Killian v. City of Monterey et al

Filing 32

ORDER GRANTING-IN-PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN'S CROSS-MOTION FOR SUMMARY JUDGMENT by Judge Paul S. Grewal granting-in-part 21 and 26 (psglc2, COURT STAFF) (Filed on 12/13/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 SAN JOSE DIVISION 11 12 J. ROBERT KILLIAN, Killian, 13 14 v. CITY OF MONTEREY, et al. 15 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSSMOTION FOR SUMMARY JUDGEMENT (Re: Docket Nos. 21 and 26) In the wee hours of February 4, 2011, Plaintiff J. Robert Killian was detained and arrested for driving under the influence after he was found asleep in his car. A jury ultimately acquitted 19 Killian of all charges. In this action Killian brings claims pursuant 42 U.S.C. §§1983 and 12132 20 21 for violation of his constitutional rights and statutory rights under the Americans with Disabilities 22 Act by Defendants City of Monterey, Tim Shelby, Kris Richardson, and John Olney. 1 Killian 23 claims Defendants acted under color of law to deprive him of (1) the right to be free from 24 unreasonable search and seizure, (2) the right not to be deprived of life or liberty without due 25 process of law, (3) the right to be free from the use of excessive force by police officers, (4) the 26 27 1 28 See Docket No. 1 at ¶¶ 18-33. 1 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 right to equal protection, and (5) the right to be free from malicious prosecution. 2 Killian brings 2 parallel Monell claims that the City and Shelby condoned or tacitly encouraged the abuse of police 3 authority and disregard for citizens’ constitutional rights. 3 Killian also claims discrimination based 4 on his disabled status. 4 Before the court are the parties’ cross-motions for summary judgment on 5 6 all causes of action. The parties appeared for a hearing. Having reviewed the arguments, the court GRANTS Defendants’ motion for summary judgment and DENIES Killian’s cross-motion for 7 8 summary judgment on all claims. I. BACKGROUND 9 On the evening of February 3, 2011, Killian got lost while driving in Monterey looking for United States District Court For the Northern District of California 10 11 several friends to accompany him to the Osio Theatre. 5 12 Killian claims that at around 7:15 pm after feeling pain in his arm he pulled his car over to 13 the side of the road and ingested pain medication. 6 Killian was not aware that his car was parked 14 in a red zone. 7 He removed the keys from the ignition and placed them in his pocket. 8 Killian 15 16 17 claims that he was parked on Pacific Avenue for the balance of the evening and does not recall driving or being stopped by Olney, a Monterey Police Officer, later that night. 9 18 A few hours later, at 1:03 a.m., Olney conducted a traffic stop of a Honda CRV driven by 19 Killian at the intersection of Pacific and Scott Streets in Monterey, because the driver “seemed to 20 2 See id. at ¶¶ 18-20. 3 See id. at ¶¶ 21-28. 4 See id. at ¶¶ 29-32. 5 See Docket No. 21-1 at ¶ 5. 6 See Docket No. 24-1, Ex. G at 61:12-63:11, 64:14-22 7 See id. at 75:25-76:8. 8 See id. at 70:9-17. 9 See id. at 64:1-66:2. 21 22 23 24 25 26 27 28 2 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 be driving slowly and looking at the sidewalks.” 10 Olney then observed that Killian did not show 2 any sign of intoxication or impairment. 11 Thereafter, Olney escorted Killian to the Osio Theatre 3 one-quarter of a mile away. 12 Killian “does not recall ever speaking with Olney or mentioning the 4 Osio Theatre to any officer.” 13 5 6 7 8 9 At approximately 2:00 a.m. a taxi driver notified Richardson, Olney’s colleague, that an individual was asleep in a vehicle stopped in a traffic lane at the intersection of Pacific Avenue and Del Monte Avenue. 14 The taxi driver provided no further information about whether someone was driving the car or about the driver. 15 Richardson drove to the location, which was only a few United States District Court For the Northern District of California 10 blocks away, and transmitted on the radio that he was responding. 16 At approximately 2:00 a.m., 11 Olney heard Richardson’s radio transmission. 17 12 13 At the scene, Richardson observed a 2006 Honda CRV stopped in the left-turn traffic lane between the concrete triangle and red painted curb. 18 The vehicle also blocked the pedestrian 14 15 16 17 18 19 10 Docket No. 21-1 at ¶ 4; Docket No. 22, Ex. A. Olney is trained to identify and investigate driving under the influence violations. See Docket No. 21-1 at ¶¶ 1-2. 11 See Docket No. 21-1 at ¶ 5. 12 See id. 13 Docket No. 22, Ex. P at 63:12-15, 65:7-18. 20 21 22 14 23 See Docket No. 21-2 at ¶ 4. Richardson is trained to identify and investigate driving under the influence violations. See Docket No. 21-2 at ¶¶ 1-3. 24 15 See Docket No. 24-1, Ex. B at 21:2-22:25. 25 16 See Docket No. 21-2 at ¶ 6. 26 17 See Docket No. 21-1 at ¶ 6. 27 18 See Docket No. 21-1 at ¶ 6; Docket No. 21-2 at ¶ 6. 28 3 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 2 crosswalk. 19 Richardson stopped his patrol vehicle on Pacific Avenue, and left his headlights and spotlight directed at the stopped CRV. 20 Olney arrived a few minutes after Richardson. 