Koistra et al v. San Diego, County of et al

Filing 63

ORDER Granting in Part and Denying in Part Defendants' 52 Motion for Summary Judgment. The hearing set for April 20, 2018 shall be vacated. Signed by Judge Gonzalo P. Curiel on 4/19/18. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TRINA KOISTRA; and LARRY FORD,

Case No.: 16cv2539-GPC(AGS)

Plaintiffs,

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v.

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

COUNTY OF SAN DIEGO; PLUTARCO
VAIL, and DOES 1 through 50, inclusive,

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Defendants.

[Dkt. No. 52.]

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Before the Court is Defendants’ motion for summary judgment. (Dkt. No. 52.)

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Plaintiff filed a reply and Defendants replied. (Dkt. No. 58, 60.) Based on a careful

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review of the briefs, the supporting documentation and the applicable law, the Court

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GRANTS in part and DENIES in part Defendants’ motion for summary judgment.

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Background
The original complaint was filed on October 12, 2016. (Dkt. No. 1.) After the

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Court granted Plaintiffs’ ex parte application to amend the complaint, (Dkt. No. 25), on

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August 16, 2017, Plaintiffs Trina Koistra (“Koistra”) and Larry Ford (“Ford”) filed an

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amended complaint (“FAC”) against the County of San Diego (“County”) and Sheriff’s

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Deputy Plutarco Vail (“Deputy Vail”) (collectively “Defendants”). (Dkt. No. 26.) On

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October 19, 2017, in ruling on Defendants’ motion to dismiss the FAC, the Court granted

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in part and denied in part the motion with leave to amend. (Dkt. Nos. 34, 42.) Plaintiffs

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Koistra and Ford filed a second amended complaint (“SAC”) on October 26, 2017.1

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(Dkt. No. 43, SAC.) Defendants move for summary judgment solely on Koistra’s causes

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of action and include the following:

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1.

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Fourth Amendment;

First Cause of Action - 42 U.S.C. § 1983 claim for excessive force under the
Third Cause of Action - Monell2 liability for the County’s unconstitutional custom,

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2.

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practice or policy;

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3.

Fourth Cause of Action - violation of California Civil Code section 52.1;

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4.

Fifth Cause of Action - false arrest/false imprisonment;

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5.

Sixth Cause of Action - battery;

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Seventh Cause of Action – assault;

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7.

Eighth Cause of Action - intentional infliction of emotional distress; and

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8.

Ninth Cause of Action – negligence.

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(Dkt. No. 43, SAC.)

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In their motion, Defendants contend that the Court dismissed with prejudice all of Ford’s claims
against the County and Deputy Vail. (Dkt. No. 52-1 at 16.) The Court disagrees that the Court’s order
on the motion to dismiss the FAC dismissed Ford’s claims with prejudice. (See Dkt. No. 42.)
Moreover, Ford is named as a Plaintiff in the SAC. (Dkt. No. 43.) However, it appears Ford may not
have any valid claims against Defendants. The sole constitutional claim alleged by Ford is the second
cause of action for an unreasonable seizure against Does 1 through 25 but Ford has not moved to amend
the SAC to name these Doe defendants. Ford also alleges Monell liability against the County, violation
of California Civil Code section 52.1, false arrest, intentional infliction of emotional distress and
negligence based on the allegations related to the unreasonable seizure claim. (Id.) Plaintiff does not
dispute Defendants’ characterization as to the status of Ford’s claims. However, neither party has
moved to dismiss Ford as a Plaintiff; therefore, procedurally, his claims remain.
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Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 (1978).
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Factual Background
The San Diego Regional Fugitive Task Force (“FTF”) is a multi-agency task force

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that pursues persons wanted for violent crimes and significant narcotic offenses in the

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San Diego Area. (Dkt. No. 58-1, P’s Response to Ds’ SSUF, No. 1.) On December 22,

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2015, the Superior Court of California issued a bench warrant for the arrest of Rory Fay

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(“Fay”) for violating the terms of his probation. (Id., No. 2.) FTF was assigned to search

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for Fay, who was identified as a person of interest in connection with the homicide of

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Bren Fisher that occurred around January 7, 2016. (Id., Nos. 3, 4.) Based on database

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searches, FTF detectives learned that “Mr. Fay had an active no-bail felony warrant for

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his arrest for possession of a controlled substance while armed, was on probation as a

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post release offender, had two prior felony strikes, had a psychiatric inmate history, and

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had a history of drug and steroid abuse.” (Id., No. 5.)

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Using cell phone tracking technology, the FTF learned that Fay’s cell phone was in

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the mobile home residence located at 250 La Cresta Heights Road, No. 3, El Cajon,

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California 92021 which is where Plaintiff Koistra lived. (Id., Nos. 6, 7.) FTF also

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learned that Koistra was a convicted felon with drug and theft history, was subject to

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arrest for violating her probation and waived her Fourth Amendment right as a condition

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of her probation. (Id., No. 8.)

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From 2008 to April 2, 2016, Deputy Plutarco Vail was a canine handler with the

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County of San Diego Sheriff’s Department (“Sheriff’s Department”). (Id., No. 9.) As a

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canine handler, Deputy Vail was regularly called upon to participate in hot calls and high

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risk searches for wanted and dangerous felons. (Id., No. 10.)

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On the evening of January 8, 2016, Fay helped Koistra get a ride home from a nail

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salon with a man unknown to her. (Id., No. 13.) Fay was an acquaintance of Koistra

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who had met her once or twice about a year ago. (Id., No. 12; Dkt. No. 52-2, Ds’ NOL,

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Ex. F, Koistra Depo. at 26:12-20; 29:4-24.) Koistra, Fay and this unknown man drove to

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Koistra’s home and spent about one hour in her bedroom looking at decorations. (Dkt.

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No. 58-1, P’s Response to Ds’ SSUF, No. 14.) Koistra does not remember if she, Rory

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Fay or this unknown man used any drugs that evening. (Id., No. 15.) The unknown man

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left but Fay spent the night at Koistra’s residence with her permission. (Id., No. 16.)

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On the morning of January 9, 2016, Deputy Vail, and his canine Hank, were called

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upon to assist the FTF in the search for Fay. (Id., No. 17.) That morning, the FTF

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briefed Deputy Vail informing him that Fay was a wanted felon, a person of interest in a

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recent homicide, had two prior felony strikes, was considered to be armed and dangerous,

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and had a history of drug abuse and had a psychiatric inmate history. (Id., No. 18.)

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Immediately after a briefing, Deputy Vail looked Fay up on the Sheriff Department’s Jail

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Inmate Management System and learned that Fay was on parole, was a two-striker, and

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had numerous arrests for narcotics, firearm possession and acts of violence. (Id., No. 19.)

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On that morning, Probation Officer Bobbitt informed Deputy Vail that the residence to be

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searched was the home of Koistra, who was a convicted felon with drug and theft history,

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was on probation, had waived her Fourth Amendment rights as a condition of that

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probation, and if found during the search, was subject to arrest for violating the terms of

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her probation. (Id., No. 20.) When the FTF team and Deputy Vail arrived on the scene, a

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perimeter had been set up around the residence. (Id., No. 21.) A helicopter from the

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Department’s Aerial Support to Regional Enforcement Agencies (“ASTREA”) was

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flying overhead to assist the FTF to monitor perimeter positions and provide aerial

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surveillance in the event Fay fled out of the perimeter. (Id., No. 22.) There were

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approximately five law enforcement vehicles, plus approximately ten deputies and/or

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police officers on scene at that time. (Id., No. 23.)

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Standing approximately fifteen feet from the front door, Sergeant Christopher

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Davis (“Sergeant Davis”) of the FTF used a handheld Public Announcement (“PA”)

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system to make the following announcements:

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“Sheriff's department on a probation check, exit the trailer now”
“If anyone is inside, you need to exit now”
“Sheriff's department we have a canine, if you do not come out you will be
bit.”

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(Id., No. 24.) These commands were repeated for about ten to fifteen minutes. (Dkt. No.

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52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 5; id., Ex. B, Perata Decl. ¶ 6; id., Ex. C, Davis Decl.

