Johnson v. Phoenix, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jesse Johnson,
Plaintiff,
v.
City of Phoenix, et al.,
Defendants.
No. CV-25-01300-PHX-SHD
ORDER
Pending before the Court is Defendants the City of Phoenix and Michael Sullivan’s
(collectively, “Defendants”) Motion to Dismiss Plaintiff Jesse Johnson’s Complaint, (Doc.
9). Johnson responded, (Doc. 12), and Defendants replied, (Doc. 15).1 Because Johnson
has failed to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6), the
motion will be granted, with leave to amend.
I. BACKGROUND
On September 24, 2022, two City of Phoenix Police Department (“the Department”)
officers shot and killed a man who was throwing large rocks at their patrol vehicles. (Doc.
1 at ¶¶ 12–18.) Plaintiff Jesse Johnson was one of the officers. The Department later
terminated Johnson for his role in the shooting, citing Operations Order 1.5.1.A, (the
“Sanctity of Life Provision,” or “Provision”), among other procedures. (Id. at ¶¶ 33–34.)
The Sanctity of Life Provision provides that “the Department respects the dignity of all
1 The parties did not request oral argument, and oral argument is not necessary, so
this motion is decided without holding a hearing. See LRCiv 7.2(f).
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persons and recognizes the sanctity of human life, rights and liberty.” (Id. at ¶¶ 31, 33–34
(cleaned up).) Johnson now brings this action under 42 U.S.C. § 1983. He alleges that
Defendants deprived him of a constitutional right when they terminated him for violating
the Sanctity of Life Provision because the Provision is unconstitutionally vague. (Id. at
¶¶ 41–44.)
A. The Shooting
The Complaint alleges that Johnson began working for the Department as a certified
police officer in January 2020. (Id. at ¶ 4.) On the day of the shooting, an individual
identified as “Mr. Osman” threw “a large rock at a marked Phoenix PD patrol vehicle
occupied by two other officers—Officer O. and Officer G.” (Id. at ¶ 10). The officers
called for backup, and Johnson responded. (Id.) When Johnson arrived on scene, Osman
“started pelting [Johnson’s] patrol vehicle with large river rocks.” (Id. at ¶ 11.) One of the
rocks Osman threw “caused a five-centimeter puncture through the front metal hood” of
Johnson’s vehicle. (Id.)
Johnson parked, got out of his patrol vehicle, and “confronted [Osman], giving him
verbal commands to stop throwing rocks.” (Id. at ¶ 12.) At this time, Officers O. and G.
also exited their patrol vehicle. (Id. at ¶ 13.) Osman continued to throw rocks at Johnson,
one of which hit him. (Id. at ¶ 14.) Osman then “took an overhand throwing stance with
a rock in his hand and took aim again at Officer Johnson.” (Id. at ¶ 15.) Johnson and
Officer O. both “fired their duty weapons at” Osman, “ending the threat.” (Id. at ¶ 16.)
The officers provided medical care “until paramedics arrived to transport [Osman] to the
hospital, where he was later pronounced dead.” (Id. at ¶ 19.)
Johnson fired three rounds at Osman and Officer O. fired one round. (Id. at ¶ 17.)
The medical examiner determined that Osman’s cause of death was “a single gunshot
wound to the neck.” (Id. at ¶ 20.) Johnson alleges that the Department “did not investigate
the trajectory of the shots fired by the officers on scene and did not determine which single
round” killed Osman. (Id. at ¶¶ 18, 20.)
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B. The Investigation and Johnson’s Termination
Following the shooting, the Department and the Maricopa County Attorney’s Office
(“MCAO”) conducted independent investigations. (Id. at ¶¶ 21, 23.) The MCAO did not
prosecute either Officer O. or Johnson. (Id. at ¶ 23.)
The Department’s administrative investigation began with the Professional
Standards Bureau (“PSB”). (Id. at ¶ 21.) One year after the shooting, on September 27,
2023, the PSB issued a report which “made no findings of alleged misconduct” and
“forwarded [the investigation] to the Critical Incident Review Board for review.” (Id. at
¶ 25.) The Critical Incident Review Board reviewed the shooting on February 13, 2024,
and “recommended that [the shooting] be designated as in accordance with [the
Department’s] policy.” (Id. at ¶ 27.)
Defendant Michael Sullivan, the Chief of Police, reviewed the Board’s
recommendation, but ultimately determined that Johnson’s “actions were out of policy.”
(Id. at ¶ 28.) On April 9, 2024, Sullivan conducted a Loudermill hearing,2 at which Johnson
appeared with a representative from the Phoenix Law Enforcement Association. (Id. at
¶ 29.) Ten days later, on April 19, 2024, Johnson was served a “Discipline Notice that
terminated his employment.” (Id. at ¶ 31.) Johnson’s Discipline Notice “cited violations
of four Phoenix Personnel Rules” and Operations Order 1.5.1.A, the Department’s Sanctity
of Life Provision. (Id. at ¶ 25.)
