Andreaccio v. Lynn

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 John Andreaccio, Case No.: 2:22-cv-00672-JAD-NJK 4 Plaintiff Order Granting Defendants’ Motion for 5 v. Summary Judgment and Closing Case 6 Joshua Weaver and Allen Lynn, [ECF No. 23] 7 Defendants 8 9 Pro se plaintiff John Andreaccio sues Nye County police officer Joshua Weaver and 10 police lieutenant Allen Lynn for violating his federal constitutional rights when Weaver pulled 11 over Andreaccio for driving an unregistered vehicle on a highway and impounded his car. 12 Andreaccio mainly theorizes that traffic, driver-licensing, and vehicle-registration laws don’t 13 apply to him because they regulate commercial activity only, and he was travelling for pleasure 14 in a private capacity. The defendants move for summary judgment, arguing that Weaver had 15 reasonable suspicion to stop Andreaccio because his vehicle had no visible license plates, that 16 Weaver had probable cause to arrest Andreaccio for refusing to identify himself, and that 17 Andreaccio has no evidence to support his other causes of action. Because Lynn’s purely 18 supervisory role does not subject him to § 1983 liability, Andreaccio cannot support his official- 19 capacity claims against either Lynn or Weaver, and Weaver has shown his entitlement to 20 summary judgment on Andreaccio’s remaining claims against him based either on a lack of 21 support in the record or qualified immunity, I grant the defendants’ motion and close this case. 22 23 1 Background1 2 On April 25, 2021, John Andreaccio took a day trip from Pahrump to Beatty, Nevada, 3 with his wife and daughter.2 While returning to Pahrump that afternoon, Andreaccio noticed that 4 Nye County police deputy Joshua Weaver began following his car for about three miles before 5 pulling him over.3 Andreaccio’s vehicle had no license plates nor notices of registration 6 displayed.4 Weaver requested Andreaccio’s driver’s license and registration, and Andreaccio 7 began a lengthy back-and-forth with the officer, arguing that he was not subject to such 8 requirements because he was “traveling for pleasure in a private capacity” and was thus not “in 9 commerce”—and traffic laws only apply to those “in commerce.”5 10 At multiple times throughout the stop, Weaver made requests for Andreaccio to fully 11 identify himself, but Andreaccio refused to do so.6 So Weaver arrested Andreaccio for 12 obstruction and handcuffed him.7 After about 20 minutes, Weaver obtained an Arizona driver’s 13 1 Andreaccio objects to the defendants’ “Statement of Undisputed Facts,” ECF No. 23 at 3–9, 14 arguing that “the fact that the [d]efendants claim to know anything about the [p]laintiff is absurd. The commentary . . . is certainly disputable but irrelevant to the matter at hand.” ECF No. 26 at 15 14. But a fact is disputed for purposes of Rule 56 only if “sufficient evidence supporting the claimed factual dispute” is identified “to require a jury or judge to resolve the parties’ differing 16 versions of the truth at trial.” Brit. Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) (quoting First Nat’l. Bank v. Cities Serv. Co., 391 U.S. 253, 288–90 (1968)). Merely saying 17 “objection” and observing that the facts are disputable does not create a genuine issue of disputed fact. Thus, the facts identified in this section are those supported by the record, which 18 consists mainly of Andreaccio’s deposition testimony and the objectively verifiable events depicted on the recording from Weaver’s body-worn camera during the stop, at ECF No. 23-1 19 and ECF No. 23-5, respectively. 20 2 ECF No. 1 at 6; ECF No. 23-1 at 6, 11, 35–36. 3 ECF No. 23-1 at 39. 21 4 Id. at 7. 22 5 ECF No. 1 at 3; ECF No. 23-1 at 32–34. 6 ECF No. 23-1 at 28–29. 23 7 ECF No. 23-5 (Weaver’s body-camera footage) at 14:02:20. Andreaccio notes that “the audio/video file evidence entered into the record . . . starts with an edit” because it is missing the 1 license from Andreaccio’s pocket and released him from the handcuffs.8 Weaver then shifted his 2 inquiry to whether Andreaccio had proof of insurance for his vehicle, and Andreaccio claimed 3 that his proof of insurance could only be accessed on his cellphone but that there was no cell 4 service in the area.9 5 Because Andreaccio’s car was unregistered and he could not provide proof of insurance, 6 Weaver issued citations and requested a tow for Andreaccio’s car.10 Throughout the traffic stop, 7 Weaver placed multiple radio calls, providing updates on the situation.11 The record does not 8 reflect who the recipient of those calls was. On the call following the tow request, Weaver 9 explained why he was impounding the car, stating “I don’t feel comfortable letting [Andreaccio] 10 get back in his car unregistered, uninsured, driving down the highway.”12 Afterwards, Weaver 11 offered Andreaccio and his family a lift back to Beatty, but Andreaccio refused it because he did 12 not want “to validate [Weaver] in any way.”13 13 So Andreaccio and his family walked along the highway back to Beatty, where he placed 14 two calls: one to a friend to give him a ride back to Pahrump and the other to the Nye County 15 Sheriff’s Office. The latter call was answered by lieutenant Allen Lynn, the alleged supervisor 16 17 18 first part of the traffic stop. ECF No. 26 at 3. But he also states that “it is not [his] intent to 19 challenge the validity of the entire file,” so I take the footage as authentic as confirmed by both parties. 20 8 ECF No. 23-5 at 14:17:00–21:34. 21 9 ECF No. 23-1 at 20; ECF No. 23-5 at 14:29:30. 10 ECF No. 23-5 at 14:24:32; 14:33:13. 22 11 See, e.g., id. at 13:57:00, 14:23:20. 23 12 Id. at 14:58:35. 13 ECF No. 23-1 at 47–49. 1 on duty, who informed Andreaccio that he would need to contact the private tow company to 2 retrieve his vehicle.14 Andreaccio paid $1,014.18 in impound and towing fees the next day.15 3 Andreaccio filed this suit against Weaver and Lynn in their individual and official 4 capacities for violating his Fourth, Fifth, Eighth, and Fourteenth Amendment rights.16 The 5 defendants now move for summary judgment on all claims, contending that the record does not 6 support a violation of any constitutional right and that, even if there were violations, the 7 defendants are shielded from this suit by qualified immunity.17 Andreaccio opposes that motion, 8 leaning heavily on what he perceives as his unfettered, constitutional right to travel. 