Koistra v. Cnty. of San Diego
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Opinion
Hon. Gonzalo P. Curiel, United States District Judge
Before the Court is Defendants' motion for summary judgment. (Dkt. No. 52.) Plaintiff filed a reply and Defendants replied. (Dkt. No. 58, 60.) Based on a careful review of the briefs, the supporting documentation and the applicable law, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment.
Background
The original complaint was filed on October 12, 2016. (Dkt. No. 1.) After the Court granted Plaintiffs' ex parte application to amend the complaint, (Dkt. No. 25), on August 16, 2017, Plaintiffs Trina Koistra ("Koistra") and Larry Ford ("Ford") filed an amended complaint ("FAC") against the County of San Diego ("County") and Sheriff's Deputy Plutarco Vail ("Deputy Vail") (collectively "Defendants"). (Dkt. No. 26.) On October 19, 2017, in ruling on Defendants' motion to dismiss the FAC, the Court granted in part and denied in part the motion with leave to amend. (Dkt. Nos. 34, 42.) Plaintiffs Koistra and Ford filed a second amended complaint ("SAC") on October 26, 2017.1 (Dkt. No. 43, SAC.) Defendants *1071move for summary judgment solely on Koistra's causes of action and include the following:
1. First Cause of Action-
2. Third Cause of Action- Monell 2 liability for the County's unconstitutional custom, practice or policy;
3. Fourth Cause of Action-violation of California Civil Code section 52.1 ;
4. Fifth Cause of Action-false arrest/false imprisonment;
5. Sixth Cause of Action-battery;
6. Seventh Cause of Action-assault;
7. Eighth Cause of Action-intentional infliction of emotional distress; and
8. Ninth Cause of Action-negligence.
(Dkt. No. 43, SAC.)
Factual Background
The San Diego Regional Fugitive Task Force ("FTF") is a multi-agency task force that pursues persons wanted for violent crimes and significant narcotic offenses in the San Diego Area. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 1.) On December 22, 2015, the Superior Court of California issued a bench warrant for the arrest of Rory Fay ("Fay") for violating the terms of his probation. (Id., No. 2.) FTF was assigned to search for Fay, who was identified as a person of interest in connection with the homicide of Bren Fisher that occurred around January 7, 2016. (Id., Nos. 3, 4.) Based on database searches, FTF detectives learned that "Mr. Fay had an active no-bail felony warrant for his arrest for possession of a controlled substance while armed, was on probation as a post release offender, had two prior felony strikes, had a psychiatric inmate history, and had a history of drug and steroid abuse." (Id., No. 5.)
Using cell phone tracking technology, the FTF learned that Fay's cell phone was in the mobile home residence located at 250 La Cresta Heights Road, No. 3, El Cajon, California 92021 which is where Plaintiff Koistra lived. (Id., Nos. 6, 7.) FTF also learned that Koistra was a convicted felon with drug and theft history, was subject to arrest for violating her probation and waived her Fourth Amendment right as a condition of her probation. (Id., No. 8.)
From 2008 to April 2, 2016, Deputy Plutarco Vail was a canine handler with the County of San Diego Sheriff's Department ("Sheriff's Department"). (Id., No. 9.) As a canine handler, Deputy Vail was regularly called upon to participate in hot calls and high risk searches for wanted and dangerous felons. (Id., No. 10.)
On the evening of January 8, 2016, Fay helped Koistra get a ride home from a nail salon with a man unknown to her. (Id., No. 13.) Fay was an acquaintance of Koistra who had met her once or twice about a year ago. (Id., No. 12; Dkt. No. 52-2, Ds' NOL, Ex. F, Koistra Depo. at 26:12-20; 29:4-24.) Koistra, Fay and this unknown man drove to Koistra's home and spent about one hour in her bedroom looking at decorations. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 14.) Koistra does not remember if she, Rory Fay or this unknown man used any drugs that evening. (Id., No. 15.) The unknown man left but Fay spent the night at Koistra's residence with her permission. (Id., No. 16.)
On the morning of January 9, 2016, Deputy Vail, and his canine Hank, were called upon to assist the FTF in the search for Fay. (Id., No. 17.) That morning, the FTF
*1072briefed Deputy Vail informing him that Fay was a wanted felon, a person of interest in a recent homicide, had two prior felony strikes, was considered to be armed and dangerous, and had a history of drug abuse and had a psychiatric inmate history. (Id., No. 18.) Immediately after a briefing, Deputy Vail looked Fay up on the Sheriff Department's Jail Inmate Management System and learned that Fay was on parole, was a two-striker, and had numerous arrests for narcotics, firearm possession and acts of violence. (Id., No. 19.) On that morning, Probation Officer Bobbitt informed Deputy Vail that the residence to be searched was the home of Koistra, who was a convicted felon with drug and theft history, was on probation, had waived her Fourth Amendment rights as a condition of that probation, and if found during the search, was subject to arrest for violating the terms of her probation. (Id., No. 20.) When the FTF team and Deputy Vail arrived on the scene, a perimeter had been set up around the residence. (Id., No. 21.) A helicopter from the Department's Aerial Support to Regional Enforcement Agencies ("ASTREA") was flying overhead to assist the FTF to monitor perimeter positions and provide aerial surveillance in the event Fay fled out of the perimeter. (Id., No. 22.) There were approximately five law enforcement vehicles, plus approximately ten deputies and/or police officers on scene at that time. (Id., No. 23.)
