Arizona Cases July 25, 2023: Barnes v. Mingura

Case Description

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ORDER

Honorable Jennifer G. Zipps United Stales District Judge

Plaintiff Kevin Barnes, who is represented by counsel, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 11.) Defendants Steven Mingura and Sheriff Preston Allred move for summary judgment. (Docs. 95, 92.) The motions are fully briefed. (Docs. 103, 123, 127, 129.) For the following reasons, the Court will deny Mingura's Motion, and deny Allred's Motion in part and grant it in part.

BACKGROUND

In his First Amended Complaint, Barnes brings claims against Graham County Sheriff Preston Allred and former Deputy Steven Mingura for violations of his Fourth and Fourteenth Amendment rights. (Doc. 11.) In Count One, Barnes alleges that Mingura intentionally used unnecessary and excessive force when arresting him on November 16, 2017. ( Id. ¶ 16.) In Count Two, Barnes alleges that Sheriff Allred violated his constitutional rights under a Monell theory based on deficiencies in the hiring, retention, training,

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supervision, and discipline of Mingura. ( Id. ¶ 19-25; see Monell v. Dep't of Soc. Servs. of New York , 436 U.S. 658 (1978).)

In their motions for summary judgment, Defendants argue that Barnes' claims are barred by Heck v. Humphrey , Mingura's force was reasonable, Mingura is entitled to qualified immunity, and Allred is not liable in his official capacity. (Docs. 92, 95; see Heck v. Humphrey , 512 U.S. 477 (1994).)

SUMMARY JUDGMENT STANDARD

A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323.

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. , Ltd. v. Fritz Co. , Inc. , 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a material factual dispute, and that the dispute is genuine, that is, the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co. , 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor. First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288-89 (1968). However, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. , Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson , 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw

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all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

FACTS

I. November 16, 2017 Incident

On November 16, 2017, Barnes' spouse called 911 to report that Barnes was being verbally aggressive and throwing things. (Doc. 96 ¶ 12.) Graham County Sheriff's deputies responded to the Barnes residence, but Barnes was not there. ( Id. ¶ 13.) Shortly after the deputies left, Barnes returned to the residence and his spouse again called 911. ( Id. ¶ 14.) The deputies responded once again; Deputy Schysm, who is not a party to this action, was the first to arrive. ( Id. ¶ 15.) When Deputy Schysm entered the residence, Barnes was sitting in a lounge chair; his spouse and their two minor children were also present. ( Id. ¶ 16.)

Mingura was parked within a few miles of the Barnes residence when he heard the dispatch for deputies to respond. (Doc. 104 ¶ 74.) He called his supervising sergeant and told him that he would “try to stay out of this one,” but drove out to the area “because ‘he knew how Kevin is.'” ( Id. ¶¶ 30, 73; Doc. 104-7 at 60.) Ultimately, Mingura went to the

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Barnes residence and waited outside on the front patio next to the open door; non-party Deputies Haralson and Martin arrived and went inside the home. (Doc. 96 ¶¶ 17, 18.) The three deputies inside spoke with Barnes, and one asked, “Kevin, you wanna stand up for me?” (DVD, Ex. 3 2:19-2:22.) Video of the interaction shows Barnes refused. A deputy stated, “Yes, you're under arrest.” ( Id. ) Barnes responded, “No, I'm not.” ( Id. ) Two deputies physically brought Barnes to his feet, holding on to Barnes' left arm and the back of his neck. ( Id. 2:22-2:27.)

