Mann et al v. City of Sacramento et al

Filing 98

ORDER signed by Senior Judge William B. Shubb on 2/24/21 DENYING 92 defendants' Motion to Dismiss. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT MANN, SR., et al.
Plaintiffs,

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No. 2:17-cv-01201 WBS DB

v.
CITY OF SACRAMENTO, et al.

ORDER RE: DEFENDANTS’ AMENDED
MOTION TO DISMISS

Defendants.

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Plaintiffs Robert Mann Sr. (“Robert”), Vern Murphy-Mann

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(“Vern”), and Deborah Mann (“Deborah”) (collectively,

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“plaintiffs”) brought this action against defendants City of

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Sacramento, the Sacramento Police Department, Samuel D. Somers

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Jr. (“Chief Somers”), John C. Tennis (“Officer Tennis”), and

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Randy R. Lozoya (“Officer Lozoya”) (collectively, “defendants”),

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under 42 U.S.C. § 1983, seeking damages arising from the killing

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of their brother, Joseph Mann (“Joseph”), by Officers Tennis and

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Lozoya on July 11, 2016.1

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(See Compl. (Docket No. 1).)

Plaintiffs’ original complaint listed two additional
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Plaintiffs claimed that, by shooting and killing Joseph, Officers

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Tennis and Lozoya had deprived them of their right of intimate

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association with their brother under the First and Fourteenth

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Amendments in violation of 42 U.S.C. § 1983.2

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id.)

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(See generally

Defendants moved to dismiss plaintiffs’ complaint for

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failure to state a claim upon which relief may be granted.

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Docket No. 12); Fed. R. Civ. P. 12(b)(6).

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the court granted defendants’ motion as to plaintiffs’ § 1983

(See

On September 19, 2017,

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claim for loss of companionship under the Fourteenth Amendment,

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as the Ninth Circuit has expressly limited such claims to parents

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and children.

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F.2d 280, 283-84 (9th Cir. 1991).

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motion as to plaintiffs’ claim under the First Amendment,

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however, holding that, under applicable Supreme Court and Ninth

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Circuit case law, plaintiffs had adequately alleged a § 1983

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claim for deprivation of their First Amendment right to

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association.

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Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987); IDK,

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Inc. v. Clark Cty., 836 F.2d 1185, 1194 (9th Cir. 1988).

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(See Docket No. 23); Ward v. City of San Jose, 967
The court denied defendants’

(See Docket No. 23); Bd. of Directors of Rotary

Defendants appealed to the Ninth Circuit, which issued
a memorandum opinion reversing this court’s decision as to

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siblings, Zachary Mann and William Mann, as plaintiffs. (See
Compl. ¶¶ 7-8.) However, the operative complaint no longer
includes Zachary and William as plaintiffs. (See First Amended
Compl. (“FAC”) (Docket No. 59).)
Plaintiffs also alleged a claim--not at issue in this
Order--for municipal and supervisory liability against the City,
the Sacramento Police Department, and Chief Somers. (See FAC
¶¶ 107-112.)
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plaintiffs’ claims under the First Amendment.3

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of Sacramento, 748 F. App’x 112 (9th Cir. 2018) (“Mann II”).

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Ninth Circuit explained that plaintiffs had failed to plead

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sufficient facts to establish a violation of an “intimate

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association” right protected under the First or Fourteenth

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Amendments:

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See Mann v. City
The

Plaintiffs did not allege that their
relationships with Joseph involved marriage,
child rearing, or cohabitation, as in [Lee
v. City of Los Angeles, 250 F.3d 668 (9th
Cir. 2001)] or [Keates v. Koile, 883 F.3d
1128 (9th Cir. 2018)]. Nor did they allege
specific facts about the ‘objective
characteristics’ of their relationships with
Joseph to show that they were nonetheless
the sort of relationships that ‘warrant
constitutional protection.’

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Mann II, 748 F. App’x at 115 (quoting Rotary Club, 481 U.S. at

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545-46).

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could plead sufficient facts to satisfy the standards for

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intimate association set forth in Rotary Club, relief would be

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foreclosed under Ward v. City of San Jose, 967 F.2d 280 (9th Cir.

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1991).”

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cohabitating siblings do not possess a cognizable liberty

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interest in their brother’s companionship.

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analyze the right of intimate association in the same manner

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regardless whether we characterize it under the First or

“Moreover,” the court continued, “even if plaintiffs

Id.

The court noted that Ward had held that adult, non-

See id.

