Escobar v. Storer et al

Filing 29

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED: Defendant's Motion for Summary Judgment 17 is GRANTED IN PART AND DENIED IN PART. The Court will conduct a telephonic scheduling conference with the parties for the purpose of setting pretrial deadlines and a trial date in this matter. A separate notice of hearing is forthcoming. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANTONIO ESCOBAR,
Case No. 4:13-cv-00338-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
BRANDON STORER; and DOES 1
through 10, Inclusive,
Defendants.

In this civil rights action filed under 42 U.S.C. § 1983, Plaintiff Antonio Escobar
alleges that Defendant Brandon Storer, a police officer with the Idaho Falls Police
Department, violated Escobar’s rights under the Fourth Amendment. In particular,
Escobar claims he was compliant with all of Officer Storer’s orders but nevertheless was
arrested and maliciously prosecuted for resisting and obstructing an officer. Escobar
alleges also that Officer Storer used excessive force by tasing Escobar three times during
the course of the arrest.
Before the Court is Officer Storer’s motion for summary judgment, (Dkt. 17), in
which he seeks summary judgment on all of Escobar’s claims and claims qualified

MEMORANDUM DECISION AND ORDER - 1

immunity. For reasons explained below, the Court will grant Officer Storer’s motion for
summary judgment in part and deny it in part.
PROCEDURAL HISTORY
Escobar filed this suit on August 5, 2013, alleging three causes of action against
Officer Storer under 42 U.S.C. § 1983: (1) false arrest; (2) excessive force; and (3)
malicious prosecution. On June 27, 2014, Officer Storer moved for summary judgment
on all of Escobar’s claims. (Dkt. 17.) Escobar did not file a response to Officer Storer’s
motion for summary judgment within 21 days, as required by the federal rules of civil
procedure and, more specifically, District of Idaho Local Civil Rule 7.1(c).
After Escobar’s response deadline lapsed, the Court initiated a telephonic status
conference on September 23, 2014. During that conference, Escobar’s counsel explained
that he was waiting to receive a notice of hearing before filing his response to the motion.
The next day, the Court entered an order requiring Escobar to file a response, 1 (Dkt. 19)
and, that same afternoon, Escobar complied by filing his response brief and affidavit in
opposition to summary judgment. (Dkt. 20.) Officer Storer filed a reply brief on October
8, 2014. (Dkt. 21.) In addition to addressing Escobar’s substantive arguments, Officer
Storer’s reply requests the Court to strike Escobar’s response for untimeliness.
On November 3, 2014, the Court heard oral arguments on Officer Storer’s motion
for summary judgment. At that time, the Court took the matter under advisement and now
issues this disposition.

1

The Court ordered Escobar to file his response, despite Officer Storer’s objection during
the status conference.
MEMORANDUM DECISION AND ORDER - 2

FACTS 2
On the evening of August 6, 2011, at approximately 9:45 p.m., Officer Storer,
along with several other officers, responded to a report of a fight in progress at a Buffalo
Wild Wings restaurant and bar in Idaho Falls, Idaho. (Storer Aff. ¶ 3, Dkt. 17-7 at 2.) The
record does not contain any details about the fight—for instance, who instigated the fight,
how many people were involved, if weapons were involved, if injuries were sustained, or
if any criminal charges resulted from the fight. The record does indicate that, although
Escobar was not involved in the fight, he was present at Buffalo Wild Wings at
approximately the same time the fight occurred. (Escobar Depo. 86:16–25, Dkt. 17-3 at
10.) Escobar left the restaurant and headed toward his vehicle on the north side of the
building. 3 When he heard police arrive, he began running because he “did not want to be
around when others were being arrested.” (Escobar Aff. ¶¶ 3–4, Dkt. 20-1 at 1–2.)
When the officers arrived at the southwest side of the restaurant, they immediately
noticed several people in the parking lot and around the restaurant. (Storer Aff. ¶ 3, Dkt.
17-7 at 2.) The officers began speaking with various individuals to determine what had
occurred inside the restaurant. (Id.) While the officers were speaking with potential
witnesses, Officer Storer heard the restaurant’s manager shout that a Hispanic male

2

The following facts are undisputed unless otherwise indicated. When the facts are
disputed, they are taken in the light most favorable to Escobar, the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (recognizing the
district court’s obligation to construe the record in the light most favorable to the nonmoving
party on motion for summary judgment).
3

It is unclear from the record exactly when Escobar left the restaurant.

