative crime victims . . . are entitled to absolute immunity when they 13 complain to police.” Ledvina v. Cerasani, 146 P.3d 70, 75 (Az. Ct. App. 2006). This 14 immunity extends to “victims of crimes as well as those who witness and report them.” 15 Ledvina 146 P.3d at 76. Ledvina announced this broad immunity for two reasons: (1) to 16 preserve “utmost freedom of communication between citizens and public authorities whose 17 responsibility it is to investigate and remedy wrongdoing,” id. at 75 (internal citation 18 omitted), and (2) to further the policy embodied in the Arizona Constitution that crime 19 victims “be free from intimidation, harassment, or abuse throughout the criminal justice 20 process.” Id. (citing Ariz. Const. art. II, § 2.1(A)(1)). Courts in this district have read 21 Ledvina to prevent actions against individuals who report potential crimes to the police. 22 See Clark v. Minore, 2017 WL 5668351, at *2 (D. Ariz. 2017) (“[C]ivil claims based on 23 police reports are barred as a matter of law”); Shelburg v. City of Scottsdale Police Dept., 24 2010 WL 3327690, at *12 (D. Ariz., 2010) (“Arizona does not have a cause of action for 25 negligently calling the police”). In Ledvina, the court left open the possibility of exceptions 26 to this broad immunity, including in cases of malicious prosecution or abuse of process. 27 Id. 28 / / / 1 Here, Plaintiffs’ allegations against La Quinta focus on the information (or lack 2 thereof) provided to MPD in the 911 call, and subsequent interactions with hotel staff. Had 3 La Quinta’s employees provided additional or different information to the MPD, their 4 argument goes, an accurate scope of the threat would have been relayed to the officers, and 5 Mr. Shaver’s death could have been avoided. Plaintiffs further allege that La Quinta 6 negligently failed to implement policies that would have better facilitated their employees’ 7 processing of this information, and that their employees additionally acted negligently by 8 not relaying additional information to the police regarding Mr. Shaver. 9 The broad immunity announced in Ledvina bars this claim. While Ledvina involved 10 a defamation claim, not a negligence claim, other courts applying this privilege have 11 explained that “the privilege cannot be defeated by providing a new label for the alleged 12 wrong.” Hagberg v. California Fed. Bank, 81 P.3d 244, 259 (Cal. 2004). The underlying 13 conduct here—providing inaccurate or incomplete information to police—is the exact 14 conduct for which Ledvina bars liability. Accordingly, La Quinta’s Motion for Summary 15 Judgment as to both sets of Plaintiffs is granted. 16 2. Rule 56(d) Motion 17 Because the Court finds that La Quinta is entirely immune from Plaintiffs’ 18 negligence claims, it will deny the Plaintiffs’ Rule 56(d) motion as moot. Plaintiffs have 19 not alleged a malicious prosecution or abuse of process claim against La Quinta, which are 20 the kinds of claims that remain available under Ledvina. Accordingly, any further 21 discovery would not change the outcome reached herein. 22 D. Section 1983 Claims 23 1. Officers Gomez, Doane, Cochran, and Elmore 24 “Qualified immunity attaches when an official’s conduct does not violate clearly 25 established statutory or constitutional rights of which a reasonable person would have 26 known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation 27 marks and citation omitted). “In determining whether an officer is entitled to qualified 28 immunity, [courts] consider (1) whether there has been a violation of a constitutional right; 1 and (2) whether that right was clearly established at the time of the officer’s alleged 2 misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). The Supreme Court 3 has cautioned lower courts not to define clearly established law “at a high level of 4 generality.” White v. Pauley, 137 S. Ct. 548, 552 (2017). District courts have discretion 