Felicia Nichols v. City of San Jose et al

Filing 54

ORDER GRANTING IN PART AND DENYING IN PART 44 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 4/19/2017. (blflc2S, COURT STAFF) (Filed on 4/19/2017)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 FELICIA NICHOLS, Case No. 14-cv-03383-BLF Plaintiff, 6 v. 7 8 CITY OF SAN JOSE, et al., Defendants. 9 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Re: ECF 44] 10 Plaintiff Felicia Nichols brings this action following an encounter with San Jose Police United States District Court Northern District of California 11 12 officers in November 2012. Nichols brings suit under 42 U.S.C. § 1983 against the City of San 13 Jose (the “City”) and the individual police officers involved in the incident: Christopher Schipke 14 and Officer Ferguson (collectively, “Officer Defendants”) (collectively with the City, 15 “Defendants”). The City and Officers Schipke and Ferguson seek summary judgment on all 16 claims. See generally Mot., ECF 44. The Court has considered the briefing, the admissible 17 evidence, and the argument presented at the hearing on March 23, 2017. For the reasons discussed 18 below, Defendants’ motion is GRANTED IN PART and DENIED IN PART. 19 I. FACTS1 On November 8, 2012, Nichols and her then-boyfriend David Cabrera were sitting in his 20 21 car, which was parked across the street from and in front of Cabrera’s mother’s house, where 22 Cabrera lived at the time. Nichols Decl. ISO Opp’n (“Nichols Decl.”) ¶ 5, ECF 45-3; Cabrera 23 Decl. ISO Opp’n (“Cabrera Decl.”) ¶ 5, ECF 45-1. The two were discussing Nichols’ molest at 24 age 12, and Nichols was “very emotional.” Nichols Decl. ¶¶ 2, 5. Nichols was in the passenger 25 seat and Cabrera was in the driver’s seat. Id. ¶ 5; Cabrera Decl. ¶ 4. Cabrera had parked his car 26 close to the truck behind it. Cabrera Decl. ¶ 5; Ex. 1 to Clouse Decl. ISO Mot. (“Schipke Dep.”) 27 1 28 The facts set forth in this section are merely a summary of the facts and do not represent all facts, disputed or otherwise. Additionally, the facts are undisputed unless otherwise noted. 1 58:19–20, ECF 44-1. 2 Officers Schipke and Ferguson drove by Nichols and Cabrera sitting in their car at around 3 9:10 or 9:15 p.m.,2 turned around at the end of the cul de sac, and parked next to the truck behind 4 Cabrera’s car. Nichols Decl. ¶¶ 5–6. Officer Schipke testified that they were in the area because 5 Officer Ferguson had information regarding gang and narcotic activity there. Schipke Dep. 6 66:10–12. Officer Schipke also testified that he thought it was suspicious that the vehicle was 7 “backed up” in a way that he could not see the back license plate and because there were two 8 people in the car “perhaps evading police contact,” so he and Officer Ferguson approached the 9 vehicle. Id. 74:10–13, 77:6–15, 82:13–17. The Officer Defendants approached the driver’s side of the vehicle first. Nichols Decl. ¶ 6. 10 United States District Court Northern District of California 11 Officer Ferguson asked Cabrera for his ID and asked him why he was in the area. Id. The parties 12 dispute Cabrera’s reaction. Nichols testified that Cabrera complied with Officer Ferguson’s 13 request, but Officer Schipke testified that Cabrera “was immediately confrontational.” Id.; 14 Schipke Dep. 83:13–18. At this point, Nichols asked to speak to the Officer Defendants’ watch 15 commander or someone who was their boss. Nichols Decl. ¶ 7; Ex. 4 to Clouse Decl. ISO Mot. 16 (“Nichols Dep.”) 110:2–12, ECF 44-1. Nichols then picked up her phone from under the 17 emergency brake and began texting. Nichols Decl. ¶ 8. When Nichols began texting, Officer Schipke walked around to the passenger side of the 18 19 vehicle and asked for her ID. Id. ¶ 9; Schipke Dep. 88:3–5. Despite being told to get off the 20 phone, Nichols continued texting. Nichols Decl. ¶ 9; Nichols Dep. 51:15–24, 52:8–11. Officer 21 Schipke asked Nichols to give him the phone, which Nichols did not do. Nichols Decl. ¶ 9. 22 Officer Schipke then demanded that Nichols get out of the car. Nichols Decl. ¶ 9; Nichols Dep. 23 52:18; Schipke Dep. 97:13–17. Nichols admits that she did not immediately exit the car, though 24 the parties dispute how Nichols responded and what happened next. Nichols Decl. ¶ 9; Nichols 25 Dep. 52:18–19; Schipke Dep. 97:13–17. Nichols testified that Officer Schipke then reached into 26 the car through the open window, unlocked and opened the passenger door, grabbed and twisted 27 2 28 Dispatch created the event at 9:19 p.m., which means that the officer called in the event a little before that time. Ex. 8 to Clouse Decl. ISO Mot. (“Harris Dep.”) 26:18–23, ECF 44-1. 2 1 Nichols’ right arm, and forcibly pulled her out of the car. Nichols Decl. ¶ 9; Nichols Dep. 52:19– 2 21, 53:18–22. Officer Schipke disputes that he pulled her out of the vehicle—he testified that 3 when he put his hand on her arm, Nichols complied with his order to get out of the car. Schipke 4 Dep. 97:4–5; Ex. 1 to Frucht Decl. ISO Opp’n (“Schipke Dep. II”) 97:22–98:4, ECF 45-2. 5 Once out of the vehicle, Nichols began screaming and crying, and asked for a female 6 officer because she did not want to be touched by a man because she was a molest victim. Nichols 7 Decl. ¶¶ 9, 10; Schipke Dep. 103:23–25. Nichols claims that Officer Schipke ignored her request 8 for a female officer, and instead immediately turned her around and placed her in handcuffs. 