Herrera v. City of Fremont

• Court: District Court, N.D. California
• Decided: November 13, 2019
• Docket: 3:18-cv-02843
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 RUDI HERRERA, Case No. 18-cv-02843-JSC

10 Plaintiff, ORDER RE: DEFENDANTS’ MOTION 11 v. FOR SUMMARY JUDGMENT

12 CITY OF FREMONT, et al., Re: Dkt. No. 51 Defendants. 13

14 15 Rudi Herrera brings this civil rights action against the City of Fremont, Fremont Police 16 Chief Richard Lucero, and several individual officers following his arrest on May 14, 2017. 17 Plaintiff contends that officers violated his First, Fourth, and Fourteenth amendments rights as 18 well as his rights under state law when they entered his home, detained, tased, and arrested him 19 while responding to a domestic disturbance call. Defendants move for summary judgment.1 (Dkt. 20 No. 51.) Having considered the parties’ arguments and having had the benefit of oral argument on 21 November 7, 2019, the Court GRANTS IN PART and DENIES in part Defendants’ motion for 22 summary judgment. Disputes of fact preclude summary judgment on Plaintiff’s excessive force 23 claim against Officers Gerber, Gigliotti, and Francisco. The motion is otherwise granted. 24 SUMMARY JUDGMENT EVIDENCE 25 Rudi Herrera and his long-time domestic partner Melissa (Monique) Santellana hosted a 26 Mother’s Day barbeque at their residence on May 14, 2017. (Dkt. No. 51-13 (Herrera Depo.) at 27 1 112:7-11; 116:6-20; Dkt. No. 62-3 (Santellana Depo.) at 11:1-13:5.) Both Mr. Herrera and Ms. 2 Santellana’s mothers attended as did Ms. Santellana sixteen year-old sister, Ellena, and Mr. 3 Herrera’s brother. (Dkt. No. 51-13 at 116:8-117:15.) Mr. Herrera and Ms. Santellana live with 4 their three minor children who were also present. (Id. at 123:19-20.) Over the course of the 5 afternoon, Ms. Santellana and her mother drank Jägermeister, and Mr. Herrera had a couple of 6 beers while he was barbequing and possibly some Jägermeister. (Id. at 121:9-15; 122-3-24; 7 182:21-22.) At some point in the afternoon, Ms. Santellana and Mr. Herrera got into an argument, 8 which extended to involve Ms. Santellana mother, and Mr. Herrera’s mother. Individual accounts 9 of the dispute vary; however, the parties agree that at some point Ellena called 911. 10 Officers Gerber and Gigliotti were dispatched to the scene. (Dkt. No. 51-18 (Gigliotti 11 Depo.) at 19:7-10; Dkt. No. 51-19 (Gerber Depo.) at 19:9-11.) When the officers arrived at the 12 scene, Officer Gigliotti went to speak with Ellena and her mother who were out front. (Dkt. No. 13 51-18 at 21:25-22:2.) While Officer Gigliotti was speaking with Ellena and her mother, Officer 14 Gerber walked towards the backyard and observed a shed with a broken door. (Dkt. No. 51-19 at 15 25:7-20.) The officers then approached the house, knocked repeatedly, and the door was 16 ultimately opened by a woman who told them that her son and a woman had been fighting. (Id. at 17 29:22-23l 36:1-13; Dkt. No. 51-18 at 30:2-4.) 18 The parties’ versions of events after the officers entered the house differ. The officers 19 detained Mr. Herrera and in the process of handcuffing him Officer Gerber deployed his taser 20 twice. The entire incident took under three minutes and was recorded on a cellphone. (Dkt. No. 21 51-12 at Ex. P; Dkt. No. 62-1 at Ex. L.) However, the cellphone video image is intermittently 22 obscured and does not show the tasing. 23 After the officers handcuffed Mr. Herrera and led him out of the house, he was taken and 24 placed in a squad car. (Dkt. No. 51-18 at 74:4-10.) Upon his removal from the squad car, Mr. 25 Herrera testified that there was a second excessive force incident when Officer Francisco 26 attempted to choke him while he was being transferred out of the handcuffs and into four-point 27 restraints on a gurney. (Dkt. No. No. 62-2 at 166:10-169:6.) Once he was restrained on the 1 18.) The taser prongs were removed at the hospital and Officers Gerber and Gigliotti then 2 transported Mr. Herrera to Santa Rita Jail where he was booked and charged with violation of 3 California Penal Code 243(e)(1) and 148(a)(1). (Id. at 179:4-17, 180:13-14; Dkt. No. 51-18 at 4 75:22-23; Dkt. No. 62-10 at 15.2) The charges were ultimately dismissed. (Dkt. No. 62-2 at ¶ 2.) 5 PROCEDURAL BACKGROUND 6 Plaintiff filed this civil action one year later against the City of Fremont, Fremont Police 7 Chief Richard Lucero, Sergeant Little, Officer Joseph Gigliotti, Officer Robert Gerber, Officer Al 8 Francisco, District Attorney James Meehan, and Alameda County Sheriff’s Office employee D. 9 Skoldqvist. He pleads 11 claims for relief: (1) violation of his First, Fourth, and Fourteenth 10 Amendment rights under 42 U.S.C. § 1983; (2) a Monell Section 1983 and supervisory liability 11 claim; (3) a Devereaux Section 1983 claim; (4) a malicious prosecution Section 1983 claim; (5) 12 violation of the California Constitution, Article I, § 13; (6) violation of California Civil Code § 13 52.1(b); (7) false arrest and false imprisonment; (8) assault and battery; (9) negligence; (10) 14 invasion of privacy; and (11) intentional infliction of emotional distress. (Dkt. No. 1.) Plaintiff 15 subsequently dismissed his claims against D. Skoldqvist and James Meehan. (Dkt. No. 12.) 16 Plaintiff also dismissed his intentional infliction of emotional distress claim and his wage loss and 17 loss of income claims. (Dkt. Nos. 48 & 57.) 18 On September 23, 2019, Defendants filed the underlying motion for summary judgment. 19 (Dkt. No. 51.) The motion is fully briefed and came before the Court for a hearing on November 20 7, 2019.3 Trial is scheduled to commence January 27, 2019. 21 DISCUSSION 22 I. Plaintiff’s Constitutional Claims 23 A. Plaintiff’s Section 1983 Civil Rights Claim – First Claim 24 Plaintiff’s first Section 1983 claim is predicated on a violation of his First, Fourth, and 25 2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 26 ECF-generated page numbers at the top of the documents. 3 Plaintiff filed an objection to Defendants’ reply brief contending that it was untimely filed. (Dkt. 27 Nos. 64 & 67.) However, based on the parties’ stipulation, the reply brief was due on October 14, 1 Fourteenth Amendment Rights. Essentially, Plaintiff alleges that Officers Gerber and Gigliotti 2 unlawfully entered his home, that he was searched and arrested without probable cause, that the 3 officers used excessive force to effectuate his arrest, and that the officers acted in retaliation for 4 exercise of his First Amendment rights. Plaintiff also alleges that Sergeant Little unlawfully 5 entered his home after his arrest. Finally, Plaintiff alleges that Officer Francisco used excessive 6 force when restraining him on the gurney prior to his transport to Washington Hospital for 7 evaluation. 8 1. Plaintiff’s Fourth Amendment - Warrantless Entry Claim 9 It is undisputed that no warrant was obtained prior to the entry of any officer into 10 Plaintiff’s home. Generally, “[a] warrantless entry into a home violates the Fourth Amendment 11 unless an exception to the Fourth Amendment warrant requirement applies, such as emergency, 12 exigency, or consent.” Espinosa v. City & Cty. of S.F., 598 F.3d 528, 533 (9th Cir. 2010). 13 Defendants bear the burden of proving that their warrantless entry falls within an exception to the 14 warrant requirement. See Rodriguez v. City of San Jose, 930 F.3d 1123, 1137 (9th Cir. 2019). 15 Officers Gerber and Gigliotti move for summary judgment on the grounds that their entry was 16 authorized under the emergency exception and Sergeant Little insists that his entry was justified 17 under the emergency exception as well, or alternatively, that there was implied consent for his 18 entry. 19 a) Officers Gerber and Gigliotti’s Entry 20 Under the emergency exception, “if a police officer, while investigating within the scope 21 necessary to respond to an emergency, discovers evidence of illegal activity, that evidence is 22 admissible even if there was not probable cause to believe that such evidence would have been 23 found.” United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (internal citation and 24 quotation marks omitted). The emergency exception to the warrant requirement contains three 25 requirements:

