King v. City of Sacramento

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Travis King, No. 2:20-cv-01326-KJM-DB 12 Plaintiff, ORDER 13 v. 14 City of Sacramento, et al., 1S Defendants. 16 17 Plaintiff Travis King was arrested and jailed for a crime he did not commit. Mr. King 18 | filed this case against the City of Sacramento, Officer Jonathan Houston, Officer Anthony Boler, 19 | Costco Wholesale Corporation, and its employee Eric Klockenbrink alleging constitutional and 20 | state law violations. The City of Sacramento, Officer Houston and Officer Boler now move for 21 | summary judgment. After consideration of the parties’ briefs and oral arguments, and for the 22 | reasons stated below, the motion is granted in part and denied in part. A jury could conclude 23 | the officers recklessly omitted material information from their warrant application and that their 24 | actions violated California law. 25 | I. BACKGROUND 26 The following facts are either undisputed or construed in the light most favorable to 27 | Mr. King as required. On May 7, 2019, two men robbed a local Costco Wholesale Corporation

1 store. See Boler Decl. ¶ 4, ECF No. 19-5; Boler Observations Report (“Boler Report”) at 5,1 2 Boler Decl. Ex. A, ECF No. 19-5. According to Costco employees, two “black male adults” in 3 their twenties or thirties stole $2,400 worth of merchandise from the store. See Boler Decl. ¶ 5. 4 Costco employees chased the men and saw them depart in a silver Cadillac CTS. Id. ¶ 6. One 5 employee recorded parts of the incident on his cell phone; surveillance video captured other 6 moments. See Boler Report at 5. 7 Later that day, the Sacramento Police Department dispatched officers to Costco, where 8 they reviewed the surveillance video. See Boler Decl. ¶¶ 4, 6–7. Officer Boler reviewed the 9 video and then described what he saw: 10 [T]he first suspect (later possibly identified as . . . Keyauntay Head) 11 was approximately 5’10[”] with a medium build and was wearing a 12 white T-shirt . . . . The other suspect (later possibly identified as . . . 13 [plaintiff] Travis King) was approximately 6’[] with a medium build 14 and was wearing a yellow hoodie . . . . He had short black hair and 15 appeared to be developing a bald spot on the top of his head. 16 Boler Report at 5. The surveillance video also showed the rear license plate of the Cadillac CTS. 17 See Boler Decl. ¶ 6. 18 Police department staff searched the license plate and found that the car’s registration had 19 expired fourteen months earlier. See Boler Report at 6. At that time, the vehicle was registered to 20 a Michael L. Brown on 23rd Avenue. See Cadillac CLETS2 Response, Patterson Decl. Ex. I, 21 ECF No. 21-3. The 23rd Avenue address is an eight-unit apartment building. See King Decl. 22 ¶ 13, Opp’n, ECF No. 21-4. A further records search revealed that Mr. King lived in the building. 23 See King CLETS Response, Patterson Decl. Ex. J, ECF No. 21-3; Boler Report at 6. 24 Officer Boler determined Mr. King “appeared to be the suspect wearing the yellow 25 hoodie” based on the surveillance video and Mr. King’s booking photograph. Boler Report at 6. 26 But the surveillance video and booking photograph show obvious differences. The booking 27 photograph shows Mr. King with a full head of hair in the style of an afro, see King Booking

1 To avoid confusion, pages cited here are those printed on the top right page of the document by the CM/ECF system. 2 California Law Enforcement Telecommunications System. 1 Photograph, Patterson Decl. Ex. B, ECF No. 21-3, whereas the surveillance video shows a man 2 with very short hair and a developing bald spot at his hairline, see Boler Report at 5; Surveillance 3 Video Still Frame, Patterson Decl. Ex. A, ECF No. 21-3. Officer Boler noted this bald spot in his 4 report after he viewed the surveillance video. See Boler Report at 5. 5 Officer Boler also relied on Mr. King’s physical description. Id. at 6. Officer Boler had 6 described the yellow-hoodied suspect as approximately 6’, observing he was taller than the other 7 suspect in the surveillance video, 5’10” Keyauntay Head. See id. at 5. Officer Boler further 8 noted the yellow-hoodied suspect had a medium build, see id., and a witness described him as 9 “stocky,” see Davis Witness Statement, Patterson Decl. Ex. H, ECF No. 21-3. Mr. King, on the 10 other hand, is 5’9” and 150 pounds. See King CLETS Response. When he was later arrested, he 11 was described as “SMALL/THIN/PETITE.” See King Arrest Info. at 13, Patterson Decl. Ex. C, 12 ECF No. 21-3. 