Johnson alleges that the Department has “never disciplined any employee” for
violation of the Sanctity of Life Provision, and further, that it has “never provided guidance
or training specific to” the Sanctity of Life Provision. (Id. at ¶¶ 35–36.) He also alleges
that Officer O., who also shot at Osman, was not terminated but rather, was placed on a
24-hour suspension. (Id. at ¶ 39.) Officer O.’s Discipline Notice stated that he had violated
2 A Loudermill hearing is a pre-termination hearing that a public employee must
receive before being terminated from a job in which they have a protected property interest.
See Cleveland Bd. of Ecud. v. Loudermill, 470 U.S. 532, 542–543 (1985).
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Operations Order 1.5.2.H, which provides that “[e]mployees will assess situations to
determine if de-esclation is possible, and if so, employ appropriate de-esclation tactics to
reduce the potential need to use force or reduce the level of force needed,” and Operations
Order 1.5.3.A, which provides that “[i]t is the policy of the Department to use a reasonable
amount of force to conduct lawful public safety activities.” (Id.) Officer O.’s Discipline
Notice did not cite the Sanctity of Life Provision. (Id.)
C. The Response to Resistance Policy
The Sanctity of Life Provision is the first sentence in a 13-page policy, Operations
Order 1.5, which outlines the Department’s “Response to Resistance” policy (the
“Response Policy”).3 Section 1 of the Response Policy, under which the Sanctity of Life
Provision falls, is titled “General Information,” and outlines the basic principles
undergirding the Response Policy. Relevant here, those principles are (1) that the
Department “respects the dignity of all persons and recognizes the sanctity of human life,
rights and liberty” (the Sanctity of Life Provision); (2) that all employees have a duty to
intervene “when they know or should know another employee is using unreasonable
force”; (3) that all employees “will be trained and instructed in these policies before
employing any of the weapons, tactics, or techniques”; and (4) that employees “will assess
situations to determine if de-escalation is possible” and “employ appropriate tactics
to . . . reduce the potential need to use force or to reduce the level of force needed.” (Doc.
9-1 at 2 (emphasis removed).)
In Section 2, the Response Policy lays out several definitions, including “deadly
physical force,” which is defined as “any tactic or response to resistance that creates a
3 Defendants attached the complete Response Policy to their motion, and request that
judicial notice be taken. (Doc. 9 at 3 n.3.) Johnson does not object to judicial notice. (See
generally Doc. 12.) Because the Response Policy is a public record, and forms the basis
of Johnson’s Complaint, judicial notice is appropriate. See United States v. Ritchie, 342
F.3d 903, 908–09 (9th Cir. 2003) (explaining that courts may refer to evidence outside the
pleadings at the motion to dismiss stage when it is “incorporated by reference” or is an
“adjudicative fact[] . . . not subject to reasonable dispute.” (quotation marks omitted)).
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substantial risk of causing death or serious physical injury, such as the use of a firearm”;
and “excessive force,” defined as “[t]he application of an unreasonable amount of force in
a given incident based on the totality of the circumstances.”4 (Id. at 3.)
Section 3 of the Response Policy sets forth the Department’s “General Policy”
regarding the use of force. It provides that it is the Department’s policy “to use a reasonable
amount of force to conduct lawful public safety activities” and that “the response option
employed will be reasonable and based on the totality of the circumstances.” (Id. at 4.) It
also establishes reporting requirements, noting that any employee “involved in a response
to resistance incident [has] the responsibility of providing the facts and circumstances they
believe justified the response to resistance by completing the necessary reports,
memorandums, etc.” (Id.) Section 3 then outlines the “circumstances that may govern
reasonableness of using a particular response option.” (Id.) Citing Graham v. Connor, 490
U.S. 386 (1989), the Response Policy states that the primary factors are (a) the severity of
the crime, (b) whether the subject poses an immediate threat to the safety of officers or
others; and (c) whether the subject is actively resisting arrest or attempting to evade arrest.
(Id.) This section reiterates that force must be reasonable under the totality of the
circumstances. (Id. at 4–5).
Section 4 of the Resistance Policy sets forth an officer’s “Response Options.” The
response options vary in severity from mere presence, to “Tripping/Tackling,” “Pointed
Gun at Person (PGP),” the use of irritants, tasers, batons, “Direct Impact Munitions” like
stunbag shotguns, and finally, “Deadly Physical Force,” which includes the use of firearms.
(Id. at 6–10.) This section identifies the narrow circumstances in which deadly force is
permitted, including “when such force is reasonable to protect [the employee] or a third
person from another’s use, or threatened use, of deadly physical force,” and emphasizes
that deadly force is “a last resort when other measures are not practical under the existing
4 Section 2 also defines “reasonable belief,” “less-lethal force,” “serious physical
injury,” “types of resistance,” “response options,” and “de-escalation/escalation
strategies.” (Doc. 9-1 at 2–3.)
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circumstances.” (Id. at 9–10.) It also notes that “employees who discharge any firearm
will make a verbal report to a supervisor as soon as practical.” (Id. at 10.)
