-RJJ Perez-Morciglio et al v. Las Vegas Metropolitan Police Department et al, No. 2:2010cv00899 - Document 120 (D. Nev. 2011)
Court Description: ORDER Granting in part and denying in part 81 Defednants' Motion for Summary Judgment. IT IS FURTHER ORDERED that 112 Plaintiffs' Counter-Motion for Summary Judgment is DENIED. IT IS FURTHER ORDERED that 104 Plaintiffs' Motion for Leave to File Excess Pages is GRANTED. Signed by Judge Philip M. Pro on 10/25/11. (Copies have been distributed pursuant to the NEF - EDS)
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-RJJ Perez-Morciglio et al v. Las Vegas Metropolitan Police Department et al Doc. 120 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 12 13 14 15 16 17 *** ) JASON A. PEREZ-MORCIGLIO and ) SEBASTIAN PEREZ-MORCIGLIO, ) ) Plaintiffs, ) ) v. ) ) LAS VEGAS METROPOLITAN POLICE ) DEPARTMENT; SHERIFF DOUGLAS ) GILLESPIE; SERGEANT KENDALL ) BELL; OFFICER T. SCOTT; OFFICER S. ) SCHAIER; LAS VEGAS SANDS ) CORPORATION; VENETIAN CASINO ) RESORT, LLC; ELI CASTRO; LINDA ) HAGENMAIER; RON HICKS; ) WILLIAM LOVEGREN; ANTHONY ) BRONSON; KEVIN NEANOVER; KIM ) GORMAN; PAUL TANNER; and TONY ) WHIDDON, ) ) Defendants. ) ) 2:10-CV-00899-PMP-RJJ ORDER Presently before the Court is Defendants Las Vegas Metropolitan Police 18 19 Department, Doug Gillespie, Officer Terry Scott, and Officer Scott Schaier’s (“LVMPD 20 Defendants”) Motion for Summary Judgment (Doc. #81), filed on May 23, 2011. Plaintiffs 21 filed an Opposition (Doc. #105) and Counter-Motion for Summary Judgment (Doc. #112) 22 on July 14, 2011. Defendants filed a Reply (Doc. #111) and Opposition (Doc. #113) on 23 August 12, 2011. Plaintiffs filed a Reply (Doc. #116) on September 6, 2011. The Court 24 held a hearing on these motions on September 27, 2011. (Mins. of Proceedings (Doc. 25 #118).) 26 /// Dockets.Justia.com 1 2 I. BACKGROUND The Court set forth the facts in this matter in an Order filed concurrently herewith 3 and the Court will not repeat them here except where necessary. Plaintiffs filed suit in this 4 Court, asserting claims against the LVMPD Defendants for violation of the First 5 Amendment (count one), violation of the Fourth and Fourteenth Amendments for unlawful 6 arrest (count two), violation of the Fourth and Fourteenth Amendments for unreasonable 7 search and seizure (count three), conspiracy to violate constitutional rights (count five), 8 violation of substantive due process under the Fourteenth Amendment (count six), and 9 violation of procedural due process under the Fourteenth Amendment (count seven). 10 LVMPD Defendants now move for summary judgment on all claims against them. 11 Plaintiffs oppose the motion and counter-move for summary judgment. 12 As an initial matter, LVMPD Defendants object to the Court considering 13 Plaintiffs’ Counter-Motion for Summary Judgment as untimely. The Court will not 14 consider Plaintiffs’ Counter-Motion. Plaintiffs did not timely file the motion, this Court 15 previously denied Plaintiffs’ request to extend the dispositive motion deadline (Doc. #79), 16 and Plaintiffs filed the Counter-Motion without leave of the Court. 17 II. LEGAL STANDARD 18 Summary judgment is appropriate if the pleadings, the discovery and disclosure 19 materials on file, and any affidavits show that “there is no genuine dispute as to any 20 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 21 56(a), (c). A fact is “material” if it might affect the outcome of a suit, as determined by the 22 governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An 23 issue is “genuine” if sufficient evidence exists such that a reasonable fact finder could find 24 for the non-moving party. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th 25 Cir. 2002). Initially, the moving party bears the burden of proving there is no genuine issue 26 of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). After the 2 1 moving party meets its burden, the burden shifts to the non-moving party to produce 2 evidence that a genuine issue of material fact remains for trial. Id. The Court views all 3 evidence in the light most favorable to the non-moving party. Id. 4 III. DISCUSSION To establish liability under § 1983, a plaintiff must allege the violation of a right 5 6 secured by the Constitution and laws of the United States, and must show that the alleged 7 deprivation was committed by a person acting under color of state law. Broam v. Bogan, 8 320 F.3d 1023, 1028 (9th Cir. 2003). To allay the “risk that fear of personal monetary 9 liability and harassing litigation will unduly inhibit officials in the discharge of their 10 duties,” government officials performing discretionary functions may be entitled to 11 qualified immunity for claims made under § 1983. Anderson v. Creighton, 483 U.S. 635, 12 638 (1987). Qualified immunity protects “all but the plainly incompetent or those who 13 knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling on a 14 qualified immunity defense, a court considers whether the facts alleged show the 15 defendant’s conduct violated a constitutional right. Sorrels v. McKee, 290 F.3d 965, 969 16 (9th Cir. 2002). In making this determination, the court views the facts alleged in the light 17 most favorable to the party asserting the injury. Id. If the plaintiff has alleged the 18 defendant violated a constitutional right, the court then must determine whether that right 19 was clearly established.1 Id. A right is clearly established if “‘it would be clear to a reasonable officer that his 20 21 conduct was unlawful in the situation he confronted.’” Wilkins v. City of Oakland, 350 22 F.3d 949, 954 (9th Cir. 2003) (emphasis omitted) (quoting Saucier v. Katz, 533 U.S. 194, 23 24 1 25 26 Under Saucier v. Katz, courts previously were required to address whether the plaintiff established a constitutional violation before addressing whether the right was clearly established. 533 U.S. 194 (2001). However, the Saucier two-step procedure is no longer mandatory, and courts may consider the second step first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 3 1 202 (2001)). The court should make this second inquiry “in light of the specific context of 2 the case, not as a broad general proposition.” Saucier, 533 U.S. at 200. An officer will be 3 entitled to qualified immunity even if he was mistaken in his belief that his conduct was 4 lawful, so long as that belief was reasonable. Wilkins, 350 F.3d at 955. The plaintiff bears 5 the burden of showing that the right at issue was clearly established. Sorrels, 290 F.3d at 6 969. But a plaintiff need not establish a court previously declared the defendant’s behavior 7 unconstitutional if it would be clear from prior precedent that the conduct was unlawful. 8 Blueford v. Prunty, 108 F.3d 251, 254 (9th Cir. 1997). Additionally, a plaintiff may meet 9 his burden on the clearly established prong by showing the defendant’s conduct was “such a 10 far cry from what any reasonable . . . official could have believed was legal that the 11 defendants knew or should have known they were breaking the law.” Sorrels, 290 F.3d at 12 971. 