26 (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for 27 the protection of life or property. (2) The search must not be primarily emergency with the area or place to be searched. 1 Id. (internal citation and quotation marks omitted). “The volatility of situations involving 2 domestic violence make them particularly well-suited for an application of the emergency doctrine 3 because [w]hen officers respond to a domestic abuse call, they understand that violence may be 4 lurking and explode with little warning.” Id. at 1164 (internal citation and quotation marks 5 omitted). 6 The following facts are undisputed. Officers Gerber and Gigliotti responded to a 911 call 7 regarding a domestic violence incident. (Dkt. No. 51-18 (Gigliotti Depo.) at 19:7-10; Dkt. No. 51- 8 19 (Gerber Depo.) at 19:9-11.) Dispatch advised the officers that three adult Hispanic females and 9 one adult Hispanic male were fighting and that the reporting party stated that her sister’s boyfriend 10 was “now trying to hit her mom and the [reporting party].” (Dkt. No. 51-21 at 4:15-5:16.) The 11 officers were also advised that the boyfriend had been seen with a gun in the past. (Id. at 5:18-20.) 12 Upon their arrival at the house, Officer Gigliotti spoke with the reporting party, Ellena, who stated 13 that there had been an argument between her sister and Mr. Herrera and Mr. Herrera “was pushing 14 her or pushing people inside the house,” and that her sister was locked in a shed in the backyard 15 “because she wanted to stay away from Rudi.” (Dkt. No. 51-18 at 22:14-23:4.) Ellena’s mother 16 told Officer Gigliotti that she was concerned about the safety of the children in the house. (Dkt. 17 No. 62-5 at 20:10-12.) Officer Gigliotti approached the house and attempted to look through the 18 blinds which were drawn and he could see what looked like people moving around inside. (Dkt. 19 No. 51-18 at 24:3-25.) Officer Gigliotti heard crying and yelling, and Officer Gerber heard a 20 scream.4 (Dkt. No. 51-18 at 25:2-21; Dkt. No. 51-19 at 26:7-10.) The officers then repeatedly 21 knocked on the door, a woman opened the door, and she stated that her son and a woman had been 22 23 4 Plaintiff insists that there is a dispute of fact regarding whether there was screaming and crying 24 coming from the house; however, the only evidence Plaintiff cites to support his argument is the cellphone video which commences immediately before the officers enter the house. When the 25 video starts, Plaintiff can be heard loudly instructing the woman standing at the door “don’t unlock the door. No abres la puerta, ma. No.” A male voice can then be heard asking what is 26 going on, the woman opens the door, tells the officers at the threshold that her son and daughter are fighting, and the officers enter the house. Plaintiff himself did not testify regarding whether 27 there was screaming and crying prior to the officers’ entry. Accordingly, Plaintiff has not 1 fighting. (Dkt. No. 51-18 at 34:8-17; Dkt. No. 51-19 at 36:8-14; Dkt. No. 62-4 (Esperanza Herrera 2 Depo.) at 40:8-24.) 3 These facts are sufficient to establish that the officers were justified in entering the home 4 without a warrant under the emergency exception. First, there were reasonable grounds to believe 5 that an emergency was at hand and that people needed immediate assistance. Second, there is no 6 evidence that the entry into the home was motivated by desire to conduct a search or arrest as 7 opposed to ensure the safety of the reported victim and children that the officers were told were in 8 the residence. Third, given Ellena’s statement that the suspect was inside the house and that he had 9 been seen with a gun the past, her mother’s statement that she was worried for the safety of the 10 children inside the house, Mr. Herrera’s mother’s statement regarding the fight when she opened 11 the door, and that the officers did not know where the alleged victim was, there was probable 12 cause to associate the emergency with the residence.5 Under these circumstances, the officers had 13 an “objectively reasonable basis for believing that an actual or imminent injury was unfolding in 14 the place to be entered.” Bonivert v. City of Clarkston, 883 F.3d 865, 877 (9th Cir. 2018) 15 (emphasis in original); see also Thomas v. Dillard, 818 F.3d 864, 882 (9th Cir. 2016), as amended 16 (May 5, 2016) (discussing that in domestic violence cases, the emergency exception could justify 17 a warrantless entry where the facts suggested the situation was dangerous and uncertain). 18 Plaintiff responds that even if the emergency exception justified the initial entry, the 19 exception does not last indefinitely and the officers unlawfully remained inside the residence. 20 Plaintiff maintains that “[u]pon the officers’ entry, there was no screaming or crying, the officers 21 observed no physical injuries on the individuals inside and Plaintiff was kneeling on the ground 22 with his back towards them” such that it was apparent that there was not a real emergency. (Dkt. 23 No. 62 at 15:27-16:1.) However, audible crying can be heard on the video when the officers 24 entered the house and the officers had not located Ms. Santellana —the alleged victim. While the 25 emergency exception does not last indefinitely, it does last until the officers are able to determine 26 whether there is an emergency. See Thomas, 818 F.3d at 883 (holding that based on conversations 27 1 the officer had with both parties to the alleged domestic violence incident, a reasonable officer 2 could not have believed that an emergency existed such that he was entitled to enter the home 3 without a warrant); see also United States v. Brooks, 367 F.3d 1128, 1137 (9th Cir. 2004) (holding 4 that exigent circumstances continued to justify an officer’s investigation of a domestic violence 5 incident even after victim told the officer she was unharmed because domestic violence victims 6 often deny abuse while the abuser is present such that the officer’s “decision to stay and ask more 7 questions was a reasonable police procedure.”) Plaintiff has not offered any evidence to support 8 his theory that Officers Gerber and Gigliotti continued their investigation inside the residence after 9 his arrest. See Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996) (noting that it is not the court's 10 task “to scour the record in search of a genuine issue of triable fact.”). 11 In light of the undisputed facts, Officers Gerber and Gigliotti have established that the 12 emergency exception justified their warrantless entry. At a minimum, the officers would at least 13 be entitled to qualified immunity given the absence of any clearly established law saying that the 14 emergency exception to a warrantless entry does not apply where: an officer is responding to a 15 domestic violence call with a suspect who has been seen with a gun in the past, the officer is told 16 by the reporting party (who is a minor) that the suspect hit her and her mother, the officer is told 17 by the reporting party’s mother that she is worried for the safety of the children in the house with 18 the suspect, and where the location of the other alleged victim is unknown. Plaintiff’s reliance on 19 Bonivert v. City of Clarkston, 883 F.3d 865, 877 (9th Cir. 2018), is misplaced as there, “there were 20 simply no circumstances pointing to an actual or imminent injury inside the home” because “[b]y 21 the time the officers arrived, both [the victim] and the child were safely outside, surrounded by 22 four other adults intent on protecting them from harm” and the officers had radioed dispatch to say 23 there were no problems and everyone was safe. The undisputed facts here are to the contrary; in 24 particular, Ms. Santellana’s mother told the officers that she was concerned about the safety of the 25 children inside with Plaintiff. No case holds, or even suggests, that officers cannot enter a home 26 under the emergency exception when a domestic violence suspect is inside the home with children 27 and a reporting party states her concern for the children. 