United States District Court, D. Nevada
ORDER GRANTING IN PART AND DENYING IN PART THE NORTH
LAS VEGAS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF
P. GORDON UNITED STATES DISTRICT JUDGE
a civil rights lawsuit brought by plaintiffs Anthony
Mitchell, Linda Mitchell, and Michael Mitchell. The case
arises out of a June 2011 incident involving City of
Henderson police and the City of North Las Vegas Police
Department SWAT team. The Henderson police were called to a
domestic violence incident and responded to non-party Phillip
White's house. White was inside the home with his infant
child. North Las Vegas Police Department SWAT team members
were called to the scene to assist. Officers noticed that
residents in nearby houses, specifically the plaintiffs'
homes, were photographing the police and were believed to be
communicating with White about the police activity. The
officers eventually forced their way into Anthony
Mitchell's home, shot him with pepperball rounds, and
arrested him. They also allegedly unlawfully entered Michael
and Linda Mitchell's home, removed Linda from the home,
searched their car without a warrant, and arrested Michael
without probable cause, among other alleged violations.
plaintiffs settled their claims with the City of Henderson
defendants. ECF No. 108. Thus, the only remaining claims are
against the City of North Las Vegas and its employees,
Michael Waller, Drew Albers, David Cawthorn, Eric Rockwell,
and Travis Snyder (collectively, the NLVPD defendants). The
NLVPD defendants move for summary judgment on Anthony's
claims against them. I grant the motion as to Anthony's
claims for municipal liability and negligent hiring,
training, and supervision, and I deny the rest of the motion.
I also direct the parties to meet and confer about what, if
any, claims that are not addressed in the summary judgment
briefing remain pending.
approximately 7:30 a.m. on July 10, 2011, Phillip White had
an argument with his wife Sussette. ECF No. 119-1 at 7.
According to White, his wife pushed him, ran out of the
house, and called the police. Id. at 7-8, 14.
Sussette told the police that White hit her,  but she also told
the police she did not believe White would harm their
daughter. ECF Nos. 119-3 at 22; 119-2 at 5.
Henderson police officers arrived at the Whites' home at
363 Eveningside Avenue in Henderson. ECF Nos. 111-4 at 12;
119-1 at 5, 7. White answered the door and invited the
officers inside but told them he would not come outside and
leave his one-month-old daughter alone. ECF No. 119-1 at 7-8.
White had a 3-inch pocketknife clipped to his pocket.
Id. at 13. According to White, the officers did not
tell him why they were there, but he assumed his wife had
called them. Id. at 11. The police officers did not
enter the house and walked away. Id.
left the front door open, with the screen door closed, for
approximately 45 minutes, but the officers did not accept his
invitation to enter the house. Id. at 7-8. He sat on
the couch with his daughter nearby until he closed the door
when he needed to use the bathroom. Id. at 9. He
then laid down and fell asleep without reopening the front
door. Id. at 9, 11.
plaintiffs in this case are White's neighbors. Plaintiff
Anthony Mitchell lived at 367 Eveningside. ECF No. 111-4 at
12. His parents, Michael and Linda Mitchell, lived at 362
woke up that morning to sirens in his neighborhood.
Id. He checked his phone and saw that he had missed
a call from his father, so he called him back. Id.
Michael told Anthony that he had spoken with White.
Id. Michael advised Anthony that White had invited
the police inside but that the police wanted White to leave
the baby inside the house and come out, but White was not
going to do that. Id. at 13.
then went to his front door, opened it, and yelled at the
officers to turn off their siren. Id. The officers
shut off the siren. Id. Anthony then took a shower
and exercised inside his house. Id. at 13-14. Some
time later, he looked out his kitchen and garage windows to
see if the police were still there. Id. at 14. They
were, and Anthony began taking pictures of the officers on
his cell phone. Id. Anthony saw Henderson police
officers aim a rifle at his parents' house. Id.
at 15. He spoke to his father on the phone, and Michael
stated that an officer had pointed a rifle at him twice while
Michael was taking photos of them. Id.
approximately 10:10 a.m., NLVPD SWAT was called to assist the
Henderson police. ECF No. 111-2 at 2. Defendants Michael
Waller, David Cawthorn, Drew Albers, Eric Rockwell, and
Travis Snyder were NLVPD officers that responded to the
scene. ECF Nos. 111-2 at 2; 111-3 at 2; 119-5 at 7.