Standing approximately fifteen feet from the front door, Sergeant Christopher Davis ("Sergeant Davis") of the FTF used a handheld Public Announcement ("PA") system to make the following announcements:
"Sheriff's department on a probation check, exit the trailer now"
"If anyone is inside, you need to exit now"
"Sheriff's department we have a canine, if you do not come out you will be bit."
(Id., No. 24.) These commands were repeated for about ten to fifteen minutes. (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 5;
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Hon. Gonzalo P. Curiel, United States District Judge
Before the Court is Defendants' motion for summary judgment. (Dkt. No. 52.) Plaintiff filed a reply and Defendants replied. (Dkt. No. 58, 60.) Based on a careful review of the briefs, the supporting documentation and the applicable law, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment.
Background
The original complaint was filed on October 12, 2016. (Dkt. No. 1.) After the Court granted Plaintiffs' ex parte application to amend the complaint, (Dkt. No. 25), on August 16, 2017, Plaintiffs Trina Koistra ("Koistra") and Larry Ford ("Ford") filed an amended complaint ("FAC") against the County of San Diego ("County") and Sheriff's Deputy Plutarco Vail ("Deputy Vail") (collectively "Defendants"). (Dkt. No. 26.) On October 19, 2017, in ruling on Defendants' motion to dismiss the FAC, the Court granted in part and denied in part the motion with leave to amend. (Dkt. Nos. 34, 42.) Plaintiffs Koistra and Ford filed a second amended complaint ("SAC") on October 26, 2017.1 (Dkt. No. 43, SAC.) Defendants *1071move for summary judgment solely on Koistra's causes of action and include the following:
1. First Cause of Action-
2. Third Cause of Action- Monell 2 liability for the County's unconstitutional custom, practice or policy;
3. Fourth Cause of Action-violation of California Civil Code section 52.1 ;
4. Fifth Cause of Action-false arrest/false imprisonment;
5. Sixth Cause of Action-battery;
6. Seventh Cause of Action-assault;
7. Eighth Cause of Action-intentional infliction of emotional distress; and
8. Ninth Cause of Action-negligence.
(Dkt. No. 43, SAC.)
Factual Background
The San Diego Regional Fugitive Task Force ("FTF") is a multi-agency task force that pursues persons wanted for violent crimes and significant narcotic offenses in the San Diego Area. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 1.) On December 22, 2015, the Superior Court of California issued a bench warrant for the arrest of Rory Fay ("Fay") for violating the terms of his probation. (Id., No. 2.) FTF was assigned to search for Fay, who was identified as a person of interest in connection with the homicide of Bren Fisher that occurred around January 7, 2016. (Id., Nos. 3, 4.) Based on database searches, FTF detectives learned that "Mr. Fay had an active no-bail felony warrant for his arrest for possession of a controlled substance while armed, was on probation as a post release offender, had two prior felony strikes, had a psychiatric inmate history, and had a history of drug and steroid abuse." (Id., No. 5.)
Using cell phone tracking technology, the FTF learned that Fay's cell phone was in the mobile home residence located at 250 La Cresta Heights Road, No. 3, El Cajon, California 92021 which is where Plaintiff Koistra lived. (Id., Nos. 6, 7.) FTF also learned that Koistra was a convicted felon with drug and theft history, was subject to arrest for violating her probation and waived her Fourth Amendment right as a condition of her probation. (Id., No. 8.)
From 2008 to April 2, 2016, Deputy Plutarco Vail was a canine handler with the County of San Diego Sheriff's Department ("Sheriff's Department"). (Id., No. 9.) As a canine handler, Deputy Vail was regularly called upon to participate in hot calls and high risk searches for wanted and dangerous felons. (Id., No. 10.)
On the evening of January 8, 2016, Fay helped Koistra get a ride home from a nail salon with a man unknown to her. (Id., No. 13.) Fay was an acquaintance of Koistra who had met her once or twice about a year ago. (Id., No. 12; Dkt. No. 52-2, Ds' NOL, Ex. F, Koistra Depo. at 26:12-20; 29:4-24.) Koistra, Fay and this unknown man drove to Koistra's home and spent about one hour in her bedroom looking at decorations. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 14.) Koistra does not remember if she, Rory Fay or this unknown man used any drugs that evening. (Id., No. 15.) The unknown man left but Fay spent the night at Koistra's residence with her permission. (Id., No. 16.)
