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No. 13-17065 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER B. CORDEIRO, Individually,
Plaintiff-Appellee
v.
Officer ANTHONY VASQUEZ, Individually as a Department of Defense Navy Police Officer
Defendant-Appellant
On Appeal from the United States District Court District of Hawaii CIVIL NO. 11-00413 (JMS/BMK)
(Honorable J. Michael Seabright)
OPENING BRIEF OF DEFENDANT-APPELLANT
BERVAR & JONES Attorneys at Law A Law Partnership BIRNEY B. BERVAR #5482 Alakea Corporate Tower 1100 Alakea Street, 20th Floor Honolulu, Hawaii 96813 Telephone: (808) 524-7030 Attorney for Defendant-Appellant ANTHONY VASQUEZ
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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................... ii JURISDICTIONAL STATEMENT ............................................................... 1 ISSUE PRESENTED...................................................................................... 2 STATEMENT OF THE CASE....................................................................... 2 STATEMENT OF FACTS ............................................................................. 4 SUMMARY OF THE ARGUMENT ........................................................... 15 ARGUMENT ................................................................................................ 16 THE DISTRICT COURT ERRED IN DENYING DEFENDANT ANTHONY VASQUEZ’S MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY A. Standard of Review .................................................................. 16 B. Discussion ................................................................................ 16 1. Defendant Officer Vasquez Did Not Violate Plaintiff Cordeiro’s Constitutional Rights Because Officer Vasquez’s Conduct was Reasonable.............................. 17 2. Officer Vasquez Did Not Violate Clearly Established Law in His Seizure and Treatment of Cordeiro............. 21 CONCLUSION............................................................................................. 28 STATEMENT OF RELATED CASES........................................................ 29
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TABLE OF AUTHORITIES CASES Page Ashcroft v. Al-Kidd 131 S.Ct. 2074 (2011) ............................................................................. 21, 25 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 403 U.S. 388 (1971).................................................................................... 1, 2 Brosseau v. Haugen 543 U.S. 194 (2004)...................................................................................... 24 Butz v. Economou 438 U.S. 478 (1978)...................................................................................... 16 Citizens United v. FEC 130 S.Ct. 876 (2010) ..................................................................................... 17 Graham v. Connor 490 U.S. 386 (1989).................................................................... 17, 18, 19, 25 Groh v. Ramirez 540 U.S. 551 (2004)...................................................................................... 16 Harlow v. Fitzgerald 457 U.S. 800 (1982)...................................................................................... 16 Mitchell v. Forsyth 472 U.S. 511 (1985)........................................................................................ 1 Pearson v. Callahan 55 U.S. 223 (2009).................................................................................. 16, 17 Saucier v. Katz 533 U.S. 194 (2001).......................................................................... 17, 21, 24 Scott v. Harris 550 U.S. 372 (2007)................................................................................ 18, 23
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TABLE OF AUTHORITIES (continued) CASES Page Blanford v. Sacramento County 406 F.3d 1110 (9th Cir. 2005)........................................................................ 16 Brooks v. Seattle 661 F.3d 433 (9th Cir. 2011).............................................................. 24, 25, 27 Bryan v. MacPherson 630 F.3d 805 (9th Cir. 2010)........................................................ 24, 25, 26, 27 Chew v. Gates 27 F.3d 1432 (9th Cir. 1994).......................................................................... 19 Gravelet-Blondin v. Shelton ___ F.3d ___, 2013 WL 4767182 (9th Cir. Sept. 6, 2013) ...................... 26, 27 Headwaters Forest Defense v. County of Humboldt 276 F.3d 1125 (9th Cir. 2002).................................................................. 22, 23 Jackson v. Bremerton 268 F.3d 646 (9th Cir. 2001).......................................................................... 22 Johnson v. Glick 481 F.2d at 1033............................................................................................ 18 La Londe v. County of Riverside 204 F.3d 947 (9th Cir. 2000).......................................................................... 22 Mattos v. Agarano 661 F.3d 433 (9th Cir. 2011).............................................................. 17, 18, 27 Smith v. City of Hemet 394 F.3d 689 (9th Cir. 2005) (en banc) ......................................................... 19 United States v. Cordeiro Cr. No. 09-00308 (D. Haw. Dec. 3, 2009).................................................... 14
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TABLE OF AUTHORITIES (continued) STATUTES Page 18 U.S.C. § 13............................................................................................... 15 18 U.S.C. § 111............................................................................................. 15 28 U.S.C. § 1291......................................................................................... 1, 2 42 U.S.C. § 1983........................................................................................... 26 Hawaii Revised Statutes § 286-102 .............................................................. 14
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JURISDICTIONAL STATEMENT Plaintiff Christopher Cordeiro filed a civil rights action against the United
States of America and individual federal police officers Anthony Vasquez and
Wesley Cortez alleging violations of his rights under the Fourth amendment to the
United States Constitution pursuant to Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Docket No. 1, E.R. 43]1
Defendants Officers Vasquez and Cortez each filed a Motion for Summary
Judgment raising an affirmative defense of Qualified immunity as to Cordeiro’s
claim. [Docket Nos. 59, 62, E.R. 52]. The District Court denied these Motions for
Summary Judgment in a written order entitled Order (1) Granting Defendant
Anthony Vasquez’s Motion to Dismiss Count XIV, Doc. No. 60; (2) Denying
Defendant Anthony Vasquez’s Motion for Summary Judgment on the Basis of
Qualified Immunity, Doc. No. 59; and (3) Denying Defendant Wesley Cortez’s
Motion for Summary Judgment Based on Qualified Immunity, Doc. No. 62, filed
October 3, 2013. [Docket No. 81, E.R. 55]. Defendant Vasquez filed a timely
Notice of Appeal on October 11, 2013. [Docket No. 82, E.R. 55]. This court has
jurisdiction to review the denial of qualified immunity pursuant to 28 U.S.C. §
1291. See: Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (Holding “that a district 1 “Docket No.” refers to the United States District Court docket sheets in this matter and “E.R.” refers to the Excerpt of Record filed with this brief. For example, “Docket No. 1, E.R. 43” refers to District Court docket entry number 1, and page 43 of the Excerpt of Record.
