Armstrong v. The City of San Jose et al

Filing 27

ORDER DENYING 15 DEFENDANTS' MOTION TO DISMISS. The hearing on the Motion to Dismiss set for 1/19/2017 is VACATED. Signed by Judge Edward J. Davila on 1/17/2017. (ejdlc2S, COURT STAFF) (Filed on 1/17/2017) Modified text on 1/17/2017 (amkS, COURT STAFF).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
DAVID ARMSTRONG,

Case No. 5:16-cv-02938-EJD

Plaintiff,
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS

v.
THE CITY OF SAN JOSE, et al.,

Re: Dkt. Nos. 15, 15-1

Defendants.

Plaintiff David Armstrong brings this action against the City of San Jose and several of its
police officers for civil rights violations under 42 U.S.C. § 1983. Before the Court is Defendants’
motion to dismiss under Fed. R. Civ. P. 12(b)(6). Defendants’ motion will be DENIED.
I. BACKGROUND
Armstrong runs MediMarts, a medical cannabis collective in San Jose (the “City”).
Complaint (“Compl.”) ¶ 11, Dkt. No. 1. In 2010, the City enacted a sales tax on medical cannabis,
which Armstrong refused to pay. Id. ¶ 12–14. In 2014, the City sued Armstrong and MediMarts
for nonpayment. Id. ¶ 15. Armstrong cross-complained for constitutional violations and later
brought a separate suit challenging the tax’s validity. 1 Id. When asked about Armstrong’s
challenge, the City’s mayor commented that his message to Armstrong was: “Pack up. It’s time to
move on—and pay up on your way out.” Id. ¶ 16.

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Under Fed. R. Evid. 201, the Court GRANTS the City’s Request for Judicial Notice, Dkt. No.
15-1, comprising papers filed in Armstrong’s other litigation against the City (Exs. 1–3) and
excerpts of the San Jose City Charter (Ex. 4).
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On March 9, 2015, one of Armstrong’s neighbors called the police to report that a pickup

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truck was driving recklessly. Id. ¶ 23. The police told the caller that they would not take action or

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open an incident report. Id. On April 17, another one of Armstrong’s neighbors discovered that the

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same truck was registered to MediMarts. Id. ¶ 24. That neighbor reported to police (and to an

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unknown city councilmember) that a truck registered to MediMarts was driving recklessly. Id.
At around 6:00 a.m. on May 14, five police officers—in one unmarked car, three marked

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cars, and one helicopter—began surveilling Armstrong’s residence in Morgan Hill (which is

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beyond the San Jose city limits). Id. ¶ 26–27. After about an hour and a half, Armstrong left to

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drive to San Jose. Id. An officer followed him in an unmarked car for about seven miles and saw

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him commit several traffic violations. Id. ¶ 28–29. The officer stopped him and issued a citation

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United States District Court
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for misdemeanor reckless driving. Id. ¶ 29–30. Three other marked police cars joined the stop. Id.

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¶ 29.
On March 3, 2016, the same officer (with thirteen others) “again conducted a traffic

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enforcement sting” targeting Armstrong. Id. ¶ 33. After pulling him over, an officer pushed him

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against a vehicle “with such force that it dented the body panel. Mr. Armstrong sustained injuries

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to his shoulder, arm, and knee, for which he required medical treatment.” Id. ¶ 34. The officer

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arrested him for misdemeanor reckless driving. Id. ¶ 36. Police also notified the DMV that

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Armstrong’s license should be suspended under California Vehicle Code § 21061.2

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II. LEGAL STANDARD

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A. 12(b)(6) Motion to Dismiss

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Dismissal under Fed. R. Civ. P. 12(b)(6) “is proper only where there is no cognizable legal

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theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001). The complaint “must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556

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This section allows an officer to issue a notice of reexamination when a driver exhibits “serious
physical injury or illness or mental impairment or disorientation” that “presents a clear or potential
danger or risk of injury to the person or others if that person is permitted to resume operation of a
motor vehicle.”
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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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B. Section 1983

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42 U.S.C. § 1983 provides a tort remedy against “[e]very person who, under color of [state

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law] subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of

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any rights, privileges, or immunities secured by the Constitution and laws.”

