Puente v. City of Phx.
| Docket Number | CV-18-02778-PHX-JJT |
| Decision Date | 07 February 2022 |
| Parties | Puente, et al., Plaintiffs, v. City of Phoenix, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Honorable John J. Tuchi, United States oh District Judge.
At issue are three Motions for Summary Judgment. First Plaintiffs filed a Motion for Partial Summary Judgment (redacted Doc. 246, sealed Doc. 257, “PMSJ”) along with a Statement of Facts (redacted Doc. 247, sealed Doc. 257-1, “PSOF”), to which Defendants filed a Response ) and Controverting Statement of Facts (redacted Doc. 286, sealed Doc. 290 “DCSOF”), and Plaintiffs filed a Reply ). Second, Defendants filed a Motion for Summary Judgment as to Plaintiffs' Classwide Claims (redacted Doc. 271, sealed Doc. 276, “DMSJ #1”) along with a Statement of Facts (redacted Doc. 273, sealed Doc. 278, “DSOF”), to which Plaintiffs filed a Response ) and Controverting Statement of Facts (redacted Doc. 293, sealed Doc. 299, “PCSOF”), and Defendants filed a Reply ). Third, Defendants filed a Motion for Summary Judgment as to Plaintiffs' Individual Claims (redacted Doc. 272, sealed Doc. 277, “DMSJ #2”), to which Plaintiffs filed a Response ), and Defendants filed a Reply ).[1] The Court also considered Plaintiffs' Notice of Supplemental Authority in Support of Opposition to Defendants' Motion for Summary Judgment (Doc. 321) and Defendants' Response thereto (Doc. 322). (See Doc. 334.) The Court elects to resolve the parties' cross motions for summary judgment without oral argument.[2] See LRCiv 7.2(f).
On August 22, 2017, President Donald Trump held a rally at the Phoenix Convention Center, and approximately 6, 000 demonstrators-both pro-Trump and anti-Trump-gathered outside the Convention Center. The Phoenix Police Department (“PPD”) had about a week's advance notice of the rally, during which it made preparations to try to ensure the safety of the downtown area and the public during the expected demonstrations. The preparations included setting up a “free speech zone” designated for anti-Trump demonstrators on the north side of the Convention Center, across Monroe Street. The free speech zone was bordered by 2nd Street to the west, 3rd Street to the east, and Monroe Street to the south, and demarcated by a three-foot high pedestrian fence and “Do Not Cross” tape. PPD anticipated that certain groups of demonstrators would be present, including Antifa-a national, militant political protest movement opposing fascism and right-wing ideology whose groups had disrupted several other demonstrations, including one in Charlottesville, Virginia, in the weeks preceding President Trump's Phoenix visit- as well as Plaintiff Puente-a Phoenix grassroots organization representing migrant communities through lobbying, advocacy, and activism-and Plaintiff Poder in Action (“Poder”)-a Phoenix grassroots organization with a mission of empowering victims of injustice through leadership development, civic engagement, and policy advocacy.
In a Presidential Visit After-Action Report (Doc. 101-3 at 2-35, Bates Nos. COP014832-014865, “PPD Report”), Defendant PPD Chief Jeri Williams stated that, on the day of the rally, PPD deployed approximately 985 officers around the Convention Center. According to the report, large crowds of demonstrators began arriving by 11:00 a.m. and, although PPD officers observed minor altercations and a few water bottles being thrown at rally attendees lining up to enter the Convention Center, the demonstrations proceeded generally without incident during the day.
The rally inside the Convention Center began at 6:30 p.m. At approximately 8:15 p.m., after PPD officers around 2nd Street and Monroe reported that water bottles were being thrown at them, officers used a Long Range Acoustic Device (“LRAD”) to make announcements instructing individuals to stop throwing objects. At 8:23 p.m., 15 to 20 individuals PPD had identified as Antifa put up large banners near the fence along Monroe, which concealed their activities from PPD officers. PPD deployed Tactical Response Unit (“TRU”) personnel, including grenadiers trained in the deployment of chemical munitions, across from the area where Antifa had gathered. Just after 8:32 p.m., PPD officers observed Antifa pushing or shaking the fence in what appeared to be a breach.
