Michino v. Lewis et al
Filing
47
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re: 30 . Signed by JUDGE ALAN C KAY on 6/16/2015. (afc)WRITTEN ORDER follows oral order of 6/15/2015. Minutes of 6/15/2015 hearing: docket entry no. 45 . < br>CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MITCH MICHINO,
Plaintiff,
v.
JOSHUA LEWIS, STEPHEN FLOWERS,
COUNTY OF HAWAII, COUNTY OF
HAWAII POLICE DEPARTMENT, DOES
1-20,
Defendants.
) Civ. No. 13-00546 ACK-BMK
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
For the following reasons, the Court hereby GRANTS
Defendants’ Motion for Summary Judgment.
FACTUAL BACKGROUND1/
This case arises out of a traffic stop that occurred in
Kailua-Kona, Hawaii on October 24, 2011. (Def’s CSF, Ex. D
(Michino Depo.) at 28, 31.) Plaintiff is a practicing attorney
who lives in Malibu, California, but also owns a house in Kona
and visits approximately six times a year. (Id. at 7.)
On the afternoon of October 24, 2011, Plaintiff was
hosting a rehearsal dinner for his son’s wedding at his home in
Kona. (Id. at 28.) Plaintiff went out to pick up some food for
1/
The facts as recited in this Order are for the purpose of
disposing of the instant motions and are not to be construed as
findings of fact that the parties may rely on in future
proceedings in this case.
the dinner at around 4:00 p.m. (Id.) Plaintiff admits he was in a
rush. (Pl.’s CSF ¶ 6.) At approximately 4:20 p.m., Plaintiff was
stopped by Officer Lewis of the Hawaii County Police Department
for a seatbelt violation.2/ (Def.’s CSF, Ex. D (Michino Depo.) at
31.) The stop occurred on Luhia Street near the intersection with
Kaiwi Street, a location that Plaintiff described during his
deposition as “probably one of the busiest stop sign
place/intersections” in the area. (Id. at 115; Pl.’s CSF ¶ 9;
Def.’s CSF, Ex. G (Lewis Decl.) ¶ 7.)
Officer Lewis states that, as he approached the
driver’s side window of Plaintiff’s vehicle, Plaintiff began
“yelling” and “demanded to know what I was doing stopping his
vehicle.” (Def.’s CSF, Ex. G (Lewis Decl.) ¶ 8.) Plaintiff told
Officer Lewis that he was in a rush and late, and pleaded with
Officer Lewis to let him go. (Pl.’s CSF ¶¶ 11-12; Def.’s CSF ¶¶
11-12.) Officer Lewis requested Plaintiff’s driver’s license,
registration, and proof of insurance; Plaintiff admits that he
was unable to produce his registration or proof of insurance.
(Def.’s CSF, Ex. D (Michino Depo.) at 46-46; Id., Ex. G (Lewis
Decl.) ¶ 10; Pl.’s CSF ¶ 15.) Officer Lewis then informed
Plaintiff that Plaintiff would receive a citation for driving
2/
Plaintiff does not appear to dispute that he did not, in
fact, have his seatbelt on at the time he was stopped. Plaintiff
states that, prior to being stopped by Officer Lewis, he had
unbuckled his seatbelt to remove his wallet from his pocket. (Id.
at 39-40, 42.)
2
without his seatbelt and returned to his vehicle to write the
ticket. (Pl.’s CSF ¶ 17; Def.’s CSF, Ex. G (Lewis Decl.) ¶ 11.)
Officer Lewis states that Plaintiff became more upset when he
learned he would receive a citation. (Def.’s CSF, Ex. G (Lewis
Decl.) ¶ 11.) Officer Lewis states that he instructed Plaintiff
to remain in his vehicle, (id.); however, Plaintiff disputes
this, and states in his declaration that Officer Lewis never gave
him any such instruction. (Pl.’s CSF, Ex. 2 (Michino Decl.)
¶ 15.)
Plaintiff apparently saw that Officer Lewis was using a
computer in his police car, and believed that he “was doing more
than . . . issuing a ticket,” causing further delay. (Def.’s CSF,
Ex. D (Michino Depo.) at 48-49.) Plaintiff therefore exited his
car and walked up to the officer’s car on the driver’s side,
intending to tell Officer Lewis to “hurry up.” (Id. at 51, 59.)
Officer Lewis states that Plaintiff appeared angry and was
screaming and waving his hands. (Id., Ex. G (Lewis Decl.) ¶ 12.)
Officer Lewis told Plaintiff to return to his vehicle. (Id.;
Pl.’s CSF, Ex. 9 (Michino Depo.) at 45.) Officer Lewis states
that Plaintiff shouted “You’re a fucking asshole” several times,
while Officer Lewis instructed him again to return to his
vehicle.3/ (Pl.’s CSF, Ex. G (Lewis Decl.) ¶ 12.) Plaintiff
3/
Plaintiff’s testimony regarding the instruction to return
to his vehicle is somewhat inconsistant. In his deposition
(continued...)
3
eventually did return to his vehicle. (Id.) Plaintiff disputes
that he called Officer Lewis a “fucking asshole” at any time
prior to actually being handed the citation. (Pl.’s CSF, Ex. 9
(Michino Depo.) at 50.)
Officer Lewis continued writing the citation and, after
some amount of time, Plaintiff again exited his vehicle. (Pl.’s
CSF ¶ 28; Def.’s CSF ¶ 28.) Plaintiff states that he got out of
his car the second time to tell Officer Lewis to hurry up because
he thought Officer Lewis “had no reason to [be] spending that
much of [sic] time to finish writing a seat belt violation
ticket.” (Def.’s CSF, Ex. D (Michino Depo.) at 51.) Officer Lewis
states that Plaintiff continued to “yell and scream obscenities,”
refused instructions to get back into his vehicle, opened his
tailgate and pointed to the trays of food, and then “began to
clench both fists and started to approach” Officer Lewis. (Def.’s
CSF, Ex. G (Lewis Decl.) ¶ 13.) Officer Lewis further states that
Plaintiff refused his instruction to get back in his vehicle and
called Lewis “a Gestapo and a cartel gang member.” (Id.)
