1 WO
4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 5
6 Elijah Wesbrock, No. CV-19-02196-PHX-DWL
7 Plaintiff, ORDER
8 v.
9 Unknown Ledford, et al., 10 Defendants. 11
12 Pending before the Court is a motion to dismiss by Defendants Michael Fernandez and Gabriel Vasquez (together, the “Glendale Defendants”). (Doc. 18.) For the following 13 reasons, the motion will be granted in part and denied in part. 14 BACKGROUND 15 I. Factual Background 16 The facts alleged in the complaint are as follows. The Glendale Defendants are 17 police officers employed by the City of Glendale, Arizona. (Doc. 1 ¶¶ 9-10.) Also named 18 as defendants are several other Glendale police officers and supervisors, identified as John 19 Does, as well as Sergeants Ledford and Ledesma of the United States Air Force (together, 20 the “Air Force Defendants”). (Id. ¶¶ 6-7, 11-12.) 21 On February 21, 2017, Plaintiff was “standing on a crosswalk of a public side walk 22 using a camera to record his surroundings” outside the Kachina Gate of Luke Air Force 23 Base in Glendale, Arizona. (Id. ¶¶ 15-16.) One of the Air Force Defendants approached 24 Plaintiff and told him to put his camera away. (Id. ¶ 19.) Plaintiff responded that he had 25 the right to remain silent and continued recording. (Id. ¶ 20.) The Air Force Defendant 26 then ordered Plaintiff to place his hands behind his back, handcuffed him, and detained 27 him on the sidewalk. (Id. ¶ 21.) 28 1 Afterward, the other Air Force Defendant arrived and assisted with Plaintiff’s 2 detention. (Id. ¶ 23.) The Air Force Defendants “knew that Plaintiff had not violated any 3 law” but nevertheless persisted with his detention. (Id. ¶ 24.) “Plaintiff invoked his right 4 to remain silent when he was asked for his identification.” (Id. ¶ 25.) 5 “Shortly after,” Officer Vasquez happened to see Plaintiff detained on the side of 6 the road and stopped to provide assistance. (Id. ¶ 29.) One of the Air Force Defendants 7 told Officer Vasquez that Plaintiff had “refused to comply with instructions to stop 8 recording and . . . refused to leave the installation.” (Id. ¶ 30.) One of the Air Force 9 Defendants then obtained supervisory approval to press charges against Plaintiff. (Id. ¶ 10 32.) 11 Officer Fernandez and other Glendale officers then arrived on the scene. (Id. ¶ 34.) 12 The Glendale Defendants kept Plaintiff handcuffed on the sidewalk for approximately an 13 hour. (Id. ¶¶ 35.) During this period, Officer Vasquez stated: “[W]e are trying to figure 14 out [what] was going on, whether you committed a crime or not.” (Id. ¶ 36.) Plaintiff insisted he was “standing on the corner of a crosswalk on a public side walk and that he 15 has a right to record the public view.” (Id. ¶ 40.) In response, Officer Vasquez stated: “I’m 16 not saying it is illegal or not, I’m saying why would you want to do that.” (Id. ¶ 41.) The 17 Glendale Defendants eventually called their supervisor, John Doe (“Supervisor Doe”), who 18 ordered them to arrest Plaintiff for trespassing and refusal to provide his name. (Id. ¶ 44.) 19 Officer Fernandez arrested Plaintiff and took him to the Glendale City Jail for 20 booking. (Id. ¶ 45.) Plaintiff, who was charged with trespassing and refusing to provide 21 his name, spent the night in jail. (Id. ¶ 48.) 22 On May 30, 2018, both charges were dismissed. (Id. ¶ 49.) 23 II. Procedural Background 24 On April 3, 2019, Plaintiff filed a complaint. (Doc. 1.) 25 On July 9, 2019, the Court dismissed this action against all defendants without 26 prejudice for failure to complete service. (Doc. 10.) 27 On November 7, 2019, the Court granted Plaintiff’s motion to reinstate the case. 28 (Doc. 16.) 1 On December 3, 2019, the Glendale Defendants filed a motion to dismiss. (Doc. 2 18.) 3 On December 31, 2019, Plaintiff filed a response. (Doc. 22.) 4 On January 17, 2020, the Glendale Defendants filed a reply. (Doc. 25.) 