Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ana Maria Vicente, et al., )

)
Plaintiffs, ) No. 05-CV-157 TUC JMR
)
vs. ) ORDER
)
Roger Barnett, et al., )
)
Defendants. )
)

Pending before the Court are three Motions filed by Defendants. The first Motion for

Summary Judgment (Doc. No. 137) seeks summary judgment as to Plaintiffs’ federal law

claims and the claims against Barbara Barnett. The second Motion to Dismiss (Doc. No.

140) seeks the dismissal of the remaining claims on jurisdictional grounds. The third Motion

to Dismiss seeks dismissal of the remaining counts for punitive damages. For the reasons

discussed below, all three motions are denied.

I. FACTUAL BACKGROUND

This lawsuit stems from an incident that occurred near Arizona State Highway 80 just

outside of Douglas, Arizona on March 7, 2004. Plaintiffs–a group of sixteen Latino men and

women–claim that they were captured, assaulted, and unlawfully detained at gunpoint by

Defendants as part of a long-standing race-motivated conspiracy. Plaintiffs further allege

that Defendants hurled racial epithets at them, threatened them, and, in the case of one

-1-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 2 of 9

Plaintiff, physically assaulted them. Defendants claim that they were merely patrolling their

property and checking for damage, when their dog alerted and ran off. Because drug

smugglers frequently cross their property en route to the highway, Defendants were initially

worried that Plaintiffs might be involved in illegal drug trafficking–which was the reason for

the firearms. Defendants assert that they ceased to brandish the firearms in a threatening

manner once they realized that Plaintiffs did not pose an immediate threat. They then

detained Plaintiffs and contacted Border Patrol. A Border Patrol officer arrived shortly

thereafter. Defendants do not dispute that they were armed. Plaintiffs subsequently filed this

suit, alleging that Defendants’ violated several federal statutes enacted to protect victims of

race-based violence, and that Defendants committed various state torts against Plaintiffs.

II. STANDARD

Summary judgment is appropriate where no genuine issue as to a material fact exists

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party, there is no genuine issue of

material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The Court must view all evidence and draw all reasonable inferences in the light most

favorable to the non-movant. Eisenberg v. Insurance Co. of North America, 815 F.2d 1285,

1289 (9th Cir. 1987). In evaluating a motion for summary judgment, the Court must consider

the standard of proof required. Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1472 (Fed.

Cir. 1997).

-2-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 3 of 9

Count I

In their first count, Plaintiffs allege that Defendants conspired to deprive Plaintiffs of

their right to interstate travel, in violation of 42 U.S.C. § 1985(3). That statute provides, in

part:

If two or more persons in any State or Territory conspire, . . . for the purpose
of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the
laws; . . . in any case of conspiracy set forth in this section, if one or more
persons engaged therein do, or cause to be done, any act in furtherance of the
object of such conspiracy, whereby another is injured in his person or property,
or deprived of having and exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation, against any one
or more of the conspirators.

42 U.S.C. § 1985(3). In order to establish a cause of action under this statute, a plaintiff must

allege and prove four elements:

(1) a conspiracy; (2) for the purpose of depriving . . . any person or class of
persons of the equal protection of the laws or of equal privileges and
immunities under the laws; and (3) an act in furtherance of this conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any
right or privilege of a citizen of the United States.”

Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). The

second element requires that the deprivation of that right be motivated by some racial or

class-based animus. Id.

In Griffin v. Breckenridge, 403 U.S. 88 (1971), the Supreme Court held that the right

of interstate travel “is assertable against private as well as governmental influence” for

purposes of § 1985(3). Since that time, the Supreme Court has not ruled squarely on the

-3-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 4 of 9

issue.1

Plaintiffs have established a general issue of material fact with regard to all these

elements. There is some evidence–in both the facts as they unfolded on the day in question

and in subsequent statements made by Defendants–that Defendants were engaged in a

conspiracy, and that the conspiracy was intended to deprive individuals of their right to

interstate travel2 and was motivated by race. Plaintiffs have also offered evidence of an overt

act in furtherance of that conspiracy and of the resultant injury to Plaintiffs. This evidence

is sufficient to withstand Defendants’ Motion for Summary Judgment on Count I.

