White v. Sacramento Police Dept.

Opinion

1 2 3 4 5 6 7 10 11 MEGAN WHITE; JERONIMO AGUILAR; ) Case No. 2:21-CV-02211-JAM-SCR LOREN WAYNE KIDD; LYRIC NASH; ) 12 NICOLLETTE JONES; and ODETTE ) ZAPATA; ) COURT’S FINDINGS OF FACT AND 13 ) CONCLUSIONS OF LAW Plaintiffs, ) 14 ) v. ) 15 ) SACRAMENTO POLICE DEPARTMENT; ) 16 THE CITY OF SACRAMENTO; and ) DANIEL HAHN; ) 17 ) Defendants. ) 18 20 Plaintiffs Megan White, Jeronimo Aguilar, Loren Wayne Kidd, 21 Lyric Nash, Nicollette Jones and Odette Zapata (“Plaintiffs”) are 22 six self-described racial justice protestors who participated in 23 vigils, rallies and demonstrations that took place in Sacramento on 24 May 29, May 30, May 31 and June 1, 2020. The protests were in 25 response to the May 25, 2020, killing of George Floyd by 26 Minneapolis, Minnesota police officer Derek Chauvin. Plaintiffs 27 and hundreds of other demonstrators took to the streets of 28 Sacramento calling for police accountability. These racial justice 1 protests sometimes lasted as long as fourteen hours, beginning 2 around noon and ending around 2 a.m. They took place at multiple 3 sites around Sacramento including police headquarters on Freeport 4 Boulevard, 12th Street and the entrance to Highway 99, the area 5 around the State Capitol, Cesar Chavez Park on 10th Street, the 6 Sacramento County Main Jail on 6th and I Streets, the entrance to 7 Highway 5 near Old Sacramento, and midtown Sacramento on J Street 8 between 19th and 21st Streets. 9 The Sacramento Police Department (“SPD” or “Defendant”) was 10 the primary law enforcement agency assigned to monitor and control 11 the demonstrations. SPD at times received assistance from the 12 Sacramento County Sheriff’s Department, the California Highway 13 Patrol and the California National Guard. Plaintiffs contend that 14 SPD responded to Plaintiffs and other protestors with 15 disproportionate, illegal and excessive force. The evidence in 16 this case included Body Worn Camera (“BWC”) footage showing SPD and 17 other law enforcement officers shooting less lethal impact 18 munitions (pepper balls and bean bags), 40MM projectiles, and 19 chemical weapons (tear gas) at the protestors. Plaintiffs claimed 20 that SPD’s use of force and tactics employed during these 21 demonstrations were illegal and excessive. 22 Plaintiffs filed this lawsuit against SPD seeking monetary 23 compensation and permanent injunctive relief for the injuries they 24 sustained during the demonstrations and their loss of civil rights 25 under the First, Fourth and Fourteenth Amendments, the California 26 Ralph Act and the California Bane Act. Plaintiffs claimed that 27 SPD’s customs and practices, as well as its failure to properly 28 train and discipline its police officers, were the moving forces 1 behind the constitutional violations they suffered. SPD denied all 2 of Plaintiffs’ claims and an eight-day bench trial was held before 3 this Court from March 24 to April 3, 2025. 4 Immediately prior to the beginning of the bench trial, the 5 parties informed the Court that they had reached a settlement of 6 Plaintiffs’ monetary claims. As a result of the settlement, the 7 focus of the bench trial was Plaintiffs’ request for permanent 8 injunctive relief.1 At the Court’s request, Plaintiffs filed a 9 Proposed Order Granting Permanent Injunction (ECF No. 132) which 10 Defendants objected to (ECF No. 133) and which the Court utilized 11 as the guidepost for deciding the issues raised by the parties in 12 this action. 13 As discussed in detail below, while the Court finds that 14 Plaintiffs introduced sufficient evidence to satisfy their burden 15 of proof that at least one of their claims succeeds on the merits, 16 they failed to demonstrate that they have standing -- and therefore 17 the Court has jurisdiction –- for permanent injunctive relief. 18 Further, the Court finds that Plaintiffs did not introduce 19 sufficient evidence to satisfy the traditional factors the Court 20 must weigh before granting injunctive relief. Indeed, there was 21 little, or no evidence introduced at trial by Plaintiffs which 22 supported their argument that there is a substantial risk that the 23 harm they suffered during the May 2020 protests will occur going 24 forward. Since these protests in 2020, the evidence shows that the

