Darraj et al v. San Diego, County of et al
Filing
34
ORDER Granting In Part and Denying In Part Defendants' 26 Motion for Summary Judgment. Final pretrial conference currently set for June 14, 2013. Signed by Judge Anthony J. Battaglia on 4/29/13. (cge)(jrd)
1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
SOUTHERN DISTRICT OF CALIFORNIA
11
12
13
14
15
16
17
18
19
MAHER DARRAJ, an individual;
and NADER DARRAJ, an individual,
)
)
)
Plaintiffs,
)
v.
)
)
COUNTY OF SAN DIEGO; JASON
)
TITUS, an individual; Jason Philpot, an )
individual; Stephen Walton, an
)
individual; and DOES ONE
)
THROUGH TWENTY-FIVE
)
)
Defendants.
)
)
Civil No.11cv1657 AJB (BGS)
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
(Doc. No. 26)
On July 26, 2011, Plaintiffs Maher Darraj (“Maher’) and Nader Darraj (“Nader”)
20
(collectively, “Plaintiffs”) filed the instant Complaint arising under 42 U.S.C. § 1983 and
21
California law. (Doc. No. 1.) The Complaint was filed against the County of San Diego
22
(“County”), Sheriff Deputy Jason Titus (“Deputy Titus”), Sheriff Deputy Jason Philpot
23
(“Deputy Philpot”), and Sheriff Deputy Stephen Walton (“Deputy Walton”) (collectively,
24
“Defendants”). (Id.) Plaintiffs filed a First Amended Complaint (“FAC”) as a matter of
25
right on December 6, 2011. (Doc. No. 5.) Presently before the Court is Defendants’
26
motion for summary judgment on Plaintiffs’ FAC. (Doc. No. 26.) Plaintiffs filed a
27
response in opposition on March 18, 2013, (Doc. No. 31), and Defendants filed a reply in
28
support on March 29, 2013, (Doc. No. 32).
1
11cv1657 AJB (BGS)
BACKGROUND
1
2
The instant action arises from an incident that occurred at Plaintiffs’ apartment
3
complex on the evening of July 28, 2010, wherein Plaintiffs were arrested by Deputy
4
Titus, Deputy Philpot, and Deputy Walton. The parties each provided their version of the
5
facts, each supported by declarations and deposition testimony. However, these versions
6
of the facts each provided a radically different portrayal of the events that transpired on
7
the evening of July 28, 2010. Therefore, the Court outlines two versions of the facts, one
8
presented by Plaintiffs and the other presented by Defendants.
9
I.
Plaintiffs’ Rendition of the Facts
10
Plaintiffs Maher and Nader reside in the same apartment unit in a complex located
11
in El Cajon, California. (Doc. No. 31, Ex. 1, Maher Decl. ¶ 2; Doc. No. 31, Ex. 2, Nader
12
Decl. ¶ 4.) Plaintiffs’ apartment is located on the ground floor of a six-unit complex, and
13
is adjacent to the unit occupied by their older brother Doory Darraj (“Doory”) and his
14
wife and three small children. (Id.) Just outside Plaintiffs’ apartment is a grassy area
15
with a picnic table located in the center. (Id.)
16
On night in question, Wednesday, July 28, 2010, Maher, Nader, Doory, and no
17
more than five or six of Plaintiffs’ friends were all gathered around the picnic table
18
outside Plaintiffs’ apartment. (Doc. No. 5 ¶ 9; Doc. No. 31, Ex. 1, Maher Decl. ¶ 9; Doc.
19
No. 31, Ex. 4, Nader Decl. ¶¶ 4, 13.) Hazam Omar (“Hazam”), a friend of Plaintiffs, was
20
also present, but was inside Plaintiffs’ apartment when the incident began. (Doc. No. 31,
21
Ex. 1, Maher Decl. ¶ 3; Doc. No. 31, Ex. 4, Nader Decl. ¶ 4.) At approximately 11:00
22
p.m., an hour after Hazam first arrived at Plaintiffs’ apartment, Plaintiffs allege that
23
Hazam’s wife, Esmeralda Henry (“Ms. Henry”), pulled into the driveway of Plaintiffs’
24
apartment complex. (Doc. No. 31, Ex. 1, Maher Decl. ¶ 4; Doc. No. 31, Ex. 4, Nader
25
Decl. ¶ 5)
26
After Ms. Henry pulled into the driveway, Maher saw Doory walk up to Ms.
27
Henry’s car. (Doc. No. 31, Ex. 2, Maher Decl. ¶ 4.) Maher then alleges that as Ms.
28
Henry and Doory were talking, Deputy Titus rushed up to Doory, grabbed him around the
2
11cv1657 AJB (BGS)
1
neck, began choking him using a carotid restraint, and then ultimately forced Doory to
2
the ground. (Doc. No. 31, Ex. 1, Maher Decl. ¶¶ 4, 5.) Maher further alleges that Doory
3
did not yell at Ms. Henry or otherwise lean his body into the car prior to any of Deputy
4
Titus’ actions, and that Deputy Titus did not warn or say anything to Doory before
5
attacking him. (Id.) Maher also alleges that he heard Ms. Henry tell Deputy Titus
6
multiple times during the altercation, “That’s not Hazam,” but that Deputy Titus contin-
7
ued to restrain Doory, ultimately bringing Doory to the ground.1 (Id.)
8
Maher then alleges that he took a few steps towards Deputy Titus and stated, “This
9
is not Hazam. This is my brother. It’s not Hazam.” (Id. at ¶ 7.) Maher alleges that
10
Deputy Titus thereafter told him to sit down on a nearby wooden curb, and after he
11
complied, Deputy Titus walked over to him and hit him in the nose with something very
12
heavy. (Id. at ¶ 8.) Maher alleges the blow to his face knocked him unconsciousness for
13
a few seconds, and when he regained consciousness, he was lying face down on the
14
driveway with one of the deputies’ knees in his back. (Id.)
15
Nader contends he witnessed the altercation between Deputy Titus and Maher.
16
(Doc. No. 31, Ex. 4, Nader Decl.) Nader alleges that he saw Maher move from the picnic
17
table to where Doory and Deputy Titus were located. (Doc. No. 31, Ex. 4, Nader Decl. ¶
18
7; Doc. No. 31, Ex. 5, Nader Depo. at 34:12-21.) Nader then alleges he saw Deputy Titus
19
leave Doory and walk a few steps toward Maher, wherein Deputy Titus hit Maher in the
20
face with what appeared to be a flashlight or a baton. (Doc. No. 31, Ex. 4, Nader Decl. ¶
21
7.) Nader alleges he did not make any movements or verbalize any comments to any of
22
23
24
25
1
Nader did not see Doory approach Ms. Henry’s vehicle, and first witnessed any
contact between Deputy Titus and Doory when he saw Deputy Titus choking Doory.
(Doc. No. 31, Ex. 4, Nader Decl. ¶¶ 5, 6.) Nader made these observations while standing
27 in the doorway of his apartment. (Doc. No. 31, Ex. 4, Nader Decl. ¶¶ 5, 6; Doc. No. 31,
Ex. 5, Nader Depo. at 29:22-25, 30:23-31:11; 32:16-25.) Nader further alleges that
28 Doory was not fighting or otherwise resisting Deputy Titus in any way prior to or during
the altercation. (Doc. No. 31, Ex. 4, Nader Decl. ¶ 6.)
26
3
11cv1657 AJB (BGS)
1
the deputies until he saw Deputy Titus hit Maher in the face.2 (Doc. No. 31, Ex. 5, Nader
2
Depo at 35:3-8.)
3
After Nader saw Deputy Titus choke Doory and hit Maher in the face, Nader
4
alleges he told a second deputy present at the scene, “What happened with me and my
5
brother, mother fucker?”3 (Doc. No. 31, Ex. 4, Nader Decl. ¶ 9; Doc. No. 31, Ex. 5,
6
Nader Depo. at 36:1-11.) While making this statement, or soon thereafter, Nader alleges
7
he took a few steps forward, which was in the direction of the driveway, closer to the
8
second deputy and father away from Maher.4 (Doc. No. 31, Ex. 4, Nader Decl. ¶ 9; Doc.
9
No. 31, Ex. 5, Nader Depo. at 51:7-25.)
