Fleming v. Clark

Filing 129

ORDER by Magistrate Judge Bernard Zimmerman granting in part and denying in part (112) Motion for Summary Judgment; denying (120) Motion for Summary Judgment in case 3:09-cv-01613-BZ (bzsec, COURT STAFF) (Filed on 9/8/2010)

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Fleming v. Clark et al Doc. 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. NADIA CLARK, et al., Defendant(s). v. NADIA CLARK, et al., Defendant(s). VICTOR JONES, Plaintiff(s), NOVENDER FLEMING, Plaintiff(s), ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C09-1613 BZ and Consolidated Case No. C09-4757 BZ SUMMARY JUDGMENT ORDER This civil rights action arises out of an Oakland police investigation of suspected marijuana cultivation at the home of plaintiffs Novender Fleming and Victor Jones. Plaintiffs allege four Fourth Amendment violations: (1) the investigation was not pursuant to a warrant supported by probable cause (fifth cause of action), (2) the Oakland police did not comply with knock-and-announce requirements (first cause of action), 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (3) the Oakland police used excessive force in detaining plaintiffs (second cause of action) and (4) the Oakland police unreasonably seized one of Jones' firearms (fourth cause of action). Additionally, plaintiffs bring a Monell claim against the City of Oakland for failing to properly train police officers regarding California's medical marijuana laws (sixth cause of action). Finally, plaintiffs allege a First Amendment violation (third cause of action) and various state law torts (seventh, eighth, ninth, tenth and eleventh causes of action). For the reasons set out below, plaintiffs' motion for summary judgment is DENIED, and defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Statement of Facts Plaintiff Victor Jones ("Jones") is a 60 year old man with gout.1 Pursuant to California law, he received physician approval to grow marijuana for medical purposes in approximately 1998. Oakland, California. Jones resides at 1078 55th Street in Plaintiff Novender Fleming ("Fleming") was one of his visitors at the time the warrant was executed. On September 2, 2008, the Oakland Police Department received information from a confidential informant that marijuana cultivation was taking place at Jones' residence. To verify the information, Officers Clark and Boracio went to an undisclosed location to view Jones' yard. From this location, Officers Clark and Barocio claim they saw, with "a clear and unobstructed" view of Jones' yard, two large marijuana plants 1 28 Unless otherwise noted, the facts are not in dispute. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and ten to fifteen small marijuana plants. Plaintiffs, however, assert that there were only six marijuana plants and that Officer Clark told Jones she had found six plants. On September 2, Officer Clark applied for a search warrant for the house and submitted an affidavit to an Alameda County Superior Court Judge describing her observations of Jones' residence and stating that based on her training and experience she believed its occupants were illegally cultivating marijuana. On September 3, the warrant issued. The warrant authorized Oakland Police Officers to enter and search the "rooms, attics, basements, containers and other parts of the residence." At approximately 4:00 p.m. on September 3, seven Oakland Police Officers (Officers Clark, McMillan, Gerrans, Miller, Thompson, Vergara and Sergeant Ortiz) went to Jones' residence to serve the search warrant. Officer Clark announced the presence of the police by knocking on the metal security gate outside the residence and yelling "Oakland Police Department, Search Warrant." About ten seconds after announcing their presence, Officers Clark, McMillan and Gerrans heard movement inside the house, but no one opened either the metal security gate or an inner wooden door. At that point, Clark testified, she feared that people inside the residence were arming themselves or destroying evidence, so she ordered McMillan to break down the metal security gate. McMillan was not able to After a few attempts Officers immediately break open the security gate. Jones came to the gate from the inside of his house. Clark and Gerrans pointed their guns at Jones. 