Russell v. City and County of San Francisco et al

Filing 64

ORDER by Judge Joseph C. Spero granting in part and denying in part 48 Motion for Summary Judgment (jcslc1, COURT STAFF) (Filed on 6/5/2013)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ERIK RUSSELL, 7 Case No. C-12-00929-JCS Plaintiff 8 v. 9 CITY AND COUNTY OF SAN FRANCISCO, et al., 10 Re: Dkt. No. 48 Defendants 11 United States District Court Northern District of California ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 12 13 I. INTRODUCTION 14 Plaintiff Erik Russell brings this civil rights action against the City and County of San 15 Francisco and Officer Damien Reyes alleging that excessive force was used against him while he 16 was in police custody on August 16, 2011. Defendants bring a Motion for Summary Judgment 17 (―the Motion‖) seeking dismissal of all of Plaintiff‘s claims. A hearing on the Motion was held on 18 Friday, May 31, 2013 at 1:30 p.m. For the reasons stated below, the Motion is GRANTED in part 19 and DENIED in part.1 20 II. BACKGROUND Facts2 21 A. 22 On August 16, 2011, Russell began drinking alone at home around 7:00 p.m. Joint 23 Statement of Undisputed Facts in Support of Defendants‘ Motion for Summary Judgment 24 (―JSUF‖) ¶ 1 (citing Russell Dep. 25:2-6; 26:4-7). After having two or three cocktails in one hour, 25 he went to a bar, the Bitter End on Clement Street, to continue drinking. Id. ¶ 2 (citing Russell 26 27 28 1 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 U.S.C. § 636(c). 2 Unless otherwise stated, the facts in this section are undisputed. 1 Dep. 25:9-17; 26:16-18). Russell stayed at the Bitter End for approximately 40 minutes, where he 2 drank two to five beers. Id. ¶ 3 (citing Russell Dep. 26:23-27:9). Russell then went across the 3 street to another bar for more drinks. He stayed there an hour. Id. ¶ 4 (citing Russell Dep. 27:13- 4 28:10). He has no memory of how many drinks he had there, but remembers that ―there was 5 whiskey involved.‖ Id. Then Russell left, intending to return to the Bitter End. Id. ¶ 5 (citing 6 Russell Dep. 28:19-21). Russell estimates that by that point in the evening, three hours after he 7 began drinking, he had consumed between 10 and 11 drinks, though he testified at his deposition 8 that ―at some point I had said 10-15‖ drinks. Id. ¶ 6 (citing Russell Dep. 28:24-29:17). 9 Around 10 p.m., Russell began to cross Clement Street mid-block between Fifth and Sixth Avenues. Id. ¶ 9 (citing Russell Dep. 33:9-20). Russell was feeling drunk and dizzy and was 11 United States District Court Northern District of California 10 staggering. Id. ¶ 10 (citing Russell Dep. at 39:9-16). Officer Stratton was driving a marked police 12 vehicle westbound on Clement Street between Fifth and Sixth Avenues. Id. ¶ 11 (citing Stratton 13 Decl. ¶ 3). Her partner that day was Officer Jennifer Irwin, who was sitting in the passenger seat 14 of the police vehicle. Stratton Decl., ¶ 3. Officer Stratton saw Russell stagger into the street from 15 the northbound side. JSUF ¶ 11 (citing Stratton Decl. ¶ 3). Officer Stratton had to slam on the 16 brakes to avoid hitting Russell. Id. At least one other vehicle on Clement Street also had to stop 17 suddenly to avoid hitting Russell. Id. ¶ 12 (citing Stratton Decl. ¶ 5). 18 Concerned for Russell‘s safety, Officer Stratton left the car in the street and ran after 19 Russell. Id. ¶ 13 (citing Stratton Decl. ¶ 6). Russell completed crossing the street, turned right on 20 the sidewalk on the southbound side of Clement Street, and walked westbound toward Sixth 21 Avenue. Id. ¶ 14 (citing Stratton Decl. ¶ 7). As she chased Russell, Officer Stratton called 22 repeatedly for Russell to stop, but he continued walking as though he did not hear her. Id. ¶ 15 23 (citing Stratton Decl. ¶ 8). Finally, near the corner of Fifth Avenue and Clement Street, Officer 24 Stratton caught up with Russell. Russell stopped walking. Id. ¶ 16 (citing Stratton Decl. ¶ 9). 25 It appeared to Officer Stratton that Russell was intoxicated: he had a strong odor of alcohol 26 on his breath and clothing; he had very watery, bloodshot eyes; his face was flushed; he was 27 sweating; and his speech was slurred, slow and thick. Id. ¶ 17 (citing Stratton Decl. ¶ 10). Officer 28 Stratton had a brief conversation with Russell in which he told her that he had just been to a bar 2 1 and was going to another bar to drink more. Id. ¶ 18 (citing Stratton Decl. ¶ 11). Officer Stratton 2 asked Russell for his identification; he responded by saying something along the lines of ―Fuck 3 you.‖ Id. ¶ 19 (citing Stratton Decl. ¶ 12). Officer Stratton noted that Russell was swaying and 4 seemed to be having trouble standing, so she put her arm around him to keep him from falling. Id. 5 ¶ 20 (citing Stratton Decl. ¶ 13). Given his state, Officer Stratton was afraid that Russell would 6 fall if he attempted to sit down. Id. Officer Stratton told Russell that he would be taken to the 7 station for four hours and would be released when he was sober. Id. ¶ 21 (citing Stratton Decl. ¶ 8 14). As she spoke to him, Russell responded by repeatedly swearing and saying ―Fuck you.‖ Id. ¶ 9 22 (citing Stratton Decl. ¶ 15). Officers Chu and Navarro arrived at the scene and transported Russell to Richmond 11 United States District Court Northern District of California 10 Station. Id. ¶ 24 (citing Stratton Decl. ¶ 16). Officers Stratton and Irwin returned to their vehicle 12 and drove to Richmond Station. Id. ¶ 25 (citing Stratton Decl. ¶ 17). 13 Officer Reyes was working as station keeper at Richmond Station at the time Russell 14 arrived. Id. ¶ 26 (citing Reyes Decl. ¶ 2). Officer Reyes observed Russell and concluded that he 15 was under the influence because he smelled of alcohol, slurred his words, and was staggering. Id. 16 ¶ 27 (citing Reyes Decl. ¶ 3). Officer Reyes agreed that Russell would stay in the station until he 17 had sobered up enough to care for himself. Id. ¶ 28 (citing Reyes Decl. ¶ 4). According to the 18 declaration provided by Officer Stratton in the official incident report, when Russell arrived, he 19 was booked for ―[p]ublic intoxication, release when sober.‖ Declaration of Panos Lagos in 20 Support of Plaintiff‘s Response/Opposition to Defendants‘ Motion for Summary Judgment 21 (―Lagos Decl.‖), Decl., Ex. A. Officer Stratton stated, ―[u]pon removing Russell‘s property, 22 Russell was placed on the bench in the holding cell area. Russell was secured with his left hand 23 via a single handcuff to the two foot bar that is secured to the wall behind the bench.‖ Id. Officer 24 Stratton does not identify the officer who secured Russell in the holding cell area; nor does 25 Officer Reyes include this information in his declaration. In his deposition, however, Officer 26 Reyes testified that he ―conclude[d] on August 16 to [his] satisfaction that Mr. Russell was in fact 27 handcuffed to one of the bars. . . [o]nce he was brought in.‖ Lagos Decl., Ex. C (Reyes Dep.) at 28 23. Russell repeatedly demanded to be released and to have the ―fucking cuffs‖ taken off. JSUF 3 1 ¶ 29 (citing Reyes Decl. ¶ 5; Russell Dep. 50:11-23). Russell did not want to be there and wanted 2 to go home. Id. 3 Less than an hour after Russell‘s arrival at the station, Officer Weems arrived to relieve 4 Officer Reyes as station keeper. Id. ¶ 30 (citing Reyes Decl. ¶ 6). As Officer Reyes was preparing 5 to leave, he heard what sounded like loud banging, kicking and yelling noises coming from the 6 holding area. Id. ¶ 31 (citing Reyes Decl. ¶ 7). Concerned that Russell needed attention, Officer 7 Reyes told Officer Weems that he would check on Russell on his way out of the station. Id. ¶ 32. 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 Officer Reyes opened the main door to the holding area by pulling it towards him. Id. (citing Reyes Decl. ¶ 8 & Ex. A). What followed is disputed. The account of Officer Reyes in his declaration is as follows: 9. I stepped into the doorway and, before I could fully enter the holding area, and before I was able to see where Plaintiff was, I was immediately kicked in the left thigh by Plaintiff. 10. Stunned and in some pain, I fell to my right to the floor against the wall of the holding cell. I landed in a seated position on my right side, facing the hallway. 