10
After Nader moved to this new location under the tree, Nader alleges the second
11
deputy fired a taser gun at him.5 (Doc. No. 31, Ex. 5, Nader Depo. at 57:8-23.) Nader
12
further alleges that this deputy did not say anything before deploying the taser, nor did
13
this deputy give Nader any warning that he was planning to deploy the taser.6 (Doc. No.
14
31, Ex. 4, Nader Decl. ¶ 10; Doc. No. 31, Ex. 5, Nader Depo. at 58:12-18.) After Nader
15
resumed consciousness, which he contends was approximately ten seconds later, Nader
16
alleges he was handcuffed by one of the deputies, placed face down on the ground, put in
17
18
2
Nader alleges that Maher never pushed, grabbed, or touched Deputy Titus prior to
Deputy Titus hitting Maher in the face. (Doc. No. 31, Ex. 4, Nader Decl. ¶ 8.) After
Deputy Titus struck Maher in the face, Nader testifies that Maher was bleeding, and it
20 appeared that Maher was injured and in severe pain. (Doc. No. 31, Ex. 4, Nader Decl. ¶
7.)
19
21
3
This statement was made after Ms. Henry exited her vehicle and after Nader
witnessed the second Deputy “spray” Nader’s sister-in-law and Daniella (the sister-inlaw’s daughter) with an un-identified substance. (Doc. No. 31, Ex. 5, Nader Depo. at
23 52:8-53:9.) This substance was later identified to be pepper spray.
22
24
25
4
Even at this new location, Nader alleges he was still a “safe distance from the
deputies.” (Doc. No. 31, Ex. 4, Nader Decl. ¶ 9.)
5
Nader’s deposition testimony indicates that the same deputy who used the pepper
spray on his sister-in-law and Daniella also fired the taser gun at him. (Doc. No. 31, Ex.
5 at 57:8-23.) However, Nader’s declaration states that Deputy Titus struck him with the
27 taser gun. (Doc. No. 31, Ex. 4, Nader Decl. ¶ 10.)
26
28
6
When the deputy deployed the taser, Nader alleges he was approximately eight to
ten feet from the deputy. (Doc. No. 31, Ex. 5, Nader Depo. at 4:17.)
4
11cv1657 AJB (BGS)
1
the backseat of the police car, and then taken to jail for booking. (Doc. No. 31, Ex. 5,
2
Nader Depo. at 62:1-6, 63:3-6.)
After the incident at Plaintiffs’ apartment, Plaintiffs were taken to jail and booked
3
4
on two separate felony charges: (1) violation of Penal Code § 405(a), lynching; and (2)
5
violation of Penal Code § 69, resisting an officer by force and violence. (Doc. No. 31 at
6
4:16-20.) On December 12, 2010, a two-day preliminary hearing was held in San Diego
7
Superior Court before Judge Thompson. (Doc. No. 31, Ex. 9.) At the conclusion of the
8
preliminary hearing, Judge Thompson found that there was insufficient facts to find that
9
the crimes had been committed. (Id.) Accordingly, all criminal charges against Plaintiffs
10
were dismissed. (Id. at 331:12-16.)
11
II.
12
Defendants’ Rendition of the Facts
Defendants present the following facts regarding the incident in question. On July
13
28, 2010, Deputy Titus received a radio call dispatching him to contact Ms. Henry, who
14
had called 9-1-1 earlier that evening to report a domestic violence incident. (Doc. No. 26,
15
Ex. A, Titus Depo. at 40-43.) After receiving the call, Deputy Titus met Ms. Henry in the
16
parking lot of a convenience store (7-Eleven), wherein Ms. Henry informed him that she
17
had a valid restraining order against Hazam (her husband), and that Hazam had violated
18
the restraining order earlier that evening when he coaxed her out of her apartment and
19
beat her. (Id. at 43:4-44:7, 52:3-18.) Deputy Titus alleges that Ms. Henry was tearful,
20
shaken, and had visible injuries that she attributed to the recent and prior physical abuse
21
inflicted by Hazam. (Id. at 44:9-19.) Ms. Henry then indicated that she could take
22
Deputy Titus to Hazam’s location, but could not give Deputy Titus the address of the
23
location because she did not know it. (Id. at 55:5-10, 58:1-13.) Therefore, Deputy Titus
24
instructed Ms. Henry to drive to the location, park her car on the street, and point Deputy
25
Titus in the direction of the residence. (Id.) Deputy Titus asked Deputy Walton and
26
Deputy Philpot to accompany him to the location to provide additional security and a law
27
enforcement presence. (Id. at 57:19-23.)
28
5
11cv1657 AJB (BGS)
1
After Ms. Henry pulled into the driveway of Plaintiffs’ apartment, Deputy Titus,
2
Deputy Philpot, and Deputy Walton parked their cars and walked in the direction of the
3
driveway. (Id. at 74:24-75:1; 78:2-5.) While walking towards the driveway, Deputy
4
Titus alleges that he heard someone yelling in a foreign language, and saw a group of at
5
least six men standing in the vicinity of the grassy area in front of Plaintiffs’ apartment.
6
(Id. at 78:6-9, 78:12-14.) Deputy Titus also alleges that he saw a man start walking
7
towards Ms. Henry’s car and heard yelling. (Id. at 78:9-11.) Upon hearing yelling,
8
Deputy Titus alleges that he ran around a bush, looked down the driveway in the direc-
9
tion of Ms. Henry’s car, and when the car came into view, saw a man with his upper torso
10
11
leaned into the car. (Id. at 78:20-79:25, 81:5-6, 81:11-13.)
After viewing the unidentified man (who was later identified as Doory) lean into
12
Ms. Henry’s car, Deputy Titus alleges that he ran up to the vehicle and began giving
13
verbal instructions to Doory to “Step away from the car,” “Move away from the car,” and
14
“Sit down on the curb line.” (Id. at 85:14-22.) At that point, Deputy Titus alleges that
15
Doory removed his upper torso from the inside of the car, brought his hands up, began
16
waving his hands around, and starting saying, “What? I did nothing to her.” (Id. at
17
85:24-86:4.) Deputy Titus then alleges that Doory began walking backwards towards the
18
group of men located on the grassy area. (Id.) After Doory failed to follow his instruc-
19
tions and sit on the curb, Deputy Titus alleges that he instructed Doory to “Turn around
20
away from me, bring your hands to the small of your back.” (Id. at 88:7-14.) Deputy
21
Titus then alleges that when he went to take hold of Doory’s hands to place handcuffs on
22
him, Doory yanked his hands up, roughly to shoulder height, and then swung his elbow
23
backwards towards Deputy Titus’ head. (Id. at 92:6-11.) After Doory swung his other
24
elbow in the direction of Deputy Titus, Deputy Titus attempted to block the strike with
25
his right hand and right forearm. (Id. at 93:16-17.) Deputy Titus then moved forward
26
and put all his body weight into Doory’s back, came over the top of Doory’s body, and
27
applied a carotid restraint with maximum pressure. (Id. at 16-20.) Doory then went
28
6
11cv1657 AJB (BGS)
1
unconsciousness and Deputy Titus held Doory up so he would not fall to the ground. (Id.
2
at 95:22-96:6.)
3
Deputy Titus then alleges that when the altercation with Doory first started, there
4
was a lot of yelling and screaming from the men located on the grassy area in front of
5
Plaintiffs’ apartment. (Id. at 96:25-97:2.) Deputy Titus alleges that these men started
6
running towards him, and that as Deputy Titus was dropping Doory to the ground so that
7
Deputy Titus could move away from these individuals, one of the individuals, who was
8
later identified as Maher, hit him in the upper right side of Deputy Titus’ body armor.7
9
(Id. at 97:14-21, 98:5-7.) As Deputy Titus spun around to see who had hit him, he saw
10
that Maher was already lying on the ground with Deputy Philpot on his back, who
11
appeared to be utilizing a carotid restraint to immobilize Maher. (Id. at 100:6-11.)
12
Prior to immobilizing Maher, Deputy Philpot alleges that Maher was yelling “Fuck
13
you. That’s my brother, fuck you,” and appeared to be visually upset. (Doc. No. 26, Ex.