3 Fleming came to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the door at the same time as Jones, but she was not visible to the police officers. Jones yelled to the officers that he Fleming attempted to open could not open the security gate. the security gate, but was hit on the hand with "hook and key" instruments, devices used to forcibly open doors, while McMillan was trying to break it open. While Gerrans states that he saw someone trying to open the security gate from the inside and yelled "stand away from the door," Fleming claims the police never told her to stand away from the door. Eventually, McMillan broke open the door. Once the police officers entered the residence, Jones and Fleming were handcuffed and held at gun point while the officers conducted a "cursory search" to secure the premises. During the search, Officer Clark found a loaded .38 caliber revolver, which she confiscated. While Officer Clark claims that Jones and Fleming were released from handcuffs and not held at gunpoint after the cursory search was completed in about five minutes, plaintiffs claim they were handcuffed and held at gunpoint for forty-five minutes to an hour. Officer Clark found six marijuana plants in the backyard. Jones told Clark he had a "current cannabis grower's permit" and showed it to police officers.2 Additionally, Jones told Clark that the revolver was unregistered and had belonged to his deceased wife. charges were filed. Defendants now move for summary judgment, and plaintiffs Jones did not introduce a permit or marijuana identification card into evidence. 4 2 No one was arrested at the scene and no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cross-move for summary judgment on their excessive force claims and their Monell claim against the City of Oakland. Legal Standard QUALIFIED IMMUNITY Plaintiffs allege three discrete constitutional violations, and defendants raise the defense of qualified immunity to each allegation. To resolve a claim of qualified immunity, a Court must determine (1) whether the plaintiff has proven a violation of a constitutional right and (2) whether that right was clearly established. S.Ct. 808, 818 (2009). Pearson v. Callahan, 129 It is within the Court's discretion to Id. When determining begin with the first or second factor. whether an officer's conduct violated a constitutional right, the facts are viewed in the light most favorable to plaintiff. Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009). The court must determine "whether the preexisting law provided the defendants with fair warning that their conduct was unlawful." Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 113637 (9th Cir. 2003) (internal quotes omitted). Whether the right is clearly established is judged as of the date of the alleged incident and is a pure question of law. Phillips v. Hust, 477 F.3d 1070, 1079 (9th Cir. 2007). However, any genuine issues of material fact concerning the underlying historical facts of what the officer knew or what he did are questions of fact for the jury. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995). I. PROBABLE CAUSE TO INVESTIGATE MARIJUANA CULTIVATION 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. Plaintiffs claim that the Oakland police's execution of the search warrant violated the Fourth Amendment because the warrant was not supported by probable cause. Specifically, they claim that the application did not establish that Jones' cultivation of marijuana was unlawful given that California had partially legalized marijuana in the Compassionate Use Act of 1996 ("CUA")3 and the Medical Marijuana Program Act ("MMP").4 The parties agree that Officer Clark swears she saw marijuana plants in plaintiffs' backyard prior to applying for a search warrant, and that growing marijuana is illegal in California unless the cultivator possesses a physician's recommendation. Since the Oakland police were investigating a possible violation of California Law, probable cause analysis begins California Health and Safety Code 11362.5(d) provides that statutes prohibiting possession and cultivation of marijuana, "shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." In 2003, the California Legislature passed the MMP, which established a voluntary identification card system that allows law enforcement officials to easily identify authorized medical users. See California Health and Safety Code 11362.71(e). In full, California Health and Safety Code 11362.71(e) provides: No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article. 4 3 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with the elements of the state crime they were investigating. See Brown v. Gossett, 2006 WL 213732 at *5 n.2 (N.D. Cal. 2006). California law treats the CUA as having established nothing more than an affirmative defense to a marijuana crime. See People v. Mower, 28 Cal.4th 457, 470 (2002); People v. Fisher, 96 Cal.App.4th 1147, 1151-52 (2002). In People v. Fisher, the Court of Appeal affirmed the validity of a search conducted pursuant to a warrant issued after police had observed marijuana growing in defendant's yard. Although defendant had advised the police that he had a permit to grow marijuana before they conducted the search, the Court ruled that the possibility that the defendant might have an