9 Nichols Decl. ¶ 9; Nichols Dep. 62:16–20. Nichols further testified that the handcuffs were so tight that they were painful and caused bruises. She told the officers that the handcuffs were too 11 United States District Court Northern District of California 10 tight, but they ignored her. Nichols Decl. ¶ 9. Officer Schipke could not recall whether he put 12 Nichols in handcuffs immediately or after some time. Schipke Dep. 102:4–6. The parties agree, 13 however, that Officer Schipke conducted a pat search. Nichols Decl. ¶ 10; Schipke Dep. 100:12– 14 22. Nichols was wearing yoga pants, flip fops, a skin-tight tank-top shirt that exposed her midriff, 15 a zip-up sweatshirt, and no bra. Nichols Decl. ¶ 12; Nichols Dep. 58:17–22; Schipke Dep. 16 101:11–12 (“[s]he was wearing very . . . tight clothing); Schipke Dep. 101:15–17 (“she was 17 wearing revealing clothing”). She testified that Officer Schipke placed his hands under her jacket, 18 on her skin around her stomach area, and all around her waist, hips, front, and lower back. 19 Nichols Decl. ¶ 10. Officer Schipke testified that he searched only her waistband. Schipke Dep. 20 101:15–16. 21 Sometime later, several other officers arrived. Nichols Decl. ¶ 12; Schipke Dep. 131:7. 22 Nichols claims that Officer Schipke then conducted a second pat search, unzipping her jacket and 23 the two pockets on her jacket; searching around her waist, hips, and back; touching her skin with 24 his thumb under her shirt; and “with a full hand” touched both of her breasts on top of her shirt. 25 Nichols Decl. ¶ 12; Nichols Dep. 90:4–91:24. Officer Schipke testified that he did not conduct a 26 second pat search. Schipke Dep. 105:4–6. 27 28 Nichols testified that after the second pat search, Officer Schipke refused to zip up her sweatshirt and that the other officers stood in a semi-circle in front of her, staring at her, shining 3 1 flashlights up and down her torso, giggling, and laughing. Nichols Decl. ¶ 14. Nichols claims that 2 she asked the officers to stop staring at her, but they ignored her. Id. ¶ 15. Because she was 3 “humiliated and embarrassed,” Nichols testified that she turned her head away from the officers, 4 but Officer Schipke, who according to Nichols was doing paperwork, told her to “turn the fuck 5 around.” Id. Although Nichols testified that she did turn around, she “reflexively turned her head 6 away once again.” Id. At that point, Nichols asserts that Officer Schipke “turned [her] around to 7 face the hood of the marked police car and slammed [her] upper body onto the hood of the car.” 8 Id.; Nichols Dep. 107:2–5. Nichols claims that when he slammed her onto the hood of the car, 9 Officer Schipke pressed his private parts into her behind, and it felt to her that he was aroused. Nichols Decl. ¶ 15; Nichols Dep. 107:11–13. Officer Schipke testified that he never pushed her 11 United States District Court Northern District of California 10 into the car and did not fill out any paperwork during the interaction. Schipke Dep. 108:9–13. Nichols claims that after she had been detained in handcuffs for over an hour, Officer 12 13 Ferguson told her she was free to go, even though she was still handcuffed. Nichols Decl. ¶ 16. 14 Officer Schipke testified that the entire encounter lasted only 40 minutes to an hour, and that she 15 would not have been in handcuffs for the entire duration. Schipke Dep. 107:1–2. After Officer 16 Ferguson told her she was free to go, a police sergeant arrived, and Nichols asked to speak with 17 him. Nichols Decl. ¶ 16. Nichols asked the sergeant to remove the handcuffs, and the sergeant 18 ordered an officer to do so. Id.; Nichols Dep. 111:5–14. After discussing the incident with the 19 sergeant, Nichols walked back to Cabrera’s car and waited there until all of the officers left. 20 Nichols Decl. ¶ 17. Nichols filed this lawsuit on July 25, 2014. Compl., ECF 1. The First Amended 21 22 Complaint (“FAC”) asserts four claims under 42 U.S.C. § 1983 against the Officer Defendants for 23 deprivation of the right to be free from unreasonable searches and seizures, as guaranteed by the 24 Fourth Amendment, and the right to be free from retaliation for exercising the right to petition the 25 government, as guaranteed by the First Amendment. See generally FAC, ECF 10. Nichols also 26 asserts a claim under section 1983 against the City for its pattern and practice of ongoing 27 constitutional violations. Id. ¶¶ 43–44. 28 II. LEGAL STANDARD 4 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 1 2 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 3 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 4 56(a)). Material facts are those that may affect the outcome of the case. Anderson v. Liberty 5 Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if there is sufficient 6 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. at 248–49. The party moving for summary judgment bears the initial burden of informing the court of 7 8 the basis for the motion, and identifying portions of the pleadings, depositions, answers to 9 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party 11 United States District Court Northern District of California 10 must either produce evidence negating an essential element of the nonmoving party’s claim or 12 defense or show that the nonmoving party does not have enough evidence of an essential element 13 to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz 14 Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets its initial burden, the burden shifts to the nonmoving party to 15 16 produce evidence supporting its claims or defenses. Id. at 1103. If the nonmoving party does not 17 produce evidence to show a genuine issue of material fact, the moving party is entitled to 18 summary judgment. Celotex, 477 U.S. at 323. “The court must view the evidence in the light 19 most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor.” 20 City of Pomona, 750 F.3d at 1049. However, “the ‘mere existence of a scintilla of evidence in 21 support of the plaintiff’s position’” is insufficient to defeat a motion for summary judgment. Id. 22 (quoting Anderson, 477 U.S. 242, 252 (1986)). “‘Where the record taken as a whole could not 23 lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” Id. 24 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 25 III. 26 DISCUSSION