Plaintiff admits he told Officer Lewis that he was “acting like
3/
(...continued)
testimony, he stated that Officer Lewis told him to return to his
vehicle after he first approached the police car. (Pl.’s CSF, Ex.
9 (Michino Depo.) at 54.) In his declaration, however, Plaintiff
asserts that Officer Lewis “did not direct me to stay in the
car,” and “did not say anything about arresting me any of the
times that I approached him before he finished writing the
ticket.” (Id., Ex. 2 (Michino Decl.) ¶ 15.)
4
the Gestapo.” (Def.’s CSF, Ex. D (Michino Depo.) at 91-92.)
Officer Lewis states that he then informed Plaintiff that if he
did not get back into his vehicle he would be arrested. (Def.’s
CSF, Ex. G (Lewis Decl.) ¶ 13.) Plaintiff disputes that Lewis
ever made such a warning. (Pl.’s CSF, Ex. 2 (Michino Decl.) ¶
15.) Nevertheless, apparently Plaintiff returned to his vehicle.
(Def.’s CSF, Ex. G (Lewis Decl.) ¶ 13; Pl.’s CSF ¶ 30 & Ex. 9
(Michino Depo.) at 47.)
By Officer Lewis’s account, Plaintiff thereafter exited
his vehicle a third time while pointing and waving. (Def.’s CSF,
Ex. G (Lewis Decl.) ¶ 13.) Plaintiff testified at his deposition
that he got out of his car “at least twice” and that he didn’t
remember whether he got out a third time because “more than twice
becomes very - just too many, and it shows that I’m crazy or
something.” (Pl.’s CSF, Ex. 9 (Michino Depo.) at 47-48.) Officer
Lewis states that he told Plaintiff to get back in his vehicle,
but Plaintiff refused and walked toward Officer Lewis. (Def.’s
CSF, Ex. G (Lewis Decl.) ¶ 13.) Officer Lewis states that,
thereafter, he told Plaintiff he was under arrest, and to turn
around and place his hands behind his back. (Id.) By Plaintiff’s
account, on the other hand, when Officer Lewis handed him the
citation, he called Officer Lewis a “fucking asshole,” after
which Officer Lewis told Plaintiff that he was under arrest.
(Pl.’s CSF, Ex. 2 (Michino Decl.) ¶ 17; Ex. 9 (Michino Depo.) at
5
199.)
Plaintiff states that he believed Officer Lewis was
joking when he told Plaintiff he was under arrest and, therefore,
Plaintiff began walking back to his vehicle. (Def.’s CSF, Ex. D
(Michino Depo.) at 54; Ex. G (Lewis Decl.) ¶ 14; Pl.’s CSF ¶ 36.)
Officer Lewis followed Plaintiff, instructing him to stop. (Pl.’s
CSF ¶ 37; Def.’s CSF
¶ 37.) Officer Lewis states that Plaintiff
got into his vehicle, then got back out again upon being
instructed to do so by Officer Lewis. (Def.’s CSF, Ex. G (Lewis
Decl.) ¶ 14.) Plaintiff disputes this account and apparently
claims that he never reentered his vehicle.
Regardless, the parties agree that Officer Lewis then
grabbed Plaintiff from behind, that Plaintiff stumbled but did
not fall, and that Lewis then attempted to put handcuffs on
Plaintiff. (Def.’s CSF ¶¶ 40-42; Pl.’s CSF ¶ 4; Def.’s CSF, Ex. D
(Michino Depo.) at 58.) Officer Lewis states that, when he
attempted to handcuff Plaintiff, Plaintiff tensed up and tried to
pull away, at which point Lewis lost his grip and Plaintiff spun
around to face Officer Lewis and went into a “fighting stance.”
(Def.’s CSF, Ex. G (Lewis Decl.) ¶ 14.) Officer Lewis then
reached for his Taser, and Plaintiff, after observing this, said
“if you are really arresting me, I’m not going to be resisting
arrest,” and allowed himself to be handcuffed. (Id.; Pl.’s CSF ¶¶
44-45.) The parties agree that Officer Lewis did not forcefully
6
take Plaintiff down to the ground or use the Taser on him.
(Def.’s CSF ¶ 46; Pl.’s CSF ¶ 46.)
The parties dispute the amount of time that elapsed
between the initial traffic stop and Plaintiff’s arrest:
Plaintiff claims the encounter lasted “fifteen, twenty minutes
and possibly more than thirty minutes,” (Pl.’s CSF ¶ 48,) while
Officer Lewis states it took only eight minutes. (Def.’s CSF, Ex.
G (Lewis Decl.) ¶ 18.) The Background Event Chronology document
provided by Defendants shows Officer Lewis’s radio call to
dispatch at approximately 4:23 p.m. reporting the traffic stop,
and a subsequent radio call at approximately 4:32 p.m. requesting
a transport vehicle, indicating the arrest had been made. (Def.’s
CSF, Ex. C.) Thus, it appears the duration of the stop was just
under ten minutes.
Plaintiff states that he was handcuffed and waiting on
the side of the road for transport to the police station for
between fifteen and thirty minutes. (Pl.’s CSF, Ex. 9 (Michino
Depo.) at 76.) He also states that the handcuffs were so tight
that they caused him pain and left marks on his wrists. (Id. at
91; Ex. 2 (Michino Decl.) ¶¶ 19-20.) Eventually, Officer Stephen
Flowers arrived to provide backup. (Id., Ex. 9 (Michino Depo.) at
77.) Plaintiff was transported to the police station in a marked
police vehicle, and was charged with obstructing government
operations in violation of Haw. Rev. Stat. § 710-1010, failure to
7
obey a police officer in violation of Haw. Rev. Stat. § 291C-23,
resisting arrest in violation of Haw. Rev. Stat. § 710-1026, and
driving without proof of motor vehicle insurance in violation of
Haw. Rev. Stat. § 431:10C-104. (Def.’s CSF, Ex. G (Lewis Decl.)
