Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 1 of 24

1
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 Irma Woodward, No. CV-15-00077-TUC-RM
10 Plaintiff, ORDER1, 2
11 v.
12 Tucson, City of, et al.,
13 Defendants.
14
15 Plaintiff Irma Woodward filed a Complaint alleging wrongful death, negligence,
16 loss of consortium, violations of 42 U.S.C. 1983, and punitive damages resulting from
17 the death of her son Michael Duncklee. Pending before the Court are cross motions for
18 summary judgment.
19 ...
20 ...
21
...
22
...
23
24 1
After briefing on the pending Motions was completed, Defendants submitted a
request for oral argument. (See Doc. 40.) Because oral argument would not assist this
25 Court in resolving the Motions, this request is denied.
26 2
The parties chose to deviate from the standard civil procedure in this case.
Rather than wait for the completion of discovery before filing dispositive motions, the
27 parties requested leave to conduct limited discovery and submit summary judgment
motions based thereon. This Court granted the parties request. Accordingly, full
28 discovery will not be completed until after the resolution of the pending Motions for
Summary Judgment.
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1 I. Factual Background3
2 At 8:58 p.m. on May 21, 2014, the Tucson Police Department (TPD) received a
3 call from Zee. Zee reported she was employed by an apartment complex landlord, and
4 former tenants were inside an apartment that was supposed to be empty. Zee stated she
5 did not know how the tenants got inside. She also stated she was not on the scene and
6 had learned of the former tenants presence from a neighbor who called her, but did not
7 want to leave their name.
8 When the call was first received, the dispatch operator categorized it as a trespass
9 with a priority level three. On a range of one to four, level one has the highest priority
10 for the most pressing situations, and level four has the lowest priority. At 9:20 p.m., the
11 lead police officer in the area updated the call to note that it could be downgraded to a
12 level four and placed on hold. The officer did so because the property was a vacant
13 location, the person who witnessed the reported activity did not want to be a part of the
14 investigation, there was no one on the scene to verify the allegations, and the owner was
15 not on the scene.
16 Nearly two hours later, at 11:14 p.m., the operator dispatched the call. Officer
17 Meyer responded and arrived at the apartment at 11:22 p.m. In his deposition, Officer
18 Meyer testified that the metal security door was closed when he arrived. He turned the
19 doorknob of the security door and learned that it was unlocked. He thereafter opened the
20 security door, turned the doorknob of the front door and opened it enough to learn that it
21 was also unlocked, and then closed the front door. Officer Meyer left the security door
22 open. He then radioed for backup on the grounds that he had an apartment with an open
23 door. Officer Soeder responded and arrived on the scene at 11:32 p.m. The officers both
24
25 3
The facts stated are those available to Officers Soeder and Meyer at the time of
their encounter with Mr. Duncklee, as those are the only facts relevant to whether the
26 officers acted reasonably in accordance with the Fourth Amendment. See, e.g., Arkansas
v. Sanders, 442 U.S. 753, 758-60, 763 (1979) (Fourth Amendment challenges must be
27 assessed at the point immediately before the search.). These facts are taken from the
dispatch information available to the officers via the computers in their vehicles, what
28 they told each other, and what they personally witnessed. The facts, unless stated
otherwise, are uncontested.

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1 stated they did not see any sign of forced entry, although Officer Soeder noted that the
2 security door was swung wide open when he arrived.
3 At this point, both officers drew their guns, knocked on the door, and announced
4 that they were police. When no one answered the officers call, they opened the door and
5 entered the apartment. They did not have a warrant. Upon entering the apartment,
6 neither officer called for radio silence. Radio silence is requested when officers
7 encounter a scene that they believe is likely to create an emergency such that they need
8 the radio channels to be clear in case they need to radio for assistance.
9 Once in the apartment, the officers realized that space in the room was limited
10 because there were numerous belongings stacked against the wall and taking up
11 approximately half of the room. The officers cleared the front living room and
12 determined that no one else was present. They saw a closed door to what is the
13 apartments only bedroom and could hear a radio playing inside the enclosed room.4 The
14 officers approached the closed door and arranged themselves such that Officer Soeder
15 was to the left of the door and Officer Meyer was to the right. Officer Meyer then
16 knocked on the door and announced their presence, at a volume he believed was loud
17 enough to be heard over the radio playing in the room. No one responded.
18 Officer Soeder then opened the door. Because of his position he could not see into
19 the bedroom. Officer Meyer, however, stated that he saw Mr. Duncklee holding a large
20 stick, with a woman behind him. Officer Meyer stated that Mr. Duncklee was holding
21 the stick in a way that would allow him to strike at Officer Meyers head. Officer Meyer
22 stated the following in his affidavit:
23 As soon5 as the door swung open enough to see Duncklee, he started
charging at me with the stick raised where it could strike at my head, chest
24
25 4
Officer Soeder testified in his deposition that he believed he could hear the music
from outside the apartment. In his affidavit, he stated that they did not hear the faint
26 radio until he was in the apartment.
27 5
Hours after the shooting, TPD officials interviewed both Officers Meyer and
Soeder. Officer Meyer stated in his interview that Mr. Duncklee was approaching him
28 faster than a walk slower than a run a brisk um . . . uh a, hard to describe brisk walk um,
not a run not a slow walk but hes advancing towards me um, I would say in an