13 The parties do not dispute that LVMPD Defendants acted under color of law. 14 The only remaining questions are whether LVMPD Defendants violated Plaintiffs’ 15 constitutional rights, whether Scott and Schaier are entitled to qualified immunity, whether 16 Defendant Sheriff Gillespie personally participated in any violations, and whether 17 municipal liability exists. 18 A. First Amendment - Count One 19 LVMPD Defendants argue they are entitled to summary judgment on Plaintiffs’ 20 First Amendment claim because they did not personally participate in removing Plaintiffs 21 from the sidewalk, they never told Plaintiffs they could not engage in free speech on the 22 sidewalk, and they did not arrest or cite Plaintiffs for being on the sidewalk. Defendants 23 Scott and Schaier also contend they are entitled to qualified immunity. Plaintiffs respond 24 that they have presented evidence raising a genuine issue of material fact that LVMPD 25 Defendants’ conduct would deter and chill free speech because the officers backed up the 26 Venetian’s position, did not clarify whether Plaintiffs could be on the sidewalk, improperly 4 1 warned Plaintiffs about returning to the property, and threatened them with arrest if they did 2 so. Plaintiffs also argue Scott and Schaier are not entitled to qualified immunity because a 3 reasonable officer would know the officers’ conduct was unlawful. To establish a First Amendment claim, a plaintiff must show the defendant 4 5 “deterred or chilled” the plaintiff’s speech and “such deterrence was a substantial or 6 motivating factor in [the defendant’s] conduct.” Menotti v. City of Seattle, 409 F.3d 1113, 7 1155 (9th Cir. 2005) (quotation omitted). For the first element, a plaintiff need not show 8 his speech actually was deterred. Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 9 1283, 1300 (9th Cir. 1999). Rather, the plaintiff must show only that the defendant’s acts 10 would “chill or silence a person of ordinary firmness from future First Amendment 11 activities.” Id. (quotation omitted). The second element may be established through direct 12 or circumstantial evidence. Id. at 1300-01. A reasonable jury could find that a person of ordinary firmness would be 13 14 deterred from future First Amendment activities by LVMPD Defendants handcuffing 15 Plaintiffs, searching them, detaining them, threatening arrest if Plaintiffs returned to the 16 Venetian, and issuing a misdemeanor warning. Although LVMPD Defendants contend 17 Scott and Schaier never told Plaintiffs they could not return to the sidewalk, the police 18 officers never clarified for Plaintiffs where they lawfully could be. Instead, the police 19 officers advised Plaintiffs that if they came back to Venetian property they would be 20 arrested, despite Plaintiffs’ continued protestations that they were on a public sidewalk. 21 Instead, Scott and Schaier warned Plaintiffs not to come back and read them a misdemeanor 22 warning even though Plaintiffs had not trespassed and even though LVMPD policy did not 23 support giving the warning under the circumstances. A reasonable jury could find that a 24 threat of arrest would chill a person of ordinary firmness and in fact chilled Plaintiffs, as 25 both testified they were fearful to return to the Venetian sidewalk. 26 /// 5 1 However, Plaintiffs fail to present evidence raising a genuine issue of material 2 fact that chilling Plaintiffs’ First Amendment rights was a substantial or motivating factor 3 of the police officers’ conduct. Plaintiffs present the following evidence which they 4 contend shows motive: (1) LVMPD has a history of intentionally applying inapplicable 5 laws to street performers to keep them off the Las Vegas Strip sidewalks, and (2) an 6 LVMPD sergeant who is not a party to this case made a public statement reflecting animus 7 towards street performers. 8 9 For the first proposition, Plaintiffs cite several declarations by other street performers who aver they have been harassed by LVMPD officers. None of these 10 individuals identify Scott or Schaier as being involved in these incidents. The fact that 11 some other officers may harass street performers does not raise an issue of fact that Schaier 12 or Scott acted with the intent to chill Plaintiffs’ First Amendment rights. Additionally, the 13 record reflects other incidents where LVMPD officers have supported street performers, 14 including Jason, against attempts to have them trespassed from the sidewalk on the Strip. 15 Scott testified he refused to trespass an individual based on a casino security guard’s 16 complaint. Plaintiffs present no evidence that either Scott or Schaier ever has expressed 17 hostility towards street performers on the Strip. 18 Plaintiffs also cite Banasik v. Clark Cnty., 2:09-CV-1242-LDG-GWF (D. Nev. 19 2009), in which LVMPD was accused of harassing street performers by enforcing 20 non-applicable laws against them. That case was resolved by settlement, and there was no 21 finding or admission of such harassment on LVMPD’s part. Scott and Schaier were not 22 identified in that action as officers who engaged in any such alleged harassing conduct. 23 Banasik therefore does not raise an issue of fact that LVMPD, Scott, or Schaier have a 24 history of harassing street performers. 25 26 For the second proposition, Plaintiffs cite a June 2, 2011 newspaper article which quoting LVMPD Sergeant Tom Jenkins (“Jenkins”) as referring to the street performers as 6 1 “freaks and felons” and contending street performers have contributed to the decline of the 2 atmosphere on the Strip. (Opp’n to LVMPD MSJ, Ex. 24.) Jenkins’ statement is not 3 admissible and, in any event, does not raise a genuine issue of material fact regarding 4 whether Scott and Schaier acted with the requisite intent. Jenkins’ statement is hearsay and 5 Plaintiffs have not argued or shown an exception applies. Even if admissible, Jenkins’ 6 statement sheds light on Jenkins’ opinions regarding street performers, not the opinions or 7 motivations of Scott or Schaier. That one LVMPD officer expresses these views does not 8 brand every LVMPD officer with those opinions. No reasonable jury could find Defendants Scott and Schaier acted with the intent 9 10 to chill or deter Plaintiffs’ First Amendment rights. Consequently, the Court will grant 11 summary judgment in favor of LVMPD Defendants Scott and Schaier on count one. 12 B. Fourth Amendment Unlawful Arrest - Count Two 13 LVMPD Defendants argue they did not arrest Plaintiffs, rather they properly 14 conducted a brief investigatory detention. Plaintiffs respond that LVMPD Defendants 15 arrested them and had no probable cause to arrest. A claim for unlawful arrest is “cognizable under § 1983 as a violation of the 16 17 Fourth Amendment, provided the arrest was without probable cause or other justification.” 