ORDER
(Plf.’s Motion in Limine — dkt. no. 74; Def.’s Motions for Summary Judgment — dkt. nos. 81 and 82; Def.’s Motion to Seal — dkt. no. 87; Pit’s Motion for Partial Summary Judgment — dkt. no. 84)
This is a civil rights suit arising out of the detention of a woman by the Las Vegas Metropolitan Police Department (“LVMPD”) on suspicion of prostitution during a Vice anti-prostitution sting operation. Before the Court are the competing summary judgment motions of both parties (dkt. nos. 81, 82, and 84), as well as Plaintiffs Motion in Limine (dkt. no. 87) and Defendants’ Amended Motion to Seal (dkt. no. 87). Oral argument was heard on all but the Motion in Limine on July 25, 2013. (Dkt. no. 121.) In short, the Court holds that Defendants violated Plaintiffs constitutional rights during her detention and arrest, and grants in part Plaintiffs Motion for Partial Summary Judgment consistent with the reasoning set forth below.
I. BACKGROUND
A. The Parties
Plaintiff Chentile Goodman, a resident of Las Vegas, Nevada, worked as a dancer at the Spearmint Rhino, a gentleman’s club in Las Vegas. The incident that gave rise to this action occurred during an evening out •with Goodman’s friend and colleague, Ayda
Defendant James Signorello was a Sergeant in the LVMPD Vice Section. Defendant John Segura was a Detective in the same section. The Vice Section of LVMPD “is responsible for investigating vice-related crimes, including arresting and prosecuting prostitutes, their clients, and pandering suspects; prostitution-related larcenies; drug-related trick rolls, businesses that front for prostitution; sexually-oriented criminal enterprises; juvenile prostitution and related pornography; and felony HIV prostitution cases.” LVMPD > Sections > Vice, Las Vegas Metropolitan Police Department, http://www.lvmpd. com/Sections/Vice/tabid/190/Default.aspx (last visited July 22, 2013).
B. Vice Procedure
This suit arises out of a Vice anti-prostitution sting operation conducted at the Cosmopolitan Hotel and Casino (“the Cosmopolitan”) in Las Vegas. According to Signorello, Vice enforcement activity is often requested by the casinos themselves to “clean up” their property.
When they arrive at a particular property, the squad splits up into teams, makes contact with potential targets undercover, and attempts to secure probable cause for solicitation charges during the course of their contact.
A woman detained in a prostitution sweep may be handcuffed if officers determine that she is unruly or combative. (Dkt. no. 84-4 at 12.) According to Signorello, these detentions may last “for a while and sometimes for an hour.” (Id.) Generally, no timekeeping is done to monitor the length of time any individual suspect is detained in these facilities. (Id. at 13.)
C. The Incident
Goodman and Mosafer planned on an evening of dinner and drinks at the Henry, a restaurant and bar at the Cosmopolitan on the evening of February 9, 2011. Having arranged, to also meet her boyfriend that evening, Goodman walked with Mosafer through the casino floor on route to the
The parties dispute much of the remaining facts from this point onward. The facts are recalled here as articulated in Goodman’s deposition, unless indicated otherwise. According to Goodman, she and Mosafer were walking towards the Henry when she was first approached undercover by Segura and Signorello. Segura attempted to proposition her by asking if she knew of “something to do or a fun place to go.” (Dkt. no. 84-1 at 63-64.) The women rebuffed their advances, and continued walking. After reaching the Henry and seeing that her boyfriend had not yet arrived, she began to send him a text message. At this point, and possibly after a few more attempts at solicitation, Goodman testified that Segura walked up to her, clutched her by the upper arm, grabbed her mobile phone that had fallen to the floor, and proceeded to escort her away to Cosmopolitan’s security office.