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1 or arms. As Dunckleee charged he was also yelling something like

aaahh. [sic] From the instant I first saw Duncklee, I perceived that he
2 was a serious and potentially deadly threat to me. He came at me in an
aggressive manner with a scream and the stick raised over his shoulder. He
3 was initially about five to six feet from me. Duncklee came through the
door frame holding the stick in a swinging position with the end above his
4 shoulder. I immediately started backing up, but knew that I couldnt back
up very far because of the small size of the room and the clutter in it. I
5 yelled Police, stop at Duncklee, Duncklee kept coming at me. I fired at
Duncklees chest.
6
7 Officer Soeder had a different perspective. He stated in his affidavit that when he
8 first opened the door to the closed room,
9 I heard a growling noise as if it were an animal. Immediately after that,
10 [Mr. Duncklee] burst through the door into the front room where we were.
He was charging at me in a very aggressive manner holding a big, huge
11 stick that appeared to be a hockey stick which he was starting to bring
towards my head in a downward motion . . . . Duncklee had the hockey
12 stick up and I remember seeing about 2 feet of the stick raised and coming
down to hit my head. I heard a gunshot. There wasnt room to back up
13 because of the clutter and because Duncklee was charging so fast. I tried
taking a step or two backwards and hit something behind me which made
14 me start leaning backwards as I shot at Duncklee. I believe that my shot hit
Duncklees head because I was starting to lean backwards at that point from
15 whatever was behind me. Duncklee was only about the distance I could
reach if I stretched my arms straight out when I shot him. He was close
16 enough at that point where he could hit me with the hockey stick.
Once shot, Mr. Duncklee fell to the floor and did not move. Officer Soeder
17
believed that he had shot Mr. Duncklee in the head and Officer Meyer could see the head
18
wound. The woman, Amber Watts, screamed and was subsequently ordered to come out
19
of the room. When she responded that she could not because she had been shot, Officer
20
Soeder went to her. He cleared the room and determined that no one was present. He
21
then holstered his weapon and began applying first aid to her gunshot wounds.
22
Officer Meyer stayed in the front room with his gun drawn. He stated in his
23
affidavit that he did not provide any assistance to Mr. Duncklee because he was not sure
24
if Mr. Duncklee had any other weapons, and needed to be prepared in case someone else
25
was in the apartment. In his deposition, Officer Meyer also stated that he did not have
26
any first aid materials on him. Officer Meyer radioed that there had been a shooting and
27
28
aggressive manner with a scream. (Doc. 33-1 at 201.)

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1 officers soon arrived on the scene. Officers thereafter relieved Officers Meyer and
2 Soeder and sought a search warrant for the apartment.
3 Mr. Duncklee died from his gunshot wounds. Ms. Watts, who was shot twice in
4 the leg, recovered. The stick Mr. Duncklee was holding was part of a hockey stick,
5 measuring shortly over two feet.
6 II. Plaintiffs Complaint
7 Plaintiff sued the City of Tucson as well as Officers Meyer and Soeder on behalf
8 of the estate of Michael Duncklee, his statutory beneficiaries, and herself. In her
9 Amended Complaint, Plaintiff alleges that Officers Meyer and Soeder wrongfully and
10 negligently caused the death of Mr. Duncklee. Plaintiff also alleges that the officers
11 violated 42 U.S.C. 1983 by unlawfully entering the apartment and using excessive force
12 against Mr. Duncklee, contrary to the Fourth Amendment. Plaintiff further alleges loss of
13 consortium and entitlement to punitive damages.
14 Plaintiff lists several TPD rules and general orders that Officers Meyer and Soeder
15 allegedly violated on the night of May 21, 2014. However, Plaintiff also alleges that the
16 City of Tucson is liable for TPDs actions, unconstitutional policies, practices and
17 procedures, and deliberate indifference to the constitutional rights of Tucson citizens.
18 Plaintiff alleges that these practices and policies include tolerating police misconduct
19 without sanction, and providing inadequate supervision and training.
20 III. Pending Motions for Summary Judgment
21 In their Motion for Summary Judgment, Defendants argue that there was no
22 Fourth Amendment violation because (1) Officers Meyer and Soeder were allowed to
23 make a warrantless entry into the apartment because the property owners representative
24 called the police to report a trespass; (2) Mr. Duncklee had no Fourth Amendment right
25 to be free from unreasonable searches or seizures in the apartment; and (3) the force used
26 was necessary to respond to an immediate threat to the safety of the officers. Defendants
27 further argue that Officers Meyer and Soeder are entitled to qualified immunity because
28 (1) [n]o reasonable police officer would think that he could not enter an unsecured

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1 apartment at the request of the property owner to investigate a trespass; (2) [n]o
2 reasonable officer would think that he could not open the door when he could hear a faint
3 radio on the other side and no one had responded to his command to open the door for
4 police; and (3) [n]o reasonable officer would have any chance to think once Duncklee
5 started charging with the hockey stick. (Doc. 22 at 11.)
6 Defendants also argue that the City of Tucson must be dismissed because there is
7 no evidence to indicate training, greater supervision, more discipline, or different policies
8 would have changed the officers conduct and prevented Plaintiffs injuries. Defendants
9 contend that the punitive damages claim brought against the defendant officers must be
10 dismissed for lack of evidence of ill will, spite, or conscious disregard of the potential for
11 harm. Lastly, Defendants argue that each of Plaintiffs state law claimsfor negligence,
12 wrongful death, and loss of consortiummust be dismissed pursuant to a state law that
13 grants immunity to officers whose use of force is justified.
14 In Plaintiffs Motion for Summary Judgment, Plaintiff seeks partial summary
15 judgment on the issue of Defendants 1983 liability and of Mr. Duncklees lawful use
16 of self-defense against the officers entry.
17 IV. Standard of Review
18 Summary judgment is appropriate when, after reviewing all of the evidence in the
19 light most favorable to the non-moving party, it is clear that there are no genuine disputes
20 of material fact and the moving party is entitled to summary judgment as a matter of law.
21 Fed. R. Civ. P. 56(c). Typically, summary judgment is not an opportunity for the court to
22 make credibility determinations, but rather to determine if there are genuine issues
23 warranting a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
24 However, cases in which the victim of alleged excessive force has died pose a
25 particularly difficult problem in assessing whether the police acted reasonably because
26 the witness most likely to contradict the officers story . . . is unable to testify. Scott v.
27 Henrich, 39 F.3d 912, 915 (9th Cir. 1994). A court resolving a motion for summary
28 judgment in such a case is tasked with carefully examining the evidence to determine if