9 Analysis 10 I. The defendants must show that the record presents no genuine dispute of material fact and that they are entitled to judgment as a matter of law to prevail on summary 11 judgment. 12 The principal purpose of the summary-judgment procedure is to isolate and dispose of 13 factually unsupported claims or defenses.18 The moving party bears the initial responsibility of 14 presenting the basis for its motion and identifying the portions of the record or affidavits that 15 demonstrate the absence of a genuine issue of material fact.19 If the moving party satisfies his 16 burden with a properly supported motion, the burden then shifts to the opposing party to present 17 specific facts that show a genuine issue for trial.20 A defendant moving for summary judgment 18 19 14 ECF No. 1 at 3–4; ECF No. 23-1 at 43–45. 15 ECF No. 23-1 at 51–52. 20 16 ECF No. 1. 21 17 ECF No. 23. 22 18 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 19 Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). 23 20 Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Auvil v. CBS 60 Minutes, 67 F.3d 816, 819 (9th Cir. 1995). 1 doesn’t have to produce evidence to negate the plaintiff’s claim; he merely has to point out the 2 evidence that shows an absence of a genuine material factual issue.21 The defendant need only 3 defeat one element of a claim to garner summary judgment on it because “a complete failure of 4 proof concerning an essential element of [a plaintiff’s claim] necessarily renders all other facts 5 immaterial.”22 6 II. Andreaccio’s claims against Lynn fail as a matter of law because a supervisory 7 position alone does not support § 1983 liability. 8 Andreaccio contends that Lynn is liable in his supervisory capacity under § 1983 for 9 Weaver’s violations of his constitutional rights. He theorizes that, because Lynn “denied any 10 assistance” and “refused to right the wrongs of his subordinate,”23 Lynn was acting “in concert 11 and complacent with” Weaver’s actions and refused to properly exercise the authority he 12 possessed as “the Sherriff’s Supervisor-on-Duty” to stop the towing of his car.24 Both parties 13 appear to agree that Lynn’s personal participation in the traffic stop was limited to this post-stop, 14 post-impound phone call. 15 A defendant is liable under § 1983 “only upon a showing of [his] personal 16 participation.”25 So, for a supervisor to be held liable for the constitutional violations of his 17 subordinates, the supervisor must have “participated in or directed the violations, or knew of the 18 violations and failed to act to prevent them.”26 Thus, for Lynn to be accountable to Andreaccio 19 21 See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); Celotex, 477 U.S. at 323– 20 24. 21 22 Celotex, 477 U.S. at 322. 23 ECF No. 1 at 4. 22 24 Id. at 6–7. 23 25 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 26 Id. 1 under § 1983 here, Andreaccio must show that Lynn directed the conduct at issue or knew about 2 Weaver’s violations and failed to act to prevent them.27 He “must go beyond the pleadings and 3 by [his] own evidence set forth specific facts showing that there is a genuine issue for trial”28 by 4 “identify[ing] with reasonable particularity the evidence that precludes summary judgment.”29 5 Andreaccio argues that Lynn is responsible for “that which occurs on his shift” and points 6 to the “audio/video in record” as evidence that Weaver was “not acting alone.”30 But there is no 7 evidence in the record that Lynn was directing Weaver’s actions. The record is devoid of 8 evidence that Lynn was the recipient of Weaver’s radio transmissions during the traffic stop. 9 Plus, the body-camera footage of those calls shows that Weaver used phrases such as “just gonna 10 let you know”31 and “just giving you a heads up,”32 which is informative language, and nothing 11 in those exchanges suggests that Weaver’s actions were being directed by a supervisor.33 12 Andreaccio thus cannot show that Lynn was directing Weaver’s actions during the traffic stop or 13 that Lynn had knowledge of Weaver’s actions before Andreaccio called him and could have— 14 but failed to—prevent them. Because Andreaccio identifies no evidence that Lynn personally 15 participated in, directed, or knew of and failed to prevent the constitutional violations that 16 17 18 19 27 Id. 28 Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (quotations omitted) (quoting 20 Fed. R. Civ. P. 56(e)). 21 29 Keenan v. Allan, 91 F.3d 1275 (9th Cir. 1996). 30 ECF No. 26 at 25. 22 31 Id. at 13:57:02. 23 32 Id. at 13:58:16. 33 See, e.g., ECF No. 23-5 at 13:57:00, 14:23:20. 1 Andreaccio alleges, Lynn is entitled to summary judgment in his favor on all claims against him 2 in his individual capacity.34 3 III. The record does not support any official-capacity liability for Andreaccio’s 4 constitutional claims. 5 Although Andreaccio asserts several of his claims against Weaver and Lynn in their 6 official capacities,35 the law recognizes that such claims are actually “against the governmental 7 entity itself.”36 So I construe Andreaccio’s official-capacity claims against Lynn and Weaver as 8 municipal-liability ones. The United States Supreme Court held in Monell v. Department of 9 Social Services of the City of New York that a municipal entity like Nye County can be held 10 liable for the constitutional violations of its officers (and officers can be held liable in their 11 official capacities) only if the plaintiff can show that the violations occurred because the officer 12 was carrying out a municipal policy or custom that caused the constitutional injury.37 “A policy 13 can be one of action or inaction.”38 For instance, “a local government’s decision not to train 14 certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of 15 an official government policy for purposes of § 1983.”39 16 17 34 Even if the record could support such findings, no § 1983 liability could for Lynn because the acts of Weaver are either not constitutional violations, see infra at pp. 8–22, or shielded by 18 qualified immunity. See infra at pp. 22–27. 19 35 ECF No. 1 at 5. 