Gonzales v. City Of San Jose

Opinion

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9 GABRIEL GONZALES, Case No. 19-cv-08195-NC 10 Plaintiff, ORDER GRANTING IN PART AND 11 v. DENYING IN PART DEFENDANTS’ 12 MOTION TO DISMISS; CITY OF SAN JOSE and DAVID DISMISSING THE CITY OF SAN 14 Defendants. Re: Dkt. No. 43 15

16 This case arises out of the San Jose Police Department’s arrest of Gabriel Gonzales 17 when Gonzales was on his bicycle, where Officer David Lezama allegedly struck Gonzales 18 with his patrol vehicle head-on as Gonzales biked on the sidewalk. Defendants the City of 19 San Jose and San Jose Police Department Officer David Lezama move to dismiss both 20 claims in plaintiff Gabriel Gonzales’s second amended complaint. Dkt. No. 43. The Court 21 previously granted the defendants’ motion to dismiss the first amended complaint, granting 22 Gonzales leave to amend. Dkt. No. 40. The Court finds that Gonzales sufficiently 23 amended his claim for excessive force but failed to cure the deficiencies identified with his 24 claim for Monell liability against the City. Additionally, the Court finds that Officer 25 Lezama is not entitled to qualified immunity at this stage of the case because Gonzales 26 alleges that Lezama used deadly force despite having virtually no justification for doing so. 27 As such, the motion to dismiss is GRANTED IN PART and DENIED IN PART. The City 1 I. Background 2 A. Procedural History 3 Gonzales filed a complaint alleging a Fourth Amendment violation for the use of 4 excessive force under 42 U.S.C. § 1983 against Officer Lezama and the City of San Jose. 5 Dkt. No. 1. Defendants filed an answer. Dkt. No. 19. Gonzales later amended his 6 complaint, adding three more claims in addition to the § 1983 excessive force claim. Dkt. 7 No. 23. Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6). Dkt. No. 26. The 8 Court held a hearing on the motion and granted the motion to dismiss in full, granting 9 Gonzales leave to amend. Dkt. Nos. 39, 40. 10 Gonzales filed his second amended complaint. Dkt. No. 43. The SAC includes two 11 claims for (1) excessive force under 42 U.S.C. § 1983 against Officer Lezama, and (2) 12 Monell liability for excessive force under 42 U.S.C. § 1983 against the City of San Jose. 13 Defendants moved to dismiss. Dkt. No. 43. 14 All parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. 15 § 636(c). Dkt. Nos. 9, 14. 16 B. Facts Alleged in the Second Amended Complaint 17 Plaintiff Gabriel Gonzales alleges the following facts in the Second Amended 18 Complaint. Dkt. No. 41. The Court assumes these allegations to be true for the purpose of 19 deciding the motion to dismiss. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th 20 Cir. 1996). 21 On December 9, 2019, Gonzales rode his bicycle to the gas station around 10:00 22 p.m. to pick up some Gatorade. SAC ¶ 16. He had an ear bud in his left ear to listen to 23 music but did not use his right ear bud so that he could hear surrounding noises. SAC ¶ 24 20. The ear buds were not visible because he also wore a face shield for biking that 25 covered them. SAC ¶ 21. While he rode in the designated bike lane, San Jose Police 26 Department Officer David Lezama drove ahead of him on the road. SAC ¶ 24. Lezama 27 slowed down, and Gonzales eventually passed Lezama’s patrol vehicle, which was an 1 him to pull over. SAC ¶¶ 26–28. Gonzales did not notice that Lezama was yelling until 2 several seconds later because of his ear bud and face shield. SAC ¶¶ 26–29. Gonzales was 3 alarmed by Lezama’s facial expression and body language, which conveyed a “significant 4 level of anger and hostility.” SAC ¶ 30. Noticing Lezama’s anger and fearful for his 5 safety, Gonzales responded by saying, “Why, I’m not doing anything?” SAC ¶¶ 34–35. 6 Lezama then “screamed at the top of his lungs” at Gonzales, “Because I told you to!” SAC 7 ¶ 36. Gonzales became afraid, and responded, “No.” SAC ¶ 40. Gonzales then stopped, 8 lifted his bicycle onto the sidewalk, and cycled in the opposite direction. SAC ¶¶ 40–41. 9 Lezama “punched the patrol vehicle accelerator and went up to the next light and 10 quickly took a U-turn.” SAC ¶ 43. Lezama “came flying down” the road, shouting 11 through the patrol car speaker “words to the effect of ‘pull over you son of a bitch,’ or ‘I’m 12 going to get you, you son of a bitch.’” SAC ¶ 44. He then flipped another U-turn, wheels 13 spinning and screeching as the patrol car fishtailed, and accelerated toward Gonzales who 14 was still on the sidewalk riding his bicycle. SAC ¶¶ 45–46. Lezama “suddenly yanked the 15 patrol vehicle steering wheel,” steering the SUV over the curb and up onto the sidewalk. 