PLAINTIFF’S OPPOSITION TO 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

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David A. Chami, AZ #027585

PRICE LAW GROUP, APC

8245 N. 85th Way

Scottsdale, AZ 85258

T: (818) 600-5515

F: (818) 600-5415

david@pricelawgroup.com

Haytham Faraj

LAW OFFICES OF HAYTHAM FARAJ

1935 W Belmont Ave.

Chicago, IL 60657

T: (312) 635-0800

F: (202) 280-1039

haytham@farajlaw.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Mussalina Muhaymin as Personal 

Representative of the Estate of 

Muhammad Abdul Muhaymin Jr., 

Plaintiff,

v.

City of Phoenix, an Arizona Municipal 

Corporation, et al.,

Defendants.

Case No.: CV-17-04565-PHX-SMB

PLAINTIFF’S OPPOSITION TO 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

Assigned to Honorable

Susan M. Brnovich

Plaintiff, Mussalina Muhaymin (“Plaintiff” or “Ms. Muhaymin”), through 

undersigned counsel, hereby submits her Opposition to Defendants’ City of Phoenix (“City 

of Phoenix”), Antonio Tarango (“Tarango”), Officer Oswald Grenier, Officer Kevin 

McGowan, Officer Jason Hobel, Officer Ronaldo Canilao, Officer David Head, Officer 

Susan Heimbigner, Officer James Clark, Officer Dennis Leroux, Officer Ryan Nielsen and 

Sergeant Steven Wong’s (“Defendant Officers”) (together as “Defendants”) Motion for 

Summary Judgment.
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SUMMARY JUDGMENT

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TABLE OF CONTENTS

I. INTRODUCTION..................................................................................................... 1

II. FACTUAL BACKGROUND ................................................................................... 1

III. LEGAL STANDARD ............................................................................................. 10

IV. ARGUMENT .......................................................................................................... 10

A. Defendants Are Not Entitled To Qualified Immunity ........................................ 10

1. Applicable Standard For Resolving Qualified Immunity At Summary 

Judgment .................................................................................................. 11

2. The Facts Of The Case, Taken In The Light Most Favorable To 

Plaintiff, Support A Reasonable Finding That The Defendant Officers’ 

Conduct Violated Muhaymin’s Fourth Amendment Rights.................... 11

3. Plaintiff May Present Evidence To The Jury That Each Defendant 

Officer Was An Integral Participant In The Violation Of His 4th

Amendment Rights .................................................................................. 20

4. At The Time Of The Defendant Officers’ Violation, Muhaymin’s 

Rights Were Clearly Established Constitutional Rights Of Which A 

Reasonable Person Would Know ............................................................ 21

B. PLAINTIFF’S CLAIM FOR FAILURE TO INTERVENE SURVIVES 

SUMMARY JUDGMENT ................................................................................. 29

C. PLAINTIFF’S AMERICANS WITH DISABILITIES ACT CLAIM 

SURVIVES SUMMARY JUDGMENT............................................................. 30

D. PLAINTIFF’S ARIZONA STATE LAW CLAIMS SURVIVE SUMMARY 

JUDGMENT ....................................................................................................... 34

1. The Defendant Officers Are Not Entitled To Immunity ......................... 34

2. Plaintiff Is Entitled To Present Alternative Theories Of Liability .......... 37

3. Testimony Regarding Damages Are To Be Weighed By The Jury......... 38

4. Plaintiff’s Claim for Punitive Damages Under Federal Law Survives 

Summary Judgment ................................................................................. 39

5. Plaintiff’s State Law Claims Against The City Of Phoenix Survive....... 40

V. CONCLUSION ....................................................................................................... 40

TABLE OF AUTHORITIES
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Cases

Abdi v. Lovell, 

No. CV-08-0321-PHX-GMS, 2009 WL 976503 (D. Ariz. Apr. 9, 2009) ..................... 38

Abston v. City of Merced,

506 Fed.Appx. 650 (9th Cir. 2013) ................................................................................ 24

Andrich v. Kostas, 

470 F. Supp. 3d 1048 (D. Ariz. 2020)...................................................................... 17, 18

Arce v. Blackwell, 294 F. App'x 259 (9th Cir. 2008) ................................................... 14, 22

Ashcroft v. al–Kidd, 

563 U.S. 731, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) .............................................. 21

Bodett v. CoxCom, Inc., 

366 F.3d 736 (9th Cir. 2004).......................................................................................... 34

Boyd v. Benton Cty., 

374 F.3d 773 (9th Cir. 2004).......................................................................................... 20

Bronk v. Ineichen, 

54 F.3d 425 (7th Cir.1995)............................................................................................. 31

Brosseau v. Haugen, 

543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) .................................................. 28

Bushell-McIntyre v. City of San Jose, 

252 F. App'x 810 (9th Cir. 2007) ................................................................................... 28

Chuman v. Wright, 

76 F.3d 292 (9th Cir.1996)............................................................................................. 20

Cunningham v. Gates, 

229 F.3d 1271 (9th Cir. 2000), as amended (Oct. 31, 2000).................................... 21, 30

Davis v. Ma,

848 F. Supp. 2d 1105 (C.D. Cal. 2012), aff'd, 568 F. App'x 488 (9th Cir. 2014).......... 31

Deorle v. Rutherford, 

272 F.3d 1272 (9th Cir. 2001)........................................................................................ 12

Drummond ex rel. Drummond v. City of Anaheim, 

343 F.3d 1052 (9th Cir. 2003).................................................................................passim

Estate of Dunlap, 

38 Ariz. 525 (Ariz. 1931) ............................................................................................... 39
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Fernandez v. Virgillo, 

No. 2:12-CV-02475 JWS, 2014 WL 2930749 (D. Ariz. June 30, 2014), aff'd, 651 F. 

App'x 692 (9th Cir. 2016)............................................................................................... 30

Gabales v. Cty. of San Joaquin,

No. CIV. S-07-1346LKKDAD, 2009 WL 2923037 (E.D. Cal. Sept. 4, 2009) ............. 29

Garlick v. Cty. of Kern, 

167 F. Supp. 3d 1117 (E.D. Cal. 2016).......................................................................... 20

Graham v. Connor, 

490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) .................................... 11, 12, 21

Harper v. Cty. of Merced, 

No. 118CV00562LJOSKO, 2018 WL 5880786 (E.D. Cal. Nov. 8, 2018).................... 31

Hope v. Pelzer, 

536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) .......................................... 11, 26

Marsall v. City of Portland, 

No. CV-01-1014-ST, 2004 WL 1048127 (D. Or. May 7, 2004).................................... 22

Mattos v. Agarano, 

661 F.3d 433 (9th Cir. 2011).................................................................................... 28, 29

Miller v. Clark Cty., 

340 F.3d 959 (9th Cir. 2003).................................................................................... 12, 13

Miller v. Ladd, 

No. CV 08-05595 NJV, 2010 WL 2867808 (N.D. Cal. July 20, 2010)................... 31, 32

Moreno v. Baca, 

431 F.3d 633 (9th Cir. 2005).......................................................................................... 21

Mullenix v. Luna, 

577 U.S. 7, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015) ............................................. 21, 28

Paz v. City of Tucson, 

No. 2 CA-CV 2019-0209, 2020 WL 7488180 (Ariz. Ct. App. Dec. 18, 2020) ............. 35

Robbins v. United States, 

No. CIV03-1224PCT-JAT, 2006 WL 359948 (D. Ariz. Feb. 14, 2006) ....................... 38

Ryan v. Napier, 

245 Ariz. 54, 425 P.3d 230 (2018) ........................................................................... 35, 37

Saucier v. Katz, 

533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ................................................ 11

Savage v. Boies, 

77 Ariz. 355, 272 P.2d 349 (1954) ................................................................................. 38
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Scott v. Harris, 

550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) ............................................. 12

Smith v. Wade, 

461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983) ........................................... 39, 40

Sorrels v. McKee, 

290 F.3d 965 (9th Cir.2002)........................................................................................... 22

State ex Rel. Goddard v. DHL Express (Usa), Inc., 

No. CV-06-2611-PHX-FJM (D. Ariz. May 8, 2008)..................................................... 39

Tolan v. Cotton, 

572 U.S. 650, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014) ....................................... 10, 11

Tucker v. Las Vegas Metro. Police Dep't,

470 Fed.Appx. 627 (9th Cir. 2012) ................................................................................ 24

United States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159 (9th 

Cir. 2016)........................................................................................................................ 10

United States v. Place, 

462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) .................................................. 12

Wallisa v. City of Hesparia, 

369 F. Supp. 3d 990 (C.D. Cal. 2019)............................................................................ 22

Zetwick v. Cty. of Yolo, 850 F.3d 436 (9th Cir. 2017).................................................. 10, 32

Zhang v. American Gem Seafoods, Inc., 

339 F.3d 1020 (9th Cir. 2003)........................................................................................ 39

Statutes

A.R.S. § 12-716 .................................................................................................................. 35

A.R.S. § 12-716(A)............................................................................................................. 36

A.R.S. § 13-2508 ................................................................................................................ 36

A.R.S. § 13-2508(A)(3)...................................................................................................... 36

A.R.S. § 13-2508(B)-(C).................................................................................................... 36

A.R.S. § 13-409 ............................................................................................................ 34, 35

A.R.S. § 13-413 .................................................................................................................. 35

Arizona Civil Rights Act (“ACRA”), A.R.S. § 41-1498, et seq. ....................................... 34

Other Authorities
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235080 dementia praecox, Stedmans Medical Dictionary 235080.................................... 31

National Criminal Justice Reference Service (NCJRS), U.S. Department of Justice, 

National Law Enforcement Technology Center, “Positional Asphyxia-Sudden Death”, 

https://www.ncjrs.gov/pdffiles/posasph.pdf (last visited Jan 21, 2020)......................... 26

Regulations

28 CFR § 36.104................................................................................................................. 31

28 CFR § 36.105(b)(1)(ii) .................................................................................................. 30
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I. INTRODUCTION

Defendants’ Motion for Summary Judgment [doc. 273] (“Motion”), requests that the 

Court find, as a matter of law, that (1) Defendants did not violate Muhaymin’s 4th

Amendment rights when they surrounded him and kneeled on his back while he lay prone 

and helpless, (2) Muhaymin’s constitutional right not to asphyxiate under the weight of 

multiple officers was not “clearly established” at the time of his death, (3) the Defendants’ 

did not violate the ADA when they refused Muhaymin entry to public restrooms because 

of his service dog, (4) the Defendant Officers are protected from civil liability by Arizona 

statutory “immunity,” (5) Plaintiff is not entitled to present alternative theories of liability 

to the jury, (6) the loss of a parent does not cause emotional damages if that parent had a 

mental disability, and (7) Defendants did not act with reckless or callous disregard of 

Muhaymin’s rights. Because Defendants’ arguments fail for a multiplicity of factual and 

legal reasons, Plaintiff respectfully requests that the Court deny Defendants’ Motion and 

allow her to present her claims to the finder of fact.

II. FACTUAL BACKGROUND

On January 4, 2017, Muhammad Abdul Muhaymin, Jr. (“Muhaymin”) entered the 

Maryvale Community Center (“Center”) in Phoenix, Arizona in order to use the restroom.

[Plaintiff’s Statement of Facts in Opposition to Defendants’ Motion for Summary Judgment 

(“Plaintiff’s SOF”), ¶1]. Muhaymin suffered from Schizophrenia, and he owned a small 

Chihuahua dog named “Chiquita,” trained to assist Muhaymin in alleviating the symptoms 

of his mental disability. [Plaintiff’s SOF, ¶¶2-3]. On January 4, 2017, Chiquita 

accompanied Muhaymin into the Center. [Plaintiff’s SOF, ¶4]. Defendant Tarango, the 

Center supervisor, told Muhaymin that he could not bring Chiquita into the Center, and 

asked Muhaymin to leave. [Plaintiff’s SOF, ¶5]. Muhaymin told Defendant Tarango that 

he needed to use the restroom, and that Chiquita was a service dog. [Plaintiff’s SOF, ¶6]. 

Defendant Tarango asked Muhaymin to produce Chiquita’s “papers.” [Id.]. Muhaymin told 

Defendant Tarango that Chiquita’s papers had been stolen, along with the dog’s collar, but 
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that Defendant Tarango could check with his counselor and gave Defendant Tarango the 

name of his mental facility. [Plaintiff’s SOF, ¶7].