14
C, Philpot Depo. at 71:9-20.) Specifically, Deputy Philpot alleges he could see the veins
15
bulging in Maher’s neck, could see that Maher’s face was red and sweating, and watched
16
Maher beat on his chest while spit was coming from his mouth because he was yelling.
17
(Id.) Deputy Philpot then alleges that he told Maher to sit down, in an attempt to create a
18
“reactionary gap” between himself and Maher.8 (Id. at 72:24-5.) Although Maher
19
initially sat down, Deputy Philpot alleges Maher stood right back up. (Id. at 74:1-3.)
20
Deputy Philpot then alleges that Maher began yelling towards the people behind him,
21
beckoning them to move forward in the direction of Deputy Titus, and that as a result,
22
Deputy Philpot put his hands up and said “get back” and “stay back” several times. (Id.
23
at 77:25-78.) Thereafter, in an attempt to detain Maher, Deputy Philpot alleges he
24
instructed Maher to turn around, but as he was trying to restrain him, Maher began
25
7
26
27
Deputy Titus also alleges that during this time there was constant movement by
the individuals present on the scene, and that he heard yelling and cussing in a foreign
language. (Id. at 98:14-21.)
8
28
Deputy Philpot alleges that he wanted to create a “reactionary gap” between
himself and Maher because he had already seen Maher “get physical” with Deputy Titus.
(Id. at 73:1-22.)
7
11cv1657 AJB (BGS)
1
pulling his arms out and away from his body. (Id. at 80:7-22.) Deputy Philpot then
2
alleges that Maher turned around to face Deputy Philpot, and because he thought Maher
3
was a threat, Deputy Philpot encircled Maher’s neck with his right arm and placed him in
4
a carotid restraint. (Id. at 81:2-14.) Because Maher resisted, Deputy Philpot fell back-
5
wards and twisted on top of him, such that Maher landed on the ground in a prone
6
position on his stomach. (Id. at 81:19-82:5.) As soon as Maher landed on his stomach,
7
Deputy Philpot alleges he instructed Maher to “stop resisting” and “place his hands
8
behind his back.” (Id. at 83:19-21.)
9
When Deputy Walton saw Deputy Philpot struggling with Maher, he ran over to
10
assist Deputy Philpot. (Doc. No. 26, Ex. B, Walton Depo. at 50:2-22.) Thereafter,
11
Deputy Walton placed his weight on Maher’s upper legs to control Maher because he was
12
trying to get up off the ground. (Id. at 54:18-24.) Deputy Walton then alleges that both
13
he and Deputy Philpot gave Maher repeated commands to place his hands between his
14
back so the deputies could handcuff him. (Id. at 56:17-21.) After Maher failed to
15
comply, Deputy Walton tried to pull Maher’s right arm up from underneath his body, and
16
because this proved unsuccessful, punched Maher once in the arms and then once in the
17
ribs.9 (Id. at 57:5-18, 58:16-18.) Because this technique was successful, Deputy Walton
18
was able to handcuff Maher. (Id. at 57:23-25.) When Deputy Walton placed the
19
handcuffs on Maher he did not know what Maher was under arrest for, but believed
20
Deputy Philpot was arresting Maher for some reason.10 (Id. at 59:21-60:4.)
21
Thereafter, Deputy Titus alleges that an individual in the crowd (later identified as
22
Nader) started cussing and screaming at Ms. Henry, who was now standing near Deputy
23
Titus outside of her vehicle. (Id. at 124:12-14.) As Nader began walking towards Ms.
24
9
25
26
Deputy Walton alleges he punched Maher in an effort to try to “get discomfort
enough so [Maher] wouldn’t be so tense in his arm, like a distraction blow, so [he] could
try to pull his arm out.” (Doc. No. 26, Ex. B, Walton Depo. at 57:20-23.)
10
At some point Deputy Philpot pulled out his capsicum spray, otherwise known as
pepper spray, and sprayed individuals in the crowd (later identified as Nader’s sister-inlaw and Daniella). (Doc. No. 26, Ex. C, Philpot Depo. at 91:7-10, 98:24-99:6.) Deputy
28 Philpot did not give a warning before using the pepper spray. (Id. at 98:9-23.) The Court
is not exactly sure when this event occurred.
27
8
11cv1657 AJB (BGS)
1
Henry, followed by other individuals in the group, Deputy Titus yelled at Ms. Henry
2
several times to “Get in your car. Lock the door right now.”11 (Id. at 124:14-19.) As he
3
did that, Deputy Titus unholstered his X26 department-issued taser, pointed it at Nader,
4
clicked the safety to off, and pointed it at Nader’s chest. (Id. at 124:21-25.) This emitted
5
a red “target” dot, during which time Deputy Titus informed Nadar, “Stop. Move away
6
from here.” (Id. at 124:23-125:2.) At this point Nader turned towards Deputy Titus,
7
looked down at the red dot, and began opening and closing his hands to make a fist and
8
rolling his chest forward.12 (Id. at 125:3-24.) After Nader raised his right clenched fist at
9
Deputy Titus, Nader yelled an explicative at Deputy Titus, and than lunged forward as
10
though he was going to strike him. (Id. at 126:15-127:1.) As a result, Deputy Titus
11
deployed the taser.13 (Id.) Before deploying the taser, Deputy Titus alleges that he
12
specifically told Nadar, “Move back now or you will get tased.” (Id. at 127:8-14.)
13
Following the incident, Hazam, Maher, and Nader were all taken into custody.
14
(Doc. No. 26 at 7:15.) Defendants allege that although requested, witnesses present at
15
Plaintiffs’ apartment complex refused to provide any statements or identify themselves to
16
the deputies at the scene. (Doc. No. 26, Ex. C, Philpot Depo. at 99:7-23; Doc. No. 26,
17
Ex. A, Titus Depo. at 114:17-22.) The criminal prosecution that followed was ultimately
18
unsuccessful, and all criminal charges against Plaintiffs were subsequently dropped.
19
(Doc. No. 26 at 7.)
20
21
22
23
24
25
26
27
11
Deputy Walton alleges that he witnessed Nader wave his arms and start to lunge
in the direction of Deputy Titus. (Doc. No. 26, Ex. B, Walton Depo. at 39:15-20.) To
protect Deputy Titus, Deputy Walton alleges he told Nader several times to “Stop” and
“Go Back inside,” but that Nader refused his commands. (Id. at 39:24-40:8.) After
Nader advanced toward Deputy Walton, Deputy Walton pulled out his taser and pointed
it at Nader’s chest. (Id. at 41:4-42:17.) After Deputy Walton gave Nader several
warning to “get back or he would be tased,” Nader complied, and sat down on a curb.
(Id. at 44:11-25.) Deputy Walton also alleges he ordered people to go back inside the
apartments, in a loud voice, at least five times. (Id. at 40: 21-25.)
12
During this exchange Deputy Titus alleges he was approximately eight to ten feet
from Nader. (Id. at 125:25-126:2.)
13
28
Deputy Walton and Deputy Philpot heard, but did not see, Deputy Titus deploy
the taser on Nader. (Doc. No. 26, Ex. B, Walton Depo. at 60:18-24; Doc. No. 26, Ex. C,
Philpot Depo. at 90:20-25.)
9
11cv1657 AJB (BGS)
DISCUSSION
1
The FAC alleges six causes: (1) a § 1983 claim against Deputies Titus, Philpot, and
2
3
Walton arising under the Fourth Amendment alleging the right to be free from: (a)
4
excessive force and (b) unlawful seizure/false arrest; (2) a § 1983 claim against the
5
County alleging unlawful policies, customs, or habits (the Monell Claim); (3) a state law
6
negligence claim against all Defendants; (4) a state law battery claim against all Defen-
7
dants; (5) a state law false arrest claim against all Defendants; and (6) a state law claim
8
alleging violation of California Civil Code § 52.1 against all Defendants. However, in
9
their opposition to Defendants’ motion for summary judgment, Plaintiffs stated that they
10
will not pursue their second cause of action arising under § 1983 (the Monell claim).
11
(Doc. No. 31: 6:25-26.) Accordingly, Defendants’ motion for summary judgment with
12
respect to the Monell Claim is granted.
13
I.