5 as to which prong of the qualified immunity analysis should be analyzed first. See Jessop 6 v. City of Fresno, 918 F.3d 1031, 1035 (9th Cir. 2019). In the interest of preserving judicial 7 resources, the Court will first analyze whether the right at issue here was clearly established 8 as to Officers Gomez, Cochran, Elmore and Doane. Id. 9 To determine whether a right is clearly established, courts must examine “whether 10 the state of the law at the time of the incident provided a fair warning to the defendant that 11 his or her conduct was unconstitutional.” Jessop v. City of Fresno, 918 F.3d 1031, 1035 12 (9th Cir. 2019) (internal citations and quotation marks omitted). When determining 13 whether a right is clearly established, courts in this Circuit “may look at unpublished 14 decisions and the law of other circuits, in addition to Ninth Circuit precedent.” Prison Legal 15 News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005). Under recent Supreme Court 16 precedent, “[g]eneral excessive force principles, as set forth in Graham and Gardner, are 17 ‘not inherently incapable of giving fair and clear warning to officers,’ but they ‘do not by 18 themselves create clearly established law outside an obvious case.’” S.B. v. County of San 19 Diego, 864 F.3d 1010 1015 (9th Cir. 2017) (citing and quoting White v. Pauly, 137 S. Ct. 20 548, 552 (2017)). Instead, courts undertaking the qualified immunity analysis must 21 “identify a case where an officer acting under similar circumstances as [Gomez, Cochran, 22 Doane, and Elmore] w[ere] held to have violated the Fourth Amendment.” Id. at 1015–16. 23 Plaintiffs primarily focus on the conduct of Sergeant Langley and Officers 24 Brailsford, however, Plaintiffs must point to a particular precedent that articulates “a 25 constitutional rule specific enough to alert these deputies in this case that their particular 26 conduct was unlawful.” Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017) 27 (emphasis in original). Plaintiffs have not provided, and the Court is unaware of, any such 28 case as to these Defendants. Therefore, as to Officers Gomez, Cochran, Doane, and 1 Elmore, qualified immunity is granted on the Fourth Amendment and Fourteenth 2 Amendment claims under all theories of liability. The Court also therefore necessarily 3 grants Officers Gomez, Cochran, Doane and Elmore’s motion for summary judgment as to 4 punitive damages under section 1983. 5 2. City of Mesa 6 Plaintiffs here seek Monell liability against the City of Mesa for inadequate hiring 7 and screening, failure to train, failure to supervise, reckless indifference, and ratification. 8 The Court will address each of these theories in turn.5 9 a. Ratification 10 “To show ratification, a plaintiff must prove that the ‘authorized policymakers 11 approve a subordinate's decision and the basis for it.’” Christie v. Iopa, 176 F.3d 1231, 12 1239 (9th Cir.1999) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 13 915, 99 L.Ed.2d 107 (1988)). Typically, agreeing to indemnify or partially indemnify an 14 employee is insufficient to demonstrate ratification. Trevino v. Gates, 99 F.3d 911, 920– 15 21 (9th Cir. 1996) (declining to find ratification on the basis of indemnity alone). 16 Additionally, “[a] mere failure to overrule a subordinate's actions, without more, is 17 insufficient to support a § 1983 claim.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 18 2004). The policymaker must have knowledge of the constitutional violation and must 19 make a “conscious, affirmative choice” to ratify the conduct at issue. Id. “In other words, 20 in order for there to be ratification, there must be ‘something more’ than a single failure to 21 discipline or the fact that a policymaker concluded that the defendant officer's actions were 22 in keeping with the applicable policies and procedures.” Garcia v. City of Imperial, 2010 23 WL 3911457 at *10 (S.D. Cal 2010).

