Holland v. City of San Francisco et al

Filing 103

ORDER by Judge Thelton E. Henderson granting in part and denying in part 81 Motion for Summary Judgment. (tehlc2, COURT STAFF) (Filed on 3/12/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 ELECIA HOLLAND, 6 7 8 Plaintiff, v. CITY OF SAN FRANCISCO, et al., 9 Defendants. NO. C10-2603 TEH ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT 11 For the Northern District of California United States District Court 10 12 This case, brought under 42 U.S.C. § 1983 and California law, arises out of the arrest 13 and strip search of Plaintiff Elecia Holland. Presently pending before the Court is a Motion 14 for Summary Judgment filed by Defendants the City of San Francisco, the County of San 15 Francisco, and their officers. Upon careful consideration of the parties’ papers and evidence, 16 and the arguments made by both parties at the March 6, 2013, hearing, the Court GRANTS 17 IN PART and DENIES IN PART Defendants’ Motion for Summary Judgment for the 18 reasons discussed below. 19 20 BACKGROUND 21 I. Factual Background 22 The facts, gleaned from the evidence submitted by both parties and construed in the 23 light most favorable to Holland, are as follows: 24 A. The Protest and Arrest 25 On the evening of May 26, 2009, Elecia Holland, together with her girlfriend, Aleada 26 Minton, participated in a march in protest of the California Supreme Court’s decision 27 upholding Proposition 8, which amended the California Constitution to provide that “[o]nly 28 marriage between a man and a woman is valid or recognized in California.” Cal. Const., art 1 I, § 7.5. The court’s decision had been issued earlier that day. Holland and Minton joined 2 the march around 5:30 p.m. at San Francisco’s City Hall. Together with the other protesters, 3 they marched and danced down Market Street to Yerba Buena Gardens, chanting “We’re 4 here! We’re queer! Get used to it!” and “Separate church and state!” 5 Upon reaching the Gardens, Holland stopped to talk to some friends while Minton 6 continued on into the Gardens.1 When Holland next saw Minton, police officers were 7 escorting her in handcuffs through the throng of protesters toward a paddy wagon. A group 8 of protesters followed the officers, chanting “Let her go!” Holland, eager to know where the 9 police were taking Minton, joined the crowd. The police officers formed a line along the curb to control the protesters and separate 11 them from Minton. Holland asked one of the officers in the line why Minton had been For the Northern District of California United States District Court 10 12 arrested and where they were taking her. When the officer did not respond, Holland repeated 13 her questions several times, growing upset and frustrated. The officers did not respond to her 14 repeated questions, and eventually, an officer told Holland to go back into the park. Holland 15 told the officer that she wanted to cross the street so that she could leave, but the officer said 16 that she could not. Standing on the curb in front of the crosswalk, Holland asked the officers 17 several times why she could not cross the street. The officers did not answer. 18 Evidence submitted by Defendants, and not contradicted by Holland’s evidence, 19 shows that Holland stepped into the crosswalk several times and that each time an officer 20 ordered her to get back onto the sidewalk. The last time Holland stepped off the sidewalk, 21 Officer John Burke physically guided her back onto it. 22 Immediately prior to her arrest, Holland was standing on the sidewalk and talking to 23 an officer when she looked up and saw Minton being put in the paddy wagon. Holland 24 raised her hands to her head and exclaimed, “Oh my gosh!” and her elbow struck Burke’s 25 shoulder. The next thing Holland knew, she was completely surrounded by police officers. 26 According to Holland, Burke and Officers Matthew Neves and Philip Papale grabbed her 27 1 Among these friends was Kris Gleason, who stayed with Holland until Holland was 28 arrested. 2 1 arms from behind, kicked her in the shins, kicked her off her feet, threw her face first onto 2 the ground, and put a knee on her head and neck. Defendants dispute whether the officers 3 kicked Holland in the legs, and generally dispute the amount of force that was used to take 4 Holland into custody. Once they had Holland down lying on her front in the street, the 5 officers handcuffed her arms behind her back, raised her to her feet, and led her to the paddy 6 wagon. As the police led Holland through the crosswalk, the crowd of protesters chanted, 7 “Shame on you! Shame on you!” and “Fuck the police and fuck Prop 8!” 8 B. The Strip Search 9 Holland was booked into the San Francisco County Jail at 425 Seventh Street at 8:16 11 Holland was taken to a small room with a curtain, where Deputy Jaculine Barnes ordered her For the Northern District of California United States District Court 10 p.m. For the next few hours, she was housed alone in a glass holding cell. At 11:20 p.m., 12 to enter the room by herself and remove her clothes. Once Holland was naked, Barnes 13 directed her to lift her breasts, lift her arms, open her mouth, stick out her tongue, and “bend 14 over and spread her stuff open.” Holland complied. 