36 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978); see also 20 Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, 21 to be treated as a suit against the entity.”). 37 Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing Monell, 436 U.S. at 22 690). 23 38 Id. (citing Canton v. Harris, 489 U.S. 378, 388 (1989)). 39 Connick v. Thompson, 563 U.S. 51, 61 (2011). 1 Andreaccio contends that the county failed to act to correct Weaver’s constitutional 2 violations when “multiple requests for a supervisor were made, only to be told there was no 3 supervisor on duty at the time.”40 But Andreaccio points to no policy or custom underlying this 4 claim against the county. And even if this single-day incident were a constitutional violation, the 5 Supreme Court held in City of Oklahoma City v. Tuttle that “proof of a single incident of 6 unconstitutional activity is not sufficient to impose liability under Monell[;] . . . the existence of 7 the unconstitutional policy, and its origin, must be separately proved.”41 Andreaccio thus cannot 8 prevail on his official-capacity claims against Lynn or Weaver, so I grant summary judgment on 9 these claims in favor of the defendants. 10 IV. The record does not support any claim against Weaver in his individual capacity. 11 Having resolved Andreaccio’s claims against Lynn and his official-capacity claims 12 against Weaver, I turn to the remaining claims against Weaver in his individual capacity. 13 Andreaccio theorizes that Weaver violated his Fifth and Fourteenth Amendment due-process 14 rights when Weaver conducted “an investigation” into him without “a complainant” and then 15 impounded his car.42 He claims that Weaver violated his Fourth Amendment rights by 16 “accost[ing] and inquir[ing] the identity of” Andreaccio in his “private status” during the traffic 17 stop.43 He also alleges that his Eighth Amendment rights were violated when he had to pay 18 “unjust fines” to retrieve his car from the impound lot and had his medical conditions 19 20 40 ECF No. 26 at 29. 21 41 City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985); but see Pembaur v. City of 22 Cincinnati, 475 U.S. 469, 480 (1986) (holding that “a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body . . . .” (emphasis added)). 23 42 ECF No. 1 at 7. 43 Id. at 8. 1 exacerbated as a result of the experience.44 Weaver responds that none of these facts rises to a 2 constitutional violation and, regardless, he is shielded from liability by the doctrine of qualified 3 immunity.45 4 A. Andreaccio’s right-to-travel theory is frivolous. 5 Undergirding all of Andreaccio’s traffic-stop-related claims against Weaver is his belief 6 that the state’s licensing and registration requirements for vehicles and drivers don’t apply to 7 him. Based on that view, Andreaccio takes issue with the very idea that this case involved a 8 “traffic stop.”46 He contends that he was not “in traffic” because of his “overt avoidance of 9 creating a vehicle, avoiding the use of license and other marking that may give the inference of a 10 vehicle in commerce, supported by the People[’]s repeated, expressed proclamation of a private 11 capacity; ‘not-in-commerce,’ and most importantly, remaining in the grace of God.”47 He insists 12 that “this Plaintiff has clearly taken the necessary precautions not to appear as an actor in 13 traffic.”48 And he wasn’t “a driver” under the law because he essentially opted out of highway 14 laws by “not designat[ing] by registration with the state and adorning license plates for a 15 designated use.”49 This, he suggests, is his constitutional right to free travel.50 16 17 18 19 44 Id. at 8–9. 20 45 ECF No. 23 at 3. 21 46 ECF No. 26 at 6. 47 Id. 22 48 Id. 23 49 Id. 50 Id. at 29. 1 This misguided theory is just one iteration of the “sovereign citizen” ideology51—an 2 ideology that the Ninth Circuit has deemed frivolous and “entirely without merit.”52 Those 3 attempting to exempt themselves from governmental rules, regulations, and licensing or 4 permitting requirements by subscribing to this philosophy “believe they are not required to have 5 driver’s licenses, license plates, [or] vehicle registration . . . .”53 They “place special emphasis 6 on the words being used. They differentiate between a driver and a traveler; an automobile and a 7 motor vehicle; commercial and non-commercial; and public versus private conveyances.”54 8 They rely on isolated definitions from Black’s Law Dictionary.55 And though Andreaccio insists 9 that he is not a sovereign citizen,56 he does all of this in his complaint and his summary- 10 judgment brief.57 11 Andreaccio’s right-to-travel theory lacks a true basis in the law and is patently 12 frivolous—as every court to confront it has held.58 Although there is a constitutional right to 13 travel, that right is not unfettered, and it does not include the right to drive a motor vehicle on 14 15 51 See Bey v. Elmwood Place Police Dep’t, 2018 WL 4354541 at *1 (6th Cir. May 18, 2018) (describing similar right-to-travel argument as one “rooted in the theories of the sovereign citizen 16 movement”). 17 52 United States v. Marks, 530 F.3d 799, 811 (9th Cir. 2008). 53 Caesar Kalinowski IV, A Legal Response to the Sovereign Citizen Movement, 80 Mont. L. 18 Rev. 153, 167 (2019). 19 54 Id. at 167–68. 55 Id. at 169. 20 56 ECF No. 23-1 at 46. 21 57 See generally ECF Nos. 1, 26. 58 See, e.g., Berry v. City of St. Louis, 2021 WL 4191612 at *5 (E.D. Mo., Sept. 15, 2021) 22 (collecting cases); see also Augmon v. Pennsylvania, 2022 WL 16966723 at *3 (W.D. Pa. Oct. 25, 2022) (rejecting right-to-travel theory and concluding that “merely because [p]laintiff’s 23 vehicle was stopped and towed (because he did not have proper registration) does not mean that his constitutional right to travel was impeded”). 