Opening Brief of Defendant-Appellant...Officer ANTHONY VASQUEZ, Individually as a Department of Defense Navy Police Officer Defendant-Appellant On Appeal from the United States District

No. 13-17065 UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER B. CORDEIRO, Individually,

Plaintiff-Appellee

v.

Officer ANTHONY VASQUEZ, Individually as a Department of Defense Navy Police Officer

Defendant-Appellant

On Appeal from the United States District Court District of Hawaii CIVIL NO. 11-00413 (JMS/BMK)

(Honorable J. Michael Seabright)

OPENING BRIEF OF DEFENDANT-APPELLANT

BERVAR & JONES Attorneys at Law A Law Partnership BIRNEY B. BERVAR #5482 Alakea Corporate Tower 1100 Alakea Street, 20th Floor Honolulu, Hawaii 96813 Telephone: (808) 524-7030 Attorney for Defendant-Appellant ANTHONY VASQUEZ

Case: 13-17065, 02/20/2014, ID: 8985478, DktEntry: 13-1, Page 1 of 35

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................... ii JURISDICTIONAL STATEMENT ............................................................... 1 ISSUE PRESENTED...................................................................................... 2 STATEMENT OF THE CASE....................................................................... 2 STATEMENT OF FACTS ............................................................................. 4 SUMMARY OF THE ARGUMENT ........................................................... 15 ARGUMENT ................................................................................................ 16 THE DISTRICT COURT ERRED IN DENYING DEFENDANT ANTHONY VASQUEZ’S MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY A. Standard of Review .................................................................. 16 B. Discussion ................................................................................ 16 1. Defendant Officer Vasquez Did Not Violate Plaintiff Cordeiro’s Constitutional Rights Because Officer Vasquez’s Conduct was Reasonable.............................. 17 2. Officer Vasquez Did Not Violate Clearly Established Law in His Seizure and Treatment of Cordeiro............. 21 CONCLUSION............................................................................................. 28 STATEMENT OF RELATED CASES........................................................ 29


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TABLE OF AUTHORITIES CASES Page Ashcroft v. Al-Kidd 131 S.Ct. 2074 (2011) ............................................................................. 21, 25 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 403 U.S. 388 (1971).................................................................................... 1, 2 Brosseau v. Haugen 543 U.S. 194 (2004)...................................................................................... 24 Butz v. Economou 438 U.S. 478 (1978)...................................................................................... 16 Citizens United v. FEC 130 S.Ct. 876 (2010) ..................................................................................... 17 Graham v. Connor 490 U.S. 386 (1989).................................................................... 17, 18, 19, 25 Groh v. Ramirez 540 U.S. 551 (2004)...................................................................................... 16 Harlow v. Fitzgerald 457 U.S. 800 (1982)...................................................................................... 16 Mitchell v. Forsyth 472 U.S. 511 (1985)........................................................................................ 1 Pearson v. Callahan 55 U.S. 223 (2009).................................................................................. 16, 17 Saucier v. Katz 533 U.S. 194 (2001).......................................................................... 17, 21, 24 Scott v. Harris 550 U.S. 372 (2007)................................................................................ 18, 23


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TABLE OF AUTHORITIES (continued) CASES Page Blanford v. Sacramento County 406 F.3d 1110 (9th Cir. 2005)........................................................................ 16 Brooks v. Seattle 661 F.3d 433 (9th Cir. 2011).............................................................. 24, 25, 27 Bryan v. MacPherson 630 F.3d 805 (9th Cir. 2010)........................................................ 24, 25, 26, 27 Chew v. Gates 27 F.3d 1432 (9th Cir. 1994).......................................................................... 19 Gravelet-Blondin v. Shelton ___ F.3d ___, 2013 WL 4767182 (9th Cir. Sept. 6, 2013) ...................... 26, 27 Headwaters Forest Defense v. County of Humboldt 276 F.3d 1125 (9th Cir. 2002).................................................................. 22, 23 Jackson v. Bremerton 268 F.3d 646 (9th Cir. 2001).......................................................................... 22 Johnson v. Glick 481 F.2d at 1033............................................................................................ 18 La Londe v. County of Riverside 204 F.3d 947 (9th Cir. 2000).......................................................................... 22 Mattos v. Agarano 661 F.3d 433 (9th Cir. 2011).............................................................. 17, 18, 27 Smith v. City of Hemet 394 F.3d 689 (9th Cir. 2005) (en banc) ......................................................... 19 United States v. Cordeiro Cr. No. 09-00308 (D. Haw. Dec. 3, 2009).................................................... 14


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TABLE OF AUTHORITIES (continued) STATUTES Page 18 U.S.C. § 13............................................................................................... 15 18 U.S.C. § 111............................................................................................. 15 28 U.S.C. § 1291......................................................................................... 1, 2 42 U.S.C. § 1983........................................................................................... 26 Hawaii Revised Statutes § 286-102 .............................................................. 14


JURISDICTIONAL STATEMENT Plaintiff Christopher Cordeiro filed a civil rights action against the United

States of America and individual federal police officers Anthony Vasquez and

Wesley Cortez alleging violations of his rights under the Fourth amendment to the