15 After the strip search and a health screening, Holland was returned to the same glass 16 holding cell where she initially had been housed. On the wall next to Holland’s cell was a 17 sign reading “Inmate to be housed alone.” A note in Holland’s arrest records contains the 18 instruction, “house alone.” (Ex. 16 to Green Dec.) Holland remained alone in the cell until 19 the next morning, when she was escorted to court. 20 At the court, Holland was placed in a cell with another inmate who told Holland that 21 she was there on a traffic warrant. Holland was in the cell at the court for approximately one 22 hour, after which a deputy informed her that her case had been dismissed. Holland was then 23 returned to the glass holding cell, where she remained, alone, until approximately 11:00 a.m., 24 when she was released. 25 26 II. Proceedings 27 Holland filed her initial complaint in this action on June 14, 2010. The Court granted 28 in part and denied in part Defendants’ motion to dismiss on December 7, 2010, and granted 3 1 Holland leave to amend with respect to the dismissed claims. On May 3, 2012, Holland filed 2 the operative first amended complaint, which sets out fifteen causes of action against the City 3 of San Francisco, San Francisco Chief of Police Heather Fong, the County of San Francisco, 4 San Francisco County Sheriff Michael Hennessey, and various officers. Holland’s claims 5 against City Defendants relate to her arrest; the claims against County Defendants relate to 6 her strip search. Defendants now request that the Court enter summary judgment in their 7 favor on all of Holland’s claims, arguing that their conduct did not violate any state or federal 8 law, and alternatively, that they are entitled to qualified immunity from certain claims. 9 11 For the Northern District of California United States District Court 10 LEGAL STANDARD Summary judgment is appropriate when “there is no genuine dispute as to any 12 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 13 56(a). Material facts are those that may affect the outcome of the case. Anderson v. Liberty 14 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is 15 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The 16 court may not weigh the evidence and must view the evidence in the light most favorable to 17 the nonmoving party. Id. at 255. 18 A party seeking summary judgment bears the initial burden of informing the court of 19 the basis for its motion, and of identifying those portions of the pleadings or materials in the 20 record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 21 Catrett, 477 U.S. 317, 323 (1986). If the moving party will have the burden of proof at trial, 22 it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 23 the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). 24 However, on an issue for which the opponent of summary judgment will have the burden of 25 proof at trial, the moving party can prevail merely by “pointing out to the district court . . . 26 that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 27 U.S. at 325. If the moving party meets its initial burden, the opposing party must then set out 28 4 1 specific facts showing a genuine issue for trial to defeat the motion. Anderson, 477 U.S. at 2 250. 3 4 DISCUSSION 5 I. Holland’s Arrest 6 A. False Arrest 7 Defendants argue that Holland’s state law false arrest and false imprisonment claim 8 should be dismissed because the officers had probable cause to arrest her. They also request 9 dismissal of her Fourth Amendment claim under 42 U.S.C. § 1983, to the extent that it is 11 For the Northern District of California United States District Court 10 premised on an arrest without probable cause. Section 246 of the California Penal Code defines false arrest or false imprisonment as 12 “the unlawful violation of the personal liberty of another.” Cal. Penal Code § 236. 13 California law does not grant a police officer governmental immunity for false arrest or false 14 imprisonment. O’Toole v. Superior Court, 140 Cal. App. 4th 488, 510 (2006). However, 15 California peace officers may not be held civilly liable for false arrest if “[t]he arrest was 16 lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the 17 arrest was lawful.” Id. § 847(b). The terms “reasonable cause” and “probable cause” are 18 interchangeable, and California courts look to cases decided under the Fourth Amendment to 19 determine whether reasonable cause existed for purposes of section 847. Levin v. United 20 Airlines, 158 Cal. App. 4th 1002, 1017 n.18 (2008); Blackenhorn v. City of Orange, 485 F.3d 21 463, 471 (9th Cir. 2007). 22 Defendants contend that Burke had probable cause to arrest Holland for willful failure 23 to comply with an order by a uniformed police officer performing Vehicle Code duties, a 24 violation of Vehicle Code section 2800(a).2 Defendants’ contention is supported by Burke’s 25 deposition, in which he testified that he directed Holland “numerous times” to get back onto 26 2 Documents from the time of Holland’s arrest show that she was arrested for 27 jaywalking (Vehicle Code section 21954(a)) and battery on a police officer (Penal Code section 243(b)), in addition to the section 2800(a) violation. Defendants do not argue that 28 there was probable cause to arrest her under either of these sections. 