Quintero v. City of Escondido et al

Filing 22

ORDER Granting in Part and Denying in Part Defendant's 13 Motion for Summary Judgment and Denying Plaintiff's 15 Cross Motion for Summary Judgment. Signed by Judge Barry Ted Moskowitz on 9/11/2017. (mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JORGE QUINTERO,

Case No.: 15-cv-2638-BTM-BLM
Plaintiff,

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v.

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CITY OF ESCONDIDO, NATHAN
VISCONTI, DYLAN BOYLAN,
ZACHARY PERKINS, et. al.,

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Defendant.

ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S CROSS
MOTION FOR SUMMARY
JUDGMENT [DOCS. 13, 15]

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Plaintiff Jorge Quintero (“Plaintiff”) brings this action against the City of

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Escondido (the “City”) and Escondido Police Department (“EPD”) Officers Nathan

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Visconti (“Officer Visconti”), Dylan Boylan (“Officer Boylan”), and Zachary Perkins

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(“Officer Perkins”) (collectively “Defendants”). Plaintiff asserts a total of six

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causes of action against Defendants: (1) a 42 U.S.C. section 1983 claim against

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the officers; (2) a section 1983 Monell1 claim against the City; (3) negligence; (4)

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battery; (5) false arrest; and (6) a California Civil Code § 52.1 civil rights violation.

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(Compl. ECF No. 1.)

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Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658 (1978).
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On September 8, 2016, Defendants filed a motion for summary judgment

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on all claims. (Defs.’ Mot. for Summ. J. (“Defs.’ MSJ”) ECF No. 13.) On

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September 9, 2016, Plaintiff filed a cross motion for summary judgment as to the

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section 1983 claims asserted against Officer Visconti only. (Pl.’s Mot. for Summ.

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J. (“Pl.’s MSJ”) ECF No. 15.) For the reasons discussed below, Defendants’

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motion is denied in part and granted in part, and Plaintiff’s motion is denied.

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I. BACKGROUND

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A. Plaintiff’s Apartment
On December 6, 2014, at approximately 11:12 p.m., EPD Officers were

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dispatched to Plaintiff’s apartment. (Notice of Lodgment in Support of Defs.’ MSJ

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(“NOL”), Ex. 13 (“Defs. Visconti’s Dep.”), 33:17–24, 35:16–18). The officers

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received the following information over the radio call: “This will be a female from

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the apartment screaming and pounding on the door asking to call 9-1-1. She’s

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back inside her apartment now. She’ll be Hispanic, 5’ 6’’ black hair. Uh, 1301

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Morning View Drive, and this will be actually the apartment below and to the right

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facing 604.” (NOL, Ex. 11 (Tr. of EPD dispatch radio communication)).

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Officer Visconti was the first to arrive at the apartment complex

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approximately 7–8 minutes after the radio call. (Visconti’s Dep. 34:21–25.) Upon

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arriving, Officer Visconti made contact with a woman standing on a balcony who

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he believed was the reporting party. (Defs. Visconti’s Dep. 40:16–24.) The

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woman pointed down further north in the complex and signaled to Plaintiff’s

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apartment. (Defs. Visconti’s Dep. 41:9–14.) Officer Visconti approached the

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apartment and stood near the doorway to see if he could hear anything from

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inside. (Defs. Visconti’s Dep. 43:2–6.) After hearing nothing, he walked away

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from the doorway and waited for other officers to arrive. (Defs. Visconti’s Dep.

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43:9–18.) Shortly thereafter, Officers Perkins, Boylan and Boylan’s training

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officer, Ryan Vanzandt arrived. (NOL, Ex. 14 (“Boylan’s Dep.”), 22:4–5).

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At this point, three separate body cameras worn by Officers Visconti,
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Perkins and Boylan captured the following: When Officer Perkins, Boylan and

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Vanzandt met with Officer Visconti, he informed them that a woman pointed out

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Plaintiff’s apartment but that he had not heard anything. (NOL, Ex. 1, (“Visconti’s

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B.C. Video”).) Officer Visconti proceeded to knock on the door. (Id.) Plaintiff

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opened the door while holding his son in his arms. (Id.) Immediately after

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Plaintiff opened the door, Officer Visconti announced that they were police

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officers. (Id.) Officer Visconti asked Plaintiff how he was doing and asked him to

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step outside of his apartment. (Id.) Plaintiff initially agreed and took a step

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forward, but stopped just before reaching the doorway. (NOL, Ex. 5, (“Boylan’s

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B.C. Video”).) Officer Visconti then commanded Plaintiff to step outside, but

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Plaintiff refused and stated “na, I’m good right here bro.” (Id.) Officer Visconti

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began approaching Plaintiff and responded, “okay.” (Id.)

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While stepping on the apartment’s threshold with his left foot, Officer

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Visconti reached through the doorway and placed both of his hands on Plaintiff’s

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right bicep. (Id.) He again commanded that Plaintiff step outside and began to

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pull Plaintiff’s right arm, leaving only his left arm free to hold his son. (Id.)

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Plaintiff, now standing perpendicular to the door frame with his left foot in the

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apartment and his right food outside, shifted back into the apartment and asked

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to put his son down to which Officer Visconti responded “no.” (NOL, Ex.3,

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(“Perkins’ B.C. Video”).) Officer Visconti positioned himself behind Plaintiff and

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placed his left hand on Plaintiff’s left side while using his right hand to pull

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Plaintiff’s right arm. (Id.) As Officer Visconti pulled him outside, Plaintiff’s son,

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who was sitting on Plaintiff’s left arm, fell backwards into the apartment on the tile

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floor from about a height of four to five feet. (Boylan’s B.C. Video.)

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Officer Vanzandt then entered the apartment and checked on Plaintiff’s son
and Officer Perkins proceeded to the back of the apartment where he found
Plaintiff’s wife in the bedroom. (Id.; Perkin’s B.C. Video) Meanwhile, Officer

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Visconti and Boylan placed Plaintiff in handcuffs. (Id.) After handcuffing Plaintiff,

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Officer Visconti commanded him to take a seat twice. (Id.) Plaintiff remained

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standing and moved his fingers to the inside of his boxer shorts. (Id.) Plaintiff

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stated, “[l]et me pull my boxers up.” (Id.) Officer Visconti again commanded him

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to take a seat, but Plaintiff did not move and kept his fingers inside his boxer

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shorts. (Id.) As Plaintiff repeated, “let me just pull up my boxer shorts,” Officer

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Visconti flipped Plaintiff on his back. (Id.) Officer Visconti then yelled: “[t]ake a

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seat. Listen to me when I tell you what to do.” (Id.) Plaintiff responded: “[a]lright

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man. Relax, bro. I’m not resisting arrest. I’m not. Can I sit up, please?” (Id.)

