Estate of Decedent Lolomania Soakai v. City of Oakland

• Court: District Court, N.D. California
• Decided: November 28, 2023
• Docket: 3:23-cv-00381
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ESTATE OF DECEDENT LOLOMANIA 7 SOAKAI, et al., Case No. 23-cv-00381-SK

8 Plaintiffs, ORDER ON MOTION TO DISMISS 9 v. AND MOTION FOR JUDGMENT ON THE PLEADINGS 10 CITY OF OAKLAND, et al., Regarding Docket Nos. 20, 59, 66 11 Defendants.

12 This matter comes before the Court upon consideration of the motion to dismiss filed by 13 Defendant the City of Oakland (“The City”) and the motion for judgment on the pleadings filed by 14 Defendant Wald Abdelaziz (“Abdelaziz”). Defendant Jimmy Marin-Coronel (“Marin-Coronel”) 15 filed a joinder to Abdelaziz’s motion. The Court will refer to Abdelaziz and Marin-Coronel 16 jointly as the “Individual Defendants” and will refer to all three defendants collectively as 17 “Defendants.” Having carefully considered the parties’ papers, relevant legal authority, and the 18 record in the case, the Court hereby GRANTS the City’s motion to dismiss and GRANTS IN 19 PART and DENIES IN PART Abdelaziz’s motion for the reasons set forth below. The Court FURTHER GRANTS Marin-Coronel’s motion to join Abdelaziz’s motion. (Dkt. No. 66.) 20 BACKGROUND 21 Plaintiffs bring claims under against the Individual Defendants and the City for the injuries 22 they sustained from a “ghost chase.” A “ghost chase” is an officer pursuit of a suspect in cars 23 where “the officers do not activate their sirens and lights or radio in the chase to dispatch because 24 their department prohibits such pursuits due to the risks to the lives of the suspect and innocent 25 bystander[s].” (Dkt. No. 17 (Amended Compl.), ¶ 2.) The Individual Defendants sped after the 26 suspect from a car rally “through highly populated and congested surface streets in Oakland at 27 1 Individual Defendants “caused the suspect to lose control of his vehicle and crash[] into cars and 2 motorcycles parked in front of a busy late night taco truck on . . . a main city” street. The 3 suspect’s car fatally injured Lolomania Soakai (“Decedent”) and seriously injured the other 4 Plaintiffs. (Id., ¶¶ 4-6.) 5 The Individual Defendants observed the chaos and injuries that their actions caused, but 6 they did not stop their car or summon emergency services. (Id., ¶ 7.) Instead, the Individual 7 Defendants “kept their sirens and lights off, their radios dead, and doubled-back to the scene when 8 they heard other police sirens responding. When they returned to the scene, they pretended to 9 have just arrived and were overheard saying that they hoped that the driver had died in the crash.” 10 (Id.) 11 As a result of the Individual Defendants’ failure to provide or summon emergency medical 12 services, which they were required to do by their Police Department, Plaintiffs’ injuries worsened 13 and one person, the Decedent, even died. (Id., ¶ 24.) 14 In 2014, the City’s Police Department “issued a policy that prohibited high-speed vehicle 15 pursuits except for a ‘violent forcible crime’ such as a rape, assault, murder, or robbery.” (Id., ¶ 16 26.) Additionally, the even where a high-speed car chase may be allowed, the officers are 17 required to “weigh ‘the risks to the safety of officers, motorists, bystanders, and the public versus 18 the benefit to public safety.’” (Id.) 19 After the Department issued this policy, a growing trend emerged among the Department’s 20 officers to use “ghost chases” to avoid scrutiny for vehicle pursuits. (Id., at ¶ 27.) Ghost chases 21 became well-known and widespread within the Department. (Id., ¶ 29.) These chases have 22 caused other crashes, injuries and constitutional violations. (Id.) 23 High-ranking supervisors and officials within the Department knew of the practice of 24 “ghost chases” but failed to take action to discipline, quell or abolish the practice. (Id.) The 25 Department’s failure to discipline or quell the practice of ghost chases “proximately caused 26 Defendants Doe Officers to use the practice to chase, purposely cause the suspect to crash, and 27 injure Plaintiffs and Decedent.” (Id.) 1 an intent to harm the suspect and purposely caused him to crash. (Id., ¶¶ 29, 37, 42; see also ¶ 21 2 (Individual Defendants “purposely caused the suspect to lose control of his vehicle and crash into 3 cars and motorcycles parked in front of a busy late night taco truck”); ¶ 35 (alleging Individual 4 Defendants purposely engaged in a high-speed chase “in an effort to make a suspect lose control, 5 severely injure himself and die”).) 