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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE QUINTERO, Case No.: 15-cv-2638-BTM-BLM Plaintiff, 12 13 v. 14 CITY OF ESCONDIDO, NATHAN VISCONTI, DYLAN BOYLAN, ZACHARY PERKINS, et. al., 15 16 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] 17 18 Plaintiff Jorge Quintero (“Plaintiff”) brings this action against the City of 19 Escondido (the “City”) and Escondido Police Department (“EPD”) Officers Nathan 20 Visconti (“Officer Visconti”), Dylan Boylan (“Officer Boylan”), and Zachary Perkins 21 (“Officer Perkins”) (collectively “Defendants”). Plaintiff asserts a total of six 22 causes of action against Defendants: (1) a 42 U.S.C. section 1983 claim against 23 the officers; (2) a section 1983 Monell1 claim against the City; (3) negligence; (4) 24 battery; (5) false arrest; and (6) a California Civil Code § 52.1 civil rights violation. 25 (Compl. ECF No. 1.) 26 27 28 1 Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658 (1978). 1 15-cv-2638-BTM-BLM 1 On September 8, 2016, Defendants filed a motion for summary judgment 2 on all claims. (Defs.’ Mot. for Summ. J. (“Defs.’ MSJ”) ECF No. 13.) On 3 September 9, 2016, Plaintiff filed a cross motion for summary judgment as to the 4 section 1983 claims asserted against Officer Visconti only. (Pl.’s Mot. for Summ. 5 J. (“Pl.’s MSJ”) ECF No. 15.) For the reasons discussed below, Defendants’ 6 motion is denied in part and granted in part, and Plaintiff’s motion is denied. 7 I. BACKGROUND 8 9 A. Plaintiff’s Apartment On December 6, 2014, at approximately 11:12 p.m., EPD Officers were 10 dispatched to Plaintiff’s apartment. (Notice of Lodgment in Support of Defs.’ MSJ 11 (“NOL”), Ex. 13 (“Defs. Visconti’s Dep.”), 33:17–24, 35:16–18). The officers 12 received the following information over the radio call: “This will be a female from 13 the apartment screaming and pounding on the door asking to call 9-1-1. She’s 14 back inside her apartment now. She’ll be Hispanic, 5’ 6’’ black hair. Uh, 1301 15 Morning View Drive, and this will be actually the apartment below and to the right 16 facing 604.” (NOL, Ex. 11 (Tr. of EPD dispatch radio communication)). 17 Officer Visconti was the first to arrive at the apartment complex 18 approximately 7–8 minutes after the radio call. (Visconti’s Dep. 34:21–25.) Upon 19 arriving, Officer Visconti made contact with a woman standing on a balcony who 20 he believed was the reporting party. (Defs. Visconti’s Dep. 40:16–24.) The 21 woman pointed down further north in the complex and signaled to Plaintiff’s 22 apartment. (Defs. Visconti’s Dep. 41:9–14.) Officer Visconti approached the 23 apartment and stood near the doorway to see if he could hear anything from 24 inside. (Defs. Visconti’s Dep. 43:2–6.) After hearing nothing, he walked away 25 from the doorway and waited for other officers to arrive. (Defs. Visconti’s Dep. 26 43:9–18.) Shortly thereafter, Officers Perkins, Boylan and Boylan’s training 27 officer, Ryan Vanzandt arrived. (NOL, Ex. 14 (“Boylan’s Dep.”), 22:4–5). 28 At this point, three separate body cameras worn by Officers Visconti, 2 15-cv-2638-BTM-BLM 1 Perkins and Boylan captured the following: When Officer Perkins, Boylan and 2 Vanzandt met with Officer Visconti, he informed them that a woman pointed out 3 Plaintiff’s apartment but that he had not heard anything. (NOL, Ex. 1, (“Visconti’s 4 B.C. Video”).) Officer Visconti proceeded to knock on the door. (Id.) Plaintiff 5 opened the door while holding his son in his arms. (Id.) Immediately after 6 Plaintiff opened the door, Officer Visconti announced that they were police 7 officers. (Id.) Officer Visconti asked Plaintiff how he was doing and asked him to 8 step outside of his apartment. (Id.) Plaintiff initially agreed and took a step 9 forward, but stopped just before reaching the doorway. (NOL, Ex. 5, (“Boylan’s 10 B.C. Video”).) Officer Visconti then commanded Plaintiff to step outside, but 11 Plaintiff refused and stated “na, I’m good right here bro.” (Id.) Officer Visconti 12 began approaching Plaintiff and responded, “okay.” (Id.) 13 While stepping on the apartment’s threshold with his left foot, Officer 14 Visconti reached through the doorway and placed both of his hands on Plaintiff’s 15 right bicep. (Id.) He again commanded that Plaintiff step outside and began to 16 pull Plaintiff’s right arm, leaving only his left arm free to hold his son. (Id.) 17 Plaintiff, now standing perpendicular to the door frame with his left foot in the 18 apartment and his right food outside, shifted back into the apartment and asked 19 to put his son down to which Officer Visconti responded “no.” (NOL, Ex.3, 20 (“Perkins’ B.C. Video”).) Officer Visconti positioned himself behind Plaintiff and 21 placed his left hand on Plaintiff’s left side while using his right hand to pull 22 Plaintiff’s right arm. (Id.) As Officer Visconti pulled him outside, Plaintiff’s son, 23 who was sitting on Plaintiff’s left arm, fell backwards into the apartment on the tile 24 floor from about a height of four to five feet. (Boylan’s B.C. Video.) 