MEMORANDUM DECISION AND ORDER - 3

wearing a white shirt had been involved in the fight, and was running from the scene on
the north side of the building. 4 (Id. ¶ 4.)
Officer Storer proceeded to the north side of the building to look for the man in the
white shirt identified by the manager. There, he observed Escobar wearing a white shirt
and running to his vehicle. Once Officer Storer observed Escobar running, he shouted at
Escobar to stop running. The parties agree that Escobar turned and faced Officer Storer
when the officer first shouted “stop,” but they dispute what happened next.
According to Officer Storer, Escobar continued to run toward a grassy knoll after
Officer Storer ordered him to stop. (Storer Aff. ¶¶ 4–5, Dkt. 17-7 at 2.) Officer Storer
then “cut [Escobar] off,” drew his taser, and again ordered Escobar to stop. (Id. ¶ 5.) At
this point, Escobar stopped running. Officer Storer ordered Escobar to “get on the
ground” four times and advised Escobar that he would be tased if he did not comply. (Id.)
Escobar allegedly did not comply with these orders, so Officer Storer took control of
Escobar’s right arm, which was in the air, and forced Escobar to the ground. (Id. ¶ 6.)
Officer Storer then attempted to handcuff Escobar but could not get control of Escobar’s
left arm despite Officer Storer’s orders to Escobar to surrender it. (Id. ¶ 7.)
Officers Dax Siddoway, Dustin Cook, and Spencer Steel arrived to assist Officer
Storer in physically restraining Escobar. 5 (Id.) Escobar continued to resist surrendering

4

It is unclear from the record who the manager was directing this information to: Officer
Storer’s affidavit simply states that “the manager of Buffalo Wild Wings yelled” the information.
(¶ 4, Dkt. 17-7 at 2.)
5

The accounts of Officers Cook, Siddoway, and Steel mirror Officer Storer’s account of
the incident. (Dkt. 17-4, 17-5, 17-6.)
MEMORANDUM DECISION AND ORDER - 4

his left arm, so Officer Storer removed the probe cartridge from his taser, and applied the
taser in drive-stun mode to Escobar’s lower back area. (Id. ¶ 8.) Escobar then surrendered
his left arm, allowing Officer Storer to place him in handcuffs. Officer Storer reported
that Escobar sustained an “abrasion to his left eye” during the struggle, but Officer Storer
characterized the injury as “superficial” and one not requiring medical attention. (Id.)
According to Escobar’s account, Escobar immediately complied with Officer
Storer’s first order to stop, faced Officer Storer, and raised his arms in surrender.
(Escobar Aff. ¶ 5, Dkt. 20-1 at 2.) Although Escobar was standing still with his arms
raised, Officer Storer fired his taser in dart mode, 6 striking Escobar in the stomach. 7 (Id. ¶
6.) Escobar was knocked to the ground and physically subdued by the four officers,
including Storer. (Id. ¶ 7.) The officers drove Escobar’s face into the asphalt, and Officer
Storer, using his taser in drive-stun mode, tased Escobar twice more in the lower back. 8

6

Although Escobar does not explicitly use the term “dart mode” in his Complaint, he
clearly alleges the use of a taser when he and Officer Storer were not yet in direct physical
contact. (Dkt. 1 at ¶ 5.) This allegation implies that the taser was used in dart mode rather than
drive-stun mode, because drive-stun mode requires direct contact with the victim. Mattos v.
Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc).
7

Officer Storer claims he removed the dart cartridge before deploying his taser and thus
denies firing the taser in dart mode. Officer Storer substantiates this claim with an affidavit of
Officer Richard Sampson. (Dkt. 21-1.) Officer Sampson is a member of the Pocatello Police
Department and is a “TASER International basic instructor.” (Id. ¶ 2.) Officer Sampson is very
familiar with the marks that would be left on an individual after being struck with a taser
employed in either dart mode or drive-stun mode. (Id. ¶ 3.) He reviewed the photographs
submitted by Escobar (Dkt. 25-1) and definitively stated that the picture of the marks left on
Escobar’s stomach “are not indicative of a TASER barb piercing the skin.” (Dkt. 21-1 at ¶ 3.)
8

The Complaint alleges Escobar was tased in drive-stun mode only once. (Dkt. 1 at 3.)
Whether Officer Storer tased Escobar once in drive-stun mode or twice in quick succession (as
alleged in Escobar’s affidavit) is immaterial to the Court’s excessive force analysis below.
MEMORANDUM DECISION AND ORDER - 5

(Id. ¶ 7–8.) Escobar claims the incident resulted in injuries to his stomach, the left side of
his face, and his back, 9 all of which healed within approximately one month after the
incident. (Escobar Depo. 88:15–20, Dkt. 17-3 at 10.)
Escobar was arrested for resisting or obstructing an officer, a misdemeanor under
Idaho Code § 18-705. He paid a $300 surety bond to be released from jail that day and
later paid an attorney $500 to defend the charge against him. According to Bonneville
County District Court records, the trial in Escobar’s criminal case was continued several
times during the fall of 2011 and the winter of 2012. (Dkt. 17-3 at 5–6.) On May 2, 2012,
nearly ten months after Escobar’s arrest, a state magistrate judge exonerated Escobar’s
surety bond and dismissed the case for reasons that do not appear in the record.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure directs the court to “grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Critically, “the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A dispute about a material fact is genuine ‘if
the evidence is such that a reasonable jury could return a verdict for the nonmoving

