Carr v. County of San Diego

• Court: District Court, S.D. California
• Decided: September 17, 2021
• Docket: 3:19-cv-01139
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM CARR, Case No.: 19-cv-1139 JLS (MDD)

12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO STRIKE THE DECLARATION 14 COUNTY OF SAN DIEGO; JEFFREY OF DEFENDANTS’ POLICE CHU; JOSEPH MCMANUS; 15 PROCEDURES EXPERT AND CHRISTOPHER CADIGAN; JASON (2) GRANTING IN PART AND 16 FERGUSON; ALEXANDER SOLIMAN; DENYING IN PART DEFENDANTS’ and DOES 1–10, inclusive, 17 MOTION FOR SUMMARY Defendants. JUDGMENT OR IN THE 18 ALTERNATIVE SUMMARY 19 ADJUDICATION

20 (ECF Nos. 58, 60) 21

22 Presently before the Court is Defendants County of San Diego, Jeffrey Chu, Joseph 23 McManus, Christopher Cadigan, Jason Ferguson, and Alexander Soliman’s (collectively, 24 “Defendants”) Motion for Summary Judgment or in the Alternative Summary Adjudication 25 (“Mot.,” ECF No. 58) and Lodgment of Exhibits (“Defs.’ Lodgment,” ECF No. 58-6), as 26 well as Plaintiff William Carr’s opposition thereto (“Opp’n,” ECF No. 60) and Lodgment 27 of Exhibits (“Pl.’s Lodgment,” ECF No. 61), Defendant’s reply in support of its Motion 28 (“Reply,” ECF No. 64), and Defendants’ Errata Regarding Exhibits (“Errata,” ECF No. 1 65). Plaintiff’s Opposition also contains a motion to strike the declaration of Lieutenant 2 Criss Cross (“MTS”). The Court heard oral argument on July 8, 2021. (See ECF No. 71.) 3 Having carefully considered the Parties’ arguments, the law, and the evidence, the Court 4 GRANTS Plaintiff’s Motion to Strike and GRANTS IN PART AND DENIES IN PART 5 Defendants’ Motion for Summary Judgment as follows. 6 BACKGROUND 7 I. Factual Background1 8 Plaintiff is an insulin-dependent Type 1 diabetic who wears an insulin pump. 9 Declaration of William Carr (“Carr Decl.,” ECF No. 60-1) ¶ 4. On July 15, 2018, at about 10 5:40 p.m., Plaintiff entered the East Village Asian Diner (the “Restaurant”). Defs.’ 11 Lodgment Ex. 22 (“1st Restaurant Video”). Plaintiff sat down at the bar and told one of 12 the Restaurant staff that he needed sugar or food. Pl.’s Lodgment Ex. 6 (“Pl.’s Carr Depo.”) 13 44:02–06; Carr Decl. ¶¶ 6–7. Margie Sierra, the server, handed Plaintiff a menu. Pl.’s 14 Carr Depo. 44:02–06. Carr tried to look the menu over, but he was too disoriented and 15 confused to read it and kept falling asleep. Id. 44:11–21; Carr Decl. ¶ 7; Errata Ex. 2 16 (“Defs.’ Sierra Depo.”) 15:6–24. Plaintiff does not have continuous recall of what 17 happened while he was at the restaurant; rather, his memory is “flashy.” Carr Decl. ¶ 8; 18 Pl.’s Carr Depo. 44:14–17. 19 At 6:18 p.m., Ms. Sierra called 911 and reported that a man—Plaintiff—would not 20 leave despite having been asked to leave multiple times. Defs.’ Lodgment Ex. 25 (“Sierra 21 911 Call”). She informed the operator that he was a black male, around 35 years old, 22 weighing about 200 pounds and between 5’10” and 6’0”. Id. She said she had only served 23 him water, that she did not see any weapons on him, and that she thought he was high on 24 drugs. Id. 25 / / / 26

27 1 Neither Party submitted a statement of undisputed facts, and the Parties have differing interpretations or 28 views of many of the relevant facts. They agree, however, as to some of the material facts, as summarized 1 Ms. Sierra also asked the manager of the Restaurant, Jacob Skoor, to help her in 2 dealing with Plaintiff. Defs.’ Sierra Depo. 21:20–22. Mr. Skoor called 911 around the 3 same time that Ms. Sierra did, also asking to have a patron removed who was refusing to 4 leave and who appeared “to be out of his mind” and “on some sort of hallucinogen.” Defs.’ 5 Lodgment Ex. 26 (“1st Skoor 911 Call”). Mr. Skoor told the dispatcher he did not see any 6 weapons on Plaintiff and did not think he had been drinking. Id. Mr. Skoor called 911 7 again about twenty minutes later to report that Plaintiff was still at the Restaurant sleeping 8 at the bar. Defs.’ Lodgment Ex. 27 (“2d Skoor 911 Call”). Mr. Skoor was informed that 9 two deputies were en route. Id. 10 Deputies Chu and Soliman entered the Restaurant at around 6:55 p.m. Defs.’ 11 Lodgment Ex. 23 (“2d Restaurant Video”). They spoke with Plaintiff for about ten 12 minutes, trying to get Plaintiff to leave. Defs.’ Lodgment Ex. 18 (“Soliman BWC”). Chu 13 asked Plaintiff three times if he needed medical attention, but Plaintiff repeatedly 14 responded with questions such as, “Do I what?” and “I’m asking why?” Id. At around 15 7:05 p.m., Deputies Ferguson and McManus arrived at the Restaurant. Defs.’ Lodgment 16 Ex. 16 (“1st Chu BWC”). About a minute later, Deputy Cadigan entered the Restaurant. 17 Id. 18 Thereafter, the five deputies arrested Plaintiff. It is at this point that the parties have 19 some divergent interpretations of what happened. However, they agree that McManus 20 approached and told Plaintiff that he was trespassing, that he had to leave, and to put his 21 hands behind his back. Defs.’ Lodgment Ex. 13 (“1st Ferguson BWC”); Defs.’ Lodgment 22 Ex. 19 (“1st McManus BWC”); Defs.’ Lodgment Ex. 7 (“Defs.’ McManus Depo.”) 13:1– 23 16. McManus and Ferguson each grabbed Plaintiff’s arms. Pl.’s Lodgment Ex. 1 (“Synced 24 BWC”); 1st McManus BWC; Defs.’ McManus Depo. 14:19–22; Defs.’ Lodgment Ex. 5 25 (“Ferguson Depo.”) 31:5–10. Plaintiff’s arms were pressed tightly together with his palms 26 facing each other, close to his chest and under his chin. Errata Ex. 1 (“Defs.’ Carr Depo.”) 27 94:5–13; Pl.’s Carr Depo. 91:13–22. Cadigan also grabbed Plaintiff’s left arm. Errata Ex. 28 9 (“Defs.’ Cadigan Depo.”) 21:3–4. Chu tased Plaintiff in drive-stun mode three times 1 over a period of ten seconds, each deployment lasting one second. Synced BWC; Pl.’s 2 Lodgment Ex. 2 (“Taser Log”); Defs.’ Lodgment Ex. 6 (“Defs.’ Chu Depo.”) 116:2– 3 117:18. Defendants claim that the first three Taser deployments happened while Plaintiff 4 was standing, see Defs.’ Chu Depo. 117:10–11, while Plaintiff claims he was pinned to the 5 ground by the second deployment, see Synced BWC, Opp’n at 7 (citations omitted). 6 Either way, Plaintiff was taken to the ground by Ferguson, who grabbed the back of 7 Plaintiff’s neck at the base of his head and pushed down. Synced BWC; Soliman BWC; 8 Defs.’ Ferguson Depo. 54:1–16. Ferguson used a mandibular pressure point hold for 9 approximately two seconds. Pl.s’ Lodgment Ex. 8 (“Pl.’s Ferguson Depo.”) 65:03–13, 10 66:10–16; Defs.’ Ferguson Depo. 67:2–10. McManus had his hands on Plaintiff’s right 11 arm. Defs.’ McManus Depo. 28:10–25; Pl.’s Lodgment Ex. 10 (“Pl.’s McManus Depo.”) 12 33:5–19. Soliman delivered a knee strike to the left side of Plaintiff’s face and applied 13 downward pressure to Plaintiff’s head for a minute or two to keep him on the ground. Pl.’s 14 Lodgment Ex. 13 (“Pl.’s Soliman Depo.”) 31:21–32:11, 34:04–07, 34:16–35:22. Cadigan 15 had hold of Plaintiff’s left arm. Pl.’s Lodgment Ex. 5 (“Pl.’s Cadigan Depo.”) 31:1–11; 16 Defs.’ Cadigan Depo. 21:2–9, 32:5–20. While Plaintiff was on the ground and just one 17 second after the third Taser deployment, Chu deployed the Taser in drive-stun mode a final 18 time for five seconds. Taser Log; Synced BWC; Defs.’ Chu Depo. 122:2–16. 19 Ultimately, Cadigan handcuffed Plaintiff, and Deputies McManus, Ferguson, and 20 Cadigan carried him out of the Restaurant by his arms and legs. Defs.’ Cadigan Depo. 21 36:01–10; Defs.’ Lodgment Ex. 15 (“Cadigan BWC”). It was at this point that Plaintiff 22 first informed Defendants he was diabetic. Synced BWC; Defs.’ McManus Depo. 42:2–7; 23 Defs.’ Ferguson Depo. 102:1–3; Errata Ex. 4 (“Defs.’ Soliman Depo.”) 37:5–9. Plaintiff 24 was kept restrained in handcuffs outside the Restaurant. Defs.’ Soliman Depo. 47:4–5; 25 Defs.’ Ferguson Depo. 104:25–105:3; Synced BWC. In fact, Cadigan tightened Plaintiff’s 26 handcuffs, causing Plaintiff to cry out “ouch” multiple times and complain to the 27 paramedics that the handcuffs hurt. Synced BWC; Pl.’s Cadigan Depo. 36:11–24. 28 / / / 1 Once the paramedics arrived, they tested Plaintiff’s blood sugar and obtained a 2 reading of 29 mg/dL, which one of the paramedics said was “the lowest I’ve ever seen [in] 3 someone that’s still breathing.” Cadigan BWC; Errata Ex. 10 (“Defs.’ Prola Depo.”) 19:4– 4 7. The paramedics gave Plaintiff oral glucose gel to raise his blood sugar. Cadigan BWC. 5 Plaintiff informed the paramedics that his handcuffs were too tight. 1st Ferguson BWC; 6 Defs.’ Prola Depo. 72:13–21. The paramedics performed two pulse motor sensory 7 (“PMS”) tests on Plaintiff—one at that time, and one once Plaintiff was en route to the 8 hospital. Defs.’ Prola Depo. 72:13–74:11, Defs.’ Lodgment Ex. 21 (“3d McManus 9 BWC”); Declaration of EMT Delane Anthony Moore (“Moore Decl.,” ECF No. 58-5) ¶ 3. 10 Plaintiff was strapped to a stretcher on his side to accommodate the handcuffs and 11 placed in an ambulance to go to the hospital. 3d McManus BWC; Carr Decl. ¶ 22. 12 McManus accompanied Plaintiff during the ambulance ride. 3d McManus BWC. The 13 ambulance arrived at the hospital at around 7:45 p.m. Id. Ferguson met the ambulance at 14 the hospital. Id. Plaintiff was kept in handcuffs until he was cited and released at the 15 hospital, about 20 to 30 minutes later. Id.; Defs.’ McManus Depo. 86:2–7. 