24 5 Defendants allege that Plaintiffs have failed to include a 1983 claim against the 25 City of Mesa for the death of Mr. Shaver. But the complaint adequately put the City on notice that the Plaintiffs were seeking legal damages for actions that “were directed or 26 caused by the City of Mesa, were consistent with . . . City of Mesa’s policies practices and customs,” and that “City of Mesa is liable for the conduct of . . . MPD officers for . . . 27 polices practices, and customs that have endangered, including through police training, supervision and discipline (Doc. 53 at 35) and that “The City of Mesa is sued [for conduct] 28 . . . caused by or ratified by the City of Mesa” (Doc. 53 at 3), and specifically note that they are seeking liability under 1983 for all Mesa Defendants. (Doc. 53 at 49). 1 Here, following the incident, Officer Brailsford was fired for displaying the phrase, 2 “You’re F------” on his MPD rifle. (Doc. 297, Ex. 51). And, the City of Mesa additionally 3 reached an agreement with Officer Brailsford to provide a defense in this action. (Id., Ex. 4 50). However, neither of these pieces of evidence are sufficient to show that the City of 5 Mesa or one of its officials made a “conscious, affirmative choice,” Lytle, 382 F.3d at 987, 6 to ratify Officer Brailsford’s conduct. Yet, because the Plaintiffs have been unable to finish 7 discovery as to this claim, the Court will defer a ruling until after discovery is completed. 8 Therefore, the Court will deny the request for summary judgment without prejudice. 9 b. Custom or Practice 10 As a general matter, Plaintiffs “need not show evidence of a policy or deficient 11 training; evidence of an informal practice or custom will suffice.” Nehad v. Browder, 2019 12 WL 3023147 at *11 (9th Cir. 2019). But, “[t]he custom must be so ‘persistent and 13 widespread’ that it constitutes a ‘permanent and well settled city policy.’” Trevino v. Gates, 14 99 F.3d 911, 918 (9th Cir.1996). A custom or practice can be “inferred from widespread 15 practices or evidence of repeated constitutional violations for which the errant municipal 16 officers were not discharged or reprimanded.” Nadell v. Las Vegas Metro., 268 F.3d 924, 17 929 (9th Cir. 2001) abrogated on other grounds as recognized in Beck v. City of Upland, 18 527 F.3d 853, 863 n.8 (9th Cir. 2008). 19 Both sets of Plaintiffs seek to establish liability against the City of Mesa on the basis 20 of an informal custom of excessive force that allegedly permeates the MPD. Plaintiffs 21 point to several other excessive force incidents from the MPD in the past five years, (see 22 Doc. 297-13 at 6), and an analysis from the local paper that found that two percent of 23 excessive force complaints are met with discipline as to the offending officer. Because 24 discovery has not been completed on this claim, the Court will defer a ruling until Plaintiffs 25 are able to obtain all facts relating to Officers Brailsford and Sergeant Langley’s prior 26 history of excessive force, and other relevant information. 27 c. Unconstitutional Hiring/Screening 28 The Court will similarly defer a ruling as to whether the City of Mesa may be liable 1 for unconstitutional hiring of Officer Brailsford until after discovery can be completed on 2 these claims. 3 d. Failure to Train 4 To establish liability on a failure to train theory, Plaintiffs must demonstrate that (1) 5 there was a “depriv[ation] of a constitutional right, “(2) the city had a training policy that 6 amounts to deliberate indifference to the constitutional rights of the persons with whom its 7 police officers are likely to come into contact; and (3) [the] constitutional injury would 8 have been avoided had the City properly trained those officers.” Blankenhorn v. City of 9 Orange, 485 F.3d 463, 484 (9th Cir. 2007) (internal citations, alterations, and quotation 10 marks omitted). 11 To support their failure to train claim, the Shaver Plaintiffs point to Police 12 department reports for each of the individual officers who remained with the City of Mesa 13 following the incident. These reports show that each of Officers Doane, Elmore, Gomez, 14 and Cochran received de-escalation training after the event, but not before. (See e.g. Doc. 15 287-33 at 6 (showing Officer Doane received de-escalation training in April 2016), Doc 16 287-34 at 11 (showing Officer Elmore received de-escalation training in May 2016), Doc. 17 287-39 at 25 (showing Officer Gomez received de-escalation training in May 2016). The 18 reports do not show that any of the officers at the incident had previously received de- 19 escalation training.6 A reasonable jury could conclude that the lack of prior, systematic 20 de-escalation training amounted to a “program-wide inadequacy in training.” 21 Blankenhorn, 485 F.3d at 484–85. Shaver Plaintiffs also point to evidence from which a 22 jury could conclude that the officers were not trained or directed to inspect a waistline for 23 weapons typically. Both of these failures could lead a reasonable jury to conclude that the 24 City of Mesa’s failure to properly train caused Mr. Shaver’s death. 25 Drawing all inferences in the Plaintiffs’ favor, a reasonable jury could also conclude 26 that had the officers’ received prior de-escalation training or training regarding waistline

