Naveed et al v. City of San Jose

Filing 31

ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT by Magistrate Judge Paul Singh Grewal granting-in-part 20 (psglc2, COURT STAFF) (Filed on 5/23/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MOHAMMAD BADAR NAVEED, et al., Plaintiffs, 8 v. 9 10 CITY OF SAN JOSE, et al., United States District Court Northern District of California 12 14 15 16 17 18 19 20 21 ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT (Re: Docket No. 20) Defendants. 11 13 Case No. 15-cv-05298-PSG Late on the night of July 13, 2013, Defendants Jonathan Koenig, Edgar Nava, Elizabeth Ornelas and Martin Wallace—all of them San Jose police officers—arrived at West Coast Wheels, a San Jose shop selling custom wheels and other specialty items for cars.1 A 911 caller had reported that WCW employees, including Plaintiffs Mohammad Badar Naveed and Humza Ahmad, were refusing to give the caller his car back.2 When two of the officers started ordering Plaintiffs’ friends out of their cars and arresting them, Plaintiffs took out their cell phones and began filming the encounter.3 For this, Plaintiffs claim, the officers took Badar to the ground, slammed Ahmad onto the trunk of a police car, arrested them both and confiscated their cell phones.4 Plaintiffs allege that Defendants’ actions violated their constitutional rights and constituted several state-law torts.5 22 23 1 See Docket No. 20 at ¶¶ 8-11, 16, 21-22, 43, 62, 68. 24 2 See id. at ¶¶ 5-6, 26, 38-40. 25 3 See id. at ¶¶ 50-57. 26 4 See id. at ¶¶ 60-71. 27 5 See id. at ¶¶ 94-153. 28 1 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT Defendants, including the officers as well as their supervisor Sergeant Doug Tran and the 1 2 City of San Jose, now move to dismiss Plaintiffs’ first amended complaint.6 Defendants argue that 3 they had probable cause for the arrests and seizures and that they could not have violated 4 Plaintiffs’ free speech rights. On the former point, at least, the court is persuaded. The motion is 5 GRANTED-IN-PART. 6 I. Earlier on the day in question, Plaintiffs got into a business dispute with a WCW customer 7 8 named Va Phong.7 Against Plaintiffs’ advice, Phong had special-ordered 22-inch rims that 9 Plaintiffs thought would not fit his car.8 Plaintiffs allege that they had warned Phong that they would charge him a restocking fee if he asked them to install the rims and they did not fit. 9 Phong 11 United States District Court Northern District of California 10 arrived around 5 PM on July 13, 2013 to get the rims installed.10 Sure enough, the rims were too 12 big for Phong’s car, but Phong refused to pay either the restocking fee or for the other 13 modifications that Omar Naveed, the WCW employee who was supervising the work, suggested. 11 14 For his part, Omar refused to return Phong’s car, citing the mechanic’s lien that gave WCW the 15 right to keep it until Phong paid for the work done.12 Phong called the police twice, at 10:50 PM 16 and then again at 11:37 PM, complaining that WCW was not letting him leave with his car.13 17 Throughout this time, security cameras show Phong entering and leaving the building freely.14 18 6 See Docket No. 20. 7 See Docket No. 19 at ¶ 35. 8 See id. at ¶¶ 27-30. 9 See id. at ¶ 28. 19 20 21 22 10 See id. at ¶ 30. 24 11 See id. at ¶¶ 32-34. 25 12 See id. at ¶ 37 (citing Cal. Civ. Code § 3068). 26 13 See id. at ¶¶ 38-40. 27 14 See id. at ¶¶ 41-42. 28 2 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 23 Koenig and Nava arrived at 11:39 PM and saw Phong standing in the alley next to 1 2 WCW.15 Phong identified himself as the 911 caller and complained to the officers that he felt 3 trapped because Omar had refused to let him have his car—which was on jacks at the time—until 4 Phong paid and because the driveway was blocked.16 Phong also told the officers at some point 5 that Omar had threatened to “fuck [him] up.”17 Seeing a car with tinted windows parked behind Phong in the alley, Koenig approached 6 7 and asked the driver—Omar—for his license and registration.18 Nava opened the passenger-side 8 door and ordered the occupant, Harroon Naveed, out of the car.19 Around this time, Plaintiffs 9 started filming the interaction on