Valdez et al v. City of San Jose et al
Filing
162
ORDER by Judge Claudia Wilken DENYING 118 MOTION FOR CLASS CERTIFICATION; GRANTING IN PART AND DENYING IN PART 127 MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 2/27/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FRANCISCO VALDEZ, et al.,
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No. C 09-0176 CW
Plaintiffs,
v.
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CITY OF SAN JOSE, et al.,
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Defendants.
________________________________/
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United States District Court
For the Northern District of California
ORDER DENYING
MOTION FOR CLASS
CERTIFICATION
(Docket No. 118);
GRANTING IN PART
AND DENYING IN
PART MOTION FOR
SUMMARY JUDGMENT
(Docket No. 127)
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Plaintiffs Francisco Valdez, Ricardo Vasquez, Daniel
Martinez, and Jamil Stubbs bring this action against the City of
San Jose, San Jose Police Chief Robert Davis, and San Jose Police
Officers R. Agamau, Martin, Rickert, Wallace, and Orlando.1
Plaintiffs now move for class certification.
the motion and move for summary judgment.
motion for summary judgment.
Defendants oppose
Plaintiffs oppose the
Having considered the parties’
papers and oral argument, the Court denies Plaintiffs’ motion for
class certification and grants in part and denies in part
Defendants’ motion for summary judgment.
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BACKGROUND
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All four Plaintiffs were arrested for violating section
647(f) of the California Penal Code, also known as California’s
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Agamau is named in the operative complaint as “R. Agaman”
but indicates in his declaration that his true name is Agamau.
Declaration of Ryan Amagau ¶ 1. Plaintiffs also seem to address
claims against two other officers, Michael Panighetti and Gustavo
Perez, neither of whom were named as defendants in the operative
complaint.
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public intoxication law.
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of disorderly conduct, a misdemeanor, if he or she
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United States District Court
For the Northern District of California
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Under that provision, a person is guilty
is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance,
toluene, or any combination of any intoxicating liquor,
drug, controlled substance, or toluene, in a condition
that he or she is unable to exercise care for his or her
own safety or the safety of others, or by reason of his
or her [intoxication], interferes with or obstructs or
prevents the free use of any street, sidewalk, or other
public way.
Cal. Penal Code § 647(f).
Plaintiffs, all of whom are either African-American or
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Latino,2 were arrested by the San Jose Police Department (SJPD) in
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downtown San Jose between 2007 and 2008.
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describe their arrests in greater detail.
The following sections
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A.
Plaintiff Martinez’s Arrest
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On the evening of February 1, 2007, Martinez went to a
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nightclub in downtown San Jose with his friend, Shana Stewart, and
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his cousin.
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of D. Martinez, at 19:21-20:2; Declaration of Shana Stewart ¶ 2.
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About an hour after they arrived, a group of women assaulted
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Stewart and stole her purse while she was waiting in line for the
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bathroom.
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Martinez and his cousin did not see the incident, Stewart told
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them about it immediately afterward and described her assailants
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to them.
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¶ 4, Ex. A, at 1.
Declaration of M. Jeffrey Kallis, Ex. B, Deposition
Stewart Decl. ¶ 3; Martinez Depo. 44:21-:23.
Although
Stewart Decl. ¶¶ 3-4, 7; Declaration of Daniel Martinez
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All Plaintiffs identify as Latino, except Plaintiff Stubbs,
who identifies as African-American.
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2
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A short while later, Martinez saw a security guard in front
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of the nightclub speaking to a woman who resembled one of
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Stewart’s attackers.
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45:3-:6; Stewart Decl. ¶ 7.
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to go speak with the police, who had just arrived at the nightclub
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a few minutes earlier.
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refused and began to flee.
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tell one of the SJPD officers at the scene that the woman was
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getting away but the officer ignored him.
Martinez Decl., Ex. A, at 1; Martinez Depo.
He approached the woman and asked her
Martinez Depo. 43:23-44:4.
Id. 62:6-:15.
The woman
Martinez then tried to
Id. 61:23-62:17.
United States District Court
For the Northern District of California
10
Instead of pursuing the woman, the officer, who was speaking to
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Stewart at the time, told Martinez to leave them alone.
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62:12-:17.
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Id.
Martinez then approached another officer to report that
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Stewart’s attacker was fleeing.
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Martinez, the officer responded by asking Martinez to step toward
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the curb.
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Disappointed that the officer refused to pursue Stewart’s
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attacker, Martinez called the officer an “asshole”; he states,
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however, that despite his frustration, he still complied with the
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officer’s instructions to walk towards the curb.
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61:18-:22, 73:3-:15.
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the curb, Martinez claims that the officer “grabbed [his] right
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hand and twisted it behind [his] back.”
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officer then placed him under arrest and put him inside a police
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van.
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officer why he was being arrested, the officer told him that it
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was because he was drunk.
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73:3-:15.
Id. 63:5-:14.
According to
Id. 65:19-:24; Martinez Decl., Ex. A, at 1.
Martinez Depo.
At that moment, as he began walking toward
Martinez Decl. ¶ 2, Ex. A, at 2.
Id. 73:1-:15.
The
When Martinez asked the
Id., Ex A, at 2; Martinez Depo.
Martinez admits that he had a rum-and-coke and part of
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a beer earlier in the night but denies that he was drunk when he
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was arrested.
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Ex. A, at 2.
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Martinez Depo. 29:18-:20, 55:4-:8; Martinez Decl.,
Officer Wallace, who made the arrest, disputes this account
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and states that Martinez appeared “very drunk” to him.
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Declaration of Martin Wallace ¶ 8.
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bloodshot eyes, an unsteady gait, and emitted “a strong odor of
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alcohol.”
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wandering around in the street prior to his arrest and harassing
Id. ¶ 8.
He asserts that Martinez had
Wallace also asserts that Martinez had been
United States District Court
For the Northern District of California
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various officers.
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believed that “Martinez was unable to care for his safety” and
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decided to arrest him under section 647(f).
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African-American, asserts that he “gave no consideration to the
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fact that Mr. Martinez is Hispanic in making the decision to
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arrest him.”
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Id. ¶ 7.
Based on these observations, Wallace
Id.
Wallace, who is
Id. ¶ 10.
Stewart, who is white, was arrested by another SJPD officer,
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Officer Martin, shortly thereafter.
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asserts that she, too, was sober at the time of her arrest.
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¶ 10.
Stewart Decl. ¶¶ 12-13.
She
Id.
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B.
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On June 27, 2008, Valdez and Vasquez drove together from
Plaintiffs Valdez and Vasquez’s Arrests
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Freedom, California, where they reside, to San Jose.
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Decl., Ex. D, Deposition of R. Vasquez, at 9:2-:14.
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in the early evening and parked at a downtown 7-Eleven on Santa
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Clara Street.
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After spending a “few hours” in the downtown area, the two
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returned to the 7-Eleven to drive back to Freedom.
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15:25-16:4; Vasquez Depo. 8:17-:20.
Kallis
They arrived
Id., Ex. C, Deposition of F. Valdez, at 14:1-:8.
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Id.
Neither recalls exactly where
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they went or how long they spent in the downtown area but both
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assert that they did not purchase any alcohol while they were
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there.
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23:4-:10.
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Valdez Depo. 16:5-:9; Vasquez Depo. 11:7-:12, 12:3-:5,
When they returned to the truck that evening, Vasquez entered
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the 7-Eleven to buy some snacks and non-alcoholic beverages for
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the drive home.
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in the parking lot near the truck.
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20:2-:13.
Vasquez Depo. 16:18-:22.