1 public roads free from state-government requirements for licensing and registration.59 To 2 borrow from the Ninth Circuit’s opinion in Miller v. Reed, “burdens on a single mode of 3 transportation do not implicate the right to interstate travel. . . . What is at issue here is not 4 [Andreaccio’s] right to travel interstate, but his right to operate a motor vehicle on the highways, 5 and we have no hesitation in holding that this is not a fundamental right” because there is no 6 “fundamental right to drive a motor vehicle.”60 And the United States Supreme Court has made 7 it clear that states can condition the privilege to drive on public roads on compliance with 8 licensing and registration requirements.61 So, to the extent that Andreaccio’s claims are 9 grounded in a violation of the constitutional right to travel or his belief that he doesn’t need a 10 license or registration to drive on public roads, they fail as a matter of law. 11 12 13 14 15 59 Winsley v. Cook Cnty., 563 F.3d 598, 604 (7th Cir. 2009) (noting that “no one has a right to 16 drive; driving on public highways is a privilege subject to revocation for a number of reasons”). 60 Miller v. Reed, 176 F.3d 1202, 1206 (9th Cir. 1999) (quoting Berberian v. Petit, 374 A.2d 791 17 (R. I. Sup. Ct. 1977)). 61 See Reitz v. Mealey, 314 U.S. 33, 36 (1941), overruled in part on other grounds by Perez v. 18 Campbell, 402 U.S. 637 (1971) (“The use of the public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The 19 universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees 20 and to protect others using the highway is consonant with due process.”); Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915) (noting that “a state may rightfully prescribe uniform 21 regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles,-those moving in interstate commerce as well as others. And to this end it 22 may require the registration of such vehicles and the licensing of their drivers . . . . This is but an exercise of the police power uniformly recognized as belonging to the states and essential to the 23 preservation of the health, safety, and comfort of their citizens; and it does not constitute a direct and material burden on interstate commerce.). 1 B. Andreaccio has not shown that he was subjected to cruel and unusual 2 punishment based on the exacerbation of his medical conditions. 3 Andreaccio also theorizes that he was subjected to cruel and unusual punishment in 4 violation of the Eighth Amendment because the traffic stop exacerbated unspecified medical 5 conditions he was already suffering from.62 The Eighth Amendment’s protection against cruel 6 and unusual punishment “was designed to protect those convicted of crimes” and thus applies 7 “only after the [s]tate has complied with the constitutional guarantees traditionally associated 8 with criminal prosecutions.”63 Because Andreaccio was not a convicted person with respect to 9 the facts of this case, if any constitutional provision governs his cruel-and-unusual punishment 10 claims, it’s the Fourteenth Amendment, which protects this right for pretrial detainees.64 11 To prevail on such a claim, Andreaccio must show that (1) Weaver “made an intentional 12 decision with respect to the conditions” of Andreaccio’s detainment; (2) “[t]hose conditions put 13 [Andreaccio] at substantial risk of suffering serious harm”; (3) Weaver “did not take reasonable 14 available measures to abate that risk”; and (4) “[b]y not taking such measures,” Weaver caused 15 Andreaccio’s injuries.65 But Andreaccio’s entire cruel-and-unusual-punishment theory consists 16 62 ECF No. 1 at 9. 17 63 Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 671, 18 n.40 (1977)). 64 The Supreme Court defines pretrial detainees as “persons who have been charged with a crime 19 but who have not yet been tried on the charge.” Bell v. Wolfish, 441 U.S. 520, 523 (1979). It is unclear from the record whether Andreaccio was a pretrial detainee during the traffic stop. 20 While Andreaccio was given citations for driving an unregistered vehicle and failing to present proof of insurance, ECF No. 23-5 at 14:24:32, there is nothing to suggest that these citations 21 were criminal charges. Even if I liberally construe his claim as one under the Fourteenth Amendment, see, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted) (holding 22 that pro se pleadings like Andreaccio’s are “to be liberally construed”), Andreaccio cannot prevail on a cruel-and-unusual punishment theory, so I assume without deciding that he would 23 qualify for this Fourteenth Amendment protection. 65 Castro v. City of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). 1 of just one reference in the complaint to unspecified medical conditions, and he does not address 2 this claim at all in his response to the defendants’ motion.66 I find that Andreaccio cannot 3 establish on this record that Weaver subjected him to cruel and unusual punishment in violation 4 of any constitutional provision. So Weaver is entitled to summary judgment on Andreaccio’s 5 cruel-and-unusual-punishment claim. 6 C. A private towing-company charge is not a constitutionally actionable fine. 7 Andreaccio next claims that he was subjected to an unjust fine in violation of the Eighth 8 Amendment when Weaver confiscated his car and had it towed “an extreme distance of seventy- 9 five miles when a closer storage facility exist[ed]” in order to impose “unjust fines . . . paid for 10 threat of permanent loss of property.”67 The excessive-fines clause of the Eighth Amendment is 11 not restricted to criminal convictions and applies to the states through the Fourteenth 12 Amendment.68 That clause “limits the government’s power to extract payments, whether in cash 13 or kind, as punishment.”69 For purposes of this clause, a fine is defined as a “payment to a 14 sovereign as punishment for some offense.”70 15 In his responses to the defendants’ discovery requests, Andreaccio acknowledged that 16 “Nye County, its affiliates, departments, and agents have not received funds” and that he had “no 17 evidence that . . . Weaver received funds or financial benefit from [the private towing company], 18 19 20 66 ECF No. 1 at 9; ECF No. 26 at 24. 67 ECF No. 1 at 9. 21 68 Timbs v. Indiana, 139 S. Ct. 682, 686–87 (2019); see also Pimentel v. City of Los Angeles, 974 22 F.3d 917, 922 (9th Cir. 2020). 69 United States v. Bajakajian, 524 U.S. 321, 328 (1998) (quoting Austin v. United States, 509 23 U.S. 602, 609–10 (1993)). 70 Austin, 509 U.S. at 622. 