Plaintiffs’ Section 1983 Claims
14
Plaintiffs’ remaining § 1983 claims allege that the Deputy Titus, Deputy Philpot,
15
and Deputy Walton violated their Fourth Amendment rights by: (1) using unreasonable,
16
unjustified, and excessive force; and (2) by unlawfully seizing and arresting them.
17
Defendants move for summary judgment on the following grounds: (1) the deputies use
18
of force was objectively reasonable; and (2) the deputies had probable cause to seize and
19
arrest Plaintiffs in light of what transpired on the evening in question. Defendants also
20
contend that all of Plaintiffs’ § 1983 claims are barred because the deputies are entitled to
21
qualified immunity. Each argument is discussed in turn.
22
A.
Fourth Amendment Violation: Excessive Force and Qualified Immunity
23
The Supreme Court has explained that “[t]he doctrine of qualified immunity
24
protects government officials ‘from liability for civil damages insofar as their conduct
25
does not violate clearly established statutory or constitutional rights of which a reason-
26
able person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808,
27
815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
28
2727, 73 L.Ed.2d 396 (1982)). Qualified immunity shields an officer from liability even
10
11cv1657 AJB (BGS)
1
if his or her action resulted from “a mistake of law, a mistake of fact, or a mistake based
2
on mixed questions of law and fact.” Id. (internal quotations omitted). The purpose of
3
qualified immunity is to strike a balance between the competing “need to hold public
4
officials accountable when they exercise power irresponsibly and the need to shield
5
officials from harassment, distraction, and liability when they perform their duties
6
reasonably.” Id; see also Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009) (“The
7
purpose of this doctrine is to recognize that holding officials liable for reasonable
8
mistakes might unnecessarily paralyze their ability to make difficult decisions in chal-
9
lenging situations, thus disrupting the effective performance of their public duties.”).
10
Here, all three deputies have asserted the defense of qualified immunity with
11
respect to Plaintiffs’ § 1983 claims. In determining whether qualified immunity applies,
12
the Court engages in a two-step process. First, the Court considers whether, taking the
13
facts in the light most favorable to the Plaintiffs, the deputies conduct violated one or
14
more of the Plaintiffs’ constitutional rights. See Saucier v. Katz, 533 U.S. 194, 201, 121
15
S. Ct. 2151, 150 L. Ed. 2d 272 (2001). If the answer is no, the inquiry stops and the
16
defense of qualified immunity applies. Id. However, if the answer is yes, then the Court
17
must determine whether the constitutional right was so clearly established that a reason-
18
able officer would have understood that his conduct violated that right. See Robinson v.
19
York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier, 533 U.S. at 201). The Court has
20
discretion to consider these two factors in reverse order if appropriate. See Pearson, 555
21
U.S. at 236.
22
23
1.
Excessive Force: Clearly Established Constitutional Right
Plaintiffs’ first cause of action contends that the deputies violated their Fourth
24
Amendment right to be free from excessive force. Therefore, the Court first analyzes the
25
second prong of the Saucier test, which considers whether the Plaintiffs’ right to be free
26
from excessive force was clearly established on the date of the incident in question, July
27
28, 2010. Stated another way, the second prong of the Saucier test looks at whether the
28
deputies had “fair warning” that the force used on Plaintiffs was excessive. See Hope v.
11
11cv1657 AJB (BGS)
1
Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). When analyzing this
2
prong, the Supreme Court has made it clear that “officials can still be on notice that their
3
conduct violates established law even in novel factual circumstances.” Id. at 741. Thus,
4
if the inquiry shows that the deputies had no such warning, the deputies are entitled to
5
qualified immunity. However, if the inquiry shows that the deputies had such notice, the
6
Court must consider whether the Plaintiffs’ rights were violated by the deputies’ conduct.
7
Here, it is beyond dispute that prior to July 28, 2010 it was clearly established that
8
“force is only justified when there is a need for force.” Blankenhorn v. City of Orange,
9
485 F.3d 463, 481 (9th Cir. 2007) (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct.
10
1865, 104 L.Ed.2d 443 (1989)). For example, the application of a “carotid restraint” or
11
“chokehold” was found to pose a high and unpredictable risk of serious injury or death in
12
1983, City of L.A. v. Lyons, 461 U.S. 95, 116-17, 103 S. Ct. 1660, 75 L. Ed.2d 675 (1983)
13
(Marshall, J., dissenting), and even before 2007, numerous courts had made it clear that
14
using various types of force, including tasers, on a compliant, nonresistant suspect,
15
violated clearly established constitutional rights. See, e.g., LaLonde v. Cnty of Riverside,
16
204 F.3d 947, 961 (9th Cir. 2000) (finding use of pepper spray on compliant suspect
17
constitutes excessive force); Orem v. Rephann, 523 F.3d 442, 448-49 (4th Cir. 2008)
18
(finding use of taser on uncooperative arrestee while she was restrained constituted
19
excessive force and was clearly established at least by 2005); Bryan v. MacPherson, 630
20
F.3d 805, 810 (9th Cir. 2010) (“Our conclusion that use of the X26 taser and similar
21
devices in dart mode constitutes an “intermediate, significant level of force that must be
22
justified by the governmental interest involved,” Bryan, 608 F.3d at 622, falls well within
23
the national mainstream of the decisions which have examined the nature and quality of
24
the intrusion posed by tasers.”).
25
Although none of the cases noted above are factually identical to the case at bar,
26
logical reasoning follows that utilizing a carotid restraint or taser to subdue an individual,
27
hitting an individual in the face with a flashlight or baton, or punching an individual to
28
release his hands in order to handcuff him, could also be unreasonable. Thus, taking the
12
11cv1657 AJB (BGS)
1
facts in the light most favorable to the nonmoving party, here the Plaintiffs, a reasonable
2
deputy would have had “fair warning” that causing unnecessary pain to restrain and or
3
subdue a suspect, when the suspect is otherwise complaint, represents excessive force.
4
Accordingly, the Court finds the second prong of the Saucier test has been met.
5
6
2.
Excessive Force: Did the Deputies Violate Plaintiffs’ Constitutional Rights
An excessive force inquiry requires examination of the totality of the circum-
7
stances, Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007), and like most
8
other Fourth Amendment issues, are “evaluated for objective reasonableness based upon
9
the information the officers had when the conduct occurred, Saucier, 533 U.S. 194 at
10
207. Courts determine whether the use of force was objectively reasonable through “a
11
careful balancing of the nature and quality of the intrusion on the individual’s Fourth
12
Amendment interests against the countervailing governmental interests at stake.”
13
Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Under
14
Graham, these include: (1) the severity of the crime at issue; (2) whether the suspect
15
poses an immediate threat to the safety of the officers or others; and (3) whether the
16
suspect is actively resisting arrest or attempting to evade arrest by flight. See Bryan, 630
17
F.3d at 818 (quoting Graham, 490 U.S. at 396).
18
Under Ninth Circuit precedent, the most important of the Graham factors is the
19
threat posed to the officers and bystanders. See Chew v. Gates, 27 F.3d 1432, 1441 (9th
20
Cir. 1994). Additional factors can be considered, including the availability of less
21
intrusive methods than the force employed. See Bryan, 630 F.3d at 805. Reasonableness
22
should be judged “from the perspective of a reasonable officer on the scene, rather than
23
with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Additionally, the reason-
24
ableness “must embody allowance for the fact that police officers are often forced to
25
make split-second judgments—in circumstances that are tense, uncertain, and rapidly
26
evolving—about the amount of force that is necessary in a particular situation.” Id. at
27
396-97. Moreover, because summary judgment motions in excessive force actions
28
require courts to “slosh [their] way through the fact bound morass of reasonableness,”
13
11cv1657 AJB (BGS)
1
Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal
2
quotations omitted), the Ninth Circuit has stated that district courts should grant such
3
motions sparingly, Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (“Because such
4
balancing nearly always requires a jury to sift through disputed factual contentions, and
5
to draw inferences therefrom, we have held on many occasions that summary judgment or
6
judgment as a matter of law in excessive force cases should be granted sparingly.”);
7
Alexander v. Cnty. of L.A., 64 F.3d 1315, 1322 (9th Cir. 1995) (stating that in most
8
excessive force cases, the question of reasonableness “is normally a jury question”).