13 The day after the robbery, on May 8, 2019, Sacramento Police stopped the Cadillac CTS 14 for an unrelated traffic violation. See Boler Report at 6. Keyauntay Head was driving and told 15 officers that he owned the car. See Statement of Prob. Cause at 6, Houston Decl. Ex. A, ECF 16 No. 19-4. 17 On May 9, 2019, Officer Boler asked the three Costco employees who witnessed the 18 robbery to identify the suspects. See Houston Suppl. at 27, Patterson Decl. Ex. F, ECF No. 21-3. 19 The first employee said he could not. See id. The second reviewed Officer Boler’s photo lineup 20 and could not identify Mr. Head or Mr. King. See id. Officer Boler then presented the photo 21 lineup to the third Costco employee, Eric Klockenbrink. See id. Mr. Klockenbrink identified 22 Mr. King as the perpetrator wearing the yellow hoodie. See id. He did not identify a second 23 suspect. See id.; see also Statement of Prob. Cause at 6. Officer Boler’s body camera was off 24 when he conducted the photo lineups. See Boler Report at 7; contra Sacramento Police 25 Department General Order 525.07(E)(3) (Jan. 2019)3 (Sacramento PD police officers “shall

3 The court takes judicial notice of this publicly available government document. See Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018) (taking judicial notice of government documents on government website). 1 activate their [body-worn cameras] during investigations and enforcement activity, including 2 evidence collection, whether self-initiated or in response to a dispatched call.”). On May 30, 3 2019, Officer Houston submitted an arrest warrant request form to the Sacramento Superior Court 4 for the arrest of Keyauntay Head and Mr. King. See Warrant Appl., Patterson Decl. Ex. L, ECF 5 No. 21-3. As part of this request, Officer Houston submitted a Statement of Probable Cause and 6 Officer Boler’s May 9 Observations Report. Id. In Officer Houston’s probable cause statement, 7 only the following statements are relevant to Mr. King: 8 The [Cadillac CTS] was registered to [ ] 23rd Ave. . . . . (King) shows 9 to have that as an address of record and is on two grants of 10 misdemeanor probation there. As of 7-8-18, this is also his address 11 on file with DMV. Officers noted that upon viewing official 12 photographs of [King], and the video surveillance video, they appear 13 to be the same person. 14 Officers conducted a traffic stop on the vehicle on 5-8-19 at 0149 15 hours and contacted the driver who was identified as [Head]. [Head] 16 advised the officers that the vehicle was in fact his for approximately 17 one week. . . . 18 “VIC #3” advised he did not get a good look at “SUS #1” (Head) and 19 “SUS #2” (King), and therefore could not ID. 20 “VIC #2” was shown photographic line-ups of “SUS #1 (Head) and 21 “SUS #2” (King) but was unable to identify the suspects in this theft. 22 “VIC #1” was unable to identify “SUS #1” (Head). However, “VIC 23 #1” positively identified “SUS #2” (King). 24 Statement of Prob. Cause. Officer Houston did not attach photos of the suspects to the warrant 25 application. 26 The warrant issued the same day it was requested, and Sacramento police arrested 27 Mr. King on June 20, 2019. See Felony Arrest Warrant, Houston Decl. Ex. B, ECF No. 19-4; 28 King Decl. ¶ 1; Houston Decl. ¶ 18. He spent several weeks in Sacramento County Jail. See 29 King Decl. ¶ 11. When Mr. King’s attorney received the Costco surveillance video, he sent it to 30 the deputy district attorney. See id. ¶ 12. The deputy district attorney immediately dismissed the 31 criminal complaint against Mr. King. See id. 32 ///// 1 Mr. King filed suit, alleging six claims. See generally First Am. Compl., ECF No. 5. 