¶ 15.)
Deputy Prosecutor Sheri Lawson reviewed the charges and
filed a criminal complaint against Plaintiff. (Id., Ex. L (Lawson
Decl.) ¶ 7; Ex. K (Criminal Complaint).) Plaintiff pled no
contest to all of the charges except for the insurance charge,
which was dismissed. (Id., Ex. L (Lawson Decl.) ¶ 7; Ex. E
(Transcript of Proceedings).) As part of the acceptance of the no
contest plea, Plaintiff was required to complete an anger
management program and write a letter of apology to Officer
Lewis. (Def.’s CSF, Ex. D (Michino Depo.) at 165; Ex. E at 60;
Ex. L (Lawson Decl.) at ¶ 9.)
On November 3, 2011, Plaintiff filed a complaint with
the Police Commission regarding Officer Lewis’s behavior. (Pl.’s
CSF, Ex. 3.) The Commission conducted a preliminary investigation
and, on January 27, 2012, sent Plaintiff a letter stating that
the Commission had found “sufficient evidence of misconduct with
regards to Conduct Towards the Public” to refer Plaintiff’s
complaint to Police Chief Harry Kubojiri for review and
8
disposition.4/ (Id., Ex. 5.) Plaintiff states that he spoke to
Chief Kubojiri on two occasions about the incident, and that
Kubojiri told him that he couldn’t “personally attend to the
issue,” and that Plaintiff should file a complaint. (Pl.’s CSF,
Ex. 9 (Michino Depo.) at 120-126.) On April 2, 2012, Chief
Kubojiri sent Plaintiff a letter informing him that the Police
Department had completed its investigation into the misconduct
complaint, that the Administrative Review Board found there was
insufficient evidence to sustain charges of misconduct against
Officer Lewis, and that Chief Kubojiri concurred with those
findings. (Id., Ex. 7.) The investigation was therefore closed.
(Id.) Apparently unsatisfied with the Chief’s handling of the
incident, Plaintiff filed the instant suit.
PROCEDURAL BACKGROUND
Plaintiff filed his Complaint on October 18, 2013,
asserting a number of claims under 42 U.S.C. § 1983 against
Officer Lewis, Officer Flowers, the County of Hawaii (“the
County”), and the Hawaii County Policy Department (the “Police
Department”). (Doc. No. 1.) Specifically, Plaintiff brought
claims for unlawful seizure and excessive force in violation of
the Fourth Amendment, violation of Plaintiff’s First Amendment
4/
With respect to “Conduct Towards the Public,” the Hawaii
Police Department’s rules require that officers be “courteous
when dealing with the public. They shall avoid harsh, violent,
profane, or insolent language.” (Id., Ex. 6.)
9
speech rights, and failure to train.5/ (Id.) On May 23, 2014, the
parties stipulated to dismissal with prejudice of Plaintiff’s
claims against Officers Lewis and Flowers. (Doc. No. 10.) Thus,
the only remaining defendants are the County and the Police
Department (together, “Defendants”).
On March 4, 2015, Defendants filed the instant Motion
for Summary Judgment on All Claims, along with a concise
statement of facts and numerous exhibits. (Doc. Nos. 30 & 31.) On
May 26, 2015, Plaintiff filed his memorandum in opposition to the
motion, supported by a concise statement of facts and exhibits.6/
(Doc. Nos. 37 & 38.) Defendants filed their reply on June 2,
2015. (Doc. No. 44.) A hearing on the motion was held on June 15,
2015.
5/
The Court notes that Plaintiff makes mention of “state
law claims” in the portion of the Complaint addressing this
Court’s jurisdiction over the instant suit; however, nowhere in
the Complaint does Plaintiff actually allege any claims based
upon state law. (See Compl. ¶ 3.) During the hearing on the
instant Motion, Plaintiff’s counsel asserted that state law
claims could nevertheless be implied by the Complaint; however,
the Court disagrees. Nowhere in the Complaint, other than in a
single paragraph addressing this Court’s jurisdiction, does
Plaintiff make any allegations regarding any state law claims.
The Court therefore cannot construe the Complaint as bringing any
state law claims.
6/
Because of the Memorial Day Holiday, Plaintiff’s counsel
erred in calculating the due date of the memorandum in opposition
and, thus, filed it several days late. On May 26, 2015, however,
the Court granted Plaintiff’s Motion for Extension of Time to
File Response, and permitted the late-filed opposition. (Doc. No.
40.) In so doing, the Court also granted Defendants a
corresponding extension of time during which to file their reply.
(Id.)
10
STANDARD OF REVIEW
Summary judgment is appropriate when a “movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986).
The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that
burden has been met, the nonmoving party must then come forward
and establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986). The Court must draw all
reasonable inferences in favor of the nonmoving party. Id. at
587. In supporting a factual position, a party must “cit[e] to
particular parts of materials in the record . . . or show[] that
the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.”
11
Matsushita, 475 U.S. at 585. “[T]he requirement is that there be
no genuine issue of material fact . . . . Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 247–48 (emphasis in original).
DISCUSSION
As noted above, the only remaining defendants in the
instant suit are the County and the Police Department.7/
Municipalities are legal “persons” subject to § 1983 liability
under Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658,
690–91 (1978), but a municipality itself must inflict an injury
to be liable. Id. at 694. Municipalities may be liable when their
acts or omissions inflict constitutional injury and amount to
official policy. Clouthier v. County of Contra Costa, 591 F.3d
1232, 1249 (9th Cir. 2010). Thus, a plaintiff wishing to bring
federal civil rights claims against a local government “must
establish that the local government had a deliberate policy,
custom, or practice that was the moving force behind the
constitutional violation suffered.” A.E. ex rel v. Hernandez v.
