Opinion
No. CIV 04-034 TUC DCB (GEE).
January 9, 2006
REPORT AND RECOMMENDATION
Pending before the court is a motion for summary judgment filed on September 20, 2005, by the defendant, City of Tucson. [#68] The plaintiff filed a timely response opposing the motion. The City filed a combined reply and supplemental brief, and the plaintiff filed a supplemental response.
Clerk's record number.
The plaintiff in this case, Allahyar Razaimalek, was detained by Tucson police officers when he went to the DM Federal Credit Union to cash a check. His complaint contains three counts: (1) False Arrest; (2) False Imprisonment; and (3) Civil Rights Violations. The case was originally filed in state court, but it was removed by the defendants on January 23, 2004. The defendant, DM Federal Credit Union, was dismissed from the case on May 11, 2005.
The City moves that this court grant summary judgment on all counts pursuant to FED.R.CIV.P. 56. The City argues it is entitled to summary judgment on count 3 because Razaimalek cannot prove the City has a policy, practice or custom that resulted in the violation of his civil rights. The City maintains it is entitled to summary judgment on counts 1 and 2 because it is entitled to qualified immunity and Razaimalek was lawfully detained.
The case was referred to Magistrate Judge Edmonds for all pretrial matters pursuant to Local Civil Rule 72.2. Rules of Practice of the U.S. District Court for the District of Arizona.
A hearing on the motion was held on January 4, 2006. The motion for summary judgment should be granted in part. Razaimalek cannot show the City has a policy, practice or custom that deprived him of his constitutional rights. Summary judgment should be granted to the City on count 3.
Factual and Procedural Background
The court adopts the plaintiff's version of events where there is a factual dispute.
On July 14, 2003, the plaintiff, Allahyar Razaimalek, went to the Wilmot branch of the DM Federal Credit Union to cash a check made out to him and drawn on a Credit Union account. (Plaintiff's response, Statement of Facts, ¶ 3.) Razaimalek is a native of Iran who moved to the United States in 1976. Id., ¶ 1. He is in the business of selling used cars. Id., ¶ 2.
Razaimalek explained to the teller that he sold a car to the maker of the check, Walsh Cade. Id., ¶ 5. The teller, however, became suspicious and refused to cash the check. Id., ¶ 7. Razaimalek telephoned Cade and offered to let the teller speak to Cade directly. Id., ¶ 8. The teller refused to talk to Cade and instead summoned the police reporting a check fraud in progress. Id., ¶ 9. Three Tucson police officers arrived at the credit union in response: Officers Spellman, Cross and Fox. Id., ¶ 10. Immediately upon their arrival, the officers seized Razaimalek, handcuffed him and placed him in a police car. Id., ¶¶ 11, 12, 16. They did not explain to Razaimalek why there were placing him in custody. Id., ¶ 11. Razaimalek was not uncooperative in any way. Id., ¶ 14. He was not acting violently, he did not struggle and did not attempt to flee. Id., ¶ 13. There was no indication that he was armed. Id., ¶ 15.
Sometime after Razaimalek was placed in the police car, Officer Spellman left to assist at an accident scene at a nearby intersection. Id., ¶ 16. At some point, a woman in the Credit Union began having a seizure. Id., ¶ 17. Officer Cross attempted to provide first aid to the woman. Id., ¶ 18. The woman may have been a friend of Razaimalek who had a seizure due to the stress of seeing him taken into custody. Id., ¶ 19, 20.
Razaimalek was detained for over 30 minutes. Id., ¶ 21. This detention was uncomfortable and potentially dangerous because the police car was not air-conditioned and was sitting under the sun in the middle of the day in July with the temperatures exceeding one hundred degrees. Id., ¶ 22. Cade arrived at the credit union and demanded Razaimalek be released and the check cashed. Id., ¶ 23. Razaimalek was then released. Id., ¶ 23.
On December 23, 2003, Razaimalek filed a complaint in Pima County Superior Court against the Credit Union and the City of Tucson. He claims the Tucson police officers illegally detained him and violated his civil rights. His complaint contains three counts: (1) False Arrest; (2) False Imprisonment; and (3) Civil Rights Violations. The complaint does not explicitly state under what legal theory the City is liable for the actions of its officers. The action was removed to federal court on January 23, 2004.
The Credit Union was dismissed from the case on May 11, 2005. It is immune from suit under the Annunzio Wylie Anti-Money Laundering Act which gives financial institutions safe harbor for reporting possible violations of the law. See 31 U.S.C. § 5318(g)(3).