Muhaymin then informed Defendant Tarango that he needed to use the restroom, 

and attempted to enter the Center’s restroom facilities. [Plaintiff’s SOF, ¶8]. Defendant 

Tarango stepped in front of Muhaymin initiating a bump between the two of them. [Id.].

Defendant Tarango instructed Hannah Glemba (“Ms. Glemba”), a staff member at the 

Center, to call the police. [Plaintiff’s SOF, ¶9]. Ms. Glemba did so. [Id.]. Ms. Glemba 

falsely reported that Muhaymin had assaulted Mr. Tarango. [Defendants’ SOF, ¶10; 

Plaintiff’s SODF, ¶10].

Defendant Officers Grenier, Hobel, Canilao, and Head were the first to arrive at the 

Center in response to the reported “assault.” [Plaintiff’s SOF, ¶10]. Upon entering the 

Center, Defendant Officer Grenier approached Defendant Tarango and Muhaymin. 

[Plaintiff’s SOF, ¶11]. Defendant Tarango and Muhaymin were standing adjacent to the 

Center bathroom, approximately five feet apart, and were in discussion about Muhaymin’s 

dog, Chiquita (which Muhaymin was holding). [Plaintiff’s SOF, ¶12]. Muhaymin greeted

Officer Grenier, and informed him that Chiquita was his service dog, and that he wanted to 

use the restroom. [Plaintiff’s SOF, ¶13]. Officer Grenier asked to see Chiquita’s 

“paperwork” proving that it was a service dog, and Muhaymin told Officer Grenier that it 

had been stolen, along with multiple other of his personal items. [Id.]. Officer Grenier 

testified later that Chiquita was entirely restrained while in the Center. [Plaintiff’s SOF, 

¶14].

Muhaymin then (again) asked if he could use the restroom, and Officer Grenier told 

him that he could not, and instructed him to “hang tight.” [Plaintiff’s SOF, ¶15]. Defendant 

Tarango and Muhaymin continued to discuss whether Muhaymin should be allowed to 

bring Chiquita into the Center, with Muhaymin insisting that the Chiquita was his service 

animal and that he should not be denied the natural need for restroom facilities because he 

had a service animal. [Plaintiff’s SOF, ¶16].
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Officer Grenier observed Defendant Tarango and Muhaymin’s discussion for 

approximately seven minutes and ten seconds. Suddenly, Officer Hobel walked over from 

the Center lobby, forcefully interjected himself into the conversation, and threatened to 

“book” Muhaymin for assault. [Plaintiff’s SOF, ¶17]. He then asked Defendant Tarango 

whether Muhaymin assaulted Defendant Tarango. [Id.]. Defendant Tarango told Officer 

Hobel, “No. [...] He was trying to get in, and I didn’t let him in, so we bumped into each 

other.” [Id.]. Defendant Tarango, Officer Hobel, and Muhaymin continued to discuss 

whether Muhaymin should be allowed to bring Chiquita with him into the Center when 

Muhaymin needed to use the restroom, and finally, Defendant Tarango and Officer Hobel 

allowed Muhaymin to use the restroom, after Muhaymin provided his name for 

identification. [Plaintiff’s SOF, ¶18].

While Muhaymin was in the restroom, Officer Grenier called in Muhaymin’s name 

with the police dispatch, and was informed that Muhaymin had a misdemeanor warrant in 

Mesa, AZ. [Plaintiff’s SOF, ¶19]. Officer Grenier did not verify the warrant with the Mesa 

Police Department. [Plaintiff’s SOF, ¶20]. Officer Grenier then told Officer Hobel that

Muhaymin had “a Mesa warrant.” [Plaintiff’s SOF, ¶21]. Officer Hobel responded by 

stating, “Oh, well then let’s hook him.” [Id.]. Officer Grenier asked whether Officer Hobel 

“want[ed] to take him all the way out to Mesa?” and Officer Hobel responded with, “Yeah, 

I don’t fuckin’ care.” [Id.].

Defendant Officers Grenier, Hobel, and Head discussed how to arrest Muhaymin

while waiting for him to finish in the bathroom, deciding to wait until Muhaymin was 

outside of the Center. [Plaintiff’s SOF, ¶22]. Officer Hobel then remarked to Officers 

Grenier, Head, and Canilao that Muhaymin was “a little 918.” [Plaintiff’s SOF, ¶23]. 

(Officer Hobel testified at his deposition that “918” is “a common phrase” used by police 

officers to describe “people that are mentally unstable.”). [Plaintiff’s SOF, ¶24].

When Muhaymin exited the restroom and began walking towards the Center exit, 

Officers Grenier, Hobel, Canilao, and Head fell in behind him. [Plaintiff’s SOF, ¶25]. Upon 
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exiting the Center, Officers Grenier and Canilao grabbed Muhaymin, told him to stop 

walking, and instructed him to put his hands behind his back because he was under arrest. 

[Plaintiff’s SOF, ¶26]. Confused, Muhaymin asked why, and the Officers informed him 

that he had a warrant. All four Officers began putting hands upon Muhaymin’s body and 

telling him to drop Chiquita. [Plaintiff’s SOF, ¶27]. Muhaymin can be heard on the 

bodycam footage saying “wait, wait, wait, wait” and asking, “A warrant? For what?” [Id.].

Muhaymin informed the Officers that he did not have anyone to watch or take care 

of Chiquita. [Plaintiff’s SOF, ¶28]. Muhaymin begged them to call his “sensei” to take care 

of the dog. [Plaintiff’s SOF, ¶29]. Ignoring Muhaymin’s concerns about Chiquita, Officer 

Hobel forced a baton under Muhaymin’s arm and against Chiquita, applying enough 

pressure to make Chiquita cry out in pain. [Plaintiff’s SOF, ¶30]. When Muhaymin refused 

to drop Chiquita, Officer Hobel asked the other Officers whether they were ready to “take 

him down.” [Plaintiff’s SOF, ¶31]. Muhaymin said “No. Don’t do that. This is my son, sir.” 

[Id.]. All four of the Officers grabbed Muhaymin and physically forced him to double over

against a glass wall, making him drop Chiquita. [Plaintiff’s SOF, ¶32].

Muhaymin cried out, “OK!” and yelled out in pain as the four Officers forced him 

to the ground. [Plaintiff’s SOF, ¶33]. One of the Officers told Muhaymin, “Now you’re 

gonna be going for a felony now, dumbass. Now it’s a felony...”. [Plaintiff’s SOF, ¶34].

During the struggle, Officer Grenier used his elbow to strike Muhaymin in the back. 

[Plaintiff’s SOF, ¶35]. The Officers kneeled on Muhaymin while he was laying prone, 

forcing his arms behind his back and applying handcuffs as he continued to scream and yell. 

[Plaintiff’s SOF, ¶36]. The Officers together, and Officer Hobel in particular, continued to 

apply body weight to Muhaymin while he was prone on the sidewalk for approximately one 

minute and thirty-one seconds. [Plaintiff’s SOF, ¶37]. During this time, Officer Hobel 

placed his knee directly on Muhaymin’s head and leaned over his body, placing substantial 

weight on Muhaymin’s head. [Plaintiff’s SOF, ¶38]. Officer Hobel’s knee remained on 

Muhaymin’s head for approximately forty seconds. [Id.].
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After the handcuffs were applied, Officer Hobel told Muhaymin, “You’re 

misbehavin’ bud. You’re misbehavin’.” [Plaintiff’s SOF, ¶39]. The Officers then rolled 

Muhaymin over, lifted him up by his arms, and began marching him towards the Police 

SUV. [Plaintiff’s SOF, ¶40]. Muhaymin continued to plead with the Officers, telling them 

that he considered Chiquita to be his “child” and expressing concern over what was going 

to happen to the dog. [Plaintiff’s SOF, ¶41]. About halfway to the Police SUV, the Officers

lifted Muhaymin up by his arms (which were cuffed behind his back) and underarms, 

causing Muhaymin to cry out in pain, and told him, “Stand your ass up.” [Plaintiff’s SOF, 

¶42].

Upon arriving at the Police SUV, Officer Hobel said, “Let’s search him first,” and 

the Officers physically lifted Muhaymin and shoved him over the hood of the Police SUV. 

[Plaintiff’s SOF, ¶43]. When Muhaymin was shoved over the hood of the Police SUV, 

either Officer Hobel or Officer Canilao forced Muhaymin’s arms up, almost perpendicular 

to the ground (both Officers had their hands on Muhaymin’s cuffed arms and wrists), 

causing Muhaymin to scream. [Plaintiff’s SOF, ¶44]. Officer Hobel and Officer Canilao

forced Muhaymin’s cuffed arms even further up his back, over his head, and down the front 

again, causing Muhaymin to scream, yell out, and finally cry. [Plaintiff’s SOF, ¶45]. In 

response to Muhaymin’s cries of pain, the Officers told him to “just fucking relax, 

dumbass.” [Plaintiff’s SOF, ¶46].

When Muhaymin continued to squirm in pain, an Officer instructed the others to take 

Muhaymin “to the ground.” [Plaintiff’s SOF, ¶47]. As Muhaymin said, “Please stop,” the 

Officers shoved him to the concrete and called for “another unit.” [Plaintiff’s SOF, ¶48].

Muhaymin landed on his side, and the Officers began immediately placing body weight on 

his torso, attempting to uncuff him and re-cuff his arms behind his back [Plaintiff’s SOF, 

¶49]. 
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While the bodycam footage is unsteady and it is difficult to track the movements of 

each Defendant Officer throughout the time wherein Muhaymin was laying on the ground, 

the following movement chronologies are possible to discern:

Officer Grenier: At 5:04 of Officer Hobel’s Bodycam, Officer Grenier can be seen placing

his knee on Muhaymin’s upper torso, while Muhaymin is on his side. It remained in that 

position until 6:10, where Officer Grenier shifted to extend his opposite leg out, exerting 

substantial body weight onto Muhaymin’s shoulder/neck. At 6:59, Officer Grenier again 

shifted to fully extend his opposite leg, exerting nearly all of his body weight to 

Muhaymin’s neck and head. It is at this point that the video clearly shows Officer Grenier’s 

knee fully on Muhaymin’s neck. (Officer Grenier’s knee can also be seen to be fully on 

Muhaymin’s neck in Officer Nielson’s bodycam footage.) At 7:30 of the Hobel Bodycam 

video, Officer Grenier actively pushed off of his opposite leg to again add force and weight 

on Muhaymin. Officer Grenier’s knee remained in this position until the Officers rolled 

Muhaymin from his side to his stomach at 8:36. Combined, the total time wherein Officer 

Grenier’s knee was on Muhaymin’s upper torso/neck while Muhaymin was on his side, 

with no adjustments other than to increase pressure, was three minutes and thirty-two 

seconds. Officer Grenier then immediately put his knee back on Muhaymin’s body, where 

he remained for approximately 39 seconds, until Officer Hobel tells him that Officer Leroux 

had arrived and to “go get that hobble.” This interaction can more clearly be seen by 

reviewing Officer Aker’s bodycam footage, which, at 24:00, shows Officer Grenier being 

replaced by Officer Leroux, who steps in and places his knee on Muhaymin. Officer Grenier 

leaves to check his vehicle for a hobble, but does not find one and returns less than a minute 

later, staying to observe while the other Defendant Officers continue to apply weight to 

Muhaymin’s prone body.

Officer Head: After Muhaymin was thrown to the concrete and landed on his side, Officer 

Head got up, walked around Muhaymin, and laid bodily across Muhaymin’s legs. He stayed 

there until Officer McGowan arrived, applied a hobble to Muhaymin’s legs, and lifted 
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Officer Head off of Muhaymin the rip restraint to Muhaymin’s ankles. [Plaintiff’s SOF, 

¶50(b)]. 