27 6 Defendants assert that the officers previously received de-escalation training but 28 failed to point to evidence in the record from which a jury could infer that they received such training. 1 weapon inspection, the seizure here would have been avoided. Summary Judgment as to 2 the Fourth Amendment claim against the city on a failure to train theory is therefore 3 denied.7 4 5 E. State Law Claims 6 The Court will similarly analyze the state law claims as to each defendant, noting 7 where the Shaver and Sweet Plaintiffs’ arguments and claims differ. 8 1. Sergeant Langley 9 Sergeant Langley moves for summary judgment on Plaintiffs wrongful death and 10 intentional infliction of emotional distress claims. 11 a. Wrongful Death 12 i. Causation 13 “The general rule is that the question of causation is one of fact for a jury except in 14 those instances where no reasonable persons could disagree.” Energex Enters. Inc., v. 15 Shughart Thomas & Kilroy P.C., 2006 WL 2401245 *3 (D. Ariz. August 17, 2006) 16 (quoting Molever v. Roush, 152 Ariz. 367, 732 P.2d 1105, 1112 (Ariz. Ct. App. 1987)) 17 (internal quotation marks omitted). “Ordinarily, the question of proximate cause is a 18 question of fact for the jury. Only when plaintiff's evidence does not establish a causal 19 connection, leaving causation to the jury's speculation, or where reasonable persons could 20 not differ on the inference derived from the evidence, may the court properly enter a 21 directed verdict.” Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 22 1040, 1047 (1990). “Plaintiff need only present probable facts from which the causal 23 relationship reasonably may be inferred.” Id. (citing Purcell v. Zimbelman, 18 Ariz. App. 24 75, 82, 500 P.2d 335, 342 (1972)). Viewing the facts in the light most favorable to the 25 Plaintiffs, a jury could conclude that Officer Langley’s conduct caused Mr. Shaver’s death 26 27 7 Plaintiffs correctly note that the Arizona statute on pre-death pain and suffering would not bar them from recovering against the individual officers here, because their 28 theory of liability is that the other officers’ conduct caused Mr. Shaver’s death—the event for which they seek damages. (Doc. 304 at 9). 1 under this standard. 2 For example, a reasonable jury could conclude that Officer Langley did not allow 3 Mr. Shaver to freely communicate with the officers, instead opting to instruct him to refrain 4 from talking. (See e.g. Doc. Ex. 20), (“I didn’t say this was a conversation . . . . Don’t talk, 5 listen.”). He also stated that if Mr. Shaver made another mistake, he would likely be shot. 6 A reasonable jury could conclude that these statements from Officer Langley contributed 7 to Mr. Shaver’s death in at least two ways. First, a reasonable jury could find that these 8 statements prevented Mr. Shaver from explaining that he was unarmed and trying to 9 comply with instructions to the best of his abilities. Second, a reasonable jury could also 10 conclude based on the video footage that these statements contributed to Officer 11 Brailsford’s perception of the threat posed by Mr. Shaver, making it more likely that he 12 would resort to deadly force if Mr. Shaver did not comply with their commands. 13 Defendants respond that because Officer Brailsford testified at the criminal 14 proceeding that Officer Langley did not influence his decision to pull the trigger, a jury 15 could not conclude that his conduct was influenced by the behavior of the other officers. 16 (See Doc. 265 at 11). However, Plaintiffs have provided an expert witness who disagrees 17 with this assessment, and, more importantly, a jury could nonetheless conclude from the 18 video footage that Officer Langley’s commands, the lack of prior investigation, the lack of 19 downward threat adjustment, and other facts contributed to Officer Brailsford’s ultimate 20 decision. 21 ii. Justified 22 Arizona provides immunity to officers who use deadly force only when the officer 23 believes it is necessary:

24 1. To defend himself or a third person from what the peace officer reasonably believes to be the use or imminent use of 25 deadly physical force.