According to Defendants, Segura and Signorello spotted the women as they were walking near the elevators of the Cosmopolitan. One of them recognized Mosafer from an operation four days earlier that resulted in her arrest. Segura approached the women and attempted to solicit them. After failing to do so, Segura recalled that Signorello and another detective approached both women, and the three detectives identified themselves as officers. Segura recalled that Goodman resisted his request for her telephone, and that she became combative and argumentative. (Dkt. no. 84-3 at 34-35; 84-5 at 4.) Signorello did the same to Mosafer, grabbing her arm, which also caused her to drop her phone to the ground, and escorting her as well.
Goodman and Mosafer were then escorted to the casino’s security office, and were detained there for an indefinite period of time. Although the precise location of the security office was difficult to glean from the deposition testimony, the room’s entrance does not face the main casino floor where Goodman and Mosafer were initially approached; rather, its entrance adjoins a hallway that opens up onto the casino floor. Both women were escorted to this room from the location where they were initially contacted. The security office itself consists of two separate rooms, with a number of individuals, including a Cosmopolitan security officer, present when Goodman entered the facility. The parties dispute the length of Goodman and Mosafer’s detention. Defendants do not provide a positive time estimate for its length (see dkt. no. 84-2 at 97; 84-3 at 53), while Goodman testified that it was up to two hours in duration.
Several other women were detained in the security room as a result of the sting operation. (Dkt. no. 84-3 at 52.) Accord
According to her testimony, Goodman’s purse was taken from her as soon as she entered the security facility. (Dkt. no. 84-1 at 77-78.) Early in her detention Goodman was asked a number of questions, including what she was doing at the casino and where she was employed. (Id. at 85.) On numerous occasions, Goodman inquired as to the reason for her detention, and asked to be released to her boyfriend. Her requests were denied.
During her detention, Goodman testified that her purse was searched. Though she did, not herself see the search, she recalls her identification stored in her purse being presented to her as well as questions and comments from a detective about the money in her wallet. (Dkt. no. 84-1 at 89-90.) According to Segura, he asked Goodman before she arrived at the security room whether she carried identification, and she responded that it was in her purse. She then consented to his retrieving the I.D. from her purse after he asked her for it. (Dkt. no. 84-3 at 48.) Segura testified that he did not recall whether he searched Goodman’s purse for money. (Dkt. no. 84-3 at 49.)
After being held for up to two hours, Goodman and Mosafer were both released without being charged.
D. Procedural History
On August 22, 2011, Goodman filed suit against LVMPD, the Cosmopolitan International Company, Inc., and Nevada Property 1, LLC (owner of the Cosmopolitan) in the Eighth Judicial District Court in Clark County, Nevada. LVMPD removed the case to this Court on September 8, 2011. In her Amended Complaint, Goodman asserts claims for (1) false imprisonment, (2) battery, (3) violation of the Fourth Amendment, (4) defamation, and (5) intentional infliction of emotional distress. (See dkt. no. 50.) Goodman filed a Motion in Limine seeking to exclude evidence of other crimes, wrongs, or acts committed by her. (See dkt. no. 74.) She also seeks partial summary judgment on her Fourth Amendment and state law false imprisonment claims. Defendants have also moved for summary judgment, seeking judgment on all of Goodman’s claims.
II. LEGAL STANDARD
A. Motion in Limine
A motion in limine is a procedural device to obtain an early and preliminary ruling on the admissibility of evidence. Black’s Law Dictionary defines it as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial. Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard.” Black’s Law Dictionary 1109 (9th ed.2009). Although the Federal Rules of Evidence (“FRE”) do not explicitly authorize a motion in limine, the Supreme Court has held that trial judges are authorized to rule on motions in limine pursuant to their authority to manage trials. Luce v. United States,
A motion in limine is a request for the court’s guidance concerning an evidentiary question. See Wilson v. Williams,
In limine rulings are provisional. Such “rulings are not binding on the trial judge [who] may always change his mind during the course of a trial.” Ohler v. United States,
B. Summary Judgment
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,
The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp.,
III. MOTION IN LIMINE
Goodman seeks to exclude evidence of a prior arrest, citation, and conviction arising out of her arrest on suspicion of prostitution in 2007. Goodman previously worked as an “outcall nude entertainer” in San Diego, and was arrested on suspicion of prostitution while working in that capacity.