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court’s denial of a claim of qualified immunity, to the extent that it turns on an
issue of law, is an appealable ‘final decision” within the meaning of 28 U.S.C. §
1291 notwithstanding the absence of a final judgment.”
ISSUE PRESENTED
Did the District Court err in denying Defendant Officer Vasquez’s Motion
for Summary Judgment based on qualified immunity?
STATEMENT OF THE CASE
On June 24, 2011, Plaintiff Christopher Cordeiro filed a Complaint against
the United States of America and individual federal police officers Anthony
Vasquez, Wesley Cortez and Joseph Clarke alleging violations of his
Constitutional rights and seeking damages from the United States and the
individual officers pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Docket No. 1, E.R. 45].
All claims against Defendant Clarke were dismissed by stipulation on
May 31, 2013. [Docket No. 58, E.R. 52].
On June 14, 2013, individual Defendants Officers Vasquez and Cortez each
filed a Motion for Summary Judgment Based on Qualified Immunity. [Docket
Nos. 59, 62, E.R. 52]. Arguments were heard on these motions on September 30,
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2013. [Docket No. 79, E.R. 55]. On October 3, 2013, the district court issued a
written Order (1) Granting Defendant Anthony Vasquez’s Motion to Dismiss
Count XIV, Docket No. 60, (2) Denying Defendant Anthony Vasquez’s Motion for
Summary Judgment on the Basis of Qualified Immunity, Docket No. 59, and (3)
Denying Defendant Wesley Cortez’s Motion for Summary Judgment Based on
Qualified Immunity, Docket No. 62. [Docket No. 81, E.R. 55].
On October 11, 2013, Defendant Vasquez filed a timely Notice of Appeal to
this Court of the District Court’s denial of the Motion for Summary Judgment
based on qualified immunity. [Docket No. 82, E.R. 55].
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STATEMENT OF FACTS
As stated in its Order, the district court viewed the evidence in the light most
favorable to the non-moving party for the purpose of deciding the issue of
summary judgment based on qualified immunity. [Order at p. 3, E.R. 9].2
Therefore, the following facts are Plaintiff Cordeiro’s version of events upon
which the district court issued its order.
On June 29, 2009, at about 2:10 a.m., Plaintiff was driving home from
Kalaeloa Beach, near the former Barbers Point Naval Air Station, in the Kapolei
area of Oahu. Id. Plaintiff was traveling on an isolated part of Coral Sea Road,
which was dark with no street lights. Id. In his rearview mirror, Plaintiff noticed a
vehicle rapidly approaching him from behind. Id. Plaintiff was traveling at or
below the speed limit when the vehicle began tailgating him. The vehicle slowed
down, then accelerated, and again tailgated Plaintiff. [Order at p. 4, E.R. 10].
Plaintiff assumed the vehicle "was a bunch of kids, irresponsible teens." Id.
The vehicle then illuminated blue flashing lights. Id. Plaintiff looked back
and noticed that the vehicle was not marked as a Honolulu Police Department
("HPD") vehicle, but was instead a pickup truck. Id. He admits that his safety 2 “Order” refers to the District Court’s Order (1) Granting Defendant Anthony Vasquez’s Motion to Dismiss Count XIV, Doc. No. 60; (2) Denying Defendant Anthony Vasquez’s Motion for Summary Judgment on the Basis of Qualified Immunity, Doc. No. 59; and (3) Denying Defendant Wesley Cortez’s Motion for Summary Judgment Based on Qualified Immunity, Doc. No. 62, filed October 3, 2013, which is the subject of this appeal, and is included in the Excerpt of Record.
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check had expired, and that he had been pulled over in the past for having an
expired check, but it did not occur to him at the time that he was being pulled over
for an expired check. Id.