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¶ 6; id., Ex. D, Bobbit Decl. ¶ 6; id., Ex. E, Miller Decl. 3 ¶ 4.) Koistra testified that she

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did not hear these announcements. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo.
at 69:21-23; 71:20-25; 72:7-11.) Koistra was prescribed and may have taken Lithium,
Depakote, Xanax, and Norco within 24 hours of this incident. (Dkt. No. 58-1, P’s
Response to Ds’ SSUF, No. 37.)

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After Sergeant Davis’s announcements, Larry Ford, Koistra’s boyfriend,

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voluntarily exited the front door of residence. (Dkt. No. 52-2, Ds’ NOL, Ex. A, Vail

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Decl. ¶ 6; id., Ex. B, Perata Decl. ¶ 6; id., Ex. C, Davis Decl. ¶ 6; id., Ex. D, Bobbitt
Decl. ¶ 6; id., Ex. E, Miller Decl. ¶ 5; Dkt. No. 52-2, Ds’ NOL, Ex. F, Koistra Depo. at
39:5-6.) Ford reported that the only other person in the trailer was an elderly white
female. (Dkt. No. 58-1, P’s Response to Ds’ SSUF, No. 26.) After Ford came out,
Sergeant Davis repeated the same announcement for about another ten minutes. (Dkt.
No. 52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 5; id., Ex. B, Perata Decl. ¶ 6; id., Ex. C, Davis
Decl. ¶ 6; id., Ex. D, Bobbitt Decl. ¶ 6; id., Ex. E, Miller Decl. ¶ 6.) Koistra testified she
did not hear this set of commands. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo.
at 69:21-23; 71:20-25; 72:7-11.) However, Koistra admitted in her response to a request
for admission that she heard law enforcement announcing their presence before they
entered the home. (Dkt. No. 52-2, Ds’ NOL, Ex. N at 110, id., Ex. O at 116.)

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Jack Miller was a witness and resides at 250 La Cresta Heights Road, Space 5 in El Cajon, CA which
is located 25 to 30 yards from Koistra’s residence. (Dkt .No. 52-2, Ds’ NOL, Ex. E.)
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On the day of the incident, Koistra was awoken by the sound of a helicopter flying

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overhead and when she looked out her living room window, she saw more than ten police

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officers surrounding her house. (Dkt. No. 58-1, P’s Response to Ds’ SSUF, Nos. 29, 30.)

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Koistra believed the officers were there for her because she had violated the terms of her

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probation. (Id., No. 31.) She went to hide in the closet of her mother’s bedroom. (Id.,

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No. 32.)

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A team of five officers, including Deputy Perata, Deputy Vail, and his canine,

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lined up in a single file at the front door of the residence with the intent to enter and

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search for Fay. (Id., No. 33.) While standing at the front door of the residence, with the

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front door open, Deputy Perata made multiple loud verbal commands such as “Sheriff's

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department with a canine, come out or you will be bit.” (Dkt. No. 52-2, Ds’ NOL, Ex. A,

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Vail Decl. ¶ 7; id., Ex. B, Perata Decl. ¶ 7; id., Ex. C, Davis Decl. ¶ 7; id., Ex. D, Bobbitt

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Decl. ¶ 7; id., Ex. E, Miller Decl. ¶ 7.) Koistra testified she did not hear any

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announcements or commands. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo. at

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69:21-23; 71:20-25; 72:7-11.) There was no response to Deputy Perata’s commands.

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(Dkt. No. 52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 7; id., Ex. B, Perata Decl. ¶ 7; id., Ex. C,

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Davis Decl. ¶ 7; id., Ex. D, Bobbitt Decl. ¶ 7.)

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The FTF entry team methodically cleared the house. (Dkt. No. 58-1, P’s Response

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to Ds’ SSUF, No. 38.) During the search, Deputy Vail held Hank by his collar. (Dkt.

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No. 52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 8.) Deputies Perata and Vail proceeded to one of

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the bedrooms where Georgia Koistra, Kostra’s mother, was standing with a walker. (Dkt.

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No. 58-1, P’s Response to Ds’ SSUF, No. 40.) The television in Georgia’s bedroom was

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on at a very high volume and it appeared that Georgia had difficulty hearing. (Id., No.

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41.) Deputy Perata yelled commands to her to exit and because that did not work, he

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made motions with his hands instructing Georgia to exit the bedroom which she did and

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was escorted out by another member of the entry team. (Id., Nos. 42, 44.) Koistra could

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hear the officers talk to her mother while hiding in the closet. (Id., No. 43.)

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The parties’ recitation of the facts dramatically diverge at this point. According to

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Defendants, while standing at the threshold of the bedroom door, Deputy Vail made two

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loud verbal commands of “Sheriff's department with a dog, come out or you will be bit.”

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(Dkt. No. 52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 10; id., Ex. B., Perata Decl. ¶ 10.) Koista

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denies hearing this command as well. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra

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Depo. at 71:20-25; 72:7-11.) Deputies Vail and Perata waited a short period of time,

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listened, and received no response. (Dkt. No. 52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 10; id.,

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Ex. B., Perata Decl. ¶ 10.)

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At that point, Deputy Vail released Hank’s collar and gave him a command to

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search. (Dkt. No. 52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 10.) Hank went to the closet, stuck

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his head in, which was partially open, but could not enter because of the clutter. (Id.)

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Officer Vail went to the closet, slid the door open and Hank lunged inside. (Id.) There

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was substantial clutter and clothing that prevented him from seeing Hank’s head. (Id.)

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Deputy Vail moved forward and pulled the clothing away from Hank and then saw him

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making contact with someone who was squatting down and hiding under a blanket in the

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far rear corner of the closet. (Id.) That person did not make any noise but then he heard a

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female voice say “ahhh.” (Id.) Deputy Vail removed the blanket and saw it was a

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female. (Id.) As Koistra was attempting to stand up, it forced Hank onto his hind legs.

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(Dkt. No. 58-1, P’s Response to Ds’ SSUF, No. 56.)

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Once Deputy Vail realized she was not Fay, he removed Hank from his contact.

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(Dkt. No. 52-2, Ds’ NOL, Ex. A, Vail Decl. ¶ 11.) Deputy Vail states that Hank had

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contact with Koistra for about 15 seconds or less. (Id.) Because Fay had not yet been

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discovered, it was important to quickly remove Hank from his contact because Fay could

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use this encounter to ambush the officers. (Id.) Koistra was handcuffed and removed

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from the vicinity. (Id.) After the incident, Deputy Vail was interviewed and he stated

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that Hank’s bite lasted about 30 seconds.4 (Dkt. No. 58-2, Peacock Decl., Ex. F at 71.)

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Koistra testified that when she heard the helicopters above, she thought the officers

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were there for her probation violation. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra

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Depo. at 69:11-13; 71:17-19.) She then went to hide in the closet of her mother’s room

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where the TV was very loud. (Id. at 73:16-19; 75:7-18.) She described herself as sitting

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down behind a chair halfway in the closet and her feet, not her legs, were hanging out

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behind the chair. (Id. at 73:24-74:1; 74:17-19; Dkt. No. 52-2, Ds’ NOL, Ex. F, Koistra

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Depo. at 76:14-18.) Her mom’s closet has two sliding closet doors and one was open

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because it was stuck. (Dkt. No. 52-2, Ex. F, Koistra Depo. at 74:11-16.) While she was

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in the closet, her mother was on her bed. (Id. at 75:23-25.) If someone is standing in the

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bedroom door of her mother’s room, the person would not be able to see her in the closet.

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(Id. at 76:19-22.) Koistra vaguely recalls that while she was in the closet, the police

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officers were talking to her mother before taking her outside the bedroom. (Id. at 77:1-

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12.) Koistra stated she did not hear any of the commands. (Dkt. No. 58-2, Peacock

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Decl., Ex. D, Koistra Depo. at 71:20-25.)

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Afterwards, an officer came to the bedroom door and told her to come out. (Dkt.