5 1 the sidewalk and that he had to physically guide her back to the sidewalk. (Ex. B to Carling 2 Dec. at 69:4-14). Additionally, in an interview with the San Francisco Police Department’s 3 Office of Citizen Complaints (“OCC”) that took place the day after Holland was released, 4 Holland described being told by “numerous officers” to get out of the street and back on the 5 sidewalk. She specifically recalled being told “three times” to get out of the crosswalk where 6 she was eventually arrested.3 (Ex. F to Carling Dec. at 10-11.) Holland further stated, “I was 7 probably in the wrong for not following their commands” and “I actually agree with the 8 refuse to comply with proper order [charge].” (Ex. F. to Carling Dec. at 29, 33.) 9 Holland counters this evidence by pointing to the deposition testimony of her friend, 11 remember any officer saying anything to Holland or giving Holland a command prior to For the Northern District of California United States District Court 10 Kris Gleason, who was with her when she was arrested. Gleason testified that she did not 12 arresting her. (Ex. 3 to Carling Dec. at 39:1-11.) But in light of Burke’s testimony and 13 Holland’s admissions in the OCC interview, Gleason’s testimony that she does not remember 14 is insufficient to create a dispute of material fact. 15 Accordingly, Defendants’ motion to dismiss is GRANTED as to Holland’s false arrest 16 and false imprisonment claims (Eleventh Cause of Action). 17 B. Excessive Force 18 Defendants argue that Holland’s Fourth Amendment excessive force and related state 19 law assault and battery claims should be dismissed based on a video of Holland’s arrest. To 20 prove a claim of assault or battery against a police officer under California law, a plaintiff 21 must show that the officer’s use of force was unreasonable. Edson v. City of Anaheim, 63 22 Cal. App. 4th 1269, 1272 (1998). In analyzing claims under California law that police 23 officers used excessive force in the course of an arrest, courts apply the same standard 24 applied in excessive force claims brought under the Fourth Amendment. Id. (citing Graham 25 v. Connor, 490 U.S. 386, 396 (1989)). That analysis requires a careful balancing of “the 26 nature and quality of the intrusion on a person’s liberty” with “the countervailing 27 3 Holland filed a complaint with the OCC after her release and an investigator 28 interviewed her regarding her complaint on May 28, 2009. 6 1 governmental interests at stake” to determine whether the use of force was objectively 2 reasonable under the circumstances. Id. (internal quotation marks and citation omitted). 3 Defendants contend that the video of Holland’s arrest shows that the force used by the 4 officers was reasonable. The video shows protesters milling around on the sidewalk, some 5 holding signs and banners, others taking pictures. Perhaps a dozen police officers are 6 standing in the street and on the edge of the sidewalk, concentrated near the crosswalk. 7 Holland is standing on the sidewalk next to the crosswalk, surrounded by police officers on 8 all sides. Without any obvious provocation, the officers close in on Holland. A brief 9 struggle ensues. It is not clear form the video footage whether Holland is resisting the 11 secured behind her back and an officer’s knee on her head and neck. For the Northern District of California United States District Court 10 officers. Six seconds later, Holland has been taken down to the ground with her hands 12 The view of Holland’s legs as she is being taken down is blocked by the police 13 officers who are surrounding her. In the moment that she is brought down to the pavement, a 14 taxi drives past, entirely obscuring Holland and the officers from view; it is impossible to tell 15 whether the officers kicked Holland’s legs out from under her and threw her down to the 16 ground – as Holland contends they did – or whether they in fact used “as little force as 17 necessary” to take her into custody – as Defendants contend. (Opp. at 12; Mot. at 11.) 18 While video evidence may in some cases be sufficient to establish that officers used 19 reasonable force in effecting an arrest, see Scott v. Harris, 550 U.S. 372, 380 (2007), 20 Defendants’ reliance on the video evidence in the present case is misplaced. It is not possible 21 to discern from the video the amount of force the officers used on Holland or whether that 22 amount of force was justified under the circumstances that the officers confronted. Viewing 23 the video, and the evidence as a whole, in the light most favorable to Holland, a reasonable 24 trier of fact could find that the degree of force that the officers used was unreasonable under 25 the circumstances. 26 Defendants also argue that the individual officers – Burke, Nieves, and Papale – are 27 entitled to qualified immunity on the excessive force claim because reasonable officers in the 28 officers’ positions would not have known that the amount of force used was unreasonable. 