Augusta Millender et al v. County of Los Angeles et al

Filing 182

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION 150 , AND DENYING PLAINTIFFS MOTION FOR RECONSIDERATION 151 by Judge Dean D. Pregerson (lc). Modified on 8/24/2012 (lc).

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

ESTATE OF AUGUSTA MILLENDER,
deceased, BRENDA MILLENDER,
WILLIAM JOHNSON,

13

Plaintiffs,

14
15

v.
COUNTY OF LOS ANGELES,
et al.,

16
Defendants.
17
___________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 05-02298 DDP (RZx)
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR SUMMARY ADJUDICATION,
AND DENYING PLAINTIFFS’ MOTION
FOR RECONSIDERATION
[Docket Nos. 150 & 151]

18
19

Presently before the court are Plaintiffs’ Motion for Summary

20

Adjudication (“MSA Motion”) and Motion for Reconsideration (“MTR

21

Motion”).

22

oral argument, the court grants in part and denies in part the

23

Motion for Summary Adjudication, denies the Motion for

24

Reconsideration, and adopts the following Order.

25

I.

Having reviewed the parties’ moving papers and heard

BACKGROUND

26

A.

27

The facts and procedural history of this case are well-known

28

Summary Judgment Order

and largely set forth in the court’s March 15, 2007 Order

1

addressing the parties’ cross-motions for summary judgment (“MSJ

2

Order”).

3

under 42 U.S.C. § 1983 that: 1) the search warrant at issue was

4

overbroad in authorizing the seizure of all firearms and any gang-

5

related evidence, but not overbroad with regard to evidence of who

6

controlled the premises, and the participating Defendants were not

7

entitled to qualified immunity for this violation; 2) Defendants

8

had probable cause to believe that the suspect, Jerry Bowen, would

9

be at the Millenders’ home, and had sufficient cause for nighttime

10

service of the warrant; 3) Defendants’ detention of Plaintiffs was

11

not unreasonable, and Defendants were therefore entitled to

12

qualified immunity on this claim; 4) there were genuine disputes of

13

material fact as to Defendants’ forced entry and destruction of

14

property during the SWAT raid, although the individual non-SWAT

15

team Defendants were entitled to qualified immunity on this claim;

16

and 5) Plaintiffs had provided insufficient evidence to support

17

their Monell claims, but the court would defer ruling on these

18

claims given outstanding discovery.

19

held that: 1) Plaintiffs could seek monetary damages under article

20

I, section 13 of the California Constitution, and the court’s

21

analysis of Plaintiffs’ § 1983 claims applied equally to this state

22

law claim; and 2) the County of Los Angeles could be held liable

23

under California Civil Code section 52.1 and respondeat superior,

24

depending on the constitutional violations ultimately proven.

Relevant here, the court held as to Plaintiffs’ claims

Also relevant here, the court

25

B.

26

Defendants appealed from the court’s holding that they were

Ninth Circuit and Supreme Court Decisions

27

not entitled to qualified immunity as to the overbroad search

28

warrant.

The Ninth Circuit upheld the court’s determination, en
2

1

banc.

2

the broad categories of firearm- and gang-related items listed in

3

the search warrant,” and the warrant therefore “violated the

4

Millenders’ constitutional rights”; and 2) “the warrant was so

5

facially invalid that no reasonable officer could have relied on

6

it,” such that “the deputies [were] not entitled to qualified

7

immunity.”

8

1031, 1035 (9th Cir. 2010).

9

reversed in part, as to qualified immunity.

The Circuit agreed that: 1) “there was no probable cause for

Millender v. County of Los Angeles, 620 F.3d 1016,
The Supreme Court, however, then
See Messerschmidt v.

10

Millender, 132 S. Ct. 1235, 1250-51 (2012) (“The judgment of the

11

Court of Appeals denying the officers qualified immunity must

12

therefore be reversed.”).

13

Specifically, the Supreme Court held that the officers were

14

entitled to qualified immunity because “it would not have been

15

entirely unreasonable for an officer to believe, in the particular

16

circumstances of this case, that there was probable cause” to

17

search for the materials at issue.

18

marks omitted); see also id. at 1249 (“The officers’ judgment that

19

the scope of the warrant was supported by probable cause may have

20

been mistaken, but it was not plainly incompetent.”

21

quotation marks omitted)).

22

emphasized the serious danger involved, as the alleged crime was a

23

“spousal assault and an assault with a deadly weapon,” by a “known

24

Mona Park Crip gang member.”

25

omitted).

26

reviewed and approved by the officers’ superiors, a deputy district

27

attorney, and a neutral magistrate.”

28

explained, a neutral magistrate judge’s issuance of a warrant

Id. at 1246 (internal quotation

(internal

In making this determination, the Court

Id. at 1247 (internal quotation marks

The Court also emphasized that “the warrant had been

3

Id. at 1249.

As the Court

1

confers a “shield of immunity,” with an exception where “it is

2

obvious that no reasonably competent officer would have concluded

3

that a warrant should issue.”

