Full opinion text
ORDER GRANTING SALT LAKE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING IN PART CASSELL, District Judge. This civil rights action arises out of the execution of a search warrant at Panadería La Diana, a Latino-owned tortilla factory, bakery, and restaurant in Salt Lake City. It is before the court on the Salt Lake City Defendants’ Motion for Summary Judgment. All of the initially-named defendants have been dismissed by prior orders of the court with the exception of Salt Lake City Corporation and various Salt Lake City officials and police officers, specifically: Russell Amott, James Blomer, DeeDee Corradini, Amy DeSpain, Tim Doubt, Wanda Gabbetas, Craig Gleason, Melody Gray, Greg Hagelberg, Marty Kaufman, Phil Kirk, Ruben Ortega, John Ritchie, Michael Ross, Morgan Sayes, Troy Siebert, Chad Steed, and Marty Vuyk. After a thorough review of the pleadings, depositions, affidavits, and other materials submitted to the court, the court finds that genuine issues of material fact remain with respect to two claims against the City: First, whether the length of the seizure of the persons on the premises during the execution of the warrant was reasonable under all of the circumstances; and whether the warrant was executed in a reasonable manner. Accordingly, summary judgment is denied on these claims. The court GRANTS summary judgment in favor of the individually named officers in both their individual and official capacities on all claims. The court GRANTS summary judgment in favor of the City on all other issues. BACKGROUND Plaintiffs in this action are owners, employees, and customers of Panadería La Diana, a Latino-owned tortilla factory, bakery, and restaurant located at 56 West 900 South in Salt Lake City, Utah. On April 24, 1997, Salt Lake City police officers, in conjunction with officers from the INS, the DEA, and the FBI, aggressively executed a no-knock search warrant on the premises of La Diana. In executing the warrant, nearly every person on the premises was handcuffed and detained, some for as long as three hours. Plaintiffs have filed suit alleging various federal and state causes of action. On the defendants’ motion for summary judgment, the court takes all facts in the light most favorable to the plaintiffs. Viewed in that light, the court finds the following facts have been sufficiently supported. The Investigation In April 1997, Salt Lake City police began an investigation into drug-related activities in and surrounding Panadería La Diana Restaurant and Tortilla Factory. Officer Troy Siebert of the Salt Lake City Police Department narcotics unit began the investigation after being approached by Dave Bancroft of the Utah Attorney General’s office. Mr. Bancroft had apparently been into La Diana and had seen the prescription drug Darvon being sold over the counter. Using a confidential informant, Mr. Bancroft made at least one controlled buy of Darvon from a La Diana employee. Mr. Bancroft arranged a meeting with members of the Salt Lake City police force to discuss furthering the investigation. At the meeting discussing the Darvon sales there was also apparently some discussion about possible drug activity in the parking lot of La Diana involving cocaine and heroin. Officer Siebert of the Salt Lake City police department was assigned as the lead investigator and began to collect information about drug-related activity at La Diana. Officer Chad Steed informed Officer Siebert that he had received e-mails from the community support division that some citizens had reported possible drug activity around La Diana. It is possible that these calls came from the owners and employees of La Diana who had been concerned about the drug sales occurring in the parking lot of their facility. Officer Isaac Aten-eio testified at his deposition that the owner of La Diana, Rafael Gomez, had been trying to get police to take care of the drug dealers in the parking lot at La Diana since perhaps as early as 1994. Officer Ateneio was assigned to the Community Support Division patrolling an area which included La Diana. During his time in this assignment Rafael Gomez approached Officer Ateneio on more than one occasion requesting that the police do something about the drug dealers who were using the parking lot at La Diana. Officer Ateneio testified: I know that there were some problems in that area, and I had spoken with Mr. Gomez on a couple of occasions about the drug dealers on his property, problems he was having with false I.D.s and social security cards being sold right there. We had talked about it. On one occasion, I think the last meeting I had with him prior to my being transferred or my requesting out of that assignment, was dealing with the fact that there were a lot of drug dealers on that property and also the bar just south of it, in the alleyways, the adjacent properties, they were using his parking lot. It is not clear whether Officer Siebert was ever informed of the frequent calls from the owners of La Diana concerning the drug dealers in the parking lot. Instead, the investigation proceeded as though the activities in the parking lot were connected with La Diana. Officer Siebert also spoke to Officer Tim Doubt during the investigation. Officer Doubt informed Officer Siebert that he had recently investigated possible drug dealing in the parking lot at La Diana. Officer Doubt had received a call from a secretary informing him that the manager of La Diana had called to report the presence of drug dealers in the parking lot. The manager, J. Dee Carlson, was told that the police would stop by. He then asked the secretary whether the police would be coming in cars or on bikes. The secretary was apparently a bit perplexed by the question and wondered why Mr. Carlson would be concerned about whether the police would be in cars or on bikes. Officer Doubt went to investigate the report and testified that as he approached the parking lot Mr. Carlson started whistling. Officer Doubt testified that it was a common practice for a lookout to warn drug dealers of approaching police by whistling. Officer Doubt approached Mr. Carlson to speak with him. Officer Doubt testified that Mr. Carlson told him that he was concerned about the drug dealers in the parking lot and that he had called because if the police were not going to take care of it, the owners of La Diana would. Officer Doubt also testified that Mr. Carlson told him that the owner of La Diana, Rafael Gomez, carried a gun with him and kept one in the office. Officer Doubt testified that he did not ask Mr. Carlson about whistling. Officer Doubt believed Mr. Carlson was being deceptive and that he had made the call only to find out when the police would be arriving. Mr. Carlson’s testimony was that some months after he began working at La Diana, he and the owners became concerned about the increasing drug problem outside the factory. He had called the police a couple of months before the raid to report the activity. Mr. Carlson also testified that Rafael Gomez, the owner of La Diana, had called the police on four or five occasions to report the drug activity, as had another employee, Sergio Gomez. Indeed, several of the plaintiffs testified at their depositions that when the raid first began they were relieved because they thought the police were finally there to deal with the drug dealers in the parking lot. Mr. Carlson also testified that on the day Officer Doubt arrived to investigate the report he was loading tortillas into a truck and when he saw the officers arrive he clapped “sarcastically” as if to indicate ‘You finally got here.” Mr. Carlson also testified that he did not whistle, “I said, you know. ‘I’m the one that called you guys, you know. I’m the one that’s trying to, you know, solve the problem.’ ” Finally, Mr. Carlson also testified that he could not recall whether he told the police that Mr. Gomez had a handgun or whether he had seen people outside the store carrying a gun. No arrests were made as a result of this investigation and it apparently went no further. Officer Siebert also spoke to others during the course of the investigation. In the affidavit used to obtain the search warrant for La Diana, Officer Siebert states that a Detective Arthur Street of the Drug Enforcement Administration had informed him that he had received information from a confidential informant that quantities of cocaine were regularly delivered to persons at La Diana. It is not clear whether this referred to actual delivery to La Diana or simply to the drug dealers who were operating in the parking lot. Moreover, neither Officer Street or Officer Steed knew the source of this information. The affidavit also states that at least two “concerned citizens” had informed the police about ongoing drug distribution at the address. Officer Siebert also states in the affidavit that he personally had received information from a confidential informant about drug activity at the address. In neither instance does the warrant clarify whether these alleged activities were occurring only in the parking lot or whether the police had any information about persons inside La Diana being connected to the drug dealing. Officer Siebert also went undercover and purchased “street level” amounts of cocaine and heroin from eight different persons. All of these purchases occurred in the parking lot of La Diana. Officer Chad Steed conducted surveillance during these controlled buys. None of these transactions involved the owners or employees of La Diana and none of the purchases were made inside the store. Negotiations for two of the purchases, however, apparently took place inside the north door of the La Diana complex. Officer Siebert also testified that during one of the controlled buys, a signal was given to the drug dealers and Officer Siebert, along with others, ran into the La Diana complex to hide. Officer Siebert did not observe any weapons in the parking lot during these controlled buys. Although it was never confirmed that any owner or employee of La Diana was involved in dealing any drugs (other than Darvon), and despite the numerous calls from the owners and employees of La Diana expressing concern about the drug dealers in the parking lot, the police believed that La Diana itself, and Rafael Gomez in particular, were part of an ongoing narcotics operation involving cocaine and heroin. The Affidavit and Search Warrant Officer Siebert prepared an affidavit for a search warrant detailing the investigative activities. The affidavit was first reviewed by Salt Lake County Deputy District Attorney Bud Ellett. The affidavit requested “no-knock” authority based on the belief that evidence might be destroyed. In addition, the affidavit included the information Officer Siebert had received from Officer Doubt concerning Rafael Gomez possibly having a firearm. The affidavit also states that “JD” had told Officer Doubt that he had seen three people in the parking lot with handguns. The affidavit was presented to Judge Sheila McCleve. Judge McCleve authorized a “no-knock” search warrant to be executed during the day. Police next had to determine how to execute the warrant. Lt. Carroll Mayes, then the SWAT team leader and tactical commander for the La Diana operation, in consultation with Officer Siebert and Sgt. Mayo, made the decision to execute the warrant as a “Category C” warrant. Category C warrants are reserved for high-risk situations where there is a likelihood of violence and are executed by the SWAT team. Standard operating procedure for executing a Category C warrant includes coming in with weapons drawn, ordering individuals to the ground and enforcing compliance if necessary, and handcuffing everyone present. In this case, the police apparently initially made the decision not to handcuff everyone. This concern was raised with Judge McCleve who apparently said that the police should follow standard operating procedure, including using handcuffs on everyone present. The warrant, however, says nothing about the use of handcuffs. The Search and Detention The Salt Lake City Police Department executed the warrant on April 25, 1997, at approximately 3:00 p.m. Agents from the DEA, the FBI, the INS, and the IRS were invited to participate, as were a few officers from Davis County. The intent of the operation was to secure the premises, handcuff everyone present, identify everyone, and then release those who were uninvolved. The investigation had focused almost entirely on controlled buys from persons in the parking lot at La Diana. A total of nine controlled buys were conducted in the parking lot. But the decision was made to raid not only the parking lot, but also to make a “dynamic entry” into the store, restaurant, and tortilla factor at La Diana using the SWAT team. The police were aware that potentially dozens of innocent bystanders would be there during the raid. One of the reasons for inviting along federal agencies was to speed up the processing of the detained individuals so that those innocent persons could be on their way as quickly as possible. The operation proceeded in two steps. The first step was to secure the premises by sending in the SWAT team. To accomplish this, 47 SWAT team members came to La Diana in rented Ryder trucks, unloaded from the trucks, secured everyone in the parking lot and inside the store, restaurant, and tortilla factory comprising La Diana by displaying their firearms, ordering everyone present to the ground, and then handcuffing everyone with plastic ties. The federal agencies which were invited did not take place in the actual execution of the search warrant but only in the processing of individuals after the fact. The second step was to process all of the detained individuals by getting their identifying information, including a name and address, and then photographing them for police records. Approximately 80 people were detained in executing the warrant. The length of their detentions vary. In the end, six arrests were made, including Rafael Gomez for illegally selling Darvon. It is not clear whether anybody was prosecuted. No drugs or weapons were found inside of La Diana. Individual Depositions of the Plaintiffs What happened during the execution of the warrant remains heavily disputed, as recorded in the depositions of the individual plaintiffs. Below are summaries of the depositions of each of the individual plaintiffs. The summaries focus on what each individual testified happened to them during the execution of the warrant. Additional testimony is included to show the general tenor of the execution of the warrant. Because of the importance of these depositions to the outcome of this motion, these depositions will be recreated at some length. Rafael Gomez: Rafael Gomez is the owner of La