Officer Hobel: After Muhaymin was thrown to the ground, Office Hobel placed weight on 

Muhaymin’s lower torso/hips. Officer Hobel remained there for approximately three 

minutes and six seconds, at which point he moved lower on Muhaymin’s body to grasp his 

pants. Officer Hobel then instructed Officer Heimbigner to place weight on Muhaymin’s 

back, and stood up. Officer Hobel then placed his hands back on Muhaymin’s torso and 

leaned forward over Officer Heimbigner for approximately one minute and four seconds, 

at which point Officer Heimbigner stood back up. Officer Hobel remained on Muhaymin’s 

torso, applying weight, until Muhaymin vomited. [Plaintiff’s SOF, ¶50(c)].

Officer Nielson: After Muhaymin was thrown to the ground, and after Officer Head moved 

around to lay across Muhaymin’s legs, Officer Nielson arrived, running from the direction 

of the Center. At 0:10-0:12 of his bodycam footage, Officer Nielson walked around 

Muhaymin to the opposite side. At 0:20, Officer Nielson grasped Muhaymin’s arm, which 

was trapped under Muhaymin’s side. At 0:30-0:31, Officer Nielson handed off Muhaymin’s 

arm to Officer Grenier. At 0:53-1:22, Officer Nielson removed the cuffs from Muhaymin’s 

hands while instructing an unidentified Defendant Officer to step on Muhaymin’s wrists 

“as hard as you can there, ok...” At 1:35-1:45, Officer Nielson helped an unidentified 

Defendant Officer pull Muhaymin’s arm behind his back, while other Defendant Officers 

continued to apply weight to Muhaymin’s upper torso. At 1:54, Officer Nielson grabbed 

the back of Muhaymin’s head/hair. Officer Nielson continued to hold Muhaymin’s head 

until approximately 3:33 (after Muhaymin had vomited), when he moved his hand to 

Muhaymin’s upper back. At 3:45-4:09, Officer Nielson stood up and walked away. 

[Plaintiff’s SOF, ¶50(d)].

Officer Heimbigner: Officer Heimbigner arrived at approximately 7:34 of Officer Hobel’s 

bodycam footage, asking, “What do you need guys? At 7:37 Officer Hobel told her to “hold 

right there,” indicating Muhaymin’s upper torso. At 7:38, Officer Heimbigner placed her 
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right hand upon Muhaymin’s upper torso. At 7:44-7:46, Officer Heimbigner placed her left 

forearm across Muhaymin’s lower back and proceeded to lay on top of him. Officer 

Heimbigner remained in this position until Muhaymin was rolled over at 8:36. Combined, 

the total time wherein Officer Heimbigner’s body weight was on Muhaymin’s mid/lower 

back with no adjustments was fifty-two second. [Plaintiff’s SOF, ¶50(e)].

Officer McGowan: Officer McGowan arrived after Muhaymin had been thrown to the 

ground, running from the direction of the Center and applying a hobble to Muhaymin’s legs, 

and then pulling Officer Head off of Muhaymin. After applying the hobble, Officer 

McGowan grabbed Muhaymin’s arm and pulled it behind Muhaymin’s back. [Plaintiff’s 

SOF, ¶50(f)].

Officer Leroux: Officer Leroux arrived after Muhaymin had been turned to his stomach.

He then kneeled down on Muhaymin’s torso, replacing Officer Grenier. He remained there 

for approximately thirty-nine seconds and shifted from his knee to his side, still applying 

weight to Muhaymin’s torso. He shifted his weight again at 24:57, and maintained weight 

on Muhaymin’s upper back/neck with his knee while Muhaymin’s hands were cuffed. 

[Plaintiff’s SOF, ¶50(g)]; Exhibit J, Deposition Transcript of Arizona Smith, Eyewitness 

(“SMITH DEPO”), 16:8-17.

Officer Wong: At 23:48 of Officer Aker’s bodycam footage, Officer Wong was kneeling, 

watching the other Defendant Officers apply force to Muhaymin as he is laying prone on 

the ground. At 24:15-24:24, Officer Wong moved around Muhaymin’s body to continue 

watching. At 24:47, Officer Wong knelt down again, this time to place his hands on 

Muhaymin. At 25:25-30:00, Officer Wong readjusted, and this is the final moment in 

Officer Aker’s bodycam footage where Officer Wong’s actions are clearly ascertainable 

until 26:34, after Muhaymin has vomited and the Officers are rolling him over. [Plaintiff’s 

SOF, ¶50(g)].

***

At 23:50-26:48, Officer Aker’s bodycam footage provides a general view of multiple 

Defendant Officers applying substantial body weight onto Muhaymin’s torso for an 
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extended period of time. [Plaintiff’s SOF, ¶51]. At multiple points in the available bodycam 

footage while the Defendant Officers were applying pressure to Muhaymin’s torso and 

neck, Muhaymin can be heard screaming out, “I can’t breathe!” [Plaintiff’s SOF, ¶52]. The 

Defendant Officers ignored Muhaymin and continued to apply body weight, while 

Muhaymin gasped for air. [Plaintiff’s SOF, ¶53]. 

While Muhaymin was face-down, the Defendant Officers removed Muhaymin’s

handcuffs and forced his arms behind his back. [Plaintiff’s SOF, ¶54]. At this point, 

Muhaymin could no longer resist, as Defendant Officers were sitting on his legs, had his 

arms behind his back, and Officer Nielson was grasping Muhaymin’s hair, pulling his head 

up. [Id.]. Muhaymin ceased struggling for air and began to moan quietly. [Plaintiff’s SOF, 

¶55]. The Officers continued to apply pressure to Muhaymin’s upper torso while they 

applied handcuffs. [Plaintiff’s SOF, ¶56]. 

After Muhaymin’s arms were securely behind his back and he stopped struggling for 

air, the Defendant Officers continued to apply weight to his body. [Plaintiff’s SOF, ¶57]. 

From the moment when Muhaymin went completely limp and began moaning incoherently 

to when the Defendant Officers removed their weight from Muhaymin’s prone torso (and 

the Defendant Officers only moved when Muhaymin vomited) was approximately one 

minute and sixteen seconds. [Id.].

From the moment Muhaymin is thrown to the ground to the moment when he vomits 

is approximately seven minutes and forty-seven seconds. [Plaintiff’s SOF, ¶58]. During this 

period, the combined amount of time wherein Muhaymin can be seen to physically move 

his body on the bodycam footage, struggling to breathe and yelling out, was approximately 

one minute and twenty-eight seconds. [Id.]. The remainder of the time, Muhaymin did not 

move. [Id.]. Therefore, out of the approximately seven minutes and forty-seven seconds that 

the Defendant Officers were on top of Muhaymin prior to him vomiting, Muhaymin was 

still for approximately six minutes and nineteen seconds. [Id.].
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The Officers left Muhaymin face-down in his own vomit for approximately twentyfive seconds before rolling him over and attempting to resuscitate him. [Plaintiff’s SOF, 

¶59]. After the Officers rolled Muhaymin out of his vomit , Officer Nielsen callously said,

“Yeah, he’s dead” [Plaintiff’s SOF, ¶64]. Thereafter, Officer Nielson twice told Officer 

Head that he “knew that was going to happen.” [Id.]. Officer Head responded by saying, 

“yeah.” [Id.].

When the EMT’s arrived, one of them can be heard on bodycam footage asking the 

Defendant Officers, “was he pinned?” and “you guys were on top of him?” to which 

questions the Defendant Officers answered affirmatively. [Plaintiff’s SOF, ¶60]. The 

EMT’s checked Muhaymin’s throat and noted vomitus that had collected in his airway. 

[Plaintiff’s SOF, ¶61]. Muhaymin did not have a pulse. [Plaintiff’s SOF, ¶61]. Muhaymin

was taken by ambulance to Maryvale Hospital and pronounced deceased at approximately 

10:39 a.m. [Plaintiff’s SOF, ¶62]. 

Throughout the entirety of his interactions with the Defendant Officers on January 

4, 2017, Muhaymin never harmed, or threatened to harm, anyyone. [Plaintiff’s SOF, ¶63].

III. LEGAL STANDARD

“The standard for summary judgment is familiar: ‘Summary judgment is [only] 

appropriate when, viewing the evidence in the light most favorable to the nonmoving 

party, there is no genuine dispute as to any material fact.’” Zetwick v. Cty. of Yolo, 850 

F.3d 436, 440 (9th Cir. 2017) (quoting United States v. JP Morgan Chase Bank Account 

No. Ending 8215, 835 F.3d 1159, 1162 (9th Cir. 2016) (emphasis added). “[C]ourts may 

not resolve genuine disputes of fact in favor of the party seeking summary judgment.” 

Zetwick, 850 F.3d at 441 (further citation omitted). “[A] ‘judge's function’ at summary 

judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine 

whether there is a genuine issue for trial.’” Id. (quoting Tolan v. Cotton, 572 U.S. 650, 656 

(2014)) (further citations omitted).

IV. ARGUMENT

A. Defendants Are Not Entitled To Qualified Immunity
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1. Applicable Standard For Resolving Qualified Immunity At Summary 

Judgment

“In resolving questions of qualified immunity at summary judgment, courts engage 

in a two-pronged inquiry. The first asks whether the facts, [t]aken in the light most favorable 

to the party asserting the injury, ... show the officer's conduct violated a [federal] right.” 

Tolan, 572 U.S. at 655–56 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (brackets in 

original). “When a plaintiff alleges excessive force during an [...] arrest, the federal right 

at issue is the Fourth Amendment right against unreasonable seizures.” Tolan, 572 U.S. at 

656 (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). “The inquiry into whether this 

right was violated requires a balancing of the nature and quality of the intrusion on the 

individual's Fourth Amendment interests against the importance of the governmental 

interests alleged to justify the intrusion.” Tolan, 572 U.S. at 656 (internal quotation marks 

omitted) (further citations omitted).

“The second prong of the qualified-immunity analysis asks whether the right in 

question was “clearly established” at the time of the violation. Tolan, 572 U.S. at 656 (citing 

Hope v. Pelzer, 536 U.S. 730, 739 (2002)). “Governmental actors are shielded from liability 

for civil damages if their actions did not violate ‘clearly established statutory or 

constitutional rights of which a reasonable person would have known.’” Tolan, 572 U.S. at 

656 (internal quotation marks omitted) (further citations omitted). “[T]he salient question 

... is whether the state of the law at the time of an incident provided ‘fair warning’ to the 

defendants that their alleged [conduct] was unconstitutional.” Id. (internal quotation marks 

omitted) (further citations omitted).

“Courts have discretion to decide the order in which to engage these two prongs. 

[...] But under either prong, courts may not resolve genuine disputes of fact in favor of the 

party seeking summary judgment. Id. (further citations omitted).

2. The Facts Of The Case, Taken In The Light Most Favorable To Plaintiff, 

Support A Reasonable Finding That The Defendant Officers’ Conduct 

Violated Muhaymin’s Fourth Amendment Rights
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“In determining the reasonableness of the manner in which a seizure is effected, ‘[the 

court] must balance the nature and quality of the intrusion on the individual's Fourth 

Amendment interests against the importance of the governmental interests alleged to justify 

the intrusion.’” Scott v. Harris, 550 U.S. 372, 383 (2007) (quoting United States v. Place, 

462 U.S. 696, 703 (1983). “[F]orce, [even if] less than deadly, is not to be deployed lightly.” 

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003)

(further citation omitted) (brackets in original).

Reasonableness is assessed by weighing the type and amount of force used against

“(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to 

the safety of the officers or others, and (3) whether the suspect was actively resisting arrest 

or attempting to evade arrest by flight.” Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 

2003) (citing Graham, 490 U.S. at 396)). Plaintiff first analyzes the three Graham factors, 

and then presents evidence of the unreasonableness of the type and amount of force used 

against Muhaymin, resulting in his death.

First, there is no reasonable argument that the “crime” at issue was severe. 

Muhaymin attempted to use the restroom at a community center, was stopped by Defendant 

Tarango because he had a service dog, and when he tried to walk by Defendant Tarango, 

Tarango stepped in front of him, initiating contact. [Plaintiff’s SOF, ¶¶8, 17]. When the 

Officers arrived, Muhaymin used the restroom. [Plaintiff’s SOF, ¶¶13-18]. When 

Muhaymin voluntarily walked out of the Center, the Defendant Officers attempted to arrest 

Muhaymin on an unverified warrant. [Plaintiff’s SOF, ¶¶19-21, 26-27]. 