1 warrantless entry claim. 2 b) Sergeant Little’s Entry 3 Following Plaintiff’s arrest, Sergeant Little arrived at the scene and entered Plaintiff’s 4 home as part of his post-incident investigation. Plaintiff insists that Sergeant Little’s entry was 5 unlawful because he never consented to Sergeant Little’s entry into his home and any third-party 6 consent was tainted by the officers’ underlying illegal conduct. Sergeant Little counters that his 7 entry was justified because the emergency exception was ongoing, he had implied consent to 8 enter, no one asked him to leave, and he did not conduct any searches inside the house. 9 As noted above, warrantless entries into a home “are presumptively unreasonable.” Payton 10 v. New York, 445 U.S. 573, 587 (1980); see also Bonivert, 883 F.3d at 874 (“there is no talismanic 11 distinction, for Fourth Amendment purposes, between a warrantless entry and a warrantless 12 search. The two intrusions share this fundamental characteristic: the breach of the entrance to an 13 individual’s home.”) (internal citation and quotation marks omitted). In addition to the emergency 14 exception, “[t]he Fourth Amendment recognizes a valid warrantless entry and search of premises 15 when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to 16 share, authority over the area in common with a co-occupant who later objects to the use of 17 evidence so obtained.” Georgia v. Randolph, 547 U.S. 103, 106 (2006). 18 Defendants—as the party moving for summary judgment—bear the burden of offering 19 evidence to negate Plaintiff’s warrantless entry claim. The only evidence regarding Sergeant 20 Little’s presence in the house is his declaration testimony that he arrived at the scene to conduct a 21 use of force/administrative investigation while Officers Gigliotti and Gerber were still conducting 22 their investigation. (Dkt. No. 51-1 at ¶¶ 6-10.) When he arrived, Officers Gigliotti and Gerber 23 gave him a briefing of what had occurred inside the house. (Id. at ¶ 8.) They were still conducting 24 their investigation into the domestic disturbance call and interviewing witnesses. (Id. at ¶ 9.) 25 Sergeant Little attests that “[w]e were still in the process of making sure everyone was safe and 26 nobody needed medical attention.” (Id.) As part of his investigation, Sergeant Little conducted 27 interviews of witnesses inside and outside the home and no one asked him to leave. (Id. at ¶ 11.) 1 not in dispute, are insufficient to meet Defendants’ burden of showing that either the emergency or 2 consent exceptions apply to justify Sergeant Little’s warrantless entry. 3 However, even assuming that Sergeant Little violated Plaintiff’s constitutional rights 4 through his entry, he is entitled to qualified immunity. “In determining whether an officer is 5 entitled to qualified immunity, we consider (1) whether there has been a violation of a 6 constitutional right; and (2) whether that right was clearly established at the time of the officer’s 7 alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). Here, the Court has 8 concluded that Sergeant Little has not shown as a matter of law that he did not violate Plaintiff’s 9 constitutional rights through his warrantless entry into the home; thus, the dispositive question is 10 whether that right was clearly established. 11 “[C]learly established law [is not to be defined] at a high level of generality.” Ashcroft v. 12 al-Kidd, 563 U.S. 731, 742 (2011). Instead, in deciding whether a constitutional right was clearly 13 established at the time of the alleged violation, a court must ask “whether the violative nature of 14 particular conduct is clearly established.” Id. (emphasis added). “The plaintiff bears the burden to 15 show that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 16 632 F.3d 1091, 1109 (9th Cir. 2011). “This inquiry, it is vital to note, must be undertaken in light 17 of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 18 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). 19 “Although this Court’s caselaw does not require a case directly on point for a right to be clearly 20 established, existing precedent must have placed the statutory or constitutional question beyond 21 debate.” Kisela v. Hughes, ––– U.S. ––––, 138 S.Ct. 1148, 1152 (2018). Qualified “immunity 22 protects all but the plainly incompetent or those who knowingly violate the law.” Id 23 Plaintiff has pointed to no case—other than Bonivert—as establishing that the law was 24 clearly established that the emergency exception does not cover a supervisor’s entry into a home 25 as part of an ongoing investigation into a domestic violence situation involving his subordinate 26 officers who are still in the process of interviewing witnesses and victims and securing the scene. 27 Bonivert, however, is distinguishable for the reasons stated above—while Sergeant Little arrived 1 everyone was safe and nobody needed medical attention and thus the emergency was still arguably 2 ongoing. Sergeant Little is entitled to qualified immunity unless “in the light of pre-existing law 3 the unlawfulness [of his entry] must be apparent.” White v. Pauly, 137 S. Ct. 548, 552 (2017). 4 Plaintiff has pointed to no law which makes it apparent that Sergeant Little’s entry was unlawful 5 under the “particularized” facts here. Id. 6 Accordingly, Sergeant Little is entitled to summary judgment on the unlawful entry claim. 7 2. Plaintiff’s Fourth Amendment – Unlawful Detention Claim 8 Plaintiff’s unlawful detention or seizure claim is two-fold: first, that Officers Gigliotti and 9 Gerber lacked probable cause to search him for weapons, and second, that they lacked probable 10 cause to arrest him. The first argument is easily disposed of—the same undisputed facts which 11 justify the officers’ warrantless entry into Plaintiff’s home constitute probable cause to search his 12 person for a weapon; namely, that officers were responding to a report of a domestic disturbance, 13 it had been reported that Plaintiff pushed and grabbed people, that he had been seen with a gun in 14 the past, the officers were told that Plaintiff had hit the reporting party and her mother, the mother 15 reported that she was afraid for the safety of the children in the house, the woman who opened the 16 door said that her son had been fighting with a woman, and when the officers entered the house 17 several women and children were present along with the suspect. 