Rosales v City of Chico

Filing 24

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 10/20/2015 DENYING 13 Defendants' Motion for Summary Judgment. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH ROSALES,
Plaintiff,

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CIV. NO. 2:14-02152 WBS CMK
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

v.
CITY OF CHICO; DAVID BAILEY;
and DOES 1-10, (in their
official and individual
capacities),
Defendants.

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----oo0oo----

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Plaintiff Joseph Rosales filed this action under 42

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U.S.C. § 1983 based on defendant Officer David Bailey’s use of

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force following plaintiff’s solo car collision.

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and defendant City of Chico now move for summary judgment on all

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of plaintiff’s claims pursuant to Federal Rule of Civil Procedure

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56.

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I.

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Officer Bailey

Factual and Procedural Background
On June 10, 2014, plaintiff lost control of his car and

collided with a concrete planter box and a steel awning that was
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attached to a building.

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and ultimately ended up resting on the passenger side.

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had his dog in his car and was worried about locating his dog

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after the accident.

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His car overturned during the accident
Plaintiff

When Officer Bailey arrived at the scene, he ordered

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plaintiff to start climbing out of the driver’s side door.

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Plaintiff did not immediately comply and indicated that he wanted

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to find his dog.

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technique on plaintiff’s wrist and helped extract plaintiff as he

Officer Bailey then used a pain compliance

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struggled to climb out of the driver’s side door.

After dragging

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plaintiff away from the accident and ordering him to stay seated

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on the curb, Officer Bailey allegedly used further force against

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him.

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limited to the extraction and the second video including the

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interactions after the extraction.

Two bystanders recorded the incident, with the first video

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In his Complaint, plaintiff alleges that Officer Bailey

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used excessive force and asserts four claims against Officer

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Bailey and the City of Chico: 1) a § 1983 claim for excessive

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force in violation of the Fourth Amendment; 2) state law battery;

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3) state law negligence; and 4) excessive force in violation of

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the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1.

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now move for summary judgment pursuant to Rule 56 on all of

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plaintiff’s claims.

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II.

Defendants

Legal Standard

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

Fed. R. Civ.

A material fact is one that could affect the outcome
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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the non-

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”

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

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Id. at

To carry this burden,

Matsushita

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

Id. at

“Credibility determinations, the weighing of the evidence,

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

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III. Analysis

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A.

Id.

Substantive Due Process
Although plaintiff does not assert a § 1983 claim based

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on a violation of his substantive due process rights, defendants

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first seek summary judgment on the ground that Officer Bailey’s

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conduct did not shock the conscience.

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conscience” standard, however, governs only claims under the

The “shocks the

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substantive due process clause.

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523 U.S. 833, 846 (1998); see also Porter v. Osborn, 546 F.3d

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1131, 1138 (9th Cir. 2008).

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County of Sacramento v. Lewis,

Moreover, “[w]here a particular Amendment provides an

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explicit textual source of constitutional protection against a

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particular sort of government behavior, that Amendment, not the

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more generalized notion of substantive due process, must be the

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guide for analyzing these claims.”

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266, 273 (1994) (internal quotation marks and citation omitted).

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When an individual is seized, “the Fourth Amendment provides an

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explicit textual source of constitutional protection against

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[that] sort of physically intrusive governmental conduct, [and]

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that Amendment, not the more generalized notion of ‘substantive

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due process,’ must be the guide for analyzing the[] claims.”

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Graham v. Connor, 490 U.S. 386, 395 (1989).

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Albright v. Oliver, 510 U.S.

“A person is seized by the police and thus entitled to

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challenge the government’s action under the Fourth Amendment when

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the officer, by means of physical force or show of authority,

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terminates or restrains his freedom of movement, through means
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intentionally applied.”

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254 (2007) (citation and emphasis omitted).

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defendants’ argument, an arrest or detention is not required to

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give rise to Fourth Amendment protection.

Brendlin v. California, 551 U.S. 249,
Contrary to

See id.

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A reasonable jury could find that plaintiff was seized

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because Officer Bailey used force, including the pain compliance

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technique, to extract plaintiff from the car and continued to

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restrict plaintiff’s freedom of movement after the extraction.

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See California v. Hodari D., 499 U.S. 621, 626 (1991) (“The word

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‘seizure’ readily bears the meaning of a laying on of hands or

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application of physical force to restrain movement, even when it

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is ultimately unsuccessful.”).

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a triable issue of fact with respect to whether he was seized,

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the court will examine his § 1983 claim under the Fourth

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Amendment as alleged in his Complaint.