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1 the officers account of the events is credible. Gregory v. Cnty. of Maui, 523 F.3d 1103,
2 1107 (9th Cir. 2008).
3 V. Defendants Motion for Summary Judgment
4 A. Section 1983 Liability: Standing to Assert a Fourth Amendment
5 Violation
6 As a preliminary matter, Defendants argue that Fourth Amendment rights belong
7 to the owner of a property and Plaintiff therefore has no standing to assert a Fourth
8 Amendment violation. Defendants are incorrect that Fourth Amendment rights depend
9 upon ownership of a property. See, e.g., Lyall v. City of Los Angeles, 807 F.3d 1178,
10 1186 (9th Cir. 2015) (The Fourth Amendment shields not only actual owners, but also
11 anyone with sufficient possessory rights over the property searched.); see also Rakas v.
12 Illinois 439 U.S. 128, 143 (1978) (we adhere to the view expressed in Jones [v. United
13 States, 362 U.S. 257 (1960)] and echoed in later cases that arcane distinctions developed
14 in property and tort law between guests, licensees, invitees, and the like, ought not to
15 control the scope of the Fourth Amendments protections). However, this Court must
16 determine if the evidence supports a conclusion that Mr. Duncklee did himself have a
17 Fourth Amendment interest in the apartment such that Plaintiff has standing to allege a
18 Fourth Amendment violation on his behalf.
19 A Fourth Amendment-protected search occurs when officers physically occup[y]
20 private property for the purpose of obtaining information.6 Jones v. United States 132
21 S. Ct. 945, 949 (2012). A Fourth Amendment-protected seizure occurs when officers
22 enter a house to secure it. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989).
23 In order to qualify as a person aggrieved by an unlawful search and seizure one must
24 have been a victim of a search or seizure. Lyall, 807 F.3d at 1186 (quoting Alderman v.
25 United States, 394 U.S. 165, 173 (1969)).
26
27 6
This standard is distinct from the analysis of Katz v. United States, 389 U.S. 347
(1967), which addresses those circumstances where there is not a physical intrusion on
28 private property and focuses on a claimants reasonable expectation of privacy. Jones,
132 S. Ct. at 949, 953; see also Lyall 807 F.3d at 1185-86.

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1 In the facts of this case, it is likely that both a seizure and a search occurred when
2 Officers Meyer and Soeder entered the apartment. It is true that because Mr. Duncklee is
3 not alleged to have any sufficient ownership or possessory rights in the apartment, he
4 may not have standing to challenge the search of the apartment. See, e.g. Lyall, 807 F.3d
5 at 1186-87 (The Fourth Amendment shields not only actual owners, but anyone with
6 sufficient possessory rights . . . . [A] person needs some joint control and supervision of
7 the place searched, not merely permission to be there. (internal quotations omitted)).
8 However, it is clear that Mr. Duncklee has standing to challenge the seizure of his person.
9 Accordingly, Mr. Duncklee had a sufficient Fourth Amendment interest to enable
10 Plaintiff to allege that Officers Meyer and Soeder violated Mr. Duncklees Fourth
11 Amendment rights by entering the apartment.
12 B. Section 1983 Liability: Officers Meyer and Soeders Entitlement to
13 Qualified Immunity
14 [G]overnment officials performing discretionary functions generally are shielded
15 from liability for civil damages in so far as their conduct does not violate clearly
16 established statutory or constitutional rights of which a reasonable person would have
17 known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Wilson v. Layne, 526
18 U.S. 603, 609 (1999) ([T]he qualified immunity analysis is identical under either [1983
19 or Bivens] cause[s] of action.). This analysis involves two questions: (1) whether the
20 officials actions violated a statutory or constitutional right, and (2) whether that right
21 was clearly established. See Pearson v. Callahan, 555 U.S. 223, 232-36 (2009).
22 To be clearly established, the contours of the right must be sufficiently clear
23 that a reasonable official would understand that what he is doing violates that right.
24 Wilson, 526 U.S. at 614-15. This is not to say that an official action is protected by
25 qualified immunity unless the very action in question has previously been held unlawful,
26 but it is to say that in light of pre-existing law the unlawfulness must be apparent. Hope
27 v. Pelzer, 483 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640
28 (1987)).

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1 1. Qualified Immunity Analysis of Search and Seizure Claims

2 Officers Meyer and Soeder did not have a warrant when they opened the door to
3 and entered the apartment. It is axiomatic that the physical entry of the home is the
4 chief evil against which the wording of the Fourth Amendment is directed. Welsh v.
5 Wisconsin, 466 U.S. 740, 748 (1984) (internal quotations omitted) (citing United States v.
6 United States District Court, 407 U.S. 297, 313 (1972)); see also Minnesota v. Carter,
7 525 U.S. 83, 99 (1998) (it is beyond dispute that the home is entitled to special
8 protection as the center of the private lives of our people). Accordingly, the Supreme
9 Court has consistently held that the Fourth Amendment ordinarily prohibit[s] the
10 warrantless entry of a persons house as unreasonable per se. Georgia v. Randolph, 547
11 U.S. 103, 109 (2006) (citing Payton v. New York, 445 U.S. 573, 586 (1980); Coolidge v.
12 New Hampshire, 403 U.S. 443, 454-55 (1971)). The parties have raised two exceptions
13 to this rule, and the Court considers each in turn.
14 a. Exigent Circumstances
15 A warrantless entry into a home may be reasonable and not violative of the Fourth
16 Amendment where it is required by exigent circumstances and there is probable cause
17 that a crime is being committed.7 See, e.g., Coolidge, 403 U.S. at 474-75 (a search or
18 seizure carried out on a suspects premises without a warrant is per se unreasonable,
19 unless the police can show . . . the presence of exigent circumstances.); Payton, 445 U.S.
20 at 583-90. Exigent circumstances have been defined as those . . . that would cause a
21 reasonable person to believe that entry (or other relevant prompt action) was necessary to
22 prevent physical harm to the officers or other persons, the destruction of relevant
23 evidence, the escape of the suspect, or some other consequence improperly frustrating
24 legitimate law enforcement efforts. United States v. Warner, 843 F.2d 401, 403 (9th
25 Cir. 1988). The Supreme Court has also stated that an important factor to be considered
26
27
7
Because this Court ultimately finds that, as a matter of law, there were no exigent
28 circumstances, see supra Section VI.A., the Court does not address the additional
requirement of probable cause that a crime is being committed.

