Gagne et al v. Mesa, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Christopher Gagne, et al.,
Plaintiffs,
v.
City of Mesa, et al.,
Defendants.
No. CV-24-01337-PHX-SHD
ORDER
On September 12, 2025, Defendants City of Mesa (“City”), Matthew Adair, and
Christopher Orr (together, “Defendants”) moved to dismiss Plaintiffs Christopher and
Suzette Gagne’s (together, “Plaintiffs”) § 1983 claims against them. (Doc. 102.) The
motion is fully briefed, and I heard oral argument on October 6, 2026. (Docs. 111, 112,
131.) The motion to dismiss will be granted in part and denied in part.
I. BACKGROUND
On July 6, 2023, Mesa Police Department (“MPD”) officers shot and killed Shawn
Gagne.1 (See Doc. 101 at ¶¶ 19–23.) Plaintiffs are Shawn’s parents; Chrisopher also sues
as personal representative of Shawn’s estate. (Id. at ¶¶ 3–4.) Relevant here, Plaintiffs
allege that the MPD officers who shot Shawn (“Shooting Officers”) used excessive force
in violation of the Fourth and Fourteenth Amendments; that two negotiators on scene,
Officers Adair and Orr (“Negotiating Officers,” or “Officers Adair and Orr”), failed to
1 In my prior order granting Defendants’ first motion to dismiss, I summarized
Plaintiffs’ allegations in detail. (See Doc. 94.) Most of those allegations remain unchanged
in Plaintiffs’ Third Amended Complaint (“TAC”).
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intercede in that unconstitutional conduct; and that the City has a custom or practice of
using deadly force when it is not necessary. (See id. at ¶¶ 213–58.) Only the claims brought
against the Negotiating Officers and the Monell claim against the City are at issue here.
A. Allegations Against Officers Adair and Orr
On the evening of July 6, 2023, one of Shawn’s neighbors called 911 and reported
that Shawn had fired a weapon into the air from his patio.2 (Id. at ¶ 31.) At 9:33 p.m.,
MPD surrounded the apartment. (Id. at ¶ 32.) Shawn’s fiancée, Jordan, told officers he
was heavily intoxicated, was depressed, had made suicidal statements, and should be given
time to sober up. (Id. at ¶¶ 36–38.) At one point, Shawn came to his front door holding a
rifle pointed down at his side and yelled at officers to “get out.” (Id. at ¶¶ 39–40.) Around
10:00 p.m., MPD SWAT (“SWAT”) arrived. (Id. at ¶ 41.) The SWAT officers were
ordered to replace MPD patrol officers “on the southern perimeter of Shawn’s apartment.”
(Id. at ¶ 42.) Several SWAT officers also set up sniper positions with “direct lines of sight
to Shawn’s unit windows and glass patio doors.” (Id. at ¶ 43.) Defendant Freeman was in
a sniper position. (Id.) He had “a clear line of sight to Shawn’s apartment and could
observe Shawn through a sliding glass door window.” (Id. at ¶ 44.) At 10:19 p.m., the
Primary Scene Supervisor, Officer Samons, “instructed Shawn to exit his apartment
without anything in his hands” using a vehicle PA system. (Id. at ¶ 45.) Shawn responded
with “irrational statements, some inviting violence.” (Id.) Samons “repeatedly” told
Shawn that “MPD would ‘guarantee [his] safety’ if Shawn came out of his apartment with
‘nothing in [his] hands.’” (Id. at ¶ 46.)
At 10:31 p.m., Shawn called his fiancée, who handed the phone to Defendant Adair.
2 I may consider documents incorporated by reference into the complaint without
converting the motion to dismiss into one for summary judgment. Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 998, 1002 (9th Cir. 2018). But “it is improper to assume
the truth of an incorporated document if such assumptions only serve to dispute facts stated
in a well-pleaded complaint.” Id. at 1003. I previously held that the Cox surveillance
footage is incorporated by reference. (Doc. 94 at 9 n.5.) That video, however, sheds little
light on Plaintiffs’ claims against the Negotiating Officers and the City. I therefore do not
rely on the Cox Surveillance video to reach my decision.