18 Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964-65 (9th Cir. 2001). An arrest occurs 19 when the encounter between the individual and the police “may be sufficiently constrictive 20 to cause the average person, innocent of crime, to reasonably think that he was being 21 arrested.” United States v. Beck, 598 F.2d 497, 500 (9th Cir. 1979) (footnote omitted). 22 Whether a person has been arrested “depends on an evaluation of all the surrounding 23 circumstances.” Id. at 500-01 (quotation omitted). A “significant consideration is the 24 extent that freedom of movement is curtailed.” Id. Additionally, the Court considers the 25 “degree and manner of force used in the stop and detention.” Id. 26 /// 7 1 While handcuffing an individual is a “substantial factor in determining whether 2 an individual has been arrested . . . handcuffing alone is not determinative.” United States 3 v. Bravo, 295 F.3d 1002, 1010 (9th Cir. 2002). “Neither handcuffing a suspect nor 4 relocating a suspect automatically turns a detention into an arrest where these actions are 5 reasonably taken for safety and security purposes.” United States v. $109,179 in U.S. 6 Currency, 228 F.3d 1080, 1085 (9th Cir. 2000). Additionally, although an officer cannot 7 turn an arrest into an investigatory detention merely by calling it an investigatory detention, 8 a factor to consider as part of the totality of circumstances may include whether the officer 9 informed the individual that handcuffing or detention would cease once the officers 10 conducted an investigation if they determined no crime had occurred. United States v. 11 Johnson, 581 F.3d 994, 999 (9th Cir. 2009) (considering as a factor that officers told 12 suspects the detention “might be nothing more than a misunderstanding and that its purpose 13 was merely investigatory”); Bravo, 295 F.3d at 1011 (considering as one factor that the 14 officer told the individual the handcuffs were temporary for safety reasons and would be 15 removed upon reaching the security office, and the officer removed the handcuffs upon 16 reaching the security office). 17 An arrest generally must be supported by probable cause. Dubner, 266 F.3d at 18 964-65. Probable cause exists if, at the moment of arrest, “under the totality of the 19 circumstances known to the arresting officers (or within the knowledge of the other officers 20 at the scene), a prudent person would believe the suspect had committed a crime.” 21 Blankenhorn v. City of Orange, 485 F.3d 463, 471-72 (9th Cir. 2007) (quotation omitted). 22 To establish probable cause, an officer “‘may not solely rely on the claim of a citizen 23 witness . . ., but must independently investigate the basis of the witness’ knowledge or 24 interview other witnesses.’” United States v. Struckman, 603 F.3d 731, 742 (9th Cir. 2010) 25 (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)). 26 The plaintiff bears the burden of proving the absence of probable cause. Beck v. City of 8 1 2 Upland, 527 F.3d 853, 864 (9th Cir. 2008). The parties do not dispute the basic facts relating to whether LVMPD Defendants 3 arrested Plaintiffs or whether the seizure amounted only to an investigatory detention. 4 Because the parties agree on the historical facts and the applicable rule of law is undisputed, 5 this mixed question of law and fact is for the Court. See In re Bammer, 131 F.3d 788, 791- 6 92 (9th Cir. 1997). 7 Viewing the facts under the totality of the circumstances, there was an arrest. 8 Although Scott and Schaier did not remove Plaintiffs from the sidewalk, an average person, 9 innocent of crime, reasonably would believe that he was being arrested where the police 10 officers continued the detention of Plaintiffs who were the subject of a citizen’s arrest by 11 Venetian security guards and there appeared to be merely a transfer of custody upon the 12 police officers’ initial arrival. Prior to speaking to Plaintiffs, the officers searched 13 Plaintiffs, placed Plaintiffs in their own handcuffs, and at least initially told Jason that the 14 Venetian had the right to detain and search Plaintiffs for trespassing on Venetian property. 15 There is no evidence Scott or Schaier advised Plaintiffs they were being handcuffed for 16 safety reasons or that the detention and handcuffing would be temporary while the officers 17 investigated the situation. LVMPD Defendants kept Plaintiffs in handcuffs even though 18 Plaintiffs were calm and compliant, did not resist, made no attempt to flee, and were 19 confined in a security office with two police officers and several Venetian security officers. 20 Under these circumstances, a reasonable person, innocent of crime, would believe they were 21 under arrest. 22 As to whether probable cause existed for the arrest, there are discrepancies in the 23 evidence which raise issues of fact relating to (1) when Scott and Schaier searched 24 Plaintiffs in relation to when they talked to Venetian security personnel, (2) whom Scott and 25 Schaier talked to upon first arriving, and (3) when Scott and Schaier determined Plaintiffs 26 had not committed a crime. As to the timing of the search, Schaier testified he placed the 9 1 handcuffs on Plaintiffs prior to talking to the Venetian security manager. (LVMPD MSJ, 2 Ex. D at 45-46.) However, Scott testified he first spoke with Venetian security personnel 3 and the video from the security holding room suggests the police officers spoke at least 4 briefly with Venetian personnel prior to conducting the search and changing out the 5 handcuffs. (Id., Ex. C at 63; Notice of Manual Filing.) As to whom the police officers 6 spoke with, Scott testified he spoke to the security manager and at least one other uniformed 7 security officer. (LVMPD MSJ, Ex. C at 64.) In contrast, Schaier testified he remembered 8 talking to only one person, the security manager. (Id., Ex. D at 47.) However, later in his 9 testimony Schaier stated that he ensured the person with whom he was talking had been 10 present at the scene of the incident. (Id. at 73.) Viewing the facts in the light most favorable 11 to Plaintiffs, a reasonable jury could find the police officers talked only to the manager, 12 who was not on the scene of the incident and was not an eyewitness to the events, and thus 13 lacked personal knowledge as to where the incident occurred. 14 As to when Scott and Schaier determined Plaintiffs had committed no crime, 15 Schaier testified that after talking with the Venetian security manager, he determined no 16 crime had been committed. (LVMPD MSJ, Ex. D at 51.) Scott likewise testified that upon 17 hearing the Venetian security officers’ description of the incident with Sebastian, Scott 18 concluded Sebastian had not committed a battery when Sebastian approached the Venetian 19 security guards on the sidewalk with a cigarette and soda bottle. (Id., Ex. C at 82-83.) Scott 20 testified that he informed the security officers of this conclusion in the initial conversation 21 between the police officers and Venetian security personnel. (Id.) Consequently, a 22 reasonable jury could find LVMPD Defendants searched and handcuffed Plaintiffs either 23 prior to conducting any investigation, or after consulting with the complaining party and 24 concluding Plaintiffs had not committed a crime. Either way, a reasonable jury could find 25 LVMPD Defendants arrested Plaintiffs without probable cause. 