Count II

Count II alleges that Defendants deprived Plaintiffs of the “equal benefits of laws and

1
In United Broth. of Carpenters & Joiners of America, 463 U.S. 825, 832-33 (1983),
the Supreme Court noted, in dicta, that § 1985(3) reaches purely private conspiracies where
the constitutional right implicated exists against private actors. Thus First Amendment
violations could not form the basis of a § 1985(3) claim, as that amendment protects only
against state action. The Supreme Court went on to note that § 1985(3) “constitutionally can
and does protect [the right to travel] from interference by purely private conspiracies.” Id.
(discussing Griffin).
Dicta in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 278 (1993)
distinguished this concept, characterizing the right of travel “protected against private, as
well as official, encroachment” as having been recognized in the Thirteenth Amendment
context.
In Saenz v. Roe, 526 U.S. 489, 498 (1999), however, the Supreme Court noted–again
in dicta–that the right to travel “is so important that it is assertable against private
interference and well as governmental action . . . a virtually unconditional personal right,
guaranteed by the Constitution to us all.” Id. (citations and quotations omitted).
2
Whether Plaintiffs have a right to interstate travel is not the issue here. Plaintiffs
have come forward with evidence that Defendants targeted Latino individuals, and there is
no indication that Defendants took any precautions to limit their actions to non-citizens. The
conspiracy alleged was for the purpose of denying Latinos–citizens or not–of the right to
interstate travel.

-4-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 5 of 9

proceedings for security of persons and property” in violation of 42 U.S.C. § 1981. That

statute states, in part, as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same
right in every State and Territory . . . to the full and equal benefits of all laws
and proceedings for the security of persons and property as is enjoyed by white
citizens . . .

(c) Protection against impairment

The rights protected by this section are protected against impairment by

nongovernmental discrimination and impairment under color of State law.

Id. The elements of a claim under § 1981 are as follows: (1) the Plaintiff is a member of a

group protected by the statute; (2) violation of one of the rights protected under the statute,3

including the “equal benefits” of laws and proceedings for the security of persons and

property; and (3) discriminatory intent. The language in subsection (c) makes it clear that

the statute protects against private parties as well as state actors.4 As Defendants’ only

argument for summary judgment is based on their mistaken assertion that § 1981 requires

state action, their Motion for Summary Judgment fails.

Count VII

Plaintiffs allege in Count VII that Defendants’ conduct constituted negligence per se

3
The statute also protects the right to make and enforce contracts, to sue, to be parties
and to give evidence, but both all parties agree those rights are not implicated here.
4
The cases Defendants cite to the contrary are dated prior to the 1991 congressional
amendment which added the “nongovernmental discrimination” language, and thus are not
applicable here.

-5-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 6 of 9

and thus Defendants are liable to Plaintiffs. Defendants assert that no such cause of action

exists. Plaintiffs argue that a breach of statute intended to protect the public safety is

recognized, in Arizona, as not merely evidence of negligence, but negligence per se. Crown

v. Raymond, 159 Ariz. 87, 89, 764 P.2d 1146, 1148 (App.1988). Plaintiffs further argue that

Defendants acted in violation of Arizona’s anti-militia statute. A.R.S. § 26-123. This statute,

like other statutes regulating firearms, is motivated at least in part by a concern for public

safety.5 As such, Plaintiffs are not attempting to enforce a private right of action for violation

of A.R.S. § 26-123, as Defendants’ assert, but are rather using the alleged violation of A.R.S.

§ 26-123 to establish their negligence claim. Defendants’ Motion for Summary Judgment

as to this count must fail.

Counts V, VI, VII, & VII as to Defendant Barbara Barnett

Plaintiffs include Barbara Barnett in their claims for false arrest, negligence,

negligence per se, and intentional infliction of emotional distress. Defendants claim that

Defendant Barbara Barnett should not be included in these counts, because she “show[ed]

up after [Defendant] Roger [Barnett] had encountered [Plaintiffs].” (Defs.’ Mot. for Summ.

