Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 1 of 29 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Allen Howell, et al., ) No. 04-CV-2280-PHX-FJM ) 10 Plaintiffs, ) ORDER ) 11 vs. ) ) 12 ) Sheila Sullivan Polk et al., ) 13 ) Defendants. ) 14 ) ) 15 16 I. Background 17 The Prescott Area Narcotics Task Force ("PANT") is an intergovernmental 18 organization comprised of Yavapai County area municipalities and aimed to reduce unlawful 19 narcotics activities. Officer Palguta of the Prescott Valley Police Department was assigned 20 to the PANT. Acting in his PANT capacity, he obtained a tip from a confidential informant 21 that Bryan Keith Howell, plaintiffs' son, was selling marijuana out of a home in Prescott, 22 Arizona. Accordingly, Officer Palguta applied for and was issued a warrant for a search of 23 the Howell residence. 24 Plaintiffs Robert Howell and Patti Howell, and their younger son Dillon Howell, were 25 asleep when, at approximately 6:30 a.m., the police arrived to execute the search warrant. 26 The police believed that they would find less than two pounds of marijuana and other drug 27 related paraphernalia inside. They knocked and announced their presence and then forcibly 28  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 2 of 29 1 breached the home's steel security door and interior front door. Robert Howell testified that 2 he heard loud noises and felt the house pulsating, that he grabbed his handgun for protection, 3 and that he entered the living room, at which time the door burst open. He states that he fired 4 one shot into the doorway in defense of himself and his family, and immediately thereafter, 5 when he realized that the intruders were the police, he dropped his gun and fell to the floor. 6 Robert Howell was arrested and charged with attempted murder, aggravated assault against 7 a police officer, and unlawful discharge of a firearm within the limits of a municipality. All 8 charges were subsequently withdrawn or dismissed. 9 Plaintiffs assert various constitutional claims pursuant to 42 U.S.C. § 1983 for harms 10 arising out of this incident. Plaintiffs name two general categories of defendants: defendants 11 Hodap, Palguta, Johnson, Wylie, Wilcoxson, Gronek and Bonney because they executed the 12 search as a PANT unit (collectively, "PANT Defendants"); and defendants Polk, Reed, 13 Benner, Huntsman, Buchanan, Schatz, Spence, Jones, Vernier, Wischmeyer, Muma, 14 O'Hagan, and Schmidt because they comprise the PANT Board, which governs the PANT 15 (collectively, "Board Defendants"). Defendants, however, have divided themselves into 16 three groups: defendants Polk, Buchanan, O'Hagan, and Johnson (collectively, "Yavapai 17 County Defendants"); defendants Huntsman, Schatz, Spence, Jones, Vernier, Wischmeyer, 18 Muma, Schmidt, Palguta, Wylie, Wilcoxson, and Gronek (collectively, "Huntsman 19 Defendants"); and defendants Reed, Benner, Hodap and Bonney (collectively, "Prescott 20 Defendants"). 21 The court has before it Plaintiffs' Motion for Partial Summary Judgment (doc. 64), 22 Yavapai County Defendants' Response (doc. 68), Huntsman Defendants' Response (doc. 86), 23 Plaintiffs' Reply to Yavapai County Defendants' Response (doc. 88), Plaintiffs' Reply to 24 Huntsman Defendants' Response (doc. 106), Plaintiffs' Supplemental Pleading (doc. 119), 25 Huntsman Defendants' Objection (doc. 122), Yavapai County Defendants' Joinder (doc. 127), 26 and Plaintiffs' Response to Huntsman Defendants' Objection (doc. 125). The court also has 27 before it Prescott Defendants' Phase I Motion for Partial Summary Judgment (doc. 62) and 28 Plaintiffs' Response (doc. 95); Yavapai County Defendants' Joinder (doc. 67); Yavapai -2-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 3 of 29 1 County Defendants' Motion for Summary Judgment (doc. 68), Plaintiffs' Response (doc. 94), 2 and Yavapai County Defendants' Reply (doc. 101); Huntsman Defendants' Motion for 3 Summary Judgment (doc. 82), Plaintiffs' Response (doc. 105), and Huntsman Defendants' 4 Reply (doc. 115); Prescott Defendants' Phase II Motion for Partial Summary Judgment (doc. 5 120), Plaintiffs' Response (doc. 128), and Prescott Defendants' Reply (doc. 131). The court 6 also has before it Plaintiffs' Motion to Strike Yavapai County Defendants' Statement of Facts 7 (doc. 89), Yavapai County Defendants' Response (doc. 98), and Plaintiffs' Reply (doc. 111); 8 Plaintiffs' Motion to Strike Prescott Defendants' Statement of Facts (doc. 93); Yavapai 9 County Defendants' Motion to Strike Plaintiffs' Supplemental Statement of Facts (doc. 100), 10 Plaintiff's Response (doc. 110), and Yavapai County Defendants' Reply (doc. 113); Plaintiffs' 11 Motion to Strike Huntsman Defendants' Statement of Facts (doc. 107), Huntsman 12 Defendants' Response (doc. 116), and Plaintiffs' Reply (doc. 117); Huntsman Defendants' 13 Motion to Strike Plaintiffs' Second Supplemental Statement of Facts (doc. 123), Yavapai 14 County Defendants' Joinder (doc. 126), and Plaintiffs' Response (doc. 124); and Plaintiffs' 15 Motion to Strike Prescott Defendants' Motion for Summary Judgment (doc. 128) and Prescott 16 Defendants' Response (doc. 131). The court also has before it Prescott Defendants' Motion 17 for an Extension of Time to Disclose an Expert Witness (doc. 77) and Plaintiffs' Response 18 (doc. 80). 19 II. Ambiguity in the Complaint 20 A complaint must set forth " 'a short and plain statement of the claim' that will give 21 the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." 22 Conley v. Gibson, 355 U.S. 41" date_filed="1957-11-18" court="SCOTUS" case_name="Conley v. Gibson">355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957) (quoting Fed. R. Civ. P. 8(a)(2)). 23 In the first through the fourth claims for relief, plaintiffs claim that the PANT Defendants 24 violated plaintiffs' due process and Fourth Amendment rights in obtaining the search warrant, 25 in executing the search warrant, in restraining both plaintiffs, and in arresting Robert 26 27 28 -3-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 4 of 29 1 Howell.1 With regard to each of these claims, plaintiffs raise related supervisory liability 2 claims against 16 defendants for the failure to train and failure to supervise the PANT 3 Defendants. The complaint is, however, frustratingly unclear because plaintiffs fail to 4 identify which of these supervisory liability claims are asserted against which of the 16 5 defendants. 6 Of the 16 defendants, 15 are Board Defendants, and the other is defendant Hodap, the 7 supervisor of the PANT Defendants. Defendant Hodap's name is not distinguished in any 8 way, but rather is buried as name 10 in the list of 15 Board Defendants, and is therefore 9 overshadowed and easily overlooked. It was not obvious to the court that plaintiffs asserted 10 a failure to train or failure to supervise claim against defendant Hodap. It was not obvious 11 to defendants either, because despite the extensive summary judgment briefings on every 12 other claim presented, no defendant even referenced a failure to supervise or failure to train 13 claim against defendant Hodap. Plaintiffs never clarified this matter in their briefings 14 because they did not move for summary judgment on any of the failure to train and failure 15 to supervise claims, explicitly noting that these claims should be decided by the jury.2 16 Therefore, to the extent that plaintiffs intended to raise claims against defendant Hodap for 17 the failure to train or the failure to supervise the other defendants, those claims fail because, 18 by virtue of plaintiffs' ambiguous pleading, plaintiffs failed to give the requisite notice to 19 defendants. 20 21 1 22 In Claim Five, plaintiffs claim that defendant Polk violated Robert Howell's right to a fair trial by influencing a juror. Yavapai County Defendants contend that plaintiffs 23 voluntarily withdrew that claim. Yavapai County Defendants Phase I Motion for Summary Judgement at 3. However, plaintiffs have not filed a stipulation of dismissal or moved for 24 dismissal as required by Rule 41, Fed. R. Civ. P. At all events, plaintiffs do not dispute 25 Yavapai County Defendants' contention, nor do they reference Claim Five in any of their numerous briefings. We interpret this as agreement, and accordingly, we dismiss Claim Five. 26 2 27 In their supplemental statement of facts, plaintiffs include some evidence with regard to defendant Hodap's supervisory abilities, but, without more, this is insufficient to give 28 defendants fair notice of a claim against defendant Hodap for supervisory liability. -4-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 5 of 29 1 It is also unclear whether plaintiffs allege that Board Defendants are liable for both 2 the failure to train and the failure to supervise, or solely for the failure to train. The 3 complaint suggests that Board Defendants are liable for both, but plaintiffs failed to address 4 the failure to supervise claims in any of their numerous pleadings. Defendants moved for 5 summary judgment on the failure to supervise claims against Board Defendants (docs. 62, 6 68, 82), but plaintiffs failed to respond, Plaintiffs' Response to Yavapai County Defendants' 7 Motion for Summary Judgment at 11-17 (responding only to defendants' motion for summary 8 judgment with regard to the failure to train claims). Failure to respond to a motion "may be 9 deemed a consent to the . . . granting of the motion, and the Court may dispose of the motion 10 summarily." LRCiv 7.2(i). Therefore, to the extent that plaintiffs intended to raise claims 11 against Board Defendants for the failure to supervise PANT Defendants, we grant 12 defendants' motions for summary judgment on those claims (docs. 62, 68, 82). 