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1 when determining whether any exigency exists is the gravity of the underlying offense
2 for which the arrest is being made. Welsh, 466 U.S. at 753.
3 Exigencies must be viewed from the totality of the circumstances known to the
4 officer at the time of the warrantless intrusion. Warner, 843 F.2d at 403. The facts
5 material to whether exigent circumstances existed are undisputed. When Officer Meyer
6 first opened the doors to the apartment to determine whether they were unlocked, he
7 knew that nearly two-and-a-half hours earlier, the landlords employee had been told by a
8 neighbor, who wished to remain anonymous, that former tenants had returned to their
9 apartment. Officer Meyer also knew that the landlords employee was not on the scene to
10 confirm the neighbors allegation, the owner of the property was not on the scene, and the
11 call had been given the lowest priority level available to the TPD because the complaint
12 could not be verified. Officer Soeders knowledge was only slightly different. When he
13 arrived at the scene, the security door was open (as Officer Meyer had left it open).
14 None of these facts support a finding of exigent circumstances, and numerous
15 cases have clearly established that such facts fall short of this exception to the warrant
16 requirement. In 1984, the Supreme Court established that other circumstances aside, a
17 call reporting a minor, nonviolent offense does not rise to the level of exigency sufficient
18 to excuse a warrantless entry into a home. See Welsh, 466 U.S. at 748-55. The Court
19 recounted that it was a shocking proposition that private homes, even quarters in a
20 tenement, may be indiscriminately invaded at the discretion of any suspicious police
21 officer engaged in following up offenses that involve no violence or threats of it. Id. at
22 751.
23 The Ninth Circuit has similarly ruled in the decades since the Welsh opinion. One
24 Ninth Circuit opinion in particular addressed nearly identical facts to those present here,
25 and the court concluded that a landlords call to the police after a rent dispute alleging
26 that persons were unlawfully on the premises did not create an exigent circumstance. See
27 King v. Massarweh, 782 F.2d 825, 828 (9th Cir. 1986) (stating that alleged criminal
28 trespass is an extremely minor offense, and provides weak justification for the

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1 defendant officers entry into the apartments.). Similarly, in 2006, the Ninth Circuit
2 found that a 911 call that a neighbors ex-wife, who was subject to a restraining order,
3 was unlawfully in her ex-husbands home, was not an emergency qualifying for the
4 exigent circumstances exception. See Frunz v. City of Tacoma, 468 F.3d 1141, 1143-46
5 (9th Cir. 2006). Of particular importance to the court in rejecting the officers claimed
6 exigencythe same argument made by Defendants herewas that the 911 call was
7 clearly not reporting a break-in by strangers:
8 The officers point to the exigency of the situation, but there was none.
Normally, when officers suspect a burglary in progress, they have no idea
9 who might be inside and may reasonably assume that the suspects will, if
confronted, flee or offer armed resistance. In such exigent circumstances,
10 the police are entitled to enter immediately, using all appropriate force. But
it was clear from the information available to the officers here that they
11 were dealing, at worst, with some sort of spousal property dispute. Even if
it was technically a burglaryand its far from clear that the officers had
12 probable cause to suspect thisit did not present the same risk of
confrontation or flight as a break-in by strangers.
13
14 Id. at 1145; see also Warner, 843 F.2d at 403-04 (a landlords 911 call to report a
15 possible hazard or unlawful activity in a leased property did not create exigent
16 circumstances).
17 The facts known to Officers Meyer and Soeder make it clear that they could not
18 reasonably believe that there were exigent circumstances allowing them to enter the
19 apartment without a warrant in light of the clearly established law. The 911 call was
20 classified with the lowest priority and was placed on hold for over two hours before an
21 officer was dispatched to the scene. There was no evidence of forced entry when the
22 officers approached the apartment and there had been no indication that the former
23 tenants presence caused a threat to anyone or was in any way violent. The officers did
24 not feel that the situation was so urgent as to require requesting radio silence when they
25 entered the apartment. And, the reported offense was at minimum a landlord tenant
26 dispute, a civil issue in which the police serve largely mediatory rather than enforcement
27 roles, and at most a criminal trespass, an offense multiple courts have concluded does not
28 create an exigent circumstance.

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1 Further, when determining whether there is reasonable necessity for a search

2 without waiting to obtain a warrant[, the analysis] certainly depends [in part upon] the
3 hazards of the method of attempting to reach [the offenders]. Welsh, 466 U.S. at 751
4 (quoting McDonald v. United States, 335 U.S. 451, 459 (1948) (Jackson, J., concurring)).
5 To reach the alleged offenders, Officers Meyer and Soeder entered a home, after
6 knocking and receiving no response, and subsequently entered a closed room from which
7 a radio was playing, after 11:30 at night. The hazards of such conduct are reflected in the
8 common rule that requires even those entries into a home that are sanctioned by a
9 magistrates warrant to be executed during the day absent circumstances warranting a
10 nighttime exception. See Ariz. Rev. Stat. 3917 (In the absence of [a specific finding
11 by the magistrate judge], the warrant may be served only in the daytime.).
12 This is, of course, not to say that law enforcement is unable to respond to a call
13 reporting an incidence of trespass, or some other minor crime. The point of the Fourth
14 Amendment . . . is not that it denies law enforcement the support of the usual inferences
15 which reasonable men draw from evidence. Its protection consists in requiring that those
16 inferences be drawn by a neutral and detached magistrate instead of being judged by the
17 officer engaged in the often competitive enterprise of ferreting out crime. Chapman v.
18 United States, 365 U.S. 610, 614 (1961).
19 The Fourth Amendment grants the officers several alternatives to committing a
20 warrantless entry into an apartment late at night. They could have investigated the call by
21 asking for the names of the purported former tenants; determining the facts surrounding
22 the tenants no longer being allowed on the premises, i.e., if they had been evicted or had
23 any criminal or violent histories; seeking out and interviewing the unnamed neighbor; or
24 returning in the morning to attempt to speak with the tenants in the light of day when they
25 were more likely to be awake. See Frunz, 468 F.3d at 1146 (listing the options available
26 to police officers who receive a report that someone is improperly in another persons
27 home). And, at any point during their investigation of the 911 call, they could have used
28 all information available to them to procure a search or arrest warrant. See id. (Most

