Marella v. City of Bakersfield et al, No. 1:2009cv00453 - Document 64 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION Regarding Defendants' Motion For Summary Judgment 45 , signed by Judge Oliver W. Wanger on 8/25/2010. (Gaumnitz, R)
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Marella v. City of Bakersfield et al Doc. 64 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:09-cv-00453-OWW-JLT LEONARD MARELLA, 9 MEMORANDUM DECISION REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT (Doc. 45) Plaintiff, 10 11 12 v. CITY OF BAKERSFIELD, et al., 13 Defendants. 14 I. 15 INTRODUCTION. 16 Plaintiff Leonard Marella (“Plaintiff”) proceeds with a civil 17 rights action pursuant to 42 U.S.C. § 1983 against Defendants the 18 City of Bakersfield, the Bakersfield Police Department, William 19 Rector, Anthony Hernandez, Dennis Park, Eric South, Paul Yoon, and 20 Stephen Kauffman (“Defendants”). 21 On April 14, 2010, Defendants filed a motion for summary 22 judgment. 23 on April 16, 2010. 24 (Doc. 45). Defendants filed a supplemental memorandum (Doc. 46). Plaintiff filed opposition to Defendants’ motion for summary 25 judgment on May 5, 2010. (Doc. 51). Defendants filed a reply to 26 Plaintiff’s opposition on May 12, 2010. 27 also filed evidentiary objections to Plaintiff’s opposition on May (Doc. 52). Defendants 28 1 Dockets.Justia.com 1 12, 2010. (Doc. 53).1 2 Defendants filed a motion to strike three of the declarations 3 submitted in support of Plaintiff’s opposition to their motion for 4 summary judgment on May 12, 2010. 5 file opposition to Defendants’ motion to strike. 6 7 (Doc. 54). Plaintiff did not Plaintiff filed a supplement to his opposition to the motion for summary judgment on May 25, 2010. (Doc. 55). II. FACTUAL BACKGROUND. 8 9 On March 11, 2008, Bakersfield Police Officers Anthony 10 Hernandez, Dennis Park, Paul Yoon, Stephen Kauffman, and Eric South 11 were present on the 100 block of El Tejon Avenue in Bakersfield, 12 California attempting to locate a robbery and attempted murder 13 suspect. (SUMF 2). 14 described as a Hispanic male, mid-twenties, with a thin mustache 15 and goatee, and was suspected of having stolen a gun safe that 16 contained several firearms. The suspect the officers were seeking was (SUMF 3, 4). 17 Hernandez, Yoon, Kauffman, and Park parked their patrol cars 18 and began to walk to the corner of El Tejon Avenue and California 19 Street, while South and his K9 unit entered the south alley of El 20 Tejon Avenue. 21 Tejon Avenue and California Street, Hernandez, Yoon, Kauffman, and 22 Park encountered Plaintiff. (SUMF 6). Plaintiff immediately began 23 running away from the officers. 24 Plaintiff to stop, but Plaintiff continued running. 25 Hernandez, Kauffman, and Yoon chased Plaintiff, while Park ran back (SUMF 5). Upon walking around the corner of El (SUMF 8). Hernandez ordered (SUMF 10). 26 1 27 28 Even absent the evidence subject to Defendants’ evidentiary objections, the record contains evidence sufficient to preclude summary judgment. Accordingly, the Court need not rule on Defendants’ evidentiary objections in order to adjudicate the motion for summary judgment. 2 1 to his patrol vehicle. 2 towards the alley. 3 (SUMF 11).2 South saw Plaintiff as he ran (SUMF 12).3 In an effort to evade the pursuing officers, Plaintiff jumped 4 over a fence and ran into a residence. 5 of the residence Plaintiff ran into refused to accept a monetary 6 bribe or to permit Plaintiff to hide from police in their house, so 7 Plaintiff exited the residence. 8 Plaintiff’s conduct upon exiting the residence. 9 Defendants’ Version 10 (SUMF 17). (SUMF 18). The occupants The parties dispute Defendants contend that Plaintiff began running immediately 11 upon exiting the residence. 12 Hernandez caught up with Plaintiff and attempted to grab him by the 13 shoulder. 14 motion, striking Hernandez in the chest and causing him to lose his 15 grip on Plaintiff. 16 21). 17 Plaintiff refused. 18 time in order to stop Plaintiff. (SUMF 20). (SUMF 18). According to Defendants, Plaintiff threw his arm back in an elbowing (SUMF 20). Plaintiff continued to run. (SUMF Hernandez ordered Plaintiff to get on the ground, but (SUMF 23). Hernandez deployed his taser one (SUMF 24). 