4

marks omitted); see also id. (“The shield of immunity . . . will be

5

lost, for example, where the warrant was based on an affidavit so

6

lacking in indicia of probable cause as to render official belief

7

in its existence entirely unreasonable.”

8

and citation omitted)).

9

Id. at 1245 (internal quotation

(internal quotation marks

The Supreme Court, however, did not reverse the holding by

10

this court and the Ninth Circuit that the warrant was overbroad.

11

See id. at 1244 (“The validity of the warrant is not before us.

12

The question instead is whether Messerschmidt and Lawrence are

13

entitled to immunity from damages, even assuming that the warrant

14

should not have been issued.”); id. at 1250 (“The question in this

15

case is not whether the magistrate erred in believing there was

16

sufficient probable cause to support the scope of the warrant he

17

issued.

18

that any reasonable officer would have recognized the error.”).

19

This distinction between the constitutional violation and qualified

20

immunity for the officers is critical, because the Court’s decision

21

has already been cited incorrectly by the government in cases

22

before this court, including this case.

23

Mot. at 6 (“[T]he Supreme Court implicitly found there was probable

24

cause for the issuance of the warrant . . . .”).

25

Supreme Court held only that the officers were entitled to

26

qualified immunity.

27

the warrant was unconstitutionally overbroad remains the law.

28

short, the Supreme Court’s holding as to reasonableness in the

It is instead whether the magistrate so obviously erred

(See Defs.’ Opp’n to MSA

Again, the

Thus, the Ninth Circuit’s en banc holding that

4

In

1

qualified immunity context cannot be bootstrapped into the probable

2

cause analysis for a warrant’s constitutionality, so as to move the

3

law into the unacceptable territory of general warrants.

4

II.

5

DISCUSSION
In their Motion for Summary Adjudication, Plaintiffs make

6

three arguments: 1) although the court previously deferred ruling

7

on the issue, Plaintiffs are now entitled to summary adjudication

8

on the County’s Monell liability; 2) likewise, Plaintiffs are now

9

entitled to summary adjudication on their respondeat superior claim

10

under California Civil Code section 52.1 (“Section 52.1”); and 3)

11

Plaintiffs are entitled to summary adjudication for the alleged

12

violations of article I, section 13 of the California Constitution.

13

In their Motion for Reconsideration, Plaintiffs further contend

14

that intervening law and new representations by Defendants

15

establish that, contrary to the court’s prior MSJ Order, Defendants

16

lacked sufficient cause for nighttime service of the warrant.

17

Defendants respond that nothing has changed to disturb this

18

court’s finding that Plaintiffs have provided insufficient evidence

19

of Monell liability.

20

overbreadth cannot be the basis for Plaintiffs’ Section 52.1 claim,

21

because it lacks the required “threats, intimidation, or coercion.”

22

Defendants further insist, contrary to the court’s MSJ Order, that

23

there is no private cause of action for damages under article 1,

24

section 13 of the California Constitution, and that the court has

25

not yet ruled on the merits of this claim.

26

contend that no new facts or law justify reconsideration of the

27

court’s ruling on nighttime service.

28

///

Defendants also argue that the warrant’s

5

Last, Defendants

1

A.

2

As discussed, this court held in its prior MSJ Order that

3

Plaintiffs had not provided sufficient evidence of a County custom

4

or policy for Monell liability.

5

granting summary adjudication to Defendants, in light of

6

Plaintiffs’ contention that outstanding discovery would support

7

their Monell claims.

8
9

Monell Liability

The court, however, deferred

Plaintiffs’ only basis for a different outcome now is that
Defendants allegedly have made certain admissions and

10

representations since the MSJ Order.

11

Defendants’ post-Order statements change the Monell analysis.

12

particular, Defendants’ contention on appeal that the warrant was

13

supported by probable cause and therefore not overbroad is

14

irrelevant, as this was a legal argument, not an admission of any

15

County custom or policy.

16

dialogue with Chief Judge Kozinski on appeal may have some

17

evidentiary value, as counsel arguably suggested that it was still

18

the County’s position that the officers had acted appropriately.

19

Likewise, that Officer Messerschmidt testified in deposition that

20

he acted in accordance with his training, and that the County

21

allegedly never reprimanded the officers or took any remedial

22

steps, may provide some evidence of a County custom or policy.

23

However, this evidence is still not sufficient to establish

24

Plaintiffs’ Monell claims as a matter of law.

25

denies Plaintiffs’ Motion as it relates to Monell liability.

The court finds that none of
In

On the other hand, defense counsel’s

The court therefore

26

B.

27

As discussed, this court also deferred ruling on Plaintiffs’

28

California Civil Code Section 52.1

Section 52.1 claim against the County for respondeat superior
6

1

liability, because it would turn on the constitutional violations

2

ultimately proven.

3

requested summary adjudication of this claim “based on the entry

4

and search,” and now instead seek summary adjudication because the

5

unconstitutionally overbroad warrant “was accompanied by threats,

6

intimidation and coercion in the form of the SWAT team breaking

7

into the Millender home.”

8

Regardless, the court again finds that Plaintiffs are not entitled

9

to summary adjudication on this claim.

