Free Motion for Judgment - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendants. NO. CV03-1892-PHX-ROS DEFENDANTS' RULE 50 MOTION REGARDING QUALIFIED IMMUNITY

Pursuant to FED. R. CIV. P. 50(a)(1), Defendants Griffin, Lynde, Dunn and Monson, through counsel, move for judgment as a matter of law on the issue of qualified immunity. This Motion is supported by the following Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES
I. LEGAL ANALYSIS Judgment as a matter of law is appropriate only if "there is no legally sufficient evidentiary basis" to find in favor of Plaintiff. FED.R.CIV.P. 50; see also Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002) (a motion for judgment as a matter of law should be granted only "if the evidence permits only one conclusion, and that conclusion

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is contrary to the jury's verdict."). See generally, Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 134 (2d Cir. 1999); CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 14, 1146, 1152 (Fed. Cir. 1997) (pursuant to Rule 50(a), if there is not sufficient evidence to raise a genuine factual controversy, the court may take a case away from the jury by entering a judgment). II. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY AS TO SECTION 1983 CLAIMS. As noted in the "comment" to the Ninth Circuit Model Jury Instruction 11.3, qualified immunity is ordinarily a question of law for the court and should be decided at the earliest possible point in the litigation. See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (reversing Ninth Circuit holding that qualified immunity was a question of fact for the jury). However, issues of fact may need to be determined by the trier of fact before the court can make a determination on qualified immunity. See Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001); Sloman v. Tadlock, 21 F.3d 1462, 1467-68 (9th Cir. 1994) (noting that the question of whether the judge or jury should be the ultimate determiner of qualified immunity, once disputed foundational facts have been decided by the jury, is as yet unresolved); Act Up!/Portland v. Bagley, 988 F.2d 868, 872­73 (9th Cir. 1993) (holding that qualified immunity becomes a jury question only where a genuine issue of fact exists preventing the determination of qualified immunity at summary judgment). In this case, the individual defendants are entitled to qualified immunity from Plaintiff's Section 1983 claims. As the Supreme Court recently noted in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), the qualified immunity inquiry is different from the underlying excessive force inquiry. An officer may have used an unreasonable amount of force, but mistakenly believed the amount used was appropriate under the circumstances. Id. at 202, 121 S. Ct. at 2156; accord Brosseau v. Haugen, 543 U.S. 596, 598 (2004).

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To determine whether Defendants are entitled to qualified immunity, the Supreme Court applies a two-part inquiry. First, the Court must determine whether a constitutional right has been violated. The second step is whether the right is clearly established. See Saucier, 533 U.S. at 198. "The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 194-195. The reasonableness inquiry for qualified immunity is different from determining whether there was an unconstitutional use of excessive force in that "reasonable mistakes can be made as to the legal constraints on particular police conduct." Id. at 195. Here, Plaintiff has failed to establish a prima facie case of excessive force under 42 U.S.C. § 1983 against the Defendants. As the Court is aware, the Defendant officers have all testified that they used the force that they believed was reasonably and necessary under the circumstances. Further, there has been no evidence that the Officers intended to cause her harm while she was being taken into custody or that they did anything while handcuffing her to purposely inflict injury. Because there has been no evidence that Plaintiff's constitutional rights were violated, the first part of the qualified immunity analysis under Saucier has been satisfied. In addition, there has been no evidence that the officers conduct was unlawful when they attempted to detain Plaintiff and place her in handcuffs. Instead, each of the officers testified that the force used was based on the totality of the circumstance presented to them at the time, that the use of force was in compliance with their training and that they complied with the City of Phoenix Use of Force Policy 1.5. Thus, the Defendants have established the second part of the qualified immunity analysis under Saucier. The Defendants have clearly met the burden of proof on establishing the applicability of qualified immunity in this case. Accordingly, Defendants are entitled to
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judgment as a matter of law on this issue and the case must be dismissed. III. CONCLUSION. Based on the foregoing, Defendants' respectfully request that their Rule 50 Motion be granted and that the Court find that Defendants are entitled to qualified immunity as a matter of law. DATED this 18th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Griffin, Dunn, Lynde and Monson

Electronically filed and served this 18th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY

s/Peggy Sue Trakes

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