Shafer v. City of Boulder

ORDER

(Defendants’ Motion for Summary Judgment — dkt. no. 28)

(Plaintiffs’ Motion for Summary Judgment — dkt. no. 29)

MIRANDA M. DU, District Judge.

I. SUMMARY

Before the Court are Defendants City of Boulder City (“COBC” or “City”), Chief Thomas Finn, Deputy Chief/Sergeant John Chase, Detective Mark Dubois,¹ and COBC Mayor Roger Tobler’s Motion for Summary Judgment (dkt. no. 28), and Plaintiff Curtis Shafer’s Partial Motion for Summary Judgment (dkt. no. 29).²

II. BACKGROUND

Except where stated, the following facts appear without dispute in the summary judgment record. Plaintiff Curtis Shafer and his family moved to 1733 Red Mountain Drive, Boulder City, Nevada on or about December 1, 2007. His next-door neighbor was Defendant Mark Fenyves. Shafer rented the property from his parents. Soon after Shafer moved in, Fenyves began calling the Boulder City Police Department (“BCPD”) on a regular basis claiming that Shafer, Shafer’s wife, and visitors at Shafer’s home were involved in the illegal sale and purchase of narcotics. Shafer admits that both he and his wife have used drugs in his residence, but denies that he was ever involved in the sale or distribution of drugs during the relevant time period. Instead, he states that the busy foot traffic at his home was a result of him leaving his home open for friends and family members to come and go as they please (dkt. no. 30-2 at 31). And while Fenyves believed that the nighttime antics at the Shafer home were suspicious, Shafer testified that this late night activity was merely Shafer and his friends staying up late playing video games. (Dkt. no. 30-2 at 24.)

Yet Fenyves believed Shafer was involved in the sale of illegal narcotics, and to that end he took several steps to report and monitor Shafer’s activity. Fenyves purchased a home video surveillance system with four video cameras, a digital video recorder (“DVR”), and a split-screen television to monitor the cameras. At the same time, Fenyves told his neighbors about his suspicions and convinced several neighbors to install video cameras on their properties in order to videotape the Shafer residence. Shafer asserts that Fenyves and the cooperating neighbors agreed to maintain a list of license plates of all visitors coming to and going from Shafer’s home. By early 2009, all of Shafer’s immediate neighbors had installed video cameras on their properties. (Dkt. no. 30 at 11.) The record demonstrates that at least some of these cameras were aimed at Shafer’s home. (See id.) Shafer’s neighbors repeatedly called the police to report on the allegedly unsavory activity occurring at the Shafer residence. Defendants claim that while Fenyves’ calls were the most numerous, several of Shafer’s other neighbors also called the Police Department with similar concerns.

After receiving repeated calls about the allegedly suspicious activity at 1733 Red Mountain Drive, BCPD decided to conduct an investigation regarding the matter. On February 20, 2009, while Chief Finn, the Boulder City Chief of Police, was away at a training conference, Fenyves and a small group of Shafer’s neighbors met with Deputy Chief Chase to discuss their concerns. After the meeting, Deputy Chief Chase asked Detective Dubois to initiate a narcotics-related investigation of Shafer’s home. (Dkt. no. 29-3 at 6.) As part of that investigation, Chase directed Dubois to provide Fenyves with four infrared, long-range, weatherproof, silent video surveillance cameras. The Department of Homeland Security (“DHS”) had provided BCPD with the cameras as part of a $50,000 grant to help the BCPD and Boulder City combat terrorism and criminal activity (the cameras are hereinafter referred to as the “DHS cameras”). (See dkt. nos. 29-1 at 1 and 30-5 at 7.) At his deposition, Deputy Chief Chase stated that BCPD provided Fenyves with the DHS cameras to “monitor the ingress and egress into the [Shafer] property to see whether or not” criminal activity was occurring at the residence. (Dkt. no. 30-3 at 22.)

The DHS cameras were installed and operated day and night for fifty-six days. At least two of the cameras were pointed at Shafer’s property — one at his bathroom window and one at his backyard. According to the COBC Defendants, Detective Dubois did not install the cameras, but instead instructed Fenyves on the placement of the cameras. Dubois testified that he told Fenyves it would “be okay” if the cameras were pointed in the direction of Shafer’s backyard, but not to point the cameras at any of Shafer’s windows. (Dkt. no. 30-5 at 9.) Fenyves, however, testified that none of the Officer Defendants provided him with instructions about installation or filming. (Dkt. no. 29-6 at 8-10.)

Although Chief Finn was out of town when Deputy Chief Chase authorized the investigation and loaned the cameras to Fenyves, Finn and Chase spoke about the investigation upon Finn’s return. Chase informed Finn that BCPD had loaned Fenyves the DHS cameras as part of an investigation into the allegedly suspicious activity at the Shafer residence.

Shafer claims that he complained to the police at least nineteen times about his neighbors’ surveillance of his home. There is no evidence that the police responded to these calls. But on April 4, 2009, Officer Jeanette Ford was dispatched to Fenyves’ home to resolve a dispute that arose between Shafer and Fenyves. Fenyves had positioned one of the DHS cameras on a pole so that it could directly overlook Shafer’s backyard and a portion of Shafer’s home. Angered by this, Shafer walked onto Fenyves’ property and tried to knock the camera down. At approximately 11:30 p.m., Officer Ford reported to the scene. The incident report listed both Fenyves and Shafer as reporting parties and was originally reported as an assault and battery. (Dkt. no. 34 at 10.) However, in her report Officer Ford noted that there were no signs of assault and battery but merely a trespass. Officer Ford’s report states that she spoke with both parties about the incident. Officer Ford noted that “Mark [Fenyves] was very vague about how he obtained the camera and eventually said he was provided with it by then Deputy Chief J. Chase ... with the intent being to film Curtis’ [Shafer] backyard and the activity going on at his home as there were concerns of illegal narcotic activity possibly occurring.” (Dkt. no. 34 at 10.) Officer Ford informed Fenyves that he had not positioned the camera on the pole properly and that he must take it down. (Id.; see also dkt. no. 30 at 25.) Fenyves complied. Approximately two weeks later, after speaking with the BCPD about the incident, Fenyves returned all four cameras to the BCPD.

Discord between the two neighbors persisted. The parties participated in neighborhood mediation in April 2009. Although at first the results appeared promising — with Fenyves and Shafer hugging in reconciliation — the peace did not last long. Both men received temporary restraining orders against one another. (Dkt. no. 30-2 at 27.) Several media stories covered the allegedly illicit activity at the Shafer residence. (Id. at 29.) The animosity led Mayor Roger Tobler to call a special town meeting on January 19, 2010. Shafer asserts that at the meeting, Mayor Tobler “opined that he had knowledge of the neighborhood and the problem and that Plaintiff was the cause.” In fact, Tobler stated, “I wouldn’t want to live next to that [Shafer] either.”