13 We surmise that plaintiffs intended to raise claims against defendant Hodap for the 14 failure to supervise, and against Board Defendants for the failure to train, but that was far 15 from obvious in the complaint. In fact, plaintiffs' complaint is rife with confusion with 16 regard to the failure to train and failure to supervise claims, with regard to the personal 17 capacity and official capacity claims, and with regard to the claims for judicial deception, 18 which were never clearly articulated, and which in the complaint are merged in the same 19 sentence with the claims for the unlawful execution of the search warrant. Only now 20 recognizing this, we regret that we denied Yavapai County Defendants' motion for a more 21 definite statement (doc. 47). 22 It is however obvious to the court and to all parties that plaintiffs claim that Board 23 Defendants are liable in their personal capacities for the failure to train PANT Defendants 24 with regard to the acts alleged in the first through the fourth claims for relief. Plaintiffs also 25 claim that all defendants are liable in their official capacities for the first through the fourth 26 claims for relief. Official capacity suits are "another way of pleading an action against an 27 entity of which an officer is an agent." Hafer v. Melo, 502 U.S. 21" date_filed="1991-11-05" court="SCOTUS" case_name="Hafer v. Melo">502 U.S. 21, 25, 112 S. Ct. 358, 361 28 (1991) (quotation omitted). Therefore, through the vehicle of the official capacity claims, -5-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 6 of 29 1 it appears that plaintiffs claim that the municipalities for which each defendant is employed 2 are liable for the failure to adequately train PANT Defendants. We consider these failure to 3 train claims below. 4 III. Claim One: Substantive Due Process 5 Plaintiffs claim that PANT Defendants violated plaintiffs' Fourteenth Amendment 6 substantive due process rights by obtaining and executing the search warrant in an arbitrary 7 and oppressive manner. Complaint at 11. Plaintiffs also raise the related claims for 8 inadequate training. Id. at 11-12. The Fourth Amendment, which safeguards the people 9 from the governments' unreasonable execution of searches, is the proper avenue for relief 10 with regard to these claims. "Where a particular Amendment provides an explicit textual 11 source of constitutional protection against a particular sort of government behavior, that 12 Amendment, not the more generalized notion of substantive due process, must be the guide 13 for analyzing these claims." Albright v. Oliver, 510 U.S. 266" date_filed="1994-01-24" court="SCOTUS" case_name="Albright v. Oliver">510 U.S. 266, 273, 114 S. Ct. 807, 813 14 (1994) (quotation omitted). Accordingly, "substantive due process, with its scarce and open- 15 ended guideposts can afford [plaintiffs] no relief." Id. (quotation omitted). We therefore 16 grant defendants' motions for summary judgment (docs. 62, 67, 68, 82) and deny plaintiffs' 17 motion for summary judgment (doc. 64) on these claims. 18 IV. Claim Two: Judicial Deception 19 Judge Weaver of the Yavapai County Superior Court issued a warrant for the search 20 of 543 Dameron Street, Prescott–the Howell residence–based upon an affidavit issued, and 21 statements made, by defendant Palguta. Plaintiffs' Statement of Facts ("PSOF"), Exhibit 4 22 at 8-9, Exhibit 5 at 1. Plaintiffs claim that PANT Defendants violated plaintiffs' Fourth and 23 Fourteenth Amendment rights by knowingly, intentionally, or with reckless disregard for the 24 truth, issuing false or misleading statements in the affidavit, which were necessary to the 25 finding of probable cause. Complaint at 12; Response to Huntsman Defendants' Motion for 26 Summary Judgment at 5. Plaintiffs also raise the related claims for inadequate training. 27 Complaint at 11-12. Plaintiffs and defendants move for summary judgment on these claims 28 (docs. 62, 64, 67, 68, 82). -6-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 7 of 29 1 A. Personal Capacity Claim Against Defendant Palguta 2 An officer who submits an affidavit in support of an application for a search warrant 3 commits a Fourth Amendment violation where he "intentionally or recklessly" includes false 4 or misleading facts in the affidavit, or "omit[s] facts required to prevent technically true 5 statements . . . from being misleading." Liston v. County of Riverside, 120 F.3d 965" date_filed="1997-10-09" court="9th Cir." case_name="97 Cal. Daily Op. Serv. 5742 v. County of Riverside">120 F.3d 965, 973 6 (9th Cir. 1997) (quoting United St]ates v. Stanert, 762 F.2d 775" date_filed="1985-08-28" court="9th Cir." case_name="United States v. Stanley Mills Stanert">762 F.2d 775, 781 (9th Cir. 1985), as 7 amended, 769 F.2d 1410" date_filed="1985-08-29" court="9th Cir." case_name="United States v. State of Oregon">769 F.2d 1410 (9th Cir. 1985)). Defendant Palguta claims that he did neither, and 8 that at all events, he is entitled to qualified immunity. To survive a motion for summary 9 judgment premised on these defenses, the plaintiff has the burden to: 10 1) make a substantial showing of deliberate falsehood or reckless disregard for the truth and 2) establish that, but for the dishonesty, the challenged action 11 would not have occurred. If a plaintiff satisfies these requirements, the matter should go to trial. Put another way, the showing necessary to get to a jury in 12 a 1983 action is the same as the showing necessary to get an evidentiary hearing under Franks [v. Delaware, 438 U.S. 154" date_filed="1978-06-26" court="SCOTUS" case_name="Franks v. Delaware">438 U.S. 154, 98 S. Ct. 2674 (1978)].3 13 Liston, 120 F.3d 965" date_filed="1997-10-09" court="9th Cir." case_name="97 Cal. Daily Op. Serv. 5742 v. County of Riverside">120 F.3d at 973 (quotations omitted). 14 15 3 16 An officer will be protected by qualified immunity if he can show that the law was not so clear that a reasonable officer would have understood that what he was doing violated 17 a right. Hope v. Pelzer, 536 U.S. 730" date_filed="2002-06-27" court="SCOTUS" case_name="Hope v. Pelzer">536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002). Normally, when 18 considering a motion for summary judgment based upon the defense of qualified immunity, the court must consider first whether the "officers' conduct violated a constitutional right," 19 and if so, then consider"whether the right was clearly established." Saucier v. Katz, 533 U.S. 20 194, 201, 121 S. Ct. 2151" date_filed="2001-06-18" court="SCOTUS" case_name="SAUCIER v. KATZ Et Al.">121 S. Ct. 2151, 2156 (2001). With regard to judicial deception claims, however, the Court of Appeals merged the analysis into one test. 21 Th[e] merger is ultimately appropriate because . . . no reasonable officer could 22 believe that it is constitutional to act dishonestly or recklessly with regard to 23 the basis for probable cause in seeking a warrant. Accordingly, should a factfinder find against an official on the state-of-mind question, qualified 24 immunity would not be available as a defense. On the other hand, should the 25 fact-finder find at trial in the officer's favor, i.e., that he did not act dishonestly or recklessly, that officer's conduct would not have violated any clearly 26 established statutory or constitutional rights. 27 Butler v. Elle, 281 F.3d 1014" date_filed="2002-02-26" court="9th Cir." case_name="Cornelius "Neil" Butler v. Eric Elle">281 F.3d 1014, 1024 (9th Cir. 2002). 28 -7-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 8 of 29 1 Plaintiffs argue that Palguta displayed at least a reckless disregard for the truth in his 2 application for the search warrant. Palguta's affidavit in support of the application for the 3 search warrant states that a "confidential reliable informant saw a useable/saleable quantity 4 of marijuana . . . in the living area of the residence listed here in [sic] and in the possession 5 of BRYAN KEITH HOWELL within the last 72 hours." PSOF, Exhibit 4 at 4. The affidavit 6 does not specify the means by which the informant obtained the information. Judge Weaver 7 declared that Palguta "advised [him] or led [him] to believe that the activities of the 8 confidential reliable informant were the result of a 'controlled buy,' " meaning a buy 9 monitored by law enforcement officers. PSOF, Exhibit 5 at 1. However, Palguta later 10 testified that the information was acquired through a "look-see buy," PSOF, Exhibit 7 at 15- 11 20, Exhibit 8 at 39-42, which is not monitored by law enforcement officers, PSOF, Exhibit 12 5 at 1. 13 Furthermore, the affidavit states that the confidential informant saw the marijuana at 14 the residence at 543 Dameron Street. PSOF, Exhibit 4 at 1, 4. However, Palguta later stated 15 that the confidential informant was not clear with regard to the address of the buy, that the 16 informant believed the address included a half-number (e.g., 543 ½ Dameron Street), and that 17 the officers "just assumed that [the residence at 543 Dameron Street] was the residence" 18 where the confidential informants saw the marijuana. PSOF, Exhibit 7 at 17-19.4 The 19 affidavit describes the residence as a "blue stick built house," but Palguta stated that the 20 confidential informants just revealed the address of the house; the color of the house was 21 acquired by the officers when they later "drove by." PSOF, Exhibit 7 at 19. Increasing 22 confusion, plaintiffs set forth the "initial affidavit for search warrant prepared by Palguta" 23 which refers to "545 Dameron St[.]," a "pink stick" house. PSOF ¶ 28, Exhibit 10 at 1. 