7 1 Qualified immunity applies if the unlawfulness of the officers’ use of force was not clearly 2 established at the time of Holland’s arrest. See Saucier v. Katz, 533 U.S. 194, 202 (2001). A 3 law is clearly established where “it would be clear to a reasonable officer that his conduct 4 was unlawful in the situation he confronted.” Id. In the context of an excessive force claim, 5 An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. 6 7 Id. at 205. “The principle that it is unreasonable to use significant force against a suspect 8 who was suspected of a minor crime, posed no apparent threat to officer safety, and could be 9 found not to have resisted arrest, was . . . well-established in 2001,” years before Holland’s arrest. See Young v. County of Los Angeles, 655 F.3d 1156, 1167-68 (9th Cir. 2011). This 11 For the Northern District of California United States District Court 10 principle put the officers on notice that to gang-tackle an individual who was suspected of 12 disobeying an officer’s order to get out of the street constituted a violation of the Fourth 13 Amendment. See Blankenhorn v. City of Orange, 485 F.3d 463, 478-79 (2007). 14 Accordingly, Defendants’ motion is DENIED as to Holland’s excessive force, assault, 15 and battery claims (Second, Ninth, and Tenth Causes of Action) against Burke, Nieves, and 16 Papale. Although Holland’s complaint alleges this claim against “All the City Defendants,” 17 there is no evidence that Fong or McDonaugh used any force against Holland, and the 18 motion is therefore GRANTED with respect to Holland’s personal capacity claims against 19 them. 20 C. First Amendment Retaliation 21 Holland contends that the officers arrested her and used excessive force in retaliation 22 for her protected speech, in violation of the First Amendment. To prevail on a First 23 Amendment retaliation claim, a plaintiff must show that (1) the defendant’s action “would 24 chill or silence a person of ordinary firmness from future First Amendment activities” and (2) 25 the defendant’s “desire to cause the chilling effect was a but for cause of the defendant’s 26 action.” Skoog v. County of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (internal 27 quotation marks and citation omitted). In this case, it is not disputed that retaliatory arrest or 28 8 1 search and seizure has the requisite chilling effect, see Ford v. City of Yakima, No. 11-35319, 2 __F.3d__, 2013 WL 485233 (9th Cir. Feb. 8, 2013), or that “verbal criticism and challenge 3 directed at police officers” is protected by the First Amendment, City of Houston v. Hill, 482 4 U.S. 451, 467 (1987). 5 Defendants argue that Holland has not put forward any evidence that raises a material 6 issue of fact with respect to whether her arrest or the officers’ use of force was motivated by 7 protected speech. In response, Holland points to the deposition testimony of her friend, 8 Gleason, who described observing Minton’s arrest together with Holland. Gleason testified 9 that she observed Holland question the police officers in a way that “felt exhaustive,” 11 officers] talking” to Holland being “swarmed,” “taken and pushed around” and “jumped” by For the Northern District of California United States District Court 10 witnessed Holland becoming “upset and worried to frustration,” and then “it going from [the 12 the officers. (Ex. 3 to Green Dec. at 35-36.) In his deposition, Officer Burke testified that 13 prior to her arrest Holland was yelling, “Free her! Free her! You can’t make that arrest!” at 14 the paddy wagon in which Minton was being transported and that Holland told Burke that 15 she “had a right to be in the street.” (Ex. 1 to Green Dec. at 50; Ex. B to Carling Dec. at 69.) 16 A reasonable juror could infer from this testimony that Holland would not have been arrested 17 or subjected to excessive force had it not been for her persistent questioning of the officers 18 and verbal challenges to their authority. 19 Defendants also argue that the individual officers are entitled to qualified immunity 20 because, they contend, it was not clearly established at the time of Holland’s arrest that a 21 First Amendment retaliatory arrest claim may lie despite the presence of probable cause to 22 support her arrest. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (qualified immunity 23 shields a government official from civil damages liability unless the official violated “clearly 24 established statutory or constitutional rights of which a reasonable person would have 25 known” at the time of the challenged conduct). In support of this argument, Defendants cite 26 to the Supreme Court’s recent opinion in Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012). 27 In Reichle, the Court observed that it “has never recognized a First Amendment right to be 28 free from a retaliatory arrest that is supported by probable cause,” and that the Tenth Circuit, 9 1 where Reichle originated, likewise had not recognized that specific right. Id. at 2094. This 2 case, by contrast, was brought in the Ninth Circuit, where at the time of Holland’s arrest, it 3 was clearly established that a First Amendment retaliatory arrest claim may lie even if the 4 arrest is supported by probable cause. See Skoog, 469 F.3d at 1235. Officers Burke, Neves, 5 and Papale therefore are not entitled to qualified immunity on Holland’s First Amendment 6 retaliation claim (her First Cause of Action), and Defendants’ motion to dismiss is DENIED 7 with respect to them. The motion is GRANTED as to Holland’s First Amendment claims 8 against Fong and McDonagh because there is no evidence that either personally took any 9 retaliatory action against Holland. D. Monell 11 For the Northern District of California United States District Court 10 Holland asserts claims against the police department and its supervisory employees 12 based on her arrest and the officers’ alleged retaliation and use of excessive force. Under 13 Monell v. Department of Social Services, a section1983 plaintiff cannot state a claim for 14 municipal liability based on a respondeat superior theory. 