“Because we

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The Ninth Circuit noted that, although this court had
not “explicitly address qualified immunity,” the Ninth Circuit
had “jurisdiction over this interlocutory appeal of the district
court’s denial of qualified immunity, Mitchell v. Forsyth, 472
U.S. 511, 525 (1985), as well as such issues are ‘inextricably
intertwined’ with the qualified immunity issue, Lum v. City of
San Joaquin, 584 F. App’x 449, 450-51 (9th Cir. 2014).” Mann II,
748 F. App’x at 113.
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Fourteenth Amendments, Ward necessarily rejected any argument

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that adult, non-cohabitating siblings enjoy a right to intimate

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association.”

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this court to consider whether to grant plaintiffs leave to amend

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their complaint.

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Id.

The Ninth Circuit then remanded the case to

See id.

On remand, this court granted plaintiffs leave to

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amend, and plaintiffs timely filed a First Amended Complaint

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(“FAC”), adding a number of allegations related to their

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relationship with Joseph and to Joseph’s living situation in the

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months preceding his death.

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again moved to dismiss the complaint, arguing that, even with

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plaintiffs’ amendments, the complaint still failed to state a

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claim for relief upon which relief may be granted.

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No. 61); Fed. R. Civ. P. 12(b)(6).

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granted defendants’ motion.

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II’s statement that “even if plaintiffs could plead sufficient

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facts to satisfy the standards for intimate association set forth

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in Rotary Club, relief would be foreclosed . . . [because Ward]

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held that adult, non-cohabitating do not possess a cognizable

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liberty interest in their brother’s companionship,” Mann II, 748

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F. App’x at 115 (emphasis added) (internal citations and

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quotation marks omitted), the court held that the FAC failed to

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state a § 1983 claim under the First Amendment because it failed

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to adequately allege that Joseph cohabitated with any of the

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plaintiffs at the time of his death.

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(See Docket No. 59.)

Defendants

(See Docket

On March 13, 2019, the court

(See Docket No. 70.)

Based on Mann

(See Docket No. 70.)

Plaintiffs then appealed to the Ninth Circuit.

(See

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Docket No. 72.)

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memorandum opinion, which again reversed the decision of this

On April 30, 2020, a new panel issued a

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court.

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(9th Cir. 2020) (“Mann III”).

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Mann II’s statement that Ward would foreclose plaintiffs’ § 1983

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claim under the First Amendment “even if” they had pled

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sufficient facts to satisfy Rotary Club was dicta, because Ward

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neither created a cohabitation requirement nor purported to

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govern First Amendment claims.

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Valley Elec. Ass’n, Inc., 195 F.3d 534, 537 (9th Cir. 1999);

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Ward, 967 F.2d at 284).

See Mann v. Sacramento Police Dep’t, 803 F. App’x 142
The Ninth Circuit first noted that

See id. at 143 (citing Trent v.

Rather, Ward had only addressed

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Fourteenth Amendment intimate-association claims brought by adult

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siblings.

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See id.
The Ninth Circuit further stated that Mann II had

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recognized that cohabitation was “one of several objective

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indicia that courts may consider when assessing whether

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plaintiffs were deprived of their intimate-association right”

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under the First Amendment.

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Club, 481 U.S. at 545; Keates, 883 F.3d at 1236; Lee, 250 F.3d at

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685-86; Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th

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Cir. 1995)).

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plaintiffs’ First Amendment claim under the standard set forth in

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Rotary Club and its progeny.”

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See id. at 143-44 (citing Rotary

The court remanded the case “for consideration of

Id. at 144.

On remand, defendants renewed their motion to dismiss

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the FAC for failure to state a claim0, and the parties submitted

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updated briefs in light of Mann III.4

(See Defs.’ Am. Mot. to

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Officers Lozoya and Tennis filed the motion to dismiss,
which defendants City of Sacramento and Chief Somers joined in
its entirety. (See Docket No. 93.) Defendants City of
Sacramento and Chief Somers also joined the reply brief of
Officers Lozoya and Tennis in its entirety. (See Docket No. 96.)
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Dismiss (“Mot. to Dismiss”) (Docket No. 92); Pls.’ Opp’n (Docket

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No. 94); Defs.’ Reply (Docket No. 95).)

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I.

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Legal Standard
Federal Rule of Civil Procedure 12(b)(6) allows for

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dismissal when the plaintiff’s complaint fails to state a claim

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upon which relief can be granted.

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The inquiry before the court is whether, accepting the

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allegations in the complaint as true and drawing all reasonable

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inferences in the plaintiff’s favor, the complaint has stated “a

See Fed. R. Civ. P. 12(b)(6).

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claim to relief that is plausible on its face.”

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v. Twombly, 550 U.S. 544, 570 (2007).

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is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.”

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conclusions “can provide the framework of a complaint, they must

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be supported by factual allegations.”