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1 importantly, reasonable officers would have tried to obtain a warranta telephone

2 warrant if they believed it was urgentand monitored the house to see if anyone went in
3 or out.).
4 Given these options and the relevant law, this Court finds that at the time of
5 Officers Meyer and Soeders entry into the apartment, it was clearly established that the
6 exigent circumstances exception to the warrant requirement was not available to them.
7 Therefore, unless they could reasonably believe that they qualified for another exception,
8 it was clearly established that their warrantless entry to the apartment violated the Fourth
9 Amendment.
10 b. Consent
11 The prohibition against warrantless entries of a residence does not apply where
12 voluntary consent has been obtained, either from the individual whose property is
13 searched, or from a third party who possesses common authority over the premises.
14 Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). The Supreme Court has consistently
15 held that whether a third party has common authority sufficient to consent is based not
16 upon property rights, but rather upon mutual use of the property by persons generally
17 having joint access or control for most purposes. United States v. Matlock, 415 U.S.
18 164, 171 n.7 (1974)); see also Chapman, 365 U.S. at 617.
19 Thus, a series of cases have verified that landlords8 do not have authority to
20 consent to the warrantless entry of a leased spaced simply because they have a property
21 interest in said space. See, e.g., Chapman, 365 U.S. at 616-17; Stoner v. California, 376
22 U.S. 483. 488-90 (1964); Randolph, 547 U.S. at 110-11; United States v. Impink, 728
23
24 8
There is one disputed fact that is relevant to whether Officers Meyer and Soeder
could reasonably believe that their conduct fit into the consent exception to the warrant
25 requirement. That fact is whether the 911 complainant Zee, who stated she worked for
the landlord, had authority equal to a landlord or owner of the property. Typical
26 summary judgment review requires the Court to make all inferences and assume all facts
in the favor of the non-moving party. Here, both parties seek summary judgment on the
27 ultimate issue of whether consent was given. Because whether or not Zees authority was
equal to that of a landlord does not change the answer to this ultimate issue, this Court
28 will assume that Zee was equal to a landlord for the purpose of resolving the pending
motions. In doing so, the Court more efficiently resolves the pending motions.

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1 F.2d 1228, 1232 (9th Cir. 1984); Warner, 843 F.2d at 403; United States v. Davenport,
2 127 F.3d 1107, *2-3 (9th Cir. Oct. 17, 1997) (Table Decision); see also King, 782 F.2d at
3 828 (reversing summary judgment in officers favor because, in part, no one consented to
4 the officers warrantless entry after a landlord called 911 to report that persons were
5 unlawfully on his leased property). Courts have consistently held that allowing landlords,
6 or others similarly situated, to consent to an entry or search of a leased space would
7 reduce the Fourth Amendment to a nullity and leave tenants homes secure only in the
8 discretion of landlords. Chapman, 365 U.S. at 616-17 (quoting Johnson v. United
9 States, 333 U.S. 10, 14 (1948)); see also Stoner, 376 U.S. at 490; Randolph, 547 U.S. at
10 112; Warner, 843 F.2d at 403.
11 Accordingly, Defendants argument that Zees status as a landlord resolves the
12 question of who can consent is not reasonable in light of clearly established law.
13 Defendants offer in the alternative that because the officers knew that the 911 call alleged
14 the presence of former tenants in the apartment, it was reasonable for them to believe
15 the tenants no longer had a valid possessory right in the property and thus did not have
16 the authority to consent to the officers entry into the apartment. Defendants then argue
17 that the officers could reasonably infer that Zee had consented to entry of the apartment
18 from the substance of the 911 call. Each of these arguments is contrary to clearly
19 established law.
20 i. Whether an Allegation that Tenants are Unlawfully
21 on the Premises Strips Them of the Authority to
22 Consent
23 The facts of this case are substantively indistinguishable from those in King and
24 Frunz. See King, 782 F.2d at 826; Frunz, 468 F.3d at 1143. There, a landlord and the
25 self-proclaimed agent of the homeowner, respectively, called the police. Both reported
26 that people were trespassing on their property interests, and in neither case did their 911
27 calls alone have any bearing on the accused trespassers ability to consent to police entry
28 of the homes. Rather, the courts quickly determined that the warrantless entry into the

