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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 and in his Official 

Capacity, JOHN DOES I-7, Officers of 

the Mesa, Arizona, Police Department, 

Individually and in their Official 

Capacities,

Defendants.

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

BRAILSFORD’S MOTION TO 

DISMISS PLAINTIFF’S FIRST 

AMENDED COMPLAINT BASED ON 

QUALIFIED IMMUNITY AND FAILURE 

TO STATE A CLAIM

In accordance with FED. R. CIV. P. 8(a) and 12(b)(6), defendant Philip 

Mitchell Brailsford, Jr. (“Brailsford”) moves to dismiss plaintiff’s First Amended 

Complaint. This motion is supported by the following Memorandum of Points and 

Authorities.1

In accordance with General Order 17-08, because Brailsford’s motion is 

“based on ... qualified immunity of a public official ... the time for the moving party 

 

1 A Certificate of Conferral is attached as Exhibit 1.

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to answer ... shall be set by the Court in its order deciding the motion.”2 The Court 

should defer Brailsford’s responsive-pleading deadline until the Court decides this 

Motion.

MEMORANDUM OF POINTS AND AUTHORITIES

Introduction

Plaintiff’s Amended Complaint asserts two 42 U.S.C. § 1983 claims to 

remedy alleged violations of Portillo’s constitutional rights. The first claim alleges 

unlawful arrest/excessive force, and the second alleges unlawful deprivation of 

property. The Amended Complaint’s problem is Brailsford did not arrest Portillo, 

and he had no control over her property. The Amended Complaint articulates no 

specific conduct by Brailsford allegedly violating Portillo’s Constitutional rights. 

Further the Amended Complaint demonstrates Brailsford is entitled to qualified 

immunity on any claims made by Portillo. The Court should dismiss the Amended 

Complaint.

Legal Standard

Under FED. R. CIV. P. 12(b)(6), a defendant may move to dismiss when the 

action fails to allege facts stating a facially “plausible” claim for relief.3 An action is 

facially plausible when it allows the Court “to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.”4 While not a “probability 

requirement,” the plaintiff must demonstrate “more than a sheer possibility that a 

defendant has acted unlawfully.”5 The court “accept[s] factual allegations in the 

complaint as true and construe[s] the pleadings in the light most favorable to the 

nonmoving party.”6 Regardless, the court need not assume the truth of legal 

 

2 General Order 17-08, p. 3, ¶ 5(a).

3 Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 570, 127 S. Ct. 1955, 1973-74 (2007).

4 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50 (2009).

5 Id. (emphasis added).

6 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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conclusions “cast in the form of factual allegations.”7 Conclusory allegations are 

“insufficient” to defeat a motion to dismiss.8

Where the inquiries turn on the reasonableness of conduct under the 

circumstances, video recordings of the incident are compelling evidence.9 While it is 

true a court rarely considers material beyond the pleadings on a Rule 12(b)(6) 

motion, the Court “may properly look beyond the complaint to matters of public 

record.”10 Where, as here, the inquiries turn on the reasonableness of officer conduct 

under the circumstances, video recordings of the incident are compelling evidence.11

The videos can render the facts indisputable and reasonableness becomes a “pure 

question of law.”12 The Court may properly examine both a body-camera video and

an incident report because each is a public record “essential to a full understanding 

of the events underlying [plaintiff’s] complaint.”13 Officer Brailsford was wearing an 

AXON Video body camera.14

Under Fed. R. Civ. P. 12(d), when a Rule 12(b)(6) motion properly presents 

matters outside of the pleadings, the plaintiff must be given time and the opportunity 

to marshal her evidence in response to the outside maters. The practical operation 

of Rule 12(d) is to treat the Motion as one for summary judgement by giving the 

plaintiff additional time to respond as dictated by the Rule. By attaching the bodycamera video, its transcript, and incident report to this motion, Brailsford

acknowledges Portillo should be given additional time to respond to it.

 

7 Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011).

8 Iqbal, 556 U.S. at 678, 19 S. Ct. at 1949-50.

9 See, e.g. Rodeman v. Foster, 767 F.Supp.2d 1176, 1183-84 (D. Col. 2011).

10 Lihosit, 2016 WL 2865870, at pp. *3-4 (D. Ariz. (Wake) May 17, 2016) (quoting Mack v. S. Bay 

Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986)) (emphasis added).