On the morning of January 9, 2016, Deputy Vail, and his canine Hank, were called upon to assist the FTF in the search for Fay. (Id., No. 17.) That morning, the FTF
*1072briefed Deputy Vail informing him that Fay was a wanted felon, a person of interest in a recent homicide, had two prior felony strikes, was considered to be armed and dangerous, and had a history of drug abuse and had a psychiatric inmate history. (Id., No. 18.) Immediately after a briefing, Deputy Vail looked Fay up on the Sheriff Department's Jail Inmate Management System and learned that Fay was on parole, was a two-striker, and had numerous arrests for narcotics, firearm possession and acts of violence. (Id., No. 19.) On that morning, Probation Officer Bobbitt informed Deputy Vail that the residence to be searched was the home of Koistra, who was a convicted felon with drug and theft history, was on probation, had waived her Fourth Amendment rights as a condition of that probation, and if found during the search, was subject to arrest for violating the terms of her probation. (Id., No. 20.) When the FTF team and Deputy Vail arrived on the scene, a perimeter had been set up around the residence. (Id., No. 21.) A helicopter from the Department's Aerial Support to Regional Enforcement Agencies ("ASTREA") was flying overhead to assist the FTF to monitor perimeter positions and provide aerial surveillance in the event Fay fled out of the perimeter. (Id., No. 22.) There were approximately five law enforcement vehicles, plus approximately ten deputies and/or police officers on scene at that time. (Id., No. 23.)
Standing approximately fifteen feet from the front door, Sergeant Christopher Davis ("Sergeant Davis") of the FTF used a handheld Public Announcement ("PA") system to make the following announcements:
"Sheriff's department on a probation check, exit the trailer now"
"If anyone is inside, you need to exit now"
"Sheriff's department we have a canine, if you do not come out you will be bit."
(Id., No. 24.) These commands were repeated for about ten to fifteen minutes. (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 5;
After Sergeant Davis's announcements, Larry Ford, Koistra's boyfriend, voluntarily exited the front door of residence. (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 6;
On the day of the incident, Koistra was awoken by the sound of a helicopter flying overhead and when she looked out her living room window, she saw more than ten police officers surrounding her house. (Dkt. No. 58-1, P's Response to Ds' SSUF, Nos. 29, 30.) Koistra believed the officers were there for her because she had violated the terms of her probation. (Id., No. 31.) She went to hide in the closet of her mother's bedroom. (Id., No. 32.)
A team of five officers, including Deputy Perata, Deputy Vail, and his canine, lined up in a single file at the front door of the residence with the intent to enter and search for Fay. (Id., No. 33.) While standing at the front door of the residence, with the front door open, Deputy Perata made multiple loud verbal commands such as "Sheriff's department with a canine, come out or you will be bit." (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 7;
The FTF entry team methodically cleared the house. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 38.) During the search, Deputy Vail held Hank by his collar. (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 8.) Deputies Perata and Vail proceeded to one of the bedrooms where Georgia Koistra, Kostra's mother, was standing with a walker. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 40.) The television in Georgia's bedroom was on at a very high volume and it appeared that Georgia had difficulty hearing. (Id., No. 41.) Deputy Perata yelled commands to her to exit and because that did not work, he made motions with his hands instructing Georgia to exit the bedroom which she did and was escorted out by another member of the entry team. (Id., Nos. 42, 44.) Koistra could hear the officers talk to her mother while hiding in the closet. (Id., No. 43.)
The parties' recitation of the facts dramatically diverge at this point. According to Defendants, while standing at the threshold of the bedroom door, Deputy Vail made two loud verbal commands of "Sheriff's department with a dog, come out or you will be bit." (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 10;
At that point, Deputy Vail released Hank's collar and gave him a command to search. (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 10.) Hank went to the closet, stuck his head in, which was partially open, but could not enter because of the clutter. (Id. ) Officer Vail went to the closet, slid the door open and Hank lunged inside. (Id. ) There was substantial clutter and clothing that prevented him from seeing Hank's head. (Id. ) Deputy Vail moved forward and pulled the clothing away from Hank and then saw him making contact with someone who was squatting down and hiding under a blanket in the far rear corner of the closet. (Id. ) That person did not make any noise but then he heard a female voice say "ahhh." (Id. ) Deputy Vail removed the blanket and saw it was a female. (Id. ) As Koistra was attempting to *1074stand up, it forced Hank onto his hind legs. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 56.)
Once Deputy Vail realized she was not Fay, he removed Hank from his contact. (Dkt. No. 52-2, Ds' NOL, Ex. A, Vail Decl. ¶ 11.) Deputy Vail states that Hank had contact with Koistra for about 15 seconds or less. (Id. ) Because Fay had not yet been discovered, it was important to quickly remove Hank from his contact because Fay could use this encounter to ambush the officers. (Id. ) Koistra was handcuffed and removed from the vicinity. (Id. ) After the incident, Deputy Vail was interviewed and he stated that Hank's bite lasted about 30 seconds.4 (Dkt. No. 58-2, Peacock Decl., Ex. F at 71.)