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(Id. at ¶ 48.) Adair told Shawn that he would “relay [Shawn’s] request for the police to
relocate” and “encouraged Shawn to walk out the front door.” (Id.) Adair’s conversation
with Shawn “was broadcast over MPD radio while officers monitored Shawn’s movements
through the windows and glass patio doors.” (Id. at ¶ 49.)
At 10:41 p.m., “SWAT officers began aiming rifle lasers through the windows into
the apartment.” (Id. at ¶ 50.) Shawn was still on the phone with Adair. (Id.) At 10:42
p.m., “Shawn laid his rifle down on his kitchen counter.” (Id. at ¶ 51.)
After Shawn put down his rifle, Defendant Freeman “open[ed] fire, hitting Shawn.”
(Id. at ¶ 52.) Defendant Orr, a Secondary Negotiator, informed Adair that there had been
“an officer-involved shooting.” (Id. at ¶ 69.) Adair again instructed Shawn to “walk out
the front door with his hands up.” (Id.) Shawn told Adair that he had been hit and was
injured. (Id. at ¶ 70.) Forty-three seconds after his first shot, “Freeman fired a second
round at Shawn.” (Id. at ¶¶ 53, 55.) Adair heard Freeman’s second shot. (Id. at ¶ 71.)
Freeman saw Shawn begin to move through the apartment towards the front door.
(Id. at ¶¶ 59–62.) Shawn was unarmed and had his hands raised. (Id.) “As Shawn walked
out of the kitchen toward the front door, Adair asked Shawn if he was hurt and where he
had been hit.” (Id. at ¶ 75.) Shawn replied that he was “struck in the face.” (Id.) Adair
told Shawn that “emergency personnel were on scene to render him aid once he exited his
apartment,” and “again requested [that] Shawn make his way towards the front door exit
with his empty hands raised.” (Id.)
As Shawn approached the stairway landing leading to his front door, “he was
subjected to a barrage of gunfire from MPD.” (Id. at ¶ 81.) Adair and Orr heard the
gunfire, and then heard Shawn cry out “I’m down! I’m down! I’m down!” (Id. at ¶¶ 81–
83.) Neither Adair nor Orr told the Shooting Officers to stand down or relayed that Shawn
was “down” or injured. (Id. at ¶ 84.)
About 15 seconds later, Shawn opened his front door. (Id. at ¶¶ 85, 121.) He
“presented himself, unarmed and with nothing in his hands.” (Id. at ¶ 122.) MPD Officers
“unleashed . . . another hail of bullets on Shawn.” (Id.) Shawn fell face down in the
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doorway. (Id. at ¶¶ 124, 126.) It was only after “at least 84 bullets were fired” that Adair
shouted, “weapons down!” (Id. at ¶ 127.) MPD “fired explosive devices into the
apartment,” “tazed Shawn’s body,” handcuffed him, and “dragged him into the front of the
apartment.” (Id. at ¶¶ 125–26.) Shawn was pronounced dead at 11:41 p.m. (Id. at ¶ 128.)
Plaintiffs allege that Adair and Orr “could have and absolutely should have announced
weapons down” at any point after Freeman’s first shot. (Id. at ¶ 72.)
B. Allegations Against the City
Plaintiffs assert that the City has a custom or practice of moving to the highest level
of force when it is not necessary.3 To support this claim, Plaintiffs allege that within “the
first six months of 2022 alone, the City of Mesa paid out $5,444,000 to settle 10 claims
against its officers, with payments ranging from $4,000 to $2,450,000.” (Doc. 101 at ¶
195.) Plaintiffs also list sixteen excessive force incidents involving MPD officers. (Id. at
¶¶ 186–211.) Of these, ten incidents are officer-involved shootings, and of those ten, five
are shootings of unarmed individuals. (See id.; see also Doc. 102 at 16–17.) In January
2016, an officer shot and killed Daniel Shaver as he “crawled unarmed toward [officers] at
their request.” (Doc. 101 at ¶ 201.) The City ultimately paid $9,500,000 in settlements
related to the incident. (See id.) In April 2017, officers shot and killed Sariah Lane, who
“was not armed and not suspected of any crime.” (Id. at ¶ 202.) The City settled the
resulting excessive force lawsuit for $2.45 million. (Id.) In December 2019, an officer
shot Randy Sewell, who “was unarmed and not suspected of a serious crime.” (Id. at
¶ 205.) That suit settled for $1.75 million. (Id.) And in September 2020, officers shot and
killed Angel Benitez, who “was unarmed and shot by multiple officers” even though he
was complying with their instructions. (Id. at ¶ 206.) The City paid $250,000 to settle the
3 Plaintiffs’ TAC invokes several different types of Monell claims. (See Doc. 101 at
¶¶ 233–58 (alleging variously that “upon information and belief” the City “has a policy,”
has “failed to properly train and supervise” its officers, and has created a “culture of
impunity” by “permitting officers to use excessive and unnecessary force without fear of
discipline or oversight”).) At oral argument, Plaintiffs’ counsel clarified that they bring
only a “custom” claim against the City and described that custom as “moving to the highest
level of force when it is not necessary.”