26 /// 10 1 Plaintiffs thus have raised an issue of fact that LVMPD Defendants violated their 2 Fourth Amendment right to be free from unlawful arrest. Viewing the evidence in the light 3 most favorable to Plaintiffs, Plaintiffs also have established their rights were clearly 4 established such that a reasonable officer would know he was arresting Plaintiffs without 5 probable cause under the facts and circumstances in the present case. No reasonable officer 6 would believe he could arrest a person accused of trespass and/or battery without 7 conducting any investigation at all. Alternatively, no reasonable officer would believe he 8 could arrest someone after he has determined no crime has been committed. Factual issues 9 remain as to what information Scott and Schaier relied upon to make the arrest and at what 10 point they determined no probable cause existed. These factual disputes relating to the 11 existence of probable cause are intertwined with the qualified immunity inquiry, and 12 genuine issues of material fact therefore remain on the question of qualified immunity on 13 count two. The Court therefore will deny LVMPD Defendants’ Motion for Summary 14 Judgment on count two. 15 C. Fourth Amendment Unreasonable Search & Seizure - Count Three 16 LVMPD Defendants argue they properly conducted a brief investigatory 17 detention and Plaintiffs consented to the searches. Plaintiffs respond by arguing the officers 18 knew Plaintiffs had committed no legal wrong, yet continued to detain them in handcuffs 19 and search them. Plaintiffs argue there is no evidence Sebastian consented to the search 20 and Jason’s consent was invalid because he was under duress. Plaintiffs further argue 21 LVMPD Defendants had no reasonable suspicion that Plaintiffs were armed and dangerous 22 to support the searches. 23 24 1. Seizure - Investigatory Stop Police officers may make “limited intrusions on an individual’s personal security 25 based on less than probable cause.” Michigan v. Summers, 452 U.S. 692, 698 (1981). An 26 officer briefly may detain a suspect to maintain the status quo while investigating criminal 11 1 activity. Id. (citing Adams v. Williams, 407 U.S. 143 (1972)). Such detentions may be 2 made on less than probable cause, “so long as police have an articulable basis for suspecting 3 criminal activity.” Id. at 699. To determine whether a seizure is permissible on less than probable cause, “it is 4 5 necessary to examine both the character of the official intrusion and its justification.” Id. at 6 701. The Court uses the objective reasonableness test of the Fourth Amendment to 7 determine whether the seizure was unreasonable. Graham v. Connor, 490 U.S. 386, 395 8 (1989). Under this test, the Court balances “the nature and quality of the intrusion on the 9 individual’s Fourth Amendment interests against the countervailing governmental interests 10 at stake.” United States v. Enslin, 327 F.3d 788, 796 (9th Cir. 2003) (quotation omitted). 11 Among the factors to consider are the severity of the crime at issue, whether the suspect 12 posed an immediate threat to safety, and whether the suspect actively resisted arrest or fled. 13 Graham, 490 U.S. at 396. The inquiry is fact specific, based on a totality of the 14 circumstances. United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008). An investigative detention “must be temporary and last no longer than is 15 16 necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 17 (1983). Additionally, “the investigative methods employed should be the least intrusive 18 means reasonably available to verify or dispel the officer’s suspicion in a short period of 19 time.” Id. Consequently, to determine whether a seizure is unreasonable, the Court 20 considers both “whether the officer’s action was justified at its inception, and whether it 21 was reasonably related in scope to the circumstances which justified the interference in the 22 first place.” Terry v. Ohio, 392 U.S. 1, 19-20 (1968). The government bears the burden of 23 showing that “the seizure it seeks to justify on the basis of a reasonable suspicion was 24 sufficiently limited in scope and duration to satisfy the conditions of an investigative 25 seizure.” Royer, 460 U.S. at 500. 26 /// 12 1 Viewing the facts in the light most favorable to Plaintiffs, genuine issues of fact 2 remain as to whether the seizure was justified at its inception, and whether it was 3 reasonably related to the circumstances which justified the interference in the first place. 4 With respect to whether the seizure was justified at its inception, a reasonable jury could 5 find Scott and Schaier lacked reasonable suspicion to support an investigatory detention for 6 the same reasons discussed above with respect to probable cause. Further, viewing the facts 7 in the light most favorable to Plaintiffs, a reasonable jury also could find that even if the 8 seizure was justified at its inception, the seizure was not sufficiently limited in scope or 9 duration. Scott and Schaier received a call for a trespass, thus the crime at issue was not 10 serious. A reasonable jury could find neither Jason nor Sebastian posed an immediate threat 11 to safety, as both already were detained by Venetian security officers, were in handcuffs, 12 and Jason was seatbelted to a bench in the security office. There was no evidence Jason or 13 Sebastian fled or resisted arrest. The security officers suggested they feared Sebastian was 14 going to batter them with the bottle in his hand and that is why they put him in handcuffs, 15 but the security officers never contended Sebastian actually struck them, attempted to strike 16 them, or threatened to strike them. The police officers quickly determined there was no 17 battery. The governmental interests at stake thus were very low. 18 A reasonable jury could find the intrusion on Plaintiffs’ Fourth Amendment 19 rights was substantial. Upon arrival, Scott and Schaier continued the detention initiated by 20 the Venetian security officers, searched Plaintiffs, and replaced the Venetian handcuffs with 21 their own. Scott and Schaier left Plaintiffs in handcuffs after a search had revealed no 22 weapons or evidence of other criminal behavior, after Plaintiffs had complied with every 23 command, and after the police officers already had decided they would not pursue criminal 24 charges against Plaintiffs. A reasonable jury thus could conclude the detention of Plaintiffs, 25 including the initial and continued use of handcuffs, was unreasonable. Meredith v. Erath, 26 342 F.3d 1057, 1063 (9th Cir. 2003) (holding an officer violated the Fourth Amendment 13 1 where the officer handcuffed an individual during a search where he had no reason to 2 suspect the occupants of the home to be searched were dangerous, the crime at issue was a 3 non-violent tax crime, and the handcuffed individual did not impede the search, threaten the 4 officer, or attempt to flee). 