The Court holds that this evidence is inadmissible. First, the facts at issue are minimally relevant to whether Goodman was a prostitute. She was never convicted of prostitution; she was only arrested on suspicion of prostitution. Goodman’s written citation appears to be related to the prostitution charge, which was subsequently dropped. Although an arrest for a prostitution-related offense might have some tendency to make more probable the fact that Goodman actually engaged in prostitution, see Fed.R.Evid. 401 (defining relevance), it is uniformly recognized that an arrest, without more, is inadmissible to support the inference that the underlying act occurred. See, e.g., 2 David W. Louisell & Christopher B. Mueller, Federal Evidence § 140 at 177 (1985) (noting Michelson v. United States,
In addition to using this evidence to establish truthfulness of any alleged defamatory statements, Defendants also seek its admission on the question of defamation damages. Although Goodman’s, San Diego arrest may be minimally relevant to her reputation at the time she was detained at the Cosmopolitan, reputational damage is presumed in a slander per se action like this one, as explained below in the Court’s discussion of Goodman’s defamation claim. See Branda v. Sanford,
In light of the foregoing, the Court holds that evidence of Goodman’s prior arrest is inadmissible to demonstrate that she engaged in the underlying act that resulted in her arrest, and is further inadmissible on the question of her reputation at the time of the incident challenged in this suit.
IV. MOTION TO SEAL
Defendants move to seal the entire deposition transcripts of Defendants Segura and Signorello, arguing that pursuant to the protective order entered by the Court, sealing testimony related to “confidential VICE tactical operations procedures” is required in order to protect citizens of Las Vegas and prevent a compromise of existing and future Vice operations.
“[A] ‘compelling reasons’ standard applies to most [motions to seal] judicial records.” Pintos v. Pac. Creditors Ass’n,
Here, Defendants’ motion to seal is overbroad and unsupported by “specific factual findings.” They seek to seal the entire transcripts of the individual defendants but fail to demonstrate a compelling need to do so. To the extent that any individual portion of the transcripts re
V. SUMMARY JUDGMENT MOTIONS
A. 42 U.S.C. § 1983 (Fourth Amendment)
Both Goodman and Defendants move for summary judgment on Goodman’s Fourth Amendment claim. Defendants dispute the merits of Goodman’s constitutional claim, and, in the alternative, contend that qualified immunity shields the individual officers from liability and that Goodman’s failure to establish a policy or practice of unconstitutionality shields LVMPD from liability.
42 U.S.C. § 1983 provides a mechanism for the private enforcement of substantive rights conferred by the Constitution and federal statutes. Graham v. Connor,
The undisputed facts in this case evidence that a seizure took place because Goodman was detained by Defendants and was not free to leave. See United States v. Mendenhall,
1. Whether Goodman’s initial detention was supported by reasonable suspicion
The parties analyze Goodman’s initial detention under the rubric set out by the Supreme Court in Terry v. Ohio,
“[T]hé question of whether a reasonable officer could have believed probable cause (or reasonable suspicion) existed to justify a search or an arrest is ‘an essentially legal question’ that should be determined by the district court at the earliest possible point in the litigation.” Act Up!/Portland v. Bagley,
Defendants point to the following facts to demonstrate that their detention of Goodman was justified as a Terry stop:
1. Goodman “walked by the hotel elevators,” an area where prostitutes ordinarily convene. (Goodman argues that she was walking, not loitering, to a restaurant for dinner, and whether or not she was near the elevators is irrelevant.)
2. Goodman was dressed provocatively. (Goodman noted that she was dressed relatively conservatively for Las Vegas, testifying that she wore a romper suit with sleeves.6 )
3. One of the Vice detectives who engaged the two women recognized Mosafer as having been detained for prostitution four days earlier. (Goodman notes that Mosafer was released without charge.)