11. While I was on the floor with my right side against the south wall, Plaintiff attempted to kick me again, which I blocked with my hand. Plaintiff also swung his hand in an attempt to hit me. 12. At this point, Plaintiff stood in front of the main door, facing towards me. Because Plaintiff had attempted to hit me, I knew that Plaintiff had at least one hand free, and I did not know whether Plaintiff's other hand was also free. 13. I did not have sufficient time to determine whether Plaintiff‘s other hand was handcuffed before taking action, as Plaintiff was continuing to attack me. 14. I did not believe that I could safely escape in any direction without being struck again because Plaintiff was merely three or four feet away and was able to reach me. 15. The south wall was too close for me to escape in that direction. 25 16. I did not believe that I could escape back through the main door because (1) I did not know if the door was open; and (2) if closed, the door locks automatically and requires one to enter a code to open it. I did not have sufficient time to determine whether the door was open. 26 ... 27 20. I stood up and struck a single distraction blow with a closed fist to Plaintiff's left cheek area. . . . 23 24 28 4 1 Declaration of Officer Damien Reyes in Support of Defendants‘ Motion for Summary Judgment 2 (―Reyes Decl.‖), ¶¶ 9-16, 20. Officer Reyes‘ account in the Incident Report statement that he gave just after the relevant 3 4 events is somewhat different, stating, in part, as follows: I opened the door to the holding area to check on the prisoner and I was immediately kicked on the left leg by a white male later identified as Erik Russell who was single handcuffed by the left wrist to the bar above bench. After Russell kicked me, he attempted to kick me again with his other leg. I was able to block Russell‘s second kick by using a swiping motion with my left arm. As I blocked Russell‘s second kick, Russell used his open right hand and used a backhand to strike me on the right side of my jaw. 5 6 7 8 9 In order to stop Russell‘s attack on me, fearing that he would strike me again and in self[-]defense I used my right fist to strike Russell‘s face area near his left cheek. My strike of Russell not only served to distract him but it also gave me the opportunity [to] back away from Russell and yell for assistance from fellow officers. After I struck Russell his head went backwards and made contact with the metal wall in the bench area. 10 United States District Court Northern District of California 11 12 13 14 Lagos Decl., Ex. A;3 see also JSUF ¶ 36 (―Officer Reyes left the area and immediately prepared a 15 statement about what had occurred‖). Russell does not remember Officer Reyes punching him or the events that led up to the 16 17 punch. Plaintiff‘s Declaration in Support of Response/Opposition to Defendants‘ Motion for 18 Summary Judgment (―Russell Decl.‖), ¶ 8. Nor does he remember whether he kicked or hit 19 Officer Reyes. Id. However, he questions Officer Reyes‘ account because he suffers from a 20 disease known as Ankylosing Spondylitis, a disabling condition that affects his right big toe and 21 which would have made kicking Officer Reyes extremely painful and thus, he contends, unlikely. 22 Id. ¶¶ 4, 8 & Ex. M (photograph of right big toe at time of relevant events showing blistering). 23 He also states that he had a sore on his right leg resulting from ―vein/blood flow problems‖ that 24 was painful to the touch on the date of the incident. Id. ¶ 5 & Ex. N. According to Russell, the 25 26 27 28 3 The Court notes that Defendants object to this exhibit on the basis that it is not properly authenticated and is hearsay. See Reply Brief at 2-3. The Court overrules the objection. First, to the extent Defendants do not challenge the accuracy of the Incident Report, the Court concludes that at trial it could be properly authenticated. Second, the statements by Officer Reyes in the Incident Report could certainly be used at trial during cross-examination. 5 1 sore on his leg also makes it unlikely that he kicked Officer Reyes. Id. ¶ 8. 2 The parties do not dispute that Russell was approximately three or four feet away when 3 Officer Reyes struck him. JSUF ¶ 33 (Reyes Decl. ¶ 20). It is also undisputed that upon being 4 struck, Russell fell back into a seated position on the bench, and his head struck the wall. Id. ¶ 34 5 (citing Reyes Decl. ¶ 21). 6 Immediately after these events occurred, Sergeant Morales completed a use of force investigation. Id. ¶ 37 (citing Morales Dep. 21:14-25; 24:15-25:1). As part of his investigation, 8 Sargeant Morales spoke with Officer Reyes and other officers at the station, took photographs of 9 Russell in which Russell can be seen smiling and giving a ―thumbs up‖ sign, and viewed the area 10 where the incident occurred. Id. ¶ 38 (citing Morales Dep. 21:14-20; 26:22-27:7; 31:2-5; Russell 11 United States District Court Northern District of California 7 Dep. Exs. E-I). Sergeant Morales concluded, ―[b]ased on Plaintiff‘s attack, Plaintiff‘s height and 12 size advantage, Plaintiff‘s intoxicated behavior, [and] on Officer Reyes being in the holding area 13 alone in a confined space,‖ that the force used by Officer Reyes was not excessive in light of the 14 circumstances. Id. ¶ 39 (citing Morales Dep. 40:11-20). 15 At his deposition, Officer Morales testified that in determining whether the force used by 16 Officer Reyes was reasonable he did not consider what other options were available to Officer 17 Reyes under the circumstances; nor did he ask Russell for an account of what occurred. Lagos 18 Decl., Ex. I (Morales Dep.) at29-31. Officer Morales testified that he did not ask Officer Reyes 19 why he did not take a step back to avoid injury because it was his understanding of police policy 20 and the law that when ―police officers are confronted with force we are not obligated to back off, 21 retreat.‖ Id. at 35-36. Officer Morales also testified that when he conducted his investigation he 22 knew that Russell was handcuffed with one hand to the bench because Officer Reyes had told him 23 so. Id. at 31. Officer Morales testified that he has conducted approximately 20-25 use of force 24 investigations and has never found that the force used was unreasonable. Id. at 22-23. According 25 to Officer Morales, if he were to find that a particular use of force were unreasonable he would be 26 required to notify a supervisor and document his findings in a memorandum, but he has never 27 written such a memorandum as he has never investigated a use of force that he found 28 unreasonable. Id. at 24-25. 6 1 Subsequently, Russell was transported by ambulance to the emergency room at UCSF, 2 where he was treated for injuries to his neck and head. Id. ¶ 40. Russell was released the next 3 morning and took a bus home. JSUC ¶ 41 (Russell Dep. 53:13-14; 55:2-3). He testified that at the 4 hospital a ―surgical bandage‖ was used to ―take care of the wound on [his] head and [his] eye‖ and 5 he was put in a ―neck collar.‖ Mongan Decl., Ex. A-1 (Russell Dep.) at 54. He further testified 6 that he suffered a ―fractured neck, C5 vertebrae; a black eye . . . [and a] one-inch laceration‖ to the 7 back of his head. Id. at 66. Medical records from UCSF reflect that he was treated for a head 8 laceration and a c-spine fracture. Russell Decl., Ex. O. According to Russell, he did not have 9 these injuries prior to the incident involving Officer Reyes. Russell Decl., ¶ 11. 10 Officer Reyes is 5‘3‖ tall. Id. ¶ 26 (citing Reyes Decl. ¶ 2). Russell is 6‘2‖ tall and the United States District Court Northern District of California 11 length of his arms from top of shoulder to wrist is at least two feet. Id. ¶ 8 (citing Russell Dep. 12 88:15-19). On the date of the incident at issue in this case, Russell weighed 162 pounds. Id. ¶ 8 13 (citing Russell Dep. 88:15-19). The handcuffs that secured Russell were approximately 9 inches 14 long: a chain of approximately 2 inches connected two handcuffs which, when closed, each 15 measure 3.5 inches in diameter. Id. ¶ 35. 