United States Constitution pursuant to Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Docket No. 1, E.R. 43]1

Defendants Officers Vasquez and Cortez each filed a Motion for Summary

Judgment raising an affirmative defense of Qualified immunity as to Cordeiro’s

claim. [Docket Nos. 59, 62, E.R. 52]. The District Court denied these Motions for

Summary Judgment in a written order entitled Order (1) Granting Defendant

Anthony Vasquez’s Motion to Dismiss Count XIV, Doc. No. 60; (2) Denying

Defendant Anthony Vasquez’s Motion for Summary Judgment on the Basis of

Qualified Immunity, Doc. No. 59; and (3) Denying Defendant Wesley Cortez’s

Motion for Summary Judgment Based on Qualified Immunity, Doc. No. 62, filed

October 3, 2013. [Docket No. 81, E.R. 55]. Defendant Vasquez filed a timely

Notice of Appeal on October 11, 2013. [Docket No. 82, E.R. 55]. This court has

jurisdiction to review the denial of qualified immunity pursuant to 28 U.S.C. §

1291. See: Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (Holding “that a district 1 “Docket No.” refers to the United States District Court docket sheets in this matter and “E.R.” refers to the Excerpt of Record filed with this brief. For example, “Docket No. 1, E.R. 43” refers to District Court docket entry number 1, and page 43 of the Excerpt of Record.


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court’s denial of a claim of qualified immunity, to the extent that it turns on an

issue of law, is an appealable ‘final decision” within the meaning of 28 U.S.C. §

1291 notwithstanding the absence of a final judgment.”

ISSUE PRESENTED

Did the District Court err in denying Defendant Officer Vasquez’s Motion

for Summary Judgment based on qualified immunity?

STATEMENT OF THE CASE

On June 24, 2011, Plaintiff Christopher Cordeiro filed a Complaint against

the United States of America and individual federal police officers Anthony

Vasquez, Wesley Cortez and Joseph Clarke alleging violations of his

Constitutional rights and seeking damages from the United States and the

individual officers pursuant to Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Docket No. 1, E.R. 45].

All claims against Defendant Clarke were dismissed by stipulation on

May 31, 2013. [Docket No. 58, E.R. 52].

On June 14, 2013, individual Defendants Officers Vasquez and Cortez each

filed a Motion for Summary Judgment Based on Qualified Immunity. [Docket

Nos. 59, 62, E.R. 52]. Arguments were heard on these motions on September 30,


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2013. [Docket No. 79, E.R. 55]. On October 3, 2013, the district court issued a

written Order (1) Granting Defendant Anthony Vasquez’s Motion to Dismiss

Count XIV, Docket No. 60, (2) Denying Defendant Anthony Vasquez’s Motion for

Summary Judgment on the Basis of Qualified Immunity, Docket No. 59, and (3)

Denying Defendant Wesley Cortez’s Motion for Summary Judgment Based on

Qualified Immunity, Docket No. 62. [Docket No. 81, E.R. 55].

On October 11, 2013, Defendant Vasquez filed a timely Notice of Appeal to

this Court of the District Court’s denial of the Motion for Summary Judgment

based on qualified immunity. [Docket No. 82, E.R. 55].


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STATEMENT OF FACTS

As stated in its Order, the district court viewed the evidence in the light most

favorable to the non-moving party for the purpose of deciding the issue of

summary judgment based on qualified immunity. [Order at p. 3, E.R. 9].2

Therefore, the following facts are Plaintiff Cordeiro’s version of events upon

which the district court issued its order.

On June 29, 2009, at about 2:10 a.m., Plaintiff was driving home from

Kalaeloa Beach, near the former Barbers Point Naval Air Station, in the Kapolei

area of Oahu. Id. Plaintiff was traveling on an isolated part of Coral Sea Road,

which was dark with no street lights. Id. In his rearview mirror, Plaintiff noticed a

vehicle rapidly approaching him from behind. Id. Plaintiff was traveling at or

below the speed limit when the vehicle began tailgating him. The vehicle slowed

down, then accelerated, and again tailgated Plaintiff. [Order at p. 4, E.R. 10].

Plaintiff assumed the vehicle "was a bunch of kids, irresponsible teens." Id.

The vehicle then illuminated blue flashing lights. Id. Plaintiff looked back

and noticed that the vehicle was not marked as a Honolulu Police Department

("HPD") vehicle, but was instead a pickup truck. Id. He admits that his safety 2 “Order” refers to the District Court’s Order (1) Granting Defendant Anthony Vasquez’s Motion to Dismiss Count XIV, Doc. No. 60; (2) Denying Defendant Anthony Vasquez’s Motion for Summary Judgment on the Basis of Qualified Immunity, Doc. No. 59; and (3) Denying Defendant Wesley Cortez’s Motion for Summary Judgment Based on Qualified Immunity, Doc. No. 62, filed October 3, 2013, which is the subject of this appeal, and is included in the Excerpt of Record.


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check had expired, and that he had been pulled over in the past for having an

expired check, but it did not occur to him at the time that he was being pulled over

for an expired check. Id.

