Valdez et al v. City of San Jose et al

Filing 162


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 FRANCISCO VALDEZ, et al., 5 6 No. C 09-0176 CW Plaintiffs, v. 7 CITY OF SAN JOSE, et al., 8 Defendants. ________________________________/ 9 10 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) 11 12 13 14 15 16 17 18 19 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. 20 BACKGROUND 21 22 23 All four Plaintiffs were arrested for violating section 647(f) of the California Penal Code, also known as California’s 24 25 26 27 28 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. 1 1 public intoxication law. 2 of disorderly conduct, a misdemeanor, if he or she 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 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 11 Latino,2 were arrested by the San Jose Police Department (SJPD) in 12 downtown San Jose between 2007 and 2008. 13 describe their arrests in greater detail. The following sections 14 A. Plaintiff Martinez’s Arrest 15 On the evening of February 1, 2007, Martinez went to a 16 nightclub in downtown San Jose with his friend, Shana Stewart, and 17 his cousin. 18 of D. Martinez, at 19:21-20:2; Declaration of Shana Stewart ¶ 2. 19 About an hour after they arrived, a group of women assaulted 20 Stewart and stole her purse while she was waiting in line for the 21 bathroom. 22 Martinez and his cousin did not see the incident, Stewart told 23 them about it immediately afterward and described her assailants 24 to them. 25 ¶ 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 26 27 All Plaintiffs identify as Latino, except Plaintiff Stubbs, who identifies as African-American. 2 28 2 1 A short while later, Martinez saw a security guard in front 2 of the nightclub speaking to a woman who resembled one of 3 Stewart’s attackers. 4 45:3-:6; Stewart Decl. ¶ 7. 5 to go speak with the police, who had just arrived at the nightclub 6 a few minutes earlier. 7 refused and began to flee. 8 tell one of the SJPD officers at the scene that the woman was 9 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 11 Stewart at the time, told Martinez to leave them alone. 12 62:12-:17. 13 Id. Martinez then approached another officer to report that 14 Stewart’s attacker was fleeing. 15 Martinez, the officer responded by asking Martinez to step toward 16 the curb. 17 Disappointed that the officer refused to pursue Stewart’s 18 attacker, Martinez called the officer an “asshole”; he states, 19 however, that despite his frustration, he still complied with the 20 officer’s instructions to walk towards the curb. 21 61:18-:22, 73:3-:15. 22 the curb, Martinez claims that the officer “grabbed [his] right 23 hand and twisted it behind [his] back.” 24 officer then placed him under arrest and put him inside a police 25 van. 26 officer why he was being arrested, the officer told him that it 27 was because he was drunk. 28 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 3 1 a beer earlier in the night but denies that he was drunk when he 2 was arrested. 3 Ex. A, at 2. 4 Martinez Depo. 29:18-:20, 55:4-:8; Martinez Decl., Officer Wallace, who made the arrest, disputes this account 5 and states that Martinez appeared “very drunk” to him. 6 Declaration of Martin Wallace ¶ 8. 7 bloodshot eyes, an unsteady gait, and emitted “a strong odor of 8 alcohol.” 9 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 10 various officers. 11 believed that “Martinez was unable to care for his safety” and 12 decided to arrest him under section 647(f). 13 African-American, asserts that he “gave no consideration to the 14 fact that Mr. Martinez is Hispanic in making the decision to 15 arrest him.” 16 Id. ¶ 7. Based on these observations, Wallace Id. Wallace, who is Id. ¶ 10. Stewart, who is white, was arrested by another SJPD officer, 17 Officer Martin, shortly thereafter. 18 asserts that she, too, was sober at the time of her arrest. 19 ¶ 10. Stewart Decl. ¶¶ 12-13. She Id. 20 B. 21 On June 27, 2008, Valdez and Vasquez drove together from Plaintiffs Valdez and Vasquez’s Arrests 22 Freedom, California, where they reside, to San Jose. 23 Decl., Ex. D, Deposition of R. Vasquez, at 9:2-:14. 24 in the early evening and parked at a downtown 7-Eleven on Santa 25 Clara Street. 26 After spending a “few hours” in the downtown area, the two 27 returned to the 7-Eleven to drive back to Freedom. 28 15:25-16:4; Vasquez Depo. 8:17-:20. Kallis They arrived Id., Ex. C, Deposition of F. Valdez, at 14:1-:8. 4 Id. Neither recalls exactly where 1 they went or how long they spent in the downtown area but both 2 assert that they did not purchase any alcohol while they were 3 there. 4 23:4-:10. 5 Valdez Depo. 16:5-:9; Vasquez Depo. 11:7-:12, 12:3-:5, When they returned to the truck that evening, Vasquez entered 6 the 7-Eleven to buy some snacks and non-alcoholic beverages for 7 the drive home. 8 in the parking lot near the truck. 