5 DISCUSSION 6 Plaintiff’s complaint asserts five claims under 42 U.S.C. § 1983 against one or both 7 of the Glendale Defendants: (1) retaliation for protected conduct, in violation of the First 8 Amendment (Count III—Officer Fernandez only), (2) unlawful arrest, in violation of the 9 Fourth Amendment (Count IV), (3) malicious prosecution, in violation of the Fourth 10 Amendment (Count V—Officer Fernandez only), (4) failure to intervene, in violation of 11 the First and Fourth Amendments (Count VI), and (5) conspiracy to violate civil rights 12 (Count VIII). (Doc. 1.) Additionally, Plaintiff names Supervisor Doe as a defendant in 13 two of those counts (Counts V and VIII) and asserts a standalone § 1983 claim against 14 Supervisor Doe for “supervisory individual liability” (Count VII). (Doc. 1 ¶¶ 121-32.) The Glendale Defendants argue that all claims against them, as well as the 15 “supervisory individual liability” claim against Supervisor Doe, should be dismissed. 16 (Doc. 18 at 2-3.) Specifically, the Glendale Defendants argue that all claims except the 17 malicious prosecution claim in Count V are barred by the statute of limitations. (Id. at 4- 18 8.) The Glendale Defendants further argue that Count V fails to state a claim, and 19 alternatively that qualified immunity shields them from suit. (Id. at 8-13.) 20 I. Statute Of Limitations 21 “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by 22 the applicable statute of limitations only when the running of the statute is apparent on the 23 face of the complaint.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 24 954, 969 (9th Cir. 2010) (quotation omitted). “[A] complaint cannot be dismissed unless 25 it appears beyond doubt that the plaintiff can prove no set of facts that would establish the 26 timeliness of the claim.” Id. (citation omitted). The Court must “accept[] all factual 27 allegations in the complaint as true and draw[] all reasonable inferences in favor of the 28 1 nonmoving party.” Gregg v. Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 886-87 (9th Cir. 2 2017) (quotation omitted). 3 “Section 1983 does not contain its own statute of limitations. Without a federal 4 limitations period, the federal courts borrow the statute of limitations for § 1983 claims 5 applicable to personal injury claims in the forum state.” TwoRivers v. Lewis, 174 F.3d 987, 6 991 (9th Cir. 1999). “In Arizona, the courts apply a two-year statute of limitations to § 7 1983 claims.” Id. However, “federal, not state, law determines when a civil rights claim 8 accrues.” Id. “Under federal law, a claim accrues when a plaintiff knows or has reason to 9 know of the injury that is the basis of the action and the cause of that injury.” Gregg, 870 10 F.3d at 885. 11 A. Claims Accruing Upon Plaintiff’s Arrest 12 Counts III, IV, and VI all turn on the alleged illegality of Plaintiff’s detention and 13 arrest, which occurred on February 21, 2017. (Doc. 1 ¶ 15, 45.) Plaintiff knew of this 14 injury as it happened—not only was he aware of being arrested, but the complaint indicates that he was keenly aware during the arrest sequence of the alleged infringement of his 15 constitutional right to record the public view from public sidewalks. (Id. ¶ 40.) Thus, the 16 ordinary operation of the statute of limitations would bar Counts III, IV, and VI as of 17 February 20, 2019, two years after the arrest occurred.1 Plaintiff did not file suit by that 18 date—the complaint was not filed until April 3, 2019. 19 Plaintiff argues that Heck v. Humphrey, 512 U.S. 477 (1994), delays the accrual of 20 these claims. (Doc. 22 at 4-13.) Heck holds that “in order to recover damages for allegedly 21 unconstitutional conviction or imprisonment, or for other harm caused by actions whose 22 unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 23 that the conviction or sentence has been . . . invalidated.” 512 U.S. at 486-87. Heck, in 24 other words, “delays what would otherwise be the accrual date of a tort action until the 25 26 1 The Glendale Defendants note that Plaintiff’s claims against them relating to his 27 arrest may have accrued as late as February 22, 2017, the date of his arraignment. (Doc. 25 at 4-5.) Plaintiff does not provide any argument on this point, which is immaterial given 28 that Plaintiff did not file suit until April 2019. 1 setting aside of an extant conviction which success in that tort action would impugn.” 2 Wallace v. Kato, 549 U.S. 384, 393 (2007). 3 Plaintiff argues that because the claims relating to his arrest are “inseparable” from 4 his malicious prosecution claim, which did not accrue until his charges were dismissed in 5 May 2018, “favorable adjudication of these claims prior to the dismissal of the criminal 6 charges would have implied that the criminal charges were invalid,” which implicates Heck 7 and delays accrual. (Doc. 22 at 11.) The Glendale Defendants respond that Heck applies 8 only when there’s an existing criminal conviction that a § 1983 action would impugn. 