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No. 52-2, Ex. F, Koistra Depo at 77:15-16.) While in a sitting position, she responded by

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putting her arms up and said, “What’s going on. I’m unarmed” and she noticed the officer

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had a “SWAT gun” in his hand. (Id. at 77:16-23; Dkt. No. 58-2, Peacock Decl., Ex. D,

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Koistra Depo. at 78:18-25.) At the time, the TV was still on, and she did not see or hear a

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dog and did not hear whether the officer said he had a dog. (Dkt. No. 58-2, Peacock

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Decl., Ex. D, Koistra Depo. at 78:5-10.)

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No date is referenced as to the date of the interview.
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Seconds after she put her arms up and said “I’m unarmed”, the dog came and bit

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her left finger. (Id. at 79:11-12.) Then the dog bit her left hand “all the way through.”

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(Id. at 79:15-16.) She did not hear the officer say anything to the dog and he was not

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doing anything. (Id. at 79:24-80:1; 80:2-15.) The dog also bit her on her left arm, mouth,

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both sides of her face, the back of her head, and broke her jaw. (Id. at 80:21-81:6.) The

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dog also began to pull her by her mouth with his teeth and dragged her out of the

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bedroom into the living room for a distance of about twelve feet. (Id. at 81:20-21; 88:6-

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89:2.) She did not hear any commands from any of the officers while she was in the

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bedroom. (Id. at 89:3-6.) When she was in the living room, the officers yelled a

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command at the dog and he bit her again on the mouth right in the jaw with his tooth in

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her mouth. (Id. at 89:7-16.) After that bite, the officer physically grabbed the dog by his

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head. (Id. at 89:17-25.)

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Koistra testified she was in shock and in and out of consciousness during the

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encounter with Hank. (Dkt. No. 58-1, P’s Response to Ds’ SSUF, No. 58.) She also

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testified that she does not remember how long her encounter with Hank lasted because

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she was in shock but guessed it was a matter of seconds. (Dkt. No. 52-2, Ds’ NOL, Ex.

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F, Koistra Depo. at 81:9-18; 85:25-86:6; 111:25-112:12.) Emergency medical services

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were requested for Koistra about ten minutes later. (Dkt. No. 58-2, Peacock Decl., Ex. F

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at 71.)

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Koistra was removed from the vicinity by another deputy while Deputies Vail and

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Perata proceeded to the only remaining bedroom in the residence left to be cleared. (Dkt.

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No. 58-1, P’s Response to Ds’ SSUF, No. 61.) In the last bedroom, Hank found and bit

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Fay who was hiding under the bed. (Id., No. 62.) After some resistance, the deputies

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were able to wrestle Fay onto his stomach and get him handcuffed. (Id., No. 63.) Fay

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was arrested pursuant to the outstanding bench warrant. (Id., No. 64.) Fay was later

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charged, pled guilty, convicted, and sentenced to 25 years to life for first degree murder

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for the death of Bren Fisher. (Id., No. 65.)

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Koistra was arrested for violating Penal Code sections 1203.2(a) (violation of

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probation), 32 (harboring a felon) and 148 (delaying/resisting an officer). (Id., No. 66.)

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Koistra later admitted and was convicted of violating the terms of her probation. (Id.,

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No. 67.) As a result of that conviction, Trina Koistra was sentenced to 270 days in jail

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and her probation extended another year. (Id., No. 68.)

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A.

Request for Judicial Notice

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Defendants filed a request for judicial notice of state court criminal filings and

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include an appearance on a warrant against Koistra dated January 21, 2016, a felony

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complaint against Fay filed on January 19, 2016, a plea of guilty by Fay filed on February

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27, 2017, Koistra’s probation hearing/sentencing held on July 31, 2013, an ex parte bench

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warrant in the Fay state criminal case, and an abstract of judgment filed October 3, 2017

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against Fay. (Dkt. No. 52-3.) Plaintiff did not file an opposition to the request.

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Under Federal Rule of Evidence 201(b), a district court may take notice of facts

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not subject to reasonable dispute that are capable of accurate and ready determination by

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resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b);

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see also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (noting that the

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court may take judicial notice of undisputed matters of public record). Defendants seek

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judicial notice of documents filed with the state court; therefore, the Court finds the

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documents properly subject to judicial notice. The Court GRANTS Defendants’ request

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for judicial notice.

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B.

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Legal Standard on Motion for Summary Judgment
Federal Rule of Civil Procedure 56 empowers the Court to enter summary

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judgment on factually unsupported claims or defenses, and thereby “secure the just,

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speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477

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U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that there is no genuine issue as to any material fact and that the

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moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is

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material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248 (1986).

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The moving party bears the initial burden of demonstrating the absence of any

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genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can

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satisfy this burden by demonstrating that the nonmoving party failed to make a showing

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sufficient to establish an element of his or her claim on which that party will bear the

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burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden,

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summary judgment must be denied and the court need not consider the nonmoving

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party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

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Once the moving party has satisfied this burden, the nonmoving party cannot rest

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on the mere allegations or denials of his pleading, but must “go beyond the pleadings and

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by her 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.’” Celotex,

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477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an

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element of its case, the moving party is entitled to judgment as a matter of law. Id. at

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325. “Where the record taken as a whole could not lead a rational trier of fact to find for

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the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court

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must “view[] the evidence in the light most favorable to the nonmoving party.” Fontana

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v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility

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determinations, weighing of evidence, or drawing of legitimate inferences from the facts;

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these functions are for the trier of fact. Anderson, 477 U.S. at 255.

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C.

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First Cause of Action – 42 U.S.C. § 1983 - Excessive Force
In the SAC, Koistra alleges an excessive force claim in violation of her Fourth

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Amendment right against Deputy Vail. (Dkt. No. 43, SAC ¶¶ 51-54.) Specifically,

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Koistra asserts that (1) the deployment of a canine was unreasonable under the

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circumstances and (2) the continued and prolonged use of the canine to bite her for 30

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seconds after she had surrendered was unreasonable. (Dkt. No. 58 at 15-18.5)

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Defendants argue that Deputy Vail’s use of force on Koistra was reasonable under the

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facts of the case and did not violate the Fourth Amendment. Plaintiff responds that a

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resolution of this issue is a question of fact to be presented to a jury.

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Section 1983 provides plaintiffs with a cause of action when a person acting under

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the color of state law deprives them of any federal constitutional right. 42 U.S.C. ' 1983.

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An excessive force claim in the course of a law enforcement’s “seizure” is analyzed

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under the Fourth Amendment’s “objective reasonableness” standard.6 Graham v.

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Connor, 490 U.S. 386, 388 (1989). Objective reasonableness is determined “in light of

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the facts and circumstances confronting them, without regard to their underlying intent or

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motivation.” Id. at 397. “The “reasonableness” of a particular use of force must be

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judged from the perspective of a reasonable officer on the scene, rather than with the

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20/20 vision of hindsight. Id. at 396.

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The reasonableness of a seizure is determined by balancing the “nature and quality

20

of the intrusion on the individual’s Fourth Amendment interests against the importance of

21

the governmental interests alleged to justify the intrusion.” United States v. Place, 462

22
23
24
25
26
27
28

5

Page numbers are based on the CM/ECF pagination.
A Fourth Amendment seizure occurs “when there is a governmental termination of freedom of
movement through means intentionally applied.” Brower v. Cnty. of Inyo, 489 U.S. 593, 597
(1989)(emphasis omitted). “A seizure occurs even when an unintended person or thing is the object of
the detention or taking” but the seizure must be willful. Id. at 596. Here, while Plaintiff was not the
person the FTF intended to seize, a seizure nevertheless occurred because the officers’ actions were
intentional.
6

12
16cv2539-GPC(AGS)

1

U.S. 696, 703 (1983). In determining whether the manner of a seizure is objectively

2

reasonable, courts consider: “(1) ‘the severity of the intrusion on the individual’s Fourth

3

Amendment rights by evaluating the type and amount of force inflicted,’ (2) ‘the

4

government’s interest in the use of force,’ and (3) the balance between ‘the gravity of the

5

intrusion on the individual’ and ‘the government's need for that intrusion.’” Lowry v.