Section 6 of the Resistance Policy, “Shootings and Other Critical Response to
Resistance Incidents,” details the reports and investigations that are required when a
shooting occurs, stating that “[a]ll shootings . . . resulting in death or serious injury . . . will
be investigated concurrently by” (1) the PSB, (2) the involved employee’s supervisor, and
(3) the Violent Crimes Bureau. (Id. at 13.) The PSB’s report is then sent to the Critical
Incident Review Board chairperson. (Id. at 15)
Operations Order 3.18, the Department’s “Discipline Policy,” states that “[a]ny
violation of City or Department policy,” whether the employee is on or off duty, “may
result in discipline.”5 (Id. at 16.) It further specifies that “[i]ntentional discharge of a
firearm (with injury) in violation of policy” is a “class III violation” and may result in
suspension, referral to the Police Chief for a Loudermill hearing, or termination. (Id. at
40–41.)
D. Procedural History
On April 18, 2025, Johnson filed this case alleging that Defendants violated 42
U.S.C. § 1983 when they terminated him for violating the Sanctity of Life Provision. (Doc.
1 at ¶¶ 41, 44.) Johnson alleges that the Provision is so vague that “an officer of ordinary
intelligence” cannot determine the “conduct it prohibits” and that it “encourages arbitrary
enforcement,” and thus runs afoul of the Fourteenth Amendment’s substantive due process
clause. (Id. at ¶¶ 41–45.) He brings both a facial attack, asserting that the Sanctity of Life
Provision is unconstitutionally vague on its face, and an as-applied challenge, which asserts
the Provision is unconstitutional as applied to him.6 (Id.)
5 The Court will also take judicial notice of the Discipline Policy, which Defendants
have attached to their Response. (Doc. 9 at 14 n.7 (requesting judicial notice of the
Discipline Policy).) It is a public record, and Johnson has not objected to judicial notice.
See Ritchie, 342 F.3d at 908–09.
6 Throughout the parties’ briefing, they appear to conflate two distinct issues: whether
Johnson used reasonable force and whether the Sanctity of Life Provision is
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On July 25, 2025, Defendants moved to dismiss for failure to state a claim. (Doc.
9.) Defendants’ motion raises three issues: First, Defendants argue that Johnson cannot
challenge the Sanctity of Life Provision on its face because it does not implicate the First
Amendment. (Id. at 3–4.) Second, Defendants contend that Johnson has failed to state a
claim for his as-applied challenge because the Sanctity of Life Provision is sufficiently
definite. (Id. at 4–14.) And finally, Defendants assert that Sullivan should be dismissed
from this action because he is sued only in his official capacity. (Id. at 15.) The motion is
fully briefed. (Docs. 12, 15.) Because Johnson’s facial attack depends on the success of
his as-applied challenge, the Court will first address whether the Provision is constitutional
as applied to Johnson.
II. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true” and construed in the light most favorable to the plaintiff, “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. (citation omitted). In making this determination, legal conclusions are not
accepted as true, nor are “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” considered. Id.; see also id. (“Nor does a
complaint suffice if it tenders naked assertions devoid of further factual enhancement.”
(cleaned up)). 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) (emphasis added). 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
(cleaned up).7
unconstitutionally vague. The Court only addresses the latter.
7 Johnson cites Hishon v. King & Spalding, 467 U.S. 69 (1984), for the outdated “no
set of facts” pleading standard. (Doc. 12 at 2.) But it is well-established—and has been
for nearly twenty years—that Twombly overruled the “no set of facts” pleading standard.
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III. DISCUSSION
A. Constitutional Challenge to the Sanctity of Life Provision
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). A policy “can be impermissibly vague for either of two independent reasons.”
Hernandez v. City of Phoenix, 541 F. Supp. 3d 996, 1000 (D. Ariz. 2021), aff’d, 43 F.4th
966 (9th Cir. 2022). “First, if it fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits,” and second, “if it authorizes or even
encourages arbitrary and discriminatory enforcement.” Id. (quoting Hill v. Colorado, 530
U.S. 703, 732 (2000)). “In the public employment context, policies ‘are not void for
vagueness as long as ordinary persons using ordinary common sense would be notified that
certain conduct will put them at risk of discharge.’” Id. (quoting San Filippo v.
Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992)); see also Arnett v. Kennedy, 416 U.S.
134 (1974) (applying these principles in the public employment context).
1. As-Applied Challenge
To succeed on his as-applied challenge, Johnson must plead facts supporting the
reasonable inference that the Sanctity of Life Provision is so vague that either (1) “ordinary
persons using ordinary common sense” would not be aware that shooting at a civilian
would “put them at risk of discharge” under the Provision, or (2) that the Provision
“authorizes or even encourages arbitrary and discriminatory enforcement.” Hernandez,
541 F. Supp. 3d at 1001; Recreational Dev. of Phoenix, Inc. v. City of Phoenix, 83 F. Supp.
2d 1072, 1087–89 (D. Ariz. 1999). At bottom, the Provision must not be so vague that it
deprives officers of fair warning and fair enforcement. Grayned, 408 U.S. at 109–13
(“Vague laws may trap the innocent by not providing fair warning” of prohibited conduct
or by not giving “explicit standards for those who apply them.”).