J., Doc. No. 137, at 14-15). Plaintiffs contend, however, that Defendant Barbara Barnett,

who was armed at the time, aided Defendant Roger Barnett in his alleged illegal detention

of Plaintiffs. Defendant Barbara Barnett “was present at the scene of the incident where

Plaintiffs were assaulted, battered, and detained by Defendant Roger Barnett.” (Pls.’ Resp.

5
Defendants’ claim to the contrary–that the statute is directed solely at protecting the
state from a rival military power–is unsupported.

-6-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 7 of 9

to Defs.’ Mot. for Summ. J., Doc. No. 157, at 29). “One . . . who participates in the unlawful

confinement of another is subject to liability to the other for false imprisonment.” Rest. 2d

Torts § 45A; see Bruce v. Chas Roberts Air Conditioning, Inc., 166 Ariz. 221, 227, 801 P.2d

456, 462 (App. 1990).

In addition to participating in the false arrest, Plaintiffs also allege that Defendant

Barbara Barnett’s actions–her presence, her verbal abuse, and her involvement in forcibly

detaining Plaintiffs–constitute negligence, negligence per se (as discussed above) and the

intentional infliction of emotional distress. In order to establish intentional infliction of

emotional distress, Plaintiffs must show the following elements: (1) extreme and outrageous

conduct by Defendants; (2) intent by Defendants to cause emotion distress or reckless

disregard for the near certainty that such distress would result from their conduct; and (3)

severe emotional distress on the part of Plaintiffs. Johnson v. McDonald, 197 Ariz. 155, 160,

3 P3d. 1075, 1080 (App. 1999). Plaintiffs have presented sufficient evidence of these

elements to survive Defendants’ Motion for Summary Judgment. A reasonable jury could

find that Defendant Barbara Barnett’s participation in a conspiracy to violate the rights of

individuals based on their race, her participation in the forcible detention of those individuals

at gunpoint, and her verbal abuse of those individuals constitute extreme and outrageous

conduct, and that her conduct demonstrated either intent to cause severe emotional distress

or reckless disregard.6

6
Defendants do not claim that Plaintiffs suffered no severe emotional distress, so that
element is not discussed here.

-7-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 8 of 9

Punitive Damages

Defendants also seek dismissal of Plaintiffs’ claims for punitive damages, arguing that

the conduct alleged by Plaintiffs does not rise to the level of outrageous conduct guided by

an evil mind, as required by Arizona law. Rawlings v. Apodaca, 151 Ariz. 149, 162, 726

P.2d 565, 578 (1986).7

In order to satisfy the evil mind requirement, Plaintiffs must establish one of three

things: (1) Defendants intended to cause injury; (2) Defendants’ conduct was motivated by

spite; or (3) Defendants’ actions were self-serving and were the product of a conscious

disregard of a substantial risk of harm to others. Bradshaw v. State Farm Mut. Auto. Ins. Co.,

157 Ariz. 41, 422, 758 P.2d 1313, 1324 (1988). Plaintiffs’ have alleged facts sufficient to

survive a Motion to Dismiss on the issue of the evil mind requirement–particularly given

Defendants’ verbal abuse of Plaintiffs and arguable racial motivation.

Similarly, Plaintiffs have alleged conduct by Defendants–forcibly holding Plaintiffs

at gunpoint, threatening them (arguably with both a gun and a dog), and verbally and even

physically attacking them–that could be categorized as outrageous.

Accordingly,

IT IS ORDERED that Defendants’ Motion for Summary Judgment on Federal Law

Claims (Counts 1-2) and Claims Against Barbara Barnett (Doc. No. 137) is DENIED.

7
Defendants initially also argued that Proposition 102, now Article 2, § 35 of the
Arizona Constitution precludes the award of punitive damages. They have since requested
permission to withdraw this portion of their argument with permission to renew it at the
appropriate time. Accordingly, that argument is not discussed here.

-8-
 Case 4:05-cv-00157-JMR Document 184 Filed 03/28/08 Page 9 of 9

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss on Jurisdictional

Grounds (Doc. No. 140) is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Punitive

Damages Claims (Doc. No. 141) is DENIED.

DATED this 28th day of March, 2008.

-9-