Azevedo v. City of Fresno et al, No. 1:2009cv00375 - Document 61 (E.D. Cal. 2010)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART Defendants' 26 Motion for Summary Judgment; ORDER DENYING Plaintiff's 32 Motion for Summary Judgment signed by Chief Judge Anthony W. Ishii on 6/7/2010. (Sant Agata, S)
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Azevedo v. City of Fresno et al Doc. 61 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 ) ) Plaintiff, ) v. ) ) CITY OF FRESNO, CITY OF FRESNO ) POLICE DEPARTMENT, OFFICER ) KARR, and DOES 1 through 10, ) inclusive, ) ) Defendants. ) ____________________________________) LAWRENCE AZEVEDO, 1:09-CV-375 AWI DLB ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT (Doc. Nos. 26, 32) 14 15 16 This case arises from the detention and arrest of Plaintiff Lawrence Azevedo by Fresno 17 police officer Defendant Nathan Carr (“Carr”) while Azevedo was staying at a residence on 18 Weldon Avenue. Azevedo has brought suit under 42 U.S.C. § 1983 against Carr and the City of 19 Fresno (“the City”). After dismissal of claims based on the Fourteenth Amendment, Azevedo 20 alleges violations of his Fourth Amendment rights to be free from unreasonable searches and 21 seizures, including excessive force. Azevedo also alleges Monell liability against the City. Both 22 parties move for summary judgment on the issue of Carr’s seizure of Azevedo, including Carr’s 23 entry into the Weldon residence’s front yard. Additionally, Defendants move for summary 24 judgment on Azevedo’s Monell liability claims, while Azevedo moves for sanctions based on the 25 City’s alleged spoliation of evidence. For the reasons that follow, the Court will grant summary 26 judgment in favor of Defendants on Azevedo’s seizure entry and seizure claims, grant and deny 27 summary judgment on various Monell issues, and grant Azevedo a permissive inference jury 28 instruction based on spoliation of evidence by the City. Dockets.Justia.com FACTUAL BACKGROUND1 1 2 At approximately 2:00 a.m. on November 7, 2007, Carr was in a marked police car with 3 his partner, Officer Juan Avila (“Avila”). See DUMF 12; PUMF 1. Both Carr and Avila were in 4 uniform and identifiable as police officers. DUMF 35. The officers observed an illegally parked 5 motorcycle in front of 2105 E. Weldon Avenue (hereinafter, “the Property”). See DUMF 12; 6 PUMF 1. Carr declares he recognized the motorcycle from a prior contact on October 26, 2007. 7 See PUMF 2; DUMF 12. He also recognized the helmet as looking the same as the one on the 8 rider in the prior contact. DUMF 12. 9 Carr informed Avila that he had observed the same motorcycle approximately 12 days 10 earlier in the vicinity, when he pulled behind it, ran the plates and noted the tags were expired by 11 more than one year. DUMF 13. Specifically, on October 26, 2007, while assigned to uniformed 12 patrol duties and driving a marked police vehicle, Carr pulled behind a motorcycle and ran the 13 plates. DUMF 10. The tags were expired in excess of one year. Id. Carr intended to make a 14 traffic stop due to the expired tags. Id. The motorcycle quickly stopped, pulling up on the 15 sidewalk before Carr initiated the stop. Id. Carr was in uniform and immediately exited his 16 vehicle and waved the rider over. Id. The rider looked at Carr and then sped off driving 17 recklessly, jumping the curb, speeding, and failing to stop for stop signs. Id. Fresno Police 18 Department Event Report 07BO520 details the October 26, 2007, event and lists the registered 19 owner of the motorcycle as Alexander Renteria. DUMF 11.2 However, Azevedo was not the 20 21 22 23 24 25 26 27 28 1 “DUMF” refers to Defendants’ undisputed material fact; “PUMF” refers to Plaintiff’s undisputed material facts; “PAUMF” refers to Plaintiff’s additional undisputed material facts. Additionally, the parties make many objections to various pieces of evidence/proposed facts. To the extent that the Court utilizes such evidence/proposed facts, any objections thereto are deemed overruled. 2 Citing page 45, lines 10 to 21 of his deposition testimony, Azevedo contends that this incident never occurred. Those lines, plus testimony into page 46, read: Q: Prior to your arrest . . . on November 7, 2007, do you remember an incident where you were riding the motorcycle, and an officer followed you, and you pulled over and the officer pulled over and got out of his vehicle and then you drove away from the scene? A: No. Q: That never happened? A: Not with me. Not with me. Q: W ho else would have been riding that motorcycle besides you? A: Nobody. So it wasn’t my motorcycle. Mr. Fattahi: I’m going to interpose an objection. Vague as to time. 2 1 driver of the motorcycle on October 26, 2007. See Footnote 2, supra. 2 Looking at the motorcycle and the helmet, Carr recalled that the registration was expired 3 by over a year, and that the driver had evaded his original attempt to initiate a traffic stop. 4 DUMF 14. The license plate of the motorcycle involved in the prior incident matched that of the 5 one parked in front of the Property. DUMF 15. Officer Carr confirmed again that the 6 registration had expired. DUMF 17. He examined the motorcycle and could not locate a VIN 7 number. Id.;3 see also PUMF 4. A tow truck was dispatched to impound the motorcycle since 8 the tags were expired and the VIN could not be located. DUMF 17; see also PUMF 3. 9 Regulations allowed Carr to impound the motorcycle without contacting the owner. PUMF 38. 10 11 Q: A: 12 A: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q: A: W ell, in October of 2007, who else would have been riding that motorcycle besides you? W ell - ..... I don’t even remember that date for number one. But it wasn’t – it wasn’t – I know I wasn’t driving – I didn’t have no altercations with the cops because I always stayed – because I knew the tags were bad, I always, like, didn’t cause attention. I’ve never been – I’ve never had no cops behind me or any of that, because I wouldn’t drive fast, or I wouldn’t do nothing against the law because I knew my tags were bad. So I mean – So you knew you were driving with expired tags? Yes, ma’am. I’m not saying the chase or any kind of officer trying to pull a bike over. I’m just saying it wasn’t mine, so - - Azevedo Depo. 45:10-46:19. Additionally, on the night of November 7, 2007, Azevedo was in possession of a Suzuki motorcycle which he received from Alex Renteria. DUMF 16. Azevedo testified that he could not remember how long he had been riding the motorcycle prior to November 7, 2007. See Azevedo Depo. 38:1-14. Azevedo could not say if he had been riding the motorcycle for a day, a week, or a month. See id. at 38:12-21. The Court is not persuaded that a genuine dispute exists. Once Azevedo was questioned about a particular time frame (October 2007), Azevedo stated that he did not remember that “date”/time frame. Azevedo then stated that the driver was not him. He later appears to state that he is not disputing that an officer attempted to pull a bike over, it just was not his. Additionally, Azevedo does not address the authenticity of the police report dated October 26, 2007. Further, Azevedo has not shown that Carr did not tell Avila that Carr recognized the bike from a previous encounter. Finally, Azevedo could provide no time frame in which he had been riding Renteria’s motorcycle. In other words, Azevedo may well started driving the bike after October 26, 2007. In light of the October 26, 2007, police report, Avila’s testimony of Carr’s conversation with him, Azevedo’s lack of recollection regarding October 2007, and Azevedo’s inability to provide any time frame whatsoever in which he had been riding Renteria’s motorcycle (other than November 7, 2007), the evidence indicates that on October 26, 2007, Carr saw a bike with the same plates as the one in front of the Property, but the driver of that motorcycle was not Azevedo. Azevedo’s testimony, especially his inability to establish any time frame in which he had been riding the motorcycle, is not sufficient to create a genuine disputed issue of material fact regarding the October 26, 2007, encounter. 3 Azevedo disputes this fact by stating that the motorcycle’s VIN was noted on the FPD Vehicle Inventory Report form, dated November 7, 2007. See Fattahi Opp. Dec. Exh. D. However, Defendants rightly point out that there is no indication of how the VIN was found or determined. That another officer, having unknown experience and knowledge and using unknown methods, was later able to locate a VIN does not change the fact that Carr was unable to do so. W ithout evidence that the VIN was easily detectable or sufficiently legible or otherwise “in plain sight,” that another officer located the VIN does not sufficiently contradict that Carr was unable to do so. 3 1 Carr looked up prior attachments for the Property on the patrol car’s computer before 2 exiting the car. See PUMF 5. Carr reviewed an entry from October 9, 2007. PUMF 6. In the 3 upper third portion of the entry it is noted that “resd is vacant.” Fattahi Dec. Exh. H. In the 4 officer’s notes at the bottom of the entry, it was noted that: the Property was rented to a tenant 5 named “Anita Bernal,” it “appears that the resident has not been home,” it “appears that the 6 resident may be out of town or gone.” See PUMF 7; Fattahi Dec. Exh. H. When asked about 7 this entry, Carr testified that “that the owner of the house was reporting the residence was vacant 8 and it appeared the homeowner had moved out.” Carr Depo. 32:2-4. Avila testified that he 9 recalled the entry as indicating that the Property was “possibly vacant.” Avila Depo. 11:15-18. 10 The Property was surrounded by a waist high spiked, wrought iron fence. See PUMF 20; 11 DUMF 26. The fence looks sturdy, but the iron bars appear to be thin and there are significant 12 spaces/gaps between the bars; as such, the fence does not prevent people from seeing the 13 Property and the front yard. See Carr Dec. Exh. D. The iron fence is a modest distance from the 14 house. PUMF 21. The iron fence has two gates, one in front and one on the west side of the 15 house (“west-gate”). See Carr Depo. 38:7-19. Both gates had locking mechanisms. See PUMF 16 24. The front gate is directly across from the house’s front door, and there is a cement pathway 17 that leads from the front gate to the front door. See Carr Dec. Exh. D. The west-gate opened to 18 the backyard and led to the street and to a detached garage. See Carr Depo. 38:9-39:2; Avila 19 Depo. 18:16-19:3. The owner of the Property, Jose Coria (“Coria”), had the iron fence installed 20 for the safety of his family after a man tried to break in. See PUMF 23. Further, there was a 21 wooden fence, which had a wooden gate, that separated the front yard from the backyard. See 22 Carr Depo. 38:23-39:10; PUMF 32. The gate of the wood fence that separated the front yard 23 from the back yard had a reflective sign on it that warned, “BEWARE OF DOG.” PUMF 33. 24 The mailbox was outside of the front fence. PUMF 22. 25 26 On November 7, 2007, the wood gate separating the front yard from the back yard was open, but the west-gate to the street was closed. PUMF 32.4 There was “a lot” of dog waste 27 28 4 DUMF 21 indicates that the west-gate was open, while PUMF 32 indicates that the west-gate was shut. The dispute is immaterial for this order. For ease, the Court will view the west-gate as being closed. 4 1 everywhere outside the house, including the front yard. PUMF 31. The front iron gate was 2 completely closed that night. PUMF 42. Azevedo always kept the gate locked by wrapping a 3 tire chain around it so it could not be pried up.5 PUMF 43. Carr and Avila testified that a metal 4 chain, similar to a “bike chain,” was wrapped or draped around the front gate to prevent the gate 5 from swinging open. See Avila Depo. 21:21-22:14; Carr Depo. 45:17-47:15. Carr testified that 6 the front gate’s lock mechanism did not work. See Carr Depo. 46:22-47:2. 7 As Carr and Avila continued their investigation, they observed that the Property had 8 overgrown vegetation6 and appeared to be vacant. DUMF 21.7 The house’s front metal security 9 screen door was wide open. Id. Although the wood front door appeared closed, PUMF 34, the 10 officers also noticed that the front door appeared significantly damaged with a hole where the 11 doorknob and lock set should have been. DUMF 21. There were newspaper and cloth/curtains 12 covering some of the front windows. Id.; PUMF 35. Several other windows had no coverings. 13 See Carr Depo. 35:21-22; Carr Dec. Exh. D. A low light could be seen through the paper and 14 around the corners of the windows.8 DUMF 21. At this point the officers were concerned that 15 there was a possible burglary or unlawful trespass, in addition to the original 16 concerns about the motorcycle, i.e. the motorcycle may have been stolen. See DUMF 24; 17 18 19 20 21 22 23 24 25 26 27 28 5 Azevedo kept the front gate secured with a chain for his safety, to keep his dog from getting loose, and to keep Coria out. See Coria Depo. 28:10-14; Azevedo Depo. 53:7-19, 54:23-55:1. Azevedo also submits that, every time Coria came to the Property, the front gate was always locked. See PUMF 25. However, Defendants rightly objects that the deposition testimony does not describe how the gate was locked, how often Coria would go to the Property, or even when Coria last went to the Property. The Court will not consider PUMF 25. 6 At his deposition, Carr testified that the “grass was overgrown, it was growing up along the edge fo the house.” Carr Depo. 48:2-7. Azevedo contends that the grass on the lawn was normal, and relies on the picture of the house and on Coria’s testimony that he did not have to pull weeds or large amounts of grass from the yard. However, the photograph of the lawn grass is generally inconclusive, but grass does appear to be growing up the edge of the house. As for Coria’s testimony, he does not say when he trimmed the yard, and he testified that he did not recall how the grass appeared on November 7. In light of the color photograph of the Property, the Court will view the term “overgrown” as meaning grass was growing along/up the side of the house. 