550 U.S. at 562–63 (holding that Conley’s “no set of facts language” has “earned its
retirement” and “is best forgotten”).
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“The degree of vagueness that the Constitution tolerates—as well as the relative
importance of fair notice and fair enforcement—depends in part on the nature of the
enactment.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498 (1982). Courts apply a less stringent vagueness test when the challenged language
imposes “civil rather than criminal penalties because the consequences of imprecision are
qualitatively less severe.” Id.; see also Arnett, 416 U.S. at 159 (noting that a statute
regulating federal employment was not drafted “for the purpose of defining criminal
conduct”). In addition, vagueness challenges are “consistently evaluate[d] . . . in light of
the sophistication of the persons or entities subject to the law.” Oregon Ass’n Hospital and
Health Sys. v. Oregon, 734 F. Supp. 3d 1139, 1157 (D. Or. 2024), aff’d, 2025 WL 1833815
(9th Cir. 2025) (collecting cases). Thus, it is appropriate to consider whether an “ordinary
officer should understand what conduct might reasonably put them at risk of discharge or
punishment.” Hernandez, 541 F. Supp. 3d at 1003 (emphasis added). Relatedly, “[l]aw
enforcement agencies are entitled to deference, within reason, in the execution of policies
and administrative practices that are designed to preserve and maintain security,
confidentiality, internal order, and esprit de corps among their employees.” Aguilera v.
Baca, 510 F.3d 1161, 1171 (9th Cir. 2007) (quotation marks omitted); see also Kelly v.
Johnson, 425 U.S. 238, 247 (1976) (holding that police regulations are entitled to the same
“wide latitude accorded [state and local] government in the dispatch of its own internal
affairs” (quotation marks omitted)); Hernandez, 541 F. Supp. 3d at 1002 (applying the
deference owed to law enforcement agencies to a vagueness challenge).
Finally, allegedly vague phrases are not analyzed in isolation. Courts will consider
surrounding statutory text, as well as accompanying regulations and procedures in
determining whether an enactment is unconstitutionally vague. See Arnett, 416 U.S. at 160
(reasoning that the challenged language “was not written upon a clean slate in 1912, and it
does not appear on a clean slate now”); Grayned, 408 U.S. at 110–13 (assessing vagueness
based upon “the words of the ordinance itself,” including its preamble; limiting
interpretations by courts of analogous language; and “the interpretation of the statute given
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by those charged with enforcing it”). Nor do courts require “mathematical certainty” from
the challenged language. Grayned, 408 U.S. at 110. Indeed, “[t]here are limitations in the
English language with respect to being both specific and manageably brief.” Arnett, 416
U.S. at 159 (quoting United States v. Hariss, 347 U.S. 612, 618 (1954)). Consequently,
courts will not “convert into a constitutional dilemma the practical difficulties” of crafting
employee regulations that are both “general enough to take into account a variety of human
conduct and sufficiently specific to provide fair warning that certain kinds of conduct are
prohibited.” Id. at 159–60.
In the end, plaintiffs “seeking to invalidate a statute for vagueness carr[y] a heavy
burden.” Health Sys., 734 F. Supp. 3d at 1155. They must allege that the challenged
enactment “is vague ‘not in the sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather . . . that no standard of
conduct is specified at all.’” Id. (quoting Hoffman, 455 U.S. at 495 n.7).
a. Fair Warning
With these principles in mind, the Court turns to the Sanctity of Life Provision as
applied to Johnson’s conduct. To begin, officers of ordinary intelligence are on notice that
they may be terminated if they violate the Provision. The Department’s Discipline Policy
states that any violation of Department policy may result in discipline. (Doc. 9-1 at 16.)
“Discipline” includes termination. (See id. at 17–18 (defining types of possible discipline,
including written reprimands, suspension, demotion, and termination).) The Sanctity of
Life Provision is a part of the Department’s Response Policy. (Id. at 2.) It is thus clear
that violation of the Provision could result in termination.8
The parties’ dispute centers on whether an officer of ordinary intelligence has fair
warning that conduct like Johnson’s could violate the Sanctity of Life Provision. As noted
8 The parties do not dispute this point. Johnson argues only that he cannot discern
what conduct violates the Sanctity of Life Provision, not that he did not know he could be
terminated for violating it. (See generally Doc. 12.)
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above, the Sanctity of Life Provision is the first sentence in the Department’s Response
Policy. (Id. at 2.) It states: “The Department respects the dignity of all persons and
recognizes the sanctity of human life, rights, and liberty.” (Id. at 2.) It follows that
violating a person’s dignity, or the sanctity of human life, rights, and liberty, would in turn
violate the Department’s policy respecting the same.