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suit arising from that incident. (Id.) Finally, on December 15, 2023, officers shot David
Dimas, who “was self-harming himself and experiencing a behavior health crisis.” (Id. at
¶ 211.) Plaintiffs do not allege that this incident resulted in any lawsuit or settlement. (See
id.)
C. Procedural History
Plaintiffs filed this action on June 4, 2024. (Doc. 1.) On August 23, 2024, they
filed a First Amended Complaint (“FAC”). (Doc. 60.) Defendants filed a partial answer
on September 6, 2024, and a partial motion to dismiss. (Docs. 63, 66, 67, 71.) Relevant
here, I granted Defendants’ motion to dismiss Plaintiffs’ § 1983 claim against the
Negotiating Officers because Plaintiffs did not identify what constitutional right the
Negotiating Officers had allegedly violated. (Doc. 94 at 10–11.) I declined to reach
qualified immunity without that necessary clarification, and granted Plaintiffs leave to
amend. (Id.) I also dismissed Plaintiffs’ Monell claim against the City because it turned
on conclusory allegations, and, with respect to their custom and practice theory, Plaintiffs
had “only offered Shawn’s shooting by Mesa police as an instance of constitutional
violations stemming from Mesa’s alleged custom.” (Id. at 14–15.) Plaintiffs filed a Second
Amended Complaint on August 20, 2025, and nine days later filed the operative TAC by
stipulation. (Docs. 96, 99, 100, 101.) The Shooting Officers answered, (Doc. 103), and
the City and the Negotiating Officers filed this motion, (Doc. 102). The motion is fully
briefed, (Docs. 111, 112), and I heard oral argument on October 6, 2026, (Doc. 131).
II. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotation marks omitted). A claim is plausible if the plaintiff
pleads “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Well-pleaded factual allegations are
accepted as true and construed in the light most favorable to the plaintiff. In re Fitness
Holdings Int’l, Inc., 714 F.3d 1141, 1144–45 (9th Cir. 2013). I do not, however, accept
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legal conclusions as true, nor must I consider “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. That
said, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “well-
pleaded complaint may proceed even if” actual proof of those facts “is improbable[]
and . . . a recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted).
III. DISCUSSION
A. Negotiating Officers
“The doctrine of qualified immunity protects government officials 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.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted). To determine whether an
official is entitled to qualified immunity, courts ask (1) whether the facts alleged show a
constitutional violation, and (2) whether the right was “clearly established” at the time of
the violation. Id. at 232. Courts may take the prongs in either order. Id. at 242. At the
pleading stage, the question is whether the complaint alleges facts that, taken as true, show
the officers “violated clearly established constitutional rights of which a reasonable officer
would be aware in light of the specific context of the case.” Keates v. Koile, 883 F.3d
1228, 1235 (9th Cir. 2018) (quotation marks omitted).
Plaintiffs allege that the Negotiating Officers violated a clearly established
constitutional right when they failed to intercede in Shawn’s shooting by failing to (1) relay
their conversation with Shawn to the Shooting Officers, and (2) tell the Shooting Officers
to stand down.4
1. Failure to Intercede
Police officers “have a duty to intercede when their fellow officers violate the
4 At oral argument, Plaintiffs clarified that their only claim against the Negotiating
Officers is the § 1983 claim for failure to intercede (Count 1). They do not bring their
state-law claims (Counts 3 and 5) against the Negotiating Officers. (Id.)
