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Vallejo v. Duchesne County

United States District Court, D. Utah, Central Division

October 8, 2019

ROSE VALLEJO, on behalf of minor child A.V., Plaintiff,
v.
DUCHESNE COUNTY, SGT. CARL REILLEY, SHERIFF DAVID L. BOREN, and DOES 1-10, Defendants.

          MEMORANDUM OF DECISION AND ORDER

          TENA CAMPBELL, U.S. DISTRICT COURT JUDGE

         On April 14, 2017, Defendant Carl Reilley, a sergeant with the Duchesne County Sheriff's Office, detained A.V., a thirteen-year-old with autism, after he saw A.V. peering into the windows of the public library. During the encounter, A.V. was placed on the ground and handcuffed. After determining that A.V. had not committed a crime and was not dangerous, Sgt. Reilley drove A.V. home.

         A.V. filed suit on July 12, 2017.[1] In the operative second amended complaint, he asserts that Sgt. Reilley infringed his constitutional rights in violation of 42 U.S.C. § 1983 by (1) detaining him without reasonable suspicion; (2) arresting him without probable cause; and (3) using excessive force during the stop. A.V. also alleges that Defendant David Boren, the police chief of the Duchesne County Sherriff's Office, ratified Sgt. Reilley's conduct, making both Chief Boren and Defendant Duchesne County equally liable for the constitutional violations.

         Sgt. Reilley now moves for summary judgment (ECF No. 51), arguing he is protected from suit by the doctrine of qualified immunity. In the same motion, Chief Boren and Duchesne County argue there was no ratification, meaning they cannot be liable for Sgt. Reilley's conduct. For the reasons stated below, the court concludes Sgt. Reilley is immune from suit on the detention claim, but not on the arrest or excessive force claims. The court also concludes Chief Boren and Duchesne County cannot be held liable for Sgt. Reilley's conduct.

         I. BACKGROUND

         On April 14, 2017, Sgt. Reilley drove past the city library and noticed A.V. peering through the windows. (ECF No. 52-2, Appendix of Evidence, Ex. B, [2] Deposition of Carl Reilley (“Reilley Depo.”) at 25:4-8.) Because bushes had been planted in front of the windows, it was clear that A.V. had climbed through them to get to the window. (Id. at 25:8-11.) A.V. was wearing a hoodie, with the hood pulled up. (Id. at 25:11-12.) As Sgt. Reilley drove by, A.V. stepped away from the window and moved toward another set of windows. After peering in those windows, A.V. continued moving along the building, stopping to look through the library's main doors. (Id. at 25:13-19.)

         At this point, Sgt. Reilley pulled over, got out of his vehicle, and called out to A.V., “Hey, come here, I want to talk.” (Id. at 25:20-21; 28:1-3.) A.V. ignored the command and continued walking past the doors and along other library windows. (Id. at 28:20-22.) Sgt. Reilly again yelled out “Come here, I need to talk to you.” (Id. at 28:23-24.) Then A.V. “took ten real fast steps, like he was going to start running, ” so Sgt. Reilley again ordered A.V. to come to him. (Id. at 28:24-29:1.) This time, A.V. began walking toward Sgt. Reilley. Sgt. Reilley told him to remove his hands from his pockets and, when he was about twenty feet away, A.V. complied, putting his hands “up as high as he could.” (Id. at 29:1-10.) Sgt. Reilley testified that “at that point, I could see he was a younger guy, ” (id. at 29:10-11), who appeared to be “under 20.” (Id. at 41:17.) In fact, A.V. was thirteen. (ECF No. 52-3, Ex. C, Deposition of A.V. at 43:17-44:11.)

         “[A]t that time . . . the body camera kicked on.” (Reilley Depo. at 30:17-18.) Sgt. Reilly testified that although he asked A.V. what he was doing and whether he had any weapons on him, A.V. wasn't responding. (Id. at 31:2-11.) But as A.V. notes in opposition, the body camera footage only records Sgt. Reilley asking, “What's going on?” A.V. then appears to respond to the question, although either because of the wind or because he is speaking softly, his response is inaudible. Sgt. Reilley then asks, “You can what?” (ECF No. 52-4, Ex. D, Reilly Body Camera Footage (“Body Cam”) at 00:02-00:06.)