NLVPD SWAT arrived, Lieutenant Cassell of the Henderson
Police Department informed non-party NLVPD SWAT lieutenant
Anthony DiMauro that they were responding to a domestic
violence incident that “went south.” ECF No.
111-3 at 2. Cassell also told DiMauro that White had weapons,
was with his four-week-old baby inside his home, was refusing
to come out, and had said that the police would have to come
into the house and get him. ECF Nos. 111-2 at 2; 111-3 at 2.
Additionally, Cassell told DiMauro that the occupants of 362
Eveningside (Michael and Linda Mitchell) were communicating
with White and possibly providing him with tactical
information about the police officers' locations and
movements. ECF Nos. 111-2 at 2; 111-3 at 2. The
command post advised NLVPD SWAT that the occupants of 362 and
367 Eveningside were related. ECF No. 111-2 at 3.
noticed someone inside the garage of 367 Eveningside (Anthony
Mitchell) who was taking pictures or video of the police.
Id. at 2. According to Cawthorn, the window was
covered with a sunshade with a large square cut out of the
middle. Id. Cawthorn characterized this window as a
“sniper blind” because it allows the person
behind the window to observe activities outside the window
while limiting observation of the person behind it.
Id. at 2-3. Anthony describes the window as the
border being covered by four pieces of reflective material on
the top, bottom, and two sides, leaving a two by two foot
opening in the middle. ECF No. 111-4 at 50.
to Cawthorn, Albers ordered Anthony to move away from the
window, but Anthony refused and extended his middle finger at
Albers. ECF Nos. 111-2 at 3; 111-4 at 23. Anthony admits he
made the middle finger gesture at the officers, but he denies
that he heard any commands because the officers were located
40 to 60 feet away from his house. ECF No. 111-4 at 23, 26.
Anthony continued to photograph and film the officers. ECF
No. 111-2 at 2. According to Anthony, NLVPD SWAT officers
were pointing rifles at him as he was taking pictures. ECF
No. 111-4 at 16.
point, the police called Anthony and asked him if they could
use his home for a better tactical advantage against White.
Id. at 21. Anthony refused the request. Id.
He then decided to put on a Kevlar vest and returned to his
garage window to continue taking pictures. Id. at
16, 27. He also contacted the media about the situation.
Id. at 18.
to Cawthorn, Anthony's actions were a safety issue for
the officers and divided their attention between White's
residence and Anthony's. ECF No. 111-2 at 3. The officers
therefore decided to attempt to contact Anthony. Id.
The officers “plan[ned] to ask [Anthony] to leave and
arrest him if he refused.” Id.
noon, Albers, Snyder, Rockwell, and Cawthorn walked towards
Anthony's front door. ECF Nos. 111-2 at 3; 119-2 at 11.
According to Cawthorn, Albers saw Anthony through the garage
window and ordered him to go to the front door. ECF No. 111-2
at 3. Anthony denies that any officer told him to go to the
front door. ECF No. 111-4 at 56. The officers knocked on the
front door but there was no response. ECF No. 111-2 at 3-4.
Snyder twice stated “open the door, ” but there
was no response. Id. at 4.
point, Rockwell forced the front door open using a metal ram.
ECF No. 111-2 at 4. Anthony was in the living room area and
talking on a cell phone with his mother. ECF Nos. 111-2 at 4;
111-4 at 17. The parties differ regarding what happened after
the officers forced the door open.
to Cawthorn, Snyder ordered Anthony to get on the ground, but
Anthony did not do so and instead kept talking on his cell
phone. ECF No. 111-2 at 4. Snyder ordered Anthony to get off
the phone and get on the ground. Id. Anthony then
got on the ground but continued to talk on the phone and
turned away from the officers so they could not see his
hands. Id. Snyder ordered Anthony to crawl to the
front door and drop the phone. Id. Anthony was still
turned away from the officers and did not drop his phone.