24 4 25 Defendant Palguta subsequently recanted his statements with regard to the address. "The informant didn't say that [the address included a half-number]." PSOF, Exhibit 6 at 36. 26 "I later realized–it was after speaking with Detective Johnson. Detective Johnson advised 27 me [that] the informant gave the correct number. It was I that believed it could have been a half number due to the configuration of the numbers on a placard outside of the residence." 28 Id. -8-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 9 of 29 1 Despite all of the confusion, Palguta never attempted to verify that Bryan Howell lived at 543 2 Dameron Street. PSOF, Exhibit 7 at 26. The affidavit in support of the application for the 3 search warrant does not reference any of the confusion with regard to the address. This is 4 substantial evidence from which a jury could find that Palguta displayed at least a reckless 5 disregard for the truth with regard to the evidence he presented in support of the application 6 for the search warrant.5 7 Therefore, we must shear away the objectionable material, and include the omitted 8 material, and determine if the affidavit provides a "substantial basis" for concluding that 9 probable cause existed to search the residence at 543 Dameron Street. See Stanert, 762 F.2d 10 at 782. We conclude that the affidavit does not provide a substantial basis for concluding 11 that probable cause existed. The amended affidavit merely provides that a confidential 12 informant, who is a former methamphetamine user and who twice within the previous six 13 months aided the police by making controlled buys of methamphetamines, saw a 14 useable/saleable quantity of marijuana at a house on Dameron Street during a buy that was 15 not monitored by law enforcement, and despite confusion with regard to the address, the 16 police assumed the house number to be 543.6 See PSOF, Exhibit 4. 17 Plaintiffs have set forth sufficient evidence to survive defendants' motions for 18 summary judgment on this judicial deception claim. However, the determination of Palguta's 19 20 21 5 Plaintiffs also argue that Palguta incorrectly referred to Bryan Keith Howell in the 22 affidavit as both Bryan Keith Howell and Bryan Keith Kelly, to which Palguta offers a variety of apparently inconsistent justifications. While we agree with plaintiffs that the 23 inconsistencies are of concern, and they may be relevant for impeachment purposes, we do not agree that they are material to the probable cause inquiry. 24 6 25 Moreover, Judge Weaver, who issued the search warrant, declared that had he been aware that "PANT officers took no action to confirm that the residence address of 543 26 Dameron St., Prescott, Arizona was the residence of the subject Bryan Keith Howell" and 27 had he been aware "that there was no 'controlled buy' but only a 'look see buy' that had not been monitored nor surveil[l]ed by law enforcement," he would not have signed the search 28 warrant. PSOF, Exhibit 5. -9-  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 10 of 29 1 mental state hinges on disputed issues of fact. Therefore, we deny all motions for summary 2 judgment on this claim (docs. 62, 64, 67, 68, 82). 3 B. Personal Capacity Claims Against the Remaining PANT Defendants 4 An officer will only be liable for a constitutional violation if he was an integral 5 participant in the allegedly unconstitutional act. Boyd v. Benton County, 374 F.3d 773" date_filed="2004-06-28" court="9th Cir." case_name="Kristianne Boyd v. Benton County City of Corvallis William Ellison Scott Bressler Dave Reed Tom Cook Ryan Moody John Chilcote Allen Schermerhorn David Scott Shawn Houck Ken Rueben Dennis Carson">374 F.3d 773, 780 6 (9th Cir. 2004). Plaintiffs, however, fail to submit any evidence that any other PANT 7 Defendant aided Palguta in obtaining the search warrant. Therefore, to the extent that 8 plaintiffs direct their claim for judicial deception against the other PANT Defendants for 9 participating in the judicial deception, those claims fail as a matter of law. Accordingly, we 10 grant defendants' motions for summary judgment (docs. 62, 67, 68, 82) and deny plaintiffs' 11 motion for summary judgment (doc. 64) on these claims. 12 C. Personal Capacity Claims Against Board Defendants 13 Plaintiffs also claim that Board Defendants are liable in their personal capacities for 14 failing to adequately train PANT Defendants with regard to obtaining search warrants. 15 Complaint at 13. "Under [s]ection 1983, supervisory officials are not liable for actions of 16 subordinates on any theory of vicarious liability," Hansen v. Black, 885 F.2d 642" date_filed="1989-09-19" court="9th Cir." case_name="Kathleen Hansen v. Ronald L. Black">885 F.2d 642, 645-46 17 (9th Cir. 1989), and therefore "rigorous standards of culpability and causation must be 18 applied" to avoid holding a supervisor liable for the actions of its subordinate, Board of the 19 County Comm'rs v. Brown, 520 U.S. 397" date_filed="1997-04-28" court="SCOTUS" case_name="Board of the County Commissioners of Bryan County v. Brown">520 U.S. 397, 405, 117 S. Ct. 1382, 1389 (1997); accord City 20 of Canton v. Harris, 489 U.S. 378" date_filed="1989-02-28" court="SCOTUS" case_name="City of Canton v. Harris">489 U.S. 378, 391, 109 S. Ct. 1197, 1206 (1989). Accordingly, we are 21 skeptical that, as a matter of section 1983 law, the failure to train an officer could ever 22 proximately cause the officer to act with a reckless disregard for the truth. However, to the 23 extent that such liability is feasible, it does not exist here because plaintiffs fail to produce 24 any evidence from which to conclude that the failure to train Palguta with regard to search 25 warrants proximately caused him to act with a reckless disregard for the truth. We therefore 26 grant defendants' motions for summary judgment (docs. 62, 67, 68, 82) and deny plaintiffs' 27 motion for summary judgment (doc. 64) on these claims. 28 - 10 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 11 of 29 1 D. Official Capacity Claims Against all Defendants for the Failure to Train 2 Plaintiffs also claim that all defendants are liable in their official capacities for the 3 failure to train PANT Defendants with regard to obtaining search warrants. In an official 4 capacity suit, the real party in interest is the municipality, which cannot be liable on a theory 5 of vicarious liability, and can only be liable if the harm arose out of the entity's official policy 6 or custom. Hafer v. Melo, 502 U.S. 21" date_filed="1991-11-05" court="SCOTUS" case_name="Hafer v. Melo">502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991). As with supervisory 7 liability, "rigorous standards of culpability and causation must be applied" to avoid holding 8 a municipality liable for the actions of its employees. Board of the County Comm'rs v. 9 Brown, 520 U.S. 397" date_filed="1997-04-28" court="SCOTUS" case_name="Board of the County Commissioners of Bryan County v. Brown">520 U.S. at 405, 117 S. Ct. at 1389. As previously articulated, plaintiffs fail to 10 produce any evidence from which to conclude that the failure to train Palguta with regard to 11 search warrants proximately caused him to act with a reckless disregard for the truth. 12 Accordingly, we grant defendants' motions for summary judgment (docs. 62, 67, 68, 82) and 13 deny plaintiffs' motion for summary judgment (doc. 64) on these claims. 14 V. Claim Two: Unconstitutional Execution of Search Warrant 15 Plaintiffs claim that PANT Defendants violated plaintiffs' Fourth and Fourteenth 16 Amendment rights by executing the warrant in an unreasonable manner. Complaint at 12-13. 17 Plaintiffs also raise the related claims against all defendants for inadequate training. Id. 18 Plaintiffs and defendants move for summary judgment on these claims (docs. 62, 64, 67, 68, 19 82). 20 A. Personal and Official Capacity Claims Against Defendant Polk 21 In a related criminal case in Yavapai County Superior Court, State of Arizona v. 22 Robert Howell, Judge Sterling concluded that defendants executed the search warrant at issue 23 in violation of the United States Constitution. Prescott Defendants' Statement of Facts 24 ("PDSOF"), Exhibit K at 3. There, the state was represented by Deputy County Attorney 25 Steven Young of the Yavapai County Attorney's Office, a subordinate of defendant Polk, the 26 Yavapai County Attorney.7 Yavapai County Defendants Statement of Facts ¶¶ 98-99. 27 7 28 Polk is a defendant in this action in her role as a PANT board member. - 11 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 12 of 29 1 Plaintiffs argue that Polk is estopped from relitigating the issue of the constitutionality of the 2 execution of the search warrant. The parties dispute whether Polk was in privity with the 3 State of Arizona in the underlying criminal action, and therefore whether she is bound by the 4 underlying decision. 5 "The doctrine of collateral estoppel bars the relitigation of issues that were resolved 6 in a prior proceeding . . . ." Fund for Animals, Inc. v. Lujan, 962 F.2d 1391" date_filed="1992-04-29" court="9th Cir." case_name="The Fund For Animals v. Manuel Lujan">962 F.2d 1391, 1399 (9th Cir. 7 1992) (citation omitted). It "relieve[s] parties of the cost and vexation of multiple lawsuits, 8 conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] 9 reliance on adjudication." Allen v. McCurry, 449 U.S. 90" date_filed="1980-12-09" court="SCOTUS" case_name="Allen v. McCurry">449 U.S. 90, 94, 101 S. Ct. 411, 415 (1980). 