18 With respect to probable cause for arrest, the standard is somewhat different. “A claim for 19 unlawful arrest is cognizable under [42 U.S.C.] § 1983 as a violation of the Fourth Amendment, 20 provided the arrest was without probable cause or other justification.” Dubner v. City and Cnty of 21 San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause exists when, under the totality 22 of the circumstances known to the arresting officers (or within the knowledge of the other officers 23 at the scene), a prudent person would believe the suspect had committed a crime.” Id. at 966. In 24 the context of an unlawful arrest, “the two prongs of the qualified immunity analysis can be 25 summarized as: (1) whether there was probable cause for the arrest; and (2) whether it is 26 reasonably arguable that there was probable cause for arrest–that is, whether reasonable officers 27 could disagree as to the legality of the arrest such that the arresting officer is entitled to qualified 1 Officers Gigliotti and Gerber insist that they had probable cause to arrest Plaintiff for a 2 violation of California Penal Code Sections 148 (resisting arrest) and 243 (battery) because of “his 3 admitted movement away from the officers and his physical resistance to handcuffing.6” In their 4 reply brief, Defendants also insists that Ellena and her mother’s statements to the 911 dispatcher 5 and the officers on scene established probable cause to arrest Plaintiff for a violation of Penal 6 Code 243(e)(1) (battery on a spouse or domestic partner). 7 Plaintiff contends without explanation that probable cause for the battery could only have 8 been established—if at all—after Plaintiff’s arrest. Plaintiff also maintains that a reasonable juror 9 could find that the officers manufactured probable cause to arrest Plaintiff because Officer 10 Gigliotti who was “unprovoked[] forcibly grabbed Plaintiff’s arms from above his head in an 11 attempt to separate them and bring them down behind his back.” (Dkt. No. 62 at 18:21-22.) 12 Plaintiff insists that “[i]t is undisputed that Plaintiff was voluntarily submissive and compliant” 13 and that “[v]ideo evidence supports this conclusion.” (Id. at 18:23-24.) 14 The Court need not address whether there was probable cause to arrest Plaintiff for 15 resisting arrest because there is no dispute of material fact as to whether there was probable cause 16 to arrest Plaintiff for battery on a spouse or domestic partner under Section 243(e)(1). See 17 CALJIC No. 16.140.1 (setting forth the elements of a violation of section 243(e)(1): “1. A person 18 used force or violence upon (name of alleged victim); 2. The use was willful [and unlawful]; and 19 3. At the time of the use of force or violence, (name of alleged victim) was [[his] [her] (required 20 relationship)] [an individual with whom the defendant currently has, or has previously had, a 21 dating or engagement relationship]”.). It is undisputed that the officers had been advised that a 22 fight occurred at Plaintiff’s residence, Plaintiff had grabbed his girlfriend during the fight, the 23 reporting party (a minor) advised the officers Plaintiff had hit her and her mother, the woman who 24 opened the door told the officers her son and another woman had been fighting, and Plaintiff 25 matched the description of the responsible party. 26 6 Defendants’ motion for summary judgment and Plaintiff’s opposition refer to Penal Code 27 Section 273 (paying or receiving a thing of value for the placement or consent to adoption of a 1 “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where 2 there is probable cause to believe that a criminal offense has been or is being committed. Whether 3 probable cause exists depends upon the reasonable conclusion to be drawn from the facts known 4 to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004) 5 (internal citation omitted). This is an objective, rather than subjective standard. Id. The officers 6 here had an objectively reasonable basis for arresting Plaintiff for a violation of Penal Code § 7 243(e)(1) based on the totality of the circumstances known to them at the time of his arrest. 8 Accordingly, Defendants’ motion for summary judgment on the unlawful detention and 9 arrest claim is granted. 10 3. Plaintiff’s Fourth Amendment – Excessive Force Claim 11 Whether a defendant’s use of force was “reasonable” under the Fourth Amendment 12 requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth 13 Amendment interests against the countervailing government interests at stake. Graham v. Connor, 14 490 U.S. 386, 395 (1989). Thus, the question is “whether the officers’ actions [were] ‘objectively 15 reasonable’ in light of the facts and circumstances confronting them, without regard to their 16 underlying intent or motivation.” Id. at 397. In making that determination, courts consider “the 17 relationship between the need for the use of force and the amount of force used; the extent of the 18 plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the 19 severity of the security problem at issue; the threat reasonably perceived by the officer; and 20 whether the plaintiff was actively resisting.” Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 21 2466, 2472 (2015) (citing Graham, 490 U.S. at 296). These factors are not exclusive; instead, 22 courts should consider all of the circumstances it deems relevant. See Bryan v. MacPherson, 630 23 F.3d 805, 826 (9th Cir. 2010). 24 “The reasonableness of a particular use of force must be judged from the perspective of a 25 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. 26 at 396. This determination is normally a question for the jury because it requires “resolution of 27 disputed questions of fact and determinations of credibility, as well as on the drawing of 1 typically boil down to an evaluation of the various accounts of the same events. Thus, the 2 circumstances surrounding those events may be critical to a jury’s determination of where the truth 3 lie.”). Summary judgment may be appropriate, however, when the facts concerning an incident 4 are largely undisputed. See Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (“[D]efendants can 5 still win on summary judgment if the district court concludes, after resolving all factual disputes in 6 favor of the plaintiff, that the officer’s use of force was objectively reasonable under the 7 circumstances.”). 8 Plaintiff’s excessive force claim is based on two separate uses of force: (1) Officers Gerber 9 and Gigliotti’s use of force to handcuff him, and (2) Officer Francisco’s use of force while 10 Plaintiff was being restrained on the gurney following his arrest. Disputes of fact preclude 11 summary judgment based on either use of force. 12 a) Officers Gerber and Gigliotti’s use of force 13 Officers Gerber and Gigliotti’s version of events after they entered the house is consistent. 14 Both officers observed three to four people in the room including at least one child. (Dkt. No. 51- 15 18 at 30:5-7; Dkt. No. 51-19 at 36:15-18.) One of the individuals was a man who matched the 16 description given to the officers by dispatch. (Dkt. No. 51-19 at 36:24-37:1.) He was kneeling in 17 front of a young child with his back to the officers. (Id. at 37:3-4; Dkt. No. 51-18 at 34:18-23.) 18 The child was crying. (Dkt. No. 51-18 at 34:22.) The man—later identified as Mr. Herrera—was 19 handing the child a cellphone and telling him to record everything. (Id. at 34:23-25.) Officer 20 Gigliotti was concerned about the safety of the kids and of Melissa, because he did not know if 21 Mr. Herrera had a gun, his back was toward him, and he could have had a gun hidden on his 22 person or in the residence. (Id. at 35:24-36:4.) As the officers entered the room, Mr. Herrera 23 stood up and Officer Gerber heard Mr. Herrera say “I didn’t give you permission” in a loud and 24 aggressive manner. (Dkt. No. 51-19 at 38:3-13.) Officer Gerber stated that they needed to check 25 on the welfare of everyone inside. (Id. at 47:8-13.) Mr. Herrera turned his back to the officers and 26 put his hands behind his head locking his fingers which Officer Gigliotti understood to mean that 27 Mr. Herrera was giving him consent to conduct a pat search for weapons. (Dkt. No. 51-18 at 1 let [Officer Gigliotti] perform [his] pat-down search.” (Id. at 40:23-34.) Instead, Mr. Herrera 2 tensed up and pulled his hands a part. (Id. at 42:12-15.) As a result, Officer Gigliotti attempted to 3 grab his arms to try to bring them down to handcuff him, but Mr. Herrera physically resisted his 4 efforts. (Id. at 42:17-23.) Officer Gerber, who was covering Officer Gigliotti as he attempted to 5 conduct the pat down, testified that at that point “hands got ripped, fists got clenched, and he 6 became aggressive.” (Dkt. No. 51-19 at 50:11-12.) 