Shafer did not discover that BCPD had provided Fenyves with the DHS cameras until September 16, 2010. (See dkt. no. 28-5 at 37.) A criminal complaint had been issued against Shafer for trespassing on Fenyves’ property on April 4, 2009, the night of the incident involving Officer Ford. During the municipal court trial on September 16, 2010, Deputy Chief Chase and Detective Dubois testified that the BCPD had provided Fenyves with the DHS cameras as part of an initial narcotics investigation.³ (Dkt. no. 28-5 at 20, 37.)

On December 22, 2010, Shafer filed suit against the City, BCPD, Chief of Police Thomas Finn, Deputy Chief of Police John Chase, and Senior Detective Mark Dubois under 42 U.S.C. § 1983 for violation of his Fourth Amendment right to be secure against unreasonable government searches. He brings suit against the officers in their individual and official capacities. Shafer also brings a Monell claim against the City and BCPD, alleging that they perpetuated a policy, practice, or custom of unconstitutional video surveillance of Shafer’s home.

Shafer also brings several state law claims against the COBC Defendants, including: (1) violation of Nevada Constitution Article I, § 18; (2) invasion of privacy; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) civil conspiracy; (6) negligence; and (7) slander against Mayor Tohler.⁴

The COBC Defendants filed a Motion for Summary Judgment on all claims except for Shafer’s Nevada Constitution claim.⁵ (Dkt. no. 28.) Shafer filed a Motion for Partial Summary Judgment on all claims except for intentional infliction of emotional distress, negligent infliction of emotional distress, and his claims relating to Defendants Tobler and Fenyves. (Dkt. no. 29.)

III. SUMMARY JUDGMENT STANDARD

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., 18 F.3d 1468, 1471 (9th Cir.1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’ ” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir.1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.1986).

The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). “In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000). Once the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir.2002) (internal citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

Further, “when parties submit cross-motions for summary judgment, ‘[e]ach motion must be considered on its own merits.’ ” Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001) (quoting William W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 499 (Feb.1992) (citations omitted)). “In fulfilling its duty to review each cross-motion separately, the court must review the evidence submitted in support of each cross-motion.” Id.

IV. CROSS-MOTIONS FOR SUMMARY JUDGMENT ON PLAINTIFF’S 42 U.S.C. § 1983 CLAIMS

The parties are seeking summary judgment on Shafer’s § 1983 claims. The Court addresses the cross-motions on these claims collectively.

A. 42 U.S.C. § 1983 Legal Standard

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, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Section 1983 “ ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). To state a claim under § 1983, a plaintiff “must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of law.” West v. Atkins, 487 U.S. 42, 48-49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Here, Shafer relies on substantive rights conferred by the Fourth Amendment.

B. Fourth Amendment Claims Against Defendants Chase and Dubois in their Individual Capacities

1. Violation of the Fourth Amendment

Shafer asserts that the video surveillance of his backyard and bathroom window violates his Fourth Amendment right to be free from an unreasonable search. The Court agrees and grants partial summary judgment in Shafer’s favor regarding his Fourth Amendment claim against Defendants Chase and Dubois.

“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citations and quotation marks omitted). “With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Id. (citations omitted). “On the other hand, the antecedent question whether or not a Fourth Amendment ‘search’ has occurred is not so simple.... ” Id. at 31, 121 S.Ct. 2038.

With these principles in mind, the Court considers whether (1) Shafer’s backyard constitutes the curtilage of his home, and is therefore entitled to the heightened Fourth Amendment protection traditionally afforded to the home; and (2) whether the video surveillance of Shafer’s backyard constituted a “search” under the Fourth Amendment.

As an initial matter, Defendants argue that Fenyves disregarded Detective Dubois’ instructions about the placement and directioning of the DHS cameras, and that this precludes the Officer Defendants from being held liable for the surveillance of Shafer’s home. Defendants appear to argue that Officer Dubois instructed Fenyves not to tape Shafer’s home, but to tape Fenyves’ own property, because Fenyves had told the police that individuals were mistaking his property for Shafer’s and coming onto his property inquiring about purchasing narcotics. (Dkt. no. 30 at 13.) However, testimony provided by both Officers at their depositions directly contradicts this argument. Detective Dubois testified that he told Fenyves it would “be okay” if the cameras were pointed in the direction of Shafer’s backyard, but not to point the cameras at any of Shafer’s windows. (Dkt. no. 30-5 at 9.) Moreover, Deputy Chief Chase testified that he understood Fenyves would use the DHS cameras to videotape Shafer’s backyard, because the “backyard where people were coming in and out of the gate was an area of interest.” (Dkt. no. 29-3 at 7.)

Based on this testimony, it is undisputed that Officers Chase and Dubois authorized Fenyves to film Shafer’s backyard which, as explained below, constitutes the curtilage of Shafer’s home and is subject to heightened Fourth Amendment protection.

There is, however, a genuine issue of material fact as to whether the Officers authorized taping Shafer’s bathroom window. Detective Dubois testified that he told Fenyves not to film Shafer’s bathroom window. (Dkt. no. 30-5 at 9.) Fenyves, however, testified that he did not receive instructions on what he was authorized to film with the DHS cameras. (Dkt. no. 29-6 at 8-10.) While this issue is of no import for determining whether Officers Chase and Dubois violated Shafer’s Fourth Amendment rights, it may be relevant at a later point in this litigation if part of Shafer’s asserted damages arise out of Fenyves’ filming his bathroom window. The Court accordingly denies summary judgment for both parties on Shafer’s Fourth Amendment claims as it relates to Shafer’s allegation that Officers Chase and Dubois authorized or knew that Fenyves was filming Shafer’s bathroom window.

a. Whether Plaintiff’s Backyard Constitutes the Curtilage of his Home

The “search of [a] backyard is subject to the Fourth Amendment’s privacy protections. Both ‘the home and its traditional curtilage [are] given the highest protection against warrantless searches and seizures.’ ” United States v. Romero-Bustamente, 337 F.3d 1104, 1107 (9th Cir.2003) (quoting United States v. Warner, 843 F.2d 401, 405 (9th Cir.1988)). “At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’ Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes.” Romero-Bustamente, 337 F.3d at 1107.

To determine whether a plaintiffs backyard constitutes the curtilage of the home, courts employ a four-factor test first articulated in United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Courts consider (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” Id. These factors “cannot be mechanically applied, but are merely useful analytical tools to determine whether an area is to be protected from unconstitutional searches and seizures.” Id.