their cell phones.20 Omar could not find the registration immediately, so Koenig arrested him and put him in the back of their patrol car.21 Meanwhile, 11 United States District Court Northern District of California 10 Harroon refused to get out of the car, so Nava arrested him for resisting.22 Plaintiffs captured 12 these arrests on video, even though Nava tried to shine a flashlight in their cameras to interfere 13 with their recording.23 With Omar and Harroon secured, Koenig then walked up to Badar, tried to grab the cell 14 15 phone from his hand, took hold of Badar’s arms and twisted them behind his back, knocking the 16 cell phone to the ground.24 Even though Badar had both his arms behind his back and was not 17 15 See id. at ¶ 43. 16 See id. at ¶¶ 44, 48. 17 Id. at ¶ 47. 18 See id. at ¶¶ 49-51. 19 See id. at ¶ 52. 23 20 See id. at ¶ 53. 24 21 See id. at ¶¶ 54-55. 25 22 See id. at ¶ 56. 26 23 See id. at ¶¶ 57-58. 27 24 See id. at ¶ 60. 18 19 20 21 22 28 3 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 resisting or threatening the officers, Koenig then swept Badar’s feet out from under him, while 2 Wallace walked up and added his weight to push Badar hard into the ground.25 The officers then 3 spotted Ahmad recording Badar’s arrest, and Koenig ordered Ornelas to arrest Ahmad.26 Ornelas 4 told Ahmad to back up, and Ahmad complied, but Koenig and Ornelas arrested him for failing to 5 obey commands and for delaying their investigation.27 After Ahmad was in handcuffs, Koenig 6 threw him forcefully onto the trunk of a police car face-first.28 Koenig and Ornelas then confiscated Plaintiffs’ cell phones, and all of the officers entered 7 WCW and searched the premises.29 They ordered a WCW employee to remove the rims from 9 Phong’s car and to remove sensors from the wheels and rims.30 The cell phones remain in the 10 police department’s possession, and, Plaintiffs allege, the police have tampered with the video 11 United States District Court Northern District of California 8 recordings that Plaintiffs made.31 Each officer filed what Plaintiffs claim was a false police 12 report.32 Tran, as a supervisory officer, approved all this conduct and filed his own false report.33 13 Plaintiffs filed this suit in state court in July 2015.34 Defendants removed it to this court 14 four months later35 and moved to dismiss.36 By stipulation, Plaintiffs withdrew their complaint 15 25 16 See id. at ¶¶ 61-66. The complaint does not describe their arrival, but Wallace and Ornelas had shown up by this point. 17 26 See id. at ¶ 68. 18 27 See id. at ¶¶ 69-70. 28 See id. at ¶ 71. 29 See id. at ¶¶ 82, 88. 30 See id. at ¶ 89. 31 See id. at ¶¶ 82-87. 32 See id. at ¶¶ 73-78. 33 See id. at ¶¶ 79-81. 34 See Docket No. 1, Ex. A. 27 35 See Docket No. 1. 28 4 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 19 20 21 22 23 24 25 26 1 and filed the complaint now at issue.37 Plaintiffs raise seven causes of action: (1) a claim under 42 2 U.S.C. § 1983 for violation of Plaintiffs’ freedom of speech rights through retaliation for protected 3 activity, against Koenig, Nava and Ornelas; (2) a Section 1983 claim for false arrest, unlawful 4 search and excessive force in violation of the Fourth Amendment against Koenig, Ornelas, 5 Wallace and Tran; (3) a Section 1983 claim for illegal seizure of the cell phones in violation of the 6 Fourth Amendment against Koenig, Ornelas and Tran; (4) a Section 1983 claim for illegal search 7 and seizure of property at WCW against all Defendants; (5) a claim for battery by a police officer 8 against Koenig, Ornelas and Wallace; (6) a claim for false arrest against Koenig and Ornelas and 9 (7) a claim under Cal. Civ. Code § 52.1, or the Bane Act, against Koenig, Nava, Ornelas, Tran, Wallace and the City of San Jose for various violations of Plaintiffs’ First and Fourth Amendment 11 United States District Court Northern District of California 10 rights.38 Plaintiffs seek actual and consequential damages, attorney’s fees and punitive damages.39 12 II. This court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. 