Plaintiff was not sure who was following him or whether it was a law
enforcement vehicle at all. Id. In fact, however, it was a DOD police vehicle
driven by Vasquez. Id. Plaintiff states that he had heard of at least three occasions
of individuals impersonating police or security personnel near campgrounds in that
area. Id. "Knowing it was not an HPD vehicle, and traveling in a dark and
secluded area of Coral Sea Road, [he] felt it would be extremely unsafe to stop on
Coral Sea Road, a road with no street lights." Id. Plaintiff did not stop, and
instead slowed to about ten miles per hour. Id. He claims that he planned to drive
to a shopping center located two and a half miles away. Id. He "wanted to just get
to a safe area and have someone witness what was going on." [Order at p. 5, E.R.
11]. Other than slowing, however, there is no indication he communicated that
intent to the driver of the truck that was following him. But he contends that "[a]t
no time did I increase my speed, nor make any aggressive and/or evasive
movements to make the officer believe I was fleeing[.]" Id.
Still going about ten miles per hour, Plaintiff turned from Coral Sea Road
onto Roosevelt Avenue. He then saw another pickup truck with blue lights,
traveling toward him in his lane and flashing its high beams at him. Id. This
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second vehicle was also a DOD police vehicle, driven by Cortez. Id. Plaintiff
"immediately pulled half way off the paved lane and came to a complete stop." Id.
Vasquez and Cortez, wearing a type of police uniform, approached Plaintiff’s
vehicle. At that point, Plaintiff admits he realized that they were DOD police
officers, not impersonators. Id. (Plaintiff also admits that he had previously seen
Navy police officers patrolling in that area in pickup trucks. Id.)
Plaintiff remained in his vehicle, and rolled the window down. Id. Vasquez,
who had been in the trailing vehicle, "immediately and aggressively approached
the driver's side of [Plaintiffs] window and started shouting `get out of the vehicle
and lay on the ground!"' [Order at p. 6, E.R. 12]. Vasquez did not identify himself
as a police officer, and did not ask Plaintiff for any "paperwork" such as his
driver's license or identification. Id. Plaintiff then asked Vasquez "why do I need
to get out of my car and lie on the road? what happened?" Id. "I questioned him
why. What did I do[?] Identify me first." Id. He states, "I can recall questioning
him humbly with respect why [do] I need to get out of the vehicle and lay on the
ground." Id. Vasquez, however, continued to instruct Plaintiff to just get out of
the vehicle and lay face down. Id.
Plaintiff attests that "[f]eeling threatened and harassed, I picked up my
phone to call 911 as I knew I was on City and County of Honolulu land and thus
under HPD jurisdiction." Id. He testified that "I told [Vasquez] you need to call
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HPD to witness this." Id. Vasquez ordered Plaintiff to put his cell phone down,
saying "HPD was not needed for assistance." Id.3 Plaintiff put his cell phone
down without calling 911. [Order at pp. 6-8, E.R. 12-14.]
3 Cortez, who was driving the second vehicle, testified that he knew the officers did not have jurisdiction where they were, and that Vasquez was not in distress:
Q. In 2009, do you know what the perimeters of, what we're calling, the Kalaeloa area is? A. As far as I know, Coral Sea was not ours, but where we landed, uh, I believe that wasn't ours. Q. What do you mean where you landed? A. Where everybody stopped. …. Q. And you said that it wasn't ours, the Coral Sea Road and the area where you, Officer Vasquez, and the Plaintiff, Mr. Cordeiro, stopped. A. I believe so. Q. Whose was it? A. HPD. Q. Were you aware of that at the time that you came to a stop with Mr. Vasquez? A. Yes. Q. And why did you stop Mr. [Cordeiro] if you knew that you didn't have jurisdiction? A. Just to back my officer up. Q. Do you have any idea why Mr. Vasquez stopped him? Do you know if Mr. Vasquez knew that that was not Navy jurisdiction? A. He had just started so he didn't know the fine line jurisdiction areas yet. …. A…. It was just basic protocol that we back our officers up. Q. And why is that? A. Officer safety. Q. If you know that an officer is not abiding by the jurisdiction of the Navy police, you still back them up? A. If he's in distress, yes. Q. Was Mr. Vasquez in distress? A. No. (Footnote continued on next page)
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Plaintiff refused to exit his vehicle, explaining several times that he wanted
to wait until HPD officers arrived. [Order at p. 8, E.R. 14]. Plaintiff states that "as
a result of the DOD officers['] refusal to call local law enforcement, I felt unsafe,
vulnerable and harassed." Id. "I refused to exit my vehicle as I had committed no
crime." Id. "I was just thinking they got the wrong person." Id. "I was just afraid.
The way they stopped me and the way they approached me I just was afraid." Id.
Plaintiff again asked Vasquez to call HPD, but Vasquez responded "HPD is not
needed." Id.
Plaintiff contends that "[a]t this point I asked [Vasquez] if they knew who I
was, since they never asked me for my driver's license or vehicle documentation."
Id. Vasquez replied, "It doesn't matter ... Just get out of the f***ing vehicle! ...