21 At 2:04 a.m., Richardson walked to the driver’s door of Killian’s vehicle and observed 3 4 Killian sitting with his eyes closed in the driver’s seat of the Honda CRV. 22 The vehicle’s engine 5 was off. 23 Richardson knocked on the vehicle’s window several times but Killian did not 6 7 8 9 respond. 24 When Killian finally responded, it took several moments for him to locate his car keys. 25 At that point Killian started the car and rolled down the window. The police report describes Killian having some “apparent trouble finding the window switch.” 26 Killian claims he United States District Court For the Northern District of California 10 was meditating in his vehicle when Richardson awoke him with three slams on his car window. 27 11 Killian concedes he had some difficulty locating the buttons to roll down his window. 28 12 Richardson spoke briefly to Killian through the window. 29 Killian never provided 13 information about when he had stopped his vehicle at the intersection. 30 The officer asked Killian 14 15 19 See id. 20 See id. 21 See id. 22 See id. at ¶ 10. 23 See id. 24 See id. at ¶ 11. 25 See id. 26 Id. 27 See Docket No. 24-1, Ex. G at 71:25-72:20. 28 See Docket No. 24-1, Ex. A 5:15-17. 16 17 18 19 20 21 22 23 24 25 29 26 27 See Docket No. 21-2 at ¶ 11. Killian claims Richardson did not order Killian to roll down the window. Killian also claims he told Richardson that he did not drink, said he would obey the officers’ orders, but asked that they not touch him. Docket No. 24-1, Ex. G. at 73:8-74:15. 30 28 See Docket No. 24-1, Ex. E at 12:18-13:21. 4 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 why his car was parked where it was. 31 Killian responded that he was meeting a friend downtown 2 and was not sure when the meeting would occur. 32 Richardson did not identify any smells 3 suggesting Killian had consumed alcohol. 33 Richardson questioned Killian whether he had 4 consumed prescription medications. 34 Killian volunteered that he had undergone nine back 5 6 7 8 9 surgeries, suffered benign uncontrollable tremors, had prescriptions for numerous drugs including Hydromorpohone and Diazepam, and was not diabetic, hypoglycemic or taking insulin. 35 Killian’s body was shaking while he was talking to Richardson. 36 Richardson also observed that Killian’s pupils were constricted and Killian also had little or no reaction to the officer’s flashlight. 37 United States District Court For the Northern District of California 10 Richardson continued asking what medications Killian was currently taking. 38 Killian continued 11 shaking and Killian explained to Richardson that he suffered uncontrollable tremors. 39 Killian 12 admitted he had consumed Hydromorphone and Diazepam at 7:00 p.m. that evening. 40 Richardson 13 understood these medications could impair Killian’s driving ability. 41 Killian informed Richardson 14 that he does not normally drive after taking his medication. 42 15 16 31 See Docket No. 21-2 ¶ 12. 32 See id. 33 Docket No. 21-4, Ex. B at 35:16-18. 34 See id. at ¶ 13. 35 See Docket No. 21-2 at ¶ 19. 36 See id. 37 See id. at ¶ 20. 38 See id. 39 See id. 40 See Docket No. 21-2 at ¶ 13; Docket No. 21, Ex. P at 68:9-69:5. 41 See Docket No. 21-2 at ¶ 14. 42 See id. 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT Before administering the field sobriety tests, Richardson asked three pre-field sobriety test 1 2 questions. 43 Of those questions, Killian was not asked, and did not volunteer before being arrested, 3 that his medication interfered with his ability to drive. 44 Richardson instructed Killian to exit the 4 vehicle and explained that he would administer field sobriety tests to evaluate Killian’s 5 impairment. 45 Killian appeared confused by these instructions. 46 Killian, however, exited the 6 vehicle without assistance. 47 Killian’s red 4-wheel walker was visible from outside the car. 48 7 8 9 Upon exiting the vehicle, Killian appeared unsteady on his feet and Richardson guided Killian by the arm. 49 Olney recognized Killian from the earlier traffic stop and observed that he “was acting United States District Court For the Northern District of California 10 very differently, and seemed confused and unable to answer simple questions.” 50 Olney informed 11 Richardson about the earlier stop. 51 12 13 14 Richardson recalls walking with Killian twenty to thirty feet from the car to a “point where the brick sidewalk ended and the pavement was smooth.” 52 Killian remembers being walked down a hill a distance that seemed like 100 meters. 53 Killian did not inform either officer that he could 15 16 17 43 See Docket No. 21-2 at ¶ 18. 44 See Docket No. 24-1, Ex. B at 79:20-80:22. 45 See Docket No. 21-2 at ¶ 15. 46 See id. 47 See Docket No. 24-1, Ex. B at 41:5-6. 48 See id. at 9. 49 See Docket No. 21-2 at ¶ 16. 50 Docket No. 21-1 at ¶ 8. 51 See Docket No. 21-2 at ¶ 26. 52 Docket No. 21-2 at ¶ 15; Docket No. 22, Ex. P at 80:4-80-17. 53 Docket No. 22, Ex. P at 81:21-24. 18 19 20 21 22 23 24 25 26 27 28 6 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 2 not walk the distance requested, 54 however, Killian’s pain level increased significantly during the walk without his walker. 55 3 Killian was then asked to complete field sobriety tests. 56 Richardson told Killian that he 4 should let Richardson know if he did not feel he could complete field sobriety tests that required 5 physical movement and balance. 57 Killian tried performing the Rhomberg test – tilting his head 6 7 8 9 backward and holding the position – but Killian’s head returned to level. 