13 14 The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 15 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).40 16 III. A complaint must contain “a short and plain statement of the claim showing that the 17 18 pleader is entitled to relief.”41 When a plaintiff fails to proffer “enough facts to state a claim to 19 relief that is plausible on its face,” the complaint may be dismissed for failure to state a claim upon 20 21 See Docket No. 6. 37 See Docket No. 19. 38 See id. at ¶¶ 94-153. 39 See id. at 23. 40 22 36 See Docket Nos. 8, 9. 41 Fed. R. Civ. P. 8(a)(2). 23 24 25 26 27 28 5 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 which relief may be granted.42 A claim is facially plausible “when the pleaded factual content 2 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.”43 Under Fed. R. Civ. P. 12(b)(6), “dismissal can be based on the lack of a cognizable 4 legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”44 5 Dismissal with prejudice and without leave to amend is appropriate if it is clear that the complaint 6 could not be saved by amendment.45 At this stage of the case, the court must accept all material allegations in the complaint as 8 true and construe them in the light most favorable to the non-moving party.46 The court’s review 9 is limited to the face of the complaint, materials incorporated into the complaint by reference and 10 matters of which the court may take judicial notice.47 However, the court need not accept as true 11 United States District Court Northern District of California 7 allegations that are conclusory, unwarranted deductions of fact or unreasonable inferences.48 First, Defendants argue that the officers had probable cause to arrest Plaintiffs, so they 12 13 cannot state a Section 1983 or state-law claim for false arrest.49 To prevail on their Section 1983 14 false arrest claim, Plaintiffs must “demonstrate that there was no probable cause to arrest 15 42 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 17 43 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). 18 44 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 19 45 See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 20 46 See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). 21 47 See id. 22 48 16 23 24 25 26 27 28 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly, 550 U.S. at 561 (holding that “a wholly conclusory statement of [a] claim” will not survive a motion to dismiss). 49 These claims are part of Plaintiffs’ second cause of action and the entirety of their sixth. See Docket No. 19 at ¶¶ 102-106, 110-111, 138-145. Although their motion was ambiguous on this point, in their reply brief Defendants clarify that they do not challenge the portion of the second claim relating to their alleged use of excessive force. See Docket No. 27 at 6 (“Defendants’ motion has raised no issue with the pleading of the excessive force claims . . . .”). 6 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 [them].”50 And under California law, police officers are immune from liability for false arrest “if 2 the arrest is lawful or the officer had reasonable cause to believe it was lawful.”51 The test for 3 probable cause is whether “at the moment of arrest the facts and circumstances within the 4 knowledge of the arresting officers and of which they had reasonably trustworthy information 5 were sufficient to warrant a prudent [person] in believing that the [complainant] had committed or 6 was committing an offense.”52 Even if there is no probable cause for an arrest, “a government 7 official is entitled to qualified immunity on a false arrest claim if a reasonable officer in his 8 position could have believed that probable cause existed.”53 Defendants here have cited sufficient facts to establish probable cause for the arrests. As 10 Plaintiffs allege in their complaint, Phong told police, either over the phone or in person, that an 11 United States District Court Northern District of California 9 unidentified group of people associated with WCW were holding his car wrongfully, that they 12 were preventing him from leaving, that he was afraid for his safety and that one of them had 13 threatened to hurt him.54 When a citizen witness claims to have been the victim of a crime, 14 probable cause may be “established if the victim provides ‘facts sufficiently detailed to cause a 15 reasonable person to believe a crime had been committed and the named suspect was the 16 perpetrator.’”55 In other words, “the statements of a victim, standing alone, may supply probable 17 18 50 Norse v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (quoting Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per curiam)). 