Eller v. City of Santa Rosa et al
Filing
67
ORDER by Judge Thelton E. Henderson granting in part and denying in part 53 Motion for Summary Judgment. (tehlc4, COURT STAFF) (Filed on 6/10/2010)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
TROY ALAN ELLER, Plaintiff, NO. C09-01094 TEH ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CITY OF SANTA ROSA, et al., Defendants.
United States District Court
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For the Northern District of California
This matter came before the Court on June 7, 2010, on Defendants' motion for
12 summary judgment. Plaintiff Troy Alan Eller ("Eller" or "Plaintiff") brings this civil rights 13 action against four Defendants Tommy Isachsen ("Isachsen") and Kyle Philp ("Philp"), 14 both officers with the Santa Rosa Police Department ("SRPD"), and the City of Santa Rosa 15 ("City") and SRPD (collectively, "Defendants") based on his arrest at Santa Rosa 16 Memorial Hospital in the early morning hours of October 29, 2006. Eller alleges that 17 Isachsen and Philp arrested him without probable cause and with excessive force. 18 Defendants move for summary judgment, arguing that there was no constitutional violation 19 and that they are protected by qualified immunity. For the reasons set forth below, 20 Defendants' motion is GRANTED in part and DENIED in part. 21 22 BACKGROUND 23 The events surrounding Eller's arrest began late in the evening on Saturday, October
24 28, 2006, and spilled into the early morning hours of Sunday, October 29 the weekend 25 before Halloween. At the time, Eller was 39 years old, weighed approximately 300 pounds 26 and stood 6'1". He suffered from epilepsy, which was noted on a medical alert bracelet that 27 he wore, and had a cognitive disorder resulting from emergency brain surgery a decade 28 earlier.
1
Eller consumed three beers at his apartment in Santa Rosa between 7 and 10:30 on
2 Saturday night and walked to downtown Santa Rosa around 11:00 to observe the Halloween 3 costumes and festivities. Eller was pushed to the ground as he attempted to navigate a rowdy 4 crowd outside a bar, landing on his left knee and aggravating a previous injury; his hat was 5 thrown into a bush. Eller waited at a gas station across the street until the crowd cleared out, 6 then returned to retrieve his hat and begin walking home. However, his knee was inflamed 7 and made walking difficult; he sat on the curb at the suggestion of a nearby police officer, 8 who called an ambulance on his behalf. 9 The ambulance arrived at 1:12 am on October 29, at the corner of Mendocino Avenue
10 and Cherry Street. According to paramedic Janet Doty's notations in the patient care report,
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11 Eller stated that he had been drinking heavily at a bar, was punched by someone while
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12 walking downtown, and fell to his knee due to alcohol. Doty noted that Eller was 13 intoxicated, and that no other trauma was apparent. The only reason he gave for going to the 14 hospital was hunger and a desire to sleep. Eller was transported by ambulance to Santa Rosa 15 Memorial Hospital ("Hospital"), arriving at 1:34 am. 16 The emergency room at that hour was at "overflow" status, meaning the number of
17 patients exceeded the number of beds. Eller was placed in a hallway on a gurney alongside 18 the nurse's station, directly across from a series of patient rooms separated from him by only 19 a light privacy curtain. Those rooms were occupied by an elderly woman with complaints of 20 blurred vision and partial paralysis; a middle-aged man experiencing chest pains; and a child 21 with a high fever. 22 Eller's account of what transpired within the Hospital differs in key respects from the
23 version offered by Defendants and Hospital staff. According to Eller, the first member of the 24 emergency room staff to examine him held open his left eye and shone a light into it, which 25 made him uncomfortable; Eller protested, saying, "Leave me alone. Get the fuck out of 26 here." Anne Musaelian, an emergency room technician, was later able to take his vital signs 27 without incident. Dr. Ian Chuang also conducted an initial examination, concluding that he 28 2
1 was mildly intoxicated. Eller was instructed by nurses to remain on the gurney until a doctor 2 could examine his knee. 3 Eller then recalls being approached by Isachsen. Eller explained that he needed to use
4 the restroom, but Isachsen would not allow him to get up until he was seen by a doctor. Eller 5 repeated the request, and Isachsen again refused. In his third attempt, Eller asked if Isachsen 6 or a nurse could accompany him to the restroom, but Isachsen told him to "wait for the 7 doctor." Finally, Eller slid himself onto his right leg while still leaning against the gurney 8 and told Isachsen, "I gotta go." Eller recalls that Isachsen then shot him in the chest with a 9 Taser from about an arm's length distance; Eller immediately fell to the ground, where 10 Isachsen wrestled him down and restrained him in handcuffs. Eller experienced urinary