7 Each officer then moved to take control of one of Mr. Herrera’s arms because they needed 8 to detain him until they could determine if there were any weapons and investigate the domestic 9 violence report. (Id. at 52:12-53:5; 57:9-12.) In doing so, the officers got Mr. Herrera against the 10 wall and tried to get his hands behind his back to handcuff him, but Mr. Herrera was tense, pulling 11 his arms away, and growling. (Dkt. No. 51-18 at 47:15-24.) The officers told Mr. Herrera to calm 12 down and relax. (Id. at 47:18.) Because Mr. Herrera was actively resisting, Officer Gerber 13 removed his taser from its holster. (Dkt. No. 51-19 at 57:16-22.) Officer Gerber warned Mr. 14 Herrera several times that if he did not calm down he would use the taser. (Id. at 60:24-25.) 15 Officer Gigliotti then spun Mr. Herrera off the wall and onto the couch, but he was still struggling 16 with them and would not let them handcuffs him. (Dkt. No. 51-18 at 48:17-23.) According to 17 Officer Gigliotti, it felt like Mr. Herrera was “trying to get free so he could fight us.” (Id. at 18 49:13-14.) Officer Gerber felt that Officer Gigliotti was in a vulnerable position struggling with 19 Mr. Herrera on the couch. (Dkt. No. 51-19 at 62:8-16.) Officer Gerber deployed his taser 20 because they needed to “safely detain him in handcuffs because he had been fighting with us.” 21 (Id. at 66:7-14.) The situation was “unbelievably chaotic” there were people in the room 22 “screaming and yelling.” (Id. at 66:16-18.) The taser was deployed in probe mode and appeared 23 to have a “good effect” because Mr. Herrera stopped moving and Officer Gigliotti was able to get 24 a better hold on Mr. Herrera’s right arm and hand. (Id. at 72:3-16.) Although Mr. Herrera was 25 holding his hands together, the officers were unable to handcuff him because he was pushing his 26 hands against his body and squeezing his arms such that the officers could not handcuff him. 27 (Dkt. No. 51-18 at 53:22-54:19.) Because Mr. Herrera continued to resist, Officer Gerber gave 1 warning. (Dkt. No. 51-19 at 74:1-13.) The officers were ultimately able to handcuff Mr. Herrera, 2 but he was still being violent and pushing back on Officer Gigliotti so he stuck Mr. Herrera the 3 upper back area to subdue him. (Dkt. No. 51-18 at 52:18-21.) The officers then led Mr. Herrera 4 out of the house. 5 According to Mr. Herrera, after the argument in the backyard, Melissa went to the shed and 6 he went into the house with his mom and the kids. (Dkt. No. 51-13 at 135:16-20.) He was aware 7 that the police were called because he saw flashing lights although he did not know why they were 8 there. (Id. at 135:8-12.) At some point, he closed the door “barricading myself for my safety and 9 the safety of my children.” (Id. at 139:4-13; 143:7-13.) He recalls the police yelling instructions 10 and banging on the door. (Id. at 142:17-25.) His mother opened the door. (Id. at 146:10-17.) 11 The officers then “rushed in house,” “immediately saw [him] and came straight towards [him],” 12 and he put his hands over his head. (Dkt. No. 62-2 at 147:19-148:1; 150:17.) He allowed the 13 officer to complete his pat down search, but then the officer “escalated things so I don’t know 14 what happened from there.” (Id. at 153:24-154:24.) He remembers one of the officers moving his 15 hands away from his head to behind his back and in response Mr. Herrera “moved away.” (Id. at 16 155:1-13.) The officers then threw Mr. Herrera to the ground, started beating him up, choking 17 him, and tasing him in front of his kids. (Id. at 155:20-25.) He cannot remember the specifics he 18 “just remember[s] them throwing me all over the house, you know, just having my –putting me 19 against the wall like you said and I just remember getting thrown around like a rag doll.” (Id. at 20 156:18-21.) 21 *** 22 The following disputes of fact preclude summary judgment: (1) whether the officers were 23 able to complete their pat down search for weapons; (2) whether Plaintiff was compliant with the 24 officers’ instructions; (3) whether Plaintiff resisted or fought with the officers as they tried to 25 handcuff him; and (4) the extent of the warning before Plaintiff was tased. The cellphone video of 26 the incident does not preclude a finding of a dispute of material fact. First, the video is obscured 27 for much of the incident, including the part immediately before and during both taser 1 allowed the officers to complete their pat down search, that he was compliant, and that the officers 2 threw him on the ground, choked him, beat him up, and tased him. Based on these facts, the Court 3 cannot find that the force the officers used was reasonable as a matter of law. Second, “[t]he mere 4 existence of video footage of the incident does not foreclose a genuine factual dispute as to the 5 reasonable inferences that can be drawn from that footage.” Vos v. City of Newport Beach, 892 6 F.3d 1024, 1028 (9th Cir. 2018), cert. denied sub nom. City of Newport Beach, Cal. v. Vos, 139 S. 7 Ct. 2613 (2019). Here, reasonable jurors could draw different inferences from the officers and Mr. 8 Herrera’s conduct during the incident. Summary judgment on the excessive force claim as to 9 Officers Gerber and Gigliotti is therefore improper. 10 b) Officers Gerber and Gigliotti’s Claim of Qualified Immunity 11 These disputes of fact also preclude the Court from finding that the officers are entitled to 12 qualified immunity. “In determining whether an officer is entitled to qualified immunity, we 13 consider (1) whether there has been a violation of a constitutional right; and (2) whether that right 14 was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 15 1112, 1116 (9th Cir. 2014). The Court must accept Plaintiff’s version of facts as true which would 16 support a finding that his Fourth Amendment right to be free from excessive force was violated. 17 The Court thus turns to the question of whether that right was clearly established at the time of the 18 incident. 19 As previously noted, “clearly established law [is not to be defined] at a high level of 20 generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). “Although this Court’s caselaw does 21 not require a case directly on point for a right to be clearly established, existing precedent must 22 have placed the statutory or constitutional question beyond debate.” Kisela v. Hughes, ––– U.S. –– 23 ––, 138 S.Ct. 1148, 1152 (2018). Qualified “immunity protects all but the plainly incompetent or 24 those who knowingly violate the law.” Id. 25 At the time of this incident, the Ninth Circuit’s most recent guidance on the use of a taser 26 was Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), wherein an officer responded to a report of 27 domestic violence at a college campus. Id. at 872. The officer there used his taser on a domestic 1 going to flee, and his resistance was mostly passive.” Id. at 890. The Ninth Circuit found that the 2 use of a taser in dart mode under these circumstances was unreasonable, but granted qualified 3 immunity because under the law at the time of the incident “it would not have been apparent to an 4 officer in Dillard’s shoes that using a taser on a domestic violence suspect refusing to allow a 5 frisk—whom the officer reasonably but mistakenly believed could be frisked—constituted 6 excessive force.” Id. at 891. This incident post-dates Thomas and a reasonable officer would have 7 been on notice that using a taser under the facts as alleged by Plaintiff—on a suspect who 8 consented to search, did not actively resist the officers, and did not attempt to flee—was 9 unreasonable. Accordingly, the Court likewise denies summary judgment on Officers Gerber and 10 Gigliotti’s claim of qualified immunity. 