1 related to the towing and/or impound” of his car.71 And in support of summary judgment, 2 Weaver argues that, because “there [was] no payment to the sovereign as punishment for some 3 offense via any costs [Andreaccio] incurred in retrieving his vehicle,” he can’t establish a 4 constitutional violation based on the facts here.72 So Andreaccio instead argues that the 5 defendants, “by their contracted partner, acted by proxy” in imposing the fine on him.73 But the 6 Supreme Court’s definition of a fine for Eighth Amendment purposes contemplates “payment to 7 a sovereign” only,74 and there was none here. Because Andreaccio cannot establish that the tow 8 and impound fees violated the excessive-fines clause, Weaver is entitled to summary judgment 9 on that claim, too. 10 D. Andreaccio has not shown that his due-process rights were violated. 11 Andreaccio claims that he was deprived of constitutional due process when he was 12 “interrogat[ed]” and arrested, and his car was impounded.75 The Fifth Amendment “prohibits 13 the federal government from depriving persons of due process, while the Fourteenth Amendment 14 explicitly prohibits deprivations without due process by the several states.”76 Due-process 15 claims can be sorted into two types: (1) those brought under the substantive component of the 16 due-process clause, which “bars certain arbitrary, wrongful government actions, ‘regardless of 17 the fairness of the procedures used to implement them[,]’” and (2) those brought under the 18 procedural component of the due-process clause, which prohibits deprivations of life, liberty, or 19 20 71 ECF No. 23-3 at 14 (answers 24 and 25). 21 72 ECF No. 23 at 20–21. 73 ECF No. 26 at 24. 22 74 Austin, 509 U.S. at 622. 23 75 ECF No. 1 at 7; ECF No. 26 at 10. 76 Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005). 1 property without fair procedure.77 To succeed on a substantive-due-process claim, a plaintiff 2 must show that the official’s conduct “shocks the conscience” and that the official acted “with a 3 purpose to harm for reasons unrelated to legitimate law-enforcement objectives.”78 And to 4 prevail on a procedural-due-process claim, he must prove that he was denied a specified liberty 5 or property interest protected under the due-process clause and that he was deprived of that 6 interest without the constitutionally required procedures.79 7 Andreaccio does not specify whether his due-process claim is procedural or substantive, 8 so I liberally construe his complaint to raise both types. He broadly theorizes that the defendants 9 deprived him of due process under the Fifth and Fourteenth Amendments by taking his “private 10 property for public use without just compensation” when Weaver impounded his car.80 He 11 alleges that the towing was a confiscation “constitut[ing] public use” because the Nye County 12 sheriff received “financial gains as a result,” employing the language of the Fifth Amendment to 13 make a takings argument.81 Andreaccio also theorizes that his rights were violated when Weaver 14 “initiated an investigation” into him and imposed fines on him “without due process.”82 He cites 15 the United States Supreme Court case Miranda v. Arizona to support his claim that “an 16 17 18 77 Zinermon v. Burch, 494 U.S. 113, 125 (quoting Daniels v. Williams, 474 U.S. 327, 331 19 (1986)). 20 78 Porter v. Osborn, 546 F.3d 1131, 1142 (9th Cir. 2008); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998). 21 79 Swarthout v. Cooke, 562 U.S. 216, 219 (2011). 22 80 ECF No. 1 at 7. 81 Id.; U.S. Const. amend. V (“nor shall private property be taken for public use, without just 23 compensation”). 82 ECF No. 1 at 6, 9. 1 interrogation was taking place without reason, with a false arrest[,]” in violation of the Fifth 2 Amendment.83 3 1. Andreaccio cannot establish that Weaver violated his substantive-due- 4 process rights. 5 As a matter of law, Andreaccio cannot rely on the Fifth Amendment to the United States 6 Constitution for his property-deprivation theory because he is suing state—not federal—officials, 7 and the Fifth Amendment only applies to conduct by the federal government.84 So I liberally 8 construe Andreaccio’s Fifth Amendment claim as one raised under the Fourteenth Amendment, 9 which applies to state actors. But Andreaccio also can’t invoke Fourteenth Amendment 10 protections to allege a substantive-due-process claim based on an allegedly unreasonable search 11 or seizure. In Graham v. Connor, the United States Supreme Court held that, “[b]ecause the 12 Fourth Amendment provides an explicit textual source of constitutional protection against this 13 sort of physically intrusive governmental conduct, that Amendment, not the more generalized 14 notion of ‘substantive due process,’ must be the guide for analyzing these claims.”85 Because 15 Andreaccio cannot state a Fifth or Fourteenth Amendment substantive-due-process claim on 16 these facts, Weaver is entitled to summary judgment on any such claim. 17 2. Weaver did not violate Andreaccio’s procedural-due-process rights. 18 Andreaccio bases his procedural-due-process claim on abstract rights of “[a]cquiring, 19 [p]ossessing, & [p]rotecting property and pursuing and obtaining safety . . . includ[ing] 20 protecting that property from forced, harmful contracts with anyone else.”86 He also claims that 21 83 ECF No. 26 at 10. 22 84 Castillo, 399 F.3d at 1002 n.5. 23 85 Graham v. Connor, 490 U.S. 386, 395 (1989). 86 ECF No. 26 at 5. 1 Weaver “initiated an investigation without due process”87 and had “fines imposed [on him] 2 without due process.”88 But Andreaccio does not allege that any particular process—let alone 3 one that was constitutionally required—was denied him. Rather, he theorizes that the 4 investigatory stop, request to identify, arrest, and vehicle impoundment should not have 5 happened at all, which cannot support a procedural-due-process claim. 6 Andreaccio also doesn’t identify any evidence to back up his claim. When asked in his 7 deposition what process was due to him at the traffic stop, Andreaccio stated only that Weaver 8 should have taken his word that Andreaccio was not operating “as a commercial entity or a 9 driver” and then “should have walked away.”89 Because it is apparent that Andreaccio’s 10 procedural-due-process claim is rooted in his frivolous right-to-travel theory, and he has not 11 established that Weaver violated any procedural-due-process right, Weaver is entitled to 12 summary judgment on Andreaccio’s procedural-due-process claim, too. 13 E. The record does not show that Weaver violated Andreaccio’s Fourth Amendment rights during the traffic stop, demand for identification, or 14 arrest. 