Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 1 of 10

1 Kathleen L. Wieneke, Bar #011139

Amy L. Nguyen, Bar #023383
2 STRUCK, WIENEKE & LOVE, P.L.C.
3100 West Ray Road, Suite 300
3 Chandler, Arizona 85226
Telephone: (480) 420-1600
4 Fax: (480) 420-1696
kwieneke@swlfirm.com
5 anguyen@swlfirm.com
Attorneys for Defendants Pinal County, Paul
6 Babeu and Heath Rankin
7 UNITED STATES DISTRICT COURT
8 DISTRICT OF ARIZONA
9 Christian Longoria, a single man, on behalf NO. 2:15-cv-00043-SRB
of himself as son of decedent Manuel O.
10 Longoria, on behalf of all statutory DEFENDANTS' ANSWER TO
beneficiaries of decedent Manuel O. Longoria; PLAINTIFFS' FIRST AMENDED
11 Joshua R. Wallace, as the personal COMPLAINT
representative of the Estate of Manuel O.
12 Longoria; Manuel Longoria, Jr., a single man;
Lynnette Longoria, a single woman; P.C.L., a
13 minor; T.A.L., a minor; K.R.L., a minor;
Sanisya Lott, a single woman; T.L., a minor;
14 and A.L., a minor,
15 Plaintiffs,
16 v.
17 Pinal County, a political subdivision of the
State of Arizona; Paul Babeu, in his official
18 capacity as Sheriff of Pinal County, Arizona;
Heath Rankin, in his individual capacity as a
19 Deputy Sheriff of Pinal County, Arizona,
20 Defendants.
21
Defendants Pinal County, Paul Babeu and Heath Rankin ("Defendants"), 1 through
22
counsel undersigned, for their Answer to Plaintiffs' First Amended Complaint, admitting,
23
denying and alleging as follows:
24
1. Defendants deny each and every allegation not otherwise admitted or pled
25
to.
26
1
27 Defendants also filed a Motion to Dismiss Plaintiff’s First Amended Complaint
on today’s date, but submit this Answer to address the remaining claims contained in the
28 First Amended Complaint.
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 2 of 10

1 PARTIES
2 2. In answering Paragraph 1 of Plaintiffs' First Amended Complaint,
3 Defendants admit Manuel O. Longoria died on January 14, 2015 in Pinal County,
4 Arizona. Defendants are without knowledge or information sufficient to form a belief as
5 to the truth of the remaining allegations and therefore deny same.
6 3. In answering Paragraphs 2-4 of Plaintiffs’ First Amended Complaint,
7 Defendants are without knowledge or information sufficient to form a belief as to the truth
8 of the remaining allegations and therefore deny same.
9 4. In answering Paragraph 5 of Plaintiffs’ First Amended Complaint,
10 Defendants deny Lynnette Longoria was the legal spouse of Manuel O. Longoria at the
11 time of his death. Defendants are without knowledge or information sufficient to form a
12 belief as to the truth of the remaining allegations and therefore deny same.
13 5. In answering Paragraph 6 of Plaintiffs’ First Amended Complaint,
14 Defendants are without knowledge or information sufficient to form a belief as to the truth
15 of the remaining allegations and therefore deny same.
16 6. In answering Paragraph 7 of Plaintiffs’ First Amended Complaint,
17 Defendants admit that Pinal County is a governmental entity, but the remaining
18 allegations call for a legal conclusion and therefore no response is required. Defendants
19 assert that Pinal County is entitled to all of the protections of governmental entity allowed
20 under the laws of the State of Arizona, the Unites States of America, the Arizona
21 Constitution and the Unities States of America.
22 7. In answering Paragraph 8 of Plaintiffs’ First Amended Complaint,
23 Defendants admit that Sheriff Babeu is the duly elected Sheriff of Pinal County, but the
24 remaining allegations contained in this paragraph call for a legal conclusion and therefore
25 no response is required. Defendants deny the wrongful conduct alleged and deny that
26 Sheriff Babeu was a policymaker or that there can be more than one policymaker for
27 purposes of Monell liability.
28
2
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 3 of 10