Id. Cawthorn fired three pepperball rounds at
Anthony, hitting him in the shoulder, buttocks, and lower
back. Id. Anthony then dropped his phone, laid on
the floor, and put his hands away from his body. Id.
Cawthorn placed Anthony into custody and told Anthony that he
was under arrest for obstructing a police officer.
however, testified that after the door was forced open,
multiple officers simultaneously gave him orders to get on
the ground, get off the phone, and to crawl towards them. ECF
No. 111-4 at 17. According to Anthony, within a second or two
of the officers ramming his door open and giving him these
commands, he was shot with a pepperball under his armpit,
which made him drop the phone and collapse to the floor.
Id. at 17-18. He heard the officers yelling at him
to shut off his phone and crawl to them when he was shot
again with pepperball rounds. Id. at 17. Anthony
disputes he continued to talk on the phone because he states
he did not have the phone in his hand anymore once he was on
the ground. Id. at 58. According to Anthony, there
was no time to respond to the officers' commands before
he was shot with the pepperballs. Id. at 18. Anthony
put his hands over his head and curled up with his back
facing the door so that they would not shoot him in the face
if they shot him again. Id. at 18.
officers did not shoot at him again, so he got onto his
stomach and put his hands behind his back. Id. Two
or more officers then forcefully dropped their knees onto his
back and handcuffed him. Id. at 27-28. One officer
took him outside and pressed his face into the stucco wall
while other officers searched his home. Id. at 28.
An officer stated to him “You want to flip us off,
huh?” Id. Another officer looked at that
officer and said “Shhhh.” Id. Anthony
denies he was told why he was under arrest. Id. at
turned Anthony over to the Henderson Police Department, and
Anthony was booked into the Henderson Detention Center. ECF
No. 111-2 at 4. The charges against Anthony were later
dismissed with prejudice. ECF No. 111-4 at 36.
plaintiffs filed a twenty-two count first amended complaint
(FAC) that included claims against both the Henderson
defendants and the NLVPD Defendants. ECF No. 3. The federal
claims in the FAC were:
(1) Retaliation in violation of the Free Speech Clause of the
First Amendment, against all defendants;
(2) Unlawful arrest of Anthony Mitchell and unlawful search
of Anthony's home and vehicle, in violation of the Fourth
Amendment, against Doe Officers 1-10, 21-22, 24-30, Sergeant
Waller, and Officers Albers, Cawthorn, Rockwell, and Snyder;
(3) Excessive force against Anthony Mitchell, in violation of
the Fourth Amendment, against Doe Officers 1-10, Sergeant
Waller, and Officers Albers, Cawthorn, Rockwell, and Snyder;
(4) Unlawful arrest of Michael Mitchell, in violation of the
Fourth Amendment, against Doe Officers 31-35;
(5) Unlawful arrest of Linda Mitchell, in violation of the
Fourth Amendment, against Doe Officers 21-30;
(6) Unlawful search of Michael Mitchell's and Linda
Mitchell's home and of Michael's vehicle, in
violation of the Fourth Amendment, against Doe Officers
(7) Unlawful peacetime quartering of soldiers in Michael
Mitchell's and Linda Mitchell's home, in violation of
the Third Amendment, against Doe Officers 21-30;
(8)(a) Unlawful punishment of Anthony, in violation of the
Eighth Amendment, against Does Officers 1-10, 32, and 55;
(8)(b) Unlawful punishment of Michael, in violation of the
Eighth Amendment, against Doe Officers 21, 31-35;
(8)(c) Deliberate indifference to Anthony's medical
needs, in violation of the Eighth Amendment, against Doe
Officers 36 and 37;
(9) Malicious prosecution, in violation of the First, Fourth,
and Fourteenth Amendments, against three Henderson defendants
(10) Municipal liability under Monell, against the
City of Henderson and the City ...