9

Escobar’s alleged injuries are depicted in three photographs attached to his amended
affidavit. (Dkt. 24.)
MEMORANDUM DECISION AND ORDER - 6

party.’” FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010)
(quoting Anderson, 477 U.S. at 248).
“The moving party initially bears the burden of proving the absence of a genuine
issue of material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir.2010)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving
party bears the burden of proof at trial, the moving party need only prove that there is an
absence of evidence to support the non-moving party's case.” Id. “Where the moving
party meets that burden, the burden then shifts to the non-moving party to designate
specific facts demonstrating the existence of genuine issues for trial.” Id. “If a party . . .
fails to properly address another party's assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for the purposes of the motion.” Fed. R. Civ.
P. 56(e)(2).
Factual disputes that would not affect the outcome of the suit are irrelevant to the
resolution of a motion for summary judgment. Anderson, 477 U.S. at 248. As to the
specific facts offered by the non-moving party, the Court does not weigh conflicting
evidence but draws all inferences in the light most favorable to the non-moving party.
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
Likewise, direct testimony of the non-moving party, however implausible, must be
believed because the Court cannot resolve credibility questions at the summary judgment
stage. See Leslie v. Groupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). But, when
confronted with a purely legal question, the Court does not defer to the nonmoving party.

MEMORANDUM DECISION AND ORDER - 7

DISCUSSION
1. Officer Storer’s Request to Strike Escobar’s Response as Untimely
As a preliminary matter, the Court will address Officer Storer’s request to strike
Escobar’s response as untimely under the Court’s local rules. Local Rule 7.1(c)(1)
requires a responding party to serve and file a response brief within 21 days after service
of a motion. Escobar did not file a response within this time period, and this issue was
addressed at a status conference initiated by the Court on September 23, 2014. The Court
ordered Escobar to file a response on or before October 14, 2014, after his counsel
explained that he missed the response deadline because he believed the deadline was tied
to a hearing date on the motion (as it is in Idaho state court). Escobar filed his response
the day after the status conference, on September 24, 2014.
Although Officer Storer is technically correct that Escobar’s response was
untimely under Local Rule 7.1(c) and that Escobar has failed to show good cause for
missing the filing deadline, 10 this perspective obscures the overriding policy favoring
decisions on the merits—a policy expressed in the local rules, the case law of the United
States Court of Appeals for the Ninth Circuit, and the Federal Rules of Civil Procedure.
Local Rule 7.1(e)(2) states: “In motions brought under the Federal Rule of Civil
Procedure 56, if the non-moving party fails to timely file any response documents
required to be filed, such failure shall not be deemed a consent to the granting of said
motion by the Court.” Dist. Idaho Loc. Civ. R. 7.1(e)(2) (emphasis added). Additionally,
10

Escobar’s counsel’s stated reason for missing the response deadline was a confusion
about which set of procedural rules govern this proceeding. The fact that Escobar’s response was
filed virtually immediately after ordered by the Court supports his stated reason for untimeliness.
MEMORANDUM DECISION AND ORDER - 8

the Ninth Circuit has adopted “the strong policy underlying the Federal Rules of Civil
Procedure favoring decisions on the merits” whenever possible. Eitel v. McCool, 782
F.2d 1470, 1472 (9th Cir. 1986). In accord with this policy, the Ninth Circuit found error
when a district court granted partial summary judgment “solely on the basis of [a] local
rule violation.” Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). Lastly,
Federal Rule of Civil Procedure 1 states that the rules “should be construed and
administered to secure the just, speedy, and inexpensive determination of every action
and proceeding.” Fed. R. Civ. P. 1.
Officer Storer does not suggest that considering Escobar’s response would unduly
delay this proceeding, unreasonably increase its expense, or otherwise render the Court’s
determination unjust. On the other hand, it would be highly prejudicial to Escobar to
strike his opposition to Storer’s motion for summary judgment because of a violation of
the local rule at issue in this instance. Striking Escobar’s response would frustrate rather
than facilitate a decision on the merits of this case. Accordingly, and because this issue
was addressed during the status conference on September 23, 2014, Officer Storer’s
request to strike Escobar’s response is denied as moot.
2. 42 U.S.C. § 1983: Civil Rights Violation Claims in General
Section 1983 is “not itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S.
386, 393–94 (1989) (internal quotation marks omitted) (quoting Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979)). The purpose of section 1983 is to deter state actors from using
their badge of authority to deprive individuals of their federally guaranteed rights, and to
MEMORANDUM DECISION AND ORDER - 9

provide relief to harmed parties when their federally guaranteed rights are harmed by
state actors. See Wyatt v. Cole, 504 U.S. 158, 161 (1992). To establish a prima facie case
under § 1983, a plaintiff “must adduce proof of two elements: (1) the action occurred
under ‘color of law’ and (2) the action resulted in a deprivation of a constitutional right or
a federal statutory right.” Souders v. Lucero, 196 F.3d 1040, 1043 (9th Cir. 1999) (citing
Parratt v. Taylor, 451 U.S. 137, 140 (1979)). In other words, to state a claim under §
1983, a plaintiff must allege: “(1) a violation of rights protected by the Constitution or
created by federal statute (2) proximately caused (3) by conduct of a ‘person’ (4) acting
under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Each of Escobar’s causes of action allege a violation of his constitutional rights.
Both the false arrest and excessive force claims allege a violation of Escobar’s Fourth
Amendment right to be free from unreasonable search and seizure. U.S. CONST. amend
IV. Similarly, Escobar claims that he was maliciously prosecuted in violation of his
Fourteenth Amendment right. U.S. CONST. amend XIV. There is no dispute that Officer
Storer was a person acting under color of law at the time of the alleged violations.
3.

