Jones v. Las Vegas Metropolitan Police Department et al

Filing 156

ORDER Granting 124 and 126 Motions for Summary Judgment. Signed by Judge Larry R. Hicks on 3/19/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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IMAN JONES, an individual,
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Plaintiff,
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v.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT, a political subdivision of
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Clark County, Nevada; G. CROSSMAN,
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individually and in his official capacity as a
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Police Officer with the Las Vegas
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Metropolitan Police Department; D.
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ROSEQUIST, individually and in his official )
capacity as a Police Officer with the Las Vegas )
Metropolitan Police Department; J. GIESE,
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individually and in his official capacity as a
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Police Officer with the Las Vegas
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Metropolitan Police Department; AZ
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SEARCH AND RECOVERY, LLC, an
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Arizona limited liability company; JOSHUA )
SIMS, an individual; JUSTIN GOODEN, an )
individual; FINEX CAPITAL GROUP, LLC )
d/b/a LOANEX, a Nevada limited liability
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company; POLICE OFFICER DOES 1
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through 10, inclusive; INDIVIDUAL DOES 1 )
through 10, inclusive; and ROE
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CORPORATIONS 1 through 10, inclusive,
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Defendants.
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2:09-CV-01874-LRH-RJJ
ORDER

Before the court are two motions for summary judgment filed by Defendant Las Vegas

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Metropolitan Police Department (“LVMPD”) (#1241) and Defendant Garn Crossman (#126).

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Plaintiff Iman Jones filed separate oppositions (#135/139 and #131, respectively), replies were filed

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by LVMPD (#150) and Crossman (#151), and Jones filed supplements to his oppositions (#154 and

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#155).

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I.

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Facts and Procedural History
On the evening of October 16, 2008, multiple 911 calls were made for police assistance at

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an apartment complex, where Iman Jones was resisting the repossession of his Ford Expedition.

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Jones was the first to call 911 at 10:48 p.m., when he reported that a repo agent was blocking his

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vehicle and preventing him from driving away. In response to the operator’s questions, Jones

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reported that he had a weapon, as he worked as an armed security guard, and that he was in the

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truck with the gun but did not have it out and was not brandishing it.

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During a second call placed by LVMPD to Jones at 10:51, Jones reported that two repo

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agents were threatening him with mace and trying to put a lock on his vehicle. Jones then began

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yelling at the agents repeatedly, “Get away from my vehicle! Now!” Still shouting, Jones reported

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that the agents were harassing him in his car and approaching him with mace in their hands and

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some sort of metal contraptions. The operator advised Jones to calm down and that if they were

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there to repossess the vehicle legally there was not much the police could do. The operator further

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advised that she was sending police, and Jones should stay in the truck with the doors and windows

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locked, ignore the agents and not get into a confrontation. The call ended at approximately 10:54.

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At 10:52, while Jones was still on the phone with LVMPD, two more 911 calls were made

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by a female apartment resident and by the owner of the tow company, JR, who was there to assist

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his employee, Joshua Sims, in the repossession. The neighbor reported hearing the men yelling

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outside, and JR reported that they were doing a repo and a guy “just pulled a gun on us” and

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Refers to the court’s docket entry number.
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“pointed it at me.” JR also reported that they had the vehicle hooked up until Jones pulled it off the

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lift, and that Jones was still in the car with the gun in his hand. JR identified Jones as the person

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with the gun, which he described as a revolver, nickel or silver, possibly a .357 Magnum.

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At 10:55, another apartment resident called 911 to report hearing yelling outside and
hearing someone say a guy had a gun.
At 10:57, Jones called 911 again to request the police to hurry up because the repo agents

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were continuing to harass him. When asked whether he still had a weapon and whether he had

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threatened anyone with it, Jones stated that he had it with him in the vehicle but denied pointing it

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at anyone. Jones also stated that the gun was underneath his seat, nobody had been threatened with

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the gun, and the repo agents were threatening him with mace.