25 26 27 28 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 3 15-cv-2638-BTM-BLM 1 Visconti and Boylan placed Plaintiff in handcuffs. (Id.) After handcuffing Plaintiff, 2 Officer Visconti commanded him to take a seat twice. (Id.) Plaintiff remained 3 standing and moved his fingers to the inside of his boxer shorts. (Id.) Plaintiff 4 stated, “[l]et me pull my boxers up.” (Id.) Officer Visconti again commanded him 5 to take a seat, but Plaintiff did not move and kept his fingers inside his boxer 6 shorts. (Id.) As Plaintiff repeated, “let me just pull up my boxer shorts,” Officer 7 Visconti flipped Plaintiff on his back. (Id.) Officer Visconti then yelled: “[t]ake a 8 seat. Listen to me when I tell you what to do.” (Id.) Plaintiff responded: “[a]lright 9 man. Relax, bro. I’m not resisting arrest. I’m not. Can I sit up, please?” (Id.) 10 Officer Visconti helped Plaintiff sit up and asked if he had any weapons. (Id.) 11 Plaintiff said he did not. (Id.) Officer Visconti subsequently searched Plaintiff 12 and found a knife in his pocket. (Id.) 13 14 15 B. Plaintiff’s Arrest Plaintiff was arrested and booked on charges of felony child 16 abuse/endangerment, in violation of California Penal Code § 273.5(a)), and 17 resisting, obstructing, or delaying an officer’s investigation, in violation of 18 California Penal Code § 148. (NOL, Ex. 16, 6 (“Arrest Report”).) The District 19 Attorney filed these charges as misdemeanors but eventually dismissed all of 20 them. (Pl.’s MSJ 8.) 21 II. STANDARD 22 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil 23 Procedure if the moving party demonstrates the absence of a genuine issue of 24 material fact and entitlement to judgment as a matter of law. Celotex Corp. v. 25 Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing 26 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, 27 Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 28 1997). A dispute as to a material fact is genuine if there is sufficient evidence for 4 15-cv-2638-BTM-BLM 1 a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. 2 at 323. 3 A party seeking summary judgment always bears the initial burden of 4 establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 5 323. The moving party can satisfy this burden in two ways: (1) by presenting 6 evidence that negates an essential element of the nonmoving party’s case; or (2) 7 by demonstrating that the nonmoving party failed to establish an essential element 8 of the nonmoving party’s case on which the nonmoving party bears the burden of 9 proving at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will 10 not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. 11 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 12 Once the moving party establishes the absence of genuine issues of 13 material fact, the burden shifts to the nonmoving party to demonstrate that a 14 genuine issue of disputed fact remains. Celotex, 477 U.S. at 314. The 15 nonmoving party cannot oppose a properly supported summary judgment motion 16 by “rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S. 17 at 256. Rather, the nonmoving party must “go beyond the pleadings and by her 18 own affidavits, or by ‘the depositions, answers to interrogatories, and admissions 19 on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” 20 Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). 21 The court must view all inferences drawn from the underlying facts in the 22 light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. 23 Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Credibility determinations, the 24 weighing of evidence, and the drawing of legitimate inferences from the facts are 25 jury functions, not those of a judge, [when] he [or she] is ruling on a motion for 26 summary judgment.” Anderson, 477 U.S. at 255. 27 28 III. DISCUSSION To establish a violation under section 1983, Plaintiff must prove that 5 15-cv-2638-BTM-BLM 1 Defendants acted under the color of state law and in doing so, deprived him of 2 his constitutional rights. West v. Atkins, 487 U.S. 42, 48 (1988) 3 A. § 1983 Claims Asserting Fourth Amendment Claims—Qualified Immunity 4 Plaintiff alleges that Defendants, namely Officer Visconti, Boylan, and 5 Perkins, violated his Fourth Amendment rights by unlawfully entering his home, 6 performing an unlawful seizure and arrest, using excessive force, and maliciously 7 prosecuting him. (Compl. ¶¶ 19–24.) 