6

City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc) (quoting Glenn v.

7

Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011)).

8

1. Type of Force Used

9

First, as to the type and amount of force used, the Court looks to the factual

10

circumstances. Lowry, 858 F.3d at 1256. In Lowry, a recent Ninth Circuit case

11

involving the use of a police canine, the court summarized some of its precedent on

12

canine use:

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In Smith v. City of Hemet, 394 F.3d 689, 701–02 (9th Cir. 2005) (en banc),
we held that the use of a police dog constituted excessive force where the
officers sicced the dog on the plaintiff three times, including once after he
had already been pinned down, and then pepper sprayed his open wounds.
Similarly, in Chew [v. Gates], we concluded that “the force used to arrest
[the plaintiff] was severe” because the dog bit the plaintiff three times,
dragged him between four and ten feet, and “nearly severed” his arm. 27
F.3d at 1441. On the other hand, in Miller v. Clark County, we held that the
use of force, although considerable and serious, was nonetheless reasonable
and did not rise to the level of “deadly force,” even though the dog
apprehended a fleeing suspect with a bite that lasted between forty-five and
sixty seconds, “shredded” the plaintiff's muscles, and reached the bone. 340
F.3d at 961–66.
Lowry, 858 F.3d at 1256–57. Based on these cases, the Lowry court concluded that the
use of force, in its case, was “moderate” and not severe where the officer was closely
following behind the canine and called the canine off quickly after the initial contact. Id.
at 1257 (contact was so brief that the Sergeant questioned whether contact had even
occurred).
13
16cv2539-GPC(AGS)

1

In viewing the facts in the light most favorable to Koistra, the canine bit into her

2

left finger, left hand, left arm, face, mouth and skull for about thirty seconds even though

3

she surrendered by showing herself, putting her hands up and saying “What’s going on?

4

I’m unarmed.” She suffered a broken jaw and bites to her arms, hands and face. In

5

addition, the canine with his teeth, dragged Koistra by her mouth from the bedroom into

6

the living room for about twelve feet. She was hospitalized for about three or four days,

7

underwent three surgeries for her broken jaw, and suffered facial lacerations and stitches

8

on her face, lacerations and stitches or staples on her left forearm and finger, right finger

9

injury and injury to her skull. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo. at

10

101:9-102:25; 104:1-6.) At the hospital, a tooth was found in her mouth. (Id. at 101:8.)

11

The Court concludes the use of force in this case was severe. See Miller v. Clark

12

Cnty., 340 F.3d 959, 964 (9th Cir. 2003) (Fourth Amendment intrusion was serious due

13

to unusually long duration of the bite and the plaintiff suffered severe injuries where his

14

skin was torn in four places, and the muscles underneath were shredded and the injury

15

went as deep as the bone.); Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (force

16

used to effect arrest was severe as the plaintiff was bitten three times before the canine

17

could achieve an effective hold, gripped his left arm with his jaws and dragged him

18

between four and ten feet from his hiding place causing his arm to be nearly severed);

19

McKay v. City of Hayward, 949 F. Supp. 2d 971, 975, 980 (N.D. Cal. 2013) (amount of

20

force used was “significant” tearing the unintended victim’s calf muscle from his leg and

21

exposing tendons and muscle).

22

2. Government’s Interest in Use of Force

23

Next, the government’s interest in the force used is determined by assessing (1) the

24

severity of the crime at issue, (2) whether the suspect posed an immediate threat to the

25

safety of the officers or others, and (3) whether the suspect actively resisted arrest or

26

attempted to escape. Glenn, 673 F.3d at 871 (citing Graham, 490 U.S. at 396). Courts

27
28

14
16cv2539-GPC(AGS)

1

may also consider other relevant factors such as “the availability of less intrusive

2

alternatives to the force employed, whether proper warnings were given and whether it

3

should have been apparent to officers that the person they used force against was

4

emotionally disturbed.” Id. at 872.

5

The first factor to consider is the severity of the crime at issue. Here, the officers

6

were at the house searching for Fay who had two prior felony strikes, was considered to

7

be armed and dangerous, had a history of drug abuse, had a psychiatric inmate history,

8

had an active no-bail felony warrant, and was wanted in connection with a recent

9

homicide. This factor strongly favors the County. See Lowry, 858 F.3d at 1257-58

10

(“seriousness of the suspected crime” favored the City because officers reasonably

11

concluded a burglary was in progress because the building’s silent burglary alarm was

12

triggered late at night, the door to the suite was ajar and nobody responded to the

13

Sergeant’s warnings to come out); United States v. Hensley, 469 U.S. 221, 229 (1985)

14

(referring to “the strong government interest in solving crimes and bringing offenders to

15

justice); McKay, 949 F. Supp. 2d at 980-81 (in case of an unintended victim to a canine

16

bite, the officers were responding to a “high priority” armed robbery and the city had an

17

important government interest in securing the safety of the community).

18

The next factor considers whether the suspect posed an immediate threat to the

19

safety of the officers or others. Here, Fay was a wanted two-strike felon, was considered

20

armed and dangerous with a history of drug abuse and psychiatric treatment and was a

21

person of interest in connection with a recent homicide. Fay did not come out when the

22

FTF officers announced themselves outside. The officers did not know if he was armed

23

and he was hiding inside the house. Therefore, Fay posed an immediate threat to the

24

officers’ safety because he could have ambushed the officers. See Lowry, 858 F.3d at

25

1258 (reasonable officer could have believed that burglary was in progress, that the

26

person could be armed and could pose an immediate threat to the officers’ safety); Bogle

27
28

15
16cv2539-GPC(AGS)

1

v. Clackamas Cnty., Case No. 15cv0013-SI, 2017 WL 5490870, at *7 (D. Or. Nov. 15,

2

2017) (officers reasonably believed that the suspect posed a threat to them where the

3

suspect had been in possession of a gun in the past, was an “armed career criminal”, had

4

a history of violent criminal activities, and because he was hiding in densely wooded

5

terrain, he had a strategic advantage over them and could ambush them). Moreover, the

6

officers knew that Koistra lived at the home and she was a convicted felon with a drug

7

and theft history and was in violation of her probation. While she did not pose as great of

8

a threat compared to Fay, her possible presence complicated the search since there was a

9

possibility of two individuals hiding in the house that could ambush them. Therefore,

10

this factor strongly favors the County.

11

An additional important consideration in evaluating law enforcement’s interest in

12

the use of force is “whether officers gave a warning before employing the force. Glenn,

13

673 F.3d at 876; see also Miller, 340 F.3d at 965 (officer was entitled to assume that

14

suspect posed an immediate threat because he was hiding and the officers did not know if

15

he was armed, and had ignored the officer’s warnings). Here, the warnings regarding the

16

use of canines were provided repeatedly for more than 15 minutes. Sergeant Davis

17

testified that he announced over a handheld PA system that law enforcement was using a

18

canine that would bite occupants who did not exit the trailer. The command prompted

19

Larry Ford, Koistra’s boyfriend, to exit the home. After gaining entry, the announcement

20

was repeated by Sergeant Davis, Deputy Perata and, finally, Deputy Vail prior to

21

releasing Hank in the bedroom where Koista was hiding. Koistra denies hearing any

22

such warnings. However, the Court finds that Koistra lacks personal knowledge relating

23

to the warnings. Cf. Lowry, 858 F.3d at 265 (plaintiff, who claimed she did not hear

24

warnings, lacked personal knowledge where she had been sleeping). Koistra testified that

25

she was prescribed and may have taken Lithium, Depakote, Xanax, and Norco within 24

26

hours of this incident. (Dkt. No. 58-1, P’s Response to Ds’ SSUF, No. 37.) She further

27
28

16
16cv2539-GPC(AGS)

1

stated that she had been awoken from her sleep by the helicopters but did not hear anyone

2

knocking at the door of her home, opening the front door, or entering the house. Under

3

these facts, the Court finds that there is no genuine dispute that multiple warnings were

4

given which further supports the use of the canine.