4. An ongoing investigation was occurring in the Cosmopolitan relating to the activities of a well-known pimp, “Wheelchair Mike,” Mosafer’s husband.
5. The two women were holding and using mobile phones, which, in the officer’s experience, could be used both as mechanisms to communicate with co-conspirators and as weapons or weapon-concealing devices.
In reviewing these facts, the Court is mindful that officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.” United States v. Arvizu,
First, Defendants claim that the Cosmopolitan was overrun by prostitutes, and that the casino floor near the elevators was an área with a particularly high concentration of prostitute activity. This fact, even taken as true, cannot on its own support reasonable suspicion for the simple reason that' it would register as suspicious all
Similarly, that Goodman was dressed “provocatively” and carrying a cell phone threatens to scoop up many, if not most, women visiting the Cosmopolitan at the time. Even assuming that “provocative” clothing is susceptible to coherent categorization — a dangerous undertaking in its own rights — it is far from clear that Goodman was wearing a provocative dress. In fact, she characterized her outfit as relatively conservative. But even that point is irrelevant: Goodman’s choice of dress bears no rational relationship to any suspicion of prostitution, even if it was somehow objectively “provocative.” Defendants do not cite to any case law to the contrary. While it may be less likely that a conservatively dressed individual is operating as a prostitute, the opposite cannot be true. Employing as a factor in the reasonable suspicion analysis the wearing of revealing clothing alone, without any overt conduct, risks criminalizing styles of dress that women have a right to wear, regardless of the surrounding circumstances.
Particularly puzzling is the officers’ apparent attempt to justify Goodman’s ongoing detention based on her wielding of a mobile phone. Defendants do not expressly cite the cell phone as justification for the Terry stop, but argue that it warranted seizure in a patdown search as a weapon. Because Goodman began to send a text message to her boyfriend as the Vice detectives approached her, the visible use of the mobile phone contributed to Defendants’ suspicion of wrongdoing. Indeed, Defendant Segura testified that mobile phones may be used as weapons, and are “vital to girls who make contact with either dates or possible pimps,” thereby justifying their seizure and heightening the scrutiny they placed on Goodman and her friend. (See dkt. no. 84-3 at 31:3-4.) But merely because an item of such ubiquity may be used recklessly or dangerously does not justify its use as an aggravating factor in a police officer’s suspicion calculation. Indeed, the criteria that Defendants attempt to use to explain the seizure of Goodman’s mobile phone (it can conceal a weapon, or it can be used as a weapon) also excuses the seizure of a handkerchief (concealing a weapon) or high-heeled shoes (a sharp weapon). As with the clothing argument, this logic threatens to characterize many, if not most, of the Cosmopolitan’s clientele as weapon-toting objects of suspicion. Otherwise, a mobile phone is as much a dangerous weapon as are high-heeled shoes or a solid glasses case: each of these items, when hurled with reckless abandon, may injure upon contact. It would be irrational per Defendants’ logic to signal out a cell phone as justification for a Terry stop or search, but ignore Goodman’s shoes on her feet.
In sum, all but one fact, discussed below, fail to raise, singly or jointly, any reasonable suspicion of wrongdoing. Precisely because these pieces of information are not rationally limited to individuals who might be more likely than any others to be engaged in prostitution or solicitation, the Court does not weigh them heavily in the Terry analysis. The remaining fact of importance is Goodman’s association with Mosafer, a woman identified by Vice detectives as having been arrested, but not charged, on suspicion of solicitation and apparently known to be married to a well-known pimp. Having determined that Goodman’s appearance and location creates minimal, if any, suspicion of wrongdoing, the added fact that she met her friend previously arrested for prostitution does
This was not a situation where the individual officers observed any activity rationally related to prostitution. Indeed, Defendants’ counsel conceded at oral argument that the officers did not have much opportunity to converse with Goodman and her Mend for fear that Mosafer may have recognized Signorello. Even viewing all facts in the light most favorable to Defendants, the Court is left to conclude that the individual officers acted on a mere hunch and in a hurried manner because of the concern that Mosafer may have recognized them, and purported to justify their actions with facts as likely to ensnare innocent women as to unearth criminals. Courts that have upheld reasonable suspicion in many prostitution cases did so because the detainee was observed interacting with a prospective client in a manner that raised the suspicion of solicitation. See, e.g., United States v. Luqman,
Goodman’s detention therefore cannot withstand the constitutional scrutiny set out in Terry for an investigatory stop.