Plaintiff was not sure who was following him or whether it was a law

enforcement vehicle at all. Id. In fact, however, it was a DOD police vehicle

driven by Vasquez. Id. Plaintiff states that he had heard of at least three occasions

of individuals impersonating police or security personnel near campgrounds in that

area. Id. "Knowing it was not an HPD vehicle, and traveling in a dark and

secluded area of Coral Sea Road, [he] felt it would be extremely unsafe to stop on

Coral Sea Road, a road with no street lights." Id. Plaintiff did not stop, and

instead slowed to about ten miles per hour. Id. He claims that he planned to drive

to a shopping center located two and a half miles away. Id. He "wanted to just get

to a safe area and have someone witness what was going on." [Order at p. 5, E.R.

11]. Other than slowing, however, there is no indication he communicated that

intent to the driver of the truck that was following him. But he contends that "[a]t

no time did I increase my speed, nor make any aggressive and/or evasive

movements to make the officer believe I was fleeing[.]" Id.

Still going about ten miles per hour, Plaintiff turned from Coral Sea Road

onto Roosevelt Avenue. He then saw another pickup truck with blue lights,

traveling toward him in his lane and flashing its high beams at him. Id. This


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second vehicle was also a DOD police vehicle, driven by Cortez. Id. Plaintiff

"immediately pulled half way off the paved lane and came to a complete stop." Id.

Vasquez and Cortez, wearing a type of police uniform, approached Plaintiff’s

vehicle. At that point, Plaintiff admits he realized that they were DOD police

officers, not impersonators. Id. (Plaintiff also admits that he had previously seen

Navy police officers patrolling in that area in pickup trucks. Id.)

Plaintiff remained in his vehicle, and rolled the window down. Id. Vasquez,

who had been in the trailing vehicle, "immediately and aggressively approached

the driver's side of [Plaintiffs] window and started shouting `get out of the vehicle

and lay on the ground!"' [Order at p. 6, E.R. 12]. Vasquez did not identify himself

as a police officer, and did not ask Plaintiff for any "paperwork" such as his

driver's license or identification. Id. Plaintiff then asked Vasquez "why do I need

to get out of my car and lie on the road? what happened?" Id. "I questioned him

why. What did I do[?] Identify me first." Id. He states, "I can recall questioning

him humbly with respect why [do] I need to get out of the vehicle and lay on the

ground." Id. Vasquez, however, continued to instruct Plaintiff to just get out of

the vehicle and lay face down. Id.

Plaintiff attests that "[f]eeling threatened and harassed, I picked up my

phone to call 911 as I knew I was on City and County of Honolulu land and thus

under HPD jurisdiction." Id. He testified that "I told [Vasquez] you need to call


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HPD to witness this." Id. Vasquez ordered Plaintiff to put his cell phone down,

saying "HPD was not needed for assistance." Id.3 Plaintiff put his cell phone

down without calling 911. [Order at pp. 6-8, E.R. 12-14.]

3 Cortez, who was driving the second vehicle, testified that he knew the officers did not have jurisdiction where they were, and that Vasquez was not in distress:

Q. In 2009, do you know what the perimeters of, what we're calling, the Kalaeloa area is? A. As far as I know, Coral Sea was not ours, but where we landed, uh, I believe that wasn't ours. Q. What do you mean where you landed? A. Where everybody stopped. …. Q. And you said that it wasn't ours, the Coral Sea Road and the area where you, Officer Vasquez, and the Plaintiff, Mr. Cordeiro, stopped. A. I believe so. Q. Whose was it? A. HPD. Q. Were you aware of that at the time that you came to a stop with Mr. Vasquez? A. Yes. Q. And why did you stop Mr. [Cordeiro] if you knew that you didn't have jurisdiction? A. Just to back my officer up. Q. Do you have any idea why Mr. Vasquez stopped him? Do you know if Mr. Vasquez knew that that was not Navy jurisdiction? A. He had just started so he didn't know the fine line jurisdiction areas yet. …. A…. It was just basic protocol that we back our officers up. Q. And why is that? A. Officer safety. Q. If you know that an officer is not abiding by the jurisdiction of the Navy police, you still back them up? A. If he's in distress, yes. Q. Was Mr. Vasquez in distress? A. No. (Footnote continued on next page)


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Plaintiff refused to exit his vehicle, explaining several times that he wanted

to wait until HPD officers arrived. [Order at p. 8, E.R. 14]. Plaintiff states that "as

a result of the DOD officers['] refusal to call local law enforcement, I felt unsafe,

vulnerable and harassed." Id. "I refused to exit my vehicle as I had committed no

crime." Id. "I was just thinking they got the wrong person." Id. "I was just afraid.

The way they stopped me and the way they approached me I just was afraid." Id.

Plaintiff again asked Vasquez to call HPD, but Vasquez responded "HPD is not

needed." Id.

Plaintiff contends that "[a]t this point I asked [Vasquez] if they knew who I

was, since they never asked me for my driver's license or vehicle documentation."

Id. Vasquez replied, "It doesn't matter ... Just get out of the f***ing vehicle! ...

