1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ROBERT MANN, SR., et al. No. 2:17-cv-01201 WBS DB 13 Plaintiffs, 14 v. ORDER RE: DEFENDANTS’ AMENDED MOTION TO DISMISS 15 CITY OF SACRAMENTO, et al. 16 Defendants. 17 18 ----oo0oo---- 19 Plaintiffs Robert Mann Sr. (“Robert”), Vern Murphy-Mann 20 (“Vern”), and Deborah Mann (“Deborah”) (collectively, 21 “plaintiffs”) brought this action against defendants City of 22 Sacramento, the Sacramento Police Department, Samuel D. Somers 23 Jr. (“Chief Somers”), John C. Tennis (“Officer Tennis”), and 24 Randy R. Lozoya (“Officer Lozoya”) (collectively, “defendants”), 25 under 42 U.S.C. § 1983, seeking damages arising from the killing 26 of their brother, Joseph Mann (“Joseph”), by Officers Tennis and 27 Lozoya on July 11, 2016.1 (See Compl. (Docket No. 1).)
28 1 Plaintiffs’ original complaint listed two additional 1 Plaintiffs claimed that, by shooting and killing Joseph, Officers 2 Tennis and Lozoya had deprived them of their right of intimate 3 association with their brother under the First and Fourteenth 4 Amendments in violation of 42 U.S.C. § 1983.2 (See generally 5 id.) 6 Defendants moved to dismiss plaintiffs’ complaint for 7 failure to state a claim upon which relief may be granted. (See 8 Docket No. 12); Fed. R. Civ. P. 12(b)(6). On September 19, 2017, 9 the court granted defendants’ motion as to plaintiffs’ § 1983 10 claim for loss of companionship under the Fourteenth Amendment, 11 as the Ninth Circuit has expressly limited such claims to parents 12 and children. (See Docket No. 23); Ward v. City of San Jose, 967 13 F.2d 280, 283-84 (9th Cir. 1991). The court denied defendants’ 14 motion as to plaintiffs’ claim under the First Amendment, 15 however, holding that, under applicable Supreme Court and Ninth 16 Circuit case law, plaintiffs had adequately alleged a § 1983 17 claim for deprivation of their First Amendment right to 18 association. (See Docket No. 23); Bd. of Directors of Rotary 19 Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987); IDK, 20 Inc. v. Clark Cty., 836 F.2d 1185, 1194 (9th Cir. 1988). 21 Defendants appealed to the Ninth Circuit, which issued 22 a memorandum opinion reversing this court’s decision as to 23 siblings, Zachary Mann and William Mann, as plaintiffs. (See 24 Compl. ¶¶ 7-8.) However, the operative complaint no longer includes Zachary and William as plaintiffs. (See First Amended 25 Compl. (“FAC”) (Docket No. 59).)
26 2 Plaintiffs also alleged a claim--not at issue in this 27 Order--for municipal and supervisory liability against the City, the Sacramento Police Department, and Chief Somers. (See FAC 28 ¶¶ 107-112.) 1 plaintiffs’ claims under the First Amendment.3 See Mann v. City 2 of Sacramento, 748 F. App’x 112 (9th Cir. 2018) (“Mann II”). The 3 Ninth Circuit explained that plaintiffs had failed to plead 4 sufficient facts to establish a violation of an “intimate 5 association” right protected under the First or Fourteenth 6 Amendments:
7 Plaintiffs did not allege that their relationships with Joseph involved marriage, 8 child rearing, or cohabitation, as in [Lee v. City of Los Angeles, 250 F.3d 668 (9th 9 Cir. 2001)] or [Keates v. Koile, 883 F.3d 1128 (9th Cir. 2018)]. Nor did they allege 10 specific facts about the ‘objective characteristics’ of their relationships with 11 Joseph to show that they were nonetheless the sort of relationships that ‘warrant 12 constitutional protection.’ 13 Mann II, 748 F. App’x at 115 (quoting Rotary Club, 481 U.S. at 14 545-46). “Moreover,” the court continued, “even if plaintiffs 15 could plead sufficient facts to satisfy the standards for 16 intimate association set forth in Rotary Club, relief would be 17 foreclosed under Ward v. City of San Jose, 967 F.2d 280 (9th Cir. 18 1991).” Id. The court noted that Ward had held that adult, non- 19 cohabitating siblings do not possess a cognizable liberty 20 interest in their brother’s companionship. See id. “Because we 21 analyze the right of intimate association in the same manner 22 regardless whether we characterize it under the First or 23
24 3 The Ninth Circuit noted that, although this court had not “explicitly address qualified immunity,” the Ninth Circuit 25 had “jurisdiction over this interlocutory appeal of the district court’s denial of qualified immunity, Mitchell v. Forsyth, 472 26 U.S. 511, 525 (1985), as well as such issues are ‘inextricably 27 intertwined’ with the qualified immunity issue, Lum v. City of San Joaquin, 584 F. App’x 449, 450-51 (9th Cir. 2014).” Mann II, 28 748 F. App’x at 113. 