Alford v. Humboldt County et al

Filing 58

ORDER by Judge Wilken granting in part and denying in part 35 Motion for Judgment as a Matter of Law (cwlc3, COURT STAFF) (Filed on 4/12/2011)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JACQUELINE ALFORD, 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 No. 09-01306 CW Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 35) v. HUMBOLDT COUNTY; GARY PHILP; CITY OF EUREKA; CHIEF GARR NIELSEN; DEPUTY GREG BERRY; LIEUTENANT GEORGE CAVINTA; SERGEANT WILLIAM NOVA; SERGEANT BRYAN QUENELL; DEPUTY JAMIE BARNEY; LIEUTENANT DAVE MOREY; and DETECTIVE RICH SCHLESIGER, Defendants. ________________________________/ 17 18 Plaintiff Jacqueline Alford brings this lawsuit individually 19 and as an heir and successor in interest to her son Peter Stewart 20 who died in a fire on the afternoon of June 4, 2007, after a 21 protracted standoff with law enforcement. 22 for summary judgment on all of Ms. Alford's claims. 23 has agreed to dismiss her third, fourth and fifth causes of 24 action, which allege conspiracies and municipal liability. 25 Opp. to Defs.' Mot. Summ. J. at 23. 26 causes of action are dismissed, and thus no claims remain against 27 28 Defendants have moved Ms. Alford Pl.'s The third, fourth and fifth 1 Humboldt County, the City of Eureka or Rich Schlesiger.1 2 Alford opposes partial summary judgment on her first and second 3 causes of action under 42 U.S.C. § 1983 for violations of the 4 Fourth and Fourteenth Amendments. 5 November 18, 2010. 6 parties' submissions, the Court grants Defendants' motion in part 7 and denies it in part. The matter was heard on Having considered oral argument and the BACKGROUND 8 9 Ms. Multiple law enforcement agencies and officers were involved United States District Court For the Northern District of California 10 in the events at the center of this lawsuit. 11 several, but not all, as Defendants. 12 Department (HCSD) Deputy Greg Berry and Yurok Tribal Police 13 Department (YTPD) Officer Heather Landreneaux responded to the 14 initial call for assistance, and made the first contact with Mr. 15 Stewart. 16 Tribal Police Department (HTPD). 17 to a standoff, HCSD sought assistance from the SWAT teams of the 18 Eureka Police Department (EPD) and the California Department of 19 Corrections, now the California Department of Corrections and 20 Rehabilitation (CDCR), at Pelican Bay. 21 has named as Defendants: Sheriff Gary Philp, Lieutenant George 22 Cavinta, Sergeant Bryan Quenell, Deputy Jamie Barney, Deputy Greg 23 Berry, and Detective Rich Schlesiger. 24 has sued Police Chief Garr Nielsen and SWAT Team Commander 25 Sergeant William Nova. 26 27 28 Ms. Alford has named Humboldt County Sheriff's The deputy and officer called for backup from the Hoopa As the confrontation escalated From the HCSD, Ms. Alford From the EPD, Ms. Alford Ms. Alford also named Lt. David Morey, but Schlesiger appears to be named only as part of the alleged conspiracies. There is no evidence connecting him with any of the remaining claims. 1 2 1 it is not clear of which law enforcement agency he is a member. 2 Neither the law enforcement agencies nor officers from the YTPD, 3 HTPD or the CDCR at Pelican Bay have been named as Defendants. 4 For purposes of this motion, the events leading up to the 5 police standoff and Mr. Stewart's death begin with his arrival at 6 the home of Mathew Moore and Debra Brown on the morning of June 3, 7 2007. 8 childhood, but had not seen him in four or five years. 9 Stewart arrived at their home on Bald Hill Road2 in an agitated Both Mr. Moore and Ms. Brown had known Mr. Stewart since Mr. United States District Court For the Northern District of California 10 state, wearing a wetsuit top and long coat on a warm summer day. 11 He entered the home unannounced. 12 day, so he was lying in bed when Mr. Stewart arrived. 13 climbed into the bed where Mr. Moore was sleeping. Mr. Stewart 14 was speaking delusionally and appeared dehydrated. Mr. Moore 15 thought that Mr. Stewart might be at the end of a methamphetamine 16 high. 17 Mr. Moore was feeling sick that Mr. Stewart Mr. Stewart's erratic behavior disturbed the family, so much 18 so that Ms. Brown called Mr. Stewart's mother, Ms. Alford, for 19 help. 20 child, and it became clear that he was carrying a knife, Ms. Brown 21 fled the home with her nine year old son and her nephew. 22 Moore stayed behind with Mr. Stewart. 23 After Mr. Stewart spoke about a violent dream and hurting a Mr. Stewart told Mr. Moore that he had slit a person's throat 24 and he felt evil. 25 Mr. Moore did not believe him. 26 27 28 Mr. Because Mr. Stewart did not appear bloody, At one point, Mr. Stewart took to Mr. Moore refers to his home address as Hostler Ranch on Bald Hill, while other witnesses refer to the area as Bloody Camp Road. 2 3 1 speaking into a medical device that Mr. Moore used for his sleep 2 apnea, attempting to communicate with people who did not exist. 3 Mr. Stewart insisted that he did not want to return to the county 4 mental hospital, Sempervirens, where he was previously committed. 5 Mr. Stewart asked Mr. Moore for guns, but Mr. Moore refused to 6 provide him with any. 7 around anymore, and he would not be taken back to Sempervirens 8 alive. 9 was able to convince him to sit down for a sandwich and a drink. United States District Court For the Northern District of California 10 Mr. Stewart said that he did not want to be Mr. Moore tried to calm Mr. Stewart down, and with time After speaking with Ms. Brown, Ms. Alford immediately called 11 a dispatcher for assistance. 12 stopped taking his medication. 13 ambulance instead of law enforcement to avoid scaring Mr. Stewart 14 and escalating the situation. 15 Mike Roberts of the HTPD respond to the scene in the event that an 16 ambulance was unavailable. 17 Stewart and his mental illness, and Ms. Alford believed that Mr. 18 Stewart trusted him. 19 Berry and Officer Landreneaux responded to the request for a 20 welfare check. 21 Landreneux's vehicle. 22 Ms. Alford feared that her son had She specifically requested an Ms. Alford requested that Officer Officer Roberts was familiar with Mr. Officer Roberts was unavailable, so Deputy Both officers drove to the scene in Officer The Moore-Brown residence was located in a very remote area 23 in the mountains where the HTPD and HCSD often shared 24 jurisdiction. 25 the driveway, they made contact with Ms. Brown who was driving in 26 the opposite direction. 27 cars over to talk. As Deputy Berry and Officer Landreneaux approached The officers and Ms. Brown pulled their Officer Landreneaux spoke with Ms. Brown for 28 4 1 about twenty minutes, and Deputy Berry spoke with Ms. Alford using 2 Ms. Brown’s cell phone. 