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11 incontinence during the commotion and wet his pants. Eller claims that the officers then
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12 dragged him out of the Hospital and to the patrol car, and took him into custody at the 13 Sonoma County Adult Detention Facility. Eller contends that he suffered long-term scarring 14 and loss of strength in his wrists as a result of the tight strapping of the handcuffs. 15 Defendants present a far more detailed account of what transpired within the
16 emergency room. Mark Drafton, a hospital employee and licensed paramedic, was told by 17 the paramedic who brought Eller into the hospital that Eller was "ETOH positive," meaning 18 he was possibly drunk.1 Drafton informed Eller that he would be taking Eller's vital signs, 19 but Eller resisted, removing the blood pressure cuff and hanging it on the side of the gurney; 20 Drafton tried again, and Eller again removed the cuff and said, "Fuck you." Drafton then 21 informed the charge nurse, Louise Burns, that Eller was being uncooperative, and asked for 22 others to watch Eller in the event Drafton needed help preventing him from straying into 23 areas occupied by other patients. 24 According to Defendants, Eller then arose from his gurney and began walking toward
25 Patient Room 3, which was directly across from his gurney. Drafton stood in Eller's way 26 and asked him to return to his gurney. Eller replied, "Fuck you," and began to approach the 27 28
1
"ETOH" is an abbreviation for ethanol (alcohol). 3
1 neighboring Patient Room 4, where again Drafton intervened and instructed him to return to 2 the gurney, which Eller finally did. Musaelian was in Patient Room 4 at the time and heard 3 the commotion outside; she opened the curtain and saw Eller approaching her room as 4 Drafton and other staff members tried to get him to return to his bed. Musaelian 5 characterized Eller's demeanor as "very assertive, aggressive, threatening," and said she was 6 scared of him. Although Drafton did not fear for his personal safety, he was concerned about 7 the safety of the patients in the neighboring hospital rooms. Drafton then made eye contact 8 with Isachsen and summoned him for assistance; Musaelian also recalls waving down 9 Isachsen and Philp, both of whom were in uniform and at the hospital for unrelated matters. 10 Isachsen noted in his incident report that he had heard staff telling Eller to lay down on the
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11 gurney moments before both Drafton and Burns requested his assistance.
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12
Isachsen initially approached and stood by without doing anything further, believing
13 that the presence of a uniformed officer by itself could resolve the matter. He intervened 14 only after hearing emergency room staff ask Eller to remain in place and observing Eller 15 disobey those instructions. Isachsen told Eller to slide back onto the gurney, said he could 16 not roam about the emergency room, and advised him that he could be arrested for causing a 17 disturbance in the emergency room if he failed to comply. Isachsen never asked Eller why 18 he sought to get up from the gurney. Eller responded, "Fuck you," slid off the gurney and 19 stood. Isachsen then reached to grab Eller's right hand to place him in a twist lock and gain 20 his compliance, but Eller twisted backwards, appearing to swing at Isachsen. Drafton 21 observed Eller lunge towards Isachsen. Philp, on Isachsen's left side, tried to grab Eller's 22 left hand, but Eller pushed Philp backwards about three feet. Eller himself came off balance 23 at that point, which allowed Isachsen and Philp to bring him to the ground. Although 24 Isachsen told Eller to stop resisting and attempted to place him in handcuffing position, Eller 25 continued to ignore his commands. As Philp attempted to get Eller's hands into handcuffs, 26 Isachsen warned Eller that he would use the Taser if Eller did not comply. Eller again failed 27 to respond. 28 4
1
Isachsen withdrew his Taser, removed the tip, and deployed it on the upper right side
2 of Eller's back as Eller rolled back and forth, which did not appear to have any effect; 3 Isachsen redeployed the Taser lower on Eller's back, which was effective. According to 4 Defendants, the Taser was deployed in "drive stun" mode, in which metal contacts are 5 pressed directly against the suspect, releasing electrical energy that causes localized pain but 6 does not disrupt the nervous system. The more debilitating Taser mode is "dart probe," in 7 which two darts are fired over a distance of 20 to 25 feet, lodge into the skin with barbed 8 hooks, and discharge a jolt of electrical energy that disrupts voluntary muscle control; that 9 mode was not used on Eller, Defendants assert. The officers were then able to get Eller into 10 handcuffs, using two sets of cuffs that were latched together due to Eller's large size.