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Officer Visconti helped Plaintiff sit up and asked if he had any weapons. (Id.)

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Plaintiff said he did not. (Id.) Officer Visconti subsequently searched Plaintiff

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and found a knife in his pocket. (Id.)

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B. Plaintiff’s Arrest
Plaintiff was arrested and booked on charges of felony child

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abuse/endangerment, in violation of California Penal Code § 273.5(a)), and

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resisting, obstructing, or delaying an officer’s investigation, in violation of

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California Penal Code § 148. (NOL, Ex. 16, 6 (“Arrest Report”).) The District

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Attorney filed these charges as misdemeanors but eventually dismissed all of

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them. (Pl.’s MSJ 8.)

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II. STANDARD

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Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil

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Procedure if the moving party demonstrates the absence of a genuine issue of

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material fact and entitlement to judgment as a matter of law. Celotex Corp. v.

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Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing

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substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.

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1997). A dispute as to a material fact is genuine if there is sufficient evidence for
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a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S.

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at 323.

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A party seeking summary judgment always bears the initial burden of

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establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at

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323. The moving party can satisfy this burden in two ways: (1) by presenting

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evidence that negates an essential element of the nonmoving party’s case; or (2)

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by demonstrating that the nonmoving party failed to establish an essential element

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of the nonmoving party’s case on which the nonmoving party bears the burden of

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proving at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will

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not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec.

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Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

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Once the moving party establishes the absence of genuine issues of

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material fact, the burden shifts to the nonmoving party to demonstrate that a

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genuine issue of disputed fact remains. Celotex, 477 U.S. at 314. The

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nonmoving party cannot oppose a properly supported summary judgment motion

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by “rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S.

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at 256. Rather, the nonmoving party must “go beyond the pleadings and by her

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own affidavits, or by ‘the depositions, answers to interrogatories, and admissions

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on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”

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Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

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The court must view all inferences drawn from the underlying facts in the

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light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Credibility determinations, the

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weighing of evidence, and the drawing of legitimate inferences from the facts are

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jury functions, not those of a judge, [when] he [or she] is ruling on a motion for

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summary judgment.” Anderson, 477 U.S. at 255.

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III. DISCUSSION
To establish a violation under section 1983, Plaintiff must prove that
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Defendants acted under the color of state law and in doing so, deprived him of

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his constitutional rights. West v. Atkins, 487 U.S. 42, 48 (1988)

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A. § 1983 Claims Asserting Fourth Amendment Claims—Qualified Immunity

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Plaintiff alleges that Defendants, namely Officer Visconti, Boylan, and

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Perkins, violated his Fourth Amendment rights by unlawfully entering his home,

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performing an unlawful seizure and arrest, using excessive force, and maliciously

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prosecuting him. (Compl. ¶¶ 19–24.)

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Under the doctrine of qualified immunity, government officials are protected
“from liability for civil damages insofar as their conduct does not violate clearly

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established statutory or constitutional rights of which a reasonable person would

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have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

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immunity attempts to balance two important interests—“the need to hold public

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officials accountable when they exercise power irresponsibly and the need to

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shield officials from harassment, distraction, and liability when they perform their

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duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because

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qualified immunity is an immunity from suit, the Supreme Court has repeatedly

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“stressed the importance of resolving immunity questions at the earliest possible

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stage in litigation.” Id. at 231–232. To determine whether a police officer is

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entitled to qualified immunity, a court must consider whether: (1) the officer’s

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conduct violated a constitutional right; and (2) that right was clearly established at

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the time of the incident. Id. at 232. Courts, however, are not required to address

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the two questions in any particular order. Id. at 243.

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As to the second prong, the Supreme Court has held that an officer “cannot

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be said to have violated a clearly established right unless the right’s contours

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were sufficiently definite that any reasonable official in [his] shoes would have

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understood that he was violating it, meaning that existing precedent placed the

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statutory or constitutional question beyond debate.” City & Cnty. Of San

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Francisco v. Sheehan, __ U.S. __, 135 S.Ct. 1765, 1774 (2015) (citations
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omitted). Just recently the Supreme Court reiterated the “longstanding principle

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that clearly established law should not be defined at a high level of generality,”

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but instead “must be particularized to the facts of the case.” White v. Pauly, 2017

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__ U.S. __, 137 S.Ct. 548, 552 (2017). A court denying qualified immunity must

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effectively “identify a case where an officer acting under similar circumstances as

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[the defendant officer] was held to have violated the Fourth Amendment.” Id. at

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552. “This exacting standard gives government officials breathing room to make

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reasonable but mistaken judgments by protect[ing] all but the plainly incompetent

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or those who knowingly violate the law.” Sheehan, 135 S.Ct. at 1774 (citations

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omitted).
Whether a reasonable officer could have believed that his conduct was

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lawful is a determination of law that can be decided on summary judgment only if

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the material facts are undisputed. LaLonde, 204 F.3d at 953. “However, a trial

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court should not grant summary judgment where there is a genuine dispute as to

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‘the facts and circumstances within an officer’s knowledge’ or ‘what the officer

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and claimant did or failed to do.’” Id. (quoting Act Up!/Portland v. Bagley, 988

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F.2d 868, 873 (9th Cir. 1993)).

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1. Unlawful Detention
a. Doorway Exception
The Fourth Amendment protects individuals from unreasonable searches

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and seizures. Payton v. New York, 445 U.S. 573, 585 (1980). The Supreme

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Court has held that the “physical entry of the home is the chief evil against which

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the wording of the Fourth Amendment is directed.” United States v. United

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States District Court for the Eastern District of Michigan, et. al., 407 U.S. 297,

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313 (1972). As such, it has adhered to the basic principle that searches and

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seizures inside a home without a warrant are presumptively unlawful. Payton,

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445 U.S. at 587. The Court in Payton held that the Fourth Amendment explicitly

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prohibits police from making a warrantless and nonconsensual entry into a
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suspect’s home in order to make an arrest. Id. at 576. There, the Court drew a

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firm line at the entrance of a home, holding that absent exigent circumstances or

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consent, “that threshold may not reasonably be crossed without a warrant.” Id. at

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590.

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Here, there is no dispute that the officers acted without a warrant. Instead,

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Defendants argue that the doorway exception articulated in United States v.