10 It is an equitable doctrine over which the district court has broad discretion. Copeland v. 11 Merrill Lynch & Co., Inc., 47 F.3d 1415" date_filed="1995-03-09" court="5th Cir." case_name="Bankr. Rep. P 76 v. Merrill Lynch & Co.">47 F.3d 1415, 1423 (5th Cir. 1995). 12 Even assuming that Polk was in privity with the state in the underlying action, we 13 decline to bar her from relitigation because none of the policies underlying the doctrine of 14 collateral estoppel would be served. The constitutionality of the search must be litigated 15 between plaintiffs and the remaining 19 defendants, three of whom are represented by Polk's 16 counsel. Therefore, barring Polk from relitigation will not decrease the cost or vexation of 17 litigation on either the parties or the court. Moreover it would create the very real risk of 18 inconsistent outcomes. A jury could reach the incongruous conclusion that PANT 19 Defendants constitutionally executed the search, but Polk is liable for failing to train PANT 20 Defendants as to how to constitutionally execute a search. Therefore, we deny plaintiffs' 21 motion for partial summary judgment against defendant Polk on the issue of collateral 22 estoppel (doc. 64). 23 B. Personal Capacity Claims Against Yavapai County Defendants 24 Defendant Johnson moves for summary judgment arguing that he "did not participate 25 in, or time, the knock and announce, and did not forcibly enter Plaintiffs' home." Yavapai 26 County Defendants' Phase I Motion for Summary Judgment at 12. An officer can be liable 27 under section 1983 if he was an integral participant–a "full, active participant"–in the 28 allegedly unconstitutional search even if his actions did not individually "rise to the level of - 12 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 13 of 29 1 a constitutional violation." Boyd v. Benton County, 374 F.3d 773" date_filed="2004-06-28" court="9th Cir." case_name="Kristianne Boyd v. Benton County City of Corvallis William Ellison Scott Bressler Dave Reed Tom Cook Ryan Moody John Chilcote Allen Schermerhorn David Scott Shawn Houck Ken Rueben Dennis Carson">374 F.3d 773, 780 (9th Cir. 2004) 2 (quoting Melear v. Spears, 862 F.2d 1177" date_filed="1989-01-12" court="5th Cir." case_name="Carrie Melear and Willie Stewart v. Wayne Spears, Etc., Ron Averitt, Etc.">862 F.2d 1177, 1186 (5th Cir. 1989)). For example, an officer 3 that did not enter an apartment, and only provided armed backup at the door during a search 4 is integral to the search and therefore can be liable when the search is found to be 5 unconstitutional. Id. (citing Melear, 862 F.2d 1177" date_filed="1989-01-12" court="5th Cir." case_name="Carrie Melear and Willie Stewart v. Wayne Spears, Etc., Ron Averitt, Etc.">862 F.2d at 1186). However, an officer will not be 6 liable if he acts as a mere bystander during a search. Id. 7 Johnson states that he was second in the lineup during the search, "behind Detective 8 Palguta making entry." PSOF, Exhibit 8 at 221. The fact that Johnson never made entry due 9 to the shooting is irrelevant, because it is unnecessary for the officer to enter the residence 10 to be an integral participant in the search. See Melear, 862 F.2d 1177" date_filed="1989-01-12" court="5th Cir." case_name="Carrie Melear and Willie Stewart v. Wayne Spears, Etc., Ron Averitt, Etc.">862 F.2d at 1186. Johnson's position 11 in the lineup is sufficient to allow a jury to conclude that he was an integral participant. 12 Johnson argues, however, that because he did not know that the search was being 13 conducted unconstitutionally, and because he did not time the waiting period between the 14 knock and announce and the breach, which is the fundamental alleged insufficiency, he 15 cannot be considered an integral participant. Knowledge of the unconstitutional element is, 16 however, unnecessary to sustain liability. In Boyd, although the court considered that "every 17 officer was aware of the decision to use the flash-bang," the unconstitutional element, that 18 knowledge was not necessary to the holding. Boyd, 374 F.3d 773" date_filed="2004-06-28" court="9th Cir." case_name="Kristianne Boyd v. Benton County City of Corvallis William Ellison Scott Bressler Dave Reed Tom Cook Ryan Moody John Chilcote Allen Schermerhorn David Scott Shawn Houck Ken Rueben Dennis Carson">374 F.3d at 780. Boyd cited with 19 approval Melear v. Spears, 862 F.2d 177 (5th Cir. 1989) and James ex rel. James v. Sadler, 20 909 F.2d 834" date_filed="1990-08-28" court="5th Cir." case_name="James, Carrie, a Minor, by Elizabeth James, Next Friend v. T.G. Sadler">909 F.2d 834 (5th Cir. 1990), neither of which considered knowledge of the actual 21 unconstitutionality as a requirement to integral participant liability. Id. It is merely 22 necessary to be integral to the search. Accordingly, we deny defendant Johnson's motion for 23 summary judgment on this claim based upon this argument (doc. 68). 24 Defendants Polk, Buchanan, and O'Hagan, the Yavapai County Board Defendants, 25 also move for summary judgment arguing that they cannot be liable for the failure to train 26 because Johnson was not integral to the constitutional violation. Yavapai County 27 Defendants' argument fails because Johnson was integral to the violation. Moreover, 28 defendants' argument fails because it misconstrues plaintiffs' theory of liability. The PANT - 13 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 14 of 29 1 Board governs the PANT. PSOF, Exhibit 1 at 6. Plaintiffs claim that the PANT Board is 2 responsible for training all PANT officers, and that all Board Defendants are liable for failing 3 to adequately train all PANT Defendants with regard to the execution of search warrants. 4 There is no evidence to show that PANT Board members were only responsible for the 5 functioning of the PANT with regard to PANT officers employed by a common 6 municipality.8 Therefore, with regard to this claim, it is irrelevant whether Board Defendants 7 and PANT Defendants are employed by the same municipality. Even if Johnson were not 8 integral to the violation, defendants Polk, Buchanan, and O'Hagan could still be found liable 9 for failing to adequately train the PANT Defendants that were integral to the violation. We 10 therefore deny Polk, Buchanan, and O'Hagan's motion for summary judgment on these claims 11 based upon these arguments (doc. 68). We consider below whether Board Defendants as a 12 whole can be held liable for the failure to train PANT Defendants with regard to the 13 execution of search warrants. 14 C. Personal Capacity Claims Against All PANT Defendants 15 The Fourth Amendment protects the people from unreasonable governmental searches 16 and seizures. To make a search reasonable, the police must knock and announce their 17 presence, and wait a reasonable period of time for the occupants to admit them or refuse them 18 entry. Wilson v. Arkansas, 514 U.S. 927" date_filed="1995-05-22" court="SCOTUS" case_name="Wilson v. Arkansas">514 U.S. 927, 931-36, 115 S. Ct. 1914" date_filed="1995-05-22" court="SCOTUS" case_name="Wilson v. Arkansas">115 S. Ct. 1914, 1916-19 (1995). 19 However, the police may enter either without knocking and announcing their presence, or 20 shortly after knocking and announcing their presence, when exigent circumstances arise, such 21 as the risk that evidence could be destroyed. Id. at 936, 115 S. Ct. 1914" date_filed="1995-05-22" court="SCOTUS" case_name="Wilson v. Arkansas">115 S. Ct. at 1919; United States v. 22 Banks, 540 U.S. 31" date_filed="2003-12-02" court="SCOTUS" case_name="United States v. Banks">540 U.S. 31, 40, 124 S. Ct. 521, 527-28 (2003). Although drug evidence can often 23 be quickly and easily destroyed, there is no blanket exception to the knock and announce rule 24 25 8 The intergovernmental agreement which established the PANT states that "each 26 [municipality] shall be solely responsible for its own acts or omission and those of its officers 27 and employees by reason of its operations under this agreement." PSOF, Exhibit 1 at 10. While this provision may affect the distribution of ultimate liability among the parties to the 28 agreement, it cannot supplant federal constitutional law with regard to supervisor liability. - 14 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 15 of 29 1 for suspected drug crimes. Richards v. Wisconsin, 520 U.S. 385" date_filed="1997-04-28" court="SCOTUS" case_name="Richards v. Wisconsin">520 U.S. 385, 394, 117 S. Ct. 1416, 1421 2 (1997). Therefore, to make an expedited entry, the police must have particularized evidence 3 showing that evidence could be quickly destroyed. Id. 4 PANT Defendants argue that their forced entry into the Howell residence was justified 5 by the risk that evidence could have been quickly destroyed. They submit evidence to show 6 that the house was small, and that they reasonably believed the quantity of marijuana within 7 to be small, PDSOF, Exhibit B at 2-3, and argue that, accordingly, the occupants could have 8 quickly disposed of the marijuana. Plaintiffs argue, however, that Richards requires officers 9 to set forth evidence showing that the occupants would have disposed of drug evidence, not 10 only that they could have quickly disposed of the drug evidence. We disagree. 