6 Based on these allegations, Plaintiffs bring the following claims: (1) 42 U.S.C. § 1983 7 (“Section 1983”) claim based on violation of due process under the fourteenth amendment against 8 the Individual Defendants; (2) Section 1983 claim against the City; and (3) violation of the Bane 9 Act, California Civil Code § 52.1 (“Bane Act”) against all Defendants. 10 ANALYSIS 11 A. Applicable Legal Standard on Motion to Dismiss. 12 A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 13 pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under 14 Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to 15 the non-moving party and takes as true all material allegations in the complaint. Sanders v. 16 Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule 17 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 18 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 19 will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 20 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to 21 relief that is plausible on its face.” Id. at 570. 22 “The plausibility standard is not akin to a probability requirement, but it asks for more than 23 a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that 24 are merely consistent with a defendant’s liability, it stops short of the line between possibility and 25 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 26 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to 27 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g. 1 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 2 As a general rule, “a district court may not consider material beyond the pleadings in ruling 3 on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on 4 other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation 5 omitted). However, documents subject to judicial notice, such as matters of public record, may be 6 considered on a motion to dismiss. See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 7 2011). In doing so, the Court does not convert a motion to dismiss to one for summary judgment. 8 See Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other 9 grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). “The court need 10 not . . . accept as true allegations that contradict matters properly subject to judicial notice . . . .” 11 Sprewell v. Golden State Warriors, 266 F. 3d 979, 988 (9th Cir. 2001). 12 B. Applicable Legal Standard on Motion for Judgment on the Pleadings. 13 A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) 14 challenges the legal sufficiency of the claims asserted in the complaint. A Rule 12(c) motion is 15 “functionally identical” to a motion to dismiss pursuant to Federal Rule of Civil Procedure 16 12(b)(6). Ross v. U.S. Bank Nat’l Ass’n, 542 F. Supp. 2d 1014, 1023 (N.D. Cal 2008). “For 17 purposes of the motion, the allegations of the non-moving party must be accepted as true . . . .” 18 See Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). 19 Although the standards for evaluating a motion to dismiss and a motion for judgment on the 20 pleadings are similar, a motion for judgment on the pleadings “is proper when the moving party 21 clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved 22 and that it is entitled to judgment as a matter of law.” Id. (emphasis added). 23 C. Defendants’ Motions. 24 1. Purpose or Intent to Harm. 25 Both the City and Abdelaziz move on the grounds that Plaintiffs fail to sufficiently allege 26 an intent to harm them as bystanders, which they argue is necessary to Plaintiffs’ Section 1983 27 claim premised on a fourteenth amendment due process violation. 1 unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 2 (1986) (emphasis in original). Instead, to bring a Section 1983 claim for a fourteenth amendment 3 violation during a high-speed chase, Plaintiffs must allege “a purpose to harm unrelated to the 4 legitimate object of arrest” to “satisfy the element of arbitrary conduct shocking to the conscience, 5 necessary for a due process violation.” County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998). 6 This “much higher standard of fault than deliberate indifference” is required because “[a] police 7 officer deciding whether to give chase must balance on one hand the need to stop a suspect and 8 show that flight from the law is no way to freedom, and, on the other, the high-speed threat to all 9 those within stopping range, be they suspects, their passengers, other drivers, or bystanders.” Id. 10 at 852-53. 11 This standard applies not only to suspects being chased by police, but also to innocent 12 bystanders who are injured or killed from the high-speed chase. Osnossian v. Block, 175 F. 3d 13 1169, 1171-72 (9th Cir. 1999) (“As we read [Lewis], if a police officer is justified in giving chase, 14 that justification insulates the officer from constitutional attack, irrespective of who might be 15 harmed or killed as a consequence of the chase.”); see also Bingue v. Prunchak, 512 F.3d 1169, 16 1175-77 (9th Cir. 2008) (holding Lewis “‘intent to harm’ standard applies categorically to 17 Fourteenth Amendment due process claims arising out of all high-speed police chases”). 