7 Azevedo disputes portions of DUMF 21 through citation to recorded statements by Avila and Carr made during an internal affairs investigation. The Court does not believe that a genuine dispute exists. The gist of Azevedo’s argument is that some of the assertions made by Carr and Avila in this motion were not made during the interviews. The Court does not see contradicting, “sham” testimony by the officers that would cause it to disregard the deposition testimony. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). 8 It was later determined that the light emanated from the fireplace. See Carr Depo. 43:7-10; PUMF 36. 5 1 PUMF’s 39, 41, 70. Based on the previous incident with the motorcycle, the expired registration 2 and the apparent lack of a VIN number, as well as the possibility of a burglary or squatting or 3 unlawful trespass, the officers decided to make contact at the location, to attempt to find the 4 owner of the motorcycle, and to investigate the security of the residence. See DUMF 23.9 5 Carr and Avila decided to enter the property and then approach the front door. See 6 PUMF 40. Carr never considered getting a warrant and did not attempt to contact Coria before 7 entering.10 PUMF’s 44, 48. Carr removed the chain from the iron fence gate, and the officers 8 went through the gate towards the front door. See PUMF’s 50, 52. Removing the chain and 9 opening the front gate was the only way to get into the front yard aside from attempting to hop 10 the spiked fence. PUMF 51.11 After entering the gate and upon approaching the front door, the 11 officers noticed locking mechanism pieces, which appeared consistent with both the wood front 12 door and metal screen door, laying on the porch and in the flower bed. DUMF 28.12 Carr also 13 noticed a glove next to the broken lock which is consistent with someone unlawfully entering a 14 house. DUMF 29.13 Neither Carr nor Avila announced their presence verbally before they 15 reached the front door. PUMF 53. 16 At the porch, Carr looked through a hole in the wood front door into the living room. See 17 PUMF 54. Avila was standing on the grass in front of the house, one foot east of the path 18 leading to the porch stairs and front door. PUMF 59. In an attempt to investigate and make 19 contact with whomever was in the residence, Carr knocked on the wood front door. See DUMF 20 9 21 DUMF 23 is undisputed because the arguments Azevedo uses to dispute it have already been discussed and rejected. 22 23 24 25 26 27 28 10 After the incident, officers called Coria using the cell phone number that was listed on the prior attachment at the residence on October 9. PUMF 49. 11 Defendants dispute this fact by arguing that “a side gate,” which the Court takes to mean the west-gate, provided access. However, Carr and Avila both indicated that the west-gate led to the backyard, not the frontyard. See Carr Depo. 38:20-25; Avila Depo. 18:21-19:3. PUMF 51 is undisputed. 12 Azevedo disputes this DUMF by arguing that it was dark outside and Carr claimed not to have noticed dog feces in the yard. Neither contention actually disputes DUMF 28. 13 Azevedo disputes the DUMF in part by arguing that “Carr was asked what he saw before approaching the residence and he did not mention seeing a glove.” However, the DUMF indicates that Carr saw the glove after he entered the front yard, not before. DUMF 29 is undisputed. 6 1 30.14 The wood front door immediately swung open since it was not secured, and Carr for the 2 first time announced, “Fresno Police.” See DUMF 30; PUMF’s 55, 56; Carr Depo. 43:20-24. 3 Once the door opened, a large dog immediately began to growl and bark, and advanced 4 on Avila in an aggressive and threatening manner. DUMF 31. See Carr drew his gun and 5 backed up. PUMF 57. Avila back-peddled away from the dog. See PUMF 60. While Carr was 6 yelling at the dog, Azevedo came outside the threshold of the front door, and Carr told him to get 7 his dog. PUMF 61; see also DUMF 31. Azevedo called his dog, and it stopped in its tracks and 8 turned, then Azevedo heard a gunshot. PUMF 62.15 Avila fired a shot at the dog in response to 9 the dog’s aggression. See DUMF 31. The bullet impacted the step just below the porch in front 10 of the threshold of the front door, and the dog was not injured. See DUMF 31; PUMF 64. Avila 11 shot at Azevedo’s dog while the dog was on the grass near the porch steps, and Azevedo was on 12 the porch by the threshold of the front door. See PUMF 63; Carr Depo. 61:8-17. Azevedo then 13 walked down and grabbed his dog. PUMF 65; DUMF 32. Carr told Azevedo to put the dog in 14 the house and close the door. PUMF 66. Azevedo picked up the dog and took it inside the 15 house. PUMF 67; DUMF 32. However, the door was still not secured. DUMF 32.16 16 Because of their concerns about Azevedo’s dog and their safety, the officers asked 17 Azevedo to step outside the gate and ordered him to sit on the curb. See DUMF 33;17 PUMF 68; 18 Azevedo Depo. 81:22-25. Carr told Plaintiff twice to sit down on the sidewalk in front of the 19 gate. PUMF 69. Requesting that Azevedo take a seat on the curb was consistent with taught and 20 21 22 23 24 14 Azevedo disputes DUMF 30 by arguing that Carr and Avila intended to “detain and/or arrest” him. Azevedo cites PUMF’s 68 through 71. These PUMF’s involve Carr telling Azevedo to walk outside the gate and sit on the curb (PUMF’s 68, 69), the offenses that Carr was investigating (PUMF 70), and that Carr and Avila believed that they had detained Azevedo (PUMF 71). However, these facts do not take into account the encounter with dog after the door opened, do not address the officers’ intent, and three of the facts (68, 69, and 71) do not address the “pre-knock” time frame. DUMF 30 is undisputed. 15 25 26 27 28 There is a dispute whether the dog had stopped at the time that the shot was fired. For purposes of this motion, it does not matter whether the dog had stopped when Avila fired, as no damages are sought for the gunshot. 16 Azevedo disputes this fact by stating the dog remained in the house until animal control arrived. However, that the dog remained in the house does not change the fact that the door was not secured, especially since the door appeared to be missing its handle and lock. 17 Azevedo takes issue with the word “asked.” However, since the officers do not dispute that they had detained/seized Azevedo, whether the officers “asked” or “ordered” is of no consequence. 7 1 trained police practices, as a matter of Azevedo’s safety and the safety of the officers. See 2 DUMF 34. The officers believed that they had detained Azevedo and that he was not free to go 3 about his business. See PUMF 71. Azevedo was being detained while the officers investigated a 4 possible burglary, trespass, squatting, and stolen motorcycle. See DUMF 37; PUMF 70. 5 Azevedo did not sit at the curb very long before he attempted to flee by running down the 6 street. See DUMF 36; PUMF 72; PAUMF 66. Carr told Azevedo to keep his hands visible. See 7 DUMF 39.18 Avila inquired whether Azevedo had any weapons in his possession, and Azevedo 8 jumped up and ran. Id. Azevedo did not recall being asked questions by the officers. 9 See Azevedo Depo. 90:13-91:2. 10 While fleeing from the officers, Carr deployed his department issued taser on Azevedo, 11 after which Azevedo was taken into custody. DUMF 41. It appears Azevedo was tasered while 12 he was on cement or concrete. See Azevedo Depo. 95:1-4. Azevedo suffered multiple facial 13 fractures and injuries, which required surgery the insertion of metal plates into his face.19 See 14 PAUMF’s 76, 115, 116, 117. Carr testified that he deployed the Taser while running after 15 Azevedo at full speed. See PAUMF 69. Carr had been gaining on Azevedo. See Ramirez Depo. 16 at 27-28. Azevedo was neither assaultive nor combative, and Carr never saw anything that 17 looked like a weapon in Azevedo’s possession before deploying the taser. See PAUMF’s 70, 71. 18 Both officers believed that they had probable cause to arrest Azevedo for violation of 19 Penal Code § 148. DUMF 41. Part of the reason Azevedo ran from the officers was because he 20 was in possession of methamphetamine. See DUMF 40. Azevedo had probably taken 21 methamphetamine within 24 hours of his arrest. See DUMF 43; Azevedo Depo. 60:2-7. After 22 placing Azevedo under arrest, Carr found drugs and drug paraphernalia. PAUMF 77; DUMF 44. 23 Although Azevedo was arrested for violations of Penal Code § 148(a)(1), Health and Safety 24 18 25 26 27 28 There is a genuine dispute whether Azevedo was reaching into his waistband – Carr declares yes, but Azevedo testified no. Also, Azevedo disputes whether Carr told him to keep his hands visible and whether Avila asked if he had weapons. However, the testimony cited by Azevedo simply states that Azevedo did not recall being asked questions. Of particular note, when asked whether he remembered the officers asking about weapons, Azevedo replied, “No. I don’t recall it, but I ran right away too.” Azevedo Depo. 90:23-91:2. In these circumstances, Azevedo’s lack of recollection does not adequately dispute whether Avila asked about weapons. 19 There is a dispute as to whether additional force was used against Azevedo. However, Azevedo’s excessive force claims are not at issue in this motion. 8 1 Code § 11377(a), and Business and Professions Code § 4140, see DUMF 45, no criminal charges 2 were ever filed against Azevedo arising out of this event. See PAUMF 78. 3 On the night of November 7, Azevedo had been asleep in the front bedroom of the house 4 with his dog. See PUMF 15; DUMF 1. Although he could not recall for how long, see DUMF 1, 5 Azevedo had been staying at the Property for more than one day before November 7. See PUMF 6 14. Coria (the owner) rented the Property to Anita Abraham. See PUMF 12. Azevedo testified 7 that Abraham asked him to stay at the Property and watch her belongings while she was 8 incarcerated in the Fresno County Jail. See Azevedo Depo. 49:4-14; PUMF 13; DUMF 2. Coria 9 had begun eviction proceedings against Abraham, but he did not know whether the eviction 10 process had been completed as of November 7, 2007. See Coria Depo. 25:5-26:1. Azevedo 11 testified that he would not leave the Property until either Abraham “got out of jail” or Coria “did 12 it the legal way of evicting.” Azevedo Depo. 54:6-8. Azevedo did not pay rent, did not receive 13 mail at the Property, and Coria had told Azevedo to leave. See DUMF’s 3, 4, 5. At the time of 14 the incident, Azevedo’s “more permanent” residence was a motor home that was parked in front 15 of his friend’s house. See DUMF 7; Azevedo Opp. Dec. ¶ 3. With the possible exception of 16 some socks and a shirt, Azevedo’s clothes were at his motor home and not at the Property. See 17 DUMF 8; Azevedo Opp. Dec. ¶ 2. Aside from a motorcycle helmet, some socks, and a shirt, 18 Azevedo cannot identify any items that belonged to him that were at the Property on the night of 19 the incident. See DUMF 9; Azevedo Opp. Dec. ¶ 2. 20 21 22 SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when it is demonstrated that there exists no genuine 23 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 24 Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. 25 American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary 26 judgment bears the initial burden of informing the court of the basis for its motion and of 27 identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an 28 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); 9 1 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is “material” if it 2 might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, 3 Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat’l Trust & Savings 4 Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is “genuine” as to a material fact if there is 5 sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 6 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 7 Where the moving party will have the burden of proof on an issue at trial, the movant 8 must affirmatively demonstrate that no reasonable trier of fact could find other than for the 9 movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of 10 proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential 11 element of the non-moving party’s claim or by merely pointing out that there is an absence of 12 evidence to support an essential element of the non-moving party’s claim. See James River Ins. 13 Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire 14 & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails 15 to carry its burden of production, then “the non-moving party has no obligation to produce 16 anything, even if the non-moving party would have the ultimate burden of persuasion.” Nissan 17 Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the 18 moving party meets its initial burden, the burden then shifts to the opposing party to establish 19 that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. 20 Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The 21 opposing party cannot “‘rest upon the mere allegations or denials of [its] pleading’ but must 22 instead produce evidence that ‘sets forth specific facts showing that there is a genuine issue for 23 trial.’” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting 24 Fed. R. Civ. Pro. 56(e)). 25 The evidence of the opposing party is to be believed, and all reasonable inferences that 26 may be drawn from the facts placed before the court must be drawn in favor of the opposing 27 party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, 28 Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, 10 1 and it is the opposing party’s obligation to produce a factual predicate from which the inference 2 may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); 3 UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). “A genuine issue of 4 material fact does not spring into being simply because a litigant claims that one exists or 5 promises to produce admissible evidence at trial.” Del Carmen Guadalupe v. Agosto, 299 F.3d 6 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); 7 Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a 8 “motion for summary judgment may not be defeated . . . by evidence that is ‘merely colorable’ or 9 ‘is not significantly probative.’” Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 10 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate 11 circumstances to consider materials that are not properly brought to its attention, but the court is 12 not required to examine the entire file for evidence establishing a genuine issue of material fact 13 where the evidence is not set forth in the opposing papers with adequate references. See 14 Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San 15 Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails 16 to produce evidence sufficient to create a genuine issue of material fact, the moving party is 17 entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103. 18 19 I. DETENTION OF AZEVEDO 20 A. Azevedo’s Standing 21 Plaintiff’s Argument 22 Azevedo argues that he has standing to challenge the entry into the Property’s curtilage. 23 Azevedo was an overnight guest of the Property’s renter, Abraham. That Coria was the 24 landlord/renter does not matter, nor does it matter that Anita may have been behind in her rent. 25 As an overnight guest of Abraham, Azevedo had a reasonable expectation of privacy in the 26 Property, and thus has standing. 27 Defendants’ Argument 28 Defendants argue that Azevedo had no legitimate expectation of privacy. Although 11 1 Azevedo claims he was an overnight guest, he does not know how long he was there, did not pay 2 rent, did not receive mail, lived in a motorhome, and had his clothes in the motorhome. Azevedo 3 has no verification that he was authorized to stay at the house. His bald assertion that he was an 4 overnight guest is insufficient to establish a legitimate expectation of privacy. 5 Legal Standard 6 A person who claims that a search violated the Fourth Amendment bears the burden of 7 proving that the search was illegal and that the person had a legitimate expectation of privacy in 8 the thing searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); United States v. $40,955.00 9 in U.S. Currency, 554 F.3d 752, 756 (9th Cir. 2009). The expectation of privacy must be 10 actually/subjectively held and must be “one that society is prepared to recognize as reasonable.” 11 Smith v. Maryland, 442 U.S. 735, 740 (1979); $40,955.00, 554 F.3d at 756. A person’s “status 12 as an overnight guest is alone enough to show that he had an expectation of privacy in the home 13 that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97 14 (1990); see Espinosa v. City & County of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010); 15 United States v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir. 2000). However, a person’s bald 16 assertion, without more, that he is an overnight guest is insufficient to establish his actual status 17 an overnight guest. See United States v. Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010); 18 United States v. Armenta, 69 F.3d 304, 308 (9th Cir. 1995). 19 Discussion 20 The evidence presented is insufficient for the Court to decide as a matter of law whether 21 Azevedo has standing to challenge the officers’ entry into the Property’s yard. Azevedo claims 22 that he was the overnight guest of Abraham, who rented the Property. A person may be the guest 23 of a lessee/renter and have a legitimate expectation of privacy as the lessee’s/renter’s guest. See 24 Espinosa, 598 F.3d at 533; United States v. Washington, 573 F.3d 279, 284 (6th Cir. 2009). 25 Azevedo had some socks, a shirt, a motorcycle helmet, and his dog at the house. Azevedo was 26 also able to exclude the owner of the Property, Coria, from entering the yard and the Property. 27 28 12 1 See Azevedo Depo. 53:7-19; PUMF 29.20 Coria’s testimony and Azevedo’s testimony indicate 2 that Azevedo had stayed in the house longer than a single night. Further, Azevedo was able to 3 identify the person who gave him permission to stay at the house, the circumstances behind the 4 permission, and the reason for his presence at the house. All of these facts tend to show that 5 Azevedo had Abraham’s permission to be an overnight guest in the house. However, the real 6 force of Azevedo’s arguments are based on his own testimony about Abraham’s request or 7 invitation. The Ninth Circuit has warned that bald assertions of permission do not establish 8 one’s status as an overnight guest. Defendants rely heavily on Armenta. However, this case is 9 not quite like Armenta, because Azevedo, unlike the Armenta, was able to identify the person 10 who gave consent for him to be an overnight guest (and there is no dispute that Anita was the 11 leased/rented the Property),21 explained the circumstances behind that consent, and also 12 successfully excluded the owner of the property. Nevertheless, conspicuously absent from this 13 case is any evidence from Abraham, who is asserted to be a friend of Azevedo’s. Also absent is 14 evidence of items that one would expect to find in the possession of an overnight guest, i.e. full 15 change of clothes, toothbrush, etc. 16 Azevedo’s argument on this point is close to amounting to little more than his own “bald 17 assertion” of guest status. See Armenta, 69 F.3d at 308. Nevertheless, the Court believes that 18 the evidence could support a finding that Azevedo was an overnight guest. Because a trier of fact 19 could reasonably reach opposite conclusions regarding Azevedo’s status, the Court denies 20 summary judgment to both parties on the issue of Azevedo’s standing. 21 B. 22 Plaintiff’s Argument 23 Azevedo argues that the fenced front area of the Property was protected curtilage pursuant 24 Curtilage to the factors set forth in United States v. Dunn, 480 U.S. 294, 302 (1987), and as applied in the 25 20 26 27 28 PUMF 29 is undisputed and reads: “In past encounters, Coria would knock on the front gate and Plaintiff would come out of the house.” 21 Coria’s testimony indicates that he had begun eviction proceedings, but did not know when or if those proceedings had completed. The Sixth Circuit has held that overdue rent, without an actual eviction, does not eliminate a renter’s, or a renter’s guest, reasonable expectation of privacy in the rented property. See W ashington, 573 F.3d at 284-85. 13 1 case of Madruga v. County of Riverside, 431 F.Supp.2d 1049 (C.D. Cal. 2005). The front of the 2 Property was completely enclosed by the highest fence that the local City ordinance allows, and 3 the mailbox was on the outside of the fence. There was a “beware of dog” sign on the wood gate. 4 The front of the iron fence was a modest distance from the house. The two gates of the iron 5 fence were closed and “locked.” The locking of the gate effectively extended the walls of the 6 house. Therefore, the front of the Property was protected curtilage. 7 Defendants’ Argument 8 Defendants argue that the front yard is not protected curtilage. The yard and porch are 9 clearly visible to any passer-by. The iron fence is meant to be more decorative than to provide 10 any privacy, and is only waist high. There are no signs stating “no trespassing,” and the “beware 11 of dog” sign is not on the iron fence, but instead is on the wood gate that separate the front and 12 back yards. Finally, the manner in which the iron gate was secured is probative. A chain was 13 looped around the fence. There was no locking mechanism on the chain, and the chain simply 14 had to be lifted up. There was no reasonable expectation of privacy in the front yard. 15 Legal Standard 16 The Fourth Amendment protects both a home and the home’s curtilage. See United 17 States v. Dunn, 480 U.S. 294, 300 (1987); Oliver v. United States, 466 U.S. 170, 180 (1984); 18 United States v. Warner, 843 F.2d 401, 405 (9th Cir. 1988). Curtilage is “the area to which 19 extends the intimate activity associated with the sanctity of a man’s home and the privacies of 20 life.” Oliver, 466 U.S. at 180; United States v. Barajas-Avalos, 377 F.3d 1040, 1057 (9th Cir. 21 2004). The Supreme Court has explained that curtilage questions are to be resolved with 22 particular reference to four factors: (1) the proximity of the area claimed to be curtilage to the 23 home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature 24 of the uses to which the area is put; and (4) the steps taken by the resident to protect the area 25 from observation by people passing by. Dunn, 480 U.S. at 301; United States v. Davis, 530 F.3d 26 1069, 1077-78 (9th Cir. 2008); United States v. Soliz, 129 F.3d 499, 502 (9th Cir. 1997). The 27 “primary focus” and “central component of this inquiry is whether the area harbors the intimate 28 activity associated with the sanctity of a man’s home and the privacies of life.” Dunn, 480 U.S. 14 1 at 300, 301 n.4; United States v. Furrow, 229 F.3d 805, 817 (9th Cir. 2000); United States v. 2 Traynor, 990 F.2d 1153, 1158 (9th Cir. 1993). “Every curtilage determination is distinctive and 3 stands or falls on its own unique set of facts.” United States v. Depew, 8 F.3d 1424, 1426 (9th 4 Cir. 1993).22 5 Discussion 6 The first Dunn factor is proximity of the disputed area to the home. The Court will view 7 the disputed area as the front yard. “Proximity is not determinative as there is no fixed distance 8 at which curtilage begins or ends.” Soliz, 197 F.3d at 502. The parties have not given the Court 9 any measurements of the land parcel, the front yard, or the distance of the home to the front of 10 the fence. Nevertheless, photographs of the front of the Property reveal a typical urban lot that is 11 not particularly large. Azevedo describes the distance from the house to the front of the fence as 12 “modest.” While hardly precise, describing the distance as “modest” is fair and indicates a 13 distance that is close to the home. This factor weighs in favor of a finding of curtilage. 14 The third factor is the uses to which the front yard was put. No evidence has been 15 presented about the uses of the front yard. The picture of the house and the front yard gives no 16 hint as to any uses. The only function may be to simply separate the street from the front porch. 17 There is an indication that Azevedo would let his dog roam the front yard at night in order for the 18 dog to relieve itself.23 The Court has reservations about whether Azevedo’s use may be 19 considered in determining whether the front yard is curtilage. Azevedo did not rent the Property, 20 did not own the Property, and has attempted to characterize himself as an “overnight guest.” In 21 other words, Azevedo had no long term connection to the Property. As such, the relevant uses 22 would appear to be those of Abraham, who actually rented and lived at 2105 E. Weldon, and 23 24 25 26 27 28 22 Depew, Traynor, Furrow, and Soliz, cited above, were all overruled on the issue of the appellate standard of review for curtilage determinations in United States v. Johnson, 256 F.3d 895, 913 n.4 (9th Cir. 2001) (en banc). 23 Azevedo identified no uses in his brief in support of summary judgment. See Court’s Docket Doc. No. 32 at p. 11-12. The Court gleans this use from the undisputed fact regarding the dog waste in the front yard, the undisputed fact that the dog was inside the home at the time of the incident, from Azevedo’s reply in which he states that the fence was used to extend the territory of his dog at night, and Azevedo’s testimony that states the dog used the front yard for “a restroom.” Azevedo’s reply, however, cites no evidence in support of his express assertion (in fact, the assertion is about one line, see Court’s Docket Doc. No. 56 at 4:9-10) and there is no evidence to indicate how long or how often the dog was allowed to roam the front yard. 15 1 under whose authority Azevedo claims to have standing. Nevertheless, this issue has not been 2 briefed because the suggested use was not raised until Azevedo’s reply brief. Assuming without 3 deciding that the “overnight guest” Azevedo’s use of the alleged curtilage has probative value, 4 this use does not even involve a “private” activity by Azevedo, or any human for that matter. It 5 is hardly a use associated with the “privacies of life,” especially given the frequency with which 6 people walk their dogs in public (be it parks or sidewalks) for this very purpose. See Soliz, 197 7 F.3d at 502-03. This factor weighs against a finding of curtilage. 8 The second Dunn factor is whether the front yard is surrounded by an enclosure that 9 surrounds the home. Although not conclusive, “[f]encing configurations are important factors in 10 defining the curtilage.” Dunn, 480 U.S. at 301 n.4; Davis, 530 F.3d at 1078. Here, the front yard 11 and the home are surrounded by the wrought iron fence. The presence of the iron fence is 12 indicative of curtilage. However, courts have also observed that, generally “the enclosure factor 13 weighs against those who claim infringement of the curtilage when their land is divided into 14 separate parts by internal fencing.” Bleavins v. Bartels, 422 F.3d 445, 452 (7th Cir. 2005); 15 United States v. Reilly, 76 F.3d 1271, 1278 (2d Cir. 1996). The Property has more than one 16 fence and there are separate demarcations on the property parcel. Specifically, there is also a 17 wooden fence that separates the front and backyards. That fence is a six foot tall “standard 18 fence,” and it prevents people from “seeing over it.” See Carr Depo. 39:1-10. It is significantly 19 different from the iron fence in both height and design. Further, the “beware of dog” sign is on 20 the wooden fence, to the side of the house – it is not on the iron fence.24 That the sign is on the 21 wooden fence indicates that the dog in question is located behind the wooden fence, not inside 22 the iron fence in the front yard. The wooden fence, as well as the “beware of dog” sign on that 23 fence, indicate a separateness between the front and back yards and the house. This sense of 24 separateness is further reinforced by the absence of evidence regarding use of the front yard. The 25 iron fence weighs in favor of curtilage, but the presence of the wood fence, which creates 26 additional demarcations by separating the front yard from the rest of the property, tempers this 27 consideration and weighs against curtilage. See Bleavins, 422 F.3d at 452. 28 24 There is no indication that other signs, such as “no trespassing” signs, were on either fence. 