Defendants move for summary judgment on all claims. See generally Mot. Specifically, 27 they ask the Court to address five questions. Id. at 1. The Court generally seeks to respond to the 28 motion as submitted by the moving party. However, in this case, Defendants have improperly 5 1 framed the questions they ask the Court to consider. For example, Issue Two is posited as 2 follows: “Whether, in light of Plaintiff’s poor cooperation and screaming, it was reasonable for 3 officers to handcuff Plaintiff, search her, and conduct sobriety tests without exceeding the bounds 4 of a valid investigatory stop.” Id. Because these questions are posed as if the Court is to answer 5 them construing the evidence in the light most favorable to the moving party, which is not the 6 standard, see City of Pomona, 750 F.3d at 1049, the Court instead considers whether any of 7 Plaintiff’s claims are appropriate for resolution on summary judgment. Before addressing the substance, the Court addresses two preliminary matters. First, 9 Defendants indicate that that Plaintiff’s counsel advised them that Nichols does not intend to 10 pursue the Fourth and Fifth Claims alleged in the FAC, for alleged violation of Nichols’ First 11 United States District Court Northern District of California 8 Amendment rights and for Monell liability against the City. Mot. 8 n.6. Nichols confirms this in 12 her supplemental brief. Pl.’s Suppl. Br. 1, ECF 52. Accordingly, the Court GRANTS 13 Defendants’ motion for summary judgment as to the Fourth and Fifth Claims alleged in the FAC. 14 Second, in their motion, Defendants argue that Nichols does not claim that Officer 15 Ferguson played any role in the encounter aside from initiating contact and questioning Cabrera, 16 and thus, summary judgment is appropriate. Mot. 20. Nichols does not contest this assertion. For 17 this reason, and because none of the evidence details any contact between Officer Ferguson and 18 Nichols, the Court GRANTS the motion for summary judgment as to all claims against Officer 19 Ferguson. Thus, the only claims remaining are those against Officer Schipke alone. 20 Officer Schipke first argues that there is no evidence that he violated Nichols’ 21 constitutional rights, and therefore he cannot be liable under § 1983. See Mot. 9–20. Second, he 22 contends that even if a constitutional violation occurred, he is entitled to qualified immunity 23 because “it was not ‘beyond debate’ in November 2012 that officers confronted with this situation 24 could not take any of the actions of which Plaintiff complaints.” Id. at 21. The Court first 25 addresses whether Officer Schipke has demonstrated that he is entitled to judgment as a matter of 26 law based on undisputed material facts regarding the alleged constitutional violations, and next 27 considers whether, even if there was a constitutional violation (which he denies), he is entitled to 28 qualified immunity. 6 A. 1 Constitutional Violation i. 2 Initial Detention Officer Schipke first argues that he had reasonable suspicion to detain Nichols because she 3 and Cabrera were in a car parked so as to hide the license plate in an area known for vehicle theft 4 and drug crime, among other reasons. Mot. 1. Because there are disputed issues of material fact, 5 the Court cannot conclude that Officer Schipke had reasonable suspicion to detain Nichols, and 6 further cannot conclude that Officer Schipke did not violate her Fourth Amendment rights. 7 a. Reasonable Suspicion 8 9 “The Fourth Amendment is not implicated when law enforcement officers approach an individual in public and ask him if he is willing to answer questions,” regardless of whether the 10 individual is on foot or in a car parked in a public place. United States v. Mays, No. CR-0711 United States District Court Northern District of California 00295, 2008 WL 111230, at *3 (N.D. Cal. Jan. 9, 2008) (citing United States v. Washington, 490 12 F.3d 765, 770 (9th Cir. 2007)); United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994) (“Absent 13 indicia of force or aggression, a request for identification or information is not a seizure or an 14 investigatory stop.”). Accordingly, this case begins when Officer Schipke allegedly pulled 15 Nichols out of the vehicle.3 16 The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a 17 cardinal principle that ‘searches conducted outside the judicial process, without prior approval by 18 judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few 19 specifically established and well-delineated exceptions.’” Mincey v. Arizona, 437 U.S. 385, 390 20 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). As is relevant here, a police 21 officer must have a “reasonable suspicion” that a violation of the law has occurred before 22 detaining a person. Bingham v. City of Manhattan Beach 341 F.3d 939, 946 (9th Cir. 2003) 23 (citing Whren v. United States, 517 U.S. 806, 809–10 (1996)), abrogated on other grounds by 24 Virginia v. Moore, 553 U.S. 164 (2008), as recognized in Edgerly v. City of San Francisco, 599 25 26 3 27 28 Drawing all reasonable inferences in the light most favorable to Nichols, Officer Schipke reached in through the car window, unlocked the door, pulled her out of the vehicle, and placed her in handcuffs in one, virtually simultaneous movement. Nichols Decl. ¶ 9; Nichols Dep. 52:19–21, 53:18–22, 62:16–20. Nichols was detained at this point. 7 1 F.3d 946, 956 n.14 (9th Cir. 2010); see also Terry v. Ohio, 392 U.S. 1 (1968). To form reasonable 2 suspicion, an officer must have “specific, articulable facts which, together with objective and 3 reasonable inferences, form the basis for suspecting that the particular person detained is engaged 4 in criminal activity.” United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (internal 5 quotation marks omitted). “Where the underlying facts are undisputed, a district court must 6 determine the issue on motion for summary judgment.” Act Up!