2. Whether Goodman’s initial detention was transformed into a de facto arrest
In addition to Defendants’ unconstitutional Terry stop, the Fourth Amendment was also violated when Goodman’s detention transformed from a brief, investigatory detention into a defacto arrest.
When a detention exceeds the scope of a permissible Terry stop — that is, something more than “a brief stop, interrogation, and under the proper circumstances, a brief check for weapons” — it has become a de facto arrest that requires probable cause. United States v. Miles, 247 F.3d 1009, 1012 (9th Cir.2001). “There is ‘no bright-line rule to determine when an investigatory stop becomes an arrest.’ ” United States v. Parr,
The Court holds that Goodman’s detention was transformed from a brief, investigatory stop to a de facto arrest. First, although the time of the detention is indeterminate, Goodman testified that based on her recollection and her telephone records, the detention was either two hours or slightly less than two hours long. (See, e.g., dkt. no. 84-1 at 122-23, 176.) On the other hand, Defendants Segura and Signorello failed to recall the duration of her detention, and instead offer blanket denials that Goodman’s detention lasted anywhere near two hours. (Dkt. no. 84-2 at 97; 84-3 at 53.) Although Defendants characterize Goodman’s testimony as “unsupported,” they fail to provide any evidence of the detention’s length. Instead, they ask the Court to disregard Goodman’s sworn statements in favor of their blanket denials. Because Defendants “may not rely on denials ... to show that [a] dispute exists,” Bhan,
Although no per se duration exists at which a Terry stop ends and an arrest commences, a 20-minute confinement has been held too lengthy to be appropriately characterized as an investigatory deten
In addition to its duration, the officers physically handled Goodman and Mosafer and escorted them to a private security facility, a factor that suggests an arrest rather than a brief, investigatory pat-down or detention. The forced relocation of the suspects is a factor that weighs in favor of an arrest finding. Washington,
In addition, the time spent detaining Goodman and the type of interaction she had with her detaining officers did not evidence a diligént investigation. Though the officers attempted to engage Goodman or Mosafer in some questioning, they did not appear to be interested in limiting the amount of time she spent in detention. At least a few questions were asked of Goodman, including her current employment and the reason why she was in the Cosmopolitan, and it appears from Segura’s deposition testimony that a warrant check was conducted for Goodman. (See dkt. no. 84-3 at 50.) It is not clear, however, that the delays in investigating Goodman while holding her in the room were necessary in light of the apparently minimal questioning conducted by Defendants.
On the other hand, that Defendants did not appear to use any particularly aggressive tactics in their detention of Goodman weighs against a finding of an arrest. With the possible exception of grabbing Goodman’s arm, Vice officers did not handcuff her, draw weapons, or otherwise initiate aggressive physical contact in the course of Goodman’s detention.
Nevertheless, even viewing the facts in the light most favorable to Defendants, the Court concludes that Defendants effectuated an arrest of Goodman. Balancing the undisputed facts available to the Court that support an arrest finding (Goodman’s lengthy detention, her physical relocation, her light questioning) with those that do not (her -relatively peaceful detention) reveals that a detention of longer than one hour was not reasonably necessary to effectuate the purpose of a Terry stop, even assuming that such a stop was justified.
Goodman also complains of a Fourth Amendment violation in the seizure and search of her cell phone and purse. For the same reasons that Defendants’ stop of Goodman was unlawful, their interference with her property rights in her purse and cell phone also violated the Fourth Amendment.