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Eller was again examined by Dr. Chuang, who did not chart or recall having removed
12 any Taser dart probes or treating any puncture wounds on Eller's chest. He was discharged 13 from the Hospital, transported to Sonoma County Detention Center, and charged with 14 obstructing and assaulting a police officer, Cal. Pen. Code §§ 148(a)(1), 241. The criminal 15 charges were dismissed after a hearing in state court on June 27, 2007. 16 Eller commenced this action in the Superior Court of California, Sonoma County, on
17 October 29, 2008. The matter was removed to this Court on March 12, 2009. In addition to 18 naming the present Defendants, Eller also brought claims against the Hospital and Drafton, 19 which he voluntarily dismissed on March 1, 2010. He brings the remaining two claims for 20 excessive force and unreasonable search and seizure pursuant to 42 U.S.C. § 1983. 21 Defendants moved for summary judgment on April 19, 2010, and Eller opposed the motion. 22 23 LEGAL STANDARD 24 Summary judgment is appropriate when there is no genuine dispute as to material
25 facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 26 Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, 27 Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is 28 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The 5
1 Court may not weigh the evidence and must view the evidence in the light most favorable to 2 the nonmoving party. Id. at 255. The Court's inquiry is "whether the evidence presents a 3 sufficient disagreement to require submission to a jury or whether it is so one-sided that one 4 party must prevail as a matter of law." Id. at 251-52. 5 A party seeking summary judgment bears the initial burden of informing the court of
6 the basis for its motion, and of identifying those portions of the pleadings and discovery 7 responses that "demonstrate the absence of a genuine issue of material fact." Celotex Corp. 8 v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof 9 at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other 10 than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
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11 2007). However, on an issue for which its opponent will have the burden of proof at trial, the
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12 moving party can prevail merely by "pointing out . . . that there is an absence of evidence to 13 support the nonmoving party's case." Celotex, 477 U.S. at 325. If the moving party meets 14 its initial burden, the opposing party must then "set out specific facts showing a genuine 15 issue for trial" to defeat the motion. Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 256. 16 17 DISCUSSION 18 The Fourth Amendment protects the "right of the people to be secure in their persons .