58 He tried to stand on one-leg to demonstrate his balance, but stopped because of his back pain. 59 Killian declined additional physical tests. 60 While Richardson demonstrated some of the tests he wanted Killian to perform, Killian United States District Court For the Northern District of California 10 11 started mimicking Richardson despite instructions to wait until Richardson finished relaying his 12 instructions. 61 13 14 Richardson asked Killian to write the complete alphabet on an index card with a pen. 62 Killian complied with the instructions, but omitted letter “E” and repeated letters “G” and “H.” 63 15 16 Richardson also asked Killian to count backwards and aloud beginning at number 101. 64 Killian 17 54 See id. at 82:25-83:9. 55 See Docket No. 24-1, Ex. G at 82:8-20. 56 See id. at 81:19-82:20. 57 See Docket No. 21-2 at ¶ 21. 58 See id. 59 See id. 60 See id. 61 See id. at ¶ 22. 62 See id. at ¶ 24. 63 See id. 64 See id. at ¶ 25. 18 19 20 21 22 23 24 25 26 27 28 7 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 accurately counted from 101 to 80, but then skipped back to number 86 and counted down to 79 2 and skipped to 76 and jumped back to 78. 65 Killian recalls that he had to write “the alphabet for 3 the officer on the hood of the police vehicle, which required Killian to bend over, causing him pain. 4 The officer talked to him throughout the writing of the alphabet.” 66 Writing was a challenge 5 because Killian was tremorous. 67 Killian occasionally mixes up letters, in part, because of learning 6 difficulties he has coped with since college. 68 7 After the field sobriety tests, Richardson placed Killian under arrest for driving under the 8 9 influence. Richardson handcuffed Killian and placed Killian in the back of his patrol car. 69 Killian United States District Court For the Northern District of California 10 did not complain or express any pain when placed in the car, nor did he complain that he could not 11 sit comfortably in the car. 70 Richardson documented the location of Killian’s vehicle. 71 12 Richardson transported Killian to the Community Hospital of the Monterey Police 13 Department for a blood draw. 72 Killian then was taken to the Monterey Police Station for 14 pre-booking. 73 Officer Sarah McClain completed the pre-booking forms and assessed whether 15 16 Killian needed medical attention. 74 Killian never complained of pain and discomfort, nor did he 17 18 65 See id. 66 See Docket No. 24-1, Ex. G. at 86:18-87:6. 67 Docket No. 24-1, Ex. G at 87:7-20. 68 Id. at 94:21-95:13. 69 See Docket No. 21-2 at ¶ 29; Docket No. 21-1 at ¶¶ 14, 18. 70 See Docket No. 21-2 at ¶ 29; Docket No. 21-1 at ¶¶ 14, 18. 71 See Docket No. 24-1, Ex. B at 29:11-30:10. 72 See id. at ¶ 30. 73 See id. at ¶ 31. 74 See Docket No. 21-4 at ¶¶ 4, 5. 19 20 21 22 23 24 25 26 27 28 8 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 ask for medical assistance. 75 Killian was subsequently transported to the Monterey County Jail in 2 Salinas for booking. 76 At no time during the intake process did Killian complain of pain. 77 3 Although Killian’s medication was confiscated he does not recall who took it, when it was taken, 4 or if he objected. 78 Nor does Killian recall being taken to the hospital for blood draw or 5 transported to the jail, but he does remember being at the jail. 79 6 7 8 9 Richardson submitted Killian’s blood sample for evidence to be analyzed by the California Department of Justice forensic laboratory. 80 The sample tested positive for opiates and benzodiapines. 81 Hydropmorphone is an opiate and Diazepam is a benzodiapine. 82 Criminal United States District Court For the Northern District of California 10 charges were brought against Killian for driving under the influence. 83 Killian was found not 11 guilty. 84 12 Six months after the incident, Killian submitted a complaint to the Monterey Police 13 Department. 85 The Monterey Police Department conducted an internal affairs investigation of the 14 arrest. 86 Although Killian and Olney were interviewed soon thereafter, 87 Richardson’s interview 15 16 75 See id. at ¶ 6. 17 76 See Docket No. 21-2 at ¶ 32. 18 77 See id. 19 78 See Docket No. 22, Ex. P at 98:10-99:10. 20 79 Docket No. 24-1, Ex. G at 90:8-91:20, 97:14-16. 21 80 See Docket No. 21-2 at ¶ 33. 22 81 See id. 23 82 See Docket No. 21-1 ¶ 33; Docket No. 21-5 at ¶ 4. 24 83 See Docket No. 21-2, ¶ 34. 25 84 See id. 26 85 See Docket No. 21-3 at ¶ 8. 27 86 See id. at ¶ 12. 28 9 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 was delayed because he was deployed to Afghanistan. 88 When he returned, he was informed of the 2 complaint and interviewed. 89 In his capacity as Chief, Shelby reviewed the internal affairs 3 investigation and found no reason to substantiate misconduct by either Monterey police officer. 90 4 Based on the reports, Shelby found that the relevant Monterey Police Department directives and 5 policies had been followed. 91 6 Killian claims that as a proximate “result of Defendants’ conduct, Killian suffered severe 7 8 9 and extreme emotional distress, fear, terror, anxiety, humiliation, and loss of his sense of security, dignity, and pride as a United States citizen.” 