3 The officers proceeded up the mountain, arriving at the 4 residence at about 3:00 pm. 5 further up the road there was another trailer residence. 6 a dispute as to the manner in which the officers drove onto the 7 property. 8 driveway at a high rate of speed. 9 officers' arrival frightened Mr. Stewart who had gained some United States District Court For the Northern District of California 10 The home was a green trailer, and There is Mr. Moore insists that the officers drove up the According to Mr. Moore, the measure of calm for a moment. 11 The officers parked about thirty feet in front of the 12 trailer, exited the vehicle, and began walking towards the 13 residence. 14 front of the trailer, and Mr. Stewart stood at the top of the 15 stairs leading to the front door. 16 that his mother was worried about him, and he needed to go with 17 them. 18 okay, and they would not harm him. 19 pulling out what appeared to be two butter knives, and screaming, 20 “Welcome to the Dragon, motherfuckers!” a line inspired by an old 21 Bruce Lee movie. 22 presence, and demanded that they leave. 23 weapons, and demanded that Mr. Stewart put down the knives. 24 According to Mr. Moore, Deputy Berry screamed back at Mr. Stewart, 25 “I’m about an inch from killing you.” 26 At this point Mr. Moore was standing on the ground in The officers told Mr. Stewart The officers assured Mr. Stewart that everything would be Mr. Stewart responded by Mr. Stewart was very angry about the officers' The officers drew their Mr. Stewart put the knives in his waistband, went into the 27 house and shut the door. Inside the house, Mr. Stewart found Mr. 28 Moore’s .22 rifle and pointed it at the officers from just inside 5 1 the window. 2 behind their vehicle. 3 at the door, brandishing the rifle, repeatedly "dry-fired" the 4 weapon, and then returned inside the house. 5 the vehicle further away from the house in an attempt to gain a 6 safer distance. 7 repeatedly came out of the house to point and dry-fire the rifle 8 at the officers. 9 Mr. Moore warned the officers, and they sought cover After a few moments, Mr. Stewart reappeared Deputy Berry backed The officers called for backup. Mr. Stewart Mr. Moore told the officers that he had other weapons and United States District Court For the Northern District of California 10 ammunition in the house, locked in a gun safe. 11 reportedly in the safe were an AR-15, an AK 27, a 12-gauge 12 shotgun, a .45-caliber pistol, and possibly another .22 rifle. 13 Mr. Moore said that the ammunition for the .22 rifle was not 14 locked up, but was kept separate from the rifle, so Mr. Stewart 15 would need to look for it. 16 would find the rifle bullets and gain access to the other weapons 17 and ammunition. 18 rifle and what appeared to be a pistol. 19 was probably a toy, because he did not own any pistols. 20 Stewart continued to point the weapons at the officers, and 21 pretended to fire at them. 22 The weapons The officers feared that Mr. Stewart At one point, Mr. Stewart reappeared with the Mr. Moore said that it Mr. No shots discharged. About forty-five minutes after Deputy Berry and Officer 23 Landreneaux requested assistance, other officers arrived: Mike 24 Roberts, Willie Hostler, and Ed Guyer of the HTPD. 25 told Deputy Berry that he had seen Mr. Stewart inside the house on 26 a phone attempting to make calls. 27 work at the time. Officer Guyer Mr. Moore’s landline did not 28 6 1 Lt. Cavinta arrived at the scene at about 6:30 pm. Shortly 2 after arriving, Lt. Cavinta had a brief conversation with Ms. 3 Alford, and with Mr. Stewart's father, Richard.3 4 parents provided additional information about his mental health 5 history. 6 Ms. Alford arrived at the scene sometime in the afternoon, and 7 remained throughout the night, and throughout the time of the fire 8 that killed her son. 9 Mr. Stewart in an attempt to calm him down and coax him out of the Mr. Stewart's It is not clear from her declaration exactly when, but Ms. Alford repeatedly offered to speak with United States District Court For the Northern District of California 10 house, but her offers were rejected. She urged HCSD officials to 11 give Mr. Stewart his medication, and to throw him a telephone. 12 Her requests were not heeded. 13 The HCSD had a SET team, the equivalent of a SWAT team. 14 team was sent to the Moore-Brown home to provide assistance. 15 According to Officer Landreneaux, the SET team arrived at about 16 8:30 pm. 17 and as the overall incident commander. 18 Humboldt County Mental Health Department arrived at the scene and 19 were briefed on the situation. 20 The Lt. Cavinta served as commander of the HCSD SET team, Negotiators from the Ms. Alford reported being at the scene during most of the 21 standoff and never hearing any shots. However, officers reported 22 two sets of gunshots fired in the time period between about 6:30 23 pm and 8:30 or 9:00 pm. 24 at about 6:30 pm, which apparently hit two police cars. 25 Barney reported a second set of shots when Mr. Stewart shot at him Deputy Berry reported hearing four shots Deputy 26 27 28 Mr. Stewart's father's last name is not mentioned in the record. 3 7 1 and he returned fire at about 8:30 pm or 9:00 pm. 2 Landreneaux and Deputy Berry heard the shots as they were leaving 3 the scene, but did not witness them. 4 hearing gunshots shortly after he arrived at 6:30 pm, while he was 5 speaking with Ms. Alford, and then again at about 9:00 pm. 6 bullet fragments were ever recovered, so there is no scientific 7 evidence confirming gunshots or who fired weapons. 8 9 Officer Lt. Cavinta testified to No Overall, there is little information in the record detailing what happened during the night and morning hours prior to the United States District Court For the Northern District of California 10 fire. At about 2:25 am, EPD Sgt. Nova arrived at the scene. He 11 served as commander of the EPD SWAT team. 12 eight members, including two crisis negotiators, Sergeant Howden 13 and Officer Wilson. 14 the EPD’s chemical grenadiers. 15 3:00 am. 16 the window of the Moore-Brown residence. His team consisted of Officers Timothy Jones and Louis Altic were Officer Jones arrived at about Officer Jones reported seeing a television on through 17 The EPD maintained its presence from then through the time 18 when the fire consumed the residence, except for its two crisis 19 negotiators who were released from the scene in the morning. 20 HCSD had its own negotiators who relieved the EPD negotiators. 21 Sgt. Nova testified that his negotiators did not speak or 22 negotiate with Mr. Stewart because he and Lt. Cavinta jointly 23 decided that, given the time of night and darkness, it was too 24 risky to negotiate Mr. Stewart's surrender. 