2 Specifically, Mr. King brings two claims under 42 U.S.C. § 1983: a Monell claim against the City 3 of Sacramento and a Fourth Amendment unlawful seizure claim against Officers Boler and 4 Houston. Id. Mr. King also asserts state law claims for negligence, false arrest, intentional 5 infliction of emotional distress, and malicious prosecution against Officers Boler and Houston, 6 among other defendants.4 Id. Defendants City of Sacramento and Officers Boler and Houston 7 move for summary judgment on all claims except malicious prosecution. See generally Mot., 8 ECF No. 19. The court received full briefing and heard oral arguments by videoconference at a 9 hearing on January 21, 2022. See Opp’n, ECF No. 21; Reply, ECF No. 23; Minutes, ECF No. 26. 10 Kellan Patterson appeared for plaintiff; Sean Richmond appeared for defendants. 11 II. LEGAL STANDARD 12 A court may grant summary judgment only “if . . . there is no genuine dispute as to any 13 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 14 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 15 resolved only by a finder of fact because they may reasonably be resolved in favor of either 16 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 17 The moving party bears the initial burden of showing the district court “that there is an 18 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 19 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish 20 that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio 21 Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must cite to “particular 22 parts of materials in the record . . . or show[] that the materials cited do not establish the absence 23 or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 24 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (nonmoving 25 party “must do more than simply show that there is some metaphysical doubt as to the material

4 This court dismissed Mr. King’s negligence and intentional infliction of emotional distress claims against defendants Costco and Mr. Klockenbrink on January 3, 2022. See Mot. Dismiss Order, ECF No. 20. The court did not dismiss Mr. King’s malicious prosecution claim against these defendants. See id. at 7–10. 1 facts”). Moreover, “the requirement is that there be no genuine issue of material fact. . . . Only 2 disputes over facts that might affect the outcome of the suit under the governing law will properly 3 preclude the entry of summary judgment.” Anderson, 477 U.S. at 248 (emphasis in original). 4 In deciding a motion for summary judgment, the court draws all inferences and views all 5 evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587–88. 6 “Where the record taken as a whole could not lead a rational trier of fact to find for the non- 7 moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank of Ariz. v. 8 Cities Serv. Co., 391 U.S. 253, 289 (1968)). 9 The Supreme Court has taken care to note that district courts should act “with caution in 10 granting summary judgment,” and have authority to “deny summary judgment in a case where 11 there is reason to believe the better course would be to proceed to a full trial.” Anderson, 12 477 U.S. at 255. A trial may be necessary “if the judge has doubt as to the wisdom of terminating 13 the case before trial.” Gen. Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1507 14 (9th Cir. 1995) (quoting Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994)). This may be 15 the case “even in the absence of a factual dispute.” Rheumatology Diagnostics Lab., Inc v. Aetna, 16 Inc., No. 12-05847, 2015 WL 3826713, at *4 (N.D. Cal. June 19, 2015) (quoting Black, 22 F.3d 17 at 572); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001). 18 III. ANALYSIS 19 A. Judicial Deception 20 Mr. King claims first that Officers Boler and Houston violated his Fourth Amendment 21 right to be free from unreasonable seizures. See First Am. Compl. ¶¶ 33–38. He claims his arrest 22 was unconstitutional because, while the warrant request might support a finding of probable cause 23 within its four corners, important information was knowingly or recklessly omitted or 24 misrepresented, which misled the approving magistrate judge. In other words, Mr. King’s theory 25 of liability is a “judicial deception” claim. Defendants argue they are entitled to qualified 26 immunity and therefore summary judgment. See Mot. at 13–16. 