affirmative defense were he charged did not negate probable cause for issuing the warrant. reached similar conclusions. Other federal courts have See Rolon v. L. A. Cnty., 2008 WL 4960442 (C.D. Cal. 2008); Wilson v. City of Merced, 2008 WL 4737159 (E.D. Cal. 2008). Such rulings are in accord with the principle articulated by the United States Supreme Court in Virginia v. Moore, 553 U.S. 164 (2008), that whether a search is reasonable under the Fourth Amendment does not necessarily turn on defenses available under state law. Id. at 170-172. Additionally, accepting plaintiffs' argument would place a heavy burden on law enforcement. While plaintiffs argue that defendants should have somehow "checked" whether they were authorized to cultivate marijuana prior to getting a search warrant, plaintiffs did not explain in either their papers or in open court how defendants would perform this check. At oral argument, counsel for plaintiffs suggested that the police 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 should have asked Jones whether he had physician's approval to grow marijuana prior to applying for a search warrant. This strategy, however, would be counterproductive if their suspect was not growing marijuana legally. At argument, defendants asserted and plaintiffs did not dispute, that there is no method of checking for a medical marijuana permit by name or address and that the creation of such a process could raise medical privacy issues. See generally, Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use at 6, available at: http://www.ag.ca.gov/cms_attachments/press/pdfs/ n1601_medicalmarijuanaguidelines.pdf. Accordingly, the Court GRANTS defendants' summary judgment motion on plaintiffs' claim that their residence was searched pursuant to a warrant not supported by probable cause. Moreover, since plaintiffs' improper search warrant claim was the basis for their Monell claim, the Court also GRANTS Oakland's motion for summary judgment on plaintiffs' Monell claim. II. EXCESSIVE FORCE CLAIMS Plaintiffs bring two Fourth Amendment excessive force claims. Plaintiffs first argue that the Oakland police waited an unreasonably short time between knocking and announcing and breaking Jones' security gate. Fleming's hand was injured Second, while Oakland police were breaking open the gate. Plaintiffs argue that they were unreasonably held in handcuffs at gunpoint for approximately one hour. In response, defendants claim that plaintiffs were only held in handcuffs at gunpoint during a five minute cursory search during which the 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 police secured the residence, and that after the cursory search the plaintiffs were released. A. IMPROPER KNOCK AND ANNOUNCE In determining whether the execution of a search warrant meets the Fourth Amendment's reasonableness standard, the Supreme Court has "consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." Ohio v. Robinette, 519 U.S. 33, 39 (1996); see also United States v. Banks, 540 U.S. 31, 35-36 (2003). One requirement incorporated into the Fourth Amendment reasonableness standard, though, is the common law requirement that officers knock and announce their presence and then wait either to be refused entry into a residence or until exigent circumstances arise. Wilson v. Ark., 514 U.S. 927, 934 (1995). Exigent circumstances include the risk that evidence of a crime will be destroyed while officers wait. 38. This is one of those cases where the issue of whether the police waited a reasonable period of time before breaking down the door, given the totality of the circumstances, is appropriate for jury disposition. 1025, 1026 (9th Cir. 2008). Howell v. Polk, 532 F.3d See Banks, 540 U.S. at Unlike Banks, in which the Court found a 15-20 second wait period to be reasonable where the officers were investigating the sale of cocaine, here the officers had only established probable cause to believe that marijuana was being grown illegally. The facts in Officer Clark's affidavit do not establish probable cause to believe that defendants were engaged in the sale of drugs. 