5 Plaintiffs have raised an issue of fact as to whether LVMPD Defendants violated 6 their Fourth Amendment rights against unreasonable seizures. Plaintiffs also have 7 established their rights were clearly established. No reasonable officer would believe he 8 could handcuff an individual without conducting any investigation or after determining the 9 individual had not committed any crime. Moreover, no reasonable officer would believe he 10 could handcuff an individual during an investigatory detention where he had no reason to 11 suspect the individual was dangerous; the crime at issue was non-violent; and the 12 handcuffed individual did not impede the search, threaten the officer, or attempt to flee. 13 Meredith, 342 F.3d at 1063. 14 Genuine issues of fact remain for trial regarding the reasonableness of LVMPD 15 Defendants’ seizure of Plaintiffs and the related question of whether Scott and Schaier are 16 entitled to qualified immunity. The Court therefore will deny LVMPD Defendants’ Motion 17 for Summary Judgment as to the seizure aspect of count three. 18 2. Search a. Consent 19 20 Consent to a search is an exception to the Fourth Amendment’s prohibition of 21 unreasonable searches. Enslin, 327 F.3d at 793. “However, the consent must be voluntary, 22 not a mere submission to an assertion of authority.” Id. The government bears the burden 23 of proving that the searched individual freely and voluntarily consented to the search. 24 Royer, 460 U.S. at 497. 25 26 LVMPD Defendants are not entitled to summary judgment on consent as to Sebastian. It is Defendants’ burden to prove consent, and the record is unclear as to 14 1 whether Sebastian consented. Sebastian testified he does not remember giving consent. 2 Defendants point to no other evidence showing Sebastian consented, or that he did so freely 3 and voluntarily. Viewing the facts in the light most favorable to Plaintiffs, a genuine issue 4 of fact remains as to Sebastian’s consent. A genuine issue of fact remains on Jason’s consent as well. Jason admits he 5 6 consented to be searched, however Jason testified he did not consent voluntarily but just 7 submitted to a show of authority. (Opp’n to LVMPD MSJ, Ex. 6 at 225-26.) Jason was 8 detained and in handcuffs when Scott and Schaier arrived and began issuing orders to him, 9 including to stand up and spread his legs. Viewing the facts in the light most favorable to 10 Plaintiffs, a reasonable jury could find LVMPD Defendants have not met their burden of 11 showing Jason voluntarily consented rather than submitted to authority. As to qualified 12 immunity, no reasonable officer would believe he could justify a search based on consent 13 where that consent either is not given at all or is not freely and voluntarily given. Because 14 the qualified immunity inquiry is entwined with the merits, genuine issues of fact remain as 15 to whether Scott and Schaier are entitled to qualified immunity. The Court therefore will 16 deny LVMPD Defendants’ Motion for Summary Judgment on the search aspect of count 17 three. 18 19 b. Frisk for Weapons An officer may perform a search for weapons for the officer’s protection “where 20 he has reason to believe that he is dealing with an armed and dangerous individual, 21 regardless of whether he has probable cause to arrest the individual for a crime.” Terry, 392 22 U.S. at 27. To determine whether such a search is reasonable, the question is “whether a 23 reasonably prudent man in the circumstances would be warranted in the belief that his 24 safety or that of others was in danger.” Id. 25 26 Viewing the facts in the light most favorable to Plaintiffs on LVMPD Defendants’ Motion, genuine issues of material fact remain as to whether LVMPD 15 1 Defendants were justified in searching Plaintiffs. LVMPD Defendants argue they had 2 reasonable suspicion that Jason was armed because Jason had been carrying prop swords. 3 Certainly issues regarding officer and public safety must be considered carefully in every 4 such encounter, and this Court has considered it here. However, even assuming the prop 5 weapons could support reasonable suspicion Jason possessed a real weapon, the officers 6 also must have reasonable suspicion Jason posed an immediate threat to their safety or the 7 safety of others to support a frisk for weapons. A reasonable jury could find Scott and 8 Schaier had no reasonable suspicion Jason posed an immediate threat to anyone’s safety. 9 The officers were called out for a trespass. Jason was handcuffed and seatbelted to a bench 10 when the officers arrived. Jason made no threatening moves and made no verbal threats. 11 As to Sebastian, LVMPD Defendants identify no evidence supporting a reasonable 12 suspicion he was armed. Like Jason, Sebastian was handcuffed and calm when the officers 13 arrived. In sum, a reasonable jury could find LVMPD Defendants had no reasonable 14 suspicion that Plaintiffs were armed and/or posed a threat to anyone sufficient to justify the 15 pat down search. 16 Plaintiffs have presented evidence raising an issue of fact that LVMPD 17 Defendants violated their Fourth Amendment rights against unreasonable searches. Further, 18 Plaintiffs have met their burden of establishing their rights were clearly established, as the 19 law long has required police officers to have reasonable suspicion that the individual to be 20 frisked is both armed and dangerous. Because the qualified immunity inquiry is intertwined 21 with the merits, genuine issues of fact remain as to whether Scott and Schaier are entitled to 22 qualified immunity. The Court therefore will deny Defendants’ Motion for Summary 23 Judgment to the extent it seeks to support the searches on the basis of a valid frisk for 24 weapons. 25 /// 26 /// 16 1 D. Conspiracy - Count Five 2 As discussed in the Court’s other Order in this case entered contemporaneously 3 herewith, Plaintiffs fail to raise a genuine issue of material fact supporting a conspiracy 4 claim. The Court therefore will grant Defendants’ Motion for Summary Judgment and will 5 deny Plaintiffs’ Counter-Motion for Summary Judgment on count five. 6 E. Due Process - Counts Six & Seven 7 LVMPD Defendants argue they are entitled to summary judgment on the due 8 process claims because there is no substantive due process claim where Plaintiffs’ claims 9 are more readily addressed by explicit constitutional amendments. LVMPD Defendants 10 argue there is no procedural due process violation because Scott and Schaier let Plaintiffs 11 explain their side of the story, resulting in no arrest or citation. Plaintiffs argue they have a 12 substantive due process right to “free movement” independent of the First and Fourth 13 Amendments and LVMPD Defendants’ conduct shocks the conscience because they 14 endorsed the Venetian Defendants kidnapping Plaintiffs. As to procedural due process, 15 Plaintiffs contend LVMPD Defendants’ procedures are inadequate and result in erroneous 16 deprivations of constitutional rights. 