You're not complying with us. Get out of your vehicle NOW!" Id. When Plaintiff
did not comply, Vasquez removed his sidearm and pointed it at Plaintiff's face, and
(Footnote 3 continued) Q. May the record reflect the witness is laughing. [Counsel for Defendants]: That's not an accurate description. …. Q. … And why did you laugh or chuckle[]? …. A. Because I knew right away that this was going to go south. What I mean by that, it first started off with a safety check, and that's not a big deal, to chase somebody down on Coral Sea, obviously, that’s not the way I would have ran that situation.
[Order at pp. 6-8, E.R. 12-14].
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again yelled, "[g]et out of your vehicle now and lay down with your arms spread!"
[Order at p. 9, E.R. 15].
Plaintiff describes being shocked with having a pistol pointed at his face,
claiming that "I then calmly, peacefully asked [Vasquez] `Are you going to shoot
me?"' Id. He states that "I crossed my arms and sat back as [Vasquez] continued
to point his pistol at my head." Id. "I asked, in a soft, calm voice: `Why are you
pointing your gun at me?' After hearing this again, [Vasquez] yelled in an
intimidating tone: `Get out of the car now or I'm going to shoot you! "' Id.
Plaintiff claims he then told Vasquez: "Bruddah ... you better put your gun back in
the holster before you lose your job tomorrow!" Id.
After pointing his firearm at Plaintiff for about two minutes, Vasquez re-
holstered the firearm. Id. Cortez, who had approached in the meantime, then
walked around Vasquez "from the back and grabbed something from his belt." Id.
Cortez then pointed a "black looking object" at Plaintiff's face. Plaintiff heard
Vasquez say "something like `shoot,"' Id., and Cortez then sprayed Plaintiff’s face
twice with pepper spray. Id. Plaintiff testified that his vehicle was in park, with
the ignition off, and that he never took the keys out of the ignition. Id. Construing
the evidence in the light most favorable to Plaintiff, the district court found that the
use of the pepper spray was several minutes after Plaintiff had put his cell phone
down, after Vasquez put the gun away, and while Plaintiff "sat back" with "crossed
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arms," [Order at p. 10, E.R. 16], or while Vasquez was holding Plaintiff's left arm.
Id.
Vasquez and Cortez then pulled Plaintiff out of his vehicle and handcuffed
him. Id. "The handcuffs were clamped so excessively tight[] on [Plaintiff’s] wrists
that deep bruising occurred that lasted for two and [one] half weeks." Id.
Despite using pepper spray, the court noted that Cortez testified in an earlier
deposition that Plaintiff was not a threat to him (at least at some points in time):
Q…. Does [Plaintiff] turn around to pick up his keys because his keys were behind him, right?4 A. Yes. Q. At that point, what do you tell him to do? A. I keep telling him to stop, get away from your vehicle, and try to get him on the ground. Q. How did you try to get him on the ground? A. Just verbal commands still yet because he wasn't a threat. …. Q. And why wasn't Mr. [Cordeiro] a threat at the time? A. No weapons, it was just verbal abuse to us anyway, at the time. …. Q. So you didn't hear him and understand him to say anything physically aggressive like he wanted to fight with you guys?
4 Cortez provides a different account of events. He claims that Plaintiff threw his keys out the window of his car, and later stepped out of his vehicle (about three feet away) and retrieved them. Doc. No. 74-1, Cortez Depo. at 98-99. Cortez claims that when he picked up his pepper spray, Plaintiff "started the car and lunged toward me." Id. at 99. Cortez then "[kept] telling him to stop, get away from your vehicle, and tr[ied] to get him on the ground." Id. at 100. [Order at p. 11, E.R. 17].
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A. Fight? All I heard him say were a few swear words: F*** you guys, you guys are pigs, nothing that I hear that he wanted to be physical with me.
[Order at p. 11, E.R. 17]. As for his use of pepper spray, the court considered that
Cortez described the incident in his deposition as follows (again, appearing to have
not been in immediate threat of harm):
A. I was aiming for the forehead. Q. And do you know where you hit? A. Somewhere on the head. Q. And at the time Officer Vasquez is holding his left arm, Mr. Cordeiro is still in the car, at that time? A. I believe so, yes. …. Q. Is he still holding Mr. Cordeiro's left arm? A. I believe so. Q. And why did you spray Mr. Cordeiro with Mace? A. Very belligerent, resisting arrest. I sprayed him so that we can immobilize him, search him, for our safety. Q. Was he being physically resistant? A. Yes, for a short time then it. [sic] Q. What does that mean, a short time? A. Well, when you touch somebody you're going to automatically, you know, brush them off or push them off.
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Q. So you're telling me when Mr. Vasquez grabbed Mr. Cordeiro's arm, he flinched or reacted by pulling his arm back or something like that? A. Yes. Q. And would you say that's a natural reaction? A. Natural reaction. Q. Would you say that's initiating some sort of fight? A. No. Q. Would you say you were threatened by Mr. Cordeiro? [Government counsel]: Objection, vague as to time. Q. Were you threatened at the time Mr. Cordeiro's left am was being held by Mr. Vasquez? A. No.