19 . . against unreasonable searches and seizures," and is applicable to the states through the 20 Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Section 1983 imposes 21 liability on a person who, under color of state law, "subjects, or causes to be subjected, any 22 citizen . . . or other person . . . to the deprivation of any rights" guaranteed by federal law. 42 23 U.S.C. § 1983. Eller brings two claims under § 1983 for unlawful seizure and unreasonable 24 use of force in violation of the Fourth and Fourteenth Amendments. 25 Defendants advance two bases for summary judgment in their favor. First, they argue
26 that no constitutional violation occurred because the officers' detention of Eller and their 27 use of force in effecting that detention were both objectively reasonable. Second, even if 28 the facts could support a constitutional claim, Defendants contend that they are protected by 6
1 the doctrine of qualified immunity. The Court begins by evaluating the officers' assertion of 2 qualified immunity, which if meritorious would result in dismissal. If this motion is not 3 resolved on qualified immunity grounds, the Court will then decide if Eller's constitutional 4 claims withstand summary judgment. 5 "Qualified immunity is `an entitlement not to stand trial or face the other burdens of
6 litigation.'" Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 7 511, 526 (1985)). A police officer enjoys qualified immunity "unless the official's conduct 8 violated a clearly established constitutional right." Pearson v. Callahan, --- U.S. ----, 129 S. 9 Ct. 808, 816 (2009). "If the Officers' actions do not amount to a constitutional violation, the 10 violation was not clearly established, or their actions reflected a reasonable mistake about
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11 what the law requires, they are entitled to qualified immunity." Brooks v. City of Seattle, 599
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12 F.3d 1018, 1022 (9th Cir. 2010). Qualified immunity protects "all but the plainly 13 incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 14 (1986). Since the entitlement of qualified immunity is "an immunity from suit rather than a 15 mere defense to liability," it is "effectively lost if a case is erroneously permitted to go to 16 trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). 17 The Supreme Court, in Saucier v. Katz, set forth a "two-step sequence for resolving
18 government officials' qualified immunity claims." Pearson, 129 S. Ct. at 815. A court must 19 first decide whether "the facts alleged show the officer's conduct violated a constitutional 20 right," and if so, then asks "whether the right was clearly established" such that "it would be 21 clear to a reasonable officer that his conduct was unlawful in the situation he confronted." 22 Saucier, 533 U.S. at 201-02. A defendant does not receive qualified immunity if both 23 questions are answered in the affirmative. The Supreme Court later ruled in Pearson that the 24 sequence of two steps, while "often beneficial," "should no longer be regarded as 25 mandatory." 129 S. Ct. at 818. In so ruling, the Court acknowledged criticism of the 26 two-step sequence as forcing courts "unnecessarily to decide difficult constitutional 27 questions when there is available an easier basis for the decision (e.g., qualified immunity) 28 that will satisfactorily resolve the case before the court." Id. at 817-18 (quoting Brosseau v. 7
1 Haugen, 543 U.S. 194, 201-02 (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring)). 2 Judges should "exercise their sound discretion in deciding which of the two prongs of the 3 qualified immunity analysis should be addressed first in light of the circumstances in the 4 particular case at hand." Id. at 818. 5 This Court begins with the second prong, and asks whether Isachsen and Philp
6 violated any "clearly established" right. For a right to be "clearly established" for purposes 7 of qualified immunity, the "contours of the right must be sufficiently clear that a reasonable 8 official would understand that what he is doing violates that right." Anderson v. Creighton, 9 483 U.S. 635, 640 (1987). Officials are entitled to immunity even if they "`mistakenly 10 conclude that probable cause is present,'" so long as that mistake was reasonable. Hunter v.
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11 Bryant, 502 U.S. 224, 227 (1991) (quoting Creighton, 483 U.S. at 641). To assess qualified
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12 immunity, the Court must ask "the objective (albeit fact-specific) question whether a 13 reasonable officer could have believed [the officers' actions] to be lawful, in light of clearly 14 established law and the information the . . . officers possessed." Creighton, 483 U.S. at 641. 15 Since Eller alleges two constitutional violations an unlawful seizure, and the use of 16 excessive force the Court will ask this question of each. 17 18 I. 19 Unreasonable Seizure The Fourth Amendment's prohibition of unreasonable seizures is not limited to