16 1 The final Dunn factor is the steps taken to protect the front yard from observation by 2 passers by. The Court cannot see that any steps were taken to prevent the front yard from 3 observation. As discussed above, there was a wrought iron fence. However, pictures of the 4 Property show that the iron fence does nothing to prevent the front yard from observation. The 5 iron bars are thin, the fence is not high (three and a half to four feet, perhaps), and there are 6 significant gaps between each bar. The iron fence was erected by Coria, not to prevent others 7 from observing the front yard or the activities occurring therein, but to act as a deterrent to, or 8 provide safety from, burglars and thieves. See PUMF 23. There is no evidence that the iron 9 fence was meant to prevent observation from passers by. In reply, Azevedo has indicated that 10 City ordinances prevent fences from being more than 4' tall. Be that as it may, the purpose of the 11 fence was never to obscure observation. Further, a fence is not the only method of preventing 12 observation. Physical boundaries, such as thick trees, shrubberies, or underbrush may effectively 13 block visibility and prevent observation. See United States v. Johnson, 256 F.3d 895, 903 (9th 14 Cir. 2001). However, there are no trees, bushes, or other natural barriers in the front yard that 15 materially obscure observation. There is simply no evidence that steps were taken to protect the 16 front yard from observation. This factor weighs against a finding of curtilage. 17 The primary focus in determining curtilage is whether the area “harbors the intimate 18 activity associated with the sanctity of a man’s home and the privacies of life.” Dunn, 480 U.S. 19 at 300, 301 n.4. The Court sees no evidence of any intimate or private activity in the front yard 20 that is associated with either the home or one’s private life. Application of the Dunn factors 21 reveal that the front yard is essentially open to public view, no evidence of any use has been 22 presented, and there are additional demarcations within the wrought iron fence. The evidence 23 simply indicates an enclosed piece of land that is close to the house. Cf. Cowart v. Enrique, 311 24 Fed. Appx. 210, 213-214 (11th Cir. 2009) (applying Dunn factors to conclude that a front yard 25 was not curtilage despite the fact that the front yard was enclosed by a fence). When an area is 26 open to view and there is no indication of it being used by the resident, it is unclear how that area 27 can be said to harbor private or intimate activity. 28 Azevedo relies heavily on a case from the Central District of California, Madruga. The 17 1 yard in Madruga had the following characteristics: it was immediately adjacent to the home, it 2 was surrounded by a 5' 4" tall solid wall that shielded the home from public view, a “warning – 3 guard dog” sign was posted on the wall very close to the entrance foot gate, there were two 5' tall 4 wooden gates that were shut, and the yard “was used for activities intimately associated with 5 those that take place inside the house itself such as barbecues, parties, or as an area of quiet 6 contemplation.” Madruga, 431 F.Supp.2d at 1056. These characteristics are materially different 7 from the Property’s front yard. The “beware of dog” sign in this case was not on the iron fence, 8 rather it was on the wooden fence that separated the front and backyards. The Madruga fence 9 was solid, tall, and could certainly keep out prying eyes. The iron fence in this case, however, 10 was much shorter, not solid, and does nothing to prevent observation. The yard in Madruga was 11 used for barbecues, parties, and quiet contemplation. No use has been adequately identified in 12 this case, and the suggested use is neither private nor comparable to barbecues, parties, and quiet 13 contemplation. The Court readily agrees that the yard in Madruga was protected curtilage. 14 However, “[e]very curtilage determination is distinctive and stands or falls on its own unique set 15 of facts.” Depew, 8 F.3d at 1426. The facts in this case are distinguishable from Madruga, and 16 those facts do not show that the front yard “harbors the intimate activity associated with the 17 sanctity of a man’s home and the privacies of life.” Dunn, 480 U.S. at 300, 301 n.4. 18 The evidence and arguments do not show that the front yard is protected under the Fourth 19 Amendment as curtilage. Summary judgment in favor Defendants for the officers’ entry into the 20 front yard will be granted. 21 C. Seizure of Azevedo 22 Defendants’ Argument 23 Defendants argue that the officers had a reasonable suspicion that criminal activity was 24 occurring. The information about the motorcycle, the residence being reported as vacant, and the 25 their observations of the house indicated criminal activity. Because the officers had reasonable 26 suspicion, they lawfully detained Azevedo for questioning. 27 Once Azevedo was lawfully detained, he jumped up from the curb and ran from the 28 officers. Both police experts agree that, if a person who is lawfully detained runs from the 18 1 police, that person is in violation of Penal Code § 148(a)(1) for obstructing a police officer and 2 thus, is subject to arrest. Since that is what Azevedo did, there was probable cause to arrest him. 3 Alternatively, Carr requests qualified immunity because, under the totality of the 4 circumstances, a reasonable officer could conclude that Carr’s actions were lawful. 5 Plaintiff’s Response 6 Azevedo argues that the officer’s entry into the yard was illegal. The officers cannot rely 7 on the “knock and talk” exception because they had the intent to detain Azevedo when they 8 entered the curtilage. Further, the “knock and talk” exception does not apply because measures 9 had been taken to impede entry into the yard, and those measures would indicate to a reasonable 10 11 person that entry was restricted. In order to commit the crime of obstructing a police officer, there must be a lawful 12 detention. However, because the officers’ entry into the yard was unlawful, the detention of 13 Azevedo was also unlawful. Because the detention was unlawful, there could be no probable 14 cause to arrest Azevedo under Penal Code § 148. 15 Legal Standard 16 “The Fourth Amendment requires police officers to have probable cause before making a 17 warrantless arrest.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009); see 18 Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004). “Probable cause to arrest exists 19 when officers have knowledge or reasonably trustworthy information sufficient to lead a person 20 of reasonable caution to believe that an offense has been or is being committed by the person 21 being arrested.” Rodis v. City & County of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009); 22 John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008). Courts look to “the totality of the 23 circumstances known to the arresting officers, to determine if a prudent person would have 24 concluded there was a fair probability that the defendant had committed a crime.” John, 515 25 F.3d at 940; see Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir. 2006). 26 For seizures that do not amount to a full arrest, police may “detain or seize an individual 27 for brief, investigatory purposes, provided the officers making the stop have reasonable suspicion 28 that criminal activity may be afoot.” United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009) 19 1 see Terry v. Ohio, 392 U.S. 1, 27, 30 (1968); Ramirez, 560 F.3d at 1020. “To determine whether 2 [an investigatory] stop was supported by reasonable suspicion, we consider whether, in light of 3 the totality of the circumstances, the officer had a particularized and objective basis for 4 suspecting the particular person stopped of criminal activity.” United States v. Palos-Marquez, 5 591 F.3d 1272, 1275 (9th Cir. 2010); see Ramirez, 560 F.3d at 1021. “The reasonable suspicion 6 standard is a less demanding standard than probable cause, and merely requires a minimal level 7 of objective justification.” Gallegos v. City of Los Angeles, 308 F.3d 987, 990-991 (9th Cir. 8 2002); see also Ramirez, 560 F.3d at 1020. “Conduct innocent in the eyes of the untrained may 9 carry entirely different messages to the experienced or trained observer,” and thus, may form 10 11 “reasonable suspicion.” Ramirez, 560 F.3d at 1021. “The Fourth Amendment generally prohibits the warrantless entry of a person’s home, 12 whether to make an arrest or to search for specific objects.” Illinois v. Rodriguez, 497 U.S. 177, 13 181 (1990). In fact, “searches and seizures inside a home without a warrant are presumptively 14 unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). However, where officers have 15 probable cause to arrest, the “warrantless arrest of a suspect [who is standing in the doorway and] 16 who voluntarily opens the door of his dwelling in response to a noncoercive knock by the police” 17 does not violate the Fourth Amendment. See United States v. Vaneaton, 49 F.3d 1423, 1426-27 18 (9th Cir. 1995). Similarly, a suspect who “voluntarily opens the door of his residence in response 19 to a non-coercive ‘knock and talk’ request may be temporarily seized “outside the home (or at the 20 threshold) provided that [the officers] have reasonable suspicion of criminal activity.” United 21 States v. Crapser, 472 F.3d 1141, 1148 (9th Cir. 2007). If the police “use no force, threats, or 22 subterfuge,” a person’s decision to open the door exposes that person to view, and the privacy 23 interests identified in Payton v. New York are not violated. Id.; see Vaneaton, 49 F.3d at 1427. 24 Discussion 25 There are two seizures at issue – the initial detention where the officers told Azevedo to 26 sit on the curb, and the arrest. Azevedo’s opposition is premised primarily on the theory that, 27 because the front yard was curtilage, Carr acted unlawfully when he entered the front yard. 28 However, as the Court has determined, the front yard is not curtilage. Thus, Carr’s entry into the 20 1 2 3 front yard was lawful. Nevertheless, a lawful entry into the front yard does not end the inquiry. Initial Detention Under Crapser, a person may be temporarily seized in the doorway or outside the 4 threshold of a residence as long as there is reasonable suspicion of criminal activity and the 5 police did not use force, threats, or subterfuge to get the person to open the door or step outside 6 the threshold. See Crapser, 472 F.3d at 1147-48; Price v. Austin Police Dep’t, 2007 U.S. Dist. 7 LEXIS 39378, *29-*31 (W.D. Tex. May 31, 2007). 8 9 The Court does not see that Azevedo exposed himself to public view due to force, threats, or subterfuge by the officers. Prior to Azevedo exiting the home, the officers knocked on the 10 front door and, when the door opened, Carr announced “Fresno police.” Azevedo relies on 11 testimony by Carr to argue that Carr forcibly caused the front door to open. Carr testified that he 12 knocked on the front wooden door, the door swung open, hit the wall, and remained wide open. 13 See Carr Depo. 43:21-22; see also Avila Dec. ¶ 5. There is no evidence of how hard Carr 14 knocked on the door or how hard it hit the wall. However, the evidence establishes that the front 15 door was missing its handle and lock set. See DUMF 21; Carr Dec. ¶¶ 5, 8; Avila Dec. ¶¶ 3, 4. 16 Under such circumstances, it is unknown how securely the front door could remain shut. No 17 evidence has been identified that shows how Azevedo kept the door shut, how well the door 18 functioned, or whether the door was secured in any manner besides being shut. Carr’s testimony 19 shows that he simply knocked on the door. Without a lock and handle, it is not surprising that the 20 door would swing open after someone knocked on it. The evidence does not indicate that Carr’s 21 knock was improper or excessive. 22 Once the door was open, the officers for the first time announced that they were “Fresno 23 police.” Prior to this announcement, the officers had said nothing. Identifying themselves as the 24 police is a natural and proper response to the door opening. There is no indication that Carr 25 announced “Fresno police” in order to verbally seize Azevedo. Importantly, no evidence has 26 been presented that Azevedo even heard Carr identify himself. 27 28 The evidence shows that Azevedo was sleeping in a bedroom in the house when the officers knocked on the door. According to Azevedo, what woke him was his dog. See Azevedo 21 1 Depo. 66:16-18. Azevedo testified that he heard his dog barking, the dog ran out of the bedroom, 2 then ran out the front door, and Azevedo heard yelling but does not know what was being said.25 3 See Azevedo Depo. 66:16-69:25. Azevedo followed quickly behind his dog and went outside the 4 house. See DUMF 31; PUMF 61. The first time that Azevedo saw the officers was after 5 Azevedo stepped out of the house. See Azevedo Depo. at 81:5-8. It is apparent that Azevedo 6 exited the house because he was following after his dog – he did not exit due to anything that the 7 officers said or did. See Azevedo Depo. 66-69. In other words, Azevedo did not exit the house 8 due to force, threat, or subterfuge by the officers. See Crapser, 472 F.3d at 1148. 9 With respect to probable cause, prior to entering the front yard, the officers knew that the 10 tags on the motorcycle were expired, the VIN of the motorcycle could not be found, and about 11 twelve days earlier the driver of this motorcycle ignored Carr’s gesture to stop and instead sped 12 away in a reckless fashion. These are articulable, particular, and objective facts that create a 13 reasonable suspicion that the motorcycle may be stolen. See Palos-Marquez, 591 F.3d at 1275; 14 Gallegos, 308 F.3d at 990. Also, the computer indicated that the Property was possibly vacant, 15 there was newspaper on the windows, some windows had no coverings, some windows had 16 cloth/curtains, grass was growing up against the house, the metal security door of the house was 17 open, there was a hole in the front door where the lock and door knob should have been, and a 18 low light could be seen in the corner of the window. These are articulable, particular, and 19 objective facts that create a reasonable suspicion that either a trespass or burglary may be 20 occurring. See Palos-Marquez, 591 F.3d at 1275; Gallegos, 308 F.3d at 990. At this point, the 21 officers decided to approach the house in order to talk to someone about the motorcycle and 22 investigate the security of the house. See Carr Dec. ¶ 6; Avila Dec. ¶ 4.26 After Carr undraped 23 24 25 25 26 26 27 28 The evidence indicates that the officers were yelling at the dog. See PUMF 61. Again, Azevedo disputes the intent of the officers. However, as explained in Footnote 14, supra, the dispute is insufficient. Further, the Court sees no differences between the suspicions that Carr and Avila had about the possible occupant of the house, and the suspicions that the police had in Crapser (officer suspected that Crapser was the same “Gunner Crapser” who was the subject of a warrant), Vaneaton (officers believed that Vaneaton was receiving stolen property), and Price (officers believed Price had threatened and brandished a knife at his neighbor). In these cases, the suspects were seized at their doorsteps (although Crapser assumed that a seizure occurred) after they opened their doors, yet the seizures were held to be constitutional. See Crapser, 472 F.3d at 1142, 1147-48; Vaneaton, 49 F.3d at 1424-27; Price, 2007 U.S. Dist. LEXIS 39378 at *8-*12, *29-*31. 