19 Defendants allege that South could see Plaintiff holding 20 something in his hand as he fell to the ground after being tased, 21 and that Plaintiff put both of his hands underneath his body to 22 conceal whatever he was holding. 23 South, he ordered Plaintiff to show the officers his hands and 24 stated that if Plaintiff did not comply, he would release his K9. (SUMF 25, 26). According to 25 26 2 The facts identified in Plaintiff’s response to SUMF 11 do not controvert the pertinent information contained in SUMF 11. 27 3 28 Plaintiff contests portions of SUMF 12. Throughout this memorandum decision, only the undisputed portions of Defendants’ SUMF’s are included in the factual history, unless otherwise noted. 3 1 (SUMF 28). Kauffman struck Plaintiff one time on his lower body 2 and ordered Plaintiff to show his hands. 3 ordered Plaintiff to show his hands and again threatened to release 4 his K9. 5 his chest, at which point South ordered the K9 to engage him. 6 (SUMF 34). 7 Plaintiff kicked the K9 with his left leg, prompting the K9 to 8 release Plaintiff’s right leg and (SUMF 31). (SUMF 30). South again Plaintiff attempted to pull his knees towards The K9 engaged Plaintiff’s right leg. (SUMF 35). engage his left leg. (SUMF 36). 9 Ultimately, Plaintiff complied with South’s command to show 10 his hands, placing them in front of his body and rolling to his 11 right side. 12 of Plaintiff’s arms, and the K9 released his hold. 13 After Plaintiff was taken into custody, the officers picked up two 14 clear plastic bundles containing a substance later identified as 15 methamphetamine. 16 Plaintiff’s Version 17 (SUMF 38). The officers were then able to get control (SUMF 39, 40). (SUMF 41). Plaintiff states that as he exited the residence, officers 18 instructed him to raise his hands, and he complied. 19 at 25-26). 20 residence. 21 porch with his hands raised, he was tased on the left side of his 22 face and fell unconscious. 23 lay in the hospital bed, there was taser dart under his left arm. 24 (Id. at 33). Plaintiff contends he did not run upon exiting the (Marella Dec. at 26). As Plaintiff was standing on the (Id.). Plaintiff recalls that as he III. LEGAL STANDARD. 25 26 (Marella Dec. Summary judgment/adjudication is appropriate when "the 27 pleadings, the discovery and disclosure materials on file, and any 28 affidavits show that there is no genuine issue as to any material 4 1 fact and that the movant is entitled to judgment as a matter of 2 law." Fed. R. Civ. P. 56(c). The movant "always bears the initial 3 responsibility of informing the district court of the basis for its 4 motion, 5 depositions, answers to interrogatories, and admissions on file, 6 together with the affidavits, if any, which it believes demonstrate 7 the absence of a genuine issue of material fact." Celotex Corp. v. 8 Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 9 (1986) (internal quotation marks omitted). and identifying those portions of the pleadings, 10 Where the movant will have the burden of proof on an issue at 11 trial, it must "affirmatively demonstrate that no reasonable trier 12 of fact could find other than for the moving party." 13 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 14 respect to an issue as to which the non-moving party will have the 15 burden of proof, the movant "can prevail merely by pointing out 16 that there is an absence of evidence to support the nonmoving 17 party's case." Soremekun, 509 F.3d at 984. Soremekun v. With 18 When a motion for summary judgment is properly made and 19 supported, the non-movant cannot defeat the motion by resting upon 20 the 21 "non-moving party must set forth, by affidavit or as otherwise 22 provided in Rule 56, 'specific facts showing that there is a 23 genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting 24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 25 2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or 26 a mere scintilla of evidence in his favor are both insufficient to 27 withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 28 (9th Cir. 2009). "[A] non-movant must show a genuine issue of allegations or denials of 5 its own pleading, rather the 1 material fact by presenting affirmative evidence from which a jury 2 could find in his favor." Id. (emphasis in original). "[S]ummary 3 judgment will not lie if [a] dispute about a material fact is 4 'genuine,' that is, if the evidence is such that a reasonable jury 5 could return a verdict for the nonmoving party." 