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The police arrived soon thereafter. The five responding LVMPD officers included Sergeant

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and Field Training Officer (“FTO”) Howard Crosby, his trainee Garn Crossman, a second FTO and

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his trainee Daniel Rosequist, and Officer Joshua Giese. Jones got out of his vehicle and was

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approached by Crossman, FTO Crosby, and another officer. Jones identified himself as the 911

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caller and consented to a pat down search by Crossman. Jones had a can of mace in his pocket and

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told the officers he had a gun in the vehicle. The officers later recovered the gun, a .38 caliber

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silver revolver, from under the seat. Jones also gave his version of the incident. Among other

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things, Jones stated that earlier in the evening when Sims came to his apartment door to inform him

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of the repossession he answered the door with the gun in his hand but not pointed at Sims, and that

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he brought the gun down to his vehicle along with his other work equipment when he attempted to

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leave for the night.

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The three officers questioning Jones had not spoken to the repo agents, and it was apparent

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to Jones that they had already been informed by dispatch that the repo agents had accused Jones of

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pointing his gun at them. Jones denied pointing his gun at anybody, but the officers did not believe

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him. According to Jones, he repeatedly requested the officers to interview the numerous witnesses

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standing on their balconies watching, but they refused to do so. According to Rosequist, some

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apartment residents near the vehicle were interviewed but had no information. No witness

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statements were taken.

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Rosequist and his FTO interviewed the repo agents, JR and Sims. Under separate

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questioning, both identified Jones’ gun as a silver revolver, and they provided written statements

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that Jones pointed the gun at JR.
Jones was arrested by Crossman and jailed on a gross misdemeanor charge of aiming a gun

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at a human being under NRS § 202.290, and his gun and ammunition were impounded. No other

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items were inventoried. Jones claims that FTO Crosby took the car keys out of his pocket and gave

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them to the repo agents, who were not taken into custody and repossessed the vehicle. The charges

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against Jones were later voluntarily dismissed at his preliminary hearing.
Following unsuccessful complaints to Internal Affairs and the Citizens Review Board,

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Jones filed this action on September 24, 2009, against the LVMPD, Officers Crossman, Rosequist

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and Giese, the repo agents, and others. In his Second Amended Complaint, filed on January 24,

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2011, Jones alleges six claims against the LVMPD and its officers, including: (1) violation of 42

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U.S.C. § 1983; (2) false arrest; (3) false imprisonment; (4) intentional infliction of emotional

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distress; (5) civil conspiracy; and (6) negligent hiring, training and supervision, which is alleged

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against LVMPD only.
LVMPD and Crossman now move for summary judgment on all claims. Rosequist and

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Giese also moved for summary judgment, but they have been dismissed by stipulation.

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II.

Legal Standard

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Summary judgment is appropriate only when the pleadings, depositions, answers to

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interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the record

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show that “there is no genuine issue as to any material fact and the movant is entitled to judgment

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as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for summary judgment, the

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evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the

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light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154

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(9th Cir. 2001).
The moving party bears the initial burden of informing the court of the basis for its motion,

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along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the

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moving party must make a showing that is “sufficient for the court to hold that no reasonable trier

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of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259

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(6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

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To successfully rebut a motion for summary judgment, the non-moving party must point to

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facts supported by the record which demonstrate a genuine issue of material fact. Reese v.

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Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might

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affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary

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judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute

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regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a

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scintilla of evidence in support of the party’s position is insufficient to establish a genuine dispute;

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there must be evidence on which a jury could reasonably find for the party. Id. at 252.

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III.

Discussion

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Jones alleges that LVMPD and Crossman violated his Fourth Amendment rights by

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arresting him without probable cause. In moving for summary judgment, Defendants contend that

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Jones’ arrest was supported by probable cause, that even if it were not Crossman is entitled to

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qualified immunity and that Jones has failed to establish Monell liability against LVMPD.