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II.

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Bell Atl. Corp.

“The plausibility standard

Id.

“Threadbare

Although legal

Id. at 679.

Discussion
The court’s discussion of whether plaintiffs have

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adequately stated a § 1983 claim for deprivation of their First

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Amendment rights is complicated by the fact that the Mann II and

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Mann III decisions appear to be plainly contradictory.

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Mann II stated that the right of intimate association should be

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analyzed in the same manner regardless of whether it is

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characterized under the First or Fourteenth Amendments, and that

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Ward bars intimate association claims by adult, non-cohabitating

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siblings, Mann III stated that Ward did not create a cohabitation
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While

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requirement, and addressed only Fourteenth Amendment association

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claims, implying that the contours of an intimate association

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claim may differ depending on which amendment the claim is

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brought under.

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Because Mann III was decided more recently, this court

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will proceed according to the guidance set out in that decision.

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See Mann III, 803 F. App’x at 144.

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define exactly how far a claim for intimate association under the

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First Amendment extends, but the fact that the Ninth Circuit

Mann III did not purport to

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reversed this court’s dismissal of plaintiffs’ claim under the

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First Amendment (see Docket No. 70) implies that, at least in

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certain circumstances, the right of siblings to intimately

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associate falls within the First Amendment’s ambit.5

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This conclusion is supported by the Supreme Court’s

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opinion in Rotary Club.

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determining whether the relationship between members of the

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Rotary Club, an international fraternal organization of almost a

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million members, was sufficiently intimate to warrant protection

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under the First Amendment.

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The Court’s analysis began by recognizing that “the First

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Amendment protects those relationships, including family

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relationships, that presuppose ‘deep attachments and commitments

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to the necessarily few other individuals with whom one shares not

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only a special community of thoughts, experiences, and beliefs

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but also distinctively personal aspects of one's life.’”

There, the Court was tasked with

See Rotary Club, 481 U.S. at 539-40.

Rotary

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Were § 1983 claims by siblings categorically barred
under the First Amendment, the Ninth Circuit presumably would
have affirmed this court’s dismissal of plaintiffs’ claim.
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Club, 481 U.S. at 545-46 (quoting Roberts v. United States

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Jaycees, 468 U.S. 609, 622 (1984)).

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it had accorded constitutional protection to relationships

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“includ[ing] marriage, the begetting and bearing of children,

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child rearing and education, and cohabitation with relatives,” it

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indicated that this list was not exhaustive, and even pointed out

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that it had “not held that constitutional protection is

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restricted to relationships among family members.”

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(collecting cases).

Though the Court noted that

Id. at 545

According to the Court, other relationships,

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“including family relationships,” may also be protected to the

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extent that the “objective characteristics” of the relationship

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demonstrate that it is “sufficiently personal or private to

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warrant constitutional protection.”

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listed four factors it would consider in making such a

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determination: “size, purpose, selectivity, and whether others

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are excluded from critical aspects of the relationship.”

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546 (citing Roberts, 468 U.S. at 620).

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Id. at 545-46.

The Court

Id. at

Applying these factors to Rotary Club members, the

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Court concluded that the Club chapters’ size (which ranged from

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20 to 900 members), inclusive and public-facing nature and

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purpose, and relative lack of selectivity and exclusion weighed

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against affording constitutional protections.

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the Court noted that the Rotary Club’s Constitution directed

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local chapters to “keep a flow of prospects coming” to make up

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for attrition over time, undertake service projects to aid the

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community and the general public, and to keep membership open to

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all qualified members in the area.

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further noted that local chapters’ activities generally occurred
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Id.

Specifically,

See id. at 546-47.

The Court

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in the presence of strangers and in public places.

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See id.

In the wake of Rotary Club, the Ninth Circuit has held

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that the right to intimate association as guaranteed by the First

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Amendment extends to parents and children, see Lee v. City of Los

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Angeles, 250 F.3d 668 (9th Cir. 2001); Keates v. Koile, 883 F.3d

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1128 (9th Cir. 2018), as well to unrelated, cohabitating

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roommates, see Fair Housing Council of San Fernando Valley v.

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Roommate.com, LLC, 666 F.3d 1216, 1221 (9th Cir. 2012) (applying

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Rotary Club factors: “it’s hard to imagine a relationship more

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intimate than that between roommates” because the home forms the

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“center of our private lives”).

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circuit have further held that siblings, see Smith v. County of

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Santa Cruz, No. 17-CV-05095, 2019 WL 2515841, at *12 (N.D. Cal.

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June 17, 2019), and fiancées, see Graham v. County of Los

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Angeles, No. CV 10-05059 DDP (Ex), 2011 WL 3754749, at *2 (C.D.