8 9 Under the doctrine of qualified immunity, government officials are protected “from liability for civil damages insofar as their conduct does not violate clearly 10 established statutory or constitutional rights of which a reasonable person would 11 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified 12 immunity attempts to balance two important interests—“the need to hold public 13 officials accountable when they exercise power irresponsibly and the need to 14 shield officials from harassment, distraction, and liability when they perform their 15 duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because 16 qualified immunity is an immunity from suit, the Supreme Court has repeatedly 17 “stressed the importance of resolving immunity questions at the earliest possible 18 stage in litigation.” Id. at 231–232. To determine whether a police officer is 19 entitled to qualified immunity, a court must consider whether: (1) the officer’s 20 conduct violated a constitutional right; and (2) that right was clearly established at 21 the time of the incident. Id. at 232. Courts, however, are not required to address 22 the two questions in any particular order. Id. at 243. 23 As to the second prong, the Supreme Court has held that an officer “cannot 24 be said to have violated a clearly established right unless the right’s contours 25 were sufficiently definite that any reasonable official in [his] shoes would have 26 understood that he was violating it, meaning that existing precedent placed the 27 statutory or constitutional question beyond debate.” City & Cnty. Of San 28 Francisco v. Sheehan, __ U.S. __, 135 S.Ct. 1765, 1774 (2015) (citations 6 15-cv-2638-BTM-BLM 1 omitted). Just recently the Supreme Court reiterated the “longstanding principle 2 that clearly established law should not be defined at a high level of generality,” 3 but instead “must be particularized to the facts of the case.” White v. Pauly, 2017 4 __ U.S. __, 137 S.Ct. 548, 552 (2017). A court denying qualified immunity must 5 effectively “identify a case where an officer acting under similar circumstances as 6 [the defendant officer] was held to have violated the Fourth Amendment.” Id. at 7 552. “This exacting standard gives government officials breathing room to make 8 reasonable but mistaken judgments by protect[ing] all but the plainly incompetent 9 or those who knowingly violate the law.” Sheehan, 135 S.Ct. at 1774 (citations 10 11 omitted). Whether a reasonable officer could have believed that his conduct was 12 lawful is a determination of law that can be decided on summary judgment only if 13 the material facts are undisputed. LaLonde, 204 F.3d at 953. “However, a trial 14 court should not grant summary judgment where there is a genuine dispute as to 15 ‘the facts and circumstances within an officer’s knowledge’ or ‘what the officer 16 and claimant did or failed to do.’” Id. (quoting Act Up!/Portland v. Bagley, 988 17 F.2d 868, 873 (9th Cir. 1993)). 18 19 20 1. Unlawful Detention a. Doorway Exception The Fourth Amendment protects individuals from unreasonable searches 21 and seizures. Payton v. New York, 445 U.S. 573, 585 (1980). The Supreme 22 Court has held that the “physical entry of the home is the chief evil against which 23 the wording of the Fourth Amendment is directed.” United States v. United 24 States District Court for the Eastern District of Michigan, et. al., 407 U.S. 297, 25 313 (1972). As such, it has adhered to the basic principle that searches and 26 seizures inside a home without a warrant are presumptively unlawful. Payton, 27 445 U.S. at 587. The Court in Payton held that the Fourth Amendment explicitly 28 prohibits police from making a warrantless and nonconsensual entry into a 7 15-cv-2638-BTM-BLM 1 suspect’s home in order to make an arrest. Id. at 576. There, the Court drew a 2 firm line at the entrance of a home, holding that absent exigent circumstances or 3 consent, “that threshold may not reasonably be crossed without a warrant.” Id. at 4 590. 5 Here, there is no dispute that the officers acted without a warrant. Instead, 6 Defendants argue that the doorway exception articulated in United States v. 7 Crapser, 472 F.3d 1141, 1148 (9th Cir. 2007) allowed Officer Visconti to detain 8 Plaintiff and move him out of his apartment in connection with the Terry2 stop. 9 (Defs.’ MSJ 10.) The Court agrees with Defendants that based on the third-party 10 911 call, Officer Visconti had reasonable suspicion to detain Plaintiff and 11 investigate whether an incident had occurred. However, after reviewing the 12 relevant case law, the Court finds that the Constitution did not permit Officer 13 Visconti to reach through the doorway and grab Plaintiff while he stood inside his 14 apartment. In Crapser, the police had reasonable suspicion to believe that an 15 16 individual occupying a motel room was involved in manufacturing 17 methamphetamine. Id. at 1143. The police approached the motel room and 18 knocked on the door. Id. In response, a woman and the defendant came out 19 and closed the door behind them. Id. After speaking with the defendant for 20 several minutes, he unexpectedly pulled a syringe from his right back pocket. Id. 21 The police subsequently searched him and found three to four additional 22 syringes and a small bag containing methamphetamine. Id. The police arrested 23 him for possession of controlled substance. Id. at 1145. On appeal, the 24 defendant argued that a Terry stop could not occur “at” a person’s residence. Id. 25 at 1148. The Ninth Circuit disagreed and held that when a suspect voluntarily 26 opens the door of his residence in response to a non-coercive “knock and talk,” 27 28 2 Terry v. Ohio, 392 U.S. 1, 27 (1968). 