9 (Doc. 25 at 3.) 10 The Glendale Defendants have the better side of this argument. In Wallace, the 11 Supreme Court acknowledged that “§ 1983 actions . . . sometimes accrue before the setting 12 aside of—indeed, even before the existence of—the related criminal conviction” but 13 nevertheless declined to adopt a “federal tolling rule,” holding that “the statute of 14 limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time 15 the claimant becomes detained pursuant to legal process.” Id. at 394, 397. Thus, “Heck 16 applies only when there is an extant conviction and is not implicated merely by the 17 pendency of charges.” Bradford v. Scherschligt, 803 F.3d 382, 386 (9th Cir. 2015). 18 Because Heck did not bar Plaintiff from bringing suit, it did not delay the accrual of 19 Counts III, IV, and VI. The statute of limitations on those counts began to run on February 20 21, 2017 and expired on February 21, 2019, more than a month before Plaintiff filed suit. 21 Accordingly, Counts III, IV, and VI against the Glendale Defendants will be dismissed.2 22 … 23 … 24 … 25 26 2 Although the parties dispute whether, as a legal matter, the presence of probable 27 cause would necessarily preclude Plaintiff from asserting a claim for retaliatory arrest (compare Doc. 22 at 7-9 with Doc. 25 at 11), there is no need to reach that issue in light of 28 the determination that Count III is time-barred. 1 B. “Supervisory Individual Liability” 2 The Glendale Defendants also seek to dismiss Count VII, Plaintiff’s “supervisory 3 individual liability” claim against Supervisor Doe, based on the statute of limitations. 4 (Doc. 18 at 7.) 5 This request will be denied. The motion to dismiss does not identify Supervisor 6 Doe as a moving party and the record does not reflect that Supervisor Doe has been served. 7 Additionally, Supervisor Doe is named as a defendant in several other counts, so the 8 dismissal of Count VII would not eliminate Supervisor Doe as a defendant from the case. 9 C. Conspiracy 10 The Glendale Defendants argue that because all of the events underlying Count VIII, 11 the conspiracy claim, “indisputably occurred on February 21, 2017,” Count VIII is time- 12 barred for the same reasons as Counts III, IV, and VI. (Doc. 18 at 7-8.) Plaintiff responds 13 that some of the overt acts in furtherance of the alleged conspiracy occurred after the arrest. 14 (Doc. 22 at 13-15.) “Conspiracy is not itself a constitutional tort under § 1983. . . . [T]here must always 15 be an underlying constitutional violation.” Lacey v. Maricopa Cty., 693 F.3d 896, 935 (9th 16 Cir. 2012). “To prove a civil conspiracy, the plaintiff must show that the conspiring parties 17 reached a unity of purpose or a common design and understanding, or a meeting of the 18 minds in an unlawful arrangement.” Gilbrook v. City of Westminster, 177 F.3d 839, 856 19 (9th Cir. 1999) (quotation omitted). “To be actionable, the conspiracy must result in overt 20 acts, done in furtherance of the conspiracy, that are both the cause in fact and proximate 21 cause of plaintiffs’ injuries.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 22 1990). “The Ninth Circuit determines the accrual of civil conspiracies for limitations 23 purposes in accordance with the last overt act doctrine.” Gibson v. United States, 781 F.2d 24 1334, 1340 (9th Cir. 1986). “Under the last overt act doctrine, the injury and damage in a 25 civil conspiracy action flows from the overt acts, not from the mere continuance of a 26 conspiracy, and the cause of action runs separately from each overt act that is alleged to 27 cause damage to the plaintiff.” Dowling v. Arpaio, 2011 WL 843942, *7 (D. Ariz. 2011). 