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constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271,
1289 (9th Cir. 2000) (quoting United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir.
1994), rev’d on other grounds, 518 U.S. 81 (1996)). “If an officer fails to intercede, the
constitutional right violated by the passive defendant is analytically the same as the right
violated by the person who performed the offending action.” Tobias v. Arteaga, 996 F.3d
571, 584 (9th Cir. 2021).
There are four components to a failure to intercede claim. First, there must be an
underlying constitutional violation. See id. at 582–84. Second, the officers who do not
intercede must have knowledge of the underlying violation. See Ramirez v. Butte-Silver
Bow County, 298 F.3d 1022, 1029 (9th Cir. 2002) (holding that line officers had no duty
to intercede in the execution of an unconstitutional warrant because they did not know that
the warrant was defective). Third, those officers must have a “realistic opportunity to
intercede.” Cunningham, 229 F.3d at 1290. Ting v. United States, 927 F.2d 1504, 1511–
12 (9th Cir. 1991) (holding that when officers are “physically incapable of preventing” the
force and events “transpire[] in a matter of seconds” they do not have a realistic opportunity
to intercede); see also Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022) (officers
who were “on the other side of the home” and who were not dog handlers, could not have
intervened in beating and dog attack of suspect “during the rapidly unfolding chaos of the
physical struggle to apprehend” him). Fourth, and finally, the officers’ inaction must have
been “the cause in fact of [the plaintiff’s] injuries.” Ting, 927 F.2d at 1511.
I will assume, for the purposes of this motion, that Plaintiffs have adequately alleged
an underlying constitutional violation: that the Shooting Officers used excessive force
when they shot Shawn, who was unarmed and attempting to surrender.5 Even so, Plaintiffs’
claim against the Negotiating Officers fails because they have not alleged either that (1)
5 The Shooting Officers answered the TAC and did not challenge the adequacy of its
allegations on this point. (Doc. 103.) The Negotiating Officers, however, argue that the
TAC fails to allege that the Shooting Officers use of force was unconstitutional. (See Doc.
102 at 6; Doc. 112 at 3–4.) I decline to address this argument because it is not necessary
to the analysis.
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the Negotiating Officers had knowledge of an ongoing or imminent constitutional
violation, or (2) the Negotiating Officers’ failure to intervene caused Shawn’s death.
a. Knowledge
Plaintiffs allege that, after Freeman’s first shot, Orr told Adair that there had been
an officer-involved shooting. (Doc. 101 at ¶ 69.) Adair and Orr then heard Shawn say that
he was hit and injured. (Id. at ¶ 70.) Forty-three seconds passed, during which Adair and
Orr continued to encourage Shawn to surrender and to leave the house with his hands
raised. (Id. at ¶¶ 53, 55, 69.) Adair and Orr then heard Freeman’s second shot. (Id. at
¶ 71.) Shawn told Adair that he had been hit in the face. (Id. at ¶ 75.) Adair continued to
urge Shawn to come outside. (Id.) Adair and Orr next heard a volley of shots, and then
Shawn say “I’m down! I’m down! I’m down!” (Id. at ¶¶ 81–83.) Fifteen seconds later,
Shawn opened the door and the Shooting Officers opened fire. (Id. at ¶ 85.)
Plaintiffs do not allege, however, that Adair and Orr could see Shawn, or the
Shooting Officers, at any point during the incident. Adair and Orr did not see Shawn put
down his gun or move to the front door with his hands raised. Shawn did not tell Adair
that he was prepared to surrender, or that he was unarmed, or that he was coming outside.
Nor do Plaintiffs allege that Adair and Orr saw Shawn open the front door, or could see, at
that point, that he no longer posed a threat. Thus, according to the allegations in the TAC,
Adair and Orr only knew that Shawn was armed, shots were fired, and Shawn was hit and
injured.