/Portland v. Bagley, 988 F.2d 7 868, 873 (9th Cir. 1993). 8 9 Citing United States v. Salcido, 341 Fed. Appx. 344 (9th Cir. 2009), Officer Schipke argues that he had reasonable suspicion to detain Nichols. Mot. 9. To support this contention, Officer Schipke asserts that: (1) the incident occurred in a high-crime neighborhood, Schipke Dep. 11 United States District Court Northern District of California 10 66:10–12; (2) Cabrera parked his car close to the truck parked behind it, such that the Officer 12 Defendants could not see his license plate, id. at 58:19–24; (3) two people were sitting in the car 13 and appeared to be attempting to avoid detection, id. at 77:6–15; (4) Nichols was very upset and 14 appeared fearful, id. at 91:16, 94:1–6; (5) Officer Schipke saw Nichols make “furtive movements” 15 such as continually moving, reaching over to the center console, reaching under the seat, and 16 grabbing her bag, id. at 89:13–22, 96:21–97:3; and (6) Nichols did not comply with Officer 17 Schipke’s commands. Id. at 96:21–97:3. 18 Although much of this testimony is undisputed, there are disputed issues of material fact. 19 In her declaration, Nichols concedes that there had been a lot of break-ins in the neighborhood, she 20 and Cabrera were sitting in the car talking, Cabrera parked his car “close” to the truck, she was 21 emotional, she grabbed her cell phone while Cabrera was talking to Officer Ferguson, she 22 searched for her ID in the car, and she did not immediately comply with Officer Schipke’s 23 commands to give him her phone and exit the vehicle. Nichols Decl. ¶¶ 7–9. Nevertheless, 24 Nichols’ account differs from Officer Schipke’s account in at least two significant ways. First, 25 Nichols testified that she was texting when Officer Schipke approached her, and only began 26 looking around the car after he asked for her ID, which was either in the glove compartment or by 27 Cabrera. Id. 50:7–19. Viewing the evidence in the light most favorable to Plaintiff, a reasonable 28 jury could find that Nichols was not making furtive movements, but was instead reacting to 8 1 Officer Schipke’s request to see her ID. 2 Second, relying on the Event Details Report and Event Chronology, Nichols disputes 3 whether the officers could in fact see the rear license plate. See Opp’n 15, ECF 45; Ex. 2 to Frucht 4 Decl. (“CAD Report”), ECF 45-2. In his deposition, Officer Schipke testified that “[i]t could take 5 15 seconds” to run a plate.” Schipke Dep. II, at 60:1–6. And, the CAD report shows that the 6 officers identified Cabrera’s license plate within a several minutes of having called in the event. 7 CAD Report 1 (identifying 5AVJ826, Cabrera’s license plate, at 21:19); Harris Dep. 26:18–23 8 (stating that dispatch created the event at 9:19 p.m., which means the officers called in the event a 9 little before that time). Drawing all reasonable inferences in favor of Plaintiff, as required on summary judgment, the Court concludes that a reasonable jury could find that the officers were 11 United States District Court Northern District of California 10 able to see and run Cabrera’s license plate within minutes of arriving at the scene, and knew at that 12 time that the car was not stolen. 13 Given the identified factual disputes, the Court cannot conclude that no constitutional 14 violation occurred. Moreover, Officer Schipke’s reliance on Salcido is unavailing in light of these 15 factual disputes. In Salcido, the Ninth Circuit affirmed the district court’s denial of the 16 defendant’s motion to suppress evidence obtained during an investigatory stop of the SUV in 17 which she was a passenger. 341 Fed. Appx. 344. There, the SUV was parked in the darkened 18 parking lot of a post office that was closed at the time. Id. at 345. The Ninth Circuit held that a 19 Terry stop was justified given the fact that police officers were aware of previous reports of mail 20 theft at the post office, the officers knew it was unusual for a car to be alone in the parking lot at 21 that time of night, and they observed the SUV turn on its headlights as it left the parking lot. Id. at 22 345 (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Here, although Officer Schipke was aware of 23 possible criminal activity in the area, the situation is distinguishable from Salcido. First, Nichols 24 and Cabrera were parked in a residential neighborhood, in front of his house, and Cabrera had 25 already informed the officers that he lived there. Second, drawing all reasonable inferences in 26 favor of Plaintiff, the officers could see the vehicle’s license plate and had already obtained a 27 dispatch report that did not alert them that the car was reported stolen. 28 Although the Court acknowledges that Defendants have submitted strong evidence to 9 1 support Officer Schipke’s reasonable suspicion to detain Nichols, the evidence is not undisputed. 2 The Court concludes that a reasonable jury could conclude that upon learning that Cabrera lived in 3 the neighborhood and the vehicle was not reported as stolen, reasonable suspicion ceased before 4 Nichols was detained. As to Nichols’ conduct immediately prior to her detention, the facts are 5 disputed so as to defeat summary judgment on this issue. 