436 U.S. 658, 691 (1978). 15 However, a municipal government entity may be held liable under § 1983 “when execution 16 of a government’s policy or custom, whether made by its lawmakers or by those whose edicts 17 or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694. 18 Inadequacy of police training may serve as a basis for liability under section 1983 if “the 19 failure to train amounts to deliberate indifference to the rights of persons with whom the 20 police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). 21 Defendants argue that Holland has not put forth any admissible evidence of failure to 22 train or a policy, custom, practice that would support Monell liability for the arrest and 23 excessive force claims. In response, Holland points to a declaration by her police practices 24 expert, Barbara Attard, in which Attard opines that “[t]he level of force used to take Elecia 25 Holland into custody was excessive and in violation of SFPD General order 8.03 ‘Crowd 26 Control.’” (Ex. A to Docket No. 61.) Holland also argues that the evidence shows that the 27 arresting officers ignored their training. Under Monell “a municipality cannot be held liable 28 10 1 solely because it employs a tortfeasor.” 436 U.S. at 691. Evidence that the arresting officers 2 ignored their training and failed to comply with police department policy does not support a 3 claim that the officers were inadequately trained or that Defendnats’ policies, customs, or 4 practices caused Holland’s injury. Defendants’ Motion to Dismiss is therefore GRANTED 5 with respect to Holland’s Monell claims relating to her arrest (Third and Fourth Causes of 6 Action). 7 8 II. The Strip Search 9 Holland raises challenges under the Fourth Amendment and California Civil Code 11 on Barnes’s strip search of Holland.4 For the Northern District of California United States District Court 10 4030(f) against Deputy Barnes, Sheriff Hennessey, and the County of San Francisco based 1. Fourth Amendment 12 13 Defendants argue that, under the Supreme Court’s recent decision in Florence v. 14 Board of Chosen Freeholders, __ U.S. __, 132 S.Ct. 1510, 1512 (2012), Barnes’s strip search 15 of Holland did not violate the Fourth Amendment. In Florence, the Court upheld a policy 16 pursuant to which each prisoner, prior to being admitted to the jail’s general population, was 17 subject to a strip search, including a close visual inspection of the prisoner’s body cavities. 18 Id. at 1513-14. The Court explicitly declined to “rule on the types of searches that would be 19 reasonable in instances where, for example, a detainee will be held without assignment to the 20 general jail population and without substantial contact with other detainees.” Id. at 1522. 21 Florence was a five to four decision, and in separate concurring opinions, Justices Roberts 22 and Alito explicitly conditioned their approval of the result reached by the majority on the 23 fact that “the Court does not foreclose the possibility of an exception to the rule it 24 announces.” Id. at 1523 (Roberts, J., concurring); see also id. at 1524 (Alito, J., concurring). 25 4 Holland also raises assault and battery claims against Barnes based on the strip search. Defendants’ only argument with respect to the assault and battery claims is that the 26 video shows that the officers did not use unreasonable force (Mot. at 19) but the video does 27 not show the strip search. Accordingly, Defendants’ motion is DENIED with respect to Holland’s assault and battery claims against Barnes arising out of the strip search. 28 11 1 Specifically, Justice Roberts suggested that a strip search would not be reasonable per se 2 when an arrestee is detained for a minor traffic violation or if there is an alternative to 3 detaining the arrestee in the general jail population. Id. Justice Alito likewise emphasized 4 that strip searches of individuals arrested on minor charges and “released from custody prior 5 to or at the time of their initial appearance before a magistrate” might not be constitutional, 6 especially if the arrestees “could be held in available facilities apart from the general 7 population.” Id. 8 The Parties agree that Florence leaves undisturbed a line of Ninth Circuit precedent 9 holding that strip searches of detainees “charged with minor offenses who are not classified 11 has a reasonable, individualized suspicion that the detainee is carrying or concealing For the Northern District of California United States District Court 10 for housing in the general jail population” are unlawful unless the officer directing the search 12 contraband. Edgerly v. City and County of San Francisco, 599 F.3d 946, 957 (citing Bull v. 13 City and County of San Francisco, 595 F.3d 964, 977 (9th Cir. 2010) (en banc)); see also Act 14 Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir 1993). Thus, after Florence, a strip 15 search of a detainee charged with a minor offense who has not yet appeared before a 16 magistrate is permissible if: (1) the detainee cannot be held apart from the general jail 17 population; or (2) the officer directing the search has a reasonable, individualized suspicion 18 that the arrestee is carrying contraband. 