16 Plaintiff was given a Notice to Appear requiring him to appear in court on 17 September 5, 2018, for two misdemeanor criminal charges: (1) trespassing in violation of 18 Cal. Penal Code § 602 and (2) resisting a peace officer in violation of Cal. Penal Code 19 § 148. Carr Decl. ¶ 25. No criminal charges were ultimately filed. Id. ¶ 29. 20 The parties agree that Plaintiff suffered abrasions to his back from being tased, pain 21 in his wrist and shoulders from the handcuffs, and back and neck pain. Pl.’s Carr Depo. 22 153:20–154:23. 23 II. Procedural Background 24 Plaintiff initiated this action on June 17, 2019, asserting claims against the County, 25 the San Diego Sheriff’s Department, Jeffrey Chu, Joe McManus, and unnamed Doe 26 Defendants. See ECF No. 1. On July 10, 2019, the County moved to dismiss the complaint. 27 See ECF No. 3. On September 17, 2019, Chu also moved to dismiss, see ECF No. 8, and 28 on October 15, 2019, McManus also moved to dismiss, see ECF No. 13. On March 4, 1 2020, the Court denied the motions to dismiss, see ECF No. 19, and the County, Chu, and 2 McManus answered on March 18, 2020, see ECF No. 20. 3 On June 30, 2020, Plaintiff filed an ex parte motion for leave to amend the 4 complaint—seeking, among other changes, to drop the San Diego Sheriff’s Department as 5 a defendant and add Defendants Christopher Cadigan, Jason Ferguson, and Alexander 6 Soliman, see ECF No. 30—which motion was unopposed, see ECF No. 31. Accordingly, 7 the Court granted Plaintiff leave to file the operative First Amended Complaint (“FAC”), 8 see ECF No. 32, which Plaintiff did on July 2, 2020, see ECF No. 33. The County, 9 McManus, and Chu answered the FAC on July 16, 2020, see ECF No. 35, and Cadigan, 10 Ferguson, and Soliman answered on August 21, 2020, see ECF No. 36. 11 Defendants filed the present Motion for Summary Judgment on January 19, 2021. 12 See ECF No. 58. 13 PLAINTIFF’S MOTION TO STRIKE 14 I. Legal Standard 15 Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), the disclosure of an expert 16 witness “retained or specially employed to provide expert testimony in the case or . . . 17 whose duties as the party’s employee regularly involve giving expert testimony” must be 18 accompanied by a written report. The disclosure of an expert witness who is not required 19 to provide a written report, however, need only include “the subject matter on which the 20 witness is expected to present evidence” and “a summary of the facts and opinions to which 21 the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). “If a party fails to provide 22 information or identify a witness as required in Rule 26(a) . . . , the party is not allowed to 23 use that information or witness to supply evidence on a motion, at a hearing, or at a trial, 24 unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). A 25 court may impose additional or alternative sanctions for a failure to disclose. Id. 26 II. Analysis 27 In his Opposition, Plaintiff seeks to strike the Declaration of Lieutenant Criss Cross 28 (“Cross Decl.,” ECF No. 58-4), arguing that Defendants never provided an expert report 1 from Lt. Cross pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). Opp’n at 24–25. 2 Plaintiff argues that “Lt. Cross was not present or involved in the incident, and his C.V. 3 touts his status as a regular expert for the County” on use of force. Id. at 25 (citation 4 omitted). Defendants counter that “[Lt. Cross’s] regular duties do not require giving expert 5 testimony” and that they “identified Lt. Cross as an expert that required no written report 6 in their expert disclosures, and provided a summary of his expected testimony relating to 7 how he trains deputies in similar situations,” thus complying with Federal Rule of Civil 8 Procedure 26(a)(2)(C). Reply at 10. Defendants claim that Plaintiff failed to take 9 advantage of opportunities to depose Lt. Cross, provide a rebuttal report, or alert 10 Defendants’ counsel as to their concerns about Lt. Cross’s designation, and accordingly 11 “any alleged oversight is justified or harmless.” Id. (citation omitted). 12 Although the Ninth Circuit has not addressed the issue of what distinguishes a Rule 13 26(a)(2)(B) expert witness from a Rule 26(a)(2)(C) expert witness, several other Circuit 14 Courts of Appeal have, and district courts within the Ninth Circuit have generally adopted 15 the distinction drawn by those courts: namely, if the witness is testifying premised on his 16 or her personal knowledge based on his or her own involvement in the dispute, he or she 17 is a non-retained expert subject to the disclosure requirements of Rule 26(a)(2)(C), but a 18 witness with no prior personal knowledge of the facts giving rise to the litigation is a 19 retained expert subject to the disclosure requirements of Rule 26(a)(2)(B). See, e.g., 20 Jackson v. Officer Forman, Case No. CV 19-2443-DMG (AGRX), 2020 WL 6526373, at 21 *2–3 (C.D. Cal. Oct. 15, 2020) (barring proposed police expert who would “comment upon 22 the actions of the LAPD officers . . . which he did not personally observe” because expert 23 did not produce expert report) (relying on Downey v. Bob’s Disc. Furniture Holdings, Inc., 24 633 F.3d 1 (1st Cir. 2011)). Here, the Cross Declaration is clear that Lt. Cross is basing 25 his opinions on body worn camera recordings, various reports filed in the case, and 26 deposition transcripts rather than his personal involvement in the relevant events. See 27 Cross Decl. ¶¶ 4–5. Accordingly, Defendants’ disclosure of Lt. Cross should have been 28 governed by Rule 26(a)(2)(B) rather than Rule 26(a)(2)(C). 1 Because Defendants failed to comply with the disclosure requirements, the burden 2 shifts to them to establish that their failure to comply with Rule 26(a)(2)(B) was 3 substantially justified or harmless. Trulove v. D’Amico, Case No. 16-cv-050 YGR, 2018 4 WL 1090248, at *3 (N.D. Cal. Feb. 27, 2018). To assist in the discretionary assessment of 5 whether exclusion is a proper sanction under Rule 37, the Ninth Circuit has articulated a 6 five-factor test for district courts to employ: “1) the public’s interest in expeditious 7 resolution of litigation; 2) the court’s need to manage its docket; 3) the risk of prejudice to 8 the [plaintiff]; 4) the public policy favoring disposition of cases on their merits; [and] 5) 9 the availability of less drastic sanctions.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th 10 Cir. 1997) (citation omitted). 11 Here, the first factor favors exclusion, as the case has been pending for nearly two 12 years and is already at the summary judgment stage; reopening expert discovery to permit 13 Defendants to remedy the shortcomings in their disclosures undeniably would delay 14 resolution of the present Motion for Summary Judgment as well as the litigation more 15 generally. The second factor, the need to manage the Court’s docket, seems mostly neutral, 16 as no trial date has been set to date, although, as already noted, reopening discovery would 17 further prolong proceedings on the instant Motion for Summary Judgment and in this case. 18 As to the third factor, Plaintiff risks prejudice if the Court permits the declaration, as, 19 contrary to Defendants’ arguments, at least one California district court has found that 20 “[t]he opportunity to depose these witnesses without a clear explanation in advance for the 21 opinions they would offer, and the basis for those opinions, completely undercut the 22 purposes of expert discovery.” See Trulove, 2018 WL 1090248, at *3 (excluding the 23 testimony of experts improperly designated as unretained experts). The fourth factor is 24 neutral, as the exclusion of Lt. Cross’s declaration would not dispose of Defendants’ 25 defenses. Finally, the fifth factor favors exclusion, as the alternative would be to reopen 26 expert discovery prior to ruling on the present Motion for Summary Judgment. Given that 27 all the relevant factors either favor exclusion or are neutral, the Court finds that Defendants’ 28 / / / 1 failure to properly disclose Lt. Cross was neither substantially justified nor harmless and 2 GRANTS Plaintiff’s Motion to Strike. 3 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 4 I. Legal Standards 5 A. Summary Judgment 6 Under Federal Rule of Civil Procedure 56(a), a party may move for summary 7 judgment as to a claim or defense or part of a claim or defense. Summary judgment is 8 appropriate where the Court is satisfied that there is “no genuine dispute as to any material 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 10 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those that may affect 11 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 12 genuine dispute of material fact exists only if “the evidence is such that a reasonable jury 13 could return a verdict for the nonmoving party.” Id. When the Court considers the 14 evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and 15 all justifiable inferences are to be drawn in his favor.” Id. at 255. 16 The initial burden of establishing the absence of a genuine issue of material fact falls 17 on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden 18 by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and 19 admissions on file, together with the affidavits, if any,’” that show an absence of dispute 20 regarding a material fact. Id. When a plaintiff seeks summary judgment as to an element 21 for which it bears the burden of proof, “it must come forward with evidence which would 22 entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. 