Diana. In an affidavit he stated that on the day of the raid he was standing just inside a door when it burst open, striking him in the head. “I was then hit in the head with a rifle and forced to the ground and handcuffed with my hands behind my back.” Mr. Gomez also states that the officers used “military style weapons with laser sites pointed at the men, women and children,” and that “everyone on the premises was detained, handcuffed, interrogated and many were forced to the ground. All were subject to drug sniffing dogs. The time of the interrogation lasted approximately three hours. All of us were asked to prove that we were on the premises legally.” In his deposition, however, Mr. Gomez testified that he did not, in fact, see the dogs sniff anybody. He also testified that he had a car in the parking lot that day but that it was not searched. He did not observe the destruction of any Catholic symbols. Finally, the police did not accuse him of being an illegal alien nor did he hear the police ask anyone else if they were in this country legally. Elvia Gomez: Elvia Gomez is the wife of Rafael Gomez. Mrs. Gomez and her son Sergio had left to the store and were returning to La Diana just as the raid began. When they approached La Diana, Mrs. Gomez testified that the police stopped them and [Yjelled at us and they pulled us out ... [m]y son and I. And I didn’t know what was happening. I was going, and I hadn’t noticed that the people were all laying around there. And when they got us down, they took us out. Right away they put handcuffs on my son, and they told me to lean over by the garbage can. And they threw my son on the ground, they had him against the ground with the gun pointing at him on the ground. Mrs. Gomez was handcuffed and frisked, and testified that a gun was pointed at her body. Mrs. Gomez testified that the officer who handcuffed her son put his foot on her son and pointed the gun at his head. Like most of the plaintiffs, Mrs. Gomez also testified that the handcuffs were too tight and that she asked the officers to loosen them but nothing was done. Mrs. Gomez was then taken to the parking lot where another officer frisked her “briskly.” After she was frisked she was taken “with the other ladies that were by the store” where she was left, with the handcuffs on for “about three hours” while being guarded by men with guns. She was finally taken to where other officers were removing the handcuffs from people and taking pictures. When she finally had her handcuffs removed, she was allowed to go inside to find her other two children. She found one of her children, Leonardo, who was eleven at the time, still handcuffed. She took Leonardo outside where his handcuffs were removed. Mrs. Gomez also testified that she did not see any red laser lights and she only heard the dogs. She was not accused of being an illegal alien, nor did she see the destruction of any Catholic religious symbols. Mrs. Gomez testified that no one kicked her or pushed her. Leonardo Gomez: Leonardo Gomez is the son of Rafael and Elvia Gomez. He was eleven years old at the time of the raid. Leonardo had finished school and had gone to La Diana to help clean, like he did most days after school. I was in the back sitting there with my little brother, and all I remember is I remember this lady running inside because there was another kid right there playing with us. And I remember his mom running inside and grabbing him and telling him to run, run, and she was like saying run, run to us. And all I hear was the police. I just saw like a whole bunch of guys with masks come inside. They were like, “Freeze, everybody down, down,” and that’s when I went down to the floor. And then like a lot of men came in there with masks and all dressed in black with machine guns and everything, so I just sat there. And I recall one of them came and tied my hands up behind my back, tied me up with the string handcuffs, plastic handcuffs. And then they took my little brother [Jorge] and I don’t [know] where they took him. And then I was just in the back for a pretty long while, just laying there in handcuffs. And then after that, I needed — they took me out to where the door was so I would go there, and I told the police, I told them, “I really need to go to the bathroom.” And he told me, “No, you got to wait.” And I told him, “I really need to go. I don’t want to go in my pants.” And he said a swear word and then he went and talked to another guy that told — and they were talking for a minute. And then the other guy said, “Take him.” That’s when they took me to the bathroom, and they were in there with me when I went to the bathroom. Leonardo testified that he did not know that the men were police officers until he was handcuffed. “I thought it was a robbery, but then after that, like when they handcuffed me, I saw it was a raid or something like that.” Leonardo also testified that he heard “profanity” like “wetback and you fuckin’ dumb ass, you better stay on the ground. And I also heard like ‘you fucker’ like a lot, being used a lot.” For example, when he asked if he could go to the bathroom Leonardo testified that the officer said, “You fuckin’ dumb ass.” Leonardo also testified that the officer who took him to the bathroom never removed the handcuffs but instead unzipped his pants for him. Leonardo could not recall how long he was handcuffed but it was “a long time ... pretty long. Because after that, I had like all this bruised up because they were so tight, and I was asking them to loosen them a little bit.” He did testify that he was on the ground until they took him to the bathroom, which was about one and a half hours after being handcuffed. Leonardo also testified that he remembered seeing his little brother on the floor “and what got me really upset was they had a big ol’ gun pointed to his head onto the floor.” Leonardo also testified that he was asked if he was in the country legally. Leonardo was also asked if he heard other people while he was handcuffed. “Yeah, I heard like yelling, like this lady was yelling a lot because she was pregnant and they threw her and it was my aunt [Maricela].... She was screaming in Spanish that she was in pain and it really hurt, and that’s when they tied her up and threw her when she was pregnant.” Leonardo testified he did not remember seeing any dogs. After at least an hour and a half, according to Leonardo, he was finally taken to the parking lot where his picture was taken and he was released. Leonardo also testified that “ever since [the raid], I got like my hands are always hurting and everything. And then I used to have like nightmares from that same day.” Jorge Gomez: Jorge Gomez is also a son of Rafael and Elvia Gomez. He was six years old on the day of the raid. On that day me and my brother [Leonardo], and I think some kids were playing. And we just saw someone go in and say, Everyone on the ground. And after that they moved me like in front of the counter where they charge. And they like — a while passed and I had to go to the restroom. And I asked my brother-in-law [Rogelio Gomez] to tell them, but when I was like telling him, some guy like pointed a gun at me like I was going to do something. At first he didn’t want to let me go to the bathroom, but a while passed and he said, All right. Jorge was not handcuffed. He was placed on the floor like the other detainees, and testified