1 Fourteenth Amendments, Ward necessarily rejected any argument 2 that adult, non-cohabitating siblings enjoy a right to intimate 3 association.” Id. The Ninth Circuit then remanded the case to 4 this court to consider whether to grant plaintiffs leave to amend 5 their complaint. See id. 6 On remand, this court granted plaintiffs leave to 7 amend, and plaintiffs timely filed a First Amended Complaint 8 (“FAC”), adding a number of allegations related to their 9 relationship with Joseph and to Joseph’s living situation in the 10 months preceding his death. (See Docket No. 59.) Defendants 11 again moved to dismiss the complaint, arguing that, even with 12 plaintiffs’ amendments, the complaint still failed to state a 13 claim for relief upon which relief may be granted. (See Docket 14 No. 61); Fed. R. Civ. P. 12(b)(6). On March 13, 2019, the court 15 granted defendants’ motion. (See Docket No. 70.) Based on Mann 16 II’s statement that “even if plaintiffs could plead sufficient 17 facts to satisfy the standards for intimate association set forth 18 in Rotary Club, relief would be foreclosed . . . [because Ward] 19 held that adult, non-cohabitating do not possess a cognizable 20 liberty interest in their brother’s companionship,” Mann II, 748 21 F. App’x at 115 (emphasis added) (internal citations and 22 quotation marks omitted), the court held that the FAC failed to 23 state a § 1983 claim under the First Amendment because it failed 24 to adequately allege that Joseph cohabitated with any of the 25 plaintiffs at the time of his death. (See Docket No. 70.) 26 Plaintiffs then appealed to the Ninth Circuit. (See 27 Docket No. 72.) On April 30, 2020, a new panel issued a 28 memorandum opinion, which again reversed the decision of this 1 court. See Mann v. Sacramento Police Dep’t, 803 F. App’x 142 2 (9th Cir. 2020) (“Mann III”). The Ninth Circuit first noted that 3 Mann II’s statement that Ward would foreclose plaintiffs’ § 1983 4 claim under the First Amendment “even if” they had pled 5 sufficient facts to satisfy Rotary Club was dicta, because Ward 6 neither created a cohabitation requirement nor purported to 7 govern First Amendment claims. See id. at 143 (citing Trent v. 8 Valley Elec. Ass’n, Inc., 195 F.3d 534, 537 (9th Cir. 1999); 9 Ward, 967 F.2d at 284). Rather, Ward had only addressed 10 Fourteenth Amendment intimate-association claims brought by adult 11 siblings. See id. 12 The Ninth Circuit further stated that Mann II had 13 recognized that cohabitation was “one of several objective 14 indicia that courts may consider when assessing whether 15 plaintiffs were deprived of their intimate-association right” 16 under the First Amendment. See id. at 143-44 (citing Rotary 17 Club, 481 U.S. at 545; Keates, 883 F.3d at 1236; Lee, 250 F.3d at 18 685-86; Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th 19 Cir. 1995)). The court remanded the case “for consideration of 20 plaintiffs’ First Amendment claim under the standard set forth in 21 Rotary Club and its progeny.” Id. at 144. 22 On remand, defendants renewed their motion to dismiss 23 the FAC for failure to state a claim0, and the parties submitted 24 updated briefs in light of Mann III.4 (See Defs.’ Am. Mot. to 25
26 4 Officers Lozoya and Tennis filed the motion to dismiss, which defendants City of Sacramento and Chief Somers joined in 27 its entirety. (See Docket No. 93.) Defendants City of Sacramento and Chief Somers also joined the reply brief of 28 Officers Lozoya and Tennis in its entirety. (See Docket No. 96.) 1 Dismiss (“Mot. to Dismiss”) (Docket No. 92); Pls.’ Opp’n (Docket 2 No. 94); Defs.’ Reply (Docket No. 95).) 3 I. Legal Standard 4 Federal Rule of Civil Procedure 12(b)(6) allows for 5 dismissal when the plaintiff’s complaint fails to state a claim 6 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 7 The inquiry before the court is whether, accepting the 8 allegations in the complaint as true and drawing all reasonable 9 inferences in the plaintiff’s favor, the complaint has stated “a 10 claim to relief that is plausible on its face.” Bell Atl. Corp. 11 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard 12 is not akin to a ‘probability requirement,’ but it asks for more 13 than a sheer possibility that a defendant has acted unlawfully.” 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 15 recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Id. Although legal 17 conclusions “can provide the framework of a complaint, they must 18 be supported by factual allegations.” Id. at 679. 19 II. Discussion 20 The court’s discussion of whether plaintiffs have 21 adequately stated a § 1983 claim for deprivation of their First 22 Amendment rights is complicated by the fact that the Mann II and 23 Mann III decisions appear to be plainly contradictory. While 24 Mann II stated that the right of intimate association should be 25 analyzed in the same manner regardless of whether it is 26 characterized under the First or Fourteenth Amendments, and that 27 Ward bars intimate association claims by adult, non-cohabitating 28 siblings, Mann III stated that Ward did not create a cohabitation 1 requirement, and addressed only Fourteenth Amendment association 2 claims, implying that the contours of an intimate association 3 claim may differ depending on which amendment the claim is 4 brought under. 