23 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting Houghton 24 v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)). 25 Once the moving party satisfies this initial burden, the nonmoving party must 26 identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S. 27 at 324. This requires “more than simply show[ing] that there is some metaphysical doubt 28 as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 1 586 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own 2 affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ 3 designate ‘specific facts’” that would allow a reasonable fact finder to return a verdict for 4 the non-moving party. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 248. The non- 5 moving party cannot oppose a properly supported summary judgment motion by “rest[ing] 6 on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256. 7 B. Qualified Immunity 8 “In determining whether an officer is entitled to qualified immunity, [courts] 9 consider (1) whether there has been a violation of a constitutional right, and (2) whether 10 that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. 11 California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 12 232 (2009)). Courts may “exercise sound discretion in deciding which of the two prongs 13 of the qualified immunity analysis should be addressed first in light of the circumstances 14 in the particular case at hand.” Pearson, 555 U.S. at 236. If either prong is dispositive, the 15 court need not analyze the other prong. See id. at 236–37. 16 A right is clearly established if the law was “sufficiently clear that every reasonable 17 official would understand that what he is doing” is unlawful. District of Columbia v. 18 Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) 19 (internal quotation marks omitted). “We do not require a case directly on point, but existing 20 precedent must have placed the statutory or constitutional question beyond debate.” al- 21 Kidd, 563 U.S. at 741. “Except in the rare case of an ‘obvious’ instance of constitutional 22 misconduct,” a plaintiff must identify a controlling case existing at the time of the incident 23 where an officer acting under similar circumstances as defendants was held to have violated 24 the constitutional right at issue. See Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 25 2017) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). The Ninth Circuit has held 26 that “the ‘obviousness principle, an exception to the specific-case requirement, is especially 27 problematic in the Fourth-Amendment context,’” and “thus has ‘real limits when it comes 28 / / / 1 to the Fourth Amendment.’” O’Doan v. Sanford, 991 F.3d 1027, 1044 (9th Cir. 2021) 2 (quoting Sharp v. Cty. of Orange, 871 F.3d 901, 912 (9th Cir. 2017)). 3 II. Analysis 4 Plaintiff asserts five claims, the first two against the Individual Defendants only and 5 the latter three against all Defendants: (1) unlawful detention and arrest in violation of the 6 Fourth Amendment; (2) excessive force in violation of the Fourth Amendment; (3) false 7 arrest/imprisonment in violation of California law; (4) negligence; and (5) violation of the 8 Bane Act, Cal. Civ. Code § 52.1. See generally FAC. Defendants move for summary 9 judgment as to all claims, arguing that the undisputed facts fail to establish Defendants’ 10 liability and that Defendants are entitled to qualified immunity. See generally MSJ. The 11 Court addresses each claim in turn. 12 A. Claim 1: Unlawful Detention and Arrest (Individual Defendants) 13 The Individual Defendants argue that McManus had probable cause to arrest 14 Plaintiff for trespassing and resisting arrest in violation of the California Penal Code, and 15 therefore McManus cannot be held liable for false arrest in violation of the Fourth 16 Amendment. See ECF No. 58-1 (“Mot. Mem.”) at 13–15. The Individual Defendants 17 further argue that they are all entitled to qualified immunity. First, they contend that, 18 because “it is clear that whether probable cause existed was a close question,” and 19 “McManus reasonably believed that Plaintiff had committed the crime of trespassing,” 20 McManus is entitled to qualified immunity. Id. at 16 (citation omitted). Second, they argue 21 that the remaining Individual Defendants are entitled to qualified immunity because there 22 is no clear precedent in the Ninth Circuit establishing when there is a reasonable 23 opportunity to intercede. Id. (citation omitted). 24 Plaintiff counters that factual disputes preclude summary judgment in the Individual 25 Defendants’ favor on the issue of whether his constitutional rights were violated. Opp’n 26 at 21. First, Plaintiff argues that any probable cause that existed to arrest him dissipated 27 when the officers became aware that he was suffering from a diabetic emergency, as both 28 the offenses of trespassing and resisting a peace officer require “willfulness,” a mental state 1 of which Plaintiff was incapable at the time of the events in question. Id. at 21–22. Further, 2 Plaintiff argues that the Individual Defendants are not entitled to qualified immunity, as it 3 was clearly established by July 2018 “that deputies violated the Fourth Amendment by 4 prolonging Carr’s arrest and detention after probable cause had dissipated.” Id. at 22 5 (citing Sialoi, 823 F.3d at 1232). 6 In reply, the Individual Defendants argue that, “[o]nce probable cause to arrest 7 someone is established, a deputy is not required to investigate a defense such as a lack of 8 requisite intent,” and thus the Individual Defendants’ later knowledge that Plaintiff was 9 suffering a diabetic emergency “does not negate McManus’s earlier probable cause 10 determination.” Reply at 2 (citations omitted). The Individual Defendants further claim 11 that Plaintiff fails to meet his burden of identifying a case with similar facts where an 12 officer was held to violate the right at issue, as “Plaintiff cites no case dealing with 13 California Penal Code sections 148 or 602.1.” Id. at 3. The Individual Defendants argue 14 that Sialoi is distinguishable and that the instant facts are more closely aligned with those 15 of Garcia v. City of Santa Clara, 772 F. App’x 470 (9th Cir. 2019). Id. at 3–5. 16 1. Constitutional Violation: Unlawful Detention and Arrest 17 “In order to satisfy the requirements of the Fourth Amendment, an arrest must be 18 supported by probable cause to believe that the arrestee has committed a crime.” Allen v. 19 City of Portland, 73 F.3d 232, 236 (9th Cir. 1995), as amended (Jan. 17, 1996) (citing 20 Henry v. United States, 361 U.S. 98, 102 (1959)). “In determining whether there was 21 probable cause to arrest, we look to ‘the totality of circumstances known to the arresting 22 officers, [to determine if] a prudent person would have concluded there was a fair 23 probability that [the defendant] had committed a crime.’” Crowe v. Cty. of San Diego, 608 24 F.3d 406, 432 (9th Cir. 2010) (citing United States v. Smith, 790 F.2d 789, 792 (9th Cir. 25 1986)). “The analysis involves both facts and law. The facts are those that were known to 26 the officer at the time of the arrest. The law is the criminal statute to which those facts 27 apply.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011). “‘[I]n a § 1983 28 action the factual matters underlying the judgment of reasonableness generally mean that 1 probable cause is a question for the jury, and summary judgment is appropriate only if no 2 reasonable jury could find that the officers did or did not have probable cause to arrest.’” 3 Orr v. Cal. Highway Patrol, No. CIV. 2:14-585 WBS, 2015 WL 848553, at *5 (E.D. Cal. 4 Feb. 26, 2015) (quoting McKenzie, 738 F.2d at 1008). 5 “It is well-established that a ‘person may not be arrested, or must be released from 6 arrest, if previously established probable cause has dissipated.’” Nicholson v. City of Los 7 Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (quoting United States v. Ortiz-Hernandez, 427 8 F.3d 567, 574 (9th Cir. 2005) (per curiam)). “‘As a corollary . . . of the rule that the police 9 may rely on the totality of facts available to them in establishing probable cause, they also 10 may not disregard facts tending to dissipate probable cause.’” Id. (quoting Ortiz- 11 Hernandez, 427 F.3d at 574). 12 As an initial matter, Plaintiff pleads in his FAC, see FAC ¶ 50, and argues in his 13 Opposition, see Opp’n at 20 (citation omitted), that each of the Individual Defendants was 14 “an integral participant” in the conduct in question; accordingly, by focusing solely on their 15 alleged failure to intervene, the Individual Defendants miss the mark. The Ninth Circuit 16 has explained that “[t]his theory of liability ‘does not require that each officer’s actions 17 themselves rise to the level of a constitutional violation.’ Instead, liability may attach if 18 the officer has ‘some fundamental involvement in the conduct that allegedly caused the 19 violation.’” Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (citations 20 omitted). In other words, “an officer could be held liable where he is just one participant 21 in a sequence of events that gives rise to a constitutional violation.” Id. at 692. 