18 Putting aside for the moment at whom the purpose to harm must be directed (suspects or 19 bystander plaintiffs), the parties do not dispute this legal standard. The City, but not Abdelaziz, 20 concedes that Plaintiffs sufficiently allege an intent to harm the Individual Defendants. Upon 21 review of the Amended Complaint, the Court finds that Plaintiffs sufficiently allege that the 22 Individual Defendants engaged in the high-speed car chase of the suspect without any lights or 23 sirens with the intent to cause the suspect to crash and seriously injure him. (See Dkt. No. 17, ¶¶ 24 21, 29, 35, 37, 42.) In addition, the fact that the Individual Officers left the scene without 25 arresting the suspect after the chase ended raises a strong inference that they did not engage in the 26 high-speed chase for a legitimate law enforcement purpose – to catch and arrest the suspect. 27 Next, both the City and Abdelaziz argue Plaintiffs must allege that the Individual 1 chasing, and that the Amended Complaint fails to do so. However, there is no binding authority 2 stating that the intent to harm must be directed at innocent bystanders. Upon review of the cases 3 analyzing Lewis in which bystanders were injured or killed, the Court finds that, if Plaintiffs allege 4 a purpose to harm anyone unrelated to the legitimate object of arrest, then they have satisfied the 5 element of arbitrary conduct shocking to the conscience for their claim for violation of their 6 Fourteenth Amendment rights. 7 The Court only found a few cases where plaintiffs sufficiently alleged such an intent to 8 harm and in which bystanders were injured. In those cases, it was sufficient for the plaintiffs to 9 allege an intent to harm a suspect, even if innocent bystanders were injured and brought the 10 lawsuit. See, e.g., Johnson v. Baltimore Police Dep’t., 452 F. Supp. 3d 283 (D. Md. 2020); 11 Simmons v. Baltimore City Police Dep’t., 2021 WL 3418840, at *14 (D. Md. Aug. 5, 2021); 12 McGowan v. County of Kern, 2018 WL 2734970 (E.D. Cal. June 7, 2018). 13 In Johnson, the plaintiffs plausibly alleged that the defendants, the officers, were driven by 14 an improper or malicious motive against the suspects when they engaged in a high-speed chase. 15 Johnson, 452 F. Supp. 3d at 301-02. The court specifically rejected the argument that the 16 plaintiffs had to allege an intent to harm the innocent bystanders who were injured. Id. at 302. 17 The court held that “the weight of authority post-Lewis holds that the ‘intent to harm’ standard 18 applies to substantive due process claims arising out of police chases, whether the claim is brought 19 by the target of the chase, or an innocent bystander.” Id. The court noted that in no cases “did a 20 court reject a bystander’s substantive due process claim because the police did not intend to harm 21 them; rather, the claims all failed because of the claimant’s inability to demonstrate that the 22 relevant officer had [an] intent to harm the target of the pursuit.” Id. at 303 (emphasis in original). 23 The court reasoned that “[a]n officer’s actions motivated by an intent to harm a suspect are no less 24 conscience shocking, whether the resulting harm accrues to the intended target (the suspect), or an 25 innocent third party.” Id. 26 In McGowan, the court held that the requisite intent to harm for a claim for violation of the 27 Fourteenth Amendment due process rights could be inferred in the right circumstances, including 1 purpose to harm where officer acted with actual knowledge or virtual certainty that his actions 2 would cause harm). The court in McGowan found it would not be futile for the plaintiffs, who 3 were injured as innocent bystanders, to allege a claim for violation of their Fourteenth Amendment 4 rights based on a dangerous high-speed chase with no legitimate law enforcement objective. Id., 5 2018 WL 2734970, at *7. Notably, the intent to harm would have been directed at the suspect, not 6 the injured bystanders. Id., 2018 WL 2734970, at *9-10 (finding plaintiffs’ allegations sufficiently 7 alleged that the officer acted with a purpose to harm where he “had no ‘legitimate law 8 enforcement objectives’ to engage in the manner he did”) (quoting A.D. v. California Highway 9 Patrol, 712 F.3d 446, 456-57 (9th Cir. 2013)). 10 In Simmons, the court found that the innocent bystander plaintiffs had “adequately alleged 11 the type of conscience-shocking behavior that Lewis requires” because they alleged the officers 12 “were intentionally misusing their vehicles by engaging in a pursuit [of a suspect] that was not 13 necessary in its purpose nor in the manner that it was executed.” Simmons, 2021 WL 3418840, at 14 *14. 