that a gun was pointed at his head. He also testified that it was “about three or four hours” between the time he was put on the ground and when his mother came in to get him. Jorge did not see any dogs and was not asked about being an illegal alien. He testified that he was not kicked or pushed and did not see anyone else pushed. He also testified that he did not hear any swearing. Sergio Gomez: Sergio Gomez is also a son of Rafael and Elvia Gomez. He was nineteen on the day of the raid and was working at La Diana. He arrived with his mother at La Diana shortly after the raid had begun. [T]he first thing, you know, that came to my mind was that the police came here to help us to catch all the bad guys that were outside selling drugs. And then we, you know, we saw one of the SWAT team, or whoever he was, a police officer, and we — they told us to back off, to go away, but we told them we were the owners, and at that point they told us to — that’s when they grabbed me and threw me to the floor. Sergio was immediately put on the ground and handcuffed and testified that a gun was aimed at his head. He testified that the handcuffs were too tight and that he had shoulder and wrist pain for several weeks afterwards. He had asked the officers to loosen them but they refused. After some time, Sergio was taken to the parking lot where the processing was being done. He testified that the detainees were being harassed about being illegal and were being threatened with deportation; the police were saying “All you wetbacks, all you wetbacks, you know, just those words.” He was then taken to the office in La Diana because the IRS wanted to speak to him concerning the La Diana’s business records. Sergio was also asked if La Diana had been having problems with drug dealers and testified that they had been trying for some time to get the police to come and get rid of the drug dealers in the parking lot. That’s why we called like two or three times every day. The police would show up. [The drug dealers] would just leave for a couple of minutes or go inside a store and they would only show up, but never did anything. Except for one time an officer actually went into, you know, I called him up, I said, you know, “We have a problem. We have some guys in the restaurant that are, you know, they’re counting all their money and I need you to help me and, you know, get him out.” So I can’t remember the name, but it was one time when a police officer showed up and went up with me and we told him that he needed to leave. When asked if J.D. ever called the police Sergio responded: Yes, almost every day. I mean, either J.D. would call them or Graciela or I or even my dad would call them up and say, “You know what, we have this problem, we need your help, we need to take care of it.” And they would just come and, you know, don’t do anything. They just drove by, the drug dealers would just either go inside or go out to the park or whatever, and after the police had passed, just come back again and harass our customers and, you know, just sell their drugs there. Leticia Hernandez: Leticia Hernandez was an employee of La Diana. She was pregnant at the time of the raid. She had a miscarriage about eight days after the raid, which she attributes to the trauma she suffered. Leticia was in the factory when the raid began and was handcuffed and put on the floor and also testified that a gun was pointed at her. She testified that she was handcuffed for about three hours. Leticia was not placed on her stomach but was allowed to sit down. She also complained that the handcuffs were too tight and were causing her to bleed. Her handcuffs were loosened. Her bag was searched and there is some dispute about whether she consented. Leticia testified that she was not kicked and did not see anyone else kicked but was “pushed ... really hard because they threw us down by the entrance to the street.” Martin Gutierrez: Martin Gutierrez was a customer having lunch with his coworker, Carlos Perez, at La Diana on the day of the raid. Police officers entered the restaurant and ordered everyone to get on the ground. “All of them at one time said for us to get down. And the one that was telling us — the one who was telling us to get down also was the one who told the waitress to get down. And she didn’t understand, and so he pointed the canon to her — I think it was an M-16, I don’t know. And his gun had infrared, and he would point it at her chest and her head.” Mr. Gutierrez got on the floor and was handcuffed. He testified that after about 45 minutes the people in the restaurant were told to get up off the floor and then they were sat down and asked to produce papers indicating U.S. citizenship. “And they took our wallets, and they looked in our wallets.” Mr. Gutierrez did not testify as to how long he was handcuffed or when he was released. Graciela Zamora: Graciela Zamora was working as a secretary at La Diana on the day of the raid. She was in her office with her daughter when the raid began. When she heard people running up the stairs she became frightened and locked the door and leaned against it. I felt that they were kicking it in the back of me like this. I didn’t know what to do at that time. And the noise and the shouting were still going on outside. It was a very frightening moment for me, I did not know what was happening. And I heard a shot outside. And I was really scared then. I was so scared I ran from the door and my daughter took the lock off quickly from the door. And when I heard the shot I thought that they had killed somebody outside. And then the men, they came in. They were covered, their faces were covered. They were running, they came in running and they pushed us down like this towards the back, and they threw us to the floor. I saw them in an instant. I saw that they were covered. You could only see their eyes. And they put us against the floor with their hands on my hair like this. They grabbed my hair like this. I was crying, I was shouting, I was shaking. And my daughter the same, we were both in the same way. And she would shout, what happened, what happened? And they said, shut up, shut up. And the only thing that I saw was a little red light on the floor. And all that I did was close my eyes, I though they were going to shoot me. And then some more minutes went by, we were on the ground with my daughter and they tied us up like this.... And then about half an hour went by, and they got us up and they sat us down like this. And then someone came in, this person came in and they did not have the face covered up. I think he was the boss of the men that were there with us. And he said, okay, this is very serious, okay. And he grabbed me by the arm and he took me to the hallway over here in a corner and he started talking to me. And he said, tell me where the weapons are. Where is the drugs? Graciela was held and questioned for about one hour. She testified that she was handcuffed for one and a half hours and that her daughter was crying because the handcuffs were too tight. There is also a dispute about whether Graciela consented to have her purse searched. She was asked if she gave permission and responded: “Well, permission, permission I’m not sure. They asked for my identification, my hands were handcuffed and I said, there’s my bag.” The police looked through her identification, took her picture, and then removed