28 1 Here, it’s not clear from the face of the complaint that all of the alleged overt acts 2 occurred on February 21, 2017. The complaint includes an allegation that the Glendale 3 Defendants and the Air Force Defendants “[c]onspired to submit unsubstantiated and false 4 statements to supervisory individuals to support the unlawful arrest, detention and criminal 5 charges.” (Doc. 1 ¶ 131(c).) To be sure, this allegation is conclusory and devoid of any 6 dates or specifics—although Plaintiff asserts in his response that paragraph 131(c) refers 7 to the Glendale Defendants’ “communications . . . [with] the prosecutor on the case” that 8 were intended “to support the . . . criminal charges lodged on Plaintiff” (Doc. 22 at 13-14), 9 those details do not appear in the complaint itself. Nevertheless, the Glendale Defendants 10 haven’t moved to dismiss Count VIII due to a lack of particularity—they’ve moved to 11 dismiss it on statute-of-limitations grounds. Drawing all reasonable inferences in 12 Plaintiff’s favor, it’s possible the complaint alleges overt acts that occurred after the arrest 13 and less than two years before the complaint was filed. Accordingly, the Glendale 14 Defendants’ motion to dismiss Count VIII as time-barred will be denied. Von Saher, 592 F.3d at 969 (a complaint may be dismissed as time-barred “only when the running of the 15 statute is apparent on the face of the complaint”). 16 II. Failure To State A Claim 17 The Glendale Defendants move to dismiss Count V, the malicious prosecution 18 claim, for a variety of reasons. “[T]o survive a motion to dismiss, a party must allege 19 ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 20 face.’” In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting 21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the 22 plaintiff pleads factual content that allows the court to draw the reasonable inference that 23 the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). 24 “[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and 25 are construed in the light most favorable to the non-moving party.” Id. at 1144-45 (citation 26 omitted). However, the court need not accept legal conclusions couched as factual 27 allegations. Iqbal, 556 U.S. at 679-80. The court also may dismiss due to “a lack of a 28 1 cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) 2 (citation omitted). 3 “Malicious prosecution, by itself, does not constitute a due process violation.” 4 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). Thus, “[i]n order to 5 prevail on a § 1983 claim of malicious prosecution, a plaintiff ‘must show that the 6 defendants prosecuted [him] with malice and without probable cause, and that they did so 7 for the purpose of denying [him] equal protection or another specific constitutional right.’” 8 Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (citation omitted). 9 “Malicious prosecution actions are not limited to suits against prosecutors but may be 10 brought . . . against other persons who have wrongfully caused the charges to be filed.” Id. 11 Count V alleges that Officer Fernandez (but not Officer Vasquez, as the Glendale 12 Defendants’ briefing appears to assume) wrongfully caused charges to be filed against 13 Plaintiff in “an attempt to justify the initial detention, which was carried out solely because 14 Plaintiff was filming on the public sidewalk and because he exercised his right to remain silent while unlawfully detained.” (Doc. 1 ¶¶ 98-99, 105-06.) The Glendale Defendants 15 seek dismissal of Count V on the grounds that (1) probable cause existed for the arrest, (2) 16 there are no plausible allegations of malice, and (3) in the alternative, the claim is barred 17 by qualified immunity. (Doc. 18 at 8-13.) 18 A. Probable Cause 19 “Probable cause exists when, ‘under the totality of the circumstances known to the 20 arresting officers, a prudent person would have concluded that there was a fair probability’ 21 that a crime was committed.” Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994) 22 (citation omitted). “Probable cause is not a high bar.” District of Columbia v. Wesby, 138 23 S.Ct. 577, 586 (2018) (citation and internal quotation marks omitted). “Because probable 24 cause deals with probabilities and depends on the totality of the circumstances, it is a fluid 25 concept that is not readily, or even usefully, reduced to a neat set of legal rules. It requires 26 only a probability or substantial chance of criminal activity, not an actual showing of such 27 activity.” Id. (citations and internal quotation marks omitted). 