22 Here, viewing the evidence in the light most favorable to Plaintiff, each of the 23 Individual Defendants meaningfully participated in the sequence of events that culminated 24 in Plaintiff’s handcuffing, arrest, and detention, and a reasonable jury could conclude that 25 each played an integral role in Plaintiff’s arrest and detention. See, e.g., Blankenhorn v. 26 City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (finding that officers meaningfully 27 participated in arrest and therefore were integral participants in the allegedly excessive 28 force where they tackled the plaintiff, helped others to gain control over the plaintiff, 1 ordered the use of hobble restraints, applied hobble restraints, and/or handcuffed the 2 plaintiff); McFarlin v. Penzone, 848 F. App’x 695, 698 (9th Cir. 2021) (“We do not 3 preclude liability when the defendant is alleged to have been an active participant, 4 regardless of whether his individual actions rise to the level of a constitutional violation.”). 5 As addressed in more detail infra, each Individual Defendant applied force to Plaintiff and 6 helped gain physical control over his person in the lead up to his arrest, and Cadigan 7 tightened Plaintiff’s handcuffs after Plaintiff complained of pain and did not loosen them 8 when Plaintiff later complained. Accordingly, the Court finds that the issue of probable 9 cause is relevant to all the Individual Defendants, not just McManus.2 10 a. Trespassing (Cal. Penal Code § 602.1) 11 “[A] violation of § 602.1 has two elements: (1) intentional interference, and (2) 12 refusal to leave.” Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 966 (9th Cir. 13 2001). Further, “scienter is a necessary element of the offense of trespass.” People v. 14 Irizarry, 37 Cal. App. 4th 967, 975 (1995). 15 At the time Plaintiff was initially arrested, it appears likely the Individual Defendants 16 had probable cause to arrest him for trespass. Based on the facts apparent to the Individual 17 Defendants at the time, Plaintiff was intentionally interfering with the Restaurant’s 18 business. Plaintiff was asked multiple times by Restaurant staff and the Individual 19 Defendants themselves over a period of about forty minutes to leave the premises, yet 20 Plaintiff refused to do so. People v. Turner, 13 Cal. App. 5th 397, 406, as modified (July 21 27, 2017) (citation omitted). Indeed, “the restaurant’s manager had to interrupt [his] duties 22 not only to ask Plaintiff to leave, but also to call the police, talk to [the officers], and fill 23

24 2 The Court notes that, during the hearing, Defendants contended that “integral participant” liability is 25 only applicable in search warrant cases. However, that does not appear to be the case. See, e.g., Atencio v. Arpaio, 674 F. App’x 623 (9th Cir. 2016) (analyzing integral participation issue in case involving 26 arrestee); Martinez v. City of Pittsburg, 809 F. App’x 439 (9th Cir. 2020) (same); Johnson v. Bay Area Rapid Transit Dist., No. C-09-0901 EMC, 2013 WL 6155266 (N.D. Cal. Nov. 22, 2013) (analyzing 27 integral participation in context of detention by Bay Area Rapid Transit police); Bresaz v. County of Santa 28 Clara, No. 14-CV-03868-LHK, 2015 WL 1230316 (N.D. Cal. Mar. 17, 2015) (analyzing integral 1 out paperwork.” Id. These facts are sufficient to infer both Plaintiff’s intent to interfere 2 and to establish his refusal to leave. 3 However, Plaintiff contends that this probable cause dissipated when the Individual 4 Defendants learned from paramedics that he was experiencing a diabetic emergency. 5 Plaintiff appears to argue that the Individual Defendants should have perceived that he was 6 unable to act with the requisite scienter to trespass given his medical condition and that this 7 dissipated any prior probable cause. Viewing the facts and evidence in the light most 8 favorable to the Plaintiff, the Court cannot conclude that no reasonable jury could find that 9 probable cause had dissipated. 10 The excerpts submitted by Plaintiff from the California Commission on Peace 11 Officer Standards and Training’s Basic Course Workbook Series (Version 6.1) (the 12 “Manual”) concerning “Diabetic Emergencies” indicates that “[t]here are a number of 13 indicators of a diabetic emergency that are similar to indications of alcohol intoxication or 14 substance abuse,” including “[a]ggressiveness”; “[c]ombativeness”; “[u]ncooperative 15 behavior”; “[c]onfusion, dazed appearance”; and “[d]ecreased level of consciousness.” 16 Pl.’s Lodgment Ex. 3 at 5. Thus, the Manual indicates that “[p]eace officers should not 17 assume that a person exhibiting these indicators is intoxicated without further questioning 18 and assessment,” including “[l]ook[ing] for medical alert jewelry or other indicators that 19 the person may be diabetic.” Id. 20 Furthermore, by the time Plaintiff was outside the Restaurant, the video footage 21 establishes that Plaintiff’s insulin pump was clearly visible to the Individual Defendants, 22 see Synced BWC, and Plaintiff verbalized that he was diabetic, id. When the paramedics 23 arrived, Deputy Ferguson informed them that Plaintiff “says he’s diabetic” and that “it 24 looks like he’s got one of those things,” indicating his insulin pump. Id. The paramedics 25 informed the Individual Defendants that Plaintiff’s blood sugar level was 29 mg/dL, and 26 one said, it was “the lowest I’ve ever seen someone that’s still breathing.” Cadigan BWC. 27 A reasonable jury could conclude, based on this evidence, that a reasonable officer 28 would have determined that Plaintiff lacked the requisite intent to interfere to commit a 1 trespass and that any probable cause to detain or arrest him had dissipated. See, e.g., Orr 2 v. Cal. Highway Patrol, No. CIV. 2:14-585 WBS, 2015 WL 848553, at *7 (E.D. Cal. Feb. 3 26, 2015) (“Here, however, a reasonable jury could conclude that plaintiff’s medical 4 condition was not a ‘theoretical’ claim of innocence. There were facts known to [the 5 arresting officer] at the time of plaintiff’s arrest that made plaintiff’s stroke readily 6 verifiable . . . . Under Ortiz, a reasonable jury could find that [the officer] was not entitled 7 to disregard these facts which dissipated probable cause that plaintiff was under the 8 influence of drugs.”) (citation omitted). 9 b. Resisting Arrest (Cal. Penal Code § 148(a)(1)) 10 Defendants also claim they had probable cause to arrest and detain Plaintiff for 11 resisting arrest in violation of California law. “The elements of the asserted crime at issue 12 here, a Section 148(a)(1) violation, are: ‘(1) the defendant willfully resisted, delayed, or 13 obstructed a peace officer, (2) when the officer was engaged in the performance of his or 14 her duties, and (3) the defendant knew or reasonably should have known that the other 15 person was a peace officer engaged in the performance of his or her duties.’” Velazquez v. 16 City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) (quoting Garcia v. Superior 17 Court, 177 Cal. App. 4th 803, 818 (2009)). “Notably, ‘[f]or a § 148(a)(1) conviction to be 18 valid, a criminal defendant must have “resist[ed], delay[ed], or obstruct[ed]” a police 19 officer in the lawful exercise of his duties.’” Id. (quoting Smith v. City of Hemet, 394 F.3d 20 689, 695 (9th Cir. 2005) (en banc) (alterations and emphasis in original)). “[F]or the 21 purposes of Section 148(a), ‘an officer is not lawfully performing her duties when she 22 detains an individual without reasonable suspicion or arrests an individual without probable 23 cause.’” Id. at 1019 (quoting Garcia, 177 Cal. App. 4th at 819). 24 “Furthermore, ‘[i]t is well established under California law that even “an outright 25 refusal to cooperate with police officers cannot create adequate grounds for [police] 26 intrusion” without more.’” Rios v. City of San Diego, No. 13-CV-3004 JLS (DHB), 2015 27 WL 12513462, at *8 (S.D. Cal. Oct. 13, 2015) (quoting Mackinney v. Nielsen, 69 F.3d 28 1002, 1006 (9th Cir. 1995)). In addition, “it surely cannot be supposed that Penal Code 1 section 148 criminalizes a person’s failure to respond with alacrity to police orders. 2 Moreover, . . . ‘[t]he freedom of individuals verbally to oppose or challenge police action 3 without thereby risking arrest is one of the principal characteristics by which we distinguish 4 a free nation from a police state.’” People v. Quiroga, 16 Cal. App. 4th 961, 966 (1993) 5 (quoting Houston v. Hill, 482 U.S. 451, 462–63 (1987)). 6 On the record presently before this Court and viewing the evidence and all inferences 7 therefrom in the light most favorable to Plaintiff, the Court finds that genuine issues of 8 material fact remain as to whether Plaintiff willfully resisted the Individual Defendants, 9 therefore precluding a grant of summary judgment in the Individual Defendants’ favor as 10 to whether they unlawfully detained or arrested Plaintiff for his alleged resistance. Indeed, 11 there are questions as to whether Plaintiff resisted the Individual Defendants at all. Plaintiff 12 testified that he made no aggressive or threatening movements toward the Individual 13 Defendants or anyone else. Carr Decl. ¶ 15. He also stated in his deposition that he held 14 his hands as he did because he felt like he was falling forward and he was protecting his 15 chest and face from hitting the ground. Pl.’s Carr Depo. 91:13–22. 