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Cal. Aug. 25, 2017), have a cognizable liberty interest in

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intimate association and companionship under the First Amendment.

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See also Sanchez v. County of Santa Clara, No. 5:18-cv-01871-EJD,

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2018 WL 3956427, at **8-9 (N.D. Cal. Aug. 17, 2018) (holding that

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grandparents and grandchildren have a liberty interest in family

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integrity, without specifying whether this right arises under the

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First or Fourteenth Amendments, or both).

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Other district courts in this

Taken together, these cases show that the frequency and

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significance of the interactions among parties to the

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relationship at issue are key factors in determining whether the

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right to intimate association is protected under the First

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Amendment.

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afforded generally involve interactions that occur on a daily, or

The relationships to which protection has been

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almost daily basis, and often involve intensely private

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exchanges, whether it be because the parties live together, see

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Fair Housing Council, 666 F.3d at 1221, or because some element

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of caretaking or custody is present, see, e.g., Sanchez, 2018 WL

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3956427, at **8-9.

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As the Supreme Court stated in Smith v. Org. of Foster

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Families for Equality and Reform, 431 U.S. 816, 844 (1977), a

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case where the Court suggested (though did not decide) that

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foster parents and children have a constitutionally-protected

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liberty interest in their association, “the importance of the

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familial relationship . . . stems from the emotional attachments

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that derive from the intimacy of daily association, and from the

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role it plays in ‘promot(ing) a way of life’ through the

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instruction of children, as well as from the fact of blood

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relationship.”

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Likewise, in Fair Housing Council, the Ninth Circuit

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reasoned that roommates are entitled to protection under the

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First Amendment because they have “unfettered access to the home”

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and thus “learn intimate details most of us prefer to keep

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private,” “note [their roommates’] comings and goings,” and are

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“fully exposed to [their roommates’] belongings, activities,

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habits, proclivities, and way of life.”

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666 F.3d at 1221.

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the plaintiff grandparents had sufficiently alleged a liberty

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interest in associating with their grandchildren because they

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“spent a substantial amount of time living with” their

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grandchildren and had “established a long standing custodial

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relationship such that they were an existing family unit.”

Fair Housing Council,

And in Sanchez, the district court held that

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Sanchez, 2018 WL 3956427, at **8-9.
A.

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Analysis of Factors under Rotary Club and its Progeny
Applying the factors outlined in Rotary Club and its

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progeny to the allegations in the FAC, it is clear that

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plaintiffs’ alleged relationship with Joseph was more intimate

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and personal than that between members of a large fraternal

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organization like the Rotary Club.

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Club factor, size, each plaintiff’s relationship with his or her

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brother involved only two people, and was enmeshed within a

In terms of the first Rotary

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“tightknit family unit” of five children and two parents.

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FAC ¶ 17.)

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Ninth Circuit has granted protection under the First Amendment,

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see, e.g., Lee, 250 F.3d at 685-86 (holding that parent and child

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have a right to intimately associate under the First Amendment),

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than the relationship among members of local Rotary Club

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chapters, which could range in size anywhere from 20 to 900

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members.

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(See

This is much more akin to relationships that the

See Rotary Club, 481 U.S. at 546.
Looking next to selectivity, the Supreme Court held

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that local Rotary Club chapters were not sufficiently selective

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because they had instructions to “keep a new flow of prospects

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coming” to make up for expected member attrition and gradually

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grow the membership, and to keep the chapter open to all eligible

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members in the area in order to ensure that the chapter was

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comprised of a cross-section of different professions and members

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of the community.

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with Joseph was limited by blood.

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844 (“the importance of the family relationship . . . stems from

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the emotional attachments that derive from the intimacy of daily

See id.

By contrast, plaintiffs’ relationship

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See id.; Smith, 431 U.S. at

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association . . . as well as from the fact of blood relationship

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(emphasis added)).

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shared intimate moments with their parents, or with plaintiffs’

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children (Joseph’s nieces and nephews), these shared experiences

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extended only to other members of plaintiffs’ nuclear family.

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(See FAC ¶¶ 17-19, 26.)

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While plaintiffs allege that they and Joseph

Defendants argue that the relationship between siblings

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cannot be characterized as “selective” because siblings, unlike

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spouses, fiancées, or parents, do not choose to form their

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relationship--that choice is made by their parents, for them.

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(See Mot. to Dismiss at 12 (citing Rode v. Dellarciprete, 845

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F.2d 1195, 1204-05 (3d Cir. 1988)).

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to form a relationship, defendants argue, there can be no

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“liberty” interest in intimate association to protect under the

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First Amendment.