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Crapser, 472 F.3d 1141, 1148 (9th Cir. 2007) allowed Officer Visconti to detain

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Plaintiff and move him out of his apartment in connection with the Terry2 stop.

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(Defs.’ MSJ 10.) The Court agrees with Defendants that based on the third-party

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911 call, Officer Visconti had reasonable suspicion to detain Plaintiff and

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investigate whether an incident had occurred. However, after reviewing the

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relevant case law, the Court finds that the Constitution did not permit Officer

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Visconti to reach through the doorway and grab Plaintiff while he stood inside his

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apartment.
In Crapser, the police had reasonable suspicion to believe that an

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individual occupying a motel room was involved in manufacturing

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methamphetamine. Id. at 1143. The police approached the motel room and

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knocked on the door. Id. In response, a woman and the defendant came out

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and closed the door behind them. Id. After speaking with the defendant for

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several minutes, he unexpectedly pulled a syringe from his right back pocket. Id.

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The police subsequently searched him and found three to four additional

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syringes and a small bag containing methamphetamine. Id. The police arrested

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him for possession of controlled substance. Id. at 1145. On appeal, the

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defendant argued that a Terry stop could not occur “at” a person’s residence. Id.

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at 1148. The Ninth Circuit disagreed and held that when a suspect voluntarily

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opens the door of his residence in response to a non-coercive “knock and talk,”

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Terry v. Ohio, 392 U.S. 1, 27 (1968).
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the police may temporarily seize the suspect outside the home, or at the

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threshold, provided that they have reasonable suspicion of criminal activity.

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Crapser, 472 F 3d. at 1148. However, the Ninth Circuit explicitly reaffirmed that

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“Terry does not apply inside a home.” Id. at 1149. It stated:

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There is a critical difference, however, between the inside of the home and
the outer threshold and beyond . . . . That difference is the suspect’s
expectation of privacy. When Defendant opened the motel room door and
came outside, he surrendered his heightened expectation of privacy and
the Fourth Amendment protections that go along with it—including the right
not to be detained based on reasonable suspicion.

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Id.
Defendants rely on Crapser to justify Officer Visconti reaching through the
doorway to detain Plaintiff. However, the Court finds this case to be
distinguishable from the facts in Crasper. The defendant in Crapser opened the
door, came outside, and closed the door before the police seized him. The
police detained him outside of his motel room, where he did not benefit from a
heightened expectation of privacy. Here, because Plaintiff refused to step
outside, Officer Visconti reached through the doorway and into the apartment to
pull him out. While Defendants argue that the detention took place at the
doorway, a review of the body camera videos, specifically Officer Boylan’s video,
reveals that Plaintiff was not standing in the doorway, but rather just inside the
apartment when Officer Visconti grabbed him. The act of grabbing Plaintiff’s arm
converted the situation into a detention. See United States v. Mendenhall, 446
U.S. 544, 553 (1980) (“[A] a person is seized only when, by means of physical
force or a show of authority, his freedom of movement is restrained.”). The fact
that only Officer Visconti’s arms crossed the threshold to reach Plaintiff is not
significant because Plaintiff was nevertheless standing within his home when
Officer Visconti grabbed him. See United States v. Johnson, 626 F.2d 753, 757
(9th Cir. 1980) (“[I]t is the location of the arrested person, and not the arresting

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agents, that determines whether an arrest occurs within a home.”). The

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detention therefore took place inside Plaintiff’s home, where he remained

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protected by the warrant requirement. See Payton, 445 U.S. at 587.

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It is also worth noting that this case differs from those cases cited in

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Crapser in that none of the arrests or detentions in those cases took place inside

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the home. In United States v. Vaneaton, 49 F.3d 1423, 1427 (9th Cir. 1995), the

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police did not enter the suspect’s home until after they formally placed him under

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arrest. Similarly in United States v. Gori, 230 F.3d 44, 53 (2d. Cir. 2000), the

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officers never crossed the threshold of the apartment to seize the plaintiffs, but

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instead ordered them to step outside after they opened the door of the

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apartment. Lastly, in United States v. Santana, 427 U.S. 38, 40 n.1, 43 (1976),

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the defendant was “standing directly in the doorway” when the police first saw the

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defendant. It was under those circumstances that the Supreme Court held that

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no warrant was required to arrest her because she was exposed to public view,

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speech, hearing and touch as if she had been standing completely outside her

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house. Id. at 42. However, the Supreme Court recognized that the warrant

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requirement was triggered when the officers crossed the threshold of her home

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to arrest her inside. Id. at 42–43. In light of the entry, the Supreme Court

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ultimately relied on the exigent circumstances exception to justify the officers’

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warrantless entry into her home. Id. at 42–43.

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The facts of this case are instead more analogous to those in LaLonde v.

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County of Riverside, 204 F.3d 947 (9th Cir. 2000). There, the officers responded

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to the plaintiff’s apartment in regard to a noise complaint. Id. at 951. The

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plaintiff’s roommate opened the door and spoke with an officer who asked if the

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plaintiff was there. Id. The plaintiff walked into the officers’ view, but remained

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inside the apartment and did not at any time approach the doorway. Id. The

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officers asked the plaintiff to step outside, but he refused their requests. Id.

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Despite the lack of a warrant and absent exigent circumstances, the officers
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entered his home and placed the plaintiff under arrest for obstructing a police

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investigation. Id. 951–52. In holding that the arrest violated the Fourth

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Amendment, the Ninth Circuit rejected the argument that the doorway exception

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applied. Id. at 955. It stated:

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The Fourth Amendment’s prohibition on warrantless entry into an
individual’s home does not apply to arrests made at the doorway, because
the doorway is considered a public place. In the present case, however,
neither party contends that the officers attempted to arrest LaLonde at the
doorway. While the officers were standing at the doorway, they sought to
ask LaLonde, who was standing a few feet inside the apartment, some
questions about a disturbing the peace complaint. The arrest took place
only after the officers had crossed the threshold of the door and entered
LaLonde’s apartment. Thus the case does not fall under the doorway
exception.
Id. at 955.
Here, as discussed above, Officer Visconti detained Plaintiff while he stood
inside his home. The Court is aware of no case that extends the doorway
exception to allow police officers to reach across the threshold to detain an
individual inside his home. Because the Ninth Circuit is clear that Terry does not
apply inside a home, Plaintiff’s detention does not fall under the doorway
exception. Crasper, 472 F.3d at 1149.
The Court therefore finds that Officer Visconti violated the Fourth
Amendment by reaching through the doorway to detain Plaintiff inside his
apartment. A finding of the contrary would effectively push back the firm line
drawn in Payton. See Payton, 445 U.S. at 589.
b. Clearly Established Law
Notwithstanding the constitutional violation, Plaintiff’s claim only survives

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qualified immunity if the court can “identify a case where an officer acting under

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similar circumstances . . . was held to have violated the Fourth Amendment.”