92 II. LEGAL STANDARDS United States District Court For the Northern District of California 10 11 A. 12 13 14 Summary Judgment Pursuant to Fed. R. Civ. P. 56(a), the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 93 Material facts are those that may affect the outcome of the case. 94 15 16 17 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. 95 When the parties file cross-motions for summary 18 87 See Docket No. 21-1 at ¶ 19. 88 See Docket No. 21-2 at ¶ 35. 89 See id. at ¶ 36. 90 See Docket No. 21-3 at ¶ 12. 91 See Docket No. 21-3 at ¶¶ 12-13. 92 Docket No. 1 at ¶ 13. 93 Fed. R. Civ. P. 56(a). 19 20 21 22 23 24 25 94 26 27 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”). 95 28 See id. 10 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 judgment, the district court must consider all of the evidence submitted in support of both motions 2 to evaluate whether a genuine issue of material fact exists precluding summary judgment for either 3 party. 96 4 B. Qualified Immunity 5 6 7 8 9 Qualified immunity shields government officials from civil liability under Section 1983 where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 97 “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and United States District Court For the Northern District of California 10 the need to shield officials from harassment, distraction, and liability when they perform their 11 duties reasonably.” 98 12 13 14 A police officer is entitled to qualified immunity from a civil rights action unless, under the particularized circumstances he faced at the time of his actions, it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted. 99 The issue of 15 16 17 qualified immunity requires a determination of: (1) whether the facts show the officer’s conduct violated a constitutional right and (2) whether the right was clearly established. 100 The court may 18 19 20 21 96 See Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (the “court must review the evidence submitted in support” of each cross-motion). 97 22 23 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (government officials “performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person” would have known). 24 98 25 99 26 27 28 Pearson v. Callahan, 555 U.S. 223, 231 (2009). See Saucier v. Katz, 533 U.S. 194, 202 (2001) (“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”). 100 See Pearson, 555 U.S. at 232 (“Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.”). 11 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 evaluate the two prongs in any order. 101 It is the responsibility of the jury, not the judge, to 2 determine any disputed foundational or historical facts that underlie the determination of whether 3 an officer is entitled to qualified immunity. 102 4 5 6 7 8 9 In this case, Killian “bears the burden of proving that the rights” he “claims were ‘clearly established’ at the time of the alleged violation.” 103 The burden is on the government, however, to show that “a reasonable police officer could have believed, in light of the settled law, that he was not violating a constitutional or statutory right.” 104 C. “The Fourth Amendment requires police officers to have probable cause before making a 10 United States District Court For the Northern District of California Unreasonable Search and Seizure 11 warrantless arrest.” 105 “Probable cause to arrest exists when officers have knowledge or 12 reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that 13 an offense has been or is being committed by the person being arrested.” 106 “While conclusive 14 15 16 17 18 19 20 21 22 23 24 101 See id. at 236 (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). 102 See Acosta v. City & Cnty. of San Francisco, 83 F.3d 1143, 1147 (9th Cir. 1996) (“Regardless of who makes the ultimate determination as to qualified immunity, the jury, not the judge, must decide the disputed ‘foundational’ or ‘historical’ facts that underlie the determination.”); see also Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995) (“The threshold determination of whether the law is clearly established is a question of law for the court. The second part of the test, whether a reasonable state official could have believed the action taken was lawful, is a mixed question of law and fact. It involves an objective test of whether a reasonable official could have believed that his conduct was lawful in light of what he knew and the action he took. If there are genuine issues of material fact in issue relating to the historical facts of what the official knew or what he did, it is clear that these are questions of fact for the jury to determine.”) (citations omitted). 103 Moran v. Washington, 147 F.3d 839, 844 (9th Cir. 1998) (citing Davis v. Scherer, 468 U.S. 183, 197 (1984)). 104 25 Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994). 105 26 Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009) (citing Michigan v. Summers, 452 U.S. 692, 700 (1981)). 27 106 28 United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). 12 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 evidence of guilt is not necessary to establish probable cause, mere suspicion, common rumor, or 2 even strong reason to suspect are not enough.” 107 3 D. Excessive Force 4 “Claims for excessive force are analyzed under the Fourth Amendment’s prohibition 5 against unreasonable seizures using the framework articulated in Graham v. Connor, 490 U.S. 386 6 (1989).” 