6 7 8 For the foregoing reasons, the Court DENIES Officer Schipke’s motion for summary judgment on the ground that he had reasonable suspicion to detain Nichols. b. Scope of the Detention Officer Schipke next contends that his conduct was reasonable and did not exceed the 10 bounds of a valid investigatory stop. Mot. 10–12, 16–19. “A detention can be unreasonable 11 United States District Court Northern District of California 9 ‘either because the detention itself is improper or because it is carried out in an unreasonable 12 manner.’” Davis v. United States, No. 15-55671, 2017 WL 1359482, at *4 (9th Cir. Apr. 13, 13 2017) (citing and quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). For instance, 14 detentions that are “unnecessarily painful [or] degrading” and “lengthy detentions[ ] of the elderly, 15 or of children, or of individuals suffering from a serious illness or disability raise additional 16 concerns.” Foxworth, 31 F.3d at 876. Thus, a “seizure must be ‘carefully tailored’ to the law 17 enforcement interests . . . that justify detention [.]” Meredith v. Erath, 342 F.3d 1057, 1062 (9th 18 Cir. 2003) (citation omitted). Courts determine reasonableness “from the perspective of a 19 reasonable officer on the scene.” See Graham v. Connor, 490 U.S. 386, 396 (1989). 20 Officer Schipke contends that it was “reasonable to search Plaintiff as he did,” because 21 Nichols was moving her hands around the car and not cooperating with officers. Mot. 16. The 22 Court cannot agree that the scope of the detention was constitutional as a matter of law given the 23 disputed issues of fact. As previously explained, the parties dispute whether Nichols was 24 “furtively” moving her hands around the car or responding to Officer Schipke’s request to produce 25 identification. Moreover, Nichols disputes that she was not cooperating with officers. See 26 Nichols Decl. ¶ 8. Nichols’ testimony indicates merely that she did not “immediately” comply 27 with Officer Schipke’s request to get out of the car. Nichols Decl. ¶ 8. Perhaps more importantly, 28 Officer Schipke’s account of the search differs significantly from Nichols’ account. Compare 10 1 Nichols Decl. ¶ 12 (stating that Officer Schipke searched her twice and touched her breasts with 2 his full hands), Nichols Dep. 90:4–91:24 (same), with Schipke Dep. 105:4–6 (stating that he did 3 not conduct a second search). Accordingly, the Court DENIES Officer Schipke’s motion for 4 summary judgment on the ground that it was reasonable to search Nichols as he did. 5 ii. De Facto Arrest 6 Officer Schipke does not seek summary judgment on the ground that there was probable 7 cause to arrest Nichols. Instead, he asserts that neither the use of handcuffs nor the length of the 8 detention transformed it into an arrest. Mot. 10–14. Therefore, this order focuses on whether 9 Office Schipke reasonably believed that the tactics used were necessary to protect officer safety such that the detention remained an investigatory detention that required only reasonable 11 United States District Court Northern District of California 10 suspicion. Insofar as Defendants offer no evidence or argument to support a finding of probable 12 cause, if there is evidence sufficient to support a dispute on this issue, it must be presented to a 13 jury. 14 The Ninth Circuit has explained that there is “no bright line rule for determining when an 15 investigatory stop crosses the line and becomes an arrest.” United States v. Parr, 843 F.2d 1228, 16 1231 (9th Cir. 1988). To determine whether a detention amounts to a de facto arrest, courts look 17 to the totality of the circumstances. United States v. Ricardo D., 912 F.2d 337, 342 (9th Cir. 1990); 18 Green v. City & Cty. of San Francisco, 751 F.3d 1039, 1047 (9th Cir. 2014). When making this 19 determination, courts consider the “intrusiveness of the methods used in light of whether these 20 methods were reasonable given the specific circumstances.” Green, 751 F.3d at 1047. 21 Although handcuffing is not part of a typical Terry stop, an officer may use tactics during 22 the course of an investigatory stop to restrain a suspect when the officer reasonably believes force 23 is necessary to protect the officer’s own safety or the safety of the public. Alexander v. Cnty. of 24 Los Angeles, 64 F.3d 1315, 1320 (9th Cir. 1995); United States v. Bautista, 684 F.2d 1286 (9th 25 Cir. 1982). Special circumstances might justify the use of “especially intrusive” tactics related to 26 an investigatory stop such as: “(1) where the suspect is uncooperative or takes action at the scene 27 that raises a reasonable possibility of danger or flight; (2) where the police have information that 28 the suspect is currently armed; (3) where the stop closely follows a violent crime; and (4) where the 11 1 police have information that a crime that may involve violence is about to occur.” Washington v. 2 Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996). Here, as previously discussed, the circumstances giving rise to Plaintiff’s detention are 3 disputed. See supra, at 8–9 (discussing Nichols’ alleged “furtive movements” and resistance to 5 the officer). Additional factual questions arise as to the length of the detention. In his deposition, 6 Officer Schipke testified that he believed he was at the scene for “40 minutes to an hour.” Schipke 7 Dep. 107:1–2. Nichols, however, submits a declaration that she was detained and in handcuffs for 8 over an hour. Nichols Decl. ¶ 16. The length of time is particularly important in light of the 9 apparently undisputed fact that Nichols remained in handcuffs for the duration of her detention.4 10 United States v. Mayo, 394 F.3d 1721, 1276 (9th Cir. 2005) (“Although the duration of detention 11 United States District Court Northern District of California 4 bears on whether a Terry stop is justified, there is no strict time requirement.” (citation omitted)). 12 To justify the length of the detention, Officer Schipke points to the Ninth Circuit’s 13 decisions in United States v. Mayo and United States v. Richards, 500 F.2d 1025 (9th Cir. 1974). 