Leibel v. City of Buckeye

• Decision Date: 25 August 2021
• Docket Number: CV-18-01743-PHX-DWL
• Parties: Kevin LEIBEL, et al., Plaintiffs, v. CITY OF BUCKEYE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

556 F.Supp.3d 1042

Kevin LEIBEL, et al., Plaintiffs,

v.CITY OF BUCKEYE, et al., Defendants.

No. CV-18-01743-PHX-DWL

United States District Court, D. Arizona.

Signed August 25, 2021

Kevin Lee Burns, Burns Nickerson & Taylor, Phoenix, AZ, Nicolas O. Jimenez, Pro Hac Vice, Timothy Allen Scott, Pro Hac Vice, Marcus S. Bourassa, Scott Trial Lawyers APC, San Diego, CA, for Plaintiffs.

James M. Jellison, Jellison Law Offices PLLC, Carefree, AZ, for Defendants City of Buckeye, David Grossman, Charles Arlak, Larry Hall.

ORDER

Dominic W. Lanza, United States District Judge

INTRODUCTION

This is a lawsuit brought on behalf of C.L.,¹ an autistic child who was 14 years old at the time of the events in question, against the City of Buckeye (the "City") and three members of the Buckeye Police Department, Officer David Grossman, Lieutenant Charles Arlak, and Chief of Police Larry Hall (collectively, "Defendants"). The claims stem from an incident in July 2017 in which Officer Grossman saw C.L. "stimming"—a self-soothing behavior common in children with autism—with a piece of string while standing alone in a park, mistakenly concluded that C.L. was using an illegal inhalant drug, and approached C.L. to further investigate. During the resulting encounter, portions of which were captured by Officer Grossman's body camera, Officer Grossman asked C.L. what he was doing, C.L. explained that he was stimming, and C.L. then attempted to walk away. In response, Officer Grossman told C.L. to stop, C.L. immediately complied, and Officer Grossman asked him another question. After answering that question, C.L. again turned to walk away, prompting Officer Grossman to grab C.L.’s arm and attempt to handcuff him. The pair ultimately went to the ground—the parties dispute whether it was an intentional tackle by Officer Grossman or an accidental fall—and Officer Grossman continued restraining C.L. for several minutes afterward, even after C.L.’s caregiver arrived to explain that he was autistic and had been stimming with the string. The encounter caused C.L. to sustain various injuries, including an ankle injury that required surgery.

In this action, C.L.’s surviving claims are (1) a pair of § 1983 claims against Officer Grossman for illegal seizure/false arrest and excessive force, (2) a claim under the Americans with Disabilities Act ("ADA") against the City for illegal seizure/wrongful arrest, and (3) state-law claims for battery (Officer Grossman) and negligent training and supervision (the City, Lieutenant Arlak, and Chief Hall). (Doc. 92.)² At the motion-to-dismiss stage of the case, the Court that concluded Officer Grossman was not entitled to qualified immunity as to the § 1983 claims. (Doc. 40.) Officer Grossman pursued an interlocutory appeal of this ruling, but the Ninth Circuit affirmed. C.L. by and through Leibel v. Grossman , 798 F. App'x 1015 (9th Cir. 2020).

Now pending before the Court are Defendants’ motion for summary judgment (Doc. 155) and C.L.’s motion for partial summary judgment as to his ADA claim (Doc. 158). For the following reasons, Defendants’ motion is granted in part and denied in part and C.L.’s motion is denied.

BACKGROUND

I. Events Leading Up To The Incident

C.L., who was 14 years old at the time of the events in question, has autism and an intellectual disability. (Doc. 155-2 at 5; Doc. 158-4 at 27.) On July 19, 2017, Diane Craglow ("Ms. Craglow"), C.L.’s caretaker, took C.L. and his sister, D.L., to D.L.’s piano lesson. (Doc. 155-2 at 18, 21.) At some point during the piano lesson, C.L. told Ms. Craglow that "he didn't want to stay in the lobby" and "wanted to go across the street" to the park. (Id. at 39.) Ms. Craglow presumed that C.L. wanted to go to the park to stim,³ because she wouldn't "let [C.L.] stim in the building." (Id. at 39-40.) Ms. Craglow told C.L. to "[l]ook both ways" and that she would "see him in a few minutes at the park," and C.L. "walked out the door." (Id. at 34, 41.)