Koistra testified that when she heard the helicopters above, she thought the officers were there for her probation violation. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo. at 69:11-13; 71:17-19.) She then went to hide in the closet of her mother's room where the TV was very loud. (Id. at 73:16-19; 75:7-18.) She described herself as sitting down behind a chair halfway in the closet and her feet, not her legs, were hanging out behind the chair. (Id. at 73:24-74:1; 74:17-19; Dkt. No. 52-2, Ds' NOL, Ex. F, Koistra Depo. at 76:14-18.) Her mom's closet has two sliding closet doors and one was open because it was stuck. (Dkt. No. 52-2, Ex. F, Koistra Depo. at 74:11-16.) While she was in the closet, her mother was on her bed. (Id. at 75:23-25.) If someone is standing in the bedroom door of her mother's room, the person would not be able to see her in the closet. (Id. at 76:19-22.) Koistra vaguely recalls that while she was in the closet, the police officers were talking to her mother before taking her outside the bedroom. (Id. at 77:1-12.) Koistra stated she did not hear any of the commands. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo. at 71:20-25.)
Afterwards, an officer came to the bedroom door and told her to come out. (Dkt. No. 52-2, Ex. F, Koistra Depo at 77:15-16.) While in a sitting position, she responded by putting her arms up and said, "What's going on. I'm unarmed" and she noticed the officer had a "SWAT gun" in his hand. (Id. at 77:16-23; Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo. at 78:18-25.) At the time, the TV was still on, and she did not see or hear a dog and did not hear whether the officer said he had a dog. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo. at 78:5-10.)
Seconds after she put her arms up and said "I'm unarmed", the dog came and bit her left finger. (Id. at 79:11-12.) Then the dog bit her left hand "all the way through." (Id. at 79:15-16.) She did not hear the officer say anything to the dog and he was not doing anything. (Id. at 79:24-80:1; 80:2-15.) The dog also bit her on her left arm, mouth, both sides of her face, the back of her head, and broke her jaw. (Id. at 80:21-81:6.) The dog also began to pull her by her mouth with his teeth and dragged her out of the bedroom into the living room for a distance of about twelve feet. (Id. at 81:20-21; 88:6-89:2.) She did not hear any commands from any of the officers while she was in the bedroom. (Id. at 89:3-6.) When she was in the living room, the officers yelled a command at the dog and he bit her again on the mouth right in the jaw with his tooth in her mouth. (Id. at 89:7-16.) After that bite, the officer physically grabbed the dog by his head. (Id. at 89:17-25.)
Koistra testified she was in shock and in and out of consciousness during the encounter with Hank. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 58.) She also *1075testified that she does not remember how long her encounter with Hank lasted because she was in shock but guessed it was a matter of seconds. (Dkt. No. 52-2, Ds' NOL, Ex. F, Koistra Depo. at 81:9-18; 85:25-86:6; 111:25-112:12.) Emergency medical services were requested for Koistra about ten minutes later. (Dkt. No. 58-2, Peacock Decl., Ex. F at 71.)
Koistra was removed from the vicinity by another deputy while Deputies Vail and Perata proceeded to the only remaining bedroom in the residence left to be cleared. (Dkt. No. 58-1, P's Response to Ds' SSUF, No. 61.) In the last bedroom, Hank found and bit Fay who was hiding under the bed. (Id., No. 62.) After some resistance, the deputies were able to wrestle Fay onto his stomach and get him handcuffed. (Id., No. 63.) Fay was arrested pursuant to the outstanding bench warrant. (Id., No. 64.) Fay was later charged, pled guilty, convicted, and sentenced to 25 years to life for first degree murder for the death of Bren Fisher. (Id., No. 65.)
Koistra was arrested for violating Penal Code sections 1203.2(a) (violation of probation), 32 (harboring a felon) and 148 (delaying/resisting an officer). (Id., No. 66.) Koistra later admitted and was convicted of violating the terms of her probation. (Id., No. 67.) As a result of that conviction, Trina Koistra was sentenced to 270 days in jail and her probation extended another year. (Id., No. 68.)
A. Request for Judicial Notice
Defendants filed a request for judicial notice of state court criminal filings and include an appearance on a warrant against Koistra dated January 21, 2016, a felony complaint against Fay filed on January 19, 2016, a plea of guilty by Fay filed on February 27, 2017, Koistra's probation hearing/sentencing held on July 31, 2013, an ex parte bench warrant in the Fay state criminal case, and an abstract of judgment filed October 3, 2017 against Fay. (Dkt. No. 52-3.) Plaintiff did not file an opposition to the request.
Under Federal Rule of Evidence 201(b), a district court may take notice of facts not subject to reasonable dispute that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b) ; see also Lee v. City of Los Angeles,
B. Legal Standard on Motion for Summary Judgment
Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett,
The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp.,
Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex, 477 U.S. at 324,
C. First Cause of Action- 42 U.S.C. § 1983 -Excessive Force
In the SAC, Koistra alleges an excessive force claim in violation of her Fourth Amendment right against Deputy Vail. (Dkt. No. 43, SAC ¶¶ 51-54.) Specifically, Koistra asserts that (1) the deployment of a canine was unreasonable under the circumstances and (2) the continued and prolonged use of the canine to bite her for 30 seconds after she had surrendered was unreasonable. (Dkt. No. 58 at 15-18.5 ) Defendants argue that Deputy Vail's use of force on Koistra was reasonable under the facts of the case and did not violate the Fourth Amendment. Plaintiff responds that a resolution of this issue is a question of fact to be presented to a jury.