Defendants attempt to manufacture severity by describing Muhaymin’s obvious 

confusion and fear at the prospect of leaving Chiquita alone with no way of finding her

again as extreme resistance, and invent the “fact” that Muhaymin transformed into a Marvel 

character, resisting with “super-human” strength. Motion, p. 23-24. However, without 

making necessary credibility determinations regarding the Defendant Officers’ testimony, 

this claim is unverifiable (and, worse, unfalsifiable). Even if the Court were to find that 
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Muhaymin’s alleged resistance constituted a “crime” as contemplated by the Graham

factors, multiple Defendant Officers testified that the resistance was “passive.” [Plaintiff’s 

SODF, ¶26]. There is no reasonable argument that passive resistance is a “severe crime.”1

In any case, Plaintiff disputes that Muhaymin was resisting arrest at any time after 

Defendant Officers dog-piled on top of him, placed substantial weight on his neck, back, 

head, and other parts of his body, and caused him to die by asphyxiation, as opined by Dr. 

Bennet Omalu. [Plaintiff’s SODF, ¶26].

Second, there is simply no argument that Muhaymin posed a threat to the safety of 

the Defendant Officers or anyone else. Multiple Officers testified that Muhaymin never

harmed or threatened to harm the Defendant Officers. [Plaintiff’s SOF, ¶63]. Nothing in the 

available bodycam footage supports a finding that Muhaymin was a threat to anyone

(Exhibits 61-73 to Defendants’ SOF), and there is eyewitness testimony that Muhaymin

never engaged in any aggressive behavior whatsoever. See SMITH DEPO, 18:3-17. Third, 

as stated above, the parties disagree on whether Muhaymin was “actively” resisting arrest. 

Plaintiff disputes the same, and her position is supported by the testimony of multiple 

Defendant Officers describing Muhaymin’s resistance as “passive.” [Plaintiff’s SODF, 

¶26].

Considering the Graham factors together, it is obvious that Muhaymin’s action 

warranted very little in the way of force. At most, he was passively resisting the Officers’ 

attempts to arrest him by tensing his arms and legs at first, but even this did not last long. 

Upon being thrown to the ground the second time, Muhaymin barely moved, as he was

crushed under the weight of more and more Defendant Officers, trying to tell them that he 

could not breathe. [Plaintiff’s SOF, ¶¶49-58]. These actions are to be weighed against the

type and amount of force used by the Defendants. Miller, 340 F.3d at 964. The different 

1 See section D(1), below, for analysis of Arizona law regarding resisting arrest.
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forces used by Defendants are analyzed in turn below, keeping in mind that Defendants’ 

actions resulted in Muhaymin’s death.2

i. Application Of Substantial Weight On Muhaymin’s Prone Body

There exists evidence on the record to support a reasonable finding that Defendant 

Officers applied significant body weight to Muhaymin’s head, neck, and torso for extended 

periods of time while he lay prone on two separate occasions. First, after knocking Chiquita 

out of Muhaymin’s hands, Officer Hobel knelt directly on Muhaymin’s head for 

approximately one minute and thirty-one seconds. [Plaintiff’s SOF, ¶¶36-37]. Second, after 

calling for backup and throwing Muhaymin to the concrete beside the police SUV, multiple 

Officers placed their knees on Muhaymin’s head, neck, shoulders, upper-back, and lowerback. [Plaintiff’s SOF, ¶50-51]. This force was applied despite actual knowledge that it was 

restricting Muhaymin’s ability to breathe, notice of which was given by Muhaymin’s 

multiple cries for help, gasps for air, and exclamations of “I can’t breathe!”. [Plaintiff’s 

SOF, ¶52; Plaintiff’s SODF, ¶50].

As the Ninth Circuit has clearly stated, “keeping an individual who is in a state of 

excited delirium restrained with his chest to the ground while applying pressure to his back 

and ignoring pleas that he cannot breathe [...] constitute[s] excessive force under the Fourth 

Amendment.” Arce v. Blackwell, 294 F. App'x 259, 261 (9th Cir. 2008).

Defendants argue that Muhaymin’s cries for help (and resulting notice to the Officers 

that he could not breathe) were disingenuous by asserting that the Officers “assessed his 

breathing, observed that he was breathing and there was nothing obstructing his ability to 

breathe.” Motion, p. 6. Aside from Defendant testimony, there is absolutely nothing in the 

record supportive of the assertion that the Officers checked whether or not Muhaymin could 

breathe. [Defendants’ SOF, ¶50; Plaintiff’s SODF, ¶50]. Beyond being a blatant request 

that the Court construe the evidence in Defendants’ favor, the assertion that “nothing [was] 

2

It is an indisputable fact that Muhaymin’s death was caused, at least in part, by Defendant 

Officers’ actions. [Plaintiff’s SOF, ¶68].
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obstructing his ability to breathe” is preposterous unless the Court completely disregards

the weight of multiple Defendant Officers on Muhaymin’s back. [Plaintiff’s SODF, ¶50].

That Defendants’ actions in applying weight to Muhaymin’s body were 

unreasonable is supported by the testimony of Defendants’ own expert witnesses. 

Defendants’ police policies expert testified that if an unarmed suspect says he cannot 

breathe, the officers should check to see if that is true. Exhibit C, Deposition Transcript of 

Greg Meyer, Police Procedures Expert Witness for Defendants (“MEYER DEPO”), 133:7-

134:20. Further, Defendants’ medical expert testified that Muhaymin’s cries of “I can’t 

breathe” could have been signs of a medical emergency involving Muhaymin’s heart. 

[Plaintiff’s SOF, ¶67]. That no available bodycam footage proves that any of the Defendant 

Officers stopped to check Muhaymin’s vitals or assess his actual ability to breathe during 

the entire ordeal, despite his multiple cries for help, creates a triable issue of fact as to 

whether Defendants’ actions were unreasonable.

Further, Plaintiff’s medical experts have testified expressly that the application of 

weight on Muhaymin’s back by Defendant Officers inherently caused increased risk of 

asphyxiation and death, and in fact resulted in the same. 

A. There is a reason why it is dangerous to place human beings prone on the 

ground with any amount of pressure on their backs or head or neck or 

even knees. Because for respiratory activity to function respiration is not 

just breathing. The chest and abdomen, they need a give. Not just that. 

The diaphragm itself, they need a give. When you have somebody prone 

on the ground and apply pressure on the back, it is not just the energy of 

the pressure, per se. It is also compromised functioning of injury to the 

nerves in the neck and the head and in the trunk. There is a very vital 

system of nerves that run [sic] on both sides of the back. It's called a 

parasympathetic system. They control the heart. They control the blood 

pressure. And even around the chest and neck there are what we call 

plexuses, plexuses, and ganglia that control blood pressure, respiratory 

functioning, and heart function. Okay. And also control blood pressure of 

blood that reaches the brain. So when we use the word "asphyxia," which 

is many times the community and legal professionals, their minds only 

go to physical compression of the body. No. It is the entirety of the 

compromise of all physiological processes that could result in asphyxial 

injury of the brain.
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Exhibit O, First Deposition Transcript of Dr. Bennet Omalu (“OMALU DEPO”), 127:11-

128:18; 133:23-25 (“[A]sphyxial brain injury is traumatic brain injury. So [Muhaymin’s] 

cumulative exposure beginning from the moment they had him on the ground to the moment 

he died.”); 126:7-14 (“[T]he cumulated actions of all the police officers were substantial 

and significant contributory factors to [Muhaymin’s] sudden and unexpected death.”); See 

also Exhibit P, Deposition Transcript of Dr. Ali Taqi (“TAQI DEPO”), 114:7-8 (“[T]he 

pressure on [Muhaymin’s] back caused him to asphyxiate.”).

Even if the evidence on the record were construed (inappropriately) in Defendants’ 

favor, and even if the ultimate medical conclusion of Defendants’ medical expert, Dr. Vilke

(that Muhaymin died of a heart attack, not asphyxia) was accepted, a reasonable jury could 

still find that Muhaymin died of a heart attack resulting partially from the stress involved in 

being manhandled and dog-piled by the Defendant Officers. See Exhibit 55 to Defendants’ 

SOF, COP 015485 (Expert Report-Dr. Vilke) (“What was likely happening is that 

Muhaymin was having a cardiac event...”) (including as a cause of the cardiac event 

“physical exertion”).

Completely disregarding the appropriate standard on a motion for summary 

judgment, Defendants argue that “the physical struggle that occurred and the duration of 

the struggle” were “directly and solely attributable” to Muhaymin’s own actions, i.e., his 

alleged use of “large amounts of methamphetamine” and commission of “a felony by 

resisting arrest.” Mot., p. 24. Contrary to Defendants’ assertion, however, the cause of 

Muhaymin’s “physical exertion” and the question of whether he was resisting (or continued

to resist) arrest while he was being pinned face-down into the concrete by officers, is a 

question of fact for the jury to determine. There is ample evidence in the record for a 

reasonable jury to find that Muhaymin’s “physical exertion” during the second takedown 

was not a resistance to a lawful arrest, but a resistance to being asphyxiated to death by 

those officers attempting to effect that arrest. [Plaintiff’s SODF, ¶42]. 
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To the extent the Defendants sensed a resistance, it was Muhaymin’s attempt to grasp 

for air, a reasonable reaction to being asphyxiated to death. Muhaymin's physical exertions, 

his pleas of “I can’t breathe,” and his accompanying moans indicate a person who was so 

overpowered by Defendants and so totally immobilized and compressed by their combined 

weight, that his movements were feeble desperate attempts to take in air. [Plaintiff’s SODF, 

¶¶52-57]. The Officers failed to give any consideration to his pleas. Instead, they assumed 

the death throes of a man they are slowly killing by asphyxiation is resistance to arrest. Even 

a loyal dog, if held down and asphyxiated by its owner, would understandably struggle to 

find oxygen to avoid death. Defendants take the position that Muhaymin is not entitled to 

do that. This assertion must be rejected. Muhaymin had every right to struggle to avoid 

being killed. He, like every person in these United States, has a constitutional right to life 

may only be forfeited to the state after an exhaustive legal process, a process that was 

unjustifiably bypassed in this case. Everyone experiencing the unimaginably cruel process 

of death by asphyxiation has a right to struggle and resist to preserve one’s life. A 

wrongdoer cannot justify his own wrongdoing by relying on the victim’s resistance to the 

wrongdoers’ crimes.3

Regardless, a reasonable jury could determine that, in light of the minimal force 

warranted by Muhaymin’s non-threatening, passive resistance, employment of a restraint 

technique which carried the inherent risk of (and in fact resulted in) asphyxiation (or a heart 

attack) and death was not warranted and was therefore a violation of Muhaymin’s 4th

Amendment rights.

ii. Forcing Muhaymin’s Arms Backwards Over His Head

Plaintiff, as administrator of Muhaymin’s estate, is entitled to recover damages for 

pain and suffering incurred by Muhaymin as a result of the Defendant’s pre-death 

application of force, regardless of the ultimate conclusion as to cause of death. See Andrich

v. Kostas, 470 F. Supp. 3d 1048, 1055–59 (D. Ariz. 2020); This case, like Andrich, 

3 Asphyxiating someone to death is, at best, a negligent homicide, a crime
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“involves a common fact pattern—police officers stand accused of engaging in different 

forms of excessive force during an encounter that ultimately resulted in death.” Id., at 1058. 

As this Court explained, “[d]isallowing liability for some of the excessive force, simply 

because the final administration of excessive force was the cause of death, would undermine

§ 1983’s goal of deterring law enforcement officers from engaging in any type of excessive 

force.” Id. Thus, Plaintiff is entitled to present her “claim for pain and suffering damages 

arising from the [officers’ initial use of unreasonable force] that preceded [Muhaymin]’s 

death” (Id. at 1059), regardless of the limitations set forth by A.R.S. § 14-3110, which 

otherwise “preclude[] an estate from seeking recovery for the decedent's pre-death pain and 

suffering” (Id. at 1055).

Plaintiff’s claim for Muhaymin’s pain and suffering includes the assertion that 

Defendant Officers employed excessive force when they forced Muhaymin’s hand-cuffed 

arms up behind his back so far as to make them come over his head. The parties agree that

such conduct would be excessive force. Even Defendants’ police policies expert admits that 

treating Muhaymin in this manner would be “an improper use of force and a very stupid 

thing to do.” [Plaintiff’s SODF, ¶38]. The parties do dispute, however, the factual question 

of whether the Defendant Officers engaged in the violative behavior. [Defendants’ 

SOF,¶¶37-38; Plaintiff’s SODF, ¶¶37-38; Plaintiff’s SOF, ¶¶44-46].