25 The Other officers made several attempts to contact Mr. Stewart 26 over an intercom, but Mr. Stewart did not respond. 27 negotiations took place between law enforcement and Mr. Stewart. 28 Negotiators from the Humboldt County Mental Health Department were 8 No 1 present at the scene, and had been briefed. 2 Cavinta, the HCSD’s command of the incident included two 3 components, a tactical component, which he directed, and a 4 negotiation component, directed by Lt. Knight. 5 Cavinta’s testimony indicates that he exercised control that 6 encompassed the negotiators at the scene. 7 Health Department negotiators to repeat orders to Mr. Stewart to 8 surrender. 9 because Mr. Stewart never engaged in any dialogue. United States District Court For the Northern District of California 10 According to Lt. However, Lt. He ordered the Mental Lt. Cavinta testified that no negotiations occurred Eventually, the HCSD and EPD deployed chemical agents into 11 the residence. 12 gas launch at about 11:00 am. 13 tear gas, in the form of CS 37 millimeter canisters, was launched 14 into the home.4 15 how much tear gas was fired into the home. 16 her declaration that she counted thirty-nine launches of tear gas 17 canisters. 18 According to Ms. Alford, she heard the first tear Over the course of several hours, There is little precise information about exactly Ms. Alford stated in After the CS 37 millimeter tear gas canisters failed to expel 19 Mr. Stewart, Lt. Cavinta directed Deputy Barney to throw 20 additional chemical agents into the home. 21 Dep. at 25:4-17. 22 directives as to the use of chemical agents. 23 testified that, from the HCSD, only Deputies Barney and Taylor 24 were authorized to deploy chemical agents into the home. Id. at 20:16-18; Barney Lt. Cavinta made the decisions and issued Lt. Cavinta Cavinta 25 26 27 28 The parties provide little explanation of the various chemical agents deployed during this incident, including their definitions and characteristics, although EPD Sgt. Nova testified that tear gas is a common term for CS. Nova Dep. at 17:25-18:3. 4 9 1 Dep. at 1-8. 2 Deputy Barney, Lt. Cavinta responded, "They were to deploy two 3 cannisters [sic] -- one in window A and one in window B. 4 cannisters [sic] were to be non pyrotechnic, OC or CS or CN, 5 chemical agents." 6 instructing Deputy Barney to launch a "triple-chamber CS grenade" 7 into the home. 8 9 When asked what specific directions he gave to Cavinta Dep. at 20:19-23. Both Lt. Cavinta denied Id. at 24:25-25:2. At the time of the incident, Deputy Barney had been a member of the SET team for four months. He testified that the chain of United States District Court For the Northern District of California 10 command provided that Lt. Cavinta issued his orders to Sgt. 11 Quenell who then relayed the commands to himself and Deputy 12 Taylor. 13 Sgt. Quenell spoke with him and Deputy Taylor about "avoiding 14 using any" pyrotechnics in the house. 15 have any other discussion about the use of chemical agents. 16 at 23:7-12. 17 Barney Dep. at 21:3-14. Deputy Barney testified that Other than this, he did not Id. Deputies Barney and Taylor approached the trailer with a 18 bullet-resistant blanket. Cavinta Dep. at 31:14-16. Deputy 19 Barney came within two to three feet of the home and hand deployed 20 one or two "aerosol OC grenades," a "stinger grenade" and two 21 "triple chamber grenades" into window B. 22 26:24-28:3. 23 first, and then thirty minutes later discharged, in a matter of 24 seconds, the stinger grenade and triple chamber grenades. 25 26:24-27:24. 26 effective than the earlier deployed CS 37 millimeter canisters 27 because they produced more tear gas and smoke. Barney Dep. at 24:1-7, Deputy Barney discharged the aerosol OC grenades Id. at Deputy Barney testified that the grenades were more 28 10 Id. at 25:9-10. 1 Within ten minutes after Deputy Barney discharged the final 2 grenades, smoke began escaping the house, but Mr. Stewart did not 3 emerge. 4 the record, it appears that it started at about 3:00 pm. 5 Although the exact time the fire ignited is not clear in Deputy Barney also referred to the "triple chamber grenade" 6 as a "CS triple chamber grenade." Id. at 26:8-12. He testified 7 that a "triple chamber grenade" is "a nonpyrotechnic grenade that 8 is safe to be used indoors. 9 Id. at 24:15-18. It dispenses gas and CS chemical." He was aware at that time that HCSD's policy United States District Court For the Northern District of California 10 directed the use of pyrotechnic devices for outdoor crowd control. 11 Id. at 17:2-7. 12 his training as a chemical grenadier, he considered a "tri-chamber 13 smoke grenade" a pyrotechnic device. 14 EPD Officer Altic, however, stated that, based on Altic Dep. at 31:7-15. The Hoopa Tribal Volunteer Fire Department had arrived at the 15 scene at about 8:00 or 9:00 am and stayed through the time the 16 fire began and consumed the trailer. 17 recently purchased fire truck. 18 conversation with Hoopa Tribal Fire Chief Duane Sherman. 19 the evidence as to time is vague, it appears that this 20 conversation took place after the fire had already started. 21 During that conversation, Lt. Cavinta concluded that it was too 22 dangerous to send firefighters to stop the fire. 23 concern that ammunition was "cooking off." 24 the fire department at a distance. 25 The department brought a Lt. Cavinta reported a Although There was a The HCSD and EPD kept Raven Sherman was the sole member of the department who 26 submitted a declaration in this action. 27 fire truck was equipped with a "high technology striker cannon 28 which allows the Fire Department to deploy a high pressure water 11 According to her, the new 1 flow to a burning structure while maintaining a safe distance from 2 the dwelling that is on fire." After the fire, Richie Marshall, one of Mr. Stewart's 3 4 cousins, went to the scene to identify his body. Mr. Stewart's 5 body was lying next to a bathtub filled with water, and he was 6 wrapped in wet sheets. 7 officers were taking pictures and celebrating. Marshall stated in his declaration that 8 LEGAL STANDARD 9 Summary judgment is properly granted when no genuine and United States District Court For the Northern District of California 10 disputed issues of material fact remain, and when, viewing the 11 evidence most favorably to the non-moving party, the movant is 12 clearly entitled to prevail as a matter of law. 13 56. 14 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 15 1987). 16 the party against whom summary judgment is sought. 