25 1Plaintiffs’ Amended Complaint (ECF No. 31) included a request for 26 declaratory relief (Id. p. 47) but this prayer for relief was neither mentioned nor raised by Plaintiffs during the trial. While 27 Plaintiffs’ Proposed Findings of Fact and Conclusions of Law discuss the declaratory relief request, this Court’s Order focuses 28 primarily on the issue of Plaintiffs’ prayer for a permanent 1 SPD has made numerous significant modifications and changes to its 2 policies and practices concerning the use of less lethal force 3 during public protests. Plaintiffs did not introduce any evidence 4 of allegedly unconstitutional conduct by SPD during public protests 5 over the past five years from which this Court could infer or 6 conclude that the permanent injunctive relief sought by Plaintiffs 7 was necessary or mandated as a matter of law. 8 In order to grant injunctive relief here, the Plaintiffs were 9 required to show that SPD is engaged in a pervasive pattern of 10 police conduct that flows from an intentional policy or plan on its 11 part. While Plaintiffs’ evidence demonstrated that SPD’s policies, 12 practices and lack of training was a moving force behind 13 Plaintiffs’ injuries in May 2020, these past wrongs do not in 14 themselves amount to a real and immediate threat of injury 15 requiring Court intervention at this time. Case law clearly 16 counsels caution with respect to federal intervention in state law 17 enforcement matters. Plaintiffs’ evidence did not prove that they 18 face a realistic threat from future applications of SPD’s current 19 policies and practices regarding the use of less lethal force 20 during peaceful protests. Without more, this Court, as a matter of 21 law, declines Plaintiffs’ request to enjoin and monitor SPD through 22 the issuance of a permanent injunction. 24 The Protests 25 1. The May 2020 murder of George Floyd in Minneapolis, 26 Minnesota sparked a series of protests throughout Sacramento. 27 2. The protests were aimed at demanding police 28 accountability. 1 3. Sacramento community members found out about the protests 2 through news sources, social media, and word of mouth. 3 4. Officers of the SPD were assigned to and engaged 4 protestors at protest events that took place in the streets of 5 Sacramento between May 29 and June 1, 2020. 6 5. The City of Sacramento received assistance from 7 neighboring law enforcement agencies, including the Sacramento 8 County Sheriff’s Department, the California Highway Patrol, and the 9 California National Guard. 10 6. These mutual aid agencies reported to and were overseen 11 by SPD officials. 12 7. Officers of the SPD deployed tear gas canisters, rubber 13 bullets, bean bag projectiles, pepper balls, and flash bang 14 grenades into areas occupied by protestors at various times between 15 May 29, 2020 and June 1, 2020. 16 8. Aguilar, Zapata, Kidd, and Jones each attended protests 17 on May 29, 2020. 18 9. Protestors marched around downtown and rallied at the 19 Sacramento Main Jail. 20 10. SPD officers shot protestors with rubber bullets and 21 pepper balls. 22 11. Another protest on May 29, 2020 started at Cesar Chavez 23 Park. 24 12. Protestors marched from the park to a location around 25 thirty to fifty yards from an entrance to Highway 99. 26 13. SPD began using batons to hit protestors, including Kidd, 27 who was not engaged in violent behavior at the time he was struck. 28 14. Aguilar arrived at the protest near Highway 99. 1 15. Police began firing pepper balls and chemical weapon 2 cannisters into the crowd. 3 16. Aguilar did not hear an audible warning about the 4 deployment of less lethal munitions. 5 17. Aguilar was shot twice with impact munitions. 6 18. Nash and Jones each attended a protest on May 30, 2020. 7 19. Late in the night and into the early morning of May 31, 8 2020, protestors clashed with police on J street between 20th and 9 21st streets. 10 20. SPD used an overwhelming barrage of tear gas, rubber 11 bullets, beanbags, and pepper bullets. 12 21. Jones approached SPD officers and asked them to stop 13 shooting protestors. 14 22. Later, Jones was shot eleven times with rubber bullets. 15 23. Jones was shot in the knee, right shoulder, and groin. 16 24. As Jones ran away, she was shot in the back, shoulder, 17 legs, buttocks, and hand. 18 25. Jones’ finger was broken in two places. 19 26. At the time she was shot, Jones did not pose a threat to 20 the safety of SPD officers or others. 21 27. Nash, Zapata, and Jones each attended a protest on May 22 31, 2020. 23 28. Nash and Kidd attended a vigil at Cesar Chavez Plaza on 24 June 1, 2020. 25 29. The protestors began marching from the park but were 26 blocked by a police line. 27 30. SPD officers began using less lethal munitions on the 28 protestors. 1 31. Kidd was hit with pepper balls. 2 32. Kidd also was shot in his chest with a large projectile 3 that was either a rubber bullet or a gas cannister. 4 33. As a result of their injuries, Plaintiffs’ intent to 5 protest has been chilled. 6 34. Kidd intends to protest but his willingness and ability 7 has been chilled. 