The parties do not dispute that the area in question is directly outside Shafer’s home. It is surrounded by a solid-paneled, four-to-five foot high wooden fence. (Dkt. no. 30-2 at 37.) Further, Shafer made significant attempts to protect his backyard from observation from people passing by and from his neighbors, especially Fenyves. Shafer called the police when Fenyves first put up his personal cameras and began recording Shafer in January 2009. (Dkt. no. 30-2 at 23.) Shafer asked Fenyves to take down his cameras multiple times. (Id.) Shafer even added additional feet of plywood to his backyard fence in an attempt to block the cameras on Fenyves’ property that were peering into Shafer’s bathroom window. (Dkt. no. 30-2 at 14.) Thus, although his home was under constant video observation on all sides, Shafer never consented to such surveillance. For these reasons, Shafer’s backyard constitutes the curtilage of his home. See also, e.g., United States v. Romero-Bustamente, 337 F.3d 1104, 1108 (9th Cir.2003) (a backyard that was “small, enclosed, adjacent to [the] house, and located behind [the] house” constituted the curtilage of the home). Therefore, the video surveillance of Shafer’s backyard is afforded the heightened Fourth Amendment protection traditionally given to the home.

b. Whether the Video Surveillance of Plaintiffs Backyard Constitutes a Search

The Court next considers whether Fenyves’ fifty-six day round-the-clock video surveillance of Shafer’s backyard on behalf of the BCPD violated the Fourth Amendment’s protection against unreasonable government searches.

“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (Harlan, J., concurring)). “Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” Ciraolo, 476 U.S. at 211, 106 S.Ct. 1809 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

Defendants’ primary argument is that Shafer had neither a subjective nor objective expectation of privacy because before Fenyves installed the DHS cameras, all of Shafer’s surrounding neighbors were already filming him twenty-four hours a day, seven days a week. Therefore, the argument goes that Shafer had no subjective expectation of privacy because he was constantly on camera, and it is objectively unreasonable for someone who was under constant video surveillance to expect any privacy in his home.

i. Subjective Expectation of Privacy

“The Katz test — whether the individual has an expectation of privacy that society is prepared to recognize as reasonable— has often been criticized as circular, and hence subjective and unpredictable.” Kyllo, 533 U.S. at 34, 121 S.Ct. 2038. Perhaps playing to this, Defendants make the inherently circular argument that Shafer must have understood that the DHS cameras, just like the cameras already surrounding his home from all sides, would capture his every move; he simply could not expect otherwise. However, Shafer was not a willing participant in the neighborhood’s video surveillance of his home. He had tried many times to have his neighbors take down their cameras. When those attempts failed, Shafer took efforts to avoid being taped. He tried not to spend much time outside and stayed away from his windows. (See dkt. no. 30-2 at 40.) Shafer’s actions demonstrate that he was fastidiously attempting to retain what privacy remained in his home and regain the privacy he had lost.

Even were the Court to give merit to Defendants’ circuitous argument, the type of surveillance Shafer was subjected to before Fenyves installed the DHS cameras is distinct from the government surveillance challenged here. Shafer did know that his neighbors were nosy, suspicious, and constantly videotaping him and his home. But Shafer did not know that Fenyves was acting as an agent of the BCPD and taping his every move for two months as part of the BCPD’s narcotics investigation. The government cameras were hidden amongst the other cameras. This type of hidden video surveillance “is one of the most intrusive investigative mechanisms available to law enforcement.” United States v. Nerber, 222 F.3d 597, 603 (9th Cir.2000).

For the above reasons, the Court concludes that Shafer had a subjective expectation in the privacy of his home.

ii. Objective Expectation of Privacy

The second prong of the Katz test considers the objective reasonableness of a plaintiffs subjective expectation of privacy. This reasonableness inquiry is central to any Fourth Amendment analysis because the Amendment “reflects a choice that our society should be one in which citizens dwell in reasonable security and freedom from surveillance.” Ciraolo, 476 U.S. at 217, 106 S.Ct. 1809 (citations omitted).

Defendants argue that society does not recognize as reasonable an expectation of privacy from constant government video surveillance of one’s home. Defendants cite California v. Ciraolo to support their argument. In Ciraolo, the Supreme Court held that the warrantless aerial observation of a fenced-in backyard within the curtilage of the suspect’s home was reasonable under the Fourth Amendment. 476 U.S. at 214, 106 S.Ct. 1809. There, police officers received a tip that Ciraolo was growing marijuana in his backyard. Id. at 209, 106 S.Ct. 1809. Unable to see over his backyard fence, the officers secured a private plane, flew it over Ciraolo’s home, and identified and photographed marijuana plants growing in Ciraolo’s backyard. Id. The Court held that Ciraolo did not have a reasonable expectation of privacy in his backyard from this type of search because it was a physically nonintrusive observation, which “any member of the public flying in [the] airspace who glanced down could have seen....” Id. at 213, 106 S.Ct. 1809.

Yet while the Ciraolo Court held that the aerial visual surveillance of the suspect’s home was not a search, it also noted that the Fourth Amendment’s safeguard against unreasonable searches is not solely applicable to physical intrusions onto private property. Ciraolo, 476 U.S. at 214, 106 S.Ct. 1809. The Court referenced Justice Harlan’s concurrence in Katz, which raised concerns about “future electronic developments and the potential for electronic interference with private communications.” Id. (citing Katz, 389 U.S. at 362, 88 S.Ct. 507). The Court reasoned that Justice Harlan would not consider an aircraft to be “within the category of future ‘electronic’ developments that could stealthily intrude upon an individual’s privacy,” but at the same time gave credence to arguments that certain electronic equipment could fall into this category. Id. at 215, 106 S.Ct. 1809. Later decisions from several circuit courts demonstrate that the continuous video surveillance of Shafer’s home falls into this category.⁶

In United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir.1987), the Fifth Circuit held that “the installation of a surveillance camera on a power pole to videotape activities in a suspect’s backyard constitutes a ‘search’ within the meaning of the Fourth Amendment.” Nerber, 222 F.3d at 601 (citing Cuevas-Sanchez, 821 F.2d at 251). The court held that such surveillance “provokes an immediate negative and visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state.” Cuevas-Sanchez, 821 F.2d at 251. The Cuevas-Sanchez court distinguished that case from Ciraolo, noting that video surveillance “is not a one time overhead flight or a glance over the fence by a passer-by ... [defendant] Cuevas’s expectation to be free from this type of video surveillance in his backyard is one that society is willing to recognize as reasonable.” Id.