Legal Standard for Qualified Immunity
Officer Storer claims he has qualified immunity from each of Escobar’s claims.

Qualified immunity “protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose
of this doctrine is “to strike a balance between the competing ‘need to hold public
MEMORANDUM DECISION AND ORDER - 10

officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.’” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc) (quoting
Pearson, 555 U.S. at 236). An officer with qualified immunity is not liable even when his
or her conduct resulted from “a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Pearson, 555 U.S. at 231 (internal quotation marks
omitted).
There are two prongs to the qualified immunity analysis: (1) whether the officer’s
conduct, viewed in the light most favorable to the party asserting injury, violated a
constitutional right; and (2) whether the right “was clearly established” such that a
reasonable officer would have known his conduct violated the right. Saucier v. Katz, 533
U.S. 194, 201 (2001) receded from by Pearson, 555 U.S. 223. The Court need not
address these issues in a particular order. Pearson, 555 U.S. at 236. Rather, it is within
the Court’s discretion to decide which prong to address first in light of the circumstances
of the case and considerations of judicial economy. Id. In this case, the Court sees no
reason to depart from this order of analysis and will take up each prong, in turn, in
relation to the false arrest and excessive force claims asserted by Escobar.
4.

False Arrest
The Fourth Amendment right to be secure from unreasonable searches and

seizures “applies to all seizures of the person,” including initial and brief stops falling
short of traditional arrest. United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir.
2007) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). Arrests made
MEMORANDUM DECISION AND ORDER - 11

without a warrant are unreasonable, and therefore violate the Fourth Amendment, if
conducted without probable cause. See Beauregard v. Wingard, 362 F.2d 901, 903 (9th
Cir. 1966) (“[W]here probable cause does exist civil rights are not violated by an arrest
even though innocence may subsequently be established.”).
To determine whether an officer has qualified immunity from a false arrest claim,
the Court considers “(1) whether there was probable cause for the arrest; and (2) whether
it is reasonably arguable that there was probable cause for arrest—that is, whether
reasonable officers could disagree as to the legality of the arrest such that the arresting
officer is entitled to qualified immunity.” Rosenbaum v. Washoe Cnty., 663 F.3d 1071,
1076 (9th Cir. 2011) (citing Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)).
An officer will not be entitled to qualified immunity “if officers of reasonable
competence would have to agree that the information possessed by the officer at the time
of arrest did not add up to probable cause. . . .” Jenkins, 478 F.3d at 87. Because Officer
Storer arrested Escobar without a warrant, he is entitled to qualified immunity only if he
acted with either actual or arguable probable cause.
A. Reasonable Suspicion to Temporarily Detain
There are important distinctions between what constitutes reasonable suspicion
versus what constitutes probable cause, and what an officer is permitted to do in one
situation as opposed to the other. However, “[t]he concept of reasonable suspicion, like
probable cause, is not ‘readily, or even usefully, reduced to a neat set of legal rules.’”
United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Illinois v. Gates, 462 U.S. 213,
231 (1983)).
MEMORANDUM DECISION AND ORDER - 12

An officer has “reasonable suspicion” when he or she can articulate facts to
support the notion that “‘criminal activity may be afoot,’ even if the officer lacks
probable cause.” Id. The officer must “articulate something more than an inchoate and
unparticularized suspicion or hunch.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968))
(internal quotation marks omitted). Terry permits brief investigatory detentions based on
reasonable suspicion of criminal activity. Terry also permits officers to conduct “a
reasonable search for weapons . . . where [the officer] has reason to believe that he is
dealing with an armed and dangerous individual, regardless of whether he has probable
cause to arrest the individual for a crime.” 392 U.S. at 27. However, the Supreme Court
has emphasized that this is “narrowly drawn authority” such that the officer “must
articulate a particularized and objective basis for suspecting the particular person stopped
of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 128 (2000) (internal quotations
and citations omitted).
Escobar concedes that Officer Storer “may have had” the right to temporarily
detain and question him by virtue of Escobar’s resemblance to the Hispanic white-shirted
suspect described by the restaurant manager. (Dkt. 20 at 9.) But, Escobar argues that the
officers lacked any additional knowledge that would have elevated that reasonable
suspicion to probable cause to effectuate an arrest.
In light of Terry and the undisputed facts at the moment when Officer Storer first
observed Escobar running, the Court finds that Officer Storer had sufficient reasonable