On orders from Field Force Commander Lt. Benjamin Moore, PPD deployed its first munition in front of Antifa just before 8:33 p.m. in the form of pepper balls on the ground, which cleared most individuals from the immediate vicinity. Thereafter, PPD officers reported that rocks and bottles were being thrown and, at 8:34, officers reported that canisters of some kind of tear gas were thrown at them. At that point, PPD officers donned gas masks and, at 8:34 to 8:35, the grenadiers deployed inert smoke bombs. Large numbers of demonstrators began to clear the area.
After officers noted that smoke canisters were being kicked and thrown back and a spear-like object and an incendiary device were thrown at them, at 8:35 to 8:36, the grenadiers were ordered to deploy CS gas-a type of tear gas-in what they perceived to be focused locations. Plaintiff Jacinta Gonzalez Goodman alleges she inhaled gas. Plaintiff Ira Yedlin, who was standing near the area where Antifa had been, was hit five times by projectiles. The grenadiers also deployed aerial flash bangs intended to act as auditory warnings. Demonstrators began to run away and, by 8:39, the area where individuals had been throwing projectiles was mostly empty, although demonstrators remained to the east and west of the area.
From 8:36 to 8:45, PPD used additional smoke canisters and pepper balls to clear an area so that officers could form skirmish lines to disperse the remaining individuals. Helicopters from the PPD Air Unit began arriving at 8:40, and they started making announcements directing the crowd to disperse at 8:52. In this time period, the grenadiers deployed smoke canisters, pepper balls, muzzle blasts, and OC bullets-bullets filled with pepper spray-at remaining individuals, and a munition hit Plaintiff Cynthia Guillen. Lines of PPD officers with riot shields began marching to move the crowd at 8:56. At some point between 8:42 and 8:47, PPD had made the final determination that the crowd was unlawfully assembled, so at 9:02, an official unlawful assembly announcement was made via a public address system from a marked police vehicle on the ground.
Thereafter, the grenadiers deployed munitions in the form of pepper balls, OC bullets, muzzle blasts, and CS gas canisters at anyone who approached a police officer, and Plaintiff Janet Travis was hit in the back and pepper sprayed. PPD officers told the press to leave the area at 9:20. The crowd was dispersed and gone from the free speech area by 9:56 p.m.
Over the course of the evening, PPD documented eight Incident Reports-for criminal damage, disorderly conduct, aggravated assault on Police, and unlawful assembly-and made five arrests of individuals who are not named Plaintiffs in this action. After the rally, Chief Williams publicly acknowledged that she directed PPD's actions against the protestors and that the actions were appropriate.
On September 4, 2018, Plaintiffs filed suit against the City of Phoenix and certain PPD members-including Chief Williams, Lt. Moore, Grenadier Team Leader Sgt. Douglas McBride, and Grenadiers Robert Scott, Christopher Turiano, Glenn Neville, John Sticca, Lane White, Jeffrey Howell, and George Herr-raising four claims: (1) a claim under 42 U.S.C. § 1983 for excessive use of force during a search or seizure under the Fourth and Fourteenth Amendments; (2) a § 1983 claim for infringement of Plaintiffs' freedom of speech and association rights under the First and Fourteenth Amendments; (3) a § 1983 claim for due process violations under the Fourteenth Amendment; and (4) a § 1983 claim for equal protection violations under the First and Fourteenth Amendments. (Doc. 1, Compl.)
After Plaintiffs voluntarily dismissed certain claims-including the claims in their entirety against Defendants Neville, Sticca, and White-the six Plaintiffs' individual claims remain against Defendants the City, Chief Williams, Lt. Moore, and Sgt. McBride. (Compl.; Doc. 281.) Additionally, the individual Plaintiffs bring claims as follows: Travis against Turiano and Howell; Yedlin against Scott, Howell, and Herr; and Guillen against Scott, Turiano, Howell, and Herr. (Compl.; Doc. 281.)
(Compl. ¶ 112, as altered in Doc. 191.) The damages class consists of only one certified subclass: (a) “All persons who were unlawfully dispersed by the use of gas pepper spray, pepper bullets, or other chemical...
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