5

Finally, by hiding, Fay and Koistra were passively resisting arrest. Passive

6

resistance can be considered on the third factor of the government interest analysis. See

7

Lowry, 858 F.3d at 1258 (“passive resistance can support the use of some force.”)

8

(quoting Bryan v. Mac Pherson, 630 F.3d 805, 830 (9th Cir. 2010)); Miller, 340 F.3d at

9

965-66 (hiding in the woods still considered evading arrest by flight). Because Fay and

10

Koistra were passively resisting by hiding, this factor slightly favors the County.

11

The Court also considers whether less intrusive means were available before

12

resorting to the release of the canine. Plaintiff asserts that Deputy Vail could have waited

13

longer before releasing the canine, could have directed commands to the closet area once

14

he was alerted someone was in that area or could have immediately removed the canine

15

from Koistra but instead allowed the attack to go on for about 30 seconds and encouraged

16

the canine, or the County could have used canines who are trained to “find and bark”, not

17

“find and bite.” In assessing alternatives, “officers ‘are not required to use the least

18

intrusive degree of force possible.’” Forrester v. City of San Diego, 25 F.3d 804, 807

19

(9th Cir. 1994).

20

As found above, repeated and sustained warnings were given and, therefore,

21

waiting longer before releasing the canine was not an unexhausted alternative. As to the

22

alternative of “find and bark”, Plaintiff has failed to provide any evidence regarding the

23

effectiveness of this alternative technique. Moreover, “find and bark” would have

24

required Deputy Vail to expose himself to an attack by a person of interest in a homicide

25

investigation who was considered armed and dangerous and had ignored repeated

26
27
28

17
16cv2539-GPC(AGS)

1

commands to come out. These conceivable alternatives offer little to counterbalance

2

against the County’s interest in the use of canine force.

3

The remaining alternative offered is that Deputy Vail should have immediately

4

removed the canine and should not have allowed the attack to go on for about 30 seconds.

5

This assertion has less to do with alternatives than it does gauging “the severity of the

6

intrusion on the individual’s Fourth Amendment rights by evaluating ‘the type and

7

amount of force inflicted.’” Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 537 (9th Cir.

8

2010) (quoting Miller, 340 F.3d at 964). However, viewing the facts in the light most

9

favorable to Plaintiff, Deputy Vail could have employed less intrusive means by releasing

10

the canine’s hold on Koistra once she surrendered and after he realized she was not Fay.

11

Instead, Vail allowed the canine to continue to bite Koistra repeatedly and to drag her for

12

about 12 feet.

13

3. Balance Between the Gravity of the Intrusion and Need for that Intrusion

14

Finally, the Court balances the severity of the intrusion with the government’s

15

interest. The Ninth Circuit has observed that characterizing the quantum of force used

16

with regard to the use of a police dog depends on the specific factual circumstances.

17

Lowry, 858 F.3d at 1256-57. This has been interpreted as requiring the Court to analyze

18

each use of the canine, or bite, to characterize its level of force. See Bogle, 2017 WL

19

5490870, at *5-6. Likewise, the Ninth Circuit has held that excessive duration of a dog

20

bite and the encouragement of a continuation of the attack can constitute excessive force.

21

See Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994); Watkins v. City of Oakland,

22

145 F.3d 1087, 1093 (9th Cir. 1998). Viewing the facts in the light most favorable to

23

Koistra, the Court concludes that (1) employing the canine to apprehend Fay was

24

reasonable but (2) there is an issue of fact whether the duration and extent of Deputy

25

Vail’s use of the canine was an unreasonable use of force.

26
27
28

18
16cv2539-GPC(AGS)

1

In this case, Koistra alleges that it was unreasonable for the County to employ

2

canines who were trained to “bite and hold” persons who may be encountered where the

3

canine cannot distinguish whether that person is a child, disabled or dangerous.

4

However, the objective reasonableness of a seizure is determined in the light of the facts

5

and circumstances confronting the police officers. Graham, 490 U.S. at 397. Here, it

6

was reasonable for Defendants to deploy a “bite and hold” canine given that police

7

officers were confronted with a concealed subject who was a wanted felon, a person of

8

interest in a recent homicide, considered to be armed and dangerous, and known to have

9

psychiatric issues.

10

The remaining question is whether the continued use of the canine following

11

Koistra’s alleged surrender was reasonable. Koistra maintains it was unreasonable where

12

she had surrendered, and Deputy Vail, realizing Koistra was not the dangerous suspect

13

being sought, did not immediately command the canine to stop but instead let the canine

14

bite her on the finger, arms, face, mouth, and skull for about 30 seconds and permitted the

15

canine to drag her 12 feet by her mouth. After this occurred, Deputy Vail yelled a

16

command to the dog and the dog bit her again in her jaw. Then Deputy Vail physically

17

removed the canine from Koistra. Moreover, the severity of Koistra’s injuries creates an

18

issue of fact whether she suffered an unnecessary, prolonged attack by the canine. If the

19

trier of fact accepts Koistra’s account, the use of the canine following her surrender

20

constitutes a severe intrusion on Koistra’s Fourth Amendment rights which outweighs the

21

governmental interest in the continued use of force.

22

“Because [the excessive force inquiry] nearly always requires a jury to sift through

23

factual contentions, and to draw inferences therefrom, we have held on many occasions

24

that summary judgment or judgment as a matter of law in excessive force cases should be

25

granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); see also Torres v.

26

City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011); Smith v. City of Hemet, 396 F.3d

27
28

19
16cv2539-GPC(AGS)

1

689, 701 (9th Cir. 2005). Accordingly, on the excessive force cause of action, the Court

2

GRANTS Defendants’ motion for summary judgment with respect to the initial use and

3

deployment of the canine and DENIES the motion for summary judgment on the

4

continued use of the canine after Koistra allegedly surrendered.

5

D.

6

Qualified Immunity
Defendant Vail asserts the affirmative defense of qualified immunity applies to

7

him. Plaintiff opposes. Because the Court granted summary judgment on the excessive

8

force claim on the initial deployment of the canine, the Court only addresses whether

9

Deputy Vail is entitled to qualified immunity concerning the continued “bite and hold” of

10
11

the canine once Koistra surrendered.
Government officials who perform discretionary functions generally are entitled to

12

qualified immunity from liability for civil damages “insofar as their conduct does not

13

violate clearly established statutory or constitutional rights of which a reasonable person

14

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

15

immunity balances two important interests - the need to hold public officials accountable

16

when they exercise power irresponsibly and the need to shield officials from harassment,

17

distraction, and liability when they perform their duties reasonably,” Pearson v. Callahan,

18

555 U.S. 223, 231 (2009), and it protects “all but the plainly incompetent or those who

19

knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986). The United

20

States Supreme Court has presented a two-part analysis for determining qualified

21

immunity claims, which the court may address in any order. Pearson, 555 U.S. at 236.

22

Qualified immunity protects government officials from liability for civil damages “unless

23

a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional

24

right, and (2) that the right was ‘clearly established’ at the time of the challenged

25

conduct.” Ashcroft v. al Kidd, 563 U.S. 731, 735 (2011).

26
27
28

20
16cv2539-GPC(AGS)

1

When the facts are disputed, in analyzing qualified immunity, the Court assumes

2

“the version of the material facts asserted by the non-moving party” and “draw all

3

reasonable inferences in favor of the non-moving party.” Mattos v. Agarano, 661 F.3d

4

433, 439 (9th Cir. 2011) (citations omitted); Jeffers v. Gomez, 267 F.3d 895, 903 (9th

5

Cir. 2001) (“Where disputed facts exist, however, we can determine whether the denial of

6

qualified immunity was appropriate by assuming that the version of the material facts

7

asserted by the non-moving party is correct.”).

8
9
10

1. Whether the Facts Alleged Show Deputy Vail’s Conduct Violated a
Constitutional Right
Under the first prong, “the court determines whether the facts alleged, construed in

11

the light most favorable to the injured party, establish the violation of a constitutional

12

right.” Dunn v. Castro, 621 F.3d 1196, 1200 (9th Cir. 2010) (citing Saucier v. Katz, 533

13

U.S. 194, 201 (2001)). Defendant Vail argues that he did not violate Koistra’s

14

constitutional rights as his use of force was reasonable under the circumstances.