Mingura entered the home as soon as Barnes was told that he was under arrest, and walked around and in front of Barnes so that he was standing face-to-face with Barnes as the other deputies stood him up. (Doc. 104 ¶ 75; DVD, Ex. 3 2:22-2:30.) The three deputies were holding Barnes from behind and the side. (Doc. 96 ¶ 30; Doc. 104 ¶ 33.) The parties dispute whether Barnes resisted at this point, but the video shows that Mingura grasped Barnes' t-shirt near the shoulder with his left hand, and wrapped his right arm around Barnes' neck. (Doc. 104 ¶ 77; DVD, Ex. 4 4:49-4:54) Barnes responded, “get your hand off me,” and grasped Mingura's left arm with his right hand. (Doc. 96 ¶ 33; DVD, Ex. 3 2:36-2:38.) As soon as Barnes touched Mingura's arm, Mingura initiated a “takedown”

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and brought Barnes down to the floor. (Doc. 96 ¶ 34; Doc. 104 ¶¶ 34, 79; DVD, Ex. 3 2:39-2:41.) As he came down, Barnes let go of Mingura's wrist and attempted to use his right arm to break his fall. (Doc. 104 ¶¶ 37, 80.) Barnes landed on his stomach with his face close to a metal ventilation grate on the floor. (Doc. 96 ¶ 34; DVD, Ex. 2 9:44-9:46.) The video shows that Barnes' right arm was flat on the floor, near Mingura's legs, as Mingura shifted his weight over Barnes and pushed him into the floor. (DVD, Ex. 3 2:45- 2:47.) Meanwhile, Barnes' daughter continued to attempt to interfere with the arrest, encouraging the Barnes family dog to “go get” and “sic” the officers. (Doc. 96 ¶¶ 35, 39.) Deputy Martin disengaged with Barnes to move the daughter away and restrain her. (Doc. 96 ¶ 40.)

On the floor, Mingura, Deputy Schysm, and Deputy Haralson surrounded Barnes. (Doc. 96 ¶ 36; DVD, Ex. 2 9:45-10:10.) Deputy Schysm had control of Barnes' left arm, while Mingura was positioned over Barnes' upper body and delivered one closed-fist strike to Barnes' head. (DVD, Ex. 2 9:45-9:49.) Mingura pressed Barnes' face to the floor over the grate, then stated in a normal volume, “he tried grabbing my balls.” ( Id. 9:51-9:53.)

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Mingura asserts that he delivered the fist strike after Barnes failed to obey commands and “to make Plaintiff let go of his testicles.” (Doc. 96 ¶ 7.) The body camera footage shows that Mingura struck Barnes in the head before he said that Barnes had tried to grab his testicles, and before he said, “let go”. (DVD, Ex. 2 9:45-9:56.)

After delivering the fist strike, and with his knee on Barnes' back, Mingura lifted up Barnes' head with two hands and hit it against the metal floor grate three times in rapid succession. ( Id. 9:53-9:56.) Mingura and the other deputies then pulled Barnes' right arm back behind his back, while Mingura said, “don't ever grab my balls, Kevin.” ( Id. 9:59- 10:06.) Barnes' hands were fully restrained in the next five to six seconds; Mingura's knee remained on Barnes' back. ( Id. 10:04-10:10.) Approximately one minute and 51 seconds elapsed between the time that Barnes was told he was under arrest and when the deputies picked him up off the floor in handcuffs. (DVD, Ex. 3 2:22-4:13.) Mingura's use of force fractured several bones in Barnes' face, including his orbital eye-socket, maxilla, nasal bone, and nasal septum. (Doc. 104 ¶ 48.)

In 2018 in Graham County Superior Court, Barnes pleaded guilty to disorderly conduct, passively resisting arrest, and assault, in violation of A.R.S. §§ 13-2904, 13-2508, 13-1203(A)(3), for his conduct on November 16, 2017. (Doc. 96 ¶ 64.) At the

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change of plea hearing, Barnes' attorney provided the factual basis for the resisting arrest and assault charges as follows:

When the police arrived, the body camera shows that Mr. Barnes was seated in a recliner or an armchair. They asked him repeatedly to stand up-he refused to do so. An officer placed his hand on the back of Mr. Barnes' neck and lifted and shoved him forward in order to get him to his feet. And we believe that that forms the factual basis for resisting arrest by passive resistance.

. . .

After he was on his feet, Officer Mingura placed his left hand on the right shoulder of Mr. Barnes as is clearly shown in the videotape. Mr. Barnes as clearly shown said get your hands off me and he grabbed Officer Mingura by the wrist and tried to move Officer Mingura's arm off of him and they actually afterwards fell to the floor would be the basis for assault, class one misdemeanor.