These allegations do not trigger a duty to intercede. There are many scenarios in
which shooting at an armed suspect is constitutional. See, e.g., Scott v. Henrich, 39 F.3d
912, 915–16 (9th Cir. 1994) (holding that officers who shot and killed an armed man in his
apartment acted reasonably). Based on the limited information Adair and Orr possessed
during the incident, they could not have known whether their fellow officers were using
reasonable or unreasonable force. Indeed, Adair and Orr lacked any of the information
necessary to determine whether shooting at Shawn was appropriate under the
circumstances. Without knowledge of an underlying constitutional violation, Adair and
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Orr had no duty to intercede. See Ramirez, 298 F.3d at 1030 (holding that an officer
“cannot be held liable for failing to stop a search he did not know was illegal”).
b. Realistic Opportunity to Intercede and Causation
Plaintiffs also fail to allege facts supporting the inference that Adair and Orr could
have prevented the shooting. Although Plaintiffs have arguably alleged that Adair and Orr
had a realistic opportunity to intercede, they have not alleged the requisite causal
connection.6
To begin, the parties disagree about whether close physical proximity is required to
establish a realistic opportunity to intercede. Defendants assert that physical proximity is
required, and argue that because Adair and Orr were nowhere near the Shooting Officers,
they did not have an opportunity to intercede. (Id.; see Doc. 112 at 6.) It is true that, in
many instances, an officer will need to use physical force to stop unconstitutional conduct,
for example, by physically restraining a fellow officer to prevent his or her use of excessive
force. In such cases, physical proximity is required. See Ting, 927 F.2d at 1511–12. But
there may be situations in which an officer could intervene in unconstitutional conduct
without physical proximity—for instance, a superior may be able to intervene by giving a
command to cease unconstitutional behavior. Thus, physical proximity is not necessary if
the plaintiff’s theory of intervention does not require it.
Here, Plaintiffs’ theory is that Officers Adair and Orr should have interceded by
using the MPD radio (1) to communicate critical information to the Shooting Officers, or
(2) command the Shooting Officers to stand down. It is plausible that Officers Adair and
Orr could have radioed the Shooting Officers in the period between Freeman’s first shot
6 The “realistic opportunity” and “causation” analyses are closely tied. As I see it,
whether officers had a realistic opportunity to intercede asks whether the officers had the
time and means to do so. See, e.g., Ting, 927 F.2d at 1512. The question of “causation”
asks whether a plaintiff’s theory of intervention would have been effective—that is,
assuming the officers had done precisely what the plaintiff claims they should have done,
would that action have prevented the plaintiff’s injuries? If officers lack the time and
means to intervene, “it cannot be said that [their] failure to intervene was the cause in fact
of [the plaintiff’s] injuries.” Id.
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and the final volley at the front door. I will therefore assume that they had an opportunity
to intercede. But see Waller v. City of Nogales, 2023 WL 3863655, at *7 (D. Ariz. June 7,
2023) (holding that there was no “realistic opportunity to intervene” when the officers
“were in the vicinity and equipped with radios”).
Regardless, Plaintiffs offer no allegations supporting a reasonable inference that
Adair and Orr’s failure to communicate with the Shooting Officers caused Shawn’s death.
Put another way, Plaintiffs fail to allege that the Shooting Officers would have behaved
differently if Adair and Orr had interceded by radio. Plaintiffs do not allege, for example,
that Adair and Orr had the authority to order the Shooting Officers to stand down, or that
the Shooting Officers would have followed such a command absent that authority. Nor do
they allege any facts suggesting that the Shooting Officers would have behaved differently
had they known that Shawn had told the Negotiating Officers that he was injured and was
down, or that Adair was telling Shawn to surrender. See Kirk v. City of Phoenix, 2025 WL
1952677, *4–7 (D. Ariz. July 16, 2025) (finding no duty to intervene where the plaintiff’s
theory was that officers who could communicate with the shooting officer by radio should
have informed the shooting officer that the suspect was unarmed).