The Ninth Circuit referenced CuevasSanchez with approval in Nerber, 222 F.3d at 603. There, the government secretly videotaped a hotel room drug deal involving the defendants and government informants. Id. at 599. The Nerber court held that defendant drug dealers had a reasonable expectation of privacy in their hotel room except during those periods in which government informants were in the room. Id. at 604. The court noted that “the sweeping, indiscriminate manner in which video surveillance can intrude upon us, regardless of where we are, dictates that its use be approved only in limited circumstances.” Id. at 603; see also United States v. Koyomejian, 970 F.2d 536, 551 (9th Cir.1992) (“every court considering the issue has noted [that] video surveillance can result in extraordinarily serious intrusions into personal privacy.... If such intrusions are ever permissible, they must be justified by an extraordinary showing of need.”).⁷

Nerber definitively held that society recognizes as reasonable an expectation that one’s home will not be the subject of unwarranted government video surveillance. 222 F.3d at 603-04. Accordingly, Shafer had a reasonable expectation of privacy here. He was under constant video surveillance for fifty-six days. During that time, Fenyves, on behalf of the government, was able to turn on his television and watch everything going on in portions of Shafer’s backyard, night and day. In light of the Fourth Amendment principles articulated in Nerber, this Court cannot condone the invasive, imposing government surveillance conducted here.

Importantly, it was not only omnipresence and lengthy duration of the surveillance that intruded upon Shafer’s expectation of privacy in his home, but also the intensity of the surveillance. The DHS cameras provided to Fenyves were long-range, infrared, heavy-duty, waterproof, daytime/nighttime cameras, purchased as part of a $50,000 Department of Homeland Security grant to combat terrorism and similar criminal activity. The DHS cameras undoubtedly contained superior video-recording capabilities than a video camera purchased from a department store. As such, this case presents similar facts to cases where “the Government uses a device that is not in general public use[ ] to explore details of a home that would previously have been unknowable without physical intrusion.” See Kyllo, 533 U.S. at 40, 121 S.Ct. 2038. Therefore, like in tilóse cases, “the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” See id.

2. Qualified Immunity

Defendants argue that even if Officers Chase and Dubois’ conduct violated Shafer’s Fourth Amendment right to be free from an unreasonable search, the doctrine of qualified immunity shields them from liability.

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.⁸ See Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir.2005). The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This immunity is granted broadly and “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Moran v. Washington, 147 F.3d 839, 844 (9th Cir.1998) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “When a law enforcement officer asserts qualified immunity from liability for Fourth Amendment violations, the district court must determine whether, in light of clearly established principles governing the conduct in question, the officer objectively could have believed that his conduct was lawful.” Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1092 (9th Cir.1998).

“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, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). “[Qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (citations omitted). Qualified immunity shields government officials from “civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citations omitted).

Because the Court has determined that Defendants Chase and Dubois violated Shafer’s Fourth Amendment right to be free from government video surveillance of his home, the remaining question is whether the right was clearly established at the time of the violation. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“[I]f a [constitutional] violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.”); accord Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

“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. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (quotation marks and citation omitted). “[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.” Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir.2010). However, courts “do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S.Ct. at 2083.

The law in the Ninth Circuit regarding video surveillance of the home has been clearly established since at least 2000 when the court decided Nerber, 222 F.3d at 597. Nerber made clear that “society is prepared to accept as reasonable [an] expectation to be free from video surveillance [in a hotel room].” Id. at 604. Nerber involved a hotel room while this case involves Shafer’s home, but for “Forth Amendment purposes, a hotel room is treated essentially the same if not exactly the same as a home[.]” Id. at 600 n. 2. And as mentioned, the heightened constitutional protection in the home is a central feature of the Fourth Amendment and has been since the nation’s founding. See Kyllo, 533 U.S. at 31, 121 S.Ct. 2038. Furthermore, the fact that the cameras at issue in Nerber were hidden and the cameras here were in plain view is of no consequence. First, Nerber does not distinguish between hidden video cameras and video cameras in plain view, nor does it rest its analysis on the fact that the cameras there were hidden. Second, Shafer did not know that the cameras in this case belonged to the government at the time the cameras were filming him. Before Fenyves installed the DHS cameras, he was filming Shafer on his personal cameras. The record demonstrates that Shafer did not know that the DHS cameras Fenyves added to his surveillance system in February 2009 belonged to the government until long after Fenyves returned the cameras to the BCPD. {See dkt. no. 28-5 at 20, 37.) Therefore, the cameras were the equivalent of the hidden cameras at issue in Nerber because the DHS cameras were in effect “hidden” among Shafer’s personal cameras.

Finally, Defendants argue that they are entitled to qualified immunity because they believed their actions were constitutional. At their depositions, both Chase and Dubois stated that they did not believe they had violated Shafer’s Fourth Amendment rights. {See dkt. nos. 28-1 at 19; 28-3 at 20.) The Officers also testified that they believed they had acted reasonably in loaning Fenyves the DHS cameras. {See id.) Notably, Officer Dubois’ instruction to Fenyves not to film Shafer’s window and both Officers’ testimony regarding their general knowledge of the Fourth Amendment contradicts this point.⁹ The Officers should have known that filming a person’s enclosed backyard, like filming the interior of a person’s home, violates the Fourth Amendment. Even if the Officers truly believed their investigation was reasonable, “[wjhether the law was clearly established is an objective standard; the defendant’s subjective understanding of the constitutionality of his or her conduct is irrelevant.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir.2011).

Officers Chase and Dubois authorized loaning the DHS cameras to Fenyves. Yet despite knowing the history of animosity between the two neighbors, Chase and Dubois did not follow up on the investigation with Fenyves. They did not ensure that the cameras were not being used to film Shafer’s home. The Officers attempt to hide behind Fenyves’ actions and use him almost as a shield against liability. They cannot. Police officers cannot act through a private citizen to make certain conduct constitutional which would otherwise be unconstitutional if performed by the government.

Police officers act irresponsibility and unreasonably when they give a citizen surveillance cameras to spy on his neighbors on behalf of the police and fail to conduct a follow-up inquiry to ensure the cameras are not being used to conduct unreasonable search. Qualified immunity cannot protect police officers from such behavior.

For these reasons, qualified immunity does not shield Defendants Chase and Dubois from liability. And because Chase and Dubois’ actions violated Shafer’s Fourth Amendment rights, the Court grants Shafer’s Motion for Summary Judgment on his Fourth Amendment claims against Defendants Chase and Dubois for authorizing Fenyves’ unconstitutional filming of Shafer’s backyard. Defendants’ Motion regarding these claims is accordingly denied.