15 Traffic stops are considered seizures under the Fourth Amendment.90 The Supreme 16 Court has held that a traffic stop is constitutional under the Fourth Amendment if “there is at 17 least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is 18 not registered . . . .”91 Reasonable suspicion “is formed by specific, articulable facts which, 19 20 87 ECF No. 1 at 6. 21 88 Id. at 9. 22 89 ECF No. 23-1 at 31. 90 U.S. v. Rojas-Millan, 234 F.3d 464, 468 (9th Cir. 2000) (citing Delaware v. Prouse, 440 U.S. 23 648, 653 (1979)). 91 Prouse, 440 U.S. at 663. 1 together with objective and reasonable inferences, form the basis for suspecting that a particular 2 person detained is engaged in criminal activity.”92 “The reasonableness of a seizure under the 3 Fourth Amendment is determined by balancing its intrusion on the individual’s Fourth 4 Amendment interests against its promotion of legitimate government interests.”93 5 Andreaccio alleges that he was unlawfully “accost[ed]” and required to identify himself 6 despite being “in a private status.”94 He claims that Weaver violated his privacy and committed 7 a “warrantless search[] and warrantless confiscation of private property” during the traffic stop, 8 arrest, and the subsequent towing of his car.95 Weaver responds that his actions were 9 constitutional because he had probable cause to believe Andreaccio was breaking traffic laws 10 and that Nevada law permits an officer to detain a person suspected of committing a crime for 11 purposes of determining his identity96 and also authorizes an officer to seize and impound a 12 vehicle operating without registration under a community-caretaking purpose.97 13 1. The traffic stop did not violate Andreaccio’s Fourth Amendment rights. 14 The facts do not support Andreaccio’s claim that Weaver violated his Fourth Amendment 15 rights when he pulled him over and initiated a traffic stop. The Supreme Court specified in 16 Delaware v. Prouse that an officer’s mere reasonable suspicion that a car is unregistered is 17 enough to make that stop constitutional under the Fourth Amendment.98 In Prouse, the Court 18 19 92 Rojas-Millan, 234 F.3d at 468–69. 20 93 Prouse, 440 U.S. at 654. 21 94 ECF No. 1 at 8. 95 ECF No. 26 at 5; ECF No. 1 at 8. 22 96 ECF No. 23 at 17 (citing Nev. Rev. Stat. § 171.123(1)). 23 97 Id. at 11–13 (citing Nev. Rev. Stat. § 482.540(1)(a)). 98 Prouse, 440 U.S. at 663. 1 explained that states’ registration requirements “are designed to keep dangerous automobiles off 2 the road” and are thus “essential elements in a highway safety program.”99 Thus, though 3 Andreaccio believes that “traffic laws[,]” such as license and registration requirements, “have 4 nothing to do with public safety[,]” the Supreme Court categorically disagrees. 5 As Andreaccio admitted in his deposition, he also had no license plates or public notices 6 of registration displayed on his vehicle when Weaver stopped him.100 Nevada law requires that 7 “every owner of a motor vehicle . . . intended to be operated upon any highway in this [s]tate” 8 must “apply to the Department [of Motor Vehicles]. . . and obtain the registration thereof.”101 9 Drivers are also required to display license plates on their vehicles.102 It is thus reasonable that 10 Weaver would suspect that Andreaccio was driving an unregistered vehicle because his car had 11 no license plates or other visible indications of registration. So the record does not support that 12 Weaver violated Andreaccio’s Fourth Amendment rights when he pulled him over. 13 2. Weaver did not violate Andreaccio’s constitutional rights when he asked 14 him to identify himself. 15 Andreaccio next claims that Weaver’s demand for identification violated his rights 16 against unreasonable search and seizure. The Supreme Court has observed that “an officer’s 17 mission includes ordinary inquiries incident to the traffic stop” such as “checking the driver’s 18 license, determining whether there are outstanding warrants against the driver, and inspecting the 19 20 21 99 Id. at 658. 22 100 ECF No. 23-1 at 7–8. 23 101 Nev. Rev. Stat. § 482.205. 102 Nev. Rev. Stat. § 482.275(1). 1 automobile’s registration and proof of insurance.”103 To facilitate those inquiries, Nevada 2 Revised Statute 171.123(3) allows police officers to detain someone suspected of criminal 3 activity “to ascertain the person’s identity” and requires that person to identify himself.104 And 4 the United States Supreme Court specifically found NRS 171.123(3) consistent with the Fourth 5 Amendment in Hiibel v. Sixth Judicial District Court of Nevada.105 A police officer arrested 6 Hiibel for obstruction after he refused to identify himself, as required by Nevada law, during an 7 investigative stop in which he was suspected of committing an assault.106 The High Court held 8 that the defendant’s arrest was constitutional under the Fourth Amendment balancing test 9 because a “request for identity has an immediate relation to the purpose, rationale, and practical 10 demands of”107 an investigative stop and “obtaining a suspect’s name . . . serves important 11 government interests” such as informing “an officer that a suspect is wanted for another offense, 12 or has a record of violence or mental disorder.”108 13 Like the defendant in Hiibel, Andreaccio was suspected of unlawful activity—violating 14 state law requiring vehicle registration and display of license plates—so he was required under 15 Nevada law to identify himself when asked by Weaver. And the Supreme Court deemed 16 requirements for basic identification to law enforcement officers to be consistent with the Fourth 17 Amendment so long as there is reasonable suspicion of criminal activity justifying the stop, as 18 19 103 Rodriguez v. United States, 575 U.S. 348, 354 (2015) (internal citations and quotations 20 omitted). 21 104 Nev. Rev. Stat. § 171.123(3). 105 Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cnty., 542 U.S. 177, 188 (2004). 22 106 Id. at 180–181. 23 107 Id. at 188. 108 Id. at 186. 1 there was here. Andreaccio thus fails to establish that Weaver violated his constitutional rights 2 by asking for his identification. 3 3. Andreaccio cannot establish a Fourth Amendment violation based on 4 his arrest because there was probable cause. 