You're not complying with us. Get out of your vehicle NOW!" Id. When Plaintiff

did not comply, Vasquez removed his sidearm and pointed it at Plaintiff's face, and

(Footnote 3 continued) Q. May the record reflect the witness is laughing. [Counsel for Defendants]: That's not an accurate description. …. Q. … And why did you laugh or chuckle[]? …. A. Because I knew right away that this was going to go south. What I mean by that, it first started off with a safety check, and that's not a big deal, to chase somebody down on Coral Sea, obviously, that’s not the way I would have ran that situation.

[Order at pp. 6-8, E.R. 12-14].


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again yelled, "[g]et out of your vehicle now and lay down with your arms spread!"

[Order at p. 9, E.R. 15].

Plaintiff describes being shocked with having a pistol pointed at his face,

claiming that "I then calmly, peacefully asked [Vasquez] `Are you going to shoot

me?"' Id. He states that "I crossed my arms and sat back as [Vasquez] continued

to point his pistol at my head." Id. "I asked, in a soft, calm voice: `Why are you

pointing your gun at me?' After hearing this again, [Vasquez] yelled in an

intimidating tone: `Get out of the car now or I'm going to shoot you! "' Id.

Plaintiff claims he then told Vasquez: "Bruddah ... you better put your gun back in

the holster before you lose your job tomorrow!" Id.

After pointing his firearm at Plaintiff for about two minutes, Vasquez re-

holstered the firearm. Id. Cortez, who had approached in the meantime, then

walked around Vasquez "from the back and grabbed something from his belt." Id.

Cortez then pointed a "black looking object" at Plaintiff's face. Plaintiff heard

Vasquez say "something like `shoot,"' Id., and Cortez then sprayed Plaintiff’s face

twice with pepper spray. Id. Plaintiff testified that his vehicle was in park, with

the ignition off, and that he never took the keys out of the ignition. Id. Construing

the evidence in the light most favorable to Plaintiff, the district court found that the

use of the pepper spray was several minutes after Plaintiff had put his cell phone

down, after Vasquez put the gun away, and while Plaintiff "sat back" with "crossed


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arms," [Order at p. 10, E.R. 16], or while Vasquez was holding Plaintiff's left arm.

Id.

Vasquez and Cortez then pulled Plaintiff out of his vehicle and handcuffed

him. Id. "The handcuffs were clamped so excessively tight[] on [Plaintiff’s] wrists

that deep bruising occurred that lasted for two and [one] half weeks." Id.

Despite using pepper spray, the court noted that Cortez testified in an earlier

deposition that Plaintiff was not a threat to him (at least at some points in time):

Q…. Does [Plaintiff] turn around to pick up his keys because his keys were behind him, right?4 A. Yes. Q. At that point, what do you tell him to do? A. I keep telling him to stop, get away from your vehicle, and try to get him on the ground. Q. How did you try to get him on the ground? A. Just verbal commands still yet because he wasn't a threat. …. Q. And why wasn't Mr. [Cordeiro] a threat at the time? A. No weapons, it was just verbal abuse to us anyway, at the time. …. Q. So you didn't hear him and understand him to say anything physically aggressive like he wanted to fight with you guys?

4 Cortez provides a different account of events. He claims that Plaintiff threw his keys out the window of his car, and later stepped out of his vehicle (about three feet away) and retrieved them. Doc. No. 74-1, Cortez Depo. at 98-99. Cortez claims that when he picked up his pepper spray, Plaintiff "started the car and lunged toward me." Id. at 99. Cortez then "[kept] telling him to stop, get away from your vehicle, and tr[ied] to get him on the ground." Id. at 100. [Order at p. 11, E.R. 17].


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A. Fight? All I heard him say were a few swear words: F*** you guys, you guys are pigs, nothing that I hear that he wanted to be physical with me.

[Order at p. 11, E.R. 17]. As for his use of pepper spray, the court considered that

Cortez described the incident in his deposition as follows (again, appearing to have

not been in immediate threat of harm):

A. I was aiming for the forehead. Q. And do you know where you hit? A. Somewhere on the head. Q. And at the time Officer Vasquez is holding his left arm, Mr. Cordeiro is still in the car, at that time? A. I believe so, yes. …. Q. Is he still holding Mr. Cordeiro's left arm? A. I believe so. Q. And why did you spray Mr. Cordeiro with Mace? A. Very belligerent, resisting arrest. I sprayed him so that we can immobilize him, search him, for our safety. Q. Was he being physically resistant? A. Yes, for a short time then it. [sic] Q. What does that mean, a short time? A. Well, when you touch somebody you're going to automatically, you know, brush them off or push them off.


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Q. So you're telling me when Mr. Vasquez grabbed Mr. Cordeiro's arm, he flinched or reacted by pulling his arm back or something like that? A. Yes. Q. And would you say that's a natural reaction? A. Natural reaction. Q. Would you say that's initiating some sort of fight? A. No. Q. Would you say you were threatened by Mr. Cordeiro? [Government counsel]: Objection, vague as to time. Q. Were you threatened at the time Mr. Cordeiro's left am was being held by Mr. Vasquez? A. No.