the handcuffs and told her she was free to leave. Graciela also testified about a picture of Our Lady of Guadalupe, a Catholic religious icon, which was broken by the police during the raid. “[T]hey took it with their weapons, they went like this. Maybe they were searching for something behind the picture, and the picture dropped and it broke.... I think it was intentional. It was with violence that they went like that ... I saw how they threw the picture ... It had a glass, and it’s a large picture and so when they went like that, then it dropped and broke.” Graciela testified that she was not kicked or beaten and did not see anyone else get kicked or beaten, but when she saw her boss, Rafael Gomez, “You could see that he had been beaten.” Graciela also testified that she did not have any physical injuries, “But psychologically, yes. I would cry at night and my daughter also.” Jerado Ramirez Rodriguez: Jerado was working in the kitchen at La Diana on the day of the raid. The officers came in and ordered everyone to the ground. Jerado testified that he did not understand English and did not understand what they were saying. “And then one came over and he threw me to the ground. And one held me down on the ground and was pointing at me with a gun. I don’t know enough about guns to know what kind it was. And he didn’t have the handcuffs, so another one carne with the handcuffs. And that’s when I know that they were the police, and that the police was coming.” Jerado testified that he was on the floor handcuffed for at least twenty minutes and was then taken to the store portion of La Diana where he was left, handcuffed, for two to three hours. He was then taken outside where his picture was taken and he was sent home. Maricela Gomez: Maricela was working as a cashier at La Diana on the day of the raid. She is the sister of Rafael Gomez. She was asked to describe what happened on the day of the raid: I went out from La Diana and I went outside, and I was going outside to the parking lot and I was going to the other building, which is the tortilla factory. And then I saw that two trucks, one on one end and one on the other end, stopped. And some men got out, running and yelling. They had guns. I wanted to go back in because I thought that they were there because of the people that were outside, because a week or two before there were a lot of people from like the shelter that were outside. And I — I felt confused because I thought, well, maybe they’re here because of them, so I wanted to go back. And as I was turning to go back, that’s when a man and a woman — they were both — they grabbed me, one by the hand and one by the hair, and they threw me down. And I remember that someone put their — their foot on my head over here because — I don’t know. I was so — I was so scared. So I told them that I was pregnant, because I was pregnant two and a half months, and they didn’t listen. And anything that I would say, they would have me be quiet. Anything that I wanted to say, they would have me be quiet. So I don’t know. They held me up for some time. I don’t know exactly how long, but they had me there for some time on my belly with my hands tied up on my back. And from there — from there they took me to another part where other people were there — where there were other people that were kneeling, and they had me there kneeling. And I was — and I was the same as them, tied up. That’s how they had me, tied up. I think I was one of the — some of the last people that they untied. Maricela estimated that she was handcuffed for at least three hours and was one of the last ones to be let go. Maricela’s baby was born in November of 1997 and has had problems with speech since her birth. Maricela attributes the problems to the raid. “... I was really scared and because I was that scared on that day and I was pregnant, and I think that she was affected by it because I was pregnant and I was two and a half months pregnant then.” Maricela, however, never talked to her doctor about the raid. Maricela’s purse was also searched. When asked if she gave permission she said, “They just told me that they were gonna look in my purse. So they grabbed it and they looked in.” Maricela does not remember if she was kicked, but did testify that she saw others kicked and shoved. Ester Reyes: Ester is the aunt of Elvia Gomez. She is currently 66 years old. She was working at La Diana on the day of the raid. Ester was asked what happened on the day of the raid: At that day I was on my break and I was standing by the door. When I saw that these people got — came out of— these hooded people came out of a yellow truck. And they were coming, pointing at us with rifles on their hands. And they went into La Diana, and they told us, All of you who are here, stay here and go on your stomachs, and put your hands on your back. And then a man, he was pointing at us with the rifle.... And then they handcuffed us like this as if we were criminals. And they had us handcuffed for almost three hours. And I told them that they needed to take the handcuffs off because I wasn’t — I was feeling really — I wasn’t feeling good. And what they did was they had me sit down, and they had me sitting down until 5:00, and then they took off the handcuffs. Ester’s break was around 2:00, so she estimates she was handcuffed for close to three hours. Ester was not asked about her immigration status. Ester testified that she was not kicked or shoved and did not see anyone else get kicked or shoved. Fidel Salazar Valdez: Fidel was working as a cook at La Diana on the day of the raid. Fidel was asked to describe what happened to him on the day of the raid: When I noticed that something was going on there, I heard that there was a lot of shouting. And I went by the window and I looked out and I saw two men that had their heads covered. Their face covered. When I saw that, I saw that the people who were eating, they would throw them on the floor with their rifles.... When I saw that, I ran to get out of the kitchen. And when I was getting out of the kitchen through the door— When I was going out through the door, out of the kitchen, a police officer hit me here with the rifle on my chest.... When I was on the ground he put a foot on top of my back. And then he grabbed my hands and he put them on my — on the back.... In that position I was for about a half an hour, on the— down. Fidel was asked to provide residency papers. Like the others in the restaurant, he was moved to the store where he was left for some time. Fidel testified that he was handcuffed for three hours. He also complained about the handcuffs being too tight and “hurting my arm a lot.” Fidel also testified that his car was searched. “Because when they got me free and I was free and they told me to go home, an officer took me with my hands up like this to the car. And when we got to the car he told me he was going to search my car. And he sent the dog in the car.” Cory Burt: Cory Burt was a customer in the restaurant at La Diana on the day of the raid. He and two friends had just sat down to order when the raid began and officers came in yelling for everyone to get down. “I says, You’ve gotta be shiftin’ me.’ That’s the first thing out of my head — out of my mouth ... And then I’m just getting down slowly, you know.... I got down on the — on the floor, and I said — I said, What’s going on here?’ He said, ‘Just get down. Just get down.’ I say, ‘Take it easy.’ And he pushes the barrel like, ‘Get down. I said get down.’ ” Q. He put the barrel in the back of your head? A. Yes, to push me, get down. He said, “I told you get down.” Mr. Burt was then handcuffed and left on the floor for 15 to 20 minutes. After some time a polaroid was taken and taped to his chest. He was then taken outside where another officer asked if she could search his car. Cory responded “ ... [I]f I say no, you are going to pull me over down the street and run through my car anyway. She said, ‘That’s right.’ ... So I said, ‘Go ahead then.’ I had no choice.” Mr. Burt’s deposition does not reveal how long he was handcuffed or kept at the scene. Carlos Trevizo: Carlos is a self-employed contractor who was doing some work outside of La Diana on the day of the raid. Carlos had left to get some road base in a dump truck and had just returned and was getting ready to dump the road base when the raid began. A.I went in and backed the dump truck to this point, raised the bed, they went by. They stop about 20 feet from me when I have the dump all the way to the top, 2,500 RPMs when I was supposed to go forward, when I see the machine gun in front of my face just like that. Get out. Q. So you’re in the cab of your truck? A. Uh-huh. I have to dump 2,500 RPMs to go forward unloading, they’re going to.... The way you do, you raise the bed up, the dump truck, your raise your bed up, you’re here. When this opened, the gate, you have chains in the back of the dump truck, it opens about that much only. So when you go forward with the bed up, you don’t look forward, you look back, okay? Because you look into the mirror in the back. You’re not looking in front of you because you know there’s nobody in front of you because you know there’s nobody in front of you for the load that you have. If somebody comes and park right there, I hit it in a hurry. I have one of my workers right in front, so in that particular time he went to the back, when I did that, I see the machine gun right in front of me. Q. I’m sorry, the machine gun is right in front of you? A. Right over here. Q. On the ground, on the street level? A. Right over here was the van, right over here, about 30 feet, 30 feet from my dump truck. If I was to release that clutch, everybody would have been dead in that Ryder truck, everybody, because it’s too heave. If I release that clutch in that truck the way they told me to, raise my hands, to keep it a — to get out of the truck, I can jump easy out of the truck, and the hell with it. But I had to relax, and I raised my hands up and with my knee I pushed the gear out of my truck.... Q. What did the person with the machine gun, what did the person say to you? A. You want to know the truth? The hard words? Q. Exact words. A. Turn the fuckin’ truck off, you cock sucker mother fucker. I think it is that — I know the cop. I know him. I know where he lives. I know every single thing of him. [His- name is] Bob.... Q. Well, what kind of things did they call you? A. From one cock sucker mother fucker to the rest, fuckin’ Mexican son-of-a-bitch, get the fuck out of the truck, turn the fuckin’ truck off, you son-of-a-bitch, you don’t understand fuckin’ shit, keep your fuckin’ hands up, don’t move, you son-of-a-bitch. Carlos raised his hands and knocked the truck out of gear with his knee. The officers then approached. “Opens the door, grabbed me and pushed me out of the dump truck, dragged me out of the dump truck, shake me around, hit me against the frame of the truck, pushed my back.... ” Carlos was taken to the ground and handcuffed. He was injured in the process. “I asked for an ambulance. They told me to go fuck myself.... They kick me about one, two, three, four times.” Carlos also testified that the police searched his dump truck and another truck he had there. Carlos testified that he was handcuffed for about two hours and then taken to have his picture taken at which time the handcuffs were removed. Carlos had surgery on his right shoulder as a result of the raid and testified that he still needs two other surgeries as a result of the injuries he suffered. Cynthia Rodriguez: Cynthia Rodriguez was a customer at La Diana on the day of the raid. She was asked during her deposition what happened to her on the day of the raid: I had gone to the store to buy bread, Mexican bread. I was pregnant. I was around four to five months pregnant, and I was craving for a Mexican meal, and we needed to go and buy Mexican bread. And as soon as we arrive there, we — I remember that' I opened up a bag so I could be able to put the bread inside. My husband and another friend were on the outside in the car. I guess they just didn’t want to get off, so I was the only one who got off. And as soon as I went inside the store, there was a lot of men, policemen, with — you couldn’t see their faces or anything. They had laser guns, and I was just shocked. I didn’t do anything. I stood there. They were telling everybody to just drop down. I was shocked, and so I didn’t do anything until a policeman got near me. And he held me by the back, and he pushed me towards the — towards the floor. After that everybody — a couple people were running around. A couple of people were just stood like me, just steady. After that I remember telling the policeman that I was pregnant. I kept on telling everybody, “Couldn’t I please go and put my belly to the side?” They told me, “No. Be quiet. There’s nothing you can do.” A lot of these people — since they seen me that I was talking to them in English, a lot of people tried to communicate with me and told me, “Please, can you please let them know that I have my children at home? It’s gonna be time for my children to get off from school.” There was a — there was a lady. I think she was in between 50 to 60 years old, I would say. She just kept on begging me to please let them know that her kids were going to be home from school and that she needed to be home and if this was Immigration, and I didn’t know what was going on. I was just like I didn’t even know myself. And so I kept talking to them in Spanish. The more I was talking to them, the more they would tell me to shut up, that I needed to talk to them, for me to be quiet. And they kept saying to other people as well, “You need to be quiet. You need to shut up.” And there was- — -there was kids there. After they put us on the ground, I remember that they put our hands to the back and they put the plastic handcuffs, I would say, yeah, like plastic things. And when he — -when the -policeman put the handcuffs on me, I told him, “Can I at least please roll to the side?” He said, “No,” again, ‘You just need to be quiet. This will only take a couple of minutes.” After that I remember that we stayed on the floor for at least half an hour. I was with my belly down for at least half an hour. Then after that, after the half an hour, one of the policemen actually took off his mask and asked me if I was pregnant, and I told him, “I have been saying that for the past half hour. Can you please let me put my belly to the side?” What he did was he grabbed a chair and he lifted me up and he put me on the chair. He didn’t take the handcuffs off me. He just put me on the chair. Then I was sitting there for a period of time, and they were asking all these people names, identities. The lady that I think I’m