On September 20, 2005, the City of Tucson filed the instant motion for summary judgment on all counts. The plaintiff filed a response. The court ordered the parties to file supplemental briefings on the following issues: (1) In count 3, why is the City liable for the civil rights violations allegedly committed by the Tucson police officers? and (2) Does the City's argument concerning qualified immunity apply to all three counts in the complaint? The City filed a reply brief which also addressed the court's supplemental issues. Razaimalek filed a response addressing the supplemental issues.
The City argues it is entitled to summary judgment on count 3 because Razaimalek cannot prove the City has a policy, practice or custom that resulted in the violation of his civil rights. The City maintains it is entitled to summary judgment on counts 1 and 2 because it is entitled to qualified immunity and Razaimalek was lawfully detained.
Standard of Review: Summary Judgment
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The initial burden rests on the moving party to point out the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party has the burden of proof at trial — "the plaintiff on a claim for relief or the defendant on an affirmative defense" — that party carries its initial burden by presenting evidence showing no reasonable trier of fact could find for the nonmoving party. Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991). If the moving party does not have the burden of proof, that party carries its initial burden either by presenting evidence negating an essential element of the nonmoving party's claim or demonstrating the nonmoving party cannot meet its burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nissan Fire Marine Insurance v. Fritz, 210 F.3d 1099 (9th Cir. 2000).
Once satisfied, the burden shifts to the opponent to demonstrate through production of probative evidence that an issue of fact remains to be tried. Celotex, 477 U.S. at 324. "[A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, . . . the adverse party's response must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Thomas v. Douglas, 877 F.2d 1428, 1430 (9th Cir. 1989).
When considering a motion for summary judgment, the court is not to make credibility determinations or weigh conflicting evidence. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). Instead, the court should draw all inferences in the light most favorable to the nonmoving party. Id. Discussion: Count 3, Civil Rights
Title 42, section 1983 of the U.S. Code, provides a remedy for constitutional deprivations committed under color of state law. The statute reads in pertinent part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
"[M]unicipalities are `persons' subject to damages liability under section 1983 where `action pursuant to official municipal policy of some nature causes a constitutional tort.'" Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992), cert. denied, 510 U.S. 932 (1993) (quoting Monell v. Department of Social Services, 436 U.S. 658, 691 (1978)). "[T]he municipality itself must cause the constitutional deprivation" Id. "[A] city may not be held vicariously liable under the theory of respondeat superior." Id.
"A section 1983 plaintiff may establish municipal liability in one of three ways." Id. "First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the `standard operating procedure' of the local governmental entity." Id. (internal punctuation omitted) "Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with `final policy-making authority' and that the challenged action itself thus constituted an act of official governmental policy." Id. "Whether a particular official has final policy-making authority is a question of state law." Id. "Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Id.
In this case, Razaimalek cannot show the City has a policy, practice or custom that deprived him of his constitutional rights. Assuming arguendo the officers violated his Fourth Amendment rights, Razaimalek cannot show this violation was caused by the City rather than by the officers themselves.
Razaimalek argues the officers detained him as a direct result of the instruction they received at the City's police academy. However, the deposition testimony offered by Razaimalek indicates the decision to detain him was a result of the officers' individual judgment rather than a blanket City policy.
Officer Cross stated at his deposition that he was trained to handle bank fraud calls at the police academy. (Plaintiff's supplemental response, Exhibit 1, pp. 7-8.) Also, he stated he has six years experience working in the field and with other officers. Id. He stated it is his practice to detain suspects in his car in bank fraud cases. Id., pp. 8-9. He did not, however, testify that his customary detention practice was taught to him at the police academy.
Officer Fox also indicated she received training at the police academy on how to handle bank fraud calls. (Plaintiff's supplemental response, Exhibit 2, p. 11.) She could not remember any specifics, however, when asked what instruction she was given concerning the decision to detain a suspect. Id. Razaimalek has provided no evidence that the City has a policy of unconstitutionally detaining bank fraud suspects.
Razaimalek further argues that if Cross and Fox routinely detain bank fraud suspects then the City necessarily has a custom or practice of permitting its officers to act unconstitutionally. If the practice of detaining all bank fraud suspects was "persistent and widespread" throughout the City's police force, the finder of fact could infer this practice was a "permanent and well settled" City policy. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), cert. denied, 520 U.S. 1117 (1997). The City would then be liable. Id. In this case, however, Razaimalek offers no evidence that the detention practices of Cross and Fox are persistent and widespread throughout the City's law enforcement community. See, e.g., Pinea v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003) (Eleven warrantless entries into residences did not create an issue of fact regarding the existence of a city custom.).