C. Fourth Amendment Claims Against Defendant Chief Finn in His Individual Capacity

a. Violation of a Constitutional Right

In his Complaint, Shafer alleges that Chief Finn violated his Fourth Amendment right by participating in the narcotics investigation. However, Finn did not originally authorize the investigation nor did he later become part of it. Unlike Defendants Chase and Dubois, Chief Finn was not personally involved in providing Fenyves with the DHS cameras. All parties agree that Chief Finn was out of town for training when Deputy Chief Chase authorized the investigation. So Finn, unlike Dubois and Chase, did not directly violate Shafer’s Fourth Amendment reasonable expectation of privacy. Finn may be liable, however, under a theory of deliberate indifference.

In Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 2101, 182 L.Ed.2d 882 (2012), the Ninth Circuit “reaffirmed that a plaintiff may state a claim under § 1983 against a supervisor for deliberate indifference.” Henry A. v. Willden, 678 F.3d 991, 1003 (9th Cir.2012). To be held liable under a theory of deliberate indifference, “the supervisor need not be directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury.” Baca, 652 F.3d at 1205 (quotation marks and citations omitted). A § 1983 suit cannot be based on vicarious liability alone, but must allege that the defendant’s own conduct violated the plaintiffs civil rights. See City of Canton v. Harris, 489 U.S. 378, 386, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

In § 1983 lawsuits, “supervisors can be held liable for: (1) their own culpable action or inaction in the training, supervision, or control of subordinates; (2) their acquiescence in the complained-of constitutional deprivation; and (3) conduct that showed a reckless or callous indifference to the rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.2000). Further,

[i]n limited circumstances a supervisor’s subsequent “ratification” of another’s conduct can form the basis for liability under § 1983. The decision to ratify specific conduct, however, must approve both the subordinate’s decision and the basis for it, and the ratification decision must be the product of a conscious, affirmative, choice to ratify the conduct in question. It must be a decision to ratify unconstitutional conduct.

Peschel v. City of Missoula, 686 F.Supp.2d 1092, 1102 (D.Mont.2009). The circumstances must demonstrate that Chief Finn either “set in motion a series of acts by others[ ] or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known, would cause others to inflict the constitutional injury.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991) (citations omitted).

There are genuine issues of material fact regarding whether Chief Finn (1) approved of loaning the DHS cameras to Fenyves for the purpose of videotaping Shafer’s home; and (2) made a conscious, affirmative decision to ratify Chase and Dubois’ unconstitutional investigation.

There is a great deal of evidence supporting Shafer’s position that Chief Finn ratified an unlawful investigation. Chief Finn became aware of the investigation after his return from training. (Dkt. no. 30-7 at 12). At his deposition Chief Finn testified that he and Deputy Chase had several conversations regarding the BCPD loaning its DHS cameras to Fenyves. (Id.) He knew that BCPD had done so without a warrant. (Id. at 12, 13.) Once he found out about the operation, Chief Finn testified that he did not follow up on the investigation but that he knew that Deputy Chief Chase was involved in the project and had loaned Fenyves the DHS cameras to help the BCPD discern whether or not illicit narcotics-related activity was occurring at the Shafer residence. (Id. at 12-13.)

Despite this compelling evidence, it is not obvious from the record that Chief Finn knew that Fenyves was pointing the DHS cameras at Shafer’s property and not at either Fenyves’ own property or the sidewalk and street surrounding the Fenyves and Shafer residences. Chief Finn testified that he knew that the BCPD lent its cameras to Fenyves to protect and monitor Fenyves’ own property as well as to help the Police Department investigate the allegations concerning Shafer. (Dkt. no. 30-7 at 11.) Finn stated that he knew that Fenyves was aiming the cameras at Fenyves’ property and at the border of his property. (Id.) At his deposition, Finn testified that he did not know if the BCPD verified the direction in which Fenyves was aiming the cameras. (Id. at 11, 13.) Therefore, a reasonable juror could conclude that Chief Finn did not ratify the unlawful videotaping of Shafer’s bathroom window and backyard, but rather the lawful videotaping of Fenyves’ own property and the public sidewalk and street surrounding it.

The Court accordingly denies both Motions for Summary Judgment on this claim.

b. Qualified Immunity

For the same reasons stated above regarding Defendants Chase and Dubois, Chief Finn’s qualified immunity defense fails. The law regarding government video surveillance of citizens’ homes was clearly established at the time of the violation. Defendant Finn cannot raise the defense of qualified immunity, and his Motion regarding this affirmative defense is accordingly denied. Plaintiffs Motion for Summary Judgment regarding Chief Finn’s qualified immunity defense is therefore granted.

D. Monell Claims Against BCPD and COBC¹⁰

Shafer argues that the unconstitutional video surveillance of his home was part of an official policy or custom of the BCPD and the COBC because Chief Finn ratified the surveillance and allowed it to continue for fifty-six days.¹¹ (Dkt. no. 29 at 22-23.)

“Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell instructs that in order to impose liability on a municipality or a subdivision of the municipality under § 1983, a plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff s injury.” Bd. of Cnty. Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “Locating a ‘policy’ ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Id. at 403-04, 117 S.Ct. 1382 (citations omitted). “Similarly, an act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decision maker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.”¹² Id. at 404, 117 S.Ct. 1382 (citations omitted).

Defendants, citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), argue that a single incident is not sufficient to establish a municipal policy for the purposes of § 1983. (Dkt. no. 30 at 16.) However, in City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), the court held that a single event can give rise to municipal liability under § 1983:

We [the court] have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest official responsible for setting policy in that area of the government’s business.... At the other end of the spectrum, we have held [in Tuttle] that an unjustified shooting by a police officer cannot, without more, be thought to result from official policy, (citations omitted).

In fact, in Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), “the Supreme Court held that a single decision by a municipal policymaker may be sufficient to trigger section 1983 liability under Monell, even though the decision is not intended to govern future situations.” Gillette v. Delmore, 979 F.2d 1342, 1347 (citing Pembaur, 475 U.S. at 480-81, 106 S.Ct. 1292 (remaining citations omitted)). “There must, however, be evidence of a conscious, affirmative choice.” Id. “Municipal liability under section 1983 attaches only where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Id. at 1348 (quotation marks and citations omitted). “Likewise, Praprotnik requires that a policymaker approve a subordinate’s decision and the basis for it before the policymaker will be deemed to have ratified the subordinate’s discretionary decision” for the purposes of municipal liability under § 1983. Id. at 1348 (italics in original; citation omitted). This is because to “hold cities liable under section 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior liability into section 1983 law under the guise of Pembaur’s ‘single decision’rule.” Id.

Therefore, to hold BCPD, and by extension Boulder City, liable under Monell, the Court must determine whether (1) Chief Finn was a policymaking official with final policymaking authority, and (2) Chief Finn ratified the video surveillance of Plaintiffs home.¹³ Because the Court has determined that there is a genuine issue of material fact regarding whether Chief Finn ratified the video surveillance of Shafer’s home, both Motions are denied.

