Mugica v. Spokane County, Washington et al

Filing 80

MEMORANDUM OPINION AND ORDER RE: MOTION FOR SUMMARY JUDGMENT - GRANTED IN PART AND DENIED IN PART 50 MOTION for Summary Judgment filed by L Peterson, R Walter, S Bonney, J Mitchell, Spokane County, Washington, Fnu Pfiefer, Ozzie Knezovich, J Shover, John Does 1-12, D Moyer, G Pratt. Final Pretrial Conference set for 8/28/2014 at 11:00 AM in Spokane.Jury Trial remains set for 9/9/14. Signed by Senior Judge Justin L. Quackenbush. (VR, Courtroom Deputy)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ERICA L. MUGICA, et al., ) ) ) Plaintiffs, ) vs. ) ) ) ) SPOKANE COUNTY, et al, ) ) Defendants. ) ___________________________________ ) No. 13-CV-0129-JLQ MEMORANDUM OPINION AND ORDER RE: MOTION FOR SUMMARY JUDGMENT BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No. 50). Response and Reply briefs have been filed. (ECF No. 62 & 67). The court heard oral argument on August 12, 2014. Richard Wall appeared for Plaintiffs. Heather Yakely argued the Motion on behalf of Defendants. I. Procedural History This action was commenced by the filing of a Complaint on March 28, 2013. Pursuant to Plaintiffs' Motion, the court appointed Phillip Wetzel as guardian ad litem for the minor Plaintiffs. (ECF No. 10). An Amended Complaint was filed on July 3, 2013. (ECF No. 16). Plaintiffs bring claims of excessive force, unlawful detention, violation of Due Process, and failure to train pursuant to 42 U.S.C. § 1983. Plaintiffs also assert state law claims of intentional infliction of emotional distress and damage to real property. Defendants filed an Answer denying these allegations and counterclaimed pursuant to RCW § 4.24.350 asserting that Plaintiffs' claims are frivolous and that pursuing the action constitutes malicious prosecution. Plaintiffs did not file a response to the counterclaim. The court held a Scheduling Conference and issued a Scheduling Order on May 24, 2013. The parties filed several motions pertaining to expert discovery and mental health records. The court issued rulings on those motions, and discovery is now closed. The ORDER - 1 1 parties also filed a Motion to Continue trial date, which was granted in part. The matter 2 is set for jury trial on September 9, 2014. 3 II. Factual Background 4 In summary judgment proceedings, the facts are viewed in a light most favorable to 5 the non-movant. Plaintiff disputes only three of the factual statements by Defendants. 6 (ECF No. 63, p. 9). The following facts are largely undisputed. If there is a dispute, it is 7 noted. 8 9 Plaintiff Erica Mugica, and her four minor children, ages three to nine, were at home asleep on February 14, 2012, at approximately 6:20 a.m. Mugica was in a personal 10 relationship with Victor Luna, and he is the father of three of the children. Luna lived 11 with Mugica part of the time and was present in the Mugica residence the morning of 12 February 14, 2012. 13 Defendants arrived that morning to execute a search warrant on the Mugica 14 residence. They knew Luna was a convicted felon, and believed that he had gang ties. 15 Luna was also a suspect in a December 2011 burglary in which several firearms were 16 stolen. Defendants also had information that Mugica had a prior fourth degree assault 17 conviction. After performing a Risk Assessment, Defendants determined that a SWAT 18 team should be utilized in executing the search warrant. After allegedly performing a 19 "knock and announce," the SWAT team breached two doors to the home at the same 20 time, using a "ram strike". (ECF No. 51, ¶ 11-13). At approximately the same time, 21 Deputy Moyer broke out a basement window to the bedroom in which Luna and Mugica 22 were sleeping, and deployed a Noise-Flash Distraction Device ("NFDD"). (Id. at ¶ 13). 23 Mr. Luna was asked by two SWAT members to come to the top of the stairs. He 24 complied and was detained and handcuffed without incident. (Id. at ¶19). Ms. Mugica 25 and three of the minor children were also asked to come upstairs. They were in the 26 basement for approximately 3 minutes. In directing the young children, "SWAT 27 members were particularly reserved in their demeanor and did not yell or raise their 28 voices." (Id. at ¶¶ 20-23). The SWAT team completed their sweep of the scene in seven ORDER - 2 1 2 minutes, and left the scene at approximately 6:35 a.m. (Id. at ¶ 26-27). After SWAT cleared the scene, Detective Hixson informed Mugica that she and the 3 children were free to leave the home while the search of the residence took place. Ms. 4 Mugica declined to leave. (Id. at ¶29-30). Ms. Mugica and the children were asked to stay 5 in the living room and monitored by Detective Blashill while the search was conducted. 