11 In rejecting the categorical exception to the knock and announce rule in drug cases, 12 Richards states the following: 13 while drug investigation frequently does pose special risks to . . . the preservation of evidence, not every drug investigation will pose these risks to 14 a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug 15 activity and thus will be unlikely to . . . destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that 16 made them impossible to destroy quickly. In those situations, the asserted governmental interest[] in preserving evidence . . . may not outweigh the 17 individual privacy interests intruded upon by a no-knock entry. 18 Richards, 520 U.S. 385" date_filed="1997-04-28" court="SCOTUS" case_name="Richards v. Wisconsin">520 U.S. at 393, 117 S. Ct. at 1421. Richards therefore states that an exigency will 19 not arise when the police have evidence that occupants would not quickly destroy evidence. 20 It does not state that an exigency will not arise unless the police have evidence that the 21 suspect would destroy evidence. This is reasonable, because the police would rarely have 22 evidence to show that a suspect would destroy drug evidence, and requiring as much would 23 create an unreasonable bar to the collection of evidence in drug cases. Accordingly, in 24 Banks, the Supreme Court concluded that "what matters is the opportunity to get rid of 25 cocaine." Banks, 540 U.S. 31" date_filed="2003-12-02" court="SCOTUS" case_name="United States v. Banks">540 U.S. at 40, 124 S. Ct. at 527 ("The significant circumstances include 26 the arrival of the police during the day, when anyone inside would probably have been up 27 and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen 28 - 15 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 16 of 29 1 to start flushing cocaine down the drain.").9 Therefore, PANT Defendants' evidence that the 2 occupants could have quickly disposed of drug evidence is sufficient to show exigent 3 circumstances.10 4 However, such exigent circumstances do not arise immediately, but rather arise at the 5 point when, considering the totality of the circumstances, the police have an objectively 6 reasonable suspicion that the drug evidence could be disposed of if they wait any longer. See 7 Banks, 540 U.S. 31" date_filed="2003-12-02" court="SCOTUS" case_name="United States v. Banks">540 U.S. at 38-40, 124 S. Ct. at 526-27; Scott v. United States, 436 U.S. 128" date_filed="1978-06-26" court="SCOTUS" case_name="Scott v. United States">436 U.S. 128, 137, 98 8 S. Ct. 1717, 1723 (1978). Here, the relevant inquiry is whether–at approximately 6:30 a.m., 9 10 9 Moreover, Banks cited with approval a series of post-Richards Court of Appeals 11 decisions that made findings of exigent circumstances upon the presence of easily disposable 12 drug evidence, without any specific evidence that the suspect would dispose of that evidence: United States v. Goodson, 165 F.3d 610" date_filed="1999-02-17" court="8th Cir." case_name="United States v. Terrence Eugene Goodson">165 F.3d 610, 614 (8th Cir. 1999) (finding a 20 second wait 13 sufficient "considering the size of the house . . . and the potential that the residents could flush crack cocaine down a toilet"); United States v. Spikes, 158 F.3d 913" date_filed="1998-09-02" court="6th Cir." case_name="United States v. James H. Spikes (96-3899) Marilyn Smith (96-3660)">158 F.3d 913, 926 (6th Cir. 14 1998) (finding a 15-30 second wait sufficient because "the presence of drugs in the place to 15 be searched, while not a conclusive factor, lessens the length of time law enforcement must ordinarily wait outside before entering a residence"); United States v. Jones, 133 F.3d 358" date_filed="1998-01-26" court="5th Cir." case_name="United States v. Jones">133 F.3d 358, 16 361 (5th Cir. 1998) ("In drug cases, where drug traffickers may so easily and quickly destroy 17 the evidence of their illegal enterprise by simply flushing it down the drain, 15 to 20 seconds is certainly long enough for officers to wait before assuming the worst and making a forced 18 entry."). Banks, 540 U.S. 31" date_filed="2003-12-02" court="SCOTUS" case_name="United States v. Banks">540 U.S. at 38 n. 5, 124 S. Ct. at 526 n.5. 19 10 PANT Defendants also argue that an exigency arose from the increased risk of harm 20 to the officers due to Bryan Howell's criminal history. To the extent that there is some criminal history, defendants have not identified any evidence that it was violent or that the 21 officers believed it to have been violent when determining that exigent circumstances existed. See PDSOF, Exhibit B at 2-3. Moreover, the police had no evidence that any resident 22 possessed firearms or other weapons. Id. Accordingly, we disregard this factor. We also 23 disregard PANT Defendants argument that an exigency arose because, although the warrant was executed on a weekday at 6:30 a.m., when "working residents may be assumed to be 24 home and awake, or ready to awaken and prepare for the work day, and able to respond to 25 a knock and announce," Prescott Defendants Phase I Amended Motion for Partial Summary Judgment at 10, the residents did not quickly respond. To the contrary, defendant Hodap 26 testified that the officers executed the warrant at 6:30 a.m. with the hope that the family 27 would be asleep. PSOF, Exhibit 8 at 155. Moreover, a slow response is not sufficient to create an exigency in itself, but is a factor to be considered in determining whether officers 28 have been constructively refused entry. - 16 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 17 of 29 1 when the suspects were expected to be sleeping in their small house where the front door is 2 protected by a steel security door–the police had an objectively reasonable suspicion that if 3 they did not begin to breach the security door when they did, the suspects could destroy the 4 marijuana before the police could stop them. 5 To determine if the police acted reasonably, we must determine the period of time that 6 an officer would reasonably expect it would take to breach the security door. Defendant 7 Hodap, who was in command during the execution of the search warrant, PSOF, Exhibit 8 at 8 149, testified that before the breach, it was "difficult to estimate the time it might take to 9 force [it] open." PDSOF, Exhibit B at 3. It is undisputed that it took at least 20 seconds to 10 open the security door. PSOF, Exhibit 8 at 96. Neither party has argued that 20 seconds was 11 an unreasonable amount of time to open the door, nor has either party submitted evidence as 12 to the amount of time a reasonable officer would expect that it would take to open the 13 security door. Accordingly, we conclude that 20 seconds is an objectively reasonable 14 estimate for the amount of time that it would take to breach the security door. 15 We must also determine the amount of time that the police waited after knocking and 16 announcing their presence before attempting to breach the security door. The officers have 17 varying recollections of the length of the waiting period: Detective Del Rio, who 18 participated in the search at issue, testified that the attempt to breach the security door began 19 as the officers began to knock and announce their presence, meaning there was no waiting 20 period. PSOF, Exhibit 16 at 12. Defendant Hodap testified that there was a 5 second waiting 21 period, PDSOF, Exhibit B at 4, and defendant Palguta testified that there was a 5-8 second 22 waiting period, PDSOF, Exhibit C at 94. 23 With regard to defendants' motions for summary judgment, we consider the facts in 24 the light most favorable to the plaintiffs–that there was no waiting period. Having begun to 25 breach the security door immediately upon commencing the knock and announcement, the 26 police would reasonably expect to be through the security door, and prepared to breach the 27 front door after approximately 20 seconds. This time frame is substantially similar to that 28 in Banks. There, the Supreme Court determined that although "th[e] call is a close one," the - 17 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 18 of 29 1 police acted constitutionally by forcibly entering a small apartment in the afternoon "when 2 anyone inside would probably have been up and around," 15-20 seconds after hearing no 3 response to their knock and announcement, where there was a concern that the suspects 4 would dispose of their cocaine. Banks, 540 U.S. 31" date_filed="2003-12-02" court="SCOTUS" case_name="United States v. Banks">540 U.S. at 38-40, 124 S. Ct. at 526-27. This case 5 is distinguished from Banks, however, because here the search took place in the early 6 morning, when the residents were expected to be asleep, whereas there the search took place 7 in the early afternoon, when residents were expected to be awake. Exigent circumstances 8 will arise more slowly if the suspects are asleep because it would take them time to awaken 9 before being able to dispose of evidence. Because 15-20 seconds was a close call in Banks, 10 20 seconds cannot be constitutional here where the residents were expected to be sleeping. 