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White, 137 S.Ct. at 552.

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As discussed above, the Ninth Circuit in Lalonde held that the case did not

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fall under the doorway exception and was thus unconstitutional because “[t]he

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arrest took place only after the officers had crossed the threshold of the door and

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entered Lalonde’s apartment.” Lalonde, 204 F.3d at 955. Similarly in United

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States v. Quaempts, 411 F.3d 1046, 1048 (9th Cir. 2005), the Ninth Circuit

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reaffirmed that to “extend the holding of Vaneaton beyond the threshold into the

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interior of the home would do violence to the principles laid down in Payton that

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established a zone of privacy inside the physical dimensions of one’s home.”

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The defendant in Quaempts lived in a small trailer home and was lying in bed

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when he reached over to open the door for the police officers. Id. at 1047. When

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the defendant opened the door, the officer from outside the trailer told him he

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was being placed under arrest. The defendant was therefore inside his home

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when the officers arrested him. Id. Relying on the fact that the defendant “did

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not take himself outside the physical zone of privacy of the house by going to the

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threshold of his house or to any other public place,” the court held that the

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officers performed an unlawful arrest inside his home. Id. at 1049.

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Finally in United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980), the

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Ninth Circuit held that the warrantless arrest of the defendant, while he stood

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within his home, constituted a violation of his Fourth Amendment rights. After

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finding that the arrest occurred as the defendant stood within his home at the

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doorway, the court turned to whether the arrest of the defendant violated his

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Fourth Amendment rights. Id. at 756. The Court reasoned:

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This case, on the other hand, differs from both of the situations addressed
in Payton. The illegal search of Payton’s home and the illegal arrest of
Riddick did not occur until the police had entered the suspect’s homes. In
this case, we are confronted with the situation where the suspect was
arrested as he stood inside his home and the officers stood outside his
home with drawn weapons. In these circumstances, it is the location of the
arrested person, and not the arresting agents, that determines whether an
arrest occurs within a home. Otherwise, arresting officers could avoid

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illegal “entry” into a home simply by remaining outside the doorway and
controlling the movements of suspects within through the use of weapons
that greatly extend the “reach” of the arresting officers.

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Id. at 757.
It is thus clearly established that law enforcement officers cannot break the

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threshold of a home to detain or arrest an individual who is standing inside his

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home. The Court finds that these cases involve similar enough circumstances to

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put Officer Visconti on notice that reaching across the threshold to detain Plaintiff

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inside his home is unconstitutional. Officer Visconti is therefore denied qualified

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immunity as to the unlawful detention. However, as discussed below, because

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the officers are entitled to qualified immunity as to the warrantless entry under

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the emergency aid doctrine, Officer Visconti’s detention of Plaintiff in connection

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with that entry is also shielded from liability.

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2. Unlawful Entry
a. Emergency Aid Doctrine

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Defendants alternatively argue that Plaintiff’s detention and warrantless

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entry into Plaintiff’s apartment was reasonable pursuant to the emergency aid

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doctrine. (Defs.’ MSJ 13.) Defendants assert that the officers had reasonable

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grounds to believe that there was an immediate need to enter the apartment to

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protect a woman that had been screaming outside for someone to call 911.

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(Defs.’ MSJ 14.) Additionally, they argue that they had the authority to detain

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Plaintiff while they conducted a protective sweep of the apartment.

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A warrantless entry of a home is justified under the emergency aid

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exception when: “(1) considering the totality of circumstances, law enforcement

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had an objectively reasonable basis for concluding that there was an immediate

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need to protect others or themselves from serious harm; and (2) the manner and

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scope of the search were reasonable to meet the need.” United States v. Snipe,

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515 F.3d 947, 952 (9th Cir. 2008). Under the first prong, the Government is
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required “to point to specific and articulable facts which, taken together with

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rational inferences from those facts, (would) reasonably warrant (the warrantless)

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intrusion.” United States v. Dugger, 603 F.2d 97, 99 (9th Cir. 1979). The Ninth

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Circuit has made it clear, that “if police officers otherwise lack reasonable

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grounds to believe there is an emergency, they must take additional steps to

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determine whether there is an emergency that justified entry in the first place.”

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Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009).
Here, Defendants argue that the third-party 911 call coupled with Plaintiff’s

8
9

behavior, namely his refusal to step outside3, amounted to reasonable grounds to

10

believe that a woman inside could have been injured or that there was an

11

ongoing threat to her safety. (Defs.’ MSJ 9.)

12

Defendants rely on United States v. Brooks, 367 F.3d 1128 (9th Cir. 2004),

13

to argue that in light of the potential domestic abuse, the officers had reasonable

14

grounds to believe there was an emergency. (Defs.’ MSJ 15.) In Brooks, the

15

police responded to the plaintiff’s hotel room in response to a 911 call placed by

16

a neighboring hotel guest who reported hearing what she thought were sounds of

17

a woman being beaten in the plaintiff’s room. 367 F.3d at 1130. When the police

18

arrived, the responding officer met with the guest that placed the call and had the

19

opportunity to assess her credibility. Id. at 1134. The Ninth Circuit noted that

20

when the officer knocked on the plaintiff’s hotel room door, the guest’s story was

21

corroborated. Id. The officer heard the plaintiff say, “[h]oney, I think somebody is

22

here,” which the court found likely indicated to the officer that a woman was

23

inside. Id. When the plaintiff opened the door, the officer did not see the woman,

24

but the plaintiff stated he knew why the officer was there and confirmed that there

25

had been, at least, a loud argument. Id. Based on these facts—the 911 call

26
27
28

As discussed below, Plaintiff’s refusal to step outside cannot be used as evidence of criminal wrongdoing. See
United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978).
3

14
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1

alerting police to a perceived domestic abuse and corroborating facts known to

2

the officer—the Ninth Circuit held that it was objectively reasonable for the officer

3

to believe that the woman might have been in danger. Id. at 1136.

4

Here, unlike in Brooks, there was nothing to corroborate the 911 call.