( Id. ¶ 65.) The disorderly conduct conviction arose out of conduct prior to the deputies' arrival at the Barnes residence: Barnes had thrown a glass bottle at his spouse. (Doc. 96 ¶ 19.) Barnes agreed that the factual basis for each conviction was true. ( Id. ¶ 67.)

II. Defendant Mingura's Hiring, Training, Discipline, and Retention

Mingura applied in September 2014 to be a deputy at the Graham County Sheriff's Office. (Doc. 93 ¶ 9.) He completed an employment application that included his prior history of working for other law enforcement agencies, including his time at the Greenlee County Sheriff's Office, Town of Clifton Police Department, and Town of Pima Police Department. ( Id. ) Prior to hiring, Mingura also submitted to a background check, polygraph examination, and completed an Arizona Peace Officers Standards and Training Board (AZPOST) Personal History form, which disclosed that he had been “cited, arrested, accused or charged with a crime,” regarding past use of excessive force. ( Id. ; Doc. 126 ¶ 10.)

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Graham County Undersheriff Carl McCormies, or Chief McCormies, is second in command at the Graham County Sheriff's Office and his responsibilities include overseeing hiring, internal investigations, and training. (Doc. 93 ¶¶ 5, 6.) Lieutenant Jerry Nelson gathered the background information and completed the AZPOST Peace Officer Standards for Appointment checklist on Mingura. ( Id. ¶ 11.) In his polygraph examination, Mingura disclosed that his prior employer, the Clifton Police Chief, had requested the Arizona Department of Public Safety (DPS) to investigate allegations that Mingura had used excessive force against arrestees. (Doc. 126 ¶ 31.) Neither Chief McCormies nor Lieutenant Nelson contacted DPS to obtain or review the 88-page report it prepared in 2012. (Doc. 126 ¶ 10; see Doc. 126-1 at 2-89.)

The 2012 DPS report investigated Mingura's alleged use of excessive force against five separate individuals during arrests, and documented Mingura's uses of force against several other unnamed individuals. (Doc. 126-1 at 3, 11, 23, 44, 69.) In one instance, Mingura's fellow deputies reported that, after they had arrested and secured an individual, Mingura arrived on the scene with a shotgun in his hands, then “racked a round into the chamber of the shotgun and told the suspect, ‘move and I'll send you to hell mother fucker.'” (Doc. 126 ¶ 37 (quoting 126-1 at 88).)

Despite Mingura's disclosure, in both his personal history form and polygraph examination, that he had been charged with a crime involving excessive force, neither

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McCormies nor Nelson contacted the prosecutor in the 2011 criminal case to obtain information regarding the charges-three counts of felony aggravated assault involving three separate victims. (Doc. 126 ¶¶ 12, 30.)

Lieutenant Nelson produced a Graham County Sheriff's Department Background Report on Mingura that outlined and summarized the background investigation; that report reflected that Mingura was “a satisfactory candidate to hire” as a Graham County Sheriff's Deputy. (Doc. 93 ¶ 12.) Mingura had completed the Central Arizona Regional Law Officers Training Academy in 2007, which trained cadets on use of force. ( Id. ¶ 13.) Upon hiring, Mingura completed GCSO's eight- to ten-week field training program. ( Id. ¶ 17.) Mingura testified that he did not receive training regarding use of force while employed at GCSO-he had asked Lieutenant Nelson and the use of force instructor for in-house training, but was advised that “he didn't have time this year.” (Doc. 126 ¶ 13 (quoting Doc. 126-2 at 3).)

While he was employed at GCSO, written policies on use of force were in effect and Mingura was supervised by the chain of command. (Doc. 93 ¶ 20, 21.) Performance evaluations reflected that Mingura demonstrated “competent, acceptable, even commendable performance.” ( Id. ¶ 22.)

