Escobar-Lopez v. City of Daly City

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE ARMANDO ESCOBAR-LOPEZ, Case No. 20-cv-01781-JD

8 Plaintiff, ORDER RE MOTION TO DISMISS v. 9 Re: Dkt. No. 23 10 CITY OF DALY CITY, et al., Defendants. 11

12 13 Plaintiff Escobar-Lopez, a citizen of El Salvador, was arrested in Daly City by officers of 14 the Daly City Police Department (DCPD) on a federal immigration warrant. He contends that the 15 officers lacked authority under federal and California state law to make the arrest, particularly in 16 light of two recently enacted California statutes aimed at limiting the use of state and local 17 resources for immigration enforcement -- the Values Act, Cal. Gov’t Code § 7284 et seq., and the 18 Transparent Review of Unjust Transfers and Holds (TRUTH) Act, id. § 7283 et seq. In a 63-page 19 complaint, not counting the attachments, he alleges two federal counts under 42 U.S.C. § 1983 20 (Section 1983) on Fourth Amendment and due process grounds, and twelve California state law 21 counts. Escobar-Lopez sued Daly City and the DCPD. He did not name the individual officers as 22 defendants. See Dkt. No. 1. 23 Daly City has moved to dismiss the complaint under Federal Rule of Civil Procedure 24 12(b)(6). Dkt. No. 23. At oral argument, the Court focused on the Section 1983 claims, which are 25 the basis of subject matter jurisdiction for the case, and whether the complaint plausibly alleged 26 municipal liability for the officer’s actions. See Dkt. No. 37 at 3-15 (hearing transcript). It does 27 not, and so the federal claims are dismissed with leave to amend. The Court declines to take up 1 BACKGROUND 2 As alleged in the complaint, Escobar-Lopez arrived in the United States from El Salvador 3 in June 2015 as an unaccompanied minor. Dkt. No. 1 ¶ 40. The Department of Homeland 4 Security (DHS) began removal proceedings against him shortly after he arrived. Id. ¶¶ 41-42. 5 Escobar-Lopez says he did not receive notice of the proceedings and was ordered removed from 6 the United States “in absentia” by an immigration judge in September 2017. Id. ¶¶ 42-43. DHS 7 issued a civil arrest warrant for him. Id. ¶ 44. 8 In May 2019, DCPD Officer Hart stopped Escobar-Lopez while he was driving home with 9 his fiancée and her brother from a baptism ceremony. Id. ¶¶ 46-48. Escobar-Lopez says that he 10 did not “swerve the vehicle or disregard any traffic lights or signs,” and that he did not have any 11 outstanding tickets. Id. ¶ 47. Officer Hart asked Escobar-Lopez for his driver’s license. Id. ¶ 50. 12 Escobar-Lopez does not speak English, and his fiancée, “who speaks limited English,” said that 13 Escobar-Lopez did not have a driver’s license, and offered her identification instead. Id. Officer 14 Hart asked Escobar-Lopez about his immigration status, and Escobar-Lopez showed him an 15 identification card issued to him in El Salvador. Id. ¶ 52. Officer Hart ran a records check and 16 discovered the outstanding immigration warrant. Id. ¶ 53. While these events transpired, a second 17 DCPD officer arrived on the scene. Id. ¶ 56. 18 Officer Hart arrested Escobar-Lopez for the immigration warrant. Id. ¶¶ 57, 59. He called 19 Immigrations and Customs Enforcement (ICE) and provided identifying information about 20 Escobar-Lopez to an ICE agent. Id. ¶¶ 62-64. The agent issued a hold and transfer request. Id. ¶ 21 64. 22 Escobar-Lopez was taken to the DCPD station and transferred to ICE custody. Id. ¶¶ 65, 23 70-71. ICE detained him for approximately three months in the Yuba County Jail facility in 24 Marysville, California. Id. ¶ 76. Escobar-Lopez alleges a number of complaints about the 25 conditions of his custody. See id. ¶¶ 76-81. 26 ICE released Escobar-Lopez from custody in August 2019, in response to what he 27 characterizes as “pressure” from “public outcry and media attention.” Id. ¶ 82. The release was 1 home confinement. See id. ¶¶ 86, 89. After the complaint was filed, the Third Circuit reversed a 2 decision by the Bureau of Immigration Appeals denying Escobar-Lopez’s request to re-open the 3 removal proceedings, and remanded the case for further consideration. See Dkt. No. 38. His case 4 is pending in the immigration court. 5 Most of the claims in the complaint are based on California state law, especially the 6 California TRUTH and Values Acts. See, e.g., Dkt. No. 1 ¶¶ 17-26, 103-08. These statutes went 7 into effect in 2017 and 2018, respectively, and put substantial restrictions on the involvement of 8 state and local agencies in enforcing the federal immigration laws or cooperating with ICE. The 9 Values Act prohibits state and local law enforcement officers from “[i]nquiring into an 10 individual’s immigration status” or “[d]etaining an individual” at the request of immigration 11 authorities. Cal. Gov’t Code § 7284.6(a)(1)(A)-(B). It expressly states that officers may not make 12 or intentionally participate in “arrests based on civil immigration warrants.” Cal. Gov’t Code § 13 7284.6(a)(1)(E). Among other provisions, the TRUTH Act requires local law enforcement 14 agencies to provide a written consent form to detained individuals before an ICE interview, and a 15 copy of any request from ICE to hold or transfer him. Cal. Gov’t Code § 7283.1(a)-(b). The 16 TRUTH Act also imposes public disclosure requirements for agencies that allow ICE access to 17 detainees. See Cal Gov’t Code § 7283.1(c)-(d). 