5 Because Mann III was decided more recently, this court 6 will proceed according to the guidance set out in that decision. 7 See Mann III, 803 F. App’x at 144. Mann III did not purport to 8 define exactly how far a claim for intimate association under the 9 First Amendment extends, but the fact that the Ninth Circuit 10 reversed this court’s dismissal of plaintiffs’ claim under the 11 First Amendment (see Docket No. 70) implies that, at least in 12 certain circumstances, the right of siblings to intimately 13 associate falls within the First Amendment’s ambit.5 14 This conclusion is supported by the Supreme Court’s 15 opinion in Rotary Club. There, the Court was tasked with 16 determining whether the relationship between members of the 17 Rotary Club, an international fraternal organization of almost a 18 million members, was sufficiently intimate to warrant protection 19 under the First Amendment. See Rotary Club, 481 U.S. at 539-40. 20 The Court’s analysis began by recognizing that “the First 21 Amendment protects those relationships, including family 22 relationships, that presuppose ‘deep attachments and commitments 23 to the necessarily few other individuals with whom one shares not 24 only a special community of thoughts, experiences, and beliefs 25 but also distinctively personal aspects of one's life.’” Rotary 26
27 5 Were § 1983 claims by siblings categorically barred under the First Amendment, the Ninth Circuit presumably would 28 have affirmed this court’s dismissal of plaintiffs’ claim. 1 Club, 481 U.S. at 545-46 (quoting Roberts v. United States 2 Jaycees, 468 U.S. 609, 622 (1984)). Though the Court noted that 3 it had accorded constitutional protection to relationships 4 “includ[ing] marriage, the begetting and bearing of children, 5 child rearing and education, and cohabitation with relatives,” it 6 indicated that this list was not exhaustive, and even pointed out 7 that it had “not held that constitutional protection is 8 restricted to relationships among family members.” Id. at 545 9 (collecting cases). According to the Court, other relationships, 10 “including family relationships,” may also be protected to the 11 extent that the “objective characteristics” of the relationship 12 demonstrate that it is “sufficiently personal or private to 13 warrant constitutional protection.” Id. at 545-46. The Court 14 listed four factors it would consider in making such a 15 determination: “size, purpose, selectivity, and whether others 16 are excluded from critical aspects of the relationship.” Id. at 17 546 (citing Roberts, 468 U.S. at 620). 18 Applying these factors to Rotary Club members, the 19 Court concluded that the Club chapters’ size (which ranged from 20 20 to 900 members), inclusive and public-facing nature and 21 purpose, and relative lack of selectivity and exclusion weighed 22 against affording constitutional protections. Id. Specifically, 23 the Court noted that the Rotary Club’s Constitution directed 24 local chapters to “keep a flow of prospects coming” to make up 25 for attrition over time, undertake service projects to aid the 26 community and the general public, and to keep membership open to 27 all qualified members in the area. See id. at 546-47. The Court 28 further noted that local chapters’ activities generally occurred 1 in the presence of strangers and in public places. See id. 2 In the wake of Rotary Club, the Ninth Circuit has held 3 that the right to intimate association as guaranteed by the First 4 Amendment extends to parents and children, see Lee v. City of Los 5 Angeles, 250 F.3d 668 (9th Cir. 2001); Keates v. Koile, 883 F.3d 6 1128 (9th Cir. 2018), as well to unrelated, cohabitating 7 roommates, see Fair Housing Council of San Fernando Valley v. 8 Roommate.com, LLC, 666 F.3d 1216, 1221 (9th Cir. 2012) (applying 9 Rotary Club factors: “it’s hard to imagine a relationship more 10 intimate than that between roommates” because the home forms the 11 “center of our private lives”). Other district courts in this 12 circuit have further held that siblings, see Smith v. County of 13 Santa Cruz, No. 17-CV-05095, 2019 WL 2515841, at *12 (N.D. Cal. 14 June 17, 2019), and fiancées, see Graham v. County of Los 15 Angeles, No. CV 10-05059 DDP (Ex), 2011 WL 3754749, at *2 (C.D. 16 Cal. Aug. 25, 2017), have a cognizable liberty interest in 17 intimate association and companionship under the First Amendment. 18 See also Sanchez v. County of Santa Clara, No. 5:18-cv-01871-EJD, 19 2018 WL 3956427, at **8-9 (N.D. Cal. Aug. 17, 2018) (holding that 20 grandparents and grandchildren have a liberty interest in family 21 integrity, without specifying whether this right arises under the 22 First or Fourteenth Amendments, or both). 