15 The Court finds these cases well-reasoned. It is rare that police officers act with an intent 16 to harm suspects. Porter v. Osborn, 546 F.3d 1131, 1141 (9th Cir. 2008) (“Lewis contemplates 17 such rare situations where the nature of an officer’s deliberate physical contact is such that a 18 reasonable factfinder would conclude the officer intended to harm, terrorize or kill.”) (internal 19 quotation marks and citation omitted). It is even more exceedingly rare that police officers would 20 have an intent to harm innocent bystanders who happen to be in the vicinity of the police officers’ 21 actions. In effect, by requiring an intent to harm bystanders, as opposed to showing conduct 22 which shocks the conscious, courts would essentially be prohibiting bystanders from bringing 23 clams for violation of their Fourteenth Amendment rights. Additionally, if a plaintiff can allege, 24 and eventually prove, that an officer acted with an intent to harm anyone, the officer should be 25 liable for the full extent of her or his unconscionable conduct, including hurting an innocent 26 bystander. Johnson, 452 F. Supp. 3d at 303 (“An officer’s actions motivated by an intent to harm 27 a suspect are no less conscience shocking, whether the resulting harm accrues to the intended 1 To support its argument to the contrary that the intent must be directed at the bystanders, 2 the City relies on the following language from Moreland v. Las Vegas Metropolitan Police 3 Department, 159 F.3d 365, 373 (9th Cir. 1998): “Appellants have failed to state a viable 4 substantive due process claim because these matters are not material to the controlling question of 5 whether [the officer] acted with a purpose to harm [the bystander] that was unrelated to his attempt 6 to stop the [suspect] in the parking lot from endangering others.” However, the fact that the Ninth 7 Circuit framed the question in this manner does not mean that in all situations, plaintiffs must 8 show an intent to harm directed at bystanders. In Moreland, notably, it was undisputed that the 9 officers were entitled to use deadly force against the suspect to stop the gunfight occurring in the 10 parking lot. Id. Thus, because the officers were entitled to use deadly force, the only way a 11 bystander could succeed in bringing a claim for violation of her or his Fourteenth Amendment 12 rights would be to show an intent to harm the bystander. The court found that the bystanders 13 could not state a claim “because the officers were responding to the extreme emergency of public 14 gunfire and did not intend to commit any harm unrelated to the legitimate use of force necessary to 15 protect the public and themselves.” Id. 16 Similarly, in Rodriguez v. City of Fresno, 819 F. Supp. 2d 937, 950 (E.D. Cal. 2011), 17 another case on which the City and Abdelaziz rely, the officer had reason to believe that the 18 suspect was armed, dangerous, and a threat to at least one other person at the party. Additionally, 19 the court found that the officers were responding to a “rapidly evolving, fluid, and dangerous 20 predicament.” Id. at 949 (citation omitted). Again, because the officers were entitled to use 21 deadly force against the suspect, the only way a bystander could succeed in bringing a claim 22 would be to show an intent to harm the bystander. However, in Rodriguez, the court found that 23 was no real dispute that the bystander was injured incidentally. Id. at 950. 24 Also, in Claybrook v. Birchwell, 199 F. 3d 350 (6th Cir. 2000), the officers used deadly 25 force against the suspect who was shooting at them and inadvertently hit the bystander with a 26 bullet. See also Childress v. City of Araphaho, 210 F.3d 1154 (10th Cir. 2000) (officers 27 inadvertently shot bystander plaintiffs when using deadly force to stop prison escapees). In these 1 deadly force against the suspects. As noted above, in such circumstances where officers intend to 2 use force against a suspect and are justified by legitimate law enforcement purposes in doing so, 3 the bystander’s only chance of bringing a claim for violation of her or his Fourteenth Amendment 4 right is to show an intent to harm directed at the bystander. 