16 SAC ¶¶ 43–48. The patrol vehicle struck Gonzales. SAC ¶ 48. 17 Lezama struck Gonzales with the SUV head-on, slamming the grill and/or pushbar 18 of the vehicle into Gonzales’s bicycle and legs, pitching Gonzales upward and over the 19 bicycle and onto the hood of the vehicle. SAC ¶ 49. Gonzales was thrown completely off 20 his bicycle. SAC ¶ 50. The impact caused Gonzales’s feet to come clear up over his head 21 while his head and torso slammed onto the hood of the SUV. Id. His head bounced off the 22 hood. Id. His hips rose up and over the edge of the SUV. Id. 23 After the impact, Gonzales was injured and leaning in a lop-sided fashion against 24 the front of the patrol car after having slid down off of its hood. SAC ¶ 52. To arrest 25 Gonzales, Lezama threw Gonzales against the hood of the patrol vehicle and placed him in 26 handcuffs. SAC ¶ 54. Moments after, Lezama grabbed the lapels of Gonzales’s jacket 27 and shoved Gonzales onto the ground. SAC ¶ 56. Lezama yelled at Gonzales for failing 1 Gonzales was arrested and taken to Valley Medical Center in a neck brace. SAC ¶ 2 59. The paramedics in the ambulance noted Gonzales’s accelerated heart rate, a result of 3 his tachycardia, and therefore upgraded the urgency level of his care. SAC ¶¶ 60–62. 4 Gonzales suffered severe pain, was diagnosed with whiplash and a concussion, and is 5 being evaluated for a torn anterior cruciate ligament. SAC ¶ 71. He was prescribed 6 crutches and a muscle relaxant narcotic. Id. His knee injury will likely interfere with his 7 love of bicycling and may cause Gonzales to continue to accrue more medical expenses. 8 SAC ¶ 72. 9 II. Legal Standard 10 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 11 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under 12 Federal Rule of Civil Procedure 12(b)(6), a claim will not survive a motion to dismiss if it 13 does not plead sufficient facts to “state a facially plausible claim to relief.” Fed. R. Civ. P. 14 8(a), 12(b)(6). On a motion to dismiss, all allegations of material fact are taken as true and 15 construed in the light most favorable to the plaintiff. Cahill, 80 F.3d at 337–38. The 16 Court, however, need not accept as true “allegations that are merely conclusory, 17 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. 18 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not allege detailed 19 factual allegations, it must contain sufficient factual matter, accepted as true, to “state a 20 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 21 (2007). A claim is facially plausible when it “allows the court to draw the reasonable 22 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 23 U.S. 662, 678 (2009). If a court grants a motion to dismiss, leave to amend should be 24 granted unless the pleading could not possibly be cured by the allegation of other facts. 25 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 26 III. Discussion 27 A. Excessive Force against Officer Lezama 1 Amendment rights under 42 U.S.C § 1983. To state a constitutional violation under 42 2 U.S.C. § 1983, a plaintiff must allege that: (1) the conduct complained of was committed 3 by a person acting under color of state law; and (2) the conduct violated a right secured by 4 the Constitution or laws of the United States. Gomez v. Toledo, 446 U.S. 635, 639 (1980). 5 A claim that a law enforcement officer used excessive force is governed by the 6 “reasonableness standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). This analysis 7 requires “careful attention to the facts and circumstances in each particular case, including 8 the severity of the crime at issue, whether the suspect poses an immediate threat to the 9 safety of the officers or others, and whether he is actively resisting arrest or attempting to 10 evade arrest by flight.” Id. at 396. This question is analyzed from “the perspective of a 11 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. The 12 most important factor is the suspect’s immediate threat to the safety of the officer or 13 others. Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2009). Deadly force is only 14 reasonable when an officer has probable cause to believe that a suspect poses a significant 15 threat of death or serious physical harm, either to the officer or to others. Tennessee v. 16 Garner, 471 U.S. 1, 3 (1985). 17 The Court’s previous order granting the defendants’ motion to dismiss the excessive 18 force claim against Officer Lezama held that Gonzales had not alleged enough facts to 19 plead that a constitutional violation had occurred. Dkt. No. 40 at 6. The first amended 20 complaint was not clear enough about the force used by Officer Lezama. Id. Gonzales 21 alleged new facts in his opposition to the defendants’ previous motion to dismiss, which 22 the Court did not consider at that time. Id. at 3, n.2. 