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III. DISCUSSION

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Armstrong claims that Defendants (1) selectively enforced criminal laws against him in

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violation of the Equal Protection Clause of the Fourteenth Amendment (Compl. ¶¶ 39–47); (2)

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used excessive force during the March 3, 2016 traffic stop in violation of the Fourth Amendment
(Compl. ¶¶ 48–55); and (3) selectively enforced criminal laws against him in retaliation for

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United States District Court
Northern District of California

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exercising his First Amendment rights to speak freely and to petition the courts for redress of

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grievances (Compl. ¶¶ 56–63).

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A. Fourteenth Amendment

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Armstrong argues that the City deprived him of equal protection of the laws by selectively

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enforcing California Vehicle Code § 23103(a)3 against him. Compl. ¶¶ 39–47.
To prevail on an equal protection claim based on selective enforcement, “a plaintiff must

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demonstrate that enforcement had a discriminatory effect and the police were motivated by a

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discriminatory purpose.” Rosenbaum v. City & Cty. of S.F., 484 F.3d 1142, 1152 (9th Cir. 2007)

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(citing Wayte v. United States, 470 U.S. 598, 608 (1985)). “Enforcement may be shown through a

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variety of actual or threatened arrests, searches and temporary seizures, citations, and other

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coercive conduct by the police.” Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012). The

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plaintiff “must show that similarly situated individuals . . . were not prosecuted.” United States v.

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Armstrong, 517 U.S. 456, 465 (1996). The U.S. Supreme Court has “recognized successful equal

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protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been

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intentionally treated differently from others similarly situated and that there is no rational basis for

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“A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of
persons or property is guilty of reckless driving.”
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the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The City argues that Armstrong “does not identify any similarly-situated class of persons
or control group, let alone facts as to how he is similarly situated to such a group and how

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Defendants treated him differently.” Defs.’ Mot. to Dismiss (“MTD”) at 7, Dkt. No. 15. But

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Armstrong alleges that during the first six months of 2016, when he was first stopped and cited,

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the City received more than 3,000 emergency calls reporting reckless driving. Compl. ¶ 21. The

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only report that led to an arrest or citation was the one involving Armstrong, and only after he was

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identified as the vehicle’s owner. Id. He further alleges that in March 2016, when fourteen officers

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orchestrated the sting that led to Armstrong’s arrest, the City’s police department announced that it

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was understaffed at “crisis levels.” Id. ¶ 22. According to Armstrong, the City selectively enforced

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traffic laws against him “as a way to bully him because of his alleged failure to pay the local

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[cannabis] tax and because of the continued exercise of his legal rights in court.” Id. ¶ 10.

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Armstrong has stated a claim for an equal protection violation based on the City’s selective

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enforcement of traffic laws: the “similarly situated individuals” are the other reckless drivers that

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the City decided not to pursue, and the “discriminatory purpose” is the City’s intent to retaliate

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against Armstrong for his challenge to the cannabis tax.

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The City cites several California cases for the proposition that “an equal protection

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violation does not arise whenever officials ‘prosecute one and not [another] for the same act.’ ”

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MTD at 7–8 (quoting Murgia v. Mun. Ct., 15 Cal. 3d 286, 297 (1975)). But Armstrong’s claim

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goes further: he argues that the City prosecuted him, and not others, because it intended to single

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him out. Discriminatory enforcement is actionable. See, e.g., Murgia, 15 Cal. 3d at 297 (“the equal

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protection guarantee . . . prohibits prosecuting officials from purposefully and intentionally

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singling out individuals for disparate treatment on an invidiously discriminatory basis”).

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B. Fourth Amendment

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1. Excessive Force

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Armstrong argues that the officer’s use of force during his arrest was an unreasonable

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seizure of his person. Compl. ¶¶ 48–55. An officer’s use of force during an arrest violates the

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Fourth Amendment if it was not objectively reasonable under the circumstances. Graham v.

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Connor, 490 U.S. 386, 396–97 (1989). Here, the parties disagree only about the amount of force

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that the officer used. The City calls it “a mere push” (MTD at 11; Reply at 4); Armstrong calls it a

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push “with such force that it dented the body panel” of a vehicle, causing “injuries to his shoulder,

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arm, and knee, for which he required medical treatment” (Compl. ¶ 34). On a motion to dismiss,

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the Court accepts the plaintiff’s facts as true, as long as they are plausible. Twombly, 550 U.S. at

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570. Armstrong has stated a claim for a Fourth Amendment violation based on the officer’s use of

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force.