19 51 20 George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992) (citing Cal. Penal Code § 847(b)(1)). 21 52 22 23 24 Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007) (quoting United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005)). 53 Norse, 629 F.3d at 978 (citing Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009)). 54 25 55 26 27 28 See Docket No. 19 at ¶¶ 38-40, 47-48. Peng v. Mei Chin Penghu, 335 F.3d 970, 978 (9th Cir. 2003) (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991)). But cf. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (citing Fuller, 950 F.2d at 1444) (“In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but 7 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 cause so long as the victim provides sufficiently detailed facts regarding the incident.”56 Here, 2 Phong’s 911 calls included a number of details that would suggest that a crime had occurred, and 3 the officers had a “lengthy conversation” with Phong after they arrived.57 Moreover, what the 4 officers could see corroborated several aspects of Phong’s story—he would have no reason to stay 5 at WCW well after the shop had closed if he could leave freely, and there indeed was another car 6 in the driveway.58 And though the officers were required to release Plaintiffs from arrest if and 7 when the probable cause to arrest them dissipated,59 Plaintiffs do not allege or argue that any 8 dissipation occurred before the arrests themselves.60 It is not plausible that, as Plaintiffs argue, probable cause attached only to Plaintiffs’ 9 colleagues and not to Plaintiffs themselves. WCW is a family business in which Plaintiffs are 11 United States District Court Northern District of California 10 deeply involved.61 Plaintiffs were the ones who installed Phong’s rims, they were holding 12 Phong’s vehicle and they were parties to the business disagreement that arose with Phong.62 13 Although “‘mere propinquity’ to criminal activity alone does not support probable cause, . . . here 14 the attendant facts and circumstances support[ed] a fair probability that [Plaintiffs] were linked” to 15 the alleged crime.63 Considering “the totality of the circumstances,”64 the officers had probable 16 17 18 must independently investigate the basis of the witness’ knowledge or interview other witnesses.”). 56 19 Pinckney v. City of San Jose, Case No. 08-cv-04485, 2010 WL 94266, at *4 (N.D. Cal. Jan. 6, 2010) (citing Fuller, 950 F.2d at 1444; Peng, 335 F.3d at 978). 20 57 Docket No. 19 at ¶¶ 38-40, 43. 21 58 See id. at ¶¶ 43-45, 48-49. 59 See United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005). 60 See Docket No. 26 at 13 (citing Docket No. 19 at ¶¶ 72, 73, 106, 110-111). 61 Docket No. 19 at ¶¶ 25-26. 62 See id. at ¶¶ 31, 34-36. 22 23 24 25 26 63 27 28 United States v. Buckner, 179 F.3d 834, 838-39 (9th Cir. 1999) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)); cf. Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999) (authorizing searches 8 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 cause to arrest Plaintiffs. Those arrests did not violate the Fourth Amendment. Second, Plaintiffs’ only argument in opposition to Defendants’ motion to dismiss the claim 2 3 that the officers unlawfully seized Plaintiffs’ cell phones is that the arrests themselves were 4 improper.65 Because, as above, the arrests were lawful, so were the seizures of the cell phones. 