23 Taken together, these cases show that the frequency and 24 significance of the interactions among parties to the 25 relationship at issue are key factors in determining whether the 26 right to intimate association is protected under the First 27 Amendment. The relationships to which protection has been 28 afforded generally involve interactions that occur on a daily, or 1 almost daily basis, and often involve intensely private 2 exchanges, whether it be because the parties live together, see 3 Fair Housing Council, 666 F.3d at 1221, or because some element 4 of caretaking or custody is present, see, e.g., Sanchez, 2018 WL 5 3956427, at **8-9. 6 As the Supreme Court stated in Smith v. Org. of Foster 7 Families for Equality and Reform, 431 U.S. 816, 844 (1977), a 8 case where the Court suggested (though did not decide) that 9 foster parents and children have a constitutionally-protected 10 liberty interest in their association, “the importance of the 11 familial relationship . . . stems from the emotional attachments 12 that derive from the intimacy of daily association, and from the 13 role it plays in ‘promot(ing) a way of life’ through the 14 instruction of children, as well as from the fact of blood 15 relationship.” 16 Likewise, in Fair Housing Council, the Ninth Circuit 17 reasoned that roommates are entitled to protection under the 18 First Amendment because they have “unfettered access to the home” 19 and thus “learn intimate details most of us prefer to keep 20 private,” “note [their roommates’] comings and goings,” and are 21 “fully exposed to [their roommates’] belongings, activities, 22 habits, proclivities, and way of life.” Fair Housing Council, 23 666 F.3d at 1221. And in Sanchez, the district court held that 24 the plaintiff grandparents had sufficiently alleged a liberty 25 interest in associating with their grandchildren because they 26 “spent a substantial amount of time living with” their 27 grandchildren and had “established a long standing custodial 28 relationship such that they were an existing family unit.” 1 Sanchez, 2018 WL 3956427, at **8-9. 2 A. Analysis of Factors under Rotary Club and its Progeny 3 Applying the factors outlined in Rotary Club and its 4 progeny to the allegations in the FAC, it is clear that 5 plaintiffs’ alleged relationship with Joseph was more intimate 6 and personal than that between members of a large fraternal 7 organization like the Rotary Club. In terms of the first Rotary 8 Club factor, size, each plaintiff’s relationship with his or her 9 brother involved only two people, and was enmeshed within a 10 “tightknit family unit” of five children and two parents. (See 11 FAC ¶ 17.) This is much more akin to relationships that the 12 Ninth Circuit has granted protection under the First Amendment, 13 see, e.g., Lee, 250 F.3d at 685-86 (holding that parent and child 14 have a right to intimately associate under the First Amendment), 15 than the relationship among members of local Rotary Club 16 chapters, which could range in size anywhere from 20 to 900 17 members. See Rotary Club, 481 U.S. at 546. 18 Looking next to selectivity, the Supreme Court held 19 that local Rotary Club chapters were not sufficiently selective 20 because they had instructions to “keep a new flow of prospects 21 coming” to make up for expected member attrition and gradually 22 grow the membership, and to keep the chapter open to all eligible 23 members in the area in order to ensure that the chapter was 24 comprised of a cross-section of different professions and members 25 of the community. See id. By contrast, plaintiffs’ relationship 26 with Joseph was limited by blood. See id.; Smith, 431 U.S. at 27 844 (“the importance of the family relationship . . . stems from 28 the emotional attachments that derive from the intimacy of daily 1 association . . . as well as from the fact of blood relationship 2 (emphasis added)). While plaintiffs allege that they and Joseph 3 shared intimate moments with their parents, or with plaintiffs’ 4 children (Joseph’s nieces and nephews), these shared experiences 5 extended only to other members of plaintiffs’ nuclear family. 6 (See FAC ¶¶ 17-19, 26.) 7 Defendants argue that the relationship between siblings 8 cannot be characterized as “selective” because siblings, unlike 9 spouses, fiancées, or parents, do not choose to form their 10 relationship--that choice is made by their parents, for them. 11 (See Mot. to Dismiss at 12 (citing Rode v. Dellarciprete, 845 12 F.2d 1195, 1204-05 (3d Cir. 1988)). Without “affirmative choice” 13 to form a relationship, defendants argue, there can be no 14 “liberty” interest in intimate association to protect under the 15 First Amendment. (See Defs.’ Reply at 1-3.) 