[Order at pp. 11-13, E.R. 17-19]. The district court further noted Cortez also
testified in the deposition that Plaintiff was never a threat "as a criminal":
Q. Were you trained to allow a suspect, after he's been handcuffed and suspected of a crime and a felony stop has occurred, to get on his feet and he's been sat on the ground with his hands cuffed behind his back? A. Well, I didn't think of him as a criminal then because this was just a safety check issue. Q. Thank you. And so was Mr. Cordeiro a threat to you? [government counsel]: Objection, vague as to time.
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Q. Was Mr. Cordeiro ever a threat to you during this whole incident? A. Him a threat to me? Q. Yes. A. As a criminal, no.
[Order at pp. 13-14, E.R. 19-20]. Later, Cortez was again asked at his deposition:
"Did Mr. Cordeiro ever threaten you?," and he answered, "Did he ever threaten me,
no." [Order at p. 14, E.R. 20].
Plaintiff claimed that he was kept lying face down on the road with an
officer's knee on his back for approximately an hour before an ambulance arrived.
Id. He attests that, "[a]t no time was I physically combative or resisting being
removed from my vehicle and handcuffed." Id. He claims that, "[t]he only thing
on my mind was the burning sensation to my eyes and face resulting from being
sprayed with mace." Id. He asked officers to clean the mace off his face, but
"[t]he officers refused ... and stated that they would be calling for an ambulance
shortly." Id.5 He states: "I also requested that the officers loosen my handcuffs at
5 Cortez testified that he allowed Plaintiff to stand up after being handcuffed, but agrees that he refused to clean Plaintiff's face:
Q. So then you allowed Mr. Cordeiro to stand up on his feet on the side of the road? A. Yes. Q. What happens next? (Footnote continued on next page)
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least three (3) times as I could feel throbbing in my wrists, but they would not."
[Order at p. 15, E.R. 21]. Plaintiff was then escorted by DOD officers to a military
installation in West Loch or Iroquois Point. Id.
Cordeiro claimed that: "During my entire encounter with the DOD Officers I
never made any threatening statements to the officers. I was calm and only wanted
to protect myself from their threatening behavior and have HPD officers witness
what was taking place, which I believed was my rights as I was on HPD
jurisdiction." [Order at p. 17, E.R. 23].6
(Footnote 5 continued) A. I believe he asked me if I could wipe his face down with a cloth. I think I said no because I didn't have one, to my knowledge. Q. And then what happened? A. That's it. I just stood there and watched him. Q. You stood there watching him until the ambulance came? A. Yes. Q. And when the ambulance came what happened next? A. The ambulance then took him to inside their vehicle to decontaminate him. Q. And how long was it between the time that Mr. Cordeiro was sprayed with Mace, in you estimation, to the time that EMT's arrived? A. I'd say about 30 to 45, I believe. I'm not sure. Q. And at what time were the EMT's called? A. I have no idea.
Id. at pp. 14-15. [Order at p. 14, E.R. 20]. 6 The district court took judicial notice of its court records confirming that a criminal Information was filed against Plaintiff on August 3, 2009. Doc. No. 1, United States v. Cordeiro, Cr. No. 09-00308 (D. Haw. Aug. 3, 2009). The Information alleged a count of violating Hawaii Revised Statutes § 286-102 (Footnote 6 continued on next page)
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SUMMARY OF THE ARGUMENT
The District Court erred in finding that Defendant Officer Vasquez was not
entitled to qualified immunity for his actions in controlling and arresting a non-
compliant suspect, who refused to stop for the police, then resisted all police
commands while remaining at the wheel of his vehicle with his keys in the
ignition. Officer Vasquez’s actions were reasonable, and it was not clearly
established law at the time that officer Vasquez’s actions were constitutional
violations.
(Footnote 6 continued) (applicable under 18 U.S.C. § 13), for "knowingly operat[ing] a motor vehicle without first being appropriately examined and duly licensed as a qualified driver," and three counts of violations of 18 U.S.C. § 111, which provides:
(a) In general. -- Whoever -- (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title [any officer or employee of the United States] while engaged in or on account of the performance of official duties; or (2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
Id. The docket also reflects that, on December 1, 2009, the government dismissed the Information without prejudice "in order to allow the Government to conduct further investigation." Doc. No. 14 at 2, United States v. Cordeiro, Cr. No. 09-00308 (D. Haw. Dec. 3, 2009). Whatever investigation followed, no new charges were filed. [Order at p. 17, E.R. 23].
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ARGUMENT
THE DISTRICT COURT ERRED IN DENYING DEFENDANT ANTHONY VASQUEZ’S MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY.
A. Standard of Review
This court reviews de novo a district court’s denial of summary
judgment on the basis of qualified immunity. Blanford v. Sacramento County, 406
F.3d 1110, 1114 (9th Cir. 2005).
B. Discussion
The doctrine of qualified immunity protects government law enforcement
officers “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 (1982). Qualified
immunity shields an officer from liability even if his or her action resulted from a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law
and fact. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Qualified immunity
covers “mere mistakes in judgment, whether the mistake is one of fact or one of
law.” Id. citing Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,
dissenting) quoting Butz v. Economou, 438 U.S. 478, 507 (1978). The purpose of
qualified immunity is to strike a balance between the need to hold police officers
accountable when they exercise power irresponsibly and the need to shield officers
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from harassment, distraction and liability when they perform their duties
reasonably. Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011).