23 The SAC alleges new facts and the Court finds that Gonzales has now sufficiently 24 alleged a violation of his Fourth Amendment rights. Specifically, the SAC now clarifies 25 that Lezama struck Gonzales with the SUV head-on, slamming into Gonzales’s bicycle 26 and legs, throwing Gonzales completely off his bicycle. SAC ¶¶ 49, 50. The FAC did not 27 explain the details of that strike, leaving the Court unsure whether or how the vehicle made 1 “turn[s] on the precise level of force used—i.e. whether Officer Lezama used his vehicle as 2 an ‘impact weapon’ to run Plaintiff down rather than to cause only a minor collision.” 3 Motion at 3. The newly alleged facts are that Officer Lezama used his SUV as an impact 4 weapon to run Gonzales down, rather than causing a “only a minor collision.” Id. This 5 use of the patrol SUV as a weapon constitutes at least intermediate and potentially deadly 6 force. See Saetrum v. Vogt, 673 Fed. App’x 688, 690 (9th Cir. 2016) (“cases from this and 7 other circuits clearly establish that using a car as an impact weapon constituted at least a 8 significant, intermediate level of force”); United States v. Aceves-Rosales, 932 F.2d 1155, 9 1157 (9th Cir. 1987), cert. denied, 484 U.S. 1077 (1988) (“it is undisputed that an 10 automobile can inflict deadly force on a person and that it can be used as a deadly 11 weapon”); see also Ludwig v. Anderson, 54 F.3d 465, 473 (8th Cir. 1996) (“an attempt to 12 hit an individual with a moving squad car is an attempt to apprehend by use of deadly 13 force”). Being hit head-on by a speeding SUV could, of course, easily kill a bicyclist. 14 The Court now applies the Graham factors to the facts alleged in the SAC. The 15 new details provided in the SAC paint a picture of Officer Lezama not apparently 16 suspecting Gonzales of any particular crime or offense1 and responding with potentially 17 deadly force, even though Gonzales posed no immediate threat to the Officer or to any 18 other person.2 These first three Graham factors all tend to suggest that Lezama behaved 19 unreasonably. The most important factor—Gonzales’s threat to Lezama or others—most 20 strongly suggests that Lezama’s use of deadly force was unreasonable. Gonzales, under 21 the facts alleged in the SAC, posed a danger to absolutely no one. He was biking in a 22 designated bike lane and on the sidewalk, late at night, to buy some Gatorade. Even when 23 he turned away from Lezama to bike in the opposite direction, Gonzales posed no danger 24

25 1 The plaintiff’s opposition brief says that Lezama suspected Gonzales of “committing a vehicle code infraction”—specifically, of “not having the requisite red and white reflectors 26 on his bicycle.” Opp. at 4, 9. This fact is not alleged in the SAC so the Court does not consider it here. 27 2 Defendants state in their reply brief that “Plaintiff’s headlong flight on a bicycle through 1 to Lezama or to the public, let alone a “significant threat of death or serious physical 2 harm.” Garner, 471 U.S. at 3. The only factor in Lezama’s favor is that Gonzales refused 3 to pull over and was thereby possibly evading arrest. But the Court finds that the 4 circumstances overall, as alleged in the SAC, do not support the level of force that Lezama 5 used. Lezama had only minimal justification to use any force against Gonzales at all and 6 yet used deadly force against him. The SAC thus sufficiently pleads a constitutional 7 violation. 8 1. Qualified Immunity 9 The “doctrine of qualified immunity protects government officials ‘from liability 10 for civil damages insofar as their conduct does not violate clearly established statutory or 11 constitutional rights of which a reasonable person would have known.’” Pearson v. 12 Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 13 (1982)). The qualified immunity analysis is two-pronged, querying: (1) whether there was 14 a deprivation of a constitutional or statutory right, and (2) whether that constitutional or 15 statutory right was “clearly established” at the time of the incident. See Pearson, 555 U.S. 16 at 232. 