Killian v. City of Monterey et al
Filing
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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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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J. ROBERT KILLIAN,
Killian,
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v.
CITY OF MONTEREY, et al.
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Defendants.
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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
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Killian of all charges. In this action Killian brings claims pursuant 42 U.S.C. §§1983 and 12132
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for violation of his constitutional rights and statutory rights under the Americans with Disabilities
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Act by Defendants City of Monterey, Tim Shelby, Kris Richardson, and John Olney. 1 Killian
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claims Defendants acted under color of law to deprive him of (1) the right to be free from
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unreasonable search and seizure, (2) the right not to be deprived of life or liberty without due
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process of law, (3) the right to be free from the use of excessive force by police officers, (4) the
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See Docket No. 1 at ¶¶ 18-33.
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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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right to equal protection, and (5) the right to be free from malicious prosecution. 2 Killian brings
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parallel Monell claims that the City and Shelby condoned or tacitly encouraged the abuse of police
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authority and disregard for citizens’ constitutional rights. 3 Killian also claims discrimination based
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on his disabled status. 4 Before the court are the parties’ cross-motions for summary judgment on
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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
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summary judgment on all claims.
I. BACKGROUND
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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
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several friends to accompany him to the Osio Theatre. 5
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Killian claims that at around 7:15 pm after feeling pain in his arm he pulled his car over to
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the side of the road and ingested pain medication. 6 Killian was not aware that his car was parked
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in a red zone. 7 He removed the keys from the ignition and placed them in his pocket. 8 Killian
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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
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A few hours later, at 1:03 a.m., Olney conducted a traffic stop of a Honda CRV driven by
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Killian at the intersection of Pacific and Scott Streets in Monterey, because the driver “seemed to
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See id. at ¶¶ 18-20.
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See id. at ¶¶ 21-28.
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See id. at ¶¶ 29-32.
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See Docket No. 21-1 at ¶ 5.
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See Docket No. 24-1, Ex. G at 61:12-63:11, 64:14-22
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See id. at 75:25-76:8.
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See id. at 70:9-17.
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See id. at 64:1-66:2.
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ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT
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be driving slowly and looking at the sidewalks.” 10 Olney then observed that Killian did not show
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any sign of intoxication or impairment. 11 Thereafter, Olney escorted Killian to the Osio Theatre
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one-quarter of a mile away. 12 Killian “does not recall ever speaking with Olney or mentioning the
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Osio Theatre to any officer.” 13
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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
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For the Northern District of California
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blocks away, and transmitted on the radio that he was responding. 16 At approximately 2:00 a.m.,
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Olney heard Richardson’s radio transmission. 17
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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
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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.
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See Docket No. 21-1 at ¶ 5.
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See id.
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Docket No. 22, Ex. P at 63:12-15, 65:7-18.
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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.
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See Docket No. 24-1, Ex. B at 21:2-22:25.
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See Docket No. 21-2 at ¶ 6.
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See Docket No. 21-1 at ¶ 6.
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See Docket No. 21-1 at ¶ 6; Docket No. 21-2 at ¶ 6.
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ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT
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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
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Killian sitting with his eyes closed in the driver’s seat of the Honda CRV. 22 The vehicle’s engine
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was off. 23 Richardson knocked on the vehicle’s window several times but Killian did not
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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
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For the Northern District of California
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was meditating in his vehicle when Richardson awoke him with three slams on his car window. 27
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Killian concedes he had some difficulty locating the buttons to roll down his window. 28
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Richardson spoke briefly to Killian through the window. 29 Killian never provided
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information about when he had stopped his vehicle at the intersection. 30 The officer asked Killian
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See id.
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See id.
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See id.
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See id. at ¶ 10.
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See id.
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See id. at ¶ 11.
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See id.
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Id.
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See Docket No. 24-1, Ex. G at 71:25-72:20.
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See Docket No. 24-1, Ex. A 5:15-17.
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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.
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See Docket No. 24-1, Ex. E at 12:18-13:21.
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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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why his car was parked where it was. 31 Killian responded that he was meeting a friend downtown
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and was not sure when the meeting would occur. 32 Richardson did not identify any smells
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suggesting Killian had consumed alcohol. 33 Richardson questioned Killian whether he had
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consumed prescription medications. 34 Killian volunteered that he had undergone nine back
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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
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For the Northern District of California
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Richardson continued asking what medications Killian was currently taking. 38 Killian continued
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shaking and Killian explained to Richardson that he suffered uncontrollable tremors. 39 Killian
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admitted he had consumed Hydromorphone and Diazepam at 7:00 p.m. that evening. 40 Richardson
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understood these medications could impair Killian’s driving ability. 41 Killian informed Richardson
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that he does not normally drive after taking his medication. 42
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See Docket No. 21-2 ¶ 12.