17 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); 18 Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 19 (9th Cir. 1991). 20 Fed. R. Civ. P. Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986); The court must draw all reasonable inferences in favor of Matsushita Material facts which would preclude entry of summary judgment 21 are those which, under applicable substantive law, may affect the 22 outcome of the case. The substantive law will identify which 23 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 24 242, 248 (1986). 25 26 27 28 DISCUSSION I. Section 1983 Claim based on the Fourth Amendment Under the Fourth Amendment, a police seizure must be reasonable in order to survive the constitutional scrutiny 12 1 implicated in a § 1983 claim. Graham v. Connor, 490 U.S. 386, 395 2 (1989). 3 Fourth Amendment's reasonableness requirement." 4 Torres, 610 F.3d 546, 550 (9th Cir. 2010). 5 6 7 "Apprehension by deadly force is a seizure subject to the Wilkinson v. "Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on 8 9 the individual's Fourth Amendment interests against the United States District Court For the Northern District of California 10 countervailing governmental interests at stake." 11 at 396. 12 sift through disputed factual contentions, and to draw inferences 13 therefrom . . . summary judgment or judgment as a matter of law 14 . . . should be granted sparingly." Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). The proper application of 15 Graham, 490 U.S. "Because such balancing nearly always requires a jury to 16 17 18 this objective test "requires careful attention to the facts and circumstances of each particular case, including the severity of 19 the crime at issue, whether the suspect poses an immediate threat 20 to the safety of the officers or others, and whether he is 21 actively resisting arrest or attempting to evade arrest by 22 flight." 23 24 Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). The Fourth Amendment permits use of deadly force to apprehend a person where there is "probable cause to 25 26 27 believe the suspect poses a threat of serious physical harm." Garner, 471 11. 28 13 1 "The 'reasonableness' of a particular use of force must be 2 judged from the perspective of a reasonable officer on the scene, 3 rather than with the 20/20 vision of hindsight." 4 addition, the calculus of reasonableness must embody allowance for 5 the fact that police officers are often forced to make split- 6 7 Id. "In second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a 8 9 particular situation." Wilkinson, 610 F.3d at 550. However, United States District Court For the Northern District of California 10 "where it is or should be apparent to the officers that the 11 individual involved is emotionally disturbed, that is a factor 12 that must be considered in determining, under Graham, the 13 reasonableness of the force employed." 14 F.3d 1272, 1283 (9th Cir. 2001). 15 Deorle v. Rutherford, 272 Liability under § 1983 extends to those actors who were 16 17 18 integral participants in a constitutional violation, even if they did not directly engage in unconstitutional conduct themselves. 19 Boyd v. Benton Co., 374 F.3d 773, 780 (9th Cir. 2004). 20 who does not enter an apartment, but stands at the door, armed 21 with a gun, while others conduct the search, can be a full and 22 active participant in the search, and therefore subject to 23 24 liability. Id. An officer On the other hand, an officer who is standing on the sidewalk interviewing a witness, and does not participate in 25 26 27 the unconstitutional search in any fashion, cannot be held liable. Hopkins v. Bonvicino, 573 F.3d 752, 769-70 (9th Cir. 2009). 28 14 1 A. Fourth Amendment Claim Against Deputy Berry 2 Ms. Alford's claim against Deputy Berry alleges that he 3 entered the property without sufficient cause and used excessive 4 force by pointing his gun at Mr. Stewart when Mr. Stewart was 5 "merely suffering from a psychiatric emergency and posed no threat 6 7 to Berry or anyone else." Compl. ¶ 39. Ms. Alford has failed to produce sufficient evidence 8 9 demonstrating a triable dispute of fact as to whether Deputy Berry United States District Court For the Northern District of California 10 behaved unreasonably. 11 Deputy Berry and Officer Landreneaux entered the Bald Hill Road 12 property to conduct a welfare check. 13 not have standing to complain of entry without cause onto the 14 property, because the property did not belong to Mr. Stewart or 15 Ms. Alford.5 The undisputed evidence indicates that Furthermore, Ms. Alford does While Ms. Alford alleges and Mr. Moore attests that 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants' challenge to Plaintiff's standing to assert these Fourth Amendment claims does not appear to dispute her standing to bring her son's Fourth Amendment claims generally. “[T]he general rule is that only the person whose Fourth Amendment rights were violated can sue to vindicate those rights.” Moreland v. Las Vegas Met. Police Dept., 159 F.3d 365, 369 (1998). “In § 1983 actions, however, the survivors of an individual killed as a result of an officer’s excessive use of force may assert a Fourth Amendment claim on that individual’s behalf if the relevant state’s law authorizes a survival action.” Id. (citing 42 U.S.C. § 1988(a) and Smith v. City of Fontana, 818 F.2d 1411, 1416-17 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). California Code of Civil Procedure § 377.20 provides that "a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." See also Cal. Civ. Proc. Code § 377.60 (authorizing causes of action to be brought by decedent's personal representative or any of a defined list of persons, including survivors by intestate succession.) 5 15 1 2 the officers sped up the driveway at undue speed, even if true, this is not sufficient to sustain a claim for excessive force. The Court next considers whether Deputy Berry used 3 4 unreasonable force by aiming his gun at Mr. Stewart. 5 officers arrived at the home, they attempted to persuade Mr. 6 7 Once the Stewart to come with them, because his mother was concerned about him. Mr. Stewart responded by brandishing two butter knives, and 8 9 screaming, “Welcome to the Dragon!” and an explicative at the United States District Court For the Northern District of California 10 officers. 11 and dry-firing it at the officers. 12 re-enter the house to try to coax Mr. Stewart into surrender. 13 Stewart repeatedly returned inside the house, creating a genuine 14 risk that he might find Mr. Moore's unsecured rifle ammunition. 