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Daniel J. O’Connor, Jr., Bar No. 010081

Justin D. Holm, Bar No. 025202

O’CONNOR & CAMPBELL, P.C.

7955 South Priest Drive

Tempe, AZ 85284

daniel.oconnor@occlaw.com

justin.holm@occlaw.com

602-241-7000

Attorneys for Defendant Philip Mitchell Brailsford, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Monique Portillo,

Plaintiff,

vs.

Philip Brailsford, an Officer of the 

Mesa, Arizona, Police Department, 

Individually; City of Mesa, Arizona, 

and Arizona municipal corporation, 

acting through John Meza, Chief of 

Police City of Mesa, in his Official 

Capacity; Charles J. Langley, an 

Officer of the Mesa, Arizona, Police 

Department, Individually; Brian 

Elmore, an Officer of the Mesa, 

Arizona, Police Department, 

Individually; Christopher Doane, an 

Officer of the Mesa, Arizona, Police 

Department, Individually; Bryan 

Cochran, an Officer of the Mesa, 

Arizona, Police Department, 

Individually; Richard Gomez, an 

Officer of the Mesa, Arizona, Police 

Department, Individually; John/Jane

Does I-5, Officers of the Mesa, 

Arizona, Police Department whose 

identities have been withheld from 

Plaintiff, Individually,

Defendants.

Case No.: 2:18-cv-00178-SRB

DEFENDANT BRAILSFORD’S 

PARTIAL JOINDER IN 

CITY OF MESA DEFENDANTS’ 

MOTION TO DISMISS PLAINTIFF’S 

SECOND AMENDED COMPLAINT

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Pursuant to FED. R. CIV. P. 12(b)(6), Defendant Philip Brailsford 

(“Brailsford”) partially joins City of Mesa Defendants’ Motion to Dismiss Plaintiff’s 

Second Amended Complaint.

1 Specifically, Brailsford joins the City of Mesa

Defendants with respect to Plaintiff’s Fourth Amendment unreasonable-seizure 

claims.

2 In addition to these arguments, Brailsford affirmatively asserts Plaintiff 

has already admitted under oath the defendant officers had probable cause to 

arrest her. Probable cause is an absolute defense to an unlawful-arrest claim. 

Accordingly, Plaintiff’s Second Amended Complaint fails to state a claim upon 

which relief can be granted.

Introduction

After the Court’s October 12, 2018 Order, the only remaining claim against 

the individual officers is Plaintiff’s Fourth Amendment claim of unlawful 

detainment or arrest. As articulated in the Second Amended Complaint, this 

claim is premised on an “integral participant” theory of liability.3 Plaintiff argues 

her initial “arrest” was unlawful because Brailsford never had probable cause to 

believe that she had committed a crime. The Court declined to grant Brailsford’s 

Motion to Dismiss on this claim because he “offered no argument regarding the 

existence of probable cause to arrest Plaintiff or whether it was objectively 

reasonable for Defendant to believe that he had probable cause to arrest 

Plaintiff.”4

Portillo’s undisputed, under-oath, public-record testimony both in her precriminal-trial deposition and during Brailsford’s criminal trial admits the defendant 

officers had probable cause to arrest her. Throughout this testimony Portillo 

 

1 Doc. 51.

2 Id., Section III, pp. 8-11. 

3 See Doc. 37.

4 Id. at 13, ll. 17-20.

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repeatedly admitted pointing a gun out of a fifth story window “wasn’t right,” 

“didn’t look right,” and would have been “scary” to anyone who saw it from the 

outside. Further, in both her deposition and at trial, Portillo admitted she knew 

pointing a gun out a window was a “serious matter,” and Mesa Police responded 

to the hotel “because of the gun at the window.” Probable cause for Portillo’s 

arrest existed on the night of Daniel Shaver’s shooting, and Portillo has already 

admitted its existance under oath—twice.

Standard of Review

Generally, Courts do not consider material beyond the pleadings in 

deciding a Rule 12(b)(6) motion. However, the Court may properly look beyond 

the complaint to matters of public record, and doing so does not convert a Rule 

12(b)(6) motion to one for summary judgment.5

A court may also look to documents on which the complaint necessarily 

relies, if their authenticity is not contested.6 Here, the certified transcripts of 

Portillo’s under-oath, deposition and criminal-trial testimony are both public 

records, and their authenticity is beyond dispute. The Court may consider these 

transcripts in deciding the present motion, and consideration does not convert 

the motion to one for summary judgment.