16 17 18 B. Procedural Background i. The Complaint In his complaint, Russell asserts the following claims based on the events described above: 19 1) violation of civil rights under 42 U.S.C. § 1983 based on alleged use of excessive force under 20 the Fourth and Fourteenth Amendments, asserted against Officer Reyes (―the excessive force 21 claim‖); 2) violation of civil rights under 42 U.S.C. § 1983 based on alleged failure to prevent a 22 pattern of use of excessive force by Officer Reyes under the Fourth and Fourteenth Amendments, 23 asserted against the City and County of San Francisco (―the City‖) and Officer Reyes under 24 Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978); 3) assault, 25 against Officer Reyes; 4) battery, against the City and Officer Reyes; 5) intentional infliction of 26 emotional distress (― the IIED claim‖), against the City and Officer Reyes; 6) negligence, against 27 the City and Officer Reyes; 7) violation of civil rights under 42 U.S.C. § 1983 based on negligent 28 selection and training of police officers, against the City; 8) violation of civil rights under 7 1 California Civil Code Section 52.1, against the City and Officer Reyes; 9) injunctive and 2 declaratory relief against the City and Officer Reyes.4 ii. 3 The Motion Defendants assert that there is no admissible evidence that would allow a jury to 4 5 reasonably conclude that Officer Reyes‘ account of the relevant events is untrue given that Russell 6 has no memory of what occurred and there were no witnesses to the incident other than Russell 7 and Officer Reyes. Motion at 1, 8-14. Further, Defendants argue, based on Officer Reyes‘ 8 account, the single blow was a reasonable use of force under the circumstances, applying the 9 standard set forth by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). Because all of Russell‘s claims turn on the reasonableness of the force used by Officer Reyes, according to 11 United States District Court Northern District of California 10 Defendants, the entire action should be dismissed. In addition, Defendants assert that they are 12 entitled to summary judgment as to Plaintiff‘s claims on a number of other grounds as well. First, as to the excessive force claim, Defendants contend that Officer Reyes is entitled to 13 14 qualified immunity because even assuming he used excessive force, his mistake was reasonable in 15 light of clearly established law. Id. at 14-16. Second, Defendants challenge the Monell claims (Claims Two and Seven), on the ground 16 17 that Russell has not offered evidence showing that the City is the ―moving force‖ behind 18 Russell‘s alleged injuries. Id. at 15-17. In particular, as to Claim Two, Defendants assert that 19 there is no evidence that Officer Reyes or any other officers engaged in a pattern of ongoing 20 constitutional violations or that the City was aware of any such pattern and failed to address it 21 such that it caused Russell‘s injury. Id. at 16-17. Similarly, Defendants argue that the Monell 22 claim based on inadequate training and supervision (Claim Seven) fails because there is no 23 evidence of a constitutional violation of which the City was aware that was the result of 24 inadequate training. Id. at 17. Third, Defendants assert that Russell lacks standing to seek injunctive or declaratory relief 25 26 under 42 U.S.C. § 1983 because he has not presented evidence that the alleged constitutional 27 4 28 Claims Two, Seven and Nine were also asserted against the Chief of Police, Greg Suhr. Chief Suhr was subsequently dismissed from this action as a defendant. 8 1 violation is likely to occur again. Id. at 17-19. 2 Fourth, Defendants argue that because the assault and battery claims require that the force 3 used be unreasonable, these claims fail for the same reason the excessive force claim fails. Id. at 4 19. Fifth, Defendants contend Russell‘s IIED claim fails because Russell has presented no 5 6 evidence of conduct that a jury could find was ―extreme and outrageous.‖ Id. at 19-20. Sixth, Defendants assert that Russell‘s negligence claim fails because Russell has not 7 8 offered any evidence that Defendants had a duty to Russell or that any duty was breached. Id. at 9 20-21. Seventh, with respect to the Bane Act claim, asserted under Section 52.1 of the California 11 United States District Court Northern District of California 10 Civil Code, Defendants assert the claim fails not only because it depends on Russell‘s prevailing 12 on his Fourth Amendment excessive force claim but also because Russell is unable to show that 13 the force used by Officer Reyes prevented Russell from exercising his constitutional rights 14 through ―threats, intimidation or coercion.‖ Id. at 21-22. Finally, to the extent Russell asserts his state law claims against the City, Defendants argue 15 16 that there is no statutory basis for these claims. Id. at 23. iii. 17 Opposition 18 In his Opposition, Russell argues that there is evidence sufficient to demonstrate a material 19 dispute of fact as to all of his claims. Opposition at 1. With respect to his excessive force claim, 20 Russell contends that there are fact questions based on inconsistencies in Officer Reyes‘ initial 21 account of the incident and his later testimony. Id. at 1-2, 4, 10. In particular, Russell points to 22 the following alleged inconsistencies in Officer Reyes‘ account: 23  In his initial incident report, Officer Reyes did not state that he fell to the ground after 24 being kicked by Russell whereas in subsequent testimony, Officer Reyes stated that after 25 he was kicked he fell to the ground in a sitting position. See Lagos Decl., Ex. A (Incident 26 Report); Ex. C (Reyes Dep.) at 14-15. 27 28  During his deposition, Officer Reyes testified both that Russell was sitting at the time Officer Reyes struck him and that he was standing. See Lagos Decl., Ex. C (Reyes Dep.) 9 at 24 (sitting), 34 (standing), 35 (―towering over at a close distance‖). 1 2  Officer Reyes stated in his declaration that he did not think he could safely escape because 3 Russell was only 3 or 4 feet away but does not explain why he could not have taken a step 4 backwards to get out of Russell‘s reach. Reyes Decl., ¶ 14; Lagos Decl., Ex. C (Reyes 5 Dep.) at 33, 38, 39, 42; see also Lagos Decl., Exs. D & E (DVDs showing site inspection 6 of holding cell). 7  Officer Reyes testified he knew one of Russell‘s arms was free and that he did not have time to determine whether the other was handcuffed, but he also testified that it is standard 9 procedure when a custody is place in a holding cell to handcuff at least one or both hands 10 to the safety bar and that in his experience no custody had ever been held in the holding 11 United States District Court Northern District of California 8 cell without having at least one arm handcuffed. Reyes Decl., ¶ 13; Lagos Decl., Ex. C 12 (Reyes Dep.) at 18-19, 21-22; see also Lagos Decl., Ex. F (Stratton Dep.) at 18 -20 13 (testimony that whether custody is handcuffed by both hands or just by one is at the 14 discretion of the officer and depends on level of compliance and threat perceived); Ex. I 15 (Morales Dep.) at 42 (testimony by Officer Morales that prisoners are always handcuffed 16 by at least one arm when they are in the booking bench area). 17 Russell also points to evidence that he contends creates a fact question as to whether he 18 kicked Officer Reyes or acted in an aggressive manner prior to being punched. In particular, he 19 cites the following evidence: 20  Testimony by Officer Stratton that Russell did not resist when she placed him in handcuffs. 21 Lagos Decl., Ex. F (Stratton Dep.) at 16, 48. According to Russell, this evidence shows 22 that he was ―not violent, aggressive, or resistant, to his arrest‖ and therefore he is entitled 23 to an inference that his ―compliance continued and that no attempt whatsoever was made 24 by him to assault [Officer] Reyes.‖ Opposition at 10. 25  Evidence that Russell suffered from Ankylosing Spondylitis and had a sore on his leg and 26 therefore would have been in great pain if he had kicked Officer Reyes as alleged. See 27 Russell Decl., ¶¶ 3-8. 28  A copy of an SFPD policy listing circumstances in which individuals are not to be detained 10 1 in district station holding cells, including ―[a]ggressive or combative persons who pose a 2 threat to other persons or to the facilities.‖ Lagos Decl., Ex. K. According to Russell, this 3 policy supports the inference that Russell was not acting in an aggressive or combative 4 manner. Opposition at 4. 