Hernandez v. Contra Costa County

• Court: District Court, N.D. California
• Decided: June 10, 2020
• Docket: 3:20-cv-01183
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICARDO HERNANDEZ, Case No. 20-cv-01183-AGT

8 Plaintiff, ORDER DENYING MOTION TO 9 v. DISMISS

10 CONTRA COSTA COUNTY, et al., Re: Dkt. No. 22 Defendants. 11

12 Ricardo Hernandez alleges that during a stolen-vehicle stop, two police officers used 13 excessive force to arrest him, two supervising officers failed to intervene, and Contra Costa 14 County implicitly condoned the incident. The force-using officers answered the complaint, but the 15 supervising officers and the county have moved to dismiss. Their motion is denied. 16 Hernandez maintains that even though he was fully compliant during his arrest (exiting the 17 car with his hands raised and walking backwards towards one of ten officers on the scene) an 18 officer placed him in a carotid hold until he lost consciousness, and then the same officer struck 19 him in the head six times with a flashlight and threatened to shoot him, while another officer hit 20 him with a flashlight multiple times in the shoulder area. See ECF No. 15, FAC ¶¶ 11–23. 21 Hernandez alleges that two supervising officers “were on the scene” at the time, “specifically 22 observed” this use of force, and “did not intervene to prevent or stop” it. Id. ¶¶ 22, 38. 23 At this stage in the case, these factual allegations must be accepted as true and reasonable 24 inferences must be drawn in Hernandez’s favor. See Retail Prop. Tr. v. United Bhd. of Carpenters 25 & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). When that is done, the allegations plausibly 26 support a predicate excessive-force claim against the two officers who assaulted Hernandez and a 27 claim against the supervising officers who failed to intervene. 1 need for [it].” Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007). Here, at a 2 minimum, there was no need for the officers to strike Hernandez with their flashlights—he was 3 unconscious at the time. The officers who did so plausibly violated his Fourth Amendment rights. 4 When a police officer violates a person’s constitutional rights, fellow officers on the scene 5 have a “duty to intercede” if they have a “realistic opportunity” to do so. Cunningham v. Gates, 6 229 F.3d 1271, 1289–90 (9th Cir. 2000) (citation omitted); see, e.g., Lolli v. Cnty. of Orange, 351 7 F.3d 410, 418 (9th Cir. 2003) (reversing summary judgment for a police sergeant who admitted 8 that he “observed [other] deputies struggling” with the plaintiff but “did not become involved or 9 give orders” for them to stop). The supervising officers here had such a duty. They were on the 10 scene after the stolen-vehicle stop and observed other officers striking the unconscious Hernandez. 11 They plausibly could have physically intervened or verbally ordered their subordinates to stop. 12 Ting v. United States, 927 F.2d 1504 (9th Cir. 1991), a decision the defendants rely on, is 13 materially distinguishable. In that case, an officer suddenly drew his gun and fired at a suspect. 14 The incident “transpired in a matter of seconds” and the other officers who were present had no 15 reason to anticipate it. Id. at 1512. The court thus held that these other officers couldn’t be held 16 liable for failing to intervene. Here, in contrast, an officer placed Hernandez in a carotid hold for 17 long enough that he lost consciousness and then two officers hit him more than half a dozen times 18 with their flashlights. It is reasonable to infer that this incident took more than “a matter of 19 seconds;” so even if the supervising officers who witnessed it had no reason to anticipate it, they 20 could have physically or verbally intervened. The § 1983 claim against the supervising officers is 21 pleaded adequately. 22 So, too, is the § 1983 claim against Contra Costa County. Hernandez alleges that this was 23 not the first time the county’s sheriff deputies assaulted an unconscious civilian after using a 24 carotid hold. He maintains that deputies have engaged in this practice “for the last 10 years” and 25 the county “has known” about it. FAC ¶ 50. These allegations support that the county has a 26 “policy of inaction”: the it is aware of repeated constitutional violations and has “fail[ed] to 27 implement procedural safeguards” to prevent them. Jackson v. Barnes, 749 F.3d 755, 763 (9th 1 policies of inaction of this kind. See id. 2 The county insists that the allegations about these similar incidents are too conclusory. 3 What is missing, the county seems to suggest, are specific factual allegations about when these 4 || incidents occurred and what exactly happened. At this stage, that level of detail isn’t required. To 5 || be sure, Hernandez must do more than “simply recite the elements” of his claim against the 6 || county. AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr 7 v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). But he has done more than that: he has alleged that 8 for a decade, the county has known that its deputies are assaulting unconscious individuals after 9 || using carotid holds on them. These are factual allegations and they must be taken as true at the 10 || pleading stage. See Retail Prop., 768 F.3d at 945. 11 A complaint must include allegations sufficient “to give fair notice and to enable the 12 opposing party to defend itself effectively.” AE, 666 F.3d at 637 (citation omitted). Hernandez’s 5 13 complaint satisfies this standard. The motion to dismiss is denied. IT IS SO ORDERED. 3 15 Dated: June 10, 2020 16

Ah 8 ALEX G.TSE _ United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28