11 See, e.g. Rodeman v. Foster, 767 F.Supp.2d 1176, 1183-84 (D. Col. 2011).

12 Id. at 1184 (citing Scott v. Harris, 550 U.S. 372, 381, n. 8, 127 S. Ct. 1769, 1776 (2007)).

13 Id.

14 The body-camera video and its transcript are attached as Exhibits 2 and 3. All exhibits are 

authentic copies of the originals.

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Facts15

On January 18, 2016, Daniel Shaver was a quest at the La Quinta hotel on 

Superstition Springs Boulevard. He invited two other hotel guests he met in the 

hallway, Monique Portillo (plaintiff here) and Luis Nunez, into his room for drinks. 

While in the room, Shaver opened a gun case to show them a weapon, which was 

later determined to be an air rifle. Shaver pointed the weapon out the window of 

his fifth-floor hotel room while showing his guests how to sight it.

Two other hotel guests were sitting in the hot tub, when they looked up to 

see a figure in a window on the fifth floor holding what appeared to be a rifle with 

a scope. The scared quests made their way into the lobby, relayed what they had 

seen to the staff at the front desk, and told the hotel staff to call 911.

Around this time, a La Quinta employee went up to Mr. Shaver’s room to 

investigate. The door to Shaver’s room was partially open, and she could see three 

people in the room, a large case on the floor, and a weapon being handled by 

those in the room. When Mr. Shaver noticed the La Quinta employee at the door, 

he slammed the case shut and shut the hotel-room door. Shortly after that, Nunez 

left the room.

As Mesa Police Department personnel arrived at the hotel, Sergeant 

Charles Langley formed an immediate-action team. Langley assigned Officers 

Brailsford and Elmore lethal-coverage duty. Three other officers comprised the rest 

of the team. After Langley assigned duties, the team made their way to the fifth 

floor. Once in position near Mr. Shaver’s room, Langley issued commands to the 

occupants of the room. After several attempts with no answer, Langley sent two 

officers downstairs to get a key card and attempt to make phone contact with the

 

15 The following summary of facts is gleaned from Mesa Police Department Incident Report No. 

2016-0180586, attached as Exhibit 4 and Exhibits 2 and 3. The Incident report is over 290 pages 

long. Brailsford has included a PDF of the report on the Exhibit DVD. 

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occupants of the room. One officer spoke with Shaver and instructed him to have 

Portillo come out of the room first. Portillo was to exit the room with no possessions, 

with her hands in the air, and was to follow the instructions of the officers in the 

hallway. Shaver was told to remain in the room until Portillo was secured, and then 

to follow the same instructions.

Shortly after hanging up the phone, Portillo exited the room, purse in hand, 

with Shaver immediately behind her. They were both ordered to lay flat on the 

ground interlacing their arms and crossing their legs. Both did so. They were both 

asked if they were drunk, and both answered that they were not. They were asked 

if anyone else was in the room, and Shaver responded there were no others in the 

room.

Langley then instructed Portillo to crawl towards officers with her hands in 

the air. She did so and was taken into custody by Officer Gomez without incident.

Langley then issued the same commands to Shaver, but after coming up to 

his knees, Shaver put both hands behind his back. Langley told Shaver to put his 

hands where they could be seen, and he then advised Shaver that if he put his 

hands behind his back again, the officers would take it as a threat, and he would 

likely be shot. Shaver said that he understood. Shaver resumed crawling toward 

the officers, but after a few feet, he moved his right hand to the back of his 

waistband—an area where suspects carry weapons. When Shaver moved his 

hand to his waistband out of view, Officer Brailsford shot and killed him. Shaver 

was unarmed.

Discussion

1. Brailsford did not use excessive force against Portillo.

42 U.S.C. § 1983 provides a cause of action against any “person who, under 

color of any statute, ordinance, regulation, custom, or usage of any State” deprives 

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another of a protected right.16 1983 claims require the plaintiff to establish the 

defendant deprived her of a guaranteed right or privilege.17 The test has become 

two-prong requiring the plaintiff establish: (1) “the conduct complained of has been 

committed under the color of state law;” and (2) the “conduct worked a denial of rights 

secured by the Constitution or laws of the United States.”18 Unless a plaintiff satisfies 

both prongs, her 1983 claim fails, and the Court should dismiss it.