6 U.S. at 248. In determining whether a genuine dispute exists, a 7 district court does not make credibility determinations; rather, 8 the 9 justifiable inferences are to be drawn in his favor." Id. at 255. "evidence of the non-movant to be believed, and all IV. DISCUSSION. 10 11 is Anderson, 477 A. Plaintiff’s Claims Against Municipal Defendants 12 Local 13 "constitutional 14 Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't 15 of Soc. Servs., 436 U.S. 658, 691 n. 55). " 16 government can be held liable for its official policies or customs, 17 it will not be held liable for an employee's actions outside of the 18 scope of these policies or customs. 19 governments tort[s]" are "persons" under 42 subject U.S.C. § to 1983. suit for Haugen v. Although a local 23 [T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional [*10] tort. In particular, … a municipality cannot be held liable solely because it employs a tortfeasor, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. 24 Monell, 436 U.S. at 691. A local government’s police department is 25 subject to liability under the Monell framework. 26 Lassiter v. City of Bremerton, 556 F.3d 1049, 1055 (9th Cir. 2009) 27 (“Under Monell...[plaintiffs] must show that the Bremerton Police 28 Department has a custom or policy of tolerating and allowing 20 21 22 6 See, e.g., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unlawful arrests and arrests with unreasonable force”). As alternatives to proving the existence of a policy or custom of a municipality, a plaintiff may show: (1) "a longstanding practice or procedure' custom of which the constitutes local the government 'standard entity;" operating (2) "the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision;" or (3) "the official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate." Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). The Ninth Circuit has held that a municipal policy "may be inferred from widespread practices or violations for the which evidence errant of repeated municipal constitutional officers were not discharged or reprimanded." Id. 1. Bakersfield Police Department As Defendants point out, although the caption of the complaint identifies the Bakersfield Police Department as a Defendant, the complaint is devoid of allegations regarding any conduct on the part of the Bakersfield Police Department. Failure to allege facts sufficient to establish the a claim for municipal liability renders summary judgment appropriate as to the municipal entity. See, e.g., Annan-Yartey v. Honolulu Police Dep't, 351 Fed. Appx. 243, 246 (9th Cir. 2009) (unpublished) (affirming grant of summary judgment to police department where there were no allegations sufficient to establish department’s liability under Monell); accord Blankenhorn v. City of Orange, 485 F.3d 463, 484-85 (9th Cir. 2007) (affirming grant of summary judgment to municipal entity 7 1 2 3 4 5 where plaintiff failed to present sufficient evidence to establish Monell liability at summary judgment stage); Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996) (same). summary judgment on Plaintiff’s claim against the Bakersfield Police Department is GRANTED.4 2. 6 City of Bakersfield The complaint contains the following allegations regarding the 7 8 Defendants’ motion for City of Bakersfield: 9 25. The City of Bakersfield developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of persons in Bakersfield, which caused the violation of plaintiff’s rights. 