5 Andreaccio lists false arrest as one of several “[c]ivil [r]ights violations” in the opening 6 of his complaint, alleging that Weaver “displayed a propensity for physical intrusion, going 7 hands-on unprovoked” in apparent reference to Andreaccio’s arrest.109 Weaver argues that the 8 arrest was constitutional because he had probable cause to detain Andreaccio for failing to 9 identify himself, as required by Nevada law.110 Andreaccio responds that he was exempt from 10 the traffic laws that formed the basis for the investigatory stop because he was not operating “in 11 commerce.”111 He further argues that the Nevada statute that Weaver relies on for the 12 identification requirement does not apply to him because the statute includes the words 13 “presence abroad,” and Andreaccio is “of the land” and “not of foreign origin and not in 14 commerce.”112 15 But Andreaccio’s arrest for failure to identify himself was supported by probable cause, 16 and “when an officer has probable cause to believe a person committed even a minor crime in his 17 presence, . . . [t]he arrest is constitutionally reasonable.”113 “Probable cause exists when, under 18 19 109 ECF No. 1 at 2, 6. 20 110 ECF No. 23 at 16–18. 21 111 See generally, ECF No. 26 at 4–13. 112 Id. at 11 (citing Nev. Rev. Stat. § 171.123(3)). Andreaccio’s argument that NRS 171.123(3) 22 is inapplicable to him because it contains the words “presence abroad” is meritless. The statute falls under Chapter 171, which governs public offenses, and the plain reading of NRS 171.123(3) 23 does not suggest that it is meant to apply to foreign or international suspects. 113 Virginia v. Moore, 553 U.S. 164, 171 (2008) (collecting cases). 1 the totality of the circumstances known to the arresting officers . . . a prudent person would 2 believe the suspect had committed a crime.”114 Instructive here is Virginia v. Moore, in which 3 police officers heard over the police radio that the plaintiff was suspected of driving with a 4 suspended license, pulled him over, and arrested him for the misdemeanor of driving on a 5 suspended license.115 The United States Supreme Court determined that, despite the fact that 6 Virginia law required officers to issue the plaintiff a summons rather than arrest him, Moore’s 7 arrest was constitutional under the Fourth Amendment because the officers had probable 8 cause.116 9 Andreaccio’s arrest is based on an even clearer case for probable cause. Whereas the 10 officers in Moore had only secondhand knowledge of the suspected crime, Weaver witnessed 11 firsthand that Andreaccio was violating NRS 171.123(3) by refusing to identify himself fully 12 after being lawfully pulled over under suspicion of driving an unregistered vehicle. And, unlike 13 in Moore, this Nevada statute expressly permits officers to detain a suspect.117 So the record 14 does not support Andreaccio’s claim that the arrest violated his Fourth Amendment rights. 15 E. Weaver enjoys qualified immunity from Andreaccio’s claims arising from 16 the impounding of the vehicle. 17 Finally, I consider Andreaccio’s claim that Weaver violated his constitutional rights by 18 impounding his vehicle. “The impoundment of an automobile is a seizure within the meaning of 19 20 21 114 Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 966 (9th Cir. 2001) (citing United States v. Garza, 980 F.2d 546, 550 (9th Cir. 1992)). 22 115 Moore, 553 U.S. at 166–67. 23 116 Id. at 167, 176. 117 Nev. Rev. Stat. § 171.123(3). 1 the Fourth Amendment.”118 But “[u]nder the ‘community-caretaking’ doctrine, police may, 2 without a warrant, impound and search a motor vehicle so long as they do so in conformance 3 with the standardized procedures of the local police department and in furtherance of a 4 community-caretaking purpose.”119 Such impoundment is proper if a vehicle “jeopardize[s] 5 public safety and the efficient movement of vehicular traffic”120 and “must consider the location 6 of the vehicle, and whether the vehicle was actually impeding traffic or threatening public safety 7 and commerce on the streets.”121 8 Weaver invokes this community-caretaking exception and contends that he was justified 9 in impounding Andreaccio’s car because “it’s simply not safe to leave the vehicle in the middle 10 of the desert” and that he “was promoting public safety and/or the efficient movement or flow of 11 vehicular traffic, and was also likely preventing the car from being vandalized or stolen.”122 12 Weaver notes that the impoundment was authorized under both Nevada law, which authorizes 13 the seizure of any vehicle operating without proper registration,123 and Nye County policy and 14 procedures, which permit the towing of any car being operated in violation of the law without 15 valid registration.124 16 17 18 118 United States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016) (quoting Miranda v. City of 19 Cornelius, 429 F.3d 858, 862 (9th Cir. 2005)). 119 Id. (citing U.S. v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2016)) (cleaned up). 20 120 South Dakota v. Opperman, 428 U.S. 364, 368–69 (1976). 21 121 Miranda, 429 F.3d at 865. 22 122 ECF No. 23 at 13. 123 Id. at 11 (quoting Nev. Rev. Stat. § 482.540(1)(a)). 23 124 Id. (quoting Nye County Sheriff’s Office, Policy and Procedures Manual, Policy 0033, “Vehicles: Towing, Impoundment, Seizing, Salvaging, Seizures”). 1 But “the fact that an impoundment complies with a state statute or police policy, by itself, 2 is insufficient to justify an impoundment under the community[-]caretaking exception.”125 As 3 the Ninth Circuit held in U.S. v. Cervantes, the officer must also show that the vehicle’s 4 placement or other circumstances supported his need to invoke the community-caretaking 5 exception,126 and this Weaver fails to do. Though he argues that Andreaccio’s car was a public 6 safety threat, impeded the flow of traffic, and was vulnerable to theft and vandalism, Weaver 7 points to nothing in the record to support these conclusory statements or to show that his decision 8 to impound the vehicle was based on such circumstances. 