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Without “affirmative choice”

(See Defs.’ Reply at 1-3.)

While it is true that nobody chooses whom their blood

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siblings will be, siblings (particularly adult siblings)

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certainly have a choice in whether they will associate with one

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another, and how intimate that association will be.

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plaintiffs’ allegations describe the efforts they and Joseph made

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to maintain an intimate relationship after they moved out of

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their childhood home.

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Joseph moved into his own place, plaintiffs allege that he

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continued to regularly visit them and play with his nieces and

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nephews, and that he regularly participated in family get-

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togethers.

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sister, Vern, to move in and live with him.

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Here,

Between 1986 and approximately 2009, after

(See id. at ¶ 26.)

Around 1999, Joseph invited his
(See id. at ¶ 27.)

Following the death of their mother, in 2011, when
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Joseph began to exhibit symptoms of mental illness, plaintiffs

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Robert and Vern each invited Joseph into their homes, and he

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split his living arrangements between them.

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Plaintiffs further allege that they visited Joseph when he would

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occasionally become hospitalized due to his mental illness, and,

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on occasions when Joseph would “stay out, at times for several

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days,” plaintiffs would search for Joseph at places he habitually

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frequented, and would bring him back to their homes to bathe,

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rest, and eat.

10

(See id. at ¶ 31.)

(Id. at ¶¶ 32-35.)

These allegations show that, even as plaintiffs began

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their own families, and even as Joseph’s deteriorating mental

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condition caused him to become more distant, plaintiffs actively

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chose to keep Joseph in their lives and engaged in activities

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emblematic of an intimate sibling relationship.

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2019 WL 2515841, at *12 (noting that high-school-age siblings

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were entitled to liberty interest in each other’s companionship

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in part because they continued to visit each other after moving

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into separate homes); Sanchez, 2018 WL 3956427, at **8-9 (holding

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that grandparents had protected liberty interest in associating

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with grandchildren because they had chosen to “spen[d] a

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substantial amount of time living” together and had “established

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a long standing custodial relationship such that they were an

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existing family unit”).

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demonstrate that the relationship between plaintiffs and Joseph

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was sufficiently selective to warrant protection under the Rotary

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Club standard.

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See Santa Cruz,

The allegations in the FAC therefore

See 481 U.S. at 546.

By the same token, plaintiffs and their brother also
“excluded [others] from critical aspects of the relationship” by
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sharing intimate experiences in a way that only siblings or

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parents and children can.

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Plaintiffs allege that they “grew up” with Joseph “as a tightknit

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family unit that lived, ate, played, and prayed together.”

5

FAC ¶ 17); Smith, 431 U.S. at 844.

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regularly and had dinner together, “during which they routinely

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discussed personal and religious matters.”

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Plaintiffs shared the same family home with Joseph until 1980.

9

(Id. at ¶ 26.)

10

See Rotary Club, 481 U.S. at 546.

(See

The family attended church

(See FAC at ¶ 18.)

Between 1986 and approximately 2009, Joseph regularly

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visited plaintiffs to play with their sons and daughters (his

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nieces and nephews) and participated in family get-togethers

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approximately once a week.

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experiencing symptoms of drug addiction in approximately 2015,

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plaintiffs allege that Robert encouraged and assisted Joseph in

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enrolling in Alcoholics Anonymous (“AA”) and Narcotics Anonymous

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(“NA”), and accompanied Joseph to meetings.

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Plaintiffs also visited Joseph when he would become hospitalized,

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supported him financially, and fed and housed him from 2015 up

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until his death.

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relationship between plaintiffs and Joseph in which each sibling

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shared “not only a special community of thoughts, experiences,

23

and beliefs but also distinctly personal aspects” of their lives.

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See Rotary Club, 481 U.S. at 546.

25

(Id. at ¶ 26-28.)

(See id. at ¶ 31.)

After Joseph began

(See id. at ¶ 31.)

These allegations reflect a

Next, the “purpose” of the plaintiffs’ relationship

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with their brother (to the extent a sibling relationship has a

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“purpose”) further supports a finding that the relationship is

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entitled to constitutional protection under the First Amendment.
14

1

See Rotary Club, 481 U.S. at 546.

2

between Rotary Club members, which largely existed to “produce an

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inclusive, not exclusive, membership,” undertake service projects

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to aid the community and the general public, “raise the standards

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of the members’ businesses and professions,” and to “improve

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international relations,” Rotary Club, 481 U.S. at 546,

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plaintiffs allege that their relationship with their brother

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served as an “intimate human relationship[]” that necessarily

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entailed “deep attachments and commitments.”

10

Unlike the relationship

(See FAC ¶ 104.)