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 15 of 24

1 residences violated the supposed intruders rights, and could not be saved by any
2 exception to the Fourth Amendments warrant requirement. See King, 782 F.2d at 828
3 (police entry was unlawful where suspect did not consent); Frunz, 468 F.3d at 1142-46
4 (suspect was wrongfully not given opportunity to consent).9
5 Given this precedent, this Court is convinced that an unverified allegation of
6 unlawful presence in a home could not reasonably be believed to revert possessory
7 interests back to the property owner such that those in the residence have no authority to
8 consent to a search. As the Ninth Circuit has stated, [a] landlord sometimes calls the
9 police with suspicions or accusations against his tenants. The landlords call to the police
10 on a tenant does not destroy the tenants right to his tenancy. United States v. Young,
11 573 F.3d 711, 716 (9th Cir. 2009); see also United States v. Thomas, 447 F.3d 1191,
12 1198 (9th Cir. 2006) (we have previously held that [Fourth Amendment] interest exists
13 even if a [suspect] is in technical violation of a leasing contract.).
14 Accordingly, Zee did not have authority to consent to the entry of the apartment
15 simply because she was accusing former tenants of trespassing. Thus, the issue present
16 here is not whether Zee consented to the polices entry into the apartment, but whether
17 Mr. Duncklee and Ms. Watts did. The facts are undisputed: they did not.
18
19 ii. Whether the Officers have Reasonably Inferred
20 Consent to Enter the Apartment from Zees 911
21 Call
22 Even if entry into the apartment did turn upon Zees consent, none of the evidence
23 presented demonstrates that the officers could reasonably believe that she did in fact
24 consent. The dispatcher did not ask Zee if the police had consent to enter the apartment if
25
9
If Officers Meyer or Soeder had investigated the allegation of trespass and
26 learned that the former tenants in fact had no right to be on the property, Defendants
argument that this alone strips them of any Fourth Amendment right to deny or grant
27 consent may have more weight. However, there was no investigation of that allegation
here. See, e.g., Frunz, 468 F.3d at 1145-1146 (officers may not rely upon the existence
28 of a court order restricting a persons rights without having looked at all into the details
of that order).

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 16 of 24

1 no one came to the door, and Zee did not volunteer consent. Given these facts, it appears
2 that consent, as clearly established by precedent, was never given.
3 [C]onsent must be unequivocal and specific and freely and intelligently
4 given. United States v. Page, 302 F.2d 81, 83-84 (9th Cir. 1962); see also United
5 States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990) (same). The government always
6 bears the burden of proof to establish the existence of effective consent. This burden is
7 heavier where consent is not explicit, since consent is not lightly to be inferred. Impink,
8 728 F.2d at 1232 (internal citations omitted) (quoting United States v. Patacchia, 602
9 F.2d 218, 219 (9th Cir. 1979)). The Ninth Circuit has concluded that the burden of
10 proving inferred consent from the actions of a third party who is not present at the time of
11 the search is even higher. Impink, 728 F.2d at 1233, n.3. The Ninth Circuit has ruled that
12 courts should not infer both the request and the consent. Shaibu, 920 F.2d at 1428. The
13 clearly established law thus rejects Defendants argument that consent can be inferred
14 from a 911 call where the issue of consent to enter the apartment was never addressed.
15 Even if Zee had the authority to consent, she did not consent as a matter of law.
16 The law is clearly established that Officers Meyer and Soeder could not
17 reasonably believe that inferring consent from Zees 911 call would not violate the
18 Fourth Amendment.10 Defendants are thereby not entitled to qualified immunity on the
19 alleged seizure violation because their entry of the apartment violated clearly established
20 Fourth Amendment rights.
21 ...
22 ...
23
24 10
Defendants point to an Arizona Court of Appeals case to support their claim that
a 911 call implies consent to enter, but that case is significantly different than the case at
25 bar. In State v. Fleischman, the court discussed an owners 911 call reporting that his
wife had been murdered in their restaurant. See 754 P.2d 340, 341 (Ariz. Ct. App. 1988).
26 In that case, no one contested that the police had authority to initially enter the restaurant
because of the exigencies of the alleged murder and the communications had between the
27 officers and the complainant. See id. at 343. Here, police entered a residence and not a
restaurant; based upon notes dictated from a 911 call, rather than first-hand conversation
28 with the witness; reporting a minor, potentially civil matter, rather than a murder.
Fleischman offers little support to Defendants argument.

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 17 of 24

1 2. Qualified Immunity Analysis of Excessive Force Claim

2 Excessive force claims are determined by examining the totality of circumstances.
3 When determining whether force used was excessive, a court must consider factors
4 including the severity of the crime at issue, whether the suspect poses an immediate
5 threat of the safety of the officers or others, and whether he is actively resisting arrest or
6 attempting to evade arrest by flight. Graham v. Connor, 490 U.S. 386, 396 (1989). As
7 for deadly force in particular, the Supreme Court has held that police officers may not use
8 deadly force unless it is necessary to prevent escape and the officer has probable cause
9 to believe that the suspect poses a significant threat of death or serious physical injury to
10 the officers or others. Tennessee v. Garner 471 U.S. 1, 3 (1985). The reasonableness
11 of any examined force is to be considered from the perspective of a reasonable officer
12 on the scene, rather than with the 20/20 vision of hindsight. Graham, 490 U.S. at 396
13 (quoting Terry v. Ohio, 393 U.S. 1, 20-22 (1968)). Given the necessary reasonableness
14 determination, excessive force claims nearly always require a jurys [review], and
15 should very rarely be resolved as a matter of law. Smith v. City of Hemet, 394 F.3d 689,
16 701 (9th Cir. 2005).
17 Typically, a claim of excessive force is relatively narrowly tailored to law
18 enforcements direct encounter with a suspect. Plaintiffs excessive force claim here,
19 however, is broader. Plaintiff argues that it was constitutionally unreasonable for
20 Officers Meyer and Soeder to let themselves into an apartment, with their guns drawn,
21 after 11:30 p.m., based upon an uninvestigated 911 call alerting police to a possible
22 landlord tenant dispute. Her excessive force claim turns on the force the officers used in
23 entering the [apartment]. Alexander v. City and Cnty. of San Francisco, 29 F.3d 1355,
24 1366 n.12 (1994).
25 To assess this sort of excessive force claim, [t]he force which was applied must
26 be balanced against the need for that force. Id. at 1367. Here, the facts that relate to the
27 need for force used are uncontested. While the facts are undisputed, the officers
28 perspectives are slightly different. Upon arriving on the scene, Officer Meyer witnessed