8 35. Nash was traumatized by SPD’s actions and does not 9 protest as frequently. 10 36. White has been completely deterred from protesting. 11 37. Aguilar also has stopped protesting, citing concern about 12 SPD actions. 13 SPD’s Review of Complaints and Uses of Force 14 38. Sacramento General Affairs received over ninety 15 complaints against SPD officers arising from use of force during 16 the protests. 17 39. If an officer had received “significant discipline,” such 18 as “days off,” Chief Hahn would have been the person to approve 19 that discipline. 20 40. No officer received significant discipline as a result of 21 the complaints filed against SPD officers arising from use of force 22 during the protests. 23 41. SPD established the Use of Force Review Board in July 24 2020. 25 42. The Board met monthly to review uses of force and 26 determine whether they were in policy. 27 43. The Professional Standards Unit prepared a spreadsheet of 28 the uses of force over the course of the George Floyd protests. 1 44. The Board accepted the spreadsheet as accurate 2 information that it used as part of its decision-making processes. 3 45. The spreadsheet contained 227 incidences of use of force. 4 46. The Board prepared monthly memoranda summarizing its 5 findings. 6 47. The Board found that the vast majority of uses of force 7 were within policy. 8 48. Some officers whose actions were not within policy 9 received a watch level retraining, meaning that their supervisor 10 would address the situation. 11 49. Watch level retraining is not considered discipline by 13 50. The Board considered the use of force within policy where 14 officers utilized less lethal munitions against protestors who 15 refused to disperse. 16 51. SPD utilizes Blue Teams tracking software to log its 17 officers’ uses of force. 18 52. SPD logged 148 uses of force in Blue Teams. 19 53. 140 of these uses of force were found to be within 20 policy. 21 54. Of the 8 incidents that were not within policy, 5 were 22 remedied by watch level retraining. 23 55. Of the 3 remaining incidents, only 2 were referred to 24 Internal Affairs, and those officers were exonerated. 25 56. As such, of the 148 logged uses of force in Blue Teams, 26 no officer was disciplined. 27 /// 28 /// 1 SPD Policies and Training in 2020 2 57. SPD had two prevailing sources of policy for use of force 3 during the 2020 protests: the Riot and Crowd Control Manual (“Riot 4 Manual”) and General Order (“GO”) 580.02, which governed use of 5 force. 6 58. SPD’s policy governing “Less Lethal Weapon Systems,” GO 7 580.12, required officers to comply with GO 580.02 when using less 8 lethal weapons. 9 59. SPD officers had access to long-range acoustic devices 10 (“LRAD”) mounted on a patrol vehicles that could have been deployed 11 for warnings for the large crowds, but they were not used on May 12 29, 2020, and it is unclear if they were used on other nights. 13 60. SPD’s policy on “Less Lethal” munitions instructed that 14 they were appropriate for “crowd control and civil unrest 15 incidents.” 16 61. The policy also allowed “multiple officers with less 17 lethal weapon systems” to be utilized simultaneously in the same 18 incident. 19 62. SPD’s Chemical Agents Manual made the statement that 20 chemical agents “are generally considered harmless.” 21 63. SPD’s less lethal training made no distinction between 22 deployment of these devices on an individual and deploying it into 23 crowds, despite knowing there was “no way” to ensure accuracy of 24 the weapons when shot into a crowd. 25 64. SPD taught officers that they could use “overwhelming 26 less lethal” as an option for crowd control. 27 65. SPD trained officers on crowd control every other year 28 during a five hour block of instruction, averaging two and a half 1 hours per year. 2 66. SPD did not provide specific training on the use of less 3 lethal munitions in a crowd management context. 4 67. During the George Floyd protests, some SPD officers 5 expressed a lack of knowledge about the operation of less lethal 6 munitions. 7 68. In 2019, the California Department of Justice (“DOJ”) 8 identified various policies, practices, and procedures of the SPD 9 that increased the risk of harm to individuals and recommended that 10 SPD adopt changes and training to address them. 11 69. This 2019 DOJ report highlighted the need for SPD’s Use 12 of Force policy to affirm the importance of proportionality, 13 sanctity of life, and de-escalation. 14 70. Additionally, the California DOJ recommended a standalone 15 policy regarding use of force reporting and investigations in 2019. 16 71. The changes to SPD’s use of force policy, reporting, and 17 investigations recommended by DOJ had not been implemented as of 18 May 30, 2020. 