Valdez waited for him
Id. 16:6-:17; Valdez Depo.
According to Valdez, several SJPD officers -- he does
United States District Court
For the Northern District of California
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not recall the exact number -- approached him while he was
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standing in the parking lot and began questioning him about why he
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was there.
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replied that he was waiting for his friend, one of the officers
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went inside the store to find Vasquez.
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while he was speaking to the officers in the parking lot, one of
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them told him, “We don’t want your kind here.”
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Valdez Depo. 20:11-:20, 23:2-:4, 23:15-:19.
Id.
When he
Valdez asserts that
Id. 24:6-:8.
Meanwhile, the officer who went into the 7-Eleven quickly
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found Vasquez and escorted him towards the parking lot with the
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other officers.
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his deposition that the officer grabbed his hand and twisted it as
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they left the store.
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officers refused to respond to him and Valdez when they asked why
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they were being questioned.
Vasquez Depo. 16:18-:25.
Id. 17:1-:7.
Vasquez testified at
He also testified that the
Id. 17:16-:20, 18:19-19:8.
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Once Valdez and Vasquez were both in the parking lot, the
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police zip-tied their hands, placed them under arrest, and put
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them in a police van.
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24:2-:14.
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early the next morning.
Vasquez Depo. 18:19-19:5; Valdez Depo.
The two were then detained in police custody until
Valdez Depo. 24:24-:25; Vasquez Depo.
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29:5-:6.
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that he brought from Freedom earlier in the evening, both he and
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Vasquez assert that they were not intoxicated when they were
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arrested.
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26:13-:18, 35:22-:23.
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Although Valdez admits to having consumed some whiskey
Valdez Depo. 17:11-:20, 36:11-37:1; Vasquez Depo.
The SJPD officers who arrested Valdez and Vasquez dispute
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their claims of sobriety.
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of Vasquez’s arrest, Officer Panighetti states that Vasquez had
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“red blood shot watery eyes, slurred speech, [and] staggered
In a report detailing the circumstances
United States District Court
For the Northern District of California
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gait.”
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Officer Amagau’s report, which documents the circumstances of
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Valdez’s arrest, similarly states that Valdez had “bloodshot eyes,
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staggering gait, [and] slurred speech.”
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Booking Information Sheet for F. Valdez.
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Valdez was “in the middle of 10th [Street] . . . walking in
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circles” when Amagau first encountered him.
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assert that they arrested Vasquez and Valdez for public
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intoxication based on their observations of the pair’s behavior at
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the 7-Eleven that night.
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8.
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these observations and not on Valdez or Vasquez’s race or
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ethnicity.
Declaration of Michael Panighetti ¶ 5, Ex. B, at 2.
Kallis Decl., Ex. J, PreIt also states that
Id.
The officers
Panighetti Decl. ¶ 6; Amagau Decl. ¶¶ 7-
The officers also assert that the arrests were based solely on
Panighetti Decl. ¶ 6; Amagau Decl. ¶ 8.
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C.
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On September 6, 2008, Stubbs and his friend, Leon Shirley,
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drove together from Newark, California, to San Jose to attend a
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couple of live musical performances.
Kallis Decl., Ex. A,
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Deposition of J. Stubbs, at 16:1-:9.
They parked in a public
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garage on Third Street at about 9:00 p.m.
Plaintiff Stubbs’ Arrest
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Id. 19:2-:10;
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Declaration of Leon Shirley ¶ 3.
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performances at two downtown nightclubs, Stubbs and Shirley walked
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back to the garage at around 1:00 a.m. to drive back to Newark.
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Stubbs Depo. 27:20-28:3; Shirley Decl. ¶ 4.
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After attending a couple of
When they returned to the garage, they encountered two SJPD
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officers near Shirley’s car.
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32:6-:8.
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as Stubbs was putting out a cigarette beside the car; the other
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officer approached Shirley.
Shirley Decl. ¶ 8; Stubbs Depo.
According to Stubbs, one of the officers approached him
Stubbs Depo. 28:11-:14, 29:15-:19,
United States District Court
For the Northern District of California
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32:6-:21.
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could not hear exactly what Shirley was saying to the officer, it
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sounded like Shirley “was getting smart” with him.
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While Shirley was speaking to that officer, the other officer
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“pulled [Stubbs] to the side” and accused him of urinating on the
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wall of the parking garage, a charge that Stubbs immediately
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denied.
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officers placed both Shirley, who is white, and Stubbs under
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arrest.
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admits that he had a few drinks at a nightclub earlier in the
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evening, both he and Shirley assert that he was not exhibiting any
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signs of intoxication or defiance when they were arrested.
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Stubbs Depo. 57:16-58:9; Shirley Decl. ¶ 11.
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Stubbs testified at his deposition that, although he
Id. 36:5-:17.
Id. 32:18-:21.
After some further discussion, the
Id. 32:11-:12; Shirley Decl. ¶¶ 9-10.
Although Stubbs
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Officer Orlando, who arrested Stubbs, disputes these claims.
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He states in his declaration that Stubbs first caught his
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attention “because he was urinating on the wall in the garage.”
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Although Shirley is not a plaintiff in this lawsuit, he
asserts that he, too, was sober when he was arrested. Shirley
Decl. ¶ 5 (“During the entire time in San Jose that night, I did
not consume any alcohol.”).
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Declaration of Brandon Orlando ¶ 5.
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Stubbs’ “eyes were bloodshot,” his breath smelled of alcohol, and
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“he was verbally combative and would not listen to commands.”
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¶ 6.
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Stubbs for public intoxication based on these observations.
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Kallis Decl., Ex. J., Pre-Booking Information Sheet for J. Stubbs.
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Orlando asserts that neither he nor Officer Perez, who arrested
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Shirley, based their decisions on Stubbs’ or Shirley’s race.
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Orlando Decl. ¶ 9.
Orlando further asserts that
Id.
According to Orlando’s police report, he decided to arrest
United States District Court
For the Northern District of California
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D.
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Plaintiffs filed this putative class action lawsuit against
Procedural Background
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the City of San Jose and several SJPD officers on January 14,
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2009.
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on July 14, 2009.
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sixteen causes of action: (1) a claim under 42 U.S.C. § 1983 and
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Monell v. Department of Social Services, 436 U.S. 658 (1978),
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against the City based on an alleged policy, custom and long-
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standing practice of wrongfully arresting individuals for
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violations of Penal Code section 647(f), infringing on Plaintiffs’
Docket No. 1.
They filed a second amended complaint (2AC)
Docket No. 27.4
In their 2AC, they assert
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Plaintiffs apparently intended to amend the 2AC to add
Panighetti and Perez as defendants but, to date, have not actually
done so. On November 19, 2009, they filed a document entitled,
“Amendment to Complaint to Identify Does by True Names and
Capacities.” Docket No. 30. Plaintiffs filed that document
without obtaining leave to amend the complaint or a stipulation
from Defendants permitting such an amendment. The document did
not include a copy of the proposed third amended complaint, as
required by the local rules, Civil L.R. 10-1 (“Any party filing or
moving to file an amended pleading must reproduce the entire
proposed pleading and may not incorporate any part of a prior
pleading by reference.”), nor was it served on Panighetti and
Perez. Accordingly, the Court treats Plaintiffs’ 2AC as the
operative complaint.