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B.

Because plaintiff has established

Fourth Amendment Excessive Force Claim

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1.

Genuine Dispute as to Violation

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To comport with the Fourth Amendment, officers’

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actions must be “‘objectively reasonable’ in light of the facts

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and circumstances confronting them.”

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“[T]he jury must determine not only whether the officers were

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justified in using force at all, but, if so, whether the degree

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of force actually used was reasonable.”

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F.3d 846, 854 (9th Cir. 2002).

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force, any force used is constitutionally unreasonable.”

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v. Richmond Police Dep’t, 497 F. App’x 702, 708 (9th Cir. 2012)

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(quoting Headwaters Forest Def. v. County of Humboldt, 240 F.3d

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1185, 1199 (9th Cir. 2000), vacated on other grounds, 534 U.S.

Graham, 490 U.S. at 397.

Santos v. Gates, 287

“[W]here there is no need for

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Moore

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801 (2001)).

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Assuming the use of force was necessary, determining

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the reasonableness of that force “requires a careful balancing of

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the nature and quality of the intrusion on the individual’s

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Fourth Amendment interests against the countervailing

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governmental interests at stake.”

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(internal quotation marks and citations omitted).

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necessitates consideration of all of the relevant circumstances,

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including “(1) the severity of the crime at issue; (2) whether

Graham, 490 U.S. at 396
The inquiry

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the suspect poses an immediate threat to the safety of the

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officers or others; and (3) whether the suspect actively resists

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detention or attempts to escape.”

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120 F.3d 965, 976 (9th Cir. 1997) (citing Graham, 490 U.S. at

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388).

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Liston v. County of Riverside,

The “most important” factor under Graham is whether the

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suspect posed an “immediate threat to the safety of the officers

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or others.”

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2005) (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.

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1994)).

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safety or the safety [of] others is not enough; there must be

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objective factors to justify such a concern.’”

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MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Deorle v.

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Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)).

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resolve quickly a potentially dangerous situation is not the type

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of governmental interest that, standing alone, justifies the use

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of force that may cause serious injury.”

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272 F.3d at 1281).

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Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.

“‘A simple statement by an officer that he fears for his

Bryan v.

“A desire to

Id. (quoting Deorle,

Whether an officer used excessive force under the
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Fourth Amendment is a question for the jury, which “almost always

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turn[s] on a jury’s credibility determinations.”

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at 701.

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sift through disputed factual contentions, and to draw inferences

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therefrom, [the Ninth Circuit has] held on many occasions that

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summary judgment or judgment as a matter of law in excessive

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force cases should be granted sparingly.”

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853.

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Smith, 394 F.3d

“Because such balancing nearly always requires a jury to

Santos, 287 F.3d at

Here, defendants contend that plaintiff’s failure to

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immediately climb out of his overturned car posed a serious risk

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to the safety of the officer, plaintiff, and the public because

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the steel awning could have fallen.

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that when he first arrived and was assessing the situation, a

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bystander told him that the awning was “essentially being pulled

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away from the attachment point at the building and that he

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believed that the awning was going to collapse.”

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Bailey Dep. at 30:23-31:11.)

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the front beam was “seriously compromised” and “had been

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completely sheared off and was just being suspended there.”

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at 31:12-17.)

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she heard the awning making creaking noises.

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20:12-23.)

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Officer Bailey testified

(Apr. 1, 2015

It appeared to Officer Bailey that

(Id.

An eye witness at the incident also testified that
(Beckham Dep. at

Plaintiff, on the other hand, testified that one of the

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supporting beams of the awning was bent, but that the beam was

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still attached to the awning.

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Plaintiff recognized that the awning was tilting, as depicted in

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pictures, but indicates that it was still attached in the back

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and that he did not perceive any risk of the awning falling.

(Rosales Dep. at 70:6-16.)

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(Id. at 78:15-22, 79:22-25, Exs. B, C.)

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the pictures would preclude a jury from finding plaintiff’s

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assessment about the stability of the beam and awning persuasive.

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There is also no evidence before the court suggesting that the

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awning fell after the accident.

Neither the videos nor

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Plaintiff has therefore raised a triable issue of fact

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with respect to whether Officer Bailey was mistaken in believing

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that the awning was likely to immediately collapse.

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officer’s particular use of force is based on a mistake of fact,

“Where an

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[the relevant inquiry is] whether a reasonable officer would have

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or should have accurately perceived that fact.”

Torres v. City

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of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011).