Cnty of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).
To establish municipality liability under Monell,
7/
For purposes of municipal liability, a police department
is part of its respective county. Kriege v. Hara, Civ. No.
11-00757 JMS, 2012 WL 1755671, at *8 (D. Haw. May 15, 2012)
(citing Headwaters Forest Def. v. County of Humboldt, 276 F.3d
1125, 1127 (9th Cir. 2002)).
12
Plaintiff must prove: (1) that he was deprived of a federal
constitutional or statutory right, (2) that the Defendants had a
policy, (3) that this policy amounts to deliberate indifference
to Plaintiff’s constitutional rights, and (4) that the policy was
the moving force behind the constitutional violation. Dougherty
v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). The Court
therefore first addresses whether any constitutional violation
occurred, and then turns to the issue of whether any such
violation was perpetrated pursuant to a municipal policy or
custom.
I.
Constitutional Violation
Plaintiff claims that Officer Lewis violated his Fourth
and First Amendment rights. Specifically, Plaintiff asserts that
Officer Lewis violated his Fourth Amendment rights by unlawfully
arresting him and using excessive force, and violated his First
Amendment rights by arresting him in retaliation for exercising
his right to free speech. The Court addresses each alleged
constitutional violation in turn.
A.
Fourth Amendment Unlawful Seizure
First, Plaintiff asserts that Officer Lewis violated
his Fourth Amendment rights by arresting him without having
probable cause to do so. (Opp’n at 7-8.) The Fourth Amendment
protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
13
seizures.” U.S. v. Place, 462 U.S. 696, 700 (1983). A warrantless
arrest is lawful under the Fourth Amendment “only if it is
accompanied by probable cause to believe that the arrestee has
committed, or is committing, an offense.” Torres v. City of L.A.,
548 F.3d 1197, 1207 n.7. (9th Cir. 2008). Probable cause exists
“if, ‘under the totality of circumstances known to the arresting
officers, a prudent person would have concluded that there was a
fair probability that [the defendant] had committed a crime.’”
Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004)
(quoting Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th
Cir. 2002)). The Court must therefore decide whether a reasonable
officer in Officer Lewis’s position would have believed that
there was probable cause to arrest Plaintiff. See Fuller v. M.G.
Jewlery, 950 F.2d 1437, 1443 (9th Cir. 1991) (“[E]ven if the
officers were mistaken that probable cause to arrest the Fullers
existed, they are nonetheless immune from liability if their
mistake was reasonable.”).
Here, Plaintiff was charged with obstructing government
operations in violation of Haw. Rev. Stat. § 710-1010, disobeying
a police officer in violation of Haw. Rev. Stat. § 291C-23,
resisting arrest in violation of Haw. Rev. Stat. § 710-1026, and
driving without proof of insurance in violation of Haw. Rev.
Stat. § 431:10C-104. The Court concludes as a matter of law that
Officer Lewis had probable cause to arrest Plaintiff for at least
14
the first two of these offenses.8/
First, as is relevant here, under Hawaii law, a person
commits the misdemeanor offense of obstructing government
operations if, “by using or threatening to use violence, force,
or physical interference or obstacle, the person intentionally
obstructs, impairs, or hinders . . . the performance of a
governmental function by a public servant acting under color of
the public servant’s official authority [or] the enforcement of
the penal law or the preservation of the peace by a law
8/
While it is undisputed that Plaintiff did not, in fact,
have proof of insurance at the time he was pulled over by Officer
Lewis, (see Def.’s CSF, Ex. D (Michino Depo.) at 45-46; Pl.’s CSF
¶ 15,) under Hawaii law, police generally may not arrest a
motorist for failing to have insurance, but must issue a citation
instead. See Haw. Rev. Stat. § 431:10C–117. As to the resisting
arrest charge, under Hawaii law, a person commits this offense if
he “intentionally prevents a law enforcement officer . . . from
effecting an arrest by . . . using or threatening to use physical
force against the law enforcement officer or another; or using
any other means creating a substantial risk of causing bodily
injury to the law enforcement officer or another.” Haw. Rev.
Stat. § 710-1026. Generally such a charge requires a defendant to
forcibly resist arrest in a way that involves “some substantial
danger to the person. Mere non-submission ought not to be an
offense.” Haw. Rev. Stat. § 710-1026, Commentary; see also State
v. Line, 214 P.3d 613, 620 (Haw. 2009). Here, while Officer Lewis
claims that, while he was trying to effect the arrest, Plaintiff
resisted his hold, turned around, and “went into a fighting
stance,” Plaintiff disputes this account. (Def.’s CSF ¶ 43; Pl.’s
CSF ¶ 43.) Thus, there is at least a question of fact as to
whether Plaintiff actually threatened physical force against
Officer Lewis in order to interfere with the arrest. The Court
therefore cannot determine as a matter of law at this time
whether Officer Lewis could reasonably have believed Plaintiff
had committed the offense of resisting arrest here. Nevertheless,
as discussed below, because the Court believes Officer Lewis
clearly had probable cause for a number of other offenses, the
Court concludes that Plaintiff’s arrest was not unconstitutional.
15
enforcement officer . . . .” Haw. Rev. Stat. § 710-1010. Here,
Plaintiff admits that he exited his vehicle and approached the
driver’s side window of Officer Lewis’s vehicle while the officer
was trying to process the citation at least twice, and possibly a
third time. (Pl.’s CSF ¶¶ 19, 25.) Thus, Plaintiff appeared to be
using his physical presence to intentionally hinder Officer
Lewis’s issuance of the citation in performance of his role as a
law enforcement officer. Under these circumstances, the Court
concludes that Officer Lewis could reasonably have believed that
Plaintiff had committed the offense of obstructing government
operations.9/
Moreover, Officer Lewis likewise had probable cause to
arrest Plaintiff for disobeying a police officer in violation of
Haw. Rev. Stat. § 291C-23. Under that provision, it is a petty
misdemeanor for any person to “wilfully fail or refuse to comply
with any lawful order or direction of any police officer invested
by law with authority to direct, control, or regulate traffic.”