5 In addition to the evidence summarized above, Russell also points to General Order 5.01 on ―Use of Force,‖ which requires that officers exhaust other reasonable alternatives before using 7 force and permits force to be used only under specific circumstances; the only applicable one in 8 this case is self-defense, Russell argues, and there is a fact question on that issue. Id. at 12. 9 According to Russell, the question of whether Officer Reyes violated the Police Department 10 policy on use of force is relevant to whether he acted reasonably for the purposes of Russell‘s 11 United States District Court Northern District of California 6 excessive force claim. Id. 12 Russell argues that Officer Reyes is not entitled to qualified immunity because a 13 reasonable officer would have known that under Graham and existing Ninth Circuit case law, a 14 fist strike to the face of a man handcuffed to a wall ―resulting in a fractured neck was unnecessary 15 and excessive.‖ Id. at 14. With respect to Russell‘s Monell claim,5 Russell contends there is a fact question because 16 17 Officer Reyes has not been disciplined, amounting to a ratification of the force used by Officer 18 Reyes, and there is a de facto policy of using more force than is required under the circumstances. 19 Id. at 15-16. Russell cites testimony by Officer Morales regarding the use of force investigation, 20 including his failure to ask Officer Reyes why he didn‘t take a step back, his failure to consider 21 whether other options were available to Office Reyes, his ―gross misunderstanding‖ of the legal 22 requirements governing the use of force, and the fact that he had conducted many such 23 investigations and had never found that the force used was excessive. Id. at 16. Plaintiff points to 24 the San Francisco Police Department‘s General Order 5.01 as evidence of the official policy, 25 limiting the use of force ―to the degree minimally necessary to accomplish a lawful police task.‖ 26 Id.; see also Lagos Decl., Ex. L (General Order 5.01). Plaintiff contends this official policy is not 27 5 28 Plaintiff refers to a single Monell claim. It is unclear whether his arguments are aimed at Claim Two, Claim Seven or both of those Monell claims. 11 1 followed and that instead, a de facto policy of condoning excessive force is followed.6 Id. Russell argues that there is a fact question as to the IIED claim because he suffered a 2 3 fractured vertebrae as a result of the force used against him by Officer Reyes. Id. at 17. Russell also rejects Defendants‘ argument that his Bane Act claim fails because Russell is 4 5 unable to establish that ―threats, coercion, or intimidation‖ were used to deprive him of his 6 constitutional rights, citing cases in which excessive force has been found to support a Bane Act 7 claim. Id. at 17-22. 8 As to Defendants‘ assertion that Plaintiff has failed to offer any theory in support of 9 asserting his state law claims against the City, Plaintiff cites California Government Code Section 10 815.2(a). Id. at 17. Finally, Russell argues that to the extent there is a fact question as to whether Defendants United States District Court Northern District of California 11 12 have engaged in a persistent pattern and practice of misconduct, a fact question also remains as to 13 his claim for injunctive relief. Id. at 23-24. iv. 14 Reply In their Reply brief, Defendants reiterate the arguments asserted in their Motion and assert 15 16 that Russell has applied the wrong legal standard. Reply at 1-2. In particular, on summary 17 judgment the Court must draw only reasonable inferences in favor of the party opposing the 18 motion. Id. On the other hand, it may not draw speculative inferences in favor of the party 19 opposing summary judgment where there is undisputed evidence that supports a contrary 20 conclusion. Id. Defendants contend Russell is asking the Court to draw such speculative 21 conclusions to deny summary judgment. 22 III. ANALYSIS A. 23 Legal Standard under Rule 56 24 Summary judgment on a claim or defense is appropriate ―if the movant shows that there is no 25 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.‖ 26 6 27 28 Plaintiff also cites the testimony of a police practices expert, Don Cameron, offered in another case, that General Order 5.01 could be written better. Id. at 16-17. However, Plaintiff does not articulate any coherent theory as to how that testimony is sufficient to demonstrate a fact question on his Monell claim in this case. 12 1 Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the 2 absence of a genuine issue of material fact with respect to an essential element of the non-moving 3 party‘s claim, or to a defense on which the non-moving party will bear the burden of persuasion at 4 trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this 5 showing, the burden then shifts to the party opposing summary judgment to designate ―specific 6 facts showing there is a genuine issue for trial.‖ Id. On summary judgment, the court draws all 7 reasonable factual inferences in favor of the non-movant. Scott v. Harris, 550 U.S. 372, 378 8 (2007). 9 10 United States District Court Northern District of California 11 B. Federal Claims Under 42 U.S.C. § 1983 i. Legal standard for section 1983 claims based on alleged excessive force Section 1983 provides ―a method for vindicating federal rights elsewhere conferred.‖ 12 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citation omitted)). Thus, analysis of a civil 13 rights claim brought under § 1983 begins with the identification of the ―specific constitutional 14 right allegedly infringed by the challenged application of force.‖ Id. at 394 (citation omitted). 15 The claim is then evaluated under the constitutional standards that apply to that constitutional 16 right. Id. (citing Tennessee v. Garner, 471 U.S. 1, 7–22 (1985)). Russell‘s excessive force claim is 17 asserted under the Fourth Amendment and therefore is analyzed under the Fourth Amendment‘s 18 ―objective reasonableness‖ standard. Arpin v. Santa Clara Valley Transportation Agency, 261 19 F.3d 912, 921 (9th Cir. 2001). 20 ―In considering an excessive force claim, [courts] balance ‗the nature and quality of the 21 intrusion on the individual‘s Fourth Amendment interests against the countervailing governmental 22 interests at stake.‘‖ Graham v. Connor, 490 U.S. 386, 396 (1989). Determining whether the force 23 used was reasonable ―requires careful attention to the facts and circumstances of each particular 24 case, including the severity of the crime at issue, whether the suspect poses an immediate threat to 25 the safety of the officers or others, and whether he is actively resisting arrest or attempting to 26 evade arrest by flight.‖ Graham v. Connor, 490 U.S. 386, 396 (1989). Of these factors, the Ninth 27 Circuit has held that the most important is ―whether the suspect poses an immediate threat to the 28 safety of the officers or others.‖ Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). ―Thus, 13 1 where there is no need for force, any force used is constitutionally unreasonable.‖ Headwaters 2 Forest Defense v. County of Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2000), vacated on other 3 grounds, 534 U.S. 801 (2001); see also Lolli v. County of Orange, 351 F.3d 410, 417 n. 5 (9th 4 Cir. 2003) (―Headwater’s excessive force holding remains good law, notwithstanding that the 5 opinion was vacated and the case remanded‖). The Court‘s inquiry is not limited to the three factors specifically enumerated in Graham, 6 7 however, because ―the test of reasonableness under the Fourth Amendment is not capable of 8 precise definition or mechanical application.‖ Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 9 2005). ii. 10 As a preliminary matter, the Court addresses the quantum of force used against Russell. 11 United States District Court Northern District of California Whether there is a fact question as to whether excessive force was used 12 While Officer Reyes punched Russell only once, it is undisputed that the punch required Russell 13 to be taken to the emergency room for treatment. There is also evidence in the record that Russell 14 suffered from a laceration and a fractured neck as a result of the punch. See Russell Decl., ¶ 11.7 15 Drawing all reasonable inferences in Russell‘s favor, the Court finds that Officer Reyes‘ blow was 16 ―‗capable of inflicting significant pain and causing serious injury,‘ and as such ‗[is] regarded as 17 ―intermediate force‖‘ that, while less severe than deadly force, nonetheless present[s] a significant 18 intrusion upon an individual‘s liberty interests.