9
Here, Defendants allege that both Plaintiffs made threatening gestures, movements,
10
and/or made physical contact with the deputies, and that such actions by Plaintiffs
11
interfered with the deputies’ duties without any legal justification. Specifically, Defen-
12
dants contend that Maher was agitated, yelled vulgarities, advanced on the deputies, and
13
made physical contact with Deputy Titus, even though Deputy Titus was not addressing
14
Maher, but another male present at the scene. Defendants further maintain that when
15
Deputy Philpot attempted to get physical control of Maher to detain him, Maher pulled
16
away from Deputy Philpot and initiated a struggle between himself and Deputy Philpot.
17
With respect to Nader, Defendants argue that Nader became verbally abusive when
18
instructed by the deputies to back down, wherein Nader refused, and instead, advanced
19
on Deputy Titus in a manner that indicated an intent to attack. Therefore, Defendants
20
maintain that the deputies use of force was objectively reasonable, and that even if the
21
deputies were mistaken as to whether Plaintiffs’ conduct constituted a threat, qualified
22
immunity would nonetheless apply because their conduct was not clearly unlawful.
23
In response, Plaintiffs argue that this is a “classic” example of a factual dispute
24
necessitating determination by a jury, and therefore qualified immunity does not apply.
25
Based on their version of the facts, Plaintiffs allege that they did nothing violent,
26
threatening, assaultive, or resistive during the entire encounter with the deputies. To the
27
contrary, Plaintiffs contend Deputy Titus unlawfully assaulted Doory, and then, without
28
prior justification, hit Maher in the face with either a flashlight or a baton, after Maher
14
11cv1657 AJB (BGS)
1
had complied with Deputy Titus’ command to sit down. Further Plaintiffs allege that
2
Deputy Philpot admits to taking Maher down to the ground with a carotid restraint,
3
wherein Deputy Walton forced his knee into Maher’s back and punched him twice before
4
handcuffing him. Therefore, accordingly to Plaintiffs, none of this force was objectively
5
reasonable or justifiable, as Maher did not strike or even touch Deputy Titus, and did
6
nothing to Deputy Philpot or Deputy Walton. Moreover, even though Defendants proffer
7
the testimony of Dr. Wagner, who opines that Maher’s injuries are inconsistent with
8
being hit by a flashlight, Plaintiffs contend percipient eye witness testimony proves the
9
contrary, and nonetheless, this evidence only exemplifies one of the many factual
10
disputes in the case. Finally, with regard to Nader, Plaintiffs contend Nader did nothing
11
to justify Deputy Titus’ use of the taser because Nader was merely protesting the depu-
12
ties’ unlawful use of force on both Doory and Maher, and Nader never advanced or made
13
threatening gestures towards the deputies. Specifically, contrary to Defendants conten-
14
tions, Plaintiffs argue that Nader did not open and close his hands, clench his fists, or
15
advance on Deputy Titus.
16
Based on the above, and in consideration of the Graham factors, the Court finds
17
there are material factual disputes regarding the events that transpired on the date in
18
question, including the potential safety risk to the deputies and bystanders, and the actual
19
conduct of the deputies and the Plaintiffs—all of which must be left to a jury for final
20
determination. See Berry v. Baca, 379 F.3d 764, 769 (9th Cir. 2004) (“The City asserts
21
explanations and defenses, but they depend on disputed facts and inferences, proper for a
22
jury to consider but not effective to sustain summary judgment.”) Thus, although
23
Defendants contend that Plaintiffs’ version of the facts are not plausible, in light of the
24
fact that Maher alleges that the blow to his face rendered him unconscious, thereby
25
limiting his ability to describe the events that occurred thereafter, the Court is not
26
persuaded. To the contrary, Maher’s deposition testimony and corresponding declaration
27
notes that the blow to his face rendered him unconscious, but also notes that after he
28
regained consciousness, he was able to recall the events that followed, including the
15
11cv1657 AJB (BGS)
1
alleged excessive force employed by Deputy Walton and Deputy Philpot. See Anderson
2
v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505 (finding that credibility
3
determinations cannot be made on a motion for summary judgment, rather, the plaintiffs’
4
evidence must be believed and all inferences must be drawn in their favor).
5
Moreover, although Defendants argue that the use of force was reasonable because
6
the deputies feared for their safety, “[a] simple statement by an officer that he fears for
7
his safety or the safety of others is not enough; there must be objective factors to justify
8
such a concern.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). Thus,
9
because Plaintiffs and Defendants dispute whether the deputies gave warnings to
10
Plaintiffs before applying the relevant force at issue, and deputies should give warnings,
11
when feasible, if the use of force in effecting seizure may result in serious injury, the
12
Court cannot resolve such disputed facts in adjudicating Defendants’ instant motion. Id.
13
at 1284; see also Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997) (“Whenever
14
practicable, a warning must be given before deadly force is employed.”); see also Santos,
15
287 F.3d at 853 (finding summary judgment in excessive force cases should be granted
16
sparingly because it necessarily involves disputed facts). Accordingly, because the
17
parties’ respective arguments raise genuine disputes of material facts, and therefore a
18
reasonable jury could find that the Plaintiffs did not provoke the deputies and that the
19
deputies could have employed alternative and less forceful methods to control the scene,
20
Defendants’ motion for summary judgment on Plaintiffs’ § 1983 excessive force claims
21
are hereby DENIED, and Deputy Titus, Deputy Philpot, and Deputy Walton are not
22
entitled to qualified immunity.14
23
24
14
Plaintiffs also raised a “duty to intervene” argument in their opposition, stating
that a jury could find that each deputy had the obligation and opportunity to intervene and
prevent the false arrest and excessive use of force employed by each deputy. (Doc. No.
26 31 at 12-13.) Defendants contend this does not raise a triable issue of fact because
Plaintiffs were not in custody at the time the force was being used to control them, and
27 there is no evidence that the deputies knew the other deputies were acting unlawfully or
had an opportunity to respond. (Doc. No. 32 at 2-3.) These arguments only highlight the
28 disputed issues of material fact, and reinforce the Court’s denial of Defendants’ instant
motion.
25
16
11cv1657 AJB (BGS)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B.
Fourth Amendment Violation: Unlawful Seizure/False Arrest and
Qualified Immunity
Under the Fourth Amendment, “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause.” U.S. Const. amend.
IV. “The Fourth Amendment does not proscribe all state-initiated searches and seizures;
it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248,
250 (1991) (citations omitted). A warrantless arrest is lawful, only if there is “probable
cause to believe that the arrestee has committed, or is committing, an offense.” Torres v.
City of L.A., 548 F.3d 1197, 1207 n.7 (9th Cir. 2008); see also United States v.
Chan–Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (“For purposes of the Fourth
Amendment, a seizure occurs when a law enforcement officer, by means of physical
force or show of authority, in some way restrains the liberty of a citizen.”); Jackson v.
Johnson, 797 F. Supp. 2d 1057, 1063 (D. Mont. 2011) (“An arrest is a more intrusive
detention and requires probable cause.”).
Here, because the right to be free from a warrantless arrest was clearly established
on the date in question, and Plaintiffs were arrested without a warrant following the
incident at their apartment complex, Defendants must show that there was probable cause
to arrest both Plaintiffs. Probable cause to arrest without a warrant exists when “officers
have knowledge or reasonably trustworthy information sufficient to lead a person of
reasonable caution to believe an offense has been or is being committed by the person
being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing Beck
v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)). “While conclusive
evidence of guilt is of course not necessary under this standard to establish probable
cause, ‘[m]ere suspicion, common rumor, or even strong reason to suspect are not
enough.’ ” Id. (quoting McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1987)). Thus,
“in determining whether probable cause exists for arrest, courts look to “the collective
knowledge of all the officers involved in the criminal investigation.” United States v.
Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007) (citation and quotation marks omitted);
17
11cv1657 AJB (BGS)
1
Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (“To prevail on
2
his § 1983 claim for false arrest and imprisonment, Cabrera would have to demonstrate
3
that there was no probable cause to arrest him.”).