5

Officer Visconti made contact with a woman he believed was the caller, but never

6

spoke to her or took the opportunity to confirm that she was the caller or assess

7

her credibility. When Officer Visconti approached Plaintiff’s apartment, there

8

were facts to dispel the emergency. He approached the door, heard nothing and

9

retreated to wait for the other officers. When Plaintiff opened the door, he and

10

his son appeared calm and peaceful. There was nothing that indicated or

11

confirmed that a domestic dispute occurred minutes before the officers arrived or

12

that there was an emergency at hand. Unlike in Brooks, Plaintiff did not confirm

13

that his girlfriend was in the apartment or that a dispute had occurred.

14

This case also differs from other cases involving 911 calls reporting

15

incidents of domestic violence in that here, the officers relied on nothing more

16

than the third-party 911 call. For example, in United States v. Black, 482 F.3d

17

1035, 1039 (9th Cir. 2007), the Ninth Circuit found reasonable grounds to support

18

an entry where the police was dispatched to the defendant’s apartment in

19

response to a 911 call placed by the defendant’s girlfriend who had been beaten

20

up by the defendant that morning inside the apartment. She reported that he had

21

a gun and that she intended to return to the apartment to retrieve her

22

belongings—a fact the Ninth Circuit found notable given that the officers knew

23

she would be there and reasonably inferred should could still be in the apartment

24

in need of medical help. Id. at 1040. In United States v. Martinez, 406 F.3d

25

1160, 1163–64 (9th Cir. 2005), the court upheld a warrantless entry into the

26

defendant’s home where the police responded to a disconnected 911 call

27

concerning domestic violence. The officer recognized the address as a

28

residence he had visited on a previous occasion when a male hit a female and
15
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1

caused her a “fat lip.” Id. at 1162–63. Additionally, upon arrival the officer heard

2

yelling from inside the home. Id. at 1163. Lastly, in United States v. Snipe, 515

3

F.3d 947, 949 (9th Cir. 2008), the Ninth Circuit found a reasonable basis for

4

believing there was an immediate need to protect individuals after police received

5

a 5:00 a.m. call from an unidentified hysterical male demanding someone “get

6

the cops over here now.” The call was disconnected and two police officers were

7

dispatched to the home where the call originated. Id. One of the police officers

8

lived down the street and saw a vehicle he did not recognize parked outside and

9

someone walking into the house. Id. Both officers also noted that unlike other

10

homes in the area, that residence’s lights were on and the front door was ajar.

11

Id.

12

The Ninth Circuit has “never suggested that a suspicion of ‘domestic

13

violence’ alone provides justification for a given police intrusion.” Thomas v.

14

Dillard, 818 F.3d, 864, 882 (9th Cir. 2016). In light of the totality of

15

circumstances, the Court finds that the uncorroborated third-party 911 call alone

16

was not enough to support a reasonable belief that there was an emergency at

17

hand. The officers’ entry into Plaintiff’s apartment and the detention in

18

connection with the entry and search were therefore unlawful.

19
20

b. Clearly Established Law
Despite the Court’s finding of a constitutional violation, Plaintiff’s claim does

21

not survive qualified immunity. The Court’s independent research has not

22

revealed a case—binding at the time of the entry—that held that a 911 call alone

23

is insufficient to support a reasonable basis for believing there is an emergency

24

at hand. Though the Ninth Circuit in United States v. Harris, No. 15-10023, 2016

25

WL 930546, at *2 (9th Cir. Mar. 11, 2016) recently held that emergency

26

circumstances did not exist where the only material fact of which the police were

27

aware of at the time the alleged victim answered the door was that a 911 call had

28

been placed about a domestic violence incident, it had not been decided at the
16
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1

time of the entry. Thus, it cannot be said that a reasonable officer would have

2

known that the conduct at issue was unlawful under clearly established law.

3

Moreover, it is not sufficiently established whether officers can detain occupants

4

of a premises while they enter pursuant to the emergency aid doctrine. While the

5

Supreme Court in Michigan v. Summers, 452 U.S. 692, 699 (1981) held that

6

officers acting pursuant to a search warrant are also limitedly authorized “to

7

detain occupants of the premises while a proper search is conducted,” it is

8

unclear whether this extends to emergency aid situations. Therefore, this issue

9

is not placed beyond debate. See Sheehan, 135 S.Ct. at 1774.

10

Accordingly, Defendants are entitled to qualified immunity on this unlawful

11

entry and unlawful detention claim and Defendants’ motion for summary

12

judgment on these issues is GRANTED. Plaintiff’s motion for summary judgment

13

as to the unlawful entry and detention is DENIED.

14

3. Unlawful Arrest

15

Plaintiff also alleges that Defendants violated the Fourth Amendment

16

because they lacked probable cause to arrest him. (Compl. ¶ 20.) Defendants

17

argue that the officers had probable cause to arrest Plaintiff under both California

18

Penal Code sections 148(a)(1) and 273a. (Defs.’ MSJ 16.)
“A claim for unlawful arrest is cognizable under section 1983 as a violation

19
20

of the Fourth Amendment, provided the arrest was without probable cause or

21

other justification.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th

22

Cir 2015). Probable cause to arrest exists when “officers have knowledge or

23

reasonably trustworthy information sufficient to lead a person of reasonable

24

caution to believe an offense has been or is being committed by the person being

25

arrested.” Harper v. City of L.A., 533 F.3d 1010, 1022 (9th Cir. 2008). The

26

determination of probable cause is based on the totality of circumstances known

27

to the officers at the time of the arrest. Velazquez, 793 F.3d at 1018. In the

28

//
17
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1

context of qualified immunity, whether an officer had probable cause to support

2

an arrest is a legal question to be determined by the court. Hopkins v. Bonvicino,

3

573 F.3d 752, 763 (9th Cir. 2009).

4

a. California Penal Code § 148(a)(1)

5

The elements of a section 148(a)(1) violation are: “(1) the defendant

6

willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was

7

engaged in the performance of his or her duties; and (3) the defendant knew or

8

reasonably should have known that the other person was a peace officer

9

engaged in the performance of his or her duties.” Velazquez, 793 F.3d at 1018.

10

Defendants argue that the officers had probable cause to arrest Plaintiff

11

because he refused lawful commands to step outside from the open doorway

12

when he knew or should have known that the officers were police officers.

13

(Defs.’ MSJ 17.) In response, Plaintiff makes several arguments. First, he

14

disputes that he resisted Officer Visconti’s efforts to guide him outside, arguing

15

that he was instead just attempting to put his son down. (Pl.’s Opp’n 9.) Second,

16

he argues that it is well settled that he could not be arrested for simply invoking

17

his constitutional rights. (Pl.’s Opp’n 10.)