14 See Mot. 12–13. In those cases, however, unlike the present case, the officers articulated “new 15 grounds for suspicion of criminal activity,” that continued to unfold as the investigation proceeded 16 or some other rationale for a prolonged Terry stop. See Mayo, 394 F.3d at 1276; Richards, 500 17 F.2d at 1029 (finding that the suspects’ “implausible and evasive responses . . . created even more 18 reason for the investigation being pursued further”). More recently, in Davis v. United States, the 19 Ninth Circuit found that a two hour detention, in public, of an elderly woman who had urinated in 20 her pants was unreasonably prolonged and unnecessarily degrading because the federal agent had 21 no law enforcement interest in detaining her—the suspected illicit item had been seized and the 22 suspect had been searched for other weapons and contraband. 2017 WL 1359482, at *5–6. Here, it is undisputed that Officer Schipke had conducted a pat search immediately after 23 24 Nichols exited the car. Nevertheless, the parties dispute whether Officer Schipke had a further law 25 4 26 27 28 “In assessing whether a detention is too long in duration to be justified as an investigative stop,” the inquiry is “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686 (1985); Haynie v. Cty. of Los Angeles, 339 F.3d 1071, 1076 (9th Cir. 2003) (noting that a Terry stop does not have rigid time constraints so long as the officer conducts the investigation in a diligent and reasonable fashion). 12 1 enforcement interest in detaining her. Officer Schipke contends that he wanted to determine 2 whether she was a domestic violence victim or was using illegal substances. Mot. 13. Officer 3 Schipke also testified that he was not certain she was unarmed.5 Schipke Dep. 101:24–25 (“After 4 the pat-down, I was more confident [that Nichols was unarmed], but you can hide a lot of 5 weapons.”); see also Reply ISO Mot. 5, ECF 47. Nichols contends, however, that after the 6 detention began (and possibly before), it was immediately clear that no crime or violation had 7 occurred and that she was unarmed, but the officers continued to detain her for over an hour 8 anyway. Opp’n 15. Accordingly, and in light of the factual disputes, the Court cannot conclude 9 that Officer Schipke’s conduct was reasonable, and thus complied with the Fourth Amendment. 10 Thus, the Court DENIES Officer Schipke’s motion for summary judgment on this ground. United States District Court Northern District of California 11 iii. Excessive Force Officer Schipke argues that Nichols’ claim for excessive force fails because her claimed 12 13 injuries are not supported by medical records or other evidence showing that she was injured. 14 Mot. 14 (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001)); 15 id. at 14–15; Reply ISO Mot. 8. A claim of excessive force brought against police officers must 16 be analyzed under the Fourth Amendment’s “reasonableness” standard. Connor, 490 U.S. at 395; 17 Smith v. City of Hemet, 394 F.3d 689, 700–01 (9th Cir. 2005). The “objective reasonableness” of 18 an officer’s use of force in a particular case is determined “in light of the facts and circumstances 19 confronting [him], without regard to [his] underlying intent or motivation.” Connor, 490 U.S. at 20 396–97. “Because this inquiry is inherently fact specific, the determination whether the force used 21 to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury 22 in rare cases.” Green, 751 F.3d at 1049 (internal quotations omitted); see also Avina v. United 23 States, 681 F.3d 1127, 1130 (9th Cir. 2012) (“summary judgment or judgment as a matter of law 24 in excessive force cases should be granted sparingly”). 25 26 27 28 5 Officer Schipke also contends that Nichols’ detention was extended by 20 minutes because she requested to speak with a sergeant. Mot. 13. However, once Nichols had been searched for weapons with none found, Officer Schipke could not reasonably believe that the use of handcuffs was necessary to protect his own safety or the safety of the public. Davis, 2017 WL 1359482, at *5; McArthur v. City & Cty. of San Francisco, 190 F. Supp. 3d 895, 903 (N.D. Cal. 2016). 13 Contrary to Officer Schipke’s assertion, Nichols’ failure to provide medical records to 1 2 support her claim of injuries is not fatal to her claim for two reasons. First, although Arpin 3 suggests that medical records showing injury are necessary to succeed on a claim for excessive 4 force, other Ninth Circuit cases suggest otherwise. See, e.g., Tekle v. United States, 511 F.3d 839, 5 846 (9th Cir. 2007) (excessive force found where officers kept an eleven year old child handcuffed 6 and pointed their weapons at him “even after it was apparent that he was a child and was not 7 resisting them or attempting to flee”); Robinson v. Solano Cty., 278 F.3d 1007, 1014–15 (9th Cir. 8 2002) (en banc) (holding that the pointing of a gun at someone may constitute excessive force 9 even it does not cause physical injury). Second, unlike in Arpin, Nichols has set forth specific facts disputing Officer Schipke’s version of events and has testified about the injuries she suffered, 11 United States District Court Northern District of California 10 and thus, the claims are not conclusory. See Nichols Decl. ¶¶ 9, 15; Nichols Dep. 45:6–20, 121:1– 12 22; cf. Arpin, 261 F.3d at 922 (finding conclusory allegations of injury insufficient to withstand 13 summary judgment on an excessive force claim). For example, Nichols offers undisputed 14 evidence that she told Officer Schipke that the handcuffs were too tight, but he ignored her.6 15 Nichols Decl. ¶ 9. Thus, Plaintiff has put forward enough evidence to create a triable issue of fact 16 on this issue, and DENIES Officer Schipke’s motion for summary judgment on this ground. 