17 18 1. Substantive Due Process - Count Six Where the court can analyze a § 1983 plaintiff’s claim “under an explicit textual 19 source of rights in the Constitution, a court should not resort to the more subjective standard 20 of substantive due process.” Hufford v. McEnaney, 249 F.3d 1142, 1151 (9th Cir. 2001) 21 (quotation omitted). Here, however, Plaintiffs’ substantive due process claim does not rest 22 on their First or Fourth Amendment rights. Rather, Plaintiffs claim a right of free 23 movement under the Fourteenth Amendment. “Citizens have a fundamental right of free 24 movement, historically part of the amenities of life as we have known them.” Nunez by 25 Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997) (quotation omitted). This 26 includes “the freedom to loiter for innocent purposes” as “part of the ‘liberty’ protected by 17 1 the Due Process Clause of the Fourteenth Amendment.” City of Chic. v. Morales, 527 U.S. 2 41, 53 (1999) (plurality opinion). While LVMPD Defendants argue Plaintiffs’ substantive 3 due process claim raises the same issues as their First and Fourth Amendment claims, 4 Plaintiffs’ substantive due process claim does not depend on either a First or Fourth 5 Amendment violation. Rather, Plaintiffs contend that because LVMPD Defendants 6 threatened Plaintiffs with arrest if they returned to the Venetian and did not clarify whether 7 this included the public sidewalk, LVMPD Defendants violated Plaintiffs’ free movement 8 rights. The Court therefore will analyze this claim as a substantive due process claim. 9 To establish a substantive due process violation, a plaintiff must show the 10 defendant deprived him of his life, liberty, or property and engaged in “conscience shocking 11 behavior.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). An official’s conduct 12 may shock the conscience where the official acts with the purpose to harm in a rapidly 13 evolving situation, or where he acts with deliberate indifference or reckless disregard for 14 the plaintiff’s rights in situations where the official had the opportunity to deliberate. 15 Tennison v. City & Cnty. of S.F., 570 F.3d 1078, 1089 (9th Cir. 2009); Porter v. Osborn, 16 546 F.3d 1131, 1137-39 (9th Cir. 2008). Deliberate indifference requires “an objective risk 17 of harm and a subjective awareness of that harm.” Tamas v. Dep’t of Soc. & Health Servs., 18 630 F.3d 833, 844 (9th Cir. 2010). 19 Plaintiffs have raised a genuine issue of material fact that LVMPD Defendants 20 deprived Plaintiffs of their liberty. Freedom of movement and to loiter for innocent 21 purposes are liberty interests protected by the Fourteenth Amendment. Viewing the facts in 22 the light most favorable to Plaintiffs, a reasonable jury could find LVMPD Defendants 23 deprived Plaintiffs of this right when they issued the misdemeanor warning to Plaintiffs and 24 advised Plaintiffs they could not return to the Venetian without clarifying whether Plaintiffs 25 could access the public sidewalk. A reasonable jury could find Plaintiffs attempted to 26 clarify the issue but were never given a clear answer by LVMPD Defendants whether they 18 1 would be arrested if they returned to the sidewalk in front of the Venetian. Plaintiffs 2 offered evidence they did not return to the Venetian sidewalk for fear of being arrested. 3 As to whether the officers’ conduct shocks the conscience, Scott and Schaier had 4 time to deliberate, and thus their conduct could shock the conscience if they acted with 5 deliberate indifference or in reckless disregard of Plaintiffs’ rights. This is a close question 6 which ultimately will depend upon credibility determinations by the trier of fact. However, 7 viewing the facts in the light most favorable to Plaintiffs, genuine issues of material fact 8 remain as to whether Defendants acted with deliberate indifference. A reasonable jury 9 could find that by effectively endorsing the Venetian Defendants’ conduct and issuing a 10 misdemeanor warning against Plaintiffs in violation of LVMPD policy, Plaintiffs were 11 deterred from returning to the sidewalk. Although Plaintiffs repeatedly stated they were on 12 a public sidewalk and expressed confusion about whether they could return to the public 13 sidewalk, LVMPD Defendants did not clarify the issue. Rather, Scott and Schaier told 14 Plaintiffs they could not return to Venetian’s property. 15 Further, genuine issues of fact remain that Scott and Schaier had a subjective 16 awareness of that harm. A reasonable jury could find the officers were subjectively aware 17 of the risk of deterrence based on evidence that Plaintiffs repeatedly told the officers that 18 Plaintiffs were on a public sidewalk when Venetian Defendants handcuffed them and 19 brought them back to the security office. Scott and Schaier did not clarify whether 20 Plaintiffs could return to the sidewalk in front of the Venetian despite Plaintiffs’ expressed 21 confusion and concerns over the issue. A reasonable jury could conclude Scott and Schaier 22 appreciated the risk that their failure to clarify the point would result in Plaintiffs not 23 exercising their rights to return to the sidewalk in front of the Venetian. 24 Plaintiffs have met their burden of establishing genuine issues of fact remain as 25 to whether LVMPD Defendants violated their substantive due process rights. However, 26 Plaintiffs have not met their burden of establishing their rights were clearly established in 19 1 the factual context presented to these officers. Plaintiffs have not identified any case law 2 that would make it clear to a reasonable police officer that his failure to clarify a dispute 3 over a legal issue involving private versus public property rights would amount to unlawful 4 conduct. The Court therefore will grant LVMPD Defendants’ Motion for Summary 5 Judgment to the extent that Defendants Scott and Schaier are entitled to qualified immunity 6 on the substantive due process claim in count six. 7 8 9 2. Procedural Due Process - Count Seven For a procedural due process claim, the plaintiff must demonstrate “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of 10 adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). 11 Due process requires that a party affected by government action be given notice and “‘the 12 opportunity to be heard at a meaningful time and in a meaningful manner.’” S.E.C. v. 13 McCarthy, 322 F.3d 650, 659 (9th Cir. 2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 14 333 (1976)). To determine whether the procedures provided are adequate, the Court must 15 “balance (1) the private interest affected by the official action; (2) the risk of erroneous 16 deprivation and the probable value of additional procedural safeguards; and (3) the 17 governmental interest, including the fiscal and administrative burdens of additional 18 procedures.” Humphries v. Cnty. of L.A., 554 F.3d 1170, 1193 (9th Cir. 2009), rev’d on 19 other grounds, L.A. Cnty v. Humphries, 131 S. Ct. 447 (2010). 