26. It was the policy and/or custom of the City of Bakersfield and Chief of Police to inadequately and improperly investigate citizens complaints of police misconduct, and acts of misconduct were instead tolerated by the City of Bakersfield and Chief of Police, including, but not limited to, the following incidents: a. [plaintiff may, but is not required to list such prior incidents as may be known to him] 10 11 12 13 14 15 27. It was the policy and/or custom of the city of Bakersfield and Chief of Police to inadequately supervise and train its officers, including the defendant officers, therefailing to adequately discourage further constitutional violations on the part of its police officers. The city did not require appropriate in-service training or re-training of officers who were known to have engaged in police misconduct. 16 17 18 19 20 28. As a result of the above described policies and customs, police of the City of Bakersfield, including the defendant officers, believed that their actions would not be properly monitored by supervisory officers that misconduct would not be investigated or sanctioned, but would be tolerated. 21 22 23 29. The above described policies and customs demonstrated a deliberate indifference on the party of the policymakers of the city of Bakersfield to the constitutional rights of persons within the city, and 24 25 26 27 28 4 At oral argument, Plaintiff’s counsel conceded that Defendants’ motion for summary judgment on Plaintiff’s claims against the Bakersfield Police Department should be granted. 8 1 were the cause of the violations of plaintiff’s rights alleged herein. 2 Plaintiff fails to present any evidence in support of the 3 complaint’s allegations against the City of Bakersfield. Further, 4 Plaintiff’s opposition to the motion for summary judgment does not 5 address the propriety of summary judgment on Plaintiff’s municipal 6 liability claim. Defendants have presented uncontroverted evidence 7 that the City of Bakersfield provides adequate training to its 8 (SUMF 48).5 officers concerning use of force. Accordingly, 9 Defendants’ motion for summary judgment on Plaintiff’s claim 10 against the city of Bakersfield is GRANTED.6 11 B. Plaintiff’s Section 1983 Claims Against Individual Defendants 12 1. Defendant Rector 13 At all times relevant to this action, Defendant Rector was 14 Bakersfield’s Chief of Police. In a section 1983 action, there is 15 no such thing as “supervisory liability,” because "[e]ach 16 Government official, his or her title notwithstanding, is only 17 liable for his or her own misconduct." Ashcroft v. Iqbal, 129 S. 18 Ct. 1937, 1949 (2009). To survive summary judgment, Plaintiff must 19 present evidence that Rector acted or failed to act 20 unconstitutionally. See id. Plaintiff presents no such evidence. 21 22 5 26 Plaintiff purports to dispute SUMF 48 on two grounds: (1)“No evidence at all supports this;” and (2) “the actions speak for themselves and the conduct of the officers indicate [sic] that they were inadequately trained.” Plaintiff’s attempt to dispute SUMF 48 fails on both counts. SUMF 48 is based on admissible evidence set forth in the declaration of Curtis J. Cope. Plaintiff offers no evidence to support his conclusory contention that because he was subjected to allegedly excessive force, the City of Bakersfield must not have adequately trained its officers. 27 6 23 24 25 28 At oral argument, Plaintiff’s counsel conceded that Defendants’ motion for summary judgment on Plaintiff’s claims against the City of Bakersfield should be granted. 9 1 It is undisputed that Rector was unaware of the events occurring on 2 March 11, 2008 until after the incident. 3 undisputed that the arresting officers did not consult Rector at 4 any time prior to the incident. 5 evidence that Rector had any involvement in the events underlying 6 Plaintiff’s complaint whatsoever. Plaintiff’s opposition to the 7 motion for summary judgment does not contest the propriety of 8 summary judgment as to Rector.7 9 for 10 summary judgment on (SUMF 47). (SUMF 46). It is also In short, there is no Accordingly, Defendants’ motion Plaintiff’s claim against Rector is GRANTED. 2. 11 Defendant Hernandez a. Constitutional Violation 12 13 Allegations of excessive force are examined under the Fourth 14 Amendment's prohibition on unreasonable seizures. 15 Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford, 272 F.3d 16 1272, 1279 (9th Cir. 2001). 17 balancing 18 individual's interests against the countervailing governmental 19 interests at stake. 