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See id.
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Docket No. 21-4, Ex. B at 35:16-18.
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See id. at ¶ 13.
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See Docket No. 21-2 at ¶ 19.
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See id.
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See id. at ¶ 20.
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See id.
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See id.
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See Docket No. 21-2 at ¶ 13; Docket No. 21, Ex. P at 68:9-69:5.
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See Docket No. 21-2 at ¶ 14.
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See id.
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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
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questions. 43 Of those questions, Killian was not asked, and did not volunteer before being arrested,
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that his medication interfered with his ability to drive. 44 Richardson instructed Killian to exit the
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vehicle and explained that he would administer field sobriety tests to evaluate Killian’s
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impairment. 45 Killian appeared confused by these instructions. 46 Killian, however, exited the
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vehicle without assistance. 47 Killian’s red 4-wheel walker was visible from outside the car. 48
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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
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For the Northern District of California
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very differently, and seemed confused and unable to answer simple questions.” 50 Olney informed
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Richardson about the earlier stop. 51
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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
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See Docket No. 21-2 at ¶ 18.
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See Docket No. 24-1, Ex. B at 79:20-80:22.
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See Docket No. 21-2 at ¶ 15.
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See id.
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See Docket No. 24-1, Ex. B at 41:5-6.
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See id. at 9.
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See Docket No. 21-2 at ¶ 16.
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Docket No. 21-1 at ¶ 8.
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See Docket No. 21-2 at ¶ 26.
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Docket No. 21-2 at ¶ 15; Docket No. 22, Ex. P at 80:4-80-17.
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Docket No. 22, Ex. P at 81:21-24.
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ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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not walk the distance requested, 54 however, Killian’s pain level increased significantly during the
walk without his walker. 55
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Killian was then asked to complete field sobriety tests. 56 Richardson told Killian that he
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should let Richardson know if he did not feel he could complete field sobriety tests that required
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physical movement and balance. 57 Killian tried performing the Rhomberg test – tilting his head
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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
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For the Northern District of California
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started mimicking Richardson despite instructions to wait until Richardson finished relaying his
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instructions. 61
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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
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Richardson also asked Killian to count backwards and aloud beginning at number 101. 64 Killian
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See id. at 82:25-83:9.
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See Docket No. 24-1, Ex. G at 82:8-20.
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See id. at 81:19-82:20.
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See Docket No. 21-2 at ¶ 21.
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See id.
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See id.
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See id.
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See id. at ¶ 22.
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See id. at ¶ 24.
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See id.
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See id. at ¶ 25.
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accurately counted from 101 to 80, but then skipped back to number 86 and counted down to 79
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and skipped to 76 and jumped back to 78. 65 Killian recalls that he had to write “the alphabet for
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the officer on the hood of the police vehicle, which required Killian to bend over, causing him pain.
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The officer talked to him throughout the writing of the alphabet.” 66 Writing was a challenge
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because Killian was tremorous. 67 Killian occasionally mixes up letters, in part, because of learning
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difficulties he has coped with since college. 68
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After the field sobriety tests, Richardson placed Killian under arrest for driving under the
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influence. Richardson handcuffed Killian and placed Killian in the back of his patrol car. 69 Killian
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For the Northern District of California
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did not complain or express any pain when placed in the car, nor did he complain that he could not
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sit comfortably in the car. 70 Richardson documented the location of Killian’s vehicle. 71
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Richardson transported Killian to the Community Hospital of the Monterey Police
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Department for a blood draw. 72 Killian then was taken to the Monterey Police Station for
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pre-booking. 73 Officer Sarah McClain completed the pre-booking forms and assessed whether
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Killian needed medical attention. 74 Killian never complained of pain and discomfort, nor did he
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See id.
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See Docket No. 24-1, Ex. G. at 86:18-87:6.
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Docket No. 24-1, Ex. G at 87:7-20.
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Id. at 94:21-95:13.
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See Docket No. 21-2 at ¶ 29; Docket No. 21-1 at ¶¶ 14, 18.
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See Docket No. 21-2 at ¶ 29; Docket No. 21-1 at ¶¶ 14, 18.
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See Docket No. 24-1, Ex. B at 29:11-30:10.
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See id. at ¶ 30.
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See id. at ¶ 31.
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See Docket No. 21-4 at ¶¶ 4, 5.