19 Defendants argue that their strip search of Holland was constitutional under Florence 20 because it was carried out pursuant to Sheriff Department policy and happened as part of the 21 regular intake process for all individuals who are admitted to the jail. While substantial 22 deference is due to jail administrators in matters involving the security of the facilities that 23 they are charged with maintaining, Florence, 132 S.Ct. at 1510, the undisputed fact that 24 Holland’s search was carried out pursuant to Defendants’ policy does not alone suffice to 25 make the search constitutional. See Edgerly, 599 F.3d at 957. 26 In the present case, viewing the evidence in the light most favorable to Holland, she 27 was arrested for a minor offense and Defendants could have – and in fact did – hold her apart 28 12 1 from the jail’s general population. Although Defendants assert that they might have had to 2 admit Holland to the general population of the jail at any time, Holland points to evidence 3 suggesting that the jail intended to house her alone, including a sign by her cell that said 4 “inmate to be housed alone” and a notation in the record of her arrest showing that jail staff 5 was directed to house Holland alone. (Ex. 16 to Green Dec.) It is not disputed that Holland 6 was strip searched before seeing a magistrate, and Defendants do not contend that they had 7 reasonable, individualized suspicion that Holland was concealing contraband. 8 Accordingly, Holland’s Fourth Amendment claim will be permitted to proceed against 9 Barnes, who conducted the strip search. With respect to Holland’s Monell claim against 11 pursuant to department policy or practice and that Hennessey is a policymaker. Defendants’ For the Northern District of California United States District Court 10 Hennessey, Defendants do not dispute that Barnes’s strip search of Holland was carried out 12 motion for summary judgment is therefore DENIED as to Holland’s Fifth Cause of Action, 13 against Barnes, and Seventh Cause of Action, against Sheriff Hennessey in his official 14 capacity. Holland has not pointed to any evidence supporting her claim against Hennessey in 15 his personal capacity; Defendants’ motion is therefore GRANTED as to her Sixth Cause of 16 Action. 17 18 2. California Civil Code § 4030(f) Defendants also move to for summary judgment on Holland’s claim under section 19 4030(f) of the California Penal Code, which provides, in pertinent part: 20 21 22 23 No person arrested and held in custody on a misdemeanor or infraction offense, except those involving weapons, controlled substances or violence . . . shall be subjected to a strip search or visual body cavity search prior to placement in the general jail population, unless a peace officer has determined there is reasonable suspicion based on specific and articulable facts to believe such person is concealing a weapon or contraband, and a strip search will result in the discovery of the weapon or contraband. 24 Defendants argue that their search of Holland was permissible under section 4030(f) because 25 assault on a police officer categorically involves violence. This Court previously held that 26 misdemeanor battery on a police officer is not categorically a crime of violence, and sees no 27 28 13 1 reason to reconsider that ruling now. See Holland v. City of San Francisco, No. C10-2603, 2 2010 WL 5071597, at *7 (N.D. Cal. Dec. 7, 2010). Viewing the evidence in the light most 3 favorable to Holland, the “assault” for which she was arrested consisted of accidentally 4 bumping Burke’s shoulder with her elbow while standing next to him on a crowded 5 sidewalk. Whether the assault, in fact, involved violence is a question for the jury. 6 Defendants argue, in the alternative, that Barnes is immune with respect to Holland’s 7 section 4030(f) claim under section 820.6 of the California Government code, which 8 provides: 9 11 For the Northern District of California United States District Court 10 If a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable, he is not liable for an injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable. 12 California Government Code § 810.6 defines “enactment” as “a constitutional provision, 13 statute, charter provision, ordinance or regulation.” In support of immunity, Defendants 14 point to testimony that the Sheriff’s Department considers a misdemeanor battery on a police 15 officer in violation of section 243 to be a crime of violence that justifies a strip search. (Ex. 16 C to Carling Dec. at 74:1-16.) They do not, however, point to any “enactment” by which 17 section 243 is defined as a crime involving violence. Rather, Defendants’ evidence shows 18 that Holland’s strip search was carried out pursuant to a police department policy of 19 considering section 243 violations to be categorically “crimes of violence.” But section 20 820.6 does not provide immunity based on law enforcement agency policies. See Hansen v. 21 California Dept. of Corrections, 920 F. Supp. 1480, 1501 (N.D. Cal. 1996). And Defendants 22 do not contend that Holland’s strip search was carried out under the “apparent authority” of 23 section 4030(f), the effect of which is not to permit strip searches, but to prohibit them absent 24 certain conditions. 