15 He retrieved a rifle from the house, and began aiming Mr. Moore himself chose not to Mr. It was also within the realm of possibility that Mr. Stewart could 16 17 18 gain access to the numerous other weapons that Mr. Moore had stored in his home. While it is true that the trailer was located 19 in an exceedingly remote area, with no neighbors or passersby in 20 close proximity, the officers, Mr. Moore and Mr. Stewart himself 21 were in imminent danger. 22 behaved with restraint. 23 24 In the face of this danger, Deputy Berry He pulled his weapon and aimed it at Mr. Stewart for self-protection and to emphasize the seriousness of his order to Mr. Stewart that he put down the weapons. Deputy 25 26 Berry never fired his gun during the many hours that he was at the 27 scene. Instead he backed up his vehicle to a safer distance from 28 the home and called for assistance. 16 1 There is no evidence apart from Mr. Moore's testimony that 2 Deputy Berry told Mr. Stewart, "I'm an inch from killing you 3 [expletive]." 4 Berry's harsh words, such language did not amount to an 5 unreasonable use of force, in a moment when Mr. Stewart was 6 7 Crediting Mr. Moore's testimony about Deputy obviously unstable, had brandished knives, and may have had other weapons at his disposal. The language, if used, may have been 8 9 United States District Court For the Northern District of California 10 11 counterproductive in this delicate situation, but it did not violate the Fourth Amendment. It is undisputed that Deputy Berry left the Bald Hill 12 property at about 9:00 pm on June 3, 2007, and did not return 13 during the remaining time period at issue in this lawsuit. 14 Alford has not presented any evidence that 15 Ms. Deputy Berry was an integral participant in launching chemical agents into the Moore- 16 17 18 Brown residence, or in blocking medical and fire fighting aid to Mr. Stewart. Because Deputy Berry's conduct was clearly within 19 the bounds of the Fourth Amendment, the Court grants summary 20 judgment in his favor on the Fourth Amendment claim against him. 21 B. Fourth Amendment Claims Against Other Defendants 22 Ms. Alford's Fourth Amendment § 1983 claim also includes a 23 24 challenge to the other Defendants' use of chemical agents against Mr. Stewart, as well as the decision to block the Hoopa Tribal 25 26 27 Fire Department from extinguishing the blaze that killed Mr. Stewart. 28 17 1. Use of Chemical Agents 1 2 The Court applies the three factors identified in the 3 reasonableness test established in Graham. 4 the crime at issue must be considered. 5 was committed. 6 7 First, the severity of Here, initially no crime Deputy Berry and Officer Landreneaux had been called to conduct a welfare check, anticipating a possible commitment under California Welfare and Institutions Code § 5150. 8 9 However, Mr. Stewart also forced the Moore-Brown family from their United States District Court For the Northern District of California 10 home, and the family was unable to return during the course of the 11 standoff. 12 contrary to Ms. Alford's assertions, violations of law occurred 13 and brought some urgency to apprehending Mr. Stewart. 14 15 Then he threatened the officers with weapons. Thus, Under the second factor in the Graham test, the Court must consider whether Mr. Stewart was attempting to flee or evade 16 17 18 arrest. Mr. Stewart was not attempting to flee. However, he did continue to resist arrest by refusing to leave the Moore-Brown 19 residence. 20 for the officers to use force. 21 22 23 24 Mr. Stewart's ongoing resistance increased the need The constitutionality of law enforcement's actions in this case depends most heavily on whether Mr. Stewart posed an immediate threat to the officers or others, and whether the officers' actions were a reasonable response to that threat. 25 26 Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) ("The most 27 important factor under Graham is whether the suspect posed an 28 immediate threat to the safety of the officers or others."). 18 Ms. 1 2 3 Alford makes several arguments asserting that the officers' conduct was unreasonable considering the threat Mr. Stewart posed. First, Ms. Alford argues that the duration of the standoff 4 and the length of time that passed without any gunfire diminished 5 the threat Mr. Stewart posed. 6 7 If Ms. Alford's testimony is credited over the officers' testimony, as it must be on summary judgment, no shots were ever fired. However, even if Mr. Stewart 8 9 fired a gun, he did so at about 6:30 pm and again at about 9:00 pm United States District Court For the Northern District of California 10 on June 3, 2007. 11 the time when the SWAT teams began firing tear gas canisters into 12 the home at about 11:00 am. 13 last gunshot allegedly fired and when officers launched chemical 14 grenades into the trailer. 15 Fourteen hours passed between the last shot and Eighteen hours passed between the There is evidence that Mr. Stewart, at some point, had turned on a television. 16 17 18 Courts may consider timing in assessing the reasonableness of police response to a perceived threat. See, e.g., Estate of Smith 19 v. Marasco, 318 F.3d 497, 516 (3rd Cir. 2003). 20 decedent was a mentally unstable individual who was engaged in an 21 ongoing feud with his neighbor and had lodged several complaints 22 against local law enforcement. 23 24 Id. at 502. In that case, the Two officers responded to a complaint by the decedent's neighbor. When the decedent did not respond the officers' door knocks or phone calls, 25 26 and they came to believe based on a light shining through a window 27 that he was directing a laser-sighted firearm at the officers, the 28 situation evolved into a barricaded gunman scenario. 19 Id. at 502- 1 03. The Third Circuit noted that six and a half hours passed 2 between the initial call to the police and the time the Special 3 Emergency Response Team began its "rock assault" on the decedent's 4 home, clearing the home with rocks, tear gas, and "flash bang" 5 devices. 6 7 Id. at 503, 517. According to the Third Circuit, the passage of more than six hours, with no recent use a weapon by the decedent and the decedent's history of mental problems, rendered 8 9 the use of force unreasonable. The court contrasted the case with United States District Court For the Northern District of California 10 Sharrar v. Felsing, 128 F.3d 810 (3rd Cir. 1997), where only three 11 hours transpired between the victim's call to police and the SWAT 12 team assault. 13 14 15 Id. at 516-17. Nevertheless, here, even if the threat's imminence had diminished, the threat of violence itself remained present and Mr. Stewart continued to barricade himself in someone else's home. 16 17 18 The undisputed evidence is that Mr. Stewart aimed at least one weapon at law enforcement, the rifle ammunition in the Moore-Brown 19 residence was accessible, and Mr. Stewart was a deeply disturbed 20 individual who was wracked with violent thoughts and appeared to 21 have lost touch with reality. 