108 “The reasonableness of a seizure turns on whether officers’ actions are objectively 7 8 9 reasonable in light of the facts and circumstances confronting them,” which the court must “determine by balancing the nature and quality of the intrusion on the individual’s Fourth United States District Court For the Northern District of California 10 Amendment interests against the countervailing governmental interests at stake.” 109 First, the court 11 must “assess the gravity of the particular intrusion on Fourth Amendment interests.” 110 Next, the 12 court assesses “the importance of the government interests at stake.” 111 Finally, the court balances 13 14 “the gravity of the intrusion on the individual against the government’s need for that intrusion to determine whether it was constitutionally reasonable.” 112 If the court determines that, “taking the 15 16 facts in the light most favorable” to Killian, Defendants’ “conduct amounts to a violation of a 17 constitutional right, we then determine whether the defendant is entitled to qualified immunity by 18 assessing whether ‘the right at issue was clearly established at the time of defendant's alleged 19 misconduct.’” 113 20 21 107 Ramirez, 560 F.3d at 1023 (internal quotations and citations omitted). 22 108 Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011). 23 109 Id. (citing Graham, 490 U.S. at 396-97) (internal quotations and citations omitted). 24 110 Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003). 25 111 Id. 26 112 Id. 27 113 28 Young, 655 F.3d at 1161 (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks omitted)). 13 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 E. Right to Life, Liberty, and Property 2 The Fourteenth Amendment provides that no person shall be deprived “of life, liberty, or 3 property, without due process of law.” The Supreme Court has recognized “that deprivations of 4 liberty caused by ‘the most egregious official conduct’ may violate the Due Process Clause.” 114 5 6 The Supreme Court has “left open the possibility that unauthorized police behavior” might “‘shock the conscience’ and give rise to § 1983 liability.” 115 Official conduct “most likely to rise to the 7 8 9 United States District Court For the Northern District of California 10 conscience-shocking level” is “conduct intended to injure in some way unjustifiable by any government interest.” 116 F. 11 Equal Protection “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 12 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 13 direction that all persons similarly situated should be treated alike.” 117 Thus, in order to establish 14 an equal protection claim, Killian must first show that Defendants did not treat him in the same 15 16 17 manner as other similarly situated individual(s). G. Malicious Prosecution “In California, the elements of a malicious prosecution claim are that the prosecution: (1) 18 19 was initiated by or at the direction of the defendant and was pursued to a legal termination in 20 plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice.” 118 To 21 22 23 114 Chavez v. Martinez, 538 U.S. 760, 774 (2003) (quoting Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal citations omitted). 115 Id. (quoting Sacramento, 523 U.S. at 850). 116 Sacramento, 523 U.S. at 834. 24 25 117 26 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). 27 118 28 Pagtakhan v. Doe, Case No.: 3:08-cv-2188-SI-PR, 2013 WL 6139639, at *10 (N.D. Cal. Nov. 21, 2013) (citing Conrad v. United States, 447 F.3d 760, 767 (9th Cir.2006)); 14 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 allege a Section 1983 claim based on an allegedly malicious prosecution, “the plaintiff must further 2 allege that they defendants prosecuted him with malice and without probable cause for the purpose 3 of denying him equal protection or another specific constitutional right.” 119 4 H. 5 6 Monell Claims A jurisdiction’s “unlawful policies can result in § 1983 liability if the policies caused a violation of a constitutional right.” 120 “To prevail on a Monell claim, a plaintiff must establish that: 7 8 9 (1) Plaintiff possessed a constitutional right of which he was deprived; (2) the municipality had a policy; (3) the policy amounts to deliberate indifference to Plaintiff’s constitutional right; and (4) United States District Court For the Northern District of California 10 the policy is the moving force behind the constitutional violation.” 121 11 I. 12 13 14 ADA Claim Killian’s ADA claim requires a showing: “1) that he is a qualified individual with disability; 2) he was either excluded from participation in or denied the benefits of the public entity’s services, programs or activities, or was otherwise discriminated against by the public 15 16 entity; and 3) such exclusion, denial of benefits, or discrimination was by reason of plaintiff’s 17 18 19 20 21 see also Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 501 (Cal. 1989) (to “establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice”). 119 22 23 24 25 26 27 28 Id. (citing Awabdy v. City of Adelanto, 368 F.3d 1062, 1066-68 (9th Cir.2004); see also Freeman, 68 F.3d at 1189; Usher, 828 F.2d at 561–62. In general, malicious prosecution is not a federal constitutional tort if process is available within the state judicial system to remedy such wrongs, although a due process claim may be stated when a prosecution is conducted with malice and without probable cause, and with the intent to deprive a person of equal protection of the laws or another specific constitutional right. 