11 c) Officer Francisco’s Use of Force 12 Plaintiff also contends that Officer Francisco used excessive force when he choked him 13 while Plaintiff was on the gurney before he was transported to the hospital. As with the other 14 excessive force incident, the parties’ version of events sharply diverge. 15 According to Officer Francisco, he was assisting the medical personal transferring Mr. 16 Herrera from the squad car to the gurney to be taken to the hospital for an evaluation. (Dkt. No. 17 51-2 (Francisco Decl.) at ¶ 9.) However, Mr. Herrera was “still thrashing around and resisting” 18 and they had to take his handcuffs off to get him on the gurney. (Id.) To try to subdue Mr. 19 Herrera, Officer Francisco used a “simple pain compliance or pressure point technique” where he 20 “placed [his] right hand underneath [Mr. Herrera’s] jaw with [his] fingers applying pressure to the 21 hypoglossal nerve to control his upper body so that [they] could get his hands into the restraints on 22 the gurney.” (Id. at ¶ 10.) According to Mr. Herrera, however, “Officer Francisco [was] choking 23 me, really tight, has a tight squeeze around my neck” as someone said “stop it or I’m going to 24 break your neck.” (Dkt. No. 62-2 at 168:11-169:12.) 25 Because there is a factual dispute, the Court must accept Plaintiff’s version of events as 26 true: that Officer Francisco attempted to choke him while he was in restraints on the gurney. The 27 Court cannot hold that Officer Francisco’s use of such force was reasonable as a matter of law or 1 Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003) (“The 2 officers—indeed, any reasonable person—should have known that squeezing the breath from a 3 compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force 4 that is greater than reasonable.”) 5 Officer Francisco’s motion for summary judgment on Plaintiff’s excessive force claim is 6 therefore denied. 7 4. Plaintiff’s First Amendment Retaliation Claim 8 To state a First Amendment retaliation claim, a plaintiff must show “that (1) he was 9 engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a person of 10 ordinary firmness from continuing to engage in the protected activity and (3) the protected activity 11 was a substantial or motivating factor in the defendant’s conduct.” O’Brien v. Welty, 818 F.3d 12 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 13 2006)). To ultimately “prevail on such a claim, a plaintiff must establish a ‘causal connection’ 14 between the government defendant’s ‘retaliatory animus’ and the plaintiff’s ‘subsequent injury.’” 15 Nieves v. Bartlett, ––– U.S. ––––, 139 S. Ct. 1715, 1722 (2019) (quoting Hartman v. Moore, 547 16 U.S. 250, 259 (2006)). In particular, a plaintiff must show that the defendant’s retaliatory animus 17 was “a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have been 18 taken absent the retaliatory motive.” Id. (quoting Hartman, 547 U.S. at 260). 19 Plaintiff contends that he engaged in two constitutionally protected activities: (1) slamming 20 the front door when the officers arrived at his residence, and (2) instructing his younger brother to 21 record the incident. (Dkt. No. 62 at 21:1-4.) Even if the Court were to accept Plaintiff’s 22 unsupported contention that these activities constitute protected speech, Plaintiff has failed to 23 demonstrate a nexus or causal connection between the protected activity and the officers’ actions. 24 Nor can he in light of the Court’s conclusion that probable cause supported Plaintiff’s arrest. See 25 Nieves, 139 S. Ct. at 1724 (“plaintiff pressing a retaliatory arrest claim must plead and prove the 26 absence of probable cause for the arrest.). Plaintiff’s oral argument suggestion that the officers 27 used excessive force in retaliation for Mr. Herrera instructing his younger brother to video the 1 Plaintiff alleges that the claim is based on Sergeant Little “wrongly attempt[ing] to intimidate 2 Esperanza into giving him video footage,” Plaintiff has offered no evidence of an interaction 3 between Sergeant Little and Esperanza which could give rise to such a claim. (Dkt. No. 62 at 4 21:7-8.) See Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996) (noting that it is not the court’s 5 task “to scour the record in search of a genuine issue of triable fact.”). 6 Accordingly, Defendants’ motion for summary judgment on Plaintiff’s Section 1983 First 7 Amendment claim is granted. 8 5. Plaintiff’s Fourteenth Amendment Claim 9 Plaintiff’s first claim for relief alleges violation of the First, Fourth, and Fourteenth 10 Amendments. The basis for Plaintiff’s Fourteenth Amendment claim is, however, unclear. To the 11 extent that it is based on the alleged unlawful entry, detention, and use of force, the Fourth 12 Amendment is the proper vehicle for raising those claims. See Graham v. Connor, 490 U.S. 386, 13 395 (1989) (concluding “that all claims that law enforcement officers have used excessive force – 14 deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen 15 should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than 16 under a ‘substantive due process’ approach”); Godoy v. Cty. of Sonoma, No. 15-CV-00883-WHO, 17 2016 WL 269867, at *4 (N.D. Cal. Jan. 22, 2016) (“To the extent plaintiffs’ alleged Fourteenth 18 Amendment violations are based on the officers’ use of excessive force, they must be analyzed 19 under the Fourth Amendment standard.”). To the extent, Plaintiff’s Fourteenth Amendment claim 20 gives rise to his Devereaux claim, that claim is separately pled and analyzed below. 21 Accordingly, Defendants’ motion for summary judgment on Plaintiff’s Fourteenth 22 Amendment claim as pled in the first claim for relief is granted. 23 *** 24 For the reasons stated above, the Court grants Defendants’ motion for summary judgment 25 on Plaintiff’s first claim for relief except as to the excessive force claim against Officers Gerber, 26 Gigliotti, and Francisco. While this claim was also brought against the City and Chief of Police 27 Lucero, Plaintiff has failed to raise any argument against the Defendants’ motion for summary 1 Section 1983 claim against the City, such a claim is considered under Plaintiff’s second claim for 2 relief for Monell liability. 3 B. Plaintiff’s Section 1983 Monell and Supervisory Liability Claim – Second Claim 4 1. Monell Liability 5 Municipalities are “persons” under Section 1983 and thus may be liable for causing a 6 constitutional deprivation. Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658, 7 690-91 (1978). A municipality, however, may not be sued under Section 1983 solely because an 8 injury was inflicted by its employees or agents; instead, the entity is responsible only when 9 execution of a government’s policy or custom inflicts the injury. Id. at 694. To impose municipal 10 liability under Section 1983 for a violation of constitutional rights, a plaintiff must show: (1) the 11 plaintiff possessed a constitutional right of which he or she was deprived; (2) the municipality had 12 a policy; (3) the policy amounts to a deliberate indifference to the plaintiff’s constitutional rights; 13 and (4) the policy is the moving force behind the constitutional violation. Plumeau v. Sch. Dist. 14 No. 40, Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). 