17 iv. “Gratuitous Touching” Officer Schipke argues that Nichols’ allegations that he engaged in “gratuitous touching” 18 19 by touching her beneath her shirt, unzipping her jacket, touching her breasts, and pressing his 20 aroused body into her, if true, constitute only a de minimis intrusion of her person, and therefore 21 are not actionable. Mot. 17–18; see also Opp’n 20. Because the alleged touching occurred after Officer Schipke detained Nichols, her claim 22 23 arising out of this conduct is analyzed under the Fourth Amendment. See Fontana v. Haskin, 262 24 F.3d 871, 881 (9th Cir. 2001) (“sexual harassment by a police officer of a criminal suspect during 25 a continuing seizure is analyzed under the Fourth Amendment”). “Beyond the specific 26 27 28 6 The Ninth Circuit has held that excessively tight handcuffing can be considered the use of excessive force when it causes injury or the officers ignore an individual’s complaints about the handcuffs being too tight. See, e.g., Wall v. Cty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004). 14 1 proscription of excessive force, the Fourth Amendment generally proscribes unreasonable 2 intrusions on one’s bodily integrity and other harassing and abusive behavior that rises to the level 3 of unreasonable seizure.” Id. at 878–79 (internal citation and quotation marks omitted). “Of 4 course, not every truthful allegation of sexual bodily intrusion during an arrest is actionable as a 5 violation of the Fourth Amendment. Some bodily intrusions may be provably accidental or de 6 minimis and thus constitutionally reasonable.” Id. at 880; see also Hicks v. Moore, 422 F.3d 1246, 7 1253–54 (11th Cir. 2005) (“[N]ot every intrusion, touching, discomfort or embarrassment during 8 an arrest is actionable as a violation of the Fourth Amendment. Some of these acts may be 9 provably accidental or just too insignificant and thus within the range of constitutionally 10 reasonable.”). United States District Court Northern District of California 11 Here, Nichols testified that Officer Schipke’s conduct with plaintiff was sexual in nature 12 rather than accidental or de minimis. She testified that during the second search Officer Schipke 13 unzipped her jacket, rubbed the skin around her waist, stomach, and back, and touched around her 14 breasts with “the full hand.” Nichols Dep. 90:4–25. She further testified that it felt like Officer 15 Schipke touched her breasts for “minutes.” Id. at 91:10–24. Moreover, Nichols claims that when 16 Officer Schipke slammed her against the hood of the police car it felt like he was aroused. 17 Nichols Decl. ¶ 15; Nichols Dep. 107:11–13. Officer Schipke, however, testified that he did not 18 conduct a second search, he pat-searched only her waistband, and that he did not push her into the 19 car. Schipke Dep. 101:15–16, 105:4–6, 108:9–11. In light of these factual disputes, among 20 potentially others, the Court cannot determine that the nature of the intrusion was de minimis or 21 merely accidental. 22 In the motion, Officer Schipke suggests that the Court should rule in his favor because 23 Nichols “does not even credibly claim that any officer touched her breasts.” Mot. 18. To support 24 this contention, Officer Schipke points to Nichols’ prior statements, in which she “specifically told 25 the Internal Affairs officer investigating her claims that she was not touched anywhere other than 26 her waist.” Id. Thus, he argues that Nichols’ subsequent statements are an attempt to create a 27 factual dispute by contradicting her earlier admission, which is impermissible. Mot. 18 (citing 28 Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). As a preliminary matter, Officer 15 1 Schipke’s argument is unavailing because “[c]redibility determinations . . . are jury functions, not 2 those of a judge [.]” Anderson, 477 U.S. at 255. Additionally, none of the transcripts that Officer 3 Schipke submitted in support of his papers support the assertion that Nichols expressly stated that 4 Officer Schipke touched only her waist. See, e.g., Ex. 3 to Clouse Decl. ISO Mot. (“Interview 5 with Internal Affairs”) 25:21–25, ECF 44-1 (“[T]he both times that he patted me . . . I felt [his] 6 hand on my skin.”). The prior statements here thus appear to be incomplete, and are supplemented 7 by the subsequent deposition testimony. Thus, the Court does not agree that Nichols’ deposition 8 testimony is self-serving and “flatly contradicts” her prior statements, as was the case in Kennedy.7 9 See 90 F.3d at 1481. Accordingly, this issue is more properly determined by a jury at trial. The 10 Court DENIES Defendant’s motion for summary judgment on this ground. United States District Court Northern District of California 11 B. Clearly Established Right Based on the foregoing discussion, the Court cannot conclude that Officer Schipke did not 12 13 violate Nichols’ constitutional rights. For this reason, the Court now must address whether, even 14 if a constitutional violation occurred, Officer Schipke is entitled to qualified immunity. 15 A government official sued under § 1983 is entitled to qualified immunity unless the 16 plaintiff shows that (1) the official violated a statutory or constitutional right, and (2) the right was 17 “clearly established” at the time of the challenged conduct. Plumhoff v. Rickard, 134 S. Ct. 2012, 18 2023 (2014) (citing Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011)). When addressing the second 19 prong, a court may not define the constitutional right at a high level of generality, because “doing 20 so avoids the crucial question whether the official acted reasonably in the particular circumstances 21 that he or she faced.” Id. “[A] defendant cannot be said to have violated a clearly established 22 right unless the right’s contours were sufficiently definite that any reasonable official in the 23 defendant’s shoes would have understood that he was violating it.” Id. “In other words, ‘existing 24 precedent must have placed the statutory or constitutional question’ confronted by the official 25 ‘beyond debate.’” Id. (quoting al-Kidd, 563 U.S. at 741). “A right can be clearly established 26 despite a lack of factually analogous preexisting case law, and officers can be on notice that their 27 28 7 Additionally, the prior statements in Kennedy were sworn statements. They are not so here. 16 1 conduct is unlawful even in novel factual circumstances.” Ford v. City of Yakima, 706 F.3d 1188, 2 1195 (9th Cir. 2013). “The relevant inquiry is whether, at the time of the officers’ action, the state 3 of the law gave the officers fair warning that their conduct was unconstitutional.” Id. 4 The Supreme Court recently reiterated that a “clearly established” constitutional right 5 “should not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017) 6 (quoting al-Kidd, 563 U.S. at 742). Rather, it must be “particularized” to the facts of the case.” 7 Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The Court endeavors to do so 8 here by identifying two alternatives that it must address. 