Indeed, Plaintiffs’ allegations cut against them in this regard because they allege
that the Shooting Officers could see into the apartment—which Adair and Orr could not—
and that at least one of the Shooting Officers, Officer Freeman, saw Shawn put down his
gun and saw that he had been injured by the first shot. (Doc. 101 at ¶¶ 60–63.) Further,
Plaintiffs allege that when Shawn opened the door all the Shooting Officers could see he
was not armed. (See id. at ¶¶ 94–152.) Thus, despite Plaintiffs’ arguments that Adair and
Orr had critical information about Shawn that the Shooting Officers lacked, the TAC
demonstrates that it was the Shooting Officers who possessed the relevant facts, not Adair
and Orr.7
7 Plaintiffs also allege that Adair’s conversation with Shawn “was broadcast over
MPD radio while officers monitored Shawn’s movements.” (Doc. 101 at ¶ 49.) At oral
argument, Plaintiffs explained that it is not clear whether the Shooting Officers could hear
the broadcast or were operating on a different channel. I therefore do not construe this
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Plaintiffs have failed to allege that Officers Adair and Orr had knowledge of any
underlying constitutional violation, or that their failure to intervene caused Shawn’s death.
They thus cannot satisfy the first prong of the qualified immunity analysis.
2. Clearly Established
To overcome qualified immunity, Plaintiffs must show that the constitutional right
violated was clearly established, that is, that “existing precedent must have placed the
statutory or constitutional question beyond debate.” Shooter v. Arizona, 4 F.4th 955, 961
(9th Cir. 2021) (quotation marks omitted). “To find that a right is clearly established, courts
generally need to identify a case where an officer acting under similar circumstances was
held to have violated the Constitution.” Zorn v. Linton, 607 U.S. 568, 572 (2026) (per
curiam) (citation modified). Although general standards can clearly establish the law only
in “the rare obvious case,” City of Escondido v. Emmons, 586 U.S. 38, 44 (2019) (per
curiam) (quotation marks omitted), the Supreme Court increasingly requires that “[t]he
relevant precedent . . . define the right with a high degree of specificity,” and emphasizes
that “[p]rinciples stated generally, such as that an officer may not use unreasonable and
excessive force, do not suffice,” Zorn, 607 U.S. at 572 (citation modified).
Plaintiffs concede that there is no case directly on point and I have found none.
Plaintiffs thus rely on the argument that this is “the rare obvious case” in which a general
standard can clearly establish the law. It is not. As described above, Plaintiffs have failed
to allege that the Negotiating Officers committed any constitutional violation, let alone an
“obvious” one. Officers Adair and Orr are entitled to qualified immunity.
3. Leave to Amend
Leave to amend will be denied. Plaintiffs have amended their complaint three times.
(Docs. 60, 96, 101.) More importantly, at oral argument, and in their briefing, Plaintiffs
offered no additional facts they could plead to bolster their claim against the Negotiating
Officers. (Doc. 111 at 17.) I therefore find that further amendment would be futile. See
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself,
allegation against them.
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justify the denial of a motion for leave to amend.”).
B. Monell Claim
A municipality may not be held liable under § 1983 for the actions of its
subordinates. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To establish
municipal liability, a plaintiff must show that a municipality’s “policy or custom” led to
the injury. Id. A “longstanding practice or custom” can satisfy that requirement. Hartzell
v. Marana Unified Sch. Dist., 130 F.4th 722, 734 (9th Cir. 2025) (quotation marks omitted).
The plaintiff “must allege facts that would support the existence of the alleged policy,
practice, or custom.” Warren v. Penzone, 2023 WL 7686666, at *6 (D. Ariz. 2023).
Conclusory allegations are insufficient. Id. “Liability for improper custom may not be
predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient
duration, frequency and consistency that the conduct has become a traditional method of
carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). One or two
incidents will not suffice, but there is no minimum number. See id.; see also Oyenik v.
Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir. 2017). The prior incidents must be
similar, and a “raw number of police shootings,” without facts suggesting they were
unjustified, is not enough. Andrich v. Kostas, 470 F. Supp. 3d 1048, 1064 (D. Ariz. 2020),
aff’d, 2023 WL 6157407 (9th Cir. Sept. 21, 2023).