25 Because Holland has raised a dispute of material fact with respect to whether she was 26 arrested for a crime involving violence, and because Barnes is not entitled to immunity under 27 28 14 1 section 820.6, summary judgment is DENIED on Holland’s claim under section 4030(f) (her 2 Fourteenth Cause of Action). 3 4 III. Bane Act 5 Holland brings her Eighth Cause of Action under the Tom Bane Civil Rights Act, 6 section 52.1 of the California Civil Code, which provides a civil action for damages based on 7 interference “by threats, intimidation, or coercion” with plaintiffs’ rights under the 8 Constitution and laws of California and the federal government. Cal Civ. Code § 52.1(a) & 9 (b). Section 52.1 was intended to be a state law analogue to 42 U.S.C. § 1983. Assembly 11 in contrast to section 1983, section 52.1 applies to private actors as well as to government For the Northern District of California United States District Court 10 Committee on the Judiciary, Bill Analysis, AB 2719 (as introduced February 25, 2000). But 12 agents, there is no qualified immunity, and, as relevant here, liability under section 52.1 is 13 limited to violations of constitutional and statutory rights accomplished “by threats, 14 intimidation or coercion.” Venegas v. County of Los Angeles, 153 Cal. App. 4th 1230, 124215 42 (2007). In sum, “[t]he essence of a Bane Act claim is that the defendant, by the specified 16 improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff 17 from doing something he or she had the right to do under the law or to force the plaintiff to 18 do something that he or she was not required to do under the law.” Austin B. v. Escondido 19 Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007) (citing to Jones v. Kmart Corp., 17 Cal. 20 4th 329, 334 (1998)). 21 Citing to a recent California court of appeal decision, Shoyoye v. County of Los 22 Angeles, 203 Cal. App. 4th 947 (2012), Defendants argue that Holland has failed to state a 23 claim under section 52.1 because she has not shown threats, intimidation, or coercion 24 independent from that inherent to her false arrest, excessive force, and unlawful strip search 25 claims.5 This argument is based on an overly broad reading of Shoyoye, one which conflicts 26 5 Both prior to and after Shoyoye, federal district court decisions have divided on the issue of whether a Bane Act claim lies when the alleged threats, intimidation, and coercion 27 are inherent to the underlying statutory or constitutional violation. See, e.g., Gollas v. 28 15 1 with California Supreme Court precedent. In Venegas v. County of Los Angeles, the 2 California Supreme Court held that the plaintiffs “adequately stated a cause of action under 3 section 52.1” based on allegations showing an unconstitutional search and seizure. 32 Cal. 4 4th 820, 827-28 & 843 (2004). The court pointed out that section 52.1 does not “extend to 5 all ordinary tort actions” because it is predicated on the violation of a “constitutional or 6 statutory right,” as opposed to common law. Id. at 843. Because the plaintiffs’ allegations 7 involved “unconstitutional search and seizure violations” and not “ordinary tort claims,” they 8 had “adequately stated a cause of action under section 52.1.” Id. 9 By contrast, in Shoyoye, an administrative error resulted in the plaintiff being 11 court held that in the absence of a showing of knowledge or intent, the coercion inherent in a For the Northern District of California United States District Court 10 erroneously detained for two weeks after his release date. 203 Cal. App. 4th at 959. The 12 wrongful overdetention – the bare fact that the plaintiff was not free to leave the jail – was 13 insufficient to satisfy section 52.1’s requirement that the interference with the plaintiff’s 14 rights be accomplished “by threats, intimidation, or coercion.” Id. The court reasoned that 15 section 52.1 was not intended to redress harms “brought about by human error rather than 16 intentional conduct.” Id. It distinguished the facts in Venegas on the ground that, in that 17 case, “the evidence presented could support a finding that the probable cause that initially 18 existed to justify stopping the plaintiffs eroded at some point, such that the officers’ conduct 19 became intentionally coercive and wrongful.” Id. at 961. The Shoyoye court thus 20 acknowledged that a Bane Act claim could be based on an arrest without probable cause, 21 even if no “threat, intimidation, or coercion” were shown separate and apart from that 22 inherent to the underlying constitutional violation. 