A jury would

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thus need to weigh the conflicting evidence to determine whether

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Officer Bailey’s belief about the condition of the awning was

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mistaken and, if it was, whether a reasonable officer arriving on

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the scene would or should have determined that the awning did not

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pose an immediate risk of falling.

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Officer Bailey also indicated in his report and

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testified at his deposition that he used no more force than

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necessary to gain plaintiff’s compliance with his demand to climb

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out of the car.

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Bailey recognized that he continued to use force even after

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plaintiff verbally assented to his commands, but testified that

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the continued force was necessary because plaintiff was still

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resisting by bracing himself against the interior of the car.

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(Id. at 47:21-49:3; see also Pl.’s Ex. A (first video) at 1:12

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(showing that plaintiff said “all right,” but Officer Bailey

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continued to use the pain compliance technique on plaintiff’s

(Apr. 1, 2015 Bailey Dep. at 47:3-20.)

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Officer

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wrist).)

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resistance cannot be seen in the video, (Chapman Dep. at 35:7-

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17), and plaintiff testified that he only “pulled away” because

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the pain from the wrist hold was “excruciating,” (Rosales Dep. at

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91:15-25).

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of each witness to determine whether Officer Bailey was

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reasonable in continuing to use force after plaintiff verbally

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indicated he would climb out of the car.

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Defendants’ expert acknowledges that this alleged

The jury must weigh these facts and the credibility

The video also shows that while Officer Bailey was

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using the wrist hold, plaintiff informed Officer Bailey that his

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foot was caught.

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ultimately extracted from the car, the video confirms that his

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foot was caught in the seatbelt and the assistance of a bystander

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was necessary to untangle it.

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believes plaintiff’s testimony that he was unable to climb out of

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the car because his foot was caught and finds that Officer Bailey

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heard plaintiff inform him of that dilemma, it could reasonably

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find that any use of force to gain compliance with an impossible

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request was unreasonable.

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(Pl.’s Ex. A at 1:18.)

When plaintiff was

(Id. at 1:59.)

If the jury

Plaintiff has also submitted testimony undermining the

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accuracy and credibility of Officer Bailey’s report and

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recollection of the incident.

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his first deposition before he had seen the second video, Officer

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Bailey repeatedly testified that plaintiff made “multiple

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attempts” to walk back toward his car despite Officer Bailey’s

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demands that he remain seated on the curb.

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Dep. at 53:5-11, 54:2-8, 55:6-7, 55:21-24, 57:20-25, 59:3-4.)

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After viewing the second video, (July 23, 2015 Dep. at 87:10-

For example, in his report and at

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(Apr. 1, 2015 Bailey

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89:14), Officer Bailey changed his testimony and testified at a

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second deposition that plaintiff got up from a seated position

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only once.

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first deposition, Officer Bailey also testified that he did not

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force plaintiff to the ground before he was handcuffed and then

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recanted that testimony at his second deposition.

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87:9.)

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credibility, is precisely the type of evidence the jury must

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weigh.

(July 23, 2015 Bailey Dep. at 105:18-106:5.)

At his

(Id. at 84:18-

This evidence, which could undermine Officer Bailey’s

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The parties also present conflicting accounts as to the

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force Officer Bailey used after he extracted plaintiff from the

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vehicle.

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deposition that he “used the bottom of [his] foot to push on the

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lower leg . . . to get the knee joint to bend in a natural

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position” so it was “easier” to “push” plaintiff to the ground.

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(Apr. 1, 2015 Bailey Dep. at 70:20-24.)

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describes the technique as a “distraction” maneuver or strike

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that was used to get plaintiff’s attention.

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70:16-23.)

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Bailey violently slammed him to the ground and kicked him in the

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lower back.

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Plaintiff’s expert testified that the gratuitous kick was

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unnecessary and that officers are trained to use distraction

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techniques during fight situations, not under the circumstances

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of this case.

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ultimately weigh this conflicting testimony, along with the video

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of the incident and other relevant evidence, to determine what

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force was actually used.

For example, Officer Bailey testified in his first

Defendants’ expert now

(Chapman Dep. at

Plaintiff, on the other hand, testified that Officer

(Rosales Dep. at 105:21-108:11, 109:18-110:20.)

(Lichten Dep. at 72:10-73:6.)

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The jury must

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Moreover, defendants have not identified any

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circumstance necessitating the use of force to immediately remove

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plaintiff from his car other than the awning.

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Bailey removed plaintiff from his car, the only circumstances

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allegedly necessitating Officer Bailey’s use of force was that

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plaintiff was concerned about his dog, not responding to Officer

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Bailey’s questions about whether he needed medical attention, and

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tried on one occasion to walk toward his car.