120 Mann v. Cnty. of San Diego, Case No: 3:11-cv-0708-GPC-BGS, 2013 WL 4046642, at *19 (S.D. Cal. Aug. 8, 2013) (citing Monell v. New York City Dept. Soc. Serv., 436 U.S. 658, 694, (1978)). 121 Id. (citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 836 (9th Cir. 1996)). 15 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 disability.” 122 III. ANALYSIS 2 3 A. Fourth Amendment Claims Against Officers Olney and Richardson 4 1. 5 Defendants argue that Richardson and Olney did not violate Killian’s Fourth Amendment 6 Freedom From Unreasonable Search and Seizure right to be free from unreasonable search and seizure because they had probable cause to arrest 7 8 9 Killian for driving under the influence. Defendants claim they did not need to see Killian driving to establish probable cause, because Killian was observed asleep in his vehicle, blocking traffic, United States District Court For the Northern District of California 10 and after being awoken, appeared to be intoxicated. At approximately 1:00 a.m., Olney initially 11 observed Killian at a traffic stop while driving his vehicle. An hour later, Richardson observed 12 Killian sitting in the driver’s seat of a car stopped in the roadway with his eyes closed. 123 The 13 14 vehicle was stopped next to a red painted curb, obstructing the pedestrian crosswalk and turning lane. 124 When Richardson tapped on his car window, Killian was initially not responsive and then 15 16 disoriented. Killian’s behavior materially changed over the course of an hour – consistent with 17 recent intoxication. Killian later performed poorly on field sobriety tests. In sum, Defendants 18 conclude, a reasonable jury could only find the officers had probable cause to arrest Killian. 19 Killian responds that Defendants did not have probable cause to arrest him because there is 20 no evidence that he actually drove under the influence. Even though Olney had seen Killian 21 driving an hour before the arrest, he was not impaired or intoxicated at that time. 125 Killian argues 22 that “any intoxication occurred after Killian stopped driving” and there is no record “evidence to 23 24 122 Weinreich v. L.A. County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). 25 123 Docket No. 21-2 at ¶ 10. 26 124 27 See Docket No. 22, Exs. B-E (photographs from February 4, 2013, demonstrating the car was parked across the entire crosswalk). 125 28 Docket No. 23 at 16. 16 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 the contrary.” 126 The officers did not see Killian actually block traffic even if he was parked in the 2 turning lane and crosswalk. A reasonable jury could only find the officers made an unfounded 3 leap, Killian concludes, based on Killian’s admission that he took his medication and was 4 tremorous, that he had been driving under the influence. 5 6 The court agrees with Defendants that a reasonable jury could only find that the officers had probable cause. There is no dispute that Olney had seen Killian driving an hour before at a 7 8 9 different location at a time when his behavior was markedly different. There is no dispute that his car was later at a different location and Killian was located in the driver’s seat, providing more than United States District Court For the Northern District of California 10 sufficient circumstantial evidence that that Killian had driven the car. There is no dispute that at 11 that location the car obstructed both pedestrian and vehicular traffic. There also is no dispute that 12 Killian consumed opiate and benzodiapine medication, that Killian performed poorly on sobriety 13 tests, that the hour was late, and that Killian’s car was illegally parked across an entire crosswalk at 14 a four-way intersection with several stop lights. In sum, Defendants had actual knowledge 15 16 sufficient to lead a person of reasonable caution to believe that Killian drove under the influence. 17 Because a reasonable jury could review this record and only find that the Defendant officers had 18 probable cause to arrest Killian, Defendants are entitled to summary judgment on Killian’s 19 unreasonable search and seizure claim. 20 21 Even if probable cause were a triable issue, Killian has not marshaled any case law establishing that the officers’ conduct here was unlawful given the situation they confronted. 22 Although the law is clearly established that probable cause is required for an arrest, the application 23 24 25 of the requirement of probable cause to qualified immunity requires unlawful officer conduct to “be clearly established in a particularized context.” 127 “Thus, whether a right is clearly established 26 126 27 127 28 Id. Conner v. Heiman, 672 F.3d 1126, 1132 (9th Cir. 2012) (citing Saucier, 533 U.S. at 202). 17 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 turns on ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the 2 situation he confronted.’” 128 “An officer is entitled to immunity where a reasonable officer would 3 believe that probable cause existed, even if that determination was a mistake.” 129 “The fact that 4 reasonable people could draw different conclusions” based on a plaintiff’s “behavior, however, is 5 irrelevant to the probable cause analysis.” 