20 force inquiries require balancing of the amount of force applied 21 against the need for that force under the circumstances. 22 v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003). 23 violates an individuals constitutional rights under the Fourth 24 Amendment where the force used was objectively unreasonable in 25 light of the facts and circumstances confronting them. 26 Graham, 490 U.S. at 397. of the quality E.g. Graham v. Fourth Amendment analysis requires and nature of the intrusion Graham, 490 U.S. at 396. on an Thus, Excessive Meredith Use of force E.g. 27 7 28 At oral argument, Plaintiff’s counsel conceded that Defendants’ motion for summary judgment on Plaintiff’s claims against William Rector should be granted. 10 (i) Quantum of Force 1 2 Plaintiff contends that as he exited the residence, officers 3 ordered him to raise his hands, and he complied. (Marella Dec. at 4 26). According to Plaintiff, Hernandez tased him in the face while 5 he was standing stationary on the front porch of the residence with 6 his hands raised above his head.8 7 Plaintiff is quantified as intermediate, non-deadly force under the 8 law of the Ninth Circuit. 9 (9th Cir. 2010). The force Hernandez employed on Bryan v. MacPherson, 608 F.3d 614, 622 An officer’s use of a taser on an individual must 10 be justified by “a strong government interest that compels the 11 employment of such force.” 12 v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir.2003)). Id. (quoting Drummond ex rel. Drummond (ii) Government’s Interest in Intermediate Force 13 14 The government’s interest in the use of force is based on the 15 totality of the circumstances. MacPherson, 608 F.3d at 622. Three 16 “core factors” guide inquires into the government’s interest in the 17 use of force: (1) the severity of the crime at issue; (2) whether 18 the suspect posed an immediate threat to the safety of the officers 19 or others; and (3) whether the suspect was actively resisting 20 arrest or attempting to evade arrest by flight. 21 Graham, 490 U.S. at 396). 22 suspect posed an immediate threat to the safety in light of 23 objective facts the officer was confronted with. Id. (citing Smith 24 v. City of Hemet, 394 F.3d 689, 702 (9th Cir.2005) (en banc) and 25 Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)). Id. (quoting The most important factor is whether the 26 27 28 8 Neither the complaint nor Plaintiff’s deposition testimony specifies that Hernandez was the individual who first tased Plaintiff, however, Hernandez concedes he tased Plaintiff after Plaintiff exited the residence. 11 1 It is undisputed that Defendants suspected Plaintiff of having 2 committed a robbery, and that the officers observed Plaintiff 3 resisting arrest. 4 interest in apprehending criminal suspects, and that interest is 5 even stronger when the criminal is suspected of a felony, which is 6 by definition a crime deemed serious by the state. 7 County, 340 F.3d 959 , 964 (9th Cir. 2003) (citation omitted). 8 crime Plaintiff was suspected of having committed weighs against a 9 finding that Hernandez employed excessive force. 10 The government has an undeniable legitimate Miller v. Clark The According to Plaintiff, at the time Hernandez tased him in the 11 face, Plaintiff was standing stationary on the porch of the 12 residence with his hands above his head after complying with the 13 officers’ order to raise his hands. 14 the facts, he posed no immediate threat to safety under the 15 circumstances, as he had ceased resisting arrest, had complied with 16 the officers’ commands to raise his hands, and was submitting to 17 arrest. See Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 18 2001) (suspect’s compliance with commands and absence of physical 19 assault on officers established lack of immediate threat); compare 20 Smith v. City of Hemet, 394 F.3d 689, 702-03 (9th Cir. 2005) (no 21 immediate threat posed by subject who continually ignored the 22 officers' requests to remove his hands from his pajamas and to 23 place them on his head but eventually complied and showed no signs 24 of fleeing the area)9 with Mattos v. Agarano, 590 F.3d 1082, 1080 Under Plaintiff’s version of 25 26 27 28 9 In Smith, the officers had no reason to suspect that the pajama-clad suspect possessed a weapon. By contrast, here, Defendants contend they suspected Plaintiff was armed because they believed he had robbed an individual of a safe containing several firearms. However, because the record does not indicate when the suspected robbery occurred, the reasonableness of the Defendants’ purported belief that Plaintiff was armed cannot be ascertained. 