MEMORANDUM DECISION AND ORDER - 13

suspicion for an investigative Terry stop. As soon as Escobar stopped running, 11 Officer
Storer was permitted to temporarily detain and question Escobar, and could perform a
protective search for weapons if he drew a reasonable inference that Escobar was armed.
Therefore, Officer Storer acted lawfully when he ordered Escobar to stop running from
the scene of the reported fight.
B. Probable Cause to Arrest
It has long been held that probable cause is required to effect a warrantless arrest
consistent with the Fourth Amendment. See Beck v. Ohio, 379 U.S. 89, 90 (1964)
(“Whether [the] arrest was constitutionally valid depends . . . upon whether, at the
moment the arrest was made, the officers had probable cause to make it. . . .”). “Probable
cause for a warrantless arrest arises when the facts and circumstances within the officer’s
knowledge are sufficient to warrant a prudent person to believe that the suspect has
committed an offense.” Crowe v. Cnty. Of San Diego, 608 F.3d 406, 432 (9th Cir. 2010)
(internal alterations omitted) (quoting Barry v. Fowler, 902 F.2d 770, 773 (9th Cir.
1990)). “The validity of the arrest does not depend on whether the suspect actually
committed a crime; the mere fact that the suspect is later acquitted of the offense for
which he is arrested is irrelevant to the validity of the arrest.” Michigan v. DeFillippo,
443 U.S. 31, 36 (1979). The Supreme Court of the United States has made it clear that
11

The facts are disputed as to when Escobar stopped running. According to Escobar’s
sworn affidavit, (Escobar Aff. ¶ 5, Dkt. 20-1 at 2 ), he immediately complied with Officer
Storer’s first order to stop. But, according to Officer Storer’s affidavit, (Storer Aff. ¶¶ 4–5,
Dkt. 17-7 at 2), Escobar did not stop running until Officer Storer had his taser drawn and
ordered Escobar to stop a second time. Either way, Escobar stopped running upon Officer
Storer’s command.
MEMORANDUM DECISION AND ORDER - 14

“the kinds and degree of proof and the procedural requirements necessary for a
conviction are not prerequisites to a valid arrest.” Id. (citing Gerstein v. Pugh, 420 U.S.
103, 119–23 (1975); Brinegar v. United States, 338 U.S. 160, 174–76 (1949)). Rather,
“[b]ecause the probable cause standard is objective, probable cause supports an arrest so
long as the arresting officers ha[ve] probable cause to arrest the suspect for any criminal
offense, regardless of their stated reason for the arrest.” Edgerly v. City and County of
San Francisco, 599 F.3d 946, 954 (9th Cir. 2010) (citing Devenpeck v. Alford, 543 U.S.
146, 153–155 (2004)).
It is undisputed that, at the point Escobar stopped (either after the first or second
command by Officer Storer to stop running), Officer Storer did not ask Escobar any
investigative questions. Instead, taking the facts in a light most favorable to Escobar,
Officer Storer immediately discharged his taser in dart mode and proceeded to forcibly
detain him. 12 (Escobar Aff. ¶¶ 5–6, Dkt. 20-1 at 2.) Officer Storer has not presented
evidence to suggest Escobar may have been armed that evening. Even if Officer Storer
had presented an articulable reason to believe Escobar was armed, that would permit
Officer Storer to conduct only a reasonable search for weapons—not to arrest Escobar. 13

12

Officer Storer contends that, after Escobar stopped running, he ordered Escobar to the
ground four times and warned of the potential use of the taser if Escobar did not comply. (Storer
Aff. ¶ 5, Dkt. 17-7 at 2.) Officer Storer further contends that because Escobar disregarded the
orders, Officer Storer physically forced him to the ground. (Id. ¶ 6.)
13

The briefing in support of the motion for summary judgment states that, “Officer Storer
had no idea whether [Escobar] was armed” (Dkt. 17-1 at 13), and “Escobar posed a significant
threat by virtue of potentially being armed.” (Id. at 14.) Although the Court recognizes the
significant importance of officer safety, Officer Storer has not presented an articulable reason to
believe that Escobar may have been armed.
MEMORANDUM DECISION AND ORDER - 15

The mere resemblance of Escobar to the restaurant manager’s general description
of a white-shirted Hispanic male suspect does not suffice under the circumstances to
establish probable cause for an arrest, but it does establish reasonable suspicion to
temporarily detain. See Grant v. City of Long Beach, 315 F.3d 1081, 1088 (9th Cir.
2002). Nor can Officer Storer’s initial observation of Escobar running justify an arrest.
See United States v. Navedo, 694 F.3d 463, 474 (3d Cir. 2012) (“Our holding today
reiterates that unprovoked flight, without more, cannot elevate reasonable suspicion to
detain and investigate into the probable cause required for an arrest.”).
However, Officer Storer argues he had probable cause to arrest Escobar because
he, and the other officers present, all recount in their affidavit testimony the actions
Escobar took to avoid the stop command and to resist arrest. 14 Under Idaho Code § 18705, a person is guilty of “resisting and obstructing officers” if he “willfully resists,
delays or obstructs any public officer, in the discharge, or attempt to discharge, of any
duty of his office. . . .” I.C. § 18-705. But this argument can succeed only if the facts
taken in a light most favorable to Escobar establish probable cause for the arrest.
The parties dispute what happened after Officer Storer first ordered Escobar to
stop. Escobar’s sworn affidavit states that, when “[a]n officer shouted ‘Stop!’ at me[,] I
immediately stopped, raised my hands in the air, and turned around.” (Escobar Aff. ¶ 5,