There is little more threatening to human dignity or the “sanctity of human life,
rights, and liberty” than shooting a gun at a civilian. When an officer uses deadly force,
the risk of loss of life, rights, and liberty is significant—if not inherent—and, on many
occasions, the impact to the subject of the deadly force is permanent. There may be close
cases, situations in which an officer uses lesser force and its impact on the sanctity of life,
rights, and liberty is difficult to discern. But the use of deadly force—which is,
fundamentally, force intended to deprive another of their life, rights, and liberty—is not
one of them. See Arnett, 416 U.S. at 159 (reasoning that when “the general class of offense
to which the [challenged] provisions are directed is plainly within their terms, and they will
not be struck down as vague, even though marginal cases could be put where doubts might
arise” (cleaned up)). Every time an officer fires a gun at a civilian, they risk violating the
sanctity of life, and therefore, the Department’s Sanctity of Life Provision. The Provision
thus provides “ordinary officer[s]” fair warning that Johnson’s conduct, firing three rounds
at a civilian, “might reasonably put them at risk of discharge or punishment.”9 See
Hernandez, 541 F. Supp. 3d at 1003.
Importantly, any ambiguity in the Sanctity of Life Provision is mitigated by the
remainder of the Response Policy. See California Teachers Ass’n v. State Bd. of Educ.,
271 F. 3d 1141, 1154 (9th Cir. 2001) (“in analyzing . . . a statute’s vagueness . . . it is
necessary to consider the context in which the statute operates”). Johnson concedes that
9 The Complaint implies that Johnson may not have fired the bullet that killed Osman.
(Doc. 1 at ¶ 18.) Drawing reasonable inferences in Johnson’s favor, as courts must at this
stage, it is therefore assumed the relevant conduct for the vagueness analysis is shooting at
a civilian, rather than shooting and killing a civilian.
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the Sanctity of Life Provision “precede[s] an elaborate Use of Force policy which
[identifies] acceptable conduct in use of force situations.”10 (Doc. 12 at 5.) His description
is apt. The Response Policy identifies (1) the types of response options available to officers
when confronted with resistance, (Doc. 9-1 at 5–10 (detailing varying levels of force from
mere “presence” to “deadly physical force”)); (2) factors to consider before using force,
(id. at 4–5 (including the “severity of crime” and whether the “subject poses an immediate
threat” to officers or the public)); and (3) defines what constitutes unreasonable, or
excessive force, (id. at 2 (defining excessive force as an “unreasonable amount of
force . . . based on the totality of the circumstances”)).
With respect to deadly force, the Response Policy provides further guidance,
instructing officers that the use of deadly force is “a last resort when other measures are
not practical under the existing circumstances” and is only appropriate when (1) necessary
“to protect [officers] or a third person from another’s use, or threatened use, of deadly
physical force”; (2) to “prevent the escape of a subject whom [officers] . . . believe have
committed an offense involving the infliction or threat of serious physical injury or death
and is likely to endanger human life or cause serious injury to another unless apprehended
without delay”; or (3) in “situations where [officers] must overcome or prevent an attack
[they] believe would produce serious physical injury or death to the employee or another
person.” (Id. at 9–10.)
These standards reflect the factors the Supreme Court has identified in determining
the reasonableness of force. (Id. at 4 (citing Graham v. Connor, 490 U.S. 386 (1989) for
relevant factors to determine the reasonableness of force and stressing that reasonableness
depends on “the totality of the circumstances”).) As the Supreme Court stated in Graham,
10 Johnson appears to argue that because his Discipline Notice only cited the Sanctity
of Life Provision, the remainder of the Response Policy is irrelevant. (See Doc. 12 at 5
(arguing that “here, [the Sanctity of Life Provision] was uncoupled from any reference to
the remainder of the [Response Policy]”).) But that Johnson’s Discipline Notice did not
cite other provisions of the Resistance Policy does not render it irrelevant to the vagueness
analysis. See Grayned, 408 U.S. at 110–13 (considering the challenged language’s
context); Cal. Teachers Association, 271 F. 3d at 1154 (same).
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determining the reasonableness of an officer’s use of force, “requires careful attention to
the facts and circumstances of each particular case,” and as a result “is not capable of
precise definition or mechanical application.” 490 U.S. at 396 (quotation marks omitted).
The Response Policy—like the test in Graham upon which it is based—may be
“imprecise,” but it is a “comprehensible normative standard” against which officers
routinely measure their conduct. See Health Sys., 734 F. Supp. 3d at 1155 (quotation marks
omitted). As such, it is sufficient to provide officers with “fair warning” of what conduct
is prohibited.
Nonetheless, Johnson argues that the Sanctity of Life Provision “fails to state when
deadly force is permissible and when alternatives should be exhausted.”11 (Doc. 12 at 8.)
In doing so, he invokes one of the most challenging questions facing courts and police
officers alike: when does an officer’s life outweigh the life of a civilian? (See id. at 6.)