9 First, the Court must determine whether it was clearly established that it was unlawful to detain an individual without reasonable suspicion. More precisely, was it clearly established that 11 United States District Court Northern District of California 10 it was unlawful to detain an individual after determining that the primary circumstances initially 12 giving rise to the officers’ concerns (i.e., suspicious persons loitering in a high crime 13 neighborhood in a car parked so close to another car as to obscure the license plate suggesting a 14 stolen vehicle) had resolved to show that the driver was in front of his own home and police 15 dispatch did not have information that the vehicle was reported as stolen? Based on long-standing 16 precedent, it was clearly established at the time of the incident that it is unlawful to detain an 17 individual without reasonable suspicion. Terry, 392 U.S. 1. Thus, viewing the evidence in the 18 light most favorable to the nonmoving party, the Court cannot find that Officer Schipke is entitled 19 to qualified immunity regarding the initial detention. 20 Second, and alternatively, even if Officer Schipke had reasonable suspicion to initially 21 detain Nichols, the Court must determine whether it was clearly established that it was unlawful to 22 detain a crying and screaming woman in handcuffs for over an hour on a public street, while she 23 stood in revealing clothing, to question her about whether she was a domestic violence victim or 24 was using illegal substances, subject her to at least two pat searches, unzip her jacket and pockets 25 thereto, touch her bare skin and her breasts over her shirt, and have an officer slam her against the 26 hood of a police car and press his aroused genitals against her. 27 28 Officer Schipke argues that he is entitled to qualified immunity because it was not “beyond debate” in November 2012 that officers confronted with this situation could not take any of the 17 1 actions of which Plaintiff complaints. Mot. 21. Plaintiff asserts that Officer Schipke’s argument 2 lacks merit in light of the disputed issues of fact. Opp’n 21. In reply, Officer Schipke does not 3 engage Plaintiff’s contention, but rather cites White v. Pauly, for the proposition that he is entitled 4 to qualified immunity because Nichols has failed to “identify a case where an officer acting under 5 similar circumstances . . . was held to have violated” the Fourth Amendment. 137 S. Ct. at 552. Contrary to what Officer Schipke argues, the Court does not read White to require the 6 7 plaintiff in a section 1983 case to identify a case directly on point for a right to be clearly 8 established. Id. at 551 (“[T]his Court’s case law does not require a case directly on point for a 9 right to be clearly established [.]” (citation and internal quotation marks omitted); see generally Davis, 2017 WL 1359482, at *1 (holding that a federal agent was not entitled to qualified 11 United States District Court Northern District of California 10 immunity from suit for detaining an elderly woman in a parking lot for two hours, while she stood 12 in urine-soaked pants, to question her, incident to a search, about her possession of a paperweight 13 containing a rice-grained-sized bit of lunar material without identifying a case directly on point). Moreover, the outcome of the qualified immunity analysis here hinges on several disputed 14 15 facts: the length of the detention, the length of time Nichols was kept in handcuffs, the scope of 16 the search (including whether Officer Schipke searched Nichols twice, held her breasts for 17 “minutes,” and pressed his aroused genitals into her), and the degree to which Nichols was or was 18 not complying with Officer Schipke’s orders.8 As the Davis court concluded, qualified immunity 19 is not established as a matter of law where the nonmoving party has raised genuine issues of 20 material fact as to whether the detention was “unreasonably prolonged and degrading under 21 Foxworth.” Davis, 2017 WL 1359482, at *6. Further, Justice Ginsberg’s concurrence in White 22 confirms that the per curium opinion “does not foreclose the denial of summary judgment” on 23 qualified immunity where fact disputes exist on material issues.” White, 137 S. Ct. at 553 24 (Ginsburg, J., concurring). Accordingly, and in light of the previously identified disputed issues 25 of material fact, Officer Schipke’s motion on this issue is DENIED. 26 IV. ORDER 27 28 8 This list is not intended to be exhaustive. 18 1 For the foregoing reasons, IT IS HEREBY ORDERED that: 2 1. Defendants’ motion for summary judgment on Plaintiff’s fourth and fifth claims, 3 for alleged violation of Nichols’ First Amendment rights and for Monell liability against the City, 4 is GRANTED. 5 2. Defendants’ motion for summary judgment is GRANTED as to Officer Ferguson. 6 3. Defendants’ motion for summary judgment as to Officer Schipke is DENIED with 7 8 9 10 United States District Court Northern District of California 11 respect to Plaintiff’s first, second, and third claims. IT IS SO ORDERED. Dated: April 19, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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