The Supreme Court established a two-step test for courts to determine
whether an officer is entitled to qualified immunity: First, whether the facts as
alleged by the plaintiff make out a violation of a constitutional right, and second,
whether that constitutional right was “clearly established at the time of the
violation.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds
by Citizens United v. FEC, 130 S.Ct. 876 (2010). However, in Pearson v.
Callahan, 555 U.S. 223 (2009), the Supreme Court held that the strict two-step
analysis was not mandatory and that judges are now permitted to exercise their
discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case. Id. at
818.
1. Defendant Officer Vasquez Did Not Violate Plaintiff Cordeiro’s Constitutional Rights Because Officer Vasquez’s Conduct was Reasonable.
All claims that law enforcement officials have used excessive force in the
course of an arrest, investigatory stop, or other seizure of a citizen are properly
analyzed under the Fourth Amendment’s “objective reasonableness” standard.
Graham v. Connor, 490 U.S. 386, 388 (1989). “The ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable officer
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on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. As the
court elaborated:
With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F.2d, at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation. As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.
Id. The Supreme Court has emphasized that there are no per se rules in the
Fourth Amendment excessive force context, but rather, courts “must still slosh
[their] way through the factbound morass of ‘reasonableness.’” Scott v. Harris,
550 U.S. 372, 383 (2007). Even if an officer’s actions constituted an application of
deadly force, all that matters is whether the officer’s actions were reasonable. Id.
The Ninth Circuit applies the Graham reasonableness test by looking at the
totality of the circumstances and whatever specific factors may be appropriate in a
particular case, whether or not listed in Graham. Mattos 661 F.3d at 441. This
totality of the circumstances includes the Graham test of considering the nature and
quality of the intrusion and the governmental interests at stake by looking at (1)
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how severe the crime at issue is, (2) whether the suspect posed an immediate threat
to the safety of the officers or others, and (3) whether the suspect was actively
resisting arrest or attempting to evade arrest by flight. Id. However, in assessing
the governmental interests at stake, the court is free to consider issues outside the
three enumerated above. Id. “Ultimately, the ‘most important’ Graham factor is
whether the suspect posed an ‘immediate threat to the safety of the officers or
others.’” Id. citing Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en
banc) quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).
The allegations of excessive use of force in this case are essentially
threefold: (1) the drawing of weapons and verbally commanding Cordeiro to exit
his car and get on the ground; (2) the OC “pepper” spraying of Cordeiro when he
refused to exit his vehicle, with Vasquez agreeing to Officer Cortez’s spraying of
Cordeiro by telling Cortez to “shoot”; and (3) physically removing Cordeiro from
his vehicle, handcuffing him and placing him on the ground.
The District Court erred in finding that “the Graham factors all indicate an
excessive use of force.” Order at p. 27. Rather, applying the Graham factors to the
totality of circumstances in this case reveals that all of Officer Vasquez’s actions
were objectively reasonable in light of the facts and circumstances confronting
him. Although the severity of offense, expired registration and safety check, is
minor, it is outweighed by Plaintiff’s conduct of flight to evade arrest and the
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danger he posed to the officers or others. Indeed, Cordeiro’s flight and non-
compliance with officer commands takes a minor situation and escalates it to a
more severe one, requiring an increase in the officers’ level of force. Cordeiro
evaded arrest by refusing to pull over for several miles. Then, when he did pull
over, he actively resisted by refusing to get out of his vehicle when commanded to
by the officers. One critical fact overlooked by the District Court was that
Cordeiro remained in his vehicle with the keys in the ignition. With a quick twist
of the wrist Cordeiro possessed an automobile as a weapon and posed a potential
deadly threat to each of the officers. This non-compliant active resistance created
an immediate threat to the safety of the officers or others. Given Cordeiro’s flight
and active non-compliant resistance, Defendant Officer Vasquez’s actions of
drawing his weapon, telling Officer Cortez to OC “pepper” spray Cordeiro and
then of pulling Cordeiro out of his car onto the ground and handcuffing him were
objectively reasonable. Therefore, Officer Vasquez’s actions were not an
excessive use of force and were not a violation of the Fourth Amendment.
If this court were to uphold the District’s Court’s order, it is essentially
setting a precedent that a suspect may make his own decisions when and where to
pull over for a police officer and for which police agency or officer he will comply.
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2. Officer Vasquez Did Not Violate Clearly Established Law in His Seizure and Treatment of Cordeiro.
A second inquiry is whether the constitutional right the police officer is
alleged to have violated has been “clearly established” such that it is sufficiently
clear that a reasonable officer would understand that what he is doing violates that
right. Saucier v. Katz, 533 U.S. at 202. “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.
“If the law did not put the officer on notice that his conduct would be clearly
unlawful, summary judgment based on qualified immunity is appropriate.” Id. To
be clearly established law does “not require a case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083 (2011).