20 arrests, but rather applies to all seizures, which occur "whenever a police officer accosts an 21 individual and restrains his freedom to walk away." Terry v. Ohio, 392 U.S. 1, 16 (1968). 22 The critical issue in assessing allegations of Fourth Amendment violations is reasonableness, 23 for "what the Constitution forbids is not all searches and seizures, but unreasonable searches 24 and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960) (emphasis added). The 25 quantum of information that a police officer must possess to justify a seizure depends on the 26 intrusiveness of the interaction. A mere "encounter" which occurs when "a reasonable 27 person would feel free to decline the officers' requests or otherwise terminate the encounter" 28 is not a seizure at all and does not implicate the Fourth Amendment. Florida v. Bostick, 8
1 501 U.S. 429, 436 (1991); see also Florida v. Royer, 460 U.S. 491, 498 (1983) ("If there is 2 no detention no seizure within the meaning of the Fourth Amendment then no 3 constitutional rights have been infringed."). A "detention" also characterized as an 4 "investigatory stop" or a "Terry stop" is a seizure that "fall[s] short of traditional arrest" 5 and is governed by "a standard less than probable cause." United States v. Arvizu, 534 U.S. 6 266, 273 (2002). In that context, "the Fourth Amendment is satisfied if the officer's action is 7 supported by reasonable suspicion to believe that criminal activity `may be afoot.'" Id. at 273 8 (quoting Terry, 392 U.S. at 30). "[R]easonable suspicion of criminal activity warrants a 9 temporary seizure for the purpose of questioning limited to the purpose of the stop." Royer, 10 460 U.S. at 498. The most intrusive variety of seizure is an arrest, which must be supported
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11 by probable cause. United States v. Watson, 423 U.S. 411, 417 (1976). An arrest has
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12 occurred "where force is used such that the innocent person could reasonably have believed 13 he was not free to go and that he was being taken into custody indefinitely." Kraus v. County 14 of Pierce, 793 F.2d 1105, 1109 (9th Cir. 1986). A court must consider the "totality of the 15 circumstances" to determine if an individual "was arrested or merely detained." United 16 States v. Bravo, 295 F.3d 1002, 1010 (9th Cir. 2002). 17 It is undisputed that Eller was subject to seizure from the moment Isachsen ordered
18 him to remain on the gurney. What the parties dispute is the character of that seizure. 19 Defendants argue that Eller's initial confinement to the gurney constituted an investigative 20 stop, for which the officers needed only a reasonable suspicion of criminal activity. 21 Defendants assert that Isachsen satisfied this standard based on his reasonable suspicion that 22 Eller willfully resisted or obstructed an emergency medical technician in discharge of his 23 duty (Cal. Pen. Code § 148); that he was publicly drunk (Cal. Pen. Code § 647(f)); and that 24 he violated the rules of a health care facility and engaged in trespass (Cal. Pen. Code §§ 602, 25 602.1, and 602.11). Eller argues that confinement to his gurney constituted an arrest and 26 therefore was unconstitutional absent a showing of probable cause. 27 Since this issue is before the Court on the question of qualified immunity, the Court
28 must ask whether a reasonable officer would have believed that Eller's confinement to the 9
1 gurney constituted a lawful investigatory stop. To make a so-called "Terry stop," there must 2 be "articulable facts supporting a reasonable suspicion that a person has committed a 3 criminal offense." Hayes v. Florida, 470 U.S. 811, 816 (1985); see also Terry, 392 U.S. at 4 21. "Reasonable suspicion" is a low bar that may be satisfied, for example, by three men's 5 "oft-repeated reconnaissance of [a] store window" (creating reasonable suspicion that they 6 were planning a daylight robbery), Terry, 392 U.S. at 6, 28, or by a driver sleeping behind 7 the wheel of a car at 8pm, breathing rapidly, and responding testily to an officer's inquiry 8 (creating reasonable suspicion that he was under the influence of illegal stimulants), Ramirez 9 v. City of Buena Park, 560 F.3d 1012, 1021 (9th Cir. 2009). A "brief stop," which allows the 10 officer to "maintain the status quo momentarily while obtaining more information, may be
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11 most reasonable in light of the facts known to the officer at the time." Adams v. Williams,
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12 407 U.S. 143, 146 (1972). 13 Isachsen's statements to Eller explaining that he could move once he was seen by a