8 15-cv-2638-BTM-BLM 1 the police may temporarily seize the suspect outside the home, or at the 2 threshold, provided that they have reasonable suspicion of criminal activity. 3 Crapser, 472 F 3d. at 1148. However, the Ninth Circuit explicitly reaffirmed that 4 “Terry does not apply inside a home.” Id. at 1149. It stated: 5 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. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 9 15-cv-2638-BTM-BLM 1 agents, that determines whether an arrest occurs within a home.”). The 2 detention therefore took place inside Plaintiff’s home, where he remained 3 protected by the warrant requirement. See Payton, 445 U.S. at 587. 4 It is also worth noting that this case differs from those cases cited in 5 Crapser in that none of the arrests or detentions in those cases took place inside 6 the home. In United States v. Vaneaton, 49 F.3d 1423, 1427 (9th Cir. 1995), the 7 police did not enter the suspect’s home until after they formally placed him under 8 arrest. Similarly in United States v. Gori, 230 F.3d 44, 53 (2d. Cir. 2000), the 9 officers never crossed the threshold of the apartment to seize the plaintiffs, but 10 instead ordered them to step outside after they opened the door of the 11 apartment. Lastly, in United States v. Santana, 427 U.S. 38, 40 n.1, 43 (1976), 12 the defendant was “standing directly in the doorway” when the police first saw the 13 defendant. It was under those circumstances that the Supreme Court held that 14 no warrant was required to arrest her because she was exposed to public view, 15 speech, hearing and touch as if she had been standing completely outside her 16 house. Id. at 42. However, the Supreme Court recognized that the warrant 17 requirement was triggered when the officers crossed the threshold of her home 18 to arrest her inside. Id. at 42–43. In light of the entry, the Supreme Court 19 ultimately relied on the exigent circumstances exception to justify the officers’ 20 warrantless entry into her home. Id. at 42–43. 21 The facts of this case are instead more analogous to those in LaLonde v. 22 County of Riverside, 204 F.3d 947 (9th Cir. 2000). There, the officers responded 23 to the plaintiff’s apartment in regard to a noise complaint. Id. at 951. The 24 plaintiff’s roommate opened the door and spoke with an officer who asked if the 25 plaintiff was there. Id. The plaintiff walked into the officers’ view, but remained 26 inside the apartment and did not at any time approach the doorway. Id. The 27 officers asked the plaintiff to step outside, but he refused their requests. Id. 28 Despite the lack of a warrant and absent exigent circumstances, the officers 10 15-cv-2638-BTM-BLM 1 entered his home and placed the plaintiff under arrest for obstructing a police 2 investigation. Id. 951–52. In holding that the arrest violated the Fourth 3 Amendment, the Ninth Circuit rejected the argument that the doorway exception 4 applied. Id. at 955. It stated: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 25 qualified immunity if the court can “identify a case where an officer acting under 26 similar circumstances . . . was held to have violated the Fourth Amendment.” 27 White, 137 S.Ct. at 552. 28 11 15-cv-2638-BTM-BLM 1 As discussed above, the Ninth Circuit in Lalonde held that the case did not 2 fall under the doorway exception and was thus unconstitutional because “[t]he 3 arrest took place only after the officers had crossed the threshold of the door and 4 entered Lalonde’s apartment.” Lalonde, 204 F.3d at 955. Similarly in United 5 States v. Quaempts, 411 F.3d 1046, 1048 (9th Cir. 2005), the Ninth Circuit 6 reaffirmed that to “extend the holding of Vaneaton beyond the threshold into the 7 interior of the home would do violence to the principles laid down in Payton that 8 established a zone of privacy inside the physical dimensions of one’s home.” 9 The defendant in Quaempts lived in a small trailer home and was lying in bed 10 when he reached over to open the door for the police officers. Id. at 1047. When 11 the defendant opened the door, the officer from outside the trailer told him he 12 was being placed under arrest. The defendant was therefore inside his home 13 when the officers arrested him. Id. Relying on the fact that the defendant “did 14 not take himself outside the physical zone of privacy of the house by going to the 15 threshold of his house or to any other public place,” the court held that the 16 officers performed an unlawful arrest inside his home. Id. at 1049. 