In support of this conclusion, plaintiffs detail the

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efforts they and Joseph made to remain in each others’ lives as

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they reached adulthood and Joseph began to struggle with mental

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illness and drug addiction.

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as already discussed above, plaintiffs invited Joseph to family

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get-togethers approximately once per week, cultivated a

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relationship between Joseph and his nieces and nephews, attended

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NA and AA meetings with him, and “were in constant contact with

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[him] and made sure he knew he was welcome in their homes.”

19

id.)

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(See FAC ¶¶ 26-35.)

For instance,

(See

Plaintiffs’ relationship with Joseph also served a

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caretaking purpose.

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symptoms arising from mental illness and drug addiction in the

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later years of his life.

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Joseph, Robert alleges that he encouraged and assisted Joseph in

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enrolling in AA and NA, and accompanied him to meetings.

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id.)

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hospitalized, supported him financially, fed him, and

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intermittently housed him up until his death.

Plaintiffs allege that Joseph struggled with

(See FAC ¶¶ 30-31.)

To help care for

(See

Plaintiffs also visited Joseph when he would become

15

(See id. at ¶ 33.)

1

Notably, plaintiffs state that they would search for Joseph at

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places he habitually frequented when he went missing for extended

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periods of time, and would bring him back to their homes, where

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he often stayed, to bathe, rest, and eat, indicating that

5

plaintiffs played a crucial role in looking out for Joseph’s

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well-being as he struggled with the symptoms of mental illness

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and addiction.

8

(See id. at ¶ 35.)

While these allegations do not establish that

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plaintiffs’ relationship with Joseph was “custodial,” the care

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plaintiffs allege they provided for Joseph reflects the type of

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intimate care and affection that exists among “existing family

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unit[s].”

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prong of the Rotary Club standard therefore weighs in favor of

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granting Joseph and plaintiffs’ relationship protection under the

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First Amendment.

16

See Sanchez, 2018 WL 3956427, at **8-9.

The “purpose”

See Rotary Club, 481 U.S. at 546.

Finally, the frequency and significance of the alleged

17

interactions between Joseph and plaintiffs indicate that their

18

relationship is entitled to protection.

19

they were in “constant contact” with Joseph, “made sure that he

20

knew he was welcome in their homes,” and provided care to him in

21

the months leading up to his death by allowing him into the most

22

private areas of their lives.

23

state that Joseph left belongings in their homes, indicating that

24

he expected to return upon his departure.

25

Plaintiffs allege that

(See FAC ¶¶ 29-35.)

Plaintiffs

(See id.)

Though, as this court has previously noted, these

26

allegations do not suffice to establish that Joseph “cohabitated”

27

with plaintiffs because they do not establish that Joseph had

28

independent access to plaintiffs’ homes, contributed to the
16

1

maintenance of one or more of their homes, or that he rarely

2

slept outside of their homes, (see Docket No. 70), Mann III made

3

clear that, while cohabitation is relevant to a relationship’s

4

status under the First Amendment, it is not necessary to

5

establish constitutional protection.

6

at 143.

7

an intimate relationship with Joseph by virtue of being

8

roommates, their allegations do evidence a relationship that was

9

similar to that of cohabitants in other ways.

See Mann III, 803 F. App’x

Even though plaintiffs cannot establish that they formed

See Fair Housing

10

Council, 666 F.3d at 1221.

11

that both plaintiffs and Joseph were exposed to intimate details

12

about each other which most of us would prefer to keep private,

13

as well as each other’s “belongings, activities, habits,

14

proclivities, and way of life,” as plaintiffs attended AA and NA

15

meetings with Joseph and brought him back to eat, bathe, and

16

sleep in their homes after being out on the street.

17

For example, the allegations show

See id.

In sum, taking the allegations in the FAC as true and

18

construing them in their most favorable light, as the court must

19

do on a motion to dismiss, see Twombly, 550 U.S. 544, 570, the

20

court finds that plaintiffs have satisfied the factors set forth

21

in Rotary Club and its progeny, and have therefore shown that

22

their interactions with Joseph were sufficiently personal and

23

intimate to warrant protection under the First Amendment.

24

Rotary Club, 481 U.S. at 545; Fair Housing Council, 666 F.3d at

25

1221.

26
27
28

B.

See

Direct and Substantial Interference with Plaintiffs’
Rights
Defendants present an additional argument that, even if
17

1

the court finds that plaintiffs have a right to intimate

2

association with Joseph under the First Amendment, their claim

3

must nevertheless fail because the allegations in the FAC do not

4

show that the officers acted “directly” against their

5

relationship with Joseph.