16 While it is true that nobody chooses whom their blood 17 siblings will be, siblings (particularly adult siblings) 18 certainly have a choice in whether they will associate with one 19 another, and how intimate that association will be. Here, 20 plaintiffs’ allegations describe the efforts they and Joseph made 21 to maintain an intimate relationship after they moved out of 22 their childhood home. Between 1986 and approximately 2009, after 23 Joseph moved into his own place, plaintiffs allege that he 24 continued to regularly visit them and play with his nieces and 25 nephews, and that he regularly participated in family get- 26 togethers. (See id. at ¶ 26.) Around 1999, Joseph invited his 27 sister, Vern, to move in and live with him. (See id. at ¶ 27.) 28 Following the death of their mother, in 2011, when 1 Joseph began to exhibit symptoms of mental illness, plaintiffs 2 Robert and Vern each invited Joseph into their homes, and he 3 split his living arrangements between them. (See id. at ¶ 31.) 4 Plaintiffs further allege that they visited Joseph when he would 5 occasionally become hospitalized due to his mental illness, and, 6 on occasions when Joseph would “stay out, at times for several 7 days,” plaintiffs would search for Joseph at places he habitually 8 frequented, and would bring him back to their homes to bathe, 9 rest, and eat. (Id. at ¶¶ 32-35.) 10 These allegations show that, even as plaintiffs began 11 their own families, and even as Joseph’s deteriorating mental 12 condition caused him to become more distant, plaintiffs actively 13 chose to keep Joseph in their lives and engaged in activities 14 emblematic of an intimate sibling relationship. See Santa Cruz, 15 2019 WL 2515841, at *12 (noting that high-school-age siblings 16 were entitled to liberty interest in each other’s companionship 17 in part because they continued to visit each other after moving 18 into separate homes); Sanchez, 2018 WL 3956427, at **8-9 (holding 19 that grandparents had protected liberty interest in associating 20 with grandchildren because they had chosen to “spen[d] a 21 substantial amount of time living” together and had “established 22 a long standing custodial relationship such that they were an 23 existing family unit”). The allegations in the FAC therefore 24 demonstrate that the relationship between plaintiffs and Joseph 25 was sufficiently selective to warrant protection under the Rotary 26 Club standard. See 481 U.S. at 546. 27 By the same token, plaintiffs and their brother also 28 “excluded [others] from critical aspects of the relationship” by 1 sharing intimate experiences in a way that only siblings or 2 parents and children can. See Rotary Club, 481 U.S. at 546. 3 Plaintiffs allege that they “grew up” with Joseph “as a tightknit 4 family unit that lived, ate, played, and prayed together.” (See 5 FAC ¶ 17); Smith, 431 U.S. at 844. The family attended church 6 regularly and had dinner together, “during which they routinely 7 discussed personal and religious matters.” (See FAC at ¶ 18.) 8 Plaintiffs shared the same family home with Joseph until 1980. 9 (Id. at ¶ 26.) 10 Between 1986 and approximately 2009, Joseph regularly 11 visited plaintiffs to play with their sons and daughters (his 12 nieces and nephews) and participated in family get-togethers 13 approximately once a week. (Id. at ¶ 26-28.) After Joseph began 14 experiencing symptoms of drug addiction in approximately 2015, 15 plaintiffs allege that Robert encouraged and assisted Joseph in 16 enrolling in Alcoholics Anonymous (“AA”) and Narcotics Anonymous 17 (“NA”), and accompanied Joseph to meetings. (See id. at ¶ 31.) 18 Plaintiffs also visited Joseph when he would become hospitalized, 19 supported him financially, and fed and housed him from 2015 up 20 until his death. (See id. at ¶ 31.) These allegations reflect a 21 relationship between plaintiffs and Joseph in which each sibling 22 shared “not only a special community of thoughts, experiences, 23 and beliefs but also distinctly personal aspects” of their lives. 24 See Rotary Club, 481 U.S. at 546. 25 Next, the “purpose” of the plaintiffs’ relationship 26 with their brother (to the extent a sibling relationship has a 27 “purpose”) further supports a finding that the relationship is 28 entitled to constitutional protection under the First Amendment. 1 See Rotary Club, 481 U.S. at 546. Unlike the relationship 2 between Rotary Club members, which largely existed to “produce an 3 inclusive, not exclusive, membership,” undertake service projects 4 to aid the community and the general public, “raise the standards 5 of the members’ businesses and professions,” and to “improve 6 international relations,” Rotary Club, 481 U.S. at 546, 7 plaintiffs allege that their relationship with their brother 8 served as an “intimate human relationship[]” that necessarily 9 entailed “deep attachments and commitments.” (See FAC ¶ 104.) 