130 The only question for the court’s consideration is 6 whether the arresting officers could have reasonably concluded that probable cause existed in 7 8 9 support of the arrest, and the possibility that the “opposite conclusion was also reasonable, or even more reasonable,” is irrelevant to the qualified immunity analysis. 131 In the absence of any case United States District Court For the Northern District of California 10 law establishing that what Richardson and Olney confronted was insufficient to establish probable 11 cause, Defendants also are entitled to qualified immunity on the issue. 12 2. 13 Freedom From Excessive Force The question of whether the officers’ actions violated Killian’s right to be free from 14 excessive force turns on whether the officers’ actions were objectively reasonable in light of the 15 16 facts and circumstances confronting them. The court balances (1) the gravity of the particular 17 intrusion on Fourth Amendment interests, (2) the importance of the government interests at stake, 18 and (3) the government’s need for that intrusion. 132 19 20 Defendants argue that no excessive force was used in this case. Killian’s claim that Richardson’s tapping on the window with a flashlight, making Killian walk to a flat surface to 21 128 22 Id. (quoting Saucier, 533 U.S. at 202). 129 23 Acosta v. City of Costa Mesa, 718 F.3d 800, 826 (9th Cir. 2013) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987); Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.1981)). 24 130 25 Conner, 672 F.3d at 1132 (citing Hunter v. Bryant, 502 U.S. 224, 228 (1991) (the “court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed”). 26 131 27 132 28 Id. Young, 655 F.3d at 1161 (citing Graham, 490 U.S. at 396-97) (internal quotations and citations omitted). 18 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 perform sobriety tests without his walker, and requiring Killian to sit in the back of a police car are 2 do not amount to excessive force. Killian’s opposition to Defendants’ summary judgment motion 3 does not facially dispute the absence of excessive force. 4 5 6 The court agrees with Defendants that, in light of the substantial government interest in reducing driving under the influence violations, no excessive force was used by the officers in this case. First, Richardson’s use of a flashlight to tap on the window was necessary to wake Killian. 7 8 9 Second, although Killian’s walker may have been visible in the back of the vehicle, Killian did not alert the officers that he was in pain or that he needed the walker as he walked away from the United States District Court For the Northern District of California 10 vehicle. With respect to the officers placing Killian in the back of a police car, Killian was initially 11 observed sitting in his own vehicle and did not complain when he was placed in the police car. 12 13 No reasonable jury could find excessive force under these circumstances. Even if that were not the case, Killian cites no case law clearly establishing these acts as a violation of his 14 constitutional rights. Defendants are thus entitled to qualified immunity. 15 16 B. Fourteenth Amendment Claims Against Officers Olney and Richardson 17 1. Freedom From Deprivation of Life or Liberty Without Due Process 18 Defendants argue that Killian was not denied life or liberty without due process of law 19 because probable cause existed to detain and arrest Killian. Killian does not facially oppose 20 Defendants’ arguments. Because a reasonable jury could only find the officers had probable cause 21 to arrest Killian and used no more than reasonable force to make the arrest, that same jury could 22 also only find that the officers’ actions do not shock the conscience or constitute the most 23 24 egregious official conduct. Even if that were not the case, Killian cites no case law clearly 25 establishing these acts as a violation of his constitutional rights. Defendants are thus entitled to 26 qualified immunity on this claim. Thus, summary judgment in favor of Defendants on Plaintiffs’ 27 due process claim is warranted. 28 19 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 2. 1 Malicious Prosecution 2 Defendants argue that Killian’s malicious prosecution claim lacks merit because Officers 3 Richardson and Olney had probable cause to arrest Killian. 133 There is no evidence that they had 4 malicious motivation or that the police officers improperly exerted pressure on the prosecutor to 5 6 initiate legal proceedings. Defendants claim that Killian’s blood test came back positive for drugs which could affect his ability to operate his vehicle, he admitted to taking such drugs, and he 7 8 9 appeared to be under the influence. It was therefore not malicious that the Monterey County District Attorney’s Office filed a criminal complaint against Killian in his independent judgment. United States District Court For the Northern District of California 10 Killian responds by citing Smiddy for the proposition that “police officers can be liable” if 11 they acted “maliciously or with reckless disregard” for Killian’s rights or if they filed false reports 12 with the prosecutor, omited material information from their reports, or otherwise obstructed the 13 prosecutor from exercising her independent judgment. 