18 The complaint also draws substantially on a written DCPD policy for “Immigration 19 Violations” that was in effect when Escobar-Lopez was arrested in 2019. Dkt. No. 1 ¶¶ 27-37 & 20 Exh. A. The policy is attached to the complaint and incorporated by reference, see Dkt. No. 1 ¶ 21 27, and so the Court takes it into account here, along with the other incorporated exhibits. See 22 Jones v. Progressive Cas. Ins. Co., Case No. 16-cv-06941-JD, 2018 WL 4521919, at *2 (N.D. 23 Cal. Sept. 19, 2018). In pertinent part, the policy stated that DCPD personnel “shall not normally 24 undertake immigration investigations or inquire into the citizenship or immigration status of 25 persons encountered during police contacts and/or operations,” because the mission of law 26 enforcement is undermined “when members of the immigrant community and/or their families and 27 friends lose trust and confidence in their police department because of the perception that its 1 stated that the “immigration status of individuals alone is generally not a matter for police action,” 2 and that “the fact that an individual is suspected of being an undocumented alien shall not be the 3 sole basis for contact, detention, or arrest.” Id. at 1. The policy declared that the DCPD “is not 4 charged with enforcing immigration laws; that responsibility and function lies with the federal 5 government.” Id. at 2. Nevertheless, the policy did not prohibit DCPD officers “from cooperating 6 with federal immigration officials when requested.” Id. at 3. The policy contained a summary of 7 the TRUTH Act, see id., but did not mention the Values Act. The complaint alleges that 8 defendants amended the policy after the public response to Escobar-Lopez’s detention. See Dkt. 9 No. 1 ¶¶ 5-6, 103-04. 10 Daly City moved under Rule 12(b)(6) to dismiss all of the claims in the complaint. Dkt. 11 No. 23. Among other contentions, Daly City says that Officer Hart had authority under federal 12 law to arrest Escobar-Lopez and turn him over to ICE, and that the Values and TRUTH Acts do 13 not provide for a private right of action. It also says that a federal Section 1983 claim was not 14 adequately alleged. 15 DISCUSSION 16 I. LEGAL STANDARDS 17 The standards governing a motion to dismiss under Rule 12(b)(6) are well-established. See 18 McLellan v. Fitbit, Inc., No. 3:16-CV-00036-JD, 2018 WL 2688781, at *1 (N.D. Cal. June 5, 19 2018). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint make “a 20 short and plain statement of the claim showing that the pleader is entitled to relief.” To meet that 21 rule, and survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege “enough facts to state a 22 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 23 This calls for “factual content that allows the court to draw the reasonable inference that the 24 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 25 plausibility analysis is “context-specific” and not only invites but “requires the reviewing court to 26 draw on its judicial experience and common sense.” Id. at 679. 27 II. THE SECTION 1983 CLAIMS 1 There is little doubt that the complaint raises potentially complex questions under 2 California state law about Escobar-Lopez’s arrest. These questions entail some novel legal issues, 3 such as whether the Values and TRUTH Acts permit a private lawsuit. Neither side identified a 4 California state court decision addressing this question, and it appears to be a matter of first 5 impression. 6 But the Court need not dive into the state law waters at this time, because Escobar-Lopez 7 has not plausibly alleged a Section 1983 claim, and consequently a federal question that 8 establishes the Court’s jurisdiction. Local governments and their agencies are “persons” subject to 9 liability under Section 1983, and may be liable only when an official policy or custom causes a 10 constitutional tort. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 & n.54 (1978); Streit v. 11 Cnty. of Los Angeles, 236 F.3d 552, 564 (9th Cir. 2001). To state a claim under Section 1983 12 against municipal defendants, a plaintiff must allege: (1) that he or she was deprived of a 13 constitutional right; “(2) that the municipality had a policy; (3) that this policy amounts to 14 deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving 15 force behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 16 432, 438 (9th Cir. 1997) (internal quotation marks and citation omitted). There must be a “direct 17 causal link between a municipal policy or custom and the alleged constitutional deprivation.” 