14 doctor made clear that his detention was only temporary. Since a reasonable person would 15 not have believed that he was being taken indefinitely into custody at that time, the seizure 16 did not rise to an arrest. Isachsen therefore needed only a reasonable suspicion of criminal 17 activity to justify Eller's detention. 18 The undisputed facts establish that multiple members of the Hospital staff sought the
19 assistance of Isachsen and Philp in subduing Eller. Both Drafton and Musaelian testified that 20 they had summoned the officers by making eye contact or waving them down, and Isachsen's 21 incident report indicates that Burns and Drafton approached him for help. Eller offered no 22 evidence refuting these accounts. At that point, a reasonable officer could have concluded 23 that an investigatory stop was justified by the reasonable suspicion that criminal activity was 24 afoot for example, that Eller had violated California Penal Code section 148 by resisting or 25 obstructing an emergency medical technician. Restricting Eller to the gurney was necessary 26 "to allow the officer to pursue his investigation without fear of violence." United States v. 27 Taylor, 716 F.2d 701, 708 (9th Cir. 1983). "Police officers are entitled to employ reasonable 28 methods to protect themselves and others in potentially dangerous situations." Allen v. City 10
1 of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). Officers need not avail themselves of 2 the "least intrusive means of responding to an exigent situation," but rather must act 3 reasonably under the circumstances. Id. 4 Isachsen's conduct in detaining Eller at that point was a reasonable response justified
5 by concern for the safety of other patients and staff. In an overcrowded hospital setting, an 6 unruly patient could threaten or harm individuals, damage equipment, and cause hazardous 7 conditions. Since a reasonable officer would have believed such a seizure to be lawful, 8 Isachsen and (to the extent he was involved) Philp have qualified immunity over Plaintiff's 9 unlawful seizure claim based on his confinement to the gurney.2 10 The seizure inquiry does not end there, however. Even if Eller was initially only
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11 subject to an investigatory detention, Defendants do not dispute that the interaction escalated
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12 to an arrest once the officers used force to physically restrain him. At that point, probable 13 cause was clearly required. "[A]n arrest without probable cause violates the fourth 14 amendment and gives rise to a claim for damages under § 1983." Borunda v. Richmond, 885 15 F.2d 1384, 1391 (9th Cir. 1988). For Isachsen and Philp to benefit from qualified immunity 16 for the arrest, Defendants must demonstrate that reasonable officers would have believed the 17 arrest to be supported by probable cause. "The test for probable cause is whether facts and 18 circumstances within the officers' knowledge are sufficient to warrant a prudent person, or 19 one of reasonable caution, to believe, in the circumstances shown, that the suspect has 20 committed, is committing or is about to commit an offense." Menotti v. City of Seattle, 409 21 F.3d 1113, 1149 (9th Cir. 2005). "The validity of the arrest does not depend on whether the 22 suspect actually committed a crime; the mere fact that the suspect is later acquitted of the 23 offense for which he is arrested is irrelevant to the validity of the arrest." Michigan v. 24 DeFillippo, 443 U.S. 31, 36 (1979). 25 26 Eller argued at hearing that, since Isachsen did not even question Eller during his 27 detention, no investigation was conducted and his seizure could not be justified as an investigatory detention. However, such detentions are also justified by the need to maintain 28 the status quo and ensure the safety of the officers and those around them. 11
2
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Defendants argue that Isachsen had probable cause to arrest Eller "for obstruction"
2 once he defied Isachsen's orders. A violation of California Penal Code section 148(a), for 3 obstructing a peace officer, is comprised of three elements: "(1) the defendant willfully 4 resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the 5 performance of his or her duties, and (3) the defendant knew or reasonably should have 6 known that the other person was a peace officer engaged in the performance of his or her 7 duties." People v. Simons, 42 Cal. App. 4th 1100, 1108-09 (1996). Again, for purposes of 8 qualified immunity, the key question is whether a reasonable officer would have concluded 9 that he had probable cause to arrest Eller at this point. Both Eller and Defendants agree that, 10 immediately before his arrest, Eller defied Isachsen's order to remain on the gurney thereby