10 In support of this conclusion, plaintiffs detail the 11 efforts they and Joseph made to remain in each others’ lives as 12 they reached adulthood and Joseph began to struggle with mental 13 illness and drug addiction. (See FAC ¶¶ 26-35.) For instance, 14 as already discussed above, plaintiffs invited Joseph to family 15 get-togethers approximately once per week, cultivated a 16 relationship between Joseph and his nieces and nephews, attended 17 NA and AA meetings with him, and “were in constant contact with 18 [him] and made sure he knew he was welcome in their homes.” (See 19 id.) 20 Plaintiffs’ relationship with Joseph also served a 21 caretaking purpose. Plaintiffs allege that Joseph struggled with 22 symptoms arising from mental illness and drug addiction in the 23 later years of his life. (See FAC ¶¶ 30-31.) To help care for 24 Joseph, Robert alleges that he encouraged and assisted Joseph in 25 enrolling in AA and NA, and accompanied him to meetings. (See 26 id.) Plaintiffs also visited Joseph when he would become 27 hospitalized, supported him financially, fed him, and 28 intermittently housed him up until his death. (See id. at ¶ 33.) 1 Notably, plaintiffs state that they would search for Joseph at 2 places he habitually frequented when he went missing for extended 3 periods of time, and would bring him back to their homes, where 4 he often stayed, to bathe, rest, and eat, indicating that 5 plaintiffs played a crucial role in looking out for Joseph’s 6 well-being as he struggled with the symptoms of mental illness 7 and addiction. (See id. at ¶ 35.) 8 While these allegations do not establish that 9 plaintiffs’ relationship with Joseph was “custodial,” the care 10 plaintiffs allege they provided for Joseph reflects the type of 11 intimate care and affection that exists among “existing family 12 unit[s].” See Sanchez, 2018 WL 3956427, at **8-9. The “purpose” 13 prong of the Rotary Club standard therefore weighs in favor of 14 granting Joseph and plaintiffs’ relationship protection under the 15 First Amendment. See Rotary Club, 481 U.S. at 546. 16 Finally, the frequency and significance of the alleged 17 interactions between Joseph and plaintiffs indicate that their 18 relationship is entitled to protection. Plaintiffs allege that 19 they were in “constant contact” with Joseph, “made sure that he 20 knew he was welcome in their homes,” and provided care to him in 21 the months leading up to his death by allowing him into the most 22 private areas of their lives. (See FAC ¶¶ 29-35.) Plaintiffs 23 state that Joseph left belongings in their homes, indicating that 24 he expected to return upon his departure. (See id.) 25 Though, as this court has previously noted, these 26 allegations do not suffice to establish that Joseph “cohabitated” 27 with plaintiffs because they do not establish that Joseph had 28 independent access to plaintiffs’ homes, contributed to the 1 maintenance of one or more of their homes, or that he rarely 2 slept outside of their homes, (see Docket No. 70), Mann III made 3 clear that, while cohabitation is relevant to a relationship’s 4 status under the First Amendment, it is not necessary to 5 establish constitutional protection. See Mann III, 803 F. App’x 6 at 143. Even though plaintiffs cannot establish that they formed 7 an intimate relationship with Joseph by virtue of being 8 roommates, their allegations do evidence a relationship that was 9 similar to that of cohabitants in other ways. See Fair Housing 10 Council, 666 F.3d at 1221. For example, the allegations show 11 that both plaintiffs and Joseph were exposed to intimate details 12 about each other which most of us would prefer to keep private, 13 as well as each other’s “belongings, activities, habits, 14 proclivities, and way of life,” as plaintiffs attended AA and NA 15 meetings with Joseph and brought him back to eat, bathe, and 16 sleep in their homes after being out on the street. See id. 17 In sum, taking the allegations in the FAC as true and 18 construing them in their most favorable light, as the court must 19 do on a motion to dismiss, see Twombly, 550 U.S. 544, 570, the 20 court finds that plaintiffs have satisfied the factors set forth 21 in Rotary Club and its progeny, and have therefore shown that 22 their interactions with Joseph were sufficiently personal and 23 intimate to warrant protection under the First Amendment. See 24 Rotary Club, 481 U.S. at 545; Fair Housing Council, 666 F.3d at 25 1221. 