The evidence on record supports a reasonable finding that either Officer Hobel or 

Officer Canilao, upon throwing Muhaymin across the hood of the police SUV, forced 

Muhaymin’s handcuffed arms nearly perpendicular to the ground, and then continued to 

force them up until they were over Muhaymin’s head and in front of him. [Plaintiff’s SODF, 

¶¶37-38; Plaintiff’s SOF, ¶¶44-46]. The evidence supports a reasonable finding that this 

move caused Muhaymin considerable pain and anguish as his shoulders were forced to 

move incorrectly, because the bodycam footage clearly shows Muhaymin scream as the 

move is done, and break down crying once his arm have completed their unnatural path 

from front to back. [Plaintiff’s SOF, ¶¶44-46]. In response to Muhaymin’s tears, the 

Defendant Officers told him to “just fucking relax, dumbass.” [Plaintiff’s SOF, ¶44]. 
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Defendants assert that Muhaymin, while shoved up against the police SUV, moved 

his own arms, handcuffed behind his back, up and over his own head, against the Defendant 

Officers’ active attempt to stop him from doing so. [Defendants’ SOF, ¶39; Plaintiff’s 

SODF, ¶39]. In asking the Court to make this factual determination, Defendants implicitly 

request that the Court completely ignore (1) bodycam footage showing Muhaymin scream 

in pain as his arms are forced over his head (Exhibit 64 to Defendants’ SOF, 3:05-3:10; 

Exhibit 66 to Defendants’ SOF, 16:11-16:20), (2) Defendant Grenier’s explicit testimony 

that the footage shows Muhaymin’s arms being “pull[ed] up” and “torqu[ed]” (Exhibit E, 

Deposition Transcript of Defendant Grenier (“GRENIER DEPO”), 69:12-70:22), and (3) 

the common sense conclusion that it would be nearly impossible for a handcuffed individual 

to lift his own arms from behind his back, up and over his head, against the active force of 

a larger police officer pushing the arms down.

If the jury does determine that Defendant Officers intentionally forced Muhaymin’s 

arms over his head, even Defendants’ police procedures expert agrees that the maneuver 

would be excessive use of force. Exhibit C, Deposition Transcript of Greg Meyer, Police 

Procedures Expert Witness for Defendants (“MEYER DEPO”), 131:25-133:6. However, 

the fact is disputed, and Defendants’ version of events is supported only by the Defendant 

Officers’ testimony, rendering the question “ultimately a credibility issue for jury to 

decide.” Id., at 158:19-22.

iii. When Muhaymin Vomited, The Officers Should Have Immediately 

Rolled Him Over

The Officers left Muhaymin face-down in his own vomit for approximately twentyfive seconds before rolling him over and attempting to resuscitate him. [Plaintiff’s SOF, 

¶59]. During this time, vomitus collected in Muhaymin’s airways, further restricting his 

ability to breathe. [Plaintiff’s SOF, ¶61]. There is sufficient medical evidence to conclude 

that Muhaymin’s death was partially a result of being left, unconscious, to choke on his own 

vomit. 

A. [W]hen I examined his lung sections, the specific type of airways we call 

bronchioles were completely occluded. [...] And he vomited and it went 
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down into his lungs which also could have caused an acute pulmonary

hypertension that will increase his likelihood of death.

OMALU DEPO, 134:3-9.

A. The fact that he vomited even further occluded or complicated his 

respiratory status leading him to not breathe even more. So what 

happened was he aspirated, which he had gastric contents obstructing into 

the lung. And then I felt the officers should have rolled Muhaymin to his 

side and cleared his airway when he vomited because that further led to 

decreased oxygenation. And then he should have had CPR started 

quicker.

TAQI DEPO, 55:8-16. On such evidence, a reasonable jury could conclude that leaving 

Muhaymin face-down and unconscious in a pool of vomit for half a minute was 

unreasonable, and a violation of Muhaymin’s 4th Amendment rights.

3. Plaintiff May Present Evidence To The Jury That Each Defendant 

Officer Was An Integral Participant In The Violation Of His 4th

Amendment Rights

Defendants insist that “the Court must separately assess each officers’ conduct 

before reaching a determination as to whether he or she violated clearly established law.” 

Motion, p. 9. However, in the Ninth Circuit, “[a] plaintiff may hold multiple law 

enforcement officers liable based on an ‘integral participant’ theory of liability when at least 

one officer violates the plaintiff's constitutional rights.” Garlick v. Cty. of Kern, 167 F. 

Supp. 3d 1117, 1158 (E.D. Cal. 2016) (citing Chuman v. Wright, 76 F.3d 292, 295 (9th 

Cir.1996)). An officer is an integral participant “where he or she ‘participated in some 

meaningful way’ in the actions which gave rise to the constitutional violation.” Garlick, 

167 F. Supp. 3d at 1159 (quoting Boyd v. Benton Cty., 374 F.3d 773, 780 (9th Cir. 2004)).

And “an officer who is an integral participant in unlawful conduct may be held liable even 

if the officer's isolated actions do not rise to the level of a constitutional violation.” Martinez

v. City of Pittsburg, No. 17-CV-04246-RS, 2019 WL 1102375, at *4 (N.D. Cal. Mar. 8, 

2019), aff'd, 809 F. App'x 439 (9th Cir. 2020) (citing Blankenhorn v. Cty. of Orange, 485 

F.3d 463, 481 n.12 (9th Cir. 2007)). 
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Each Defendant Officer participated in the violation of Muhaymin’s rights, whether 

by actively applying force to Muhaymin’s back, assisting other officers who were doing so, 

retrieving restraint equipment to be used on Muhaymin, or by standing around to give 

general assistance while Muhaymin asphyxiated and died on the ground. Plaintiff is 

therefore entitled to present evidence to a jury that each Officer was an “integral participant” 

in the violation of Muhaymin’s rights. Chuman, 76 F.3d at 295.

4. At The Time Of The Defendant Officers’ Violation, Muhaymin’s Rights

Were Clearly Established Constitutional Rights Of Which A Reasonable 

Person Would Know

In considering qualified immunity, courts recognize that “[a] police officer's right to 

make an arrest necessarily includes the right to use some degree of force.” Cunningham v. 

Gates, 229 F.3d 1271, 1290 (9th Cir. 2000), as amended (Oct. 31, 2000) (citing Graham, 

490 U.S. at 396). However, “[a]n officer is not entitled to qualified immunity on the grounds 

that the law is not clearly established every time a novel method is used to inflict injury.”

Cunningham, 229 F.3d at 1290 (further citation omitted). “Defendants bear the burden to 

prove they are entitled to qualified immunity.” Greer v. City of Hayward, 229 F. Supp. 3d 

1091, 1106 (N.D. Cal. 2017) (citing Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005)).

Government officials are not entitled to qualified immunity if, at the time of the 

violative action, it was “sufficiently clear that every reasonable official would have 

understood that what he is doing violates [the victim’s] right.” Mullenix v. Luna, 577 U.S. 

7, 11 (2015). The Supreme Court has expressly stated that it does “not require a case directly 

on point,” but only that “existing precedent must have placed the statutory or constitutional 

question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011); See also 

Drummond, 343 F.3d at 1060–61 (“...it is not necessary that the alleged acts have been 

previously held unconstitutional, as long as the unlawfulness was apparent in light of 

existing law.”) (further citations omitted). The Ninth Circuit has noted that “[e]ven 

unpublished decisions of district courts may inform [the] qualified immunity analysis.” Id.
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(quoting Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir.2002)) (internal quotation marks 

omitted).

“‘[T]he ordinary framework for deciding motions for summary judgment” applies to 

motions for summary judgment based on official immunity.” Moreno v. Baca, 431 F.3d 

633, 638 (9th Cir. 2005) (quoting Butler v. San Diego Dist. Attorney's Office, 370 F.3d 956, 

963 (9th Cir. 2004)). “Because the moving defendant bears the burden of proof on the issue 

of qualified immunity, he or she must produce sufficient evidence to require the plaintiff to 

go beyond his or her pleadings.” Id. (further citations omitted). The defendants’ burden is 

to demonstrate the absence of a genuine issue of material fact. Id. (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986)). Because the Fourth Amendment reasonableness 

analysis “requires a balancing of interests, however, summary judgment should be granted 

sparingly in excessive force cases.” Martinez v. City of Pittsburg, No. 17-CV-04246-RS, 

2019 WL 1102375, at *5 (N.D. Cal. Mar. 8, 2019), aff'd, 809 F. App'x 439 (9th Cir. 2020) 

(citing Lolli v. Cty. of Orange, 351 F.3d 410, 415–16 (9th Cir. 2003) (quoting Santos v.

Gates, 287 F.3d 846, 853 (9th Cir. 2002)). 

i. Application Of Weight To A Prone Individual’s Back

Defendants cannot meet their burden of proving entitlement to qualified immunity

on summary judgment. It has been “beyond debate” for over a decade in the Ninth Circuit 

that “keeping an individual who is in a state of excited delirium restrained with his chest to 

the ground while applying pressure to his back and ignoring pleas that he cannot breathe 

[...] constitute[s] excessive force under the Fourth Amendment.” Arce, 294 F. App'x at 261

(“We have had similar cases in the past...”); see also Wallisa v. City of Hesparia, 369 F. 

Supp. 3d 990, 1014 (C.D. Cal. 2019) (“It is also clearly established law that pressing weight 

onto the back of a prone and helpless arrestee, particularly as he begs for air, constitutes 

excessive force.”); Marsall v. City of Portland, No. CV-01-1014-ST, 2004 WL 1048127, 

at *13 (D. Or. May 7, 2004) (“the use of the maximum restraint while two officers pressed 

their weight on an individual's neck and torso as he begged for air is a severe use of force 

that is only permissible when compelled by a strong governmental interest.”)
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The Ninth Circuit case which established this legal reality was Drummond ex rel. 

Drummond v. City of Anaheim (343 F.3d 1052). In Drummond, the plaintiff “claim[ed] that 

two officers continued to press their weight on his neck and torso as he lay handcuffed on 

the ground and begged for air.” Id. The Ninth Circuit held that, “[a]lthough the officers [...] 

did not shoot or beat [plaintiff], the force allegedly employed was severe and, under the 

circumstances, capable of causing death or serious injury.”

In this case, like in Drummond, the Defendant Officers maintained body weight on 

Muhaymin’s head, neck, and torso while he was first on his side, and later on his stomach. 

During the ordeal, Muhaymin cried out multiple times that he could not breathe, and can be 

heard raggedly gasping for breath in the available bodycam footage. Unlike Drummond, 

where only two officers placed weight on the plaintiff during the arrest, as many as five of 

the Defendant Officers placed substantial weight on Muhaymin’s prone body at a time. 

[Plaintiff’s SODF, ¶44; Plaintiff’s SOF, ¶51]. If two officers on the back of a prone 

individual crosses the line into a violation of the 4th Amendment, five officers doing the 

same certainly does.4

The reasoning and holding in Drummond are particularly impactful because the court 

expressly found that the officer’s actions were so obviously violative of the 4th Amendment 

that they had “fair warning” “even absent a Ninth Circuit case presenting the same set of 

facts.” Drummond, 343 F.3d at 1061. In fact, the court stated explicitly that “[t]he officers—

indeed, any reasonable person—should have known that squeezing the breath from a 

compliant, prone, and handcuffed individual despite his pleas for air involves a degree of 

force that is greater than reasonable.” Id., at 1059.

We need no federal case directly on point to establish that kneeling on the 

back and neck of a compliant detainee, and pressing the weight of two 

officers' bodies on him even after he complained that he was choking and in 

4

It should further be noted that the plaintiff in Drummond was revived, and entered into a 

coma. The Ninth Circuit in Drummond was therefore considering a constitutional violation 

less severe than the one before the Court, where Muhaymin ultimately lost his life as a result 

of Defendants’ actions.
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need of air violates clearly established law, and that reasonable officers 

would have been aware that such was the case.

Id., at 1062.