6 None of the Detectives or Investigators acted aggressively, spoke loudly, or intimidated 7 Ms. Mugica. (Id. at ¶33). It is undisputed that neither Ms. Mugica or any of her four 8 children suffered any physical injury during the execution of the warrant. 9 Plaintiffs dispute only three of Defendant's 35 Statements of Fact. (ECF No. 63, p. 10 9). Plaintiffs dispute that the SWAT team risk assessment "required" the use of the 11 SWAT team. Plaintiffs dispute Defendant's Statement of Fact #25 that the use of the 12 SWAT team was a "minimal intrusion", and dispute a portion of Defendant's Fact #35 13 that Ms. Mugica was "part of the investigation" into Mr. Luna's alleged criminal 14 activities. Plaintiffs also provide their own statement of 40 facts in opposition to 15 summary judgment. (ECF No. 63). 16 Plaintiffs claim the Defendants used excessive and unreasonable force when the 17 SWAT team entered the Mugica residence. Plaintiffs contend that the SWAT team Risk 18 Assessment did not take into account that small children would be present. (P's Facts ¶ 19 10). Plaintiffs also set forth facts alleging that Mr. Luna went to the grocery store in the 20 early morning hours before the SWAT raid. (P's Facts ¶ 20-22). Mr. Luna states that he 21 saw something that "looked like a tin can" come through the bedroom window, and there 22 was an "explosion inside the room". (P's Fact 25). Defendants' contend the noise flash 23 distraction device was deployed outside the bedroom window. (Deft's Fact 13). Mr. Luna 24 states that an assault rifle was pointed at him, and that he saw "red dots of light" on Ms. 25 Mugica and one of the children. (P's Fact 27 & 28). Ms. Mugica also states that she saw 26 "red dots from laser sights on herself and her children." (P's Fact 37). Defendants' 27 Statement of Facts does not directly deny that weapons were pointed at Ms. Mugica and 28 her children, although individual Defendants have filed affidavits disputing that ORDER - 3 1 allegation. Defendants' Statement of Facts claims that SWAT is trained to keep their 2 weapons in the "low ready" position (pointed at the ground), trained to never point at a 3 person unless the intent is to fire, and that only two of the officers on the SWAT team 4 had laser pointers. (Deft's Facts 15-18). There was no arrest warrant for Mr. Luna. 5 III. Discussion 6 A. Defendants' Argument for Summary Judgment 7 Defendants argue that there is no evidence of excessive force, and the individually 8 named Defendants are entitled to qualified immunity. Defendants argue the use of force 9 was objectively reasonable, and that "there was no direct physical contact, but rather a 10 show of force." (ECF No. 50, p. 7). Defendants also argue there was no unreasonable 11 detention, because Plaintiffs chose to stay in their home during the execution of the 12 search warrant. Defendants further argue that Plaintiffs have produced no evidence to 13 support the failure to train claim against Spokane County. Spokane County argues that 14 municipal liability cannot be based on one incident, and that there is no causal link 15 demonstrated between an alleged lack of training and constitutional injury. Lastly, 16 Defendants briefly argue that the state law claims must fail. Defendants argue that the 17 SWAT team conduct does not support the tort claim of outrage, and that "there is no 18 claim pursuant to Washington State law" for intentional/negligent damage to real or 19 personal property. 20 B. Plaintiffs' Argument in Opposition 21 Plaintiffs argue the force used was objectively unreasonable. Plaintiffs rely on 22 cases stating that in excessive force cases, the inquiry is often factual and summary 23 judgment should be rarely granted. Plaintiffs' factual recitation of the SWAT raid is quite 24 detailed, portraying a scene that was allegedly frightening, although Ms. Mugica admits 25 that neither she or her children suffered any physical injury. Plaintiffs argue that the need 26 to execute the search warrant, take Mr. Luna into custody without an arrest warrant was 27 "minimal, " and there was a high likelihood of injury to Plaintiffs. (ECF No. 62, p. 13). 