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Bailey Dep. at 52:16-21; July 23, 2015 Bailey Dep. at 105:18-

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After Officer

(Apr. 1, 2015

106:5.)
Defendants have not submitted any evidence suggesting

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that Officer Bailey had any reason to suspect that plaintiff was

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under the influence of any drugs or alcohol, that he was

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combative or attempting to flee, or that he was suspected of

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criminal activity.

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easily find that a reasonable officer would not have felt it

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necessary to resort to any force at all after plaintiff was

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removed from his car.

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concurring in the denial of rehearing en banc) (“[While] police

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officers need not employ the least intrusive degree of force . .

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. the presence of feasible alternatives is a factor to include in

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[the] analysis.”) (internal quotation marks, citations, and

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emphasis omitted).

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After weighing all the factors, a jury could

See Bryan, 630 F.3d at 813 (Wardlaw, J.,

Additionally, “even when police officers reasonably

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must take forceful actions in response to an incident, and even

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when such forceful actions are permissible at first, if the

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officers go too far by unnecessarily inflicting force and pain

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after a person is subdued, then the force, unnecessary in part of
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the action, can still be considered excessive.”

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San Diego, 608 F.3d 582, 589 (9th Cir. 2010).

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determines that Officer Bailey’s initial use of force to get

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plaintiff out of the car was reasonable, it must also weigh the

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evidence and changing circumstances to determine whether

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additional force throughout the incident, including Officer

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Bailey’s alleged “slamming” of plaintiff to the ground and

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kicking him, was reasonable.1

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Guy v. City of
Even if the jury

The Ninth Circuit has also explained that “police

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officers normally provide [] warnings where feasible, even when

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the force is less than deadly, and that the failure to give such

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a warning is a factor to consider.”

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Here, Officer Bailey never warned plaintiff prior to any of his

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uses of force.

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Officer Bailey faced, the failure to warn plaintiff and give him

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an opportunity to comply before resorting to force was

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unreasonable.

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Bryan, 630 F.3d at 831.

A jury could find that under the circumstances

Overall, a reasonable jury could easily find that the

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force Officer Bailey used was excessive in light of the

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circumstances he faced.

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existence of genuine issues of material fact on his § 1983

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excessive force claim against Officer Bailey.

Plaintiff has thus established the

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At some point, Officer Bailey also had other emergency
responders available to assist him. According to Officer
Bailey’s deposition, he was the first officer on the scene and
additional emergency responders did not arrive until he had
removed plaintiff from his car. (Apr. 1, 2015 Bailey Dep. at
31:18-23, 67:16-23.) Plaintiff, on the other hand, testified
that the paramedics and fire department were already on the scene
when Officer Bailey arrived. (Rosales Dep. at 84:17-85:16.)
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2.

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In suits under § 1983, “qualified immunity protects

Qualified Immunity

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government officials ‘from liability for civil damages insofar as

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their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person should have

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known.’”

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

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of qualified immunity, [the court must] resolve all factual

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disputes in favor of the party asserting the injury.”

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Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting
“For purposes

Ellins v.

City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013).

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To be clearly established, “existing precedent must

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have placed the statutory or constitutional question beyond

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debate.”

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(internal quotation marks and citation omitted).

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inquiry focuses on whether ‘it would be clear to a reasonable

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officer that his conduct was unlawful in the situation he

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confronted,’ or whether the state of the law [at the time of the

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incident] gave ‘fair warning’ to the officials that their conduct

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was unconstitutional.”

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Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001));

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Hope v. Pelzer, 536 U.S. 730, 741 (2002).

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established inquiry “serves the aim of refining the legal

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standard and is solely a question of law for the judge.”

24

v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th Cir.

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2009).

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Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
“The proper

Clement v. Gomez, 298 F.3d 898, 906 (9th

The clearly

Tortu

Even if the law is clearly established, “an officer who

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makes a reasonable mistake as to what the law requires under a

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given set of circumstances is entitled to the immunity defense.”
13

1

Landry v. Berry, 533 F. App’x 702, 703 (9th Cir. 2013) (quoting

2

Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004)).

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protection of qualified immunity applies regardless of whether

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the government official’s error is ‘a mistake of law, a mistake

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of fact, or a mistake based on mixed questions of law and fact.’”

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Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez, 540 U.S. 551,

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567 (2004) (Kennedy, J., dissenting)).