Further, there have been numerous Ninth Circuit decisions expounding upon the 

obvious violation described in Drummond which include factual aspects directly relevant 

to this case. Defendants argue that Muhaymin’s “resistance” (described as “passive” by 

multiple Officers) warranted the crushing weight applied to his back. This argument was 

summarily disposed of in Tucker v. Las Vegas Metro. Police Dep't, 470 Fed.Appx. 627 (9th 

Cir. 2012), where the Ninth Circuit noted that “[the plaintiff], unlike Drummond, continued 

to resist the officers after handcuffs were applied, but this distinction does not, by itself, 

suffice to bring this case out of Drummond's orbit.” Id., at 629. The court went on to reiterate 

that “existing law recognize[s] a Fourth Amendment violation where two officers use their 

body pressure to restrain a delirious, prone, and handcuffed individual who poses no serious 

safety threat.” Id.

Also, in Abston v. City of Merced (506 Fed.Appx. 650 (9th Cir. 2013)), on summary 

judgment, the Ninth Circuit was presented with a fact pattern involving an individual who 

was in a prone position, restrained, and “surrounded by numerous officers.” Like Abston, 

the present case involves “numerous” police officers surrounding Muhaymin while he lay 

prone and helpless on the ground, with up to five of the officers kneeling, laying, or pushing 

down on his body at a time. [Plaintiff’s SODF, ¶45]. In this situation, “[a] reasonable factfinder could conclude that defendants' use of body compression as a means of restraint was 

unreasonable and unjustified by any threat of harm or escape.” Abston, at 652–53.

Although Defendants conveniently avoid making any reference to this line of wellknown cases, they will undoubtedly argue that this case is distinguishable because, as they 

disingenuously claim, “[o]nce Muhaymin was secured with the handcuffs behind his back, 

the Phoenix Officers immediately ceased contact.” Mot., p. 24 (citing Def. SOF ¶44, 58, 

72)]. This claim, however, is patently and provably false. Indeed, Muhaymin was already

securely handcuffed behind his back when one or more of the Officers forced Muhaymin’s 
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cuffed arms even further up his back, over his head, and down the front again, causing 

Muhaymin to scream, yell out, and finally cry. [Plaintiff’s SOF, ¶45]. He continued to 

remain handcuffed, albeit in the front of his body, when he was initially taken to the ground 

at the SUV, before Officers began immediately piling their collective weight on 

Muhaymin’s torso, head, neck, back, and other parts of his body while he laid first on his 

side, then face-down into the concrete. [Plaintiff’s SOF, ¶47-54]. Indeed, even after Mr. 

Muahymin’s arms were securely behind his back for the second time, and Mr. Muahymin 

stopped struggling for air, the Defendant Officers continued to apply substantial weight to 

Muhaymin’s body. [Plaintiff’s SOF, ¶57].

That Defendants themselves forced Muhaymin’s arms over his head to the front of 

his body, gang tackled him to the ground, and decided unnecessarily to uncuff and then 

recuff him, does bring this case outside the scope of Drummond and its progeny. As the 

Ninth Circuit has explained, “[i]n assessing the reasonableness of an officer's conduct where 

there is no case law directly on point, ‘the salient question that the Court of Appeals ought 

to ... ask[ ] is whether the state of the law [at the time of the alleged wrong] gave [the 

defendants] fair warning that their alleged treatment of [the plaintiff] was 

unconstitutional.’” Arce v. Blackwell, 294 F. App'x 259, 261 (9th Cir. 2008) (quoting Hope

v. Pelzer, 536 U.S. 730, 741, (2002) (rejecting requirements that previous cases be either 

“fundamentally similar,” or have “materially similar” facts). It did. Whether the officers’ 

collective use of force was objectively reasonable under the facts and circumstances of this 

case is a question of fact for the jury.

Even if the Ninth Circuit had not clearly established that Defendant Officers’ actions 

violated Muhaymin’s 4th Amendment rights (it did), police officers throughout the United 

States have been on notice of the fatal dangers of restraint techniques involving application 

of weight on the back of a prone suspect for over two and a half decades. In June 1995, the 

U.S. Department of Justice issued a bulletin entitled “Positional Asphyxiation—Sudden 
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Death” (“Bulletin”)5, major portions of which were drawn from a report prepared by the 

International Association of Chiefs of Police for the National Institute of Justice (NIJ).6 The 

1995 DOJ Bulletin highlighted the importance of understanding how “preexisting risk 

factors, combined with the subject’s body position when subdued or in transit, can 

compound the risk of sudden death.”

As the Bulletin explains, a person lying on his stomach has trouble breathing when 

pressure is applied to his back. “To help ensure subject safety and minimize the risk of 

sudden in-custody death, officers should learn to recognize factors contributing to positional 

asphyxia.” Bulletin, p. 2. The Bulletin concluded with the following advice: “To help 

minimize the risk of positional asphyxia, [...] the use of maximal, prone restraint techniques 

should be avoided. If prone positioning is required, subjects should be closely and 

continuously monitored. By implementing such procedural protocols, the potential for in 

custody deaths may be lessened.” Id. at p. 3.

A memorandum to U.S. law enforcement, published by the DOJ and substantially 

prepared by the International Association of Chiefs of Police, expressly describing the 

dangers of asphyxia caused by restraint techniques involving the placement of body weight 

on the back of a prone suspect, is more than sufficient to provide “fair warning” to any 

reasonable officer that employment of such a technique risked Muhaymin’s life. See 

Drummond, 343 F.3d at 1061 (“[T]he salient question...is whether the state of the law [at 

the time of the alleged wrong] gave respondents fair warning that their alleged treatment of 

[the petitioner] was unconstitutional.”) (quoting Hope, 536 U.S. at 741) (brackets in 

5 National Criminal Justice Reference Service (NCJRS), U.S. Department of Justice, 

National Law Enforcement Technology Center, “Positional Asphyxia-Sudden Death”, 

https://www.ncjrs.gov/pdffiles/posasph.pdf (last visited Jan 21, 2020).

6 The NIJ report was based on research conducted by Dr. Charles S. Petty, Professor of 

Forensic Pathology, University of Texas, and Dr. Edward T. McDonough Deputy Chief 

Medical Examiner, State of Connecticut, and reviewed by the Less-Than-Lethal Liability 

Task Group
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original); see also Hope v. Pelzer, 536 U.S. 730, 744, 122 S. Ct. 2508, 2518, 153 L. Ed. 2d 

666 (2002) (“Our conclusion that ‘a reasonable person would have known’ of the violation 

is buttressed by the fact that the DOJ specifically advised the ADOC of the 

unconstitutionality of its practices before the incidents in this case took place.”). 

Furthermore, multiple Officers expressly admitted that they received training on the 

dangers of asphyxia, and the City of Phoenix’s 30(b)(6) representative confirmed that such 

training is given. [Plaintiff’s SOF, ¶65]. The Ninth Circuit has clearly stated that a police 

department’s “training materials are relevant not only to whether the force employed in this 

case was objectively unreasonable, [...] but also to whether reasonable officers would have 

been on notice that the force employed was objectively unreasonable.” Drummond, 343 

F.3d at 1062. In Drummond, the court found that “training from [defendants’] own police 

department” on the dangers of positional asphyxia provided an independent source of “fair 

warning” of the unconstitutional risk of applying weight to a prone individual. Id., at 1061-

62. The same reasoning applies here. Defendant Officers had actual notice from police 

department training that their actions risked Muhaymin’s life, and that such a risk was not 

warranted by Muhaymin’s passive resistance.

Finally, there is evidence on the record to support a reasonable finding that a number 

of the Defendant Officers had actual notice of the risk to Muhaymin’s life caused by the 

Officers’ collective actions. After Muhaymin had rolled out of his vomit, Officer Head 

walked to the back of a police SUV where Officer Nielson twice stated clearly that he “knew 

that was going to happen.” [Plaintiff’s SOF, ¶64]. Officer Head responded by saying, 

“yeah,” indicating that he too was fully aware of the risks to Muhaymin’s life. [Id.]. Further, 

Officer Canilao testified that he was personally aware through life experience that weight 

applied to a prone individual’s back can cause difficulty breathing. [Plaintiff’s SOF, ¶66].

Finally, Officer Grenier testified that he knew placing his body weight on an individual’s 

head would be illegal. GRENIER DEPO, 77:18-25.
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The Defendant Officers received “fair warning” of the unconstitutionality of their 

actions through multiple Ninth Circuit decisions, a federal notice to police enforcement of 

the dangers of positional asphyxia in police interaction, department training on the same 

issue, and basic common sense that crushing weight applied to a prone person’s back causes 

severe difficulty in breathing. Further, there is evidence that at least two Officers

consciously considered the risk and yet failed to intervene to save Muhaymin’s life. Under 

these circumstances, any reasonable officer should have “understood that what he [was]

doing violate[d] [the victim’s] right.” Mullenix, 577 U.S. at 11. None of the Defendants are 

entitled to qualified immunity.

ii. Manhandling An Individual, Causing Unnecessary Pain 

It is well established in the Ninth Circuit that physically manhandling an individual 

while effecting arrest is considered excessive force if the Graham factors do not fully 

support the use of force. In Bushell-McIntyre v. City of San Jose (252 F. App'x 810, 812 

(9th Cir. 2007)), the court found that a reasonable jury could determine that the shoving and 

slamming of the plaintiff against a car by the defendant officer was excessive force where

“the crime at issue was not severe” and the plaintiff “did not pose a threat to the officers.” 

Id. (applying the Graham factors). The Ninth Circuit further stated that such manhandling, 

even absent a fact pattern directly on point, was a “constitutional violation” and “was clearly 

established at the time of the arrest.” Id. Summing up, the Ninth Circuit stated, “force is 

justified only when there is a need for it [...] Viewing the evidence in a light most favorable 

to [plaintiff], there was no need for it here.” Id.

Even if Ninth Circuit precedent was not sufficient to give a reasonable officer notice 

that needlessly physically manhandling an individual is a constitutional violation (it was), 

“in an obvious case, [the Graham] standards can ‘clearly establish’ the answer [of whether 

officer conduct is unconstitutional], even without a body of relevant case law.” Mattos v. 

Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (quoting Brosseau v. Haugen, 543 U.S. 194, 

198–99, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)) (further citations omitted). There is no 

reasonable argument that needlessly forcing Muhaymin’s handcuffed arms backwards over 
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his head, while he was surrounded by multiple officers and forced over the hood of a police 

SUV, was warranted under the Graham standards, and Defendants do not dispute this 

reality.

7

iii. Leaving An Individual Face-Down In Vomit

As the Ninth Circuit has noted, “[e]ven unpublished decisions of district courts may 

inform [the] qualified immunity analysis.” Drummond, 343 F.3d at 1060. In Gabales v. Cty. 

of San Joaquin (No. CIV. S-07-1346LKKDAD, 2009 WL 2923037, at *11 (E.D. Cal. Sept. 

4, 2009)), the Eastern District of California analyzed a situation, similar to the one before 

this Court, under the Graham factors. In addition to restating the common Ninth Circuit 

determination that “officers [are] on notice of the potentially lethal effect of kneeling on or 

compressing a suspect's back while he [is] prone,” the court noted that the victim had been 

left face-down in his own vomit, which may have caused his death. Id. In determining that 

the officers had violated the victim’s 4th amendment rights, the court stated, “It appears to 

make no difference to this analysis that the decedent here died from aspiration of his vomit 

while lying prone, rather than suffocation. The hazard appears the same.” Id. It was clearly 

established at the time of Muhaymin’s death that leaving an unconscious individual facedown in vomit increases the likelihood that the individual will aspirate and die.8

B. PLAINTIFF’S CLAIM FOR FAILURE TO INTERVENE SURVIVES 

SUMMARY JUDGMENT

“[P]olice officers have a duty to intercede when their fellow officers violate the 

constitutional rights of a suspect or other citizen [...] if they had an opportunity to 

7 Even Defendants’ police policies expert testified that forcing an individual’s cuffed hands 

up from behind the back and over the head would be “an improper use of force and a very 

stupid thing to do.” [Plaintiff’s SODF, ¶38].