15 Given the Court’s conclusion that fact questions exist as to whether Officers Gerber, 16 Gigliotti, and Francisco violated Plaintiff’s Fourth Amendment rights, the first factor is met here. 17 As for the second factor, to establish a policy, custom, or practice a plaintiff must show: (1) an 18 unconstitutional custom or policy behind the violation of rights; (2) a deliberately indifferent 19 omission, such as a failure to train; or (3) a final policy-maker’s involvement in, or ratification of, 20 the unconstitutional decision or action and the basis for it. See Clouthier v. Cty. of Contra Costa, 21 591 F.3d 1232, 1250 (9th Cir. 2010), overruled on other grounds by Castro v. Cty. of Los Angeles, 22 833 F.3d 1060 (9th Cir. 2016). 23 Here, Plaintiff appears to contend that Monell liability exists under all three bases. First, 24 Plaintiff insists that the City’s job performance evaluation process incentivizes unconstitutional 25 behavior. In particular, Plaintiff identifies a document attached as Exhibit P to the Kim 26 Declaration which he argues shows that Fremont police officers are evaluated on the number of 27 citations and arrests made within a certain time period, the number of cases sent to the District 1 Plaintiff contends that this evaluation process incentivizes officers to “effectuate every arrest they 2 make, whether constitutional or not” and “to write corresponding policy reports, whether accurate 3 or not, to successfully support charged being brought against arrestees.” (Dkt. No. 62 at 23:13- 4 15.) There is, however, no evidence to support Plaintiff’s theory. Even if the Court were to 5 accept that this incomplete, heavily redacted, and unauthenticated document represents the 6 Fremont Police Department Police Officer Evaluation process for the relevant time period, it does 7 not show what the City’s policy is with respect to tying an employee’s job evaluation to metrics 8 regarding citations, arrests, and prosecutions; that is, Plaintiff has not offered any evidence as to 9 how the number of citations, arrests, or prosecutions is weighted or calculated in an employee’s 10 evaluation or how these statistics affect an employee’s performance evaluation at all. Plaintiff has 11 also failed to show how any such policy regarding performance evaluations is causally connected 12 to his constitutional injury or that the policy was the moving force behind any of the officers’ 13 conduct here. See Castro, 833 F.3d at 1076. 14 Second, Plaintiff insists that “it is evident that FPD failed to train Officers Gigliotti, 15 Gerber, and Francisco” based on the fact that (1) the taser policy prohibits use of a taser on a 16 restrained or handcuffed individual; (2) the taser policy does not recommend multiple applications 17 of the taser; (3) policy prohibits “suppressing, concealing, or distorting facts”; (4) policy requires 18 warrants to arrest individuals in their homes absent exigent circumstances; and (5) there is no 19 policy for “other pain compliance holds.” (Dkt. No. 62 at 24:13-24.) However, Plaintiff has 20 failed to identify what was inadequate about the training the officers received such that the failure 21 to train was deliberately indifferent to Plaintiff’s constitutional rights or a moving force behind the 22 constitutional violations. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (“[I]t is 23 therefore difficult in one sense even to accept the submission that someone pursues a ‘policy’ of 24 ‘inadequate training,’ unless evidence be adduced which proves that the inadequacies resulted 25 from conscious choice—that is, proof that the policymakers deliberately chose a training program 26 which would prove inadequate.”); City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989) (“We 27 hold today that the inadequacy of police training may serve as the basis for § 1983 liability only 1 police come into contact.”). 2 Finally, Plaintiff’s ratification argument is based on the alleged performance evaluation 3 policy; that is, because Chief Lucero signs off on the performance evaluations he has ratified the 4 unconstitutional behavior of law enforcement officers. This argument fails because as discussed 5 supra, Plaintiff has not established that there was an unconstitutional policy regarding the 6 evaluations that was the moving force behind the alleged constitutional violations here. 7 Accordingly, Plaintiff has failed to establish a basis for Monell liability and Defendants’ 8 motion for summary judgment on this claim is granted. 9 2. Supervisory Liability 10 Plaintiff also seeks to hold Chief Lucero and Sergeant Little liable based on a supervisory 11 liability theory. However, there is no respondeat superior or vicarious liability under Section 12 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor is liable only when 13 he or she has directly participated in or proximately caused the alleged deprivation. See Palmer v. 14 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Under Section 1983, a supervisor may be held 15 liable “if there exists either (1) his or her personal involvement in the constitutional deprivation, or 16 (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 17 constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (citation and internal 18 quotation marks omitted). The requisite causal connection may be shown by the supervisor’s “own 19 culpable action or inaction in the training, supervision, or control of his subordinates; for his 20 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous 21 indifference to the rights of others.” Id. at 1208. 22 Plaintiff has not identified any evidence that would support a finding that Chief Lucero 23 was personally involved in or had any causal connection to the constitutional violations alleged 24 here beyond the ratification argument which the Court rejected supra. As to Sergeant Little, 25 Plaintiff states without explanation that Sergeant Little is liable because he unlawfully entered 26 Plaintiff’s residence, failed to complete a Blue Team entry, failed to ensure photographs were 27 taken of Plaintiff’s injuries, and failed to review and approve all related reports. (Dkt. No. 62 at 1 the constitutional violations alleged here. 2 Defendants’ motion for summary judgment on Plaintiff’s supervisory liability claim is 3 therefore granted. 4 C. Plaintiff’s Section 1983 Devereaux Claim—Third Claim 5 “A Devereaux claim is a claim that the government violated the plaintiff’s due process 6 rights by subjecting the plaintiff to criminal charges based on deliberately-fabricated evidence.” 7 Bradford v. Scherschligt, 803 F.3d 382, 386 (9th Cir. 2015). “To prevail on a § 1983 claim of 8 deliberate fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated 9 evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.” Spencer v. 10 Peters, 857 F.3d 789, 798 (9th Cir. 2017) (internal citation omitted). For purposes of causation 11 under the second element, the plaintiff must establish that “(a) the act was the cause in fact of the 12 deprivation of liberty, meaning that the injury would not have occurred in the absence of the 13 conduct; and (b) the act was the ‘proximate cause’ or ‘legal cause’ of the injury, meaning that the 14 injury is of a type that a reasonable person would see as a likely result of the conduct in question.” 15 Id. (internal citation omitted). Defendants move for summary judgment on the grounds that the 16 evidence is insufficient for Plaintiff to meet his Devereaux claim burden. 17 Plaintiff’s opposition states in its entirety in support of this claim:

18 Video evidence directly contradicts the officers’ police reports, which the officers deliberately fabricated to justify their unlawful entry, 19 seizure, use of force, and arrest. Specifically, the officers perjured facts including, but not limited to: Plaintiff slamming the front door 20 shut; continuous screaming and crying; Esperanza opening the screen door; Plaintiff resisting the pat-down search; Plaintiff attempting to 21 flee; and Plaintiff being violent and pushing back.