15

However, in viewing the evidence in the light most favorable to Koistra, the Court

16

concluded there are disputed issues of material fact whether Deputy Vail violated

17

Koistra’s constitutional right to be free from excessive force once she surrendered. On a

18

qualified immunity analysis, taking Plaintiff’s facts as true and construing them in the

19

light most favorable to her, Deputy Vail acted unreasonably and violated Koistra’s

20

constitutional right to be free from excessive force. Accordingly, the Court turns to the

21

second prong of the qualified immunity analysis.

22

2. Whether the Right was Clearly Established

23

Defendants argue that they are not aware of any controlling precedent existing at

24

the time of the search that would have put Deputy Vail on notice that his actions were a

25

clear violation of Koistra’s constitutional rights. Plaintiff responds that preexisting law

26

gave Deputy Vail more than fair warning that the force he used was unlawful.

27
28

21
16cv2539-GPC(AGS)

1

Public officials are immune from a section 1983 suit unless they have “violated a

2

statutory or constitutional right that was clearly established at the time of the challenged

3

conduct.” City and Cnty. of San Francisco, 135 S. Ct. 1765, 1774 (2015). Under the

4

second prong, the Court must consider whether the alleged Fourth Amendment violations

5

of excessive force and unreasonable seizure “w[ere] clearly established at the time of the

6

officer’s alleged misconduct.” S.B. v. Cnty. of San Diego, 864 F.3d 1010, 1015 (9th Cir.

7

2017). “[T]he court decides whether the right is clearly established such that a

8

reasonable government official would have known that ‘his conduct was unlawful in the

9

situation he confronted.’” Dunn, 621 F.3d at 1199 (quoting Saucier, 533 U.S. at 202).

10

A clearly established right is one that is “sufficiently clear that every reasonable

11

official would have understood that what he is doing violates that right.” Reichle v.

12

Howards, 566 U.S. 658, 664 (2012) (internal marks omitted). The United States Supreme

13

Court does “not require a case directly on point, but existing precedent must have placed

14

the statutory or constitutional question beyond debate.” Mullenix v. Luna, 136 S. Ct.

15

305, 308 (2010) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Recently, the

16

Supreme Court reiterated that “’clearly established law’ should not be defined “at a high

17

level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft, 563

18

U.S. at 742). Instead, “the clearly established law must be ‘particularized’ to the facts of

19

the case.” Id. (concluding that appellate court failed to point to a case where an officer

20

acting under similar circumstances as the officer in question was held to have violated the

21

Fourth Amendment). However, in an “obvious case”, clearly established can be met

22

“without a body of relevant case law.” Maxwell v. Cnty. of San Diego, 708 F.3d 1075,

23

1083 (9th Cir. 2013) (quoting Brousseau v. Haugen, 543 U.S. 194, 199 (2004)).

24

On the second prong, the Court looks at whether the right was clearly established

25

prior to January 8, 2016, the date of the incident, such that a reasonable officer would

26

have known that continued and prolonged use of a police canine to effectuate a seizure,

27
28

22
16cv2539-GPC(AGS)

1

when the victim or suspect has surrendered by having her arms up in the air and

2

permitting the continued seizure by the canine for 30 seconds which also included

3

allowing the canine to drag the victim by her mouth for a distance of 12 feet, constitutes a

4

Fourth Amendment violation of excessive force.

5

In the Court’s order on the motion to dismiss, it concluded the law was clearly

6

established that a reasonable officer in Deputy Vail’s position would have “fair warning”

7

that his conduct violated the Fourth Amendment relying on Mendoza v. Block, 27 F.3d

8

1357, 1362 (9th Cir. 1994), Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.

9

1998), and Preister v. City of Riviera Beach, Fla, 208 F.3d 919, 927 (11th Cir. 2000).

10

(Dkt. No. 42 at 18.)

11

As a general matter, the use of police canines to search for and apprehend fleeing

12

or concealed suspects is long-standing and widespread, and is lawful. Chew, 27 F.3d at

13

1447. In Mendoza, the Ninth Circuit, in 1994, recognized that there were only a few

14

cases addressing whether the use of police dogs were lawful and the only circuit opinion

15

was from the Sixth Circuit, Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988) (addressing

16

the constitutionality of a canine policy and holding that use of police dog was not deadly

17

force and not unreasonable when used to search for a hiding felon). Mendoza, 27 F.3d at

18

1361 (affirming district court’s denial of qualified immunity where law was clearly

19

established, but officer’s conduct was not objectively reasonable). Despite the limited

20

police canine cases at the time, the Ninth Circuit noted that officers have considerable

21

guidance on what constitutes excessive force and “no particularized case law is necessary

22

for a deputy to know that excessive force has been used when a deputy sics a canine on a

23

handcuffed arrestee who has fully surrendered and is completely under control” and the

24

officer’s use of a police dog in the case was clearly established. Id. at 1361-62. In

25

Mendoza, after the suspect was handcuffed, the canine bit the other side of his body. Id.

26

at 1358.

27
28

23
16cv2539-GPC(AGS)

1

Meanwhile, in Watkins, the Ninth Circuit, relying on Mendoza, held that it is

2

clearly established that excessive duration of the dog bite and the encouragement of a

3

continuation of the attack could constitute excessive force in violation of the Fourth

4

Amendment. Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998). In

5

Watkins, the court affirmed the district court’s denial of summary judgment on qualified

6

immunity where the officer allowed the canine to continue to bite the suspect until he

7

showed his hands despite the fact that the suspect was unable to comply because he was

8

recoiling from the pain of the dog bite, and while the suspect was surrounded by police

9

officers with guns drawn. Id. at 1090, 1093. Similarly, the Eleventh Circuit has held that

10

no reasonable officer could believe that the use of a dog to attack and bite a plaintiff, who

11

had immediately submitted to the police when he was discovered, and did not pose a

12

threat of bodily harm or attempt to flee or resist arrest, was lawful force. Preister v. City

13

of Riviera Beach, Fla, 208 F.3d 919, 927 (11th Cir. 2000).

14

In Chew, the Ninth Circuit affirmed the district court’s grant of qualified immunity

15

as to the individual defendants, including the two Sergeants who trained police dogs for

16

the City, and the supervisor in charge of the K-9 unit because the law was not clearly

17

established. 27 F.3d at 1446. In the case, Chew was stopped for a traffic violation and he

18

subsequently fled on foot and hid in a scrapyard. Id. at 1436. The officers learned that

19

Chew had three outstanding warrants for his arrest and called for assistance, including an

20

officer and his canine, and set up a perimeter around the scrapyard. Id. The canine

21

handling officer unleashed the canine two hours after Chew had fled to the yard, and the

22

canine found Chew crouching between two metal bins. Id. Chew claims that once he

23

became aware of the canine’s presence, he tried to surrender and yelled at the officers to

24

call off the dog. Id. The canine handler was not within sight of the canine and did not

25

immediately respond to Chew’s request. Id. The canine bit Chew several times and then

26

seized him causing severe lacerations on his left side and left forearm. Id. The canine

27
28

24
16cv2539-GPC(AGS)

1

handler went to trial and the jury found in favor of Chew. Id. The district court granted

2

summary judgment as to the other individual defendants based on qualified immunity.

3

Id. On appeal, the Ninth Circuit addressed the qualified immunity question as to the two

4

Sergeants who trained the city’s canines and the supervisor of the K-9 unit. The Ninth

5

Circuit distinguished its case from the clearly established law in Mendoza asserting that

6

Mendoza held it is clearly established law that when a deputy allows a canine to seize a

7

suspect who has fully surrendered and is under control, such conduct is unlawful. Id. at

8

1448-49. In Chew, the Ninth Circuit determined that the issue was whether “it was

9

clearly established that it was unlawful to use police dogs to search for and apprehend

10

concealed suspects by biting and seizing them.” Id. at 1449. Based on the longstanding

11

official policy of the use of police canines in many police departments across the country,

12

the Ninth Circuit held it was not clearly established and the individual defendants were

13

entitled to qualified immunity Id.