V. CROSS-MOTIONS FOR SUMMARY JUDGMENT ON PLAINTIFF’S STATE LAW CLAIMS

The Court will next consider summary-judgment raised with respect to Shafer’s state law claims.

A. The Applicability of Discretionary-Function Immunity in this Action

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” of the officer. 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, 436 U.S. at 690, 98 S.Ct. 2018. The Nevada Supreme Court, however, has implicitly assumed that municipalities are political subdivisions of the State for the purposes of applying the discretionary act immunity statute. See, e.g. Travelers Hotel, Ltd. v. City of Reno, 103 Nev. 343, 741 P.2d 1353, 1354-55 (1987).

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, 123 Nev. 433, 168 P.3d 720, 727, 729 (2007). Decisions at all levels of government, including routine decisions, may be protected by discretionary-function immunity so long as both criteria are satisfied. Id. at 729. Additionally, “the discretionary function exception protects agency decisions concerning the scope and manner in which [the agency] conducts an investigation so long as the agency does not violate a mandatory directive.” Vickers v. United States, 228 F.3d 944, 951 (9th Cir.2000). In analyzing discretionary-function immunity, a court does not ask whether the official abused his or her discretion, but only whether the acts concerned a matter in which the official had discretion. See NRS § 41.032(2).

Shafer admits that Deputy Chase’s decision to initiate a narcotics-related investigation was a discretionary choice relating to social and political policy. However, he argues that the individual police officers’ operational decisions implementing that investigation did not involve policy considerations. (Dkt. no. 29 at 24.)

1. Officer Dubois and Deputy Chief Chase

“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., 854 F.Supp.2d 860, 880 (D.Nev.2012) (citing Hart v. United States, 630 F.3d 1085, 1090 (8th Cir.2011) (“We readily conclude a federal law enforcement officer’s on-the-spot decisions concerning how to effectuate an arrest — -including how best to restrain, supervise, control or trust an arrestee — fall within the discretionary function exception to the FTCA absent a specific mandatory directive to the contrary.”) (other citations omitted)).

“However, acts which violate the Constitution are not discretionary.” Jarvis v. City of Mesquite Police Dept., No. 09-CV-00851, 2012 WL 600804, at *5 (D.Nev. Feb. 23, 2012) (citing Nurse v. United States, 226 F.3d 996, 1002 (9th Cir.2000) (“In general, governmental conduct cannot be discretionary if it violates a legal mandate.”)); see also U.S. Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir.1988) (stating that “conduct cannot be discretionary if it violates the Constitution, a statute, or an applicable regulation” because federal officials “do not possess discretion to violate constitutional rights or federal statutes”). Accordingly, because Chase and Dubois’ actions clearly violated the Fourth Amendment, discretionary-function immunity does not apply to Shafer’s state law claims against them.

2. Chief Finn, BCPD, and Boulder City

The BCPD is not a suable entity because it is a department of Boulder City, not a political subdivision. See Wayment v. Holmes, 112 Nev. 232, 912 P.2d 816, 819 (1996). However, Boulder City is a suable entity unless discretionary-function immunity applies. See id.

Boulder City and Chief Finn do not enjoy discretionary-function immunity. In Trujillo v. Powell, No. 3:11-cv-00360, 2011 WL 3419504, at *9 n. 3 (D.Nev. August 2, 2011), a Nevada district court applied respondeat superior liability in the context of discretionary-function immunity. Noting that vicarious liability is not available in § 1983 claims, the court nevertheless held that because respondeat superior is a “valid theory of liability against a government employer as to common law torts,” it is applicable in the realm of discretionary-function immunity. Id. Under a theory of respondeat superior, Defendants Chase and Dubois’ unconstitutional decision to authorize the use of the DHS cameras to conduct a search of Shafer’s home can be imputed to their supervisor and the City.¹⁴ See id.

For these reasons, only Defendant BCPD is immune from suit from Shafer’s state law claims. Defendants’ Motion for Summary Judgment relating to Shafer’s state law claims against the BCPD is therefore granted. Defendants’ Motion for Summary Judgment regarding their discretionary-function immunity defense as to all other Defendants is denied and Shafer’s Motion in that regard is granted.

The remaining discussion relates to Shafer’s state law claims against all Defendants except for the BCPD.

B. Civil Conspiracy

To state a valid claim for civil conspiracy, a plaintiff must show: (1) defendants, by acting in concert, intended to accomplish an unlawful objective for the purpose of harming the plaintiff; and (2) the plaintiff sustained damages as a result. Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 109 Nev. 1043, 862 P.2d 1207, 1210 (1993) (citing Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 662 P.2d 610, 622 (1983)).

“A civil conspiracy claim operates to extend, beyond the active wrongdoer, liability in tort to actors who have merely assisted, encouraged or planned the wrongdoer’s acts.” Flowers v. Carville, 266 F.Supp.2d 1245, 1249 (D.Nev.2003) (quoting 16 Am.Jur. 2D Conspiracy § 57 (1998)). “While the essence of the crime of conspiracy is the agreement, the essence of civil conspiracy is damages.” Id. The damages result from the tort underlying the conspiracy. Id. An actionable civil conspiracy “consists of a combination of two or more persons who, by some concerted action, intend to accomplish an unlawful objective for the purpose of harming another, and damage results from the act or acts.” Consol. Generator-Nevada v. Cummins Engine Co., 114 Nev. 1304, 971 P.2d 1251, 1256 (1998) (quoting Hilton Hotels Corp., 862 P.2d at 1210); see also Sutherland v. Gross, 105 Nev. 192, 772 P.2d 1287 (1989).

Here, the parties dispute whether the Officer Defendants wanted Fenyves to videotape his own home or Shafer’s home. For the purpose of this claim, it is relevant that in his deposition, Fenyves stated that he received no direction regarding the placement or directioning of the DHS cameras. (Dkt. no. 29-6 at 8-10.) Yet Officer Dubois testified that he informed Fenyves it would “be okay” to film Shafer’s backyard. (Dkt. no. 30-5 at 9.) This produces a genuine issue of material fact, because if Deputy Chief Chase, Detective Dubois, and Fenyves agreed that Fenyves would aim the cameras at Shafer’s residence, then Shafer would satisfy the first element of his civil conspiracy claim — that Defendants intended to work together to unlawfully violate Shafer’s Fourth Amendment right to be free from an unreasonable search. However, if the Officers and Fenyves were not in agreement that Fenyves would tape Shafer’s backyard, then Shafer could not demonstrate either action in concert or a shared intent to violate his Fourth Amendment right. The Court therefore denies the parties’ Motions for Summary Judgment on this claim.