22 Stewart's opportunity to find the rifle ammunition which was not 23 24 The passage of time increased Mr. in a safe, and to locate the other high-powered weapons and ammunition, and figure out a way to unlock the safe they were in. 25 26 The fact that the television was turned on does not negate that 27 continuing danger. Accordingly, the passage of time without any 28 gunfire does not establish that the officers unreasonably 20 1 2 3 initiated their use of chemical weapons to expel Mr. Stewart from the home. Ms. Alford also argues that law enforcement in this case 4 failed to consider less dangerous alternatives to a tear gas and 5 chemical grenade assault. 6 7 In Headwaters Forest Defense v. County of Humboldt, the Ninth Circuit held that, where protestors did not present an immediate threat to the safety of others, law 8 9 enforcement officers--and the district court in reviewing the United States District Court For the Northern District of California 10 reasonableness of their actions--were required to consider other 11 available tactics, such as negotiations, to accomplish arrests. 12 240 F.3d 1185, 1204-05 (9th Cir. 2000), vacated on other grounds, 13 534 U.S. 801 (2001); see also, Boyd, 374 F.3d at 779. 14 15 Ms. Alford points to evidence that she was not permitted to communicate with her son, despite her numerous requests to do so 16 17 18 and her presence throughout the standoff. However, the decision not to allow Ms. Alford to speak directly with Mr. Stewart does 19 not establish that Defendants unreasonably failed to consider that 20 option. 21 father, and Ms. Alford was in communication with other officers. 22 Ms. Alford has not produced evidence that the officers' decision 23 24 Lt. Cavinta spoke with Ms. Alford and Mr. Stewart's not to adopt her proposed strategy, in itself, rendered their decision to use force unreasonable. 25 26 In addition, Ms. Alford argues that Defendants' failure to 27 negotiate with her son indicates that they neglected to consider 28 less dangerous alternatives. There is evidence that various teams 21 1 of negotiators were brought to the scene, and officers made 2 attempts to communicate with Mr. Stewart by intercom. 3 Stewart's refusal to respond blocked these officers' attempts to 4 negotiate. 5 6 Mr. However, Ms. Alford further argues that Defendants unreasonably failed to deliver a "throw phone"6 or other means of 7 8 9 communication to the trailer. Unlike the intercom used by the officers, a throw phone could have offered a means for Mr. Stewart United States District Court For the Northern District of California 10 to communicate privately with the officers, and thus facilitated 11 negotiations. 12 made to deploy a throw phone into the residence, but he did not 13 explain the reason for not taking that step. 14 Lt. Cavinta testified only that no attempts were Defendants argue that, under the circumstances, it would have been too dangerous to 15 attempt to deliver a throw phone into the residence. Yet it is 16 17 undisputed that Deputies Taylor and Barney approached within two 18 to three feet of the residence to launch chemical grenades into 19 the windows. 20 blanket. 21 take similar steps to deliver a throw phone or other communication 22 device into the Moore-Brown residence before ordering the use of 23 They did this under the cover of a bullet-resistant A jury could find unreasonable Lt. Cavinta's failure to force. 24 25 26 27 28 A "throw phone" is a phone encased in a box that also contains an open microphone. Fisher v. City of San Jose, 558 F.3d 1069, 1073 n.3 (9th Cir. 2009) (en banc). 6 22 1 Instead, there is evidence that next a substantial number of 2 tear gas canisters were launched toward the residence 3 Ms. Alford has failed to present facts as to the specific danger 4 posed by the tear gas. 5 introducing the chemical agents with the intent to induce Mr. 6 7 However, Sgt. Nova testified that they began Stewart to surrender or begin negotiating with them. Ms. Alford does not point to evidence raising a dispute of material fact 8 9 allowing a reasonable jury to find that law enforcement officers United States District Court For the Northern District of California 10 acted unreasonably with respect to their use of the tear gas 11 canisters. 12 Ms. Alford concedes that the heart of her case is her 13 allegation that Deputy Barney intentionally deployed pyrotechnic 14 chemical agents into the home where Mr. Stewart had barricaded 15 himself, causing the fire that ultimately killed her son. Ms. 16 17 18 Alford relies on Boyd, in which the Ninth Circuit determined that "flash-bang" devices are "inherently dangerous," and held that the 19 use of such devices is excessive "absent a strong governmental 20 interest, careful consideration of alternatives and appropriate 21 measures to reduce the risk of injury." 22 not clear that the chemical grenades used in this case were 23 24 374 F.3d at 779. It is "flash-bang" devices as described in Boyd. Deputy Barney admitted to deploying two "triple chamber 25 26 grenades." Although he testified that the grenades were not 27 pyrotechnic, EPD Officer Altic testified, under questioning by Ms. 28 Alford's counsel, that "tri-chamber smoke grenades" are 23 1 pyrotechnic. Officer Altic is a chemical grenadier, and he stated 2 that his testimony was based on his training. 3 argue that the "triple chamber grenades" Deputy Barney testified 4 to using were a non-pyrotechnic device different from a "tri- 5 chamber smoke grenade," which Officer Altic stated is pyrotechnic. 6 7 Defendants do not Instead Defendants argue that there is no dispute of fact that the "tri-chamber smoke grenades" used by the HCSD were not 8 9 pyrotechnic. They contend that Officer Altic was confused when he United States District Court For the Northern District of California 10 made the statement that "tri-chamber smoke grenades" were 11 pyrotechnic. 12 that Officer Altic's confusion related to whether he and Ms. 13 Alford's counsel were referring the same device when they were 14 discussing "sting ball" grenades. 15 However, the testimony cited by Defendants indicates Defendants also argue that Officer Altic had no personal 16 17 18 knowledge of the devices Deputy Barney actually used. While this is true, Defendants concede, as noted above, that the HCSD used a 19 "tri-chamber smoke grenade" during the incident. 20 lack of personal knowledge about what Deputy Barney deployed does 21 not negate his testimony that a "tri-chamber smoke grenade" is 22 pyrotechnic. 