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11 obstructing a uniformed officer while he was clearly engaging in the performance of his
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12 duties. Although Eller contends that he only stood to use the restroom, those facts do not 13 alter the calculus for probable cause. It is not unreasonable for an officer engaged in an 14 investigatory stop to momentarily deny a request to use the restroom until the detention is 15 complete. From a reasonable officer's perspective, it was lawful to escalate the investigatory 16 stop to an arrest for obstruction once Eller acted contrary to Isachsen's orders. Isachsen and 17 Philp therefore have qualified immunity with respect to Eller's claim for unlawful seizure, 18 and summary judgment is GRANTED to Defendants as to this claim. 19 20 II. 21 Excessive Force For allegations of unreasonable force in violation of the Fourth Amendment, "the
22 qualified immunity inquiry is the same as the inquiry made on the merits." Scott v. Henrich, 23 39 F.3d 912, 914 (9th Cir. 1994) (quoting Hopkins v. Andaya, 958 F.2d 881, 885 n.3 (9th Cir. 24 1992)). Excessive force claims are judged under an "objective reasonableness" standard, 25 Scott v. Harris, 550 U.S. 372, 381 (2007), which entails "a careful balancing of the nature 26 and quality of the intrusion on the individual's Fourth Amendment interests against the 27 countervailing governmental interests at stake," Graham v. Connor, 490 U.S. 386, 396 28 (1989) (internal citations and quotation marks omitted). The reasonableness standard evades 12
1 "precise definition or mechanical application." Bell v. Wolfish, 441 U.S. 520, 559 (1979). 2 As a result, assessing whether any given use of force is reasonable "requires careful attention 3 to the facts and circumstances of each particular case, including [1] the severity of the crime 4 at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or 5 others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." 6 Graham, 490 U.S. at 396. "These factors should be considered in relation to the amount of 7 force used." Brooks v. City of Seattle, 599 F.3d 1018, 1025 (9th Cir. 2010). "The calculus
8 of reasonableness must embody allowance for the fact that police officers are often forced to 9 make split-second judgments in circumstances that are tense, uncertain, and rapidly 10 evolving about the amount of force that is necessary in a particular situation." Graham,
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11 490 U.S. at 397.
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12
The issue of excessive force is independent from that of probable cause. Force is not
13 automatically unreasonable simply because probable cause is lacking. Beier v. City of 14 Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). "Indeed, an arrestee's resistance may 15 support the use of force regardless of whether probable cause existed." Brooks, 599 F.3d at 16 1022. "The absence of probable cause does not grant an individual the right to offer 17 resistance." Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001). 18 Defendants characterize the conduct of Isachsen and Philp as an appropriate
19 "escalation of force," beginning with an officer's uniform presence and increasing to verbal 20 tactics, firm grip, physical force, and finally an eight-second application of the Taser in drive 21 stun mode. They also stress that the Taser was used only in the drive stun mode, 22 representing a far lower quantum of force than the dart probe mode. See Brooks, 599 F.3d at 23 1027 ("The use of the Taser in drive-stun mode is painful, certainly, but also temporary and 24 localized, without incapacitating muscle contractions or significant lasting injury."). In 25 Brooks, the Ninth Circuit concluded that it was not unconstitutional to deploy a Taser three 26 times in drive-stun mode against a pregnant woman who refused to sign a notice of infraction 27 during a traffic stop. The court characterized Brooks as presenting a "less-than-intermediate 28 use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect 13
1 accused of a minor crime, but actively resisting arrest, out of police control, and posing some 2 slight threat to officers." Id. at 1030-31. In light of Brooks, Defendants argue, the use of 3 force by Isachsen and Philp was clearly not a constitutional violation. 4 Eller's account of the force used differs in several respects from that of Defendants,
5 however. First, Eller contends that the Taser was deployed in immediate response to his 6 standing up, without any kind of warning or escalation in force. Eller also claims that the 7 Taser was used in dart probe mode which causes "intense" pain that "is felt throughout the 8 body" and "is administered by effectively commandeering the victim's muscles and nerves," 9 Bryan v. McPherson, 590 F.3d 767, 774 (9th Cir. 2009) and that he was struck in the chest 10 rather than the back.