1 8. In answering Paragraph 9-10 of Plaintiffs’ First Amended Complaint,

2 Defendants admit that Deputy Rankin was an employee of the Pinal County Sheriff’s
3 Department. The remaining allegations contained in these paragraphs call for a legal
4 conclusion and therefore no response is required. Defendants deny any alleged wrongful
5 conduct.
6 JURISDICTION AND VENUE
7 9. In Answering Paragraphs 11-14 of Plaintiffs’ First Amended Complaint,
8 Defendants admit that venue and jurisdiction is proper in the United States District Court,
9 District of Arizona. In admitting jurisdiction, Defendants make no admissions as to the
10 sufficiency of the allegations.
11 10. Defendants deny the allegations contained in Paragraph 15 of Plaintiffs’
12 First Amended Complaint.
13 FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
14 11. In Answering Paragraph 16 of Plaintiffs’ First Amended Complaint, the
15 allegations in this paragraph call for a legal conclusion and thus no response is required.
16 The responsibilities of the Pinal County Sheriff’s Office are set forth by state law.
17 12. In Answering Paragraph 17 of Plaintiffs’ First Amended Complaint,
18 Defendants admit only that Manuel O. Longoria died on January 14, 2014. Defendants
19 are without knowledge or information sufficient to form a belief as to the truth of the
20 remaining allegations and therefore deny same.
21 13. In Answering Paragraph 18 of Plaintiffs’ First Amended Complaint,
22 Defendant admits that on January 14, 2014 Manuel O. Longoria was the driver of an
23 automobile in Pinal County, Arizona that had been reported stolen to law enforcement.
24 14. In Answering Paragraph 19 of Plaintiffs’ First Amended Complaint,
25 Defendants are without knowledge or information sufficient to form a belief as to the truth
26 of the remaining allegations and therefore deny same.
27 15. In Answering Paragraph 20-21 of Plaintiffs’ First Amended Complaint,
28 Defendants admit that the Pinal County Sheriff’s Office received a request to assist the
3
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 4 of 10

1 Eloy Police Department with a pursuit of a stolen vehicle, wherein the driver was
2 reportedly armed and wanted to commit “suicide by cop”. Defendants deny all remaining
3 allegations.
4 16. In Answering Paragraphs 22-23 of Plaintiffs’ First Amended Complaint,
5 Defendants admit only that at some point during the pursuit, the driver exited his vehicle,
6 refused officer commands to show his hands, and then got back in the vehicle and
7 continued driving. Defendants are without knowledge or information sufficient to form a
8 belief as to the truth of the remaining allegations and therefore deny same.
9 17. In Answering Paragraph 24 of Plaintiffs’ First Amended Complaint,
10 Defendants deny that Pinal County Sheriff’s Deputies were ordered to cease all
11 participation in Eloy Police Department’s efforts to apprehend the dangerous suspect.
12 18. In Answering Paragraph 25 of Plaintiffs’ First Amended Complaint,
13 Defendants deny this allegation as written.
14 19. In Answering Paragraph 26 of Plaintiffs’ First Amended Complaint,
15 Defendants admit only that the suspect’s vehicle eventually came to a stop. Defendants
16 deny all remaining allegations.
17 20. In Answering Paragraph 27 of Plaintiffs’ First Amended Complaint,
18 Defendants admit only that bean bag rounds and taser were deployed. Defendants deny
19 that Manuel Longoria was compliant with commands at any point during his interaction
20 with law enforcement, and further deny all remaining allegations.
21 21. In Answering Paragraph 28 of Plaintiffs’ First Amended Complaint,
22 Defendants admit only that Manuel Longoria was shot twice by Deputy Rankin.
23 Defendants deny that Manuel Longoria complied with commands at any point, and
24 affirmatively allege that Deputy Rankin’s decision to use deadly force was made in direct
25 response to Manuel Longoria simulating a motion of pointing a gun directly at Deputy
26 Rankin, which caused Deputy Rankin to reasonably believe his life, and the life of others
27 nearby, were in danger. Defendants deny all remaining allegations.
28
4
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 5 of 10

1 22. In Answering Paragraph 29 of Plaintiffs’ First Amended Complaint,

2 Defendants are without knowledge or information sufficient to form a belief as to the truth
3 of the remaining allegations and therefore deny same. Because illegal drugs were also
4 found in Longoria’s system, it is unknown at this time to what extent these drugs may
5 have contributed to his death.
6
CLAIMS FOR RELIEF
7
Count One: Wrongful Death
8
23. Defendants re-allege and incorporate herein their answers in Paragraphs 1
9
through 22, above.
10
24. In Answering Paragraph 31 of Plaintiffs’ First Amended Complaint,
11
Defendants deny that the personal representative of the Estate is a proper party to maintain
12
a wrongful death action pursuant to ARS §12-612. Further, Defendants deny that all of
13
the named “children” have standing to assert a claim and they may not be proper
14
beneficiaries under A.R.S. § 12-612. Defendants further deny that Plaintiff Lynnette
15
Longoria is a proper statutory beneficiary under A.R.S. § 12-612, as Defendants have
16
reason to believe she was not legally married to Manuel Longoria at the time of his death.
17
25. In Answering Paragraphs 32-33 of Plaintiffs’ First Amended Complaint,
18
Defendants deny same.
19
Count Two: 42 U.S.C. § 1983
20
26. Defendants re-allege and incorporate herein their answers in Paragraphs 1
21
through 25, above.
22
27. In answering Paragraph 35 of Plaintiffs’ First Amended Complaint,
23
Defendants admit that the Fourth Amendment prohibits the use of force which is not
24
justified. Defendants deny the remaining allegations in Paragraph 35.
25
28. In answering Paragraphs 36-38 of Plaintiffs’ First Amended Complaint,
26
Defendants deny same.
27
28
5
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 6 of 10

