FILED
NOT FOR PUBLICATION JUN 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHENTILE GOODMAN, No. 13-16751
Plaintiff - Appellee, D.C. No. 2:11-cv-01447-MMD-
VCF
v.
LAS VEGAS METROPOLITAN POLICE MEMORANDUM*
DEPARTMENT, a political subdivision of
the State of Nevada; et al.,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Argued and Submitted May 15, 2015
San Francisco, California
Before: N.R. SMITH and OWENS, Circuit Judges, and COLLINS,** Chief
District Judge.
Plaintiff-Appellee Chentile Goodman sued Defendants-Appellants Detective
John Segura, Sergeant James Signorello, and the Las Vegas Metropolitan Police
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, Chief District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
Department after the officers stopped and detained her on suspicion of loitering for
the purpose of prostitution. This interlocutory appeal challenges (a) the denial of
summary judgment on qualified immunity grounds on Goodman’s claims under 42
U.S.C. § 1983, (b) the grant of summary judgment in Goodman’s favor on the
§ 1983 claims, and (c) the denial of summary judgment to the officers and grant of
summary judgment to Goodman on the state false imprisonment claim. We have
jurisdiction over the federal claims. Mueller v. Auker, 576 F.3d 979, 989 (9th Cir.
2009). We affirm in part and reverse in part the district court’s order concerning
the federal claims, and remand for trial. We dismiss the appeal as to the state law
claim.
1. On review of cross motions for summary judgment, we must carefully
examine the factual record in the light most favorable to the nonmoving party as to
each motion. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d
1110, 1131 (9th Cir. 2003). Because the facts here are so thoroughly disputed, and
the resolution of the federal claims depends entirely on who is believed, summary
judgment for either party is inappropriate.
Under the facts as presented by Goodman, the officers are not entitled to
qualified immunity. According to Goodman, she was stopped when she was
walking through a Las Vegas casino with a friend, on her way to meet her
2 13-16751
boyfriend. She wore conservative clothing, never stopped walking or attempted to
engage any other casino patrons, and perfunctorily rebuffed the undercover
officers’ advances. Although the officers knew that Goodman’s companion was
married to a pimp and was independently suspected of prostitution, “mere
propinquity to others independently suspected of criminal activity” does not
overcome the right to be free from suspicionless detention. See Ybarra v. Illinois,
444 U.S. 85, 91 (1979). No particularized facts gave rise to suspicion as to
Goodman; she was simply walking with a suspicious person. No reasonable
officer could have believed that every person walking near a suspected prostitute
late at night in a Las Vegas casino could lawfully be detained on suspicion of
prostitution.
Because the officers are not entitled to summary judgment as to the initial
stop, they are not entitled to summary judgment as to the actions following the
initial stop: Goodman’s continuing detention, the seizure and search of her purse,
and the seizure of her cell phone. Any reasonable officer would have been aware
that the warrantless detention, search, and seizure were unreasonable in the absence
of reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 21-22
(1968). Goodman’s testimony suggests that she was subjected to a long and
humiliating detention for no reason beyond intimidating her, and that the officers
3 13-16751
rifled through her purse without her consent. We therefore affirm the district
court’s denial of summary judgment to the officers on all federal claims.
2. However, under the facts presented by the officers, a jury could conclude
that the officers are entitled to immunity. The officers remember that Goodman
was seen wearing provocative clothing near the casino’s elevators, an area known
particularly for prostitution activity. The undercover officers attempted to engage
Goodman and her companion, but the women seemed to be in a hurry to leave the
casino. This may indicate that they recognized the officer who had arrested
Goodman’s companion (whom they knew was married to a well-known Las Vegas
pimp) on suspicion of prostitution two nights before. See United States v. Thomas,
211 F.3d 1186, 1190-91 (9th Cir. 2000) (“furtive conduct” may support reasonable
suspicion). A reasonable officer could, under those circumstances, have believed
the facts supported a reasonable suspicion that Goodman was loitering for the
purposes of prostitution.
After the initial stop, the officers took Goodman’s cell phone and led her to
the casino security office, where they took her purse. In the context of a valid
investigatory stop in a crowded casino during a large-scale prostitution sting, it was
reasonable for officers to take the suspect’s cell phone and purse and move to a
4 13-16751
private area to facilitate the investigation and insure officer safety.1 See United
States v. Miles, 247 F.3d 1009, 1012-13 (9th Cir. 2001) (officers’ “legitimate
safety concerns” may justify more “intrusive” conduct during an investigatory
stop).
Taking the officers’ version of events as true, Goodman was held for a short
amount of time while the officers questioned her and searched for warrants before
she was released to the custody of casino security, who took her picture, gave her a
trespassing warning, and escorted her off the property. Although Goodman
remembers that she was held for nearly two hours, the officers disagree. While
that was happening, the officers were also processing and arresting at least fourteen
other suspects. Given that the precise length of the detention is indeterminate at
this stage, a reasonable jury could find that the officers “diligently pursued a means
of investigation that was likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.” United States v. Sharpe, 470
U.S. 675, 686 (1985). Accordingly, the district court erred in granting summary
judgment to Goodman as to the federal claims.
1
The officers testified that prostitutes often use their phones as weapons or
to hide weapons. Further, the officers testified that in prostitution stings it is
important to seize the suspect’s cell phone so that they do not alert their pimp to
the presence of the officers. This is important both for the officers’ safety and the
success of the sting.
5 13-16751
3. Appellants have failed to meet their burden to establish that we may
exercise jurisdiction over an interlocutory appeal of a denial of discretionary-
function immunity under section 41.032(2) of the Nevada Revised Statutes. See
Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (“The party seeking to invoke
the court’s jurisdiction bears the burden of establishing that jurisdiction exists.”).
The few cases Appellants cite that label section 41.032 an immunity from suit, see
Ortega v. Reyna, 953 P.2d 18, 23 (Nev. 1998); Butler ex rel. Biller v. Bayer, 168
P.3d 1055, 1066 (Nev. 2007), are not persuasive because there is no indication that
the Nevada Supreme Court sought to distinguish between an immunity from suit
and a mere immunity from liability, the denial of which is not amenable to
interlocutory review. See Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011);
see also Martinez v. Maruszczak, 168 P.3d 720, 722-25 (Nev. 2007) (discussing
solely immunity from liability). It appears that section 41.032 provides immunity
from liability for the state and its employees for certain discretionary actions, see
Martinez, 168 P.3d at 722-25, not a “right to avoid trial” altogether, see Digital
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 875 (1994). Appellants thus
have not shown that a denial of immunity under section 41.032 is “effectively
unreviewable” on appeal from a final judgment. See Mohawk Indus., Inc. v.
6 13-16751
Carpenter, 558 U.S. 100, 106 (2009). The appeal is dismissed as to the state law
claims.
The parties shall bear their own respective costs on appeal.
AFFIRMED in part, REVERSED in part, DISMISSED in part, and
REMANDED.
7 13-16751