16 Defendants claim that the video footage shows Plaintiff tensing when he is first 17 grabbed by the Individual Defendants. Synced BWC. However, “the type of resistance 18 [Plaintiff] is accused of—tensing his arms, as opposed to punching, kicking or biting—is 19 difficult to discern on videos.” Lee v. City of San Diego, 492 F. Supp. 3d 1088, 1105 (S.D. 20 Cal. 2020). Further, a jury could conclude that Plaintiff’s alleged tensing was not resistance 21 at all, or was, at most, passive resistance. See Castillo v. City of Tempe, No. CV-12-02225- 22 PHX-ROS, 2014 WL 11505911, at *5 (D. Ariz. Sept. 18, 2014) (concluding that, 23 “[d]rawing all inferences in favor of Plaintiff, a jury could plainly conclude Plaintiff was 24 not resisting arrest” where officer claimed Plaintiff tensed his arm and attempted to pull 25 out of officer’s grasp but Plaintiff denied resisting arrest); Quyen Kim Dang v. City of 26 Garden Grove, No. SACV 10-00338 DOC, 2011 WL 3419609, at *7 (C.D. Cal. Aug. 2, 27 2011) (“[C]ourts in the Ninth Circuit distinguish between ‘passive’ and ‘active’ resistance, 28 finding, as a general proposition, that the former justifies less force than the latter. 1 ‘Passive’ resistance has been described to include actions like ‘remaining seated, refusing 2 to move, and refusing to bear weight’ despite police orders to the contrary. The action of 3 tensing one’s wrists seems to fall within this general category of resistance.”) (quoting 4 Forrester v. City of San Diego, 25 F.3d 804, 805 (9th Cir. 1994)); Westerfield v. Wade, No. 5 CV05-6645 ABC (CWX), 2008 WL 1931240, at *2 (C.D. Cal. Apr. 9, 2008) (“Defendant 6 has presented no law to support his assertion that tensing one’s body constitutes active 7 resistance.”). 8 After he is first tased, Plaintiff says, “Okay! Okay!,” which a jury reasonably could 9 construe as a verbalization of his willingness to comply with the Individual Defendants’ 10 requests. Synced BWC; see Velazquez v. City of Long Beach, 793 F.3d 1010, 1021 (9th 11 Cir. 2015) (“A reasonable jury could have inferred from this evidence that Abuhadwan had 12 no plausible reason to believe that Velazquez was a physical threat to him, and that 13 Abuhadwan never gave Velazquez an opportunity peacefully to comply once on the 14 ground.”); Burdett v. Reynoso, No. C-06-00720 JCS, 2007 WL 2429426, at *22 (N.D. Cal. 15 Aug. 23, 2007) (finding disputed issues of fact precluded a determination that officers had 16 probable cause under section 148(a) on motion for summary judgment), aff’d, 399 F. App’x 17 276 (9th Cir. 2010); Myles v. Cty. of San Diego by & through San Diego Cty. Sheriff’s 18 Dep’t, No. 15-CV-1985-BEN (BLM), 2017 WL 4169722, at *8 (S.D. Cal. Sept. 20, 2017) 19 (“A reasonable jury could credit Plaintiff’s and Dorsett’s testimonies and find that 20 Plaintiff’s actions did not rise to the level of willful resistance, delay, or obstruction.”); 21 Quintero v. City of Escondido, No. 15-CV-2638-BTM-BLM, 2017 WL 4005345, at *9 22 (S.D. Cal. Sept. 11, 2017) (“The Court therefore finds that Plaintiff, like the defendants in 23 Wetzel and Prescott, at most, passively resisted Officer Visconti and as such, his arrest for 24 asserting his Fourth Amendment right is unlawful.”). 25 Moreover, as argued by Plaintiff, a jury potentially could conclude, on the evidence 26 presented by Plaintiff, that, to the extent Plaintiff did resist, probable cause to detain or 27 arrest Plaintiff dissipated when the Individual Defendants learned that Plaintiff was 28 suffering a significant hypoglycemic medical event. See Opp’n at 21–22. For the reasons 1 provided supra, a reasonable jury could conclude, based on this evidence, that a reasonable 2 officer would have determined that Plaintiff lacked the requisite intent to violate section 3 148 and that any probable cause to detain or arrest him for resisting an officer had 4 dissipated. 5 Accordingly, on the record presently before the Court, a reasonable jury could 6 conclude that the Individual Defendants violated Plaintiff’s constitutional right to be free 7 from unlawful detention and arrest when they detained and arrested him, both for 8 trespassing and for resisting a police officer. 9 2. Clearly Established Law 10 Nonetheless, the Court finds the second prong of the Graham analysis precludes 11 finding the Individual Defendants liable on the present facts, as the law was not sufficiently 12 clear in July 2018 that probable cause to arrest Plaintiff may have dissipated in light of his 13 medical condition. 14 “[T]he question in determining whether qualified immunity applies is whether all 15 reasonable officers would agree that there was no probable cause in this instance.” 16 Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1078 (9th Cir. 2011) (citation and footnote 17 omitted). Thus, “an officer is entitled to qualified immunity whenever, on facts not subject 18 to genuine dispute, it is clear that whether probable cause existed was a close question.” 19 Flynn v. City of Santa Clara, 388 F. Supp. 3d 1158, 1169 (N.D. Cal. 2019) (emphasis in 20 original) (citation and internal quotation marks omitted). 21 While it was clearly established at the relevant time, as Plaintiff argues, “that 22 prolonging an arrest after confronting facts dissipating probable cause is a violation of the 23 Fourth Amendment,” Opp’n at 22, the Ninth Circuit recently rejected a similarly broad 24 statement of the applicable “clearly established law” in a case in which the plaintiff 25 advanced similar arguments based on his medical condition. See O’Doan v. Sanford, 991 26 F.3d 1027, 1041–42 (9th Cir. 2021). In so doing, the Ninth Circuit noted that “[t]he 27 Supreme Court ‘ha[s] repeatedly stressed that courts must not define clearly established 28 law at a high level of generality, since doing so avoids the crucial question whether the 1 official acted reasonably in the particular circumstances that he or she faced.’” Id. at 1041 2 (citation omitted). 3 Indeed, this case seems factually somewhat similar to O’Doan. In O’Doan, the 4 plaintiff, O’Doan, allegedly experienced an epileptic seizure in the shower, and his 5 girlfriend called 911 to report the incident, indicating that O’Doan was trying to break 6 windows and had fled their home unclothed. Id. at 1032. Firefighters arrived to see 7 O’Doan and his girlfriend grappling with one another in the street and requested police 8 assistance. Id. O’Doan ignored the firefighters’ requests that he stop, and his girlfriend 9 told them she believed he had had a seizure. Id. When police officers arrived on the scene, 10 they ordered O’Doan to stop, but O’Doan did not comply and instead turned toward the 11 officers and balled up his fists and raised his arms slightly. Id. at 1033. One of the officers 12 tried to deploy his taser but it malfunctioned, and the other officer used a “reverse reap 13 throw” to bring O’Doan to the ground. Id. A “major struggle” ensued. Id. O’Doan was 14 treated in the hospital for a seizure or possible seizure, was arrested for resisting a public 15 officer and indecent exposure, was booked into the county jail overnight, and then was 16 released on bail. Id. at 1033–35. Charges were brought against O’Doan but ultimately 17 dismissed. Id. at 1035. O’Doan sued for, among other things, wrongful arrest and 18 excessive force, and the district court granted summary judgment in favor of the 19 defendants. Id. 20 On appeal, O’Doan argued that “the officers lacked probable cause to arrest him 21 because they should have known he lacked the mens rea to complete the offenses.” Id. at 22 1038. In upholding the district court’s grant of summary judgment to the defendants, the 23 Ninth Circuit held: 24 [I]t cannot be said that [Officers] Sanford and Leavitt violated clearly established law in concluding they had probable cause to 25 arrest O’Doan. Law enforcement officers every day confront 26 persons engaged in illegal conduct who may appear to lack some degree of control over their own actions. These situations can 27 present difficult judgment calls for police officers, who face 28 competing duties to ensure public safety and compliance with the 1 lhaewlp, . while acting compassionately toward persons in need of 2

3 We are unaware of any case law—and neither O’Doan nor the dissent cite any—that should have made clear to Sanford and 4 Leavitt that they lacked probable cause to make an arrest. 5 Whether a defendant had the mens rea to commit an offense can sometimes be the focus of substantial investigation, if not an 6 entire criminal trial. O’Doan identifies no precedent that 7 required the officers in the specific circumstances they encountered to pretermit those processes entirely and decide on 8 their own—on a busy street or in an emergency room—that 9 O’Doan’s facially unlawful conduct should be excused. If arresting officers had to accept at face value claims of potential 10 lack of mens rea, as here, many arrests for unlawful conduct 11 would likely be called into question, with significant public safety consequences. The most relevant decision (Everson [v. 12 Leis, 556 F.3d 484 (6th Cir. 2009)]) affirmatively supported the 13 officers’ arrest of O’Doan. But at the very least, there was no decision—or indeed, any relevant body of law or precedent— 14 that “clearly prohibit[ed]” O’Doan’s arrest in the “particular 15 circumstances” that the officers confronted.