19 72. In a “Phase II” report released in 2020, the California 20 DOJ identified various policies, practices, and procedures of the 21 SPD that increased the risk of harm to individuals and recommended 22 that SPD adopt changes and training to address them. 23 73. The Phase II report recommended the revision of SPD’s use 24 of force policy that permitted officers to use “overwhelming 25 force.” 26 74. In 2020, DOJ found “lapses in SPD’s use of force 27 reporting,” a “lack of thoroughness and completeness [in] nearly 28 one fifth of use of force case files,” and that in 2020, SPD still 1 lacked a standalone policy dedicated to use of force reporting and 2 investigations. 3 75. Dr. Ed Maguire testified that the Use of Force policies 4 in effect at the time of the protests were inconsistent with 5 generally accepted police practices. 6 76. Dr. Maguire testified that the Crowd and Riot Control 7 policy in effect at the time of the protests was inconsistent with 8 generally accepted police practices. 9 77. Dr. Maguire found SPD’s use of force training inadequate 10 or inconsistent with best practices. 11 78. SPD Chief Katherine Lester said that following the 2020 12 protests, it was clear that the department had training failures. 13 Changes in SPD Policy and Training Since 2020 14 79. Since the George Floyd protests, there have been numerous 15 changes to SPD policy and training. 16 80. In 2021, the California legislature enacted Government 17 Code Section 7072, which requires police departments to issue 18 annual reports regarding the use of its military equipment. 19 81. SPD’s less lethal weapons are military equipment for the 20 purposes of this Section. 21 82. In 2022, the California legislature enacted Penal Code 22 Section 13652 which served to restrict circumstances when officers 23 may deploy less lethal munitions. 24 83. This Section restricts the use of these tools when 25 dispersing assemblies, protests, or demonstrations. 26 84. SPD now includes Section 13652 in its policies and 27 training. 28 85. Since 2022, SPD has increased its training given to 1 officers on the use of less lethal munitions. 2 86. SPD now provides specific and separate training for use 3 of less lethal munitions in crowd management scenarios. 4 87. SPD has replaced its Crowd and Riot Control Manual with 5 the First Amendment Manual. 6 88. The First Amendment Manual requires Incident Commander 7 approval for use of chemical agents and kinetic energy projectile 8 in crowd management situations. 9 89. Prior to the 2024 presidential election, SPD conducted a 10 crowd management refresher training for all their specialty units 11 and detectives, who are typically the first group of officers 12 brought in to manage the events 14 A. Success on the Merits 15 To be entitled to a permanent injunction, the party seeking 16 the injunction must actually succeed on the merits. Amoco Prod. 17 Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987). 18 Accordingly, the Court cannot grant an injunction unless it holds 19 that Plaintiffs have prevailed on at least one of their claims. 20 1. Excessive Force 21 “Determining whether the force used to effect a particular 22 seizure is reasonable under the Fourth Amendment requires a 23 careful balancing of the nature and quality of the intrusion on 24 the individual’s Fourth Amendment interests against the 25 countervailing governmental interests at stake.” Graham v. 26 Connor, 490 U.S. 386, 396 (1989). The “facts and circumstances” 27 of each case includes “the severity of the crime at issue, whether 28 the suspect poses an immediate threat to the safety of the 1 officers or others, and whether [the suspect] is actively 2 resisting arrest or attempting to evade arrest by flight.” Id. 3 Courts also consider “the type and amount of force inflicted.” 4 Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001). “The 5 ‘reasonableness’ inquiry in an excessive force case is an 6 objective one: the question is whether the officers’ actions are 7 ‘objectively reasonable’ in light of the facts and circumstances 8 confronting them, without regard to their underlying intent or 9 motivation.” Graham, 490 U.S. at 397. The balancing test 10 mandated by Graham “entails consideration of the totality of the 11 facts and circumstances in the particular case.” Blanford v. 12 Sacramento Co., 406 F.3d 1110, 1115 (9th Cir. 2005) (citing 13 Graham, 490 U.S. at 396). 14 Here, Plaintiffs Jones, Aguilar, Kidd, Nash, and White were 15 harmed by less lethal weapons, including impact munitions, 16 chemical agents, baton strikes, and/or personal body weapons used 17 by SPD at protests. Plaintiffs did not experience this 18 significant force just once. Rather, the evidence shows that SPD 19 used force against Plaintiffs multiple times, sometimes in rapid 20 succession. 