Lakiesha McCall v. Jeremy Jacobitz ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAKIESHA MCCALL, Administrator of No. 20-15724
the Estate of Darius McCall,
D.C. No.
Plaintiff-Appellee, 2:18-cv-01319-APG-EJY
v.
MEMORANDUM*
JEREMY JACOBITZ, Officer Badge
#9383; BRIANNA MUENZENMEYER;
COLTON HAFEN; GEORGE RAMIREZ-
MARILLO,
Defendants-Appellants,
and
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; DROCK GAMING, LLC,
DBA The D; RAYMOND THOMPSON,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted July 29, 2021
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: McKEOWN and NGUYEN, Circuit Judges, and HUCK,** District Judge.
Police officers Jeremy Jacobitz, Brianna Muenzenmeyer, Colton Hafen, and
George Ramirez-Marillo (collectively, the “Officers”) of the Las Vegas
Metropolitan Police Department (“LVMPD”) bring this interlocutory appeal after
the district court denied them qualified immunity on Darius McCall’s1 § 1983
claim. We have jurisdiction under 28 U.S.C. § 1291,2 and we affirm.
On October 10, 2017, the security team of a Las Vegas casino called “The
D” informed the LVMPD that McCall may have been dealing drugs in front of The
D. Based on that information, Jacobitz and Muenzenmeyer conducted a Terry stop
of McCall on the second floor of The D. After placing McCall in handcuffs,
Jacobitz and Muenzenmeyer searched his person for weapons (no weapons were
found) and ran a warrant check on him (which came back clean). About ten
minutes into the stop, Jacobitz told McCall that the Officers had “nothing” on him
**
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
1
McCall passed away during the pendency of this appeal. The administrator of his
estate, Lakiesha McCall, has been substituted as the Plaintiff-Appellee.
2
We reject McCall’s jurisdictional challenge, as the Officers’ interlocutory appeal
turns only on issues of law—whether their conduct during their stop of McCall
violated clearly established law. See Behrens v. Pelletier, 516 U.S. 299, 313
(1996) (holding that “determinations of evidentiary sufficiency at summary
judgment are not immediately appealable,” but challenges concerning an abstract
issue of law relating to qualified immunity are immediately appealable); Knox v.
Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997).
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regarding any drug activity. Nonetheless, despite all criminal suspicion justifying
the detention having been dispelled, Jacobitz and Muenzenmeyer continued to
detain McCall—in handcuffs—solely so that The D could have the opportunity to
issue him a trespass warning. A few minutes later, Hafen and Ramirez-Marillo
arrived with members of The D’s security team, who took several more minutes to
issue McCall—still in handcuffs—a trespass warning. Eighteen minutes after the
stop began, McCall was finally uncuffed and escorted out of The D by the
Officers. McCall was cooperative at all times.
“A district court’s decision denying summary judgment on the ground of
qualified immunity is reviewed de novo.” Sjurset v. Button, 810 F.3d 609, 614 (9th
Cir. 2015) (quoting Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009)). We
review the facts in the light most favorable to the nonmoving party. Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017). In determining if
an officer is entitled to qualified immunity, we evaluate whether (i) the alleged
facts show a violation of a constitutional right and (ii) the constitutional right was
clearly established at the time of the violation. Reynaga Hernandez v. Skinner, 969
F.3d 930, 937 (9th Cir. 2020). A right is clearly established if the state of the law
at the time of the adverse action gave the officers fair warning that their conduct
was unconstitutional. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir.
2013). “[I]n an obvious case, [general] standards can ‘clearly establish’ the
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answer, even without a body of relevant case law.” Brosseau v. Haugen, 543 U.S.
194, 199 (2004).
The Officers raise three issues in this appeal. First, the Officers argue that
they are entitled to qualified immunity for their decision to continue detaining
McCall solely so that The D could issue him a trespass warning. We disagree.
It was clearly established in 2017 that a Terry-stop detainee must
immediately be released once the investigation fails to elicit probable cause to
arrest. Florida v. Royer, 460 U.S. 491, 500 (1983) (holding that a Terry stop “must
be temporary and last no longer than is necessary to effectuate the purpose of the
stop”). It was also clearly established that police officers have no authority to
detain someone solely to issue a civil trespass warning (or to allow a private entity
to issue a civil trespass warning). Thomas v. Dillard, 818 F.3d 864, 875 (9th Cir.
2016) (“[T]he officer must have reasonable suspicion ‘the person apprehended is
committing or has committed a criminal offense.’” (emphasis added) (quoting
Arizona v. Johnson, 555 U.S. 323, 326 (2009))). So, once Jacobitz told McCall
that the Officers had “nothing” on him regarding any drug activity, the Officers
needed a separate constitutional basis for further detention. The D’s private
interest in issuing McCall a trespass warning is no such authority—trespass
warnings are not criminal in nature.
Second, Jacobitz and Muenzenmeyer argue that they are entitled to qualified
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immunity for their decision (i) to place McCall in handcuffs at the inception of the
stop and (ii) to continue handcuffing him for the remainder of the stop. Their
arguments are unpersuasive. We recognize that it is sometimes appropriate for
police officers to handcuff a Terry-stop detainee (say, for police safety). However,
“‘handcuffing . . . is not part of a typical Terry stop’” and requires “special
circumstances.” Washington v. Lambert, 98 F.3d 1181, 1188, 1189 (9th Cir. 1996)
(quoting United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982)). Based on
the facts presented—which we view in the light most favorable to McCall, see
Isayeva, 872 F.3d at 946—handcuffing McCall was inappropriate and violated
clearly established law. See Washington, 98 F.3d at 1192; Meredith v. Erath, 342
F.3d 1057, 1062–63 (9th Cir. 2003).
Third, Hafen and Ramirez-Marillo argue that they were not “integral
participants” of any illegal detention or handcuffing upon their return with The D’s
security team. We disagree. Hafen and Ramirez-Marillo brought The D’s security
team over to where McCall was detained so that the security team could decide if
they wanted to issue him a trespass warning. And neither Hafen nor Ramirez-
Marillo uncuffed McCall until he was finally issued a trespass warning. So, Hafen
and Ramirez-Marillo were more than “mere bystanders.” Bravo v. City of Santa
Maria, 665 F.3d 1076, 1090 (9th Cir. 2011).
AFFIRMED.
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