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First, Fifth, Sixth, Eighth, and Fourteenth Amendment rights;
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(2) a Monell claim under § 1983 against Chief Davis based on his
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actions as a final policy maker; (3) a Monell claim under § 1983
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against Chief Davis based on his actions ratifying police
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misconduct; (4) a Monell claim under § 1983 against the City for
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failure to train police officers as to the rights secured by the
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First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments;
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(5) a claim under § 1983 against Chief Davis for “supervisory
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liability based on the misconduct of subordinates”; (6) a claim
United States District Court
For the Northern District of California
10
under § 1983 against Agamau, Martin, Rickert, Wallace and Orlando
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for falsely detaining, arresting, and incarcerating Plaintiffs in
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violation of their First and Fourth Amendment rights, as well as
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depriving them of their Fifth, Sixth, and Eighth Amendment rights
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and enforcing section 647(f) in a discriminatory manner in
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violation of the Fourteenth Amendment; (7) a claim against all
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Defendants for conspiracy under 42 U.S.C. § 1985; (8) a claim for
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false arrest against Agamau, Martin, Rickert, Wallace and Orlando;
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(9) a claim for false imprisonment against the same officers;
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(10) a claim for battery against the same; (11) a claim against
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all Defendants for violation of the Ralph Act, California Civil
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Code section 51.7; (12) a claim against all Defendants for
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violation of the Bane Act, California Civil Code section 52.1(b);
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(13) a claim against all Defendants for civil conspiracy to
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violate civil rights and commit torts; (14) a claim against all
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Defendants for aiding and abetting civil rights violations and the
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commission of torts; (15) a claim for negligence against all
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Defendants; and (16) a claim for injunctive relief against all
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Defendants.
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On May 29, 2012, Plaintiffs moved to certify a class
consisting of
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[a]ll individuals who between January 14, 2006 and the
present were arrested for violation of section 647(f)
where the Affidavit of Probable Cause fails to present
objective facts, other than the four subjective
symptoms, sufficient to demonstrate a violation of Penal
Code § 647(f).
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Pls.’ Mot. Class Cert. 5.
defined as
[a]ll racial minorities who between January 14, 2006 and
the present were subjected to unequal and discriminatory
enforcement of Penal Code 647(f) based upon their race
as demonstrated in Penal Code § 647(f) police paperwork
and the statistical analysis.
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United States District Court
For the Northern District of California
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They also seek to certify a subclass
Id. at 5-6.
Defendants filed an opposition and moved for summary
judgment on June 8, 2012.
DISCUSSION
I.
Defendants’ Motion for Summary Judgment
A.
Legal Standard
Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the non-moving party, the movant is
clearly entitled to prevail as a matter of law.
Fed. R. Civ.
P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
1987).
The moving party bears the burden of showing that there is no
material factual dispute.
Therefore, the court must regard as
true the opposing party’s evidence, if supported by affidavits or
other evidentiary material.
815 F.2d at 1289.
Celotex, 477 U.S. at 324; Eisenberg,
The court must draw all reasonable inferences
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in favor of the party against whom summary judgment is sought.
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
3
587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952
4
F.2d 1551, 1558 (9th Cir. 1991).
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Material facts which would preclude entry of summary judgment
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are those which, under applicable substantive law, may affect the
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outcome of the case.
The substantive law will identify which
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facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986).
Where the moving party does not bear the burden
United States District Court
For the Northern District of California
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of proof on an issue at trial, the moving party may discharge its
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burden of production by either of two methods:
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The moving party may produce evidence negating an
essential element of the nonmoving party’s case, or,
after suitable discovery, the moving party may show that
the nonmoving party does not have enough evidence of an
essential element of its claim or defense to carry its
ultimate burden of persuasion at trial.
Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d
1099, 1106 (9th Cir. 2000).
If the moving party discharges its burden by showing an
absence of evidence to support an essential element of a claim or
defense, it is not required to produce evidence showing the
absence of a material fact on such issues, or to support its
motion with evidence negating the non-moving party’s claim.
Id.;
see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);
Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
If
the moving party shows an absence of evidence to support the nonmoving party’s case, the burden then shifts to the non-moving
party to produce “specific evidence, through affidavits or
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1
admissible discovery material, to show that the dispute exists.”
2
Bhan, 929 F.2d at 1409.
If the moving party discharges its burden by negating an
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essential element of the non-moving party’s claim or defense, it
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must produce affirmative evidence of such negation.
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F.3d at 1105.
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burden then shifts to the non-moving party to produce specific
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evidence to show that a dispute of material fact exists.
Nissan, 210
If the moving party produces such evidence, the
Id.
If the moving party does not meet its initial burden of
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United States District Court
For the Northern District of California
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production by either method, the non-moving party is under no
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obligation to offer any evidence in support of its opposition.
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Id.
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ultimate burden of persuasion at trial.
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This is true even though the non-moving party bears the
B.
Id. at 1107.
Federal Claims against Defendants Wallace, Agamau, and
Orlando
1.
Fourth Amendment Claims
The Fourth Amendment requires police officers to have
probable cause before making a warrantless arrest.
Ramirez v.
City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2008) (citing
Michigan v. Summers, 452 U.S. 692, 700 (1981)).
“Probable cause
to arrest exists when officers have knowledge or reasonably
trustworthy information sufficient to lead a person of reasonable
caution to believe that an offense has been or is being committed
by the person being arrested.”
United States v. Lopez, 482 F.3d
1067, 1072 (9th Cir. 2007).
Defendants move for summary judgment on the grounds that the
individual officers who arrested Plaintiffs had probable cause to
believe that Plaintiffs had violated section 647(f).
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12
Because
1
disputed issues of material fact remain with respect to each
2
Plaintiff’s arrest, summary judgment must be denied.
a.
3
4
Officer Wallace
Wallace and Martinez offer conflicting accounts of the events
5
surrounding Martinez’s arrest.
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whether Martinez was drunk when he was arrested.
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that he had less than two drinks on the evening of his arrest,
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Martinez Depo. 29:18-:20, 55:4-:8, while Wallace asserts that he
9
appeared “very drunk” to him, Wallace Decl. ¶ 8.
United States District Court
For the Northern District of California
10
Most significantly, they dispute
Martinez asserts
In addition to disputing Martinez’s sobriety, Martinez and
11
Wallace dispute whether Martinez defied Wallace’s instructions
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that night.
13
Martinez, more than once, to move to the sidewalk for his safety
14
but he did not.”
15
however, Martinez testified that he followed Wallace’s
16
instructions to walk towards the curb.
Wallace states in his declaration that he “asked Mr.
Wallace Decl. ¶ 7.
During his deposition,
Martinez Depo. 73:3-:6.
17
These factual disputes are central to the question of whether
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or not Wallace had probable cause to arrest Martinez under section
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647(f).
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cannot be resolved by summary judgment.
b.
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Accordingly, the Fourth Amendment claims against Wallace
Officer Agamau
Amagau and Valdez dispute several relevant facts regarding
23
the circumstances of Valdez’s arrest.
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declaration that he found Valdez “walking in circles on 10th
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Street.”
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deposition expressly denied walking in the middle of the street.
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Valdez Depo. 31:15-:25.
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Valdez that night, “it was readily apparent he was highly
Agamau Decl. ¶ 5.
Agamau asserts in his
Valdez, in contrast, during his
Agamau states that, when he encountered
13
1
intoxicated.”
Agamau Decl. ¶ 6.
Valdez, however, testified at
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his deposition that, other than the small bit of whiskey he had
3
consumed a “few hours” earlier, he “wasn’t drinking” on the night
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he was arrested.
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(stating that at “the time I was arrested I know for myself I
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wasn’t under the influence whatsoever”).
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Valdez was staggering unsteadily as he walked, Agamau Decl. ¶ 6;
8
Valdez testified that he had no trouble walking and never felt
9
dizzy or unsteady.