A “seizure” of property occurs when “there is some meaningful interference with an individual's possessory interests in that property.” Soldal v. Cook Cnty., Ill.,
Whether the seizures and possible search are justified here depends on the categorization of Goodman’s detention. Because no justification for Goodman’s arrest existed (and therefore no valid search incident to an arrest was effectuated), Defendants’ search and seizure of Goodman’s purse would only be valid if it was the type of pat-down search authorized by Terry. “In Terry the Court first recognized ‘the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause.’ ” Place,
Accordingly, the validity of Defendants’ searches of property do not necessarily rise and fall with the validity of Goodman’s detention; a valid Terry stop may nevertheless be accompanied by an unconstitutional search. But where a Terry stop is invalid, it is nearly impossible for the seizure of property incident to that stop to be constitutional. Here, the illegal detention and arrest of Goodman necessarily invalidates Defendants’ attendant search of her cell phone and purse. This is true regardless of whether Goodman consented to the purse search, as Defendants’ argue, for consent to its search did not remove the taint of the unauthorized detention and arrest. See United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1299 (9th Cir.1988) (recounting test for determining whether evidence gathered during a consensual search after an illegal stop must be excluded). Here, no consent could have been given under the circumstances, because it was extracted during an ongoing unconstitutional detention.
4. LVMPD’s Liability under Monell
Having concluded that Defendants violated Goodman’s constitutional rights when they detained her and seized her property, the Court must now determine whether LVMPD may be liable for the acts of the individual defendants.
“A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation of constitutional rights.” Dougherty v. City of Covina,
Failure to train may amount to a policy of “deliberate indifference,” if the need to train was obvious and the failure to do so made a violation of constitutional rights likely. City of Canton v. Harris,
Goodman does not provide any citation to evidence supporting the existence of a policy or custom to engage in these types of detentions, seizures, and searches. In her response to Defendants’ summary judgment motions, Goodman writes that Signorello “testified that in casino sweeps for prostitutes ... all persons subject to a Terry stop are taken into custody within the casino security office,” but does not provide a citation for this statement. Nevertheless, both Signorello and Segura discussed in their depositions and during their internal affairs investigation Vice’s protocols when conducting anti-prostitution sweeps. Goodman’s detention came in the midst of the sweep, which Vice apparently performs regularly. Signorello further testified in his deposition that Terry stops in these prostitution sweeps typically involve detention and relocation to a secured facility, unless an extreme circumstance involving an argumentative subject requires an arrest at the point of initial contact. (Dkt. no. 84-2 at 59:19-24.) This testimony suggests that LVMPD custom during prostitution sweeps is to detain individuals in approximately the same manner as Goodman. In addition, that Vice sweeps are often “chaotic” and conducted very quickly creates precisely the type of policy that might encourage a “detain first, ask questions later” approach that entangled Goodman in this particular circumstance. This fact is compounded by testimony that suggests LVMPD does not typically monitor the duration of detainees’ confinement, and likely has no way to ensure that detentions are managed efficiently with appropriate respect for their detainee’s constitutional rights.