26 B. Direct and Substantial Interference with Plaintiffs’ Rights 27 28 Defendants present an additional argument that, even if 1 the court finds that plaintiffs have a right to intimate 2 association with Joseph under the First Amendment, their claim 3 must nevertheless fail because the allegations in the FAC do not 4 show that the officers acted “directly” against their 5 relationship with Joseph. (See Mot. to Dismiss at 15.) In other 6 words, defendants argue that plaintiffs claims must fail, 7 regardless of the outcome of the court’s Rotary Club analysis, 8 because plaintiffs do not allege that Officers Tennis and Lozoya 9 were aware of Joseph’s sibling relationships when they shot and 10 killed him, and thus the Officers could not have acted with the 11 intent to deprive plaintiffs of their relationship with Joseph. 12 (See id.) 13 Defendants cite to Zablocki v. Redhail, 434 U.S. 374 14 (1978) for the proposition that government actors cannot be 15 liable for incidentally burdening a plaintiff’s substantial 16 right; rather, the government actor must “directly and 17 substantially” interfere with that right. (See Mot. to Dismiss 18 at 10.) In Zablocki, the Supreme Court held that a Wisconsin 19 statute, which prevented certain classes of Wisconsin residents 20 from marrying, violated those residents fundamental right to 21 marry under the due process clause of the Fourteenth Amendment. 22 See Zablocki, 434 U.S. at 387. In its opinion, the Court noted 23 that it was not preventing states from imposing regulations which 24 incidentally affected the right to marry or established 25 reasonable prerequisites--only regulations that “directly and 26 substantially” interfered with the right to marry were 27 prohibited. See id. 28 However, Zablocki says nothing about what state of mind 1 a plaintiff must allege an officer had to maintain a § 1983 claim 2 that the officer deprived him of a relationship protected by the 3 First Amendment. The Ninth Circuit has specifically rejected the 4 imposition of a requirement that an officer act with the 5 “specific intent” to deprive the plaintiff of his rights § 1983 6 claims brought under the Fourteenth Amendment. See Smith v. City 7 of Fontana, 818 F.2d 1411, 1420 n.12 (9th Cir. 1987) (“[T]he 8 plaintiffs can state a section 1983 claim without further 9 alleging that the official was trying to break up their family.” 10 (citing Kelson v. City of Springfield, 767 F.2d 651 (9th Cir. 11 1985)); Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 12 1992) (rejecting need to impose plaintiffs to “prove a wrongful 13 intent directed specifically at them” in § 1983 claim for 14 deprivation of relationship protected by the 14th Amendment). 15 Further, none of the cases in which the Ninth Circuit 16 has recognized the existence of a § 1983 claim for deprivation of 17 an intimate association right under the First Amendment has 18 required that plaintiffs allege that officers specifically 19 intended to deprive them of the protected relationship, or allege 20 that the officers acted “directly” against that relationship. 21 See Keates, 883 F.3d at 1236; Lee, 250 F.3d at 685-86. 22 If the Ninth Circuit intended for the lack of intent to 23 deprive plaintiffs of their constitutional rights to be an 24 independent bar to stating a § 1983 claim under the First 25 Amendment, there would have been no reason for the Mann III panel 26 to remand this case for further considerations under Rotary Club, 27 see Mann III, 803 F. App’x at 144, as the FAC contains no 28 allegations that the Officers intended to deprive the plaintiffs 1 of their constitutional rights, or that they even knew that 2 Joseph had siblings when they shot and killed him. The court 3 therefore finds defendants’ argument that plaintiffs’ claim under 4 the First Amendment must fail because they have not alleged a 5 specific intent to deprive them of their constitutional rights to 6 be without merit. 7 Accordingly, the court finds that plaintiffs have 8 adequately pled a § 1983 claim for deprivation of their right to 9 intimate association under the First Amendment, and will deny 10 defendants’ motion to dismiss on that basis. 11 C. Qualified Immunity 12 Defendants further argue that, even if plaintiffs have 13 alleged sufficient facts to state a claim under the First 14 Amendment, their claim must be dismissed because Officers Tennis 15 and Lozoya are entitled to qualified immunity from suit. (See 16 Mot. to Dismiss at 16-20.) To determine whether an officer is 17 entitled to qualified immunity, the court considers: (1) whether 18 there has been a violation of a constitutional right; and (2) 19 whether the defendants’ conduct violated “clearly established” 20 federal law. Sharp v. Cty. of Orange, 871 F.3d 901, 909 (9th 21 Cir. 2016) (citing Kirkpatrick v. Cty. Of Washoe, 843 F.3d 784, 22 788 (9th Cir. 2016)). 