5 In none of the cases upon which the City and Abdelaziz rely, were there any allegations 6 that the officers acted with an intent to harm the suspects unrelated to legitimate law enforcement 7 objectives. See Claybrook, 199 F. 3d 350; Childress, 210 F.3d 1154; Trigalet v. City of Tulsa, 8 Oklahoma, 239 F.3d 1150 (10th Cir. 2001); Rodriguez, 819 F. Supp. 2d 937, Suit v. City of 9 Folsom, 2016 WL 6696060, at *1, 3 (E.D. Cal. Nov. 15, 2016). Under Ninth Circuit authority, 10 where police officers are justified in their conduct, “that justification insulates the officer[s] from 11 constitutional attack, irrespective of who might be harmed or killed as a consequence of the” 12 officers’ conduct. Onossian v. Block, 175 F.3d 1169, 1171 (9th Cir. 1999). In other words, if the 13 plaintiffs did not allege the police officers acted with intent to harm anyone unrelated to legitimate 14 law enforcement objectives, then the bystanders’ claims would necessarily fail. 15 The Court finds that allegations that the Individual Defendants were acting with an intent 16 to harm anyone unrelated to a legitimate law enforcement objective, causing the harm to Plaintiffs, 17 is sufficient to allege a violation of the fourteenth amendment. Because Plaintiffs have done so, 18 the Court DENIES the City’s and Abdelaziz’s motions on this ground. 19 2. Failure to Call for Medical Assistance. 20 Ordinarily, police officers cannot be “held liable under § 1983 for an injury inflicted by a 21 third party.” Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013). However, there 22 are two exceptions to this general rule, and Plaintiffs rely on one of these: the “danger creation” 23 exception. Id. The danger creation exception applies where officers or government “affirmatively 24 placed the [victim] in a position of danger.” Id. (quoting Wood v. Ostrander, 879 F.2d 583, 589- 25 90 (9th Cir.1989)). The relevant question is whether “the affirmative actions of the official 26 created or exposed an individual to a danger which he or she would not have otherwise faced.” 27 Hernandez v. City of San Jose, 897 F.3d 1125, 1135 (9th Cir. 2018) (cleaned up). 1 elements: (1) the Individual Defendants “affirmative actions created or exposed [them] to an 2 actual, particularized danger that [they] would not otherwise have faced”; (2) “the injur[ies they] 3 suffered [were] foreseeable; and (3) “ the officers were deliberately indifferent to the known 4 danger.” Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). The Court finds that 5 Plaintiffs allege all three elements. The Individual Defendants drove dangerously fast, at speeds 6 up to 100 miles per hour, through highly congested streets, with their lights and sirens off, with the 7 alleged intent of causing the suspect to crash. The Individual Defendants’ affirmative actions 8 exposed Plaintiffs to an actual, particularized danger that they would not have otherwise faced. It 9 was certainly foreseeable that, if the suspect hit others when he crashed, others would be injured. 10 Moreover, the Individual Defendants were indifferent to the known danger. They saw the 11 crash they allegedly intended to cause and were aware that innocent bystanders were injured when 12 the suspect crashed into cars and motorcycles parked in front of a busy taco truck on a main city 13 street. (Dkt. No. 17, ¶¶ 21, 23.) The Individual Defendants did not report the crash or call for 14 medical assistance and instead left the scene and did not return until they heard other police sirens 15 responding to the scene. (Id., ¶ 23.) The Individual Defendants pretended to arrive for the first 16 time and were overheard mentioning that they were satisfied that the suspect appeared to be 17 injured and that they hoped that he had died in the crash. (Id.) 18 Abdelaziz tries to characterize the Individual Defendants’ conduct as simply engaging in a 19 legitimate high-speed chase. But even if they had engaged in a legitimate high-speed chase and 20 had arrested the suspect, Abdelaziz points to no cases where officers incidentally caused an 21 accident with no bad intent and did not summon medical assistance for those injured. 22 Finally, Abdelaziz argues that Plaintiffs fail to sufficiently allege that the Individual 23 Defendants’ conduct was directed towards Plaintiffs, as opposed to the suspect. In reliance on 24 Sinclair v. City of Seattle, 61 F.4th 674 (9th Cir. 2023), he argues that the officers’ conduct must 25 be directed specifically at Plaintiffs. However, in Sinclair, the Ninth Circuit merely found that 26 where the accused conduct was directed towards an entire section or zone of the city and affected 27 all who lived or passed through that area equally, the representative of the individual killed in that 1 clarified that while generalized dangers exposing a broad swath of the public, as in Sinclair, 2 cannot support a state-created-danger claim, the danger can be sufficiently particularized “if it is 3 directed towards a group rather than an individual.” See Polanco v. Diaz, 76 F.4th 918, 927 (9th 4 Cir. 2023). In Polanco, the court held that the danger was particularized when the prison