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“The

Here, numerous factual disputes prevent the court

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from meaningfully characterizing the right at issue in this case.

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For example, the jury must determine whether a reasonable officer

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would have perceived the steel awning as posing an emergency

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situation that necessitated the immediate removal of plaintiff

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from his car through the driver’s side door.

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determine whether plaintiff’s foot was caught in the seatbelt at

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the time Officer Bailey arrived and whether a reasonable officer

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would have understood that plaintiff could not have easily

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climbed out of the car because his foot was caught.

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also determine precisely what force was used after Officer Bailey

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extracted plaintiff.

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A jury must also

A jury must

Until the jury resolves all of the disputed issues of

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fact, the court cannot characterize the right at issue to assess

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whether Officer Bailey violated clearly established law of which

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a reasonable officer would have known.

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855 n.12 (“[I]t is premature to [decide qualified immunity] at

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this time, because whether the officers may be said to have made

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a ‘reasonable mistake’ of fact or law, may depend on the jury’s

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resolution of disputed facts and the inferences it draws

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therefrom.

See Santos, 287 F.3d at

Until the jury makes those decisions, we cannot know,
14

1

for example, how much force was used, and, thus, whether a

2

reasonable officer could have mistakenly believed that the use of

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that degree of force was lawful.”) (internal citation omitted);

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see also Luchtel v. Hagemann, 623 F.3d 975, 989 (9th Cir. 2010)

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(explaining that summary judgment should be granted “sparingly”

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in excessive force cases “even with respect to the issue of

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qualified immunity”).

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Accordingly, because plaintiff has established a

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genuine issue of material fact on his Fourth Amendment excessive

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force claim against Officer Bailey and numerous factual disputes

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preclude the court from assessing qualified immunity at this

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time, the court must deny Officer Bailey’s motion for summary

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judgment on that claim.

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C.

Monell Claim

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As § 1983 does not provide for vicarious liability,

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local governments “may not be sued under § 1983 for an injury

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inflicted solely by its employees or agents.”

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Soc. Servs. of the City of N.Y., 436 U.S. 658, 693 (1978).

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“Instead, it is when execution of a government’s policy or

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custom, whether made by its lawmakers or by those whose edicts or

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acts may fairly be said to represent official policy, inflicts

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the injury that the government as an entity is responsible under

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§ 1983.”

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Monell v. Dep’t of

Id.
Generally, a local government may be held liable under

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§ 1983 under three broad theories: (1) “when implementation of

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its official policies or established customs inflicts the

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constitutional injury,” id. at 708 (Powell, J. concurring); (2)

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“for acts of ‘omission,’ when such omissions amount to the local
15

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government’s own official policy,” Clouthier v. County of Contra

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Costa, 591 F.3d 1232, 1249 (9th Cir. 2010); and (3) “when the

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individual who committed the constitutional tort was an official

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with final policy-making authority or such an official ratified a

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subordinate’s unconstitutional decision or action and the basis

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for it,” Clouthier, 591 F.3d at 1250 (internal quotation marks

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and citation omitted).

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Here, plaintiff’s theory of Monell liability rests on

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the City of Chico Chief of Police’s “Notice of Conclusion” issued

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to Officer Bailey after an administrative review of the incident.

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The notice states:

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The administrative review for the complaint involving
Joseph Rosales regarding the incident on June 10,
2014, has been concluded.
The finding regarding the
allegation that you used excessive force during the
incident has been determined to be EXHONERATED.
You
were in compliance with Department policy.
Consider
this matter closed with no further action necessary.

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(Pl.’s Ex. G (Docket No. 17-1).)

Plaintiff argues that this

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notice exposes the City of Chico to Monell liability because the

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Chief of Police ratified Officer Bailey’s conduct.2
Relying on City of St. Louis v. Praprotnik, 485 U.S.

20
21

112 (1988), the Ninth Circuit has “found municipal liability on

22

the basis of ratification when the officials involved adopted and

23

expressly approved of the acts of others who caused the

24

constitutional violation.”

25

(9th Cir. 1996).

Trevino v. Gates, 99 F.3d 911, 920

In Praprotnik, Justice O’Connor explained,

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27
28

2

There is no dispute in this case that the Chief of
Police was a final policymaker for the City of Chico with respect
to use of force by the City’s police officers.
16

1

“when a subordinate’s decision is subject to review by the

2

municipality’s authorized policymakers, they have retained the

3

authority to measure the official’s conduct for conformance with

4

their policies.”