5 Plaintiffs’ third cause of action therefore is dismissed as well. Third, Plaintiffs have failed to state a claim for illegal seizure of property at WCW.66 To 6 7 start with, the claim is too vague to survive under Twombly and Iqbal. Plaintiffs allege that 8 Defendants “seized personal property from Plaintiffs’ business” and “removed property from 9 WCW control,”67 but these are “legal conclusions” that “do not suffice”68 without an explanation of exactly what that property was. To the extent that Plaintiffs now indicate that they were 11 United States District Court Northern District of California 10 referring to the officers’ demand that WCW employees return Phong’s car,69 Defendants are 12 correct that Plaintiffs had no possessory interest in the car itself. Plaintiffs cite a California statute 13 that gives anyone who services an automobile a lien on the vehicle until the owner pays for the 14 work, but such a lien arises only once “a written statement of charges for completed work or 15 services is presented to the registered owner.”70 Plaintiffs have alleged that Phong did not own the 16 car,71 while they have not alleged that they presented a written statement of charges. No 17 18 of car passengers because they “will often be engaged in a common enterprise with the driver”). 19 64 20 21 22 23 John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2007) (quoting United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)). 65 See Docket No. 26 at 16-17. 66 As Plaintiffs point out, other than a heading, Defendants’ motion made no mention of the allegedly illegal search of WCW, as opposed to the seizures. See Docket No. 20 at 12-13. 67 Docket No. 19 at ¶ 125. 68 Iqbal, 556 U.S. at 678. 69 See Docket No. 26 at 17 (citing Docket No. 19 at ¶¶ 80, 89-90). 70 Cal. Civ. Code § 3068(a). 24 25 26 27 28 9 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 mechanic’s lien on the car could have arisen under these circumstances. And if Plaintiffs believe 2 that Defendants seized other property from WCW, they must say so in their complaint. Fourth, Defendants contend that Plaintiffs have not shown that the officers arrested them 4 in retaliation for expression protected by the First Amendment. As a threshold matter, the parties 5 disagree over whether Plaintiffs’ recordings constituted First Amendment activity. On that point, 6 the weight of authority favors Plaintiffs. The Ninth Circuit has found that the First Amendment 7 protects the “right to film matters of public interest.”72 Accordingly, several courts in this circuit 8 have recognized a First Amendment right to record police officers conducting their official 9 duties.73 Defendants argue that this case is different because Plaintiffs were gathering evidence of 10 their own arrests, but the acts at issue were Plaintiffs’ recording the arrests of Omar and Harroon.74 11 United States District Court Northern District of California 3 Plaintiffs had a First Amendment right to do so. Next, to establish a claim of First Amendment retaliation, Plaintiffs must prove (1) “that 12 13 the officers’ conduct would chill a person of ordinary firmness from future First Amendment 14 activity” and (2) “that the officers’ desire to chill [Plaintiffs’] speech was a but-for cause of their 15 16 71 17 See Docket No. 19 at ¶ 30. 72 18 19 20 21 22 Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); accord ACLU of Ill. v. Alvarez, 679 F.3d 583, 597 (7th Cir. 2012) (finding a First Amendment interest in “nonconsensual audio recording of public officials performing their official duties in public”); Glik v. Cunniffe, 655 F.3d 78, 83 (1st Cir. 2011) (“[T]he First Amendment protects the filming of government officials in public spaces.”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”). 73 24 See Barich v. City of Cotati, Case No. 15-cv-00350, 2015 WL 6157488, at *1 (N.D. Cal. Oct. 20, 2015); Crago v. Leonard, Case No. 13-cv-00531, 2014 WL 3849954, at *4 (E.D. Cal. Aug. 5, 2014); Veth Mam v. City of Fullerton, Case No. 11-cv-01242, at *5-6 (S.D. Cal. Mar. 12, 2013); see also Adkins v. Limtiaco, 537 F. App’x 721, 722 (9th Cir. 2013). 25 74 23 26 27 28 See Docket No. 19 at ¶¶ 53, 56-57. For this reason, Defendants’ citation to Higginbotham v. City of New York is inapposite—when the officers were arresting Omar and Harroon, Plaintiffs were not “the subject of the police activity” in question, and they were not “imped[ing] police officers in the performance of their duties.” 105 F. Supp. 3d 369, 379-80 (S.D.N.Y. 2015). 