1 PRAYER FOR RELIEF

2 In answering Plaintiffs’ Prayer for Relief, Defendants deny the same. Defendants
3 affirmatively allege that Defendant Rankin is entitled to attorneys’ fees under A.R.S. § 13-
4 420 because his actions were justified. Defendants also intend to seek, as applicable, fees
5 under 28 U.S.C. § 1927, A.R.S. § 12-349, and 28 U.S.C. § 1988.
6 AFFIRMATIVE DEFENSES
7 Defendants assert the following defenses to Plaintiffs’ First Amended Complaint.
8 Some of the defenses outlined below are true affirmative defenses (on which Defendants
9 would bear the burden of proof); other defenses are outlined for the purpose of placing
10 Plaintiffs on notice of the legal defenses that Defendants will assert for the purpose of
11 allowing Plaintiffs to fully evaluate their claims and Defendants’ future request for
12 attorneys’ fees on any dismissed claims:
13 As a separate defense, and in the alternative, Defendants allege:
14 1. Plaintiffs’ First Amended Complaint fails to state a claim upon which relief
15 may be granted.
16 2. Pinal County is a governmental entity organized and existing pursuant the
17 statutes and Constitution of the State of Arizona and, as such, is entitled to all the
18 privileges and immunities allowed pursuant to state and Federal law.
19 3. Defendant Babeu, as an employee of Pinal County and acting within the
20 course and scope of his employment, is entitled to all the privileges and immunities
21 allowed pursuant to Federal law, including qualified immunity. See Hunter v. Bryant, 502
22 U.S. 224, 112 S. Ct. 534 (1991); Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001).
23 4. Defendant Rankin, as an employee of Pinal County and acting within the
24 course and scope of his employment, is entitled to all the privileges and immunities
25 allowed pursuant to Federal law, including qualified immunity. See Hunter v. Bryant, 502
26 U.S. 224, 112 S. Ct. 534 (1991); Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001).
27 5. Defendants allege the immunities set forth in A.R.S. §§ 12-820.01, et seq.
28 6. Defendants allege the immunities set forth in A.R.S. §§ 12-711, 12-712 and
6
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 7 of 10

1 716.

2 7. Defendant alleges that any use of force was justified under the law,

3 including but not limited to A.R.S. § 13-401, et seq. and Graham v. Connor, 490 U.S. 386

4 (1989).

5 8. Defendants Pinal County and Sheriff Babeau is not subject to liability under

6 42 U.S.C. § 1983, as they did not implement a custom, policy or practice that violated a

7 constitutional right. See Monell v. New York City Department of Social Services, 436 U.S.

8 658 (1978).

9 9. Defendants acted in good faith and without malice.

10 10. Defendant Rankin acted with legal justification and provocation pursuant to

11 A.R.S. §§ 13-401, et seq.

12 11. Defendants cannot be held liable for justified conduct under A.R.S. § 13-

13 413.

14 12. Defendants are not liable based on Manuel Longoria’s conduct on January

15 14, 2014, thereby barring or reducing any recovery to Plaintiff pursuant to A.R.S. §§ 12-

16 711, 712, and 12-716.

17 13. Any action by Defendants was objectively reasonable under the

18 circumstances then existing.

19 14. Defendants allege assumption of the risk.

20 15. Manuel Longoria was comparatively negligent and/or caused or contributed

21 to his own injuries, thereby barring or reducing any damages recoverable to Plaintiffs.

22 This fault includes, but is not limited to: the use of illegal drugs; the commission of

23 criminal misdemeanor and felony activity before and during the event in question;

24 including, but not limited to: theft of transportation, aggravated assault, attempted

25 murder, felony flight, resisting arrest, possession and use of illegal drugs, DUI,

26 engenderment, and reckless driving.

27 16. Plaintiffs’ First Amended Complaint is barred by failure to comply with

28 A.R.S. § 12-821.01, the notice of claim statute, as more fully set forth in the separately
7
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 8 of 10

1 filed Motion to Dismiss.

2 17. Plaintiffs’ fail to state a claim under the Fourth Amendment.