4
In the instant case, the deputies arrested Plaintiffs on two charges: (1) violation of
5
California Penal Code § 405(a), lynching; and (2) violation of California Penal Code §
6
69, resisting an officer by force and violence. (Doc. No. 31 at 4:16-20.)15 With respect to
7
Plaintiff Maher, Defendants allege Maher was arrested on the belief that he assaulted
8
Deputy Titus, violently interfered with Deputy Titus’ attempt to arrest Doory, yelled
9
vulgarities at all the deputies, beat his chest, advanced on the deputies, refused to follow
10
the deputies’ orders, placed his hands on Deputy Titus, and then resisted his own arrest.
11
With respect to Plaintiff Nader, Defendants allege Nader was arrested on the belief that
12
he advanced on the deputies, clenched his fists in a threatening manner, and failed to
13
follow the deputies’ orders to get back. As a result, Defendants contend summary
14
judgment is warranted on Plaintiffs’ unlawful seizure/false arrest § 1983 claims because
15
under the totality of the circumstances the deputies believed there was probable cause to
16
arrest both Plaintiffs. See Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1995) (“
17
Probable cause must be determined at the time the arrest is made.”).
18
19
20
15
In pertinent part, California Penal Code § 405(a) prohibits “[t]he taking by means
of a riot of any person from the lawful custody of any peace officer . . . .” Cal. Penal
21 Code § 405(a). A riot is further defined as “[a]ny use of force or violence, disturbing the
public peace, or any threat to use force or violence, if accompanied by immediate power
22 of execution, by two or more persons acting together, and without authority of law . . . .”
Cal. Penal Code § 404(a). Violation of § 405(a) is a felony that is punishable in a state
23 prison for two, three, or four years. See Cal. Penal Code § 405(b).
24
25
26
27
28
At the time of the incident, California Penal Code § 69 provided: “Every person
who attempts, by means of any threat or violence, to deter or prevent an executive officer
from performing any duty imposed upon such officer by law, or who knowingly resists,
by the use of force or violence, such officer, in the performance of his duty, is punishable
by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state
prison, or in a county jail not exceeding one year, or by both such fine and
imprisonment.” To establish a violation under § 69, the prosecution must prove, among
other things, that the defendant resisted the officer and that the defendant knew he was
resisting an officer. People v. Hendrix, 214 Cal. App. 4th 216, 237, 153 Cal. Rptr. 3d
740, 757 (Cal. Ct. App. 2013).
18
11cv1657 AJB (BGS)
1
Plaintiffs adamantly oppose Defendants’ contentions, arguing that the deputies
2
lacked probable cause to arrest them, and explicitly deny that any of the events, as
3
articulated by Defendants, ever occurred. Plaintiffs support these allegations with their
4
own declarations and deposition testimony, in addition to percipient witness testimony
5
from individuals who gave statements, under oath, at Plaintiffs’ preliminary hearing.
6
(Doc. No. 31, Exs. 6, 7, 8.) Specifically, Plaintiffs allege that when Maher protested the
7
unjustified and unprovoked attack on Doory, Deputy Titus hit Maher in the face with a
8
flashlight or baton, even though Maher had just complied with Deputy Titus’ command
9
to sit down. Thereafter, Deputy Philpot, who was assisted by Deputy Walton, violently
10
took Maher down in the driveway, pinned him down, punched him at least twice, and
11
then forcibly arrested him. With regard to Nader, Plaintiffs contend that Nader was at all
12
times a safe distance from the deputies under the tree, and that Nader only verbally
13
protested the deputies’ violent attacks on Maher and Doory, which did not warrant the
14
use of a taser to subdue or control him.
15
In response, Defendants argue that the percipient witness testimony proffered by
16
Plaintiffs, (Exhibit 6: Davis Testimony; Exhibit 7: Sulaiman Testimony; and Exhibit 8:
17
Ms. Henry Testimony), should be excluded as hearsay, and that the judicial ruling on the
18
preliminary hearing, (Exhibit 9), should be excluded because it has no res judicata or
19
collateral estoppel effect in the instant case. (Doc. No. 32 at 4:14-28.) Specifically,
20
Defendants argue that because none of the Defendants were parties in the prior criminal
21
case, or in privity of interest with such parties, they had no opportunity to cross-examine
22
the percipient witnesses whose testimony Plaintiffs now seek to admit into evidence.
23
Moreover, with respect to Exhibit 9, the judicial ruling on the preliminary hearing,
24
Defendants contend that “an acquittal is not admissible to prove lack of conduct,” and
25
therefore should be excluded. State Farm Fire & Cas. Co. v. Poomaihealani, 667 F.
26
Supp. 705, 706-07 (D. Hi. 1987). Therefore, Defendants argue that Plaintiffs introduc-
27
28
19
11cv1657 AJB (BGS)
1
tion of this evidence, in an attempt to raise a genuine dispute of material fact, is
2
improper.16
3
In addition to the arguments posited above, Plaintiffs argue that they should not,
4
and could not, have been arrested for protesting the violent acts of the deputies, as one
5
who verbally criticizes or challenges a police officer is engaged in protected speech under
6
the First Amendment, and is therefore not subject to arrest on that ground. See, e.g., City
7
of Houston, Tex. v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 2509, 96 L. Ed. 2d 398
8
(1987) (stating that “the First Amendment protects a significant amount of verbal
9
criticism and challenge directed at police officers. Speech is often provocative and
10
challenging . . . . [But it] is nevertheless protected against censorship or punishment,
11
unless shown likely to produce a clear and present danger of a serious substantive evil
12
that rises far above public inconvenience, annoyance, or unrest”). As a result, Plaintiffs
13
contend that a reasonable jury could find that the “real” reason Plaintiffs were arrested
14
was because they were engaged in protected speech, which the deputies should have been
15
aware is contrary to established law.
16
Defendants respond, contending that City of Houston, the case relied upon by
17
Plaintiffs, is inapplicable because it dealt with a challenge to a statue the Supreme Court
18
found overbroad, and nonetheless, actually supports Defendants’ contentions because it
19
shows that the protections afforded by the First Amendment are not limitless, especially
20
as it relates to the exception for fighting words. See City of Houston, 482 U.S. at 461-62
21
(“Critical to our decision was the fact that the ordinance punishe[d] only spoken words”
22
and was not limited in scope to fighting words that by their very utterance inflict injury or
23
tend to incite an immediate breach of the peace.”) (internal quotations omitted); see also
24
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (“As to the second element,
25
26
16
Because these arguments were raised by Defendants in their Reply to Plaintiffs’
Opposition, Plaintiffs did not have an opportunity to address Defendants’ arguments.
However, as noted below, the Court did not consider this evidence in adjudicating
28 Defendants’ instant motion for summary judgment. Accordingly, Defendants’
evidentiary objections are denied as moot.
27
20
11cv1657 AJB (BGS)
1
because defendants had probable cause to arrest plaintiff, an inquiry into the underlying
2
motive for the arrest need not be undertaken.”).
3
Here, even after the Court properly excludes the percipient witness testimony
4
proffered by Plaintiffs, Crawford v. Washington, 541 U.S. 36, 57, 124 S. Ct. 1354, 1367,
5
158 L. Ed. 2d 177 (2004) (finding “that prior trial or preliminary hearing testimony is
6
admissible only if the defendant had an adequate opportunity to cross-examine”), and the
7
judgment entered in Plaintiffs’ underlying preliminary hearing, State Farm Fire & Cas.
8
Co., 667 F. Supp. at 706-07, there is still a genuine dispute of material fact regarding
9
whether Plaintiffs used threats or violence to entice a riot or disturb the peace, (Penal
10
Code § 405(a)), and deter or prevent an executive officer in the performance of his duties,
11
(Penal Code § 69). See McKenzie, 738 F.2d at 1008. (Finding that in a § 1983 action the
12
factual matters underlying the judgment of reasonableness generally mean that probable
13
cause is a question for the jury); Harper v. City of L.A., 533 F.3d 1010, 1023 (9th Cir.
14
2008). Therefore, based simply on the testimony proffered by Plaintiffs and Defendants,
15
and excluding any evidence that was not known to the deputies at the moment the arrests
16
were made, the Court finds there are still factual disputes that preclude summary judg-
17
ment. See Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991) (“The disputed facts
18
that prevent resolution of the detention issue on summary judgment also prevent resolu-
19
tion of the question whether police had probable cause to arrest.”).