28 1 The Glendale Defendants identify two reasons why they had probable cause to arrest 2 Plaintiff. First, they contend there was probable cause to arrest Plaintiff for committing 3 the crime of trespassing in the third degree, in violation of A.R.S. § 13-1502(A)(1), because 4 one of the Air Force Defendants told Officer Vasquez, who didn’t arrive upon the scene 5 until Plaintiff had already been handcuffed and detained, that Plaintiff had been trespassing 6 on “the installation” (i.e., Luke Air Force Base) and had refused to leave. (Doc. 18 at 8- 7 12.) The Glendale Defendants contend they were entitled to rely on this statement, 8 irrespective of whether it was actually true, pursuant to the “collective knowledge 9 doctrine.” (Id.) Plaintiff responds that the Glendale Defendants’ reliance on the statement 10 is misplaced because they subsequently conducted their own investigation, which raised 11 questions about “whether Plaintiff did in fact set foot on Military Property” and 12 “significantly diminished any ‘arguable probable cause’ [they] may have once had.” (Doc. 13 22 at 7-9, 18-19.) Among other things, Plaintiff notes that, during the Glendale 14 Defendants’ investigation, he explained that he had been standing on a public sidewalk, Officer Vasquez admitted not knowing “whether you committed a crime or not,” and 15 Officer Vasquez also declined to “say[] it is illegal or not.” (Id., citing Doc. 1 ¶¶ 36, 40, 16 41.) 17 The Glendale Defendants’ reliance on the “collective knowledge doctrine” is 18 misplaced. As the Ninth Circuit has explained, this doctrine applies “in at least two 19 situations.” United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007). The first is 20 “where law enforcement agents are working together in an investigation but have not 21 explicitly communicated the facts each has independently learned.” Id. In that scenario, 22 although “no single law enforcement officer knows all of the facts necessary to establish 23 reasonable suspicion or probable cause,” courts “have been willing to aggregate the facts 24 known to each of the officers involved at least [w]hen there has been communication 25 among agents.” Id. (quotation omitted). Second, the collective knowledge doctrine also 26 applies “where an officer (or team of officers), with direct personal knowledge of all the 27 facts necessary to give rise to reasonable suspicion or probable cause, directs or requests 28 1 that another officer, not previously involved in the investigation, conduct a stop, search, or 2 arrest.” Id. at 1033. 3 The Glendale Defendants contend that “[t]his case is an example of the second 4 situation—where an officer with direct personal knowledge of the facts supporting 5 probable cause . . . communicates that information to a second officer . . . who acts upon 6 it.” (Doc. 18 at 10.) The problem is that the complaint alleges that the Air Force 7 Defendant’s statement to Officer Vasquez regarding the existence of probable cause was 8 untrue (and that the Air Force Defendant knew it was untrue). (Doc. 1 ¶¶ 24, 30-31.) The 9 collective knowledge doctrine doesn’t apply in this scenario—probable cause doesn’t 10 somehow emerge when a law enforcement officer with knowledge of the relevant facts, 11 who is aware of the absence of probable cause, falsely assures a fellow officer that probable 12 cause exists and induces the fellow officer to make an arrest based on that misstatement. 13 Cf. United States v. Hensley, 469 U.S. 221, 231 (1985) (“[The legality of] an arrest in 14 reliance merely on a flyer or bulletin . . . turns on whether the officers who issued the flyer possessed probable cause to make the arrest. It does not turn on whether those relying on 15 the flyer were themselves aware of the specific facts which led their colleagues to seek 16 their assistance.”) (emphasis added). Although the unknowledgable arresting officer may 17 still have an array of other defenses available to him in an ensuing §1983 action for 18 malicious prosecution, the existence of probable cause isn’t one of them. 19 Alternatively, the Glendale Defendants argue that because Plaintiff “acknowledges 20 that he refused to identify himself after being detained,” they had “probable cause to arrest 21 under A.R.S. § 13-2412(A).” (Doc. 18 at 11.) This argument also lacks merit, at least on 22 the present record. 