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Mitchell v. City of Henderson

United States District Court, D. Nevada

July 3, 2017

ANTHONY MITCHELL, et al., Plaintiffs,
v.
CITY OF HENDERSON, NEVADA, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART THE NORTH LAS VEGAS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 111)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         This is 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.

         The 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.

         I. BACKGROUND

         At 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, [1] 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.

         City of 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.

         White 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.

         The 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 Eveningside. Id.

         Anthony 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.

         Anthony 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.

         At 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.

         When 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.[2] 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.

         Albers 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.

         According 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.

         At some 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.

         According 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.

         Around 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.

         At that 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.

         According 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. Id.

         Anthony, 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.

         The 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 61.

         Cawthorn 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.[3]

         The 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 21-30;
(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 and Cawthorn;
(10) Municipal liability under Monell, against the City of Henderson and the City ...

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