12 1 (9th Cir. 2010) (close quarters encounter with intoxicated suspect 2 who was yelling profanities at officers and ordering them to leave 3 while 4 immediate threat); see also Miller v. Clark County, 340 F.3d 5 959,965 (9th Cir. 2005) (immediate threat present where fleeing 6 felony suspect, whom officers believed was armed, was hiding in 7 woods at night and could have ambushed officers). 8 Plaintiff did not pose an immediate threat weighs strongly in favor 9 of a finding of excessive force. another person attempted to impede arrest constituted The fact that Additionally, the fact that 10 Plaintiff was not fleeing or resisting arrest when he was tased by 11 Hernandez also weighs in favor of a finding of excessive force. 12 Although the balance of the “core factors” weighs in favor of 13 a finding of excessive force, other circumstances Hernandez was 14 confronted with militate against a finding of excessive force. 15 Unlike the facts in cases such as Deorle, Smith, and Bryan, 16 Plaintiff was wearing clothing that made it impossible for the 17 officers to dispel their suspicion that Plaintiff was armed. (See 18 Hernandez Dep. at 44). Although, according to Plaintiff, his hands 19 were raised above his head, he could have retrieved a concealed 20 weapon from somewhere on his person within seconds. 21 Plaintiff was standing no more than few steps away from the front 22 door 23 situation. 24 1997) 25 neighborhood 26 implicated risk calculus in the minds of pursuing officers). of a residence, creating the potential Additionally, for a hostage See Forrett v. Richardson, 112 F.3d 416, 421 (9th Cir. (fact that suspect created was fleeing potential for through hostage a residential situation that 27 Whether Hernandez’s use of intermediate force on Plaintiff was 28 excessive under the totality of the circumstances presented is a 13 1 difficult question, however, in light of the fact that Plaintiff 2 had purportedly complied with the officers’ commands to raise his 3 hands, was no longer fleeing, and was not engaged in “particularly 4 bellicose” 5 constitutionally excessive. resistance, the force employed by Hernandez was See Bryan, 608 F.3d at 626. 6 b. Qualified Immunity 7 Government officials are generally shielded from liability for 8 civil damages insofar as their conduct does not violate clearly 9 established statutory or constitutional rights of which a 10 reasonable person would have known. 11 Fitzgerald, 457 U.S. 800, 818 (1982)). In Bryan, the Ninth Circuit 12 held that the dearth of legal authority regarding the use of tasers 13 and 14 unconstitutional use of a taser a reasonable mistake of law that 15 was not clearly established at the time. 16 decided June 18, 2010; it cannot serve as authority for clearly 17 established law in this case which occurred before Bryan was 18 decided. In light of Bryan, Hernandez is entitled to qualified 19 immunity. 20 21 22 23 24 25 26 recent cases in the Ninth Id. at 628 (quoting Harlow v. Circuit rendered an officer’s Id. at 629. Bryan was The Ninth Circuit summarized the relevant facts of Bryan as follows: Bryan was stopped at an intersection when Officer MacPherson, who was stationed there to enforce seatbelt regulations, stepped in front of his car and signaled to Bryan that he was not to proceed... Officer MacPherson requested that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, but as he pulled his car to the curb, angry with himself over the prospects of another citation, he hit his steering wheel and yelled expletives to himself. Having pulled his car over and placed it in park, Bryan stepped out of his car. 27 28 ...Bryan was agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer 14 1 2 3 4 5 6 7 8 9 shorts and tennis shoes...Bryan did not verbally threaten Officer MacPherson and, according to