Johnson seeks certainty where there is none. An officer’s decision to use deadly force is
inherently ambiguous; it does not follow that any language regulating that decision is
unconstitutionally vague. See Arnett, 416 U.S. at 159–60 (quoting Colten v. Kentucky, 407
U.S. 104, 110 (1972) (declining to “convert into a constitutional dilemma the practical
difficulties” of crafting employee regulations that are both “general enough to take into
account a variety of human conduct and sufficiently specific to provide fair warning that
certain kinds of conduct are prohibited”)). And contrary to Johnson’s assertion, this
ambiguity reinforces, rather than undermines, the need for “an admittedly general
standard” like the totality of the circumstances test. Id. at 159. It would be impossible for
the Department to “define the precise circumstances of every conceivable” use of
unreasonable force. See Young v. Dep’t Transp. Nat. Safety Bd., 886 F.2d 334 (Table),
1989 WL 112407 at *2 (9th Cir. 1989).
Johnson’s argument does raise a unique characteristic of police work relevant to this
11 To be clear, the Response Policy does state “when alternatives should be
exhausted”—in fact, it is unequivocal on this point: deadly force is a “last resort” that
should only be used “when other measures are not practical.” (Doc. 9-1 at 10.)
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analysis. “[P]olice officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.” Graham, 490 U.S. at 397. Those judgments
will generally be later scrutinized by law enforcement departments, investigative bodies,
and eventually, if criminal charges are brought or civil relief sought, the courts. Thus,
when a Department officer decides to use deadly force, he or she will not know with
certainty if, in the eyes of the Department or the law, it is a “reasonable” use of force and
therefore consistent with the Response Policy. In fact, a final reasonableness determination
may not be made until well after the incident occurs—in Johnson’s case, over a year later.
Thus, when officers use deadly force, they take the risk that the Department will conclude
it was not “reasonable” and terminate them for violating the Response Policy.
The Response Policy makes clear that officers are at risk of termination any time
they use deadly force. Any interaction between officers and civilians involving an officer’s
firearm is reported for investigation. If an officer points a gun at a civilian, it must be
reported to a supervisor for investigation. (Doc. 9-1 at 11.) Any discharge of a firearm,
whether accidental or intentional, must be reported to a supervisor for investigation. (Id.
at 13.) If an officer discharges a weapon and it results in injury or death, three concurrent
investigations begin—one by the officer’s supervisor, one by the PSB, and one by the
Violent Crimes Bureau/Homicide Unit. (Id.) Officers who use any type of force, including
deadly force, must defend their use of force “by providing the facts and circumstances they
believe justified the response to resistance” in a “Response to Resistance report.” (Id. at
4.) These requirements make one thing abundantly clear: every time officers use deadly
force, they will be subject to a rigorous investigatory process that may result in termination.
When read as a whole, the Response Policy provides clear standards of conduct that
mitigate any ambiguity in the Sanctity of Life Provision. It identifies the tests against
which an officer’s conduct will be measured and provides guidelines for how officers
should decide to use deadly force. It also makes clear that every use of deadly force will
be thoroughly investigated by the Department, thus placing officers at risk of discharge.
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To survive a vagueness challenge, officers need not be certain that their conduct will lead
to termination; they need only have fair warning that their conduct may “put them at risk
of” termination. Hernandez, 541 F. Supp. 3d at 1001 (emphasis added). The Sanctity of
Life Provision gives officers of ordinary intelligence fair warning that when they shoot a
gun at a civilian—as Johnson did here—they may be at risk of discharge.
b. Fair Enforcement
To survive a vagueness challenge, the Sanctity of Life Provision must “provide
explicit standards for those who” enforce it. Grayned, 408 U.S. at 108. Absent such
standards, it would “impermissibly delegate[] basic policy matters to [officials] for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.” Id. at 108–09. At the same time, “enforcement requires some
degree of . . . judgment.” Id. at 114. Thus, the challenged language need only “define[]
boundaries sufficiently distinct” such that officials can exercise a “degree of judgment
[that] is permissible.” Id.
Viewed in isolation, the Sanctity of Life Provision arguably lacks “explicit
standards” for enforcement. But, as detailed above, the Response Policy sets out a robust
set of standards for what constitutes reasonable and unreasonable force. (See Doc. 9-1 at
2–13.) And while the Response Policy leaves significant discretion in the hands of
supervising officers, it also provides for the flexibility and individualized assessment
necessary to evaluate use-of-force incidents. See Grayned, 408 U.S. at 110 (upholding
statute “marked by flexibility and reasonable breadth, rather than meticulous specificity”
(quotation marks omitted)); Prime Healthcare Servs., Inc. v. Harris, 216 F. Supp. 3d 1096,
1125 (S.D. Cal. 2016) (“[T]hat the Attorney General has discretion and may base her
determination on subjective criteria does not render the statute void for vagueness.”).
Again, the Response Policy applies the same standards for determining whether force is
reasonable as the Supreme Court. (Doc. 9-1 at 4–5); Graham, 490 U.S. at 396. Our high
court’s endorsement significantly undermines Johnson’s concerns that the Response Policy
grants unfettered discretion to officials who enforce it.
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In addition to the standards outlined in the Response Policy, the Department has a
thorough and exacting investigation process, involving several internal and external levels
of review. (See Doc. 9-1 at 13.) This includes three concurrent investigations by the
officer’s supervisor, the PSB, and the Violent Crimes/Homicide Unit. (Id.) The Use of
Force Board12 (“UFB”) also reviews shootings and use-of-force incidents for consistency
with Department policy, and employees involved in those incidents must appear before the
UFB, where they are “give[n] the opportunity to relate the circumstances and decision
processes in the use of force incident and respond to board questions.” (Id. at 27.) The
Discipline Review Board (“DRB”) then reviews all “violations of the rules and regulations
of the Department that are classified as a suspension, demotion, or termination.” (Id. at
26.) Employees may also appear before the DRB, to “respond to any sustained assertions
made against them” and “submit relevant written material in support of their position.”