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In this case, Defendants fail to identify the “clearly established” proposition of law

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involved in the case but, rather, summarily argue that they are unaware of any cases that

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would have put Deputy Vail on notice of the illegality of his actions, and in their reply,

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fail to address Plaintiff’s argument that the law giving notice was clearly established by

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Mendoza and Watkins. Meanwhile, in her response, Plaintiff characterizes the salient

19

issues as whether it was clearly established that releasing a canine on a non-violent

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person and allowing the attack to continue while she was on the ground violated the

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Fourth Amendment. (Dkt. No. 58 at 21-22.)

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The Court has already ruled that the release of the canine was reasonable and

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therefore does not require qualified immunity analysis. As to the prolonged use of canine

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force, Mendoza and Watkins provided notice that a canine officer cannot continue to use

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canine force against someone, like Koistra, who had surrendered by putting her arms up

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and asserted she was unarmed after she heard Deputy Vail tell her to come out. At that

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point, it was clearly established and a reasonable officer would have known that the

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continued seizure by a police canine after Koistra surrendered for an additional 30

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seconds was unlawful.

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Accordingly, the Court concludes that Deputy Vail is not entitled to a qualified

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immunity defense on the continued and prolonged use of the “bite and hold” by the

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canine after Koistra surrendered, and DENIES summary judgment on this basis.

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E.

Third Cause of Action - Monell Claim

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The SAC alleges that it is the custom, practice and policy of the San Diego

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Sheriff’s Department that when a canine is given the order to “search”, the canine will

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bite anyone that the canine encounters irrespective of whether the person is a suspect, a

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victim, a child, a disabled person and whether that person poses a threat to anyone. (Dkt.

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No. 43, SAC ¶ 66.) This custom, practice and policy is an alleged violation of the Fourth

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Amendment because it encourages, permits, and ratifies the use of serious and deadly

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force upon an individual without considering the Graham factors. (Id. ¶ 67.)

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Defendant argues there is no evidence of any express County policy that directed

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Deputy Vail’s alleged unconstitutional conduct.7 Moreover, even if there was an express

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policy, her claim would still be barred because the Ninth Circuit has held that the use of

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canines to seize concealed suspects is a long-standing practice and is constitutional. See

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Chew, 27 F.3d at 1447 (“No decision of which we are aware intimated that a policy of

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using dogs to apprehend concealed suspects, even by biting and seizing them, was

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7

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Defendants also move for summary judgment on the Monell claim based on ratification, pattern,
practice or custom. Plaintiff does not address these arguments in her opposition. In reply, Defendants
argue that Plaintiff has abandoned her claim for municipal liability based on ratification, pattern, custom
or practice by failing to oppose their motion on these issues. (Dkt. No. 60.) Because Plaintiff does not
oppose municipal liability based on ratification, pattern or practice, the Court GRANTS Defendants
motion for summary judgment on these issues. See Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095
n.4 (9th Cir. 2005) (the plaintiff “abandoned her other two claims by not raising them in opposition to
the County's motion for summary judgment.”).

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unlawful.”); Watkins, 145 F.3d at 1092 (noting that there has been no change in the law

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since Chew that use of police dogs to search and bite was unconstitutional). Plaintiff

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contends that there is an express “bite and hold” policy, that Deputy Vail acted pursuant

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to this policy and the “bite and hold” policy was the moving force that caused her

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injuries.

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Cities, counties and other local government entities are subject to claims under 42

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U.S.C. § 1983. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 (1978).

8

While municipalities, their agencies and their supervisory personnel cannot be held liable

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under § 1983 on any theory of respondeat superior or vicarious liability, they can,

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however, be held liable for deprivations of constitutional rights resulting from their

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formal policies or customs. Id. at 691-93. Liability only attaches where the municipality

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itself causes the constitutional violation through “execution of a government’s policy or

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custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

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said to represent official policy.” Id. at 694. Plaintiffs must establish that “the local

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government had a deliberate policy, custom, or practice that was the moving force behind

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the constitutional violation [they] suffered.” AE ex rel. Hernandez v. Cnty. of Tulare,

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666 F.3d 631, 636 (9th Cir. 2012) (citing Whitaker v. Garcetti, 486 F.3d 572, 581 (9th

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Cir. 2007)).

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A “policy” is a “deliberate choice to follow a course of action . . . made from

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among various alternatives by the official or officials responsible for establishing final

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policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824,

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834 (9th Cir. 2008); Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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A policy “need only cause [the] constitutional violation; it need not be unconstitutional

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per se.” Chew, 27 F.3d at 1444 (citations omitted); see also Collins v. City of Harker

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Heights, Tex., 503 U.S. 115, 123 (1992). In a claim that the County’s canine policy

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causes a constitutional violation, a plaintiff must demonstrate that the seizure was

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unconstitutional and that the city’s policy was responsible for the constitutional wrong.

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Chew, 27 F.3d at 1439.

3

First the Court considers whether Plaintiff suffered a constitutional injury. As

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discussed above, there are material facts in dispute on whether the prolonged and

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extended use of a canine following Koistra’s surrender was reasonable.
Next, Plaintiff asserts that the County has a “bite and hold” policy and presented

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the deposition transcript of Jacob Pavlenko, the person most knowledgeable for the

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County of San Diego. (Dkt. No. 58-2, Peacock Decl., Ex. B, Pavlenko Depo. at 22:2-8.)

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Pavlenko testified that Sheriff’s officers are trained on when to release a canine to search

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for a suspect according to Section 4.4 of the policy and procedures. (Id. at 22:9-18.) The

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canines are trained to locate human odor and bite and do not differentiate between good

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or bad guys. (Id. at 24:10-23.) Deputy Vail testified that when a canine is given the

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search command, he is taught to bite and hold and is not trained to distinguish whether

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the person is a child. (Dkt. No. 58-2, Peacock Decl., Ex. A, Vail Depo. at 62:19-24.) In

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reply, Defendants argue that Plaintiff has presented no evidentiary support that the

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County has an official policy. She has not presented the written policy, and only cites to

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Jacob Pavlenko but does not describe who he is and when the policy was adopted and by

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whom.

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While Plaintiff’s evidence concerning a policy is scarce as she cites solely to a few

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sentences in the deposition testimony of Jacob Pavlenko who is the County’s person most

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knowledgeable, in viewing the fact in the light most favorable to Koistra, Pavlenko’s

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testimony reveals a written official canine policy as he references “Section 4.4” of those

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policy and procedures.8

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8

Defendants argue that Plaintiff failed to demonstrate that the canine policy amounted to deliberate
indifference. Plaintiff does not respond to this argument in her opposition. When a Monell claim is
based on an official policy, a showing of deliberate indifference to plaintiff’s constitutional right is not
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Lastly, under the Monell doctrine, Koistra may recover from the County if she

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demonstrates that the County’s “bite and hold” policy “causes” an injury where it is the

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“moving force” behind the constitutional violation. Monell, 436 U.S. at 694. The first

4

inquiry “in any case alleging municipal liability under § 1983 is the question whether

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there is a direct causal link between a municipal policy or custom and the alleged

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constitutional deprivation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385–86 (1989)

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(emphasis added). This inquiry has been described as a difficult one and has left the

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Supreme Court deeply divided. Id.

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Koistra argues that the County’s “bite and hold” policy was the moving force of

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her injuries because “had the County not used canine’s (sic) who bite the first person they

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encounter, Ms. Koistra would have likely not been injured at all.” (Dkt. No. 58 at 24.)

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However, this is insufficient to show that there is “direct causal link” between the policy

13

and the injuries incurred. In this case, the Court has found that initial use of the canine

14

under the “bite and hold” policy was justified because the officers were attempting to

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apprehend a two-striker felon who was considered armed and dangerous and refused to

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submit to commands to submit to arrest. It was only after Deputy Vail continued to

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permit the canine to bite and hold Koistra after she had surrendered that canine force

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became unreasonable. Plaintiff has failed to demonstrate a County policy authorizing the

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continued use of the “bite and hold” where the suspect has surrendered. In this case, the

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“moving force” behind the constitutional deprivation was a failure to reevaluate the need

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for canine force once the circumstances no longer justified it.