9 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 10 not recall the exact number -- approached him while he was 11 standing in the parking lot and began questioning him about why he 12 was there. 13 replied that he was waiting for his friend, one of the officers 14 went inside the store to find Vasquez. 15 while he was speaking to the officers in the parking lot, one of 16 them told him, “We don’t want your kind here.” 17 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 18 found Vasquez and escorted him towards the parking lot with the 19 other officers. 20 his deposition that the officer grabbed his hand and twisted it as 21 they left the store. 22 officers refused to respond to him and Valdez when they asked why 23 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. 24 Once Valdez and Vasquez were both in the parking lot, the 25 police zip-tied their hands, placed them under arrest, and put 26 them in a police van. 27 24:2-:14. 28 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. 5 1 29:5-:6. 2 that he brought from Freedom earlier in the evening, both he and 3 Vasquez assert that they were not intoxicated when they were 4 arrested. 5 26:13-:18, 35:22-:23. 6 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 7 their claims of sobriety. 8 of Vasquez’s arrest, Officer Panighetti states that Vasquez had 9 “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 10 gait.” 11 Officer Amagau’s report, which documents the circumstances of 12 Valdez’s arrest, similarly states that Valdez had “bloodshot eyes, 13 staggering gait, [and] slurred speech.” 14 Booking Information Sheet for F. Valdez. 15 Valdez was “in the middle of 10th [Street] . . . walking in 16 circles” when Amagau first encountered him. 17 assert that they arrested Vasquez and Valdez for public 18 intoxication based on their observations of the pair’s behavior at 19 the 7-Eleven that night. 20 8. 21 these observations and not on Valdez or Vasquez’s race or 22 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. 23 C. 24 On September 6, 2008, Stubbs and his friend, Leon Shirley, 25 drove together from Newark, California, to San Jose to attend a 26 couple of live musical performances. Kallis Decl., Ex. A, 27 Deposition of J. Stubbs, at 16:1-:9. They parked in a public 28 garage on Third Street at about 9:00 p.m. Plaintiff Stubbs’ Arrest 6 Id. 19:2-:10; 1 Declaration of Leon Shirley ¶ 3. 2 performances at two downtown nightclubs, Stubbs and Shirley walked 3 back to the garage at around 1:00 a.m. to drive back to Newark. 4 Stubbs Depo. 27:20-28:3; Shirley Decl. ¶ 4. 5 After attending a couple of When they returned to the garage, they encountered two SJPD 6 officers near Shirley’s car. 7 32:6-:8. 8 as Stubbs was putting out a cigarette beside the car; the other 9 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 10 32:6-:21. 11 could not hear exactly what Shirley was saying to the officer, it 12 sounded like Shirley “was getting smart” with him. 13 While Shirley was speaking to that officer, the other officer 14 “pulled [Stubbs] to the side” and accused him of urinating on the 15 wall of the parking garage, a charge that Stubbs immediately 16 denied. 17 officers placed both Shirley, who is white, and Stubbs under 18 arrest. 19 admits that he had a few drinks at a nightclub earlier in the 20 evening, both he and Shirley assert that he was not exhibiting any 21 signs of intoxication or defiance when they were arrested. 22 Stubbs Depo. 57:16-58:9; Shirley Decl. ¶ 11. 23 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 3 Officer Orlando, who arrested Stubbs, disputes these claims. 24 He states in his declaration that Stubbs first caught his 25 attention “because he was urinating on the wall in the garage.” 26 27 28 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.”). 3 7 1 Declaration of Brandon Orlando ¶ 5. 2 Stubbs’ “eyes were bloodshot,” his breath smelled of alcohol, and 3 “he was verbally combative and would not listen to commands.” 4 ¶ 6. 5 Stubbs for public intoxication based on these observations. 6 Kallis Decl., Ex. J., Pre-Booking Information Sheet for J. Stubbs. 7 Orlando asserts that neither he nor Officer Perez, who arrested 8 Shirley, based their decisions on Stubbs’ or Shirley’s race. 9 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 10 D. 11 Plaintiffs filed this putative class action lawsuit against Procedural Background 12 the City of San Jose and several SJPD officers on January 14, 13 2009. 14 on July 14, 2009. 15 sixteen causes of action: (1) a claim under 42 U.S.C. § 1983 and 16 Monell v. Department of Social Services, 436 U.S. 658 (1978), 17 against the City based on an alleged policy, custom and long- 18 standing practice of wrongfully arresting individuals for 19 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 20 21 22 23 24 25 26 27 28 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. 