23 24 Officer Altic's Furthermore, there is ample evidence that, within minutes after Deputy Barney deployed the final grenades, a fire began to consume the home. There is no evidence that Mr. Stewart 25 26 started the fire. Accordingly, Ms. Alford has raised a triable 27 dispute of fact as to whether Deputy Barney launched a pyrotechnic 28 device into the Moore-Brown residence, causing the fire that led 24 1 to Mr. Stewart's death. If he did so by mistake, he would not be 2 liable, but a jury could infer that he knew or should have known 3 that the device was pyrotechnic. 4 that Lt. Cavinta ordered deployment of a triple chamber grenade, 5 as opposed to a non-pyrotechnic device. 6 7 However, there is no evidence Nor is there evidence that any other Defendant ordered or participated in the deployment of a pyrotechnic device. Accordingly, no other Defendant's 8 9 United States District Court For the Northern District of California 10 11 conduct could be found unreasonable on this ground. 2. Failure to Rescue Ms. Alford further alleges that Defendant members of the HCSD 12 and EPD violated Mr. Stewart's Fourth and Fourteenth Amendment 13 rights by prohibiting the Hoopa Fire Department from rescuing him 14 after the fire began. 15 The case law cited by Ms. Alford provides that the Fourth Amendment and the Fourteenth Amendment due process 16 17 18 clause require that officers take reasonable steps to secure necessary medical care for a detainee who has been injured while 19 being apprehended. 20 F.3d 1090, 1098-99 (9th Cir. 2006) (holding that an officer who 21 called for an ambulance, but did not provide CPR, satisfied the 22 Fourth Amendment's requirement for objectively reasonable post- 23 24 Tatum v. City and County of San Francisco, 441 arrest care); Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986) (pre-Graham decision affirming jury instructions 25 26 27 stating that due process requires "police officers to seek the necessary medical attention for a detainee when he or she has been 28 25 1 2 3 injured while being apprehended") (citing Revere v. Massachusetts General Hosp., 463 U.S. 239, 244 (1983)). However, none of these cases is applicable to the present 4 action, where Mr. Stewart continued to resist arrest, threatened 5 law enforcement with weapons, and barricaded himself in a home 6 7 with potentially accessible firearms. In Tatum and Maddox the injured individuals had been arrested, and the adequacy of care 8 9 provided by the officers subsequent to the arrest was challenged. United States District Court For the Northern District of California 10 Although the circumstances in which Mr. Stewart died are tragic, 11 these cases do not establish that Mr. Stewart was constitutionally 12 entitled to have firefighters battle flames and rescue him where 13 there was uncertainty and a risk that he might fire upon them. 14 15 Here, it is undisputed that the Hoopa Tribal Fire Department was called to the scene during the standoff. Lt. Cavinta 16 17 18 consulted with Fire Chief Duane Sherman when the fire started and determined that was unsafe for fire personnel to approach, given 19 that Mr. Stewart was in possession of firearms. 20 failed to produce evidence sufficient for a jury to find that this 21 decision was unreasonable. 22 create a material dispute of fact because it is not qualified 23 24 Ms. Alford has Ms. Sherman's declaration does not expert testimony and there is no evidence that she was informed of the dangers that Mr. Stewart posed to the firefighters. 25 26 Furthermore, Lt. Cavinta's testimony that it would be safe for 27 fire personnel to approach the residence and put out the fire only 28 after Mr. Stewart voluntarily left the home or it was destroyed is 26 1 not evidence of an unreasonable decision given Mr. Stewart's 2 earlier threats, brandishing of a rifle, and the presence of 3 ammunition and other chemical agents heating in the flames. 4 Accordingly, summary judgment is warranted with respect to Lt. 5 Cavinta's decision to restrain the Fire Department. 6 7 Defendants' motion for summary judgment as to Ms. Alford's Fourth Amendment claims is granted in favor of HCSD Sheriff Philp, 8 9 Sgt. Quenell, HCSD Deputy Berry, EPD Chief Nielsen, EPD Sgt. Nova United States District Court For the Northern District of California 10 and Lt. Morey. Summary judgment on Ms. Alford's Fourth Amendment 11 claims against HCSD Lt. Cavinta and HCSD Deputy Barney is denied. 12 III. Section 1983 Claim based on the Fourteenth Amendment 13 Ms. Alford also asserts a cause of action for violation of her 14 Fourteenth Amendment substantive due process right to be free from 15 unwarranted interference with her familial relationship with her 16 17 18 son. Compl. at ¶46. “This circuit has recognized that parents have a Fourteenth Amendment liberty interest in the companionship 19 and society of their children.” 20 Under the Fourteenth Amendment, "only official conduct that 21 'shocks the conscience' is cognizable as a due process violation." 22 Porter v. Osborn, 546 F.3d 1131, 1137 (citing Lewis, 523 U.S. at 23 24 Wilkinson, 610 F.3d at 554. 846). Ms. Alford argues that Defendants used excessive force against 25 26 her son and were deliberately indifferent to his medical needs. 27 Because the Court earlier found that Deputy Berry's conduct was 28 within the bounds of the Fourth Amendment, his conduct also fails 27 1 to sustain a claim under the "shocks the conscience" standard 2 applicable to Fourteenth Amendment claims. 3 respect to Ms. Alford's challenge of the decision to prevent the 4 Hoopa Tribal firefighters from extinguishing the flames. 5 the evidence is insufficient to support an inference that this 6 7 The same is true with Because decision was unreasonable, it also fails to raise a dispute of fact that it shocks the conscience. 8 9 Ms. Alford's sole Fourth Amendment claims that warrant a trial United States District Court For the Northern District of California 10 are those related to Lt. Cavinta's failure to order the delivery 11 of a throw phone into the Moore-Brown residence before authorizing 12 the use of force, and Deputy Barney's launch of two triple chamber 13 smoke grenades into the home. 14 motion for summary judgment on her Fourteenth Amendment claims, 15 However, to survive Defendants' Ms. Alford must point to evidence sufficient to support a finding 16 17 18 that these actions were taken due to "deliberate indifference" or "with a purpose to harm unrelated to legitimate law enforcement 19 objectives." 20 Lewis the shocks-the-conscience standard may be met by showing 21 that an officer has acted either with deliberate indifference or 22 with a purpose to harm). 