23 In this case, as in Venegas, the harms alleged – an arrest without probable cause, the 24 use of excessive force, retaliation for protected speech, and an unlawful strip search – were 25 brought about by intentional conduct. In contrast to the negligent overdetention in Shoyoye, 26 County of Los Angeles, No. C12-8742, 2013 WL 800272, at *5 & n. 2 (C.D. Cal. 2013), and 27 cases cited therein; Luong v. City & County of San Francisco, No. C11-5661, 2012 WL 5519210, at *7 (N.D. Cal. 2012), and cases cited therein. 28 16 1 this conduct may reasonably perceived as threatening, intimidating, or coercive. See Gillan 2 v. City of San Marino, 147 Cal. App. 4th 1033, 1050 (2007) (arrest without probable cause); 3 Cole v. Doe 1 thru 2 Officers of City of Emeryville Police Dept., 387 F.Supp.2d 1084, 11034 04 (N.D. Cal. 2005) (unreasonable search and seizure); Skeels v. Pilegaard, No. C12-2175 5 (N.D. Cal. 2013) (unreasonable search and seizure and arrest without probable cause); Bass 6 v. City of Fremont, No. C12-4943 (N.D. Cal. 2013) (same). Defendants’ motion to dismiss 7 Holland’s claim under section 52.1 is therefore DENIED. 8 9 IV. Negligence Defendants move to dismiss Holland’s negligence, negligent infliction of emotional 11 distress and negligent training and supervision claims, arguing that they are immune from For the Northern District of California United States District Court 10 12 liability on these claims under California Government Code § 821.6. Defendants also argue 13 that Holland has put forth no evidence that supports her negligent training and supervision 14 claims. 15 With respect to section 821.6, Defendants are incorrect. That section relieves public 16 employees from liability only for injuries caused by “instituting or prosecuting any judicial 17 or administrative proceeding,” and Holland does not assert any claims related to proceedings 18 instituted against her. See Blackenhorn v. City of Orange, 485 F.3d 463, 487-88 (9th Cir. 19 2007) (observing that “section 821.6, as it applies to police conduct, is limited to actions 20 taken in the course or as a consequence of an investigation” and not during an arrest). 21 Accordingly, Defendants’ motion is DENIED with respect to Holland’s Twelfth and 22 Thirteenth Causes of Action. 23 Defendants are, however, correct that Holland has put forth no evidence showing a 24 causal connection between the training and supervision of the officers executing the arrest 25 and conducting the strip search and the harms that Holland alleges she endured. Holland 26 points only to evidence that Barnes conducted an unconstitutional strip search of her and that 27 Burke conducted an unlawful arrest. This evidence, standing alone, is insufficient to show 28 17 1 that Holland’s harm was caused by negligent supervision of Burke or Barnes by their 2 respective superiors. Accordingly, summary judgment is GRANTED as to Holland’s 3 Fifteenth Cause of Action. 4 5 CONCLUSION 6 For the reasons given above, Defendants’ Motion for Summary Judgment is 7 GRANTED with respect to: 8 1. The First Cause of Action insofar as it is alleged against the Chief of San Francisco Police Heather Fong and Officer Dan McDonagh personally because there is no evidence that these defendants retaliated against Holland; 2. The Second Cause of Action insofar as it is alleged against the Fong and McDonagh personally because there is no evidence that these defendants used any force against Holland; 3. The Third Cause of Action because Holland has not put forward any evidence of deliberate indifference or failure to train, supervise, or discipline that caused her to be arrested without probable cause and subjected to excessive force; 4. The Fourth Cause of Action, alleging Monell liability for excessive force, because Holland has not put forward any evidence that an unconstitutional custom, policy, or practice caused her harm; 5. The Sixth Cause of Action, against Hennessey in his personal capacity because Holland has not put forward evidence that Hennessey’s deliberate indifference or failure to train, supervise, or discipline caused her to be unlawfully strip searched; 6. The Ninth Cause of Action and Tenth Cause of Action insofar as they are alleged against the Fong and McDonagh personally because there is no evidence that these defendants used any force against Holland; 7. The Eleventh Cause of Action, for false arrest or false imprisonment because there was probable cause to arrest Holland for disobeying orders; 8. The Fifteenth Cause of Action against Fong, Burke, and McDonagh personally for negligent supervision because Holland has not put forward any evidence of failure to train, supervise, or discipline that caused her harm. 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 The Motion is otherwise DENIED. 25 With good cause appearing, it is further ORDERED that the Order to Show Cause 26 why sanctions should not be imposed on Plaintiff’s counsel for her failure to appear at the 27 28 18 1 March 4, 2013, hearing on this motion (Docket No. 101) is VACATED. The Court trusts 2 that counsel will take greater care in monitoring and maintaining her calendar in the future. 3 . 4 IT IS SO ORDERED. 5 6 Dated: 03/11/2013 7 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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