27 “In Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995), [the Ninth Circuit] clarified the 28 mechanics of a judicial deception claim and carefully spelled out the burden a plaintiff must meet 1 in order to survive a defendant officer’s motion for summary judgment on the ground of qualified 2 immunity.” Liston v. County Riverside, 120 F.3d 965, 973 (9th Cir. 1997). Specifically, the 3 plaintiff must (1) “make a ‘substantial showing’ of deliberate falsehood or reckless disregard for 4 the truth,” and (2) “establish that, but for the dishonesty, the challenged action would not have 5 occurred.” Id. Thus, in judicial deception cases in the Ninth Circuit, there is no independent 6 requirement that plaintiff show a defendant violated clearly established law: the “qualified 7 immunity analysis at the summary judgment stage is swallowed by the question of reckless or 8 intentional disregard for the truth.” Chism v. Washington State, 661 F.3d 380, 393 n.15 (9th Cir. 9 2011) (citation omitted); see also Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002) (noting 10 Ninth Circuit “effectively intertwine[s] the qualified immunity question (1) whether a reasonable 11 officer should have known that he acted in violation of a plaintiff's constitutional rights with 12 (2) the substantive recklessness or dishonesty question”). 13 The Ninth Circuit explained this approach in Chism: 14 [T]his “merger” is sensible because “no reasonable officer could 15 believe that it is constitutional to act dishonestly or recklessly with 16 regard to the basis for probable cause in seeking a warrant. 17 Accordingly, should a factfinder find against an official on [the] 18 state-of-mind question, qualified immunity would not be available as 19 a defense.” 20 661 F.3d at 393 n.15 (citation omitted); accord Hervey, 65 F.3d at 788 (“[I]f an officer ‘submitted 21 an affidavit that contained statements he knew to be false or would have known were false had he 22 not recklessly disregarded the truth[,] . . . he cannot be said to have acted in an objectively 23 reasonable manner,’ and the shield of qualified immunity is lost.”). The Ninth Circuit recently 24 reaffirmed this approach. See Benavidez v. County of San Diego, 993 F.3d 1134, 1152 (9th Cir. 25 2021) (“[J]udicial deception alone is sufficient to overcome . . . qualified immunity.”). Thus, if a 26 plaintiff satisfies the two judicial deception requirements, “the matter must go to trial.” Bravo v. 27 City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011) (citation omitted). 28 ///// 1 1. Reckless omissions 2 As to the first prong, summary judgment is improper where “there is a genuine dispute as 3 to the facts and circumstances within an officer’s knowledge or what the officer and claimant did 4 or failed to do.” Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009) (internal quotation 5 marks and citation omitted); see also Butler, 281 F.3d at 1024 (“[S]tate of mind is for the jury.” 6 (citation omitted)). To identify a genuine dispute, Mr. King “need only make a substantial 7 showing of a deliberate or reckless omission, not provide ‘clear proof.’” Bravo, 665 F.3d at 1087 8 (quoting Liston, 120 F.3d at 974). Alleged judicial deception may take the form of omissions or 9 false statements. United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985). 10 Mr. King has made the required substantial showing, for purposes of summary judgment, 11 that Officer Houston was at least reckless in omitting exculpatory information from the May 30, 12 2019 warrant application. First, in a case that largely turns on physical appearance, Officer 13 Houston was in possession of identifying information that, at a minimum, cast serious doubt as to 14 whether Mr. King was in fact the yellow-hoodied suspect. Specifically, Officer Houston had 15 Mr. King’s booking photograph and the surveillance video of the suspects. See Boler Report at 16 5–6. A quick glance at these images shows glaring differences between Mr. King and the yellow- 17 hoodied suspect. As noted, Mr. King’s booking photograph shows he has a full head of hair in 18 the style of an afro, see King Booking Photograph, whereas the surveillance video shows the 19 yellow-hoodied suspect with very short hair and a developing bald spot at his hairline, see Boler 20 Report at 5. Officer Houston also knew Mr. King stands 5’9” tall and weighs 150 pounds. See 21 King CLETS Response. Officer Boler himself had described the yellow-hoodied suspect as 6’ 22 and of “medium build,” see Boler Report at 5, and a witness described him as “stocky” and 23 “taller” than Keyauntay Head, who was 5’10”, see Davis Witness Statement. 