10 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 allegedly unlawful conduct.”75 An arrest satisfies the first prong.76 For the second prong, whether 2 the officers had probable cause is not dispositive; rather, the key question is whether the officers 3 would not have arrested Plaintiffs if not for their First Amendment activity, even if they can justify 4 the arrest with probable cause.77 “Intent to inhibit speech . . . can be demonstrated either through 5 direct or circumstantial evidence.”78 The timing of an allegedly retaliatory action can serve as 6 circumstantial evidence of a retaliatory intent for the action.79 7 Here, Plaintiffs have alleged enough facts that, if proven, could provide circumstantial 8 evidence that the officers arrested Plaintiffs for recording them. It is true that, as the court has 9 found above, the officers had probable cause to arrest Plaintiffs. But Plaintiffs allege—with photographic proof—that the officers intentionally interfered with the video recording, indicating 11 United States District Court Northern District of California 10 at least that they were unhappy with Plaintiffs for recording the arrests.80 And when Koenig 12 approached Badar, Koenig’s first move was to try to grab Badar’s phone.81 Moreover, no officer 13 paid any attention to Plaintiffs until they began recording.82 All of these alleged facts suggest, at 14 least, that the officers arrested Plaintiffs because of their First Amendment activity, regardless of 15 probable cause. 16 17 75 Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (citations omitted). 18 76 See id. at 1193-94 (citations omitted). 19 77 20 21 22 23 24 See id. at 1194-95 & n.2; Skoog v. County of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (“[A] plaintiff need not plead the absence of probable cause in order to state a claim for retaliation.”). 78 Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300-01 (9th Cir. 1999) (citing Magana v. Commonwealth of N. Marianas Islands, 107 F.3d 1436, 1448 (9th Cir. 1997)). 79 See Lacey v. Maricopa County, 693 F.3d 896, 917 (9th Cir. 2012) (citing Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003)). 80 See Docket No. 19 at ¶ 58. 81 See id. at ¶ 60. 82 See id. at ¶¶ 58-60, 68-70. 25 26 27 28 11 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT Qualified immunity does not protect Defendants from liability. A qualified immunity 1 2 defense is available to public officials “if their actions did not violate ‘clearly established statutory 3 or constitutional rights of which a reasonable person would have known.’”83 As above, Plaintiffs’ 4 right to film the arrests of Omar and Harroon was well-established when the officers arrested 5 Plaintiffs.84 And although Defendants are correct that the Supreme Court “has never recognized a 6 First Amendment right to be free from a retaliatory arrest that is supported by probable cause,”85 7 the Ninth Circuit certainly has.86 Even if the officers had probable cause to arrest Plaintiffs, it was 8 well-established law in this circuit that they still could not do so in retaliation for their First 9 Amendment activity. That said, although Plaintiffs have brought their First Amendment claim against Koenig, 10 United States District Court Northern District of California 11 Nava and Ornelas, they have not explained how Nava or Ornelas can be liable. Nava shone his 12 flashlight at Plaintiffs’ phones, but he took no other action towards them and was not involved in 13 their arrests.87 And Ornelas only arrested Ahmad at Koenig’s behest; there is no indication that 14 she cared about or even noticed the fact that he was recording the incident.88 The claim is 15 dismissed as to Nava and Ornelas. Fifth, Defendants move to dismiss Plaintiffs’ claims under the Bane Act. That statute 16 17 prohibits interference “by threats, intimidation, or coercion . . . with the exercise or enjoyment by 18 any individual or individuals of rights secured by the Constitution or laws of the United States, or 19 20 21 22 83 Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 84 See Barich, 2015 WL 6157488, at *1. 85 Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). 86 See Ford, 706 F.3d at 1194-95 & n.2; Skoog, 469 F.3d at 1232. 87 See Docket No. 19 at ¶¶ 88 See Docket No. 19 at ¶¶ 68-70. 