6

words, defendants argue that plaintiffs claims must fail,

7

regardless of the outcome of the court’s Rotary Club analysis,

8

because plaintiffs do not allege that Officers Tennis and Lozoya

9

were aware of Joseph’s sibling relationships when they shot and

10

killed him, and thus the Officers could not have acted with the

11

intent to deprive plaintiffs of their relationship with Joseph.

12

(See id.)

13

(See Mot. to Dismiss at 15.)

In other

Defendants cite to Zablocki v. Redhail, 434 U.S. 374

14

(1978) for the proposition that government actors cannot be

15

liable for incidentally burdening a plaintiff’s substantial

16

right; rather, the government actor must “directly and

17

substantially” interfere with that right.

18

at 10.)

19

statute, which prevented certain classes of Wisconsin residents

20

from marrying, violated those residents fundamental right to

21

marry under the due process clause of the Fourteenth Amendment.

22

See Zablocki, 434 U.S. at 387.

23

that it was not preventing states from imposing regulations which

24

incidentally affected the right to marry or established

25

reasonable prerequisites--only regulations that “directly and

26

substantially” interfered with the right to marry were

27

prohibited.

28

(See Mot. to Dismiss

In Zablocki, the Supreme Court held that a Wisconsin

In its opinion, the Court noted

See id.

However, Zablocki says nothing about what state of mind
18

1

a plaintiff must allege an officer had to maintain a § 1983 claim

2

that the officer deprived him of a relationship protected by the

3

First Amendment.

4

imposition of a requirement that an officer act with the

5

“specific intent” to deprive the plaintiff of his rights § 1983

6

claims brought under the Fourteenth Amendment.

7

of Fontana, 818 F.2d 1411, 1420 n.12 (9th Cir. 1987) (“[T]he

8

plaintiffs can state a section 1983 claim without further

9

alleging that the official was trying to break up their family.”

The Ninth Circuit has specifically rejected the

See Smith v. City

10

(citing Kelson v. City of Springfield, 767 F.2d 651 (9th Cir.

11

1985)); Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.

12

1992) (rejecting need to impose plaintiffs to “prove a wrongful

13

intent directed specifically at them” in § 1983 claim for

14

deprivation of relationship protected by the 14th Amendment).

15

Further, none of the cases in which the Ninth Circuit

16

has recognized the existence of a § 1983 claim for deprivation of

17

an intimate association right under the First Amendment has

18

required that plaintiffs allege that officers specifically

19

intended to deprive them of the protected relationship, or allege

20

that the officers acted “directly” against that relationship.

21

See Keates, 883 F.3d at 1236; Lee, 250 F.3d at 685-86.

22

If the Ninth Circuit intended for the lack of intent to

23

deprive plaintiffs of their constitutional rights to be an

24

independent bar to stating a § 1983 claim under the First

25

Amendment, there would have been no reason for the Mann III panel

26

to remand this case for further considerations under Rotary Club,

27

see Mann III, 803 F. App’x at 144, as the FAC contains no

28

allegations that the Officers intended to deprive the plaintiffs
19

1

of their constitutional rights, or that they even knew that

2

Joseph had siblings when they shot and killed him.

3

therefore finds defendants’ argument that plaintiffs’ claim under

4

the First Amendment must fail because they have not alleged a

5

specific intent to deprive them of their constitutional rights to

6

be without merit.

7

The court

Accordingly, the court finds that plaintiffs have

8

adequately pled a § 1983 claim for deprivation of their right to

9

intimate association under the First Amendment, and will deny

10
11
12

defendants’ motion to dismiss on that basis.
C.

Qualified Immunity
Defendants further argue that, even if plaintiffs have

13

alleged sufficient facts to state a claim under the First

14

Amendment, their claim must be dismissed because Officers Tennis

15

and Lozoya are entitled to qualified immunity from suit.

16

Mot. to Dismiss at 16-20.)

17

entitled to qualified immunity, the court considers: (1) whether

18

there has been a violation of a constitutional right; and (2)

19

whether the defendants’ conduct violated “clearly established”

20

federal law.

21

Cir. 2016) (citing Kirkpatrick v. Cty. Of Washoe, 843 F.3d 784,

22

788 (9th Cir. 2016)).

23

(See

To determine whether an officer is

Sharp v. Cty. of Orange, 871 F.3d 901, 909 (9th

The clearly established law inquiry “is an objective

24

one that compares the factual circumstances faced by the

25

defendant to the factual circumstances of prior cases to

26

determine whether the decisions in the earlier cases would have

27

made clear to the defendant that his conduct violated the law.”

28

See Sandoval v. Cty. of San Diego, 985 F.3d 657, 674 (9th Cir.
20

1

2021).

2

to a reasonable officer that his conduct was unlawful in the

3

situation he confronted.”