18 Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (quoting City of 19 Canton v. Harris, 489 U.S. 378, 385 (1989)). 20 Under Section 1983, each defendant, whether a public entity or an individual person, is 21 liable only for its “own misconduct.” Iqbal, 556 U.S. at 677; see also Connick v. Thompson, 563 22 U.S. 51, 60 (2011). Two corollaries follow from this principle. First, a city may not be held 23 vicariously liable for the unconstitutional acts of its employees under the theory of respondeat 24 superior. See Board of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 25 436 U.S. at 691. Second, the fact that individual officers may have a defense to liability, such as 26 qualified immunity, does not prevent the city or county from being held liable. See Fairley v. 27 Luman, 281 F.3d 913, 917 & n.4 (9th Cir. 2002). 1 In addition, a policy or practice requires more than a few occurrences of challenged 2 conduct. A single or even a few isolated and sporadic incidents of unconstitutional conduct are 3 not enough to impose municipal liability under Section 1983. See Gant v. Cnty. of Los Angeles, 4 772 F.3d 608, 618 (9th Cir. 2014) (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 5 (1985)). Liability must be “founded upon practices of sufficient duration, frequency and 6 consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. 7 Gates, 99 F.3d 911, 918 (9th Cir. 1996). 8 These propositions make relatively short work of Escobar-Lopez’s Section 1983 claims. 9 He alleges two constitutional deprivations: an unreasonable seizure under the Fourth Amendment 10 (claim one), and a “due process” violation under the Fourteenth Amendment with respect to 11 “liberty interests” created by the California Values Act (claim three). Dkt. No. 1 at pp. 28, 36. 12 Both claims are based on the single incident of his arrest in 2019. No other similar incidents are 13 mentioned, and there are no other allegations indicating that his arrest was the product of DCPD 14 practices “so persistent and widespread as to practically have the force of law.” Connick, 563 U.S. 15 at 61. To the contrary, the complaint details comments by Daly City and the chief of police that 16 were critical of Escobar-Lopez’s arrest and detention, and recounts several remedial measures 17 defendants implemented in response to the incident. See Dkt. No. 1 ¶¶ 92-99. 18 The DCPD Immigration Violations policy incorporated in the complaint does not fill in the 19 missing factual allegations. On its face, the policy advises officers not to engage in the 20 immigration-related conduct alleged against Officer Hart. It may be that the policy did not 21 adequately advise officers of the provisions of the California Values Act, as Escobar-Lopez 22 contends, see, e.g., Dkt. No. 1 ¶¶ 29-37, but that is of little moment for Section 1983 purposes. 23 “To the extent that the violation of a state law amounts to the deprivation of a state-created interest 24 that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.” 25 Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (internal quotation omitted). 26 Overall, even taking all of the allegations in the complaint in Escobar-Lopez’s favor, he 27 has not “nudged [his] claims . . . across the line from conceivable to plausible.” Iqbal, 566 U.S. at 1 equally conceivable that his arrest was a one-off occurrence by an DCPD officer acting on his 2 volition as it was the product of a municipal practice or policy. That will not do for pleading 3 purposes. See id. at 682 (citing Twombly, 550 U.S. at 567). It may be true, as Escobar-Lopez 4 argues, see Dkt. No. 27 at 6-7, that Officer Hart had no authority to arrest him under the federal 5 immigration laws, and unlawfully prolonged a traffic stop to make the arrest, but the complaint 6 does not tie that single incident to a pattern of conduct sufficiently robust to impose municipal 7 liability. 8 Escobar-Lopez’s effort to cast the Section 1983 claims as a failure to properly train the 9 officers, see Dkt. No. 1 ¶¶ 123-24, 156-57, is unavailing for the same reasons. A “municipality’s 10 culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to 11 train.” Connick, 563 U.S. at 61. To make out a Section 1983 claim, the failure to train must 12 amount to “deliberate indifference to the rights of persons with whom the [untrained employees] 13 come into contact.” Id. (internal quotation omitted; brackets in original). This is a “stringent 14 standard,” and as for other Section 1983 claims, a “pattern of similar constitutional violations by 15 untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes 16 of failure to train.” Id. at 62 (quoting Bryan Cty., 520 U.S. at 409). 