23 24 25 26 27 28 12 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 of the rights secured by the Constitution or laws of this state.”89 “The essence of a Bane Act claim 2 is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), 3 tried to do or did prevent the plaintiff from doing something he or she had the right to do under the 4 law or to force the plaintiff to do something that he or she was not required to do under the law.”90 5 A plaintiff therefore must show both “(1) intentional interference or attempted interference with a 6 state or federal legal or constitutional right, and (2) that the interference or attempted interference 7 was by threats, intimidation or coercion.”91 “[A] wrongful arrest or detention, without more, does 8 not satisfy both elements” of the Bane Act.92 But where “an arrest is unlawful and excessive force 9 is applied in making the arrest, there has been coercion ‘independent from the coercion inherent in the wrongful detention itself.’”93 And where officers intentionally use “deliberate and spiteful” 11 United States District Court Northern District of California 10 force in effecting a lawful arrest, the arrestee can bring a Bane Act claim “for deprivation of one’s 12 constitutional right to be free from excessive force.”94 Plaintiffs have stated a viable Bane Act claim only against Koenig and Wallace. Both of 13 14 these officers allegedly used excessive force against Plaintiffs, which constitutes coercion 15 independent of that inherent in their arrests. Moreover, Plaintiffs have alleged sufficiently that 16 Koenig instigated the arrests in retaliation for Plaintiffs’ exercise of their First Amendment rights. 17 But Plaintiffs have not shown that any of the other Defendants intentionally threatened, 18 19 89 20 90 21 22 23 Cal. Civ. Code § 52.1(a). Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947, 955-56 (2012) (quoting Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998)). 91 Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015) (citing Jones, 17 Cal. 4th at 334; Shoyoye, 203 Cal. App. 4th at 958). 92 24 Id. at 69 (citing Shoyoye, 217 Cal. App. 4th at 960). 93 25 Bender v. County of Los Angeles, 217 Cal. App. 4th 968, 978 (2013) (quoting Shoyoye, 203 Cal. App. 4th at 959). 26 94 27 28 Davis v. City of San Jose, 69 F. Supp. 3d 1001, 1008 (N.D. Cal. 2014); see also Rodriguez v. City of Modesto, Case No. 10-cv-01370, 2013 WL 6415620, at *13 (E.D. Cal. Dec. 9, 2013). 13 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 intimidated or coerced them in any way, except as justified by probable cause. 2 IV. Defendants’ motion to dismiss is GRANTED-IN-PART, as follows: 3 (1) Plaintiffs’ first cause of action, alleging First Amendment retaliation, is dismissed 4 as to Nava and Ornelas. 5 (2) Plaintiffs’ second cause of action, alleging false arrest, unlawful search and 6 7 excessive force, is dismissed except as to the allegations of unreasonable force. 8 (3) Plaintiffs’ third cause of action, alleging the illegal seizures of their cell phones, is dismissed in its entirety. 9 (4) Plaintiffs’ fourth cause of action, alleging an illegal search and seizure of WCW 10 property, is dismissed except as to the illegal search. United States District Court Northern District of California 11 12 (5) Plaintiffs’ sixth cause of action, for false arrest, is dismissed in its entirety. 13 (6) Plaintiffs’ seventh cause of action, under the Bane Act, is dismissed as to Nava, Ornelas, Tran and the City of San Jose. 14 Dismissal without leave to amend is only appropriate if it is clear that the complaint could 15 16 not be saved by amendment such as after a plaintiff’s “repeated failure to cure deficiencies by 17 amendments previously allowed.”95 Because the court has never before ruled on Plaintiffs’ 18 claims, it is not yet clear that further amendment would be futile. Leave to amend is GRANTED. 19 Plaintiffs shall file any amended complaint within 21 days. 20 SO ORDERED. 21 Dated: May 23, 2016 _________________________________ PAUL S. GREWAL United States Magistrate Judge 22 23 24 25 26 27 28 95 Eminence Capital, 316 F.3d at 1052 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 14 Case No. 15-cv-05298-PSG ORDER GRANTING-IN-PART MOTION TO DISMISS FIRST AMENDED COMPLAINT

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