Signorello also testified that pursuant to LVMPD policy, a seizure and search of
Nevertheless, Goodman’s competing request for summary judgment against LVMPD must also be denied. A number of outstanding factual issues prevent the Court from issuing a decision as a matter of law in favor of Goodman, including whether LVMPD’s detention of Goodman is consistent with their policy and practice in conducting prostitution sweeps, whether Goodman’s unconstitutional detention and arrest is but a “single constitutional deprivation” insufficient to render a judgment against a municipality, see Christie v. Iopa,
5. Individual Defendants’ Qualified Immunity
Where a plaintiff has stated a valid cause of action under § 1983, government officials sued in their individual capacities may raise the affirmative defense of qualified or absolute immunity. See Spoklie v. Montana,
“Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distrae
Because the Court has determined that Defendants Segura and Signorello violated Goodman’s Fourth Amendment right to be free from unreasonable search and seizure, the remaining question is whether the right was clearly established at the time of the violation. See Saucier v. Katz,
“A [government official’s conduct violates clearly established law when, at the time of the challenged conduct, [t]he contours of [a] right [are] sufficiently clear that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Ashcroft v. al-Kidd, — U.S. -,
The right intruded upon by the Vice officers — the right to be free from an unreasonable detention supported by the flimsiest of facts — is well established. As discussed above, the common current running through the prostitution cases where reasonable suspicion existed was the presence of an act that approximates or portends solicitation. See Luqman,
Here, no such act occurred. In fact, based on Goodman’s account of the facts, which the Court must accept in considering the individual defendants’ motion, she rebuffed the Vice-officers’ advances when they attempted to approach her as she and Mosafer were walking towards the Henry and again afterward. The officers then detained her after possibly several more unsuccessful attempts at solicitation. Goodman’s conduct cannot be reasonably construed to arouse any suspicion. Even viewing the facts as alleged by Defendants,
Accordingly, Signorello and Segura cannot receive the benefit of qualified immunity in this case, where the facts are not susceptible to a reasonable conclusion that Goodman’s stop was constitutional. Defendants’ motion for summary judgment on the issue of qualified immunity is therefore denied.
B. State law claims
On the remaining state law claims, Defendants rest their summary judgment request primarily on the discretionary function exception to Nevada’s waiver of sovereign immunity, arguing that Nevada precludes an officer’s liability for state law torts committed as a result of discretionary actions.
Although Nevada has generally waived its state immunity under NRS § 41.031, the State has retained immunity under NRS § 41.032 for officials exercising discretion. NRS § 41.032(2) states no actions may be brought against an officer of the State or its political subdivision that is “[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” On its face, this statute does not immunize municipal governments or their employees because municipalities are considered independent corporations or “persons” with their own identities, not mere political subdivisions of a state. See Monell,
In determining whether immunity applies under NRS § 41.032, the Nevada Supreme Court has adopted the general principles of federal jurisprudence as to discretionary-function immunity, holding that the actions of state officers are entitled to discretionary-function immunity if their decision (1) involves an element of individual judgment or choice and (2) is based on considerations of social, economic, or political policy. Martinez v. Maruszczak,
“A law enforcement officer is generally afforded discretionary-function immunity in conducting an investigation and effectuating an arrest so long as the officer does not violate a mandatory directive in doing so.” Sandoval v. Las Vegas Metro. Police Dept.,
“However, acts which violate the Constitution are not discretionary.” Jarvis v. City of Mesquite Police Dept., No. 09-CV-00851,
Because Defendants did violate the Constitution, and did so in a manner that renders Signorello and Segura unable to avail themselves of the qualified immunity defense, the discretionary function exception to Nevada’s waiver of sovereign immunity will not shield them from state liability. Nurse,
1. False imprisonment
“To establish false imprisonment of which false arrest is an integral part, it is ... necessary to prove that the person be restrained of his liberty under the probable imminence of force without any legal cause or justification.” Marschall v. City of Carson,
The significant overlap between the Fourth Amendment analysis and the false imprisonment/false arrest claim compels summary judgment in favor of Goodman on this claim. Having established that no “legal cause or justification” existed for detaining and arresting Goodman, the essential elements for a false imprisonment claim are met: (1) Defendants intended to confine Goodman during the course of her detention and arrest; (2) their actions directly caused the confinement; and (3) Goodman was aware that she was being confined and was not free to leave. That her detention was particularly lengthy, and could not survive under Nevada law, lends additional support to this position. See NRS § 171.123(4) (limiting temporary detentions to only a time “that is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes ” (emphasis added)). The Court thus grants Goodman’s request for summary judgment on this claim.
2. Battery
Defendants’ primary argument in support of summary judgment on Goodman’s battery claim relates to the discretionary function exception to NRS § 41.032. As explained above, that exception does not apply in this case.