14

In particular, Officer Storer contends he “had probable cause to arrest Escobar for his
running from police, defying numerous lawful orders to stop and get on the ground and
subsequently refusing to surrender his left arm and actively resisting [his] attempts to gain
control of his arm.” (Storer Aff. ¶ 18, Dkt. 17-7 at 5.) Additionally, Officers Steel, Cook, and
Siddoway contend that Escobar continuously refused orders to surrender his free hand. (Cook
Aff. ¶ 5, Dkt. 17-4 at 2; Siddoway Aff. ¶ 5, Dkt. 17-5 at 2; Steel Aff. ¶ 5, Dkt. 17-6 at 2.)
MEMORANDUM DECISION AND ORDER - 16

Dkt. 20-1 at 2.) Officer Storer claims that, after he shouted “stop,” Escobar “continued to
run toward a grassy knoll when [he] cut [Escobar] off” and drew his taser. (Storer Aff. ¶
5, Dkt. 17-7 at 2.) Once again, Officer Storer ordered Escobar to stop, which he did. (Id.)
Thereafter, Officer Storer “verbally ordered [Escobar] to the ground four times” and
“advised [Escobar] that he would be tased if he did not comply.” (Id.)
At the summary judgment stage, “[i]f the nonmoving party produces direct
evidence of a material fact, the court may not assess the credibility of this evidence nor
weigh against it any conflicting evidence presented by the moving party.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). Officer
Storer’s claim of probable cause depends on a finding that Escobar was resisting
detention, 15 which would require the Court to credit the officers’ account of the incident.
Accepting Escobar’s account as true, the Court finds no indication that Escobar
resisted detention for questioning after Officer Storer ordered him to stop. Construing the
record as it must, the Court finds that a reasonable jury could conclude that Officer Storer
did not have probable cause to arrest Escobar.
C. Arguable Probable Cause
However, Officer Storer “may still be immune from suit if it was objectively
reasonable for him to believe that he had probable cause.” Rosenbaum, 663 F.3d at 1078
(emphasis in original) (citing Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th
Cir. 2009)). “The linchpin of the qualified immunity analysis is the reasonableness of the

15

Resisting a lawful order for temporary detention is a misdemeanor under Idaho law. I.C.
§ 18-705; see also Buck v. City of Sandpoint, 2008 WL 4498806 at *12 (D. Idaho 2008).
MEMORANDUM DECISION AND ORDER - 17

officer’s conduct in the particular case at hand.” Rosenbaum, 663 F.3d at 1078 (citing
Anderson, 483 U.S. at 638). This “acknowledges that an otherwise competent officer will
sometimes make an unreasonable decision, or make an unreasonable mistake as to law or
fact. In those instances, the officer will be appropriately liable under § 1983.” Id. (citing
Liberal v. Estrada, 632 F.3d 1064, 1078 (9th Cir. 2011)) (denying qualified immunity
because the officer’s mistake of fact was unreasonable). In other words, qualified
immunity is unavailable when “the law [is] clearly established such that it would ‘be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Id. at 1078–79 (quoting Saucier, 533 U.S. at 202).
The bulk of Officer Storer’s argument regarding the “arguable probable cause”
prong of the qualified immunity analysis relies on his assertion that he had actual
probable cause to arrest based on the officers’ observation that Escobar was defiant to
Officer Storer’s orders; therefore, “at a minimum,” arguable probable cause must have
existed. (Dkt. 17-1 at 20–21.) Officer Storer substantiates this argument by stating only
that his affidavit testimony, along with the affidavits of Cook, Siddoway, and Steel, “all
state that Escobar was actively resisting, that his conduct was in violation of Idaho Code
§ 18-705 and probable cause existed for his arrest.” (Id.) Officer Storer contends this
testimony provides at least arguable probable cause to arrest Escobar for resisting
detention. (Id.)
However, when considering the facts in the light most favorable to Escobar, he
immediately stopped at Officer Storer’s first command. Under this version of the facts,
every reasonable officer would have understood that it would be unlawful to arrest an
MEMORANDUM DECISION AND ORDER - 18

individual for resisting and obstructing when that individual had complied with the
officer’s commands. Thus, although there was reasonable suspicion to instigate a Terry
stop when Officer Storer first observed Escobar running across the parking lot, the Court
finds a reasonable jury could conclude that, absent other evidence to elevate the
circumstances from a finding of reasonable suspicion, arguable probable cause did not
exist for an arrest.
Even crediting Officer Storer’s account of the encounter, Escobar continued to run
after Officer Storer first ordered him to stop, but Escobar stopped running the second
time he was ordered to stop. (Storer Aff. ¶ 5, Dkt. 17-7 at 2.) At this point, Officer Storer
had reasonable suspicion to initiate a Terry stop and could conduct a reasonable search
for weapons if Officer Storer believed Escobar was armed. See Brigoni-Ponce, 422 U.S.
at 880–81. Officer Storer did neither. Instead, Officer Storer ordered Escobar to the
ground and then used considerable force to arrest Escobar after he refused to comply.
Accordingly, based on the record before it, the Court cannot find that, as a matter of law,
Officer Storer is entitled to qualified immunity as to the false arrest claim. Therefore,
summary judgment as to this claim will be denied.
5.