Valdez Depo. 15:25-16:9, 16:24-17:23, 36:11-37:1
Agamau asserts that
Valdez Depo. 36:11-:19.
These factual
United States District Court
For the Northern District of California
10
disputes are all material to whether Wallace had probable cause to
11
arrest Valdez under section 647(f) and, thus, preclude summary
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judgment on this claim.
c.
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Officer Orlando
As with Valdez and Martinez, the circumstances surrounding
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Stubbs’ arrest are disputed.
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Stubbs after witnessing him urinate on a parking garage wall.
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Orlando Decl. ¶¶ 5-6.
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[Stubbs] was intoxicated” from his bloodshot eyes and the smell of
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alcohol on his breath.
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Stubbs was “verbally combative” and defiant.
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Orlando states that he arrested
He asserts that it was “evident that
Id. ¶¶ 5-6.
Orlando also states that
Id. ¶ 6.
This account contradicts that of Stubbs and his friend,
22
Shirley.
Shirley states in his declaration that he never saw
23
Stubbs urinating in the garage nor did he see Stubbs “having
24
difficulty walking, staggering, slurring his speech or otherwise
25
acting drunk.”
26
his deposition that he had consumed only a few drinks that night
27
and was not exhibiting any signs of inebriation when he was
28
arrested.
Shirley Decl. ¶¶ 6-7.
Stubbs himself testified at
Stubbs Depo. 24:4-:12, 57:16-58:9.
14
He also testified
1
that he never urinated in the parking garage and that he complied
2
with Orlando’s commands prior to his arrest.
3
:11.
4
must be denied.
Based on these disputes of material fact, summary judgment
2.
5
6
Id. 36:24-:25, 40:5-
Fourteenth Amendment Claims
Plaintiffs allege that each of officers who arrested them did
so with a racially discriminatory purpose in violation of the
8
Fourteenth Amendment’s equal protection clause.
9
summary judgment on this claim, Plaintiffs must present evidence
10
United States District Court
For the Northern District of California
7
to support an inference that each officer’s arrest decision was
11
racially motivated.
12
(1996).
13
Thus, to survive
United States v. Armstrong, 517 U.S. 456, 465
The only evidence Plaintiffs offer of discriminatory intent
14
here is the comment that Vasquez and Valdez heard Agamau make
15
while they were being arrested.
16
Agamau’s exact words, both assert that they heard the comment.
17
Valdez testified at his deposition that the officer said something
18
to the effect of “We don’t want your kind here.”
19
26:6-:9.
20
don’t want you guys to come back.
21
Vasquez Depo. 18:5-:6.
22
Although neither remembers
Valdez Depo.
Vasquez similarly testified that the officer said, “We
We don’t like you people.”
Defendants argue that, even if Valdez and Vasquez’s
23
allegations are true, an isolated comment like this is
24
insufficient to establish discriminatory intent for the purposes
25
of Fourteenth Amendment liability.
26
circuit for support: Merrick v. Farmers Ins. Group, 892 F.2d 1434,
27
1438 (9th Cir. 1990), and Rodriguez v. John Muir Medical Center,
28
2010 WL 3448567, at *7-*8 (N.D. Cal.), which relies on Merrick.
15
They cite two cases from this
1
In both these cases, the courts held that the plaintiff had to
2
produce more than just an isolated derogatory comment by the
3
defendant to support an inference of discriminatory intent on
4
summary judgment.
5
Neither Merrick nor Rodriguez is analogous here because they
6
specifically address workplace discrimination claims.
In that
7
context, where the plaintiff has necessarily had a continuous
8
employment relationship with the defendant, isolated comments
9
offer only limited insight into the defendant’s motives.
See
United States District Court
For the Northern District of California
10
Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor,
11
J., concurring) (discussing the limited evidentiary value of
12
“stray remarks in the workplace” in a Title VII disparate
13
treatment case).
14
here was based on his brief interaction with Valdez moments before
15
the arrest.
16
isolated comment is potentially quite probative of his underlying
17
motives, especially since it remains disputed whether Agamau had
18
probable cause to make the arrest.
19
of Homewood, 2001 WL 1467708, at *14 (N.D. Ill.) (“If there was no
20
probable cause and [the defendant] indeed called [the plaintiff] a
21
‘loud mouth nigger’ upon his arrest (a disputed fact), this is
22
sufficient to support an inference of discriminatory intent.”).
23
In contrast, Amagau’s decision to arrest Valdez
In the space of that brief interaction, Agamau’s
See, e.g., Carroll v. Village
Because the parties dispute whether Agamau actually made this
24
comment to Valdez, Amagau is not entitled to summary judgment on
25
Plaintiffs’ equal protection claim.
26
Defendant officers, however, are entitled to summary judgment on
27
this claim.
28
16
All other individual
3.
1
Claims arising under § 1985 and the First, Fifth,
Sixth, and Eighth Amendments
2
Defendants do not appear to have raised any arguments in
3
support of their motion with respect to Plaintiffs’ First, Fifth,
4
Sixth, and Eighth Amendment claims or their § 1985 claim.
5
Accordingly, they have not met their initial burden and summary
6
judgment must be denied with respect to these claims.
7
210 F.3d at 1107.
8
Court notes that Plaintiffs have not, thus far, provided an
9
evidentiary basis to support most of these claims.
See Nissan,
Although these claims remain to be tried, the
United States District Court
For the Northern District of California
10
C.
11
Plaintiffs have not provided any evidence that Martin or
Federal Claims against Defendants Martin and Rickert
12
Rickert actually participated in their arrests.
13
contend that Martin and Rickert are liable for failing to prevent
14
the alleged constitutional violations committed by their fellow
15
officers.
16
inference of liability under this failure-to-prevent theory,
17
Martin and Rickert are entitled to summary judgment here.
18
Still, they
Because Plaintiffs’ evidence does not support an
The Ninth Circuit has recognized that a defendant may be held
19
liable under § 1983 even if the defendant does not personally
20
participate in committing an unconstitutional act.
21
liability under this theory, the plaintiff must show that the
22
defendant “omit[s] to perform an act which he is legally required
23
to do which causes the deprivation of the plaintiff’s federally
24
protected rights.”
25
Cir. 1989) (citing Johnson v. Duffy, 588 F.2d 740, 743-44 (9th
26
Cir. 1978)).
27
omission under § 1983 “only when there is an extremely high degree
To establish
Stevenson v. Koskey, 877 F.2d 1435, 1439 (9th
Generally, a defendant will be liable for an
28
17
1
of culpability for inaction.”
2
885 (7th Cir. 1983).
3
Lenard v. Argento, 699 F.2d 874,
Plaintiffs have not provided sufficient evidence to support
4
an inference of liability under this standard.
As the cases they
5
cite illustrate, courts typically only impose § 1983 liability for
6
an omission when dealing with a supervisor’s “ratification of a
7
subordinate’s misconduct.”
8
also Beverly v. Morris, 470 F.2d 1356, 1357 (5th Cir. 1972)
9
(noting that the plaintiff’s suit rested “on the theory that [the
Stevenson, 877 F.2d at 1439 n.6; see
United States District Court
For the Northern District of California
10
defendant] was negligent in failing to train properly the
11
auxiliary officer, to supervise his patrol duties, and to provide
12
a regular police officer on duty the night of the assault”).
13
the present case, Plaintiffs have not presented any evidence that
14
Martin and Rickert held supervisory authority over the officers
15
who actually arrested Plaintiffs.
16
can be held liable under § 1983 for failing to prevent their
17
fellow officers’ actions.
In
Thus, it is unlikely that they
18
More importantly, Plaintiffs have failed to produce any
19
evidence that Martin and Rickert were even capable of preventing
20
their fellow officers’ allegedly unconstitutional conduct.