8 Plaintiff reiterates that “in an obvious case, [the Graham] standards can ‘clearly establish’ 

the answer [of whether officer conduct is unconstitutional], even without a body of relevant 

case law.” Mattos, 661 F.3d at 442. It should have been obvious to every Officer involved 

that leaving Muhaymin face-down in his vomit, while he was unconscious and unable to 

move, carried an outsized risk that Muhaymin would aspirate. This risk of death was not 

warranted by the Graham factors.
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intercede.” Cunningham, 229 F.3d at 1289 (9th Cir. 2000), as amended (Oct. 31, 2000) 

(internal quotation marks omitted) (further citation omitted). As this Court has stated, “If 

an officer merely stands by without trying to assist the victim, that officer may be held liable 

as a tacit collaborator.” Fernandez v. Virgillo, No. 2:12-CV-02475 JWS, 2014 WL 

2930749, at *6 (D. Ariz. June 30, 2014), aff'd, 651 F. App'x 692 (9th Cir. 2016) (further 

citation omitted).

All of the Defendant Officers either directly participated in the violation of 

Muhaymin’s rights, or stood by and watched such violation occur without attempting to 

assist Muhaymin as he died. [Plaintiff’s SOF, ¶50(a)-(g)]. Defendants’ argument for 

dismissal on Plaintiff’s failure to intervene claims rests entirely on their erroneous 

conclusion that the offending officers did not use excessive or unreasonable force in 

attempting to effect Muhaymin’s’ arrest. Defendants do not argue that they did not have a 

reasonable opportunity to intervene. Thus, because a question of fact remains as to the 

officers’ use of excessive or unreasonable force, Plaintiff’s failure to intervene claim must 

also survive.

C. PLAINTIFF’S AMERICANS WITH DISABILITIES ACT CLAIM 

SURVIVES SUMMARY JUDGMENT

Defendants assert that Plaintiff’s claims under the Americans with Disabilities Act

(“ADA”) must fail as a matter of law because (1) there is no evidence that Muhaymin was 

disabled, (2) there is no evidence that Chiquita was Muhaymin’s “service animal,” and (3) 

Tarango’s violations of the ADA were excusable because, in Defendants’ opinion, Chiquita 

was not under Muhaymin’s control. All three of these propositions fail.

First, Defendants’ bald assertion that “Plaintiff has no evidence that Muhaymin was, 

in fact, deemed disabled” is verifiably false. The ADA defines a “disability” as “a physical 

or mental impairment that substantially limits one or more major life activities of such 

individual.” 42 U.S.C. § 12102(1)(A). Federal regulations further define “a physical or 

mental impairment” as “[a]ny mental or psychological disorder” (with exceptions not 

relevant here). 28 CFR § 36.105(b)(1)(ii). Muhaymin’s mental health records (produced in 
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discovery by Defendants) mention Muhaymin’s schizophrenia diagnosis no less than eighty 

separate times. [Plaintiff’s SOF, ¶2]. Schizophrenia is a psychological disorder. See Harper 

v. Cty. of Merced, No. 118CV00562LJOSKO, 2018 WL 5880786, at *1 (E.D. Cal. Nov. 8, 

2018) (“Plaintiff suffers from mental health disorders, including schizophrenia...”); 235080 

dementia praecox, Stedmans Medical Dictionary 235080.

Second, there is evidence on the record supportive of a reasonable finding that 

Chiquita was a “service animal” as defined by the ADA.9

Service animal means any dog that is individually trained to do work or 

perform tasks for the benefit of an individual with a disability, including a 

physical, sensory, psychiatric, intellectual, or other mental disability. [...] 

Examples of work or tasks include, but are not limited to, [...] helping 

persons with psychiatric and neurological disabilities by preventing or 

interrupting impulsive or destructive behaviors.

28 CFR § 36.104. 

Courts that have considered the training requirement for service animals 

recognize that federal regulations do not set forth any standards or 

requirements specifying the amount or type of training that an animal must 

receive to qualify as a service animal, nor the type or amount of work a 

service animal must provide for the disabled person.

Miller v. Ladd, No. CV 08-05595 NJV, 2010 WL 2867808, at *4 (N.D. Cal. July 20, 2010)

(citing Bronk v. Ineichen, 54 F.3d 425, 430–31 (7th Cir.1995) (federal law does not require 

the service animal to be trained at an accredited training school).

As other Ninth Circuit districts have stated, “[t]he relevant question for the court is 

whether the animal helps the disabled person perform tasks to ameliorate the ADA 

disability.” Ladd, 2010 WL 2867808, at *4; See also Davis v. Ma, 848 F. Supp. 2d 1105, 

1114 (C.D. Cal. 2012), aff'd, 568 F. App'x 488 (9th Cir. 2014). This is necessarily a factintensive inquiry. The Sadler v. Fred Meyer Stores, Inc. and Miller v. Ladd cases, cited 

above, are instructive. 

9 Defendants assertion that Chiquita was “unregistered, unlicensed, and had no 

vaccinations” is completely irrelevant to Plaintiff’s civil claim under the ADA, and 

Defendants provide not case law to the contrary.
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In Sadler (2018 WL 4854064), the only relevant evidence on the record at summary 

judgment was the plaintiff’s testimony that the animal at issue had been personally trained 

by plaintiff (and her husband) to lick plaintiff’s face when plaintiff showed signs of anxiety. 

Id. The District of Oregon denied the defendant’s motion for summary judgment, finding 

that “[d]rawing all reasonable inferences in [plaintiff’s] favor, a rational trier of fact could 

find that Annabelle qualifies as a service animal.” Id., at *3. In Ladd (2010 WL 2867808), 

the plaintiff testified that she purchased her dog from an animal shelter and began training 

it to alert her when she was having a panic attack. Id., at *5. The plaintiff’s testimony was 

“deemed sufficient to present a genuine issue as to whether Plaintiff's dog qualifies as a 

service animal” by the Northern District of California. Id.

As illustrated by the above examples, most cases involving an ADA claim where the 

subject dog’s status as a “service animal” is questioned involve a plaintiff who can testify 

as to the training of the alleged “service animal.” Here, however, that is obviously 

impossible. The Court, and eventually the jury, must therefore necessarily weigh and draw 

inferences from the documentary and video evidence on record. Regarding this record, the 

following evidence exists to support a reasonable finding that Chiquita “help[ed]

[Muhaymin] perform tasks to ameliorate [his] ADA disability.” Ladd, 2010 WL 2867808, 

at *4.

10

Muhaymin’s Terros medical records contain multiple references to Chiquita’s role 

in helping Muhaymin navigate his mental illness. [Plaintiff’s SOF, ¶3]. Those references 

include 1) records of Muhaymin self-reporting that Chiquita was of assistance in living with 

schizophrenia, (2) observations by Muhaymin’s mental health caregivers that Chiquita was 

an asset in his struggle with mental illness, (3) and an explicit note that Muhaymin’s case 

manager had informed him that he could get a doctor’s note for Chiquita and bring her in 

to the clinic. [Id]. Furthermore, while Muhaymin is unable to testify to the precise training 

10 Plaintiff notes that such evidence must be viewed “in the light most favorable to the 

nonmoving party” Zetwick, 850 F.3d at 440.
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he gave Chiquita (as were the plaintiffs in Sadler and Miller), the available bodycam footage 

contains multiple examples of Muhaymin repeatedly asserting that Chiquita was his service 

dog and that she was “disciplined.” [Id]. Muhaymin can further be heard comparing 

Chiquita to dogs in TV shows, which at least would allow a jury to draw the reasonable 

inference that Chiquita had been trained. See Exhibit 62 to Defendants’ SOF, 8:55-9:03.

Third, Defendants’ final attempt to escape liability under the ADA fails at its thesis 

sentence: “[T]he Center was fully within its legal rights to exclude an unleashed and 

uncontrolled dog from entry.” See Motion, p. 29. Contrary to Defendants’ implicit 

contention, the only evidence on the record supportive of the assertion that Chiquita was 

“uncontrolled” while in the Center on January 4, 2017, is the testimony of Defendant 

Tarango, statements of other Center employees, and an “incident report” that was created 

after the fact. [Plaintiff’s Statement of Disputed Facts (“Plaintiff’s SODF”), ¶5]. The only 

video footage of Chiquita inside the Center on January 4, 2017 shows Muhaymin (1) 

holding her, and (2) maintaining complete control over her. [Id.]; [Plaintiff’s SOF, ¶14]. 

Therefore, determination of Chiquita’s actions while in the Center prior to the arrival of the 

Defendant Officers relies on the credibility of Defendant Tarango and the other Center 

employees. It is, therefore, necessarily a question of fact for jury determination.11 12

Finally, even beyond Defendants’ refusal to allow Muhaymin access to the public 

restroom facilities solely due to his service animal, Defendants completely fail to address 

11 Defendants’ further contention that Chiquita’s alleged lack of vaccination and licensing 

was contemporaneous justification to violate Muhaymin’s rights under the ADA is also 

nonsense. Proof of current vaccination and/or licensing is not a requirement to state a claim 

under the ADA (Defendants cite to no contrary authority), and there is absolutely no 

evidence on the record to support the proposition that Tarango (or anyone else at the center) 

thought that Chiquita was unvaccinated or unlicensed when they denied Muhaymin entry 

to the bathroom.

12 Defendants’ assertion that prior encounters with Chiquita proved her status as a danger 

to Center employees is both (1) unsubstantiated by the facts on record [Plaintiff’s SODF, 

¶5], and (2) completely irrelevant to the determination of Chiquita’s behavior on January 

4, 2017, and the Defendants’ actions under the ADA.
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the undisputed fact that Defendant Tarango unambiguously admitted to asking Muhaymin

to provide proof of Chiquita’s status as a service animal prior to the Defendant Officers’ 

arrival. [Plaintiff’s SOF, ¶6]. Such a request is expressly prohibited by federal ADA 

regulation.13 There exists on the record evidence sufficient to support a reasonable finding 

the Defendants violated Plaintiff’s federal rights under the ADA. There is, therefore, a 

genuine issue of fact for jury determination, and Defendants are not entitled to summary 

judgment as a matter of law.14

D. PLAINTIFF’S ARIZONA STATE LAW CLAIMS SURVIVE SUMMARY 

JUDGMENT 

1. The Defendant Officers Are Not Entitled To Immunity

Defendants present two theories of immunity under Arizona statute. As both theories 

present questions of fact, neither preclude Plaintiff from presenting her claims to a jury.

Further, even if the Court were to (inappropriately) weigh evidence and make credibility 

determinations at Defendants’ request, Defendants cannot prove by a preponderance of the 

evidence that they are entitled to immunity. 

First, as noted by Defendants, A.R.S. § 13-409 makes available to law enforcement 

a defense for utilizing physical force in effectuating an arrest where the arrestee uses or 

threatens to use physical force and all of the following exist:

1. A reasonable person would believe that such force is immediately 

necessary to effect the arrest or detention or prevent the escape.

2. Such person makes known the purpose of the arrest or detention or 

believes that it is otherwise known or cannot reasonably be made known 

to the person to be arrested or detained.

3. A reasonable person would believe the arrest or detention to be lawful.

13 28 C.F.R. § 36.302 (“A public accommodation shall not require documentation, such as 

proof that the animal has been certified, trained, or licensed as a service animal.”)

14 As indicated by Defendants’ Motion, Plaintiff’s Arizona Civil Rights Act (“ACRA”), 

A.R.S. § 41-1498, et seq., claim (Count XIII) should be analyzed in parallel with her ADA 

claim. See Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004). Therefore, because 

Plaintiff’s ADA claim survives summary judgment, her ACRA claim likewise survives.
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A.R.S. § 13-409. If the requirements of § 13-409 are met, the defendant is immune from 

civil liability. See A.R.S. § 13-413.

However, it is the “defendant [who] bears the burden of proving a justification 

defense by a preponderance of the evidence in a civil case.” Ryan v. Napier, 245 Ariz. 54, 

65, 425 P.3d 230, 241 (2018). Furthermore, whether, under this standard, Defendants have

proven the § 13-409 elements is a question of fact for the jury. Paz v. City of Tucson, No. 2 

CA-CV 2019-0209, 2020 WL 7488180, at *1 (Ariz. Ct. App. Dec. 18, 2020) (affirming a 

lower court’s determination that “whether the state had proven the elements of § 13-409 

was a question for the jury.”)