28 As to County policy, Plaintiffs argue that the SWAT team risk assessment failed to ORDER - 4 1 properly account for the presence of young children. 2 C. Summary Judgment Standard 3 The purpose of summary judgment is to avoid unnecessary trials when there is no 4 dispute as to the material facts before the court. Northwest Motorcycle Ass'n v. U.S. Dept. 5 of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). The moving party is entitled to 6 summary judgment when, viewing the evidence and the inferences arising therefrom in 7 the light most favorable to the nonmoving party, there are no genuine issues of material 8 fact in dispute. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 9 (1986). While the moving party does not have to disprove matters on which the opponent 10 will bear the burden of proof at trial, they nonetheless bear the burden of producing 11 evidence that negates an essential element of the opposing party’s claim and the ultimate 12 burden of persuading the court that no genuine issue of material fact exists. Nissan Fire 13 & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102 (9th Cir. 2000). When the 14 nonmoving party has the burden of proof at trial, the moving party need only point out 15 that there is an absence of evidence to support the nonmoving party’s case. Devereaux v. 16 Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). Once the moving party has carried its burden, the opponent must do more than 17 18 simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. 19 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the opposing party 20 must come forward with specific facts showing that there is a genuine issue for trial. Id. Although a summary judgment motion is to be granted with caution, it is not a 21 22 disfavored remedy: “Summary judgment procedure is properly regarded not as a 23 disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a 24 whole, which are designed to secure the just, speedy and inexpensive determination of 25 every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)(citations and 26 quotations omitted). 27 // 28 ORDER - 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Qualified Immunity The Ninth Circuit recently set forth the framework for qualified immunity analysis as follows: "Government officials are not entitled to qualified immunity if: 1) the facts taken in the light most favorable to the party asserting the injury ... show that the defendants' conduct violated a constitutional right and 2) the right was clearly established at the time of the alleged injury." Sandoval v. Las Vegas Metro Police, __ F.3d __ (9th Cir. July 1, 2014) citing Saucier v. Katz, 533 U.S. 194, 201 (2001). Stated otherwise, if there is no constitutional violation or the right was not clearly established, Defendants are then entitled to qualified immunity. Whether the Defendants violated a constitutional right and whether the right was clearly established at the time of the alleged violation are questions of law. Id. E. Excessive Force The primary federal claim in this action is that use of the SWAT team to forcefully enter the Mugica residence, breaking down doors, deploying an NFDD, and pointing weapons at Mugica and her four minor children during the execution of a search warrant constituted excessive force. A show of force, such as pointing a firearm at a suspect, depending on the factual circumstances, can constitute excessive force. See Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002). The Ninth Circuit has stated: "We have held that the pointing of a gun at someone may constitute excessive force, even if it does not cause physical injury." Tekle v. United States, 511 F.3d 839, 845 (9th Cir. 2007). The use of a flash-bang distraction device can, depending on the factual circumstances, constitute excessive force. See Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004). In Boyd, the device was thrown onto a sleeping individual who suffered physical injury when the device ignited. The analysis under the Fourth Amendment is whether the use of force was reasonable. Making the reasonableness determination "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989). The reasonableness inquiry is an objective test: "whether the officers' actions ORDER - 6 1 are objectively reasonable in light of the facts and circumstances confronting them, 2 without regard to their underlying intent or motivation." Id. at 397. In determining 3 whether the force used was excessive, the court looks at the severity of the force used and 4 the need for force. Tekle v. United States, 511 F.3d 839, 844 (9th Cir. 2007). In 5 evaluating the need for force, the court may look to the severity of any crime at issue, 6 whether a suspect poses an immediate threat, and whether a suspect is actively resisting 7 or attempting to evade arrest. Id. 8 The facts in this case are disputed as to whether the SWAT team aimed their 9 firearms at Plaintiffs. Both Plaintiff Mugica and Mr. Luna have filed Declarations stating 10 that they observed red-dots from laser pointers on Ms. Mugica and the children. 11 Defendants have also filed Affidavits. Defendant L. Petersen states he did not have a 12 laser pointer on his firearm and never pointed the firearm at anyone on the morning in 13 question. (ECF No. 53). Defendant S. Bonney states he had a laser pointer, but did not 14 point his weapon at anyone, and had no physical interaction with anyone on that day 15 other than Mr. Luna. (ECF No. 54). Defendant Jeffrey Mitchell states he had no laser 16 pointer and did not point his gun at anyone. (ECF No. 55). Defendant R. Walter states he 17 did not have a laser pointer, did not point gun at anyone, and did not have contact with 18 any of the Plaintiffs during the SWAT raid. (ECF No. 56). Defendant P. Pfeifer avers he 19 did not have a laser pointer and did not point his weapon at anyone. (ECF No. 61). 20 Viewing this evidence in a light most favorable to Plaintiffs, firearms with laser pointers 21 were pointed at them at some point during the initial SWAT sweep. Defendants' assert, 22 and Plaintiffs do not dispute, that this initial SWAT sweep was completed in 23 approximately seven minutes. There is no contention by Plaintiffs that either Ms. Mugica 24 or any of her minor children were forced to the ground or handcuffed. 25 As to the use of the NFDD, Mr. Luna's Declaration states that he saw "something 26 that looked like a tin can come in through the broken window" and that he "heard an 27 explosion inside the room." (ECF No. 66, ¶ 7). Deputy Moyer stated at his deposition 28 that the NFDD was detonated at a distance of about eight feet outside the window. (ECF ORDER - 7 1 No. 52). At oral argument, Plaintiffs' counsel contended that a question of fact existed as 2 to whether the NFDD was detonated inside the bedroom. Viewing the facts in a light 3 most favorable to Plaintiff, the NFDD was deployed in the bedroom. Throwing and 4 detonating a NFDD in a bedroom where people are sleeping would constitute excessive 5 force under the circumstances of this case. 6 7 On the excessive force claim, Plaintiffs have demonstrated a dispute as to material facts and the Motion for Summary Judgment on that claim must be DENIED. 8 F. Unlawful Detention 9 Plaintiffs have failed to dispute the facts that almost immediately after SWAT 10 cleared the scene, which was approximately 7 minutes after they arrived on scene, Ms. 11 Mugica was told that she and her children could leave the home and that they were free to 12 do so. (D's Facts 26, 27, 29, 30). Plaintiffs have presented no evidence to support a claim 13 that they were unlawfully detained in violation of the Fourth Amendment. See also 14 Muehler v. Mena, 544 U.S. 93 (2005)(detention of occupant of home during execution of 15 search warrant for 2-3 hours in handcuffs was objectively reasonable). Defendants' 16 Motion for Summary Judgment on this claim is GRANTED. 17 G. Violation of Due Process 18 Plaintiffs assert a claim for violation of Due Process in paragraph 24 of the 19 Amended Complaint and allege that Defendants' actions were "arbitrary and capricious." 