Id. Notwithstanding the fact that Plaintiff disputes Officer
Lewis’s claim that he initially instructed Plaintiff to remain in
9/
The Court notes that Defendants appear to assert that
Plaintiff’s plea of no contest to the criminal complaint filed
against him in state court is an admission of the factual basis
of the charges and, thus, sufficient to demonstrate probable
cause here. Under the Federal Rules of Evidence, however, pleas
of no contest are not admissible as against the defendant who
made them. See Fed. R. Evid. 410(a)(2). Thus, the no contest plea
cannot be used to establish facts in the instant suit to support
a finding of probable cause.
16
his vehicle while Officer Lewis wrote the citation, there is no
dispute that Officer Lewis instructed Plaintiff to return to his
vehicle after the first time Plaintiff approached Officer Lewis’s
vehicle to tell him to hurry up. (Pl.’s CSF ¶ 21.) Plaintiff
returned to his vehicle after this instruction, but then almost
immediately reemerged and approached Officer Lewis at least one
more time, in direct contravention of Officer Lewis’s
instruction. (Pl.’s CSF ¶¶ 24-25.) Officer Lewis could therefore
have had a reasonable belief that Plaintiff had committed the
offense of disobeying a police officer in violation of Haw. Rev.
Stat. § 291C-23.10/
10/
The Court notes that Officer Lewis also likely had
probable cause to arrest Plaintiff for a number of other crimes.
A warrantless arrest is constitutional as long as probable cause
existed for any crime, regardless of whether it is the crime
ultimately charged. See Devenpeck v. Alford, 543 U.S. 146, 153
(2004) (“An officer’s” subjective reason for making the arrest
need not be the criminal offense as to which the known facts
provide probable cause.”) Thus, for example, Officer Lewis could
have had a reasonable belief that Plaintiff had committed the
crime of disorderly conduct under Haw. Rev. Stat. § 711-1101. A
person commits the offense of disorderly conduct if, “with the
intent to cause physical inconvenience or alarm by a member or
members of the public, or recklessly creating a risk thereof,”
that person “engages in fighting or threatening, or in violent or
tumultuous behavior,” or “makes unreasonable noise,” or “subjects
another person to offensively coarse behavior or abusive language
which is likely to provoke a violent response . . . .” Id. Here,
Plaintiff repeatedly ignored Officer Lewis’s requests that he
return to his vehicle, approached the officer’s vehicle several
times, and called Officer Lewis “a fucking asshole.” (Pl.’s CSF
¶¶ 19, 21, 25, 31, 33.) Moreover, Plaintiff has admitted that the
incident occurred at a busy intersection; thus, Plaintiff’s
actions could easily have caused “physical inconvenience or
alarm” to members of the public. (See Def.’s CSF, Ex. D (Michino
(continued...)
17
In sum, because the Court finds that Officer Lewis had
probable cause to arrest Plaintiff under the facts presented
here,11/ the Court concludes that Plaintiff’s arrest comported
with the requirements of the Fourth Amendment.
B.
Fourth Amendment Excessive Force
Plaintiff also asserts his Fourth Amendment rights were
violated when Officer Lewis used excessive force during the
arrest. The Fourth Amendment, which protects against excessive
force in the course of a seizure, requires that courts examine
the objective reasonableness of a particular use of force to
determine whether it was indeed excessive. Graham v. Connor, 490
U.S. 386 394–95, 398 (1989); see also Maxwell v. Cnty. of San
Diego, 697 F.3d 941, 951 (9th Cir. 2012). To assess objective
reasonableness, courts weigh “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.” Graham, 490
U.S. at 396 (citation and internal quotation marks omitted).
Stated another way, the Court must “balance the amount of force
10/
(...continued)
Depo.) at 115.) Thus, an officer in Lewis’s position could
reasonably have believed that Plaintiff had committed the offense
of disorderly conduct.
11/
The Court notes that this conclusion is bolstered by the
fact that the prosecuting attorney, exercising her independent
judgment, determined that there was sufficient evidence to
warrant the filing of a criminal complaint against Plaintiff.
(See Def.’s CSF, Exs. L & K.)
18
applied against the need for that force.” Meredith v. Erath, 342
F.3d 1057, 1061 (9th Cir. 2003).
First, the Court must analyze the type and amount of
force that Officer Lewis used against Plaintiff during the
arrest. There is no dispute that Officer Lewis “grabbed Plaintiff
from behind,” and leaned into Plaintiff, causing Plaintiff to
lose his balance, but not fall down. (Pl.’s CSF ¶¶ 39-42; Def.’s
CSF ¶¶ 40-41; Def.’s CSF, Ex. D (Michino Depo.) at 58.) There is
also no dispute that Officer Lewis did not forcefully take
Plaintiff down to the ground, and did not use any weapon on
Plaintiff. (Pl.’s CSF, ¶ 46; Def.’s CSF ¶ 46.) Plaintiff has not
presented any evidence that he suffered any physical injury or
required medical treatment as a result of Officer Lewis’s
actions.12/ (See Opp’n at 9; Pl.’s CSF generally.) As such, the
Court concludes that the nature and quality of the force used was
minimal.
Next, as to the governmental interests at stake, Graham
provides a non-exhaustive list of factors to consider, including
12/
The Court notes that, in the Complaint, Plaintiff alleges
that he “wrenched his knee,” and needed medical treatment for his
knee and one of his wrists, which suffered from the handcuffs
being too tight. (Compl. ¶¶ 26, 28-29, 39-40.) Plaintiff does
not, however, make mention of these alleged injuries in his
concise statement of facts in opposition to the instant Motion,
nor does Plaintiff present any evidence supporting these
allegations. Thus, for purposes of the instant Motion, it appears
Plaintiff is not asserting that he suffered any physical injury
because of the arrest.