21 None of the Plaintiffs were engaged in any significant 22 criminal activity when they were subjected to SPD’s use of less 23 lethal weapons. It is unreasonable to use less lethal force, 24 including impact munitions and chemical agents, against 25 individuals “who were suspected of only minor criminal activity” 26 or who “engaged in passive resistance, at most, by failing to 27 immediately disperse if and when such an order was given.” Nelson 28 v. City of Davis, 685 F.3d 867, 885 (9th Cir. 2012). The fact 1 that a plaintiff “did not commit any chargeable offense, or, at 2 most, a misdemeanor, weighs heavily against the defendants’ use of 3 force.” Id. at 880. 4 Similarly, Defendants offered no evidence that any of the 5 Plaintiffs posed an immediate threat to officer safety at the time 6 force was used against them, and none of the Plaintiffs were 7 evading arrest or engaged in active resistance when they were 8 subjected to SPD’s less lethal force. The mere fact that some 9 Plaintiffs may have remained present after a dispersal order is 10 insufficient to justify Defendants’ uses of force. A desire to 11 disperse crowds quickly does not make the use of force reasonable. 12 See Nelson, 685 F.3d at 880, 882 (rejecting the argument that 13 police’s “use of the pepperball guns was necessary because their 14 prior attempts to disperse the crowd had failed,” and noting that 15 “[a]lthough the officers plainly had an interest in clearing the 16 apartment complex . . . the desire to do so quickly, in the 17 absence of any actual exigency, cannot legitimize the application 18 of force when it is not otherwise justified”). 19 Based on the totality of the circumstances, the Court finds 20 that Plaintiffs’ Fourth Amendment rights were violated by 21 excessive force. Because Plaintiffs sought trial solely for 22 injunctive relief, and because they only need prevail on a single 23 claim to seek such relief, the Court does not consider the merits 24 of Plaintiffs’ remaining claims. 25 2. Monell Liability 26 The Court next determines if the City is liable for 27 Plaintiffs’ constitutional injuries. Plaintiffs can establish 28 liability by showing: (1) the police officers committed the 1 constitutional violations pursuant to a policy or custom; (2) the 2 police officers who violated Plaintiffs’ constitutional rights were 3 not discharged or reprimanded; or (3) the constitutional violations 4 flowed from a failure to train. 5 1. Policy or Custom 6 “Absent a formal governmental policy, [a plaintiff] must show 7 a ‘longstanding practice or custom which constitutes the standard 8 operating procedure of the local government entity.’” Trevino v. 9 Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citation omitted). “The 10 custom must be so ‘persistent and widespread’ that it constitutes a 11 ‘permanent and well settled city policy.’” Id. (citation omitted). 12 “An isolated or sporadic incident cannot form the basis of Monell 13 liability for an improper custom.” Saved Magazine v. Spokane 14 Police Dep’t, 19 F.4th 1193, 1201 (9th Cir. 2021) (cleaned up). 15 But Monell liability can exist based on a series of events over a 16 short period of time. See Menotti v. Seattle, 409 F.3d 1113, 1148 17 (9th Cir. 2005) (“[A] policy may be inferred due to the widespread 18 practices or evidence of repeated constitutional violations” that 19 occurred during protests on a single day). Indeed, in large-scale 20 protests “when the department is executing an organized, 21 department-wide response, one can presume that the police chief was 22 in control of his department, either directing that response 23 himself or—at the very least—ratifying the actions of his 24 subordinates. Therefore, it becomes easier to infer that the 25 repeated conduct of individual police officers is really the 26 conduct of the department, particularly when . . . the officers who 27 used force did not meaningfully deviate from the department’s plan 28 for how to control the crowds.” Martinez v. City of Santa Rosa, 1 499 F.Supp.3d 748, 750 (N.D. Cal. 2020). 2 Plaintiffs’ police practices expert, Dr. Ed Maguire, testified 3 that the Use of Force and Crowd and Riot Control policies in effect 4 at the time of the George Floyd protests were inconsistent with 5 generally accepted police practices. SPD had a policy of using 6 “overwhelming less lethal” during crowd control situations such as 7 protests. Accordingly, by indiscriminately firing less lethal 8 munitions into the crowds, SPD officers who violated Plaintiffs’ 9 constitutional rights were acting pursuant to SPD policy. 