23 Under A.R.S. § 13-2412(A), “[i]t is unlawful for a person, after being advised that 24 the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full 25 name on request of a peace officer who has lawfully detained the person based on 26 reasonable suspicion that the person has committed, is committing or is about to commit a 27 crime.” Here, although the complaint acknowledges that “Plaintiff invoked his right to 28 remain silent when he was asked for his identification” by the Air Force Defendants (Doc. 1 1 ¶ 25), the complaint is silent as to whether the Air Force Defendants advised him that his 2 refusal to identify himself was unlawful. Under § 13-2412(A), such an advisement is a 3 prerequisite to criminal liability. Mena v. Massie, 2019 WL 132355, *3 (D. Ariz. 2019) 4 (“[The officer] did not warn her that failure to give her full true name would result in her 5 arrest. He had neither a reasonable suspicion nor probable cause to believe she was 6 violating A.R.S. § 13-2412(A).”). Additionally, the statute requires that the advisement be 7 made by a “peace officer,” and the Glendale Defendants have not briefed whether a staff 8 sergeant employed by the United States Air Force (Doc. 1 ¶¶ 6-7) qualifies as a “peace 9 officer” under Arizona law. See generally A.R.S. § 13-105(29) (“‘Peace officer’ means 10 any person vested by law with a duty to maintain public order and make arrests and includes 11 a constable.”); State v. Kaiser, 65 P.3d 463, 467 (Ariz. Ct. App. 2003) (“[T]he Arizona 12 legislature has defined a ‘peace officer’ to be ‘any person vested by law with a duty to 13 maintain public order and make arrests,’ and this duty can only be accomplished through 14 the lawful enforcement of state and local laws.”) (citation omitted). Thus, although the Glendale Defendants may be able to establish, at a future stage of this case, that there was 15 probable cause to arrest Plaintiff for violating A.R.S. § 13-2412(A), they are not entitled 16 to dismissal of Count V on that basis at this stage. 17 B. Malice 18 The Glendale Defendants next argue that Count V must be dismissed because “there 19 are no plausible factual allegations that [they] acted with ‘malice’ . . . . For instance, there 20 are no factual allegations that [they] knew Plaintiff personally or had any prior dealings 21 with him, or that they had any motive other than to carry out their lawful duties.” (Doc. 18 22 at 11.) In response, Plaintiff argues that malice exists when a proceeding is instituted for 23 an improper purpose, paragraph 41 of the complaint alleges that Officer Vasquez stated 24 “I’m not saying it’s illegal or not, I’m saying why would you want to do that?” in regard 25 to Plaintiff’s videotaping activity, and a reasonable juror could infer from this statement 26 that the Glendale Defendants arrested him on charges they knew were baseless in an 27 attempt to retaliate against him for exercising his First Amendment rights. (Doc. 22 at 16- 28 17.) In reply, the Glendale Defendants argue that, “[a]t most,” paragraph 41 “could be 1 construed as Officer Vasquez’s attempt at understanding what Plaintiff was trying to 2 accomplish by videotaping outside the base, and perhaps to understand his motive for 3 refusing to leave when he was asked to do so. It certainly does not establish ‘hatred’ or ‘ill 4 will.’” (Doc. 25 at 7-8.) 5 The Glendale Defendants are not entitled to dismissal of Count V based on the 6 absence of plausible allegations of malice. Although the Glendale Defendants have 7 explained why Officer Vasquez’s statement could be interpreted in a benign light, “[a]t the 8 motion-to-dismiss stage, we take all well-pleaded factual allegations in the complaint as 9 true, construing them in the light most favorable to the nonmoving party, and then 10 determine whether they plausibly give rise to an entitlement to relief.” Keates v. Koile, 11 883 F.3d 1228, 1234 (9th Cir. 2018) (quotations omitted). When Officer Vasquez’s 12 statement is construed in the light most favorable to Plaintiff, it creates a plausible inference 13 that it was an expression of antipathy toward Plaintiff based on his videotaping activity. 14 Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”) 15 (citation omitted). 