[Order at pp. 11-13, E.R. 17-19]. The district court further noted Cortez also

testified in the deposition that Plaintiff was never a threat "as a criminal":

Q. Were you trained to allow a suspect, after he's been handcuffed and suspected of a crime and a felony stop has occurred, to get on his feet and he's been sat on the ground with his hands cuffed behind his back? A. Well, I didn't think of him as a criminal then because this was just a safety check issue. Q. Thank you. And so was Mr. Cordeiro a threat to you? [government counsel]: Objection, vague as to time.


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Q. Was Mr. Cordeiro ever a threat to you during this whole incident? A. Him a threat to me? Q. Yes. A. As a criminal, no.

[Order at pp. 13-14, E.R. 19-20]. Later, Cortez was again asked at his deposition:

"Did Mr. Cordeiro ever threaten you?," and he answered, "Did he ever threaten me,

no." [Order at p. 14, E.R. 20].

Plaintiff claimed that he was kept lying face down on the road with an

officer's knee on his back for approximately an hour before an ambulance arrived.

Id. He attests that, "[a]t no time was I physically combative or resisting being

removed from my vehicle and handcuffed." Id. He claims that, "[t]he only thing

on my mind was the burning sensation to my eyes and face resulting from being

sprayed with mace." Id. He asked officers to clean the mace off his face, but

"[t]he officers refused ... and stated that they would be calling for an ambulance

shortly." Id.5 He states: "I also requested that the officers loosen my handcuffs at

5 Cortez testified that he allowed Plaintiff to stand up after being handcuffed, but agrees that he refused to clean Plaintiff's face:

Q. So then you allowed Mr. Cordeiro to stand up on his feet on the side of the road? A. Yes. Q. What happens next? (Footnote continued on next page)


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least three (3) times as I could feel throbbing in my wrists, but they would not."

[Order at p. 15, E.R. 21]. Plaintiff was then escorted by DOD officers to a military

installation in West Loch or Iroquois Point. Id.

Cordeiro claimed that: "During my entire encounter with the DOD Officers I

never made any threatening statements to the officers. I was calm and only wanted

to protect myself from their threatening behavior and have HPD officers witness

what was taking place, which I believed was my rights as I was on HPD

jurisdiction." [Order at p. 17, E.R. 23].6

(Footnote 5 continued) A. I believe he asked me if I could wipe his face down with a cloth. I think I said no because I didn't have one, to my knowledge. Q. And then what happened? A. That's it. I just stood there and watched him. Q. You stood there watching him until the ambulance came? A. Yes. Q. And when the ambulance came what happened next? A. The ambulance then took him to inside their vehicle to decontaminate him. Q. And how long was it between the time that Mr. Cordeiro was sprayed with Mace, in you estimation, to the time that EMT's arrived? A. I'd say about 30 to 45, I believe. I'm not sure. Q. And at what time were the EMT's called? A. I have no idea.

Id. at pp. 14-15. [Order at p. 14, E.R. 20]. 6 The district court took judicial notice of its court records confirming that a criminal Information was filed against Plaintiff on August 3, 2009. Doc. No. 1, United States v. Cordeiro, Cr. No. 09-00308 (D. Haw. Aug. 3, 2009). The Information alleged a count of violating Hawaii Revised Statutes § 286-102 (Footnote 6 continued on next page)


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SUMMARY OF THE ARGUMENT

The District Court erred in finding that Defendant Officer Vasquez was not

entitled to qualified immunity for his actions in controlling and arresting a non-

compliant suspect, who refused to stop for the police, then resisted all police

commands while remaining at the wheel of his vehicle with his keys in the

ignition. Officer Vasquez’s actions were reasonable, and it was not clearly

established law at the time that officer Vasquez’s actions were constitutional

violations.

(Footnote 6 continued) (applicable under 18 U.S.C. § 13), for "knowingly operat[ing] a motor vehicle without first being appropriately examined and duly licensed as a qualified driver," and three counts of violations of 18 U.S.C. § 111, which provides:

(a) In general. -- Whoever -- (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title [any officer or employee of the United States] while engaged in or on account of the performance of official duties; or (2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

Id. The docket also reflects that, on December 1, 2009, the government dismissed the Information without prejudice "in order to allow the Government to conduct further investigation." Doc. No. 14 at 2, United States v. Cordeiro, Cr. No. 09-00308 (D. Haw. Dec. 3, 2009). Whatever investigation followed, no new charges were filed. [Order at p. 17, E.R. 23].


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ARGUMENT

THE DISTRICT COURT ERRED IN DENYING DEFENDANT ANTHONY VASQUEZ’S MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY.

A. Standard of Review

This court reviews de novo a district court’s denial of summary

judgment on the basis of qualified immunity. Blanford v. Sacramento County, 406

F.3d 1110, 1114 (9th Cir. 2005).

B. Discussion

The doctrine of qualified immunity protects government law enforcement

officers “from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity shields an officer from liability even if his or her action resulted from a

mistake of law, a mistake of fact, or a mistake based on mixed questions of law

and fact. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Qualified immunity

covers “mere mistakes in judgment, whether the mistake is one of fact or one of

law.” Id. citing Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,

dissenting) quoting Butz v. Economou, 438 U.S. 478, 507 (1978). The purpose of

qualified immunity is to strike a balance between the need to hold police officers

accountable when they exercise power irresponsibly and the need to shield officers


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from harassment, distraction and liability when they perform their duties

reasonably. Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011).