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 18 of 24

1 an apartment with both doors physically closed and no evidence of a forced entry. When
2 Officer Soeder arrived, however, he had been told that Officer Meyer needed backup
3 because he had an apartment with an open door, and, when Officer Soeder arrived, the
4 apartments security door was physically open. Based upon this information, both
5 officers entered the apartment (after knocking, announcing, and receiving no answer)
6 with their guns drawn.
7 The Court finds that based upon these facts (even with their varying perspectives)
8 it was clearly established as a matter of law that drawing their guns and letting
9 themselves into the apartment violated a constitutional right to be free from excessive
10 force. Making all inferences in the Plaintiffs favor, and using the standard clearly
11 established by Graham and Garner, Zees phone call demonstrated a landlord-tenant
12 dispute, a matter governed by civil and not criminal laws. Even if the call evidenced a
13 criminal trespass, nothing the officers knew before entering the apartment indicated that
14 there was any threat to the safety of the officers or others. Similarly, none of the
15 information known to the officers demonstrated that the former tenants were actively
16 resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396.
17 Neither was there any information to indicate that deadly force was allowed. That is,
18 there was no evidence before Officers Meyer and Soeder entered the apartment that the
19 suspects were escaping or that the suspects posed a significant threat of death or serious
20 injury. Accordingly, summary judgment cannot be granted on the basis that Defendants
21 are entitled to qualified immunity.
22 C. Municipal Liability
23 Defendants argue that this Court should find that the City cannot be liable because
24 Plaintiffs have failed to show how any training, greater supervision, more discipline, or
25 different policies would have changed what [Officers Meyer and Soeder] did. Plaintiff
26 responds that given the unusual posture of this casethat is, that discovery is not yet
27 completed and municipal witnesses have not yet been deposedthis request is
28

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 19 of 24

1 premature. The Court agrees. Accordingly, the Court will deny Defendants Motion on
2 municipal liability, without prejudice.
3 D. Officers Meyer and Soeders Liability for Punitive Damages
4 Defendants seek summary judgment on the availability of punitive damages by
5 arguing that there is no evidence that the officers knew Mr. Duncklee and, accordingly,
6 the officers could not have formed any ill will or spite against him as a matter of law.
7 Defendants also argue that they cannot be found liable for conscious disregard on the
8 facts of this case because they could not disregard the fact that Mr. Duncklee was actively
9 charging them. However, Plaintiffs theory is that it was the officers unlawful entry into
10 the apartment that consciously disregarded Mr. Duncklees rights. Because this theory of
11 liability for punitive damages can be supported by the record, summary judgment will be
12 denied.
13 E. State Law Liability
14 Defendants also seek summary judgment of Plaintiffs three state law claims:
15 wrongful death, negligence, and loss of consortium. Defendants argue that because
16 Arizona provides immunity from suit where law enforcement causes injury by using
17 justified force, Defendants cannot be held liable under any state law theory. However, in
18 denying Defendants Motion for Summary Judgment on its 1983 liability, this Court
19 has found that a jury could find that the officers use of force was not justified.
20 Accordingly, Defendants Motion for Summary Judgment of the state law claims will be
21 denied.
22 VI. Plaintiffs Motion for Summary Judgment
23 A. Section 1983 Liability
24 Plaintiff argues that no reasonable juror could find that the officers entry into the
25 apartment did not violate Mr. Duncklees Fourth Amendment rights to be free from
26 unreasonable seizures, and to be free from unreasonably excessive uses of force.11 This
27 Court examines each request in turn, making all factual inferences in Defendants favor.
28
11
It is not clear whether Plaintiff seeks summary judgment on the City of

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 20 of 24

1 1. Fourth Amendment Violation for Unreasonable Seizure

2 Summary judgment must be granted where there is no genuine dispute as to any
3 material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
4 56(a). Unless an exception to the warrant requirement applies, the Fourth Amendment
5 prohibits warrantless entries of a persons house as unreasonable per se. Randolph,
6 547 U.S. at 109. Because it is uncontested that Officers Meyer and Soeder did not have a
7 warrant before they entered the apartment, there must be some disputed fact material to
8 whether their conduct satisfied an exception to the warrant requirement to avoid summary
9 judgment. The only disputed fact relevant to this issue is whether Zee had legal authority
10 equal to that of a landlord. Even assuming that Zee had that authority, as this Court did
11 above, see supra n. 9, it is clear that Officers Meyer and Soeders entry into the
12 apartment violated Mr. Duncklees right to be free from unreasonable searches and
13 seizures.
14 As detailed above, supra Section V.B.1.a., the facts of this case do not allow for a
15 reasonable conclusion that either of two exceptions to the warrant requirement raised by
16 Defendants applied. The exigent circumstances exception requires some evidence of the
17 police officers reasonable belief that physical harm to someone, destruction of evidence,
18 escape of the suspect, or some other frustration to proper law enforcement was imminent.
19 Warner, 843 F.2d at 403. None of these can be said to be present in this case.
20 Defendants argue that the 911 call alleging criminal trespass creates an exigent
21 circumstance, but this argument is belied by both TPDs treatment of the call and
22 governing law. It is not reasonable to believe a call that was downgraded to the lowest
23 priority and placed on hold for two hours was, by its nature, exigent. Further, cases with
24 strikingly similar facts have found that a 911 call alone does not create an exigent
25 circumstance. See, e.g., Welsh, 466 U.S. at 754-55; King, 782 F.2d at 828; Frunz, 468
26 F.3d at 1143-46; Warner, 843 F.2d at 403-04. The law forecloses any argument that
27
Tucsons 1983 liability. However, for the same reason that this Court cannot grant
28 summary judgment in Defendants favor on the issue of municipal liability, this Court
cannot grant summary judgment in Plaintiffs favor on this issue. See supra Section V.C.