‘‖ Coles v. Eagle, 704 F.3d 624, 628 (9th Cir. 2012) 19 (quoting Young v. County of L.A., 655 F.3d 1156, 1161–62 (9th Cir. 2011)). In this context, the 20 Court addresses the factors set forth in Graham and its progeny to determine whether Defendants 21 are entitled to summary judgment on the basis that the force used against Russell was reasonable. First, the Court addresses the most significant Graham factor, whether Russell posed an 22 23 immediate threat to Officer Reyes. Defendants contend that there can be no factual dispute as to 24 whether Russell posed an immediate threat to Officer Reyes because Officer Reyes‘ account of the 25 26 27 28 7 The Court notes that Defendants object to Plaintiff‘s reliance on a medical screening card indicating that Plaintiff was not injured at the time he arrived at the station on the basis that it is hearsay. See Reply at 2-3; Lagos Decl., Ex. G. Because Plaintiff‘s own declaration is sufficient to create a fact question on this issue, the Court need not address whether the medical screening log would be admissible under an exception to the hearsay rule. 14 relevant events is the only account of what occurred, given that Russell admits that he does not 2 remember what happened, there were no eyewitnesses and there is no video footage. The Court 3 disagrees. The situation here is analogous to cases in which the individual against whom the 4 alleged excessive force was used was killed and thus is unable to testify. It is well-established that 5 under such circumstances, ―the court may not simply accept what may be a self-serving account 6 by the police officer.‖ Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Rather, ―[i]t must also 7 look at the circumstantial evidence that, if believed, would tend to discredit the police officer‘s 8 story, and consider whether this evidence could convince a rational factfinder that the officer acted 9 unreasonably.‖ Id. Thus, ―[t]he judge must carefully examine all the evidence in the record, such 10 as medical reports, contemporaneous statements by the officer and the available physical evidence, 11 United States District Court Northern District of California 1 as well as any expert testimony proffered by the plaintiff, to determine whether the officer‘s story 12 is internally consistent and consistent with other known facts.‖ Id. 13 Here, Russell has presented circumstantial evidence that he is unlikely to have acted 14 aggressively because of a medical condition that would have made it painful to kick anyone; he 15 also contends that because he did not resist Officer Stratton when she placed him in handcuffs he 16 is entitled to an inference that he was not aggressive towards Officer Reyes. This evidence by 17 itself would not provide a sufficient basis on which a reasonable jury could conclude that Officer 18 Reye‘s account was inaccurate and that Russell did not pose an immediate threat to Officer Reyes, 19 applying an objective standard. It is undisputed that Russell had consumed at least 10-11 drinks; 20 that he repeatedly said ―fuck you‖ to Officer Stratton when she placed him in handcuffs, and that 21 Officer Reyes heard ―loud banging, kicking, and yelling noises coming from the holding area.‖ 22 There is no evidence that there was anyone but Russell in the holding area. In light of these 23 undisputed facts, any inference that Russell was not acting aggressively is speculative. 24 Nonetheless, fact questions remain as to whether Russell posed an immediate threat because 25 Officer Reyes has given differing accounts as to what occurred in the moments leading up to his 26 use of force. In one account, he was kicked to the ground. In another, it appears that he remained 27 standing. He has also offered conflicting accounts as to whether Russell was seated or standing 28 when Officer Reyes struck him. Whether Officer Reyes could have simply taken a step or two 15 1 backwards to avoid injury, as Russell contends, depends on which version of events the jury 2 believes. Further, while Officer Reyes testified that he did not know if Russell was handcuffed to 3 the stanchion and did not have time to check, which caused him to believe Russell posed an 4 immediate threat, there is evidence in the record that prisoners were always handcuffed by at least 5 one arm when placed in the holding area, as a matter of policy, and that Officer Reyes was not 6 aware of any prisoner every being placed in the holding area without being handcuffed by at least 7 one arm. Indeed, Officer Reyes testified at his deposition that when Russell was booked, he was 8 satisfied that Russell had been handcuffed by one hand to the security bar even if he did not 9 actually place the handcuff on Russell.8 The officer‘s Incident report also supports this conclusion. A jury could reasonably conclude based on that evidence that Officer Reyes‘ belief 11 United States District Court Northern District of California 10 that Russell posed an immediate threat that required the level of force that was used by Officer 12 Reyes was not objectively reasonable. Therefore, the Court concludes that summary judgment on 13 the question of whether Officer Reyes used excessive force is inappropriate. iii. 14 Whether Officer Reyes is entitled to qualified immunity 15 Qualified immunity protects government officials performing discretionary functions 16 ―from liability for civil damages insofar as their conduct does not violate clearly established 17 statutory or constitutional rights of which a reasonable person would have known.‖ Harlow v. 18 Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). ―Qualified immunity balances two 19 important interests—the need to hold public officials accountable when they exercise power 20 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 21 perform their duties reasonably.‖ Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme 22 Court has stated that the ―driving force behind the creation of the qualified immunity doctrine was 23 a desire to ensure that insubstantial claims against government officials will be resolved prior to 24 discovery.‖ Id. (internal citations omitted). Thus, courts should resolve questions of qualified 25 immunity ―at the earliest possible stage in litigation.‖ Id. at 231-32 (citing Hunter v. Bryant, 502 26 U.S. 224, 227 (1991)). 27 8 28 As noted above, the record is unclear as to whether Officer Reyes himself secured Russell in the holding area or if this was done by some other officer. 16 1 There are two questions in the qualified immunity analysis: (1) whether there was a deprivation of a constitutional or statutory right, and (2) whether that constitutional or statutory 3 right was ―clearly established‖ at the time of the incident. See Saucier v. Katz, 533 U.S. 194 4 (2001); Pearson, 555 U.S. at 232. In Saucier, the Supreme Court held that the qualified immunity 5 analysis required that the district court first determine whether there was a violation of the 6 plaintiff‘s constitutional rights and that only if such a violation was found should it proceed to the 7 question of whether the violation involved a clearly established right. 533 U.S. at 201. In 8 Pearson, however, the Court modified this rule, holding that the qualified immunity analysis need 9 not be done in any particular order. 555 U.S. at 236. The Court reasoned that while the approach 10 required under Saucier‘s mandate may have a beneficial effect on the development of precedent, 11 United States District Court Northern District of California 2 ―[t]here are cases in which it is plain that a constitutional right is not clearly established but far 12 from obvious whether in fact there is such a right.‖ Id. at 237. Therefore, the Court concluded, a 13 more flexible approach is warranted and will permit the lower courts to ―determine the order of 14 decisionmaking that will best facilitate the fair and efficient disposition of each case.‖ Id. at 242. 15 The inquiry as to whether a constitutional right is clearly established is ―particularized.‖ 16 Saucier, 533 U.S. at 201. It is not enough that the general rule is established. Id. Rather, ―[t]he 17 contours of the right must be sufficiently clear that a reasonable official would understand that 18 what he is doing violates that right.