officials 5 transferred 122 inmates into the prison without testing them for COVID-19, thereby exposing the 6 prison guards and inmates to the dangers of COVID-19. Id. The prison guards and inmates at the 7 prison were a “discrete and identifiable group.” Id. Therefore, the court held that the family of a 8 prison guard who had been exposed to and died of COVID-19 stated a claim based on a state- 9 created-danger. Id. 10 Plaintiffs here are an even smaller “discrete and identifiable group” who were injured from 11 the crash the Individual Defendants allegedly intentionally caused. Accordingly, the Court 12 DENIES Abdelaziz’s motion to dismiss Plaintiffs’ claim under Section 1983 claim against the 13 Individual Defendants on this ground. 14 3. Qualified Immunity. 15 Abdelaziz argues that he is entitled to qualified immunity on Plaintiffs’ claims for violation 16 of their Fourteenth Amendment rights. However, his arguments are premised on arguments above 17 that the Court rejected – that the intent to harm must be directed at the bystanders and that the 18 Individual Defendants had no obligation to render or procure medical aid because they did not 19 create the danger. The Court finds that, based on the facts alleged by Plaintiffs, the Individual 20 Defendants are not entitled to qualified immunity. See Porter, 546 F.3d at 1140 (“whether Osborn 21 is entitled to qualified immunity . . . turns on whether the Porters can present facts . . . that would 22 justify a jury finding that Osborn acted with an unconstitutional purpose to harm”). Therefore, the 23 Court DENIES Abdelaziz’s motion on this ground. 24 4. Monell Claim Against the City. 25 The City moves to dismiss the Section 1983 claim against it on the grounds that Plaintiffs 26 have insufficiently pled facts to support liability against a municipality under Monell v. New York 27 Dept. of Soc. Serv., 436 U.S. 658 (1978). Municipalities cannot be found liable under Section 1 imposed only for injuries inflicted pursuant to an official governmental policy or custom. See 2 Monell v. N.Y. Dept. of Soc. Serv., 436 U.S. 658, 690-94 (1978). A city can be found liable when 3 the execution of a policy, whether made by its lawmakers or those whose acts can be said to 4 represent official policy or custom of the city, inflicts the injury. Id. at 694. In order to state a 5 Monell claim, a plaintiff must allege facts sufficient to demonstrate: “(1) whether plaintiff’s harm 6 was caused by a constitutional violation; and (2) if so, whether the [municipality] is responsible 7 for that violation.” Collins v. City Harker Heights, 503 U.S. 115, 120 (1992). 8 There are three different theories of municipal liability: (1) official policies or established 9 customs that inflict constitutional injury; (2) acts of omission, such as the failure to train, when the 10 omissions amount to the local government’s own official policy; or (3) if the individual who 11 committed the constitutional tort was an official with final policy-making authority, or an official 12 with final policy-making authority ratified a subordinate’s unconstitutional decision or action and 13 the basis for it. 14 Plaintiffs do not allege or cite to any formal policy. In the absence of a formal 15 governmental policy, a plaintiff must show a “longstanding practice or custom which constitutes 16 the standard operating procedure of the local government entity.” Trevino v. Gates, 99 F.3d 911, 17 918 (9th Cir. 1996). The custom must be so “persistent and widespread” that it constitutes a 18 “permanent and well settled city policy.” Id. A plaintiff cannot prove the existence of a municipal 19 policy or custom based solely on the occurrence of a single incident of unconstitutional action by a 20 non-policymaking employee. Id. (“Liability for improper custom may not be predicated on 21 isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency 22 and consistency that the conduct has become a traditional method of carrying out policy.”); see 23 also Lawman v. City & Cty. of San Francisco, 159 F. Supp. 3d 1130, 1144 (N.D. Cal. 2016). 24 Plaintiffs allege that the City issued a policy prohibiting high-speed chases except for 25 violent crimes in 2014. (Dkt. No. 17, ¶ 26.) Plaintiffs allege that afterward, a “growing trend” 26 emerged among City police officers to use ghost chases to avoid scrutiny for engaging in high- 27 speed chases. (Id., ¶ 27.) Plaintiffs then recite statistics on officer collisions, but do not tie any of 1 well-known and widespread within the Oakland Police Department and that high-ranking 2 supervisors and officials have known about the practice but did not take action to quell or abolish 3 the practice. (Id., ¶ 29.) 