3. Defamation
In opposition to Defendants’ Motions, Goodman argues that her forced relocation to the Cosmopolitan’s security office, in the presence of Cosmopolitan staff and third parties, amounted to defamation by pantomime because it communicated to others that Goodman was a prostitute.
In order to succeed on her defamation claim, a plaintiff must show that “(1) a false and defamatory statement by defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.” Chowdhry v. NLVH, Inc.,
Here, questions of fact preclude granting summary judgment on the defamation claim. First, Goodman’s escorting from the casino floor to the Cosmopolitan’s security office raises the potential for a defamation by pantomime communicated to other visitors of the casino. K-Mart Corp.,
Second, Defendants’ detention of Goodman in the Cosmopolitan security room also creates a material question of fact as to defamation by pantomime. Presence inside the security facility, used at the time to house suspected prostitutes, creates an
4. Intentional infliction of emotional distress
Goodman’s final state law claim is for intentional infliction of emotional distress, which requires “(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff’s having suffered severe or extreme emotional distress and (3) actual or proximate causation.” Star v. Rabello,
VI. CONCLUSION
LVMPD has developed a policy and practice of broad-scale prostitution sweeps in public casinos in a manner that threatens the constitutional rights of the women they target. As evidenced by Goodman’s detention and arrest in February 2011, the imprecise nature of Vice’s undercover activity results in a chaotic atmosphere that portends serious constitutional violations in cases where officers fail to appropriately assess the suspicion of their targets, all without appropriate checks on individual officer’s actions. The Constitution requires more.
IT IS THEREFORE ORDERED that Plaintiff Chentile Goodman’s Motion in Limine (dkt. no. 74) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motions for Summary Judgment (dkt. nos. 81 and 82) are DENIED.
IT IS FURTHER ORDERED that Defendants’ Amended Motion to Seal (dkt. nó. 87) is DENIED. However, the Court will tehaporarily suspend unsealing Segura and Signorello’s deposition transcripts (dkt. nos.- 84-2 and 84-3) to give Defendants leave to file a renewed motion to seal portions of these two transcripts that should be sealed for compelling reasons. Such a motion must be filed within fourteen (14) days from the entry of this Order.
IT IS' FURTHER ORDERED that Plaintiff Chentile Goodman’s Motion for Partial Summary Judgment (dkt. no. 84) is GRANTED in part and DENIED in part.
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the Order.
IT IS SO ORDERED.
Notes
. Sergeant Signorello described the details of a typical Vice operation to investigators within LVMPD’s Office of Internal Affairs.
. Nevada law charges engaging in or solicitation of prostitution as the same offense. See NRS § 201.354(1). A person who engaged in prostitution or solicits prostitution is guilty of a misdemeanor. NRS § 201.354(2).
. In his deposition, Signorello did not recall that he was the officer who approached Mo-safer.
. According to the record, an outcall nude entertainer essentially operates as an exotic dancer, but performs at locations requested by the client for special events.
. In their motions for summary judgment, Defendants also cited as support the allegation that Goodman works as a dancer at a strip club, a profession which lends itself to prostitution. However, Goodman argues that Defendants would not have known this fact when they detained her. During oral argument, Defendants' counsel conceded that the two officers would not have known Goodman's profession at that time.
. A romper is a "a fashionable, loose-fitting woman's garment combining especially] a short-sleeved or sleeveless top and wide-legged shorts.” Oxford English Dictionary (3d ed.2010).
. Goodman’s only act was, according to Defendants, to send a text message on her mobile phone. As explained above, messaging another via cell phone cannot, in this situation, reasonably be understood as a prelude to prostitution or solicitation.
. Importantly, Goodman does not argue that any misconduct levied against her was the result of an act or ratification by an official with final policymaking authority. See Ellins v. City of Sierra Madre,
. As Defendants correctly point out, there is no allegation that Signorello performed the complained-of physical contact. Therefore, only Segura (and LVMPD) may be liable for battery.