21
assuming that Martin and Rickert had a clear legal duty to prevent
22
their peers from arresting Plaintiffs -- and Plaintiffs have not
23
pointed to any specific duty here -- they could only satisfy that
24
duty if they knew that their fellow officers’ conduct threatened
25
Plaintiffs’ constitutional rights.
26
support such an inference here.
Even
Plaintiffs’ evidence does not
27
For instance, the mere allegation that “Rickert was with
28
Orlando when Stubbs was arrested” does not, on its own, support an
18
1
inference that Rickert knew that Orlando might lack probable cause
2
for the arrest.
3
own evidence, Orlando was the only officer to have had direct
4
contact with Stubbs, which would have made it difficult, if not
5
impossible, for any other officer to assess the constitutionality
6
of his arrest decision.5
7
evidence similarly indicates that Martin was not able to assess
8
the constitutionality of Wallace’s decision to arrest Martinez.
9
Martinez Depo. 62:2-:5.
See Opp. Summ. J. 20.
According to Plaintiffs’
Stubbs Depo. 32:4-:21.
Plaintiffs’
According to Martinez’s own deposition
United States District Court
For the Northern District of California
10
testimony, Martin was preoccupied at the time of the arrest
11
because he was speaking to another individual.
12
65:12-:13.
13
Id. 62:2-:5,
Without producing any evidence that Rickert or Martin
14
actually had the capacity to stop their fellow officers from
15
making unconstitutional arrests, Plaintiffs cannot establish that
16
these officers are liable for omissions under § 1983.
17
Accordingly, Rickert and Martin are entitled to summary judgment
18
on all of Plaintiffs’ claims against them.
19
D.
20
As noted above, Plaintiffs have not named Panighetti and
21
Federal Claims against Defendants Panighetti and Perez
Perez as defendants in this lawsuit.
If they wish to substitute
22
23
24
25
26
27
28
It is not clear that Rickert was even present during
Stubbs’ arrest, as Plaintiffs contend in their brief. None of
Plaintiffs’ evidence actually identifies Rickert as the second
officer present during Stubbs’ arrest and their complaint asserts
only that he was present during Martinez’s arrest. See Compl.
¶ 57. In any event, even accepting arguendo that Rickert was
present during Stubbs’ arrest, none of Plaintiffs’ evidence
indicates that Rickert actually had the capacity to assess the
constitutionality of Orlando’s conduct.
5
19
1
these officers for Doe Defendants, they must file and notice a
2
motion for leave to amend their complaint.
3
so will weigh against them.
Their delay in doing
4
E.
Federal Claims against Municipal Defendants
5
In addition to their claims against the individual arresting
6
officers, Plaintiffs also assert claims for municipal liability
7
against the City of San Jose and SJPD Chief Davis.
8
9
“Plaintiffs who seek to impose liability on local governments
under § 1983 must prove that ‘action pursuant to official
United States District Court
For the Northern District of California
10
municipal policy’ caused their injury.”
11
S. Ct. 1350, 1359 (2011) (citing Monell, 436 U.S. at 691).
12
“Official municipal policy includes the decisions of a
13
government’s lawmakers, the acts of its policymaking officials,
14
and practices so persistent and widespread as to practically have
15
the force of law.”
16
Connick v. Thompson, 131
Id.
A city may not be held vicariously liable for the
17
unconstitutional acts of its employees on the basis of an
18
employer-employee relationship with the tortfeasor.
19
U.S. at 691-92.
20
can be established in one of three ways.
21
plaintiff must prove (1) “that a city employee committed the
22
alleged constitutional violation pursuant to a formal governmental
23
policy or a longstanding practice or custom which constitutes the
24
standard operating procedure of the local governmental entity;”
25
(2) “that the individual who committed the constitutional tort was
26
an official with final policy-making authority;” or (3) “that an
27
official with final policy-making authority ratified a
28
subordinate’s unconstitutional decision or action and the basis
Monell, 436
The Ninth Circuit has held that Monell liability
20
Specifically, the
1
for it.”
2
1992).
3
Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.
Here, Plaintiffs do not point to a specific written policy
4
encouraging SJPD officers to make section 647(f) arrests without
5
probable cause.
6
encouraging SJPD officers to consider race when making these
7
arrests.
8
practice among SJPD officers of making racially motivated section
9
647(f) arrests without probable cause that it amounts, in effect,
Nor do they point to any written policy
Rather, Plaintiffs argue that there is such a widespread
United States District Court
For the Northern District of California
10
to an unwritten municipal policy.
11
the City had knowledge of this practice but nevertheless failed to
12
correct it in its training of SJPD officers.
13
addressed below.
1.
14
15
Plaintiffs also contend that
These arguments are
Fourth Amendment Claims under Monell
Plaintiffs allege that there is a widespread, unwritten
16
practice among SJPD officers of arresting people under section
17
647(f) without probable cause in violation of the Fourth
18
Amendment.
19
SJPD’s standard operating procedure for public intoxication
20
arrests.
21
They argue that this practice effectively functions as
For support, Plaintiffs rely on various reports and documents
22
obtained from SJPD, which allegedly show that SJPD officers often
23
lack valid reasons for making section 647(f) arrests.
24
specifically to SJPD’s “Pre-Booking Information Sheets,”
25
“Affidavits re Probable Cause and Bail Setting,” and “Police
26
Reports.”
27
documents provide a space for officers to describe their reasons
28
for making a public intoxication arrest.
They point
Declaration of Andrew V. Stearns, Exs. C & E.
21
Plaintiffs have
These
submitted more than two thousand of these documents -- all
2
completed by SJPD officers between 2007 and 2010 -- as evidence
3
that the department’s officers routinely fail to identify a
4
legitimate source of probable cause for their section 647(f)
5
arrests.
6
documents by Jesica Giron, who reviewed 350 of the reports and
7
concluded that “probable cause was lacking in 71.43%” of them.
8
Declaration of Jesica Giron ¶ 1.
9
for determining whether or not an officer had probable cause was
10
United States District Court
For the Northern District of California
1
“whether the officer included details as to why the person was a
11
danger to themselves or others.”
12
Plaintiffs, Giron’s analysis demonstrates that SJPD officers
13
frequently arrest individuals who may be intoxicated but who do
14
not show signs that they are “unable to exercise care” for
15
themselves or others, as the statute requires.
16
Code § 647(f).
17
SJPD’s arrest practices systematically violate the Fourth
18
Amendment.
19
See id.
Plaintiffs also provide an analysis of these
Giron asserts that her criteria
Id. ¶ 2.
According to
See Cal. Penal
This analysis does not support an inference that
Giron’s analysis is limited for several reasons.
First,
20
Giron fails to state whether the reports she reviewed constitute a
21
representative cross-section of all SJPD reports for section
22
647(f) reports.
23
selected or why her analysis is limited to 350 reports when
24
Plaintiffs had access to over a thousand other reports.
25
Giron fails to identify her qualifications or explain her
26
methodology.
27
words long.
28
the faulty assumption that symptoms of intoxication alone can
She does not explain how these reports were
Second,
In fact, her entire analysis is less than a hundred
Third, and most importantly, her analysis rests on
22
1
never justify an officer’s decision to arrest someone under
2
section 647(f).
3
certain symptoms of intoxication can also provide an officer with
4
reason to believe that someone is unable to care for him or
5
herself.
6
reports featuring written observations of arrestee behavior that
7
satisfy both criteria.