         Before A.V. could answer, Sgt. Reilley lifted his radio to request back up. At that point A.V. lowered his arms, although he did not move away. (Id. at 00:07-00:09.) Sgt. Reilley put down his radio and ordered A.V. to lift his hands again. After A.V. complied, Sgt. Reilley grabbed A.V.'s right arm, telling A.V. to turn around. (Id. at 00:10-00:12.) Sgt. Reilley testified that his intent, at that point, was to ensure A.V. did not run away and to search him for weapons. (Reilley Depo. at 53:19-21, 54:1-6.) A.V. initially complied by turning around, but as Sgt. Reilley pulled his arm, A.V. cried out and tried to pull away. Sgt. Reilley spun A.V. around and placed him on the ground. (Body Cam at 00:13-00:20.)

         Holding A.V. down, Sgt. Reilley tried to request back up on his handheld radio, but he didn't have a clear signal. (Id. at 00:21-00:35.) Other than telling A.V. to hold still and asking, “What is your problem, ” Sgt. Reilley did not address A.V. during this time. Sgt. Reilley handcuffed A.V.'s hands behind his back, while A.V. was still face down on the ground. (Id. at 00:35-00:40.) When A.V. said that he didn't want to go to jail, Sgt. Reilley responded, “You haven't been to jail yet, but you're going to go there. Now talk to me.” (Id. at 00:42-00:47.) Sgt. Reilley again asked, “What is going on, ” and A.V. said nothing was going on. (Id. at 00:47-00:52.) Sgt. Reilley said, “You were running from me, and now you're not, ” and that he wanted to know why. (Id. at 00:53-00:57.) During this time, A.V. was crying out for help, and Sgt. Reilley told him to “stop.” (Id. at 0058.) Sgt. Reilley asked if A.V. had any weapons, apparently for the first time, and ran his hands around A.V.'s waistband to check. (Id. at 01:00-01:06.)

         At that point, Sgt. Reilley turned off his body camera. (Id. at 01:06.)

         Utah Highway Patrol Trooper Nathan Mikulich then arrived and held A.V. down while Sgt. Reilley returned to his car to report the incident. (ECF No. 52-5, Ex. E, Deposition of Nathan Mikulich (“Mikulich Depo.”) at 10:22-11:6.) Trooper Mikulich asked A.V. if he had any identification, and A.V. said no. (ECF No. 52-6, Ex. F, Dashboard Camera Footage (“Dashboard Cam”) at 12:00:00-12:00:06.) Trooper Mikulich then questioned A.V., and learned his name, but was otherwise unable to discover anything from A.V. about the situation. (Id. at 12:00:20-12:00:27.) At his deposition, Trooper Mikulich testified that at the time, he believed A.V. was fifteen or sixteen years old, and he initially thought A.V. was intoxicated or had been using methamphetamine. (Mikulich Depo. at 12:12-15.) But in a report Trooper Mikulich wrote one week after the event, he indicated that, at the time he approached the scene, he believed A.V. was between thirteen and fifteen. (Id. at 50:19-24.) Eventually Trooper Mikulich and Sgt. Reilley helped A.V. stand up, and at that point-after A.V. made several comments about wanting to go to the zoo-Trooper Mikulich told Sgt. Reilley that he believed A.V. had autism, which A.V. then confirmed. (Dashboard Cam at 12:00:50-12:01:30.) Sgt. Reilley and Trooper Mikulich then put A.V. in the backseat of Sgt. Reilley's vehicle and took A.V. home. (Reilley Depo. at 39:6-15, 41:1-5, 41:20-42:22.)

         Three days later, after seeing A.V.'s mother in town, Trooper Mikulich told Chief Boren that she was quite upset about the encounter. (Id. at 57:3-15, 58:3-6.) Chief Boren said, “If he can't be on his own, then we need to make sure that he's not out in public on his own.” (Id. at 59:24-60:7.) Trooper Mikulich had planned on asking Chief Boren if Trooper Mikulich could arrange to take A.V. to the zoo, so that he would no longer be scared of the police. But based on Chief Boren's comment, Trooper Mikulich dropped the idea, believing he would not be receptive. (Mikulich Depo. at 54:19-25, 60:7-60:13.) Trooper Mikulich testified that Chief Boren had made similar statements like this in the past. (Id. at 87:23-88:1.) Chief Boren denies having ever made such a statement. (ECF No. 52-9, Ex. I, Deposition of David Boren (“Boren Depo.”) 31:6-11.)