3 18. As a separate defense, and in the alternative, these Answering Defendants

4 allege that pursuant to A.R.S. § 12-611, et seq., only parents, children and spouses of a

5 decedent have standing to assert a wrongful death claim.

6 19. As a separate defense, and in the alternative, Defendants assert that the

7 involved officers at all times acted reasonably and appropriately under the totality of the

8 circumstances.

9 20. As a separate defense, and in the alternative, Defendants affirmatively allege

10 that Manuel Longoria failed to follow the lawful commands of law enforcement officers.

11 21. As a separate defense, and in the alternative, Defendants allege absolute and

12 qualified immunity arising out of this incident.

13 22. Manuel Longoria assumed the risk of injury, acted in direct and intentional

14 violation of Arizona laws, and acted intentionally and knowingly, jeopardizing his safety

15 and well-being. His conduct may also be an intervening/superseding cause barring

16 liability.

17 23. Defendant’s use of force was justified and privileged under Arizona’s

18 justification statutes, including A.R.S. Title 13, Section 400 et seq., including but not

19 limited to §§ 13-403, 13-409, 13-410, 13-411, 13-413, and under Graham v. Connor, 490

20 U.S. 386 (1989) and Scott v. Harris, 550 U.S. 372 (2007).

21 24. Plaintiffs’ request for punitive damages is barred. See City of Newport v.

22 Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748 (1981); Lancaster Community Hospital

23 v. Antelope Valley Hospital District, 940 F.2d 397 (9th Cir. 1991); See Smith v. Wade, 461

24 U.S. 30, 103 S. Ct. 1625 (1983); see also A.R.S. § 12-820.04.

25 25. Plaintiff Lynnette Longoria lacks capacity to sue as she may not be a proper

26 party and or beneficiary under ARS § 12-612.

27 26. Plaintiffs lack capacity to sue for violation of the decedent’s Fourth

28 Amendment rights under 42 U.S.C. § 1983.

8
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 9 of 10

1 27. The estate is not a proper statutory beneficiary under A.R.S. § 12-612.

2 28. Some and or all of the minor children may not be proper beneficiaries under

3 A.R.S. § 12-612.

4 29. Further affirmative defenses may be added in an Amended Answer after

5 discovery. These defenses may include any defense set forth in Rule 8, Fed. R. Civ. P., or

6 as otherwise allowed by law.

7 WHEREFORE, having fully answered the allegations of Plaintiffs’ First Amended

8 Complaint, Defendants pray that Plaintiffs’ First Amended Complaint be dismissed with

9 prejudice, that Plaintiffs’ take nothing thereby, that Defendants be awarded costs and

10 attorneys’ fees incurred herein pursuant to A.R.S. § 12-349 and 42 U.S.C. § 1988, and

11 fees, costs and compensations allowable under A.R.S. § 13-420, and for such other and

12 further relief as to this Court seems just in the premises. Defendants further demand a

13 jury trial as to all triable matters.

14 DATED this 9th day of March, 2015.

15 STRUCK WIENEKE & LOVE, P.L.C.

16 By: /s/Amy L. Nguyen
17 Kathleen L. Wieneke
Amy L. Nguyen
18 3100 West Ray Road, Suite 300
19 Chandler, AZ 85226
Attorneys for Defendants Pinal County,
20 Paul Babeu and Heath Rankin
21
CERTIFICATE OF SERVICE
22
I hereby certify that on March 9, 2015, I electronically transmitted the attached
23
document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
24
Notice of Electronic Filing to the following CM/ECF registrants:
25
Joel B. Robbins / Anne E. Findling
26 ROBBINS & CURTIN, PLLC
27 301 East Bethany Home, #B-100
Phoenix, AZ 85012
28 Attorneys for Plaintiffs Manuel Jr. and Christian Longoria
9
 Case 2:15-cv-00043-SRB Document 16 Filed 03/09/15 Page 10 of 10

1 Joseph M. Leal III

COLE & LEAL
2
420 West Casa Grande Lakes Boulevard N.
3 Casa Grande, AZ 85122
Attorneys for Plaintiff Lynnette Longoria
4
5 Marc D. McCain, Esq.
Darius Bursh, Esq.
6 Mc CAIN & BURSH, PLC
7420 East Pinnacle Peak Road, #124
7
Scottsdale, AZ 85255
8 Attorneys for Plaintiff Sanisya Lott
9 I hereby certify that on this same date, I served the attached document by U.S.
10 Mail, postage prepaid, on the following, who is not a registered participant of the
11 CM/ECF System:
12
N/A
13
/s/Kim Penny
14 3016496

15
16
17
18
19
20
21
22
23
24
25
26
27
28
10