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2. Qualified Immunity
The City argues that the officer who arrested Armstrong is immune from personal liability.

United States District Court
Northern District of California

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MTD at 11–13. Qualified immunity shields government officials from liability “unless a plaintiff

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pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the

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right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563

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U.S. 731, 735 (2011). Armstrong has met both requirements. First, he has pled facts showing that

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the officer’s use of force violated his Fourth Amendment right to be free from unreasonable

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seizure. Specifically, he alleges that the officer pushed him into a vehicle “with such force that it

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dented the body panel,” and that he suffered injuries that required medical attention. Compl. ¶¶

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34–35. He alleges that the level of force the officer used was not justified under the circumstances

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of the traffic stop. Id. Second, the Court agrees that the right to be free from excessive force was

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clearly established when the arrest occurred. Compl. ¶ 50 (alleging that the officer “acted under

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color of law to deprive Plaintiff of the clearly-established right to be free from the unreasonable

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seizure of his person”); Pl.’s Opp’n to Mot. to Dismiss at 8 (“there can be no question that the

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right to be free from excessive force during a misdemeanor traffic stop was clearly established in

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2015”). These facts, taken as true, establish that the officer is not entitled to qualified immunity.

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See Grant v. City of Long Beach, 315 F.3d 1081, 1088–89 (9th Cir. 2002) (on a motion to dismiss,

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the court must accept allegations in the complaint as true in determining whether qualified

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immunity applies).

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C. First Amendment

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Armstrong argues that City selectively enforced California Vehicle Code § 23103(a)

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against him in retaliation for exercising his rights to speak freely and to petition the courts for

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redress of grievances. Compl. ¶¶ 56–63.

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To establish a claim of retaliation in violation of the First Amendment based on police

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conduct, a plaintiff must show (1) “that the officers’ conduct would chill a person of ordinary

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firmness from future First Amendment activity” and (2) “that the officers’ desire to chill his

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speech was a but-for cause of their allegedly unlawful conduct.” Ford v. City of Yakima, 706 F.3d

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1188, 1193 (9th Cir. 2013).

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Armstrong has met both requirements. First, his arrest had a chilling effect. Id. at 1193

United States District Court
Northern District of California

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(“This Court has recognized that a retaliatory police action such as an arrest or search and seizure

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would chill a person of ordinary firmness from engaging in future First Amendment activity.”).

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Whether there was probable cause for his arrest is irrelevant here. Skoog v. Cty. of Clackamas,

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469 F.3d 1221, 1235 (9th Cir. 2006) (“a right exists to be free of police action for which retaliation

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is a but-for cause even if probable cause exists for that action”). Second, he has pled facts showing

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that retaliation was the but-for cause of the arrest. See, e.g., Compl. ¶¶ 16 (the City’s mayor

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expressed animosity towards Armstrong), 21 (out of more than 3,000 reports of reckless driving,

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the only report that resulted in an arrest or citation was the one involving Armstrong), 23–27

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(police refused to act on a reckless driving complaint until they learned that the driver was

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Armstrong).

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D. Punitive Damages

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The City argues that Armstrong cannot seek punitive damages because he has not shown

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that Defendants intentionally or recklessly violated his constitutional rights. MTD at 17; Smith v.

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Wade, 461 U.S. 30, 56 (1983) (“a jury may be permitted to assess punitive damages in an action

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under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or

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when it involves reckless or callous indifference to the federally protected rights of others”). The

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Court disagrees. Armstrong has pled facts sufficient to allege that the City and its police officers

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intentionally committed the violations discussed above. He alleges that the City bears personal

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animosity towards him because of their ongoing disputes, including Armstrong’s refusal to pay the

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cannabis tax and his challenges to the tax’s validity. Compl. ¶¶ 8–16. Armstrong further alleges

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that, despite a crisis of understaffing, the City and its police officers conducted two sting

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operations targeting him (the first involving four police cars and a helicopter, and the second

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involving fourteen officers). Id. ¶¶ 23–38. He alleges that, out of more than 3,000 reports of

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reckless driving, the only report that led to an arrest or citation was the one involving Armstrong.

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Id. ¶ 21. These facts, taken as true for the purposes of this motion, may show that Defendants

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intentionally violated Armstrong’s constitutional rights.
IV. CONCLUSION

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United States District Court
Northern District of California

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The City’s motion to dismiss is DENIED.

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IT IS SO ORDERED.
Dated: January 17, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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