Negligence—and even gross negligence—are not enough to support a 1983 

action.19 The plaintiff must establish facts demonstrating a specific intent to injure 

plaintiff.20 Importantly, courts do not infer intent from negligent or grossly negligent 

conduct—the government official must intend to injure the plaintiff.21 Plaintiff must 

also establish a causal connection between the government actors’ conduct and her 

injuries or the claim fails.22

The right to make an arrest “necessarily carries with it the right to use some 

degree of physical coercion or threat thereof to effect it.”23 Courts evaluate 

excessive-force claims in terms of the officer’s objective reasonableness based on 

information possessed during the arrest.24 The court must balance the right 

intruded on against the government interest at stake, the nature of the crime, the 

imminent threat of harm to the police and others, and whether the arrestee was 

 

16 42 U.S.C. § 1983.

17 Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1733 (1978).

18 Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995). See also James v. Tex. Collin Cty., 535 

F.3d 365, 373 (5th Cir. 2008)(same).

19 Gazette v. City of Pontiac, 341 F.3d 1061, 1066-67 (6th Cir. 1994).

20 Id.

21 Id.

22 Id.

23 Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989).

24 Id., at 396-97, 109 S. Ct. at 1872.

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resisting arrest.25 Importantly, objective reasonableness is based on the 

perspective of the officer at the scene and not the 20/20 vision of hindsight.26

Here is the problem with the Amended Complaint: It does not allege Brailsford 

ever touched Portillo, let alone used excessive force against her. Nor can it. As the 

body-camera video shows, Brailsford never left his post in the hallway. He was not 

the commanding officer in charge of Portillo’s arrest. He never spoke to Portillo. He 

never touched her. He did not handcuff her. He did not escort her from the building. 

He was not involved with interviewing her after the shooting. Portillo’s unlawfularrest/excessive-force claim fails as a matter of law because Brailsford never 

touched Portillo.

2. Brailsford did not deprive Portillo of her purse or jacket.

Portillo’s unlawful deprivation of property claim also fails as a matter of law. 

The “facts” in the Amended Complaint belie this truth. Each “fact” is just a legal 

conclusion generically pled in terms of “Defendants’” actions. Portillo specifically 

attributes no act allegedly depriving of her property to Brailsford. Nothing in the 

Amended Complaint pleads unconstitutional conduct by Brailsford against Portillo.

Nor can further amendment cure this flaw by pleading unconstitutional conduct 

by Brailsford. As the video and incident report demonstrate, Brailsford was relieved 

of duty immediately after the shooting. He collected none of the evidence related to 

Portillo’s arrest or Shaver’s shooting. After the shooting, Mesa Police Department 

placed him on administrative leave. Shortly thereafter, Mesa Police Department 

terminated Brailsford. Brailsford did not unconstitutionally deprive Portillo of her 

property because it was never in his care, custody, or control.

 

25 Id. at 396, 109 S. Ct. 1872.

26 Id.

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3. Brailsford is entitled to qualified immunity.

Within the last year, the 9th Circuit and United States Supreme Court each

decided a case addressing the interplay between excessive-force claims and 

qualified immunity for municipal employees.

27 The interplay between these claims is 

not new. Courts use a two-part test to determine whether officers are entitled to 

qualified immunity.

28 First, the Court must find a violation of a constitutional right.29

Second, the Court must determine the alleged constitutional right was clearly

established during the alleged misconduct.

30

Excessive-force claims require “careful attention to the facts and 

circumstances for each particular case, including the severity of the crime at issue, 

whether the suspect poses an immediate threat to the safety of officers or others, 

and whether he is actively resisting arrest or attempting to evade arrest by flight.”31

The reasonableness of a particular use of force “must be judged from the perspective 

of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”32

This evaluation also “must embody allowance for the fact that police 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.”33

Police officers are entitled to qualified immunity when the individual’s “conduct 

does not violate clearly established statutory or constitutional rights of which a 

 

27 S.B. v. San Diego County, 864 F.3d 1010 (9th Cir. 2017) and Kisela v. Hughes, 584 U.S. ___, 

138 S. Ct. 1148 (2018). 

28 Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815-16 (2009).