         Several weeks later, the Duchesne County Sheriff's Office reviewed Sgt. Reilley's conduct during the encounter. A panel recommended giving Sgt. Reilley a verbal warning for not having his body camera activated during the entire incident, but otherwise did not identify any problems with Sgt. Reilley's conduct. (ECF No. 52-7, Ex. G, After-Action Review.) At Chief Boren's direction, Sgt. Reilley's supervisor gave him Sgt. Reilley the recommended verbal warning. (ECF No. 52-8, Ex. H, Boren Directive.) Chief Boren also ordered that “all Sheriff's Office Patrol personnel receive training on recognizing signs of mental health and[/]or special needs individuals at our earliest opportunity.” (Id.)

         II. LEGAL STANDARD

         A court must grant summary judgment when the moving party “shows that there is no genuine dispute as to any material fact” and that the party “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment should not be granted “if the dispute about a material fact is ‘genuine,' that is, when the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The court must draw all reasonable inferences from the record in favor of the nonmovant. Id.

         Qualified immunity is “‘an immunity from suit rather than a mere defense to liability[.]'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)).

         To determine whether to grant qualified immunity, courts apply the two-part test set forth in Saucier. Under that test, the court first determines whether the officer violated the plaintiff's constitutional rights. In making this determination, the facts are viewed in the light most favorable to the plaintiff. Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012). If the court finds a violation, the court then analyzes whether the right was clearly established at the time of the officer's conduct. Brosseau, 543 U.S. at 195.

         III. ANALYSIS

         A. Prong 1: Violation of Constitutional Rights

         The Fourth Amendment prohibits government officials from conducting “unreasonable searches and seizures.” U.S. Const. amend. IV. The Tenth Circuit recognizes “three categories of police-citizen encounters: ‘(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.'” United States v. Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006) (quoting United States v. Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir.1998)). Additionally, whether engaged in an investigative detention or an arrest, the police must use only that force that is “reasonable, ” given the totality of the circumstances. Graham v. Connor, 490 U.S. 386 (1989).

         A.V. argues his constitutional rights were violated in three ways: (1) A.V. was stopped for an investigative detention without reasonable suspicion; (2) A.V. was arrested without probable cause; and (3) Sgt. Reilley used excessive force in seizing A.V.

         1. Reasonable Suspicion for the Investigative Detention

         Here, the parties agree that an investigative detention occurred, but they disagree on when it began. A.V. argues that as soon as Sgt. Reilley asked A.V. to come over, a detention had been initiated. In support of this proposition, A.V. cites United States v. Dell, 487 Fed.Appx. 440 (10th Cir. 2012), but that case is not analogous. There, an officer called out “Hey, come over” to a suspect; the suspect “promptly complied with the instruction and approached Officer Tafisi's patrol car;” and “the government concede[d] that by the time Officer Tafisi said, ‘Hey, come over,' a Fourth Amendment seizure began.” Id. at 442. But A.V. did not promptly comply with Sgt. Reilley's request to speak to him but continued walking along the front of the library and looking in different windows.

         Sgt. Reilley maintains that the investigative detention did not begin until the third time Sgt. Reilley called out to A.V., and A.V. complied and began walking toward him. The court agrees. An investigative detention begins once “(a) the officer shows his authority; and (b) the citizen submits to the assertion of authority.” United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011) (internal quotations omitted). A.V. did not submit until after the third time Sgt. Reilley called out. That is when the investigative detention began.

         Accordingly, to prevail, A.V. must demonstrate that the facts known to Sgt. Reilley at the time A.V. began walking toward him would not provide a reasonable officer with the level of suspicion necessary to support an investigative detention.

An officer “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.” Id. For an officer to have reasonable suspicion to seize an individual, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id.

Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007). Reasonable suspicion must be “more than an inchoate and unparticularized suspicion or hunch.” United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011). Additionally, reasonable suspicion “is measured by an objective standard; the agents' subjective beliefs and intentions . . . are irrelevant.” United States v. De La Cruz, 703 F.3d 1193, 1196 (10th Cir. 2013).

         Sgt. Reilley first contends that he was suspicious because A.V. was wearing a hoodie with his hood up. But Sgt. Reilley concedes it was about 60 degrees that day. (Reilley Depo. at 26:25.) There is nothing suspicious about wearing a jacket in 60-degree weather.

         Second, Sgt. Reilley argues it was suspicious that A.V. had pushed through bushes to peer through the library windows. A.V. argues such conduct is not suspicious and again cites to Dell for support. There, an officer stopped a man after he observed him “peering into the windows of a car which was legally parked on the street.” Dell, 487 Fed.Appx. at 442. The Tenth Circuit held this was not sufficient to provide reasonable suspicion:

The conduct observed by Officer Tafisi was so innocuous and so very much in the realm of ordinary behavior that it would not lead a reasonable officer to suspect that a car ...

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