Section 1983 provides plaintiffs with a cause of action when a person acting under the color of state law deprives them of any federal constitutional right.
An excessive force claim in the course of a law enforcement's "seizure" is analyzed under the Fourth Amendment's "objective reasonableness" standard.6 Graham v. Connor,
*1077The reasonableness of a seizure is determined by balancing the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place,
1. Type of Force Used
First, as to the type and amount of force used, the Court looks to the factual circumstances. Lowry,
In Smith v. City of Hemet,394 F.3d 689 , 701-02 (9th Cir. 2005) (en banc), we held that the use of a police dog constituted excessive force where the officers sicced the dog on the plaintiff three times, including once after he had already been pinned down, and then pepper sprayed his open wounds. Similarly, in Chew [v. Gates], we concluded that "the force used to arrest [the plaintiff] was severe" because the dog bit the plaintiff three times, dragged him between four and ten feet, and "nearly severed" his arm. 27 F.3d at 1441. On the other hand, in Miller v. Clark County, we held that the use of force, although considerable and serious, was nonetheless reasonable and did not rise to the level of "deadly force," even though the dog apprehended a fleeing suspect with a bite that lasted between forty-five and sixty seconds, "shredded" the plaintiff's muscles, and reached the bone. 340 F.3d at 961-66.
Lowry,
In viewing the facts in the light most favorable to Koistra, the canine bit into her left finger, left hand, left arm, face, mouth and skull for about thirty seconds even though she surrendered by showing herself, putting her hands up and saying "What's going on? I'm unarmed." She suffered a broken jaw and bites to her arms, hands and face. In addition, the canine with his teeth, dragged Koistra by her mouth from the bedroom into the living room for about twelve feet. She was hospitalized for about three or four days, underwent three surgeries for her broken jaw, and suffered facial lacerations and stitches on her face, lacerations and stitches or staples on her left forearm and finger, right finger injury and injury to her skull. (Dkt. No. 58-2, Peacock Decl., Ex. D, Koistra Depo. at 101:9-102:25; 104:1-6.) At the hospital, a tooth was found in her mouth. (Id. at 101:8.)
The Court concludes the use of force in this case was severe. See Miller v. Clark Cnty.,
*1078Chew v. Gates,
2. Government's Interest in Use of Force
Next, the government's interest in the force used is determined by assessing (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape. Glenn,
The first factor to consider is the severity of the crime at issue. Here, the officers were at the house searching for Fay who had two prior felony strikes, was considered to be armed and dangerous, had a history of drug abuse, had a psychiatric inmate history, had an active no-bail felony warrant, and was wanted in connection with a recent homicide. This factor strongly favors the County. See Lowry,
The next factor considers whether the suspect posed an immediate threat to the safety of the officers or others. Here, Fay was a wanted two-strike felon, was considered armed and dangerous with a history of drug abuse and psychiatric treatment and was a person of interest in connection with a recent homicide. Fay did not come out when the FTF officers announced themselves outside. The officers did not know if he was armed and he was hiding inside the house. Therefore, Fay posed an immediate threat to the officers' safety because he could have ambushed the officers. See Lowry,
An additional important consideration in evaluating law enforcement's interest in the use of force is "whether officers gave a warning before employing the force. Glenn,
Finally, by hiding, Fay and Koistra were passively resisting arrest. Passive resistance can be considered on the third factor of the government interest analysis. See Lowry,
The Court also considers whether less intrusive means were available before resorting to the release of the canine. Plaintiff asserts that Deputy Vail could have waited longer before releasing the canine, could have directed commands to the closet area once he was alerted someone was in that area or could have immediately removed the canine from Koistra but instead allowed the attack to go on for about 30 seconds and encouraged the canine, or the County could have used canines who are trained to "find and bark", not "find and bite." In assessing alternatives, "officers 'are not required to use the least intrusive degree of force possible.' " Forrester v. City of San Diego,
As found above, repeated and sustained warnings were given and, therefore, waiting longer before releasing the canine was not an unexhausted alternative. As to the alternative of "find and bark", Plaintiff has failed to provide any evidence regarding the effectiveness of this alternative technique. Moreover, "find and bark" would have required Deputy Vail to expose himself to an attack by a person of interest in a homicide investigation who was considered armed and dangerous and had ignored repeated commands to come out. These conceivable alternatives offer little *1080to counterbalance against the County's interest in the use of canine force.