20 Defendants argue this claim must fail because it is undisputed that the search warrant was 21 properly issued. Plaintiffs' Response (ECF No. 62) does not explain how the Due Process 22 claim is distinct from the claims of excessive force and unlawful detention under the 23 Fourth Amendment. In reviewing an excessive force case, the Supreme Court has stated: 24 "[B]ecause the Fourth Amendment provides an explicit textual source of constitutional 25 protection...the Fourth Amendment, not the more generalized notion of substantive due 26 process, must be the guide for analyzing these claims." Graham v. Connor, 490 U.S. 386, 27 395 (1989). Additionally, a substantive due process violation is more difficult to 28 establish than an excessive force claim. The conduct in question must "shock the ORDER - 8 1 conscience" and "violate the decencies of civilized conduct." County of Sacramento v. 2 Lewis, 523 U.S. 833, 846 (1998). "Conduct intended to injure in some way unjustifiable 3 by any government interest is the sort of official action most likely to rise to the 4 conscience-shocking level." Id. at 849. The Plaintiffs' claims of excessive force and 5 unlawful detention are more appropriately analyzed under the Fourth Amendment rather 6 than the Fourteenth Amendment's due process provisions. Defendants' Motion for 7 Summary Judgment on this claim is GRANTED. 8 H. Failure to Adequately Train and Supervise 9 Spokane County, a municipality, is not liable under § 1983 for the acts of its 10 employees on the basis of respondeat superior liability. Monell v. Dept. of Social Serv., 11 436 U.S. 658, 691 (1978). A municipality is only liable if the constitutional violation is 12 the result of an official policy or custom. Id. at 694 ("It is when execution of a 13 government's policy or custom, whether made by its lawmakers or by those whose edicts 14 may fairly be said to represent official policy, inflicts the injury that the government as an 15 entity is responsible under § 1983."). 16 The Supreme Court has stated that "there are limited circumstances in which an 17 allegation of a failure to train can be the basis for liability under § 1983." City of Canton 18 v. Harris, 489 U.S. 378, 387 (1989). A claim that Spokane County failed to adequately 19 train its officers, may serve as the basis for liability "only where the failure to train 20 amounts to deliberate indifference to the rights of persons with whom the police come 21 into contact." Id. at 388. 22 The Amended Complaint does not specifically allege what policy or custom or 23 failure to train allegedly caused harm to Plaintiffs. Rather, it vaguely alleges that 24 "policies and procedures" were a "direct and proximate cause of the violations of 25 Plaintiffs' civil rights". (Am.Complt. ¶ 25). The policy/training argument made in 26 Plaintiffs' Response (ECF No. 62) appears to be that the presence of children at a 27 residence at the time of a SWAT raid was not adequately considered. Plaintiffs state: 28 "No training was provided to Deputy Hubbell that he was to give consideration to other ORDER - 9 1 alternatives for serving the warrant when it was known that young children would be 2 present during a SWAT raid." (ECF No. 62, p. 17). The fact that children would be 3 present was considered. The Risk Analysis Score Sheet utilized in determining whether 4 to use the SWAT team had the box checked that children would be present. (ECF No. 64- 5 7). The Sheriff's Office had a standard policy if children are encountered: "Children: If 6 young children are encountered and not a threat to the officers or others the officer 7 locating the young child will remain with the child to lessen the trauma and prevent the 8 child from moving around the structure/area until the structure is secure." (ECF No. 64- 9 8). The Field Operation Plan for the SWAT raid herein stated that "four children between 10 11 the ages of 3-10 years of age are residing at the residence." (ECF No. 64-8). Deputy Brett Hubbell testified that he was aware children would be present when 12 the search warrant was executed and that the presence of children was discussed at the 13 pre-raid briefing at approximately 4:30 a.m. (ECF No. 64-2). Jay McNall, a supervisory 14 Sergeant assigned to the SWAT team, testified that they considered children would be 15 present at the Mugica residence and that information impacted the Field Operation Plan. 16 He testified that when children are present they would not deploy a NFDD inside the 17 house, and they do not use "explosive breaching" or "chemical agents". (ECF No. 64-3). 18 Plaintiffs have not presented any evidence of an unconstitutional policy or custom. 