18

The Ninth Circuit has held that a “passive refusal to consent to a

19

warrantless search or seizure is privileged conduct which cannot be considered

20

as evidence of criminal wrongdoing.” United States v. Prescott, 581 F.2d 1343,

21

1351 (9th Cir. 1978) (holding that an individual cannot be penalized for passively

22

asserting his Fourth Amendment right regardless of her motivation); see also

23

People v. Wetzel, 11 Cal. 3d 104 (1974) (holding that the defendant was

24

unlawfully arrested for passively asserting her Fourth Amendment rights and

25

denying police officers entry into her home, despite their right to enter in

26

connection with a hot pursuit). Therefore, Plaintiff’s verbal refusal to step outside

27

cannot amount to probable cause to justify an arrest under section 148(a)(1).

28

Defendants argue that Wetzel or Prescott do not apply to the facts of this
18
15-cv-2638-BTM-BLM

1

case because here, Plaintiff “physically resisted” Officer Visconti’s efforts to

2

“guide” him outside of his apartment. (Defs.’ Opp’n to Pl.’s MSJ 21, (“Defs.’

3

Opp’n”), ECF No. 17.) When Officer Visconti placed his hands on Plaintiff’s arm,

4

Plaintiff adjusted his footing—a reasonable reaction given that he was holding his

5

son in his arms. Even if Plaintiff did “physically resist,” he did not forcibly resist

6

Officer Visconti. C.f. Gulliford v. Pierce Cnty, 136 F.3d 1345, 1347 (9th Cir.

7

1998) (finding that the appellant passively resisted arrest by intentionally falling to

8

a sitting position and refusing to comply with an order to stand and put his hands

9

behind his back). The Court therefore finds that Plaintiff, like the defendants in

10

Wetzel and Prescott, at most, passively resisted Officer Visconti and as such, his

11

arrest for asserting his Fourth Amendment right is unlawful.

12

b. California Penal Code § 273

13

Defendants also argue that the officers had probable cause to arrest

14

Plaintiff under section 273a. Section 273(a) provides: “[a]ny person who, under

15

circumstances or conditions likely to produce great bodily harm or death, (1)

16

willfully causes or permits any child to suffer, or (2) inflicts thereon unjustifiable

17

physical pain or mental suffering, or (3) having the care or custody of any child,

18

willfully causes or permits the person or health of that child to be injured, or (4)

19

willfully causes or permits that child to be placed in a situation where his or her

20

person or health is endangered, shall be punished by imprisonment in a county

21

jail not exceeding one year, or in the state prison for two, four, or six years.” §

22

273a(a). The statute prohibits “both active and passive conduct, i.e. child abuse

23

by direct assault and child endangering by extreme neglect.” People v. Valdez,

24

27 Cal. 4th 778, 784 (2002).

25

The requisite mental state depends on whether the infliction of physical

26

pain or mental suffering on a child was “direct” or “indirect.” Id. at 788–89.

27

Active conduct, or “direct” infliction, requires a mental state of general intent. Id.

28

However, “indirect” infliction of physical pain or mental suffering only requires a
19
15-cv-2638-BTM-BLM

1

mental state of criminal negligence. Id. at 788. Criminal negligence involves a

2

higher degree of negligence than is required within a civil context. Id. “The

3

negligence must be aggravated, culpable, gross, or reckless, that is, the conduct

4

of the accused must be such a departure from what would be the conduct of an

5

ordinarily prudent or careful person under the same circumstances as to be

6

incompatible with a proper regard for human life . . . or an indifference to

7

consequences.” Id.

8

Here, Defendants argue that they had probable cause to arrest Plaintiff

9

because it was reasonable to believe that he intentionally dropped his son.

10

(Defs.’ MSJ 19.) They argue that “[p]hysically resisting a police officer while

11

holding a child is clearly a reckless act.” (Def.s’ MSJ 20.) However, given the

12

totality of circumstances, the Court finds that the officers had no probable cause

13

to arrest Plaintiff for felony child abuse. Plaintiff answered the door while holding

14

his son in his arms. He was not combative, aggressive or resistive; he merely

15

chose to assert his Fourth Amendment rights and remain within his apartment.

16

When Officer Visconti ignored his privileged conduct and attempted to pull him

17

out of his apartment, Plaintiff asked Officer Visconti whether he could place his

18

son down. Officer Visconti replied no. Only after Officer Visconti placed his

19

hands on Plaintiff and attempted to “guide” him out of his apartment did Plaintiff’s

20

son fall backwards. Given these facts, the officers had no probable cause to

21

support Plaintiff’s arrest for felony child abuse.

22

“Even if the arrest was made without a warrant and without probable cause,

23

however, the officers may still be immune from suit if it was objectively

24

reasonable for him to believe that he had probable cause.” Rosenbaum v.

25

Washoe County, 663 F.3d 1071, 1078 (9th Cir. 2011). Thus, in determining

26

whether qualified immunity applies, the question is whether “all reasonable

27

officers would agree that there was no probable cause in this instance.” Id.

28

Plaintiff has failed to identify a case in which officers acting under similar
20
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1

circumstances violated a constitutional right. The Court’s extensive independent

2

research has also not revealed such a case. Moreover, the officers could have

3

misperceived Plaintiff’s actions, a mistake the law protects under qualified

4

immunity. See Sheehan, 135 S.Ct. at 1774.

5

For these reasons, the Court finds that the law was not clearly established

6

with respect to the unlawful arrest. The Court therefore GRANTS Defendants’

7

motion for summary judgment and DENIES Plaintiff’s motion for summary

8

judgment as to Officer Visconti.

9

3. Excessive Force

10

Under the Fourth Amendment, police may use “only such force as is

11

objectively reasonable under the circumstances.” Scott v. Henrich, 39 F.3d 912,

12

914 (9th Cir. 1994). Whether the force used by an officer was excessive, and

13

thus an unreasonable seizure in violation of the Fourth Amendment, is

14

determined by balancing “the nature and quality of the intrusion of the individual’s

15

Fourth Amendment interests against the countervailing governmental interests at

16

stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). In weighing governmental

17

interests, the Ninth Circuit has typically considered: (1) the severity of the crime

18

at issue; (2) whether the suspect poses an immediate threat to the safety of the

19

officers or others; and (3) whether he is actively resisting arrest or attempting to

20

evade arrest by flight. Green v. City & County of San Francisco, 751 F.3d 1039,

21

1050 (9th Cir. 2014). “Because this inquiry is inherently fact specific, the

22

determination whether the force used to effect an arrest was reasonable under

23

the Fourth Amendment should only be taken from the jury in rare cases.” Id. at

24

1049 (citations omitted).