17 The Court found above that the SAC plausibly alleges a violation of Gonzales’s 18 Fourth Amendment right to be free from excessive force. Next, the Court asks whether 19 that right was clearly established at the time of the incident. The Court uses Plaintiff’s 20 version of the facts for this analysis at the motion to dismiss stage. In its order on the 21 previous motion to dismiss, the Court found that “[w]hile it is common sense that a patrol 22 vehicle is capable of producing excessive force and inflicting injuries to a bicyclist, it is 23 unclear to the Court whether that happened in this case.” Dkt. No. 40 at 8 (internal 24 quotations omitted). The Court required more facts from the plaintiff to apply to the 25 qualified immunity analysis, which it now has in the SAC. Under Plaintiff’s new facts, a 26 young man riding his bike at night—who committed no apparent offense and posed no 27 apparent danger to anyone around him—was hit head-on by a speeding police SUV, 1 having had difficulty hearing the officers’ instructions through his headphones. 2 Defendants argue that no cases existed at the time of this incident “finding 3 excessive force based on an officer causing a collision with a fleeing bicyclist that is so 4 minor that it results in nothing more than the bicyclist hitting the hood before rebounding 5 and standing unassisted” to have put Officer Lezama on notice as to the constitutionality of 6 his actions. Motion at 7–8. This description of the incident is Defendants’, not Plaintiff’s. 7 Basing the qualified immunity analysis on the defendants’ version of events is not proper 8 at the motion to dismiss stage. O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (at the 9 motion to dismiss stage, “dismissal is not appropriate unless we can determine, based on 10 the complaint itself, that qualified immunity applies”) (emphasis added). The Court must 11 take the facts in the light most favorable to the plaintiff. Krainski v. Nevada ex. rel. Bd of 12 Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 968 (9th Cir. 2010). Plaintiff’s facts 13 describe a harmless bicyclist being intentionally struck head-on by a speeding SUV for no 14 reason except that he did not pull over when instructed, causing multiple injuries including 15 a concussion. In legal terms: deadly force was applied in the absence of any threat of any 16 harm to anyone. 17 The parties argue over the applicability of Saetrum v. Vogt, 673 Fed. App’x 688, 18 690 (9th Cir. 2016) to this case. Saetrum is an unpublished order and therefore does not 19 establish law for qualified immunity purposes. Hines v. Youseff, 914 F.3d 1218, 1230 (9th 20 Cir. 2019). In Saetrum, an officer in a patrol car accelerated, turned toward, and hit the 21 plaintiff, and then executed a hands-on takedown causing a concussion. Saetrum, 673 Fed. 22 App’x at 690. Those facts closely mirror Gonzales’s allegations here. The Ninth Circuit 23 there wrote that “[a]ny reasonable officer would have understood using the patrol car as an 24 impact weapon was unconstitutional under the circumstances,” collecting cases from this 25 Circuit and others establishing that use of an automobile as an impact weapon constitutes 26 at least intermediate and up to deadly force. Id. The Court went on to write that “[o]ur 27 precedent further established that intermediate force required more than a ‘minimal’ 1 not itself create precedent for qualified immunity purposes, its findings—that using an 2 automobile to strike a suspect constitutes intermediate to deadly force, and that such force 3 requires more than a minimal justification—were clearly established at the time of the 4 incident here. The Court also finds that, as in Saetrum, any reasonable officer would have 5 understood that the force used here was unconstitutional under the circumstances as 6 alleged in the SAC. 7 It was clearly established at the time of the incident that vehicles can be used as 8 deadly weapons and that striking someone with a vehicle could inflict deadly force. See 9 Brosseau v. Haugen, 543 U.S. 194, 200 (2004); U.S. v. Aceves-Rosales, 832 F.2d 1155, 10 1157 (9th Cir. 1987), cert. denied, 484 U.S. 1077 (1988) (“it is undisputable that an 11 automobile can inflict deadly force on a person and that it can be used as a deadly 12 weapon”); Acosta v. City and County of San Francisco, 83 F.3d 1143, 1146 n.9 (9th Cir. 13 1996) (abrogated on other grounds as recognized in Monzon v. City of Murrieta, 966 F.3d 14 946, 958 (9th Cir. 2020)) (“[t]here is no question that an automobile can inflict deadly 15 force”) (emphasis in original); Jacquez v. City of San Jose, et al., Case No. 16-cv-05330- 16 NC, 2018 WL 3730324, at *8–9 (finding that an officer using his patrol vehicle to strike a 17 suspect fleeing on foot constituted deadly force).; see also Ludwig v. Anderson, 54 F.3d 18 465, 473 (8th Cir. 1996) (“an attempt to hit an individual with a moving squad car is an 19 attempt to apprehend by use of deadly force”); Donovan v. City of Milwaukee, 17 F.3d 20 944, 949–50 (7th Cir. 1994) (calling a patrol vehicle striking a motorcycle “an application 21 of deadly force”). In Scott v. Harris, the U.S. Supreme Court held that an officer had used 22 deadly force when he rammed into a suspect’s vehicle with his patrol car to stop a high- 23 speed chase. 