4 It is debatable whether Plaintiffs have sufficiently alleged a “longstanding practice or 5 custom which constitutes the standard operating procedure of the local government entity.” 6 Trevino, 99 F.3d at 918. Regardless, Plaintiffs’ Monell claim suffers from another defect. 7 Plaintiffs must allege that the longstanding practice or custom was the “moving force” behind 8 Plaintiffs’ alleged constitutional violation. City of Canton v. Harris, 489 U.S. 378, 388 (1989). 9 The problem Plaintiffs face is that the constitutional violation they allege is that the Individual 10 Defendants chased the suspect with an intent to harm him. It is the intent to harm which shocks 11 the conscience. Although engaging in a high speed chase without lights or sirens is incredibly 12 dangerous, if the Individual Defendants had done so for a legitimate law enforcement purpose 13 without any intent to harm, Plaintiffs would not have alleged a claim for violation of their 14 Fourteenth Amendment rights. Plaintiffs have not alleged any policy or practice that Oakland 15 police officers intend to harm suspects. Therefore, the Court GRANTS the City’s motion to 16 dismiss the Section 1983 claim against it.1 While it does not appear likely that Plaintiffs could 17 plead facts to support such a claim, the Court will provide Plaintiffs with one opportunity to 18 amend their complaint to add facts for their Monell claim. 19 5. Bane Act. 20 Both the City and Abdelaziz move to dismiss Plaintiff’s Bane Act claim. The Bane Act 21 states in relevant part that a person is liable when he or she: 22 [I]nterferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or 23 enjoyment by any United States, or of the rights secured by the Constitution or laws of this state. 24 Cal. Civ. Code § 52.1(b). The Bane Act “does not extend to all ordinary tort actions.” Venegas v. 25 26 1 Plaintiffs argue in opposition to the City’s motion that the City failed to move to dismiss 27 the Monell claim to the extent it is premised on the Individual Defendants’ failure to summon 1 Cty. of Los Angeles, 32 Cal. 4th 820, 843 (2004). It requires a showing of specific intent. Cornell 2 v. City and Cty. of San Francisco, 17 Cal. App. 5th 766, 801 (2017) (a plaintiff must demonstrate 3 “the arresting officer had a specific intent to violate the arrestee’s right to freedom from 4 unreasonable seizure”). The statute “require[s] an attempted or completed act of interference with 5 a legal right, accompanied by a form of coercion.” Jones v. Kmart Corp., 17 Cal. 4th 329, 334 6 (1998). Plaintiffs have not alleged that the Individual Defendants coerced them. Therefore, the 7 Court GRANTS the City’s and Abdelaziz’s motions on the Bane Act claim.2 8 Abdelaziz argues that Plaintiffs should not be given leave to amend because he is immune 9 from state law claims, including the Bane Act, pursuant to California Vehicle Code § 17004. That 10 statute provides: “A public employee is not liable for civil damages on account of personal injury 11 to or death of any person or damage to property resulting from the operation, in the line of duty, of 12 an authorized emergency vehicle while responding to an emergency call or when in the immediate 13 pursuit of an actual or suspected violator of the law . . . .” However, Plaintiffs allege that the 14 Individual Defendants were not operating their car in the line of duty to pursue a suspect to arrest 15 him. Instead, they allege that the Individual Defendants were misusing their patrol car for an 16 improper purpose – trying to harm the suspect. Abdelaziz does not cite to any cases where 17 Vehicle Code § 17004 has been applied to bar claims based on an officer’s intentional misuse of 18 their vehicle. In the absence of such authority, the Court will not preclude Plaintiffs from seeking 19 to allege additional facts to state a claim under the Bane Act. Therefore, the Court will provide 20 Plaintiffs with leave to amend their Bane Act claim. 21 CONCLUSION 22 For the foregoing reasons, the Court GRANTS the City’s motion to dismiss and GRANTS 23 IN PART and DENIES IN PART Abdelaziz’s motion for judgment on the pleadings. Pursuant to 24 these motions, the Court DISMISSES Plaintiffs’ Section 1983 claim against the City and their 25 Bane Act claim against all Defendants. The Court DENIES the motions as to Plaintiffs’ Section 26 1983 claim against the Individual Defendants. 27 1 Plaintiffs have one opportunity to allege additional facts to support their Section 1983 2 || claim against the City and their Bane Act claim. Plaintiffs shall file their amended complaint, if 3 they elect to amend, by no later than December 20, 2023. 4 IT IS SO ORDERED. 5 Dated: November 28, 2023 f i, + 6 SALLIE KIM 7 United States Magistrate Judge 8 9 10 11 12

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