26 2. To effect an arrest or prevent the escape from custody of a person whom the peace officer reasonably believes: 27 (a) Has committed, attempted to commit, is committing or is attempting to commit a felony involving the use or 28 a threatened use of a deadly weapon. 1 (b) Is attempting to escape by use of a deadly weapon.

2 (c) Through past or present conduct of the person which is known by the peace officer that the person is likely to 3 endanger human life or inflict serious bodily injury to another unless apprehended without delay. 4 (d) Is necessary to lawfully suppress a riot if the person 5 or another person participating in the riot is armed with a deadly weapon. 6 Ariz. Rev. Stat. § 13-410(c). 7 While Defendant Langley is correct that, as a general rule, deadly force warnings 8 are required by law, that does not as an uncontested matter of fact excuse or otherwise 9 justify all of his conduct that may have contributed to Mr. Shaver’s death. It is not clear 10 that each deadly force warning was merited under the circumstances that Sergeant Langley 11 confronted. Additionally, a reasonable jury could conclude that, when confronted with Mr. 12 Shaver’s conduct in the hallway, Sergeant Langley could have instructed his officers to 13 adjust their force downward and implement de-escalation tactics. 14 Defendant Langley further argues that he was simply relying upon information of 15 other officers and the 911 dispatch when he arrived at the scene. He further argues that 16 this reliance justifies any subsequent plan that he undertook to try to take Mr. Shaver into 17 custody, because he believed there was an active shooter situation unfolding. But this line 18 of argument ignores the well-established principle that “officers who lead the team that 19 executes a warrant are responsible for ensuring that they have lawful authority for their 20 actions.” Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027 (9th Cir. 2002). 21 Viewing the facts in the light most favorable to Plaintiffs, a reasonable jury could 22 conclude that Officer Langley’s actions here were not justified. 23 b. Intentional Infliction of Emotional Distress 24 In Arizona, there are three elements in an Intentional Infliction of Emotional 25 Distress (“IIED”) claim: “first, the conduct by the defendant must be ‘extreme’ and 26 ‘outrageous’; second, the defendant must either intend to cause emotional distress or 27 recklessly disregard the near certainty that such distress will result from his conduct; and 28 third, severe emotional distress must indeed occur as a result of the defendant’s conduct.” 1 Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). Defendants do not appear to contest 2 the third element, and instead focus on whether there is a duty to perform certain conduct,8 3 and whether the conduct at issue here was outrageous and extreme. 4 Plaintiffs focus on three sets of conduct that they claim establish liability under an 5 IIED framework. First, they argue that the Department failed to return Ms. Sweets’ calls 6 regarding Mr. Shaver. Second, they argue that the officers here (including Officers 7 Langley, Gomez, Cochran, Doane, and Elmore) failed to note in their respective police 8 reports that Mr. Shaver was crying and other mitigating behavior during their interaction 9 with him in the hotel hallway. And finally, they point to the fact that the police did not 10 release the video footage of the incident until after the criminal trial of Officer Brailsford 11 was completed. 12 The Court will defer a ruling on this claim until the Plaintiffs can complete their 13 depositions of the officers who authored police reports and were involved with the decision 14 regarding the video footage. 15 c. Notice to Defendant Langley 16 Defendant Langley further moves for summary judgment as to the Shaver Plaintiffs 17 for failure to provide adequate notice in accordance with Arizona law. Under Arizona law, 18 “[p]ersons who have claims against a public entity, public school or a public employee 19 shall file claims with the person or persons authorized to accept service for the public entity, 20 public school or public employee as set forth in the Arizona rules of civil procedure within 21 one hundred eighty days after the cause of action accrues.” Ariz. Rev. Stat. § 12-821.01(A).