Razaimalek cannot show the City has a policy, practice or custom that deprived him of his constitutional rights. Summary judgment should be granted to the City on count 3.
Discussion: False Arrest, False Imprisonment
Counts 1 and 2 are the state law claims of false arrest and false imprisonment. The court assumes liability for the City is premised on the doctrine of respondeat superior.
The City argues it is entitled to qualified immunity citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Harlow, however, is a federal case that establishes a defense to a federal cause of action (an action pursuant to § 1983) as a matter of federal law. Counts 1 and 2 must be analyzed according to state law. Harlow, therefore, has no direct application. Of course, a state might decide to adopt the rule of Harlow and afford qualified immunity to law enforcement officers facing a state law claim. The City, however, has not directed the court to a case in support of this proposition, and the court has found none. See also Carroll v. Robinson, 178 Ariz. 453, 456 (App. 1994) ("The general rule of governmental immunity from tort liabilities was abandoned by the Arizona Supreme Court in 1963."). Accordingly, the court finds Harlow inapposite to the instant case. See, e.g., Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000), cert. denied, 531 U.S. 1077 (2001) (applying state immunity law to state claims and federal immunity law to federal claims); Thompson v. Spikes, 663 F.Supp. 627, 640 n. 6 (S.D.Ga. 1987); But compare Holey v. Hind, 189 Ga. App. 656, 657 (App. 1988) (applying federal immunity law to a state law claim); with Holey, 189 Ga. App. at 662 (Basle, J., dissenting) ("Federal cases construing and applying federal immunity may be instructive and persuasive, but they do not govern the issues here."); cf. McMath v. City of Gary, Ind., 976 F.2d 1026, 1036 (7th Cir. 1992) (raising "qualified immunity" defense does not preserve the issue of immunity pursuant to state statute).
Moreover, even assuming federal immunity law applies, the City has a second hurdle to overcome. Harlow establishes qualified immunity for law enforcement officers, not the municipal employer. The City does not explain why it is entitled to benefit from the qualified immunity enjoyed by its officers. It cites no cases for this proposition, and the court has found none. In fact, Owen v. City of Independence, Mo., 445 U.S. 622, 638 (1980) specifically holds a municipality may not assert the good faith of its officers or agents as a defense to liability. Federal law does not allow this type of derivative qualified immunity. The City is not entitled to qualified immunity on counts 1 and 2. The court now considers the substantive merits of the two state law claims.
The torts of false arrest and false imprisonment are defined as "the detention of a person without his consent and without lawful authority." Slade v. City of Phoenix, 112 Ariz. 298, 300 (1975). The City argues it is entitled to summary judgment because the detention of Razaimalek was a lawful investigative stop and reasonable under the circumstances. The City does not claim the officers had probable cause to arrest Razaimalek.
The Fourth Amendment allows the police to briefly detain a suspect for investigative purposes when they have reasonable suspicion to believe criminal activity "may be afoot." United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1 (1968). The detention, however, must be "reasonable under the circumstance." Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996). If the detention is unreasonable in manner or duration, it is an "arrest" which must be justified by probable cause. Id. The detention may be more intrusive without becoming an arrest if (1) the suspect is uncooperative or appears likely to flee; (2) the police believe the suspect may be armed; (3) a violent crime has just occurred or may be about to occur; or (4) the officer is alone or outnumbered. Washington, 98 F.3d at 1189-90.
In this case, Razaimalek was suspected of check fraud. He was cooperative, did not appear armed, did not appear likely to flee and was apparently alone. The police officers outnumbered him three to one. On these facts, the City argues it was reasonable as a matter of law to handcuff Razaimalek, remove him from the bank, and detain him for over 30 minutes in a police car which was not air-conditioned and sitting in the July sun in Tucson, Arizona on a day when the temperature was over 100 degrees. The court does not agree.