16 C. Qualified Immunity 17 Finally, the Glendale Defendants argue they are entitled to qualified immunity 18 because they “were entitled to believe that [the Air Force Defendants] were making truthful 19 statements,” it “was objectively reasonable . . . to assume that [the Air Force Defendants] 20 knew where the property lines of the base were,” and they “reasonably and appropriately 21 based their probable-cause determination on these statements.” (Doc. 18 at 11-13.) In 22 response, Plaintiff argues that the Glendale Defendants aren’t entitled to qualified 23 immunity because (1) “an officer cannot claim mistake of law when he simply does not 24 know what the law is, i.e., where public property is in order to arrest someone for trespass,” 25 and (2) the complaint alleges that the Glendale Defendants conducted their own 26 investigation after speaking with the Air Force Defendants that “significantly diminished 27 any ‘arguable probable cause’ [they] may have had. Once they chose to investigate further, 28 1 they were the required to consider the information that negated the ‘arguable probable 2 cause.’” (Doc. 22 at 17-19.) 3 1. Background 4 Qualified immunity shields federal and state officials from money damages unless 5 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional 6 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” 7 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A government official’s conduct violates 8 “clearly established” law when “‘the contours of a right are sufficiently clear’ that every 9 ‘reasonable official would have understood that what he is doing violates that right.’” Id. 10 at 741 (citation omitted). Although there need not be a “case directly on point,” “existing 11 precedent must have placed the statutory or constitutional question beyond debate.” Id. In 12 other words, the case law must “have been earlier developed in such a concrete and 13 factually defined context to make it obvious to all reasonable government actors, in the 14 defendant’s place, that what he is doing violates federal law.” Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017). See also Kisela v. Hughes, 138 S. Ct. 1148, 15 1152 (2018) (“This Court has repeatedly told courts—and the Ninth Circuit in particular— 16 not to define clearly established law at a high level of generality.”) (quotation omitted). 17 Ninth Circuit law is not a model of clarity concerning which party has the burden 18 of proof when the defense of qualified immunity has been raised. On the one hand, many 19 Ninth Circuit opinions hold that “[o]nce the defense of qualified immunity is raised by the 20 defendant, the plaintiff bears the burden of showing that the rights allegedly violated were 21 ‘clearly established.’” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). See also 22 Shafer, 868 F.3d at 1118 (“Shafer argues that it is Deputy Padilla’s burden to demonstrate 23 that he did not violate Shafer’s clearly established constitutional right. Again, we 24 disagree.”). On the other hand, other Ninth Circuit opinions hold that “[q]ualified 25 immunity is an affirmative defense that the government has the burden of pleading and 26 proving.” Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017). These opinions are 27 difficult to reconcile. See generally Slater v. Deasey, 943 F.3d 898, 909 (9th Cir. 2019) 28 (Collins, J., dissenting from denial of rehearing en banc) (“The panel committed . . . error 1 in suggesting that Defendants bear the burden of proof on the disputed qualified-immunity 2 issues presented in this appeal. . . . [T]he applicable—and well-settled—rule is that ‘[t]he 3 plaintiff bears the burden of proof that the right allegedly violated was clearly established 4 at the time of the alleged misconduct.’”) (citation and emphases omitted). 5 Finally, although it “is often beneficial” to begin the qualified-immunity analysis by 6 addressing whether a statutory or constitutional right has been violated, district courts are 7 vested with discretion to determine “which of the two prongs of the qualified immunity 8 analysis should be addressed first in light of the circumstances in the particular case at 9 hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). 