Excessive Force
A. Is Use of Force Permitted During a Routine Terry Stop?
The Court next considers Escobar’s claim that Officer Storer used excessive force.

If an officer’s actions are objectively reasonable in light of the facts and circumstances,
the officer will not be found to have used excessive force. Graham v. Connor, 490 U.S.
386, 395–97 (1989). However, “[w]here there is no need for force, any force used is
MEMORANDUM DECISION AND ORDER - 19

constitutionally unreasonable.” Jackson v. Johnson, 797 F.Supp.2d 1057, 1071 (D. Mont.
2011) (emphasis in original) (quoting Headwaters Forest Defense v. Cnty. of Humboldt,
240 F.3d 1185, 1199 (9th Cir. 2000), vacated and remanded on other grounds sub nom.
Cnty. of Humboldt v. Headwaters Forest Defense, 534 U.S. 801 (2001) (internal
quotation marks omitted).
Because the Court concluded that Officer Storer had reasonable suspicion to
conduct a Terry stop, but did not have probable cause to arrest, the Court’s excessive
force analysis focuses on whether Officer Storer was permitted to use force during the
Terry stop. In an ordinary Terry stop where “an officer has no reason to suspect danger, it
is a Fourth Amendment violation for the officer to employ aggressive tactics such as
drawing a weapon, forcing a subject to lie prone on the ground, and using handcuffs.”
Jackson, 797 F.Supp.2d at 1057 (citing United States v. Del Vizo, 918 F.2d 821, 825 (9th
Cir. 1990)). It is only under “special circumstances” that “intrusive techniques” are
permitted to effectuate a Terry stop:
1) where the suspect is uncooperative or takes action at the scene that raises
a reasonable possibility of danger or flight; 2) where the police have
information that the suspect is currently armed; 3) where the stop closely
follows a violent crime; and 4) where the police have information that a
crime that may involve violence is about to occur.
Id. (quoting Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996)).
Taking the facts in a light most favorable to Escobar, none of these special
circumstances were present at the time of the Terry stop: Escobar complied with Officer
Storer’s order to stop and was thereafter nonresistant; no evidence has been presented to
suggest that Escobar may have been armed; the officers were not responding to a violent
MEMORANDUM DECISION AND ORDER - 20

crime; and the officers did not have any information that a violent crime was about to
occur. Therefore, because it is a Fourth Amendment violation to employ aggressive
tactics during a routine Terry stop and there were no “special circumstances” present, the
Court finds that a reasonable jury could conclude Officer Storer violated Escobar’s
Fourth Amendment rights by employing unreasonably excessive force during the Terry
stop.
B. Violation of Clearly Established Law
Having concluded that Escobar has sufficiently alleged disputed facts supporting a
constitutional violation, the next step in the qualified immunity analysis is whether the
constitutional right was clearly established at the time of the conduct. At this step, the
Court asks whether the contours of the right at issue were “‘sufficiently clear’ that every
‘reasonable official would have understood that what he [was] doing violates that right.’”
Mattos, 661 F.3d at 442 (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011)). This
is a pure question of law. Mitchell v. Forsyth, 472 U.S. 511, 527 (1985).
A right is sufficiently clear when Supreme Court precedent or a “robust consensus
of cases” puts the constitutional question “beyond debate.” Plumhoff v. Richard, 134
S.Ct. 2012, 2023 (2014) (quoting al-Kidd, 131 S.Ct. at 2083–84). The United States
Supreme Court has instructed lower courts “not to define clearly established law at a high
level of generality.” Id. at 2023. Rather, “the right allegedly violated must be defined at
the appropriate level of specificity before a court can determine if it was clearly
established.” Wilson v. Layne, 526 U.S. 603, 615 (1999). After all, qualified immunity is
intended to “give[ ] government officials breathing room to make reasonable but
MEMORANDUM DECISION AND ORDER - 21

mistaken judgments about open legal questions,” thereby protecting “all but the plainly
incompetent or those who knowingly violate the law.” al-Kidd, 131 S.Ct. at 2085
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The right at issue here is more specific than the general Fourth Amendment right
to be free from unreasonable seizure. This case implicates Escobar’s right to be free from
significant force once he stopped and surrendered. See Gravelet-Blondin, 728 F.3d 1086.
At the time of Escobar’s arrest in August of 2011, the Ninth Circuit had decided at least
three cases involving tasers: Bryan, Brooks, and Mattos. In each case, a three-judge panel
found the officers involved were entitled to qualified immunity. Bryan, 630 F.3d 805;
Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010), vacated by en banc decision in
Mattos, 661 F.3d 433; Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010), vacated by en
banc decision in Mattos, 661 F.3d 433.
After Escobar’s arrest, the Ninth Circuit reheard Brooks and Mattos en banc. In
the consolidated en banc case, the court concluded that, although both cases involved the
use of unconstitutional and excessive force, the officers were nonetheless entitled to
qualified immunity because their use of tasers against minimally resistant subjects did not
violate clearly established law. Mattos, 661 F.3d at 433. Qualified immunity also was
granted to the officer in Brooks who used a taser in dart mode against an unarmed, but
belligerent and noncompliant subject pulled over for a seatbelt violation. 630 F.3d at 822,
830.
More recently, the Ninth Circuit decided Gravelet-Blondin, which held that the
use of non-trivial force on a passive subject “was clearly established prior to 2008.” 728
MEMORANDUM DECISION AND ORDER - 22