24 Second, Mr. King’s connection to the Cadillac CTS was tenuous at best. Officer 25 Houston’s Statement of Probable Cause suggests this was an open-and-shut case: The officers 26 searched the license plate, which led them to Mr. King’s specific address, which led them to 27 Mr. King’s booking photograph, which “appear[ed] to be” of the yellow-hoodied suspect. 28 Statement of Prob. Cause at 6. But Officer Houston did not include several relevant details that 1 cast doubt on Mr. King’s connection to the vehicle. Specifically, Michael Brown—not 2 Mr. King—was the last-known registered owner of the Cadillac CTS at the 23rd Avenue address. 3 See Cadillac CLETS Response. In addition, the 23rd Avenue address is an eight-unit apartment 4 building, not a single family home. See King Decl. ¶ 13. The wording of Officer Boler’s 5 Observations Report signals that unrelated persons might live at the address. See Boler Report at 6 6 (“In a records check of the registered address to the vehicle, 4023 23rd Ave Sacramento, I was 7 able to locate (S) Travis King who also lived there.” (emphasis added)). Finally, Mr. Brown’s 8 vehicle registration expired on March 12, 2018, 14 months before the Costco robbery and four 9 months before Mr. King was ever associated with the 23rd Avenue address. See id.; King CLETS 10 Response. Thus, while the officers all but state Mr. King had direct ties to the vehicle and thus 11 the Costco robbery, a reasonable fact finder reviewing the record could conclude the officers 12 either looked for or settled on any man in the apartment complex who bore some resemblance to 13 the yellow-hoodied suspect. 14 The officers had access to these exculpatory facts when they submitted the warrant 15 application. With these facts, at the summary judgment stage, Mr. King is entitled to the 16 reasonable inference that they intentionally or recklessly failed to disclose them. See Bravo, 17 665 F.3d at 1087 (reversing grant of summary judgment where officer “may have” viewed 18 relevant fact in preparing warrant affidavit because plaintiffs were “entitled to the reasonable 19 inference” that detective had in fact seen and deliberately or recklessly failed to disclose it). 20 In sum, Mr. King has made the required “substantial showing of a deliberate or reckless 21 omission.” Id. Given the importance of physical appearance and Mr. King’s ties to the Cadillac 22 CTS and relevant address to the finding of probable cause, a reasonable jury could conclude that 23 the officers’ failure to mention any of the exculpatory evidence amounted to reckless disregard 24 for the truth. If the omissions are material, it is for a jury to decide whether the officers omitted 25 this information with intentional or reckless disregard for its bearing on probable cause. See 26 Butler, 281 F.3d at 1024. The court turns to materiality next. 27 ///// 1 2. Materiality 2 The second element—whether the information omitted from the warrant application is 3 material—is a question of law. Id. (“Materiality is for the court . . . .” (citing Hervey, 65 F.3d at 4 789)). In making this determination, the court considers “whether the affidavit, once corrected 5 and supplemented, establishes probable cause.” Ewing v. City of Stockton, 588 F.3d 1218, 1224 6 (9th Cir. 2009). The materiality element “requires the plaintiff to demonstrate that the magistrate 7 would not have issued the warrant with false information redacted, or omitted information 8 restored.” Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011). In other words, “the plaintiff 9 must establish that the remaining information in the affidavit is insufficient to establish probable 10 cause.” Hervey, 65 F.3d at 789. 11 To assess materiality, the court must add the missing information to, and subtract 12 misrepresentations from, the warrant application and determine if “what remains [is] sufficient to 13 justify the issuance of the warrant.” Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. 14 2005); United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (“Where . . . a warrant’s 15 validity is challenged for deliberate or reckless omissions of facts that tend to mislead, the 16 affidavit must be considered with the omitted information included.”). In conducting this 17 exercise, the court considers a corrected and supplemented affidavit below. The court’s deletions 18 are redlined; additions are bolded. 19 The [Cadillac CTS] was last registered fourteen months ago on 3- 20 12-18 to Michael Brown at 4023 23rd Ave., Sacramento, Ca. This 21 address is an eight-unit apartment building. "SUS #2" (King) 22 shows to have this eight-unit building that as an address of record 23 and is on two grants of misdemeanor probation there. As of 7-8-18, 24 this is also his address on file with DMV. CLETS Records identify 25 King as 5’9[”], 150 pounds. His booking photograph shows that 26 he has a full head of hair and dark complexion. 27 The man captured by Costco surveillance video is tall and 28 muscular; he has short hair and appears to be balding at his 29 hairline. A still frame from the Costco surveillance video shows 30 the person suspected of being King on the left. 31 ///// 1 Officers noted that upon viewing official photographs of "SUS #2" 2 (King), and the video surveillance video, they thought they were 3 appear to be the same person. 4 Officers conducted a traffic stop on the vehicle on 5-8-19 at 0149 5 hours and contacted the driver who was identified as “SUS #1” 6 (Head). . . . [Head] advised the officers that the vehicle was in fact 7 his for approximately one week. . . . 8 "VIC #3" advised he did not get a good look at "SUS #1" (Head) and 9 "SUS #2" (King), and therefore could not ID. 10 "VIC #2" was shown photographic line-ups of "SUS #1" (Head) and 11 "SUS #2" (King) but was unable to identify the suspects in this theft. 12 "VIC #1" was unable to identify "SUS #1" (Head). However, "VIC 13 #1" positively identified "SUS #2" (King). 14 The officer’s body camera was off while conducting the photo 15 lineups. 16 The question, then, is whether the foregoing revised description establishes probable cause. 17 “[P]robable cause exists where under the totality of the circumstances known to the officer, a 18 prudent person would have concluded that there was a fair probability that the suspect had 19 committed or was committing a crime.” United States v. Noster, 590 F.3d 624, 629–30 (9th Cir. 20 2009). The standard is inherently “incapable of precise definition or quantification into 21 percentages because it deals with probabilities and depends on the totality of the circumstances.” 22 Maryland v. Pringle, 540 U.S. 366, 371 (2003). Nevertheless, “the substance of all the 23 definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt 24 must be particularized with respect to the person to be searched or seized.” Id. (citations and 25 quotation marks omitted). 26 The totality of the circumstances here does not establish probable cause. Officer Houston 27 relied on three things to support probable cause to arrest Mr. King; all three are undercut by the 28 supplemented affidavit. First, Officer Houston suggests the Cadillac CTS was registered to 29 Mr. King’s address. However, once the affidavit is properly supplemented, the address shared by 30 Mr. King and the Cadillac CTS contributes little if anything to a finding of probable cause. The 31 supplemented affidavit shows only that the Cadillac CTS had been registered 14 months prior, 1 and before Mr. King was known to live in the eight-unit building, to a different person in the 2 building. This information does little to create “a reasonable ground for belief of guilt.” Id. 3 Officer Houston also relied on two identifications. First, based on the surveillance video 4 and Mr. King’s booking photograph and physical description, Officer Boler stated Mr. King 5 “appear[ed] to be” the yellow-hoodied suspect. Properly supplemented, the affidavit would 6 attach the materials on which Officer Boler relied. The court has carefully reviewed the booking 7 photograph and a still photo of the person suspected of being Mr. King, shopping at Costco. 