Officer MacPherson, was standing twenty to twenty-five feet away and not attempting to flee. Officer MacPherson testified that he told Bryan to remain in the car, while Bryan testified that he did not hear Officer MacPherson tell him to do so. The one material dispute concerns whether Bryan made any movement toward the officer. Officer MacPherson testified that Bryan took “one step” toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from Officer MacPherson. Without giving any warning, Officer MacPherson shot Bryan with his taser gun. One of the taser probes embedded in the side of Bryan's upper left arm. The electrical current immobilized him whereupon he fell face first into the ground, fracturing four teeth and suffering facial contusions. 10 608 F.3d 618-19. Hernandez was faced with a more dangerous 11 situation than a routine traffic stop. Even accepting Plaintiff’s 12 version of the facts, Hernandez was engaged in hot pursuit of a 13 person suspected of a violent felony who had already made a 14 significant effort to evade officers and resist arrest. Unlike the 15 man tased in Bryan, Plaintiff was fully clothed, facing Hernandez, 16 and was suspected of having a weapon. Hernandez mistaken belief 17 that he could lawfully employ his taser was at least as reasonable 18 as the officer’s mistake in Bryan. Accordingly, Defendants’ motion 19 for summary judgment on the issue of qualified immunity as to 20 Hernandez is GRANTED. 21 3. Officer South 22 a. Constitutional Violation 23 Whether a K9 engagement constitutes deadly force is an open 24 question in the Ninth Circuit. Smith v. City of Hemet, 394 F.3d 25 689, 707 (9th Cir. 2005). At a minimum, a K9 strike presents at 26 least the same quantum of “painful and frightening” intermediate 27 force as a taser in dart-mode. 28 15 See Bryan, 608 F.3d at 622 1 (discussing quantum of force associated with tasers). Like a 2 taser, a K9 strike entails high levels of physical pain and a 3 foreseeable risk of injury. Id. 4 Accepting Plaintiff’s version of the facts as required in the 5 context of Defendants’ motion for summary judgment, officer South 6 employed excessive force on Plaintiff. 7 was attacked by a K9 while he was lying on the floor incapacitated, 8 and a rational jury could accept Plaintiff’s account in light of 9 evidence on the record. (Id.). 10 ordered Plaintiff. 11 Plaintiff fell to the floor immediately after being tased and was 12 incapacitated for four to five seconds. (Hernandez Dep. at 43-45). 13 South testified at his deposition he ordered the K9 strike within 14 seconds of Plaintiff being tased, (South Dep. at 18-20), from which 15 a rational jury could infer that when South ordered his K9 unit to 16 engage, Plaintiff was incapacitated and posed no threat. a K9 strike on Plaintiff contends that he It is undisputed that South According to Hernandez, 17 As discussed above, Hernandez’s use of a taser was excessive 18 under Plaintiff’s version of the facts, despite the government’s 19 strong interest in arresting Plaintiff and the potential risk posed 20 by Plaintiff. 21 not constitutionally justified under all the circumstances, as 22 Plaintiff posed much less of a threat after he had been tased and 23 was laying incapacitated on the ground with a taser dart lodged in 24 his body. 25 strike on Plaintiff. 26 according to Plaintiff, South’s use of intermediate force was 27 excessive. See, e.g., Vathekan v. Prince George's County, 154 F.3d 28 173, 178 (4th Cir. 1998) (an attack by an unreasonably deployed A fortiori, South’s imposition of a K9 strike was It is undisputed that South witnessed Hernandez’s taser Under the totality of the circumstances 16 1 police dog in the course of a seizure is a Fourth Amendment 2 excessive force violation). b. Qualified Immunity 3 4 No reasonable police officer could believe that ordering a K9 5 strike on a compliant and incapacitated suspect is constitutionally 6 permissible. 7 (11th Cir. 2000); Rogers v. City of Kennewick, 304 Fed. Appx. 599, 8 601 9 qualified immunity for unreasonable use of K9); see also Vathekan, 10 154 F.3d at 179 (precedent existing in 1995 clearly established 11 that failure to give a warning before releasing a police dog is 12 objectively unreasonable in an excessive force context); Szabla v. 13 City of Brooklyn Park, 486 F.3d 385, 397 (8th Cir. 2007) (same). 