The remaining alternative offered is that Deputy Vail should have immediately removed the canine and should not have allowed the attack to go on for about 30 seconds. This assertion has less to do with alternatives than it does gauging "the severity of the intrusion on the individual's Fourth Amendment rights by evaluating 'the type and amount of force inflicted.' " Espinosa v. City & Cnty. of S.F.,
3. Balance Between the Gravity of the Intrusion and Need for that Intrusion
Finally, the Court balances the severity of the intrusion with the government's interest. The Ninth Circuit has observed that characterizing the quantum of force used with regard to the use of a police dog depends on the specific factual circumstances. Lowry,
In this case, Koistra alleges that it was unreasonable for the County to employ canines who were trained to "bite and hold" persons who may be encountered where the canine cannot distinguish whether that person is a child, disabled or dangerous. However, the objective reasonableness of a seizure is determined in the light of the facts and circumstances confronting the police officers. Graham,
The remaining question is whether the continued use of the canine following Koistra's alleged surrender was reasonable. Koistra maintains it was unreasonable where she had surrendered, and Deputy Vail, realizing Koistra was not the dangerous suspect being sought, did not immediately command the canine to stop but instead let the canine bite her on the finger, arms, face, mouth, and skull for about 30 seconds and permitted the canine to drag her 12 feet by her mouth. After this occurred, Deputy Vail yelled a command to the dog and the dog bit her again in her jaw. Then Deputy Vail physically removed the canine from Koistra. Moreover, the severity of Koistra's injuries creates an issue of fact whether she suffered an unnecessary, prolonged attack by the canine. If the trier of fact accepts Koistra's account, the use of the canine following her surrender constitutes a severe intrusion on Koistra's Fourth Amendment rights which outweighs the governmental interest in the continued use of force.
*1081"Because [the excessive force inquiry] nearly always requires a jury to sift through factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Santos v. Gates,
D. Qualified Immunity
Defendant Vail asserts the affirmative defense of qualified immunity applies to him. Plaintiff opposes. Because the Court granted summary judgment on the excessive force claim on the initial deployment of the canine, the Court only addresses whether Deputy Vail is entitled to qualified immunity concerning the continued "bite and hold" of the canine once Koistra surrendered.
Government officials who perform discretionary functions generally are entitled to qualified immunity from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
When the facts are disputed, in analyzing qualified immunity, the Court assumes "the version of the material facts asserted by the non-moving party" and "draw all reasonable inferences in favor of the non-moving party." Mattos v. Agarano,
1. Whether the Facts Alleged Show Deputy Vail's Conduct Violated a Constitutional Right
Under the first prong, "the court determines whether the facts alleged, construed in the light most favorable to the injured party, establish the violation of a constitutional right." Dunn v. Castro,
2. Whether the Right was Clearly Established
Defendants argue that they are not aware of any controlling precedent existing at the time of the search that would have put Deputy Vail on notice that his actions were a clear violation of Koistra's constitutional rights. Plaintiff responds that preexisting law gave Deputy Vail more than fair warning that the force he used was unlawful.
Public officials are immune from a section 1983 suit unless they have "violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." City and Cnty. of San Francisco, --- U.S. ----,
A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards,
On the second prong, the Court looks at whether the right was clearly established prior to January 8, 2016, the date of the incident, such that a reasonable officer would have known that continued and prolonged use of a police canine to effectuate a seizure, when the victim or suspect has surrendered by having her arms up in the air and permitting the continued seizure by the canine for 30 seconds which also included allowing the canine to drag the victim by her mouth for a distance of 12 feet, constitutes a Fourth Amendment violation of excessive force.
*1083In the Court's order on the motion to dismiss, it concluded the law was clearly established that a reasonable officer in Deputy Vail's position would have "fair warning" that his conduct violated the Fourth Amendment relying on Mendoza v. Block,
As a general matter, the use of police canines to search for and apprehend fleeing or concealed suspects is long-standing and widespread, and is lawful. Chew,
Meanwhile, in Watkins, the Ninth Circuit, relying on Mendoza, held that it is clearly established that excessive duration of the dog bite and the encouragement of a continuation of the attack could constitute excessive force in violation of the Fourth Amendment. Watkins v. City of Oakland,
In Chew, the Ninth Circuit affirmed the district court's grant of qualified immunity as to the individual defendants, including the two Sergeants who trained police dogs for the City, and the supervisor in charge of the K-9 unit because the law was not clearly established. 27 F.3d at 1446. In the case, Chew was stopped for a traffic violation and he subsequently fled on foot and hid in a scrapyard. Id. at 1436. The officers learned that Chew had three outstanding warrants for his arrest and called for assistance, including an officer and his canine, and set up a perimeter around the scrapyard. Id. The canine handling officer unleashed the canine two hours after Chew had fled to the yard, and the canine found Chew crouching between two metal bins. Id. Chew claims that once he became aware of the canine's presence, he tried to surrender and yelled at the officers to call off the dog. Id. The canine handler was not within sight of the canine and did not immediately respond to Chew's request. Id. The canine bit Chew several times and *1084then seized him causing severe lacerations on his left side and left forearm. Id. The canine handler went to trial and the jury found in favor of Chew. Id. The district court granted summary judgment as to the other individual defendants based on qualified immunity. Id. On appeal, the Ninth Circuit addressed the qualified immunity question as to the two Sergeants who trained the city's canines and the supervisor of the K-9 unit. The Ninth Circuit distinguished its case from the clearly established law in Mendoza asserting that Mendoza held it is clearly established law that when a deputy allows a canine to seize a suspect who has fully surrendered and is under control, such conduct is unlawful. Id. at 1448-49. In Chew, the Ninth Circuit determined that the issue was whether "it was clearly established that it was unlawful to use police dogs to search for and apprehend concealed suspects by biting and seizing them." Id. at 1449. Based on the longstanding official policy of the use of police canines in many police departments across the country, the Ninth Circuit held it was not clearly established and the individual defendants were entitled to qualified immunity Id.