29 S.B, 864 F.3d at 1013.

30 Id.

31 Kisela, 584 U.S. ___, 138 S. Ct. at 1152 (internal citations omitted).

32 Id.

33 Id.

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reasonable person would have known.”34 “Clearly established” means “the contours 

of the right must be sufficiently clear that a reasonable [officer] would understand that 

what [the officer] is doing violates that right.”35 Under this standard, “the focus is on 

whether the officer had fair notice that [his] conduct was unlawful,” and the conduct’s 

“reasonableness is judged against the backdrop of existing law at the time of the 

conduct.”36 Although this analysis “does not require a case directly on point for a right 

to be clearly established, existing precedent must have placed the statutory or 

constitutional question beyond debate.”37 Qualified immunity protects “all but the 

most plainly incompetent or those who knowingly violate the law.”38

The Courts are “not to define clearly established law at a high level of 

generality.”39 “Specificity is especially important” because the Court has recognized 

“it is sometimes difficult for an officer to determine how the relevant legal doctrine ... 

will apply to the factual situation the officer confronts.”40 Although the result of the 

inquiry depends on the fact of each case, “police officers are entitled to qualified 

immunity unless existing precedent squarely governs the specific facts at issue.”41

Cases involving similar facts move the inquiry “beyond the otherwise hazy border 

between excessive and acceptable force and thereby provide an officer notice that 

a specific use of force is unlawful.”42

A “necessary part of the qualified-immunity standard” is the conclusion “an 

officer cannot be said to have violated a clearly established right unless the right’s 

 

34 Id.

35 S.B., 864 F.3d at 1015.

36 Kisela, 584 U.S. ___, 138 S. Ct. at 1152 (emphasis added).

37 Id. (emphasis added).

38 Id. (emphasis added).

39 Id.

40 Id. at 584 U.S. ___, 138 S. Ct. at 1152-53.

41 Id. at 584 U.S. ___, 138 S. Ct. at 1153 (internal citations omitted) (emphasis added).

42 Id.

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contours were sufficiently definite that any reasonable official in the [officer’s] shoes 

would have understood that he was violating it.”43 Importantly, even when a 

constitutional right has been violated, a municipal employee may still enjoy qualified 

immunity if the right was insufficiently established by prior precedent.44

Sections 1 and 2 above articulate why Brailsford did not violate Portillo’s 

constitutional rights. This analysis focuses on whether those rights were clearly

established on the night of the shooting.

To overcome Brailsford’s entitlement to qualified immunity Portillo must show, 

as of January 18, 2016, any court had upheld Portillo’s allegedly violated rights in 

a factually similar case. Portillo must show through established case law Brailsford

unlawfully arrested and used excessive force against a woman he did not 

personally arrest, handcuff, speak to, or touch. No federal court has ever

considered an excessive-force claim under these circumstances. Similarly, no 

federal court has ever found an unconstitutional deprivation of property against a

police officer relieved of duty, who collected none of the evidence, and was later 

terminated from his employment.

The legal conclusions Portillo has couched as facts in the Amended 

Complaint belie Brailsford’s entitlement to qualified immunity. Portillo fails to 

specifically identify any act performed by Brailsford constituting either excessive 

force or unlawful deprivation of property. She has not clearly articulated which 

rights were violated by Brailsford and through what specific conduct. Instead, she 

ambiguously pleads legal conclusions and generically attributes them to the 

“Defendants.” The Amended Complaint articulates no obvious constitutional 

 

43 Id. (emphasis added).

44 Id.

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violations by Brailsford and because he is entitled to qualified immunity, the 

Amended Complaint should be dismissed without leave to amend.

Conclusion

Defendant Philip Mitchell Brailsford, Jr. respectfully requests the Court dismiss 

plaintiff’s Amended Complaint with prejudice and without leave to amend.

Dated: May 11, 2018.

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.

CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2018 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 and a copy will follow by mail:

Gene N. Chávez

CHAVEZ LAW OFFICES, PA

1220 5th Street

Albuquerque, NM 87102

gene@chavezlawoffices.com

Attorney for Plaintiff

Honorable Susan R. Bolton 

UNITED STATES DISTRICT COURT

Sandra Day O’Connor

U.S. Courthouse, Suite 522

401 West Washington Street, SPC 50

Phoenix, AZ 85003

By: /s/ Amanda Bennett

Case 2:18-cv-00178-SRB Document 16 Filed 05/11/18 Page 11 of 11