10 2. Failure to Discharge or Reprimand 11 “Policy or custom may be inferred if, after the [incident] 12 . . . officials took no steps to reprimand or discharge the guards, 13 or if they otherwise failed to admit the guards’ conduct was in 14 error.” McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986); see 15 also Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“A 16 policy or custom may be found either in an affirmative proclamation 17 of policy or in the failure of an official ‘to take any remedial 18 steps after the violations.’”). 19 SPD did not discipline any officers for the use of less lethal 20 munitions at the protests, nor did they implement any training to 21 address “training failures.” The vast majority of “Less Lethal” 22 weapons deployments during the protests were found to be “within 23 policy.” Because officials did not reprimand the officers who 24 committed the constitutional violations, a policy may be inferred. 25 See McRorie, 795 F.2d at 784. 26 3. Failure to Train 27 “Failure to train may constitute a basis for Monell liability 28 where the failure amounts to deliberate indifference to the rights 1 of those who deal with municipal employees.” Benavidez v. County 2 of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021). “To allege a 3 failure to train, a plaintiff must include sufficient facts to 4 support a reasonable inference: (1) of a constitutional violation; 5 (2) of a municipal training policy that amounts to a deliberate 6 indifference to constitutional rights; and (3) that the 7 constitutional injury would not have resulted if the municipality 8 properly trained their employees.” Id. at 1153–54 (citation 9 omitted). A pattern of similar constitutional violations by 10 untrained employees is ordinarily necessary to demonstrate 11 deliberate indifference for purposes of failure to train.” Connick 12 v. Thompson, 563 U.S. 51, 61 (2011). 13 The evidence revealed that SPD’s training was minimal and 14 incomplete prior to the 2020 protests. It did not provide specific 15 training regarding the use of less lethal weapons in crowd 16 settings. Dr. Maguire found SPD’s use of force training inadequate 17 or inconsistent with best practices. Some officers during the 18 protests expressed that they did not know how to operate less 19 lethal munitions. Even Chief Lester acknowledged that there were 20 training failures leading up to the 2020 protests. SPD’s failure 21 to train amounted to a deliberate indifference, and Plaintiffs’ 22 constitutional injuries would not have occurred if SPD properly 23 trained its officers. 24 The Court finds that Defendants are liable for Plaintiffs’ 25 constitutional violations on the basis of policy or custom, 26 failure to discipline, and failure to train. 27 /// 28 /// 1 B. Injunctive Relief 2 1. Standing 3 A plaintiff who has standing to seek damages does not 4 necessarily have standing to request injunctive relief. Hodgers- 5 Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999). 6 Instead, “a plaintiff must demonstrate standing separately for each 7 form of relief sought.” Mayfield v. United States, 599 F.3d 964, 8 969 (9th Cir. 2010). For injunctive relief, “[a] plaintiff 9 threatened with future injury has standing to sue ‘if the 10 threatened injury is certainly impending, or there is a substantial 11 risk the harm will occur.’” In re Zappos.com, Inc., 888 F.3d 1020, 12 1024 (9th Cir. 2018) (quoting Susan B. Anthony List v. Driehaus, 13 573 U.S. 149, 158 (2014)). “Past exposure to illegal conduct does 14 not in itself show a present case or controversy regarding 15 injunctive relief . . . if unaccompanied by any continuing, present 16 adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 17 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)). 18 Moreover, where a party is seeking injunctive relief against a 19 state agency, there must be “proof that officers within the agency 20 have engaged in a persistent pattern of misconduct.” Thomas v. 21 County of Los Angeles, 978 F.2d 504, 508 (9th Cir. 1992) (citing 22 Allee v. Medrano, 416 U.S. 802, 815–16 (1974). This standard 23 includes “only that conduct ‘which flowed from an intentional, 24 concerted, and indeed conspiratorial effort to deprive [the 25 victims] of their [constitutional] rights.’” Id. (quoting Rizzo v. 26 Goode, 423 U.S. 362, 375 (1976)). 