Connelly v. Phoenix Police Department et al

Filing 55

ORDER GRANTING Defendants' motion for summary judgment (doc. 41 ). The clerk shall enter final judgment. Signed by Senior Judge Frederick J Martone on 3/11/2015.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sean Danahy Connelly,
Plaintiff,

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vs.

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Brent Freyberger; Matthew Cormier;
Officer Delameter,
Defendants.

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No. CV-12-2283-PHX-FJM
ORDER

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Plaintiff is a prisoner in the custody of the Arizona State Prison Complex-Yuma. He
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bought this civil rights action under 42 U.S.C. § 1983, claiming that Phoenix Police Officers
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Freyberger, Cormier, and Delameter used excessive force in violation of his Fourth
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Amendment rights when they arrested him.
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Before the court is Defendants’ motion for summary judgment (doc. 41), Defendants’
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separate statement of facts (doc. 42), Plaintiff’s response (doc. 50), and Defendants’ reply
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(doc. 51).
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I. Background
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A. Defendants’ Facts
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At approximately 2:00 a.m. on October 19, 2011, Officers Freyberger and Cormier
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were on patrol in a fully marked City of Phoenix Police vehicle in the vicinity of 32nd Street
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and Thomas Road in Phoenix. The officers saw Plaintiff driving eastbound in a white Dodge

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Avenger. They ran a computerized license plate check on the car and discovered that the

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plate was registered to a Ford. DSOF ¶ 5. Officers Freyberger and Cormier decided to

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conduct a traffic stop to investigate the discrepancy.

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When the officers got behind Plaintiff’s vehicle, Plaintiff increased his speed and fled.

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He drove through a residential neighborhood at twice the legal speed limit, making many

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quick turns in an effort to elude the officers. DSOF ¶ 8. Plaintiff ran a red light and was

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weaving in and out of traffic lanes. DSOF ¶ 9. At this point the Officers had no information

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as to whether Plaintiff was armed.

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Officers Freyberger and Cormier were soon joined in the chase by another patrol car

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driven by defendant Officer Delameter. The officers had their flashing lights and sirens

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engaged as they pursued Plaintiff, but he refused to stop. DSOF ¶ 11. A Phoenix Police

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helicopter soon joined in the chase and observed Plaintiff pull into an apartment complex and

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quickly run from his vehicle toward the apartment building. Using the helicopter’s public

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address system, the air crew commanded Plaintiff to reveal himself and give up. He refused

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to comply.

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By this time the officers on the ground, including the Defendants, arrived at the

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apartment complex and saw Plaintiff hiding behind a pillar. The officers repeatedly ordered

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Plaintiff to reveal himself and get down on the ground. When he did not comply, Officers

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Hernandez, Peelman, Freyberger and Daley rushed Plaintiff as he remained crouched behind

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the pillar, ordered him to show his hands, and eventually got him on the ground lying face

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down on his stomach with his arms underneath him. DSOF ¶ 15.

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Plaintiff struggled with the officers when they tried to pull his arms out from

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underneath him. After approximately 45 seconds of struggling, the officers were able to get

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Plaintiff’s hands out from underneath him and behind his back for handcuffing. DSOF ¶ 17.

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Ultimately, Plaintiff pled guilty to unlawful flight from law enforcement, possession

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of a dangerous drug and drug paraphernalia and was sentenced to prison, where he is

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currently serving his sentence.
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An investigation conducted by the Phoenix Police Department subsequently

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concluded that the officers did not use excessive force and acted reasonably under the

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circumstances. DSOF ¶ 19, Ex. 2.
B. Plaintiff’s Facts

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Plaintiff’s version of the facts, which we assume as true for purposes of the current

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motion, differs only slightly from Defendants’ version. Plaintiff acknowledges that he was

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involved in a “short low-speed pursuit with the officers.” Compl. at 3A. He also

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acknowledges that once at the apartment complex he “bailed out of the car and hid from [the]

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officers.” Id. He then asserts that “once detected” he was ordered at gunpoint to lay face

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down on the ground (which was covered with small rocks) with his arms out to his sides. He

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contends he complied with this order. He then claims that when other officers arrived at the

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scene, “many jumped on top of me instead of simply handcuffing me,” and “[o]ne of the

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named defendants immediately began smashing my face in the small rocks I was face down

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on.” Id. He also claims another “named defendant” began twisting his right arm and another

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his left ankle. Id.