9 Indeed, the record tells a different story. The body-camera video shows Andreaccio’s car 10 parked on the side of the highway during the traffic stop for more than two hours without any 11 safety issues or interrupting the flow of traffic occurring throughout.127 And the body-camera 12 audio contains Weaver’s true reason for ordering the tow: “I don’t feel comfortable letting him 13 get back in his car unregistered, uninsured, driving down the highway.”128 While Andreaccio’s 14 continued operation of an unregistered vehicle could pose a public safety threat, that potential 15 hazard is based on the hypothetical that Andreaccio would continue driving his car after the 16 traffic stop, and the defendants do not provide evidence suggesting that was likely to occur. And 17 at no point in the video does Weaver indicate that he believes the car’s location on the highway 18 shoulder poses a safety threat, nuisance to the flow of traffic, or risk of theft or vandalism. So 19 Weaver has not shown that his impoundment of Andreaccio’s car did not violate the Fourth 20 Amendment. 21 125 Cervantes, 703 F.3d at 1141. 22 126 Miranda, 429 F.3d at 865. 23 127 ECF No. 23-5 at 13:55:34–15:56:26. 128 Id. at 14:58:30–38. 1 But Weaver’s inability to claim the protection of the community-caretaking exception is 2 not the end of the analysis. As Weaver argues,129 he enjoys qualified immunity from 3 Andreaccio’s Fourth Amendment improper-impoundment claim unless the unconstitutionality of 4 his action was clearly established at the time of the stop.130 Qualified immunity protects 5 government officials “from money damages unless a plaintiff pleads facts showing that (1) the 6 official violated a statutory or constitutional right, and (2) the right was ‘clearly established’ at 7 the time of the challenged conduct.”131 The United States Supreme Court has warned lower 8 courts to avoid addressing qualified immunity at a high level of generality,132 and a defendant 9 will be entitled to qualified immunity even if he was mistaken in his belief that his conduct was 10 lawful, so long as that belief was reasonable.133 And it’s the plaintiff who bears the burden of 11 showing that the rights at issue were clearly established.134 Though the plaintiff need not 12 identify a case “directly on point, existing precedent must have placed the statutory or 13 constitutional question beyond debate.”135 14 15 129 ECF No. 23 at 22–23. 16 130 Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223 (2009)). 17 131 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 18 818 (1982)). 132 Saucier, 533 U.S. at 201; see also Sheehan v. Cty. of San Francisco, 135 S. Ct. 1765, 1775– 19 76 (2015); Kisella v. Hughes, 138 S. Ct. 1148, 1152–53 (2018). 20 133 Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011), cert. denied, 132 S. Ct. 1032 (2012) (“the clearly established prong concerns the reasonableness of the officer’s mistake of 21 law.”); Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003); Davis v. Scherer, 468 U.S. 183, 191 (1984) (“Whether an official may prevail in his qualified immunity defense depends 22 upon the objective reasonableness of his conduct as measured by reference to clearly established law.” (cleaned up)). 23 134 Robinson v. York, 566 F.3d 817, 826 (9th Cir. 2009). 135 Id. 1 Andreaccio has not met this burden. He responds to Weaver’s qualified-immunity 2 argument by contending that Nye County officers like Weaver had “prior knowledge” of the 3 “limitations of their duties and responsibilities” because Nye County policies and procedures use 4 words that Andreaccio believes exempt him from traffic laws.136 For this proposition, he cites 5 two Supreme Court cases—one discussing plain-language statutory interpretation and the other 6 § 1983 attorney’s fees remedies137—and the federal statute governing seditious conspiracy.138 7 No part of his brief addresses whether the specific rights he asserts were clearly established at the 8 time of the traffic stop, and none of the authority he cites supports that notion. 9 Even if Andreaccio had shown that he had a constitutional right to not have his vehicle 10 impounded under these circumstances, Weaver would still be entitled to qualified immunity from 11 this claim because the record establishes without genuine dispute that Weaver was reasonable in 12 his belief that it was lawful to impound Andreaccio’s vehicle. The Supreme Court has held that 13 an officer is entitled to qualified immunity if he “reasonably believes that his . . . conduct 14 complies with the law”139 because immunity is meant to protect “all but the plainly incompetent 15 or those who knowingly violate the law.”140 16 Weaver argues that he was relying on Nevada law and Nye County police policies and 17 procedures when he ordered Andreaccio’s car to be towed,141 and these laws and policies 18 objectively support his claim. NRS 482.540(1)(a) allows “[a]ny police officer, without a 19 136 ECF No. 26 at 27. 20 137 Id. (citing Owen v. City of Indep., Mo., 445 U.S. 622 (1980); Maine v. Thiboutot, 448 U.S. 1 21 (1980)). 138 Id. (citing 18 U.S. § 2384). 22 139 Pearson, 555 U.S. at 244. 23 140 Malley v. Briggs, 475 U.S. 335, 341 (1986). 141 ECF No. 23 at 11–13. 1}| warrant, [to] seize and take possession of any vehicle . . . being operated with improper registration[,]” and the Nye County Sheriff’s manual authorizes officers to tow any vehicle 3]| “being operated in violation of law with no valid insurance[] or valid registration.”!” In light of 4! the fact that Weaver (accurately) determined that Andreaccio was driving an unregistered 5|| vehicle, and Andreaccio was unable to produce proof of insurance,'** a reasonable officer could have concluded that impounding the vehicle was lawful based on NRS 482.540(1)(a) and 7\| department policies and procedures. So, Weaver is entitled to qualified immunity from 8|| Andreaccio’s impoundment claim, and I grant summary judgment in Weaver’s favor on this final 9} claim on that basis. 10 Conclusion 11 IT IS THEREFORE ORDERED that the motion for summary judgment [ECF No. 23] is GRANTED. The Clerk of Court is directed to ENTER FINAL JUDGMENT in favor of defendants Joshua Weaver and Allen Lynn and against plaintiff John Andreaccio on all claims 14/ and CLOSE THIS CASE. TUS. Disitict thdge Jennifer A Dowey May 29, 2023 17 18 19 20 21 ——___"_W»[{[{__E 12 Nev. Rev. Stat. § 482.540(1)(a); Nye County Sheriff’s Office, Policy and Procedures Manual, 23|| Policy 0033, “Vehicles: Towing, Impoundment, Seizing, Salvaging, Seizures.” 43 ECF No. 23 at 5-6. 27