25

Defendants argue that for Officer Visconti to safely search Plaintiff for

26

weapons and prevent flight or further resistance, it was reasonable to bring him

27

to a sitting position. (Defs.’ MSJ 22.) Plaintiff, however, did not pose an

28

immediate threat to the officers’ safety, since he was already handcuffed when
21
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1

Officer Visconti forced him to the ground. Though the crime at issue was felony

2

child abuse, the alleged danger had terminated. As to the nature of the intrusion,

3

a dispute of material fact remains. Plaintiff argues that Officer Visconti violently

4

slammed him onto the ground. (Pl.’s Opp’n 16.) Defendants, on the other hand,

5

argue that Officer Visconti merely brought Plaintiff backwards over his leg to

6

bring him to the ground. (Defs.’ Opp’n 23.) Additionally, Plaintiff disputes that he

7

was resisting Officer Visconti’s commands to sit down, arguing that he was

8

instead attempting to pull up his boxer shorts. (Id.) Defendants, on the other

9

hand, argue that Plaintiff deliberately failed to comply with Officer Visconti’s three

10

separate commands to sit. (Defs.’ MSJ 22.) These factual disputes preclude a

11

determination on summary judgment that the force used was objectively

12

reasonable under the circumstances.

13

Accordingly, Defendants are not entitled to qualified immunity on Plaintiff’s

14

excessive force claim and both Defendants’ and Plaintiff’s motions for summary

15

judgment are DENIED.

16

4. Malicious Prosecution

17

In order to succeed on a malicious prosecution claim under section 1983,

18

the plaintiff must show: (1) tortious conduct under the elements of state law; and

19

(2) intent to deprive the individual of a constitutional right. Poppell v. San Diego,

20

149 F.3d 951, 961 (9th Cir. 1998). In California, a plaintiff may demonstrate

21

malicious prosecution by showing that the underlying prosecution was: “(1)

22

commenced by or at the direction of the defendant and pursued to a legal

23

termination in plaintiff’s favor; (2) brought without probable cause; and (3) was

24

initiated with malice.” Zamos v. Stroud, 32 Cal. 4th 958, 965 (2004).

25

Defendants move for summary judgment on Plaintiff’s malicious

26

prosecution claim. Plaintiff alleges that by filing false or inaccurate police

27

incident reports, Plaintiff was charged with false criminal violations and subjected

28

to malicious prosecution. (Compl. ¶ 22.) Defendants argue that Plaintiff was
22
15-cv-2638-BTM-BLM

1

arrested with probable cause. (Defs.’ MSJ 23.) As already discussed above, the

2

officers did not have probable cause to arrest Plaintiff. However, they negate the

3

existence of malice by arguing that any contention that the officers hid the

4

circumstances of the arrest is contradicted by videos obtained from their body

5

cameras. (Defs. MSJ 23.) In his Opposition, Plaintiff does not address or submit

6

evidence to create a genuine issue of disputed fact as to malice.

7

Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s

8

claim for malicious prosecution is GRANTED.

9

C. Monell Claim

10

Plaintiff also moves against the City for its unlawful policies including its

11

failure to properly hire and train its police officers, as well as condoning the use

12

of unnecessary and unjustified force. (Compl. ¶¶ 26–29.)

13

Municipalities are considered “persons” under section 1983 and therefore

14

can be held liable for causing a constitutional deprivation. Monell v. Dep’t of Soc.

15

Servs., 436 U.S. 658, 690 (1978). Municipalities, however, cannot be held liable

16

under a theory of respondeat superior. Id. at 691. Instead, municipal liability

17

under section 1983 requires a plaintiff to prove that an official municipal policy

18

caused the constitutional violation. Monell, 436 U.S. at 694. “[I]n order to

19

establish an official policy or custom sufficient for Monell liability, a plaintiff must

20

show a constitutional violation resulting from (1) an employee acting pursuant to

21

an expressly adopted official policy; (2) an employee acting pursuant to a

22

longstanding practice or custom; or (3) an employee acting as a ‘final

23

policymaker.’” Delia v. City of Rialto, 621 F.3d 1069, 1081–82. If an officer’s

24

conduct was unconstitutional, and if it was based on a city’s official policy, the

25

city can be held liable for a violation of the plaintiff’s constitutional rights even

26

when the officer is granted qualified immunity. Huskey v. City of San Jose, 204

27

F.3d 893, 902–904 (9th Cir. 2000). However, where no injury or constitutional

28

deprivation has occurred, a city or municipality cannot be held liable. Jackson v.
23
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1

City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001). Ordinarily, whether a

2

policy or custom exists is a question for the jury. Trevino v. Gates, 99 F.3d 911,

3

920 (9th Cir. 1996). “However, when there is no genuine issue of material fact

4

and the plaintiff has failed to establish a prima facie case, disposition by

5

summary judgment is appropriate.” Id.

6

Defendants move for summary judgment on Plaintiff’s Monell claim, solely

7

arguing that there was no underlying deprivation of any rights. (Defs.’ MSJ 23.)

8

However, as discussed above, the Court finds that the officers did violate

9

Plaintiff’s Fourth Amendment rights. Therefore, the City is not entitled to

10

summary judgment on the Monell claim and Defendants’ motion as to this claim

11

is DENIED.

12

D. State Law Claims

13

In addition to the federal causes of action, Plaintiff alleges state law claims

14

against all Defendants for negligence, battery, false arrest/imprisonment, and

15

violation of California Civil Code § 52.1.

16

1. Negligence

17

It appears that Plaintiff rests his negligence claim on the same conduct as

18

his section 1983 claims. (Compl. ¶¶ 30–32.) Defendants seek summary

19

judgment on this claim arguing that even if the officers were negligent, they are

20

immune from liability under California Government Code sections 821.6 and

21

815.2(b). (Defs.’ MSJ 24.)

22

California Government Code section 821.6 provides immunity to a public

23

employee who caused an injury “by his instituting or prosecuting any judicial or

24

administrative proceeding within the scope of his employment, even if he acts

25

maliciously and without probable cause.” The “principal function” of section

26

821.6 is “to provide relief from malicious prosecution.” Blankenhorn v. City of

27

Orange, 485 F.3d 463, 488 (9th Cir. 2007). The Ninth Circuit recently considered

28

the scope of section 821.6. Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 847
24
15-cv-2638-BTM-BLM

1

(9th Cir. 2016). While it acknowledged that California Courts of Appeal have

2

interpreted section 821.6 more expansively, the Ninth Circuit determined that the

3

California Supreme Court would continue to limit its application to claims of

4

malicious prosecution. Id. As such, it held that a district court erred in dismissing

5

state law claims that were not malicious prosecution claims based on immunity

6

under section 821.6. Id. Therefore, here, section 821.6 does not shield the

7

officers from liability for a negligence claim.