8
Affidavit of Probable Cause for C. Moreno, at 001327 (citing “poor
9
balance” and “poor time/situational awareness” as evidence of both
United States District Court
For the Northern District of California
10
11
This assumption ignores the possibility that
Plaintiffs’ own evidence includes several SJPD arrest
See, e.g., Stearns Decl., Ex. C, File 6,
intoxication and inability to care for one’s self).
In sum, Plaintiffs’ evidence does not support an inference
12
that SJPD officers follow a “standard operating procedure” or
13
“longstanding practice” of systematically ignoring considerations
14
that bear on probable cause under section 647(f).
15
F.2d at 1346.
16
inference that any SJPD officer with “policy-making authority,”
17
such as Chief Davis, participated in making an unconstitutional
18
arrest or “ratified” a subordinate’s decision to do so.
19
Plaintiffs do not even appear to allege, let alone offer evidence,
20
that the officers who arrested them had policy-making authority or
21
consulted a supervisor before making the arrest.
22
municipal Defendants are entitled to summary judgment on
23
Plaintiffs’ Fourth Amendment claims under Monell.
2.
24
Gillette, 979
The evidence is also insufficient to support an
Id.
Accordingly,
Fourteenth Amendment Claims under Monell
25
Plaintiffs allege that SJPD enforces section 647(f) in a
26
racially discriminatory manner in violation of the Fourteenth
27
Amendment.
28
for public intoxication arrests so often that the practice
Specifically, they contend that SJPD targets Latinos
23
1
effectively functions as the department’s standard operating
2
procedure.6
3
must produce evidence to support an inference that SJPD maintained
4
a policy, custom, or longstanding practice of intentionally
5
discriminating against Latinos.
6
716 (9th Cir. 1995); Gillette, 979 F.2d at 1346.
7
To survive summary judgment on this claim, Plaintiffs
Navarro v. Block, 72 F.3d 712,
Discriminatory intent may be proved by indirect evidence,
8
including whether the challenged state action has a
9
disproportionate “impact” on a particular group.
Arlington
United States District Court
For the Northern District of California
10
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
11
Supreme Court has cautioned, however, that “impact alone is not
12
determinative” and, absent a clear pattern of discrimination,
13
courts must look to other evidence when adjudicating equal
14
protection claims.
15
statistical evidence of discriminatory impact is “whether that
16
impact is sufficiently gross or stark that a court must infer that
17
it was intended by the defendant.”
18
Lunchmen’s Union, 694 F.2d 531, 552 (9th Cir. 1982).
19
statistical evidence alone is sufficient to establish equal
20
protection liability are rare.
21
shown by statistical evidence, is a starting point, and an
22
important starting point, to that inquiry, but is rarely
23
sufficient of itself.”); Arlington Heights, 429 U.S. at 266.
24
25
26
27
28
Id.
The
The critical inquiry in assessing
Gay v. Waiters’ & Dairy
Cases where
Id. (“‘Discriminatory impact,’ as
Here, Plaintiffs rely principally on statistical evidence to
support their discrimination claim.
They provide an analysis by
Although one of the four Plaintiffs in this suit is
African-American, Plaintiffs’ claims against municipal Defendants
here are based solely on discrimination against Latinos. 2AC
¶ 119.
6
24
Ann Kalinowski which identifies a statistically significant7
2
disparity between the proportion of San Jose’s population that
3
identifies as Latino (thirty-three percent) and the proportion of
4
people arrested for public intoxication who are Latino (fifty-
5
seven percent).
6
statistics for the year 2007).
7
compares the rate at which Latinos were arrested for public
8
intoxication in San Jose (eighty-five arrests per 10,000 Latinos)
9
to their arrest rates in Oakland (forty-nine arrests per 10,000
10
United States District Court
For the Northern District of California
1
Latinos) and San Diego (twenty-two arrests per 10,000 Latinos).
11
Id. ¶¶ 8, 13.
12
differences in these cities’ Latino populations, Latinos were
13
arrested for public intoxication at a much higher rate in San
14
Jose.
15
Declaration of Ann Kalinowski ¶¶ 8-9 (focusing on
Kalinowski’s analysis also
She concludes that, even when controlling for
Id.
In addition to Kalinowski’s analysis, Plaintiffs provide data
16
from a 2007 report8 by the National Highway Transportation Safety
17
Administration (NHTSA) which, they argue, further illustrates that
18
the SJPD arrest disparities are the product of discriminatory
19
animus.
20
percentage of Latino drivers who drive at night without alcohol in
21
their system is roughly comparable to the percentage of white
Plaintiffs state that the NHTSA report indicates that the
22
23
24
Z = 34.8; P-value ≈ 0. Kalinowski Decl. ¶ 9.
Nat’l Transp. Safety Admin., National Roadside Survey of
Alcohol and Drug Use: Alcohol Results (2007), available at
http://www.nhtsa.gov/Driving+Safety/Research+&+Evaluation/2007+Nat
ional+Roadside+Survey+of+Alcohol+and+Drug+Use+by+Drivers.
Plaintiffs have asked the Court to take judicial notice of the
report. The Court will take judicial notice of the report but not
for the truth of the matters asserted therein.
7
8
25
26
27
28
25
1
drivers who do so.9
2
that “the percentage of Hispanics who are intoxicated while
3
driving does not differ from the percent of Caucasians” and, thus,
4
in the absence of discriminatory enforcement, the rates of public
5
intoxication arrests between the two groups should be roughly
6
equivalent.
7
Based on this statistic, Plaintiffs argue
Opp. Summ. J. 23.
None of this evidence is sufficient to support an inference
8
of discriminatory intent on the part of SJPD.
The Kalinowski
9
analysis falls far short of illustrating the “clear pattern” of
United States District Court
For the Northern District of California
10
discrimination “unexplainable on grounds other than race” that is
11
required to establish equal protection liability based on
12
statistical evidence.
13
Kalinowski fails to explain, for instance, why San Jose’s Latino
14
population represents the appropriate baseline against which the
15
Latino share of section 647(f) arrestees should be compared.
16
decision ignores the possibility that some of SJPD’s public
17
intoxication arrests may involve individuals who reside outside of
18
San Jose -- such as all four Plaintiffs in this case.10
19
pattern of discriminatory enforcement, Plaintiffs would have to
20
select a baseline that more accurately reflects the population of
21
people potentially subject to section 647(f) arrests.
22
least, Plaintiffs must explain why Kalinowski’s choice of baseline
23
is reasonable.
24
at *3 (6th Cir.) (per curiam) (upholding summary judgment in favor
Arlington Heights, 429 U.S. at 266.
This
To show a
At the very
Cf. Johnson v. Northwest Airlines, 1995 WL 242001,
25
26
27
28
Plaintiffs do not provide a citation to specific page of
the report, which is over one hundred pages in length.
10 Although Kalinowski states in her declaration that her
conclusions would apply with equal force to the “San Jose census
region,” she fails to explain how she reached this conclusion.
9
26
1
of Title VII defendants because “plaintiff gives us no reason why
2
his baseline . . . provides the appropriate statistic” for
3
assessing discriminatory impact).
4
Kalinowski’s analysis suffers from other critical defects.
5
It relies, for example, on second-hand data taken from a 2009
6
newspaper article and offers no guarantee of its accuracy.
7
Kalinowski Decl. ¶ 8.
8
show that the discrepancy between the Latino share of San Jose’s
9
population and the Latino share of SJPD’s public intoxication
Furthermore, the analysis purports only to
United States District Court
For the Northern District of California
10
arrests is “not due to chance.”
11
held that this type of analysis is, without more, insufficient to
12
demonstrate discriminatory intent.