4 8 1 First, Fifth, Sixth, Eighth, and Fourteenth Amendment rights; 2 (2) a Monell claim under § 1983 against Chief Davis based on his 3 actions as a final policy maker; (3) a Monell claim under § 1983 4 against Chief Davis based on his actions ratifying police 5 misconduct; (4) a Monell claim under § 1983 against the City for 6 failure to train police officers as to the rights secured by the 7 First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments; 8 (5) a claim under § 1983 against Chief Davis for “supervisory 9 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 11 for falsely detaining, arresting, and incarcerating Plaintiffs in 12 violation of their First and Fourth Amendment rights, as well as 13 depriving them of their Fifth, Sixth, and Eighth Amendment rights 14 and enforcing section 647(f) in a discriminatory manner in 15 violation of the Fourteenth Amendment; (7) a claim against all 16 Defendants for conspiracy under 42 U.S.C. § 1985; (8) a claim for 17 false arrest against Agamau, Martin, Rickert, Wallace and Orlando; 18 (9) a claim for false imprisonment against the same officers; 19 (10) a claim for battery against the same; (11) a claim against 20 all Defendants for violation of the Ralph Act, California Civil 21 Code section 51.7; (12) a claim against all Defendants for 22 violation of the Bane Act, California Civil Code section 52.1(b); 23 (13) a claim against all Defendants for civil conspiracy to 24 violate civil rights and commit torts; (14) a claim against all 25 Defendants for aiding and abetting civil rights violations and the 26 commission of torts; (15) a claim for negligence against all 27 Defendants; and (16) a claim for injunctive relief against all 28 Defendants. 9 1 2 On May 29, 2012, Plaintiffs moved to certify a class consisting of 3 [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). 4 5 6 7 8 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. 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 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 28 10 1 in favor of the party against whom summary judgment is sought. 2 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). 5 Material facts which would preclude entry of summary judgment 6 are those which, under applicable substantive law, may affect the 7 outcome of the case. The substantive law will identify which 8 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 9 242, 248 (1986). Where the moving party does not bear the burden United States District Court For the Northern District of California 10 of proof on an issue at trial, the moving party may discharge its 11 burden of production by either of two methods: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 27 28 11 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 3 4 essential element of the non-moving party’s claim or defense, it 5 must produce affirmative evidence of such negation. 6 F.3d at 1105. 7 burden then shifts to the non-moving party to produce specific 8 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 9 United States District Court For the Northern District of California 10 production by either method, the non-moving party is under no 11 obligation to offer any evidence in support of its opposition. 12 Id. 13 ultimate burden of persuasion at trial. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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). 28 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. 6 whether Martinez was drunk when he was arrested. 7 that he had less than two drinks on the evening of his arrest, 8 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 12 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 18 or not Wallace had probable cause to arrest Martinez under section 19 647(f). 20 cannot be resolved by summary judgment. b. 21 22 Accordingly, the Fourth Amendment claims against Wallace Officer Agamau Amagau and Valdez dispute several relevant facts regarding 23 the circumstances of Valdez’s arrest. 24 declaration that he found Valdez “walking in circles on 10th 25 Street.” 26 deposition expressly denied walking in the middle of the street. 27 Valdez Depo. 31:15-:25. 28 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 2 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 4 he was arrested. 5 (stating that at “the time I was arrested I know for myself I 6 wasn’t under the influence whatsoever”). 7 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 12 judgment on this claim. c. 13 14 Officer Orlando As with Valdez and Martinez, the circumstances surrounding 15 Stubbs’ arrest are disputed. 16 Stubbs after witnessing him urinate on a parking garage wall. 17 Orlando Decl. ¶¶ 5-6. 18 [Stubbs] was intoxicated” from his bloodshot eyes and the smell of 19 alcohol on his breath. 20 Stubbs was “verbally combative” and defiant. 21 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 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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