22 1 the chain from the iron fence’s front gate, see PUMF 50; Carr Depo. 45:21-47:9; Sealed Exhibit 2 G, the officers approached the house. The officers saw pieces of door locks and handles, which 3 matched both the front door and front metal security door. These pieces were seen on the porch 4 and in the flower bed next to the porch. Additionally, a glove was seen in the flower bed next to 5 a door lock, which is consistent with a break-in. These are very significant and probative facts. 6 The observation of the glove and locks and handles augment and further support reasonable 7 suspicion. When the officers knocked on the door, they had at least reasonable suspicion that a 8 trespass or a burglary was being committed. Knocking on the door in order to investigate the 9 house’s security was appropriate and reasonable. Cf. Frunz v. City of Tacoma, 468 F.3d 1141, 10 1145-46 (9th Cir. 2006) (noting that, under the facts of the case, officers “could have knocked at 11 the door [of the house]. . . and politely asked the occupants whether they were entitled to be 12 there.”). Additionally, when the door opened after Carr knocked, Azevedo’s dog came out 13 barking and growling. The dog was large and caused the officers to back-peddle. The officers 14 had a legitimate concern for their safety. The facts known about the motorcycle, combined with 15 the computer entry about the Property, the appearance of the property (the grass growing up the 16 house and the windows), the missing handles and locks from the front doors, the locks and 17 handles lying on the porch and the flower bed, and the glove in the flower bed, caused the 18 officers to have a reasonable suspicion that the unknown rider of the motorcycle may be 19 committing a trespass or burglary in the house (and possibly theft of the motorcycle). Thus, there 20 was reasonable suspicion to detain Azevedo once he exited the house. See Palos-Marquez, 591 21 F.3d at 1275; Crapser, 472 F.3d at 1142, 1147-48; Vaneaton, 49 F.3d at 1424-27; Price, 2007 22 U.S. Dist. LEXIS 39378 at *8-*12, *29-*31. The encounter with the dog raised legitimate safety 23 concerns, and it was reasonable to order Azevedo to the curb, which was only a modest distance 24 from the house, in order to investigate. See DUMF’s 33, 34. 25 Because the officers had reasonable suspicion that burglary or trespass was occurring, had 26 reasonable fears about their safety from the dog, and because Azevedo did not exit his house due 27 to force, threats, or subterfuge by the officers, Azevedo’s Fourth Amendment rights were not 28 violated when he was seized after exiting the house. See Crapser, 472 F.3d at 1142, 1147-48; 23 1 2 Vaneaton, 49 F.3d at 1424-27; Price, 2007 U.S. Dist. LEXIS 39378 at *8-*12, *29-*31. Alternatively, qualified immunity is appropriate. The facts outlined above are strongly 3 indicative of a trespass or burglary. Especially probative are the computer entry about the 4 possible vacancy of the house and the locks and gloves found on the porch and in the flower bed. 5 Further, given Crapser’s discussion and approval of Vaneaton (in which officers had probable 6 cause to arrest, knocked on the door, asked Vaneaton’s identity, and then arrested him just inside 7 the doorway), and the lack of force, threats, and subterfuge, a reasonable officer in Carr’s 8 position could have reasonably believed that the detention met the parameters of Crapser. In 9 short, a reasonable officer could have reasonably believed that Azevedo’s detention was 10 constitutional. See Saucier v. Katz, 533 U.S. 194, 200-06 (2001); Crapser, 472 F.3d at 1142, 11 1147-48; Lawrence v. United States, 340 F.3d 952, 956-57 (9th Cir. 2003); Vaneaton, 49 F.3d at 12 1424-27. 13 Summary judgment in favor of Carr on this claim is appropriate. 14 15 Arrest The elements of a Penal Code § 148(a)27 obstruction offense are: “(1) the defendant 16 willfully resisted, delayed, or obstructed a peace officer; (2) when the officer was engaged in the 17 performance of his or her duties; and (3) the defendant knew or reasonably should have known 18 that the other person was a peace officer engaged in the performance of his or her duties.” 19 People v. Simons, 42 Cal.App.4th 1100, 1108-09 (1996). However, a person “cannot be 20 convicted of an offense against an officer engaged in the performance of official duties unless the 21 officer was acting lawfully at the time.” Id. 22 Here, there is no dispute that if a lawfully detained person runs from the police, he is in 23 violation of Penal Code § 148. See DUMF 42. The dispute is whether Azevedo was lawfully 24 detained. As discussed above, although Azevedo argues to the contrary, the Court has found that 25 26 27 28 27 In pertinent part, Penal Code § 148(a)(1) reads: Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. 24 1 he was lawfully detained. Because Azevedo was lawfully detained, Carr had probable cause to 2 arrest Azevedo once Azevedo attempted to run away. See John, 515 F.3d at 940; Cal. Pen. Code 3 § 148(a); Simmons, 42 Cal.App.4th at 1108-09; DUMF 42. 4 Alternatively, excluding issues of excessive force, Azevedo’s arrest is improper only if 5 the Terry detention was unlawful. As discussed above, a reasonable officer could have 6 concluded that reasonable suspicion existed and that Crapser was followed. Therefore, for the 7 same reasons, a reasonable officer in Carr’s position could have reasonably believed that 8 probable cause existed to arrest Azevedo for violation of Penal Code § 148(a). See Saucier, 533 9 U.S. at 200-06 (2001); John, 515 F.3d at 940; Lawrence, 340 F.3d at 956-57; Simmons, 42 10 Cal.App.4th at 1108-09. 11 Summary judgment in favor of Carr on this claim is appropriate. 12 13 II. Monell Liability 14 Defendant’s Argument 15 The City argues that Azevedo has identified several policies, but none of his contentions 16 have merit. There is no evidence that the City has an unconstitutional policy regarding training, 17 as the evidence shows the City’s training materials are consistent with POST28 standards. 18 Further, officers receive on-going training through various courses, programs, and seminars. 19 Carr is certified in the use of a taser, and POST does not exclude the use of a taser against a 20 fleeing suspect. 21 Any contention that the City has an unconstitutional policy/practice of detaining and 22 arresting individuals without probable cause is not supported by the evidence. Moreover, the 23 evidence shows that probable cause existed to arrest Azevedo. 24 Any contention that the City fails to supervise its officers is not supported by the 25 evidence. At the time of the incident, officers were supervised through a chain of command from 26 sergeant through chief. There was daily supervision through the chain of command, and officers 27 28 28 POST is the “Peace Officer Standards and Training” and is recognized as the authority that governs the training of police officers in California. DUMF 46. 25 1 received yearly evaluations. Further, the officers were expected to comply with department 2 practices, training, and procedure, and are subject to discipline for failing to do so. 3 Similarly, there is no evidence of a failure to discipline. Administrative staff review and 4 examine incidents in which force is used in order to determine whether the force was reasonable 5 under the circumstances. It is the policy of the City to conduct thorough investigations. 6 Finally, any contention that the City has a custom and practice of falsifying reports and 7 evidence is not supported by the evidence. It has always been the policy of the City to require 8 accurate reporting by its officers. It has never been the policy to allow falsification. 9 10 Plaintiff’s Opposition Azevedo argues that there is sufficient evidence to indicate that Carr acted pursuant to an 11 official policy. Standing order 2.5.8 is deficient in that it instructs officers to disregard the risk of 12 collateral injuries from an uncontrolled fall while running over a hard surface. Standing order 13 2.5.8 and 2.5.10 are deficient in that they instruct officers to report taser use on an honor system, 14 including documenting a subject’s force that required the use of force, taking and reporting 15 witness statements, but does not include downloading taser data. Pursuant to these policies, Carr 16 unnecessarily tasered Azevedo, invented a fact that Azevedo “reached to his waistband,” altered 17 witness statements in the force report, and did not download his taser data, knowing that no 18 meaningful review would occur. Also, it is clear that the City had alternatives to these policies. 19 Taser International’s materials warn of risks due to uncontrolled falls. It is also well established 20 that officers should be sequestered if they are involved in a significant use of force, and should 21 not conduct their own use of force investigation. 22 Azevedo argues that there is also evidence of a longstanding custom of the City using a 23 taser to seize fleeing subjects who were unarmed, non-threatening, and who had not committed 24 serious crimes. In addition to this case, Carr and Avila combined to taser six such subjects, and 25 the conduct of the officers was approved. 26 Azevedo also argues that there is a dispute regarding the failure to train on the proper use 27 of a taser, that is, that the taser should not be used on a non-felony suspect who posses no 28 imminent threat to anyone’s safety, but is merely running away. The facts of this case, Carr’s 26 1 testimony, Avila’s testimony, both officers’ multiple use of taser on people like Azevedo, and the 2 statements and approval of other City police officers indicating that such use is in line with 3 training and guidelines. Further, there is no question that encounters with suspects who flee 4 over hard surfaces is something that can be expected to occur relatively frequently. Taser 5 International’s own materials and warnings show that the occurrence and danger associated 6 therewith are obvious. 7 Finally, Azevedo argues that the evidence indicates that Police Chief Dyer ratified Carr’s 8 conduct. Despite the obvious inadequacy of the investigation, Dyer (through his delegate Deputy 9 Chief Nevarez) approved the determination that Carr should be “exonerated” of the excessive 10 force claim. Although failure to discipline by itself is insufficient, the failure to discipline 11 combined with the obvious inadequacies of the investigation and the outrageous conduct of Carr, 12 is sufficient to support a finding that Dyer, and thus the City, ratified Carr’s conduct. 13 Legal Standard 14 Municipalities are considered “persons” under 42 U.S.C. § 1983 and therefore may be 15 liable for causing a constitutional deprivation. Monell v. Department of Soc. Servs., 436 U.S. 16 658, 690 (1978); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). A 17 municipality, however, “cannot be held liable solely because it employs a tortfeasor – or, in other 18 words, a municipality cannot be held liable under [42 U.S.C. § 1983] under a respondeat 19 superior theory.” Monell, 436 U.S. at 691; see Long, 442 F.3d at 1185; Ulrich v. City & County 20 of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002). Liability only attaches where the 21 municipality itself causes the constitutional violation through “execution of a government’s 22 policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 23 said to represent official policy.” Monell, 436 U.S. at 694; Ulrich, 308 F.3d at 984. Municipal 24 liability may be premised on: (1) conduct pursuant to an expressly adopted official policy; (2) a 25 longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local 26 government entity; (3) a decision of a decision-making official who was, as a matter of state law, 27 a final policymaking authority whose edicts or acts may fairly be said to represent official policy 28 in the area of decision; or (4) an official with final policymaking authority either delegating that 27 1 authority to, or ratifying the decision of, a subordinate. See Price v. Sery, 513 F.3d 962, 966 (9th 2 Cir. Or. 2008); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich, 308 F.3d at 984-85; 3 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1995). 4 A “custom” for purposes of municipal liability is a widespread practice that, although not 5 authorized by written law or express municipal policy, is so permanent and well-settled as to 6 constitute a custom or usage with the force of law.” City of St. Louis v. Praprotnik, 485 U.S. 7 112, 127 (1988); Los Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 8 1990). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it 9 must be founded upon practices of sufficient duration, frequency and consistency that the 10 conduct has become a traditional method of carrying out policy.” Trevino, 99 F.3d at 918. A 11 “policy” is a deliberate choice to follow a course of action . . . made from among various 12 alternatives by the official or officials responsible for establishing final policy with respect to the 13 subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) 14 In order to show ratification, a plaintiff must show that the “authorized policymakers 15 approved a subordinate’s decision and the basis for it.” Praprotnik, 485 U.S. at 127; Lytle, 382 16 F.3d at 987; Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). Neither the mere failure to 17 overrule a subordinate’s actions, nor the mere knowledge of an unconstitutional act by 18 themselves can constitute ratification. Lytle, 382 F.3d at 987; Christie, 176 F.3d at 1239; Gillette 19 v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). Instead, the “policymaker must have 20 knowledge of the constitutional violation and actually approve of it.” Lytle, 382 F.3d at 987. A 21 single failure to discipline an officer, without something more, is insufficient to establish 22 ratification. See Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003)29 (citing and 23 parenthetically discussing Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir. 1989)); Kanae v. 24 Hodson, 294 F. Supp. 2d 1179, 1191 (D. Haw. 2003) Although the plaintiff must establish that 25 there is a genuine issue of material fact, generally “ratification is a question for the jury.” 26 Christie, 179 F.3d at 1238-39; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). 27 28 29 Overruled on other grounds, Brosseau v. Haugen, 543 U.S. 194 (2004). 28 1 A municipality’s failure to train its employees may create § 1983 liability where the 2 “failure to train amounts to deliberate indifference to the rights of persons with whom the 3 [employees] come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989); Long, 442 4 F.3d at 1186; Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). “The issue is 5 whether the training program is adequate and, if it is not, whether such inadequate training can 6 justifiably be said to represent municipal policy.” Long, 442 F.3d at 1186. A plaintiff alleging a 7 failure to train claim police officers must show: (1) he was deprived of a constitutional right, (2) 8 the municipality had a training policy that “amounts to deliberate indifference to the 9 [constitutional] rights of the persons' with whom [its police officers] are likely to come into 10 contact;” and (3) his constitutional injury would have been avoided had the municipality properly 11 trained those officers. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007); Lee, 12 250 F.3d at 681. A municipality is “deliberately indifferent” when the need for more or different 13 action, “is so obvious, and the inadequacy [of the current procedure] so likely to result in the 14 violation of constitutional rights, that the policymakers … can reasonably be said to have been 15 deliberately indifferent to the need.” City of Canton, 489 U.S. at 390; Lee, 251 F.3d at 682. A 16 “pattern of tortious conduct,” despite the existence of a training program, or “highly predictable” 17 constitutional violations due to a “failure to equip law enforcement officers with specific tools to 18 handle recurring situations,” are circumstances in which liability for failure to train may be 19 imposed. See Board of County Comm’rs v. Brown, 520 U.S. 397, 407-10 (1997); Long, 442 20 F.3d at 1186-87. However, “adequately trained officers occasionally make mistakes; the fact that 21 they do says little about the training program or the legal basis for holding the [municipality] 22 liable.” City of Canton, 489 U.S. at 391. “Mere proof of a single incident of errant behavior is a 23 clearly insufficient basis for imposing liability on the County.” Merritt v. County of Los 24 Angeles, 875 F.2d 765, 770 (9th Cir. 1989); see also McDade v. West, 223 F.3d 1135, 1141 (9th 25 Cir. 2000). 26 Discussion 27 For there to be Monell liability against the City on the policies/practices identified by 28 Azevedo, there must also be a finding that excessive force was used. Cf. Los Angeles v. Heller, 29 1 475 U.S. 796, 799 (1986) (holding no Monell liability in the absence of a constitutional 2 violation); Long v. City & County of Honolulu, 511 F.3d 901, 907 (9th Cir. 2007) (same). 3 However, no party has moved for summary judgment on Azevedo’s excessive force claims. 4 Therefore, in order to resolve the summary judgment motion on the Monell issue, the Court must 5 and will assume that excessive force was used against Azevedo. Under this assumption, and 6 viewing the evidence in the light most favorable to Azevedo as the non-moving party, there are 7 genuine disputes of material fact on the Monell claim. 8 9 Conduct Pursuant to Official Policy Azevedo focuses on Standing Order (“SO”) 2.5.8 and SO 2.5.10 in arguing that 10 constitutional violations occurred pursuant to an “official policy.” See Court’s Docket Doc. No. 11 41 at pp. 19-20. 12 First, relying on PAUMF’s 79, 80, and 81,30 Azevedo states that Standing Orders 2.5.8 13 “instructed officers to disregard the risk of collateral injuries from an uncontrolled fall while 14 running over a hard surface.” Id. at 19:13-15. Carr testified that he believed that he followed 15 SO 2.5.8 on the night in question. See Carr Depo. 99:20-22; see also PAUMF 80. However, the 16 pertinent portion of SO 2.5.8 reads, “The [taser] should not be used on a subject whose position 17 or activity may result in collateral injury (e.g. falls from height, falls into a body of water that 18 presents a drowning risk, operating vehicles).” PAUMF 79. Azevedo’s assertion about SO 2.5.8 19 does not match the policy’s language. There is nothing that instructs officers to disregard the 20 possibility of uncontrolled falls over a hard surface. In fact, SO 2.5.8 instructs officers to be 21 cognizant of collateral injuries due to a subject’s position or activity, which would seem to entail 22 running over a hard surface. If SO 2.5.8 actually instructed officers to disregard the uncontrolled 23 falls over hard surfaces, there would be a significant problem. But the order does not, and 24 Azevedo presents no evidence that shows SO 2.5.8 is interpreted as directing officers to 25 26 27 28 30 Citing Carr’s deposition at 99:23-100:7, PAUMF 81 reads that Carr believed that SO 2.8.5 did not apply unless a person was on a balcony, rooftop or staircase, and not when someone is running at full speed. This PAUMF does not aid Azevedo. First, that section of deposition testimony has nothing to do with instructions to disregard uncontrolled falls over hard surfaces. See Carr Depo. 99:23-100:7. Second, the cited deposition section appears to the Court to focus more on the meaning and application of the term “fall from height.” 30 1 disregard uncontrolled falls over hard surfaces. Because SO 2.5.8 does not instruct officers to 2 disregard the possibility of uncontrolled falls as Azevedo contends, there is no Monell liability 3 based on this aspect of SO 2.5.8. Summary judgment on this Monell theory is appropriate. 4 Second, relying on PAUMF’s 86, 87, and 88,31 Azevedo states that SO 2.5.8 and SO 5 2.5.10 instruct officers who use force to follow the “honor system,” including documenting 6 behavior that required the use of force and taking and reporting witness statements. To the extent 7 that Azevedo is complaining about the officer documenting why he believed that the particular 8 force used was required, the Court sees no problem with such a practice and Azevedo does not 9 explain why such a procedure is problematic. Including the officer’s explanation of why he used 10 force seems both reasonable and desirable. Further, if by “honor system” Azevedo is criticizing 11 that the officer who used force is required to self-report his use of force, there is no explanation 12 of why this is an improper practice and there is no indication that Azevedo was harmed as a 13 result of that practice because Carr in fact reported using force. 14 However, Azevedo has a more substantial point regarding the policy of requiring the 15 officer who used force to also obtain witness statements. Azevedo’s police procedures expert, 16 Roger Clark, has declared: “Contrary to proper procedure, the Fresno Police Department 17 endorsed Officer Carr conducting his own use of force witness interviews. Because of the 18 serious injuries that occurred, FPD should have required supervisors on the scene to sequester 19 Carr and Avila, take their separate statements, and then assign other investigators to take the 20 statements of civilian witnesses.” Clark Dec. ¶¶ 15-16 (emphasis added). Neither SO 2.5.8 nor 21 SO 2.5.10 discuss situations in which the officer who used force should not interview 22 eyewitnesses. See Sealed Exhibits H, I. Clark’s opinion is augmented because there is an issue 23 regarding a witness’s statement in this case. Eyewitness Ramon Ramirez testified during his 24 deposition that he saw an officer, i.e. Carr, hit Azevedo with a flashlight. See Ramirez Depo. 25 28:11-24. Ramirez also stated that he was interviewed by an officer and he told the officer about 26 27 28 31 PAUMF 86 states that SO 2.5.8 and SO 2.5.10 require an officer who used the force to interview witnesses and write the report. PAUMF 87 states that SO 2.5.10 requires officers to document the behavior that required the use of force. PAUMF 88 deals with taser data downloads. 31 1 seeing Azevedo getting hit with the flashlight. See id. at 29:15-22. Carr’s report indicates that 2 he interviewed Ramirez, and Carr’s deposition testimony suggests that the Carr did so alone. See 3 Carr Depo. 102:17-21; Sealed Exhibit E. Carr’s report does not include anything regarding the 4 flashlight. See Sealed Exhibit E. Again, assuming that excessive force was used, the policy that 5 Carr followed allowed him to selectively report and omit evidence.32 It is possible that an officer 6 could think that he could cover-up excessive force by utilizing this interview process and 7 omitting evidence. In light of Clark’s declaration that the severity of the injuries required 8 sequestration, the policies identified by Azevedo, and the specific incident with Ramirez’s 9 statement, the Court believes that there is a genuine dispute of material fact regarding the policy 10 of requiring officers who use force that results in severe injury to conduct their own witness 11 interviews. Summary judgment on this Monell theory will be denied.33 12 Lastly, citing PAUMF 89, Azevedo argues that SO 2.5.8 and SO 2.5.10 require no 13 meaningful review of taser deployments by supervisors or others. PAUMF 89 states, the “only 14 administrative review of taser deployments pursuant to FPD’s written policies is a short form to 15 be completed by the involved officer’s direct supervisor based solely on the officer’s report, and 16 forwarded to various individuals.” PAUMF 89 is supported by citations to SO 2.5.8, SO 2.5.10, 17 and the use of force form/report that was filled out by Carr’s supervisor, Sgt. Brown. However, 18 Azevedo’s argument is conclusory. There is no citation to expert opinions, no explanation of 19 why the City’s review procedures “require no meaningful review,” no explanation of what 20 “meaningful review” should have been done, and it is not clear that the use of force report 21 completed by Sgt. Brown is based “solely” on Carr’s version of events. Cf. DUMF 57. In fact, 22 23 24 25 26 27 28 32 The Court is not holding that the City has a policy of tolerating officers falsifying reports. See DUMF 58. 33 In reply, the City argues that it is impractical and unreasonable to sequester an officer every time he uses force against a suspect. The Court agrees. However, Clark has declared that the severity of the injuries Azevedo suffered required sequestration. The Court is not holding that a policy of having the officer who used force also interview witnesses is per se improper. The Court is merely holding that, because expert testimony has stated that the injuries were sufficiently severe, the particular policies presented to the Court (SO 2.8.5 and SO 2.5.10) do not contain exceptions to who conducts the interviews, and it appears Ramirez statement was not accurately taken, a genuine dispute has been created. 32 1 the report indicates that Brown spoke to Azevedo. See Sealed Exhibit K.34 Azevedo’s argument 2 is inadequately developed. Summary judgment on this Monell theory is appropriate. 3 4 Longstanding Practice or Custom Azevedo argues that the City has a custom of using tasers on unarmed, nonthreatening 5 suspects who are running on hard surfaces. Azevedo relies on PAUMF’s 107, 108, 109, and 110. 6 PAUMF’s 107, 108, and 110 are undisputed and indicate that “Carr had previously used his taser 7 on at least two unarmed people who were running away over a hard surface and not reaching for 8 their waistbands,” PAUMF 107, the taser was ineffective on one person, but the taser was 9 effective on the other and that person lost muscle control and fell forward, see PAUMF 108, and 10 Carr reported the incident of the person who fell forward. See PAUMF 110. It is also 11 undisputed that Avila testified that he had previously used his taser approximately three times on 12 people who were running away. See Avila Depo. 52:17-22; see also PAUMF 109. 13 The PAUMF’s and the evidence cited do not establish a custom or longstanding practice. 14 As to Carr’s testimony, all that is shown is that the suspects were not armed, were not reaching 15 for waistbands, were running full speed on a hard surface, and one fell forward on the hard 16 surface. See Carr Depo. 86:12-87:14. As to Avila’s testimony, all that is shown is that the other 17 incidents involved suspects who were running away. See Avila Depo. 52:17-22. The problem is 18 that there is insufficient detail. The deposition testimony does not establish what crimes were at 19 issue, whether the suspects had been assaultive, or whether they posed a danger to those in the 20 area. Moreover, with Avila’s testimony, it is completely unknown whether the suspects were 21 even running over hard surfaces. It is undisputed that POST standards allow for the use of taser 22 on a fleeing suspect, depending on the totality of the circumstances. See Clark Depo. 64:20-25. 23 Similarly, one of the express considerations in examining whether the use of a taser was 24 reasonable is whether the suspect was actively resisting or fleeing. See Bryan v. McPherson, 590 25 F.3d 767, 775, 780-81 (9th Cir. 2009). The other incidents Azevedo relies upon have not been 26 shown to be sufficiently similar to this case, and the single incident of this case does not establish 27 28 34 The use of force form/report was made by Sgt. Brown and was reviewed and approved by a lieutenant, a captain, and a deputy chief. See Sealed Exhibit K. 33 1 a custom. Trevino, 99 F.3d at 918. Summary judgment on this Monell theory is appropriate. 