F.3d at 1093 (citing Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012)) (cases
dating back to 2001 have established that “[a] failure to fully or immediately comply with
an officer’s orders neither rises to the level of active resistance nor justifies the
application of a non-trivial amount of force”). The Ninth Circuit held that the officer’s
use of a taser on a passive bystander was so egregious that the constitutional question was
beyond debate years before the decisions involving tasers were rendered in Bryan and
Mattos. Id.at 1096.
Under Escobar’s recitation of the facts, every reasonable officer would have
understood that the use of a taser coupled with physical force on a passive and compliant
subject is a clear violation of an established constitutional right. Therefore, viewing the
facts in a light favorable to Escobar, the Court cannot conclude, as a matter of law, that
Officer Storer is entitled to qualified immunity on the excessive force claim.
6. Malicious Prosecution
Officer Storer argues also that he is entitled to summary judgment on Escobar’s
malicious prosecution claim. To survive summary judgment, Escobar must present
evidence that Officer Storer “prosecuted [him] with malice and without probable cause,
and that [Officer Storer] did so for the purpose of denying [him] equal protection or
another specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189
(9th Cir. 1995) (citing Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985)) (en banc)
(emphasis added). “In general, a claim of malicious prosecution is not cognizable under §
1983 ‘if process is available within the state judicial systems’ to provide a remedy,
although ‘[the Ninth Circuit has] also held that an exception exists . . . when a malicious
MEMORANDUM DECISION AND ORDER - 23

prosecution is conducted with the intent to . . . subject a person to a denial of
constitutional rights.’” Lacey v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012)
(quoting Bretz, 773 F.2d at 1031). But, even in cases where the plaintiff invokes this
exception, the arresting officer is liable for malicious prosecution only if the plaintiff can
rebut the presumption of prosecutorial independence. Awabdy v. City of Adelanto, 368
F.3d 1062, 1067 (9th Cir. 2004). “Ordinarily, the decision to file a criminal complaint is
presumed to result from an independent determination on the part of the prosecutor, and
thus, precludes liability for those who participated in the investigation or filed a report
that resulted in the initiation of proceedings.” Id.
Escobar has failed to carry his burden on this claim in two respects. First, he
neither alleges nor argues that the prosecution violated any of his “specific constitutional
rights.” Bretz,773 F.2d at 1031 (emphasis added). Rather, Escobar alleges Officer Storer
maliciously prosecuted him in violation of his “rights under 42 U.S.C. § 1983.”
(Complaint ¶ 27, Dkt. 1.) Section 1983, of course, is not the source of any substantive
rights. Graham, 490 U.S. at 393–94. Nor has Escobar presented evidence to flesh out this
vague allegation of wrongdoing. Without a specific allegation of a constitutional
violation (and underlying evidence), Escobar has failed to support an essential element of
his malicious prosecution claim.
Second, even if the Court could infer a specific constitutional violation from the
record, Escobar has not overcome the presumption of prosecutorial independence. The
presumption stands absent some showing that Officer Storer “improperly exerted
pressure on the prosecutor, knowingly provided misinformation to him, concealed
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exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was
actively instrumental in causing the initiation of legal proceedings.” Awabdy, 368 F.3d at
1067. Escobar’s affidavit, the only evidence presented in opposition to summary
judgment, includes nothing about the legal proceedings after his arrest on August 6, 2011.
The record is otherwise bereft of evidence sufficient to rebut the presumption. Therefore,
the Court will grant Officer Storer’s motion for summary judgment on the malicious
prosecution claim.
CONCLUSION
The allegations in Escobar’s Complaint rely upon whether he complied with
Officer Storer’s orders. There are disputed issues of material fact regarding whether
Escobar complied with Officer Storer’s orders, whether probable cause existed for arrest
of Escobar, and what amount of force was actually exerted or justified to detain or arrest
Escobar. As such, summary judgment on the false arrest and excessive force claims will
be denied. However, Escobar’s malicious prosecution claim fails because the Court does
not find any genuine issue of material facts, disputed or otherwise, to support his prima
facie case on that claim.

MEMORANDUM DECISION AND ORDER - 25

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Defendant’s Motion for Summary Judgment (Dkt. 17) is GRANTED
IN PART AND DENIED IN PART.
2) The Court will conduct a telephonic scheduling conference with the
parties for the purpose of setting pretrial deadlines and a trial date in this
matter. A separate notice of hearing is forthcoming.
January 27, 2015

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