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Although Plaintiff asserts that he did not resist arrest, he also acknowledges that “I

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attempted to get my arms from the officers to cover my face to prevent further damage.” Id.

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Moreover, although he alleges that a “named defendant” participated in the arrest, he also

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admits that “[d]ue to the fact that I was face down during the assault it is unknown which

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defendant caused which specific injury,” but “[w]hen I was lifted off the ground, all three

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named defendants were holding me as I made a mental note of their names.” Id. at 3B-3C.

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Plaintiff claims he suffered a sprained ankle, a chipped bone in his right elbow,

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contusions on his head, lost teeth, and “permanent bruising” of his ribs.” Id. at 3B.
II. Summary Judgment Standard

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On a motion for summary judgment, the moving party has the burden of showing the

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absence of any genuine issue of material fact. If the moving party makes this initial showing,

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the burden shifts to the opposing party to demonstrate the existence of a genuine issue of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553 (1986).
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The nonmoving party must “designate specific facts showing that there is a genuine issue for

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trial.” Id. Summary judgment is appropriate if, taking the evidence and all reasonable

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inferences drawn therefrom, in the light most favorable to the non-moving party, there are

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no genuine issues of material fact and the moving party is entitled to judgment as a matter

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of law. A genuine issue exists only if “the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248, 106 S. Ct. 2505, 2510 (1986). Conclusory allegations, unsupported by factual material,

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are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989).

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The court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962

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(9th Cir. 1998,) regarding his obligation to respond to Defendants’ motion for summary

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judgment. (Doc. 43). However, Plaintiff did not address any of the arguments raised in

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Defendants’ motion, nor did he file a separate or controverting statement of facts. A party’s

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failure to properly respond to a motion “may be deemed a consent to the . . . granting of the

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motion and the Court may dispose of the motion summarily.” LRCiv 7.2(i). Nevertheless,

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we will construe Plaintiff’s verified Complaint as an affidavit in opposition to the summary

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judgment motion. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified complaint

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may be used as an affidavit opposing summary judgment if it is based on personal knowledge

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and sets forth specific facts admissible in evidence).

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III. Excessive Force
The Fourth Amendment guarantees citizens the right “to be secure in their persons

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. . . against unreasonable . . . seizures.” The Fourth Amendment permits police officers to

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use only such force as is objectively reasonable under the circumstances. Graham v. Connor,

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490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989).

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In addressing a claim of excessive force, we must balance “the nature and quality of

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the intrusion on the individual’s Fourth Amendment interests against the countervailing

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governmental interests at stake.” Id. at 396, 109 S. Ct. at 1872. To assess the gravity of the

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government’s interests, we consider “the severity of the crime at issue, whether the suspect
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poses an immediate threat to the safety of the officers or others, and whether he is actively

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resisting arrest or attempting to evade arrest by flight.” Id.

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The reasonableness of the force used must be considered in light of the totality of the

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circumstances, and “must be judged from the perspective of a reasonable officer on the

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scene, rather than with the 20/20 vision of hindsight.” Id. “The calculus of reasonableness

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must embody allowance for the fact that police officers are often forced to make split-second

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judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the

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amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S. Ct. at 1872.

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These split-second judgments are sometimes informed by errors in perception of the actual

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surrounding facts. Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011). “Where

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an officer’s particular use of force is based on a mistake of fact, we ask whether a reasonable

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officer would have or should have accurately perceived that fact.” Id.

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Here, Plaintiff contends that his Fourth Amendment rights were violated when

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defendants Cormier, Delameter and Freyberger used excessive force when they jumped on

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him, held him down on a gravel surface, and pried his arms out from underneath him in order

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to place him in handcuffs.

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First, viewing the evidence in the light most favorable to Plaintiff, it is clear that

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Officers Cormier and Delameter were not involved in the physical arrest of Plaintiff, and

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therefore did not violate his constitutional rights. Plaintiff acknowledges that he does not

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know which officers actually used force against him. Compl. at 3B-3C. However, according

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to Phoenix Police Department’s Use of Force Report, it was Officers Hernandez, Peelman,

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Freyberger and Daley who rushed Plaintiff, forced him to the ground, and eventually placed

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him in handcuffs. DSOF, Ex. 2. Of these officers, only Officer Freyberger is a defendant

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in this case. Although it is clear that Defendants Cormier and Delameter were also on the

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scene, the undisputed evidence shows that they were not involved in subduing Plaintiff.