However, even if the motion were converted to one for summary judgment, 

the Court need only provide the non-moving party with “a reasonable opportunity 

to present all the material that is pertinent to the motion.”7 Here, no further 

opportunity is warranted because Portillo cannot offer evidence changing her 

prior, twice-given, under-oath testimony. 

 

5 Lihosit v. Flam, CV-15-01224-PHX-NVW, 2016 WL 2865870, at *3 (D. Ariz. May 17, 2016), 

citing Mack v. S. Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).

6 Id., citing Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013).

7 Fed. R. Civ. P. 12(d).

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I. The defendant officers had Probable Cause to arrest Portillo.

A. Probable Cause Standard

Under the Fourth Amendment, a warrantless arrest requires probable 

cause.8 Probable cause to arrest exists when officers have knowledge or 

reasonably trustworthy information sufficient to lead a person of reasonable 

caution to believe that an offense has been or is being committed by the person 

being arrested.9 Whether probable cause exists depends upon the reasonable 

conclusion to be drawn from the facts known to the arresting officer at the time of 

the arrest.10

To determine whether an officer had probable cause for an arrest, Courts 

must “examine the events leading up to the arrest, and then decide ‘whether 

these historical facts, viewed from the standpoint of an objectively reasonable 

police officer, amount to’ probable cause.”11 Because probable cause “deals with 

probabilities and depends on the totality of the circumstances,” it is “a fluid 

concept” that is “not readily, or even usefully, reduced to a neat set of legal 

rules.”12 It “requires only a probability or substantial chance of criminal activity, 

not an actual showing of such activity.”13 In other words, probable cause “is not a 

high bar.”14

 

8 United States v. Lopez, 482 F.3d 1067, 1072–73 (9th Cir. 2007), citing Michigan v. Summers, 

452 U.S. 692, 700, 101 S. Ct. 2587, 69 L.Ed.2d 340 (1981).

9 Id., citing Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L.Ed.2d 142 (1964).

10 Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L.Ed.2d 769 (2003).

11 Id., quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L.Ed.2d 911 

(1996).

12 Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983).

13 Id. at 243–244, n. 13, 103 S. Ct. 2317 (1983) (emphasis added). 14 Kaley v. United States, 571 U.S. ––––, ––––, 134 S. Ct. 1090, 1103, 188 L.Ed.2d 46 (2014); 

see also D.C. v. Wesby, 138 S. Ct. 577, 585–86, 199 L. Ed. 2d 453 (2018).

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B. Plaintiff’s Admissions of Probable Cause

Portillo was detained, or “arrested,” after being discovered in a hotel room 

where a rifle was being pointed out of the window. Portillo has admitted the 

circumstances were highly suspicious, indicative of criminal activity, and justified 

the defendant officers responding to the hotel to arrest those involved.

During Brailsford’s criminal trial, Portillo testified:

A. So I looked at my surroundings knowing that, 

Hey, this doesn’t look right. There’s a gun 

pointing outside the window --- well, not outside 

the window, but towards the window. And there’s 

people downstairs. 

So I was like, Hey, you guys, you know, like don’t 

be so close to the window. You know, people 

might get the wrong idea or something, you know, 

and ---15

... 

Q. Now, when you came out of the room, you 

realized this was a serious matter?

A. Yes.

Q. And when you came out, you had in the back 

of your mind that maybe the police are there as a 

result of the gun incident?

A. Yes.

Q. Correct?

A. Yes.16

During her trial testimony, Portillo repeatedly emphasized pointing a gun 

out of an elevated, fifth-story window “didn’t look right.”17 This testimony is 

 

15 Portillo trial transcript, attached as Exhibit 1, p. 24, ll. 5-11. All exhibits are authentic copies of 

the originals.

16 Ex. 1, p. 114-115, ll. 21-4.

17 Ex. 1, p. 28, ll. 17-25; p. 34, ll. 10-23; p. 101, ll. 7-23; p. 103, ll. 19-22; p. 104, ll. 17-23; p. 108-

109, ll. 21-15.