C. Slander Against Defendant Mayor Tobler

Shafer claims that at the Town Hall meeting regarding the alleged drug dealing at Shafer’s residence, Mayor Tolber stated that “he wouldn’t want to live next to that [referring to Shafer] either.”

1. Legal Standard

To establish a prima facie case of defamation, a plaintiff must allege: (1) a false and defamatory statement by the 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. Wynn v. Smith, 117 Nev. 6, 16 P.3d 424, 427 (2001). A statement is defamatory only if it contains a factual assertion that can be proven false. Pacquiao v. Mayweather, 803 F.Supp.2d 1208, 1211 (D.Nev.2011).

Defamation is a question of law. Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223, 1225-26 (Nev.1981). “In reviewing an allegedly defamatory statement, the words must be viewed in their entirety and in context to determine whether they are susceptible of a defamatory meaning.” Lubin v. Kunin, 117 Nev. 107, 17 P.3d 422, 425-26 (2001) (internal quotations omitted). As a general rule, “only assertions of fact, not opinion, can be defamatory. However, expressions of opinion may suggest that the speaker knows certain facts to be true or may imply that facts exist which will be sufficient to render the message defamatory if false.” Wynn, 16 P.3d at 431 (citing K-Mart Corporation v. Washington, 109 Nev. 1180, 866 P.2d 274, 281 (Nev.1993)). Further, “statements of belief are defamatory if they imply the existence of defamatory facts that are not disclosed to the listener ... for example, the statement ‘I think he must be an alcoholic’ is actionable because a jury might find that it implied that the speaker knew undisclosed facts justifying his opinion.” Restatement (Second) Torts, § 556; see also Gordon v. Dalrymple, 2008 WL 2782914, at *4 (D.Nev. July 8, 2008) (“Any statement which presupposes defamatory facts unknown to the interpreter is defamatory.”).

In Nevada, to determine if a statement is one of fact or opinion, “the court must ask whether a reasonable person would be likely to understand the remark as an expression of the source’s opinion or as a statement of existing fact.” Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 57 P.3d 82, 87 (2002); see also Wynn, 16 P.3d at 431. If a statement is susceptible to different constructions, resolution of any ambiguity is a question of fact for the jury. Pacquiao, 803 F.Supp.2d at 1212.

2. Discussion

There is a genuine issue of material fact regarding element one, whether Mayor Tobler made a false and defamatory statement concerning Shafer. Elements two and three — publication and fault — have been clearly established by the facts provided in the summary judgment record.

A portion of Tobler’s statement is clearly an opinion: Mayor Tobler stated his preference, or opinion, that he would not like to live next to Shafer. However, there is a genuine issue of material fact as to whether the second half of Mayor Tobler’s statement was an expression of an opinion that implied certain facts exist which would render Tobler’s statement defamatory if false. See Wynn, 16 P.3d at 431. Mayor Tobler said “I wouldn’t want to live next to that either.” It is unclear what Tobler meant by “that.” He surely meant Shafer — but what exactly about Shafer is unclear. “That” could have meant the fact that Shafer’s home was noisy and had a great deal of traffic late at night. These facts are stipulated as true by all parties and, therefore, Shafer would have no defamation claim if those were the facts implied by Tobler’s statement. If, however, Mayor Tobler was insinuating that he would not want to live next to a narcotics dealer, and Shafer convinces a jury that he was not dealing narcotics during the relevant time period, then a jury could find that Mayor Tobler was implying that Shafer was a drug dealer. Such a statement would certainly be defamatory if false. For this reason, Defendants’ Motion on Shafer’s defamation claim is denied.

D. Remaining State Law Claims

The parties do not present clear argument as to why summary judgment should be granted in their favor on these claims. Their briefs fail to cite to sufficient case law or evidence demonstrating why these causes of action should be decided as a matter of law. Therefore, the Motions for Summary Judgment on the state law claims not explicitly discussed above are denied.

E. Punitive Damages

Defendants move for summary judgment on Shafer’s request for punitive damages for both his federal and state law claims.¹⁵

1. Federal Claims

A plaintiff may claim punitive damages under § 1983 when “the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).

Defendants argue that Shafer is not entitled to federal punitive damages because there is “no evidence that the Officer Defendants intentionally harmed Plaintiff.” However, as discussed above, this is not the case for Officers Chase and Dubois. The two Officers knew Fenyves would use the DHS cameras to film Shafer’s backyard. Moreover, as described above, there is a genuine issue of material fact regarding whether Chief Finn and the City acted with intent or reckless disregard.

Shafer’s Motion for Summary Judgment on his federal punitive damages also fails. Shafer has failed to properly brief the meaning of “evil motive or intent” or “reckless or callous indifference” in the context of punitive damages under § 1983.

Accordingly, the Court declines to grant summary judgment for either party on Shafer’s request for punitive damages on his federal claims.

2. State Claims

Defendants cite to NRS § 41.035, arguing that the statute limits the amount a plaintiff may obtain in a tort action against a political subdivision. However, NRS § 41.035 merely limits the total amount of damages, including but not limited to punifive damages, that a plaintiff may recover against an officer of the state or political subdivision. These damages are capped at $100,000. NRS § 41.035(1). Therefore, NRS § 41.035 may be grounds for limiting the amount of damages Shafer seeks. This will be addressed at trial. NRS § 41.035 does not immunize Defendants from punitive damages arising out of Plaintiffs state law allegations, nor do Defendants provide any other reason why the Court should grant them summary judgment on this issue. The Motion is accordingly denied.

Shafer fails to provide legal argument regarding why he should be granted summary judgment on his request for punitive damages on his state law claims. His references to punitive damages for those claims are vague at best. {See, e.g. dkt. no. 29 at 25-26). The Court therefore denies his request.