talking about, the one that was 50 years old, they grabbed her purse. They opened it up. They were trying to get IDs. After that I remember that, since they couldn’t actually communicate with the people because of the people that didn’t actually even know what to answer or what to say, they started asking who was a person that was bilingual. And I was, I think, the only one, so I started — I ended up translating for everybody that was there. So I was, I think, the last one to get off from that incident because I needed to translate for everyone. They did not have anybody that spoke Spanish in there. I was the only one that was bilingual and was able to communicate with both. So they asked for date of birth, full names, and I remember that I asked one of the agents — I said, “Why are you people asking all of this information?” “It is just for security purposes, for security purposes, and we like to know if you guys have any type of criminal background. If so, we will notify you and you will go to jail.” So, myself, I thought, well, I don’t have a criminal record, so I’m okay. I’m just gonna try and wait until this is done. I was pretty mad because of all that happened, and I was sore from my belly. They just didn’t do anything at all. I was complaining for the whole time I was there, and they didn’t do anything at all. After that they told us they — to go ahead and give them our IDs, and I remember that I had mine, I think, in my purse. So I was ready to grab it, and he snatched it off — out of my hand, and he started getting names of everybody. And then they just — after a while they just let us go because, according to them, we didn’t have any type of criminal background. Cynthia testified that she interpreted for all of the approximately 20 people who were detained inside the store. She also complained about the tightness of her handcuffs and said “everybody kept on complaining they were too tight, they were too tight, and nobody would do anything about it.” She had marks on her wrists for two days afterwards. Cynthia’s baby was born several months later with heart problems and had to have surgery. He has also required speech therapy. Cynthia believes the raid had something to do with her child’s health problems. Florentino Rodriguez: Florentino is the husband of Cynthia. He was in his car in the parking lot waiting for his wife when the raid began. A friend and I were sitting in a car, when we saw that two trucks came in. And they got off the trucks and they went inside, and you could hear yelling and you could hear some shots. And they had not seen that we were inside the car. But when they did, they had— they pointed their guns at us and they had us get out and they threw us on the ground. Florentino was then handcuffed for about an hour, according to his testimony. His picture was taken and he was released. Other Plaintiffs: Plaintiffs Carlos Perez, Maria Del Carmen Cruz, Carmelo Cruz, Laurentino Rodriguez, Ashley Rodriguez, Silvia Rodriguez, Goria E. Villalobos, Pedro Campos, Jiverto Baptista, and Rogelio Gomez failed to appear for their depositions. Plaintiffs Juan Carlos Rovles and Antonio Aranda appeared for their depositions as scheduled, but there was no court reported. Mr. Rovles and Mr. Aranda left before the court reporter arrived. The court has been presented with no evidence concerning these plaintiffs. DISCUSSION Plaintiffs Who Failed to Appear for Their Depositions As a preliminary matter, the court hereby GRANTS summary judgment in favor of all of the defendants against the plaintiffs who failed to appear for their deposition, including Carlos Perez, Maria Del Carmen Cruz, Carmelo Cruz, Laurentino Rodriguez, Ashley Rodriguez, Silvia Rodriguez, Gloria E. Villalobos, Pedro Campos, Jiverto Baptista, and Rogelio Gomez. At oral arguments the defendants stated they were not moving for summary judgment against plaintiffs Juan Carlos Rovles and Antonio Aranda since they did in fact appear for their depositions. These plaintiffs were scheduled to appear for their depositions on July 30, 2004. They have given no reason for their failure to appear. This case has been pending for more than five years. A two-week trial is scheduled to begin in less than one month. The court is now at the summary judgment stage, and these plaintiffs have failed to present any evidence to the court supporting their individual claims. As such, there exists no genuine issue of material fact with respect to these plaintiffs. Summary judgment in favor of the defendants is therefore appropriate. These plaintiffs contend that it would be unfair to dismiss their claims for failure to appear for their depositions since the defendants were allegedly not very cooperative in scheduling depositions. Whether this is true or not, the plaintiff did not present this dispute to the court in a timely fashion when depositions could have been rescheduled. More important, regardless of them failure to appear for their depositions, these plaintiffs have not put forward any evidence in their favor. Rule 56(e) provides that: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. An affidavit from each of these plaintiffs detailing what occurred to them on the day in question might have been sufficient to create a genuine issue of material fact. Without such an affidavit, however, summary judgment in favor of the defendants is appropriate. As an alternative reason for granting summary judgment as to these plaintiffs, the court notes that Rule 37 of the Federal Rules of Civil Procedure gives the court the right to dismiss a cause of action when a party fails to appear for a properly noticed deposition. Dismissal, of course, should not be the first choice of the court. In Ehrenhaus v. Reynolds, the Tenth Circuit set forth five factors courts should consider before dismissing a plaintiffs complaint for failure to appear for a deposition: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions. Applying these factors demonstrates that dismissal is an appropriate sanction in this case. As a preliminary matter, the court notes that this case has been on the docket for more than five years. These plaintiffs were fully aware of the discovery deadlines imposed in this case and fully aware of the quickly-approaching trial. They have given no reason for their failure to appear nor did they request additional time. Whether or not the defendants were cooperative in scheduling depositions is irrelevant. The depositions were scheduled and the plaintiffs were properly noticed, but they failed to appear without explanation. Because of this, the defendants have had no chance to depose these plaintiffs and prepare a defense. Moreover, the dispositive motions cutoff date has passed, so that the defendants were unable to rely upon the depositions of the plaintiffs in this motion for summary judgment. Given the broad claims in the complaint, deposing these plaintiffs was essential to allow the defendants to outline their defense. The first factor, prejudice to the defendants, is clearly met. The court could, of course, reopen discovery and reset the dispositive motions cutoff. This, however, would cause serious disruption to the court’s docket. A two-week trial has been set and is less than one month away. Further, reopening discovery would come at great monetary costs to the parties who have already spent five years in litigating this case. The