19
“the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” 490 U.S. at 396. Importantly, the Graham Court
emphasized that the Supreme Court “has long recognized that the
right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or
threat thereof to effect it.” Id. Officer Lewis was therefore
constitutionally permitted to use some amount of reasonable force
to effectuate Plaintiff’s arrest.
Here, viewing the facts in the light most favorable to
Plaintiff, the Court concludes that the physical force used on
Plaintiff was objectively reasonable. Plaintiff admits that he
believed Officer Lewis was joking and began walking away when he
was told that he was under arrest. (Pl.’s CSF ¶ 36.) Thus, it is
undisputed that Plaintiff did not initially comply with Officer
Lewis’s instructions upon being informed that he was under
arrest. In response to this, Officer Lewis used minimal force: he
grabbed Plaintiff from behind and leaned his weight into
Plaintiff in an effort to handcuff him. (Pl.’s CSF ¶¶ 39-41.) It
is undisputed that Officer Lewis did not forcibly cause Plaintiff
to fall onto the ground, or use any weapon on Plaintiff. (Pl.’s
CSF, ¶ 46; Def.’s CSF ¶ 46.) Thus, in light of the minimum force
used on Plaintiff and the undisputed fact that Plaintiff did not
20
initially comply with Officer Lewis when he was told he was under
arrest, the Court cannot conclude that Officer Lewis used
unreasonable or excessive force in effectuating Plaintiff’s
arrest. See, e.g., Tatum v. City and Cnty of San Francisco, 441
F.3d 1090, 1096 (9th Cir. 2006) (finding the use of a “control
hold to facilitate placing [the plaintiff] in handcuffs” was
reasonable in light of the fact that the plaintiff resisted
during the arrest). The Court therefore concludes that
Plaintiff’s Fourth Amendment rights were not violated by Officer
Lewis’s minimal use of force.
C.
First Amendment Violation
Finally, Plaintiff asserts that his First Amendment
right to free speech was violated when Officer Lewis arrested him
in retaliation for calling Officer Lewis “a fucking asshole.” The
First Amendment prohibits laws “abridging the freedom of speech,
. . . or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” U.S. Const.
amend. I. The First Amendment is applicable to the states and
local governments through the Due Process Clause of the
Fourteenth Amendment. Menotti v. City of Seattle, 409 F.3d 1113,
1140 n.51 (9th Cir. 2005) (citing De Jonge v. Oregon, 299 U.S.
353, 364 (1937)). A plaintiff can state a § 1983 claim for
violation of his First Amendment rights by alleging that the
defendant’s conduct “deterred or chilled [the plaintiff’s]
21
political speech and such deterrence was a substantial or
motivating factor in [the defendant’s] conduct.” Id. at 1155.
This standard requires only that the defendant “intended to
interfere with [the plaintiff’s] First Amendment rights”; actual
deterrence is not required. Mendocino Envtl. Ctr. v. Mendocino
Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (citation and
quotation marks omitted). “[T]he proper inquiry asks whether an
official’s acts would chill or silence a person of ordinary
firmness from future First Amendment activities.” Id. In
addition, a plaintiff bringing a First Amendment retaliation
claim must establish causation: the evidence must show that the
officer’s desire to chill the plaintiff’s speech was “a but-for
cause of [the officer’s] allegedly unlawful conduct.” Ford v.
City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013).
Plaintiff asserts that his arrest was made in
retaliation for his calling Officer Lewis “a fucking asshole.”
(Opp’n at 9.) As rude and sophomoric as Plaintiff’s speech to
Officer Lewis may have been, “it represented an expression of
disapproval toward a police officer” and, as such, “fell squarely
within the protective umbrella of the First Amendment[.]” Duran
v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990);
see also City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987)
(“[T]he First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.”). Moreover,
22
generally, courts have recognized that a retaliatory police
action such as an arrest would chill a person of ordinary
firmness from engaging in future First Amendment activity. See,
e.g., Ford, 706 F.3d at 1193-94 (citing cases).
Plaintiff has not, however, established causation.
Specifically, Plaintiff has failed to produce any evidence
suggesting that Plaintiff’s speech (calling Officer Lewis “a
fucking asshole”) was a “but-for” cause of Officer Lewis’s
conduct in arresting Plaintiff. See id. As discussed above,
Officer Lewis had probable cause to arrest Plaintiff for a number
of offenses. While the existence of probable cause is not
dispositive of Plaintiff’s retaliation claim, it is nevertheless
“highly probative” evidence of Officer Lewis’s lack of
retaliatory animus. See Dietrich v. John Ascuaga’s Nugget, 548
F.3d 892, 901 (9th Cir. 2008). In light of the strong evidence
suggesting that Officer Lewis had probable cause to arrest
Plaintiff, and the complete dearth of evidence, other than
Plaintiff’s own self-serving assertion, to suggest that
Plaintiff’s speech was a but-for cause of his arrest, Plaintiff’s
First Amendment claim must fail.
In sum, the Court concludes that Plaintiff’s claims
that Officer Lewis violated his Fourth and First Amendment rights
must fail as a matter of law. Because Plaintiff cannot show that
Officer Lewis committed a constitutional violation, his Monell
23
claim against the County and the Police Department must likewise
fail. See, e.g., Jackson v. City of Bremerton, 268 F.3d 646, 653
(9th Cir. 2001) (“Neither a municipality nor a supervisor,
however, can be held liable under § 1983 where no injury or
constitutional violation has occurred.”). Nevertheless, the Court
addresses the second prong of the Monell test below and finds, in
the alternative, that Plaintiff’s municipal liability claim fails
on that basis as well.
II.