‖ Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 19 640 (1987)). Although the existence of a clearly established constitutional right is usually 20 demonstrated on the basis of cases involving similar facts where the alleged conduct has been 21 found to be unconstitutional, ―[w]hen the defendant‘s conduct is so patently violative of the 22 constitutional right that reasonable officials would know without guidance from the courts that the 23 action was unconstitutional, closely analogous pre-existing case law is not required to show that 24 the law is clearly established.‖ Deorle v. Rutherford, 272 F.3d 1272, 1285-1286 (9th Cir. 2001) 25 (quotation and citation omitted). The Supreme Court has cautioned that courts should afford 26 ―deference to the judgment of reasonable officers on the scene‖ and should not use ―20/20 27 hindsight vision.‖ Saucier, 533 U.S. at 205. 28 Here, the Court has found that there is a fact question as to whether Officer Reyes violated 17 Russell‘s Fourth Amendment right to be free from excessive force. Therefore, Officer Reyes is 2 entitled to qualified immunity at this stage of the case only if the Court finds that even assuming 3 Officer Reyes used excessive force, he did so based on a reasonable, though mistaken, belief that 4 under established case law, his conduct was reasonable. As discussed above, on summary 5 judgment, the Court relies on undisputed facts and, where facts are disputed, must draw all 6 reasonable inferences in favor of the party opposing summary judgment. Depending upon what 7 the jury finds transpired in the holding area prior to Officer Reyes‘ use of force, and drawing all 8 reasonable inferences in Russell‘s favor, the jury could find that Officer Reyes knew that Russell 9 was secured to a safety bar by a handcuff and that he could avoid injury by taking a step back. 10 Under that version of events, a reasonable officer would have known under the preexisting case 11 United States District Court Northern District of California 1 law that punching Russell in the face constituted excessive force under the Fourth Amendment 12 even in the absence of a closely analogous case. See Palmer v. Sanderson, 9 F.3d 1433, 1434-36 13 (9th Cir. 1993) (holding that where officer placed intoxicated individual in handcuffs and 14 handcuffs were so tight they caused pain and bruising for weeks, defendant officer was not entitled 15 to summary judgment of qualified immunity because ―no reasonable officer could believe that the 16 abusive application of handcuffs was constitutional‖). 17 18 19 iv. Monell Claims a. Legal Standard Under Monell, a municipality cannot be held liable for constitutional injuries inflicted by 20 its employees on a theory of respondeat superior. Monell, 436 U.S. at 691. ―Instead, it is when 21 execution of a government‘s policy or custom, whether made by its lawmakers or by those whose 22 edicts or acts may fairly be said to represent official policy, inflicts the injury that the government 23 as an entity is responsible under § 1983.‖ Id. at 694. A plaintiff seeking to establish municipal 24 liability under section 1983 may do so in one of three ways: 1) the plaintiff may demonstrate that a 25 municipal employee committed the alleged constitutional violation ―pursuant to a formal 26 governmental policy or longstanding practice or custom which constitutes the standard operating 27 procedure of the local governmental entity;‖ 2) the plaintiff may demonstrate that the individual 28 who committed the constitutional violation was an official with ―final policy-making authority and 18 1 that the challenged action itself thus constituted an act of official government policy;‖ or 3) the 2 plaintiff may demonstrate that ―an official with final policy-making authority ratified a 3 subordinate‘s unconstitutional decision or action and the basis for it.‖ Gillette v. Delmore, 979 4 F.2d 1342, 1346 (9th Cir. 1992). 5 6 b. Claim Two (Policy and Practice of Excessive Force) In Claim Two, Russell alleges that the City has been deliberately indifferent to a pattern and practice by officers of using excessive force, amounting to a ratification of the police officers‘ 8 unconstitutional acts. Although Russell refers to ―ratification,‖ there is no evidence in the record 9 that any official with final policy-making authority ratified Officer Reyes‘ conduct. Although a 10 use of force investigation was conducted by Officer Morales, Defendants do not contend Officer 11 United States District Court Northern District of California 7 Moreles has final policy-making authority; moreover, Officer Morales conceded that he did not 12 document his investigation in a written memorandum to his supervisor, much less to any 13 individual with final policy-making authority. Thus, the question before the Court is whether 14 Plaintiff can establish that Officer Reyes was acting pursuant to a ―longstanding practice or 15 custom which constitutes the standard operating procedure‖ of the San Francisco Police 16 Department, of condoning the use of excessive force. The Court finds that Plaintiff has not 17 offered sufficient evidence to demonstrate the existence of a fact question on this issue. 18 A municipality may be held liable for a constitutional violation where it is shown that the 19 violation resulted from a policy of deliberate indifference on the part of the municipality to the 20 rights of its inhabitants. City of Canton v. Harris, 489 U.S. 378, 389 (1989). Post-event evidence 21 may be probative of such a policy. See Henry v. County of Shasta, 132 F.3d 512, 519 (9th Cir. 22 1997). In Henry, the court cited a Fifth Circuit case, Grandstaff v. City of Borger, 767 F.2d 161 23 (5th Cir. 1985) as the ―leading case on the use of post-event evidence in § 1983 liability cases‖ 24 and noted that Grandstaff had been cited with approval in previous Ninth Circuit decisions. Id. 25 (citing Larez v. City of Los Angeles,, 946 F.2d 630 (9th Cir. 1991) and McRorie v. Shimoda, 795 26 F.2d 780 (9th Cir. 1986)). In Grandstaff, the Fifth Circuit affirmed a jury verdict against the city 27 where members of the police force ―mistook an innocent person as a fugitive and killed him.‖ Id. 28 (citing Grandstaff, 767 F.2d at 117). The court recognized that isolated instances of official 19 1 misconduct are insufficient to establish municipal liability but found that ―the police chief‘s failure 2 to respond to the situation or make changes in order to prevent recurring violations evidenced the 3 city‘s preexisting policy of deliberate indifference to the dangerous recklessness of its police 4 officers.‖ Id. 5 Cases in which failure to reprimand has been found to show the existence of a pattern and 6 practice of deliberate indifference typically involve evidence of ―a blatantly unconstitutional 7 course of treatment.‖ Id. at 520. For example, in Henry, the court found that there was sufficient 8 evidence to survive summary judgment as to the plaintiff‘s Monell claim where the municipality 9 failed to fire or reprimand any officers after the plaintiff had been thrown naked into a ―rubber room‖ and held there for ten hours or more for failing to sign a traffic ticket. Id. There was 11 United States District Court Northern District of California 10 evidence that the Plaintiff had received similar treatment on a previous occasion, and two other 12 individuals submitted affidavits that they also had been treated in a similar manner for minor 13 traffic infractions. Id. In McRorie, the plaintiff alleged ―that a prison guard attempted to plunge 14 a riot stick into [the plaintiff‘s] anus during a strip search after a shakedown,‖ that the guard was 15 acting under the orders of his superiors, and that 28 other inmates were also seriously injured 16 during the strip search, showing that the attack was not an isolated incident. 795 F.2d at 781-782. 17 The Ninth Circuit held that the district court had erred in dismissing the plaintiff‘s claim for 18 failure to state a claim, finding that he should be permitted to amend his complaint to allege, if he 19 could, ―that the prison officials took no steps to reprimand or discharge the guards, or if they 20 otherwise failed to admit the guards' conduct was in error.