2 3 Failure To Train/Enact Policy The Court agrees with Azevedo that there is a triable issue of fact regarding training. 4 There is no dispute that the City has a unit to ensure that its training is POST compliant. See 5 DUMF 47. However, Azevedo’s expert, Roger Clark, has indicated that the training does not 6 include or sufficiently address the issue of potential injuries from someone who falls 7 uncontrollably onto a hard surface due to a taser application. See Clark Depo. 64:10-19;35 Clark 8 Dec. ¶¶ 4, 9-13. Clark has also declared that a “person running away at full speed over a hard 9 surface is a situation encountered by urban law enforcement departments on a relatively frequent 10 basis.” Clark Dec. ¶ 17. In addition to Clark’s opinion, Azevedo rightly points out that Carr’s 11 use of force, i.e. using a taser on Azevedo while running full speed over a hard surface, was 12 reviewed and approved by multiple City police officers, including a sergeant, a lieutenant, a 13 captain, and the deputy chief. See PAUMF 95. A retired sergeant also stated that Carr’s conduct 14 was within guidelines and training. See PAUMF 111. Because the Court must assume excessive 15 force was used, a reasonable jury could look at the number of separate officers who concluded 16 that the use of force/the taser while Azevedo was running over a hard surface was proper is 17 indicative of inadequate training. Cf. Alexander v. City & County of San Francisco, 29 F.3d 18 1355, 1368 (9th Cir. 1994) (noting that, had evidence been timely submitted and developed, 19 testimony from a particular sergeant that conduct was pursuant to policy and training might 20 indicate department-wide inadequacy of training); Russo v. Cincinnati, 953 F.2d 1036, 1046-47 21 (6th Cir. 1992). Clark also opines that appropriate training regarding the dangers of uncontrolled 22 falls on a hard surfaces was available and known to the City through Taser International. See 23 Clark Dec. ¶¶ 12-14; Fattahi Opp. Dec. ¶ 17 & Sealed Exh. N. It is not a stretch to infer that, had 24 there been training that emphasized the dangers of uncontrolled falls on hard surfaces, Carr may 25 26 27 28 35 DUMF 50 posits that the City’s taser training was POST compliant. DUMF 50 cites potions of Clark’s testimony. It is not clear whether the cited depositions excerpts are referring to the training regarding “use of force” in general or use of the taser in particular. See Clark Depo. 62:12-63:22, 68:11-22. Nevertheless, on page 64, Clark specifically states that the training materials do not “talk about” injuries from falling on a hard surface due to taser application in response to a question about POST. See Clark Depo. 64:10-19. Page 64 of Clark’s deposition, combined with Clark’s declaration, lead to the conclusion that DUMF 50 is disputed. 34 1 not have used his taser. The cumulative effect of this evidence makes summary judgment on this 2 theory inappropriate. 3 4 Ratification Azevedo agrees that a failure to discipline alone is not sufficient to show ratification. 5 Instead, citing Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991) and Grandstaff v. City 6 of Borger, 767 F.2d 161 (5th Cir. 1985), Azevedo argues that an inadequate investigation and/or 7 outrageous conduct by Carr can combine with the failure to discipline and show ratification. 8 With respect to outrageous conduct, Azevedo relies on Grandstaff. In that case, six 9 officers (the entire night shift of the City of Borger) followed a suspect to a ranch in the course of 10 a chase in which guns were fired. See id. at 165. Grandstaff worked at the ranch, saw the police, 11 and drove down to see what was happening. See id. Grandstaff heard what was happening over 12 the police loudspeakers, drove back to his house, told his family to stay inside, and drove back to 13 the officers for a second time in order to help. See id. When Grandstaff reached the officers, 14 they all opened fire on Grandstaff’s truck. See id. Grandstaff somehow managed to get out of 15 the truck, but as he was running away, he was shot in the back and died shortly thereafter. See 16 id. Following the incident, the City of Borger and the police department denied any and all 17 wrongdoing, issued no reprimands, and made no changes in their policies. See id. at 171. The 18 outrage and disgust of the Fifth Circuit blazes from the pages. The situation in Grandstaff is 19 nothing short of appalling. However, what happened in the case at bar is not nearly as 20 outrageous as Grandstaff. In the case at bar, a taser was used against a person who was fleeing 21 from officers over a hard surface and who had yet to explain his presence in/connection to a 22 house where the evidence suggested a possible burglary. The Court realizes there is a dispute 23 among the parties regarding the propriety of the force used.36 A jury may well conclude that the 24 force used was excessive. However, without downplaying the events or Azevedo’s extensive 25 facial injuries, what occurred on November 7 does not rise to the same level of outrageousness as 26 Grandstaff. Carr’s use of force was not sufficiently outrageous to show that the failure to 27 28 36 The Court emphasizes that it is making no determination regarding excessive force or whether Azevedo was reaching for/into his waistband. 35 1 discipline was a ratification of Carr’s conduct. 2 With respect to an inadequate internal affairs investigation, Azevedo relies on Larez. In 3 Larez, the Ninth Circuit noted that expert testimony stated that the investigation contained holes 4 and inconsistencies that should have been “readily visible to any reasonable police 5 administrator,” such as relying on testimony from an officer who was not present during some of 6 the incidents. See Larez, 946 F.2d at 647. Azevedo identifies seven shortcomings in the internal 7 affairs investigation. However, unlike Larez, Azevedo has pointed the Court to no expert 8 opinion regarding the obviousness or egregiousness of the shortcomings, and it is not clear to the 9 Court that these shortcomings are even shortcomings at all, or would be obvious to Chief Dyer/a 10 11 reasonable police administrator. First, Azevedo cites portions of one page of the internal affairs interview with Carr to 12 argue that the questions were improper and leading. See PAUMF 121 (citing Sealed Exhibit F at 13 9:7-24). However, those sections contain only two questions, and it is unknown whether Dyer 14 did or even should have reviewed the transcripts, versus relying on the report itself. Second, 15 Azevedo contends that the summary of Ramon Ramirez’s and other witnesses’ testimony is 16 essentially the same as that found in Carr’s report. However, the investigator stated the date and 17 time that he interviewed the witnesses, and the Court does not see how a similarity in versions, 18 especially since some witnesses stated that they had nothing to add, would be clearly indicative 19 of an improper investigation to a reasonable administrator. Third, Azevedo states that there were 20 no audio recordings of the witness statements. However, there is no evidence that audio 21 recordings must be utilized when taking a statement. Fourth, there was no reference to objective 22 evidence such as taser data or medical records, which would have substantiated Azevedo’s 23 claims. However, it is unknown what the Taser data would have shown since Carr stated that he 24 used the taser, and Sgt. Brown’s force report stated that taser darts were recovered, one from 25 Azevedo’s skin and one from Azevedo’s clothes. See Sealed Exhibit K. Also, Azevedo has 26 submitted no medical opinions regarding what the medical records would have revealed or 27 whether the injuries would have been inconsistent with falling front first onto cement. Fifth, 28 Azevedo states that Carr’s allegation about Azevedo reaching into/towards his waistband while 36 1 running is a fact that did not appear in Avila’s statement, Brown’s use of force report, or Carr’s 2 original report. Azevedo is correct that Sgt. Brown’s use of force report does not include 3 Azevedo reaching to his waistband while running. However, the synopsis of Avila’s internal 4 affairs statement indicated that he was running behind Carr and was trying to keep up; in other 5 words, the report suggests an obscured view. Further, Carr’s report states that Azevedo brought 6 his (Azevedo’s) hands in front of him (Azevedo) while they were running, and then the report 7 references Azevedo reaching towards his waist while he was on the curb.37 See Sealed Exhibit E. 8 This is very similar to an assertion of reaching towards the waistband. Sixth, Azevedo argues 9 that he was not assaultive or combative, but the City taser policy limits taser use to combative 10 subjects. However, the cited taser policy reads that the taser should be considered if it would 11 “assist in the [seizure] of a combative subject and/or would reduce the risk of injury to 12 department members . . . .” PAUMF 93 (emphasis added). The internal affairs report concluded 13 that officer safety, due to the alleged attempts by Azevedo to reach into his waistband, made use 14 of the taser appropriate. This conclusion is not inconsistent with the policy identified by 15 Azevedo since that policy’s plain language does not limit its application to combative persons.38 16 See id. Finally, Azevedo concludes that the report recommending exoneration despite a lack of 17 evidence to support that conclusion. However, the synopsis of the various officers and witness 18 statements provide at least a colorable basis for exoneration. 19 In summary, the conduct in this case is not close enough to the outrageous conduct of 20 Grandstaff. Also, in the absence of expert opinion, Azevedo has not adequately shown that the 21 shortcomings of the Internal Affairs investigation are sufficiently material or would have been 22 readily visible to a reasonable administrator. Cf. Larez, 946 F.2d at 647. As such, Azevedo has 23 simply shown a failure to discipline, which he agrees is alone insufficient. Accordingly, 24 summary judgment on Azevedo’s ratification theory is appropriate. See Lytle, 382 F.3d at 987; 25 Haugen, 339 F.3d at 875; Christie, 176 F.3d at 1239; Santiago, 891 F.2d at 382; Kanae, 294 26 27 28 37 Again, the Court realizes that there is a dispute regarding whether Azevedo reached into or towards his waistband at any time. 38 Also, no evidence has been presented that the policy is interpreted to be limited to combative individuals. 37 1 F.Supp.2d at 1191. 2 3 III. Spoliation 4 Plaintiff’s Argument 5 Azevedo argues that Defendants despoiled evidence and should be sanctioned. In July 6 2009, Defendants sent Carr’s taser to Taser International (“TI”) for repair, but did not download 7 usage data from the taser unit. TI confirmed that once they received the taser unit, they 8 determined that the unit could not be repaired and instead destroyed the unit. The usage data was 9 relevant and highly probative. Carr had heard that the injuries were not consistent with falling 10 and knew that his taser kept track of deployment data. Ramon Ramirez stated that he saw Carr 11 strike Azevedo in the head with a flashlight and told Carr about this observation. Azevedo 12 testified that he felt “jiggly” while running, but broke his fall only to be picked up and dropped 13 on his face, which caused him to black-out. Azevedo suffered significant injuries and required 14 surgery to repair facial fractures. A jury could find that Carr never tasered Azevedo but instead 15 struck him with a flashlight and then used additional force to incapacitate him, or that several 16 taser applications were used after Azevedo was incapacitated, or some combination thereof. 17 These factual disputes could have been conclusively established by the taser data, as it was the 18 best evidence of whether, when and how many times Carr used the taser on Azevedo. 19 Defendants took no steps to preserve this data. Instead, they intentionally destroyed it. Azevedo 20 argues that the prejudice he now suffers is paramount. He was incapacitated by whatever force 21 was used to end his flight, everything “went black,” and he awoke with major injuries. None of 22 the percipient witnesses saw the taser used, but it was night and they were some distance away. 23 If Azevedo had the taser data, he argues that he could have established that unreasonable force 24 was used. His task now is more difficult because he admits that he fled from the officers and has 25 a felony conviction. A default finding against Defendants on the excessive force claim is 26 appropriate. Alternatively, an adverse inference instruction, and simultaneous exclusion of 27 defense evidence of the force they claim was used, may be ordered. 28 38 1 Defendant’s Opposition 2 Defendants argue that sanctions are inappropriate. It is not obvious that Carr’s taser data 3 was highly relevant. Azevedo never requested that the data be preserved, including when he sent 4 his first request for production. Carr documented one taser application, and there is no evidence 5 that more than one application was used. Prior to this motion, there was no reason to think that 6 the taser data was potentially relevant because there was no question that the taser was used. 7 Without questioning that the taser was used, the taser data’s relevance is unclear. The loss of the 8 data was inadvertent, and Azevedo can still make out a case based on his testimony, neighbor 9 witnesses, medical testimony, and photographs. Loss of the taser data does not impair Azevedo’s 10 case. 11 Legal Standard 12 Court’s have the inherent authority to impose sanctions against a party for the destruction 13 or spoliation of relevant evidence. Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 14 2006); Medical Lab. Mgmt. Consultants v. ABC, 306 F.3d 806, 824 (9th Cir. 2002); Glover v. 15 BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). A party engages in spoliation of evidence “as a 16 matter of law only if [the party] had ‘some notice that the documents were potentially relevant’ to 17 the litigation before [the evidence was] destroyed.” United States v. Kitsap Physicians Serv., 314 18 F.3d 995, 1001 (9th Cir. 2002). “A party does not engage in spoliation when, without notice of 19 the evidence’s potential relevance, it destroys the evidence according to its policy or in the 20 normal course of business.” United States v. $40,955.00, 554 F.3d 752, 758 (9th Cir. 2009). 21 The sanctions imposed for spoliation should be based upon, and take into account, the specific or 22 unique facts of the particular case. See Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. 23 Corp., 982 F.2d 363, 369 (9th Cir. 1992) (citing with approval Welsh v. United States, 844 F.2d 24 1239, 1246-47 (6th Cir. 1988)). Among the sanctions available to a court are default of a claim 25 or defense, preclusion of evidence, an adverse inference instruction, and monetary sanctions. In 26 re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1078 (N.D. Cal. 2006). 27 28 Dismissal or default “under a court’s inherent powers is justified in extreme circumstances, in response to abusive litigation practices, and to insure the orderly administration 39 1 of justice and the integrity of the court’s orders.” Halaco Engineering Co. v. Costle, 843 F.2d 2 376, 380 (9th Cir. 1988). “Before imposing the ‘harsh sanction’ of dismissal, however, the 3 district court should consider the following factors: (1) the public’s interest in expeditious 4 resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the 5 party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and 6 (5) the availability of less drastic sanctions.” Leon, 464 F.3d at 958. 7 Generally, preclusion of evidence is appropriate when the admission of such evidence 8 would “unfairly prejudice an opposing party” because of the spoliation. Unigard, 982 F.2d at 9 368; In re Napster, 462 F.Supp.2d at 1078. 10 “Short of excluding the disputed evidence, a trial court also has the broad discretionary 11 power to permit a jury to draw an adverse inference from the destruction or spoliation against the 12 party or witness responsible for that behavior.” Glover, 6 F.3d 1318 at 1329; see Akiona v. 13 United States, 938 F.2d 158, 161 (9th Cir. 1991). The adverse inference is based on two 14 rationales, one evidentiary and one deterrent. Akiona, 938 F.2d at 161. “The evidentiary 15 rationale is nothing more than the common sense observation that a party who has notice that a 16 document is relevant to litigation and who proceeds to destroy the document is more likely to 17 have been threatened by the document than is a party in the same position who does not destroy 18 the document.” Id. The deterrent rationale seeks to use the inference to deter “parties from 19 destroying relevant evidence before it can be introduced at trial.” Id. However, a “party should 20 only be penalized for destroying documents if it was wrong to do so, and that requires, at a 21 minimum, some notice that the documents are potentially relevant.” Id. “[W]hen relevant 22 evidence is lost accidentally or for an innocent reason, an adverse inference from the loss may be 23 rejected.” Medical Lab., 306 F.3d at 824. The availability of other sources or types of evidence, 24 in addition to the despoiled evidence, may be considered by a court in determining if a sanction is 25 warranted. See id. at 824-25. 26 Relevant Deposition Testimony 27 In relevant part, Azevedo testified: 28 A: . . . But I know when I fell, I fell – I didn’t fall – land on my face. I caught myself even after being electrocuted. That’s why I got scrapes – got scars 40 1 right – one right there and one right there. Both where I caught – where I actually caught myself from falling all the way on my face. 2 Q: Do you remember being tazed? A: Vaguely. I don’t actually recall where now. But I remember it kind of made me feel like jiggly, and I fell down. 5 Q: Did you fall forward? 6 A: Yeah, I fell forward. 7 Q: Okay. And what were your arms doing when you fell forward? 8 A: I went, like, to break my fall. Even – even though I just put my arms forward, and so I wouldn’t hit the ground. But I broke my fall from hitting directly full face – excuse me, from face first. 3 4 9 10 Azevedo Depo.:92:3-21.39 Azevedo was subsequently asked: 11 Q: So do you remember actually hitting the ground? 12 A: Yes, I was still conscious. 13 Q: And describe what happened when you fell. 14 A: I just fell. I broke my fall. I felt like I got picked up, and then I hit the ground and everything went black. I don’t remember after that. Q: And when you say you felt like you got picked up, where were you picked up? A: It felt like somebody had, like, grabbed my belt loop and picked me up by my back end right here, and I felt like they dropped me and everything went black. Q: How far off the ground did you go? A: I don’t know. I don’t know. I felt like I’d been lifted up. And I was off the ground. I know I was not imaginarying [sic] it. And I hit the ground and everything went black. 15 16 17 18 19 20 21 Azevedo Depo. 93:21-94:15. 22 Discussion 23 The Court will not enter a default order against Defendants on Azevedo’s excessive force 24 claim. The Court does not see a disobedience of its orders, “abusive” conduct by Defendants, or 25 extreme and outrageous behavior. See Halaco, 843 F.2d at 380. Azevedo’s evidence from TI 26 indicates that the taser was sent to them on July 21, 2009, for “warranty repair work,” the taser 27 28 39 Azevedo also described “getting zapped,” and getting “shot with electricity.” Azevedo Depo. 88:16-17, 93:3. 41 1 unit was not repairable, the unit was scrapped pursuant to policy, and the City was sent a 2 replacement unit two days later on July 23, 2009. See Fattahi Exhibit O. The letter from TI 3 indicates negligence, not bad faith. Without contrary evidence, it simply appears that Carr’s taser 4 was worn out, which is not surprising considering the incident with Azevedo occurred in 5 November 2007. Further, Carr admitted that he deployed his taser, Avila confirmed that Carr 6 deployed the taser, significantly the use of force sheet filled out by Sgt. Brown indicates that taser 7 darts were recovered from Azevedo’s person (one dart in the skin and one dart in the clothes), 8 and as listed above Azevedo in his deposition indicated that he was tasered. See Sealed Exhibits 9 E, G, K; Azevedo Depo. 88:16-17, 92:3-93:3. It is true that the taser data would likely have 10 definitively established whether the taser was in fact used. It appears that the question of 11 whether the taser was actually used is based exclusively on Ramon Ramirez’s testimony. 12 However, as shown above, Ramirez’s testimony appears contrary to Azevedo’s own testimony 13 which acknowledges that it was the taser that brought him down to the ground. The loss of the 14 taser data does not prevent Azevedo from utilizing Ramon Ramirez at trial.40 Similarly, Azevedo 15 has not shown how the loss of the taser data prevents him for establishing excessive force. 16 Azevedo still has his own testimony, photographs, medical testimony, and his expert witness. 17 Default is a very harsh sanction, and the Court does not see that the rationale for its use applies in 18 the circumstances of this case. See Halaco, 843 F.2d at 380. 19 With respect to the requested lesser sanction, for similar reasons, the Court does not 20 believe that precluding evidence of “the type and amount of force [the officers] used,” 21 see Court’s Docket Doc. No. 32 at p. 22:9-10, would be appropriate. The Court agrees with 22 Defendants that the inference requested by Azevedo, i.e. that the jury may infer that excessive 23 force was used, when combined with the preclusion of evidence by the defense regarding the type 24 of force that the officers employed, is tantamount to a directed verdict. In terms of prejudice, as 25 discussed above, Azevedo still has his own testimony, Ramirez’s testimony, his expert’s 26 testimony, photographs, and medical evidence which may show excessive force. Azevedo may 27 28 40 The Court notes that if the taser was not used, then Azevedo has no Monell claims based on the use of a taser against someone who is running on a hard surface. 42 1 be prejudiced in that, due to his black-out, he is unable to show that he was tasered multiple 2 times. However, Azevedo has pointed the Court to no evidence that actually indicates that 3 multiple taser applications were used. Further, the black-out may affect the damages that could 4 be recovered since Azevedo cannot recall anything after the black-out, which would include the 5 pain of additional taser applications. Further, the evidence regarding Monell liability seems to 6 generally focus on a single taser application. Roger Clark is critical of firing the taser against a 7 person who was running on a hard surface. Precluding the Defendants from offering evidence of 8 the force used would not permit them to answer Clark’s testimony/opinions. The preclusion that 9 Azevedo seeks would tip the scale too far in his favor relative to the evidence that was lost. The 10 11 Court will not grant Azevedo’s requested preclusion. Cf. Unigard, 982 F.2d at 368. Having said this, the Court is troubled by the destruction of the taser data. A rebutable 12 inference regarding the destruction of the taser may be appropriate. However, because Azevedo 13 has not expressly requested this remedy, the Court will not make a ruling at this time. Instead, 14 the Court will allow Azevedo, if he so chooses, to argue for a rebutable inference through a 15 motion in limine. 16 17 CONCLUSION 18 The parties have filed cross motions for summary judgment regarding the officers’ entry 19 into the Property’s front yard and Azevedo’s detention. The issues of standing, curtilage, initial 20 detention, and arrest are encompassed by these cross motions. 21 With respect to standing, Azevedo’s testimony identifies the person who gave him 22 permission, the reasons and circumstances behind that permission, and that he was able to 23 exclude the owner from the property. The owner, Coria, indicated that Azevedo excluded him 24 from the property and that Abraham, the person identified by Azevedo, rented the Property. No 25 evidence from Abraham was presented. The evidence is more than a bare assertion of “overnight 26 guest status.” However, the evidence presented could allow reasonable juries to reach different 27 conclusions. The evidence does not show standing or a lack there of as a matter of law. Both 28 motions on this issue will be denied. 43 1 As to curtilage, the evidence shows only that the front yard was enclosed and was close to 2 the house. There was inadequate evidence of any intimate or private use, there were separate 3 demarcations/fences within the Property, and there were no efforts to obstruct observation of the 4 front yard. Therefore, the front yard is not curtilage. Summary judgment in favor of Defendants 5 on this issue will be granted. 6 As to the initial detention of Azevedo, that is having him sit on the curb, the evidence 7 establishes that the officers had legitimate concerns for their safety, having Azevedo sit on the 8 curb is consistent with appropriate police practices, and the officers had reasonable suspicion that 9 the motorcycle was stolen and that a burglary or trespass was being committed. Under these 10 circumstances, the detention was reasonable. Alternatively, qualified immunity is appropriate 11 since a reasonable officer could reasonably conclude that the detention of Azevedo was 12 constitutional. Summary judgment in favor of Defendants on this issue will be granted. 13 As to Azevedo’s arrest, since Azevedo was lawfully detained, the officers had probable 14 cause to arrest Azevedo when he fled from the officers. Alternatively, a reasonable officer could 15 reasonably conclude under the circumstances that the arrest was constitutional. Summary 16 judgment in favor of Defendants on this issue will be granted. 17 Defendants also request summary judgment on Azevedo’s Monell claims. There are 18 triable issues of material fact regarding the training of officers with respect to taser and 19 uncontrolled falls over a hard surface, and on the policy of requiring officers who use force that 20 results in severe injury to conduct witness interviews. Summary judgment in favor of the City on 21 these two theories will be denied. However, Azevedo presented insufficient evidence with 22 respect to the other identified Monell theories. Summary judgment in favor of Defendants on the 23 remaining Monell theories will be granted. 24 Finally, Azevedo requests summary judgment on the issue of spoliation sanctions due to 25 the loss of taser data. Specifically, Azevedo requests an entry of default against Defendants on 26 his excessive force claim and alternatively requests an inference in favor of excessive for 27 combined with preclusion of evidence by the defense of the force that was used. However, under 28 the circumstances of the case, including the reason for the loss of taser, the other evidence 44 1 available, and Azevedo’s own testimony, these sanctions are too harsh. Summary judgment will 2 be denied. However, if he chooses to do so, Azevedo may file a motion in limine regarding the 3 propriety of a rebutable spoliation inference instruction.41 4 5 6 Accordingly, IT IS HEREBY ORDERED that: 1. Defendants’ motion for summary judgment is GRANTED in part and DENIED in part in 7 that: 8 a. Summary judgment on the issue of standing is DENIED; 9 b. Summary judgment on the issue of curtilage is GRANTED; 10 c. Summary judgment on the issues of detention and arrest is GRANTED; 11 d. Summary judgment on Monell liability for inadequate training regarding taser and 12 uncontrolled falls, and improper policy regarding witness interviews, as described 13 above, is DENIED; and 14 e. 15 Summary judgment on all other Monell theories, as described above, is GRANTED; 16 2. Plaintiff’s motion for summary judgment is DENIED; and 17 3. Plaintiff may file a motion in limine regarding the propriety of a rebutable inference 18 instruction regarding spoliation. 19 20 IT IS SO ORDERED. 21 Dated: 0m8i78 June 7, 2010 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 41 The motion in limine schedule will be set in the pre-trial order. 45
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