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Construing the facts in a light most favorable to Eller, the Court cannot conclude that
12 the officers are entitled to qualified immunity on the excessive force claim, nor can it resolve 13 the question of whether there was a constitutional violation. A reasonable officer would not 14 have concluded that the immediate deployment of the Taser, without warning as Eller 15 alleges occurred was appropriate in this context. "[W]arnings should be given, when 16 feasible, if the use of force may result in serious injury." Deorle v. Rutherford, 272 F.3d 17 1272, 1284 (9th Cir. 2001). Because an inquiry into excessive force "nearly always requires 18 a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have 19 held on many occasions that summary judgment or judgment as a matter of law in excessive 20 force cases should be granted sparingly." Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). 21 "This is because such cases almost always turn on a jury's credibility determinations." Smith 22 v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). "[W]hether the force used to effect an 23 arrest is reasonable is ordinarily a question of fact for the jury. Although excessive force 24 cases can be decided as a matter of law, they rarely are because the Fourth Amendment test 25 for reasonableness is inherently fact-specific." Headwaters Forest Defense v. County of 26 Humboldt, 240 F.3d 1185, 1198 (9th Cir. 2001) (internal citations and quotation marks 27 omitted). Summary judgment is therefore DENIED as to this claim. 28 14
1 III. 2
Municipal Liability Eller also seeks to hold the City and SRPD liable for the constitutional violations
3 alleged. See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Municipal liability in 4 § 1983 actions is "only appropriate where a plaintiff has shown that a constitutional 5 deprivation was directly caused by a municipal policy." Nadell v. Las Vegas Metro. Police 6 Dep't, 268 F.3d 924, 929 (9th Cir. 2001). Four conditions must be satisfied to hold the 7 municipality liable for failing to act to preserve constitutional rights: "(1) that [the plaintiff] 8 possessed a constitutional right of which he was deprived; (2) that the municipality had a 9 policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional 10 right; and (4) that the policy is the moving force behind the constitutional violation." Van
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11 Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (internal citations and quotation
For the Northern District of California
12 marks omitted). 13 On the date of Eller's arrest, the SRPD's policy on the "use of force" and the "use of
14 advanced tasers" was set out in two general orders. Following the arrest, a supervising 15 officer with the SRPD concluded that Isachsen's use of the Taser was in compliance with 16 that policy. Defendants argue that no evidence suggests that the policy amounts to a 17 "deliberate indifference" to Eller's constitutional rights. Eller contends that, since the SRPD 18 determined that the officers' use of force complied with its policy, the policy must be the 19 "moving force behind" the alleged constitutional violations. Eller also points out that 20 Isachsen is a defense tactics instructor for the SRPD, meaning he instructs others on the use 21 of the Taser which Eller treats as evidence that the SRPD fails to properly train its officers 22 on the use of force. 23 The Court agrees with Defendants that Eller has failed to present any evidence to
24 satisfy the "deliberate indifference" inquiry. The use of force policy sets forth the standard 25 for reasonable force under California Penal Code section 835a and the Supreme Court's 26 decision in Graham v. Connor, 490 U.S. 386, 388 (1989), and instructs officers on 27 compliance with those standards. Even if Eller were to prevail on his excessive force claim 28 before a jury, a "plaintiff cannot prove the existence of a municipal policy or custom based 15
1 solely on the occurrence of a single incident or unconstitutional action by a 2 non-policymaking employee." Nadell, 268 F.3d at 929. The SRPD's conclusion that 3 appropriate force was used here, and Isachsen's training of other officers on the use of force, 4 do not suggest that the municipality has a policy amounting to deliberate indifference to 5 Eller's constitutional rights. Eller has failed to set out any facts showing a genuine issue for 6 trial on the question of municipal liability. Summary judgment is therefore GRANTED to 7 Defendants on this issue. 8 9 CONCLUSION 10 For the reasons set forth above, summary judgment is GRANTED to Defendants on
United States District Court
11 the unlawful seizure claim and the issue of municipal liability, but DENIED as to the
For the Northern District of California
12 excessive force claim. 13 14 IT IS SO ORDERED. 15 16 Dated: 6/10/10 17 18 19 20 21 22 23 24 25 26 27 28 16 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT
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