Policy or Custom
Even assuming that a constitutional violation did
occur, municipal liability under 42 U.S.C. § 1983 “can only be
imposed for injuries inflicted pursuant to an official government
policy or custom.” Davis v. City of Ellensburg, 869 F.2d 1230,
1233 (9th Cir. 1989). A “policy” is a “deliberate choice to
follow a course of action made from among various alternatives by
the official or officials responsible for establishing final
policy with respect to the subject matter in question.” Young v.
City of Visalia, 687 F. Supp. 2d 1141, 1147 (E.D. Cal. 2009). “A
‘custom’ for purposes of municipal liability is a ‘widespread
practice that, although not authorized by written law or express
municipal policy, is so permanent and well-settled as to
constitute a custom or usage with the force of law.” Id.
“Absent a formal governmental policy, [Plaintiff] must
show a ‘longstanding practice or custom which constitutes the
24
standard operating procedure of the local government entity.’”
Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The policy or
custom “must be so persistent and widespread that it constitutes
a permanent and well settled city policy.” Id. Liability for
improper policy or custom “may not be predicated on isolated or
sporadic incidents; it must be founded upon practices of
sufficient duration, frequency and consistency that the conduct
has become a traditional method of carrying out policy.” Id.
Here, Plaintiff appears to be attempting to satisfy his
burden of showing such a policy or custom by relying on either a
“failure to train” theory, or a ratification theory. The Court
addresses each in turn.
A.
Failure to Train/Supervise
First, Plaintiff appears to assert that Hawaii County
Police Department officers (or, at least Officer Lewis) received
insufficient training or supervision regarding traffic stops,
arrests, and the use of force. (Opp’n at 11.) In order to succeed
under such a theory in the § 1983 context, Plaintiff’s evidence
must address the following three factors:
First, it must be determined whether the existing
training program is adequate. The adequacy of a
particular training program must be resolved “in
relation to the tasks the particular officers must
perform.” A training program will be deemed
adequate if it “enables officers to respond
properly to the usual and recurring situations
with which they must deal.”
Second, if the training program is deemed
25
inadequate, it may justifiably be said to
constitute a city policy. Such will be the case,
however, “only where the failure to train amounts
to deliberate indifference to the rights of
persons with whom the police come into contact.”
This heightened degree of culpability on the party
[sic] of a municipality may be established when
“the need for more or different training is so
obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the
policymakers of the city can reasonably be said to
have been deliberately indifferent to the need.”
Finally, inadequate training that manifests
deliberate indifference on the part of a
municipality must be shown to have “actually
caused” the constitutional deprivation at issue.
Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir.
1989) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 39192 (1989)). Only if all three factors are proven can a
municipality’s training program be actionable under § 1983.
In light of the above standard, Plaintiff’s § 1983
claims against Defendants predicated on a failure to train theory
must fail. Plaintiff has raised no genuine issue of material fact
that Defendants had actual or constructive notice that the Police
Department’s officer training was deficient. See Connick v.
Thompson, 131 U.S. 1350, 1360 (2011) (“A pattern of similar
constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of
failure to train.”). Plaintiff states in his memorandum in
opposition that Chief Kubojiri “specifically told [Plaintiff]
that he knew there was a problem” and, thus, argues that this
26
amounted to deliberate indifference in his supervision and
training of Officer Lewis. (Opp’n at 11.) Importantly, however,
Plaintiff provides no factual evidence to support this assertion,
other than his own self-serving declaration.13/ (See Pl.’s CSF,
Ex. 2 (Michino Decl.) ¶¶ 11-12.)
In an attempt to support his failure to train theory,
Plaintiff also points to statements he made in his own deposition
about conversations he had with several acquaintances in the Kona
area who allegedly told Plaintiff that Officer Lewis had a
reputation for “treat[ing] people rough.” (Id., Ex. 9 (Michino
Depo.) at 127-133.) Even leaving aside concerns about the
admissibility of such hearsay statements, Plaintiff’s alleged
conversations with these people simply do not demonstrate that
Chief Kubojiri or anyone else in the Police Department was on
notice of any alleged deficiencies in the training of police
13/
Plaintiff’s statement in his declaration appears to be
somewhat inconsistent with his earlier deposition testimony.
Plaintiff states in his declaration that, during his conversation
with Kubojiri, he got “the distinct impression” that Kubojiri
“knew that Officer Lewis was a problem . . . .” (Pl.’s CSF, Ex. 2
(Michino Decl.) ¶ 12.) He also states that Kubojiri “indicated”’
that he was “aware that there was a problem.” (Id. ¶ 11.) In his
deposition testimony, however, even after being asked to recount
exactly what was said during his conversations with Kubojiri,
Plaintiff never stated that Kubojiri told him, or even indicated
to him, that he was aware of a problem with Officer Lewis. (See
id., Ex. (Michino Depo.) at 120-124.) Rather, Plaintiff stated
that Kubojiri told him that he could not “personally attend [to]
the issue” and that Plaintiff could file a complaint about the
matter. (Id. at 122-23.)
27
officers.14/
Moreover, the Court has before it evidence that the
Police Department does, in fact, provide training to its officers
regarding traffic stops, arrests, and the use of force. Chief
Kubojiri stated in his declaration that all Police Department
officers undergo annual training, and are provided with a copy of
the General Orders setting forth the policies and procedures of
the Hawaii County Police Department. (Def.’s CSF, Ex. F (Kubojiri
Decl.) ¶¶ 5-6.) The General Orders specifically prohibit
excessive force and set forth the Department’s arrest policy,
which requires officers to abide by all laws and the U.S.