Prior to November 16, 2017, Chief McCormies was aware of Mingura's November 3, 2017 use of force against Barnes, and recognized that there was a disparity between Barnes' and Mingura's descriptions of the incident. ( Id. ¶ 23.) Chief McCormies was in the process of obtaining the assistance of an independent outside agency to investigate the November 3 incident when Mingura responded to the Barnes residence and again used force against Barnes on November 16, 2017. ( Id. ) Mingura was placed on administrative leave with pay on December 7, 2017. ( Id. ¶ 24.) The DPS Investigation into the November 3 incident was completed on or about October 29, 2018; it concluded that Mingura's use

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of force against Barnes was unreasonable and excessive. ( Id. ) After a hearing on November 6, 2018, Mingura was terminated from GCSO due to his November 3 use of force against Barnes. ( Id. ) Mingura was not disciplined for the November 16, 2017 incident; Chief McCormies concluded that the November 16 use of force was reasonable under the circumstances because “Barnes grabbed Mingura's testicles,” and “was physically resisting arrest” while his daughter attempted to intervene. ( Id. ¶ 25.) The claims in Barnes' pending lawsuit pertain to the November 16 incident.

DISCUSSION

Defendant Mingura moves for summary judgment on Barnes' § 1983 excessive force claim, arguing that it is barred under Heck v. Humphrey , 512 U.S. 477 (1994), that Mingura's actions were objectively reasonable, and that he is entitled to qualified immunity. (Doc. 95 at 2.) Sheriff Allred moves for summary judgment and asserts that he is entitled to judgment as a matter of law because there is no evidence of deliberate indifference in the Graham County Sheriff's Officer's hiring, training, supervision, discipline, or retention of Mingura. (Doc. 92 at 9.)

I. Heck v. Humphrey Does Not Bar Barnes' Excessive Force Claims

Mingura argues that Barnes' guilty plea to resisting arrest and assault bars his excessive force claim under Heck v. Humphrey . The Court disagrees. Because Barnes' excessive force claim turns on conduct that was not part of the factual basis of his plea, success in this action would not necessarily invalidate his convictions. As a result, the Heck bar does not require dismissal of Barnes' claim that Mingura used excessive force when he struck Barnes and hit his face against the metal grate on the floor three times.

In Heck , the Court held that a prisoner's claim for damages cannot be brought under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner demonstrates that the conviction or sentence has previously been reversed, expunged, or otherwise invalidated. Heck , 512 U.S. at 486-87 . The Supreme Court has since emphasized that it was “careful in Heck to stress the importance of the term ‘necessarily.'” Lemos v. County of Sonoma , 40 F.4th 1002, 1005 (9th Cir. 2022)

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(en banc) (quoting Nelson v. Campbell , 541 U.S. 637, 647 (2004)). If the prior conviction arises out of a guilty plea, the court must look to the factual basis of the plea to determine if success in the § 1983 action would necessarily invalidate the plea. Lemos , 40 F.4th at 1006, 1008; see Smithart v. Towery , 79 F.3d 951, 952 (9th Cir. 1996).

Here, Barnes' § 1983 claim is limited to Mingura's alleged excessive use of force when he struck Barnes and hit his face against the floor while placing a knee on Barnes' back. (Doc. 103 at 9.) For his conduct on November 16, 2017, Barnes pleaded guilty to passively resisting arrest, in violation of A.R.S. § 13-2508, and assault, in violation of A.R.S. § 13-1203(A)(3). The factual basis of the passive resistance plea was limited to Barnes' refusal to stand up out of his chair. As his attorney explained, the deputies “asked him repeatedly to stand up-he refused to do so.” (Doc. 96 ¶ 65.) Crucially, Barnes did not admit to, and was not convicted of, physically resisting the deputies by struggling against their attempts to handcuff him or wrestling with them on the floor-his passive resistance ended when the deputies stood him up. Similarly, as Barnes' attorney explained, Barnes' assault plea was based solely on conduct occurring prior to Barnes' being taken to the floor: “Barnes as clearly shown said get your hands off me and he grabbed Officer Mingura by the wrist and tried to move Officer Mingura's arm off of him and they actually afterwards fell to the floor would be the basis for assault.” ( Id. )

Barnes' prior guilty pleas pertained only to his actions up until he was on the floor, while his excessive force claim is limited to Mingura's use of force against Barnes after he was pinned on the floor. Barnes does not contest the facts underlying his plea and neither his passive resistance nor his admitted assault on Mingura was the moving force behind the alleged constitutional violation. Thus, success in this action would not in any way invalidate Barnes' prior resisting arrest or assault convictions.