22 8 Defendants argue that because there is no duty to provide next of kin notification 23 or a duty to fill out police reports in a particular manner under Arizona law, no liability can attach for Plaintiffs’ intentional infliction of emotional distress claim. But none of the 24 cases cited by Defendants dealt with an IIED claim. See e.g., Guerra v. State, 237 Ariz. 183, 184 348 P.3d 423, 424 (2015) (clarifying that “[o]nly the negligence claim is at issue 25 here.”); Morton v. Maricopa County, 177 Ariz. 147, 865 P.2d 808 (Ariz. Ct. App. 1993) (analyzing whether a “special relationship” exists under a negligence framework); Vasquez 26 v. State, 220 Ariz. 304, (App. 2008) (“Because [plaintiff] alleged negligence as the basis for . . . her claims of infliction of emotional distress . . . we first analyze whether the county 27 owed a duty to [plaintiff].”). And, of course, duty is not one of the elements of a successful IIED claim. See Ford v. Revlon, 153 Ariz. 38, 43 734 P.2d 580, 585 (1987). Thus, 28 Defendants’ discussion of whether a special relationship exists between police and crime victim’s members under these circumstances is orthogonal to the IIED claim. 1 Under this statutory scheme, “[a]ctual notice and substantial compliance do not excuse 2 failure to comply with the . . . requirements of A.R.S. § 12–821.01(A).” Falcon ex rel. 3 Sandoval v. Maricopa Cnty., 213 Ariz. 525, 527 144 P.3d 1254, 1256 (2006). 4 The Court previously denied the dismissal against Officer Langley because 5 questions of fact exist as to whether MPD was authorized to accept service on his behalf. 6 Because Officer Langley has not yet been deposed, the Court will defer a ruling on the 7 notice claim. 8 2. Officers Cochran, Gomez, Doane, and Elmore 9 a. Wrongful Death 10 “As a general rule, public entities and public employees are subject to tort liability 11 for their negligence.” Spooner v. City of Phoenix, 246 Ariz. 119, 123 435 P.3d 462, 466 12 (Az. Ct. App. 2018). However, “[c]ommon law qualified immunity generally provides 13 public officials, including police officers, limited protection from liability when 14 performing an act that inherently requires judgment or discretion. Id. (citing Chamberlain 15 v. Mathis, 151 Ariz. 551, 555, 558, 729 P.2d 905, 909, 912 (1986)) (internal quotation 16 marks omitted). “If qualified immunity applies, a public official performing a discretionary 17 act within the scope of her public duties may be liable only if she “knew or should have 18 known that she was acting in violation of established law or acted in reckless disregard of 19 whether her activities would deprive another person of their rights.” Id. at 467. 20 Because these officers have still not been deposed, the Court will defer a ruling as 21 to whether Officers Gomez, Cochran, Elmore, and Doane “acted in reckless disregard of 22 whether [their] activities would deprive another person of their rights.” Id. 23 3. City of Mesa 24 a. Wrongful Death 25 To prevail on the wrongful death claim against the City of Mesa, a plaintiff must 26 also present evidence showing what training should have been provided, and that its 27 omission proximately caused the injuries. See Inmon v. Crane Rental Servs., Inc., 205 28 Ariz. 130, 137 (App. 2003) overruled on other grounds by Tarron v. Bowen Machine & 1 Fabricating Inc., . The Plaintiffs have identified facts from which a jury could infer that a 2 lack of training as to de-escalation and waistband inspection contributed to Mr. Shaver’s 3 death. See discussion supra at Section II.D.2.d. For the same reasons that Plaintiffs’ 4 Monell claim survives, this claim also survives. Id. As for the Plaintiffs’ claims that the 5 City was negligent in their hiring or supervision of Officer Brailsford, the Court will defer 6 a ruling on these theories until additional discovery has completed. See also, supra Section 7 II.D.6.d. 8 IT IS THEREFORE ORDERED that the Joint Plaintiffs’ Motion for New Rule 9 16 Scheduling Order (Doc. 329) is GRANTED the scheduling order is amended as 10 follows: 11 Deadline for Completion of Fact Discovery. The deadline for completing fact 12 discovery, including discovery by subpoena shall be October 31, 2019. All such discovery 13 as is completed will be subject to a stipulated confidentiality order that prevents 14 dissemination of any discovery to persons or entities who are not parties or agents of parties 15 to this civil proceeding. As discussed above, all discovery conducted during this period 16 must have been noticed prior to the initiation of the bankruptcy proceeding. 