Constitution. (Id. ¶¶ 7-8.) All complaints of excessive force are
investigated by the Police Commission and the Administrative
Review Board, which forwards its recommendation to Kubojiri for
review. (Id. ¶¶ 9-10.) Plaintiff has introduced no evidence that
these policies and procedures are insufficient, or that
Defendants were on notice of such insufficiencies and
nevertheless failed to remedy them. Municipal liability premised
upon a failure to train or supervise therefore cannot attach as a
matter of law. “Only where a failure to train reflects a
deliberate or conscious choice by the municipality . . . can a
14/
Moreover, even if Chief Kubojiri was aware of training
deficiencies as to Officer Lewis, it is insufficient for purposes
of Plaintiff’s § 1983 claim to show only that a single officer
was inadequately trained. See Canton, 489 U.S. at 390-91.
28
city be liable for such a failure under § 1983.” Canton, 489 U.S.
at 389; see also Connick, 131 U.S. at 1360. The Court therefore
concludes that Plaintiff’s § 1983 claim based on a failure to
train or failure to supervise theory must fail.
B.
Ratification
Plaintiff also appears to assert that Defendants may be
held liable under § 1983 based upon a theory that Officer Lewis’s
alleged wrongdoing was “ratified” by Chief Kubojiri. (Opp’n at
10-11.) First, even assuming that Kubojiri did “ratify” Officer
Lewis’s actions after the fact, Plaintiff cannot show that his
ratification was the cause of the alleged constitutional
violations. See Williams v. Ellington, 936 F.2d 881, 884-85 (6th
Cir. 1991) (noting that Monell requires a causal connection
between the municipal “policy” and the constitutional
deprivation, and that a single instance of ratification after the
fact was insufficient to constitute the “moving force” behind the
alleged constitutional deprivation). As discussed above,
Plaintiff has not produced any admissible evidence of any other
unconstitutional traffic stops conducted by the Police
Department, or other instances of Chief Kubojiri ratifying such
conduct.
Moreover, Plaintiff has not demonstrated that Kubojiri
did, in fact, ratify the allegedly unconstitutional conduct here.
The Ninth Circuit has found municipal liability on the basis of
29
ratification when the officials involved “adopted and expressly
approved of the acts of others who caused the constitutional
violation.” Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996).
Here, to the extent Plaintiff is asserting that the result of the
Administrative Review Board’s investigation and the Police
Department’s failure to discipline Officer Lewis shows
“ratification” by Chief Kubojiri, Plaintiff has failed to show
“the decision was the product of a conscious, affirmative choice
to ratify the conduct in question. Such a ratification ‘could be
tantamount to the announcement or confirmation of a policy for
purposes of Monell.’” Edenfield v. Estate of Willets, Civ. No.
2006 WL 1041724, at *16 (D. Haw. Apr. 14, 2006) (citing Haugen v.
Brosseau, 339 F.3d 857, 875 (9th Cir. 2003) (stating that
municipal liability on a ratification theory requires that the
policymaker approve a subordinate’s decision and the basis for
it, and that that approval is “tantamount to the announcement or
confirmation of a policy”), reversed on other grounds by Brosseau
v. Haugen, 543 U.S. 194 (2004) (per curiam); see also Tokuda v.
Calio, Civ. No. 13-00202 DKW, 2014 WL 5580959, at *14 (D. Haw.
Oct. 31, 2014) (“A mere failure to overrule the unconstitutional
discretionary acts of subordinates, without expressly endorsing
or approving of the conduct, is an insufficient predicate for the
imposition of liability against the municipality.” (internal
quotes omitted)).
30
Plaintiff has simply failed to put forth any evidence
suggesting that Chief Kubojiri and the Police Department have
essentially adopted a policy of refusing to discipline officers
(or Officer Lewis in particular) in the face of citizen
complaints. Indeed, the evidence before the Court shows that
Defendants did, in fact, investigate Plaintiff’s complaint here:
the Police Commission conducted an initial investigation and,
upon making a preliminary finding that there was sufficient
evidence of misconduct related to “Conduct Towards the Public,”
(a charge relating to the officer’s failure to be courteous to
the public, and not involving the use of excessive force) the
Commission forwarded the complaint to the Police Department for
further investigation. (Pl.’s CSF, Ex. 5.) The Police
Department’s Administrative Review Board then undertook its own
investigation and ultimately determined that there was
insufficient evidence to sustain any charges of misconduct. (Id.,
Ex. 8.) Officer Kubojiri concurred with the Administrative Review
Board’s findings. (Id.)
Plaintiff has introduced no evidence suggesting that
these investigations were flawed, or their results a foregone
conclusion. Indeed, the Court has before it no evidence that the
single decision in this case not to discipline Officer Lewis rose
to the level of a policy or custom of ratification of
unconstitutional conduct. See Edenfield, 2006 WL 1041724 at *17
31
(stating that “something more than the failure to reprimand is
needed to survive a motion for summary judgment,” for example,
evidence that it is “nearly impossible for an officer to be
disciplined,” or that “a unit is allowed to investigate itself”
(citing Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir. 1989)
(“[W]e cannot hold that the failure of a police department to
discipline in a specific instance is an adequate basis for
municipal liability.”))); Kanae v. Hodson, 294 F. Supp. 2d 1179,
1191 (D. Haw. 2003) (“The law does not say that, whenever an
investigative group accepts an officer’s version over a victim’s
differing version, this acceptance establishes a policy for which
a municipality may be held liable under § 1983.”). The Court
therefore concludes that Plaintiff’s § 1983 claim based on a
ratification theory must fail.
In sum, the Court concludes that Plaintiff’s Monell
claim against the County and the Police Department must fail as a
matter of law because Plaintiff has failed to demonstrate that a
constitutional violation occurred, or that any alleged
constitutional violation was the result of a County custom or
policy. Summary judgment is therefore appropriate in Defendants’
favor.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’
Motion for Summary Judgment.
Because the County and the Police
32
Department are the only remaining defendants in this action, no
claims remain and this case may be closed.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, June 16, 2015
________________________________
Alan C. Kay
Senior United States District Judge
Michino v. County of Hawaii et al., Civ. No. 13-00546 ACK BMK, Order Granting
Defendants’ Motion for Summary Judgment.
33
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