17 Here too the absence of any allegations beyond the single incident with Escobar-Lopez 18 vitiates a failure to train claim. Escobar-Lopez tries to avert this conclusion by saying that 19 alleging a pattern is not necessary when the risk of a constitutional violation from inadequate 20 training is a “predictable” outcome. Dkt. No. 27 at 9-10. It is true that “in a narrow range of 21 circumstances,” a pattern of conduct may not be required because “the unconstitutional 22 consequences of failing to train” are “so patently obvious that a city could be liable under § 1983” 23 without such evidence. Connick, 563 U.S. at 63-64 (internal quotation omitted). But the 24 complaint does not allege any facts demonstrating that it falls within this narrow exception. All 25 Escobar-Lopez says is that defendants lacked “a proper policy” with which to train DCPD 26 officers. Dkt. No. 27 at 10. But as discussed, the DCPD Immigration Violations policy contained 27 multiple statements advising officers against the type of actions that Officer Hart is said to have 1 patently obvious risk of depriving a person of a federal constitutional right. Nor does Escobar- 2 Lopez allege any facts plausibly suggesting that the policy was “so facially deficient” that any 3 “reasonable policymaker” would recognize it as an obvious risk. Hyun Ju Park v. City & Cty. of 4 Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020). 5 Consequently, Escobar-Lopez has not plausibly alleged a Section 1983 claim. This is not 6 to say that Officer Hart behaved impeccably under the law, as defendants suggest. An argument 7 can be made that arresting Escobar-Lopez was questionable under the Fourth Amendment because 8 “it is not a crime for a removable alien to remain present in the United States,” and local law 9 enforcement officers cannot detain people or make arrests “based on nothing more than possible 10 removability.” Arizona v. United States, 567 U.S. 387, 407 (2012); see also Melendres v. Arpaio, 11 695 F.3d 990, 1000 (9th Cir. 2012). For this reason, the Supreme Court has held that local law 12 enforcement normally may not make warrantless arrests on immigration grounds without prior 13 federal authorization. Arizona, 567 U.S. at 408-10. This holding has been applied in another 14 circuit to arrests by local police based on civil immigration warrants. See Santos v. Frederick 15 Cnty. Bd. Of Comm’rs, 725, F.3d 451, 457 (4th Cir. 2013). 16 A due process claim seems considerably less viable. State law can create a liberty interest 17 that forms the basis for a federal due process violation in only limited circumstances. See, e.g., 18 Marsh v. Cty. of San Diego, 680 F.3d 1148, 1155-56 (9th Cir. 2012); James v. Rowlands, 606 F.3d 19 646, 656-57 (9th Cir. 2010). The state law must both provide procedural guarantees and protect 20 some independent “substantive end” using “explicitly mandatory language.” James, 606 F.3d at 21 656 (quoting Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir.1995)). In addition, a state law that 22 provides additional procedural protections for a liberty interest already protected by the federal 23 constitution cannot provide the basis for a due process claim under Section 1983. Id. at 657. 24 Because Escobar-Lopez’s freedom from unreasonable searches and seizures by the police is 25 already protected by the Fourth Amendment, many potentially applicable provisions of the Values 26 Act might be characterized as merely additional procedural protections for an existing federal 27 right. Cf. Graham v. Connor, 490 U.S. 386, 394-95 (1989); Galbraith v. Cty. of Santa Clara, 307 1 In any event, the Court does not decide these issues now. They are reserved for future 2 || proceedings as warranted by developments in the case. 3 || I. THE STATE CLAIMS 4 This case was filed on the basis of a federal question under Section 1983, which was the 5 sole ground asserted for subject matter jurisdiction. See Dkt. No. 1 § 12; 28 U.S.C. § 1331. The 6 || Court declines to take up the twelve state claims until a federal claim is plausibly alleged. See 7 Casillas v. MTC Fin., Inc., No. 15-CV-00085-JD, 2015 WL 2120565, at *3 (N.D. Cal. May 5, 8 || 2015). 9 CONCLUSION 10 The complaint is dismissed with leave to amend. Escobar-Lopez may file an amended 11 complaint consistent with this order by April 13, 2021. Failure to file an amended complaint by 12 || that deadline, or a statement electing to stand on the current complaint, will result in dismissal 13 with prejudice under Rule 41(b). IT IS SO ORDERED. 3 15 Dated: March 23, 2021 2 16 JAMES PONATO Z 18 United States District Judge 19 20 21 22 23 24 25 26 27 28