20
The Court also notes that the judicial determination made at Plaintiffs’ preliminary
21
hearing is irrelevant to the issue of whether there was probable cause for the deputies to
22
arrest Plaintiffs on the date in question. Specifically, although the absence of sufficient
23
probable cause to believe Plaintiffs were guilty of Penal Code § 405(a) and Penal Code §
24
69 was the basis for dismissing such claims at the preliminary hearing, this determination
25
does not necessarily mean there was or was not probable cause to arrest Plaintiffs on
26
27
28
21
11cv1657 AJB (BGS)
1
these charges.17 Therefore, even without considering the percipient witness testimony,
2
(Doc. No. 31, Exs. 6, 7, 8) or the findings made at Plaintiffs’ preliminary hearing, (Doc.
3
No. 31, Ex. 9), the parties’ respective versions of the facts are still diametrically opposed.
4
As a result, the Court finds there are material factual disputes that preclude summary
5
judgment. Accordingly, Defendants are not entitled to qualified immunity and their
6
motion for summary judgment on Plaintiffs’ unlawful seizure/false arrest § 1983 claims
7
are hereby DENIED.
8
II.
State Law Claims
9
In addition to the federal causes of action, Plaintiffs allege state law claims against
10
all Defendants for negligence, battery, false arrest, and violation of California Civil Code
11
§ 52.1. Plaintiffs allege the individual deputies are liable based on their own conduct,
12
and the County is liable based on vicarious liability under the doctrine of respondeat
13
superior. See Cal. Gov’t Code § 815.2; see also Scott v. Cnty of L.A., 27 Cal. App. 4th
14
125, 139-40, 32 Cal. Rptr. 2d 643 (Cal. Ct. App. 1994) (“Under Government Code
15
section 815.2, subdivision (a), the County is liable for acts and omissions of its employ-
16
ees under the doctrine of respondeat superior to the same extent as a private employer.
17
Under subdivision (b), the County is immune from liability if, and only if, [the employee]
18
is immune.”) (emphasis omitted); White v. Cnty of Orange, 166 Cal. App. 3d 566, 570,
19
212 Cal. Rptr. 493 (Cal. Ct. App. 1985) (stating that “in governmental tort cases, the rule
20
is liability, immunity is the exception”) (citation and internal quotation marks omitted).
21
///
22
///
23
24
25
26
27
28
17
“A preliminary hearing is a post facto determination of probable cause that is
concerned primarily with whether the prosecution meets its burden of proof, see
generally Mills v. Super. Ct., 42 Cal. 3d 951, 232 Cal. Rptr. 141, 143-46, 728 P.2d 211,
213-17 (Cal. 1986), and, at least in some instances, can result in a dismissal of criminal
charges even though the existence of probable cause is not considered.” De Anda v. City
of Long Beach, 7 F.3d 1418, 1422 (9th Cir. 1993). In contrast, probable cause to arrest
must be based on objectively reasonable information known to the officer at the time of
the arrest, and cannot be based on facts or evidence obtained as a result of the arrest. See
Wong Sun v. United States, 371 U.S. 471, 482, 83 S. Ct. 407, 414, 9 L. Ed.2d 441 (1963);
Henry v. United States, 361 U.S. 98, 103, 80 S. Ct. 168, 171, 4 L. Ed. 2d 134 (1959).
22
11cv1657 AJB (BGS)
1
A.
Plaintiffs’ Negligence, Battery, and False Arrest Causes of Action
2
Defendants contend the County is immune from Plaintiffs’ negligence, battery, and
3
false arrest state law causes of action. However, under California law, the County’s
4
immunity depends on whether the individual deputies are immune. Robinson v. Solano
5
Cnty, 278 F.3d 1007, 1016 (9th Cir. 2002). Therefore, because California law denies
6
immunity to police officers and public officials who use excessive force to effectuate an
7
arrest, and the Court has already denied Defendants’ motion with regard to Plaintiffs’
8
federal § 1983 excessive force and false arrest claims, the Court finds that the deputies,
9
and therefore the County, are not immune from Plaintiffs’ state law claims for negli-
10
gence, battery, and false arrest. See Mary M. v. City of L.A., 54 Cal.3d 202, 215, 285 Cal.
11
Rptr. 99, 814 P.2d 1341 (Cal. Ct. App. 1991) (“[A] governmental entity can be held
12
vicariously liable when a police officer acting in the course and scope of employment
13
uses excessive force or engages in assaultive conduct.”); Scruggs v. Haynes, 252 Cal.
14
App. 2d 256, 264, 60 Cal. Rptr. 355 (Cal. Ct. App. 1967) (“California cases have
15
consistently held that a peace officer making an arrest is liable to the person arrested for
16
using unreasonable force.”); Cal. Gov’t Code § 820.4. Accordingly, for the reasons set
17
forth above, the Court DENIES Defendants’ motion for summary judgment with respect
18
to Plaintiffs’ state law claims for negligence, battery, and false arrest.
19
B.
Violation of California Civil Code § 52.1 “Bane Act”
20
Plaintiffs’ final cause of action is brought under California Civil Code § 52.1 (the
21
“Bane Act”). The Bane Act proscribes interference “by threats, intimidation, or coercion,
22
or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoy-
23
ment by any individual or individuals of rights secured by the Constitution or laws of the
24
United States, or of the rights secured by the Constitution or laws of this state . . . ” Cal.
25
Civ. Code § 52.1(a); see also Jones v. Kmart Corp., 17 Cal. 4th 329, 338, 70 Cal. Rptr.
26
2d 844, 949 P.2d 941 (Cal. 1998) (“The Legislature enacted [Civil Code] section 52.1 to
27
stem a tide of hate crimes.”). The word “interferes with,” as used in the Bane Act, means
28
“violates.” Jones, 17 Cal. 4th at 338, 70 Cal. Rptr. 2d 844, 949 P.2d 941 (California
23
11cv1657 AJB (BGS)
1
Supreme Court equates “interferes” with “violates”); City of Simi Valley v. Super. Ct.,
2
111 Cal. App. 4th 1077, 4 Cal. Rptr. 3d 468 (Cal. Ct. App. 2003) (same). Thus, the
3
essence of a Bane Act claim is that the defendant, by the specified improper means (i.e.,
4
“threats, intimidation or coercion”), tried to, or did, prevent the plaintiffs from doing
5
something they had the right to do under the law, or to force the plaintiffs to do some-
6
thing they were not required to do under the law. Jones, 17 Cal.4th at p. 334, 70 Cal.
7
Rptr. 2d 844, 949 P.2d 941. “[I]n pursuing relief for [ ] constitutional violations under
8
section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus
9
or intent, so long as those acts were accompanied by the requisite threats, intimidation, or
10
coercion.” Venegas v. Cnty of L.A., 32 Cal. 4th 820, 843, 11 Cal. Rptr. 3d 692, 87 P.3d 1
11
(Cal. Ct. App. 2004).
12
In the instant case, Plaintiffs allege that “the particular acts of excessive force,
13
unlawful detention, false arrest, and retaliation” constituted a violation of Plaintiffs’
14
rights as guaranteed under Article I, Section 13 of the California Constitution, and the
15
First and Fourth Amendments to the United States Constitution. (Doc. No. 5 ¶ 43.)
16
Plaintiffs further allege that these acts were committed by the deputies by means of
17
threats, intimidation, and/or coercion. (Id.) As a result, Plaintiffs allege that Maher
18
suffered severe injuries to his face, nose, eyes, mouth, tongue, neck and back, and that
19
Nader suffered pain and injury from being shot with a taser. (Id. at ¶¶ 15, 16, 23.) Both
20
Plaintiffs also allege that they have suffered severe fear, humiliation, damage to their
21
reputation, and emotional distress as a result of being arrested, taken to jail, and forced to
22
defend themselves at the preliminary hearing. (Id. at ¶¶ 15, 16.) Plaintiff seek actual and
23
punitive damages as a result of the deputies alleged reckless conduct. (Id. ¶¶ 44, 45.)
24
In response, Defendants argue the Bane Act cannot be asserted directly against the
25
County because the Act only applies to private actors and government agents, and not to
26
government entities. See Venegas v. Cnty of L.A., 153 Cal. App. 4th 1230, 63 Cal. Rptr.