23 The clearly established law inquiry “is an objective 24 one that compares the factual circumstances faced by the 25 defendant to the factual circumstances of prior cases to 26 determine whether the decisions in the earlier cases would have 27 made clear to the defendant that his conduct violated the law.” 28 See Sandoval v. Cty. of San Diego, 985 F.3d 657, 674 (9th Cir. 1 2021). In other words, the court asks whether “it would be clear 2 to a reasonable officer that his conduct was unlawful in the 3 situation he confronted.” Lacey v. Maricopa Cty., 693 F.3d 896, 4 915 (9th Cir. 2012); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 5 1866 (2017) (“Whether qualified immunity can be invoked turns on 6 the ‘objective legal reasonableness’ of the official's acts.” 7 (citation omitted)). 8 The only argument defendants offer as to why Officers 9 Tennis and Lozoya are entitled to qualified immunity is that the 10 plaintiffs did not possess a “clearly established” right to 11 intimate association with Joseph under the First Amendment at the 12 time of Joseph’s death.6 (See Mot. to Dismiss at 16-20.) 13 Defendants cite to several out-of-circuit cases where courts have 14 granted qualified immunity on the ground that the plaintiffs did 15 not have a clearly established right to intimate association 16 under the First Amendment at the time of the conduct that gave 17 rise to the suit. See, e.g., Starnes v. Butler Cty. Court of 18 Common Pleas, 50th Judicial Dist., 971 F.3d 416 (3d Cir. 2020); 19 Gaines v. Wardynski, 871 F.3d 1203 (11th Cir. 2017). 20 All of those cases upon which defendants rely involved 21 situations in which the plaintiffs bringing § 1983 claims were 22 also the individuals against whom the defendant’s conduct had 23 been directed. For instance, Starnes involved a probation 24 officer with the Butler County Court of Common Pleas who alleged 25 that the court’s presiding judge had taken adverse employment 26 6 Defendants do not argue that they are entitled to 27 qualified immunity under the first prong of the qualified immunity analysis in either their motion to dismiss or reply. 28 (See Mot. to Dismiss at 16-20; Defs.’ Reply at 6-10.) 1 actions against her in retaliation for her associating with her 2 boyfriend. See Starnes, 971 F.3d at 422-23. Those cases say 3 nothing about whether the proper focus of the court’s inquiry in 4 a wrongful death action should be on the constitutional rights of 5 the plaintiff or of the decedent. 6 In none of those cases were the plaintiffs surviving 7 family members of individuals killed by police officers. In such 8 cases, the Ninth Circuit has indicated that the proper focus of 9 the court’s inquiry is on the constitutional rights of the 10 decedent, not those of the decedent’s potential relatives, such 11 as parents or siblings. See Porter v. Osborn, 546 F.3d 1131, 12 1140 (9th Cir. 2008) (“Thus, whether [defendant] is entitled to 13 qualified immunity . . . turns on whether [plaintiffs] can 14 present facts to the district court that would justify a jury 15 finding that [defendant] acted with an unconstitutional purpose 16 to harm [the decedent].”). 17 The relevant question for the court under the second 18 prong of the qualified immunity analysis here is therefore 19 whether a reasonable officer would have known that his conduct 20 violated Joseph’s clearly established rights, not those of the 21 plaintiffs. See Kaur v. City of Lodi, 263 F. Supp. 3d 947 (E.D. 22 Cal. 2017) (Nunley, J.) (rejecting officers’ assertion that they 23 were entitled to qualified immunity from survivors’ First 24 Amendment intimate association claims under the second prong 25 because “qualified immunity does not give an officer who engages 26 in conduct that was patently unconstitutional when committed a 27 get-out-of-liability-free card because there is ‘some lingering 28 ambiguity’ as to which constitutional provision ‘applies in this nen ee nnn nee en een nnn nnn nnn nen nn enn nnn nnn enn eo OI ND
1 precise context,’ or whether he has managed to violate several 2 constitutional provisions at once” (citing Harris v. City of 3 | Circleville, 583 F.3d 356, 367 (6th Cir. 2009)). 4 Since controlling Ninth Circuit precedent indicates 5 that the court must assess whether the Officers’ conduct violated 6 Joseph’s clearly established constitutional rights, and 7 defendants do not argue that a reasonable officer would have 8 thought that Officers Tennis and Lozoya’s actions were lawful as 9 to Joseph under the second prong, (see Defs.’ Reply at 10 (Docket 10 No. 95) (“this motion does not assert a reasonable officer could 11 have deemed the shooting lawful”), the Officers’ request for 12 | qualified immunity must be denied. See George v. Morris, 736 13 F.3d 829, 837 (9th Cir. 2013) (affirming district court’s denial 14 of qualified immunity where district court did not analyze the 15 second gualified immunity prong, because defendants had not 16 | argued that they were entitled to qualified immunity on that 17 | basis). 18 IT IS THEREFORE ORDERED that defendants’ motion to 19 dismiss (Docket No. 92) be, and the same hereby is, DENIED. 20 || Dated: February 24, 2021 tleom ah. A. be—~ 21 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 23