11 Moreover, by freeing ourselves from the thicket of Fourth Amendment jurisprudence, 12 and considering the essential purpose of the Fourth Amendment, we can more clearly see that 13 PANT Defendants' actions were unconstitutional when viewed in the light most favorable 14 to the plaintiffs. The Fourth Amendment "impose[s] a standard of reasonableness upon the 15 exercise of discretion by . . . law enforcement agents, in order to safeguard the privacy and 16 security of individuals against arbitrary invasions." Delaware v. Prouse, 440 U.S. 648" date_filed="1979-03-27" court="SCOTUS" case_name="Delaware v. Prouse">440 U.S. 648, 653- 17 54, 99 S. Ct. 1391" date_filed="1979-03-27" court="SCOTUS" case_name="Delaware v. Prouse">99 S. Ct. 1391, 1396 (1979) (quotation omitted). "[T]he permissibility of a particular law 18 enforcement practice is judged by balancing its intrusion on the individual's Fourth 19 Amendment interest against its promotion of legitimate governmental interests." Id. at 654, 20 99 S. Ct. 1391" date_filed="1979-03-27" court="SCOTUS" case_name="Delaware v. Prouse">99 S. Ct. at 1396. Balancing those interests, we conclude that it is unreasonable–and 21 therefore unconstitutional–for PANT Defendants to forcibly enter the Howell residence 22 without warning at approximately 6:30 a.m., when the residents were expected to be 23 sleeping, in an effort to seize less than two pounds of marijuana. 24 Having found PANT defendants conduct unconstitutional when viewed in the light 25 most favorable to the plaintiffs, we consider whether defendants are protected by qualified 26 immunity. An officer will be protected by qualified immunity if he can show that the law 27 was not so clear that a reasonable officer would have understood that what he was doing 28 violated a right. Hope v. Pelzer, 536 U.S. 730" date_filed="2002-06-27" court="SCOTUS" case_name="Hope v. Pelzer">536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002). - 18 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 19 of 29 1 "[R]easonableness is judged against the backdrop of the law at the time of the conduct." 2 Brosseau v. Haugen, 543 U.S. 194" date_filed="2004-12-13" court="SCOTUS" case_name="Brosseau v. Haugen">543 U.S. 194, 198, 125 S. Ct. 596, 599 (2004). 3 The law was significantly different at the time of the search, which occurred before 4 the Supreme Court decision in Banks.11 The Court of Appeals for the Ninth Circuit formerly 5 interpreted Richards more broadly than did the Supreme Court in Banks, and therefore 6 required more particularized evidence to establish exigent circumstances. For example, when 7 Banks was before the Court of Appeals, that court concluded that evidence that cocaine was 8 being held in a small apartment was insufficient to establish exigent circumstances. United 9 States v. Banks, 282 F.3d 699" date_filed="2002-03-05" court="9th Cir." case_name="United States v. Lashawn Lowell Banks">282 F.3d 699, 705 (2002), rev'd, 540 U.S. 31, 124 S. Ct. 521" date_filed="2003-12-02" court="SCOTUS" case_name="United States v. Banks">124 S. Ct. 521 (2003). The 10 facts here are substantially similar to those in Banks. Therefore, the law at the time of the 11 search clearly did not support a finding of exigent circumstances. 12 Moreover, the relevant inquiry was different under the law at the time of the search. 13 In United States v. Chavez-Miranda, 306 F.3d 973" date_filed="2002-09-30" court="9th Cir." case_name="United States v. Tomas Chavez-Miranda">306 F.3d 973 (9th Cir. 2002), where officers executed 14 a search warrant and believed heroin was being kept in a small apartment with at least three 15 occupants, the Court of Appeals stated that because the police knocked and announced their 16 presence, "the issue is not one of the existence of exigent circumstances that would justify 17 entry without notice, but whether the police officers reasonably inferred that they had been 18 constructively refused entry under the Knock and Announce Rule." Id. at 981 n.5 & 982; see 19 also Banks, 282 F.3d 699" date_filed="2002-03-05" court="9th Cir." case_name="United States v. Lashawn Lowell Banks">282 F.3d at 705 ("Because the officers were not affirmatively granted or denied 20 permission, they were required to delay acting for a sufficient period of time before they 21 could reasonably conclude that they impliedly had been denied admittance."). Therefore, 22 despite the risk of the disposal of drug evidence, the inquiry hinged on the time to the door, 23 unlike the current inquiry outlined by the Supreme Court in Banks, which hinges on the time 24 to a bathroom or kitchen to dispose of drug evidence. Assuming here that the officers 25 breached the security door immediately upon knocking and announcing their presence, they 26 could not possibly have been constructively denied entry. Therefore, under those facts, 27 11 28 The search took place on March 5, 2003. Banks was decided on December 2, 2003. - 19 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 20 of 29 1 PANT Defendants acted outside of the hazy, near-constitutional aura within which we grant 2 immunity. Accordingly, we deny defendants' motions for summary judgment on these claims 3 (docs. 62, 67, 68, 82). 4 We next consider plaintiffs' motion for summary judgment, and therefore consider the 5 facts in the light most favorable to the defendants–that there was a waiting period of 8 6 seconds. Adding the time to breach the security door, the police could have reasonably 7 expected to breach the interior front door approximately 28 seconds after knocking and 8 announcing their presence. We believe that the police could have reasonably expected that 9 had they waited any longer, the occupants would have had sufficient time to wake up and 10 destroy any drug evidence. Therefore, assuming PANT Defendants waited 8 seconds, they 11 acted constitutionally. We recognize with regret that 8 seconds straddle the divide between 12 constitutional and unconstitutional activity. 13 Plaintiffs also argue that the search warrant was unconstitutionally executed because 14 PANT Defendants did not take sufficient pauses after knocking and announcing their 15 presence to determine if anyone inside was responding. The occupants did not respond to 16 the police announcement, so even if PANT Defendants should have paused, their failure to 17 do so was harmless.12 18 Plaintiffs also argue that the search was unconstitutionally executed because the 19 officers did not sufficiently avoid the appearance of chaos, minimize excessive noise from 20 the non-announcing officers, or use a bull horn. "The 'reasonableness' of a particular use of 21 force must be judged from the perspective of a reasonable officer on the scene, rather than 22 with the 20/20 vision of hindsight," Graham v. Connor, 490 U.S. 386" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">490 U.S. 386, 396, 109 S. Ct. 1865, 23 1872 (1989) (citation omitted), and plaintiffs have submitted no evidence from which to 24 conclude that the officers should have reasonably expected their announcements to be 25 incomprehensible from inside the house. 26 27 12 Plaintiff Robert Howell screamed to his son to get away from the door, PSOF, 28 Exhibit 16 at 69, but that is neither a statement of admittance nor refusal of entry. - 20 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 21 of 29 1 We conclude that viewing the facts in the light most favorable to defendants, PANT 2 Defendants acted constitutionally. Accordingly, we need not consider the issue of qualified 3 immunity. However, because we deny plaintiffs' and defendants' motions for summary 4 judgment with regard to this claim, the issue of qualified immunity could rise again if the 5 jury ultimately concludes that PANT Defendants unconstitutionally searched plaintiffs' 6 residence. To avoid having to reconsider the issue at a later time, we conclude here that, 7 even viewing the facts in the light most favorable to defendants, the PANT Defendants would 8 not be protected by qualified immunity. As explained above, qualified immunity is 9 considered under the law at the time of the search, not under the current law. Under the law 10 at the time, for the search to have been constitutional, PANT Defendants must have been 11 constructively refused entry. An 8 second wait does not equate to constructive refusal. See 12 Banks, 282 F.3d 699" date_filed="2002-03-05" court="9th Cir." case_name="United States v. Lashawn Lowell Banks">282 F.3d at 705 (finding a 15-20 second wait insufficient for a finding of constructive 13 refusal); Chavez-Miranda, 306 F.3d 973" date_filed="2002-09-30" court="9th Cir." case_name="United States v. Tomas Chavez-Miranda">306 F.3d at 982 (finding a 20-30 second wait sufficient for a 14 finding of constructive refusal). Therefore, regardless of the jury's ultimate conclusion with 15 regard to constitutionality of this waiting period, defendants will not be protected by 16 qualified immunity. 17 For all of these reasons, we deny plaintiffs' motion for summary judgment on these 18 claims (doc. 64). 19 D. Personal Capacity Claims Against All Board Defendants 20 Plaintiffs also claim that Board Defendants are liable in their personal capacities for 21 failing to adequately train PANT Defendants with regard to the execution of search warrants. 22 Complaint at 13. To hold a supervisor liable for the failure to train under section 1983, a 23 plaintiff must show at least that "in light of the duties assigned to specific officers . . . [,] the 24 need for more or different training [was] so obvious, and the inadequacy so likely to result 25 in the violation of constitutional rights," that the supervisor was deliberately indifferent to 26 that need. City of Canton, 489 U.S. 378" date_filed="1989-02-28" court="SCOTUS" case_name="City of Canton v. Harris">489 U.S. at 390, 109 S. Ct. at 1205; see L.W. v. Grubbs, 92 F.3d 27 894, 900 (9th Cir. 1996). 