The Supreme Court established a two-step test for courts to determine

whether an officer is entitled to qualified immunity: First, whether the facts as

alleged by the plaintiff make out a violation of a constitutional right, and second,

whether that constitutional right was “clearly established at the time of the

violation.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds

by Citizens United v. FEC, 130 S.Ct. 876 (2010). However, in Pearson v.

Callahan, 555 U.S. 223 (2009), the Supreme Court held that the strict two-step

analysis was not mandatory and that judges are now permitted to exercise their

discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case. Id. at

818.

1. Defendant Officer Vasquez Did Not Violate Plaintiff Cordeiro’s Constitutional Rights Because Officer Vasquez’s Conduct was Reasonable.

All claims that law enforcement officials have used excessive force in the

course of an arrest, investigatory stop, or other seizure of a citizen are properly

analyzed under the Fourth Amendment’s “objective reasonableness” standard.

Graham v. Connor, 490 U.S. 386, 388 (1989). “The ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer


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on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. As the

court elaborated:

With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F.2d, at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation. As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

Id. The Supreme Court has emphasized that there are no per se rules in the

Fourth Amendment excessive force context, but rather, courts “must still slosh

[their] way through the factbound morass of ‘reasonableness.’” Scott v. Harris,

550 U.S. 372, 383 (2007). Even if an officer’s actions constituted an application of

deadly force, all that matters is whether the officer’s actions were reasonable. Id.

The Ninth Circuit applies the Graham reasonableness test by looking at the

totality of the circumstances and whatever specific factors may be appropriate in a

particular case, whether or not listed in Graham. Mattos 661 F.3d at 441. This

totality of the circumstances includes the Graham test of considering the nature and

quality of the intrusion and the governmental interests at stake by looking at (1)


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how severe the crime at issue is, (2) whether the suspect posed an immediate threat

to the safety of the officers or others, and (3) whether the suspect was actively

resisting arrest or attempting to evade arrest by flight. Id. However, in assessing

the governmental interests at stake, the court is free to consider issues outside the

three enumerated above. Id. “Ultimately, the ‘most important’ Graham factor is

whether the suspect posed an ‘immediate threat to the safety of the officers or

others.’” Id. citing Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en

banc) quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).

The allegations of excessive use of force in this case are essentially

threefold: (1) the drawing of weapons and verbally commanding Cordeiro to exit

his car and get on the ground; (2) the OC “pepper” spraying of Cordeiro when he

refused to exit his vehicle, with Vasquez agreeing to Officer Cortez’s spraying of

Cordeiro by telling Cortez to “shoot”; and (3) physically removing Cordeiro from

his vehicle, handcuffing him and placing him on the ground.

The District Court erred in finding that “the Graham factors all indicate an

excessive use of force.” Order at p. 27. Rather, applying the Graham factors to the

totality of circumstances in this case reveals that all of Officer Vasquez’s actions

were objectively reasonable in light of the facts and circumstances confronting

him. Although the severity of offense, expired registration and safety check, is

minor, it is outweighed by Plaintiff’s conduct of flight to evade arrest and the


20

danger he posed to the officers or others. Indeed, Cordeiro’s flight and non-

compliance with officer commands takes a minor situation and escalates it to a

more severe one, requiring an increase in the officers’ level of force. Cordeiro

evaded arrest by refusing to pull over for several miles. Then, when he did pull

over, he actively resisted by refusing to get out of his vehicle when commanded to

by the officers. One critical fact overlooked by the District Court was that

Cordeiro remained in his vehicle with the keys in the ignition. With a quick twist

of the wrist Cordeiro possessed an automobile as a weapon and posed a potential

deadly threat to each of the officers. This non-compliant active resistance created

an immediate threat to the safety of the officers or others. Given Cordeiro’s flight

and active non-compliant resistance, Defendant Officer Vasquez’s actions of

drawing his weapon, telling Officer Cortez to OC “pepper” spray Cordeiro and

then of pulling Cordeiro out of his car onto the ground and handcuffing him were

objectively reasonable. Therefore, Officer Vasquez’s actions were not an

excessive use of force and were not a violation of the Fourth Amendment.

If this court were to uphold the District’s Court’s order, it is essentially

setting a precedent that a suspect may make his own decisions when and where to

pull over for a police officer and for which police agency or officer he will comply.


21

2. Officer Vasquez Did Not Violate Clearly Established Law in His Seizure and Treatment of Cordeiro.

A second inquiry is whether the constitutional right the police officer is

alleged to have violated has been “clearly established” such that it is sufficiently

clear that a reasonable officer would understand that what he is doing violates that

right. Saucier v. Katz, 533 U.S. at 202. “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Id.

“If the law did not put the officer on notice that his conduct would be clearly

unlawful, summary judgment based on qualified immunity is appropriate.” Id. To

be clearly established law does “not require a case directly on point, but existing

precedent must have placed the statutory or constitutional question beyond

debate.” Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083 (2011).