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 21 of 24

1 Officers Meyer and Soeder were faced with exigent circumstances allowing their
2 warrantless entry into the apartment.
3 Neither do the facts allow this Court to find that reasonable jurors could find that
4 there was consent to allow the officers to enter the apartment. Even assuming that Zee
5 had the same authority as would the owner or landlord of the property, landlords as a
6 matter of law do not have authority to consent to police entry into a residence, save an
7 exception not relevant here. See, e.g., Chapman, 365 U.S. at 616-17; Stoner v.
8 California, 376 U.S. 483, 488-90 (1964); Randolph, 547 U.S. at 110-11; United States v.
9 Impink, 728 F.2d 1228, 1232 (9th Cir. 1984); Warner, 843 F.2d at 403; Davenport, 127
10 F.3d at *2-3. And, even if Zee could consent to the officers entry, it cannot be said that
11 she did based upon this record. The notes of Zees conversation include no reference to
12 whether or not the officers were allowed to enter the apartment; the dispatch operator did
13 not ask, and Zee did not offer. Because precedent has rejected Defendants request to
14 infer both the request and the consent to find an issue of whether a third partys actions
15 could be interpreted as consent, Zee cannot be found to have consented to the entry. See
16 Shaibu, 920 F.2d at 1428; Page, 302 F.2d at 83-84.
17 This case presents an unusual circumstance in which the facts are largely
18 undisputed. Given this, the Court can more easily determine whether Plaintiff is entitled
19 to judgment as a matter of law. Based on this record, this Court finds that Plaintiff is so
20 entitled on the question of 1983 liability for unreasonable seizure by way of Officers
21 Meyer and Soeders entry into the apartment. That entry was a constitutional violation,
22 and the Plaintiffs Motion will be granted on this issue.
23 2. Fourth Amendment Violation for Excessive Force
24 Plaintiff also seeks a summary judgment ruling that Officers Meyer and Soeder
25 violated the Fourth Amendments prohibition of excessive force when they entered the
26 apartment. As an initial matter, Plaintiffs briefing of her summary judgment request
27 raises the issue of the seeming paradox created by finding that an entrance into an
28 apartment was unlawful, and yet also finding that the force used in obtaining that

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 22 of 24

1 entrance could still be reasonable. As counterintuitive as it may appear, the possibility of

2 this outcome is mandated by the law. Unreasonable search and seizures claims and
3 excessive force claims are distinct as a matter of law. See Alexander, 29 F.3d at 1360-62,
4 1366-67. As the Ninth Circuit has held, an entry into a home can be an unlawful seizure,
5 even though the force used in effecting the seizure could be found reasonable. See id. at
6 1360 (. . . if in fact the officers primary purpose in storming the house was to arrest
7 Quade . . . then Quades Fourth Amendment rights were violated.); id. at 1367 ( . . . if
8 the jury were to conclude that the officers entered for the purpose of arresting Quade,
9 they may conclude that storming the house was in fact commensurate with need . . . , and
10 hence that the force was reasonable.). Accordingly, even though this Court has found
11 that the officers entry into the apartment was an unreasonable seizure violative of the
12 Fourth Amendment, this Court must now answer the separate question of whether the
13 force used in effecting that seizure was excessive.
14 Plaintiffs excessive force claim is less suited for summary judgment than her
15 claim of unreasonable seizure, both as a matter of law and given the facts present here.
16 As the Ninth Circuit has held, the excessive force inquiry nearly always requires a jury
17 to sift through disputed factual contentions and to draw inferences therefrom, [and thus]
18 we have held on many occasions that summary judgment or judgment as a matter of law
19 in excessive force cases should be granted sparingly. Smith, 394 F.3d at 701 (internal
20 citations omitted) (citing Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); Liston v.
21 Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (We have repeatedly held that
22 the reasonableness of force used is ordinarily a question of fact for the jury.)).
23 Accordingly, this Court will reserve the issue for a jury.
24 Furthermore, even if excessive force were not in itself best resolved by an ultimate
25 factfinder, some of the facts particular to this case render this issue better suited for a
26 jury. For example, Officers Meyer and Soeders perspectives and knowledge were
27 different before they entered the apartment, and a jury is best suited to determine whether
28 those differences rendered one or the other of the officers more or less reasonable.

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 23 of 24

1 Officer Soeder arrived on the scene only after Officer Meyer radioed for backup. And,
2 probably most importantly, that request was made because Officer Meyer purportedly
3 witnessed something out of place with the apartmentthat is, a door that was physically
4 open. Because Officer Soeder did not know that it was Officer Meyer that opened the
5 door, the facts as he knew them could have reasonably led him to believe that some force
6 was necessary to further investigate the alleged criminal trespass. As for the
7 reasonableness of Officer Meyers action, there will be a question of whether it was
8 reasonable for him to use force to determine if the doors were unlocked in the first
9 instance, and to actually open the doors upon learning that they were unlocked. That
10 question is best answered by a factfinder and not this Court.
11 Accordingly, this Court will deny Plaintiffs Motion for Summary Judgment on
12 Defendants 1983 liability for excessive force.
13 B. Legal Justification to Use Self-Defense
14 Plaintiff also requests a summary judgment ruling that Mr. Duncklees use of
15 force when he charged out of his bedroom was lawful self-defense. Plaintiff argues this
16 request can be granted because an Arizona statute allows a person to respond to
17 someones unlawful force with a physical defense. See Ariz. Rev. Stat. 13-404.
18 However, because this Court declines to find as a matter of law that the force the police
19 officers used in entering the apartment was unlawful, this Court cannot find that that Mr.
20 Duncklee was entitled to defend himself as a matter of law. Plaintiffs Motion for
21 Summary Judgment on the lawfulness of Mr. Duncklees self-defense will be denied.
22 ...
23 ...
24 ...
25 ...
26 ...
27 ...
28 ...

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 Case 4:15-cv-00077-RM Document 42 Filed 03/31/16 Page 24 of 24

1 Accordingly,
2 IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment
3 (Doc. 22) is denied.
4 IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment
5 (Doc. 32) is granted in part, and denied in part. Plaintiffs Motion is granted on the
6 issue of Officers Meyer and Soeders liability for committing an unconstitutional,
7 unreasonable seizure of the apartment. Plaintiffs Motion is denied in all other respects.
8 Dated this 31st day of March, 2016.
9
10
11 Honorable Rosemary Mrquez
12 United States District Judge

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