As stated above, Plaintiff’s excessive force claim against Officer Vasquez
relates to three actions: (1) drawing of the weapon and commanding Cordeiro to
exit the vehicle, (2) the OC “pepper” spraying of Cordeiro, and (3) forcibly pulling
Cordeiro from his car and handcuffing him on the ground. The most severe of
these three acts is the spraying of the OC “pepper” spray, an act which Officer
Vasquez did not perform, but which, according to Cordeiro, he at least acquiesced
to if not directed, when Officer Vasquez said to Officer Cortez, “shoot.”
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The Ninth Circuit has upheld the use of pepper spray to bring a suspect
under control. La Londe v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000).
The court noted that only after a person surrendered or was rendered helpless
would the use of pepper spray be excessive force:
The same principle is applicable to the use of pepper spray as a weapon: the use of such weapons (e.g., pepper sprays; police dogs) may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force.
Id. In Jackson v. Bremerton, 268 F.3d 646 (9th Cir. 2001), the Ninth Circuit
found no Fourth Amendment violation for an officer to spray a chemical irritant on
the hair of a female who was interfering with the arrest of another, and then to
shove her to the ground, handcuff her, roughly pull her to her feet and put her into
a police car with the windows rolled up in ninety degree heat. Id. at 653.
The Ninth Circuit has only found the use of pepper spray to be unreasonable
excessive force when used against persons already in custody or non-violent,
passive civil protestors. Headwaters Forest Defense v. County of Humboldt, 276
F.3d 1125 (9th Cir. 2002). In Headwaters, non-violent protestors of the logging of
ancient redwood trees had locked themselves together by placing their arms in self-
releasing lock down devices called black bears. Id. at 1127-28. While the
protestors could themselves release the devices, the police could safely cut them
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apart in a matter of minutes with a hand held grinder. Id. Rather than cut the
devices, the police told the protestors to release the devices or they would be
pepper sprayed. Id. After the protestors refused to release, the police forcibly held
the protestors’ heads back and applied pepper spray with a Q-Tip to their eyes, and
then pried open their eyes and applied pepper spray directly on them as the
protestors stood with their arms locked together. Id. at 1128-29. The Ninth Circuit
found this use of pepper spray unreasonable because it was not necessary to
subdue, remove or arrest the protestors. Id. at 1130.
When Cordeiro was stopped by Officers Vasquez and Cortez on June 29,
2009, the clearly established law of the Ninth Circuit regarding the use of OC
“pepper” spray was that it was not a Fourth Amendment violation to use it to bring
a non-compliant arrestee under control. Rather, the use of pepper spray was only
excessive force if used against one who had surrendered, was rendered helpless, or
was a peaceful, passive, non-violent protestor who presented no threat whatsoever.
In fact, in cases of actively resisting and/or fleeing suspects, the Supreme
Court has approved the use of even deadly force where the non-compliant suspect
poses a threat. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court held
that a police officer acted reasonably and thus did not violate the Fourth
Amendment when the officer rammed the suspect’s car to terminate a high speed
chase, causing the suspect to run off the road and crash. Id. at 385-386. In
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Brosseau v. Haugen, 543 U.S. 194 (2004), the Supreme Court held for qualified
immunity of a police officer who shot a suspect fleeing in a vehicle on the grounds
that it was not “clearly established” that the officer violated the Fourth
Amendment. Id. at 201. “Brosseau’s actions fell in the ‘hazy border between
excessive and acceptable force’ Saucier v. Katz, 533 U.S. at 206. The cases by no
means ‘clearly establish’ that Brosseau’s conduct violated the Fourth
Amendment.” Id.
In two cases that occurred before the incident in this case, but which were
decided after, the Ninth Circuit upheld qualified immunity for police officers who
used taser stun guns against unarmed, non-threatening, non-fleeing suspects who
were stopped for minor traffic violations on the basis that such conduct was not a
“clearly established” violation of the Fourth Amendment. Brooks v. Seattle, 661
F.3d 433 (9th Cir. 2011); Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010). In
Brooks, Seattle police repeatedly used a taser on a seven-month pregnant driver
when she refused to get out of the car to be arrested for refusing to sign a citation
for going 32 mph in a 25 mph school zone. Id. at 436-37. While the court
concluded that this conduct was excessive force, the court upheld the granting of
qualified immunity to the officers because the law was not “clearly established”
that such action was a Fourth Amendment violation:
In sum, when the defendant officers tased Brooks, there were three circuit courts of appeal cases rejecting claims that the use of a
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taser constituted excessive force; there were no circuit taser cases finding a Fourth Amendment violation. … We cannot conclude, however, in light of these existing precedents, that “every ‘reasonable official would have understood’ … beyond debate” that tasing Brooks in these circumstances constituted excessive force. al-Kidd, 131 S.Ct. at 2083 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034) (emphasis added) (citation omitted). Moreover, the violation was not so obvious that we can “define clearly established law at a high level of generality,” finding that Graham alone renders the unconstitutionality of Brooks’s tasing clearly established. Id. at 2084. We therefore follow the example of our court’s three-judge panel in Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010). In Bryan, we held that the use of a taser constituted excessive force, but we concluded that the defendant officer was entitled to qualified immunity. The tasing in Bryan took place in 2005, and we observed that in that year “there was no Supreme Court decision or decision of our court addressing” the use of a taser in dart mode. Id. at 833. As a result, we concluded that “a reasonable officer in Officer MacPherson’s position could have made a reasonable mistake of law regarding the constitutionality of the taser use in the circumstances” confronted. Id.