17 Finally in United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980), the 18 Ninth Circuit held that the warrantless arrest of the defendant, while he stood 19 within his home, constituted a violation of his Fourth Amendment rights. After 20 finding that the arrest occurred as the defendant stood within his home at the 21 doorway, the court turned to whether the arrest of the defendant violated his 22 Fourth Amendment rights. Id. at 756. The Court reasoned: 23 24 25 26 27 28 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 12 15-cv-2638-BTM-BLM 1 2 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. 3 4 5 Id. at 757. It is thus clearly established that law enforcement officers cannot break the 6 threshold of a home to detain or arrest an individual who is standing inside his 7 home. The Court finds that these cases involve similar enough circumstances to 8 put Officer Visconti on notice that reaching across the threshold to detain Plaintiff 9 inside his home is unconstitutional. Officer Visconti is therefore denied qualified 10 immunity as to the unlawful detention. However, as discussed below, because 11 the officers are entitled to qualified immunity as to the warrantless entry under 12 the emergency aid doctrine, Officer Visconti’s detention of Plaintiff in connection 13 with that entry is also shielded from liability. 14 15 2. Unlawful Entry a. Emergency Aid Doctrine 16 Defendants alternatively argue that Plaintiff’s detention and warrantless 17 entry into Plaintiff’s apartment was reasonable pursuant to the emergency aid 18 doctrine. (Defs.’ MSJ 13.) Defendants assert that the officers had reasonable 19 grounds to believe that there was an immediate need to enter the apartment to 20 protect a woman that had been screaming outside for someone to call 911. 21 (Defs.’ MSJ 14.) Additionally, they argue that they had the authority to detain 22 Plaintiff while they conducted a protective sweep of the apartment. 23 A warrantless entry of a home is justified under the emergency aid 24 exception when: “(1) considering the totality of circumstances, law enforcement 25 had an objectively reasonable basis for concluding that there was an immediate 26 need to protect others or themselves from serious harm; and (2) the manner and 27 scope of the search were reasonable to meet the need.” United States v. Snipe, 28 515 F.3d 947, 952 (9th Cir. 2008). Under the first prong, the Government is 13 15-cv-2638-BTM-BLM 1 required “to point to specific and articulable facts which, taken together with 2 rational inferences from those facts, (would) reasonably warrant (the warrantless) 3 intrusion.” United States v. Dugger, 603 F.2d 97, 99 (9th Cir. 1979). The Ninth 4 Circuit has made it clear, that “if police officers otherwise lack reasonable 5 grounds to believe there is an emergency, they must take additional steps to 6 determine whether there is an emergency that justified entry in the first place.” 7 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 15-cv-2638-BTM-BLM 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 15-cv-2638-BTM-BLM 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 15-cv-2638-BTM-BLM 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 15-cv-2638-BTM-BLM 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 15-cv-2638-BTM-BLM 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 15-cv-2638-BTM-BLM 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 15-cv-2638-BTM-BLM 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 25 have not carried their burden of demonstrating an absence of material dispute of 26 fact. Consequently, Officers Boylan and Perkins are denied summary judgment 27 on Plaintiff’s state law false arrest claim. 28 // 27 15-cv-2638-BTM-BLM 1 2 IV. CONCLUSION For the reasons discussed above, the Defendants’ motion for summary 3 judgment is GRANTED IN PART AND DENIED IN PART. The Court ORDERS 4 as follows: 5 1. Officers Visconti, Boylan, and Perkins are granted summary judgment 6 with respect to Plaintiff’s section 1983 unlawful detention, unlawful 7 entry, unlawful arrest and malicious prosecution claims. 8 9 10 2. Officers Boylan and Perkins are granted summary judgment with respect to Plaintiff’s section 1983 excessive force claim and state law battery claim. 11 3. Defendants’ motion is DENIED as to all remaining issues. 12 4. Plaintiff’s motion for partial summary judgment is DENIED. 13 IT IS SO ORDERED. 14 Dated: September 11, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 15-cv-2638-BTM-BLM

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?