5

“[i]f the authorized policymakers approve a subordinate’s

6

decision and the basis for it, their ratification would be

7

chargeable to the municipality because their decision is final.”

8

Id.

9

485 U.S. at 127.

Under such circumstances,

At the same time, the Supreme Court has unequivocally

10

and repeatedly emphasized that local governments can be held

11

responsible under § 1983 “when, and only when, their official

12

policies cause their employees to violate another person’s

13

constitutional rights.”

14

Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 405 (1997) (“To

15

the extent that we have recognized a cause of action under § 1983

16

based on a single decision attributable to a municipality, we

17

have done so only where the evidence that the municipality had

18

acted and that the plaintiff had suffered a deprivation of

19

federal rights also proved fault and causation.”).

20

Circuit has similarly recognized that a plaintiff “cannot, of

21

course, argue that the municipality’s later action (or inaction)

22

caused the earlier” use of force in the absence of “any pre-

23

existing policy.”

24

Cir. 2003), overruled on other grounds by, 543 U.S. 194 (2004).

Id. at 122; see also Bd. of Cnty.

The Ninth

Haugen v. Brosseau, 339 F.3d 857, 875 (9th

25

In this case, it is not a mere ratification, but rather

26

the Chief of Police’s pronouncement that Officer Bailey’s alleged

27

use of force was “in compliance with Department policy” that

28

gives rise to a Monell claim.

This is “tantamount to the
17

1

announcement or confirmation of a policy for purposes of Monell.”

2

Id. at 875.

3

use of force was “in compliance” with the City of Chico’s

4

policies is more than sufficient to raise a genuine issue of

5

material fact with respect to whether the City of Chico had a

6

policy of using the force Officer Bailey did in this case.

7

Although the finding was made after the incident, it constitutes

8

clear evidence from which a rational jury could infer that the

9

policy existed before the incident and therefore was the moving

The Chief of Police’s finding that Officer Bailey’s

10

force that caused the injury.

11

that Officer Bailey used excessive force and that the use of

12

force comported with the City of Chico’s policies, it would be

13

entirely consistent with Monell to hold the City of Chico liable

14

based on its policy promoting that use force.3

15

If the jury ultimately concludes

Accordingly, because plaintiff has raised a genuine

16

issue of material fact with respect to whether the City of Chico

17

had a policy that caused the constitutional violation alleged in

18

this case, the court must deny defendants’ motion for summary

19

judgment on plaintiff’s § 1983 Monell claim.

20

D.

21

Bane Act Claim - California Civil Code Section 52.1
The Bane Act gives rise to a claim when “a person . . .

22
23
24
25
26
27
28

3

Relying on plaintiff’s response to defendants’
statement of undisputed facts, defendants argue they are entitled
to summary judgment on plaintiff’s Monell claim because plaintiff
agreed it was “undisputed” that he “failed to provide evidence of
a policy . . . that in any way would have contributed to his
alleged injuries.” (See Pl.’s Resp. to Defs.’ Stmt. of
Undisputed Fact No. 47 (Docket No. 17-9).) Statements of
undisputed facts are not evidence and the court will not rely on
an erroneous concession in that type of document when it flatly
contradicts the evidence before the court.
18

1

whether or not acting under the color of law, interferes by

2

threat, intimidation, or coercion, or attempts to interfere by

3

threat, intimidation, or coercion” with a right secured by

4

federal or state law.

5

individual whose exercise or enjoyment of rights secured by the

6

Constitution or laws of the United States . . . has been

7

interfered with, or attempted to be interfered with, as described

8

in [the Bane Act] . . . may institute . . . a civil action for

9

damages . . . .”

Cal. Civ. Code § 52.1(a).

Id. § 52.1(b).

“[A]ny

The California Legislature

10

enacted the Bane Act in response to a rise in hate crimes, but it

11

is not limited to such crimes and does not require proof of

12

discriminatory intent.

13

Cal. 4th 820, 843 (2004) (holding that “plaintiffs need not

14

allege that defendants acted with discriminatory animus or

15

intent, so long as those acts were accompanied by the requisite

16

threats, intimidation, or coercion”).

17

See Venegas v. County of Los Angeles, 32

Generally, establishing an excessive force claim under

18

the Fourth Amendment also satisfies the elements of section 52.1.