Meanwhile, Officer Grossman, "in full uniform," was "passing by, driving by [C.L.] on the street" in a police vehicle. (Doc. 155-3 at 28-29.) He observed "what [he] believed to be a young adult male [C.L.] standing on the sidewalk, which would have been on the south side of the park." (Id. at 24-25.) Officer Grossman's observation of C.L. was that "he was pretty much just standing there, about to start walking" and brought "his hand up close to his face, pretty close to his nose and mouth" in a "cupping motion." (Id. at 24-25, 27.) Officer Grossman also observed "some object in his right hand that he hit against his left palm and ... [brought] up to his face," which C.L. appeared to be smelling. (Doc. 155-5 at 75, capitalization omitted.) Officer Grossman believed "there was something in [C.L.’s] hand that he was holding." (Doc. 155-3 at 27.) Officer Grossman passed C.L. and "started looking in [his] driver side rearview mirror at [C.L.’s] actions," and his observation was that C.L. was "bringing the cupping hand close to his face, and then briefly his body was locking up and almost being affected by whatever was in his hand." (Id. at 27-28.) Officer Grossman observed C.L. "just turn[ ] around and walk[ ] back in the direction he was originally observed in, almost like a pacing back-and-forth type of movement." (Id. at 30-31.) Officer Grossman turned his vehicle back to face C.L. and "observed him further doing the same movements." (Id. ) Based on Officer Grossman's "previous training in drug recognition, [he] believed possibly [C.L.] was inhaling some type of [illegal] inhalant." (Id. ; id. at 34-35 ["Q. If, in fact, that was an inhalant and [C.L.] was using an inhalant in the manner that you described, that would be a crime? A. Correct. Just inhaling the substance is a crime, not being in possession of one."]; id. at 36 ["Q. There in the park that day, did you suspect that [C.L.] was potentially committing any other crimes other than maybe using an inhalant? A. Just the inhalant violation."].)

II. The Video Of The Incident

The parties have submitted video footage of the incident, which was captured by Officer Grossman's body camera. (Doc. 161 [Defendants’ notice of filing of body camera footage]; Doc. 162 [C.L.’s notice of same].) The facts below are derived from the Court's review of that video footage.

A. Initial Encounter

Officer Grossman pulled up to the park, parked his vehicle, and exited the vehicle. Officer Grossman began to approach C.L., and the following verbal exchange occurred:

Officer Grossman: "What's going on?"

C.L.: "Me?"

Officer Grossman: "Yeah. What are you doing?"

C.L.: "Good."

Officer Grossman: "What are you doing?"

C.L.: "I'm stimming."

At this moment, C.L. bent his right arm behind his back, such that his hand was not visible. His arm straightened and his hand became visible a moment later.

Officer Grossman: "What?"

C.L.: "I stim with this."

C.L. presented his left hand, holding the string, to Officer Grossman. C.L. also began walking backward, away from Officer Grossman.

Officer Grossman: "What is that?"

Officer Grossman then lifted his right arm and pointed at C.L., stating "Stop walking away from me."

C.L. immediately stopped.

C.L. again presented his left hand, closed in a fist over the string, stating, "It's a string."

Officer Grossman: "Okay. So why are you bouncing around all that way? Do you have any ID on you?"

C.L.: "No."

C.L. then turned to his left and appeared to begin walking away.

Officer Grossman took hold of C.L.’s right arm with both of his hands, stating "Don't go anywhere," and brought C.L.’s arm behind his back. Officer Grossman then let go with one of his hands to take hold of C.L.’s left arm, bringing both of C.L.’s arms behind his back, telling C.L. to "just relax."

C.L.: "Are you okay?"

C.L. then looked behind him toward Officer Grossman and turned his body as Officer Grossman brought out his handcuffs, such that C.L. and Officer Grossman ended up facing each other.

B. On The Ground

C.L. and Officer Grossman scuffled and both ended up on the ground. Both on the way down and while on the ground, C.L. was screaming.

It appears there was some kind of struggle as C.L. and Officer Grossman reached the ground. Officer Grossman instructed C.L. to "stay down," and C.L. yelled, "I'm okay, I'm okay."

Officer Grossman attempted to hold down one of C.L.’s arms, while C.L. shouted "I'm okay!"

Officer Grossman: "Don't move! You understand?"

C.L.: "No, I'm okay!"

After a moment, C.L. yelled, "Help!"

Officer Grossman: "Stop moving!"

C.L.: "I'm okay."

Officer Grossman: "Don't you move, you understand?"

C.L.: "Yeah. I need help."

Officer Grossman: "Don't move."

C.L.: "I need help."

Officer Grossman: "Stop moving."

C.L.: "Am I going – am I going to go away?"

Officer Grossman: "Relax."

C.L.: "I'll breathe."

Officer Grossman: "You are breathing."

C.L.: "Yeah."

C.L. then said something indecipherable. After a few moments, C.L. again stated, "I'm okay."

Officer Grossman: "Stop moving."

C.L.: "Am I going – am I going – are you going to go away? Are you going to go away?"

Officer Grossman: "Just relax."

C.L.: "What are you doing? Hey, what are you doing?"

Officer Grossman: "Just relax, okay?"

C.L.: "Yeah."

Officer Grossman: "Don't move. You're fine, okay, don't move."

C.L. then attempted to say something that the Court couldn't decipher.

Officer Grossman: "What's your name?" C.L. then told Officer Grossman his name.

Officer Grossman: "Why are you acting like this, [C.L.]?"

C.L.: "Cause I'm okay."

C. Caregiver Arrives

Ms. Craglow is then heard in the background.

Officer Grossman: "Stop moving."

At this point, an unspecified electronic device beeped, prompting C.L. to say: "Your time is up."

Next, Officer Grossman said to C.L.: "Relax. Who's this?"

C.L.: "Diane."

Officer Grossman to Ms. Craglow: "He's fighting with me. What's going – do you know him?"

Ms. Craglow (not visible in video): "He's got autism."

Officer Grossman: "Okay."

Ms. Craglow (still not visible): "I'm so sorry. His sister's in a music lesson, he usually just walks around."

Officer Grossman: "Okay. ...