13
put, statistics demonstrating that chance is not the more likely
14
explanation are not by themselves sufficient to demonstrate that
15
race is the more likely explanation for an employer’s conduct [in
16
a Title VII case].”).
17
Id. ¶ 9.
The Ninth Circuit has
Gay, 694 F.2d at 553 (“Simply
Kalinowski’s comparison of section 647(f) arrest rates in San
18
Jose, Oakland, and San Diego is similarly flawed.
19
does Kalinowski explain why Oakland and San Diego are appropriate
20
cities against which to compare San Jose’s Latino arrest rate.
21
Without this explanation -- and with no reference to statewide
22
statistics -- the selection of these cities amounts to little more
23
than statistical cherry-picking.
24
At no point
Plaintiffs’ reliance on the NHTSA report is even more
25
problematic.
Not only is the report based on the results of a
26
national survey of nighttime drivers, which may or may not reflect
27
the habits of San Jose-area drivers, but it says nothing about the
28
drinking habits of non-drivers.
As Plaintiffs’ own arrests in
27
1
this case demonstrate, non-drivers -- such as Vasquez, Martinez,
2
and Stubbs -- can also be arrested under section 647(f).
3
Plaintiffs’ effort to extrapolate the rates of public intoxication
4
among different racial groups in the San Jose area from a national
5
survey of nighttime drivers is too strained to satisfy their
6
burden on summary judgment.
7
Thus, in light of the numerous deficiencies in Plaintiffs’
8
statistical evidence and their failure to produce any other
9
evidence of discrimination,11 municipal Defendants are entitled to
United States District Court
For the Northern District of California
10
summary judgment on Plaintiffs’ equal protection claim.
11
Jok-ef v. Columbia Basin CLG, 66 F.3d 335, at *4 (9th Cir. 1995)
12
(unpublished opinion) (“Statistical evidence by itself is not
13
sufficient to avoid summary judgment unless such evidence reveals
14
‘a clear pattern [of discrimination], unexplainable on grounds
15
other than race.’” (citations omitted; alterations in original)).12
3.
16
17
18
See
Failure-to-Train Claims under Monell
The Supreme Court has recognized that, under “limited
circumstances, a local government’s decision not to train certain
19
Although the comment that Agamau allegedly made to Valdez
during his arrest constitutes non-statistical evidence of
discrimination, it is insufficient on its own to support an
inference of a widespread pattern of discrimination.
12 In their motion for class certification, Plaintiffs refer
to this suit as a “disparate impact” case and cite several cases
where statistical evidence was used to show discriminatory impact.
These cases are inapposite to Defendants’ summary judgment motion.
The cases Plaintiffs cite arise under civil rights statutes, such
as Title VII and the Voting Rights Act, that expressly support
liability for “disparate impact” and “discriminatory effect.” In
contrast, Plaintiffs’ claims here arise under the Equal Protection
Clause, which the Supreme Court has long held does not support
“racial impact” liability. See Washington v. Davis, 426 U.S. 229,
247-48 (1976).
11
20
21
22
23
24
25
26
27
28
28
1
employees about their legal duty to avoid violating citizens’
2
rights may rise to the level of an official government policy for
3
purposes of § 1983.”
4
liability under this theory, the “municipality’s failure to train
5
its employees in a relevant respect must amount to ‘deliberate
6
indifference to the rights of persons with whom the [untrained
7
employees] come into contact.’”
8
489 U.S. 378, 388 (1989)).
9
requires proof that “policymakers are on actual or constructive
Connick, 131 S. Ct. at 1359.
Id.
To establish
(citing Canton v. Harris,
This “stringent standard of fault”
United States District Court
For the Northern District of California
10
notice that a particular omission in their training program causes
11
city employees to violate citizens’ constitutional rights.”
12
S. Ct. at 1360.
13
“functional equivalent of a decision by the city itself to violate
14
the Constitution.”
15
here.
16
131
In short, the training deficiency must be the
Id.
Plaintiffs have not met this standard
Defendants’ evidence indicates that, since at least 2007,
17
SJPD has provided its officers with specific training in section
18
647(f) enforcement upon their graduation from the police academy.
19
See Declaration of Michael Knox ¶¶ 2-7.
20
not dispute this evidence, they contend that SJPD’s training
21
procedures were constitutionally deficient.
22
that City policymakers should have known of this deficiency based
23
on a report by the City’s Public Intoxication Task Force, which
24
was established in November 2008 to review SJPD’s section 647(f)
25
enforcement policies.
26
Memorandum Re: Public Intoxication Task Force, at 1.13
27
The Court grants Plaintiffs’ request to take judicial
notice of this document.
28
Although Plaintiffs do
They further assert
Pls.’ Request for Judicial Notice, Ex. K,
13
29
The task
1
force was created at the request of the City Council and charged
2
with proposing policy recommendations to City officials.
3
consisted of members of various community organizations and
4
various City agencies, including SJPD.
5
its recommendations in June 2009.
Id.
Id.
It
The task force issued
Id., Ex. L.
Plaintiffs’ reliance on the task force and its report as
7
evidence of the City’s failure to train its officers is misplaced.
8
The task force convened after all four Plaintiffs in this case
9
were arrested and Plaintiffs have not identified any evidence that
10
United States District Court
For the Northern District of California
6
SJPD made any unconstitutional arrests after the task force issued
11
its report.
12
the City with notice that SJPD officers were routinely committing
13
constitutional violations, as Plaintiffs suggest.
14
focused principally on proposing procedural reforms and did not
15
address the constitutional implications of past SJPD practices.
16
See id.
17
highlighted possible racial disparities in section 647(f) arrest
18
rates, the report itself stated that these “observations have not
19
been approved or validated by the [task force] or Administration.”
20
Id.
Moreover, the report itself could not have provided
The report
Although one of the task force’s member organizations
Accordingly, neither the creation of the task force nor its
21
22
final report gave City officials “notice that a particular
23
omission in their training program causes city employees to
24
violate citizens’ constitutional rights.”
25
1360.
26
failure to train its officers under Monell.
27
are therefore entitled to summary judgment on this claim.
Connick, 131 S. Ct. at
Without this notice, the City cannot be held liable for
28
30
Municipal Defendants
1
F.
State Claims
2
Plaintiffs assert claims of false arrest and battery against
3
Wallace, Agamau, Orlando, Rickert, and Martin.
In addition, they
4
charge all Defendants with civil conspiracy, negligence, and
5
violations of the Bane Act and the Ralph Act, Cal. Civ. Code
6
§§ 52.1, 51.7.
Defendants contend that they are entitled to summary judgment
7
8
on all of these claims because the officers who arrested
9
Plaintiffs had probable cause to do so.
Plaintiffs, in response,
United States District Court
For the Northern District of California
10
argue that summary judgment on these claims must be denied because
11
Defendants have not established probable cause.
As explained above, the parties dispute several facts that
12
13
are central to determining whether or not Defendants had probable
14
cause to arrest Plaintiffs under section 647(f).
15
Defendants present no other arguments or evidence supporting their
16
motion for summary judgment on Plaintiffs’ state law claims, their
17
motion must be denied with respect to these claims.
18
210 F.3d at 1107.
19
II.
Thus, because
See Nissan,
Plaintiffs’ Motion for Class Certification
20
A.
Legal Standard
21
Plaintiffs seeking to represent a class must satisfy the
22
threshold requirements of Rule 23(a) as well as the requirements
23
for certification under one of the subsections of Rule 23(b).
24
Rule 23(a) provides that a case is appropriate for certification
25
as a class action if
26
(1)
the class is so numerous that joinder of all members is
impracticable;
(2)
there are questions of law or fact common to the class;
27
28
31
1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
(3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4)
the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a).