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Mingura argues that Barnes' convictions should bar any excessive force claim against him for “any actions” Mingura took in the November 16 encounter because “an arrest under the Fourth Amendment extends from the start to the end of an arrest, spanning the entire period a suspect remains with the arresting officers,” and “a defendant can only be convicted of resisting arrest in Arizona if the officer's conduct was lawful.” (Doc. 95 at 7-8 (citing Curry v. Baca , 371 Fed.Appx. 733, 733-34 (9th Cir. 2010).) Mingura's argument fails because both the temporal and categorical approaches to the Heck bar are no longer applicable; analyzing the factual basis of the conviction is required. Lemos , 40 F.4th at 1006, 1008.

Applying a temporal analysis, Mingura explains that Arizona courts have held that “effecting arrest” under A.R.S. § 13-2508 “is on-going beginning with the officer's first physical contact and continuing even after the arrest may be ‘complete' under the law.” State v. Flores , 260 P.3d 309, n.1 (Ariz.Ct.App. 2011) (citing State v. Mitchell , 62 P.3d 616, 619-20 (Ariz.Ct.App. 2003)). Mingura asserts that none of the force used “occurred pre-arrest or post-arrest,” but rather during “the same phase of the encounter” and was thus not “outside the timeframe from which Plaintiff resisted arrest.” ( Id. at 9.) This argument relies on the Ninth Circuit's interpretation of a California resisting arrest statute in Smith v. City of Hemet , 394 F.3d 689 (9th Cir. 2005). In Smith , the panel identified different “phases” in an arrest encounter when considering whether the Heck bar applied. The Ninth Circuit subsequently narrowed Smith 's holding after an intervening California Supreme Court decision interpreted the statute at issue and clarified that not all encounters can be divided into discrete phases-and that both lawful and unlawful force may be used by officers during a “continuous transaction” of events. Hooper v. County of San Diego , 629 F.3d 1127, 1132 (9th Cir. 2011). In any event, Barnes was convicted of resisting arrest and assault in Arizona, not under the California statute.

Mingura takes a categorical approach to the Arizona statutes. He argues that Barnes' excessive force claims would necessarily invalidate his convictions because an excessively forceful arrest is unlawful in Arizona and a resisting arrest conviction requires the officer's

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conduct to be lawful. (Doc. 95 at 7.) In support, Mingura cites several District of Arizona cases applying this logic to bar claims under Heck . These cases are inapposite because each was decided before the en banc Ninth Circuit decision in Lemos held that the court must look to the factual basis of the conviction, not categorically interpret the elements of the statute. Lemos , 40 F.4th at 1006, 1008.

Further, Mingura's characterization of the relevant Arizona statutes is incorrect. Arizona's resisting arrest statute does not require the arrest to be lawful to sustain a conviction, it merely provides that the person must reasonably know the arresting officer is “a peace officer, acting under color of such peace officer's official authority.” A.R.S. § 13-2508(A). Additionally, the statutory justification defense is not part of the resisting arrest or assault statutes, it is a separate affirmative defense codified at A.R.S. § 13-404. It provides that a person is not justified in the threat or use of physical force against another to “resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful , unless the physical force used by the peace officer exceeds that allowed by law.” A.R.S. § 13-404(B)(2) (emphasis added). Regardless, the court must look to the factual basis of the assault plea, not only to the text of the statute of conviction. Section 13-404 is not referenced in the plea agreement and justification was not discussed at the change of plea hearing. Barnes may have waived the justification defense, but there was no finding in the criminal record as to whether the force used by Mingura or the other deputies was excessive.