second factor, therefore, also favors dismissal. The third factor, culpability of the litigant, also favors dismissal. These plaintiffs have given no reason for their failure to appear at their deposition. In response to the defendants’ motion for summary judgment, the only argument raised in favor of these plaintiffs is that the number of depositions granted to each side was unfair. Whether this is true or not, it does not excuse the failure to appear at a properly noticed deposition. The culpability, therefore, lies with the plaintiffs. As to the fourth factor, the court did not explicitly warn the plaintiffs that failure to appear for a deposition could result in dismissal. The plaintiffs, however, were well aware of the need to put forth evidence to rebut a likely motion for summary judgment, and were well aware of the approaching trial and approaching deadlines. It should have been clear that failure to appear would cause disruption in a case that had already been pending for five years. Given this, the plaintiffs should have been aware that the failure to appear could have serious consequences. Finally, this discussion makes it clear that lesser sanctions could not be imposed without serious disruption to this case. A two-week block of free time would have to be found on the court’s calendar, likely pushing the trial back several months. Discovery would have to be reopened and a new motion for summary judgment would likely be filed. Given this, lesser sanctions would not provide the defendants with an appropriate remedy in this case. Dismissal is therefore appropriate under the Eh-renman factors. Liability of the Individual Officers Before proceeding to the merits of plaintiffs’ claims, it is necessary to determine who is liable for any violation of the plaintiffs’ constitutional rights. The officers involved contend that they are protected by qualified immunity because the plaintiffs have failed to allege the personal participation of specific individual officers in alleged constitutional violations. Each officer has been sued in his individual and official capacity. The defendants phrase the salient issue in terms of qualified immunity. In fact, the salient question is simply one of evidence. “To prevail on a claim for damages for a constitutional violation pursuant to 42 U.S.C. § 1983, a plaintiff must establish the defendant acted under color of state law and caused or contributed to the alleged violation.” It is not merely enough for a plaintiff to allege a violation. The law is clear that in the Tenth Circuit that an individual plaintiff must allege which officer or officers personally participated in the violation of that plaintiffs rights. “The plaintiff must show the defendant personally participated in the alleged violation ... and conclu-sory allegations are not sufficient to state a constitutional violation.” In Durre v. Dempsey, the Tenth Circuit held that the district court properly dismissed a section 1983 claim against several officers where the plaintiff directly alleged only the involvement of one of the officers. “Plaintiff failed to allege the personal participation of any of the other defendants in the incident underlying his claim ... In order to be hable pursuant to § 1983, a defendant must have personally participated in the alleged deprivation.” In Jenkins v. Wood, the court rejected an excessive force claim against an officer where the plaintiffs “brought forward no evidence indicating Agent Sabel participated in the use of excessive force against them personally.” The plaintiffs made an effort to identify the officers who participated in the raid but have been unable to match up claims of plaintiffs against specific officers. A typical example is found in the deposition of Cynthia Rodriguez: Q. Do you know if the officer who handcuffed you was the same officer who took his mask off? A. There was — all of them were in masks, so I wouldn’t be able to know which is which. Part of the problem here is that the allegations in the plaintiffs’ complaint are overly broad. The complaint continually states that “all” of the officers were engaged in certain violations, an allegation that is facially unplausible. Similarly, the complaint also overstates the damage to the plaintiffs. For example, the complaint states that “all” of the plaintiffs cars were searched. In fact, several of the plaintiffs have testified that their cars were not searched. In addition, the complaint states that “all” of the plaintiffs were falsely accused of being illegal aliens. Some of the plaintiffs, however, have testified that they were not accused of being illegal and were not asked about their legal status. Moreover, those who state that they were accused of being illegal aliens and that their property was searched cannot identify which officers engaged in the allegedly illegal activity. This creates a dilemma. If constitutional violations occurred, why should plaintiffs have no redress simply because the officers who committed the violations wore masks and could not be identified? One option is to shift the burden to the defendants to identify the participants. If there were evidence that the identity of officers has been concealed for the purpose of preventing suit, this approach might be appropriate. The Ninth Circuit faced this situation in Dubner v. City and County of San Francisco. In that case, the plaintiff had been arrested without probable cause and filed suit against the two officers she believed had arrested her. The district court dismissed the case because, although the City had a practice of not identifying the arresting officers on the arrest report which the court felt was deliberately designed to frustrate potential plaintiffs, the burden was still on the plaintiff to identify the officers. The Ninth Circuit disagreed, holding that since the plaintiff “did everything she possibly could to identify the arresting officers” the court could “reasonably assume she had named the right officers or [that] the City would come forward with the name of the officers who actually arrested her. By shifting the burden of production to the defendants, we prevent this exact scenario where police officers can hide behind a shield of anonymity and force plaintiffs to produce evidence they cannot possibly acquire.” In a case of only one plaintiff and two defendants such an approach might be feasible. However, in this case we have 19 plaintiffs and at least 17 Salt Lake City officers. In addition, agents from Davis County, the FBI, the DEA, and the INS participated in the raid. Moreover, each of the plaintiffs likely encountered more than one plaintiff and each plaintiff likely encountered more than one of the defendants during the raid. It is simply impracticable to shift the burden in this case. More important, it was made clear in the pleadings and during oral arguments that the plaintiffs did not do everything they could have during discovery to discover the identities of individual officers. The plaintiffs, for example, could have deposed the officers with the plaintiffs present and asked the plaintiffs to attempt to identify which officers they had contact with. Plaintiffs could also have requested discovery earlier in the process. Instead, this suit was not filed until two years after the events occurred, and discovery did not begin for almost another five years. In total, almost seven yea