As stated above, Plaintiff’s excessive force claim against Officer Vasquez

relates to three actions: (1) drawing of the weapon and commanding Cordeiro to

exit the vehicle, (2) the OC “pepper” spraying of Cordeiro, and (3) forcibly pulling

Cordeiro from his car and handcuffing him on the ground. The most severe of

these three acts is the spraying of the OC “pepper” spray, an act which Officer

Vasquez did not perform, but which, according to Cordeiro, he at least acquiesced

to if not directed, when Officer Vasquez said to Officer Cortez, “shoot.”


22

The Ninth Circuit has upheld the use of pepper spray to bring a suspect

under control. La Londe v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000).

The court noted that only after a person surrendered or was rendered helpless

would the use of pepper spray be excessive force:

The same principle is applicable to the use of pepper spray as a weapon: the use of such weapons (e.g., pepper sprays; police dogs) may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force.

Id. In Jackson v. Bremerton, 268 F.3d 646 (9th Cir. 2001), the Ninth Circuit

found no Fourth Amendment violation for an officer to spray a chemical irritant on

the hair of a female who was interfering with the arrest of another, and then to

shove her to the ground, handcuff her, roughly pull her to her feet and put her into

a police car with the windows rolled up in ninety degree heat. Id. at 653.

The Ninth Circuit has only found the use of pepper spray to be unreasonable

excessive force when used against persons already in custody or non-violent,

passive civil protestors. Headwaters Forest Defense v. County of Humboldt, 276

F.3d 1125 (9th Cir. 2002). In Headwaters, non-violent protestors of the logging of

ancient redwood trees had locked themselves together by placing their arms in self-

releasing lock down devices called black bears. Id. at 1127-28. While the

protestors could themselves release the devices, the police could safely cut them


23

apart in a matter of minutes with a hand held grinder. Id. Rather than cut the

devices, the police told the protestors to release the devices or they would be

pepper sprayed. Id. After the protestors refused to release, the police forcibly held

the protestors’ heads back and applied pepper spray with a Q-Tip to their eyes, and

then pried open their eyes and applied pepper spray directly on them as the

protestors stood with their arms locked together. Id. at 1128-29. The Ninth Circuit

found this use of pepper spray unreasonable because it was not necessary to

subdue, remove or arrest the protestors. Id. at 1130.

When Cordeiro was stopped by Officers Vasquez and Cortez on June 29,

2009, the clearly established law of the Ninth Circuit regarding the use of OC

“pepper” spray was that it was not a Fourth Amendment violation to use it to bring

a non-compliant arrestee under control. Rather, the use of pepper spray was only

excessive force if used against one who had surrendered, was rendered helpless, or

was a peaceful, passive, non-violent protestor who presented no threat whatsoever.

In fact, in cases of actively resisting and/or fleeing suspects, the Supreme

Court has approved the use of even deadly force where the non-compliant suspect

poses a threat. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court held

that a police officer acted reasonably and thus did not violate the Fourth

Amendment when the officer rammed the suspect’s car to terminate a high speed

chase, causing the suspect to run off the road and crash. Id. at 385-386. In


24

Brosseau v. Haugen, 543 U.S. 194 (2004), the Supreme Court held for qualified

immunity of a police officer who shot a suspect fleeing in a vehicle on the grounds

that it was not “clearly established” that the officer violated the Fourth

Amendment. Id. at 201. “Brosseau’s actions fell in the ‘hazy border between

excessive and acceptable force’ Saucier v. Katz, 533 U.S. at 206. The cases by no

means ‘clearly establish’ that Brosseau’s conduct violated the Fourth

Amendment.” Id.

In two cases that occurred before the incident in this case, but which were

decided after, the Ninth Circuit upheld qualified immunity for police officers who

used taser stun guns against unarmed, non-threatening, non-fleeing suspects who

were stopped for minor traffic violations on the basis that such conduct was not a

“clearly established” violation of the Fourth Amendment. Brooks v. Seattle, 661

F.3d 433 (9th Cir. 2011); Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010). In

Brooks, Seattle police repeatedly used a taser on a seven-month pregnant driver

when she refused to get out of the car to be arrested for refusing to sign a citation

for going 32 mph in a 25 mph school zone. Id. at 436-37. While the court

concluded that this conduct was excessive force, the court upheld the granting of

qualified immunity to the officers because the law was not “clearly established”

that such action was a Fourth Amendment violation:

In sum, when the defendant officers tased Brooks, there were three circuit courts of appeal cases rejecting claims that the use of a


25

taser constituted excessive force; there were no circuit taser cases finding a Fourth Amendment violation. … We cannot conclude, however, in light of these existing precedents, that “every ‘reasonable official would have understood’ … beyond debate” that tasing Brooks in these circumstances constituted excessive force. al-Kidd, 131 S.Ct. at 2083 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034) (emphasis added) (citation omitted). Moreover, the violation was not so obvious that we can “define clearly established law at a high level of generality,” finding that Graham alone renders the unconstitutionality of Brooks’s tasing clearly established. Id. at 2084. We therefore follow the example of our court’s three-judge panel in Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010). In Bryan, we held that the use of a taser constituted excessive force, but we concluded that the defendant officer was entitled to qualified immunity. The tasing in Bryan took place in 2005, and we observed that in that year “there was no Supreme Court decision or decision of our court addressing” the use of a taser in dart mode. Id. at 833. As a result, we concluded that “a reasonable officer in Officer MacPherson’s position could have made a reasonable mistake of law regarding the constitutionality of the taser use in the circumstances” confronted. Id.