In sum, looking to the factual basis of Barnes' guilty pleas shows that Barnes was convicted only of conduct that occurred before he was on the floor, prior to Mingura's alleged use of unlawful force. Thus, the fact that he was convicted of resisting arrest and assault does not establish, as a matter of law, that the arrest was lawful or did not involve excessive force at any point during the encounter. Even if Barnes' attempt to move Mingura's hand from his shoulder constitutes physical resistance, Barnes' assault plea covers only the acts of grasping Mingura's wrist and attempting to move Mingura's arm

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away. Viewing the evidence in the light most favorable to Barnes, who disputes that he struggled on the floor, once Barnes had let go of Mingura's arm, the assault had ended, regardless of whether the arrest had been fully “effected.” To interpret the Heck bar otherwise would permit an unscrupulous officer who encounters a resisting arrestee-even one who passively resists-to prolong the arrest encounter and continue to use disproportionate force without consequence so long as the arrestee is later convicted of resisting arrest or assaulting the officer.

Accordingly, the Court finds that Heck does not bar Barnes' § 1983 claim alleging that Mingura used excessive force when he struck Barnes with a closed-fist and hit his head against the metal grate on the floor three times.

II. A Reasonable Jury Could Conclude Mingura's Force was Excessive

The Fourth Amendment requires that police officers use only an amount of force that is objectively reasonable in light of the circumstances. Tennessee v. Garner , 471 U.S. 1, 7-8 (1985). The use of excessive force by police officers in the course of an arrest can violate the arrestee's Fourth Amendment right to be free from unreasonable seizures. See White by White v. Pierce County , 797 F.2d 812, 816 (9th Cir. 1986). The Fourth Amendment does not prohibit the use of reasonable force. Tatum v. City & County of San Francisco , 441 F.3d 1090, 1095 (9th Cir. 2006). But even if some amount of force is justified, an officer may not use more force than is reasonably necessary. Santos v. Gates , 287 F.3d 846, 853 (9th Cir. 2002).

To determine whether a Fourth Amendment violation has occurred, the court conducts a three-step analysis, assessing (1) the nature of force inflicted; (2) the governmental interests at stake, which involves assessing factors such as the severity of the crime, the threat posed by the suspect, and whether the suspect was resisting arrest (the “Graham factors”); and (3) whether the force used was necessary. Espinosa v. City & County of San Francisco , 598 F.3d 528, 537 (9th Cir. 2010) (citing Graham v. Connor , 490 U.S. 386, 396-97, and Miller v. Clark County , 340 F.3d 959, 964 (9th Cir. 2003)). The Court must balance the nature and quality of the intrusion against the countervailing

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governmental interests at stake. Graham , 490 U.S. at 396. Moreover,

[t]he “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,” violates the Fourth Amendment.

Graham , 490 U.S. at 396 (citations omitted). However, because this is a highly fact-intensive inquiry, “whether a particular use of force was reasonable is rarely determinable as a matter of law,” and “should only be taken from the jury in rare cases.” Chew v. Gates , 27 F.3d 1432, 1443 (9th Cir. 1994); Green v. City of San Francisco , 751 F.3d 1039, 1049 (9th Cir. 2014).

Here, the Graham analysis, as well as the consideration of whether the force was necessary, turns on several disputed facts. A key dispute is whether Barnes physically resisted arrest once on the floor. While Mingura argues that Barnes fought the deputies, Barnes contends that Mingura's “two violent uses of force” were excessive because Barnes was pinned on his stomach with three deputies around him and, instead of attempting to control Barnes' free right arm to handcuff him, Mingura “began to repeatedly smash” his face into the metal grate and punched him with enough force to fracture several bones. (Doc. 95 at 11; Doc. 103 at 20.) Viewing the evidence in the light most favorable to Barnes, as the Court must do on a motion for summary judgment, the Court concludes that a reasonable jury could find that Mingura's fist strike and face-to-floor contact was unreasonable and unnecessary.