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“Probable cause [to arrest] exists when, under the totality of the circumstances known to the

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arresting officers, a prudent person would have concluded that there was a fair probability that the

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suspect had committed a crime.” Peng v. Penghu, 335 F.3d 970, 976 (9th Cir. 2003) (internal

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quotation marks, brackets and citation omitted). “[P]robable cause means ‘fair probability,’ not

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certainty or even a preponderance of the evidence.” United States v. Gourde, 440 F.3d 1065, 1069

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(9th Cir. 2006) (en banc). “Fourth Amendment issues[] are evaluated for objective reasonableness

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based upon the information the officers had when the conduct occurred.” Saucier v. Katz, 533 U.S.

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194, 207 (2001).

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Here, the court has no difficulty in concluding that, based on the information known to the

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officers at the time, there was probable cause to arrest Jones for aiming a gun at a human being, in

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violation of NRS § 202.290. The police had received a contemporaneous report by the alleged

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victim, JR, that a man had just pulled a gun and pointed it at him during a vehicle repossession, he

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identified Jones as the owner of the vehicle and the perpetrator, and he correctly described Jones’

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silver revolver. JR’s allegation was also corroborated by Sims, the other repo agent involved in the

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altercation, and it was consistent with the circumstances. It was known from multiple 911 calls that

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Jones was actively resisting the repossession of his vehicle. And just before the crime was

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reported, the situation had escalated to the point where, by Jones’ own contemporaneous account,

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he felt physically threatened by multiple men rushing his vehicle with mace and metal objects, and

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he was heard screaming repeatedly at those men to keep away. Although Jones denied brandishing

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the gun, he admitted that he grabbed the gun for protection earlier in the evening when he answered

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the loud banging on his door, and that he had the gun unholstered and within his reach in the

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vehicle, where the altercation and alleged crime occurred. The police also later recovered the gun

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unholstered under Jones’ seat.

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Jones makes several arguments to establish that a factual dispute exists as to whether he, in
fact, pointed the gun at JR. For instance, Jones denies that he pointed his gun at anyone, and he
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offers various innocent explanations for why he took his gun out of his duffel bag and holster and

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placed it under his car seat, all of which he contends this court must accept as true. Jones’ possible

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innocence is immaterial, however, to the court’s determination of whether, “under the totality of the

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circumstances known to the arresting officers, a prudent person would have concluded that there

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was a fair probability that the suspect had committed a crime.” Peng, 335 F.3d at 976 (internal

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quotation marks, brackets and citation omitted). This “fair probability” requirement does not

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require “certainty or even a preponderance of the evidence.” Gourde, 440 F.3d at 1069. And the

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existence of factual disputes regarding what actually occurred do not prevent this court from

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determining the existence of probable cause on summary judgment. Whether the police had

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probable cause is a mixed question of fact and law. United States v. Buckner, 179 F.3d 834, 837

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(9th Cir. 1999). The issue is therefore subject to determination on summary judgment where the

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material facts (i.e., the information known to the arresting officers) are not genuinely disputed. See

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Peng, 335 F.3d at 978, 979-80; see also Conner v. Heiman, --- F.3d ----, 2012 WL 759618, *4 (9th

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Cir. March 9, 2012) (in granting qualified immunity, observing that the fact that a suspect’s

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“behavior was ‘consistent’ with that of an innocent person” and “that reasonable people could draw

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different conclusions based on [his] behavior . . . is irrelevant to the probable cause analysis”).

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Jones also contends that the officers’ investigation was insufficient because they relied

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solely on the disputed and uncorroborated accusations of the alleged victims. “In establishing

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probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of

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a crime, but must independently investigate the basis of the witness’ knowledge or interview other

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witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). “A

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sufficient basis of knowledge is established if the victim provides facts sufficiently detailed to

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cause a reasonable person to believe a crime had been committed and the named suspect was the

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perpetrator.” Peng, 335 F.3d at 978 (internal quotation marks and citation omitted).