28 - 21 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 22 of 29 1 Plaintiffs' only viable argument with regard to the unconstitutional execution claim 2 is that PANT Defendants did not wait for a sufficient period of time after knocking and 3 announcing their presence. Defendant Hodap "made all [the] decisions for the PANT unit 4 regarding the actual execution of [the] search warrant[]," which included the order to breach 5 the security door. PSOF ¶¶ 37, 46. Therefore, to succeed on this claim, plaintiffs must show 6 that Hodap was inadequately trained with regard to the requisite waiting period, that Board 7 Defendants were deliberately indifferent to the need for additional training, and that the 8 training inadequacy proximately caused Hodap to prematurely give the order to enter. 9 Because Hodap gave the entry order, any training inadequacies with regard to the other 10 PANT Defendants are irrelevant. 11 The evidence shows that Hodap received training in narcotics and search warrants in 12 the years prior to the search, PDSOF, Exhibit J, and that he was "the only person in the unit 13 that ha[d] completed formal training in warrant entries."13 Plaintiffs' Supplemental Statement 14 of Facts ("PSSOF") ¶ 52. The fact that Hodap received this training from entities other than 15 the PANT is irrelevant. Hodap also testified to his knowledge that after knocking and 16 announcing their presence, officers are required to wait a reasonable amount of time for the 17 occupants to respond. PSOF, Exhibit 8 at 138. It is possible that Hodap was inadequately 18 trained with regard to the length of the requisite waiting period. However, given the totality 19 20 13 This statement was made in a Needs Assessment dated July 14, 2003, several 21 months after the search. However, plaintiffs neither argue, nor submit evidence to suggest that this training took place after the search at issue. Yavapai County Defendants object to 22 the admission of this evidence on the ground that the Needs Assessment arose out of 23 measures taken after the search at issue and is therefore inadmissible pursuant to Rule 407 of the Federal Rules of Evidence. Yavapai County Defendants' Motion to Strike at 2. Rule 24 407 makes inadmissible "evidence of . . . subsequent measures" which, "if taken previously, 25 would have made the injury or harm less likely to occur." The PANT Board's knowledge of their specific training deficiencies would not make an injury less likely to occur, and 26 therefore the statement is admissible. See Rocky Mountain Helicopters, Inc. v. Bell 27 Helicopters Textron, 805 F.2d 907" date_filed="1986-11-19" court="10th Cir." case_name="Rocky Mountain Helicopters v. Bell Helicopters Textron">805 F.2d 907, 918 (10th Cir. 1986) ("It would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post- 28 event tests or reports."). Accordingly, Yavapai County Defendants' objection is overruled. - 22 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 23 of 29 1 of this evidence, and the lack of countervailing evidence with regard to Hodap's training and 2 knowledge of the requisite waiting period, we cannot conclude that the need for more or 3 different training was so obvious, and the inadequacy so likely to result in the violation of 4 constitutional rights, that the PANT Board was deliberately indifferent to the need for 5 additional training. 6 Plaintiffs also submit evidence to show that, although Hodap was aware of the 7 requisite waiting period, he decided not to wait after knocking and announcing. PSOF, 8 Exhibit 8 at 137-38. To the extent that this is true, it further protects Board Defendants from 9 liability because supervisors cannot be held vicariously liable for the constitutional torts 10 committed by their subordinates. Therefore, with regard to these claims, we grant 11 defendants' motions for summary judgment (docs. 62, 67, 68, 82) and deny plaintiffs' motion 12 for summary judgment (doc. 64). 13 E. Official Capacity Claims Against all Defendants for the Failure to Train 14 Plaintiffs also claim that all defendants are liable in their official capacities, by which 15 plaintiffs claim that the municipalities for which each defendant works failed to properly 16 train PANT defendants with regard to the execution of search warrants. "Only where a 17 municipality's failure to train its employees in a relevant respect evidences a 'deliberate 18 indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as 19 a city 'policy or custom' that is actionable under § 1983." City of Canton, 489 U.S. 378" date_filed="1989-02-28" court="SCOTUS" case_name="City of Canton v. Harris">489 U.S. at 389, 20 109 S. Ct. at 1205. As with regard to plaintiffs' claims against Board Defendants, there is 21 insufficient evidence from which to conclude that the need for more or different training was 22 so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that 23 the municipalities for which each defendant worked were deliberately indifferent to the need 24 for training. Therefore, with regard to these claims, we grant defendants' motions for 25 summary judgment (docs. 62, 67, 68, 82) and deny plaintiffs' motion for summary judgment 26 (doc. 64). 27 28 - 23 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 24 of 29 1 VI. Claim Three: Excessive Force 2 Plaintiffs claim that PANT Defendants violated plaintiffs' Fourth and Fourteenth 3 Amendment rights by using excessive force during their arrest and detention. Complaint at 4 13. Plaintiffs also raise the related claims against defendants for inadequate training. Id. 5 Plaintiffs and defendants move for summary judgment on these claims (docs. 64, 67, 68, 82, 6 120). 7 A. Personal Capacity Claims Against PANT Defendants 8 A claim against law enforcement officers for excessive force is analyzed under the 9 Fourth Amendment's "objective reasonableness" standard. Graham, 490 U.S. 386" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">490 U.S. at 399, 109 S. 10 Ct. at 1873. However, where "an officer intentionally or recklessly provokes a violent 11 response, and the provocation is an independent constitutional violation, that provocation 12 may render the officer's otherwise reasonable defensive use of force unreasonable as a matter 13 of law." Billington v. Smith, 292 F.3d 1177" date_filed="2002-06-21" court="9th Cir." case_name="Patricia Billington v. David Smith">292 F.3d 1177, 1190-91 (9th Cir. 2002) (emphasis in original). 14 Plaintiffs argue that PANT defendants applied an unreasonable amount of force, and at all 15 events, because the need for the use of force was proximately caused by the independent 16 constitutional violation with regard to the execution of the search warrant, any use of force 17 was unreasonable as a matter of law. 18 Plaintiffs, however, failed to submit evidence from which a jury could reasonably 19 conclude that PANT Defendants' conduct provoked the violent response. It is undisputed 20 that PANT defendants knocked and announced their presence several times before breaching 21 the interior front door. Plaintiffs argue that the announcements were incomprehensible from 22 inside the house, but we must judge the officer's actions "from the perspective of a reasonable 23 officer on the scene," Billington, 292 F.3d 1177" date_filed="2002-06-21" court="9th Cir." case_name="Patricia Billington v. David Smith">292 F.3d at 1190 (quoting Graham, 490 U.S. 386" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">490 U.S. at 396, 109 24 S. Ct. at 1865), and there is no indication that the PANT Defendants knew, or had reason to 25 believe, that their announcements were incomprehensible. We therefore conclude that 26 because PANT Defendants reasonably alerted the residents to their presence before 27 28 - 24 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 25 of 29 1 breaching the front door of the house, they did not provoke the violent response.14 Therefore, 2 PANT Defendants are not liable for the mere use of force, and are only liable for any 3 unconstitutionally excessive use of force. 4 "Determining whether the force used to effect a particular seizure is reasonable under 5 the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion 6 on the individual's Fourth Amendment interests against the countervailing governmental 7 interests at stake." Graham, 490 U.S. 386" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">490 U.S. at 396, 109 S. Ct. at 1871 (quotations omitted). This 8 requires evaluating "the severity of the crime at issue, whether the suspect poses an 9 immediate threat to the safety of the officers or others, and whether he is actively resisting 10 arrest or attempting to evade arrest by flight." Id. (citation omitted). "Not every push or 11 shove, even if it may later seem unnecessary in the peace of the judge's chambers, violates 12 the Fourth Amendment." Id. at 396, 109 S. Ct. 1865" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">109 S. Ct. at 1872 (quotation omitted). "The calculus 13 of reasonableness . . . embod[ies] allowance for the fact that police officers are often forced 14 to make split-second judgments–in circumstances that are tense, uncertain, and rapidly 15 evolving–about the amount of force that is necessary in a particular situation." Id. at 396-97, 16 109 S. Ct. 1865" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">109 S. Ct. at 1872. 