At the first step of the excessive force analysis-the amount of force inflicted-the parties agree that Mingura delivered one closed-fist strike to Barnes' head and hit his face against the floor three times. These actions are visible on the body camera footage, which shows that Mingura struck Barnes in the head and then placed two hands on the back of Barnes' head to drive his face down onto the metal ventilation grate. The parties also do not dispute that Mingura's use of force resulted in multiple injuries to Barnes' face,

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including fractures to his orbital eye-socket, maxilla, nasal bone, and nasal septum. Mingura characterizes this as an “intermediate” use of force, while Barnes contends that it was “extreme[ly] violent and severely destructive.” (Doc. 95 at 11-12; Doc. 103 at 20.) A reasonable jury could conclude that the extent of the injuries inflicted by Mingura demonstrates that his force was a significant intrusion on Barnes' Fourth Amendment rights. See Lalonde v. County of Riverside , 204 F.3d 947, 959 (9th Cir. 2000) (“[I]f the extent of the injury to [plaintiff's] back is serious enough, a jury could conclude that [the officer] used force in excess of what was reasonable, even if [plaintiff] had been resisting at the time.”).

At the second step, the Court must consider the governmental interests at stake by evaluating the Graham factors: the severity of the crime, whether the arrestee posed an immediate threat, and whether the arrestee was resisting. Espinosa , 598 F.3d at 537. As to the severity of the crime, deputies responded to the Barnes residence for a domestic violence call; Barnes had allegedly thrown a beer bottle at his spouse. It has been recognized that domestic violence calls can pose some of the highest risks to officer safety. Mattos v. Agarano , 661 F.3d 433, 450 (9th Cir. 2011). This factor weighs in Mingura's favor.

It is disputed whether Barnes posed a threat during the arrest. The video evidence demonstrates that Barnes did not pose an immediate threat to the deputies upon their arrival-Barnes sat in his chair the entire time he conversed with the deputies until he was pulled to his feet. Barnes concedes that he passively resisted by refusing to stand up, but the video shows that Barnes did not lunge at the deputies as Mingura alleges. Barnes subsequently pleaded guilty to assault because he grasped Mingura's arm after Mingura grabbed him, a class three misdemeanor. Mingura alleges no injury from that contact. Once Barnes was on the floor, the video shows that he was surrounded by three deputies, with one controlling his left arm while Mingura placed a knee on Barnes' back and used force

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on his head and face. Mingura asserts that during this time Barnes “violently resisted arrest” because he struggled and grabbed Mingura's testicles. (Doc. 95 at 11.) Barnes denies ever touching Mingura's testicles. This factual dispute is not resolved by the video because it does not clearly show Barnes' right hand. Moreover, Barnes argues that the video does support Mingura's testimony because Mingura only ever said, “he tried grabbing my balls,” did not react in pain, and continued to calmly state “let go” even when Barnes' right arm was fully controlled. (Doc. 103 at 22 (emphasis added).) Barnes asserts that a reasonable juror viewing the video could “conclude that Mingura falsely accused [Barnes], in order to make others believe that he was justified in punching [Barnes] in the face. The fact that Mingura began smashing [Barnes's] face into the floor before alleging that [he] had grabbed his testicles reveals that Mingura had already been intent on violently hurting [Barnes].” ( Id. ) This is a credibility dispute to be resolved by a jury. Viewing the evidence in a light most favorable to Barnes, as the Court must, a reasonable jury could find that Barnes did not pose a threat to the four deputies. This factor weighs in Barnes' favor.

Similarly, the issue of whether Barnes was actively resisting is partially. Barnes did passively resist an order to stand up out of his chair when he was told he was under arrest. When a suspect's only resistance is failure to comply with a police order, and when that resistance is “not particularly bellicose,” it is considered passive and does not weigh heavily in the government's favor. Bryan v. MacPherson , 630 F.3d 805, 830 (9th Cir. 2010) (citing Forrester v. City of San Diego , 25 F.3d 804, 805 (9th Cir. 1994); see also Smith , 394 F.3d at 703. It is disputed, however, whether Barnes resisted the deputies when pinned to the ground. He testified that he did not actively resist while on his stomach, and asserts that any movement on the video is only the result of pain inflicted by Mingura while the three deputies had control of his body. (Doc. 103 at 22.) Accepting the contention that Barnes did not resist on the floor and his only resistance was passive, this factor weighs

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slightly in Mingura's favor.