27
3d 741, 750 (Cal. Ct. App. 2007). Defendants also contend that the Bane Act cannot be
28
asserted against the County because there is no express statutory authority under the
24
11cv1657 AJB (BGS)
1
California Tort Claims Act (“Tort Claims Act”), Cal. Gov. Code § 815 et seq., nor is the
2
County a “person or persons” within the meaning of the Act. Plaintiffs counter, stating
3
that the County is liable under the Bane Act not because the County is a “person,” as
4
defined under the Act, but under the doctrine of respondeat superior, as embodied in
5
California Government Code § 815.2(a).18 Finally, with regard to the individual deputies,
6
Defendants argue summary judgment is warranted because the Bane Act does not confer
7
any substantive rights; rather, it is merely an enabling statute that allows a party to
8
recover damages if the plaintiff can prove a separate and distinct violation of his/her
9
federal or state constitutional rights. See Justin v. City & County of San Francisco, No.
10
C05-4815 MEJ, 2008 WL 1990819 (N.D. Cal. May 5, 2008). Thus, Defendants contend
11
that because there is no separate constitutional right Plaintiffs intended to exercise, in
12
which the deputies impeded by threat, intimidation, or coercion, Plaintiffs’ Bane Act
13
claims against the individual deputies must fail.
14
Contrary to Defendants’ contentions, the Court finds both the County and the
15
individual deputies are subject to the Bane Act. With regard to the County, the language
16
of Venegas v. County of Los Angeles, 153 Cal. App. 4th 1230 (Cal. Ct. App. 2007), the
17
case relied upon by Defendants, is inapposite. The court in Venegas did not state that
18
Section 52.1 does not apply to government entities; rather, it explained: “There is no
19
‘state action’ requirement in section 52.1; the statute applies to private actors as well as
20
government agents.” Id. at 750. In fact, the court in Vengeas found that the plaintiff had
21
a valid Section 52.1 cause of action against the County of Los Angeles. Id. at 746.
22
Moreover, although no California court has directly interpreted the “person or persons”
23
language included within the Bane Act, several federal courts have concluded that
24
municipalities do fall within the purview of the Act. See, e.g., Dorger v. City of Napa,
25
No. 12cv440 YGR, 2012 WL 3791447, at *7 (N.D. Cal. Aug. 31, 2012) (“The City offers
26
27
18
In pertinent part, Section 815.2 provides that: “A public entity is liable for injury
proximately caused by an act or omission of an employee of the public entity within the
28 scope of his employment if the act or omission would, apart from this section, have given
rise to a cause of action against that employee . . . .” Cal. Gov. Code § 815.2(a).
25
11cv1657 AJB (BGS)
1
no authority for the notion that it cannot be considered a ‘person’ . . . to the contrary, the
2
authorities interpreting the statute show that a public entity can be liable for ‘misconduct
3
that interferes with federal or state laws, if accompanied by threats, intimidation, or
4
coercion, [] whether or not state action is involved’ ”); Cameron v. Blether, No.
5
09cv2498 IEG (WMc), 2010 WL 1202318, at *5 (S.D. Cal. March 23, 2010) (rejecting
6
City of San Diego’s argument that the Bane Act did not apply to government entities);
7
Shoval v. Sobzak, No. 09cv1348 H (JMA), 2009 WL 2780155, at *3 (S.D. Cal. Aug. 31,
8
2009) (“Defendants have not made a sufficient showing that this definition does not
9
encompass California counties, especially in light of the many cases naming counties as
10
defendants in § 52.1 causes of action.”). Thus, because Defendants cite no authority that
11
the County is not a “person or persons” within the Act, and the Court has found only
12
contrary authority, such arguments are also without merit.
13
Finally, the Court finds Defendants’ third argument with respect to the Tort Claims
14
Act is also misplaced. Pursuant to California Government Code § 815.2 (a) and (b),
15
which Plaintiffs highlight in their opposition, “[a] public entity is liable for injury
16
proximately caused by an act or omission of an employee of the public entity within the
17
scope of his employment if the act or omission would . . . have given rise to a cause of
18
action against that employee . . .” unless “the employee is immune from liability.”
19
Therefore, as discussed above, because there is a genuine dispute of material fact
20
precluding a finding of qualified immunity for any of the individual deputies, the County
21
is also not immune. Therefore, the Court finds Plaintiffs have raised a genuine dispute as
22
to whether the County may be liable under the Bane Act under the doctrine of respondeat
23
superior, and Defendants’ arguments in this regard also fail. Cf. Zelig v. Cnty of L.A., 27
24
Cal. 4th 1112, 1131, 45 P.3d 1171, 1184 (Cal. 2002) (finding public entity could not be
25
liable under respondeat superior because the plaintiff had failed to allege that the public
26
employees were engaged in conduct within the scope of employment that would render
27
the public employee liable to the plaintiff).
28
26
11cv1657 AJB (BGS)
1
With regard to the individual deputies, the Court finds Defendants’ reliance on
2
Justin v. City & Cnty of S.F., No. C05-4815 MEJ, 2008 WL 1990819 (N.D. Cal. May 5,
3
2008) misguided. In Justin, the district court stated: “Section 52.1 is only applicable
4
when a defendant intends by his or her conduct to interfere with a separate, affirmative
5
right enjoyed by a plaintiff; it does not apply to a plaintiff’s allegation of use of excessive
6
force absent a showing that the act was done to interfere with a separate state or federal
7
constitutional right.” Id. at *9. However, the district court in Justin supported the above
8
statement solely with a citation to a California Supreme Court case, Jones v. Kmart
9
Corp., 17 Cal. 4th 329, 70 Cal. Rptr. 2d 844, 949 P.2d 941 (1998), wherein the court
10
addressed an entirely different issue. The issue in Jones was whether the plaintiff could
11
base his Section 52.1 claim on the unlawful search and seizure by defendants, who were
12
private actors, not government officials. Id. at 847. Thus, the Jones court held that, in
13
the context of an alleged interference with Fourth Amendment rights, “[w]hen [plaintiffs]
14
assert that defendants interfered with those rights by directly violating them, they are
15
mistaken: Only the government or its agents can do so.” Id.
16
Here, however, unlike in Jones, Plaintiffs allege that Defendants acted under color
17
of state law by using force or violence, by means of the excessive force Plaintiffs allege
18
was employed by the deputies, to interfere with their First and Fourth Amendment rights,
19
in addition to rights afforded under the Article I, Section 13 of the California Constitu-
20
tion. Cf. Rodriguez v. City of Fresno, 819 F. Supp. 2d 937, 954 (E.D. Cal. 2011) (“It is
21
not sufficient that the right interfered with is the right to be free of the force or threat of
22
force that was applied. The court has found that Plaintiff in this case was not seized and
23
has not suffered a cognizable constitutional injury under either the Fourth or Fourteenth
24
Amendments.”). Thus, although Defendants argue that the deputies’ conduct is not
25
actionable because Plaintiffs corresponding conduct amounted to unprotected “fighting
26
words,” such a determination is dependent on a resolution of disputed material facts, and
27
requires a determination by a jury. Accordingly, Defendants’ motion for summary
28
27
11cv1657 AJB (BGS)
1
judgment with respect to Plaintiffs’ § 52.1 cause of action under the Bane Act is hereby
2
DENIED.
3
CONCLUSION
4
For the reasons set forth above, Defendants’ motion for summary judgment in
5
GRANTED IN PART and DENIED IN PART. Specifically, the Court GRANTS
6
Defendants’ motion for summary judgment with respect to Plaintiffs’ second cause of
7
action under 42 U.S.C. § 1983 (the Monell Claim), and DENIES Defendants’ motion for
8
summary judgment with respect to Plaintiffs’ first cause of action under 42 U.S.C. § 1983
9
(excessive force and unlawful seizure/false arrest); and Plaintiffs’ third through sixth
10
causes of action against all Defendants for negligence, battery, false arrest, and violation
11
of Civil Code § 52.1. The parties should also be cognizant that the final pretrial confer-
12
ence is currently set for June 14, 2013. (Doc. No. 16.)
13
14
15
IT IS SO ORDERED.
16
17
18
19
DATED: April 29, 2013
Hon. Anthony J. Battaglia
U.S. District Judge
20
21
22
23
24
25
26
27
28
28
11cv1657 AJB (BGS)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?