‖ Id. Citing Grandstaff, the court 21 reasoned that such conduct would support an inference that there was a policy or custom of 22 deliberate indifference. Id. 23 Statements made after an event may also support an inference as to the existence of a 24 policy or custom of deliberate indifference. In Larez, for example, the police chief made a 25 statement outside the courthouse during the trial in an excessive force case that the plaintiff was 26 lucky he had only gotten a broken nose. 946 F.2d at 636. The court held that ―[w]here the 27 principal allegations in this case include among them that [the police chief] set a tone which 28 condoned and encouraged the use of excessive force, we can hardly think of better evidence than 20 1 statements consistent with those claims.‖ Id. at 645. In Sepatisv. City and County of San 2 Francisco, 217 F. Supp. 2d 992 (N.D. Cal. 2002), the court held that post-event testimony by one 3 of the arresting officers that ―departmental policy permits an officer to make a warrantless entry 4 into a home with a supervisor‘s approval, notwithstanding the absence of exigent circumstances‖ 5 was sufficient to give rise to a fact question that precluded dismissal of the plaintiff‘s Monell 6 claim on summary judgment. 7 Here, in contrast to the facts in McRorie and Henry, there is no evidence regarding other similar incidents of excessive force. While there is evidence that Officer Morales had conducted 9 between 20 and 25 use of force investigations during his tenure at the Richmond station and had 10 never found that excessive force was used, Plaintiff has not offered any evidence from which a 11 United States District Court Northern District of California 8 jury could reasonably find that Officer Morale‘s conclusions were incorrect as to any of those 12 investigations. 13 that would support the conclusion that the SFPD condones excessive force under circumstances 14 such as the ones in this case. Accordingly, the Court concludes that Defendants are entitled to 15 summary judgment on Claim Two. c. Claim Seven (Policy and Practice of Inadequate Training) 16 17 Nor has Plaintiff cited any statements comparable to those in Larez and Sepatis In Claim Seven, Plaintiff asserts a Monell claim based on ―negligent selection, training, 18 retention, supervision, investigation and discipline.‖ With respect to the City‘s alleged negligent 19 investigation and discipline, the Court finds that this claim duplicates Claim Two and therefore 20 dismisses the claim as to those theories. To the extent the claim is based on inadequate selection, 21 training and supervision, the Court finds that Plaintiff has offered no evidence other than the 22 evidence discussed in reference to Claim Two and therefore dismisses the remainder of the claim 23 on that basis. 24 25 26 C. State Law Claims i. Assault and Battery, IIED and Negligence Claims Defendants assert they are entitled to summary judgment on Plaintiff‘s state law claims 27 asserting assault and battery, IIED and negligence against Officer Reyes for the same reason 28 Plaintiff‘s excessive force claim fails, namely, the undisputed facts establish that Officer Reyes‘ 21 1 use of force was reasonable. Because the Court finds that there is a question of fact on that issue, 2 the Court finds that summary judgment on these claims is inappropriate as well. 3 4 ii. Bane Act Claim Defendants seek summary judgment on Plaintiff‘s claim under California Civil Code § 5 52.1 (the Bane Act) on the grounds that Officer Reyes‘ use of force was reasonable and even if it 6 were not, Plaintiff cannot demonstrate that the alleged violation of his constitutional rights was 7 accompanied by ―threats, intimidation, or coercion.‖ The Court rejects both arguments. 8 First, as discussed above, the Court finds that there are fact questions that cannot be resolved on 9 summary judgment as to whether Officer Reyes‘ use of force was reasonable. Second, for the reasons stated below, the Court rejects Defendants‘ argument that Plaintiff is required to establish 11 United States District Court Northern District of California 10 threats, intimidation or coercion independent of the alleged violation of his constitutional right to 12 be free of excessive force to prevail on his Bane Act claim. 13 California Civil Code § 52.1 gives rise to a claim where ―a person or persons, whether or 14 not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to 15 interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or 16 individuals of rights secured by the Constitution or laws of the United States, or of the rights 17 secured by the Constitution or laws of this state.‖ To prevail on a Bane Act claim, a plaintiff 18 must demonstrate : 1) an act of interference with a legal right by 2) intimidation, threats or 19 coercion. Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998). 20 Unlike a federal civil rights claim under 42 U.S.C. § 1983, a Bane Act claim may be 21 asserted against private individuals as well as state actors. Id. Nonetheless, where the claim is 22 brought against a private individual based on interference with the plaintiff‘s constitutional rights, 23 the plaintiff must demonstrate that a state actor engaged in unconstitutional conduct, as a private 24 citizen cannot directly violate the constitutional rights of another individual. Id. at 334-335. Thus, 25 in Jones, the California Supreme Court held that a Bane Act claim for alleged interference with 26 the plaintiff‘s Fourth Amendment rights based on a citizens‘ arrest was subject to dismissal 27 because although the plaintiff could establish that the defendants, all of whom were private 28 individuals, had used intimidation, threats or coercion in the course of conducting the arrest, the 22 1 plaintiff could not show that his constitutional right to be free from excessive force had been 2 violated because no state actor was involved in the citizens‘ arrest. Id. 3 ―Courts in California are split on whether a Fourth Amendment excessive force or false 4 arrest violation alone qualifies for the element of interference with a legal right under § 52.1.‖ 5 Haynes v. City and County of San Francisco, 2010 WL 2991732, at * 6 (N.D.Cal., July 28, 2010) 6 (citing Justin v. City and County of San Francisco, 2008 WL 1990819, at *9 (N.D.Cal., May 5, 7 2008); Cole v. Doe 1 thru 2 Officers of City of Emeryville Police Dept., 387 F.Supp.2d 1084, 1102 8 (N.D.Cal. 2005)). In Justin, the court held that ―Section 52.1 is only applicable when a defendant 9 intends by his or her conduct to interfere with a separate, affirmative right enjoyed by a plaintiff; it does not apply to a plaintiff‘s allegation of use of excessive force absent a showing that the act 11 United States District Court Northern District of California 10 was done to interfere with a separate state or federal constitutional right.‖ 2008 WL 1990819, at 12 *9. On that basis, the court held that a Bane Act claim against San Francisco police officers who 13 were alleged to have used excessive force was subject to dismissal on a motion for summary 14 judgment. Id. 15 This court finds the reasoning in Justin unpersuasive. In support of its conclusion, the 16 court in Justin relied on the California Supreme Court‘s decision in Jones and a decision by a 17 district court in the Eastern District of California, Rios v. v. City of Fresno, 2006 WL 3300452 18 (E.D.Cal., Nov. 14, 2006). In Rios, the plaintiff asserted a Bane Act claim based on the allegation 19 that he was arrested without probable cause and that excessive force was used against him in the 20 course of the arrest. On summary judgment, the court dismissed the Bane Act claim on the basis 21 that there was ―no evidence that any defendant attempted to interfere with a specific constitutional 22 right by threats, intimidation or coercion, or by committing or threatening to commit a violent act 23 against plaintiff or that plaintiff reasonably believed that if he exercised a specific constitutional 24 right, defendants would commit violence against him.‖ 2006 WL 3300452, at *20. Implicit in the 25 court‘s holding was the assumption that conduct that constituted ―intimidation, threats or 26 coercion‖ had to be independent of the conduct that constituted the constitutional violation. 27 However, the court did not cite any authority for this proposition or address the basis for its 28 conclusion. Therefore, Rios does not provide strong support for the holding of Justin. 