(Id.) Before termination, officers are also offered a Loudermill hearing. (Id. at 38.) Such
procedures further limit any danger that the Response Policy authorizes or encourages
arbitrary or discriminatory enforcement.
Johnson argues that the Department’s treatment of Officer O. supports his claim that
the Sanctity of Life Provision is so vague that it encourages arbitrary and discriminatory
enforcement. (Doc. 12 at 9–10.) That the Department reached different conclusions
concerning Johnson and Officer O.’s conduct, however, does not render the Response
Policy unconstitutionally vague. United States v. Agront, 773 F.3d 192, 198 (9th Cir. 2014)
(rejecting the argument that a statute was unconstitutionally vague because only one of
three offenders was cited for violating the challenged provision). When more than one
officer is involved in a shooting, it is within the Department’s discretion to evaluate the
officers’ different actions before, during, and after the incident to determine whether, and
to what extent, each officer violated the policy—and discipline each officer accordingly.
This is precisely the permissible degree of judgment that the Response Policy provides.
12 The Use of Force Board is also referred to as the Critical Incident Review Board by
the parties. (See Doc. 12 at 13.)
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Grayned, 408 U.S. at 114.
Johnson also notes that Sullivan’s finding that Johnson violated the policy conflicted
with the Critical Incident Review Board’s recommendation. (Doc. 12 at 12.) Different
people can reach different conclusions about the application of the Response Policy,
however, without rendering it unconstitutionally vague. See Young, 886 F.2d 334 (Table),
1989 WL 112407 at *2 (rejecting the argument that “the mere fact that experienced pilots
disagree as to whether [plaintiff’s] operation of the helicopter violated the regulations
proves that the statute is unconstitutionally vague”); cf. Smith v. United States, 431 U.S.
291, 309 (1977) (“Similarly, the possibility that different juries might reach different
conclusions as to the same material does not render the statute unconstitutional.” (citations
omitted)). The Response Policy provided Sullivan with sufficient parameters to decide
whether Johnson violated the Sanctity of Life Provision. Johnson has not alleged sufficient
facts to support the reasonable inference that its application to his conduct was arbitrary or
discriminatory.13
Finally, the Court notes that similarly broad phrases regulating employee conduct
repeatedly withstand vagueness challenges. See e.g., Arnett, 416 U.S. at 158–59 (rejecting
facial attack on statute that allowed federal employees to be terminated for “such cause as
will promote the efficiency of the service”); Tindle v. Caudell, 56 F.3d 966, 973 (8th Cir.
1995) (upholding police department regulation that prohibited officers from “engag[ing]
in any personal act or conduct” that “could result in justified criticism of the officer or the
department” and further that “[n]o officer shall be involved personally in any disturbance
13 Much of Johnson’s argument reads as a challenge to Sullivan’s decision to fire
Johnson in light of the Critical Incident Review Board’s recommendation that his conduct
was not out of policy. (See Doc. 12 at 12.) But whether Sullivan made the right decision
is not the question before the Court, which need only consider whether the Sanctity of Life
Provision and Response Policy provided Sullivan with appropriate guardrails within which
to exercise his discretion. Because it does, Johnson’s as-applied challenge fails. See Prime
Healthcare Servs., Inc. v. Harris, 216 F. Supp. 3d 1096, 1126 (S.D. Cal. 2016)
(“[Plaintiff’s] argument at its core challenges [Defendant’s] conduct and alleged abuse of
discretion, not the vagueness of the Statute.”).
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or police incident to his discredit.”); Flanagan v. Munger, 890 F.2d 1557, 1569 (10th Cir.
1989) (“[B]road rules such as ones condemning conduct unbecoming an officer,
or . . . conduct impairing the operation or efficiency of the department or bringing the
department into disrepute, have been generally upheld against challenges of facial
vagueness.” (citation omitted)); Hernandez, 541 F. Supp. 3d at 998, 1003 (holding that
social media policy banning posts that could “cause embarrassment to” or “discredit . . . in
any way” the police department were not unconstitutionally vague).
Indeed, employers may use general terms to address a wide range of employee
conduct. See Arnett, 416 U.S. at 159–61. They may also invoke lofty principles to hold
their employees to high moral standards. See id. at 161 (“The most conscientious of codes
that define prohibited conduct of employees includes ‘catchall’ clauses prohibiting
employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’” (citation omitted)). If
catchall phrases as broad as “conduct unbecoming an officer” provide adequate guardrails,
a provision that incorporates standards expressly endorsed by the Supreme Court
necessarily does too. Johnson has thus failed to allege that the Sanctity of Life Provision
is so capacious that it encourages arbitrary or discriminatory enforcement. Johnson’s as-
applied challenge to the Sanctity of Life Provision therefore fails and will be dismissed.