VI. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that the parties’ Motions for Summary Judgment are GRANTED in part and DENIED in part as follows:

• Plaintiffs Motion for Summary Judgment on his Fourth Amendment claims against Defendants Chase and Dubois in their individual capacities regarding Fenyves’ videotaping his backyard is GRANTED; to the extent that Plaintiffs Motion relates to Fenyves’ filming his bathroom window, the Motion is DENIED;

• Defendants’ Motion for Summary Judgment on Plaintiffs Fourth Amendment claims against Defendants Chase and Dubois in their individual capacities is DENIED;

• Plaintiffs Motion for Summary Judgment regarding Defendants Chase and Dubois’ affirmative defense of qualified immunity is GRANTED;

• Defendants’ Motion for Summary Judgment regarding Officers Chase and Dubois’ affirmative defense of qualified immunity is DENIED;

• Both parties’ Motions for Summary Judgment on Plaintiffs Fourth Amendment claim against Defendant Finn in his individual capacity are DENIED;

• Plaintiffs Motion for Summary Judgment regarding Defendant Finn’s affirmative defense of qualified immunity is GRANTED;

• Defendants’ Motion for Summary Judgment regarding Defendant Finn’s affirmative defense of qualified immunity is DENIED;

• Plaintiffs Motion for Summary Judgment regarding his claims against the BCPD Officers acting in their official capacities is DENIED;

• Defendants’ Motion for Summary Judgment regarding Plaintiffs claims against the BCPD Officers acting in their official capacities is GRANTED;

• Both parties’ Motions for Summary Judgment on Plaintiffs Monell claims against BCPD and Boulder City are DENIED, except that Defendants’ Motion for Summary Judgment regarding Plaintiffs failure to train/failure to supervise Monell allegations is GRANTED;

• Defendants’ Motion for Summary Judgment regarding Plaintiffs state law claims against BCPD is GRANTED;

• Defendants’ Motion for Summary Judgment regarding Defendants’ discretionary-function immunity defense is DENIED and Plaintiffs Motion for Summary Judgment on that defense is therefore GRANTED;

• The parties’ Motions for Summary Judgment regarding Plaintiffs civil conspiracy cause of action as to all Defendants except BCPD are both DENIED;

• Defendants’ Motion for Summary Judgment regarding Plaintiffs slander cause of action against Mayor Tobler is DENIED;

• The parties’ Motions for Summary Judgment regarding Plaintiffs unreasonable intrusion on the solitude or seclusion of another cause of action as to all Defendants except BCPD are both DENIED;

• The parties’ Motions for Summary Judgment regarding Plaintiffs negligence cause of action as to all Defendants except BCPD are both DENIED;

• Defendants’ Motion for Summary Judgment regarding Plaintiffs intentional infliction of emotional distress cause of action as to all Defendants except BCPD is DENIED;

• Defendants’ Motion for Summary Judgment regarding Plaintiffs’ negligent infliction of emotional distress cause of action as to all Defendants except BCPD is DENIED;

• Both parties’ Motions for Summary Judgment regarding state and federal punitive damages are DENIED.

Notes

1 . Collectively, this Order refers to the Officer Defendants, BCPD, and the City as the "COBC Defendants.”

2 . Shafer filed suit on his behalf and on behalf of his three children. However, both parties' Motions for Summary Judgment focus on Shafer’s claims on his own behalf. Accordingly, unless otherwise stated, this Order discusses only Shafer's claims brought on his own behalf.

3 . At the trial, Shafer also learned that the video surveillance tapes had been destroyed, damaged, or lost by the BCPD. (Dkt. no. 28-5 at 37.)

4 . Shafer is also suing Fenyves, who is not affiliated with the COBC Defendants and is not a party to any motions discussed in this Order.

5 .Though Defendants call their pleading a “motion for summary judgment,” the parties do not address Shafer’s allegations regarding his Nevada Constitution claim in their Motion. This Order only addresses those claims specifically addressed by the parties.

6 . Defendants also cite to United States v. Taketa, 923 F.2d 665, 677 (9th Cir.1991) for the proposition that "[vjideo surveillance does not in itself violate a reasonable expectation of privacy ... the police may record what they normally may view with the naked eye.” However, this quote misconstrues Taketa, which noted that although not all video surveillance violates a plaintiff’s reasonable expectation of privacy, persons may create "zones of privacy within which they may not reasonably be videotaped.” Id.

7 . Other circuits are in accord with the Fifth and the Ninth on this issue. See, e.g., United States v. Mesa-Rincon, 911 F.2d 1433, 1444 (10th Cir.1990); United States v. Torres, 751 F.2d 875, 882 (7th Cir.1984).

8 . In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated a two-step sequence for resolving qualified immunity claims: first, determine whether the defendant violated the plaintiff’s constitutional right, and second, determine whether that right was "clearly established” at the time of defendant’s alleged misconduct. However, the Supreme Court recently held that the Saucier protocol is no longer mandatory. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Supreme Court left the order of decision to the “sound discretion” of district court judges. Id. The Court chooses to follow the Saucier protocol in this case.

9 . Officer Ford informing Fenyves that his camera was "not positioned properly" and her instruction that he take the DHS cameras down immediately (dkt. no. 30 at 25) also call into question Dubois’ and Chase's assertions that they believed filming Shafer's backyard was constitutional.

10 . Shafer's claims against the Officer Defendants in their official capacity are considered one and the same as his claims against BCPD and the City, because ''[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).

11 . In his Complaint, Shafer also alleges that BCPD and the City inadequately supervised and failed to train its police officers, "thereby failing to adequately discourage further constitutional violations on the part of its police officers.” (Dkt. no. 1 at ¶ 87.) However, Shafer does not discuss this allegation in his Motion nor does he provide sufficient facts to support this argument. Therefore, Defendants’ Motion for Summary Judgment regarding Shafer’s failure to train/failure to supervise claim is granted.

12 . Although Shafer alleges that the surveillance of his home was part of an unconstitutional custom or practice perpetuated by COBC and BCPD, his Motion for Summary Judgment focuses on his argument that there existed an unconstitutional city policy. Moreover, there is no evidence that BCPD or COBC had a custom of initiating round-the-clock video surveillance of suspected criminals. This Order therefore focuses on Shafer's Monell allegations regarding an unconstitutional city or police department policy.

13 . For the purposes of Monell liability under § 1983, Shafer's claims against the BCPD are identical to his claims against Boulder City. See Howlett By & Through Howlett v. Rose, 496 U.S. 356, 376, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ("[M]unicipal corporations and similar governmental entities” are juridical persons who may be sued pursuant to § 1983).

14 . "Respondeat superior liability is statutorily precluded in Nevada only in cases where the employee's conduct '[w]as a truly independent venture of the employee; [w]as not committed in the course of the very task assigned to the employee; and [w]as not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his employment. [']" Trujillo, 2011 WL 3419504, at *9 n. 3 (citing NRS § 41.745(1)(a)-(c)). This exception does not apply in this case.

15 . Municipalities are immune from punitive damages under 42 U.S.C. § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). As such, the Court’s discussion of federal punitive damages relates to Shafer's claims against the Officer Defendants in their individual capacities only.

Case Details

Case Name: Shafer v. City of Boulder

Court Name: District Court, D. Nevada

Date Published: Sep 12, 2012

Citation: 896 F. Supp. 2d 915

Docket Number: Case No. 2:10-cv-02228-MMD-GWF

Court Abbreviation: D. Nev.