20 A genuine issue of material fact remains as to whether Plaintiffs’ procedural due 21 process rights were violated. Plaintiffs have Fourth Amendment liberty interests to be free 22 from unreasonable searches and seizures. A reasonable jury could find there is a risk of 23 erroneous deprivation due to LVMPD policy, custom, or practice. Scott and Schaier both 24 testified that it is LVMPD standard procedure that if LVMPD officers arrive on the scene 25 and the casino security personnel have handcuffed an individual, LVMPD automatically 26 will exchange the casino handcuffs for the LVMPD handcuffs. (LVMPD MSJ, Ex. C at 7520 1 76 (Scott testifying that it is “standard procedure” for LVMPD to replace LVMPD 2 handcuffs for casino security handcuffs), Ex. D at 45-46 (Schaier testifying that “the first 3 thing we do is switch out handcuffs. That’s just our standard practice when it comes to in- 4 custodies that are detained.”).) Viewing that evidence in the light most favorable to 5 Plaintiffs, a reasonable jury could find that this policy, custom, or practice leads LVMPD 6 officers to refrain from making an independent judgment about whether to place an 7 individual in handcuffs, and a reasonable jury could find this happened to Plaintiffs. A 8 reasonable jury could find that additional safeguards, such as revising this policy, custom, 9 or practice would be valuable so that police officers make independent judgments about 10 handcuffing individuals, rather than automatically ratifying a decision made by casino 11 security. Furthermore, a reasonable jury could conclude that requiring the officers to make 12 their own independent judgment about whether handcuffing a particular individual is 13 appropriate is neither fiscally nor administratively burdensome. 14 Plaintiffs have met their burden of establishing an issue of fact remains that 15 Defendants violated their procedural due process rights. However, Plaintiffs do not identify 16 any law that would put these individual officers on notice that by following LVMPD 17 standard operating procedure of switching out their handcuffs for a private actor’s 18 handcuffs their conduct would be unlawful. Defendants Scott and Schaier therefore are 19 entitled to qualified immunity. Additionally, viewing the facts in the light most favorable to 20 LVMPD Defendants on Plaintiffs’ Counter-Motion, although both officers testified this is 21 standard procedure, Scott testified that he does not automatically defer to casino security 22 and he made his own independent judgment that handcuffing Plaintiffs was appropriate in 23 this case. (LVMPD MSJ, Ex. C at 76.) A reasonable jury could find that the policy, 24 custom, or practice therefore was not the moving force behind any Fourth Amendment 25 violation. Rather, Scott exercised his independent judgment. The Court will grant LVMPD 26 Defendants’ Motion to the extent that Defendants Scott and Schaier are entitled to qualified 21 1 immunity on count seven. 2 F. Defendant Douglas Gillespie - Personal Participation 3 A defendant is not liable under § 1983 unless he personally participated in the 4 alleged deprivation of the plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 5 2002). “[T]here is no respondeat superior liability under section 1983.” Id. However, a 6 supervisor personally participates, and may be liable in his own right, if the supervisor 7 “acted, or failed to act, in a manner that was deliberately indifferent” to the plaintiff’s 8 rights. Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). To establish deliberate 9 indifference, the plaintiff must show the official was both “aware of facts from which the 10 inference could be drawn that a substantial risk of [a rights violation] exists, and he must 11 also draw the inference.” Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 12 2010) (quotation omitted). 13 Viewing the facts in the light most favorable to Plaintiffs, a reasonable jury could 14 find Defendant Sheriff Douglas Gillespie (“Gillespie”) failed to establish policies or train 15 his officers regarding First Amendment issues related to the sidewalks along the Strip 16 despite the Ninth Circuit’s opinion in the matter, and despite knowing there was confusion 17 amongst line officers regarding First Amendment issues on the sidewalks in front of the 18 casinos. (Opp’n to LVMPD MSJ, Ex. 3 at 16-17.) Gillespie testified he was aware of these 19 issues dating back as far as 1998 or 1999. (Id. at 42.) Although aware of this confusion, 20 Gillespie has not ensured officers are trained on First Amendment issues regarding 21 sidewalks along the Strip, has not directed anyone to develop policies for officers regarding 22 First Amendment issues along the Strip sidewalks, and does not know whether any have 23 been developed. (Id. at 52, 56.) Only recently has the LVMPD initiated any attempt 24 policies and training on the subject. (Id. at 52.) 25 26 Defendants argue LVMPD provides general training on sidewalk and First Amendment issues generally and therefore Gillespie was not required to train specifically 22 1 on the narrow strip of sidewalk in front of the Venetian. However, Plaintiffs have 2 presented evidence that despite such training, confusion reigns amongst line officers when 3 confronted with casino property owners claiming rights to the sidewalks on the Strip and 4 that Gillespie was aware of this confusion. Thus, a reasonable jury could find Gillespie was 5 deliberately indifferent to the risk that the current policies and training were inadequate. 6 The Court therefore will deny Defendants’ Motion for Summary Judgment on this issue. 7 G. Municipal Liability 8 Defendants argue they are entitled to summary judgment on this issue because 9 Plaintiffs can show no LVMPD policy or custom to harass street performers. Defendants 10 note that Jason has heard police officers tell casino security guards that street performers 11 have a right to be on the sidewalk on the Strip, thereby showing no policy or custom. 12 Plaintiffs argue there is evidence of a policy or custom of cooperating with casino security 13 officials even when doing so violates First Amendment rights. Alternatively, Plaintiffs 14 argue Gillespie is a final decision maker whose failure to train is imputed to LVMPD. 15 A municipal entity may be liable under § 1983 “only where the municipality itself 16 causes the constitutional violation through execution of a government’s policy or custom, 17 whether made by its lawmakers or by those whose edicts or acts may fairly be said to 18 represent official policy.” Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 984 (9th Cir. 2002) 19 (quotation omitted). “Liability for improper custom may not be predicated on isolated or 20 sporadic incidents; it must be founded upon practices of sufficient duration, frequency and 21 consistency that the conduct has become a traditional method of carrying out policy.” 22 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 23 Additionally, a plaintiff may establish a municipal entity is liable for its 24 omissions where the municipality’s “deliberate indifference led to its omission and that the 25 omission caused [a municipal] employee to commit the constitutional violation.” Gibson v. 26 Cnty. of Washoe, Nev., 290 F.3d 1175, 1186 (9th Cir. 2002). To establish liability through 23 1 omission, a plaintiff must show: (1) that a municipal employee violated the plaintiff’s 2 rights; (2) that the municipality has customs or policies that amount to deliberate 3 indifference; and (3) that these policies were the “moving force” behind the employee’s 4 violation of the plaintiff’s constitutional rights. Id. at 1194. “To prove deliberate 5 indifference, the plaintiff must show that the municipality was on actual or constructive 6 notice that its omission would likely result in a constitutional violation.” Id. at 1186. 7 Unlike the deliberate indifference standard for an individual employee’s liability, this 8 standard does not include a subjective component. Id. at 1195. A policy, or lack thereof, is 9 the “moving force” if the municipality “could have prevented the violation with an 10 11 12 appropriate policy.” Id. at 1194. 1. Policy or Custom Plaintiffs have failed to present evidence raising a genuine issue of material fact 13 that LVMPD has a policy or custom of violating First Amendment rights along the sidewalk 14 on the Strip. Rather, the evidence shows that while some officers will support the casinos, 15 others will support the street performers. Jason testified he has been supported by LVMPD 16 officers in other incidents where casino security attempted to have him trespassed from a 17 public sidewalk. Scott testified he has refused to arrest an alleged trespasser despite a 18 Venetian casino security guard’s request that he do so. The evidence before the Court 19 shows a lack of policy or custom on the subject, rather than a persistent and widespread 20 custom of harassing street performers. 21 However, viewing the evidence in the light most favorable to Plaintiffs, Plaintiffs 22 have presented evidence raising a genuine issue of fact that LVMPD has a policy and 23 custom of reinforcing casino security decisions regarding detaining and handcuffing 24 individuals without making an independent judgment regarding the appropriateness of those 25 actions. Scott and Schaier testified that it is was standard operating procedure to place 26 LVMPD handcuffs on any individual handcuffed by casino personnel. Further, Plaintiffs 24 1 have presented evidence that LVMPD officers never have questioned a casino security 2 guard’s decision to detain an individual. A reasonable jury could infer this policy, custom, or practice is likely to lead to 3 4 Fourth Amendment violations. Likewise, a reasonable jury could find LVMPD knew or 5 should have known that abdicating to casino security guards its responsibility to make 6 independent evaluations regarding the appropriateness of using handcuffs or detaining 7 individuals likely would result in constitutional violations. A reasonable jury could 8 conclude this policy, custom, or practice was the moving force behind any Fourth 9 Amendment violation Plaintiffs may prove at trial, as Scott and Schaier testified they were 10 following LVMPD policy, custom, or practice in detaining, searching, and handcuffing 11 Plaintiffs. The Court therefore will grant LVMPD Defendants’ Motion with respect to the 12 13 lack of a policy of harassing street performers. However, the Court will deny LVMPD 14 Defendants’ Motion with respect to a policy, custom, or practice related to automatic 15 handcuffing of individuals who have been detained and handcuffed by casino security 16 personnel. 2. Omission 17 As discussed with respect to other issues in this case, Plaintiffs have raised 18 19 genuine issues of material fact that LVMPD employees violated Plaintiffs’ rights, that 20 LVMPD’s policies, customs, practices, or failure to train amount to deliberate indifference, 21 and that these policies, customs, practices, or omissions were the moving force behind the 22 violation of Plaintiffs’ constitutional rights. Moreover, a reasonable jury could find 23 LVMPD had a policy, practice, or custom of automatically handcuffing individuals whom 24 casino security guards had handcuffed and that this custom or practice was the moving 25 force behind a Fourth Amendment violation in this case. The Court therefore will deny 26 /// 25 1 Defendants’ Motion on the issue of municipal liability.2 2 IV. CONCLUSION IT IS THEREFORE ORDERED that Defendants Las Vegas Metropolitan Police 3 4 Department, Doug Gillespie, Officer Terry Scott, and Officer Scott Schaier’s Motion for 5 Summary Judgment (Doc. #81) is hereby GRANTED in part and DENIED in part. The 6 motion is granted with respect to Plaintiffs’ First Amendment claim in count one as to 7 Defendants Terry Scott and Scott Schaier, Plaintiffs’ conspiracy claim in count five as to all 8 LVMPD Defendants, Plaintiffs’ substantive due process claim in count six as to Defendants 9 Terry Scott and Scott Schaier, and Plaintiffs’ procedural due process claim in count seven 10 against Defendants Terry Scott and Scott Schaier. The motion also is granted with respect 11 to Plaintiffs’ allegation that Defendants maintained a policy, custom, or practice of 12 harassing street performers. The motion is denied in all other respects. IT IS FURTHER ORDERED that Plaintiffs’ Counter-Motion for Summary 13 14 Judgment (Doc. #112) is DENIED. IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Excess 15 16 Pages (Doc. #104) is hereby GRANTED. 17 DATED: October 25, 2011 _______________________________ PHILIP M. PRO United States District Judge 18 19 20 21 22 23 24 25 26 2 Although the Court is granting summary judgment in favor of Scott and Schaier for some claims, that does not mean LVMPD likewise is entitled to summary judgment. Where the plaintiff suffers constitutional deprivations not “as a result of actions of the individual officers, but as a result of the collective inaction of the [municipal entity],” the officers’ individual liability will not affect whether the municipal claim may proceed. Fairley v. Luman, 281 F.3d 913, 916-17 (9th Cir. 2002). Thus, a municipality may be liable under § 1983 for improper training even if a jury found in favor of the individual officer who allegedly violated the plaintiff’s constitutional rights. Id.; Chew v. Gates, 27 F.3d 1432, 1439-40 (9th Cir. 1994); Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir. 1992). 26
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