19 Nor have they presented evidence that a custom or policy of the County caused the 20 alleged Constitutional violation. Plaintiffs have also failed to offer evidence to support a 21 claim that the training of the SWAT team did not consider whether children would be 22 present at the site where the warrant was to be executed. Defendants' Motion for 23 Summary Judgment as to this claim is GRANTED. 24 I. Outrage/Intentional Infliction of Emotional Distress 25 The state law tort of outrage is synonymous with intentional infliction of emotional 26 distress. The tort of outrage requires proof of three elements: 1) extreme and outrageous 27 conduct; 2) intentional or reckless infliction of emotional distress; and 3) actual result to 28 plaintiff of severe emotional distress. Kloepfel v. Bokor, 149 Wash.2d 192, 195 (2003). ORDER - 10 1 The conduct in question must be "so outrageous in character, and so extreme in degree, as 2 to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly 3 intolerable in a civilized community." Id. at 196. The tort of outrage "does not extend to 4 mere insults, indignities, annoyances, petty oppressions, or other trivialities." Id. A 5 plaintiff must be "hardened to a certain degree of rough language, unkindness and lack of 6 consideration." Id. 7 Defendants argue that Plaintiffs cannot meet this first element. "Whether conduct 8 is sufficiently outrageous is ordinarily a question for the jury, but initially it is the 9 responsibility of the court to determine if reasonable minds could differ on whether the 10 conduct was so extreme as to result in liability." Keates v. City of Vancouver, 73 11 Wash.App. 257, 263 (Wash. App. 1994). The court finds, viewing the facts in a light 12 most favorable to Plaintiffs, that a reasonable jury could find that Defendants' conduct 13 was so extreme and outrageous as to support the tort claim of outrage. In a light most 14 favorable to Plaintiffs, nearly 20 law enforcement officers, armed with firearms (some 15 with laser pointers), breached two doors of the Mugica residence with battering rams in 16 the pre-dawn hours, threw or exploded the NFDD device in the bedroom, and aimed 17 firearms at four children between the ages of 3 and 10, all in aid of a search warrant for 18 stolen property. 19 Defendants' Motion for Summary Judgment on this claim is DENIED. 20 J. Damage to Real and Personal Property 21 Plaintiffs allege that Defendants "intentionally, recklessly, and or negligently 22 caused damage to personal and real property of Plaintiff Erica Mugica." (Am. Complt. ¶ 23 27). Defendants contend that such a claim does not exist under Washington state law. 24 (ECF No. 50, p. 19). Plaintiffs do not directly respond to the argument that there is no 25 such cause of action, but state in Response that the home was "severely damaged" (ECF 26 No. 62, p. 6). It appears that two doors were breached, and a window was broken. 27 28 At oral argument, defense counsel agreed that if Plaintiffs prevail on the excessive force claim, they could recover property damage as part of that claim. Courts considering ORDER - 11 1 this issue have found that on some occasions property damage is unavoidable during the 2 execution of a warrant, but where it is excessive or unnecessary it is compensable. See 3 Liston v. County of Riverside, 120 F.3d 965, 979 (9th Cir. 1997)("officers executing a 4 search warrant occasionally must damage property in order to perform their duty.") citing 5 Dalia v. United States, 441 U.S. 238, 258 (1979); United States v. Ramirez, 523 U.S. 65, 6 71 (1998)("Excessive or unnecessary destruction of property in the course of a search 7 may violate the Fourth Amendment..."). Defendants' Motion for Summary Judgment on 8 this claim is DENIED 9 10 11 IT IS HEREBY ORDERED: 1. Defendants' Motion for Summary Judgment (ECF No. 50) is GRANTED IN PART AND DENIED IN PART as set forth herein. 12 2. The final Pretrial Conference is set for August 28, 2014, at 11:00 a.m. 13 3. The jury trial remains set for September 9, 2014. The other pretrial deadlines 14 15 16 17 are as set in this court's prior Order (ECF No. 44). IT IS SO ORDERED. The Clerk is hereby directed to enter this Order and furnish copies to counsel. DATED this 19th day of August, 2014. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER - 12

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