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Here, these requirements were plainly satisfied. JR’s reports to both 911 and the

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responding officers, that Jones had pulled his gun and pointed his gun at JR during an attempted

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repossession, were sufficiently detailed to establish the crime of aiming a gun at a human being.

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The basis for JR’s knowledge was also well-established. JR reported that he saw the gun, and he

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correctly described Jones’ silver revolver. Moreover, JR’s report was corroborated by Sims’

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account as a percipient witness and was consistent with the independently verifiable facts,

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including Jones’ admission that he had a gun in his possession and within his reach in his vehicle,

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and the officers’ recovery of a gun from under Jones’ seat that matched the description given by the

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repo agents.

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Jones also argues that the officers’ investigation was insufficient because they failed to

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interview the neighbors that called 911 and ignored Jones’ requests to interview the numerous

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individuals that were watching from their balconies and might verify his account of the incident.

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The court rejects these arguments, however. The 911 callers reported only hearing, not seeing, the

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altercation. Also, Rosequist testified that some apartment residents near the vehicle were

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interviewed but had no information. Although Jones offers the written statements of two witnesses

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to establish that a further investigation would have supported his version of events, at best these

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statements tend to establish only the existence of a factual dispute as to whether Jones in fact

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pointed his gun at JR. They do not negate the existence of probable cause, nor do they establish the

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police failed to conduct a proper investigation before arresting Jones. Both statements reflect that

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the declarants returned to their apartments for the night, rather than approach the police or even

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remain on their balconies, where the police might have found them. The police need only conduct

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“a reasonable investigation under the circumstances.” Peng, 335 F.3d at 979. Where, as here,

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probable cause has been established based on the detailed reports of two eyewitnesses and the

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corroborating facts and circumstances, the arresting officers are not required to canvass the

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neighborhood for unknown witnesses that might have seen it differently.

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Because Jones’ arrest was supported by probable cause, LVMPD and Crossman are entitled

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to summary judgment on his § 1983 claim regarding his arrest. Furthermore, LVMPD and

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Crossman are also entitled to summary judgment to the extent Jones’ § 1983 claim is based on the

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seizure of his vehicle. Although police generally may not assist in effectuating an unlawful

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repossession, no due process or Fourth Amendment violation occurs where, as here, the police are

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“summoned to a scene not of their making” and their facilitation of the repossession is incidental to

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the officers’ lawful duty to effectuate an arrest. Meyers v. Redwood City, 400 F.3d 765, 772-73

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(9th Cir. 2005). Although Jones contends that FTO Crosby handed over Jones’ car keys to the repo

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agents following his arrest, Crosby is not a defendant in this action. As for Crossman and LVMPD,

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Jones presents no evidence that Crossman assisted in the repossession other than indirectly through

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his lawful arrest of Jones, nor any evidence that Crosby’s conduct was pursuant to any policy or

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longstanding custom or practice or that he had final policymaking authority, as is required for

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municipal liability. See Webb v. Sloan, 330 F.3d 1158, 1163-64 (9th Cir. 2003). Accordingly,

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LVMPD and Crossman are entitled to summary judgment on all aspects of Jones’ § 1983 claim.

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The court further finds that LVMPD and Crossman are entitled to summary judgment on

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Jones’ remaining claims. As reflected in his Second Amended Complaint, Jones’ claims for false

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arrest, false imprisonment, intentional infliction of emotional distress, and negligent hiring, training

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and supervision are all predicated exclusively on the alleged unlawfulness of his arrest, which this

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court has rejected. And Jones’ claim for civil conspiracy also necessarily fails, as it is predicated

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on an alleged conspiracy to commit the aforementioned violations.

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IT IS THEREFORE ORDERED that Defendant LVMPD’s Motion for Summary Judgment
(#124) and Defendant Garn Crossman’s Motion for Summary Judgment (#126) are GRANTED.

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IT IS SO ORDERED.

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DATED this 19th day of March, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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