22 (Dkt. No. 62 at 26.) Plaintiff cannot meet his summary judgment burden by merely generally 23 citing to “video evidence.” For example, the cellphone video itself without reference to any other 24 evidence does not support a finding that the officers fabricated any of the statements Plaintiff 25 identifies. Further, and more fatefully, the cellphone video does not establish that Plaintiff was 26 prosecuted because of these statements. See Spence, 857 F.3d at 800 (holding that for a deliberate 27 fabrication claim the plaintiff must “demonstrate that the defendant’s conduct was the actionable 1 cause of the claimed injury. To meet this causation requirement, the plaintiff must establish both 2 causation-in-fact and proximate causation.”) (internal citation and quotation marks omitted). 3 Generally, there is a rebuttable presumption of prosecutorial independent judgment. See Caldwell 4 v. City & Cty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018). Plaintiff has not offered any 5 evidence to rebut the presumption of prosecutorial judgment; that is, evidence that the prosecutor 6 considered the allegedly fabricated evidence when making the charging decision. Id. at 117 (“A 7 prosecutor’s judgment cannot be said to be independent where the prosecutor considers potentially 8 fabricated evidence without knowing that the evidence might be fundamentally compromised and 9 misleading.”). The cellphone video—the only evidence Plaintiff cites in support of this claim— 10 does not support any inference as to the prosecutor’s charging decision. 11 Given Plaintiff’s failure to offer any evidence in support of the second element of his 12 Devereaux claim, Defendants are entitled to summary judgment on this claim. 13 D. Plaintiff’s Section 1983 Malicious Prosecution Claim – Fourth Claim 14 To prevail on a section 1983 malicious prosecution claim, a plaintiff must prove that 15 criminal proceedings were instituted with malice, without probable cause, and for the purpose of 16 denying the plaintiff a specific constitutional right. Freeman v. City of Santa Ana, 68 F.3d 1180, 17 1189 (9th Cir. 1995). The claim “requires ‘the institution of criminal proceedings against another 18 who is not guilty of the offense charged’ and that ‘the proceedings have terminated in favor of the 19 accused.’” Lacey v. Maricopa Cty., 693 F.3d 896, 919 (9th Cir. 2012) (quoting Restatement 20 (Second) of Torts § 653 (1977)). 21 Plaintiff’s malicious prosecution claim is based on Officer Gigliotti’s recommendation that 22 Plaintiff be charged with Section 148 and Section 237.7 (Dkt. No. 62 at 27: 13-15.) Plaintiff 23 insists there was not probable cause for these charges “because the officers manufactured probable 24 cause for the resistance and because Melissa stated Plaintiff never pushed her or put his hands on 25 her.” (Id. at 27:17-18.) Plaintiff also states that “Officer Gigliotti admitted there probably was no 26

27 7 The Court assumes this is a typographical error in Plaintiff’s brief and instead refers to Section 1 probable cause” citing to a dash cam video. (Id. at 27:18-19 (citing Exhibit O at 0:08-0:25).) 2 Plaintiff’s arguments fail to raise a dispute of material fact. 3 First, the Court has held that probable cause supported Plaintiff’s arrest for a violation of 4 Section 243(e)(1). Second, Plaintiff has cited to no evidence in support of his theory that the 5 officers “manufactured probable cause for resistance” nor has Plaintiff provided evidence in 6 support of Melissa’s alleged statement; indeed, the evidence in the record—Melissa’s 7 deposition—is that she does not remember what happened beyond that there was an argument and 8 yelling. (Dkt. No. 62-3 at 22:4-25:4.) See Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996) 9 (noting that it is not the court’s task “to scour the record in search of a genuine issue of triable 10 fact.”). Finally, even if there was a question of fact as to whether there was probable cause for the 11 arrest for resisting arrest, Plaintiff has not shown that the charging recommendation was made for 12 the purposes of denying him equal protection or another specific constitutional right. See Awabdy 13 v. City of Adelanto, 368 F.3d 1062, 1069 (9th Cir. 2004) (“a § 1983 malicious prosecution plaintiff 14 must prove that the defendants acted for the purpose of depriving him of a ‘specific constitutional 15 right’”) (quoting Freeman, 68 F.3d at 1189). Indeed, Plaintiff has not even identified a 16 constitutional right which the Defendants allegedly conspired to deny him of; rather, Plaintiff 17 argues that the charging recommendation was made to maintain Officer Gigliotti and “Officer 18 Gerber’s high percentage score [on their performance evaluations] and for want of probable cause 19 to legitimize their illegal conduct.” (Dkt. No. 62 at 27:19-21.) But this argument is circular and 20 does not tie the allegedly false charging recommendation to a deprivation of Plaintiff’s 21 constitutional rights. 22 Accordingly, Plaintiff has failed to demonstrate any basis for his malicious prosecution 23 claim and Defendants’ motion for summary judgment is granted. 24 II. Plaintiff’s State Law Claims 25 A. Plaintiff’s Bane Act Claim – Sixth Claim 26 The Bane Act provides a private right of action against a person who interferes by “threats, 27 intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the 1 laws of the United States, or of the rights secured by the Constitution or laws of this state....” Cal. 2 Civ. Code § 52.1. “There are two distinct elements for a section 52.1 cause of action. A plaintiff 3 must show (1) intentional interference or attempted interference with a state or federal 4 constitutional or legal right, and (2) the interference or attempted interference was by threats, 5 intimidation or coercion.” Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015), as 6 modified on denial of reh’g (Mar. 6, 2015), review denied (May 20, 2015) (citations omitted). 7 Defendants insist that summary judgment is appropriate because there is no evidence that 8 Plaintiff’s rights were violated by Defendants’ violence or a threat of violence. Not so. The Court 9 has denied Defendants’ motion for summary judgment on the excessive force claim. “A 10 successful claim for excessive force under the Fourth Amendment provides the basis for a 11 successful claim under § 52.1.” See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th 12 Cir. 2014). 13 Accordingly, Officers Gerber, Gigliotti, and Francisco are not entitled to summary 14 judgment on Plaintiff’s Bane Act claim which is predicated on the same facts as his excessive 15 force claim. See Barragan v. City of Eureka, No. 15-CV-02070-WHO, 2016 WL 4549130, at *8 16 (N.D. Cal. Sept. 1, 2016) (denying summary judgment on a Bane Act claim because “an excessive 17 force claim by its nature includes coercion beyond that inherent, for example, in an arrest or 18 detention or search and seizure” and collecting cases re: the same). 19 B. Plaintiff’s Remaining State Law Claims 20 Defendants contend they are entitled to summary judgment on Plaintiff’s remaining state 21 law claims—for unreasonable search and seizure under Article 1, Section 13 of the California 22 Constitution (fifth claim), for assault and battery (seventh claim), false imprisonment/arrest 23 (eighth claim), negligence (ninth claim), and invasion of privacy (tenth claim)—because these 24 claims duplicate Plaintiff’s Section 1983 and Bane Act Claims. Because the Court has denied 25 summary judgment on the Section 1983 and Bane Act claims as to Plaintiff’s excessive force 26 claim against Officers Gerber, Gigliotti, and Francisco, summary judgment must necessarily be 27 denied as to them on the unreasonable search and seizure, assault and battery, negligence, and 1 summary judgment is granted on Plaintiff's false imprisonment/arrest claim for the same reasons 2 || the Court grants summary judgment on Plaintiff's Section 1983 unlawful arrest claim. 3 CONCLUSION 4 For the reasons stated above, Defendants’ motion for summary judgment is GRANTED IN 5 PART and DENIED IN PART. The motion is denied as to Plaintiff's Section 1983 excessive 6 force claim against Officers Gerber, Gigliotti, and Francisco, and his state law claims predicated 7 on this same constitutional violation. The motion is granted in all other respects. 8 This Order disposes of Docket No. 51. 9 IT IS SO ORDERED. 10 Dated: November 13, 2019 11

‘ACQWELINE SCOTT CORLEY 13 United States Magistrate Judge

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