Plaintiffs argue, however, that they previously

(Pls.’ Reply in Supp. of MSA Mot. at 8.)

As the court explained in

10

its MSJ Order, material facts are in dispute as to the lawfulness

11

of Defendants’ actions during the SWAT team’s forcible entry.

12

the entry was lawful, it cannot constitute the “threats,

13

intimidation, or coercion” required by Section 52.1.

If

14

C.

15

Plaintiffs further ask for a ruling as a matter of law that

California Constitution, Article I, Section 13

16

the County violated article I, section 13 of the California

17

Constitution.

18

simply clarify the prior MSJ Order, where the court held that: 1) a

19

private action for damages was available for this claim; 2) as the

20

parties agreed, the court’s “findings on the probable cause and

21

unreasonable search and seizure claims in regard to the federal

22

constitutional claims should apply equally to the state claims”;

23

and 3) Defendants did in fact violate the U.S. Constitution,

24

through their overbroad warrant.

25

response, Defendants largely attempt to reargue the issue of

26

whether a private action for damages is available.

27

already ruled in the affirmative.

28

violated the U.S. Constitution through the overbroad warrant, they

As Plaintiffs explain, granting this request would

(MSJ Order at 84-85, 49.)

In

The court has

Accordingly, because Defendants

7

1

thereby violated the California Constitution as well.1

2

are therefore entitled to summary adjudication on this claim.

Plaintiffs

3

D.

Nighttime Service

4

Finally, in their Motion for Reconsideration, Plaintiffs argue

5

that the court should reconsider its MSJ Order and find the

6

nighttime service of the warrant unconstitutional.

7

Plaintiffs contend that the Ninth Circuit recently set forth a new

8

standard for nighttime SWAT service, in Bravo v. City of Santa

9

Maria, 665 F.3d 1076 (9th Cir. 2011).

First,

Assuming that Bravo

10

established new law, the court has already held that Bravo’s

11

standard was met here.

12

nighttime SWAT service requires “a heightened standard of

13

justification,” Bravo applied the same “exigent circumstances”

14

standard as for a “no-knock entry.”

15

at 1085 (“A nighttime incursion by a SWAT force is a far more

16

serious occurrence than an ordinary daytime intrusion pursuant to a

17

regular warrant and therefore requires higher justification beyond

18

mere probable cause to search.”).

19

when officers ‘have a reasonable suspicion that knocking and

20

announcing their presence [or, presumably, executing a search

21

during the day], under the particular circumstances, would be

22

dangerous or futile, or that it would inhibit the effective

23

investigation of the crime by, for example, allowing the

24

destruction of evidence.’”

25

Wisconsin, 520 U.S. 385, 394 (1997)).

Specifically, after explaining that

Id. at 1084-86; see also id.

Exigent circumstances “include

Id. at 1085-86 (quoting Richards v.

26
1

27
28

As the court previously explained, qualified immunity does
not apply to Plaintiffs’ state law claims, because they are alleged
only against the County, not against any of the individual
Defendants. (See MSJ Order at 35 n.8, 37 n.9.)
8

1

Here, this court held in its prior MSJ Order that nighttime

2

service was justified because: “The facts in the affidavit, that

3

Bowen physically assaulted his girlfriend, shot at his girlfriend

4

with a black sawed-off shotgun, had violent tendencies, had

5

assaulted his girlfriend in the past, and was a member of the Mona

6

Park Crip gang, were sufficient to show the likelihood that he

7

would also use violence against officers.”

8

court concluded that these specific facts showed a necessity for

9

service of the warrant at night, rather than during the day.

(MSJ Order at 40.)

The

(Id.)

10

Given the legitimate and particularized concern for officer safety,

11

the court concludes that these facts also satisfy the exigent

12

circumstances standard set forth in Bravo for nighttime service.

13

Finally, the court declines to reconsider its ruling on the

14

basis of Defendants’ alleged arguments on appeal “that the warrant

15

was justified because the location searched was Bowen’s

16

‘residence.’”

17

detail whether Defendants had probable cause to believe Bowen could

18

be found at the Millender residence, considering, in particular,

19

the alleged misrepresentations in and omissions from the warrant

20

affidavit.

21

appeal do not change the court’s analysis or conclusion that

22

Officer “Messerschmidt acted reasonably as a matter of law . . .,

23

such that there was no constitutional violation.”

24

III. CONCLUSION

25

(Mot. at 14.)

The court has already addressed in

(See MSJ Order at 23-37.)

Defendants’ arguments on

(Id. at 34.)

For all of these reasons, the court hereby DENIES Plaintiffs’

26

Motion for Summary Adjudication as to their claims under Monell and

27

California Civil Code section 52.1.

28

Plaintiffs’ Motion for Reconsideration.
9

The court also DENIES
The court, however, GRANTS

1

Plaintiffs’ Motion for Summary Adjudication as to their claim

2

against the County under article I, section 13 of the California

3

Constitution.

4
5

IT IS SO ORDERED.

6
7
8

Dated: August 24, 2012
DEAN D. PREGERSON
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10