8 After reviewing these images and descriptors, a “prudent person” would not conclude “there was 9 a fair probability” that Mr. King was the yellow-hoodied suspect. Noster, 590 F.3d at 629–30. 10 The original affidavit’s omission of the booking photograph, the still frame, and the physical 11 description is particularly consequential “[g]iven the reliance that . . . federal . . . courts place on 12 an experienced officer’s perceptions of sight.” Hervey, 65 F.3d at 791. “[T]he deliberately false 13 or reckless inclusion of those perceptions is unforgivable. . . . Courts must be exceptionally 14 vigilant when officers fabricate these perceptions.” Id.; see also Stanert, 762 F.2d at 781 (by 15 “reporting less than the total story, an affiant can manipulate the inferences a magistrate will 16 draw”; to allow a magistrate “to be misled in such a manner could denude the probable cause 17 requirement of all real meaning.”). 18 Finally, though the identification was not recorded because Officer Boler’s body camera 19 was off, Mr. Klockenbrink identified Mr. King in a photo lineup. While “such witnesses are 20 generally presumed reliable,” Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009), 21 here a comparison of Mr. King’s booking photograph and the surveillance still frame raise 22 questions about the eyewitness identification. Neither this court nor reviewing magistrate judges 23 should be expected to defer to witnesses when officers have and withhold reliable photographic 24 evidence that casts clear doubt on probable cause. 25 The totality of the circumstances reflected in the corrected affidavit does not establish 26 probable cause, and the omissions are material. See Ewing, 588 F.3d at 1226 (omissions are 27 material when they “cast doubt on the existence of probable cause”); see also Perkins, 850 F.3d at 28 1117–18 (noting affiant “selectively included information bolstering probable cause, while 1 omitting information that did not” and concluding this “usurped the magistrate’s duty to conduct 2 an independent evaluation of probable cause”). Simply put, the officers gave the reviewing 3 magistrate improperly inflated indicia of probable cause. Officer Houston’s Statement of 4 Probable Cause suggests the officers searched the license plate, which led them in a straight line 5 to Mr. King’s address, and Mr. King’s booking photograph “appeared to be” the man wearing the 6 yellow hoodie in the surveillance video. But if the officers had provided even a general summary 7 of other relevant evidence, a neutral magistrate would not have issued the warrant without, at a 8 minimum, requiring additional information. See Liston, 120 F.3d at 974 (“[T]he appropriate 9 inquiry is not whether [an omitted fact] dispositively established [a lack of probable cause], but 10 rather whether that fact would have prompted the issuing judge to require additional information . 11 . . .” (internal quotation marks and alterations omitted)). Mr. King has therefore sufficiently 12 established a genuine issue of material fact on his claim that the warrant was obtained through 13 judicial deception in violation of his Fourth Amendment rights. Accordingly, defendants’ motion 14 for summary judgment is denied as to Mr. King’s judicial deception claim. See Butler, 281 F.3d 15 at 1024 (because “no reasonable officer could believe that it is constitutional to act dishonestly or 16 recklessly with regard to the basis for probable cause in seeking a warrant,” the claim either 17 stands or falls on whether there is sufficient evidence to raise a jury question with respect to the 18 officer’s state of mind.); see also Chism, 661 F.3d at 393. 19 B. State Law Claims 20 Mr. King also asserts several state law claims, namely false arrest, negligence and 21 intentional infliction of emotional distress (IIED). See generally First Am. Compl. Defendants’ 22 arguments for summary judgment on these claims are derivative of their argument with respect to 23 Mr. King’s Fourth Amendment claim. See Mot. at 17–18 (arguing defendants are entitled to 24 summary judgment on false arrest claim because there was probable cause); id. at 18 (same for 25 negligence claim); id. at 18–19 (arguing defendants are entitled to summary judgment on IIED 26 claim because the officers’ conduct could not have been extreme and outrageous, as required for 27 IIED, because there was probable cause). As explained above, there are genuine factual disputes 28 ///// 1 bearing directly on whether there was probable cause supporting Mr. King’s arrest. The court 2 therefore denies defendants’ motion for summary judgment on Mr. King’s state law claims. 