16 Id. at 1040–41 (citations omitted). 17 While the Court is troubled by the Individual Defendants’ treatment of Plaintiff, 18 ultimately, the probable cause determination is a close call. Thus, the Court cannot 19 conclude on the facts before it that it was clearly established that probable cause had 20 dissipated and therefore continuing to arrest and detain Plaintiff after learning of his 21 medical condition violated Plaintiff’s Fourth Amendment rights. Accordingly, the Court 22 finds that the Individual Defendants are entitled to qualified immunity and GRANTS the 23 MSJ as to Plaintiff’s first claim. 24 B. Claim 2: Excessive Force (Individual Defendants) 25 Although the Court finds that the Individual Defendants are entitled to qualified 26 immunity on Plaintiff’s false arrest claim, the Court analyzes Plaintiff’s excessive force 27 claim separately. As the Ninth Circuit has explained, “[b]ecause the excessive force and 28 false arrest factual inquiries are distinct, establishing a lack of probable cause to make an 1 arrest does not establish an excessive force claim, and vice-versa.” Beier v. City of 2 Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (citing Arpin v. Santa Clara Valley Transp. 3 Agency, 261 F.3d 912, 921–22 (9th Cir. 2001)). 4 Claims of excessive force are analyzed under the Fourth Amendment prohibition 5 against unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 394 (1989). To state 6 an excessive force claim, a plaintiff must allege facts showing that the defendant’s conduct 7 was “objectively unreasonable in light of the facts and circumstances confronting them.” 8 Id. at 397. In determining the reasonableness of an officer’s conduct, the court must 9 balance “the nature and quality of the intrusion on the individual’s Fourth Amendment 10 interests” against the “countervailing government interests at stake.” Id. at 396. Courts 11 should consider the “facts and circumstances of each particular case, including the severity 12 of the crime at issue, whether the suspect poses an immediate threat to the safety of the 13 officers or others, and whether he is actively resisting arrest or attempting to evade arrest 14 by flight.” Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). 15 The Individual Defendants assert that “[i]t is undisputed that Plaintiff did not comply 16 with deputies’ orders to put his hands behind his back. Further, the deputies believed that 17 Plaintiff posed a threat to the safety of the officers, patrons of the Restaurant, and himself.” 18 Mot. Mem. at 18. They claim each officer’s conduct was reasonable in light of the 19 uncontroverted evidence, including video footage, therefore supporting a grant of summary 20 judgment in their favor. Id. at 18–20. Moreover, the Individual Defendants claim 21 entitlement to qualified immunity for Chu’s taser deployment, citing Isayeva v. Sacramento 22 Sheriff’s Dep’t, 872 F.3d 938 (9th Cir. 2017). Mot. Mem. at 20–22. They also claim that 23 the remaining Individual Defendants are entitled to qualified immunity because the law is 24 not clearly established as to when an officer has a realistic opportunity to intercede. Id. at 25 22. 26 Plaintiff counters that the disputed factual issues preclude summary judgment on 27 both liability and qualified immunity. Opp’n at 13. Specifically, Plaintiff argues that “[h]e 28 did not make any aggressive or violent gestures, movements, or stances in any way at any 1 time,” id. at 14; he did not resist in any way after the first deployment of the taser, id.; and 2 yet the Individual Defendants put him in a headlock, “slammed” him to the ground, 3 “dogpiled” onto him, kneed him in the head, applied continuing pressure to his head for 4 one to two minutes, knuckled his jaw, tased him three more times, and placed him in 5 overtight handcuffs for more than an hour, id. at 14–15. Plaintiff claims that, were a jury 6 to find these facts to be true, it could reasonably conclude that no force after the first taser 7 deployment was necessary, and accordingly the Individual Defendants’ use of force was 8 unreasonable. Id. at 15. Plaintiff also argues that there is a genuine issue of material fact 9 as to whether he posed a threat to anyone’s safety. Id. Plaintiff argues that the fact that 10 the Individual Defendants did not attempt to move three other customers seated at the bar 11 within several feet of Plaintiff supports an interpretation that he was not a threat, and the 12 video footage is consistent with his testimony that he did not resist, showing that he tensed 13 up when first grabbed but verbalized his willingness to cooperate after the first taser 14 deployment. Id. at 15–16 (citation omitted). Further, the Ninth Circuit has recognized that 15 trespassing and obstructing a police officer are not severe crimes. Id. at 16 (citations 16 omitted). Plaintiff asserts that there is a genuine factual dispute as to whether he resisted 17 the Individual Defendants in any way, particularly after he was first tased. Id. at 16–18. 18 Finally, Plaintiff argues that it was clearly established that the Individual 19 Defendants’ use of force violated the Fourth Amendment. Id. at 18. Because Plaintiff 20 argues no force was necessary after Chu first deployed the taser, any subsequent force was 21 unnecessary and unreasonable. Id. (citations omitted). Plaintiff argues Isayeva is 22 distinguishable, as there the suspect was only tased once, while Chu tased Plaintiff three 23 more times in a period of less than thirty seconds after he was first tased and stopped any 24 possible resistance. Id. at 19 (citations omitted). And Plaintiff contends that all the 25 Individual Defendants are liable as integral participants in pinning Plaintiff to the ground 26 while Chu tased him. Id. at 20. Alternatively, Plaintiff argues that this is a sufficiently 27 obvious violation of his constitutional rights that clearly established precedent need not be 28 cited. Id. at 20–21. 1 In reply, the Individual Defendants argue that the Court can and should infer from 2 Plaintiff’s “minor” injuries that the force used was minimal. Reply at 5 (citing Felarca v. 3 Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018)). They claim that handcuffing “is ‘low on 4 the continuum of tactics available to police officers.’” Id. (quoting Donovan v. Phillips, 5 No. 3:14-cv-00680-CRB, 2015 WL 993324, at *5 (N.D. Cal. Mar. 4, 2015)). The 6 Individual Defendants argue that Plaintiff fails to cite any case showing that McManus’s, 7 id. at 5–6; Cadigan’s, id. at 6–7; Ferguson’s, id. at 8; or Soliman’s, id.; use of force violated 8 clearly established law. The Individual Defendants also argue that the other officers cannot 9 be held liable as “integral participants” in Chu’s decision to deploy his taser. Id. at 9–10. 10 1. Constitutional Violation: Excessive Force 11 As noted supra, Plaintiff claims that each Individual Defendant was an integral 12 participant in the allegedly excessive force. See FAC ¶ 58; Opp’n at 20. And, for the 13 reasons provided supra, the Court finds that a reasonable jury, viewing the evidence in 14 Plaintiff’s favor, could find that each of the Individual Defendants was an integral 15 participant in the excessive force, which was not, contrary to Individual Defendants’ 16 assertion, limited to Chu’s taser deployments. Rather, Plaintiff claims at least the following 17 conduct constituted excessive force: 18 • Chu deployed his taser in drive-stun mode a total of four times over a period 19 of less than 30 seconds; 20 • “Ferguson put [Plaintiff] in a headlock and slammed [him] to the ground”; 21 then “Ferguson dogpiled on [Plaintiff]” with both Cadigan and McManus; 22 Ferguson “pressed down on [Plaintiff] with his 205-pound body”; and Chu 23 applied his bodyweight to “the dogpile of deputies on [Plaintiff]”; 24 • Ferguson “pressed his left knuckle into the area behind [Plaintiff]’s ear and 25 jawline to cause him pain”; 26 • Soliman kneed Plaintiff in the head, and Soliman applied downward pressure 27 on Plaintiff’s head for one to two minutes; and 28 • Once Plaintiff was prone and speaking with the officers, Cadigan tightened 1 Plaintiff’s handcuffs until Plaintiff cried out in pain, and neither McManus 2 nor Ferguson loosened or removed the handcuffs despite Plaintiff’s repeated 3 complaints of pain. 4 Opp’n at 14. 5 Some courts have found that “tackling is a low quantum of force,” as is “[t]he use of 6 handcuffs to detain an individual.” Sienze v. Kutz, No. 1:17-CV-0736 AWI SAB, 2019 7 WL 95459, at *7 (E.D. Cal. Jan. 3, 2019), reconsideration denied, No. 1:17-CV-0736 AWI 8 SAB, 2019 WL 7606135 (E.D. Cal. Mar. 18, 2019) (citations omitted). However, using a 9 taser in drive-stun mode is a less than intermediate use of force. See, e.g., Lerma v. City of 10 Nogales, No. CV 12-518-TUC-FRZ, 2014 WL 4954421, at *8 (D. Ariz. Sept. 30, 2014) 11 (“Since Mattos, district courts in the Ninth Circuit have ‘assume[d] that the taser use in 12 drive stun mode constituted a somewhat less than intermediate level of force.’”) (citations 13 omitted). And, “[w]hile using knee placement to restrain and handcuff an arrestee may be 14 a less significant use of force [than knee strikes] depending on the circumstances, an officer 15 ramming his knee into an arrestee’s back tends towards being excessive, even given an 16 arrestee’s resistance.” Lopez v. City of Imperial, No. 13-CV-00597-BAS WVG, 2015 WL 17 4077635, at *7 (S.D. Cal. July 2, 2015). Finally, putting Plaintiff into a headlock, 18 slamming him to the ground, and then having multiple officers put their bodyweight on 19 him would appear to be at least an intermediate use of force. See, e.g., Roberson v. City of 20 Hawthorne, __ F. Supp. 3d __, No. CV196913DMGJPRX, 2021 WL 852124, at *7 (C.D. 21 Cal. Jan. 29, 2021) (“[T]he nature of the intrusion involved placing [the plaintiff] in a 22 headlock, throwing him against the wall and then to the ground, and then putting weight 23 on his neck, with [another officer] adding weight to [the plaintiff’s] lower backside. 24 Defendants emphasize that the whole scuffle took only a few seconds and that [the 25 plaintiff] did not suffer any immediate apparent injuries. But a violent tackle, especially 26 focused on the head and neck area, need not take long to be severe. Nor does the fact that 27 [the plaintiff] appeared to emerge relatively unscathed change the nature of the attack that 28 he described.”). 