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ask for medical assistance. 75 Killian was subsequently transported to the Monterey County Jail in
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Salinas for booking. 76 At no time during the intake process did Killian complain of pain. 77
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Although Killian’s medication was confiscated he does not recall who took it, when it was taken,
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or if he objected. 78 Nor does Killian recall being taken to the hospital for blood draw or
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transported to the jail, but he does remember being at the jail. 79
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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
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For the Northern District of California
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charges were brought against Killian for driving under the influence. 83 Killian was found not
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guilty. 84
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Six months after the incident, Killian submitted a complaint to the Monterey Police
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Department. 85 The Monterey Police Department conducted an internal affairs investigation of the
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arrest. 86 Although Killian and Olney were interviewed soon thereafter, 87 Richardson’s interview
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See id. at ¶ 6.
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See Docket No. 21-2 at ¶ 32.
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See id.
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See Docket No. 22, Ex. P at 98:10-99:10.
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Docket No. 24-1, Ex. G at 90:8-91:20, 97:14-16.
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See Docket No. 21-2 at ¶ 33.
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See id.
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See Docket No. 21-1 ¶ 33; Docket No. 21-5 at ¶ 4.
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See Docket No. 21-2, ¶ 34.
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See id.
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See Docket No. 21-3 at ¶ 8.
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86
See id. at ¶ 12.
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ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT
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was delayed because he was deployed to Afghanistan. 88 When he returned, he was informed of the
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complaint and interviewed. 89 In his capacity as Chief, Shelby reviewed the internal affairs
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investigation and found no reason to substantiate misconduct by either Monterey police officer. 90
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Based on the reports, Shelby found that the relevant Monterey Police Department directives and
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policies had been followed. 91
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Killian claims that as a proximate “result of Defendants’ conduct, Killian suffered severe
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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
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A.
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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
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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
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See Docket No. 21-1 at ¶ 19.
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See Docket No. 21-2 at ¶ 35.
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See id. at ¶ 36.
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See Docket No. 21-3 at ¶ 12.
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See Docket No. 21-3 at ¶¶ 12-13.
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Docket No. 1 at ¶ 13.
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Fed. R. Civ. P. 56(a).
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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.”).
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See id.
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ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT
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judgment, the district court must consider all of the evidence submitted in support of both motions
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to evaluate whether a genuine issue of material fact exists precluding summary judgment for either
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party. 96
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B.
Qualified Immunity
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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
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For the Northern District of California
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the need to shield officials from harassment, distraction, and liability when they perform their
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duties reasonably.” 98
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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
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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
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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).
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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).
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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.”).
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See Pearson, 555 U.S. at 232 (“Qualified immunity is applicable unless the official’s conduct
violated a clearly established constitutional right.”).
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evaluate the two prongs in any order. 101 It is the responsibility of the jury, not the judge, to
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determine any disputed foundational or historical facts that underlie the determination of whether
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an officer is entitled to qualified immunity. 102
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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
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United States District Court
For the Northern District of California
Unreasonable Search and Seizure
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warrantless arrest.” 105 “Probable cause to arrest exists when officers have knowledge or
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reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that
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an offense has been or is being committed by the person being arrested.” 106 “While conclusive
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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).
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Moran v. Washington, 147 F.3d 839, 844 (9th Cir. 1998) (citing Davis v. Scherer, 468 U.S. 183,
197 (1984)).
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Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994).
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Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009) (citing Michigan v.
Summers, 452 U.S. 692, 700 (1981)).
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106
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United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (citing Beck v. Ohio,
379 U.S. 89, 91 (1964)).
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ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND DENYING KILLIAN’S CROSS-MOTION FOR SUMMARY JUDGEMENT
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evidence of guilt is not necessary to establish probable cause, mere suspicion, common rumor, or
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even strong reason to suspect are not enough.” 107
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D.
Excessive Force
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“Claims for excessive force are analyzed under the Fourth Amendment’s prohibition
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against unreasonable seizures using the framework articulated in Graham v. Connor, 490 U.S. 386
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(1989).” 108 “The reasonableness of a seizure turns on whether officers’ actions are objectively
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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
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For the Northern District of California
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Amendment interests against the countervailing governmental interests at stake.” 109 First, the court
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must “assess the gravity of the particular intrusion on Fourth Amendment interests.” 110 Next, the
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court assesses “the importance of the government interests at stake.” 111 Finally, the court balances
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“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
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facts in the light most favorable” to Killian, Defendants’ “conduct amounts to a violation of a
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constitutional right, we then determine whether the defendant is entitled to qualified immunity by
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assessing whether ‘the right at issue was clearly established at the time of defendant's alleged
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misconduct.’” 113
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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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