14 According to Plaintiff, he had ceased resisting arrest and had 15 complied with the officers’ commands to raise his hands above his 16 head when Hernandez tased him. 17 the evidence on the record that South ordered the K9 to engage 18 Plaintiff with knowledge that Plaintiff was incapacitated from the 19 taser strike. 20 South’s 21 reasonable mistake of law. 22 the basis of qualified immunity is DENIED. 23 24 (9th Priester v. City of Riviera Beach, 208 F.3d 919, 927 Cir. use 2008) (unpublished) (officer not entitled to A rational jury could infer from Accepting Plaintiff’s version of the facts as true, of intermediate force cannot be classified as a South’s motion for summary judgment on 4. Remaining Defendants a. Constitutional Violation 25 The record contains evidence sufficient to permit a rational 26 jury to conclude that Kauffman, Yoon, and Park each employed some 27 quantum of intermediate force on Plaintiff after he had been tased 28 by Hernandez. (Kauffman Dec. at 2) (stating that Kauffman struck 17 1 Plaintiff with a baton); (Park Dec. at 2) (stating that park 2 quickly stepped on Plaintiff’s hand); (South Dep. at 23) (stating 3 that Yoon kicked Plaintiff). 4 Plaintiff’s 5 Defendants contend Plaintiff was continuing to defy the officers’ 6 commands by refusing to show his hands and was continuing to resist 7 arrest. According to Plaintiff, he was unconscious from the moment 8 he was tased by Hernandez until the moment he woke up in the 9 hospital. conduct A factual dispute exists regarding subsequent to being tased by Hernandez. Accepting Plaintiff’s version of the facts as true, a 10 rational jury could conclude that Kauffman, Park, and Yoon each 11 used force on Plaintiff while he was unconscious and incapacitated. 12 Gratuitous use of force when a criminal suspect is not resisting 13 arrest constitutes excessive force. See, e.g., Reese v. Herbert, 14 527 F.3d 1253, 1273-74, (11th Cir. 2008). 15 b. Qualified Immunity 16 It is clearly established that a law enforcement officer may 17 not use force on a compliant suspect already under the officer's 18 control and not resisting detention or trying to flee. 19 v. Layton Hills Mall, 312 F.3d 1304, 1314-15 (10th Cir. 2002); 20 Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006) 21 (holding that it has long been established in that circuit that 22 "the use of force after a suspect has been incapacitated or 23 neutralized is excessive as a matter of law" and citing cases). 24 Accordingly, 25 immunity. 26 these Defendants are not entitled to E.g. Olsen qualified The motion is DENIED. c. Assault and Battery Claims 27 Under California law, the legality of a seizure is measured by 28 the reasonableness standard of the Fourth Amendment. See Edson v. 18 1 City of Anaheim, 63 Cal. App. 4th 1269, 1272-73, 74 Cal. Rptr. 2d 2 614 3 Defendants’ actions depends on resolution of factual disputes 4 concerning 5 Accepting Plaintiff’s version of the facts as true, Defendants used 6 excessive force and thus Defendants are not entitled to summary 7 judgment on Plaintiff’s state law claims for assault and battery. 8 The motion is DENIED. (1998). As discussed Plaintiff’s above, conduct the upon reasonableness leaving the of the residence. ORDER 9 10 For the reasons stated, IT IS ORDERED: 11 1) Defendants’ motion for summary judgment as to Plaintiff’s 12 section 1983 claim against Defendant Hernandez on the basis of 13 qualified immunity is GRANTED; 14 2) Defendants’ motion for summary judgment as to the City of 15 Bakersfield and Bakersfield Police Department is GRANTED; 16 3) Defendants’ motion for summary judgment as to Defendant 17 Rector is GRANTED; 18 4) Defendants’ motion for summary judgment as to Defendants 19 Park, South, Yoon, and Kauffman is DENIED; and 20 5) Defendants shall submit a form of order consistent with 21 this Memorandum Decision within five (5) days of entry of this 22 order. 23 24 IT IS SO ORDERED. 25 Dated: hkh80h August 25, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 26 27 28 19
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