At oral argument, Plaintiffs characterized their Monell claim as follows: MPD has
a custom of moving to the highest level of force when it is not necessary. Plaintiffs’
amendments to the TAC include a list of incidents in which MPD officers were accused of
excessive force. (See Doc. 101 at ¶¶ 186–211.) Many of these incidents are not similar
enough to this case to warrant consideration. At bottom, Plaintiffs allege that the Shooting
Officers used excessive force when they shot an unarmed individual who was no longer a
threat. I will therefore disregard the incidents that (1) do not involve an officer shooting at
an unarmed individual, and (2) do not include any indication that the use of force was
unconstitutional. This excludes all the incidents involving non-lethal force, the shootings
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of armed suspects, and the shooting of David Dimas.8 Plaintiffs thus allege four incidents
between 2016 and 2020 that are relevant to the analysis because they involved MPD
officers who shot unarmed individuals and the City paid significant settlements to resolve
each. (Id. at ¶¶ 201–202, 205–206.) These incidents are similar enough to the present case
to plausibly allege—at this stage of the case—that the City has a custom of using deadly
force when it is not necessary.
Defendants argue that the prior shootings involved patrol officers in different
settings, and that none involved a SWAT callout. (Doc. 102 at 14–17.) Those differences
may matter at summary judgment or at trial, but they do not defeat the similarity of the
conduct alleged at this stage. And although settlements are not admissions of liability, the
significant sums paid by the City indicate that the claims had some merit. Est. of Osuna v.
County of Stanislaus, 392 F. Supp. 3d 1162, 1173 (E.D. Cal. 2019) (holding that a Monell
claim was adequately plead when the plaintiff pointed to “numerous prior cases in which
defendants were either found liable or agreed to pay a substantial monetary sum to resolve
excessive use of force claims”). Defendants also argue that four shootings of unarmed
individuals over five years is statistically insignificant given the number of use-of-force
incidents MPD officers face. This too, is an argument better suited to summary judgment
or trial. I will not find, at this early stage, that four shootings of unarmed individuals
cannot, as a matter of law, demonstrate a custom of using deadly force when it is not
warranted.
I acknowledge, however, that this is a close question. Four incidents over five years
is not a large number, and the most recent incident preceded Shawn’s death by nearly three
years. But it is more than the “one or two” incidents the Ninth Circuit has found
insufficient. Oyenik, 696 F. App’x at 794. Additionally, whether a custom exists is
normally a question of fact for the jury. Trevino, 99 F.3d at 920. Plaintiffs will ultimately
have to show that a custom existed and that it was the “moving force” behind Shawn’s
8 Although Dimas appears to have been unarmed, Plaintiffs do not offer any
allegation that the force used against him was determined to be unconstitutional—by a
court, or by a significant settlement. (See Doc. 101 at ¶ 211.)
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death. Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997). At the
pleading stage, the present allegations suffice. See Twombly, 550 U.S. at 556; see also Est.
of Osuna, 392 F. Supp. 3d at 1175 (holding that a complaint that “pair[s] general averments
of a policy or custom with particular examples” can survive the pleading stage). I will
therefore deny Defendants’ motion as to the Monell claim and allow Plaintiffs to proceed
on their custom theory.
IV. CONCLUSION
Plaintiffs have not plausibly alleged that Officers Adair and Orr knew the Shooting
Officers were violating Shawn’s constitutional rights, or that their failure to communicate
with the Shooting Officers caused his death. Nor have Plaintiffs identified clearly
established law that would have put Officers Adair and Orr on notice that their conduct
was unlawful. Adair and Orr are therefore entitled to qualified immunity, and because
further amendment would be futile, the claim against them will be dismissed with
prejudice. With respect to the Monell claim, Plaintiffs’ allegations of four prior shootings
of unarmed individuals by MPD officers are enough, at this stage, to state a custom claim
against the City.
Accordingly,
IT IS ORDERED granting in part and denying in part Defendants’ Motion to
Dismiss (Doc. 102) as follows: Plaintiffs’ claim against Defendants Adair and Orr (Count
1) is dismissed with prejudice. Plaintiffs’ Monell claim against the City (Count 2) may
proceed.
IT IS FURTHER ORDERED directing the Clerk of Court to terminate Defendants
Matthew Adair and Christopher Orr as parties.
IT IS FURTHER ORDERED directing the City of Mesa to answer Count 2 within
14 days of this Order. See Fed. R. Civ. P. 12(a)(4)(A).
Dated this 15th day of October, 2026.
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