17 Deadline for Filing of Supplemental Briefing 18 a. Supplemental briefs not to exceed ten pages shall be filed no later 19 than December 2, 2019. Such briefs must comply in all respects with Local Rules. 20 b. No party shall file more than one supplemental brief. 21 IT IS FURTHER ORDERED that the individual officers and City of Mesa’s 22 Motion to Bifurcate Standing (Docs. 257, 276) is DENIED. 23 IT IS FURTHER ORDERED that Defendant LQ Management LLC’s Motion for 24 Summary Judgment (Doc. 261) is GRANTED. Defendant LQ Management’s Motion in 25 Limine (Doc. 325) is DENIED AS MOOT. 26 IT IS FURTHER ORDERED that the Sweet Plaintiffs’ Motion to Seal Document 27 (Doc. 331) is GRANTED. The Clerk of Court is directed to file the lodged Response 28 (Doc. 332) under seal. 1 IT IS FURTHER ORDERED that the Officers Gomez, Elmore, Cochran, Doane 2 and City of Mesa’s Motion for Summary Judgment as to the Shaver Plaintiffs (Doc. 265) 3 is GRANTED IN PART, DEFERRED IN PART AND DENIED IN PART AS 4 FOLLOWS: 5 1. Summary Judgment as to qualified immunity on the 1983 claims against 6 Officers Gomez, Elmore, Cochran, and Doane is GRANTED. 7 2. Summary Judgment as to whether (1) the City of Mesa is liable under section 8 1983 or Arizona law for unconstitutional custom or practice, failure to supervise, 9 ratification, or negligent hiring, and (2) whether Officers Gomez, Cochran, Elmore, and 10 Doane are entitled to summary judgment on the state law wrongful death claim is deferred 11 until the supplemental briefing is submitted. 12 3. Summary Judgement as to all other claims is DENIED. 13 IT IS FURTHER ORDERED that the individual officers and City of Mesa’s 14 Motion for Summary Judgment as to the Sweet Plaintiffs (Doc. 273) is GRANTED IN 15 PART, DEFERRED IN PART AND DENIED IN PART AS FOLLOWS: 16 1. Summary Judgment as to qualified immunity on the 1983 claims against 17 Officers Gomez, Elmore, Cochran, and Doane is GRANTED. 18 2. Summary Judgment as to (1) whether Ms. Sweet and N.S. have standing to 19 bring their claims, (2) whether the City of Mesa is liable under 1983 or Arizona law for 20 unconstitutional custom or practice, failure to supervise, ratification, or negligent hiring; 21 (3) whether Officers’ Gomez Cochran Elmore and Doane are entitled to summary 22 judgment on the remaining state law claims, and (4) the Sweet Plaintiffs’ Intentional 23 Infliction of Emotional Distress claim is deferred until the supplemental briefing is 24 submitted. 25 3. Summary Judgement as to all other claims is DENIED. 26 IT IS FURTHER ORDERED that Defendant Langley’s Motion for Summary 27 Judgment as to the Shaver Plaintiffs (Doc. 270) is DENIED IN PART AND DEFERRED 28 IN PART AS FOLLOWS: 1 1. Summary Judgment as to as to whether Sergeant Langley was adequately 2|| notified of the pending claim is deferred until after the supplemental briefs are submitted. 3 2. As to all other claims, summary judgment is DENIED. 4 IT IS FURTHER ORERED that Defendant Langley’s Motion for Summary 5 || Judgment as to the Sweet Plaintiffs (Doc. 271) is DENIED IN PART AND DEFERRED 6|| IN PART AS FOLLOWS: 7 1. As to the Sweet Plaintiffs’ Intentional Infliction of Emotional Distress claim, 8 || summary judgment is deferred until the supplemental briefs are submitted. 9 2. As to all other issues, summary judgment is DENIED. 10 Dated this 2nd day of August, 2019. 11 “) 1 _Hfertag Sete! Wirsay 13 Chief United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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