8

California Government Code section 815.2(b) provides that “a public entity

9

is not liable for an injury resulting from an act or omission of an employee of the

10

public entity where the employee is immune from liability.” A public entity’s

11

immunity therefore follows its employee’s immunity. Garmon, 828 F.3d at 847.

12

The officers are not immune from liability, and in turn, neither is the City.

13
14

Thus, Defendants’ motion for summary judgment as to Plaintiff’s
negligence claim is DENIED.

15

2. Battery

16

Under California law, the law governing a claim for battery is the same as

17

that used to analyze a claim for excessive force under the Fourth Amendment.

18

Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1274–75 (1998). A police

19

officer in California may use reasonable force to make an arrest. Id. at 1272–73.

20

Therefore, a plaintiff must prove that unreasonable force was used. Id. at 1273.

21

Plaintiff rests his battery claim particularly on “the acts of grabbing [his] right arm

22

and kicking the back of his legs . . . .” (Compl. ¶ 34.) As discussed above, there

23

are key disputed facts that preclude summary judgment on Plaintiff’s section

24

1983 excessive force claim. Consequently, summary judgment is not

25

appropriate with respect to Plaintiff’s battery claim.

26
27
28

Defendants’ motion for summary judgment on this claim is, therefore,
DENIED.
3. False Arrest
25
15-cv-2638-BTM-BLM

1

False imprisonment is the “nonconsensual, intentional confinement of a

2

person, without lawful privilege, for any appreciable length of time, however

3

short.” Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (1994). Under California law,

4

the tort of false arrest and imprisonment are considered one in the same,

5

because “false arrest is but one way of committing false imprisonment.” Collins

6

v. San Francisco, 50 Cal. App. 3d 671, 673 (1975). A police officer who makes

7

an arrest without a warrant or probable cause may be held civilly liable for false

8

arrest of imprisonment. Dragna v. White, 45 Cal. 2d 469, 471 (1955).

9

Plaintiff rests his claim for false arrest and/or imprisonment on the same

10

conduct underlying his false arrest under his section 1983 claim. Defendants

11

move for summary judgment on Plaintiff’s state claim by arguing that they are

12

immune because probable cause existed for the arrest. (Defs.’ MSJ 24.) As

13

discussed above, the officers did not have probable cause to arrest Plaintiff

14

under California Penal Code section 273.5(a)) or section 148.

15
16

Thus, Defendants’ motion for summary judgment on Plaintiff’s state law
false arrest claim is DENIED.

17

4. California Civil Code § 52.1

18

California Civil Code section 52.1, otherwise known as the Bane Act, allows

19

an individual to bring civil action for interference with his rights under the United

20

States or California Constitutions by threats, intimidation, or coercion. Venegas

21

v. Cnty. of Los Angeles, 153 Cal. App. 4th 1230, 1239 (2007).

22

Plaintiff’s claim against all Defendants under section 52.1 arises from his

23

unlawful entry, seizure and excessive force claims under the United States and

24

California Constitutions. (Compl. ¶ 10.) Defendants move for summary

25

judgment on this claim solely on the grounds that Defendants did not interfere

26

with Plaintiff’s rights. (Defs.’ MSJ 25.) However, as discussed above,

27

Defendants did violate Plaintiff’s Fourth Amendment right by unlawfully entering

28

his home and arresting him without probable cause.
26
15-cv-2638-BTM-BLM

Accordingly, Defendants’ motion for summary judgment is DENIED.

1
2

E. Claims against Officers Boylan and Perkins

3

Lastly, Defendants argue that all causes of action against Officers Boylan

4

and Perkins should be dismissed because they did not personally participate in

5

the actions complained of. (Defs.’ Reply 9.)

6

An officer’s liability under section 1983 is predicated on his “integral

7

participation” in the alleged violation. Chuman v. Wright, 76 F.3d 292, 294–95

8

(9th Cir. 1996). “‘[I]ntegral participation’ does not require that each officer’s

9

actions themselves rise to the level of a constitutional violation.” Boyd v. Benton

10

Cnty., 374 F.3d 773, 780 (9th Cir. 2004). “But it does require some fundamental

11

involvement in the conduct that allegedly caused the violation.” Blankenhorn,

12

485 F.3d 481 n. 12.

13

As discussed above, the Court has already granted summary judgment as

14

to Plaintiff’s section 1983 unlawful entry, unlawful arrest, and malicious

15

prosecution claims. As to Plaintiff’s section 1983 excessive force claim, the

16

videos show that Officer Visconti alone used force to bring Plaintiff to the ground.

17

Neither Officer Perkins nor Officer Boylan assisted him in doing so. As such,

18

they were not integral participants of the alleged use of excessive force and

19

cannot be held liable. Accordingly, Officers Boylan and Perkins are granted

20

summary judgment on Plaintiff’s section 1983 excessive force claims. For similar

21

reasons, they are also granted summary judgment on Plaintiff’s state law battery

22

claim.
As to Plaintiff’s California false arrest claim, the record is unclear as to what

23
24

role Officers Perkins and Boylan played in the arrest. Therefore, Defendants

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have not carried their burden of demonstrating an absence of material dispute of

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fact. Consequently, Officers Boylan and Perkins are denied summary judgment

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on Plaintiff’s state law false arrest claim.

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//
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15-cv-2638-BTM-BLM

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IV. CONCLUSION
For the reasons discussed above, the Defendants’ motion for summary

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judgment is GRANTED IN PART AND DENIED IN PART. The Court ORDERS

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as follows:

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1. Officers Visconti, Boylan, and Perkins are granted summary judgment

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with respect to Plaintiff’s section 1983 unlawful detention, unlawful

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entry, unlawful arrest and malicious prosecution claims.

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2. Officers Boylan and Perkins are granted summary judgment with
respect to Plaintiff’s section 1983 excessive force claim and state law
battery claim.

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3. Defendants’ motion is DENIED as to all remaining issues.

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4. Plaintiff’s motion for partial summary judgment is DENIED.

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IT IS SO ORDERED.

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Dated: September 11, 2017

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15-cv-2638-BTM-BLM