23 24 Porter, 546 F.3d at 1137 (explaining that under Ms. Alford has produced no evidence upon which a jury could find that Lt. Cavinta or Deputy Barney intended to harm Mr. Stewart. Porter, 546 F.3d at 1138 n.6 (discerning no 25 26 27 28 distinction between "purpose to harm" and "intent to harm"). On the other hand, the less onerous deliberate indifference standard requires only that Ms. Alford produce evidence that Lt. 28 1 Cavinta and Deputy Barney "knowingly and unreasonably" disregarded 2 a risk of serious injury. 3 492, 515 (6th Cir. 2002) (post-Lewis decision applying the 4 deliberate indifference standard to review police conduct during a 5 two-day standoff). 6 7 Ewolski v. City of Brunswick, 287 F.3d The deliberate indifference standard applies where an officer has time and a practical opportunity to make deliberate decisions. Lewis, 523 U.S. at 851. With respect to 8 9 Lt. Cavinta's decision not to deliver a throw phone before United States District Court For the Northern District of California 10 resorting to chemical weapons, Defendants argue that it was simply 11 too dangerous to deploy the phone. 12 no phone was available or that Lt. Cavinta was unaware of such 13 phone. 14 otherwise peacefully engage with law enforcement. 15 Defendants do not argue that However, Mr. Stewart showed no inclination to negotiate or Various negotiators and mental health personnel had been brought to the 16 17 18 scene. Numerous attempts were made to communicate and negotiate with Mr. Stewart. That Lt. Cavinta did not deploy a throw phone 19 in this circumstance does not indicate a purposeful, knowing 20 indifference that shocks the conscience. 21 22 23 24 Turning to Deputy Barney's conduct, Ms. Alford has raised a material dispute of fact as to whether his actions shocked the conscience. As explained earlier, there is evidence that Deputy Barney deployed what may have been a pyrotechnic device into the 25 26 27 home contrary to existing orders and policy. A reasonable jury could find that the knowing or reckless use of such a device 28 29 1 2 demonstrates an unreasonable disregard for Mr. Stewart's wellbeing that shocks the conscience. Accordingly, Ms. Alford has a triable claim for violation of 3 4 her Fourteenth Amendment rights solely based on evidence that 5 Deputy Barney deployed a pyrotechnic device into the home. 6 7 Defendants' motion for summary judgment as to Ms. Alford's Fourteenth Amendment claims is granted in favor of HCSD Sheriff 8 9 Philp, HCSD Lt. Cavinta, HCSD Sgt. Quenell, HCSD Deputy Berry, EPD United States District Court For the Northern District of California 10 Chief Nielsen, EPD Sgt. Nova and Lt. Morey. 11 denied regard to Ms. Alford's Fourteenth Amendment claim against 12 HCSD Deputy Barney. 13 IV. 14 15 Defendants' motion is Qualified Immunity Defendants seek protection under the doctrine of qualified immunity. Qualified immunity shields law enforcement officers not 16 17 18 only from liability, but from the burdens of litigation. Under the test established in Saucier v. Katz, qualified immunity does 19 not apply when, viewing the facts in the light most favorable to 20 the allegedly injured party, the officer's conduct violated a 21 constitutional right, and the constitutional right was clearly 22 established at the time the misconduct occurred. 23 24 201 (2001). 533 U.S. 194, "Since a reasonably competent public official should know the law governing his conduct," qualified immunity does not 25 26 apply when the relevant law is clearly established. Harlow v. 27 Fitzgerald, 457 U.S. 800, 818-19 (1982). 28 binding precedent, a court should look to whatever decisional law 30 "In the absence of 1 is available to ascertain whether the law is clearly established 2 for qualified immunity purposes, including decisions of state 3 courts, other circuits, and district courts." 4 at 1060 (internal citations, quotation marks and alteration 5 omitted). 6 7 Drummond, 343 F.3d State actors must have fair notice of what the law requires. There is sufficient evidence for a reasonable jury to find 8 9 that Deputy Barney violated the constitution by deploying a United States District Court For the Northern District of California 10 pyrotechnic device into the home where Mr. Stewart had barricaded 11 himself. 12 Boyd, 374 F.3d at 779, and Estate of Smith, 318 F.3d at 516-17, 13 gave Deputy Barney sufficient notice of the need for caution when 14 using explosive devices and other aggressive tactics to subdue a 15 At the time of the incident, in 2007, decisions such as mentally unstable individual who is resisting arrest. It was well 16 17 18 established at the time of the standoff that, where no immediate threat to the safety of others exists, law enforcement officers 19 are required to consider less intrusive tactics before using less- 20 than-lethal devices to accomplish an arrest. 21 779 (requiring a warning and consideration of alternatives before 22 use of a less-than-lethal flash bang device); see also Headwaters 23 24 Boyd, 374 F.3d at Forest Defense, 240 F.3d at 1204. On the other hand, no pre-existing authority established that 25 26 27 it was unreasonable for law enforcement officers to fail to deploy a throw phone as part of their efforts to negotiate a peaceful end 28 31 1 2 to a standoff. Accordingly, Lt. Cavinta is entitled to qualified immunity based on this sole surviving claim against him. CONCLUSION 3 4 5 6 7 The Court grants Defendants' motion for summary judgment on Ms. Alford's Fourth Amendment claims in favor of HCSD Sheriff Philp, HCSD Sgt. Quenell, HCSD Deputy Berry, EPD Chief Nielsen, EPD Sgt. Nova and Lt. Morey. The Court denies summary judgment on 8 9 Ms. Alford's Fourth Amendment claims against Deputy Barney. The United States District Court For the Northern District of California 10 Court finds that Ms. Alford has produced sufficient evidence to 11 raise a Fourth Amendment claim against Lt. Cavinta, but grants 12 summary judgment in his favor because he is entitled to qualified 13 immunity. 14 15 The Court grants summary judgment on Ms. Alford's Fourteenth Amendment claims in favor of HCSD Sheriff Philp, HCSD Lt. Cavinta, 16 17 18 HCSD Sgt. Quenell, HCSD Deputy Berry, EPD Chief Nielsen, EPD Sgt. Nova and Lt. Morey. However, the Court denies summary judgment on 19 Ms. Alford's Fourteenth Amendment claim against HCSD Deputy 20 Barney. 21 22 23 The Court dismisses all of the claims against Humboldt County, the City of Eureka, and HCSD Detective Schlesiger. IT IS SO ORDERED. 24 25 Dated: 4/11/2011 CLAUDIA WILKEN United States District Judge 26 27 28 32

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