The use of handcuffs, detention in a police vehicle, and a detention of over 30 minutes in a hot vehicle are all aggravating factors which might elevate an investigatory stop into an arrest. Washington, 98 F.3d at 1188 ("[H]andcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop."); United States v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir. 1996) ("[D]etention in a patrol car exceeds permissible Terry limits absent some reasonable justification."); United States v. Chamberlin, 644 F.2d 1262, 1267 (9th Cir. 1980), cert. denied, 453 U.S. 914 (1981) (Detention for twenty minutes elevated an investigatory stop into a detention requiring probable cause.); Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002) ("[U]nnecessary detention in extreme temperatures, like those that could be reached in an unventilated car in ninety-degree heat, violates the Fourth Amendment's prohibitions on unreasonable searches and seizures."). The combination of all these factors might be reasonable but only if special circumstances were present. See, e.g., Haynie v. County of Los Angeles, 339 F.3d 1071, 1077 (9th Cir. 2003) (It was reasonable to handcuff van driver and place him in a patrol car for 16 to 20 minutes where the driver did not immediately yield to police siren and lights, the driver was uncooperative, the officer was outnumbered, and the officer received information that the occupants of the van were armed.). No aggravating circumstance, however, are apparent in the instant case.
The City attached to its reply brief affidavits from Officer Cross and Officer Fox. According to the officers, "[i]n fraud cases . . . there is usually an accomplice and/or . . . the suspects are drug addicts . . . and/or . . the suspects are usually unpredictable, volatile, and potentially violent and/or . . . the suspects usually try to flee and/or . . . the accomplice may attempt to create a diversion to enable the suspect to flee." (City's reply, Exhibits 2, 4.) These affidavits were obtained on November 2, 2005, after the plaintiff filed his response to the motion for summary judgment and well after the close of discovery date. The plaintiff has had no opportunity to either cross-examine the affiants on this issue or respond to the City's new evidence. The City has not shown good cause pursuant to FED.R.CIV.P. 16(b) for an extension of the discovery deadline. Accordingly, the affidavits will not be considered by the court.
The City has directed the court to cases in which intrusive detention procedures were allowed, but in those cases aggravating circumstances were present. See Haynie, 339 F.3d at 1077; United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982) (Handcuffing suspects did not elevate detention into an arrest where single officer was left in charge of two men suspected of armed bank robbery, one suspect looked nervous and likely to flee, and third robber might still have been in the vicinity.); United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988) (Placing driver of stopped vehicle into patrol car did not constitute an arrest where the officer suspected the driver had a suspended license and the driver and passenger bent down toward the floorboard and made furtive movements when the vehicle was stopped.). In the instant case, those aggravating circumstance are largely absent. There is no indication that Razaimalek was armed. He was not uncooperative, and did not attempt to flee. (Presumably, if he were likely to flee, he could have done so when the cashier refused to cash the check.) The City has not directed the court to any cases which allowed the type of intrusive detention employed here in similar circumstances. Razaimalek's detention was not reasonable as a matter of law. Accordingly, the City's motion for summary judgment on counts 1 and 2 should be denied.
The City argues detaining Razaimalek was reasonable because one officer was called away and another was needed to administer first aid so only one officer was available to investigate the alleged fraud. The scope of the detention, however, must be justified "at its inception," not in retrospect. Terry v. Ohio, 391 U.S. 1, 20 (1968); United States v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir. 1996). When Razaimalek was detained, there were three officers at the scene, not one.
Note: Subject Matter Jurisdiction
This court has original jurisdiction over the section 1983 claim pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over the state law claims because they arise from the same case and controversy pursuant to 28 U.S.C. § 1367. If the section 1983 claim is dismissed pursuant to the defendant's motion for summary judgment, the court may decline to exercise jurisdiction over the remaining claims after properly considering the competing virtues of economy, convenience, fairness and comity. 28 U.S.C. § 1367(c)(3); Acri v. Varian Associates, 114 F.3d 999, 1001 (9th Cir. 1997) (en banc). Ordinarily, the balance of factors points to remand. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988).
In this case, counts 1 and 2 touch on the issue of immunity from liability for law enforcement officers and their municipal employer. This area of the law is not well developed in the state's case law. In the interest of comity, the district court could remand these counts to the state court.
Recommendation
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order
GRANTING IN PART the motion for summary judgment filed on September 20, 2005, by the defendant, City of Tucson. [#68] The civil rights claim should be dismissed. The state law claims should proceed to trial.
Pursuant to 28 U.S.C. § 636 (b), any party may serve and file written objections within 10 days of being served with a copy of this report and recommendation. If objections are not timely filed, the party's right to de novo review may be waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should direct them to the district court by using the following case number: CIV 04-034-TUC-DCB. If the parties wish to address the issue of supplemental jurisdiction, they may do so in their briefs to the district court.
The Clerk is directed to send a copy of this report and recommendation to all parties.