10 2. Application 11 The Glendale Defendants are not entitled to dismissal based on qualified immunity 12 at this early juncture of the case. The complaint, when construed in the light most favorable 13 to Plaintiff, alleges that Plaintiff committed no crime and remained on public property at 14 all times (Doc. 1 ¶¶ 15-21, 24) and that, although the Glendale Defendants may have initially believed (based on the statement by the Air Force Defendants) that Plaintiff had 15 engaged in trespassing (id. ¶ 30), they ultimately determined through their own 16 investigation that they couldn’t prove Plaintiff had trespassed (id. ¶¶ 36, 39, 41) yet arrested 17 him despite that absence of proof. In other words, the complaint can be construed as 18 alleging that the Glendale Defendants proceeded with the arrest despite subjective 19 awareness that probable cause had dissipated. At the time of this incident (February 2017), 20 the law was well established in the Ninth Circuit that such conduct was unconstitutional. 21 See, e.g., United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (per curiam) 22 (“If probable cause is established at any early stage of the investigation, it may be dissipated 23 if the investigating officer later learns additional information that decreases the likelihood 24 that the defendant has engaged, or is engaging, in criminal activity. A person may not be 25 arrested . . . if previously established probable cause has dissipated.”). 26 This conclusion, to be clear, is subject to reconsideration at later stages of the case. 27 For example, it’s possible that the evidence developed during discovery will show that the 28 Glendale Defendants had a reasonably arguable basis for believing, even after their 1 investigation, that there was probable cause to arrest Plaintiff for trespassing (A.R.S. § 13- 2 1502(A)(1)) and/or for refusing to provide his name after advisement by a peace officer 3 (A.R.S. § 13-2412(A)). In that scenario, the Glendale Defendants would be entitled to 4 qualified immunity. Reed v. Lieurance, 863 F.3d 1196, 1204-05 (9th Cir. 2017) (“[I]f an 5 officer makes an arrest without probable cause, he or she may be entitled to qualified 6 immunity as long as it is reasonably arguable that there was probable cause for the arrest.”). 7 Nevertheless, at the motion-to-dismiss stage, the complaint must be construed in the light 8 most favorable to the plaintiff, and here the complaint can be construed as alleging that the 9 Glendale Defendants arrested Plaintiff despite the absence of even a reasonable argument 10 concerning the existence of probable cause. Cf. Keates, 883 F.3d at 1234-35 (noting that 11 “[d]etermining claims of qualified immunity at the motion-to-dismiss stage raises special 12 problems for legal decision making” and that “[i]f the operative complaint contains even 13 one allegation of a harmful act that would constitute a violation of a clearly established 14 constitutional right, then plaintiffs are entitled to go forward with their claims” despite an invocation of qualified immunity) (citation and internal quotation marks omitted). 15 III. Leave To Amend 16 Although Plaintiff has not requested leave to amend, “the absence of a formal 17 motion for leave to amend does not preclude the district court from granting it.” United 18 States v. $11,500.00 in U.S. Currency, 710 F.3d 1006, 1013 (9th Cir. 2013). See also Doe 19 v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“In dismissing for failure to state a 20 claim, a district court should grant leave to amend even if no request to amend the pleading 21 was made, unless it determines that the pleading could not possibly be cured by the 22 allegation of other facts.”) (quotation omitted). 23 Here, the Court declines to grant leave to amend as to Counts III, IV, and VI because 24 amendment would be futile—those claims fail due to the operation of the statute of 25 limitations, not due to a failure to allege facts with sufficient particularity. 26 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006) (although 27 leave to amend should be freely granted, “a district court need not grant leave to amend 28 where the amendment . . . is futile”). 1 Accordingly, IT IS ORDERED that: 2 (1) The Glendale Defendants’ motion to dismiss (Doc. 18) is granted in part and denied in part. 4 (2) Counts III, IV, and VI against the Glendale Defendants are dismissed with 5 || prejudice. 6 Dated this 3rd day of June, 2020. 7 8 py 7 9 f t _——— Dominic W. Lanza 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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