19

See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th

20

Cir. 2014) (“The City defendants concede in their briefs to us

21

that a successful claim for excessive force under the Fourth

22

Amendment provides the basis for a successful claim under Section

23

52.1.”); Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013)

24

(“Cameron asserts no California right different from the rights

25

guaranteed under the Fourth Amendment, so the elements of the

26

excessive force claim under Section 52.1 are the same as under §

27

1983.”); cf. Venegas, 32 Cal. 4th at 843 (“We need not decide

28

here whether section 52.1 affords protections to every tort
19

1

claimant, for plaintiffs in this case have alleged

2

unconstitutional search and seizure violations extending far

3

beyond ordinary tort claims.”).

4

issues of material fact exist with respect to whether Officer

5

Bailey used excessive force in violation of the Fourth Amendment,

6

the court must also deny defendants’ motion for summary judgment

7

on plaintiff’s Bane Act claim.

8

E.

9

Accordingly, because genuine

Battery and Negligence Claims
For his battery and negligence claims under California

10

law, plaintiff must show that the force Officer Bailey used was

11

unreasonable.

12

(9th Cir. 2010) (“Under California law, a plaintiff bringing a

13

battery claim against a law enforcement official has the burden

14

of proving the officer used unreasonable force.”); Carter v. City

15

of Carlsbad, 799 F. Supp. 2d 1147, 1164 (S.D. Cal. 2011)

16

(“Negligence claims stemming from allegations of excessive force

17

by a police officer are also analyzed under the Fourth

18

Amendment’s reasonableness standard.”).

19

inquiry governing these state law claims is the same as the

20

inquiry governing plaintiff’s Fourth Amendment excessive force

21

claim.

22

(2013) (relying on the Graham reasonableness test when assessing

23

a negligence claim against police officers); Atkinson v. County

24

of Tulare, 790 F. Supp. 2d 1188, 1211 (E.D. Cal. 2011) (Wanger,

25

J.) (“Plaintiff’s claim for negligence and battery flow from the

26

same facts as the alleged Fourth Amendment Violation for

27

excessive force and are measured by the same reasonableness

28

standard of the Fourth Amendment.”) (citing Edson v. City of

See Bowoto v. Chevron Corp., 621 F.3d 1116, 1129

The reasonableness

See Hayes v. County of San Diego, 57 Cal. 4th 622, 632

20

1
2

Anaheim, 63 Cal. App. 4th 1269, 1272-73 (4th Dist. 1998)).
Plaintiff seeks to hold Officer Bailey liable under

3

common law battery and negligence for his use of force and the

4

City of Chico vicariously liable for Officer Bailey’s conduct.

5

California Government Code section 820 provides that, “[e]xcept

6

as otherwise provided by statute (including Section 820.2), a

7

public employee is liable for injury caused by his act or

8

omission to the same extent as a private person.”

9

Code § 820.

Cal. Gov’t

With respect to public entities, section 815(a)

10

provides that, “[e]xcept as otherwise provided by statute: A

11

public entity is not liable for an injury, whether such injury

12

arises out of an act or omission of the public entity or a public

13

employee or any other person.”

14

section 815.2(a), “[a] public entity is liable for injury

15

proximately caused by an act or omission of an employee of the

16

public entity within the scope of his employment if the act or

17

omission would, apart from this section, have given rise to a

18

cause of action against that employee or his personal

19

representative.”

20

Id. § 815(a).

Pursuant to

Id. § 815.2(a).

Defendants do not dispute that Officer Bailey could be

21

held liable for battery and negligence pursuant to section 820

22

and that the City of Chico could be held vicariously liable under

23

section 815.2(a).

24

grant their motion for summary judgment on plaintiff’s battery

25

and negligence claims because plaintiff failed to identify these

26

particular statutes in his Complaint.

27

any authority requiring plaintiff to plead the existence of these

28

commonly known statutes in order to allege cognizable state law

They nonetheless argue that the court should

21

Defendants have not cited

1

claims for battery and negligence.

2

the adequacy of plaintiff’s Complaint on a motion to dismiss.

3

While these statutes provide the legal framework for liability

4

against public employees and entities, defendants are not

5

entitled to summary judgment merely because the statutes are not

6

identified by their numbers in the Complaint.

7

Nor did defendants challenge

Because plaintiff has established a genuine issue of

8

material fact with respect to whether Officer Bailey used

9

excessive force, the court must deny defendants’ motion for

10
11

summary judgment on plaintiff’s battery and negligence claims.
F.

12

Evidentiary Objections
Defendants raise numerous objections to the evidence

13

plaintiff submitted in opposition to their motion for summary

14

judgment.

15

Churchill indicates he took of the incident and uploaded to

16

YouTube.