134 Killian claims that defendants are liable 14 here because the officers “excluded evidence in the police report of Killian’s unimpaired driving” 15 16 and failed to note Killian’s disability. 135 Although the police report does not detail Killian’s disability or describe the earlier traffic 17 18 stop, Killian has not produced evidence suggesting the police knowingly led the prosecutor astray, 19 concealed exculpatory evidence, or engaged in otherwise deceptive conduct. Just because the 20 prosecutor brought criminal charges and Killian was acquitted does not mean that those charges 21 were maliciously leveled. Moreover, the court has already held that a reasonable jury could only 22 find that the officers’ had probable cause to arrest Killian. Even if this were not the case, Killian 23 24 cites no case law clearly establishing Olney and Richardson’s actions violated his constitutional 25 133 See Docket No. 21 at 23. 134 Smiddy, 665 F.2d at 267. 135 Docket No. 23 at 15. 26 27 28 20 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 2 rights. Thus, Defendants are entitled to qualified on immunity on this claim. Summary judgment on Killian’s malicious prosecution is warranted. 3 3. 4 Although Defendants’ motion requests summary judgment as to all causes-of-actions, 5 6 Equal Protection Defendants do not substantively address equal protection as it relates to the Defendant officers. Defendants’ request for summary judgment on the equal protection claim within Plaintiffs’ first 7 8 9 cause-of-action directed as to Richardson and Olney is DENIED. C. Defendants argue that the Monell claim here falls short because there has been no faulty or 10 United States District Court For the Northern District of California Monell Claims Against Chief Shelby and the City of Monterey 11 inadequate training or supervision. Defendants assert that Killian has not produced any evidence 12 that the city acted with deliberate indifference to known and obvious consequences leading officers 13 to unlawfully arrest a person for driving under the influence. In this case, following receipt of 14 Killian’s complaint on August 1, 2011, the Monterey Police Department conducted a thorough 15 16 investigation to ensure that Killian’s rights were not violated. Killian and responsible officers were 17 interviewed, the police report was reviewed, and the Monterey County Jail intake and medical 18 screening procedures examined. Following this investigation, Shelby concluded that no rules, 19 regulations or policies were violated when Killian was arrested. Defendants also argue that there is 20 no evidence of “any history of violations of equal protection caused by the failure to train or 21 supervise in the Monterey Police Department.” 136 22 Killian counters that both the city and Shelby are liable because Shelby ratified Defendants 23 24 Richardson’s and Olney’s illegal conduct after Defendants’ employed the city’s standing policy. 25 Killian claims that additional investigation into the events in question would reveal that there was 26 no evidence Killian had been driving and thus, the officers had no basis to arrest Killian. Shelby’s 27 136 28 Docket No. 21 at 29. 21 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT 1 2 conclusion that no policy was violated only establishes that Defendant City’s policies allow arrests to be made without probable cause that a crime was committed. The court disagrees with Killian’s generalizations because, as discussed above, a reasonable 3 4 jury could only find Defendants had probable cause to arrest Killian. In addition, that same jury 5 could only find that Shelby and the City conducted a thorough investigation – replete with record 6 reports and interviews of both the officers and Killian – and concluded that no rules, regulations, or 7 8 9 policies were violated. Thus, summary judgment is warranted on Killian’s Monell claim. D. ADA Claims Against All Defendants Defendants argue that Killian cannot establish that the officers wrongfully arrested Killian United States District Court For the Northern District of California 10 11 because their observations of Killian’s conduct unrelated to his disability were sufficient to 12 establish probable cause to arrest Killian. The officers reasonably concluded that Killian was the 13 driver of the stopped vehicle because he was seated in the driver’s seat. 137 Defendants also 14 reasonably concluded that Killian drove while impaired from ingesting his medications because he 15 16 was asleep in his vehicle, initially unresponsive, and obstructing the turning lane and crosswalk. 138 17 Killian admitted consuming two medications that impair driving ability. Killian performed poorly 18 on the field sobriety tests that only required him to either count or write and were unrelated to his 19 back injury. The officers reasonably believed Killian could be transported in their squad car 20 because Killian was found sitting in his own vehicle and Killian did not alert the officers of any 21 22 discomfort. At bottom, Defendants conclude “Killian was not arrested because of a disability and was not transported to a hospital and the jail because of a disability.” 139 23 24 25 137 Docket No. 21 at 31. 138 Id. 139 Docket No. 21 at 32. 26 27 28 22 Case No.: 5:12-cv-05418-PSG ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT

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