2. Facial Challenge
Defendants also argue that Johnson may not assert a facial vagueness challenge
because the Sanctity of Life Provision does not implicate First Amendment rights. (Doc.
9 at 4.) To support this proposition, they cite United States v. Jae Gab Kim, 449 F.3d 933,
942 (9th Cir. 2006) which states that “vagueness challenges to statutes that do not involve
First Amendment violations must be examined as applied to the defendant.” (Id.) While
there are “a number of Ninth Circuit cases that appear to make this point,” “the underlying
law is significantly more complicated.” Schuchardt v. Sousa, 753 F. Supp. 3d 1161, 1178
(D. Idaho 2024) (collecting cases).
“It is well established that vagueness challenges to statutes which do not involve
First Amendment freedoms must be examined in the light of the facts of the case at hand.”
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United States v. Mazurie, 419 U.S. 544, 550 (1975) (citation omitted). This does not,
however, preclude facial challenges to policies that do not implicate the First Amendment.
Kashem v. Barr, 941 F.3d 358, 375–76 (9th Cir. 2019). Rather, outside the First
Amendment context, “[a] plaintiff who engages in some conduct that is clearly proscribed
[by the challenged law] cannot complain of the vagueness of the law as applied to the
conduct of others.” Id. at 375 (quotation marks omitted). This principle is grounded in
“the traditional rules governing constitutional adjudication” which establish “that a person
to whom a statute may constitutionally be applied will not be heard to challenge that statute
on the ground that it may conceivably be applied unconstitutionally to others.” Id. (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)). Thus, as a general rule, a litigant “who
cannot sustain an as-applied vagueness challenge to a statute cannot be the one to make a
facial vagueness challenge to the statute.” Id. (acknowledging that some exceptions to this
rule exist, such as challenges to clauses that “d[o] not lend themselves easily to a traditional
as-applied analysis”). In sum, unless First Amendment rights are implicated, a person who
is not injured by the vagueness of a statute lacks standing to pursue a facial challenge. See
id.; see also Broadrick, 413 U.S. at 610–11.
Whether Johnson may bring a facial challenge to the Sanctity of Life Provision thus
depends on whether the Provision, as applied to him, is unconstitutionally vague. Because
Johnson has failed to state a claim for his as-applied challenge, his facial challenge will
also be dismissed.
B. Official Capacity Claim Against Sullivan
Having found that Johnson has failed to state a claim against all Defendants, the
Court need not address whether his claim against Sullivan in his official capacity is
proper.14 Nonetheless, because Johnson will be given leave to amend his Complaint, it is
worth noting that a suit against a municipal official in his official capacity is treated as a
14 Johnson asserts that Defendants failed to meet and confer on this issue. (Doc. 12 at
3.) Because the Court dismisses the Complaint on other grounds, it need not consider
whether Defendants met their conferral obligations on this issue, and Plaintiffs’ request to
strike it is moot.
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suit against the municipality itself. Center for Bio-Ethical Reform, Inc. v. Los Angeles,
Cnty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008). Johnson names the City as a
defendant, so his § 1983 claims against Sullivan in his official capacity are likely
redundant. See id. (“When both a municipal officer and a local government entity are
named, and the officer is named only in an official capacity, the court may dismiss the
officer as a redundant defendant.”); Ogbonnaya v. City of Mesa, 2015 WL 241444, at *3
(D. Ariz. 2015); Luke v. Abbott, 954 F. Supp. 202, 203 (C.D. Cal. 1997) (dismissing claims
against city official in his official capacity as redundant). The Court thus doubts the
propriety of Sullivan being a named defendant.
C. Leave to Amend
Rule 15 provides that the “court should freely give leave [to amend] when justice
so requires.” Fed. R. Civ. P. 15(a)(2). As the term “freely” suggests, this “policy is to be
applied with extreme liberality.” Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th
Cir. 2018) (quotation marks omitted). “Although leave to amend should be given freely,
denying leave is not an abuse of discretion if it is clear that granting leave to amend would
have been futile.” In re Cloudera, Inc., 121 F.4th 1180, 1189–90 (9th Cir. 2024) (quotation
marks omitted).
Johnson has not sought leave to amend, nor has he identified any additional facts he
could plead that would bolster his claims. (See generally, Doc. 12.) Given the detailed
nature of the Response Policy, and its clear application to an officer’s use of deadly force,
it is evident that any amendment would be futile. Leave to amend will therefore be denied.
IV. CONCLUSION
The Court holds that the Sanctity of Life Provision provides fair warning to officers
of ordinary intelligence that shooting at a civilian would place them at risk of discharge,
and that, together with the remainder of the Response Policy, it does not encourage
arbitrary or discriminatory enforcement. Johnson’s as-applied challenge thus fails, and he
cannot bring a facial challenge.
Accordingly,
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IT IS ORDERED granting Defendants’ Motion to Dismiss for Failure to State a
Claim, (Doc. 9), with prejudice.
IT IS FURTHER ORDERED directing the Clerk of Court to dismiss this case and
enter judgment accordingly.
Dated this 23rd day of March, 2026.
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