4

915 (9th Cir. 2012); see also Ziglar v. Abbasi, 137 S. Ct. 1843,

5

1866 (2017) (“Whether qualified immunity can be invoked turns on

6

the ‘objective legal reasonableness’ of the official's acts.”

7

(citation omitted)).

8
9

In other words, the court asks whether “it would be clear

Lacey v. Maricopa Cty., 693 F.3d 896,

The only argument defendants offer as to why Officers
Tennis and Lozoya are entitled to qualified immunity is that the

10

plaintiffs did not possess a “clearly established” right to

11

intimate association with Joseph under the First Amendment at the

12

time of Joseph’s death.6

13

Defendants cite to several out-of-circuit cases where courts have

14

granted qualified immunity on the ground that the plaintiffs did

15

not have a clearly established right to intimate association

16

under the First Amendment at the time of the conduct that gave

17

rise to the suit.

18

Common Pleas, 50th Judicial Dist., 971 F.3d 416 (3d Cir. 2020);

19

Gaines v. Wardynski, 871 F.3d 1203 (11th Cir. 2017).

20

(See Mot. to Dismiss at 16-20.)

See, e.g., Starnes v. Butler Cty. Court of

All of those cases upon which defendants rely involved

21

situations in which the plaintiffs bringing § 1983 claims were

22

also the individuals against whom the defendant’s conduct had

23

been directed.

24

officer with the Butler County Court of Common Pleas who alleged

25

that the court’s presiding judge had taken adverse employment

26
27
28

For instance, Starnes involved a probation

Defendants do not argue that they
qualified immunity under the first prong of
immunity analysis in either their motion to
(See Mot. to Dismiss at 16-20; Defs.’ Reply
21
6

are entitled to
the qualified
dismiss or reply.
at 6-10.)

1

actions against her in retaliation for her associating with her

2

boyfriend.

3

nothing about whether the proper focus of the court’s inquiry in

4

a wrongful death action should be on the constitutional rights of

5

the plaintiff or of the decedent.

6

See Starnes, 971 F.3d at 422-23.

Those cases say

In none of those cases were the plaintiffs surviving

7

family members of individuals killed by police officers.

8

cases, the Ninth Circuit has indicated that the proper focus of

9

the court’s inquiry is on the constitutional rights of the

In such

10

decedent, not those of the decedent’s potential relatives, such

11

as parents or siblings.

12

1140 (9th Cir. 2008) (“Thus, whether [defendant] is entitled to

13

qualified immunity . . . turns on whether [plaintiffs] can

14

present facts to the district court that would justify a jury

15

finding that [defendant] acted with an unconstitutional purpose

16

to harm [the decedent].”).

17

See Porter v. Osborn, 546 F.3d 1131,

The relevant question for the court under the second

18

prong of the qualified immunity analysis here is therefore

19

whether a reasonable officer would have known that his conduct

20

violated Joseph’s clearly established rights, not those of the

21

plaintiffs.

22

Cal. 2017) (Nunley, J.) (rejecting officers’ assertion that they

23

were entitled to qualified immunity from survivors’ First

24

Amendment intimate association claims under the second prong

25

because “qualified immunity does not give an officer who engages

26

in conduct that was patently unconstitutional when committed a

27

get-out-of-liability-free card because there is ‘some lingering

28

ambiguity’ as to which constitutional provision ‘applies in this

See Kaur v. City of Lodi, 263 F. Supp. 3d 947 (E.D.

22

1

precise context,’ or whether he has managed to violate several

2

constitutional provisions at once” (citing Harris v. City of

3

Circleville, 583 F.3d 356, 367 (6th Cir. 2009)).

4

Since controlling Ninth Circuit precedent indicates

5

that the court must assess whether the Officers’ conduct violated

6

Joseph’s clearly established constitutional rights, and

7

defendants do not argue that a reasonable officer would have

8

thought that Officers Tennis and Lozoya’s actions were lawful as

9

to Joseph under the second prong, (see Defs.’ Reply at 10 (Docket

10

No. 95) (“this motion does not assert a reasonable officer could

11

have deemed the shooting lawful”), the Officers’ request for

12

qualified immunity must be denied.

13

F.3d 829, 837 (9th Cir. 2013) (affirming district court’s denial

14

of qualified immunity where district court did not analyze the

15

second qualified immunity prong, because defendants had not

16

argued that they were entitled to qualified immunity on that

17

basis).

18

See George v. Morris, 736

IT IS THEREFORE ORDERED that defendants’ motion to

19

dismiss (Docket No. 92) be, and the same hereby is, DENIED.

20

Dated:

February 24, 2021

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