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required. See e.g., Lowry, 858 F.3d at 1267 (Thomas, J., dissenting) (deliberate indifference not
required to be shown if the government’s officers acted affirmatively pursuant to an official policy”),
Plaintiff does not need to demonstrate that the policy amounted to deliberate indifference.
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As a result, the Court finds Koistra has failed to prove that the “bite and hold

1
2

policy” was the “moving force” of her injuries. Accordingly, the Court GRANTS

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Defendants’ motion for summary judgment on the Monell cause of action.

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F.

5

State Law Claims
Plaintiff also alleges state law claims for violation of California Civil Code section

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52.1, false arrest, battery, assault, intentional infliction of emotional distress and

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negligence. (Dkt. No. 43, SAC.)

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Defendants argue that the state law claims are barred because Deputy Vail’s

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conduct was privileged under California Government Code section 820.2. Koistra

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opposes arguing that Deputy Vail is not entitled to section 820.2 immunity because he

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did not act reasonably during his encounter with her.

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Section 820.2 immunity protects a public employee’s exercise of discretion. See

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Cal. Gov’t Code 820.2 (“a public employee is not liable for an injury resulting from his

14

act or omission where the act or omission was the result of the exercise of the discretion

15

vested in him, whether or not such discretion be abused.”). A determination whether

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section 820.2 privilege applies requires a finding that Deputy Vail’s conduct was

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objectively reasonable. See Blankenhorn v. City of Orange, 485 F.3d 463, 487 (9th Cir.

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2007) (defendant officers, relying on section 820.2, were not entitled to summary

19

judgment on state law claims where there were genuine issues of material fact on the

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reasonableness of the officers’ use of force); Robinson v. Solano Cnty., 278 F.3d 1007,

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1016 (9th Cir. 2002) (en banc) (“California denies immunity to officers who use

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excessive force in arresting a suspect.”) (citation omitted).

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Because there is an issue of fact whether Deputy Vail acted reasonably in

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exercising force upon Koistra once she surrendered, he is not entitled to summary

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judgment the remaining state law claims on the basis that he is immune from liability

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under section 820.2. However, she is entitled to summary judgment on these state law

2

claims based on the initial deployment of the canine.
Defendants also contend that the battery claim fails because Deputy Vail’s

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4

conduct was reasonable under the circumstances and that section 52.1 does not apply

5

because Deputy Vail did not interfere with her constitutional rights. Plaintiff disputes

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both arguments contending that her Fourth Amendment rights were violated.

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To assert a claim for battery against a police officer, and a violation of section

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52.19, Plaintiff must prove that the officer used unreasonable force. See Edson v. City of

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Anaheim, 63 Cal. App. 4th 1269, 1273 (1996) (battery); Jones v. Kmart Corp., 17 Cal.

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4th 329, 331-32 (1998) (the elements of claims under Cal. Civ. Code § 52.1 are similar to

11

claims under § 1983). Because there is an issue of fact as to whether Deputy’s Vail’s

12

conduct was reasonable and a violation of the Fourth Amendment once Koistra

13

surrendered, the Court DENIES Defendants’ motion for summary judgment on the

14

battery and section 52.1 causes of action but GRANTS summary judgment on these

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causes of action based on Deputy Vail’s initial use of the canine.

16

Defendants further contend that the false arrest claim fails because she admitted

17

violating her probation and was subject to arrest. Plaintiff does not dispute this issue.

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Defendants reply that Plaintiff has waived this claim. See Jenkins, 398 F.3d at 1095 n.4

19

(the plaintiff “abandoned her other two claims by not raising them in opposition to the

20

County's motion for summary judgment.”). California Penal Code section 847 provides

21

that a peace officer shall have no liability for false arrest or false imprisonment arising

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out of an arrest that was lawful or the officer had reasonable cause to believe that the

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The Bane Act provides a private cause of action against anyone who “interferes by threats,
intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise
or enjoyment by an individual or individuals of rights secured by the Constitution or laws of the United
States, or laws and rights secured by the Constitution or laws of California.” Cal. Civil Code § 52.1(a).
9

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arrest was lawful. Cal. Penal Code § 847. Here, Plaintiff does not dispute that she

2

admitted to violating her probation which subjected her to arrest. Moreover, she does not

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oppose the summary judgment motion on the false arrest claim and has abandoned that

4

claim. See id. Accordingly, the Court GRANTS Defendants’ motion for summary

5

judgment on the false arrest cause of action.

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Lastly, the SAC also alleges the County is vicariously liable for state law claims of

7

violation of section 52.1, battery, assault, intentional infliction of emotional distress and

8

negligence. (Dkt. No. 43 at 12-17.) California Government Code section 815.2 provides

9

that a public entity may be vicariously liable for injuries proximately caused by an act or

10

omission of an employee within the scope of his employment. Cal. Gov’t Code § 815.2.

11

However, a government entity is not liable for the acts or omissions of an employee if the

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employee is immune from liability. Cal. Gov’t Code § 815.2(b).

13

Defendants summarily claim that since Deputy Vail is immune from liability, the

14

claims against the County also necessarily fail. Plaintiff disagrees. “Under California

15

law, the county’s immunity depends upon whether the police officers are immune.”

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Robinson, 278 F.3d at 1016. Here, because the Court granted summary judgment on all

17

claims as it relates to Deputy Vail’s initial deployment of the canine, the Court GRANTS

18

summary judgment as to the County on these same claims. However, because the Court

19

denied Defendants’ motion for summary judgment on the state law claims as it concerns

20

the continued use of the canine after Koistra surrendered, the Court necessarily DENIES

21

summary judgment on these causes of action against the County.

22

G.

23

Punitive Damages
Defendants argue Plaintiff is not entitled to punitive damages because there is no

24

evidence of evil motive or intent, or reckless or callous indifference to the constitutional

25

rights of Koistra. Plaintiff argues that the manner in which Deputy Vail used the canine

26

was reckless and callously indifferent to her Fourth Amendment right to be free from

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28

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16cv2539-GPC(AGS)

1

excessive force when after she surrendered, he allowed the canine to continue to bite her

2

for 30 seconds during which he allowed the canine to drag her, by her mouth, for about

3

12 feet.
Punitive damages are permissible in an action under § 1983 when the defendant’s

4
5

conduct is “motivated by evil motive or intent, or when it involves reckless or callous

6

indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56

7

(1983). Based on the disputed facts, the Court DENIES Defendants’ motion for

8

summary judgment on the punitive damages claim.10

9

H.

10

Plaintiff’s Evidentiary Objections
Plaintiff filed evidentiary objections to Defendants’ evidence in support of their

11

motion for summary judgment. (Dkt. No. 58-4.) Defendants oppose. The Court notes

12

the objections. To the extent that the evidence is proper under the Federal Rules of

13

Evidence, the Court considered the evidence. To the extent that the evidence is not

14

proper, the Court did not consider it.

15

Conclusion
Based on the above, the Court GRANTS in part and DENIES in part Defendants’

16
17

motion for summary judgment. Specifically, the Court GRANTS summary judgment on

18

the first (excessive force), fourth (violation of section 52.1), sixth (battery), seventh

19

(assault), eighth (intentional infliction of emotional distress) and ninth (negligence)

20

causes of actions as it concerns the initial deployment of the canine and DENIES

21

summary judgment on these same causes of action concerning the continued use of the

22

canine after Koistra had surrendered. The Court also GRANTS summary judgment on

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25
26
27
28

10

Defendants also argue that punitive damages are not recoverable against the County as a matter of
law. (Dkt. No. 52-1 at 33.) However, the SAC only seeks punitive damages against Deputy Vail, not
the County. (Dkt. No. 43, SAC at 18.) Defendants’ argument is without merit.
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16cv2539-GPC(AGS)

1

the third cause of action based on Monell and the fifth cause of action for false arrest.

2

The hearing set for April 20, 2018 shall be vacated.

3
4

IT IS SO ORDERED.
Dated: April 19, 2018

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