In this case, Defendants fail to identify the "clearly established" proposition of law involved in the case but, rather, summarily argue that they are unaware of any cases that would have put Deputy Vail on notice of the illegality of his actions, and in their reply, fail to address Plaintiff's argument that the law giving notice was clearly established by Mendoza and Watkins. Meanwhile, in her response, Plaintiff characterizes the salient issues as whether it was clearly established that releasing a canine on a non-violent person and allowing the attack to continue while she was on the ground violated the Fourth Amendment. (Dkt. No. 58 at 21-22.)
The Court has already ruled that the release of the canine was reasonable and therefore does not require qualified immunity analysis. As to the prolonged use of canine force, Mendoza and Watkins provided notice that a canine officer cannot continue to use canine force against someone, like Koistra, who had surrendered by putting her arms up and asserted she was unarmed after she heard Deputy Vail tell her to come out. At that point, it was clearly established and a reasonable officer would have known that the continued seizure by a police canine after Koistra surrendered for an additional 30 seconds was unlawful.
Accordingly, the Court concludes that Deputy Vail is not entitled to a qualified immunity defense on the continued and prolonged use of the "bite and hold" by the canine after Koistra surrendered, and DENIES summary judgment on this basis.
E. Third Cause of Action- Monell Claim
The SAC alleges that it is the custom, practice and policy of the San Diego Sheriff's Department that when a canine is given the order to "search", the canine will bite anyone that the canine encounters irrespective of whether the person is a suspect, a victim, a child, a disabled person and whether that person poses a threat to anyone. (Dkt. No. 43, SAC ¶ 66.) This custom, practice and policy is an alleged violation of the Fourth Amendment because it encourages, permits, and ratifies the use of serious and deadly force upon an individual without considering the Graham factors. (Id. ¶ 67.)
Defendant argues there is no evidence of any express County policy that directed Deputy Vail's alleged unconstitutional conduct.7 Moreover, even if there was an express *1085policy, her claim would still be barred because the Ninth Circuit has held that the use of canines to seize concealed suspects is a long-standing practice and is constitutional. See Chew,
Cities, counties and other local government entities are subject to claims under
A "policy" is a "deliberate choice to follow a course of action...made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Fogel v. Collins,
First the Court considers whether Plaintiff suffered a constitutional injury. As discussed above, there are material facts in dispute on whether the prolonged and extended use of a canine following Koistra's surrender was reasonable.
Next, Plaintiff asserts that the County has a "bite and hold" policy and presented the deposition transcript of Jacob Pavlenko, the person most knowledgeable for the County of San Diego. (Dkt. No. 58-2, Peacock Decl., Ex. B, Pavlenko Depo. at 22:2-8.) Pavlenko testified that Sheriff's officers are trained on when to release a canine to *1086search for a suspect according to Section 4.4 of the policy and procedures. (Id. at 22:9-18.) The canines are trained to locate human odor and bite and do not differentiate between good or bad guys. (Id. at 24:10-23.) Deputy Vail testified that when a canine is given the search command, he is taught to bite and hold and is not trained to distinguish whether the person is a child. (Dkt. No. 58-2, Peacock Decl., Ex. A, Vail Depo. at 62:19-24.) In reply, Defendants argue that Plaintiff has presented no evidentiary support that the County has an official policy. She has not presented the written policy, and only cites to Jacob Pavlenko but does not describe who he is and when the policy was adopted and by whom.
While Plaintiff's evidence concerning a policy is scarce as she cites solely to a few sentences in the deposition testimony of Jacob Pavlenko who is the County's person most knowledgeable, in viewing the fact in the light most favorable to Koistra, Pavlenko's testimony reveals a written official canine policy as he references "Section 4.4" of those policy and procedures.8
Lastly, under the Monell doctrine, Koistra may recover from the County if she demonstrates that the County's "bite and hold" policy "causes" an injury where it is the "moving force" behind the constitutional violation. Monell,
Koistra argues that the County's "bite and hold" policy was the moving force of her injuries because "had the County not used canine's (sic) who bite the first person they encounter, Ms. Koistra would have likely not been injured at all." (Dkt. No. 58 at 24.) However, this is insufficient to show that there is "direct causal link" between the policy and the injuries incurred. In this case, the Court has found that initial use of the canine under the "bite and hold" policy was justified because the officers were attempting to apprehend a two-striker felon who was considered armed and dangerous and refused to submit to commands to submit to arrest. It was only after Deputy Vail continued to permit the canine to bite and hold Koistra after she had surrendered that canine force became unreasonable. Plaintiff has failed to demonstrate a County policy authorizing the continued use of the "bite and hold" where the suspect has surrendered. In this case, the "moving force" behind the constitutional deprivation was a failure to reevaluate the need for canine force once the circumstances no longer justified it.