However, even if the Court were to weigh evidence on summary judgment, 

Defendants cannot possibly prove the foundational requirement of § 13-409. There is 

absolutely no evidence that Muhaymin “use[d] or threaten[ed] to use physical force” against 

the Defendant Officers, and there is significant deposition testimony to the contrary. Four 

of the Defendant Officers expressly testified that Muhaymin never harmed, or threatened to 

harm, any of the Defendant Officers [Plaintiff’s SOF, ¶63] and none of the Defendant 

Officers testified otherwise. This alone precludes application of § 13-409.

Second, Defendants rely on A.R.S. § 12-716, which provides for a presumption that 

a police officer acted reasonably in using physical force to effect an arrest

[i]f the court finds by a preponderance of the evidence that a plaintiff is 

harmed while the plaintiff is attempting to commit, committing or fleeing 

after having committed or attempted to commit a felony criminal act or if a 

person intentionally or knowingly caused temporary but substantial 

disfigurement or temporary but substantial impairment of any body organ or 

part or a fracture of any body part of another person...

A.R.S. § 12-716. The first factor, therefore, that Defendants must prove “by a 

preponderance of the evidence” is that Muhaymin was harmed “while [...] attempting to 

commit, committing[,] or fleeing after having committed or attempted to commit a felony 
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criminal act...” A.R.S. § 12-716(A).

15 Defendants attempt to satisfy this burden by 

asserting that “Muhaymin’s arrest was indisputably lawful.” See Motion, p. 25. This, 

however, is not the question. The question is whether Muhaymin was harmed while 

committing a felony. A.R.S. § 12-716(A). This question, Defendants assert, is answered in 

the affirmative because (1) Muhaymin’s alleged resistance to arrest, and (2) the status of 

being intoxicated with methamphetamine, are per se felonies under Arizona law. See 

Motion, pgs. 32-33. This is false.

First, Arizona law only classifies “resisting arrest” as a felony if the same is done 

“[u]sing or threatening to use physical force against the peace officer or another” or 

“[c]reating a substantial risk of causing physical injury to the peace officer or another.” 

A.R.S. § 13-2508. The statute expressly provides that engaging in “passive resistance” is 

not a felony, but a misdemeanor. A.R.S. § 13-2508(A)(3); 13-2508(B)-(C). “Passive 

resistance” is defined as “a nonviolent physical act or failure to act that is intended to 

impede, hinder or delay the effecting of an arrest.” Id. As referenced above, the evidence 

on the record fully supports a reasonable finding that Muhaymin was engaged in “passive 

resistance” (in fact, this is the precise description used by multiple Defendant Officers under 

oath [Defendants’ SOF, ¶43; Plaintiff’s SODF, ¶26]). [Plaintiff’s SOF ¶63]. Even if this 

were not the case, and even if the majority of Defendants’ erroneous version of events were 

accepted as true, Defendants have completely failed to show by a preponderance of the 

evidence that Muhaymin “threaten[ed] to use physical force” or “create[ed] a substantial 

risk of causing physical injury” by simply stiffening his body, refusing to drop his dog, or 

going limp while being frog-marched to the police vehicle. [Defendants’ SOF, ¶¶22, 27, 

15 The remainder of this requirement addresses situations where the arrestee intentionally 

caused “substantial disfigurement” or “impairment of any body organ or part or a fracture 

of any body part of another person.” A.R.S. § 12-716. This is not applicable here, where 

there is no evidence that Muhaymin harmed or attempted to harm anyone.
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29, 42-43; Plaintiff’s SODF, ¶¶22, 27, 29, 42-43; Plaintiff’s SOF, ¶¶26-30, 32-33, 40-42, 

44-46, 5-58]. 

Second, it is “use” or “possession” of a “dangerous drug” (including 

methamphetamine) that is a felony under Arizona law, not the status of being intoxicated. 

A.R.S. § 13-3407(A). There is no sincere allegation (or evidence to support the same) that 

Muhaymin was in possession of methamphetamine on his person at the time of his death,

or that he was in the process of using methamphetamines upon his arrest. Even Defendants 

admit that the evidence regarding Muhaymin’s methamphetamine use on record supports 

only a finding that he had ingested the drug at some point in the few hours prior to his 

incident with the police. [Defendants’ SOF, ¶70; Plaintiff’s SODF, ¶70]. Therefore, there 

is no evidence on the record (much less a preponderance of the evidence) to support a 

finding that Muhaymin was either (1) in the process of committing a drug felony or (2) 

attempting to run away after committing a drug felony at the time of his death. As a matter 

of plain language interpretation, A.R.S. § 12-716(A) does not provide a presumption of 

reasonableness for Defendants’ actions.

2. Plaintiff Is Entitled To Present Alternative Theories Of Liability

The entirety of Defendants’ argument regarding Plaintiff’s claims of negligence rests 

on the erroneous assumption that litigants are not allowed to present alternative theories of 

liability to a jury. As the Arizona Supreme Court has made clear, “plaintiffs may plead a 

negligence claim for conduct that is independent of the intentional use of force or plead 

negligence and battery as alternate theories if the evidence supports each theory.” Ryan, 

245 Ariz. at 62. “It is the jury's role (or the judge's in a bench trial) to establish what occurred 

and then apply the correct legal theory to arrive at a verdict.” Id. 

Defendants contort Ryan beyond recognition. Ryan did not hold that litigants could 

not bring separate claims under theories of both intentional and negligent violation. Id., at 

62. Instead, Ryan determined the nonexistence of a common law claim in Arizona 

combining intent and negligence. Id., at 59. Plaintiff is entitled to present evidence of both 

willful and negligent behavior to the jury. Id., at 62.
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3. Testimony Regarding Damages Are To Be Weighed By The Jury

As the personal representative of Muhaymin’s estate, Plaintiff may “recover noneconomic damages” and “compensation for the pain and suffering of the decedent's 

surviving [...] children.” Robbins v. United States, No. CIV03-1224PCT-JAT, 2006 WL 

359948, at *6 (D. Ariz. Feb. 14, 2006). On summary judgment, “[i]nitially, it is for the court 

to determine whether on the evidence severe emotional distress can be found.” Abdi v. 

Lovell, No. CV-08-0321-PHX-GMS, 2009 WL 976503, at *7 (D. Ariz. Apr. 9, 2009)

(citation omitted). “However, it is for the jury to determine whether severe emotional 

distress actually exists and whether the defendant caused it. Abdi, 2009 WL 976503, at *7 

(citing Savage v. Boies, 77 Ariz. 355, 359, 272 P.2d 349, 351 (1954)). Therefore, it is 

Defendants’ burden to show that no evidence of emotional distress exists on the record. If 

it cannot, Plaintiff’s compensatory damage claims are a question for the jury.

Defendants assert that Plaintiff “has offered no factual support for any alleged 

damages,” ostensibly relying on Plaintiff’s interrogatory responses. Motion, p. 36. 

However, instead of actually including Plaintiff’s full response, Defendants quote only 

Plaintiff’s counsel’s objections to the interrogatory, which is (1) incredibly misleading, and 

(2) completely irrelevant to the Court’s consideration of a summary judgment motion. In 

reality, Plaintiff’s interrogatory response pointed Defendants to the deposition of 

Muhaymin’s surviving daughter, AM.

16 [Plaintiff’s SODF, ¶86]. This deposition testimony 

provides evidence of the following:

AM was 10 years old when she learned of her father’s death. Exhibit S, Deposition 

Transcript of AM (“AM DEPO”), 34:24-25. AM saw Muhaymin two days prior to his 

death, when she visited him at the park. Id., at 26:18-20. They played on the park equipment 

and visited for four hours together. Id., at 28:6-29:95. AM testified to feeling happy at the 

time. Id., at 36:5-7. Upon learning that Muhaymin had been killed, MA became depressed 

16 Muhaymin’s daughter is a minor. Plaintiff refers to her by her initials.
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and started engaging in self-harm. This included “cutting” and an attempted suicide, 

resulting in hospitalization. Id., at 36:8-10; 36:10-12; 36:13-37:1. AM had never engaged 

in self-harm prior to this event, and her depression required ongoing therapy. Id., at 37:2-

4.70; 40:8-41:19.

Also on the record is the testimony of Muhaymin’s surviving son, Muhammad 

Muhaymin III (“Muhammad”). He testified that he had recently found out that Muhaymin

was in the area, but had not had a chance to see him prior to his death. Exhibit T, Deposition 

Transcript of Muhammad Muhaymin III, Decedent’s Son (“MUHAMMAD III DEPO”), at 

54:2-8, 54:20-56:16. Muhammad testified to his personal grief upon the lost opportunity to 

rekindle his relationship with his father. Id., 91:8-18. Finally, he testified that his father’s 

death, and the knowledge that he could watch the final minutes of his father’s life on the 

internet, had traumatized him. Id., at 96:19-20, 97:5-8.

The testimony of AM and Muhammad are sufficient alone to support a reasonable 

finding of emotional damages, and thus preclude summary judgment. State ex Rel. Goddard 

v. DHL Express (Usa), Inc., No. CV-06-2611-PHX-FJM, at *6 (D. Ariz. May 8, 2008) (“A 

plaintiff's ‘testimony alone is enough to substantiate the jury's award of emotional distress 

damages.’”) (quoting Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 

2003)); See also Estate of Dunlap, 38 Ariz. 525, 531 (Ariz. 1931). Defendants’ entire 

counterargument is that if a close family member struggles with a debilitating mental 

illness, that family member’s death should not cause grief to those who remain. Not only 

does this argument fail to address the actual standard identified in Abdi, but it is also

disgustingly dehumanizing.

4. Plaintiff’s Claim for Punitive Damages Under Federal Law Survives 

Summary Judgment 

Plaintiff may recover punitive damages under 42 U.S.C. § 1983 if the jury 

determines that Defendants’ actions were made with “reckless or callous disregard” for 

Muhaymin’s Constitutional rights. Smith v. Wade, 461 U.S. 30, 51 (1983). As described 

above, the evidence on record supports a reasonable finding that the Defendant Officers (1) 
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knew that Muhaymin was suffering from mental illness (2) repeatedly berated Muhaymin

with profanity and insulting names such as “mother-fucker” and “dumbass,” (3) dragged 

Muhaymin to a police vehicle and threw him over hood, (4) physically pulled Muhaymin’s 

hand-cuffed arms from behind his back up and over his head, causing Muhaymin to cry, (5) 

took Muhaymin to the ground and dog-piled on top of him while he was on his side and 

stomach on concrete, (6) ignored multiple pleas from Muhaymin telling them that he could

not breathe, and (7) continued to apply substantial weight to his back even after he went 

limp, only moving when he vomited. [Plaintiff’s SOF, ¶¶26-59]. All of this was done 

despite the undisputed fact that Muhaymin never harmed, threatened to harm, or attempted 

to harm the Defendants or anyone else. [Plaintiff’s SOF, ¶63]. These actions, if reasonably

found by the jury, would certainly fulfill the Supreme Court’s “reckless or callous 

disregard” standard. Smith, 461 U.S. at 51. Defendants are therefore not entitled to summary 

judgment on Plaintiff’s punitive damages request.

5. Plaintiff’s State Law Claims Against The City Of Phoenix Survive

Defendants assert that Plaintiff’s state law claims against the City of Phoenix are 

dependent upon the survival of Plaintiff’s state law claims against the individual 

Defendants. Motion, pp. 39-40. For the reasons set forth above, Plaintiff’s state law claims 

against the individual Defendants survives summary judgment, therefore, Plaintiff’s state 

law claims against the City of Phoenix likewise survive summary judgment. 

V. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny 

Defendants’ Motion for Summary Judgment and allow Plaintiff to present her claims and 

supporting evidence to a jury.

Respectfully submitted: February 1, 2021

PRICE LAW GROUP, APC

/s/David A. Chami

David A. Chami, AZ Bar No. 027585

david@pricelawgroup.com

Attorneys for Plaintiff
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CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2021, I electronically filed the foregoing with the 

Clerk of the Court using the ECF system, which will send notice of such filing to all 

attorneys of record in this matter. The documents are being filed with the Court under seal, 

therefore, hard copies of the foregoing have been provided via personal delivery or by postal 

mail.

PRICE LAW GROUP, APC

/s/Florence Lirato