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Cormier and Delameter’s motion for summary judgment is granted on this basis.

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But even with respect to those officers who did use force to handcuff Plaintiff,

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including Defendant Freyberger, we conclude that, viewing the evidence in the light most
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favorable to Plaintiff, the force used by these officers was reasonably necessary under the

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circumstances.

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First, the amount of force used is supported by the severity of the crime for which

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Plaintiff was apprehended. When Plaintiff realized that police officers were attempting an

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investigatory stop, he fled. Traveling through residential neighborhoods at twice the legal

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speed limit, moving in and out of traffic lanes, running a red light, and eventually abandoning

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his car and hiding from the officers created a serious risk for both officers and bystanders.

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Throughout the chase and eventual apprehension, it was unknown whether Plaintiff was

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armed. The officers considered the situation so dangerous as to require back-up patrol units

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and helicopter assistance. The significant threat faced by the officers supports the force used

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to apprehend Plaintiff.

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Moreover, although Plaintiff contends that he complied with the officers’ order to lay

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face down on the ground with his arms out to his side, he also acknowledges that he

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struggled to “get [his] arms from the officers to cover [his] face to prevent further damage.”

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Compl. at 3A. Even accepting Plaintiff’s allegation as true, his admitted resistance to the

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officers’ efforts to handcuff him could easily have been perceived by reasonable officers on

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the scene as Plaintiff actively resisting arrest, thereby warranting the use of additional force

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to subdue and handcuff him.

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In light of the totality of the circumstances–the high speed chase in the middle of the

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night by multiple police cars and a police helicopter, Plaintiff fleeing on foot and hiding from

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officers, his repeated refusal to give himself up, the unknown issue of whether Plaintiff was

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armed, and ultimately the struggle on the ground (even if mistakenly perceived as resisting

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arrest), we conclude that the officers used a reasonable amount of force in the course of

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Plaintiff’s arrest. Accordingly, we conclude that Plaintiff’s Fourth Amendment rights were

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not violated.

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IV. Qualified Immunity

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“The doctrine of qualified immunity protects government officials ‘from liability for

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civil damages insofar as their conduct does not violate clearly established statutory or
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constitutional rights of which a reasonable person would have known.” Stanton v. Sims, 134

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S. Ct. 3, 4-5 (2013). “Qualified immunity gives government officials breathing room to

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make reasonable but mistaken judgments,” and “protects all but the plainly incompetent or

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those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011).

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Because qualified immunity is “an immunity from suit rather than a mere defense to liability

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. . . it is effectively lost if a case is erroneously permitted to go to trial.” Pearson v. Callahan,

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555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (citation omitted).

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An officer will be denied qualified immunity in a § 1983 action “only if (1) the facts

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alleged, taken in the light most favorable to the party asserting injury, show that the officer’s

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conduct violated a constitutional right, and (2) the right at issue was clearly established at the

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time of the incident such that a reasonable officer would have understood [his] conduct to

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be unlawful in that situation.” Torres, 648 F.3d at 1123; see also Green v. City & Cty. of San

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Francisco, 751 F.3d 1039, 1052-53 (9th Cir. 2014).

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Even if the Defendant Officers had used an unreasonable amount of force to subdue

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Plaintiff, we would nevertheless conclude that they are entitled to qualified immunity on

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Plaintiff’s excessive force claim. Where, as here, “an officer’s use of force was premised on

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a reasonable belief that such force was lawful, the officer will be granted immunity from suit,

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notwithstanding the fact excessive force was deployed.” Bryan v. MacPherson, 630 F.3d

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805, 832 (9th Cir. 2010). Given the specific facts at issue in this case, the Defendant Officers

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“could have reasonably believed at the time that the force actually used was lawful under the

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circumstances.” Torres, 648 F.3d at 1127.

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V. Conclusion
IT IS ORDERED GRANTING Defendants’ motion for summary judgment (doc.
41). The clerk shall enter final judgment.
DATED this 11th day of March, 2015.

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