9 Moreover, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cocaine is easily flushed down a drain, while marijuana plants are not. See United States v. Maher, 185 F.Supp.2d 826, 832 See (W.D.Mich. 2001) (marijuana plants not easily disposable). also Banks, 540 U.S. at 41 ("police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram."). There is also a dispute over whether the noises defendants heard sounded as though the plaintiffs were arming themselves or trying to dispose of evidence or whether they sounded as though the plaintiffs were coming to the door. Finally, there is a dispute over whether plaintiffs approached the door while it was being broken down after being ordered to do so, as plaintiffs claim, or whether defendants told plaintiffs to back away from the door. Finding that defendants as a matter of law could knock down the front door once they heard movement inside the house, as defendants suggest, could eviscerate the knock and announce requirement. Since police ordinarily are required to announce their entry and ask the occupants to open the door, if every movement inside the house allows the police to infer that evidence is being disposed of or that the occupants are arming themselves, the door could be broken down in virtually ever instance. Clearly, that is not what the Supreme Court had in mind when it ruled in Banks. Accordingly, the Court DENIES defendants' motion for summary judgment on plaintiffs' first cause of action. B. UNREASONABLE USE OF HANDCUFFS AND GUNS To determine whether the Oakland police's use of force was reasonable under the circumstances, this Court must balance 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "the nature and quality of the intrusion on a person's liberty with the countervailing governmental interests at stake." Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007) (citations omitted). In performing this calculus, the court must "assess the quantum of force used" and then "measure the governmental interests at stake" by considering "(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight." Id. (citations omitted). Because cases involving police misconduct almost always involve disputed factual contentions and turn on credibility determinations, the Ninth Circuit has "held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003) (citing Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (citing several cases)); see also Davis, 478 F.3d at 1054-55 (stating that these "cases almost always turn on a jury's credibility determinations"). Here, there is not much evidence to support defendants' position. Seven armed officers were investigating the cultivation of 6-10 marijuana plants, which cultivation might be legal in California. There is no suggestion that the officers believed the occupants of the building posed a threat to officer safety or that they would actively resist arrest or attempt to flee. And the facts of what happened inside the Plaintiffs claim that they house are materially in dispute. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were handcuffed and held at gunpoint for forty-five minutes to an hour. Defendants claim that the search took only five Plaintiff minutes and that the handcuffs were then removed. Jones asserts that he was forced into signing an affidavit that he had 3 illegal plants because he was being held handcuffed and at gunpoint. Defendants assert that Jones was not handcuffed or being held at gunpoint at the time he was being questioned and that the statement only contained the information he gave them. Since there are several disputed issues of fact regarding the length of the search, the use of handcuffs and the use of guns, the Court finds this issue inappropriate for disposition on summary judgment and therefore DENIES plaintiffs' and defendants' motions. III. First Amendment Claim Defendants moved for summary judgment on plaintiffs' First Amendment claim summarily arguing that the claim is unclear and barred by qualified immunity. Plaintiffs declined to respond to defendants argument or defend their third cause of action. The Court agrees that the claim is entirely unclear and defendants' motion for summary judgment on this claim is GRANTED. IV. State Torts At the hearing, plaintiffs announced that they had dismissed their claim for conversion. Since plaintiffs did not oppose defendants' motion for summary judgment as to their eighth, ninth, and tenth causes of action, the motion on those causes of action is GRANTED. Plaintiffs articulated at the 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hearing that their negligence claim essentially dovetails with their claim for excessive force and unlawful entry under Section 1983. As I have found that those claims survive summary judgment, defendants' motion as to plaintiffs' eleventh cause of action is DENIED. Conclusion IT IS THEREFORE ORDERED AS FOLLOWS: 1. 2. Plaintiffs' motion for summary adjudication is DENIED. Defendants' motion for summary judgment is GRANTED as to plaintiffs' THIRD, FOURTH, FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, and TENTH causes of action. 3. The Court finds that the search of Plaintiff Jones's home was supported by probable cause. 4. Defendants' motion for summary judgment is DENIED as to plaintiffs' FIRST, SECOND, and ELEVENTH causes of action. DATED: September 8, 2010 Bernard Zimmerman United States Magistrate Judge g:bzall\-bzcases\Fleming v. Clark\SJ Order BZ FINAL VERSION 3.wpd 13

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