1 Combined, a jury reasonably could find the intrusion on Plaintiff’s rights to be more 2 than minimal. See, e.g., Marquez v. City of Phoenix, 693 F.3d 1167, 1174 (9th Cir.), as 3 amended on denial of reh’g (Oct. 4, 2012) (finding nine taser deployments, two 4 ineffectively deployed in probe mode and seven in drive-stun mode, along with being 5 wrestled into submission by two policemen, “constituted a not-insignificant potential 6 intrusion upon [the plaintiff]’s Fourth Amendment rights”) (citation omitted); K.J.P. v. Cty. 7 of San Diego, No. 3:15-CV-02692-H-MDD, 2019 WL 1586739, at *7 (S.D. Cal. Apr. 12, 8 2019) (“[The officer] used significant force on [the plaintiff] in the form of pinning his 9 arm, force using his knee to [the plaintiff]’s shoulder, placing his full bodyweight on [the 10 plaintiff], and elbowing [the plaintiff]’s head.”); Lerma, 2014 WL 4954421, at *9 (“The 11 evidence supports the conclusion that the four taser deployments in dart-mode made in 12 quick succession, together with the drive-stun mode deployment and the officers’ physical 13 contact with Plaintiff who, after the first taser deployment remained on the floor, 14 ‘constituted a not-insignificant potential intrusion upon [the plaintiff’s] Fourth Amendment 15 rights.’”) (citing Marquez, 693 F.3d at 1174); Radwan v. Cty. of Orange, No. SACV 08- 16 0786 AG, 2010 WL 3293354, at *16 (C.D. Cal. Aug. 18, 2010) (“Overall, the use of force 17 against Plaintiff at the scene of his arrest was moderate,” where the plaintiff was tased once 18 in drive-stun mode with no warning, had leg chains that were already tight and painful 19 kicked, had his head thrown against a car hood, was thrown to the ground, and had his 20 testicles squeezed), aff’d, 519 F. App’x 490 (9th Cir. 2013); Bohnert v. Mitchell, No. CV- 21 08-2303-PHX-LOA, 2010 WL 3767566, at *13 (D. Ariz. Sept. 21, 2010) (finding officers 22 collectively used a significant level of non-lethal force when they tased the plaintiff four 23 times in stun mode, used the combined strength of three officers to restrain him, and hit the 24 plaintiff on his shoulder or arm with a fist); Neidinger v. Cty. of Pierce, No. 3:10-CV-5702- 25 RBL, 2012 WL 3023319, at *3 (W.D. Wash. July 24, 2012) (finding reasonable jury could 26 conclude excessive force used where officer “repeatedly tased [the plaintiff in drive-stun 27 mode], pushed her to the floor, and choked her”). In sum, the Court finds that the intrusion 28 / / / 1 on Plaintiff’s Fourth Amendment rights was not insubstantial, and likely intermediate, in 2 nature. 3 Meanwhile, the crimes at issue decidedly were not severe. See, e.g., Davis v. City 4 of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (“Trespassing and obstructing a police 5 officer . . . ‘provide[ ] little, if any, basis for the officer[’]s[ ] use of physical force.’”) 6 (citation omitted); Blankenhorn, 485 F.3d at 478 (“[T]he severity of the alleged crime, 7 misdemeanor trespass, was minimal.”); Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1091 8 (9th Cir. 2013) (concluding that alleged crime of obstructing a police officer “was far from 9 severe”) (citations omitted); Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) 10 (describing obstruction of a police officer as a “relatively minor crime”). 11 Further, a jury viewing the evidence in Plaintiff’s favor could conclude that the threat 12 posed by Plaintiff—the most important of the Graham factors—was minimal. Roberson, 13 2021 WL 852124, at *8 (citing Smith, 394 F.3d at 702). Although the Individual 14 Defendants contend that they “believed that Plaintiff posed a threat to the safety of the 15 officers, patrons of the Restaurant, and himself,” Mot. Mem. at 18, “a simple statement by 16 an officer that he fears for his safety or the safety of others is not enough; there must be 17 objective factors to justify such a concern,” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th 18 Cir. 2001). Here, the objective factors do not suggest that Plaintiff posed much of a threat 19 to anyone. Both the waitress and the manager at the Restaurant said they saw no weapons 20 on Plaintiff when they called 9-1-1. Sierra 911 Call; 1st Skoor 911 Call. The body worn 21 camera footage shows that Plaintiff was wearing fairly form-fitting shorts and a not overly 22 baggy or long T-shirt that would have made concealing a weapon difficult. See Synced 23 BWC. 24 Further, although Plaintiff did not comply with the Individual Defendants’ requests 25 that he leave the Restaurant, viewing the evidence in the light most favorable to Plaintiff, 26 “[Plaintiff] never became hostile or aggressive towards the[ Individual Defendants], never 27 took a fighting stance, never clenched his fists or made threatening gestures, and he never 28 used profanity.” Lee v. City of San Diego, 492 F. Supp. 3d 1088, 1102 (S.D. Cal. 2020). 1 Although the Individual Defendants contend that Plaintiff engaged in certain behaviors that 2 signaled he might be “assaultive” or “violent”—see, e.g., Defs.’ Soliman Depo. 19:17– 3 21:2; Defs.’ Ferguson Depo. 33:20–34:6, 49:1–22; Defs.’ Chu Depo. 111:15–23, 116:5– 4 10; Defs.’ McManus Depo. 14:21–15:12, 25:17–26:11—viewed in Plaintiff’s favor, the 5 evidence reasonably could be interpreted otherwise. Mr. Skoor, the Restaurant’s manager, 6 said during his deposition that he did not see Plaintiff make any aggressive or violent 7 movements toward anyone, including the Individual Defendants. Pl.’s Lodgment Ex. 12 8 (“Pl.’s Skoor Depo.”) 70:9–16. Soliman wanted Plaintiff to “stand up and just walk out of 9 the restaurant with [him],” Defs.’ Soliman Depo. 14:14–15, yet, when Plaintiff did stand 10 up, Soliman claimed it seemed “assaultive,” id. 19:24–20:1, and said to Plaintiff, “don’t 11 get in my face” and to “sit down,” Soliman BWC. A reasonable juror could find that 12 Plaintiff was simply attempting to comply with the Individual Defendants’ request, 13 however. Defs.’ Soliman Depo. 20:7–17 (agreeing that Plaintiff had to walk toward 14 Soliman to leave the Restaurant). And during his deposition, Plaintiff indicated that he 15 was pulled from his chair rather than standing up of his own accord, Pl.’s Carr Depo. 16 90:15–16, 90:23–91:6, and that he put his arms in front of him when he was upright because 17 he felt that he was falling and wanted to break his fall, “not so much like this, like I’m 18 about to scrap with you,” id. 91:13–22. Finally, the video footage shows no Restaurant 19 patrons in Plaintiff’s general vicinity. See Synced BWC. As a whole and viewing the 20 evidence in Plaintiff’s favor, as the Court must, a jury could conclude that a reasonable 21 officer may have believed Plaintiff was being a nuisance to the Restaurant, but that he did 22 not pose a threat to anyone. 23 Finally, as noted supra, there remains a genuine issue of material fact as to whether 24 and to what degree Plaintiff resisted the Individual Defendants. Plaintiff claims he did not 25 resist at all, but merely tensed up when he was unexpectedly grabbed and tased. Opp’n at 26 7. The Individual Defendants claim that Plaintiff resisted McManus’s attempts to handcuff 27 him, resulting in a physical struggle. Mot. Mem. at 18. Ultimately, the video footage is 28 unclear on this point. “[A]lthough [Plaintiff] appears to resist the officers at certain points 1 during his detention/arrest, disputes exist regarding the extent of [Plaintiff]’s resistance. 2 Under these circumstances, a reasonable jury could find [Plaintiff]’s limited resistance did 3 not justify the amount of force used.” Lee, 492 F. Supp. 3d at 1106; see also Roberson, 4 2021 WL 852124, at *8 (“This de minimis reaction [of reflexively trying to pull arm away 5 when officer attempted to grab it with little warning] does not warrant throwing him against 6 the wall and to the ground in a headlock and pinning him down by the neck.”). 7 Thus, viewing these factors collectively, the Court concludes that the governmental 8 interest in using force against Plaintiff was minimal. And, even though the intrusion on 9 Plaintiff’s rights was not extreme, it was not insignificant; accordingly, weighing the level 10 of force used against the minimal need for force, a reasonable jury could conclude that the 11 Individual Defendants violated Plaintiff’s rights by using unreasonable and excessive 12 force. 13 2. Clearly Established Law 14 Nonetheless, the Individual Defendants claim they are entitled to qualified 15 immunity, so the Court now turns to that issue. 16 As an initial matter, Plaintiff argues that this is an “obvious case” of constitutional 17 misconduct. See Opp’n at 20–21. In an “obvious case” of constitutional misconduct, an 18 officer may still violate clearly established law even though no controlling precedent exists. 19 See Brosseau v. Haughen, 543 U.S. 194, 198–99 (2004) (per curiam). However, the 20 misconduct must be so obvious that every reasonable officer would have known it was 21 unlawful. See al-Kidd, 563 U.S. at 741. The Supreme Court has reiterated that the 22 “obvious case” is rare and that the general standard in Graham is typically insufficient. 23 See id. at 742 (“We have repeatedly told courts . . . not to define clearly established law at 24 a high level of generality.”). 25 Although the Court finds that a reasonable jury could conclude that some or all of 26 the force used against Plaintiff was excessive under the Graham factors, the Court cannot 27 conclude that the alleged use of force was so obviously excessive that every reasonable 28 officer would know it was unlawful per se. Accordingly, Plaintiff’s evidence of force fails 1 to present an obvious case of constitutional misconduct. Because the Court finds that this 2 is not an “obvious case” of constitutional misconduct, the Court next analyzes the relevant 3 existing precedent. 4 Chu tased Plaintiff in drive-stun mode four times over a period of less than thirty 5 seconds. See Taser Log. The Parties dispute whether the last three happened when Plaintiff 6 had already been tackled. Nonetheless, at the time the incident occurred in July 2018, it 7 was clearly established that “use of a taser in drive-stun mode on a person who ‘actively 8 resisted arrest,’ but posed no ‘immediate threat to the safety of the officers or others,’ 9 constituted excessive force.” Bonivert v. City of Clarkston, 883 F.3d 865, 880 (9th Cir. 10 2018) (citing Mattos, 661 F.3d at 445–46); see also Del Valle v. Thorne, 790 F. App’x 868, 11 870 (9th Cir. 2020) (noting that “it was clearly established at the time of Thorne’s actions 12 [i.e., September 2016] that discharging a taser on a non-threatening individual who had not 13 committed a serious crime and had not engaged in aggressive or violent resistance would 14 violate the Fourth Amendment”). The Individual Defendants cite Isayeva, 872 F.3d 938, 15 for the proposition that the law was not clearly established at the relevant time that the use 16 of a taser in drive-stun mode constituted excessive force. MSJ Mem. At 20–21. Isayeva, 17 however, is inapposite. Although decided in 2017, Isayeva analyzed the state of the law 18 as of February 18, 2013. See 872 F.3d at 948–50. Bonivert, decided in February 2018, 19 makes clear that, by the time Plaintiff was tased in July 2018, the state of the law had 20 changed. Accordingly, the Court finds that qualified immunity is not appropriate as to the 21 taser deployments. 