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, 20 th Floor Honolulu, Hawaii 96813 Telephone: (808) 524-7030 Attorney for Defendant-Appellant ANTHONY VASQUEZ Case: 13-17065, 02/20/2014, ID: 8985478, DktEntry: 13-1, Page 1 of 35
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Opening Brief of Defendant-Appellant...Officer ANTHONY VASQUEZ, Individually as a Department of Defense Navy Police Officer Defendant-Appellant On Appeal from the United States District
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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
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
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
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.
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.
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)
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.
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].
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.
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.
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)
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].
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)
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
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,
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
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