Lakiesha McCall v. Jeremy Jacobitz

NOT FOR PUBLICATION FILED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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