23 1 Nor is the reliance in Justin on the Jones decision persuasive. As discussed above, the 2 California Supreme Court‘s decision in Jones stands for the proposition that where a Bane Act 3 claim is asserted against a private individual based on alleged interference with the plaintiff‘s 4 constitutional rights, the plaintiff must demonstrate some state action that deprived him of his 5 constitutional rights because a private individual cannot violate the constitutional rights of another 6 private individual. In that context, a plaintiff will be required to demonstrate that there was 7 conduct by a state actor that gave rise to a constitutional violation, separate and apart from 8 whatever ―intimidation, threats or coercion‖ is alleged as to the private individual. That, 9 however, was not the situation in Justin and it is not the situation here: the Bane Act claim is alleged against police officers employed by the City and County of San Francisco, whose conduct 11 United States District Court Northern District of California 10 can give rise to a constitutional violation. 12 The Court therefore declines to follow the approach taken in Justin. Rather, the court 13 agrees with Judge Hamilton, of this district, who has found that ―district court cases, and a review 14 of California case law suggest . . . that the best interpretation of the Bane Act as it currently stands 15 is that section 52.1 does not require violence or threat of violence tied to a separate and 16 independent right.‖ Goings v. Elliot, 2010 WL 9474665, at *9 (N.D.Cal., Mar. 19, 2010). In 17 Warner v. County of San Francisco, 2011 WL 662993 (S.D.Cal. Feb. 14, 2011), in which a Bane 18 Act claim was asserted on the basis of alleged excessive force, the court offered the following 19 reasoning in support of this conclusion, which this Court finds persuasive: 20 21 22 23 24 25 26 27 28 Defendants also argue that Plaintiffs have failed to state a § 52.1 claim because Plaintiffs have not identified threats, intimidation, or coercion independent of the alleged constitutional violation. Defendants rely on Justin v. City and County of San Francisco, 2008 WL 1990819, at *9 (N.D.Cal. 2008), where the court held, ―Section 52.1 is only applicable when a defendant intends by his or her conduct to interfere with a separate, affirmative right enjoyed by a plaintiff; it does not apply to a plaintiff's allegation of use of excessive force absent a showing that the act was done to interfere with a separate state or federal constitutional right.‖ Id. at * 9. In Venegas v. County of Los Angeles, 32 Cal.4th 820, 11 Cal.Rptr.3d 692, 87 P.3d 1 (2004), however, the California Supreme Court did not say anything about a requirement that the use of a threat, intimidation, or coercion be separate and apart from the alleged constitution violation. In Venegas, the plaintiffs brought a 24 claim under § 52.1 for unreasonable search and seizure. The California Supreme Court held that the California Court of Appeal correctly held that plaintiffs adequately stated a cause of action under § 52.1 because plaintiffs need only allege that the unconstitutional search and seizure violations ―were accompanied by the requisite threats, intimidation, or coercion.‖ Id. at 843, 11 Cal.Rptr.3d 692, 87 P.3d 1. (Emphasis added.) It does not appear that the plaintiffs in Venegas alleged that there was any use of force or coercion beyond the unreasonable search and arrest. 1 2 3 4 5 Based on Venegas, courts within the Ninth Circuit have disagreed with Justin, and have held that plaintiffs may base a § 52.1 claim on the threats, intimidation, or coercion exercised in connection with the alleged use of excessive force or unreasonable search or seizure. For example, in Haynes v. City and County of San Francisco, 2010 WL 2991732, at * 7 (N.D.Cal. July 28, 2010), the court held that the act underlying the excessive force claim— pushing plaintiff into the wall—was sufficient evidence to create a genuine issue of material fact as to whether the defendant acted with threats, intimidation, or coercion. See also Knapps, 647 F.Supp.2d at 1168 (explaining that because the force used by the defendant officers was excessive, the defendants were liable under § 52.1— ―The elements of a section 52.1 excessive force claim are essentially identical to those of a § 1983 excessive force claim .‖); Moreno v. Town of Los Gatos, 267 Fed. Appx. 665 (9th Cir.2008) (reversing dismissal of § 52.1 claim because officers‘ threat to arrest some of the plaintiffs and actual arrest of others may have coercively interfered with their Fourth Amendment rights). 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 The Court is not convinced that § 52.1 requires that there be threats, intimidation, or coercion beyond the unconstitutional use of force or unreasonable search or seizure. Accordingly, the Court denies Defendants' motion as to Plaintiffs' § 52.1 claim. 16 17 18 Id. at * 4-5. 19 Because the Court finds that Plaintiff is not required to establish a separate constitutional 20 violation independent from the alleged ―threats, intimidation or coercion,‖ and because there is a 21 fact question as to whether the force used against Russell was reasonable, the Court denies 22 Defendants‘ request for summary judgment as to the Bane Act claim. 23 24 iii. State Law Claims Against the City Plaintiff asserts his claims for battery, IIED, negligence and violation of the Bane Act 25 against both Officer Reyes and the City. Defendants did not respond to Plaintiff‘s assertion, in his 26 opposition brief, that liability may be asserted against the City under California Government Code 27 § 815.2(a). Section 815.2(a) provides as follows: 28 A public entity is liable for injury proximately caused by an act or 25 2 omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. 3 Cal. Gov‘t. Code § 815.2(a). On the basis of this section, the Court rejects Defendants‘ assertion 4 that they are entitled to summary judgment as to the state law claims insofar as they are asserted 5 against the City.9 1 iv. 6 Claim for Injunctive and Declaratory Relief Defendants seek dismissal of Plaintiff‘s claim for injunctive and declaratory relief, arguing 7 that the likelihood that the conduct at issue will be repeated is speculative. Defendants rely on 9 City of Los Angeles v. Lyons, in which the Ninth Circuit held that the plaintiff, who had alleged 10 that he had been subjected to excessive force when a police officer held him in a chokehold, did 11 United States District Court Northern District of California 8 not have standing to seek injunctive relief because he had not alleged facts showing a ―real and 12 immediate threat‖ that the alleged unconstitutional conduct would be repeated. 461 U.S. 95, 105 13 (1983). Plaintiff cites an alleged pattern and practice of using excessive force in support of these 14 claims. However, as discussed above, the Court finds that Plaintiff has failed to demonstrate the 15 existence of a fact question as to the existence of a pattern and practice. Therefore, the Court also 16 finds that Plaintiff‘s claims for injunctive and declaratory relief fail on summary judgment. 17 18 19 20 21 22 23 24 9 25 26 27 28 Although the parties did not offer any case authority in support of their positions, the Court notes that in Darraj v. County of San Diego, 2013 WL 1796990, at * 15 (S.D.Cal., April 29, 2013), the court expressly held that the County could be sued under the Bane Act, relying on the ―person or persons‖ language of the Bane Act, and in addition, that under Section 815.2(a) a municipality may be held vicariously liable for violation of the Bane Act; see also Quinn v. Fresno County Sheriff, 2012 WL 2052162, at *11 (E.D.Cal., June 06, 2012) (finding that the County could be held vicariously liable on negligence and IIED claims based on the conduct of one of its police officers under Cal. Gov‘t Code § 815.2(a)). 26 1 2 IV. CONCLUSION For the reasons stated above, the Motion is GRANTED with respect to Claims Two and 3 Seven (the Monell claims) and on Claim Nine, for injunctive and declaratory relief. As to 4 Plaintiff‘s remaining claims, the Motion is DENIED. 5 IT IS SO ORDERED. 6 7 Dated: June 5, 2013 8 9 ________________________ JOSEPH C. SPERO United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27

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