Id. at 448. In Bryan, 630 F.3d 805 (9th Cir. 2010), as noted above, the Ninth Court
similarly concluded that, despite a Fourth Amendment violation, the officer was
entitled to qualified immunity:
WARDLAW, Circuit Judge, joined by Judges PREGERSON, REINHARDT, and W. FLETCHER, concurring in the denial of rehearing en banc: The panel paid the “require[d] careful attention to the facts and circumstances of [this] case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight,” Graham v. Connor,
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490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We concluded that Officer Brian MacPherson used excessive force when, on July 24, 2005, he deployed his X26 taser in dart mode to apprehend Carl Bryan for a seatbelt infraction, where Bryan was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer. See Bryan v. MacPherson, 608 F.3d 614, 618 (9th Cir. 2010). At the heart of our holding was the conclusion that the X26 taser and similar devices, when used in dart mode, constitute an “intermediate, significant level of force that must be justified by the governmental interest involved.” Id. at 622. We nonetheless concluded that Officer MacPherson was entitled to qualified immunity from Bryan’s 42 U.S.C. § 1983 suit, because this principle was not clearly established in 2005 when Officer MacPherson deployed his dart gun on Bryan. See Id. at 629. A majority of the active judges of our court voted against rehearing en banc, and I concur.
Id. at 809. The District Court cites the recent case of Gravelet-Blondin v. Shelton, ___
F.3d ___, 2013 WL 4767182 (9th Cir. Sept. 6, 2013), for the proposition that “the
law as it relates to the specific uses of force at issue in this case was clearly
established before the 2009 incident.” [Order at p. 33, E.R. 39]. However,
Gravelet-Blondin, another case occurring before the incident in this case but
decided after, can be distinguished from the facts of this case in several critical
respects. First, Gravelet-Blondin was merely a bystander, 37 feet away from the
officer, simply observing the police behavior with respect to another person.
Gravelet-Blondin, 2013 WL 4767182 at 1. As such, Gravelet-Blondin was truly
engaged in mere passive behavior. Second, Gravelet-Blondin failed to comply
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with the officer’s commands “for only a few seconds.” Id. at 10. Finally,
Gravelet-Blondin engaged in no behavior that could have been perceived by
officers as threatening or resisting. Id. Thus, the few seconds of passive non-
compliance to a police command by an observing bystander clearly distinguishes
the situation in Gravelet-Blondin from those in Brooks, Bryan, Mattos and this
case.
Therefore, at the time of the incident in this case with Plaintiff Cordeiro on
June 29, 2009, the law of this circuit was not “clearly established” that even the
tasings of an unarmed, non-threatening, seven month pregnant woman (Brooks), or
an obviously unarmed, non-threatening and non-fleeing seatbelt violator (Bryan)
was a Fourth Amendment violation. If at the time of this incident, the more severe
taser force used in Brooks and Bryan still warranted qualified immunity, then
surely the lesser force used by Officer Vasquez in this case merits the granting of
qualified immunity. Even assuming a Fourth Amendment violation, the law was
not clearly established that Officer Vasquez’s conduct was “beyond debate” that it
was a Fourth Amendment violation.
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CONCLUSION
For the foregoing reasons, Defendant-Appellant Anthony Vasquez requests
that this court reverse the Order of the District Court and grant Vasquez’s Motion
for Summary Judgment, finding that Vasquez is entitled to qualified immunity.
DATED: Honolulu, Hawaii, February 20, 2014. /s/ Birney B. Bervar BIRNEY B. BERVAR Attorney for Defendant-Appellant ANTHONY VASQUEZ
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STATEMENT OF RELATED CASES
Defendant-Appellant Anthony Vasquez is aware of one related case, that of
co-Defendant Wesley Cortez, Christopher Cordeiro v. Wesley Cortez, CA No.
13-17062, D.C. No. 1:11-cv-00413-JMS-BMK, which involves the same issues as
this appeal.
DATED: Honolulu, Hawaii, February 20, 2014. /s/ Birney B. Bervar BIRNEY B. BERVAR Attorney for Defendant-Appellant ANTHONY VASQUEZ
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
9TH Circuit Case No. 13-17065
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 20, 2014. I hereby certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system as follows: ELIZABETH JUBIN FUJIWARA [email protected] Attorney for Plaintiff SAMUEL W. BETTWY [email protected] Attorney for Defendant United States of America EWING MASON MARTIN, III [email protected] DAVID MICHAEL PLONA [email protected] Attorneys for Defendant Wesley Cortez DATED: Honolulu, Hawaii, February 20, 2014. /s/ Birney B. Bervar BIRNEY B. BERVAR Attorneys for Defendant-Appellant ANTHONY VASQUEZ
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