27 Although “past wrongs are evidence bearing on whether there is 28 a real and immediate threat of repeated injury,” O’Shea, 414 U.S. 1 at 496, “past wrongs do not in themselves amount to [a] real and 2 immediate threat of injury necessary to make out a case or 3 controversy.” Lyons, 461 U.S. at 103. Accordingly, to establish 4 this Court’s jurisdiction to grant injunctive relief, Plaintiffs 5 needed to show that there is a “real and immediate threat” of 6 future injury. The Ninth Circuit stated that “the factors that are 7 important in predicting the likelihood of future violations” 8 include “the degree of scienter involved; the isolated or recurrent 9 nature of the infraction; the defendant’s recognition of the 10 wrongful nature of his conduct; the extent to which the defendant’s 11 professional and personal characteristics might enable or tempt him 12 to commit future violations; and the sincerity of any assurances 13 against future violation.” Fed. Election Comm’n v. Furgatch, 869 14 F.2d 1256, 1263 n.5 (9th Cir. 1989). 15 Based on the evidence, or lack thereof, at trial, the Court 16 finds that there is not a significant risk of Plaintiffs’ injuries 17 reoccurring such that permanent injunctive relief is warranted. 18 The George Floyd protests uniquely demanded a large scale response 19 that included mutual aid agencies. Plaintiffs failed to identify 20 a single example since 2020 where SPD has used less lethal 21 munitions in response to a protest that resulted in violations of 22 constitutional law. The Court cannot conclude that there is a 23 real and immediate threat of these harms reoccurring given the 24 complete absence of evidence supporting Plaintiffs’ claim that SPD 25 will unlawfully use less lethal munitions to control protests on 26 the scale of those that occurred in 2020. 27 Even if SPD were to employ less lethal munitions for crowd 28 control purposes in response to significant protests, there have 1 been substantial changes to SPD policy and training such that it 2 is unlikely Plaintiffs’ constitutional rights would be violated 3 again. Since the George Floyd protests, California enacted Penal 4 Code Section 13652. The law states that less lethal munitions may 5 be used for crowd control only “if the use is objectively 6 reasonable to defend against a threat to life or serious bodily 7 injury to any individual . . . or to bring an objectively 8 dangerous and unlawful situation safely and effectively under 9 control.” Cal. Penal Code § 13652(b). Moreover, police may only 10 use less lethal munitions after they have complied with various 11 requirements, including utilizing other de-escalation techniques, 12 providing repeated and audible announcements regarding the intent 13 to use such weapons, giving persons “an objectively reasonable 14 opportunity” to leave, and making an “objectively reasonable 15 effort” to identify persons engaged in violent acts and only 16 target such individuals with less lethal munitions. Id. These 17 post-2020 statutory requirements make a repeat of Plaintiffs’ 18 injuries unlikely, especially because SPD’s policy or custom, as 19 well as their training, now incorporate the demands of Section 20 13652. 21 Also, SPD’s First Amendment Manual requires the Incident 22 Commander to approve the use of less lethal weapons in crowd 23 management situations. California Government Code Section 7072 24 requires SPD to issue an annual report summarizing the use of its 25 military equipment, any complaints received, the results of 26 internal audits, the quantity of each type of military equipment, 27 and whether the department plans to acquire additional equipment. 28 Cal. Gov't Code § 7072. Together, all these changes preclude the 1 Court from finding that there is a substantial risk of Plaintiffs’ 2 constitutional violations reoccurring. 3 Plaintiffs lack standing to seek injunctive relief. Because 4 standing is a threshold issue, the Court need not consider the 5 traditional factors for injunctive relief. Nonetheless, the Court 6 examines these factors below to show that even if Plaintiffs had 7 standing they still would not be entitled to injunctive relief. 8 2. Traditional Factors 9 A plaintiff seeking a permanent injunction must demonstrate: 10 “(1) that it has suffered an irreparable injury; (2) that remedies 11 available at law, such as monetary damages, are inadequate to 12 compensate for that injury; (3) that, considering the balance of 13 hardships between the plaintiff and defendant, a remedy in equity 14 is warranted; and (4) that the public interest would not be 15 disserved by a permanent injunction.” eBay Inc. v. MercExchange, 16 L.L.C., 547 U.S. 388, 391 (2006). Where the government is a 17 party, elements (3) and (4) merge. Drakes Bay Oyster Co. v. 18 Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). The Court considers 19 these elements in turn. 20 First, a plaintiff must show “that it has suffered an 21 irreparable injury.” eBay Inc., 547 U.S. at 391. A 22 constitutional infringement often alone constitutes irreparable 23 harm. Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ. 24 Equity, 950 F.2d 1401, 1412 (9th Cir. 1991). Because Plaintiffs’ 25 constitutional rights were violated, they have suffered an 26 irreparable injury. 27 Second, a plaintiff must demonstrate “that remedies available 28 at law, such as monetary damages, are inadequate to compensate for 1 that injury.” eBay Inc., 547 U.S. at 391. “[C]onstitutional 2 violations cannot be adequately remedied through damages.” 3 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) 4 (citation omitted). Because Plaintiffs suffered constitutional 5 violations, remedies available at law are inadequate to compensate 6 for their injuries. 7 Third, where the government is a party, a plaintiff must show 8 “that, considering the balance of hardships between the plaintiff 9 and defendant, a remedy in equity is warranted” and “that the 10 public interest would not be disserved by a permanent injunction.” 11 eBay Inc., 547 U.S. at 391. “[I]t is always in the public 12 interest to prevent the violation of a party’s constitutional 13 rights.” Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 14 731 (9th Cir. 2022). “In each case, courts must balance the 15 competing claims of injury and must consider the effect on each 16 party of the granting or withholding of the requested relief. In 17 exercising their sound discretion, courts of equity should pay 18 particular regard for the public consequences in employing the 19 extraordinary remedy of injunction.” Winter v. Nat. Res. Def. 20 Council, Inc., 555 U.S. 7, 24 (2008) (cleaned up). 21 Plaintiffs’ proposed permanent injunction is extraordinary. 22 It would prohibit SPD from issuing dispersal orders or making 23 arrests at protests unless there is an “imminent threat of death 24 or serious bodily injury.” ECF No. 132 at 4. It requires SPD to 25 “fully incorporate all recommendations from the California 26 Department of Justice” previously given to the Department. Id. 27 It also grants the Office of Public Safety Accountability “full 28 concurrent investigatory authority over complaints involving SPD 1 misconduct.” Id. The proposed injunction further requires SPD to 2 “amend all policies, guidance and training materials” to reflect 3 these new requirements. Id. There would be significant public 4 consequences in employing this extraordinary relief, as SPD would 5 need to overhaul its policies and training. On the other hand, 6 there is a minimal impact on Plaintiffs of withholding injunctive 7 relief. As explained above, there is not a significant risk of 8 their harm reoccurring. Because of the many changes to SPD 9 policies and training, Plaintiffs are unlikely to experience the 10 same constitutional violations at protests in Sacramento today and 11 in the future. Accordingly, the balance of hardships weighs 12 heavily in Defendants’ favor. See Winter, 555 U.S. at 24. 13 Because Plaintiffs have not satisfied the traditional factors 14 for injunctive relief, they are not entitled to a permanent 15 injunction even if they had demonstrated standing. 16 C. Declaratory Relief 17 Plaintiffs’ “failure to establish a likelihood of future 18 injury similarly renders their claim for declaratory relief 19 unripe.” See Hodgers-Durgin, 199 F.3d at 1044. “A plaintiff 20 threatened with future injury has standing to sue if the threatened 21 injury is certainly impending, or there is a substantial risk that 22 the harm will occur.” McGee v. S-L Snacks Nat’l, 982 F.3d 700, 709 23 (9th Cir. 2020). As explained above, see supra Part III.B, the 24 evidence does not establish a substantial risk of Plaintiffs’ harm 25 reoccurring. As such, Plaintiffs do not have standing for 26 declaratory relief. 28 For the reasons set forth above, the Court concludes as ee nnn en OO IEEE II IE EIEIO OIE IIE IED I IO mE

1 || follows: 2 1. SPD officers violated the Fourth Amendment rights of 3 ||}Plaintiffs by using excessive force. 4 2, Defendants are liable for those constitutional violations 5 |lfon the basis of custom and policy, failure to discipline, and 6 |}failure to train. 7 3. Plaintiffs do not have standing for injunctive relief. 8 4. Plaintiffs do not satisfy the requirements to be entitled 9 |Jto injunctive relief. 10 5. Plaintiffs do not have standing for declaratory relief. 11 Vv. ORDER 12 Given the Court’s findings of fact and conclusions of law, 13 ||Plaintiffs are not entitled to an order granting a permanent 14 }}injunction against Defendants. Judgment on Plaintiffs’ prayer for 15 |]Jinjunctive relief is entered in favor of Defendants. 17 ||DATED: May 19, 2025 18 opens JOHN A. MENDEZ 20 SENIOR UNITED*STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28

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