DeCastro vs. LVMPD – Going to Trial?

[Note this is based on our brief reading of the 51-page document issued by Judge Andrew P. Gordon this afternoon. We are not “Constitutional Law Scholars” so take our interpretations as that of a layman at best.]

Judge Andrew P. Gordon issued a 51-page ruling Friday afternoon partially granting Jose “Chille” DeCastro’s multiple requests to reconsider previous rulings in his lawsuit against the Las Vegas Metro Police Department (LVMPD) while granting the LVMPD partial summary judgment on a number of DeCastro’s claims.

The lawsuit was filed last year after DeCastro was arrested in March of 2023 for obstructing an officer and interfering in a traffic stop. Essentially, DeCastro approached a car that had been pulled over and attempted to talk to the driver.

Officer Brandan Borque of the LVMPD asked him to step away from the vehicle, DeCastro refused multiple times (taking baby steps back at times) and became argumentative with Borque. Borque released the driver from the stop and detained DeCastro.

While DeCastro was in handcuffs, he claimed Borque struck him in the testicles while searching him and another officer squeezed his arm too tightly while restraining him, causing him to suffer permanent nerve damage to his left arm.

DeCastro was convicted of the charges earlier this year by a Nevada State court and spent nearly four months in jail before having the charges thrown out by a Nevada State appeals court, that said that the officers lacked probable cause to arrest DeCastro based on his first amendment right to film police.

The Federal court had previously ruled that the officers had probable cause to arrest DeCastro and had thrown out the majority of DeCastro’s claims except his excessive force claims against officer Borque and Sandoval (the officer who squeezed DeCastro’s arm), and a charge of essentially improper training.

DeCastro, based on his vindication at the hands of the State court, asked the Federal court to essentially grant him the case while the LVMPD, based on previous rulings by the judge and DeCastro’s complete lack of stating an actual claim for most o the charges, asked to grant them summary judgment.

The Judge pretty much split the difference in his ruling.

He found that since a jury could go either way on probable cause based on his own interpretation vs. the appeals court interpretation, he rescinded his ruling that Borque had probable cause in arresting DeCastro.

Gordon also denied summary judgment on federal First Amendment claims against officers Borque and Torrey. He also denied summary judgment on DeCastro’s selective enforcement claims against both officers.

In the charges of excessive force, he granted summary judgment to the LVMPD for everything up to DeCastro being placed in handcuffs. That includes the brief scuffle between DeCastro and Borque.

He denied summary judgement to Borque for the alleged groin strike to DeCastro while he searched him and to all officers (except for Officer Torrey, who was not on scene) for Sandoval’s squeezing of DeCastro’s arm.

The judge also found that Officers Borque and Sandoval do not have qualified immunity for the alleged acts of excessive force.

Gordon also denied summary judgment on DeCastro’s state law seizure and search claims.

He granted the LVMPD summary judgment for DeCastro’s Fourth Amendment claims.

Also granted to the LVMPD:

• Summary judgement on the DeCastro’s defamation claims
• Summary judgment on the entity liability claim
• Summary judgment on the selective enforcement claim based on DeCastro’s white lips
• Summary judgment on DeCastro’s claims for negligence, civil conspiracy, and abuse of process

Judge Gordon granted the ability to file a new motion for summary judgment on the issues involving the state law unreasonable arrest and seizure claims, the invasion of privacy claim and the LVMPD’s vicarious liability on state constitutional claims. That motion is due by October 4, 2024.

He also ordered the defendants to file redacted copies of their video exhibits to remove all personal identifiers by September 27, 2024.

Based on his ruling, it looks like the case will be moving closer to trial on the excessive force and probable cause issues. No trial date has been set yet, and we’ll update with further information as we receive it.