Id. at 448. In Bryan, 630 F.3d 805 (9th Cir. 2010), as noted above, the Ninth Court

similarly concluded that, despite a Fourth Amendment violation, the officer was

entitled to qualified immunity:

WARDLAW, Circuit Judge, joined by Judges PREGERSON, REINHARDT, and W. FLETCHER, concurring in the denial of rehearing en banc: The panel paid the “require[d] careful attention to the facts and circumstances of [this] case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight,” Graham v. Connor,


26

490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We concluded that Officer Brian MacPherson used excessive force when, on July 24, 2005, he deployed his X26 taser in dart mode to apprehend Carl Bryan for a seatbelt infraction, where Bryan was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer. See Bryan v. MacPherson, 608 F.3d 614, 618 (9th Cir. 2010). At the heart of our holding was the conclusion that the X26 taser and similar devices, when used in dart mode, constitute an “intermediate, significant level of force that must be justified by the governmental interest involved.” Id. at 622. We nonetheless concluded that Officer MacPherson was entitled to qualified immunity from Bryan’s 42 U.S.C. § 1983 suit, because this principle was not clearly established in 2005 when Officer MacPherson deployed his dart gun on Bryan. See Id. at 629. A majority of the active judges of our court voted against rehearing en banc, and I concur.

Id. at 809. The District Court cites the recent case of Gravelet-Blondin v. Shelton, ___

F.3d ___, 2013 WL 4767182 (9th Cir. Sept. 6, 2013), for the proposition that “the

law as it relates to the specific uses of force at issue in this case was clearly

established before the 2009 incident.” [Order at p. 33, E.R. 39]. However,

Gravelet-Blondin, another case occurring before the incident in this case but

decided after, can be distinguished from the facts of this case in several critical

respects. First, Gravelet-Blondin was merely a bystander, 37 feet away from the

officer, simply observing the police behavior with respect to another person.

Gravelet-Blondin, 2013 WL 4767182 at 1. As such, Gravelet-Blondin was truly

engaged in mere passive behavior. Second, Gravelet-Blondin failed to comply


27

with the officer’s commands “for only a few seconds.” Id. at 10. Finally,

Gravelet-Blondin engaged in no behavior that could have been perceived by

officers as threatening or resisting. Id. Thus, the few seconds of passive non-

compliance to a police command by an observing bystander clearly distinguishes

the situation in Gravelet-Blondin from those in Brooks, Bryan, Mattos and this

case.

Therefore, at the time of the incident in this case with Plaintiff Cordeiro on

June 29, 2009, the law of this circuit was not “clearly established” that even the

tasings of an unarmed, non-threatening, seven month pregnant woman (Brooks), or

an obviously unarmed, non-threatening and non-fleeing seatbelt violator (Bryan)

was a Fourth Amendment violation. If at the time of this incident, the more severe

taser force used in Brooks and Bryan still warranted qualified immunity, then

surely the lesser force used by Officer Vasquez in this case merits the granting of

qualified immunity. Even assuming a Fourth Amendment violation, the law was

not clearly established that Officer Vasquez’s conduct was “beyond debate” that it

was a Fourth Amendment violation.


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CONCLUSION

For the foregoing reasons, Defendant-Appellant Anthony Vasquez requests

that this court reverse the Order of the District Court and grant Vasquez’s Motion

for Summary Judgment, finding that Vasquez is entitled to qualified immunity.

DATED: Honolulu, Hawaii, February 20, 2014. /s/ Birney B. Bervar BIRNEY B. BERVAR Attorney for Defendant-Appellant ANTHONY VASQUEZ


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STATEMENT OF RELATED CASES

Defendant-Appellant Anthony Vasquez is aware of one related case, that of

co-Defendant Wesley Cortez, Christopher Cordeiro v. Wesley Cortez, CA No.

13-17062, D.C. No. 1:11-cv-00413-JMS-BMK, which involves the same issues as

this appeal.

DATED: Honolulu, Hawaii, February 20, 2014. /s/ Birney B. Bervar BIRNEY B. BERVAR Attorney for Defendant-Appellant ANTHONY VASQUEZ


UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

9TH Circuit Case No. 13-17065

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 20, 2014. I hereby certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system as follows: ELIZABETH JUBIN FUJIWARA [email protected] Attorney for Plaintiff SAMUEL W. BETTWY [email protected] Attorney for Defendant United States of America EWING MASON MARTIN, III [email protected] DAVID MICHAEL PLONA [email protected] Attorneys for Defendant Wesley Cortez DATED: Honolulu, Hawaii, February 20, 2014. /s/ Birney B. Bervar BIRNEY B. BERVAR Attorneys for Defendant-Appellant ANTHONY VASQUEZ


Documents

Opening Brief of Defendant-Appellant...Officer ANTHONY VASQUEZ, Individually as a Department of Defense Navy Police Officer Defendant-Appellant On Appeal from the United States District