550 U.S. 372, 382 (2007). It is obvious that the potential force of a patrol car 24 is greater when it strikes a person on a bicycle rather than a person in another vehicle. 25 It was also clearly established at the time of the incident that if an officer has 26 “probable cause to believe that [a suspect] has committed a crime involving the infliction 27 or threatened the infliction of serious physical harm, deadly force may be used if necessary 1 at 11–12. As to suspects who are evading arrest, it was specifically clearly established at 2 the time that “[a]n officer may use deadly force to apprehend a fleeing suspect only if the 3 officer has probable cause to believe that the suspect poses a threat of serious physical 4 harm, either to the officer or to others,” such as if the suspect threatens the officer or others 5 with a weapon. Id. Here, according to the SAC, Lezama had no probable cause to believe 6 that Gonzales had committed any crime, let alone a crime involving threats or infliction of 7 serious harm to anyone. Additionally, Lezama gave no warning before striking Gonzales 8 with the SUV. See Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997) (“[W]henever 9 practicable, a warning must be given before deadly force is employed.”). Moreover, 10 Lezama lacked probable cause to believe that Gonzales would cause serious harm to 11 himself or anyone else; Gonzales was not suspected of having done so in the past, had no 12 weapon, and gave no indication in the moment that he would hurt anyone. Id. 13 As the Court discussed in its previous order on the defendants’ motion to dismiss 14 the FAC, neither side here has presented a case involving a patrol vehicle intentionally 15 striking a fleeing bicyclist. Dkt. No. 40 at 8. Cases where patrol vehicles strike other 16 vehicles or pedestrians, or where officers take down bicyclists using their bodies, each 17 present quite different pictures of force than that allegedly applied here. Id. But “[a]n 18 officer is not entitled to qualified immunity on the grounds that the law is not clearly 19 established every time a novel method is used to inflict injury.” Mendoza v. Block, 27 F.3d 20 1357, 1362 (9th Cir. 1994), as amended (May 31, 1994). And “officials can still be on 21 notice that their conduct violates established law even in novel factual circumstances,” 22 especially in Fourth Amendment cases “where the constitutional standard— 23 reasonableness—is always a fact-specific inquiry.” Hope v. Pelzer, 536, U.S. 730, 741 24 (2002); Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011). Here, the SAC’s 25 allegations are that Gonzales posed no threat to anyone at all and yet Officer Lezama used 26 deadly force to apprehend him. A reasonable officer in Lezama’s position would have 27 known at the time that such action was unconstitutional. As such, Officer Lezama is not 1 B. Monell Liability 2 The Court previously found that Gonzales had failed to plead sufficient facts to 3 || allege that the City of San Jose was liable under Monell v. Dep’t of Soc. Servs. of the City 4 || of N.Y., 436 U.S. 658, 690 (1978). Dkt. No. 40 at 10. The Court described the allegations 5 || of the FAC as “conclusory legal statements rather than specific facts.” Id. In the SAC, 6 || Gonzales has not amended the allegations in support of his Monell claim. Without any 7 || additional facts alleged, the Court comes to the same conclusion as before: the Monell 8 || claim is not sufficiently pleaded and it is clear that further amendment would be futile. 9 IV. Conclusion 10 The Court FINDS that Gonzales has successfully cured the insufficiencies with his 11 || previous pleading as to his claim for excessive force against Officer Lezama, but not as to 12 || his claim for Monell liability against the City of San Jose. The Court further finds that 13 || Officer Lezama is not entitled to qualified immunity at this stage of the case, under C 14 || Gonzales’s alleged facts. As such, the motion to dismiss the excessive force claim against 3 15 |} Lezama is hereby DENIED and the motion to dismiss the excessive force claim against the 16 || City of San Jose is hereby GRANTED. That claim is DISMISSED and the City is hereby 5 17 |} DISMISSED from this case. Lezama must answer the remaining claim within 14 days.

20 21 || Dated: September 9, 2020 hG-e =< = _ » United States Magistrate Judge 23 24 25 26 27 28