As a result, the Court finds Koistra has failed to prove that the "bite and hold policy" was the "moving force" of her injuries. Accordingly, the Court GRANTS Defendants' motion for summary judgment on the Monell cause of action.
F. State Law Claims
Plaintiff also alleges state law claims for violation of *1087California Civil Code section 52.1, false arrest, battery, assault, intentional infliction of emotional distress and negligence. (Dkt. No. 43, SAC.)
Defendants argue that the state law claims are barred because Deputy Vail's conduct was privileged under California Government Code section 820.2. Koistra opposes arguing that Deputy Vail is not entitled to section 820.2 immunity because he did not act reasonably during his encounter with her.
Section 820.2 immunity protects a public employee's exercise of discretion. See Cal. Gov't Code 820.2 ("a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."). A determination whether section 820.2 privilege applies requires a finding that Deputy Vail's conduct was objectively reasonable. See Blankenhorn v. City of Orange,
Because there is an issue of fact whether Deputy Vail acted reasonably in exercising force upon Koistra once she surrendered, he is not entitled to summary judgment the remaining state law claims on the basis that he is immune from liability under section 820.2. However, she is entitled to summary judgment on these state law claims based on the initial deployment of the canine.
Defendants also contend that the battery claim fails because Deputy Vail's conduct was reasonable under the circumstances and that section 52.1 does not apply because Deputy Vail did not interfere with her constitutional rights. Plaintiff disputes both arguments contending that her Fourth Amendment rights were violated.
To assert a claim for battery against a police officer, and a violation of section 52.19 , Plaintiff must prove that the officer used unreasonable force. See Edson v. City ofAnaheim,
Defendants further contend that the false arrest claim fails because she admitted violating her probation and was subject to arrest. Plaintiff does not dispute this issue. Defendants reply that Plaintiff has waived this claim. See Jenkins, 398 F.3d at 1095 n.4 (the plaintiff "abandoned her other two claims by not raising them in opposition to the County's motion for summary judgment.").
*1088California Penal Code section 847 provides that a peace officer shall have no liability for false arrest or false imprisonment arising out of an arrest that was lawful or the officer had reasonable cause to believe that the arrest was lawful.
Lastly, the SAC also alleges the County is vicariously liable for state law claims of violation of section 52.1, battery, assault, intentional infliction of emotional distress and negligence. (Dkt. No. 43 at 12-17.) California Government Code section 815.2 provides that a public entity may be vicariously liable for injuries proximately caused by an act or omission of an employee within the scope of his employment.
Defendants summarily claim that since Deputy Vail is immune from liability, the claims against the County also necessarily fail. Plaintiff disagrees. "Under California law, the county's immunity depends upon whether the police officers are immune." Robinson,
G. Punitive Damages
Defendants argue Plaintiff is not entitled to punitive damages because there is no evidence of evil motive or intent, or reckless or callous indifference to the constitutional rights of Koistra. Plaintiff argues that the manner in which Deputy Vail used the canine was reckless and callously indifferent to her Fourth Amendment right to be free from excessive force when after she surrendered, he allowed the canine to continue to bite her for 30 seconds during which he allowed the canine to drag her, by her mouth, for about 12 feet.
Punitive damages are permissible in an action under § 1983 when the defendant's conduct is "motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade,
H. Plaintiff's Evidentiary Objections
Plaintiff filed evidentiary objections to Defendants' evidence in support of their motion for summary judgment. (Dkt. No. 58-4.) Defendants oppose. The Court notes the objections. To the extent that the evidence is proper under the Federal Rules of Evidence, the Court considered the evidence.
*1089To the extent that the evidence is not proper, the Court did not consider it.
Conclusion
Based on the above, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment. Specifically, the Court GRANTS summary judgment on the first (excessive force), fourth (violation of section 52.1 ), sixth (battery), seventh (assault), eighth (intentional infliction of emotional distress) and ninth (negligence) causes of actions as it concerns the initial deployment of the canine and DENIES summary judgment on these same causes of action concerning the continued use of the canine after Koistra had surrendered. The Court also GRANTS summary judgment on the third cause of action based on Monell and the fifth cause of action for false arrest. The hearing set for April 20, 2018 shall be vacated.
IT IS SO ORDERED.
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310 F. Supp. 3d 1066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koistra-v-cnty-of-san-diego-casd-2018.