17 Plaintiffs claim that defendants Hodap, Palguta, Johnson and Wylie used excessive 18 force to arrest Robert Howell. Complaint at 13. Robert Howell testifies that after he realized 19 that the intruders were the police, had dropped his weapon, laid on the ground, and did not 20 resist arrest. PSOF, Exhibit 17 at 189-190. He further asserts that although he complied 21 during his arrest, he was thrown on the ground with enough force to tear the rotator cuff in 22 his right shoulder. PSSOF ¶¶ 84-86. Plaintiffs claim that defendants Bonney, Wilcoxson 23 and Gronek used excessive force to arrest Patti Howell. Complaint at 13. Patti Howell 24 testified that although she did not resist arrest, she was thrown on the ground, Bonney was 25 26 14 In contrast, had the officers not knocked and announced their presence, or had they 27 entered the interior front door at the moment that they knocked and announced their presence, we may have concluded that the surprise of the entrance provoked the violent 28 response. - 25 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 26 of 29 1 on her back, the officers were very rough with her and attempted to injure her,15 the officers 2 "dragged [her] a little bit and [her] foot hit the concrete," and she suffered bruises on her left 3 arm and abrasions on top of her right foot. PSSOF ¶¶ 87-90, Exhibit 50 at 53. 4 Viewing the facts in the light most favorable to the plaintiffs, we find that PANT 5 Defendants did not use unconstitutionally excessive force. PANT Defendants knew that they 6 had been fired at, and they reacted quickly to control the situation. Robert Howell 7 surrendered, but he had already displayed violent activity, and PANT Defendants had no way 8 of knowing whether he concealed additional weapons, or whether he would display 9 additional violent activity. The police had similar reason to restrain and frisk Patti Howell. 10 The situation was certainly "tense, uncertain, and rapidly evolving," and it appears that the 11 entire event took place in a matter of seconds. The evidence shows that PANT Defendants 12 roughly frisked and restrained plaintiffs, and that plaintiffs sustained injuries, but that does 13 not make the use of force excessive.16 Accordingly, with regard to these claims, we grant 14 defendants' motions for summary judgment (docs. 67, 68, 82, 120) and deny plaintiffs' 15 motion for summary judgment (doc. 64). 16 B. Failure to Train Claims 17 Plaintiffs claim that all defendants are liable for the failure to train PANT Defendants 18 with regard to the use of force. Complaint at 13. Because we conclude that PANT 19 Defendants did not use excessive force, plaintiffs cannot state an actionable claim for the 20 failure to train with regard to the use of force. Accordingly, with regard to these claims, we 21 grant defendants' motion for summary judgment (docs. 67, 68, 82, 120) and deny plaintiffs' 22 motion for summary judgment (doc. 64). 23 15 We examine whether the officers' actions were " 'objectively reasonable' in light of 24 the facts and circumstances confronting them, without regard to their underlying intent or 25 motivation." Graham, 490 U.S. 386" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">490 U.S. at 397, 109 S. Ct. at 1872 (citations omitted). 26 16 Robert Howell states that police officers "stomped [Patti Howell] into the concrete" 27 which caused her to scream in pain. PSOF, Exhibit 48 at 207-08. By this, he means that Bonney was on Patti Howell's back, not that the PANT Defendants trampled her underfoot. 28 Id. - 26 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 27 of 29 1 VII. Claim Four: Unconstitutional Arrest 2 Plaintiffs claim that PANT Defendants violated Robert Howell's Fourth and 3 Fourteenth Amendment rights by arresting him without probable cause. Id. at 14. Plaintiffs 4 also raise the related claims against defendants for inadequate training. Id. Defendants move 5 for summary judgment on these claims (docs. 62, 67, 68, 82). 6 A. Personal Capacity Claims Against PANT Defendants 7 The parties confuse two discrete legal issues in their briefings: 1) whether the police 8 had probable cause to arrest Robert Howell for the shooting; and 2) whether the allegedly 9 unconstitutional search proximately caused Robert Howell's subsequent arrest and therefore 10 provided plaintiff with an actionable section 1983 claim for unconstitutional arrest. 11 The police had probable cause to arrest plaintiff after he fired his gun at them. The 12 allegedly unconstitutional search has no effect on this analysis, even if that search provoked 13 Robert Howell to violence, because to immunize the defendant from an arrest linked in the 14 chain of causation to an officer's illegality would give the "defendant an intolerable carte 15 blanche to commit further criminal acts." United States v. Bailey, 691 F.2d 1009" date_filed="1983-01-10" court="11th Cir." case_name="United States v. Carl Bailey">691 F.2d 1009, 1017 (11th 16 Cir. 1983). 17 However, although the police can arrest a suspect for a criminal act linked to his 18 previous illegality, that does not immunize the police from subsequent civil liability arising 19 out of the arrest. For example, in Alexander v. San Francisco, 29 F.3d 1355" date_filed="1994-07-08" court="9th Cir." case_name="Julia Alexander v. City">29 F.3d 1355, 1358 (9th Cir. 20 1994), police forcibly entered Henry Quade's home, Quade attempted to shoot the police, and 21 the police fired back. The Court of Appeals held that although the police may have 22 reasonably fired after being fired upon, they may still be liable under section 1983 for 23 excessive force if they unreasonably and therefore unconstitutionally entered Quade's house. 24 Id. at 1366. The Court of Appeals later clarified this form of liability: where "an officer 25 intentionally or recklessly provokes a violent response, and the provocation is an independent 26 constitutional violation, that provocation may render the officer's otherwise reasonable 27 defensive use of force unreasonable as a matter of law." Billington, 292 F.3d at 1190-91 28 (emphasis in original). "[I]f an officer's provocative actions are objectively unreasonable - 27 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 28 of 29 1 under the Fourth Amendment, as in Alexander, liability is established, and the question 2 becomes the scope of liability, or what harms the constitutional violation proximately 3 caused." Id. at 1190. However, we already concluded that PANT Defendants did not 4 provoke the shooting. Accordingly, we grant defendants' motions for summary judgment on 5 these claims (docs. 62, 67, 68, 82). 6 B. Failure to Train Claims 7 Plaintiffs claim that all defendants are liable for the failure to train PANT Defendants 8 with regard to arrests. Complaint at 14. Because the arrest was constitutional, plaintiffs 9 cannot state an actionable claim for the failure to train with regard to arrests. Accordingly, 10 we grant defendants' motions for summary judgment on these claims (docs. 62, 67, 68, 82, 11 120). 12 VIII. Motions to Strike 13 Plaintiffs and defendants submit numerous motions to strike, arguing that the briefings 14 violate the Federal Rules of Civil Procedure, the Local Rules of Civil Procedure, and the 15 Federal Rules of Evidence (docs. 89, 93, 100, 107, 123, 126, 128). Plaintiffs and defendants 16 submitted supplemental statements of facts without leave of the court (docs. 90, 118, 121, 17 132). Plaintiffs submitted a supplemental briefing without leave of the court (doc. 119). 18 Defendants submitted briefings with a font size smaller than that permitted by the Local 19 Rules of Civil Procedure (doc. 68). Both plaintiffs and defendants violated our rules of 20 procedure. Rather than strike all documents which violate the rules, we have considered all 21 documents except those where we previously alerted the parties to their deficiencies. We 22 also considered all evidence not in violation of the Federal Rules of Evidence. Accordingly, 23 all motions to strike are denied (docs. 89, 93, 100, 107, 123, 126, 128). 24 IX. Motion to Extend 25 Prescott Defendants move for an extension of time until September 21, 2005 to 26 disclose an expert witness (doc. 77). We deny defendants' motion as moot because Prescott 27 Defendants did not disclose an expert witness by that date (doc. 77). 28 - 28 -  Case 3:04-cv-02280-FJM Document 135 Filed 02/24/06 Page 29 of 29 1 X. Conclusions 2 IT IS ORDERED DENYING defendants' motions for summary judgment on Claim 3 Two for judicial deception against defendant Palguta in his personal capacity (docs. 62, 67, 4 68, 82, 120); DENYING defendants' motions for summary judgment on Claim Two for the 5 unconstitutional execution of the search warrant against PANT Defendants in their personal 6 capacities (docs. 62, 67, 68, 82, 120); and GRANTING defendants' motions for summary 7 judgment with regard to all other claims (docs. 62, 67, 68, 82, 120). 8 IT IS FURTHER ORDERED DENYING plaintiffs' motion for summary judgment 9 with regard to all claims (doc. 64). 10 IT IS FURTHER ORDERED GRANTING summary judgment for defendants on 11 plaintiffs' claims against defendant Hodap for the failure to supervise the other PANT 12 Defendants. 13 IT IS FURTHER ORDERED DISMISSING Claim Five. 14 IT IS FURTHER ORDERED DENYING all motions to strike (docs. 89, 93, 100, 15 107, 123, 126, 128). 16 IT IS FURTHER ORDERED DENYING Prescott Defendants' motion for an 17 extension (doc. 77). 18 For clarity, the following claims are still viable: Claim Two against defendant Palguta 19 in his personal capacity for judicial deception; and Claim Two against PANT Defendants in 20 their personal capacities for the unconstitutional execution of the search warrant. 21 DATED this 24th day of February, 2006. 22 23 24 25 26 27 28 - 29 -