22 Plaintiff further claims that he was placed in a headlock and slammed to the ground, 23 then dogpiled by each Individual Defendant, all of whom applied their body weight to him. 24 In Blankenhorn, 485 F.3d at 481, the Ninth Circuit held that “gang-tackling . . . a relatively 25 calm trespass suspect—especially one who . . . was at the moment not actively resisting 26 arrest—was a violation of that person’s Fourth Amendment rights.” Accordingly, viewing 27 the facts in the light most favorable to Plaintiff, it was clearly established in July 2018 that 28 tackling a non-violent and non-resisting trespass suspect was unconstitutional, and the 1 Court thus finds that the Individual Defendants are not entitled to qualified immunity for 2 this use of force. 3 Plaintiff also claims that Soliman kneed him in the head and put downward pressure 4 on his head for one to two minutes while the other officers were dogpiling on him. The 5 Ninth Circuit has stated that “Lolli [v. County of Orange, 351 F.3d 410 (9th Cir. 2003),] 6 should have put a reasonable official on notice that he was prohibited from the type and 7 amount of force used against [the plaintiff], including multiple strikes to the face, repeated 8 tasering, and a knee strike, when [the plaintiff] was at most passively resisting, he posed 9 no threat to the officers, and he was already being physically restrained by several officers.” 10 Atencio v. Arpaio, 674 F. App’x 623, 625–26 (9th Cir. 2016). Accordingly, viewing the 11 evidence in the light most favorable to Plaintiff, the Court finds that qualified immunity is 12 not available here. 13 Finally, although the Individual Defendants claim that the mere use of handcuffs 14 does not rise to the level of excessive force, see MSJ Mem. at 20, the Individual Defendants 15 misstate the relevant issue. Plaintiff does not claim that the simple use of handcuffs 16 constituted excessive force; rather, he alleges that his handcuffs were overly tight, causing 17 him to yell out in pain, that Cadigan subsequently tightened his handcuffs until Plaintiff 18 cried out in pain, and that neither McManus nor Ferguson loosened the handcuffs when 19 Plaintiff begged them to do so. Opp’n at 8–9 (citations omitted). It was clearly established 20 by July 2018 that overly tight handcuffing and refusal to loosen handcuffs after the arrestee 21 complains of pain could be excessive force. See, e.g., Palmer v. Sanderson, 9 F.3d 1433, 22 1436 (9th Cir. 1993). Accordingly, the Court finds that qualified immunity is not called 23 for as to the allegedly overtight handcuffing, either. 24 In light of the foregoing, the Court DENIES the Individual Defendants’ MSJ as to 25 Plaintiff’s second claim. A reasonable jury could find that all the Individual Defendants 26 used unconstitutional force against Plaintiff and that the law was clearly established such 27 that none are entitled to qualified immunity. 28 / / / 1 C. Claim 3: California False Arrest/Imprisonment (All Defendants) 2 Defendants argue that Plaintiff’s third claim must be dismissed because McManus 3 had probable cause to arrest Plaintiff for trespass as well as obstructing or resisting a law 4 enforcement officer. Mot. Mem. at 22. Plaintiff argues that, because probable cause had 5 dissipated, probable cause did not exist at the relevant time and Defendants are liable for 6 false arrest. Opp’n at 23 (citing Salazar v. Upland Police Dep’t, 116 Cal. App. 4th 934, 7 947–48 (Cal. Ct. App. 2004)). 8 To prevail on his claim, Plaintiff must establish “(1) the nonconsensual intentional 9 confinement of a person; (2) without lawful privilege; and (3) for an appreciable period of 10 time, however brief.” Lyons v. Fire Ins. Exchange, 161 Cal. App. 4th 880, 888 (2008). 11 “California law provides an absolute defense where the officer, acting within the scope of 12 his or her authority, either (1) effects a lawful arrest or (2) has reasonable cause to believe 13 the arrest is lawful.” Lee, 492 F. Supp. 3d at 1109 (quoting Cervantes v. United States, 330 14 F.3d 1186, 1188 (9th Cir. 2003)) (internal quotation marks omitted); Orr, 2015 WL 15 848553, at *15 n.10 (“An officer is not liable for false arrest where he ‘had reasonable 16 cause to believe the arrest was lawful.’”) (citing Blankenhorn, 485 F.3d at 469). 17 For the reasons provided supra, disputed issues of fact preclude the Court from 18 concluding that the Individual Defendants had probable cause to arrest Plaintiff or that any 19 probable cause had not dissipated when the Individual Defendants comprehended that 20 Plaintiff was experiencing a medical emergency. Accordingly, the Court DENIES 21 Defendants’ MSJ as to Plaintiff’s third claim. 22 D. Claim 4: Negligence (All Defendants) 23 Defendants argue that the force used on Plaintiff during his arrest was reasonable. 24 Mot. Mem. at 23. They also claim that the Individual Defendants are entitled to immunity 25 under California Government Code § 820.2 for any discretionary decisions. Id. Finally, 26 they note that Plaintiff was given medical assistance outside the Restaurant and 27 subsequently taken to the hospital. Id. 28 / / / 1 Plaintiff responds that a jury could find negligence based on the officers’ 2 unreasonable use of force, and thus issues of material fact preclude summary judgment. 3 Opp’n at 23. Plaintiff claims that the Ninth Circuit has rejected Defendants’ argument 4 concerning California Government Code § 820.2. Id. (citing Blankenhorn, 485 F.3d at 5 487; Robinson v. Solano Cty., 278 F.3d 1007, 1016 (9th Cir. 2002) (en banc)). 6 Having found that a reasonable jury could find that the Individual Defendants 7 violated Plaintiff’s constitutional rights by using excessive force, the Court agrees with 8 Plaintiff that summary judgment is inappropriate here. The Ninth Circuit has noted that “it 9 has long been established that [California Government Code § 820.2] does not apply to 10 officers who use unreasonable force in making an arrest.” Blankenhorn, 485 F.3d at 487 11 (citations omitted). In Blankenhorn, the Ninth Circuit found that the officer defendants 12 were not entitled to summary judgment on state law claims, including negligence, arising 13 from the alleged use of force during the plaintiff’s arrest on the ground that they were 14 immune from liability under section 820.2 where the officers were not entitled to qualified 15 immunity on the plaintiff’s claim for unreasonable use of force. See id. 16 Defendants’ argument that they were not negligent because Plaintiff was given 17 medical assistance outside the Restaurant and taken to the hospital does not alter this 18 conclusion. Plaintiff alleges that the Individual Defendants were negligent in, among other 19 things, failing to properly “assess the need to detain, arrest and use violent force against 20 [Plaintiff].” FAC ¶ 70(a). Because Plaintiff’s allegations as to negligence are at least in 21 part grounded on Defendants’ alleged use of excessive force, a claim for which the Court 22 finds summary judgment inappropriate, the Court likewise finds that Defendants are not 23 entitled to summary judgment on Plaintiff’s negligence claim, where questions of material 24 fact remain as to the appropriateness of Defendants’ actions. See, e.g., Lee, 492 F. Supp. 25 3d at 1109 (“Defendants argue summary judgment is warranted against Lee’s negligence 26 and battery causes of action. Their argument is based on the theory that the force used to 27 detain/arrest Lee was reasonable. Because the Court has found disputed issues of fact 28 preclude a finding that they did not use excessive force, Defendants’ argument regarding 1 the negligence and battery causes of action fail.”); see also Orr, 2015 WL 848553, at *15 2 n.11 (noting that claim for negligence stemming from allegations of excessive force is 3 analyzed under Fourth Amendment’s reasonableness standard) (citations omitted). 4 Accordingly, the Court DENIES Defendants’ MSJ as to Plaintiff’s fourth claim. 5 E. Claim 5: Bane Act (Cal. Civ. Code § 52.1) (All Defendants) 6 Finally, Defendants claim that Plaintiff’s Bane Act claim fails because Plaintiff does 7 not recall any of the Individual Defendants threatening, intimidating, or coercing him in 8 interference with his legal rights. Mot. Mem. at 23–24. Plaintiff counters that the Ninth 9 Circuit and California state courts have rejected the argument that a Bane Act claim 10 requires threats or intimidation beyond the underlying use of excessive force. Opp’n at 24 11 (citations omitted). Further, Defendants’ specific intent to deprive Plaintiff of his 12 constitutional rights can be proven by recklessness, and whether the evidence establishes 13 the Individual Defendants’ recklessness is a disputed issue of fact that precludes summary 14 judgment. Id. 15 “Generally, establishing an excessive force claim under the Fourth Amendment also 16 satisfies the elements of section 52.1.” Orr, 2015 WL 848553, at *14 (citations omitted). 17 Indeed, relying on numerous California court precedents and its own prior decisions, the 18 Ninth Circuit has explicitly stated that, “in excessive force cases, . . . § 52.1 does not require 19 proof of coercion beyond that inherent in the underlying violation.” Rodriguez v. Cty. of 20 Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018). Thus, Defendants’ argument “that Plaintiff 21 is missing the element of intentional interference of his rights by threats, intimidation or 22 coercion” is, quite simply, incorrect. Reply at 10 (emphasis in original). 23 Because, viewing the evidence in the light most favorable to Plaintiff, disputed 24 issues of material fact remain as to whether the Defendants used excessive force in arresting 25 Plaintiff and whether Defendants had the requisite intent to deprive Plaintiff of his rights— 26 the latter issue not having been addressed by Defendants in their MSJ at all—the Court 27 DENIES Defendants’ MSJ as to this claim. See Reese v. Cty. of Sacramento, 888 F.3d 28 1030, 1045 (9th Cir. 2018) (reversing grant of summary judgment in favor of defendant 1 || police officer where, “[a]lthough there was no evidence of coercion independent from [the 2 || officer]’s use of objectively unreasonable force, we cannot conclude from the record that, 3 || taking the evidence in the light most favorable to [the plaintiff], no reasonable jury could 4 that [the officer] had a specific intent to violate [the plaintiff]’s Fourth Amendment 5 rights.”). 6 CONCLUSION 7 In light of the foregoing, the Court GRANTS Plaintiff's Motion to Strike (ECF No. 8 ||60) and GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Summary 9 || Judgment (ECF No. 58). Specifically, the Court GRANTS summary judgment in favor of 10 || the Individual Defendants as to Plaintiffs first claim but otherwise DENIES Defendants’ 11 ||Motion. The Parties SHALL CONFER and SHALL FILE a proposed schedule of 12 || pretrial dates and deadlines within seven (7) days of the date on which this Order is 13 || electronically docketed. 14 IT IS SO ORDERED. 15 Dated: September 17, 2021 tt 16 pen Janis L. Sammartino 7 United States District Judge

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