3 C. Monell Claim 4 To prevail on his Monell claim against the City of Sacramento, Mr. King must prove: 5 (1) he was deprived of a constitutional right; “(2) the municipality had a policy; (3) the policy 6 amounts to deliberate indifference to his constitutional right; and (4) ‘the policy is the moving 7 force behind the constitutional violation.’” Gordon v. Cty. of Orange, 6 F.4th 961, 973 (9th Cir. 8 2021) (quoting Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). The second 9 element may be satisfied by establishing a custom or practice, so long as the custom is so 10 “persistent and widespread” that it constitutes a “permanent and well settled city policy.” Monell 11 v. Dept. of Soc. Serv. of N.Y., 436 U.S. 658, 691 (1978). Generally, “[l]iability for improper 12 custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices 13 of sufficient duration, frequency and consistency that the conduct has become a traditional 14 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). A plaintiff 15 opposing summary judgment in the absence of an express municipal policy must “produce 16 evidence creating a triable issue of fact regarding the existence of an unconstitutional practice or 17 custom.” See Gordon, 6 F.4th at 974. 18 On the record before the court, Mr. King has not pointed to a genuine issue of material 19 fact regarding the existence of a municipal custom or practice. Rather, he points only to two 20 incidents, one of which is his own experience, as evidence of the Sacramento Police 21 Department’s failure to train its officers. See Opp’n at 12–13. But two unconstitutional 22 incidents—without more—does not prove a policy, custom, or practice exists. See Meehan v. 23 Cty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (holding that two “unconstitutional 24 assaults” by the Sheriff’s Special Enforcement Bureau does not evidence a policy for purposes of 25 Monell liability); see also Connick v. Thompson, 563 U.S. 51, 61 (2011) (“A municipality’s 26 culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to 27 train.” (citation omitted)). Because there is no genuine issue of material fact regarding the 28 ///// 1 | existence of a municipal policy, defendants are entitled to summary judgment on Mr. King’s 2 | Monell claim. 3 | IV. CONCLUSION 4 The court grants summary judgment with respect to Mr. King’s Monell claim, and 5 | otherwise denies the defense motion. 6 A final pretrial conference is set for November 4, 2022 at 10 a.m. The parties shall meet 7 | and confer and file a joint pretrial statement no later than three weeks prior to the final pretrial 8 | conference. 9 The provisions of Local Rule 281 shall apply with respect to the matters to be included in 10 | the joint pretrial statement. At least one of the attorneys who will conduct the trial for each of the 11 | parties shall attend the final pretrial conference. All motions in /imine must be filed in 12 | conjunction with the joint pretrial statement. In most cases, motions in limine are addressed and 13 | resolved on the morning of the first day of trial. The parties may alert the court at the final 14 | pretrial conference and in their final joint pretrial statement that a particular motion or motions 15 | should be resolved earlier. At the final pretrial conference, the court will set a briefing and 16 | hearing schedule on the motions in /imine as necessary. The parties are reminded that a motion in 17 | Jimine is a pretrial procedural device designed to address the admissibility of evidence. The court 18 | looks with disfavor upon dispositional motions presented at the final pretrial conference or at trial 19 | in the guise of motions in limine. 20 This order resolves ECF No. 19. 21 IT IS SO ORDERED. 22 DATED: September 26, 2022. [\ (] 23 l ti / { q_/ CHIEF NT] ED STATES DISTRICT JUDGE

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