17

to defendants, the court should not consider the video because

18

it “is confusing, misleading and unfairly prejudicial because it

19

is heavily edited, it cuts at different stages of the incident

20

and includes time gaps” and “is not date stamped or timed

21

stamped.”

22

excessive force, video evidence is often the most helpful and

23

relevant evidence because it gives the jury an opportunity to

24

view what occurred and make factual findings without relying

25

exclusively on conflicting testimony.

26

free, and often encouraged, to ensure that their encounters with

27

the public are videoed and presumably those videos are “time

28

stamped” as defendants would prefer.

Defendants first object to the video that Dough

(Churchill Decl. ¶¶ 2-4 (Docket No. 17-8).)

(Defs.’ Reply at 5:5-8.)

22

According

With allegations of

Police departments are

1

Here, defendants either did not elect or did not have

2

the equipment necessary to video this incident.

As media

3

coverage in recent years confirms, bystanders increasingly use

4

their video cameras or cell phones to fill the void of recorded

5

interactions with the police and public.

6

challenge the accuracy and completeness of Churchill’s video at

7

trial, it is disingenuous to argue that it is prejudicial or

8

should be excluded because the technology used to record the

9

incident is not as advanced as the technology defendants could

While defendants can

10

have utilized.

11

objection to consideration of the first video for purposes of

12

summary judgment.

13

The court therefore overrules defendants’

Plaintiff obtained the second video from an anonymous

14

individual and therefore does not attempt to authenticate the

15

video with a declaration of the individual who recorded it.

16

Federal Rule of Evidence 901 provides that “the proponent must

17

produce evidence sufficient to support a finding that the item

18

is what the proponent claims it is” and that the evidence can be

19

in the form of testimony of a witness with knowledge that the

20

“item is what it is claimed to be.”

21

(b)(1).

22

an anonymous man who contacted him after the incident and that

23

the video accurately reflects the incident.

24

2-4 (Docket No. 17-7).)

25

prior to and during his second deposition and never suggested

26

that the video was not an accurate recording of the incident.

27

(July 23, 2015 Bailey Dep. at 87:12-89:7.)

28

finds that plaintiff has sufficiently authenticated the video

Fed. R. Evid. 901(a),

Plaintiff indicates that the video was given to him by

(Rosales Decl. ¶¶

Officer Bailey also viewed the video

23

The court therefore

1

for purposes of opposing defendants’ motion for summary judgment

2

and overrules defendants’ objection to consideration of that

3

video.

4

11-05661 MEJ, 2013 WL 1191229, at *6 (N.D. Cal. Mar. 21, 2013)

5

(overruling objection to an anonymously recorded video when

6

plaintiffs could authenticate the video with their testimony “as

7

witnesses with knowledge of the events depicted in the video”).

Cf. Luong v. City & County of San Francisco, Civ. No.

8
9

Without citing a single case supporting their position,
defendants also object to the declarations plaintiff submitted

10

because they were signed under penalty of perjury “under the laws

11

of the State of California.”

12

general oath under penalty of perjury without reference to any

13

state or federal law, see 28 U.S.C. § 1746(2), plaintiff’s

14

reference to state law is not fatal and defendants’ objection is

15

overruled.

16

Because 28 U.S.C. § 1746 permits a

In what might be defendants’ most frivolous objection,

17

defendants seek to exclude evidence because it “violated” the

18

protective order signed by the magistrate judge.

19

order provided that a party must file a motion to seal any

20

documents that were the subject of the protective order prior to

21

filing them.

22

filed a motion to seal exhibits subject to the protective order

23

and the court, in a written and reasoned decision, denied that

24

motion.

25

plaintiff for failing to persuade the court that the documents

26

should be sealed.

27

significance to the protective order.

28

the protective order by filing a request to seal the documents,

The protective

In compliance with the protective order, plaintiff

(See Docket No. 16.)

Defendants attempt to fault

Defendants attribute far too much

24

Plaintiff complied with

1

(Docket No. 14), and this court determined that the public had a

2

right to view the documents at issue.

3

Lastly, the court overrules defendants’ objection to

4

the Statement of Chico Administrative Services Director, (Pl.’s

5

Ex. F (Docket No. 17-4)), as moot because the court did not rely

6

on the document in denying defendants’ motion for summary

7

judgment.

8

notice exonerating Officer Bailey because Rule 801’s bar against

9

hearsay will not render the evidence inadmissible at trial.

10

The court also overrules defendants’ objection to the

IT IS THEREFORE ORDERED that defendants’ motion for

11

summary judgment be, and the same hereby is, DENIED.

12

Dated:

October 20, 2015

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