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consistent with Portillo’s under-oath, pre-trial deposition given on February 28, 

2017. For example, during her deposition she stated: 

Q. Did you have any idea thinking maybe the was 

there because of –

A. Of course.

Q. – the gun at the window?

A. Of course, of course.

Q. Because that would be something that would 

bring the law to the room?

A. Of course.18

... 

Q. Was he pointing it toward the highway, out the 

window?

A. Yeah. Because once I recognized my 

surroundings, I was like no, that doesn’t look 

right.

Q. Why didn’t it look right?

A. Just because we were up on the fifth floor, I 

believe that we were, and you know, there’s 

probably people downstairs, you know. And 

somebody can see them, you know, and make a 

call. And what had happened, happened, you 

know.19

...

Q. You did that because you were concerned 

about what others might think?

A. I was concerned, yeah, like it was pointed 

towards the window. Somebody can call or, you 

know, come up and knock on the door, or knock 

 

18 Portillo deposition transcript, attached as Exhibit 2, p. 35. ll. 4-11.

19 Ex. 2, p. 21, ll. 5-13.

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on the door that was slightly open. Or, you know, 

come up here and ask why this gun is out. 

Q. So you were concerned before the police 

arrived about pointing the gun out the window?

A. Yes. I wanted to leave, actually.20

...

Q. You were concerned for others?

A. Yes.

Q. Outside the room?

A. Well, yes. For everybody.

Q. Because they might be scared seeing that; 

right?

A. Well, yeah. I was scared.

Q. You were scared seeing it inside, but you were 

thinking people outside could also be scared?

A. Yes. Just thinking that somebody could catch 

it.

Q. If someone saw that up there?

A. Yes.21

...

A. ....You know, like he was just showing, but it 

was – didn’t look right, by the window, the way 

he was ---

Q. Looked like he was going to shoot?

A. Yes.22

Portillo’s undisputed, under-oath testimony establishes the necessary 

elements of probable cause. Portillo understood pointing a gun out a fifth-story 

 

20 Ex. 2, p. 24, ll. 4-12.

21 Ex. 2, p. 27, ll. 7-17.

22 Ex. 2, p. 45, ll. 9-13.

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window was a dangerous situation that “did not look right.” It was likely to scare 

people and draw the attention of law enforcement. Portillo admitted she expected 

law enforcement to arrive and wanted to leave the hotel room. Perhaps most 

importantly, she admitted when law enforcement did arrive, she knew it was 

“because [a] gun at the window” was a “serious matter.”

Through this undisputed testimony, Portillo has conceded, under oath 

(twice), an objectively reasonable police officer had sufficient knowledge to 

conclude there was a substantial chance of criminal activity occurring in the hotel 

room, and as a result, probable cause existed for her arrest. 

Conclusion

The defendant officers had probable cause to arrest Portillo. For the 

additional reasons discussed above, and those stated in the City of Mesa

Defendants’ Motion to Dismiss, Defendant Philip Mitchell Brailsford respectfully 

requests the Court dismiss Plaintiff’s unlawful-arrest claims in her Second 

Amended Complaint with prejudice.

Dated: January 16, 2019.

O’CONNOR & CAMPBELL, P.C.

By: /s/ Justin D. Holm

Daniel J. O’Connor, Jr.

Justin D. Holm

Attorneys for Defendant

Philip Mitchell Brailsford, Jr.

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CERTIFICATE OF SERVICE

I hereby certify that on January 16, 2019 I electronically filed the foregoing 

with the Clerk of the Court for the U.S. District Court, District of Arizona, using 

the CM/ECF System. A Notice of Electronic Filing will be served to the following 

registered participants:

Gene N. Chávez

CHAVEZ LAW OFFICES, PA

1220 5th Street

Albuquerque, NM 87102

gene@chavezlawoffices.com

Attorney for Plaintiff

Kathleen L. Wieneke

Christina Retts

WIENEKE LAW GROUP, PLC

1095 W. Rio Salado Parkway, Suite 209

Tempe, AZ 85281

kwieneke@wienekelawgroup.com

cretts@wienekelawgroup.com

Attorneys for Defendants City of Mesa, 

Brian Elmore, Christopher Doane, Bryan 

Cochran, and Richard Gomez

By: /s/ Amanda Bennett

Case 2:18-cv-00178-SRB Document 53 Filed 01/16/19 Page 9 of 9