Plaintiffs must also establish that one of the subsections of
Rule 23(b) is met.
In the instant case, Plaintiffs seek
certification under subsections (b)(1) and (b)(2), or
alternatively, under (b)(3).
Rule 23(b)(1) applies where the prosecution of separate
actions by individual members of the class would create the risk
of “inconsistent or varying adjudications with respect to
individual members of the class which would establish incompatible
standards of conduct for the party opposing the class,” or of
adjudications “which would as a practical matter be dispositive of
the interests of the other members not parties to the
adjudications or substantially impair or impede their ability to
protect their interests.”
Fed. R. Civ. P. 23(b)(1).
Rule 23(b)(2) applies where “the party opposing the class has
acted or refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a
whole.”
Fed. R. Civ. Proc. 23(b)(2).
“Civil rights cases against
parties charged with unlawful, class-based discrimination are
prime examples” of Rule 23(b)(2) actions.
Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 614 (1997).
Rule 23(b)(3) permits certification where common questions of
law and fact “predominate over any questions affecting only
individual members” and class resolution is “superior to other
28
32
1
available methods for the fair and efficient adjudication of the
2
controversy.”
3
intended “to cover cases ‘in which a class action would achieve
4
economies of time, effort, and expense . . . without sacrificing
5
procedural fairness or bringing about other undesirable results.’”
6
Amchem Prods., 521 U.S. at 615 (quoting Fed. R. Civ. P. 23(b)(3)
7
Adv. Comm. Notes to 1966 Amendment).
Fed. R. Civ. P. 23(b)(3).
These requirements are
8
Regardless of what type of class the plaintiff seeks to
9
certify, it must demonstrate that each element of Rule 23 is
United States District Court
For the Northern District of California
10
satisfied; a district court may certify a class only if it
11
determines that the plaintiff has borne this burden.
12
Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v.
13
Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977).
14
general, the court must take the substantive allegations of the
15
complaint as true.
16
Cir. 1975).
17
analysis,’” which may require it “‘to probe behind the pleadings
18
before coming to rest on the certification question.’”
19
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting
20
Falcon, 457 U.S. at 160-61).
21
will entail some overlap with the merits of the plaintiff’s
22
underlying claim.
23
2551.
24
court may consider material beyond the pleadings and require
25
supplemental evidentiary submissions by the parties.
26
F.2d at 901 n.17.
27
context of a motion for class certification, district courts must
28
consider ‘the persuasiveness of the evidence presented.’”
Gen. Tel.
In
Blackie v. Barrack, 524 F.2d 891, 901 (9th
However, the court must conduct a “‘rigorous
Wal-Mart
“Frequently that ‘rigorous analysis’
That cannot be helped.”
Dukes, 131 S. Ct. at
To satisfy itself that class certification is proper, the
Blackie, 524
“When resolving such factual disputes in the
33
Aburto
1
v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting
2
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.
3
2011)).
4
whether a class should be certified.
5
937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms
6
Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).
Ultimately, it is in the district court’s discretion
Molski v. Gleich, 318 F.3d
7
B.
8
Defendants contend that class certification must be denied
9
United States District Court
For the Northern District of California
10
11
Analysis
here because Plaintiffs have failed to satisfy the commonality
prerequisite of Rule 23(a)(2).
The Supreme Court recently held in Dukes that plaintiffs
12
seeking to certify a Title VII class action must produce
13
“‘significant proof’ that [the defendant] ‘operated under a
14
general policy of discrimination’” to satisfy the commonality
15
prerequisite.
16
added).
17
plaintiffs in Fourth and Fourteenth Amendment class actions, as
18
well, by requiring them to produce “significant proof” that the
19
defendant followed an unconstitutional policy or practice.
20
e.g., Aguilar v. Immigration & Customs Enforcement Div., 2012 WL
21
1344417, at *5-*7 (S.D.N.Y.) (denying class certification under
22
Dukes because plaintiffs failed to establish that the defendant
23
immigration agency followed an unconstitutional policy of
24
targeting Latinos for home raids).
25
courts have denied certification for lack of commonality.
26
131 S. Ct. at 2253 (citations omitted) (emphasis
Since Dukes, lower courts have applied this rule to
See,
In the absence of such proof,
See id.
As explained above, Plaintiffs here have failed to produce
27
sufficient evidence to establish that SJPD followed any
28
unconstitutional policy or practice regarding public intoxication
34
1
arrests.
Specifically, they have not shown that SJPD’s training
2
procedures resulted in widespread constitutional violations nor
3
have they provided reliable evidence showing a widespread practice
4
of unreasonable seizures or racially discriminatory enforcement of
5
section 647(f).
6
Indeed, even if Plaintiffs’ evidence did not suffer from the
7
numerous deficiencies described above, it would still likely fall
8
short of satisfying Rule 23(a)’s commonality requirement because
9
it rests on five year old data.
Earlier this year, a court in the
United States District Court
For the Northern District of California
10
Southern District of New York denied class certification on this
11
basis to plaintiffs alleging that federal immigration agents
12
unconstitutionally target Latinos for home raids.
13
WL 1344417, at *7.
14
statistical analysis of five year old data lacked the “scientific
15
rigor” that Dukes required and could not be used to certify a
16
class that included plaintiffs whose homes were raided years
17
later.
18
of targets for the 2007 operations.
19
standing alone, insufficient to provide a foundation for a
20
determination that ICE agents today engage or would engage in
21
intentional targeting of Latinos for unconstitutional home
22
raids.”).
23
suffers from the same problem.
24
Aguilar, 2012
The court found that the plaintiffs’
Id. (“Plaintiffs’ statistical analysis is based on lists
It is, as in [Dukes],
Plaintiffs’ statistical analysis of 2007 arrest rates
Accordingly, because Plaintiffs have failed to show that SJPD
25
followed an unconstitutional practice or policy, they cannot
26
demonstrate commonality under Rule 23(a)(2).
27
failure, the Court need not address whether Plaintiffs have
28
satisfied the requirements of Rule 23(b).
35
In light of this
CONCLUSION
1
2
For the reasons set forth above, Defendants’ motion for
3
summary judgment (Docket No. 127) is GRANTED in part and DENIED in
4
part.
5
(Docket No. 118).
6
their late filings (Docket No. 154) is GRANTED.
7
evidentiary objections to the declarations of Jesica Giron and Ann
8
Kalinowski are overruled as moot.
9
Plaintiffs’ motion for class certification is DENIED
Defendants’ administrative motion to accept
Defendants’
Defendants are granted summary judgment on Plaintiffs’ first,
United States District Court
For the Northern District of California
10
second, third, fourth, and fifth causes of action.
11
also granted summary judgment on Stubbs’ and Martinez’s Fourteenth
12
Amendment claims, which are asserted in Count Six of Plaintiffs’
13
sixth cause of action.
14
Officer Rickert, and Officer Martin are entitled to summary
15
judgment on all claims against them.
16
action remain to be tried.
17
18
Defendants are
Defendants City of San Jose, Chief Davis,
Plaintiffs’ other causes of
The parties are referred to Magistrate Judge Grewal for a
settlement conference.
19
Within seven days of this order, the parties will submit a
20
joint statement proposing dates for a final pretrial conference
21
and a jury trial.
22
for a Wednesday at 2:00 p.m. and take place at least two weeks
23
before trial is set to begin.
24
The final pretrial conference must be scheduled
IT IS SO ORDERED.
25
26
27
Dated: 2/27/2013
CLAUDIA WILKEN
United States District Judge
28
36
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